Port Norris Express Co.

National Labor Relations Board - Board Decisions

Feb 20, 1969

174 N.L.R.B. 684 (N.L.R.B. 1969)

684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Port Norris Express Company - and Teamsters Local
Union No. 676 , International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and
Helpers of America. Case 4-CA-4560
February 20, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On September 30, 1968, Trial Examiner William
F. Scharnikow issued his Decision in the
above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in
certain unfair labor practices and recommending
that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision
together with a brief and a supplemental brief, and
the General Counsel and the Union filed answering
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner2 and
orders that the Respondent, Port Norris Express
Company, Port Norris, New Jersey, its officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended
Order.
The Respondent excepts to some of the Trial Examiner 's credibility
resolutions It is the Board's established policy, however , not to overrule a
Trial Examiner ' s resolutions as to credibility unless, as is not the case here,
the preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products , Inc., 91 NLRB 544, enfd 188
F 2d 362 (C.A. 3)
'Section 2(c) of the Trial Examiner 's Recommended Order, which we
adopt, is applicable only to contracts to be negotiated in the future and we
do not intend thereby to affect the validity of the present contract between
the parties
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM F. SCHARNIKOW, Trial Examiner: The
Complaint alleges that the Respondent, Port Norris
Express Company, has engaged in, and is engaging in,
unfair labor practices affecting commerce within the
meaning of Section 8(a)(1), (3), and (5) and Section 2(6)
and (7) of the National Labor Relations Act, as amended,
29 U.S.C. Sec. 151, el seq , herein called the Act. With
respect to the unfair labor practices, the Complaint
asserts, but the Respondent's answer denies that, (1) upon
being requested to bargain by the Union which was and is
the exclusive bargaining representative of an appropriate
bargaining unit of the Respondent's employees within the
meaning of Section 9(a) and (b) of the Act, the
Respondent committed unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act (a) by
"negotiating . . . in bad faith . . . with no intention of
entering into any final binding collective bargaining
agreement," and (b) by refusing on and since February 6,
1968, to "negotiate and discuss . . any collective
bargaining matters, other than wages, holidays and
vacations ... ;" and (2) on and since February 10, 1968,
the Respondent committed further unfair labor practices
"in support of its unlawful bargaining" and in violation of
Section 8(a)(3) and (1) of the Act, by closing down its
garage and locking out its employees.'
Pursuant to notice, a hearing was held at Vineland,
New Jersey, on May 27, 28, and 29, 1968, before me. The
General Counsel, the Respondent, and the Union
appeared by counsel, and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and
to introduce evidence upon the issues in the case.
At the request of counsel for the Respondent on May
29, 1968 (the third day of hearing), I issued a subpoena
duces tecum directed to Commissioner Martin S.
Komornik of the Federal Mediation and Conciliation
Service, and adjourned further hearing until June 18,
1968, solely for the purpose of taking the testimony of
Commissioner Komornik at that time. On June 14, 1968,
Morris L. Myers, General Counsel for the Federal
Mediation and Conciliation Service filed and served upon
counsel for the Respondent a petition to revoke the
subpoena. On June 17, 1968, 1 issued a telegraphic order
and caused its immediate service upon counsel, indefinitely
postponing the hearing scheduled for June 18, 1968, and
directing the Respondent to show cause in writing why the
petition to revoke the subpoena should not be granted and
the hearing closed. On June 21, 1968, counsel for the
Respondent filed his opposition to the petition to revoke.
On June 26, 1968, upon consideration of the petition to
revoke and the Respondent's opposition thereto, I issued
an order and caused service thereof to be made upon all
counsel, revoking the subpoena, closing the hearing, and
granting leave to counsel to file their briefs on or before
July 12, 1968. Since the close of the hearing I have
received and considered briefs for the General Counsel
and counsel for the Respondent and the Union.
Upon the entire record in the case and from my
observation of the witnesses, I make the following-
'The unfair labor practice charge was filed by the Union on March 7,
1968, and served on the Respondent on the same day . The Regional
Director issued the Complaint and caused it to be served on the
Respondent and the Union on April 19, 1968 The Respondent filed its
answer on April 29, 1968
PORT NORRIS EXPRESS CO. 685
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent, Port Norris Express Company, is a New
Jersey corporation which maintains its principal office and
place of business in Port Norris, New Jersey. It is
engaged in the intrastate and interstate hauling and
transportation of goods and materials. During the year
preceding the issuance of the complaint, the Respondent
received more than $50,000 from services in the
transportation of goods and materials across State lines.
I find that the Respondent is, and has been at all
material times, an employer engaged in commerce within
the meaning of the Act and that it will effectuate the
policies of the Act for the Board to entertain jurisdiction
on the present case.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union No. 676, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (herein called the Union), is a
labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction : General Framework of the Case and
Issues
For the last 30 years, the Respondent has been an
incorporated motor common carrier with its office,
garage, and yard located in Port Norris, New Jersey, and
has been engaged in the business of transporting sand by
truck or tractor-trailer on a trip-by-trip arrangement from
New Jersey sand companies to various New Jersey glass
manufacturers and other users of sand in New Jersey,
Pennsylvania, New York State, and New England. Its
trucks or trailers (currently numbering 26) are loaded at
the consignors' premises and either proceed directly
therefrom on their deliveries the same day or, in instances
of the longer hauls, are parked in the Respondent's yard
overnight (or over the weekend if loaded on a Friday)
before being finally dispatched to their delivery points.
The Respondent's drivers have been paid in accordance
with a trip-rate schedule which in some cases has included
specific overnight subsistence allowances. As a matter of
regular practice during the period with which we are
concerned, James Garrison, the Respondent's vice
president, listed the driving assignment for each man for
the following workday on a schedule which he placed in a
basket on a desk in the office toward the end of the
preceding workday. If Garrison happened to be in the
yard upon a driver's return at the end of a particular
workday, Garrison might tell the driver whether he had an
assignment the next working day and, if so, what it was.
Otherwise, to see whether he had such an assignment, the
driver checked the assignment list or schedule in the
office, using a key to enter the garage door to get to the
office beyond, if it were late and the door was locked. The
drivers checked in this fashion as to whether they had an
assignment for the following workday not only on the
preceding evening but on Saturdays and Sundays to see
whether they had Monday assignments. If a driver had
not been told he had an assignment for a particular
workday and none was listed for him on the assignment
list or schedule, he was not expected to report for work
that day but merely to continue checking each evening for
work on the succeeding day.
In essence, the General Council and the Union contend,
but the Respondent denies, that following the expiration
on December 31, 1967, of a contract with the Union
covering the Respondent's truckdrivers, the Respondent
violated Section 8(a)(5) and (1) of the Act by refusing to
bargain in good faith on the Union's lengthy proposal for
a new contract, and that the Respondent also violated
Section 8(a)(3) and (1) of the Act by "locking out" the
drivers to discourage their continuing membership in and
support of the Union, and to force the Union to accept
the Respondent's more limited contract proposal.
Both the Respondent's alleged refusal to bargain and its
alleged "lock out" of its truckdrivers occurred while the
Respondent's and the Union's representatives were
engaged from February 6 to April 22, 1968,2 in a series of
eight meetings concerning the terms of a new contract.
According to the General Counsel and the Union, the
Respondent's refusal to bargain began with the refusal of
the Respondent's vice president, James Garrison, to
consider or discuss the Union's lengthy, typewritten
contract proposal when it was submitted by the Union's
vice president, Charles Morris, at the meeting on
February 6, and continued throughout subsequent
meetings on March 5, 20, and 23 until, during meetings
on April 5, 16, 19, and 22, the parties turned for the first
time to a detailed discussion of the Union's as well as the
Respondent's proposal and on April 22 reached a
complete oral agreement which was thereafter reduced to
writing and executed on May 23, retroactive to January 1,
1968. The charge of "lock out" arose from the facts (as
hereinafter found in detail) that Vice President Garrison
of the Respondent knew that the Union was holding a
meeting for the drivers on Saturday morning February 10,
to report Garrison's limited proposal and his rejection of
the Union's proposal, that Garrison believed a strike was
likely and might occur when the Respondent's trucks were
loaded, and that Garrison therefore scheduled no
deliveries for the Respondent's customers after February
10 (and thus no work for its drivers) until a full agreement
was eventually reached with the Union on a contract on
April 22.
Three days of hearing were taken to present the
evidence. Apparently because of the heat generated by the
dispute which gave rise to the present case, the witnesses
were wary in their testimony, and frequently gave vague
and meaningless answers when they were not sure of the
implications. These were difficulties faced by counsel and
led to lengthier questioning than should have been
necessary. Eventually, however, as each witness continued
in his testimony, what at first seemed to promise possible
conflicts were resolved in many instances by the rest of
the witness' testimony and stipulations by counsel. As a
result, when the evidence is shaken down to its eventual
relevant core, the basic material facts with respect to the
refusal to bargain are for the most part not in dispute.
Nor, to a great extent, are the facts relating to the alleged
"lockout," although in this latter connection, there are
questions as to the proper inferences to be drawn from
these facts.
In the following sections of this Decision, the substance
of the evidence with respect to the refusal to bargain will
first be considered, and then the remaining evidence
relating to the "lockout." Unless otherwise indicated, the
factual findings set forth are matters which are not in
dispute.
'Unless otherwise indicated, all dates are m 1968.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Refusal To Bargain
Under a series of contracts with the Respondent, the
Union has for more than 20 years been continuously
recognized by the Respondent as the exclusive bargaining
representative of an appropriate unit of the Respondent's
truckdrivers, excluding office clerical employees, guards,
and supervisors. The last of these contracts prior to the
events in the present case, was in the form of a one-page
letter of agreement signed by the parties on July 19, 1965
and covering the truckdrivers for a period from April 1,
1965 through December 31, 1967. In short, one- or
two-lined, numbered paragraphs, this agreement made
provision only for certain matters which the witnesses and
counsel spoke of during the hearing as "economic
matters," i.e., certain trip-rate increases, a waiting-time
rate, holidays identical to those granted by local glass
manufacturers, and a 3-week vacation for drivers with 10
or more years of service. The ninth and final paragraph of
this letter of agreement, however, provided that, "The
Company also agrees to meet with the Union in the near
future to negotiate the body of the agreement." But no
arrangement was made by the parties to hold the meeting
or meetings thus contemplated, and the 1965 agreement
expired on December 31, 1967, without the parties having
negotiated or adopted any such general "body of
agreement."
In December 1967, and again in January 1968, James
Garrison, the Respondent's vice president, spoke with
Steward Jack Randazzo about a new agreement which
would become effective on January 1, 1968. In December
1967, Randazzo told Garrison they "should start to work
out a new agreement whenever it was convenient," and
Garrison agreed, saying, without being more specific, that
he had "in mind . . a fairly good increase" and that, "if
there was something else on [the Union's] mind, we could
also talk about that matter. . . ." In January 1968,
Garrison gave Randazzo "a little more detail" as to the
rate-raises he, contemplated. Using as examples some of
the "trips that we make pretty often," he said he was
willing to raise rates for some of them by 5 percent and
for some others by as much as 20 percent, and Randazzo
agreed to explain this to the drivers.
On January 20, Steward Randazzo told the drivers of
this general proposal by Garrison. As Randazzo testified,
the drivers "rejected [the proposal] because we had no
contract. They wanted a contract. They wanted something
binding and spelled out. They wanted something to tell us
what we were to do and what we were not to do."
Following this, Union Vice President Charles Morris
telephoned Garrison and a meeting was arranged for
Tuesday, February 6 at the Respondent's office.
The meeting on February 6 was attended by Morris,
Steward Randazzo, and two Union committeemen.
Garrison and President Sam Leonetti were there for the
Respondent. Garrison repeated his general proposal,
already made to Steward Randazzo, to increase some of
the trip rates, but in no more detail than he had to
Randazzo since, as he testified, "I did not have the trips
spelled out in detail like [they were later] submitted."
Morris produced a 71-page, typed contract proposal which
Garrison in his testimony and Respondent's counsel in his
questioning referred to as "almost a standard national
freight contract,"' and which contained provisions with
respect to such matters as grievance and arbitration
procedures; wages, hours, and overtime; seniority, layoff,
and recall, holidays; vacation, subcontracting, causes for
dismissal or suspension; and safe conditions of work.
Garrison said at this meeting on February 6 that he
was willing to discuss what his rate increases would be
but, after merely glancing at the Union's contract
proposal turned it back to Morris with the statement,
according to his own testimony, "that it was entirely too
stiff . . . for us to even consider."4 Although Morris told
Garrison "that we were prepared to discuss, anything [in
the Union's proposal] that would hurt this operation in
any way ... ," Garrison said, "I do not want to look at
it."5
There was no further meeting between the Union's and
the Respondent's representatives after this meeting of
February 6 until March 5. In the meantime, Morris held a
Union meeting of the Respondent's drivers on Saturday
morning, February 10, at which the drivers voted to reject
Garrison's limited contract proposal of rate increases and
to ask the Union's International for authority to strike,
and, beginning on Monday, February 12, the Respondent
undertook no further hauls for its customers and its
drivers did no work for the Respondent. The details of
this evidence as to why, the drivers were idle on and after
February 12 (and, for that matter, until about April 22)
do not affect the question of whether the Respondent
refused to bargain in good faith on the Union's contract
proposal until the much later bargaining meetings
beginning on April 5, but relate directly to the "lockout"
issue which is considered more conveniently and at length
in the next section of this Decision.
The record gives no clear basis for any conclusion as to
whether Morris or Garrison was responsible for the lapse
of a month between their first meeting on February 6 and
their second meeting on March 5. A fair appraisal of the
evidence would indicate that neither made any attempt to
reach the other in the week beginning on Monday,
February 12. Although Morris testified that he telephoned
Garrison at the latter's office on that Tuesday (February
13) and was told that Garrison was not in, I credit
Garrison's testimony that it was not until Friday,
February 16, that he left on a 10-day or 2-week vacation.
Accordingly, it would appear that Morris' unsuccessful
telephone call was made, at the earliest, sometime in the
week beginning on Monday, February 19. Both men agree
that on Garrison's return (which could not have been
before February 26), they did speak with each other on
the telephone and arrange the meeting of March 5. Each
claimed it was he who called the other, but, after the lapse
of time up to that point, it does not seem to me to be
material who it was who then made the call.
Although several other Union representatives were
present at the meeting of March 5 with Garrison, Morris
was the Union's spokesman. He again submitted the
Union's contract proposal and, as he testified without
contradiction, offered to discuss the proposal "page by
page." But Garrison refused to look at the proposal and,
according to Garrison's testimony, when Morris "insisted
on his contract," Garrison simply said, "I could not live
'Consistent with the Respondent 's attorney's reference to this form of
contract (Tr p. 381, 1. 25 ), the answer of Garrison appearing at p 380, 1
24, is hereby corrected to read "standard national freight contract,"
instead of "standard national rate contract ." The error thus corrected was
apparently inadvertent on the part of the Official Reporter.
'This is unquestionably the essence of the position stated by Garrison at
this meeting According to Morris, Garrison ' s statement was actually that
"I would never sign this as long as you are living . I hope that you live to
be one hundred."
'Morris' testimony that Garrison thus refused to discuss any of the
matters in the Union 's contract proposal which he might find to be
objectionable , was not denied by Garrison
PORT NORRIS EXPRESS CO. 687
with it. There was too much money involved." On the
other hand, Garrison pressed for the Union's acceptance
of the rate increases he was willing to give (although he
still had made no definite formulation of what they would
be), but Morris flatly refused to agree to this general
proposal.
Following this meeting of March 5, the Union delivered
a copy of its full contract proposal to the office of the
Respondent's attorney, J. Peter Davidow, at the request of
a young attorney who also had his offices there. In
addition, Attorney Davidow requested the assistance of
the Federal Mediation and Conciliation Service in
mediating the contract dispute. As a result, Commissioner
Martin S. Komornik attended the next three meetings
between the parties on March 20, March 23, and April 5.
The meeting of March 20 was held at Attorney
Davidow's office and was attended by Commissioner
Komornik, and Morris and several other representatives
for the Union. Garrison did not attend and Attorney
Davidow alone was there for the Respondent. There was
some discussion of the drivers' going back to work which
will be considered in the next section of this Decision. It
does not appear whether the general subject of rate
increases was discussed. When the meeting turned to the
Union's contract proposal, Attorney Davidow said that he
had not had a chance to look at the contract proposal and
was not prepared to discuss it then. Another meeting was
arranged however for the following Saturday, March 23,
and was again held at the office of Attorney Davidow
with the Commissioner and the same representatives of
the Union also present. In addition Garrison attended the
March 23 meeting.
At this meeting on March 23, there was some
discussion between the parties in the presence of the
Mediation Commissioner of the men's return to work,
which will be considered in the next section of this
Decision. In addition, Garrison submitted to the Union's
representatives in the presence of the Mediator a
formulation of the rate increases he was prepared to give
and a full proposed rate schedule. But there was no
discussion of these "economic" proposals by the
Respondent. For, as Garrison testified, "The only way
that the union was willing to negotiate was on their
contract and the terms in economics were not discussed
then, that is, beyond me submitting it." Nor was there
any discussion of the Union's contract proposal. For,
when the Mediator started going over it from the first
page, Attorney Davidow said that it was "too thick to get
involved in now," that he "was tired and had a bad week
and did not want to get into any discussions as far as
the proposed agreement ... was concerned."
A third meeting between the parties' representatives
with Commissioner Komornik present was held on April 5
in the Union's office at Vineland followed by lengthier
meetings (which the Mediator did not attend) on April 16
and 19 at the Union's Collingswood office and a final
meeting on April 22 at a restaurant in Stony Brook. The
record does not show what transpired at the April 5
meeting although apparently the base was then laid for the
more productive later meetings. At the meetings on April
16 and 19 the Respondent's proposed rate schedule was
discussed, and in the final meeting on April 22 the parties
reached an oral agreement on a full contract including
these "economics" provisions and also the substance of
many of the provisions proposed by the Union. The
contract was reduced to writing and signed by the parties
on May 23, retroactive to January 1, 1968.
Upon the foregoing facts, it is clear that on and after
February 6 and until the meeting of April 5, the
Respondent refused to bargain with the Union on the
Union's contract proposal of February 6. For at the
meetings of February 6 and March 5, Garrison not only
generally refused to consider the provisions of the
proposal after merely glancing at them, but rejected
Morris' offers to discuss and consider the specific reasons
or objections which Garrison might have to any particular
provision or provisions in the proposal. And when the
Union again attempted to discuss the various provisions in
the presence of the Mediator at the meetings on March 20
(which Garrison did not attend) and on March 23 (with
Garrison present), Attorney Davidow again refused to talk
about the proposal, saying in the first of these meetings
simply that he was not prepared to discuss the proposals
and in the meeting on March 23 that the proposal was
"too thick to get involved in now" and he was "tired."
Thus, despite the fact that the Union's proposal had been
submitted almost 2 months earlier, the Respondent
repeatedly refused to confer and bargain with the Union
concerning their substance. In this situation, I find and
conclude that from February 6, 1968, until at least the
meeting of the parties on April 5, 1968, the Respondent
refused to bargain in good faith with the Union on the
Union's contract proposal and thereby committed an
unfair labor practice within the meaning of Section 8(5)
and (1) of the Act.
C. The Lockout
1. The questions raised by the evidence
Having found that the Respondent had initially refused
to bargain in good faith on the Union's contract proposal
in the period from February 6 until April 5, we turn now
to the question of why the Respondent's drivers were not
at work from February 12 until after the Respondent and
the Union reached an oral agreement on their full
contract on April 22. Actually there is a series of
questions raised by the evidence and the positions taken
by the parties:
Were the drivers on strike in accordance with a decision
made by them at their Union meeting on February 10? Or
did the Respondent lock them out out by refusing all
assignments of work from its customers and making no
assignments to the drivers on and after February 12? Or
was the situation so confused that no one knew why the
drivers were not working after February 12? Finally, if it
be found that the Respondent locked out the drivers and
was thus responsible for their idleness on and after
February 12, was the lockout justified in spite of the
Respondent's contemporaneous, illegal refusal to bargain,
because the Respondent reasonably believed, on the basis
of reports received from drivers concerning their Union
meeting on February 10 and the absence of any advice to
the contrary from the Union, that the drivers might either
be on strike or about to strike at a time of their own
choice which would be most inconvenient for, and
effective against, the Respondent?
2. The relevant facts shown by the evidence
Following Union Representative Morris' meeting of
February 6 with Vice President Garrison of the
Respondent, the Union notified the Respondent's drivers
by letter and by a notice posted on the oulletin board in
the Respondent's garage that there would be a meeting of
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the drivers on Saturday, February 10. It is clear from the
evidence, and I find, that Garrison knew in advance of the
meeting and that, anticipating the possibility of a strike,
he decided to accept no shipments for the following
Monday, Tuesday, or Wednesday, that he rejected any
such shipments as were profferred by the Respondent's
customers, and, accordingly, that he prepared no
assignment schedule for the drivers for Monday or
thereafter and told two of the drivers on Friday, February
9 that there would be no work n Monday. For, not only
did Garrison testify that he might have told some of his
customers during the week ending on Saturday, February
10 "that we may have a strike and we may not be able to
give service," but Harry Bowker, the assistant
superintendent of Whitehead Brothers (a sand plant),
testified without contradiction, and I find, that on Friday,
February 9 he telephoned Garrison about several
out-of-State sand shipments but Garrison refused to
accept any loads for Monday shipment, explaining that
"they were going to have a strike vote or a union meeting
and he [Garrison] was afraid that the loads would be
loaded and left on the truck on Monday." Moreover,
upon the uncontradicted testimony of the two drivers, I
find that on Friday, February 9, Garrison also told
Steward Jack Randazzo that there was nothing for him to
load\for further shipment and that on the same day he
also told Driver Charles Hankins at the end of the latter's
workday, "I guess that is all for a while."- Finally, in the
general situation apparent from the foregoing evidence, it
is clear and undisputed that Garrison did not prepare, nor
therefore leave in the office, the usual drivers' assignment
schedule for Monday, February 12.
Pursuant to the letters to the drivers and the notice
posted on the bulletin board in the Respondent's garage,
Union Vice President Morris met with the drivers at the
VFW Hall in Port Norris on Saturday morning, February
10. In substance, Morris told the men that Garrison had
refused to negotiate a contract concerning anything except
the trip-rates and, to their questions as to what should be
done, he told them that he had no authority to approve a
strike, that they should continue to work during the
Union's negotiations with the Respondent, but that they
should vote on whether to ask the International for
"strike sanction ." The men voted, 19 to 2, to reject
Garrison's limited proposal and to ask for "strike
sanction." Morris then told them to go back to work and
that he would tell the Respondent that the men had turned
down the Respondent's proposal and that the Union was
ready to negotiate.
The foregoing findings concerning the union meeting of
February 10 are based principally upon the testimony of
Union Vice President Morris, but also in part upon the
consistent evidence given by Steward Randazzo and all six
of the drivers who testified about the meeting as witnesses
for the Respondent. But three of these drivers (John
McPherson, Joseph Carman, and Charles Hankins)
testified, in square contradiction of denials by Morris,
Randazzo and drivers Michael Gould and Raymond
Wynder,6 that, although Morris told the men to go back
to work during negotiations and until "strike sanction"
was given, Morris also spoke about the possibility of their
striking at some future time when the trucks were loaded.
Although the matter is not free from doubt, I credit this
testimony. It should be noted, however, upon the clear
remainder of the testimony, that the men did not vote to
go on strike immediately and that Morris told them they
were to stay at work '
But when some of the drivers visited the terminal on
Saturday afternoon or on Sunday, February 10 or 11,
they learned that Garrison had scheduled no work for any
of the drivers for Monday; that he had no definite idea
when he would resume operations; and that, without prior
notice to them, he had just installed an additional lock on
the garage door which their keys would not open. Thus,
after leaving the Union meeting at about 12:30 or 1 p.m.
on Saturday, four of the drivers returned to the
Respondent's yard where several of them had left their
cars, and, in a conversation which will be considered more
fully below, Garrison told three of them who entered the
yard or garage (Rickets, Gould, and Wynder) that he had
scheduled no work for Monday or the following days.
Later in the afternoon, driver Mason (the fourth driver
who had not entered the yard with the other three and
who had not overheard their conversation with Garrison)
returned to the terminal at about 3 p.m. after Garrison
had left but while the mechanics were still working in the
garage. The garage door was still open and Mason entered
but, although he looked for a Monday assignment
schedule, he could not find one either where Garrison
regularly left it on Friday nights or Saturdays, or at any
other place in the office or garage. Two other drivers also
made unsuccessful attempts to enter the garage and office
to check on possible Monday assignments on Saturday or
Sunday after the garage door was closed and locked but
were unable to get in because their keys would not open
the new lock. Driver Randazzo made his attempt at about
3 or 3:30 p.m. on Saturday, and driver McPherson on
Saturday afternoon or Sunday. Furthermore, according to
Steward Randazzo's testimony (which I credit), he spoke
to "almost every [other] driver" of the Respondent and,
after telling each of them that he had been unable to get
into the terminal because the door had been locked, he
was told by them either that they, too, had found the door
locked or that they had heard from other drivers that the
door was locked.
Neither Union Vice President Morris nor any other
union representative immediately informed Garrison of
what had happened at the Union meeting on Saturday,
February 10, nor that the men were not on strike . But, as
already noted, Garrison did speak to three of the drivers
within an hour or so after the meeting. According to his
testimony their "confused" version of the meeting, the
failure of the drivers to report for work on and after
Monday, February 12, and the absence of any direct
advice from the Union for the next few weeks, not only
made him uncertain as to what the situation was, but led
to an assumption on his part either that the men were on
strike or that they would shortly go on strike after the
Respondent's trucks were loaded for delivery, and he
'Samuel Mason, the other driver who testified for the Respondent about
the Union meeting, was not at all clear on the point.
'On Monday , February 12, Morris forwarded notice of the drivers' voted
request for a "strike sanction " to the Union ' s International in Washington,
through its Council in Philadelphia. The completed , printed and other
stereotyped forms which attended the processing of the request during the
following weeks contained references to a "strike date" and other
references to "strike" as well as to "strike or lockout date " so that "out of
work benefits" - that is, strike or lockout benefits - could be determined
under the provisions of the International's constitution. The Respondent
relies upon these references as showing that its drivers were regarded by
the Union and its parent organization as being on strike on and after
February 12 rather than locked out by the Respondent . In view of the
ambivalence of the terms and the clear evidence of what actually happened
at the drivers ' Union meeting on February 10 as the drivers understood it,
I have nevertheless found that the drivers did not vote to go on strike on
February 10, nor were they on strike on February 12 or thereafter.
PORT NORRIS EXPRESS CO. 689
therefore shut down his operation indefinitely until the
situation should be clarified by the Union. But a fair
appraisal of the pertinent evidence does not support
Garrison's explanation of his actions.
Garrison testified that when drivers Gould, Rickets, and
Wynder8 came back to the terminal from the Union
meeting on Saturday, February 10:
I asked what the result of the meeting was. It seemed
that they were quite confused on how they voted... .
Now the extent of it was, according to my
understanding, that they had a choice of striking then
or coming back to work for a short period of time and
pull the doors down on us after we got operating . . . I
did not know what to do. I hung around the garage
most of the Sunday. There were more [drivers other
than the three already mentioned] - well, one or two
others that came around - a lot of times the drivers
did come around - sort of a half loafing place.. . .
Whether it was John McPherson or Charles Hankins or
,Joe Carman, but I got the same story that this was the
situation . . . I was quite confused on exactly where we
did stand. Nobody had come in to offer to work. The
few that I mentioned wanted to know what we were
going to do. I could not answer. I did not know what
we were going to do. . I knew that if we started up,
the possibility was very great that we would be stopped
from loading up at the sand plants as they were all the
same union . The glass plant was union.
But the testimony of drivers Rickets and Wynder was
to their Saturday conversation with Garrison was quite
different from Garrison's, and driver McPherson testified
that he had not reported to Garrison what had happened
at the Union meeting. I credit their testimony and upon
that basis make the following findings: Garrison asked
Rickets in the presence of the two other drivers on
Saturday, February 10 about the meeting and "were the
boys ready to go back to work." Rickets said they were
and Garrison asked whether "everything was settled."
Rickets said that he did not know. Garrison thereupon
said that "if everything was not settled .. we would not
work."
According to his testimony, Garrison scheduled no
hauls for his customers on Monday, Tuesday, or
Wednesday (February 12, 13, or 14) because he believed
that at their Union meeting on Saturday February 10, the
drivers might have voted to strike and shut him down
either immediately or within a short time. Nor, for the
same reason according to Garrison's further testimony,
did he thereafter accept assignments from customers or
schedule work for the drivers until the middle of April.
And when the drivers came to the office on February 16
for the 2-days' pay due them from the preceding week, the
Respondent's bookkeeper on instructions from Garrison
insisted that they surrender their company gasoline credit
cards and keys. Then , in mid-April, some of the drivers
who had spoken with Garrison about coming back to
work, accepted his suggestion that they "lease" trucks
from the Respondent and, for about a week, they made
several hauls for the Respondent as "lessee" operators.
But it was not until these drivers and the rest of the
drivers actually returned to work as employees on April
29 under the complete contract terms agreed upon by the
Respondent and the Union on April 22, that Garrison
'Garrison referred to Mason's being there at the time. Apparently he
was in error as to Mason, for , as I have found upon Mason 's testimony, he
did not enter the terminal nor overhear Garrison ' s conversation with the
other three men.
generally resumed the Respondent's operations and
scheduled regular work for the men as employees.
Between February 10 and April 29, Garrison had talked
about the possibility of his resumption of operations and
the men's working pending the completion of contract
negotiations, not only with Morris and the other Union
representatives at several of their bargaining meetings in
March and on April 5, but also with a number of the
drivers who had visited the Respondent' s terminal on
Monday, February 12, and at various times after that.
For, according to Garrison's own testimony, on Monday,
February 12 and "a lot of times" during the entire period
of the drivers' idleness, seven or eight of the drivers who
"wanted to work the whole time" visited the terminal as
"a sort of a half loafing place" and asked Garrison what
"the situation" was; "what [Garrison] was going to do";
and "would they be able to go to work " According to
Garrison, however, he did not construe these inquiries by
the drivers as requests or attempts on their part to
continue or return to work, since none of them thereby
"directly" said he wanted to go to work, "offered" to
-work, nor therefore "report[ed] . . . ready, able, and
willing to work."
In any event, it appears from the evidence, and I find,
that Garrison told these men during these conversations
that there was no work for them at the time and he did
not know when there would be Two of the drivers
(Samuel Mason and Charles Hankins) so testified. And
Garrison himself in his running account as to what he said
to the men and his reasons therefore, testified that when
the men asked him "would they be able to go to work,"
he "asked them as many questions as they asked [him],"
including "whether they could not have a vote and come
back without any retaliation from the union . "
because, as he told them, otherwise "it seemed
impossible" to resume operations since "if [he] put a few
men to work, [he] was positive that [the Respondent's
operation] would be stopped."
One further material finding of fact must be made upon
the evidence in the present record. Upon a composite of
the consistent and credible testimony of Morris and
Garrison, I find that, in each of the March 5, 20, and 23
and in the April 5 bargaining meetings and thus during
the period when Garrison was having the foregoing
conversations with a number of the drivers as to when
they could come back to work, the parties discussed, but
could not agree upon the immediate return of the drivers
to work, since the Union requested and insisted upon their
immediate unconditional return pending continuing
contract negotiations, whereas the Respondent (accepting
a suggestion made by the Mediator to both sides on
March 20) insisted that the men's immediate return be
conditioned upon the Union' s agreeing that they would
not thereafter strike except on 72 hours notice.' It thus
appears from the evidence that, in the Respondent's
meetings with the Union in March and on April 5,
Garrison refused to resume operations and to permit the
drivers to return to work immediately and
unconditionally, for the same reason that he had' given
individual drivers during the same period; i.e., fear of
being shut down by a strike by the Union before contract
negotiations should be completed.
'A careful consideration of Morris and Garrison's testimony supports
and requires this general finding since it reveals no conflict in the
testimony of these two men about this element of the case nor therefore
any actual dispute about the positions taken by the Union and the
Respondent with respect to the men's immediate return to work.
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Conclusions Concerning the Lockout
From the foregoing facts, it appears that the
Respondent's drivers did not strike, and that the
responsible cause for the drivers' not working and thus
being idle from February 10 until the latter part of April
was Garrison's persistent and clearly expressed refusal to
schedule work for them because, in view of his refusal to
consider and discuss the Union's contract proposal, he
feared that they might strike and shut him down. For, as
the evidence shows, neither the Union nor the drivers ever
decided to strike, nor did they, or any of the drivers,
withhold their usual services as employees of the
Respondent. On the contrary, at their meeting on
February 10, they decided that, despite the Respondent's
blunt, threshold refusal to bargain, the drivers would
continue to work for the Respondent and that possible
future strike action would depend upon the outcome of the
Union's further attempt to get the Respondent to bargain,
as well as upon receipt of necessary strike authorization or
sanction from the International.
This was in fact the substance of the information given
to Garrison by the drivers with whom he talked at the
terminal on February 10, February 12, and on subsequent
normal working days during the entire period of their
idleness. But Garrison, in an apparent continuing fear of a
strike which would shut him down, had not only taken the
necessary steps before the Union meeting of February 10
to suspend the Respondent's operations after that date,
but decided on and after February 10 to continue the
shutdown until a contract settlement should actually be
reached with the Union. Furthermore, both before and
after February 10, Garrison made his intended course of
action clear to the drivers, by his remarks to a number of
them on Friday and Saturday, February 9 and 10; by his
failure to provide the usual work schedules from which the
drivers would ordinarily have received notice of their
assignments on and after February 12; by informing seven
or eight of the drivers (who, according to his own
testimony, "wanted to work the whole time" and visited
him at the terminal "a lot of times" on and after
February 12 to ask him "would they be able to go to
work") that he could not put them back to work because,
if he did, "he was positive that [the Respondent's
operations] would be stopped"; and finally by rejecting
requests made by Morris, their Union representative, at
the March and April 5 bargaining meetings that the men
be permitted to return to work immediately and
unconditionally, and insisting instead that the drivers'
return be conditioned upon the Union's agreeing to give
72 hours notice of any strike in the future. From these
findings, I conclude that at no time in the period from
February 10 until the end of April 1968 were the men on
strike, but that during this entire time they were "locked
out" by the Respondent.
The only question remaining is whether the
Respondent's lockout of the drivers was an unfair labor
practice or whether it was justified by Garrison's fear that
otherwise the drivers would shut him down during
bargaining negotiations by striking at a time most
inconvenient for, and effective against, the Respondent.
For the following reasons, I conclude that the lockout was
Furthermore , in the absence of any indication of such a conflict or the
inadequacy of the testimony of the two witnesses, neither the unavailability
of the Mediator 's testimony (see Statement of the Case , above ) nor the
understandable unwillingness of Attorney Davidow to testify because of his
status as trial counsel, has prejudiced the Respondent 's case.
an unfair labor practice and was not justified either by the
Respondent's fear of a strike or by any other reason
appearing in the record.
Under the decisions, an employer may lock out his
employees to support his legitimate bargaining position in
current negotiations with their union , even though an
impasse in bargaining has not been reached, provided
there is no motive on his part "to discourage union
activity or to evade bargaining ."10 Therefore, if it had
appeared from the evidence in the present case merely
that the Respondent locked out the drivers in anticipation
of a strike during the Respondent' s bargaining with the
Union in good faith on all contract issues, the lockout
might well have been a legitimate and justified tactic in
support of the Respondent' s bargaining position. But this
was not the situation. For, as I have found, the
Respondent had refused to bargain with the Union on the
Union's contract proposal even before it locked the men
out and it continued its illegal refusal to bargain
throughout the earlier and greater period of the lockout.
Under the circumstances, it appears, and I conclude, that
the Respondent's lockout of its drivers on and after
February 12, 1968, and until April 29, 1968, was not
simply motivated by a fear of their striking at an
inopportune time and by a desire to support a legitimate
bargaining position in negotiations with the Union, but
was motivated by a desire to discourage the drivers'
support of the Union and of evading its own bargaining
obligation. Accordingly, I conclude that the Respondent's
lockout of the drivers from February 12 until April 29,
1968, constituted such discrimination against the drivers
with respect to their tenure of employment for the purpose
of discouraging their membership in, and support of, the
Union in its bargaining demands, as to be an unfair labor
practice within the meaning of Section 8(a)(3) and (1) of
the Act."
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
"See the decisions of the Board in The Evening News Association, 166
NLRB No. 6, and Darling and Company , 171 NLRB No. 95, in their
development of the general principles laid down by the Supreme Court in
American Shipbuilding Company v. N.L.R B., 380 U.S 300.
"See American Stores Packing Co., 158 NLRB 620, which presented a
similar set of facts with respect to the employer's refusal to reinstate
strikers unless their union restricted the scope of their bargaining demands,
and in which the Board concluded (at 623)
. [w]e find that the Respondent locked out its employees , and refused
to reinstate them not for "the sole purpose of bringing pressure to bear
in support of [its) legitimate bargaining position ," but rather as a means
of evading its duty to bargain by attempting through coercive pressure
on the employees to compel union acquiescence in Respondent's
unlawful restriction of the scope of bargaining Accordingly, we conclude
that the February 23 lockout and the March 22 refusal to reinstate were
not lawful lockouts under the Supreme Court' s holding in American
Shipbuilding and that the Respondent by engaging in such conduct
violated Section 8 (a)(3) and (1) of the Act.
PORT NORRIS EXPRESS CO. 691
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1), (3),
and (5) of the Act, I will recommend that it cease and
desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent committed unfair
labor practices violative of Section 8(a)(1) and (3) of the
Act by locking out its drivers on February 12, 1968, and
not recalling them until April 29, 1968, 1 will recommend
that the Respondent make said drivers whole for any loss
of earnings that they may have suffered by reason of the
lockout, by payment to each of them of a sum of money
equal to that which he would have earned as wages during
the period of the lockout, together with interest thereon at
the rate of 6 percent per annum to be computed and paid
in the manner set forth in F. W. Woolworth Company, 90
NLRB 289, and in Isis Plumbing & Heating Co., 138
NLRB 716, less his net earnings during said period.
Having found that the Respondent also committed an
unfair labor practice by refusing to bargain with the
Union in the period from February 6 to April 5, 1968, I
will recommend that the Respondent, upon request,
bargain collectively with the Union as the exclusive
representative of all employees in the appropriate
bargaining unit and embody in a signed agreement any
understanding reached.
The unfair labor practices found to have been engaged
in by Respondent are such a character and scope that, in
order to ensure Respondent's employees of their full rights
guaranteed them by the Act, I will recommend that the
Respondent cease and desist from in any manner
interfering with, restraining, and coercing its employees in
the exercise of their rights guaranteed in Section 7 of the
Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Teamsters Local Union No. 676, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (herein called the Union), is a
labor organization within the meaning of the Act.
2. Port Norris Express Company, the Respondent
herein, is an employer engaged in commerce within the
meaning of the Act.
3. At all times material herein, all truckdrivers of the
Respondent employed at its Port Norris premises,
excluding office clerical employees, guards and supervisors
as defined in the 'Act, constituted, and now constitute, a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been, and
now is, the exclusive collective bargaining representative
of all employees in the aforesaid appropriate unit within
the meaning of Section 9(a) of the Act.
5. By refusing, from February 6, 1968, until April 5,
1968 to bargain collectively with the Union as the
exclusive representative of all the employees in the
aforesaid appropriate unit, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) of the Act.
6. By locking out and thereby discriminating in regard
to the hire and tenure of its truckdrivers from February
12, 1968, until April 29, 1968, thereby discouraging
membership in the Union and interfering wrath, restraining,
and coercing them in the exercise of their rights
guaranteed in Section 7 of the Act, the Respondent
engaged in unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
it is recommended that Respondent, Port Norris Express
Company, a New Jersey corporation, its officers, agents,
successors, and assigns, shall.
1. Cease and desist from:
(a) Locking out any of its employees for reasons
proscribed by the Act or in any other manner interfering
with, restraining, or coercing its employees in the exercise
of the right to self-organization to form, join or assist the
Union or any other labor organization of its employees, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, and to refrain from any and all such activities,
except to the extent that such right may be affected by an
agreement requiring membership in a labor organization
as a condition of employment as authorized in Section
8(a)(3) of the Act.
(b) Refusing to bargain collectively in good faith
concerning wages, hours, and other terms and conditions
of employment, with the Union as the exclusive
representative of all employees in the following
appropriate unit:
All its truckdrivers employed at its Port Norris
premises, excluding office clerical employees, guards
and supervisors as defined in the Act.
(c) Discouraging membership in the Union by locking
out its truckdrivers, or by discriminating in any manner in
regard to their hire or tenure of employment or any term
or condition of their employment.
2. Take the following affirmative action which it is
found will effectuate the policies of the Act:
(a) Make whole all the truckdrivers represented by the
Union for any loss of earnings they may have suffered by
reason of being locked out by the Respondent from
February 12, 1968 until April 29, 1968, inclusive, in the
manner and to the extent set forth in the section of this
Decision entitled, "The Remedy "
(b) Preserve and, upon request, make available to the
National Labor Relations Board or its agents, for
examination and copying, all records necessary for the
determination of the amounts due to the said truckdrivers
under the Order herein.
(c) Upon request bargain collectively with the Union, as
the exclusive representative of all employees in the
appropriate unit with respect to rates of pay, wages, hours
of employment and other conditions of employment, and
embody in signed agreements any understandings reached.
(d) Post at its terminal in Port Norris, New Jersey,
copies of the attached notice marked "Appendix ."i i
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice . In the further
event that the Board ' s Order is enforced by a decree of a United States
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Copies of said notice, on forms provided by the Regional
Director for Region 4, shall, after being duly signed by
Respondent, be posted for 60 consecutive days thereafter
in conspicuous places including all places where notices to
employees customarily are posted. Reasonable steps shall
be taken by Respondent to ensure that said notices are
not altered, defaced or covered by any other material.
(e) Notify the Regional Director for Region 4, in
writing, within 20 days from the receipt of this Decision
and Recommended Order what steps the Respondent has
taken to comply herewith.'
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 4, in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT unlawfully lock out any of our
employees or in any other manner interfere with,
restrain, or coerce our employees in the exercise of
their rights to self-organization, to form labor
organizations, to join or assist Teamsters Local Union
No. 676, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any and all of such activities except
to the extent that such right may be affected by an
agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the National Labor
Relations Act.
WE WILL NOT refuse to bargain collectively with the
above-named labor organization as the exclusive
representative of all employees in the truckdriver unit
which has been found to be appropriate with respect to
grievances, labor disputes, rates of pay, wages, hours of
employment, and other conditions of employment.
WE WILL make whole all the truckdrivers whom we
unlawfully locked out from February 12, 1968, until
April 29, 1968, for any loss of earnings suffered by
them as a result of our discrimination against them,
together with interest at the rate of 6 percent per
annum.
All our employees are free to become or remain
members of the above-named Union or any other labor
organization except to the extent that this right may be
affected by an agreement in conformity with Section
8(a)(3) of the amended Act We will not discriminate in
regard to hire or tenure of employment or any term or
condition of employment against any employee because of
membership in or activity on behalf of any such labor
organization.
Dated By
PORT NORRIS EXPRESS
COMPANY
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions they may communicate
directly with the Board ' s Regional Office, 1700 Bankers
Securities Building, Walnut & Juniper Streets,
Philadelphia, Pennsylvania 19107, Telephone 597-7617.