Safety Carrier, Inc.

National Labor Relations Board - Board Decisions

Mar 31, 1992

306 N.L.R.B. 960 (N.L.R.B. 1992)

960
306 NLRB No. 192
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 The Respondent and the Intervenor Party to the Contract have
excepted to some of the judge’s credibility findings. The Board’s es-
tablished policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the rel-
evant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for
reversing the findings.
3 Arrow Uniform Rental, 300 NLRB 246 (1990); and NLRB v.
Coca Cola Bottling Co., 936 F.2d 122 (2d Cir. 1991), enfg. 299
NLRB 989 (1990), cited by the Respondent in support of its conten-
tion that employees at the Champlain, New York terminal constitute
an accretion to the existing unit, are inapposite. In Arrow Uniform
Rental the Board dismissed decertification petitions seeking elections
in single location bargaining units because of the parties’ 8-year his-
tory of lawful bargaining on a multilocation basis. NLRB v. Coca
Cola Bottling Co., like Arrow Uniform Rental, also did not raise an
accretion issue. In that case, the Board and the court found that an
employer’s expansion of its warehouse operation was a mere spinoff
of preexisting unit work to a nearby facility.
Safety Carrier, Inc. and Teamsters, Chauffeurs and
Helpers Union No. 648, a/w International
Brotherhood of Teamsters, AFL–CIO1 and
International Association of Machinists and
Aerospace Workers Local 1015, AFL–CIO,
Party to the Contract. Case 3–CA–15526
March 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On August 30, 1991, Administrative Law Judge
Robert T. Snyder issued the attached decision. The Re-
spondent and the Intervenor Party to the Contract filed
exceptions and supporting briefs and the General
Counsel and the Charging Party filed answering briefs.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions3 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Safety Carrier, Inc., Cham-
plain, New York, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Robert A. Ellison, Esq., for the General Counsel.
C. John Holmquist, Esq., of Birmingham, Michigan, for the
Respondent.
James F. Wallington, Esq., of Washington, D.C., for the
Charging Party.
Patricia McConnell, Esq. (Vladeck, Waldman, Elias &
Englehard, Esqs.), of New York, New York, for the Inter-
venor.
DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This case
was heard by me on July 31 and August 1, 1990, in Platts-
burgh, New York. The complaint alleges that Safety Carrier,
Inc. (Safety Carrier or Respondent) rendered unlawful assist-
ance to the International Association of Machinists and Aero-
space Workers, Local 1015, AFL–CIO (Machinists or IAM)
in violation of Section 8(a)(1) and (2) of the Act, by solic-
iting employees to sign IAM authorization cards, granting
recognition to the IAM, and extending the terms of a pre-
existing collective-bargaining agreement to a unit of employ-
ees employed at a newly commenced operation, including the
deduction of dues from employees’ earnings and their remis-
sion to the IAM. Respondent denied that it committed any
unfair labor practices.
All parties were given full opportunity to participate, to in-
troduce relevant evidence, to examine and cross-examine wit-
nesses, to argue orally, and to file briefs. General Counsel,
Respondent, and the Charging Union, Teamsters, Chauffeurs
and Helpers Union No. 648, a/w International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO (the Teamsters) each filed posthearing
briefs, as did the Machinists who entered an appearance and
participated in the hearing as intervenor. Each of these briefs
has been carefully considered. On the entire record in the
case, including my observation of the witnesses and their de-
meanor, I make the following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a Texas corporation, with its principal office
and place of business in the city of Garland, State of Texas,
and various other places of business in Texas and other
States of the United States, including a place of business lo-
cated at the 11-87 Truck Plaza, Route 1, in the town of
Champlain and State of New York (the Champlain facility),
has at all times material, been engaged in the motor transpor-
tation of automobiles and general commodities as a common
carrier. Annually, in the course and conduct of its business
operations, Respondent derives gross revenues in excess of
$50,000 for the transportation of freight and commodities
from the State of New York directly to points outside the
State of New York. Respondent admits, and I find, that it is
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act. The Respondent admits,
and I also find, that the Machinists and the Charging Union
are each a labor organization within the meaning of Section
2(5) of the Act.
961SAFETY CARRIER
1 As described on the record, a backhaul facility is a location
where a north bound driver, out of Dallas or Houston, who has com-
pleted a delivery of new automobiles in the North, Midwest, or West
will be assigned on his return trip to reload his rig with other auto-
mobiles for delivery to dealers located on the way back to his domi-
cile and Respondent facilities in the south in either Texas or Geor-
gia.
2 Although not executed until a year later, on March 22, 1989, in
an updated version.
II. ALLEGED UNFAIR LABOR PRACTICES
A. The Growth of Respondent’s Organization, Opening
of the Champlain Terminal, and Relationship
with the Machinists
Respondent commenced operations in the interstate trans-
portation of new automobiles in April 1986 from a location
in Dallas, Texas. As a specialized automobile carrier, it
transports automobiles for both domestic manufacturers and
importers to retail dealers in various locations on the North
American continent. A very small percentage (less than 1
percent) of its business involves hauling leased cars to auto
rental companies. In 1986, it employed four drivers, two
were domiciled in Dallas, and two were in Kansas City, Mis-
souri.
As Respondent’s operations grew, drivers were added in
Dallas and a separate location in Houston, Texas. By early
1988, Respondent was employing 12 to 14 drivers domiciled
in either Dallas or Houston. At the time of the hearing in
midsummer 1990, Respondent had locations in Dallas, Hous-
ton, and Waco, Texas, with backhaul facilities1 out of loca-
tions in Normal, Illinois, Flat Rock, Michigan, Lafayette, In-
diana, and Los Angeles, California. Additional terminal fa-
cilities had also been established in Champlain, New York,
Bromont, Canada, and Atlanta, Georgia. The last facilities to
commence operations were those in Champlain and Bromont,
Canada, in mid-October 1989, and in Atlanta, Georgia, in
mid-April 1990. The Champlain facility is a terminal facility
where drivers are domiciled and from which they are dis-
patched with their rigs to Bromont, Canada, to load Hyundai
automobiles at a Hyundai plant located there for delivery to
dealers. Respondent employs a terminal manager at Cham-
plain and a supervisor at Bromont who inspects the auto-
mobiles, supervises the loading of equipment, and arranges
their release from the Hyundai corporation.
Effective March 22, 1988,2 prior to the establishment of
the Champlain, Bromont, and Atlanta facilities, Respondent
entered into a collective-bargaining agreement with the Ma-
chinists for a term of 3 years, pursuant to which in article
III,A, Respondent recognized the Machinists as exclusive
collective-bargaining agent ‘‘for all employees of the Em-
ployer in the Dallas/Fort Worth, Texas, Kansas City, Kansas,
Los Angeles, California and any other facility in the conti-
nental United States.’’ ‘‘Employee’’ was defined in the
agreement as any regular, full-time person employed in the
job classifications of driver-robotic operator, driver, yard em-
ployee, rail loader/unloader, or any other person employed in
any other job classification with the exception of managerial,
supervisory, clerical and security personnel. In article III,C,
the parties provided that ‘‘when a majority of the eligible
employees in any appropriate bargaining unit performing
work for the Employer, executed a card authorizing the
Union to represent them as their collective-bargaining agent
at their terminal location, then, such employees shall auto-
matically be covered by this agreement.’’ Yet, article III,D,
also provided that ‘‘the provisions of the Agreement shall be
applied without evidence of Union representation of the em-
ployees involved in all subsequent additions to and exten-
sions of current operations which adjoin and are utilized as
a part of such current operations, newly established termi-
nals, and consolidations of terminals utilized as part of such
current operations.’’
Under article III,E, the term of 3 years would be automati-
cally renewed for consecutive 1-year terms unless either
party notified the other not less than 90 days prior to expira-
tion of its intention to renegotiate. Neither party was obli-
gated to renegotiate any provision during the 3-year term ex-
cept as provided therein. A review of the agreement in evi-
dence fails to reveal any provision otherwise requiring re-
negotiation during the existing term.
Under article XVI, employees in any existing facility may
transfer to a new branch, terminal, division, or operation, re-
taining the unqualified right to return to their old facility for
a period of 30 days following the transfer. The transferred
employee retains his existing seniority. An addendum ‘‘A’’
to the agreement covered pay scales, including one-way
mileage rates, in eight classifications for each year and ad-
dendum B provided for employer contributions to Union
Pension Plan.
At the beginning of October 1989, just prior to the open-
ing of the Champlain and Bromont locations, Respondent
President and Chief Executive Officer Curtis Mickan noted
that Safety Carrier employed roughly 35 employees, 25 of
whom were domiciled in Texas. He later corrected this re-
sponse to state flatly that all drivers were domiciled only in
Dallas and Houston, Texas, prior to the Champlain facility
opening.
Around June 1989, Respondent received a contract from
Hyundai to provide service from the Bromont plant to the
eastern section of the United States and to the Chicago area.
Respondent’s president Mickan employed a Commodore Hall
as a consultant and admitted agent to interview and hire driv-
ers to handle the business generated by the Hyundai contract.
According to Mickan, drivers were interviewed and then
selected based on Safety’s hiring policy. Prior to the opening
of the terminal facility at Champlain, those drivers selected
for hire were then sent for training to Scranton, Pennsyl-
vania, for a period of 3 weeks, using Respondent’s equip-
ment sent up from Dallas and the facilities of a trailer manu-
facturer located in Scranton. This hiring process ran for
roughly a 60-day period starting in late August until oper-
ations commenced with the handling of Hyundai automobiles
in mid to late October 1989, although a test or marketing run
of new autos took place in September. By October, Mickan
asserted that new hires had completed their 60-day proba-
tionary period under the collective-bargaining agreement.
In soliciting applicants, Respondent placed help wanted
advertisements in local newspapers in the greater Champlain
and Northeast New York region.
By October 25, 1989, Respondent had nine drivers work-
ing out of Champlain. A seniority roster of that date shows
that the drivers listed were first dispatched between October
11 and 25. The initial seniority roster drawn up by Respond-
ent for the Champlain Automotive Division dated October
25, 1989, lists in order of seniority, Robert Lashway, Glenn
962 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 In the title page and preface to the agreement, the parties are list-
ed as Safety Carrier and Locals 1015.
Monto, Bradford Forkey, Joseph Whitbeck, Lee Delisle, Wil-
liam McCall, Emory Johnson, David Demastrie, and Paul
Henderson. A Champlain employee roster as of November 2,
1989, lists seven drivers, and a March 9, 1990 roster lists
eight drivers. By July 1990, the Champlain seniority roster
had grown to 17 employees. Although Mickan insisted that
two drivers from Dallas, Gordon Morris and Al Sisco, had
worked out of Champlain as transfers under the bargaining
agreement in the fall of 1989, and had even stayed 6 or 7
weeks, beyond the 30-day period during which they exer-
cised their rights to return to Dallas, neither of them ever ap-
peared on the Champlain seniority roster, apparently because
their transfers never became permanent.
According to Mickan, when Respondent commenced oper-
ations at Champlain in October 1989, it automatically applied
the terms of the 1988 Machinists Agreement and March 1989
addendum to the drivers newly hired to service that oper-
ation. In making that determination, as he had in applying its
terms to past expansions, with the approval of the IAM,
Mickan relied on the language of the agreement with the Ma-
chinists which, in his mind, applied to all of Respondent’s
locations in North America. He also had conversation regard-
ing opening of the Champlain operation with the Machinists
business agent in Dallas. Among other things, Mickan in-
formed the IAM that the Company would be bidding driving
positions for anyone who wanted to transfer to Champlain.
Mickan entered into negotiations in or about March 1990
with a national IAM negotiator out of Washington, D.C., and
on behalf of Respondent, signed a new agreement with the
Machinists, even though the existing agreement had another
year to run. Mickan testified he did this because the Machin-
ists wanted to provide different work rules and economic
terms for different company locations in greater detail, to
take into account local factors such as congestion and toll
roads, although there already existed addendums to the na-
tional contract covering such factors as wages and work rules
for each terminal.
The new collective-bargaining agreement between Safety
Carrier and the Machinists was made effective for the period
March 16, 1990, to September 30, 1993. It appears to have
been dated and signed on March 17, 1990. Article I, section
1, provides, in pertinent part, that ‘‘The Employer encom-
passes the current and future terminal operations of the Com-
pany . . . .’’ Section 22 defines ‘‘Local Unions’’3 as ‘‘con-
sisting of any local union which has or may become a party
to this Agreement at or after the date of its execution. That
includes unions whose members are employees of current
and/or future operations of the Company.’’ In article II enti-
tled ‘‘Union Security and Recognition,’’ with clauses having
few counterparts to the earlier 1988 agreement, the parties,
in section I, in pertinent part, provide for recognition by the
Company of the ‘‘Local Unions’’ of all employees in the
classification of work covered by the agreement and local
supplemental agreements utilized by the Company in the
transportation of automobiles and make the agreement appli-
cable to all present and subsequent open or acquired oper-
ations or terminals of the Company.
In article II, section 2, the parties agree that ‘‘The employ-
ers, local unions and employer covered under this Agreement
and various Local Supplemental Agreements thereto shall
constitute one bargaining unit.’’ Article II, section 2,A, in
pertinent part, for the first time establishes a union shop, re-
quiring IAM membership on and after the 31st day following
the effective date of the subsection or agreement, whichever
is later, notice to the IAM about employees within 7 days
of hire, and termination of an employee 72 hours after com-
pany receipt of notice of noncompliance from the IAM.
Both the new (1990) and old (1988) agreements contained
checkoff provisions authorizing checkoff of union dues and
assessments from the wages of covered employees on a duly
executed payroll deduction authorization.
The new agreement contains a number of supplements.
Addendum A provides for work rules and regulations. Ad-
dendum B incorporates provision for employer contributions
to IAM National Individual Account Plan of the Union Pen-
sion Fund.
At the same time as they negotiated the new agreement,
the parties incorporated a supplement B, Local supplemental
agreement for Champlain, New York, providing, in pertinent
part, for wages to be increased on April 23 (or May 23)
1990, through 1991 in each of four categories, including run-
ning mileage pay, hourly rate for breakdowns, loading rates
per unit, and unloading split deliveries. The earlier agreement
contained only one-way mile rates for drivers. The new sup-
plement also provided in writing for the first time for
backhaul pay, with the rate remaining constant over the life
of the agreement, holiday pay, funeral pay, vacation sched-
ule, pension, dental benefits, lodging on a required layover,
learner’s pay, and incentive pay for claim and accident-free
deliveries.
A final page of the document appears to be a modification
of the vacation benefit, increasing such leave in accordance
with a revised schedule and containing a handwritten note
advising that employees would receive 2-percent compensa-
tion for each week of vacation pay, based on previous years’
earnings.
General Counsel produced and offered in evidence a sepa-
rate one-page supplement B covering the Champlain terminal
signed by Respondent and the Machinists on March 17,
1990—more than a month before the signing on April 23 of
the more than three-page supplement B above described. The
earlier supplement leaves out the hourly rate, the .02-cent in-
centive pay and all other fringe benefits described in the later
one, and also contains a lower loading rate than the April 23
supplement B.
Pursuant to the dues-checkoff provision, IAM dues were
deducted from employees’ pay, according to Mickan, com-
mencing in March 1990.
When questioned by General Counsel about the cir-
cumstances surrounding the execution of IAM authorization
cards by Respondent drivers working out of Champlain,
Mickan professed ignorance of any involvement by company
supervisors in card solicitation. He did acknowledge, how-
ever, that he visited Champlain the week of October 16,
1989, and brought with him Machinists union cards which he
gave to Ken Cook, the terminal manager, and admitted su-
pervisor and agent from October 1989 to January 19, 1990,
and hired that week, with instructions to hold them and give
them to the duly appointed job steward for distribution based
on the direction of the Machinists representative.
963SAFETY CARRIER
4 Van Operloo had become a member of the Teamsters while em-
ployed by another hauler.
Mickan recently learned that Cook did not comply with
these instructions but distributed the cards himself. By that
time Cook had left Respondent’s employ and been replaced
by Lorie Gray, admitted supervisor and agent. Gray as ter-
minal manager, reports to Greg Artkop, director of oper-
ations in Dallas.
Another admitted supervisor and agent employed in the
Champlain terminal operation is Vianney Dumaline, mar-
keting representative who handles the relationship with the
Hyundai Corporation at Bromont. Michel Ducharne is load-
ing supervisor in Bromont.
Mickan noted that each Respondent facility employed a
terminal manager who is responsible for the day-to-day su-
pervision of the drivers and loaders at those locations. In ad-
dition to the Champlain supplement, Safety Carrier nego-
tiated two other supplements for other terminals, each reflect-
ing differing dispatch arrangements, economic factors, and
factors relating to geographic location, depending on whether
the terminal is a port facility, inland terminal, or a plant site
(as with Champlain). The work of the drivers at all locations
is identical.
During his week in Champlain, in mid-October 1989,
Mickan told the original complement of drivers at a meeting
with them that all of Respondent’s facilities were covered by
the Machinists contract and that this was a North American
contract, and, therefore, that in all likelihood, they would be
covered by the Machinists agreement, as were all of their
other locations.
In later questioning by Teamsters counsel, Mickan ac-
knowledged that at the time Respondent extended recognition
to the Machinists, on the hire date of drivers in October
1989, and the opening of the facility in Champlain, he saw
no evidence that the employees had ever selected the Ma-
chinists as their collective-bargaining representative. To be
sure, in order for the Machinists to be ‘‘officially recog-
nized’’ the drivers would have to sign union cards which
they did some time after he, Mickan, had left the terminal.
Mickan insisted that Champlain was an extension of the Dal-
las operation, and union recognition was granted the same
way it had been extended to the Houston facility when it had
earlier opened between 1986 and 1988.
Mickan also acknowledged that so far as he was aware,
no Machinists representative ever appeared at Champlain
until after the complaint issued in this case, on May 7, 1990.
Mickan also agreed that the pay per mile for Champlain
drivers from the inception of the application of the old agree-
ment to them in 1989 into 1990 had been and was still 10
cents per mile greater then that paid to the Dallas/Houston
drivers. Under the old agreement Respondent was applying
to Champlain the terms of supplement B, even before its
physical incorporation into the new agreement, which pro-
vides a rate of 31 cents per mile as its initial rate. Dallas
drivers even under the 1990 agreement were still receiving
21 cents per mile (for trips of 80 miles and beyond) as pro-
vided in the 1988/1989 agreement. In each case, a .02-cent
incentive was added. All other benefits described in supple-
ment B had also been provided the Champlain drivers and
yard men since their initial hire in October 1989.
Mickan had recommended to the IAM representative in
Dallas several weeks before he visited Champlain on October
16, 1989, that because of a number of economic factors a
higher rate should be provided the Champlain employers and
the IAM agreed. These negotiations took place before any
Champlain drivers were hired. Even prior to that time,
Mickan had discussed with the IAM representative, Respond-
ent’s planned expansion into the Northeast. When asked if he
would have a problem representing the people up in that
area, the representative had said no. Mickan had factored in
a 31=cent mileage rate in his bid to Hyundai and after the
award of the transportation contract to Safety Carrier he had
presented his ideas on a Champlain supplement to the Ma-
chinists. The Machinists voiced no objection so long as the
rates proposed were no less than those contained in the Na-
tional agreement.
B. The Teamsters Interest in the Champlain Facility,
the Facts and Circumstances Relating to Employee
Execution of Machinists Authorization Cards, and the
Relationship Between Champlain and other
Respondent Operations
In a certified letter to Respondent dated April 11, 1990,
and received by April 16, Kenneth Ramsey, president and
business representative of the Teamsters, claimed to represent
a majority of the Champlain drivers (described as truck-a-
way drivers), demanded recognition and offered a card check
by an NLRB representative. This demand was shortly fol-
lowed by a petition for certification of representative filed
April 16, 1990, in Case 3–RC–9571 seeking an election
among the Champlain drivers (described as car haulers). The
petition is currently blocked by the instant unfair labor prac-
tice proceeding.
Various employee witnesses called by General Counsel
testified about the circumstances surrounding their hire and
their execution of authorization cards for the machinists.
Casey Van Operloo, responded to a Glens Falls, New
York newspaper ad and was interviewed in Plattsburgh, New
York, by Commodore Hall and another man. Hall described
himself as consultant/trainer. He asked if there was any
union affiliation. Hall responded that it was a Machinists
union that would be representing you. Van Operloo asked if
the Teamsters were involved at all. Hall did not know and
the matter was dropped.
Two to three weeks later, Van Operloo was contacted to
report to Scranton, Pennsylvania, for training. Four other
drivers, among them Brad Forkey, Glen Monto, and Bob
Lashway, and Van Operloo himself spent 5 days together
training in Scranton during October 1989. Hall conducted the
training. During this period, Van Operloo and the others
named who had previously worked under Teamsters con-
tracts4 and had built up pension credits, kept asking Hall if
the Teamsters were going to be involved. After the first in-
quiry, Hall telephoned Respondent’s offices, presumably in
Dallas, and brought back the response that the Company will
not go Teamsters and there will never be any talk of Team-
sters. On completion of the training, Van Operloo drove one
of the trucks used in the training from Scranton to Cham-
plain.
On the last day of training, Hall passed out Machinists
membership cards to the five men, saying they had to sign
it to be a member. Hall told them if they wanted to be a part
of the union and get the union benefits, they had to sign it.
964 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Van Operloo was shortly thereafter recalled to his old job
and, accordingly, never went on Safety Carrier’s payroll.
On cross-examination, Van Operloo was asked directly for
the first time if he had signed the Machinists card and re-
plied that he had. He then repeated that he and the others
had been asked to sign by Hall. But now, Van Operloo ex-
pressed some reservation about signing the card, recalling
that they had been asked to sign so many papers during their
stay in Scranton, and then agreed it was possible he had not.
His affidavit states ‘‘I quit before I had to sign anything for
the machinists.’’ Hall was not called as a witness by Re-
spondent to refute employee testimony. I credit Van Operloo
that he and the others were asked to sign by Hall with the
accompanying statements made by Hall, but that he probably
did not sign then or later, particularly given his Teamsters
adherence and his never having gone to work for Safety Car-
rier. Respondent’s attempt to impeach Van Operloo’s testi-
mony through the interchanges described was ineffective, as
was the attempt to show bias because Van Operloo was
working at the time of the hearing for a Respondent compet-
itor which received Honda shipments for delivery at
Bromont.
Glen Monto was also interviewed by Hall at Holiday Inn
at Plattsburgh after responding to a Plattsburgh newspaper
ad. Monto recalled asking if a union was involved and re-
ceiving only a vague response. While in Scranton for train-
ing, Hall and the other Respondent trainer continued to be
vague about the union involved, the health program and
other benefits. Monto also drove a Safety Carrier truck back
to Champlain. I, do not find Monto’s response to be incon-
sistent with Van Operloo’s attributing to Hall the statement
that the Company, in effect, would not deal with the Team-
sters or even that Hall distributed Machinists cards at Scran-
ton. Monto’s recollection was hazy, but he did recall that
‘‘there was a union.’’ (Tr. 101.) I conclude the union men-
tioned was not the Teamsters. Indeed, during cross-examina-
tion, Monto referred to company representatives discussing
the ‘‘Aerospace Workers,’’ i.e., the Machinists and also that
they were going to call Garland, Texas, and get back to
them, both statements consistent with Van Operloo’s testi-
mony. Monto was not asked and so did not testify about card
solicitation by Hall on the last training day.
Monto started working for Respondent making runs out of
Bromont. Upon returning to Champlain from his first trip,
Terminal Manager Cook showed him a two- or three-page
agreement with the Machinists containing the employee pay
scales, including the 31-cent-per-mile pay, and loading pay
of $20 for up to nine vehicles, and $.25 per unit over nine.
This latter item differed from the hourly rate of $8.50 Monto
had been told during the training session the drivers would
receive for loading.
Cook also presented Monto and the other drivers with
membership and dues-checkoff authorizations for the Ma-
chinists. He told them this was the agreement you had with
the Company and you have to sign the cards so he could for-
ward them to Texas. Monto quit after about a week and did
not sign the cards. Monto’s current job driving for Anchor
Motor Freight under contract with the Teamsters provides
him with a substantially greater pay scale (mileage and load-
ing rates) and benefits than those provided drivers under the
Machinists local Champlain supplement B to the national
agreement.
Before quitting, Monto never saw either of the two Dallas
area drivers who purportedly worked out of Champlain for
5 to 6 weeks in the fall of 1989.
Bradford Forkey, another driver, like Monto, trained at
Scranton and hired on the original seniority roster at Cham-
plain, but still working for Safety Carrier at the time of the
hearing, corroborated Van Operloo, in attributing to Hall the
statement that it would be a union job and they would be
in the Machinists union. Forkey corroborated Monto in de-
scribing Cook’s distribution of Machinists cards to the initial
complement of drivers in October, accompanied by the state-
ment that he had these cards for us to fill out from the
Union, and we were to fill them out and then turn them back
in to him. Forkey signed and returned the cards.
Forkey also testified that in the latter part of May 1990,
he filled out a second Machinists card when the successor
Terminal Manager Lorie Gray told him the Company had
lost the other ones and he had to fill it out. In truth, the first
cards had not been lost at all. Forkey’s first set of cards, re-
ceived in evidence, show that on October 20, 1989, he
signed a membership and bargaining authorization card on
behalf of the IAM, and a dues-checkoff and authorizing de-
duction of dues from his pay for remission to the IAM but
leaving blank the name of the Company. On June 7, 1990,
Forbey signed another membership and bargaining authoriza-
tion card on behalf of Machinists Local ‘‘447’’ out of
Lyndhurst, New Jersey.
Forkey recalled an occasion in or about March 1990, when
Vianney Dumaline had called the Champlain terminal from
Bromont to inform the drivers that Machinists representatives
would be coming up for a meeting with them a few days
hence. The men gathered at the scheduled time but no Ma-
chinists officials appeared. Vianney called after 2 hours of
waiting to inform them. This waiting delayed their dispatch
to Bromont for loading their rigs for a considerable time that
day.
Forkey later learned that a meeting of drivers with Ma-
chinists representatives did ultimately take place, but he was
not present. Forkey has not met or had any dealings with
Machinists representatives. He believes IAM dues was de-
ducted from his pay starting in April.
Forkey testified that in December 1989, two drivers from
Dallas carried loads between Bromont and Naperville, Illi-
nois, but they did not come down to the Champlain terminal.
Under Respondent’s cross-examination, Forkey acknowl-
edged that more recently, in the month or so preceding the
hearing, drivers from Dallas had frequently come up to
Champlain to get dispatch loads out of Bromont, and some
Dallas drivers had done so from time to time since January.
However, according to Forkey, none of the Champlain driv-
ers had ever been assigned to perform work out of either the
Atlanta, Texas, or any other Respondent terminals, although
they had made a few backhauls out of such terminals after
making Hyundai deliveries in the South.
Joseph Whitbeck, another witness called by General Coun-
sel, whose employment date on the original roster at Cham-
plain was October 21, 1989, worked until mid-December,
quit, and then returned from mid-February to late May 1990.
While he did not recall any mention of the Machinists in his
employment interview, he was present with other drivers
hired at about the same time when they were addressed by
Respondent officials on or about October 25, 1989. The other
965SAFETY CARRIER
drivers were Lee Delisle, Paul Henderson, Dave Demastrie,
Emory Johnson, and Bill McCall. Among the officials
present were Hall, Cook, Dumaline, Michel Ducharme, and
Mickan. No Machinists representatives were present.
At one point Delisle asked Mickan something about
unions, about their pensions, that he’d already had invested
in the Teamsters. Mickan responded that Safety Carrier al-
ready had a contract with the Machinists and that’s what we
were to be. Whitbeck is credited over Mickan’s general de-
nial that he ever solicited employees to join the Machinists.
The statement attributed to Mickan is consistent with his po-
sition that the Machinists contract was automatically ex-
tended to include Champlain when that facility commenced
operations.
At the gathering the men were also handed Machinists
union cards to sign and told to fill them out, probably by
Cook. Whitbeck is credited that he signed and returned the
designation and dues-checkoff cards, along with insurance
and dental forms, although Respondent failed to produce
them at the hearing.
Whitbeck described in greater detail the facts relating to
the abortive union meeting scheduled for April 1990. Man-
ager Gray had informed the men to be present the next day
for a meeting at 10 a.m. in Champlain. That evening, after
loading their rigs at Bromont, the men stayed overnight at
a motel in Plattsburgh, New York, at company expense. The
union men were supposed to arrive at 7:30 or 8 a.m. the next
day but never appeared. After waiting until 10 a.m., the men
left with their rigs to make their deliveries.
After returning to work for Respondent in February 1990,
Gray gave him another application card to fill out for the
Machinists. This time, he told her he would not sign it.
Whitbeck and other drivers had already made contact with
the Teamsters. In spite of Whitbeck’s refusal to sign another
card, dues continued to be deducted from his pay until he
left. Whitbeck left Respondent’s employ again in May 1990.
He still had not seen any Machinists representative at the
Champlain facility.
Thomas Gomez was interviewed for a job as driver at
Champlain in late September 1989, started working on De-
cember 11, and was still employed at the hearing. Hall told
him that the Machinists union represented the men and that
it was a good Union. Gomez was also trained in Scranton
with three others just before taking out his first load. The
others also started driving out of Champlain. While at Scran-
ton, Hall passed out Machinists membership and dues-check-
off cards that they all signed. Starting in May 1990, Machin-
ists dues of $28 a month was deducted from his pay.
Gomez recalled meeting Machinists representatives for the
first time in Champlain at the company trailer at the truck-
stop or terminal facility. The meeting took place on Tuesday,
May 22. He was informed ahead of time by Michel
Ducharme, the loading supervisor at Bromont, that there
would be a meeting, without indicating it was to be with the
union. It lasted for 3 hours in the morning and Gomez was
paid for the time. Present were Andrew Kenopensky and Ed
Bingham for the Machinists and the seven or eight drivers.
Managers Gray and Dumaline were in the next room sepa-
rated by a divider. The Machinists representatives sought to
explain their failure to earlier appear in Champlain by stating
they were busy in Dallas and Atlanta trying to get those fa-
cilities organized. They told the men they had a contract that
we were going to be following. There weren’t enough copies
available so Gomez received one from Manager Gray. It was
the new 1990 to 1993 agreement and contained a local wage
and benefit supplement which listed the Atlanta, Georgia lo-
cation, not the Champlain facility. To date, he never received
or learned of any change in the contract supplement.
A week after the meeting, Gray distributed new Machinists
cards to the men and told them to fill them out. When the
men appeared to hesitate, she added, ‘‘Well, if you don’t fill
them out, you’re not going to get your benefits for your
union.’’ When Gomez told Gray he had already done so, she
just repeated what she had said, these needed to be com-
pleted. Gomez’ membership and designation card is dated
May 30, 1990.
Emory Johnson, another employee on the original Cham-
plain seniority roster, testified that at his interview in Albany
about 2 weeks before starting on October 25, 1989, Hall told
him that the Machinists Union was representing the employ-
ees. At a 2-day training session in Plattsburgh, preceding
their initial dispatches, Hall told the drivers that they had to
fill out Machinists cards along with the other forms which
were distributed, that it was part of their employment.
About 2 or 3 weeks later, Manager Cook passed out Ma-
chinists cards again, telling the men to fill them out, that
they had misplaced or lost the first ones. There was a third
occasion probably in April 1990, when the successor man-
ager, Lorie Gray, told the employees they had to fill out new
cards again because they couldn’t find the original ones. The
record contains Johnson’s original membership application
and bargaining designation card and dues-checkoff authoriza-
tion for the IAM, both dated October 25, 1989, and a later
membership and bargaining designation card for Machinists
Local 447 dated June 5, 1990.
Johnson was told by Lorie Gray that Vianney Dumaline
had called the meeting scheduled for April 1990, when the
two IAM representatives failed to appear. As to the union
meeting that was actually held on May 23, 1990, Johnson
and the other drivers were told to attend by Gray and
Dumaline. After introducing the Machinists representatives,
Dumaline left and went into the backroom. Johnson con-
firmed that the contract passed out on that date was the 1990
national agreement containing the Atlanta, Georgia supple-
ment. When Johnson and others asked why they had attached
a schedule which did not concern them, one of the union
agents said a local supplement would be prepared naming
Champlain and containing some changes, among them one
providing for daily dispatch by seniority and another on the
vacation schedule, as the area drivers had apparently re-
quested.
By the following week, the drivers received a Champlain
supplement B which did contain the increased vacation ben-
efit, including the 2-percent compensation earlier described.
Johnson’s union dues have been deducted from his pay
since the end of March 1990.
Johnson was elected the Machinists steward by the Cham-
plain drivers after the May 23 union meeting at which the
representatives indicated they had to have a steward.
William McCall was another driver on the original Cham-
plain roster. He recalled that either at his job interview by
Commodore Hall or during his training in Champlain, he was
told that the Machinists Union was the one that represented
the drivers. He also testified that Mickan came up afterwards
966 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and told the assembled employees that the Company was
represented by the Machinists and that they never had a
grievance filed. It was also McCall’s recollection that he had
twice signed union cards for the Machinists, once in the fall
of 1989, either during his orientation or when presented the
cards by Manager Cook, and later at the meeting addressed
by Machinists representatives. The first cards, union designa-
tion and dues-checkoff authorizations, he signed on Novem-
ber 29, 1989, at the request and in the presence of Manager
Cook, and the second membership designation card for Ma-
chinists Local 447 is dated May 30, 1990, a week after the
meeting. The other drivers at the meeting were also given
similar cards.
McCall believed union dues deductions from his pay com-
menced sometime after January 1990.
Gerald Derusha likewise was employed on the first Cham-
plain seniority roster in October 1989. At an orientation ses-
sion during training, Hall gave Derusha and these other driv-
ers sets of Machinists cards to sign and told them to fill them
out. No indication was given by Hall that their signing was
a voluntary act. Hall, when asked, was not sure about the
amount of union dues.
Derusha signed another card in May about a week after
the Machinists agents appeared. When Lorie Gray gave it to
him she said they had lost the other cards and this one need-
ed to be filled out. Derusha’s first cards for the IAM are
dated November 24, 1989, his later card for IAM Local 447
is dated May 31, 1990. Derusha delayed signing the second
card some days because although told by Gray to sign it, he
didn’t like the wording which stated he wanted the Machin-
ists to represent him.
David Demastrie, another original employee on the Cham-
plain seniority roster of October 25, 1989, was told by Hall
at his interview that the Union at Respondent was the Ma-
chinists and Aerospace Union. Demastrie expressed concern
about the benefits to be provided and Hall told him that he
would receive 80-percent coverage for dental and health care
and something about a pension plan. He was hired and with-
in a few days went to Champlain for an orientation day be-
fore being dispatched out.
Four to five weeks later, Manager Cook gave him and
other drivers Machinists designations and dues-checkoff
cards telling them to fill them out. A set of Demastrie’s IAM
cards in evidence are dated October 25, the day he had ori-
entation and started driving for Respondent. Demastrie swore
he also received another card later from Manager Cook. Her
later designation card for IAM Local 447 is dated May 30,
1990, a week after the meeting with the Machinists. It was
given to him by Manager Gray, who told him this is what
they gave me to hand out to you guys to fill out.
Demastrie noted that present at his orientation when he
was given the first set of Machinists cards to complete were
Cook, Dumaline, Ducharme, Mickan, and a vice president of
safety named Paul. Demastrie asked Mickan at the orienta-
tion gathering about the kind of holidays they had, and how
much was the initiation fee when Mickan had discussed that
Union as their representative. Mickan responded that he had
asked somebody else about it and was told there was no ini-
tiation fee.
Paul Henderson, Robert Lashway, and Lee Delisle were
the only ones of the nine original Champlain roster drivers
not to testify. Delisle and Henderson’s Machinists cards in
evidence contain dates of November 24 and 28, 1989, re-
spectively, consistent with those of other original drivers who
testified they had been given them by Manager Cook who
told them that they had to fill them out. Lashway along with
Glen Monto, another of the nine who testified, quit after a
week like Monto, and did not sign Machinists cards. Neither
of them appear on the November 2, 1989 seniority roster, al-
though all other seven original hires do.
Ronald Hicks testified that he had been hired by Respond-
ent in Champlain and hauled new cars as a driver from about
March 27 until the end of May 1990. The day he was called
for his physical he was presented a union card by Manager
Gray. She told him, at his inquiry, that there was no initi-
ation fee and they were not even taking out union dues at
the time.
Kenneth Cook also testified as a General Counsel witness.
As Champlain terminal manager from October 17, 1989, to
January 16, 1990, when he left voluntarily after being hos-
pitalized, he prepared the payroll, checked drivers’ logs, paid
bills, dispatched the drivers and handled rig breakdowns and
supervised maintenance work on the equipment. He reported
to Vianney Dumaline, marketing representative and described
as eastern regional manager. During his tenure, Dumaline
visited the facility three or four times.
Cook was interviewed for the job by Dumaline on the day
he was hired, after telling consultant Hall earlier that his in-
terest was in load making or dispatching rather than driving.
Cook confirmed that two drivers came up from Texas for a
time to haul automobiles from Bromont, Canada, to
Naperville, Illinois.
According to Cook, the two drivers out of Texas, Al Sisco
and a second, were initially dispatched from the Champlain
terminal by a fax received from Bromont. Thereafter on all
their runs between Bromont, Canada, and Naperville, Illinois,
Cook never saw them again until they went back to Texas
sometime before Christmas 1989. Cook believed they entered
the United States at Port Huron, Michigan, on their way to
Naperville. Cook forwarded their paychecks to them by mail
to their home addresses, presumably in Texas. Their names
never appeared on Champlain seniority lists but were kept on
a separate list covering exclusively drivers on the Naperville
run which he maintained. On one occasion, a driver from an-
other trucking company hauled out of the Champlain ter-
minal under an agreement with Safety Carrier. Other than
those instances, no other drivers, other than those on the
Champlain seniority roster performed services for Respond-
ent from the Champlain facility. Furthermore, none of the
Champlain drivers performed services out of any other Re-
spondent terminal other than some backhauls out of a rail-
road in South Bend, Indiana, with loads destined for Port
Newark, New Jersey.
Cook was instructed by Dumaline when the first dis-
patchers started in October 1989, that he was to give the
drivers the Machinists cards to be signed and returned to him
and he would hand them over to Dumaline. Cook followed
these instructions, had the cards signed and returned them to
Dumaline. The employees who signed were Brad Forkey,
Bob Lashway, and Glenn Monto. Cook told them they had
to be filled out before we could dispatch, that he had to turn
them in. It will be recalled that Forkey’s cards are dated Oc-
tober 20, 1989. Respondent failed to locate or produce cards
for Lashway and Monto. Monto testified he quit a week later
967SAFETY CARRIER
before signing. Lashway and Monto started employment on
October 11 and Forkey on October 13.
Cook described the hiring of a second group of drivers.
These were hired between October 21 and 25, 1989. There
were six, including Joseph Whitbeck, Lee Delisle, William
McCall, Emory Johnson, David Demastrie, and Paul Hender-
son. Cook thought there were at least seven. During that
week, Cook was present when Mickan addressed the men as
part of their training.
The few days training at the Champlain facility was con-
ducted by Commodore Hall and Chuck Tinker. Cook asked
Hall if the union cards had already been signed and Hall said
everything had been taken care of. Hall explained that in the
packet of forms given to the new drivers were the Machinists
cards.
Later, Cook was told by Dumaline that he had to give
some of the drivers new union cards to resign because some-
how or other they got misplaced. Cook had all the drivers
who had started on the training program sign new cards, tell-
ing them they were to fill their cards out, sign them, and
give them back to him so he could give them back through
the proper channels. After getting them back, Cook put them
in an envelope and personally gave them to Dumaline.
Later testimony by Cook disclosed that even before be-
coming hospitalized in January 1990, he had missed work
from the end of October to the week of Thanksgiving be-
cause of illness.
In a letter dated February 1, 1990, from Mickan to Cook
which Respondent introduced into evidence, Mickan in-
formed Cook that as a consequence of the needs of the job
during his most recent leave of absence, the Company could
no longer hold his position open for an extended period of
time and was obliged to seek a replacement. In the letter
Mickan described the Champlain facility as a ‘‘one person’’
terminal and the manager as being responsible for dispatch,
load makeup, and payroll for 10 drivers who operate out of
it.
To the extent, Respondent relies on this letter as either es-
tablishing an inconsistency with Cook’s characterization of
his leaving the job as voluntary, or as a basis of establishing
bias on Cook’s part, warranting his impeachment, I reject ei-
ther implication. Cook explained the circumstances of his
leaving because he was hospitalized. He may have reason-
ably believed the separation to have been amicable, and
therefore ‘‘voluntary’’ in that sense, although it is clear that
he was removed from his job because of his continued ill-
ness, albeit with the promise of consideration for future em-
ployment. Neither Cook’s mischaracterization of the nature
of his separation nor the fact that it was involuntary warrants
Cook’s impeachment as a witness. His testimony was straight
forward, credible and consistent with, and corroborative of,
that of the employee witnesses with whom he had union re-
lated interchanges. The only other Respondent witness,
Mickan, whose testimony is at odds with Cook’s, regarding
in particular whether Cook was instructed to hold the Ma-
chinists cards he provided for delivery to the job steward,
has not been credited on this matter. Noteworthy is the fact
that Vianney Dumaline, whom Cook claimed instructed him
in his card solicitation, was not called as a Respondent wit-
ness to dispute the thrust of Cook’s and the employee wit-
nesses’ testimony. Neither was Gray called by Respondent to
contradict employee allegations regarding the nature of her
solicitations of employees to sign so-called replacement Ma-
chinists cards nor was Hall called to contradict his alleged
conduct in directing card signing and informing employees
of the IAM’s status as incumbent union.
As to the Respondent’s checkoff of machinists dues from
the pay of Champlain terminal employees, the parties stipu-
lated that commencing with the pay period ending March 26,
1990, Respondent deducted $28 monthly machinists dues
from the pay of Champlain terminal drivers. The employees
then employed were Johnson, Derusha, Forkey, Whitbeck,
Demastrie, Gomez, and McCall. No authorization covering
the withholding of employee Whitbeck’s dues were produced
by Respondent. Dues remittances were made by Respondent
in May and June to the Machinists on behalf of Forkey,
McCall, Johnson, Demastrie, Derusha, Gomez, Hicks, and
Wilfred Feliciano. There are no authorizations in evidence
for Hicks or Feliciano. As established by the record, the
dues-checkoff authorizations were obtained at the same time
and with the same solicitation as were used to obtain the des-
ignation cards.
Respondent presented its defense through the testimony of
President Curtis Mickan, who had previously testified as a
witness called by General Counsel under Fed.R.Evid. 611(c).
Mickan listed the supervisory personnel in the Dallas
home office as himself as president, Greg Artkop as director
of operations, Bob Beatty as manager of personnel and safe-
ty, and Rick Whitmore, as southwest regional manager of ac-
counting, domiciled in Houston. In seeking to staff the
Champlain operation, Mickan solicited employees from the
Dallas/Houston operation bidding the position of driver in
accordance with the transfer procedure described in the 1988
National Agreement with the Machinists. See supra.
By notice dated October 10, 1989, and distributed to the
two Texas terminals for posting on the appropriate bulletin
boards, Mickan informed all automobile carrier division driv-
ers—Dallas/Houston about the new operation in the North-
east corridor. He described the operation as transporting
automobiles from the new Hyundai assembly plant in
Bromont, Canada, to points in the United States, with the ter-
minal in Champlain, New York, serving as the distribution
area for nine States from New York down through the Vir-
ginias. In the notice Mickan also referred to the terminal op-
eration in South Bend, Indiana, which will run a shuttle from
Bromont, Canada, to Naperville, Illinois, 7 days a week.
In a last paragraph Mickan asked that anyone interested in
permanently redomiciling to either of these operations, please
see Greg Artkop or him by Friday, October 13, 1989.
Mickan noted that all operations will utilize single line driv-
ers and conventional style equipment.
Mickan believed that on October 22 or 23 drivers were
domiciled or operating out of Dallas or Houston. Confirming
Cook, Mickan recited that the two southern drivers who went
to the new operation under the transfer provision containing
a 30-day right to return were originally dispatched to Cham-
plain for direction for their dispatch, reported to Bromont
and thereafter ran trips between Bromont and Naperville, en-
tering the United States at the Port of Huron, Michigan, just
outside of Detroit. However, after 3 weeks, because the
broker Hyundai used closed that port, the two drivers had to
use the Port of Champlain for the remainder of their time in
the North.
968 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
According to Mickan, since the opening of the Champlain
facility in October 1989, as many as 11 Dallas/Houston driv-
ers have worked on a weekly basis out of Champlain because
of the sporadic and excess volume of automobiles out of the
Bromont plant consigned to Respondent’s area of operation.
No Champlain drivers have worked at the Dallas facility.
The equipment used in Champlain on its opening in Octo-
ber 1989, and since, was identical to that utilized in Dallas.
It included both 60- and 65-foot combination tractor-trailers,
with the trailer specially built and containing a head rack to
store automobiles.
In October 1989, the employees in both Champlain and
Dallas received identical health insurance, dental insurance,
and life insurance benefits.
The work of the drivers involved in inspecting, loading,
transporting and unloading the 9 or 10 car loads was the
same for both locations; only the manufacture and make of
the automobiles differed, with Dallas/Houston delivering
Subarus and Mitsubishis, among other makes, and Champlain
handling Hyundais. Only one job classification was em-
ployed at both facilities—that of driver.
In terms of discipline of the drivers, the local terminal
manager in either Dallas or Champlain determines whether
discipline is called for in a particular case, and makes a rec-
ommendation and Mickan’s office is notified. Neither loca-
tion has ever had any layoffs. Mickan himself is responsible
for labor relations, terminal wide.
As to the hiring of additional drivers in Champlain, Michel
Ducharme, the loading supervisor stationed in Bromont, first
receives information about new auto releases from the
Hyundai factory. He in turn informs Terminal Manager Gray,
who contacts Greg Artkop in Dallas who prepares a plan for
Mickan’s approval as to what equipment and from which lo-
cations it will be needed, which shippers they are going to
have to handle, and how many drivers will be required and
whether new drivers will be hired.
During his cross-examination by General Counsel, Mickan
explained that of the 23 drivers in Texas in October 1989,
20 were in Dallas and 3 in Houston, and each facility had
a separate terminal manager reporting directly to Artkop.
Furthermore, Mickan himself handles all marketing respon-
sibilities for Dallas/Houston and Vianney Dumaline has no
marketing functions for those facilities. Previously, Mickan
had been identified as marketing representative, and as
Champlain Manager Cook’s supervisor for that facility.
With respect to the use of Dallas drivers to handle excess
Champlain loads, Mickan asserted that they always go
through Champlain to get their dispatch, but continue to re-
main on the Texas seniority list while carrying loads out of
Bromont. None of the Dallas/Houston drivers were ever per-
manently stationed in Champlain.
As far as the general range of delivery of the Texas driv-
ers, Mickan reported that they deliver all the way from Los
Angeles to as far north as the Dakotas, over to Michigan and
down and over to the Southeast. The Champlain drivers de-
liver from Bromont into all the Eastern States as far south
as Georgia.
Mickan acknowledged that there have been occasions
when Respondent has been unable to handle excess flow out
of Bromont with its own drivers. At those times, Respondent
would advise Hyundai and they would tender that traffic to
a competing carrier.
Although health and pension benefits are the same,
Mickan noted Champlain drivers are paid 10 cents a mile
more than the Dallas drivers and also receive 50 cents an
hour more in the hourly rate when applicable. Since their
wage rate is higher, the Champlain drivers receive a greater
vacation benefit, based as it is on 2 percent of salary for
each week’s entitlement to vacation pay.
Each terminal has its own seniority list for its drivers, used
to determine order of layoff and recall, although as noted
earlier, no economic lay-off has taken place to date at any
Respondent facility.
Mickan also testified that Safety Carrier is not the exclu-
sive transporter of Hyundai vehicles out of Bromont.
Hyundai has arrangements with two carriers allocated to the
east coast distribution, one being Safety Carrier and the other
being E. & L. Transport. On one occasion, when there was
a severe overflow of new autos out of the Bromont plant,
and E & L Transport could not handle it, Hyundai asked Re-
spondent to find a carrier to trip lease with, i.e., to arrange
a subcontract with another carrier to handle the excess load.
When these events arose, at the very outset of its Champlain
operation, in the fall of 1989, Safety Carrier had already as-
signed as many drivers as it could to handle the volume of
deliveries out of Bromont under its own contract with
Hyundai. Safety Carrier arranged for a small Northern car-
rier, known as KAT, or Kanosha Auto Transport, to handle
the overflow and KAT had a master automobile transporter
agreement with the Teamsters.
Mickan agreed that the two Texas drivers who bid for
transfer to the Champlain operation did so after the initial
complement of Champlain drivers had already bid for and
been assigned to the east coast operation from Champlain
south through the Virginias. While Mickan disputed at this
point that Respondent recognized the Machinists before des-
ignation cards had been obtained from the Champlain drivers
hired in October, this testimony conflicts with his earlier re-
cital about automatically applying the 1988 Machinists
Agreement on commencement of operations. Applying the
bidding and transfer provision of the agreement to Dallas
employees reinforces the earlier testimony. Mickan here
again uses the phrase ‘‘officially recognized’’ to distinguish
between two decisions, the first granting recognition and ex-
tending contract coverage, and the second apparently leading
to execution of a local supplement agreement containing
local wage terms, benefits and other conditions of employ-
ment. In any event, the degree to which the cards executed
by Champlain drivers had been tainted by management solic-
itation has been previously spread on this record.
Mickan also acknowledged that along with Commodore
Hall, another individual, Charles Tinker, was hired as a con-
sultant to handle maintenance problems in the startup of the
Champlain operation. Furthermore, Dumaline, as a French-
man, was also hired specifically to handle the factory rela-
tionship with Hyundai for the Champlain facility, as was
Ducharme, the loading supervisor stationed at Bromont.
Mickan further noted that while he had referred to a South
Bend, Indiana terminal in his October 10, 1989 notice to
Texas employees, none was ever opened, although the
Bromont, Canada, to Naperville, Illinois run was established
and was assigned by the Champlain manager to the two Dal-
las drivers for a period of up to 6 to 7 weeks. While Re-
spondent had an office for some weeks in South Bend, no
969SAFETY CARRIER
5 Charging Union’s attempt to impeach Mickan’s testimony
through use of a document—a lease agreement—listing as of Feb-
ruary 7, 1990, a South Bend location as one of Safety Carrier’s ter-
minals is ineffective because Mickan adequately explained that the
location in question was not a Respondent terminal with employees,
but was rather a broker’s address and telephone used by Respondent
to solicit backhaul business.
In finding Mickan’s testimony not credible in certain areas, neither
do I rely on an alleged discrepancy between Mickan’s testimony that
operations were expanding in 1989 and a sworn statement in an affi-
davit executed on February 7, 1990, for submission to the Interstate
Commerce Commission (ICC) that serious service problems during
early 1989 resulted almost overnight in a loss of 50 percent of the
business. The affidavit shows that by April 1989, the ICC had ap-
proved an application of Respondent to permit System Corp. Trans-
portation System to lease Safety Carrier’s operating rights pending
final disposition of Respondent’s petition of exemption to permit a
permanent transfer of control and operating rights to another cor-
poration, Automotive Carrier Services Co., via a transfer of stock of
Respondent’s parent, Unimark Services, Inc. Not only did Jupiter
continue Respondent’s operations but it expanded them into the
Northeast by opening the Champlain facility in October 1989.
terminal was ever established there.5 That office closed when
Port Huron closed in early November 1989.
Analysis and Conclusions
The first issue to be addressed is whether the establish-
ment of the Champlain terminal constituted an accretion to
the existing bargaining unit authorizing the already recog-
nized Machinists to act as exclusive bargaining agent.
Mickan in his testimony and Respondent and Intervenor in
their briefs asserts this defense to the conduct in recognizing
the Machinists and applying the terms of the 1988 National
Agreement to the Champlain drivers. Both General Counsel
and the Charging Union claim there was no accretion and
that by recognizing the Machinists and by extending the
terms of the agreement with the Machinists to the Champlain
facility, Respondent interfered with the rights of the Cham-
plain drivers to select a bargaining representative of their
own choosing or, indeed, none at all, in a separate, appro-
priate bargaining unit.
The Board has defined an accretion as ‘‘the addition of a
relatively small group of employees to an existing unit where
these additional employees share a sufficient community of
interest with the unit employees and have no separate iden-
tity. The additional employees are then properly governed by
the unit’s choice of bargaining representatives.’’ Safeway
Stores, 256 NLRB 918, 924 (1981).
In determining whether an accretion exists, the Board fol-
lows a restrictive policy, recognizing that a finding of accre-
tion forecloses the employees’ basic right to select their bar-
gaining representative. See, e.g., Towne Ford Sales, 270
NLRB 311 (1984). As the Board stated in Melbet Jewelry
Co., 180 NLRB 107, 110 (1969) [it] ‘‘will not, under the
guise of accretion, compel a group of employees, who may
constitute a separate appropriate unit, to be included in an
overall unit without allowing those employees the oppor-
tunity of expressing their preference in a secret ballot elec-
tion.’’
As part of this restrictive policy, where a new group of
employees has come into existence during the term of a col-
lective-bargaining agreement, only if they have such common
interests with members of an existing bargaining unit that the
new employees would, if present earlier, have been included
in the unit or covered by the current contract, will the Board
permit accretion in furtherance of the statutory objective of
promoting labor relations stability. Gould, Inc., 263 NLRB
445 (1982). Thus, in resolving this issue, one must engage
in a balancing of countervailing principles, weighing the
right of employees to select a bargaining agent against the
statutory objective of maintaining established stable labor re-
lations.
‘‘In determining whether a new facility or operation is an
accretion, the Board has given weight to a variety of factors
including integration of operations, centralization of manage-
rial and administrative control, geographic proximity, simi-
larity of working conditions, skills and functions, common
control of labor relations, collective-bargaining history, and
interchange of employees.’’ Id. at 445. Another important
factor is whether the day-to-day supervision of employees is
the same for the two groups of employees. Towne Ford
Sales, supra at 311, 312; Save-It Discount Foods, 263 NLRB
689 (1982); Weatherite Co., 261 NLRB 667 (1982). This last
factor is particularly significant, because, as the Board has
noted, the day-to-day problems and concerns among the em-
ployees at one location may not necessarily be shared by em-
ployees who are separately supervised at another location.
Renzette’s Market, 238 NLRB 174, 174 (1978).
Applying these principles and factors to the instant facts,
I am convinced that the Champlain facility did not constitute
an accretion to the existing unit and that by applying the
contract to the Champlain drivers, Respondent violated the
Act.
While President Mickan exercises central authority over
policy and direction of the enterprise, nationwide, from the
Respondent’s headquarters in Texas, and Greg Artkop, as di-
rector of operations, from the same location apparently has
an overall managerial function and along with Mickan visited
the Champlain facility on at least one occasion, a number of
facts regarding the establishment and functioning of the
Champlain facility show the separate, autonomous nature of
its operation. Thus, its work force was recruited, interviewed,
trained and hired in the Northeast, and its equipment was
serviced and prepared by consultants employed separately
and specifically to aid in the startup of the facility. In the
management of the facility, Champlain, like the other termi-
nals, employs a separate terminal manager with responsibility
for the day-to-day supervision of the drivers and loaders.
Such supervision admittedly includes making the initial de-
termination as to whether and what extent employee dis-
cipline is appropriate and recommending such action to
Mickan’s office. There is no record evidence that Mickan,
Artkop, or anyone else at Respondent’s headquarters in
Texas performs any independent investigation as to discipline
recommendations. In addition, the Champlain manager pre-
pares the payroll, checks driver’s logs, pays the bills, dis-
patches the drivers, handles rig breakdowns, and supervises
maintenance work on the equipment. While some of these
functions may have been performed by some of the other ter-
minal managers in October 1989, when Champlain opened,
Respondent did not adduce any evidence of it and from
Mickan’s description of Rick Whitmore’s function as south-
west regional manager of accounting domiciled in Houston,
coupled with Mickan’s failure to respond to Ken Cook’s de-
scription of his own duties, the inference is reasonable that
970 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Whitmore probably prepares the payroll and pays the bills
for the Texas facilities. Thus, the Champlain manager also,
probably because of the immense geographic distance of
thousands of miles from the Texas headquarters and facili-
ties, performs a greater range of managerial and administra-
tive functions than his counterparts in the South. These fac-
tors all weigh against finding an accretion. TRT Tele-
communications Corp., 230 NLRB 139, 141 (1977); Bowie
Hall Trucking, 290 NLRB 41 (1988).
Aside from Terminal Manager Cook, separate supervision
at the Champlain facility included a Bromont dispatcher,
Michel Ducharme, and marketing representatives/eastern re-
gional manager, Vianney Dumaline, whose functions in-
cluded, among other things, dealing directly with Hyundai
management at Bromont and directing Manager Cook in the
gathering and solicitation of Machinists designation and
dues-checkoff cards. See Rainey Security Agency, 273 NLRB
269, 276 (1985); Bowman Transportation, 230 NLRB 935
(1977).
Besides the lack of geographic proximity of Champlain
from the Texas terminal, the record is clear that there has
been no regular interchange of employees between the
Champlain and Texas facilities and with one exception, none
in 1989. No Champlain drivers were ever dispatched out of
Dallas, Houston, or Waco, or even Atlanta since its establish-
ment as a terminal in April 1990. See Safeway Stores, 275
NLRB 944, 949 (1985). While two drivers domiciled in
Texas spent 6 to 7 weeks in the fall of 1989 hauling
Hyundais from Bromont, Canada, to Naperville, Illinois, they
did not report to, nor were they dispatched from, Champlain
except for their first trip. Even their paychecks were mailed
to their Texas domiciles by the Champlain manager since
they spent no subsequent time at the Champlain facility.
While they operated from Bromont, the Champlain manager
kept them on a seniority roster separate and apart from that
of the Champlain drivers. Because of the absence of any per-
manent transfers or even temporary transfers beyond the two
drivers discussed, as well as the circumstances of their use,
any reliance Respondent places on the bidding procedure of
the 1988 Machinists Agreement to show an integration of the
Dallas with the Champlain operation is inadequate to support
an accretion of the Champlain facility with the existing unit.
See Pilot Freight Carriers, 208 NLRB 853, 858 fn. 15
(1974).
The Texas drivers, up to 11 in any given week since Octo-
ber 1989, who, according to Mickan, hauled out of the
Champlain facility performed this work, again according to
Mickan, solely because of the sporadic and excess volume
generated under Respondent’s agreement with Hyundai.
Mickan’s description of their work, leads unescapably to the
conclusion that they were used to handle over flow in spite
of Mickan’s denial of that function. This limitation, coupled
with the instances, disclosed of record, when Respondent
‘‘trip leased’’ and could not otherwise handle the overflow
and referred the excess back to Hyundai, strengthens the con-
clusion that while Texas drivers have been dispatched out of
the Champlain facility it has not been on a regular basis, and
was rare, at best, in 1989. I am also influenced in making
this conclusion by the credited testimony of Manager Cook
that no Texas drivers, other than the two on 30-day rev-
ocable transfer assignment, performed services out of Cham-
plain during his active tenure, in October and December
1989. Mickan’s failure to corroborate the assignments of
Texas drivers out of Champlain by trip records, invoices,
logs, or other documents, also makes his assertions in this re-
gard somewhat suspect, and in any event, they remain gen-
eral, rather than specific in nature as required to support a
finding of accretion, Capitol Transit, 289 NLRB 777, 784
(1988). Employee Bradford Forkey’s acknowledgment that
from time to time since January 1990 drivers came up from
Dallas to get loads out of Bromont does note establish that
such interchange took place on any basis at all in 1989. Fi-
nally, none of the Texas drivers dispatched out of Cham-
plain, permanently transferred to that facility or went on its
separate, seniority roster. That roster is separately maintained
for Champlain and determines the order of lay off and recall
in the event of a layoff, although none has occurred to date.
As to working conditions, skills and functions, the record
establishes that all of the employees, those in the existing
unit and in the Champlain facility, are drivers, perform the
same functions, use the same equipment, and generally re-
ceive the same fringe benefits. Working conditions, including
startup time, dispatching procedures, including dispatch by
seniority, and the like are unique to Champlain, in accord-
ance with the Champlain drivers’ demands and Mickan’s tes-
timony acknowledging the successful Machinists demands in
March 1990, for a new agreement containing separate sup-
plements, including different work rules and economic terms
for different terminals to take into account such local factors
as congestion, toll roads and whether the terminal is located
at a port, inland, or at a factory site for dispatch as is the
case in Champlain/Bromont.
The record makes clear that the wage terms of the Cham-
plain complement have, since the inception of its operations,
exceeded those of the Texas drivers by at least 10 cents an
hour in one-way mileage pay for their regular hauls in excess
of 80 miles and by 50 cents an hour in hourly rate, where
applicable. The higher wage was also reflected in increased
vacation pay as a percentage of the annual earnings. The
record is unclear about differences between the two groups
of employees as to backhaul pay and loading pay. It appears,
likely however, that Champlain drivers, at least since April
23, 1990, have received a differential in loading pay, ranging
from $2.50 for loading 9 vehicles, to $11.50 for loading 13
vehicles. In any event, the wage differential is illustrative of
the fact that the wage market in the Champlain/Plattsburgh,
New York area is more highly competitive than that in
Texas, due in large part, to the higher rated Teamsters con-
tracts with carriers in the area. The result is that drivers em-
ployed by Respondent in the Champlain facility have an ex-
pectation of greater compensation for driving and loading, in
particular, than exists among the Dallas/Houston drivers.
These differences in seniority rosters, wages, hours, vaca-
tions, and dispatch procedures are all significant in deter-
mining that no accretion took place. TRT Telecommuni-
cations Corp., supra; Capp Express, 220 NLRB 816 (1975);
Servair, Inc., 252 NLRB 670, 675 (1980).
As to labor relations, President Mickan clearly controls all
aspects of labor relations nationwide, to the extent that in es-
tablishing the Champlain facility, Mickan succeeding in pro-
posing to the Machinists, that the local New York State driv-
ers receive a wage differential, apparently adequate to attract
applicants for its operation.
971SAFETY CARRIER
6 Respondent in its brief argues at p. 20 that accretion must be
measured as of the date of the Charging Union’s demand. The case
law does not support such a conclusion. Neither case Respondent
cites stands for such a proposition. While the second case cited,
GHR Energy Corp., 294 NLRB 1011 (1989), relies on the demand
date for determining whether accretion took place, that date was the
date alleged by General Counsel for violation of Sec. 8(a)(5). Gen-
eral Counsel here, appropriately relies on the events starting in late
September 1989, when recognition was granted and the contract was
extended.
7 In its answer but not its brief Respondent asserts the complaint
is barred by the limitation period contained in Sec. 10(b) of the Act.
The charge was filed on March 22, 1990. Accordingly, all complaint
allegations asserting violations occurring since September 22, 1989,
are not subject to the 10(b) limitation. Par. VIII of the complaint as-
serts unfair labor practices running from a date 6 months prior to
filing of the Charge. Neither General Counsel nor Respondent have
adduced any evidence of Respondent having granting recognition to
the Machinists prior to September 22, 1989. Even if recognition pre-
ceded September 22, the Teamsters would have had no way of learn-
ing of any relationship between the contracting parties until Sep-
tember 22, 1989, when Hall first conducted employment interviews
in Plattsburgh. Respondent has failed to sustain its burden that the
Teamsters had actual or constructive notice of its relationship, if any,
with the Machinists prior to that date. See Desks, Inc., 295 NLRB
1 (1989). In any event, all other acts of alleged unlawful assistance,
including extension of the 1988 agreement, execution of the supple-
ments, dues deductions, and execution of the 1990 agreement are
properly in the case and subject to appropriate remediation. Child
Day Care Center, 252 NLRB 1177 (1980); Diamond International
Corp., 229 NLRB 1314 (1977). Hot Bagels & Donuts, 227 NLRB
1597 (1977).
The collective-bargaining history of Respondent is meager
and shows that its relationship with the Machinists in Texas
commenced as recently as March 1988, and its first agree-
ment with the Machinists was not executed until March
1989, 5 months prior to the opening of the Champlain facil-
ity. Thus, the Teamsters petition when filed on April 16,
1990, was hardly disturbing a mature, stable collective-bar-
gaining relationship.
In concluding that the Champlain employees were not
accreted into the unit, I rely most heavily on the separate
management and day to day supervision of those drivers, the
absence of employee interchange between the Champlain and
Texas facilities, the extreme geographic distance between the
two groups, the separate seniority and working conditions,
and the different wage market in which the Champlain driv-
ers work and reside. Just as with respect to the Chicago per-
sonnel in Brown Transport Corp., 296 NLRB 552 (1989),
the Champlain drivers’ immediate supervision and day-to-day
concerns, separate wage rider, geographic separation, sepa-
rate and nonoverlapping routes, and lack of contact on a reg-
ular basis with drivers employed at Respondent’s Texas, and
since April 1990, Atlanta terminals, all weigh heavily against
a finding of accretion. Thus, although the Champlain group
contained only 9 on its original seniority roster as compared
to 23 in Dallas/Houston, I am persuaded that the Champlain
drivers do not have such common interests with the drivers
in the existing unit that they would have been included in
that unit or covered by the 1988 contract had they been em-
ployed at that time.6 Accordingly, I conclude that the em-
ployees in the Champlain facility were not lawfully accreted
into the preexisting bargaining unit contained in the con-
tracting parties’ 1988 National Agreement.
Having determined that the Champlain drivers were not
accreted into the preexisting unit, it follows that the Machin-
ists could only have been recognized and achieved lawful
status, as exclusive bargaining agent for those employees and
entered into a collective-bargaining agreement on their be-
half, by having represented an uncoerced majority of them
at the time recognition and exclusive status was accorded it
in late September and October 1989, Garment Workers
(Bernhard-Altman) v. NLRB, 366 U.S. 731, 738, (1961). The
issue is then posed whether, indeed, such was the case.7
The strong weight of the evidence leads me to conclude
that by its conduct in directly soliciting designations and
dues-checkoff authorizations, encouraging, even directing
employee affiliation as a basis for receiving contract benefits,
and by informing the employees that they had no choice in
the selection of their representative, the matter, in effect,
having already been predetermined, among other acts and
conduct, Respondent rendered unlawful assistance to the Ma-
chinists, thereby tainting the cards executed by all or the em-
ployees who did so, and resulting in Respondent’s unlawful
recognition of the Machinists and extension of the parties’
collective-bargaining agreement to include the Champlain fa-
cility, in violation of Section 8(a)(1) and (2) of the Act. See
Brown Transport Corp., supra. Each of the sequestered wit-
nesses called by General Counsel told a similar tale, the to-
tality of which added up to a systematic effort by Respond-
ent management to unlawfully extend a preexisting bar-
gaining relationship with the Machinists to the mutual benefit
of each. For the Respondent, it meant dealing nationwide
with one union, which, based upon its dealings in Texas,
could be counted on not to make excessive or uncomfortable
demands. For the Machinists, it meant extending its contract
coverage to employees it had never met or solicited, thereby
at the same time strengthening its position in a distant sec-
tion of the country, and its treasury.
Of the nine original employees at the Champlain facility
at the time Respondent recognized the Teamsters and ex-
tended the 1988 agreement to cover them, two, Lashway and
Monto, never executed Machinists designation cards, one,
McCall, did not sign his first cards until November 29, 1989,
and McCall and the six others were coerced, induced, and
solicited by management to execute both their designation
and dues-checkoff authorization cards.
Van Operloo was told by Hall at his interview that the
Machinists would be representing the drivers. Later, during
his training in Scranton, Hall told him that the Respondent
would not go Teamsters. The last day of training Hall solic-
ited Machinists membership and bargaining designation from
the trainees, including Forkey, Monto, and Lashway, with the
statement that if they wanted to be a part of the Union and
get the union benefits, they had to sign.
Monto recalled mention of the Machinists by Hall and/or
the other consultant during his training and that Cook solic-
ited his and the other drivers’ signatures on Machinists des-
ignation and checkoff authorizations when they started by
telling them this was the agreement with the Company, refer-
ring to the inadequate March 17, 1989 supplement, and you
have to sign so I can forward them to Texas.
Forkey corroborated both Van Operloo as to Hall’s ref-
erence to the Machinists as their Union and Cook’s distribu-
tion of, and direction to, the original drivers to fill out the
972 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Machinists cards. He, Whitbeck, and Johnson all refer to a
direction from management to attend a Machinists meeting in
March 1990 which was never held, but for which preparation
time they spent overnight locally, they were each financially
reimbursed by Respondent.
Whitbeck, among other employees, was solicited twice, the
first time by Cook at the October 25, 1989 meeting ad-
dressed by Mickan who informed the men that Safety Carrier
already had a contract with the Machinists and that’s what
the Champlain employees would be.
Emory Johnson, William McCall, and David Demastrie, all
among the original nine employees hired in mid-October
1989, echo the testimony of their brethren regarding Hall and
Cook’s solicitation efforts on behalf of the Machinists.
Demastrie recalled Mickan’s remarks at the October 25 meet-
ing in Champlain informing the employees that the Machin-
ists will charge no initiation fee and then being told by Cook
to fill out his first set of cards.
Later employed drivers, among them Thomas Gomez, Ger-
ald Derusha, and Ronald Hicks corroborated the roles played
by consultant and agent Hall and the terminal manager suc-
cessor Gray in continuing to solicit and direct Machinists af-
filiation. It is apparent that the Respondent effort to obtain
new designation cards on behalf of Machinists Local 447 out
of Lyndhurst, New Jersey, was consistent with, and in imple-
mentation of, the successor 1990 Agreement’s revised union-
security and recognition clause and bargaining unit clauses,
now authorizing a local of the Machinists to represent em-
ployees in present or subsequently opened or acquired oper-
ations or terminals. Gray’s explanation to various drivers that
earlier cards had been lost was both disingenuous and dis-
honest. Her failure to testify and explain the discrepancy be-
tween her excuse for new solicitations and Respondent’s pro-
duction of so-called ‘‘lost’’ cards leaves the trier of the facts
with the inference that she would have had no reasonable ex-
planation for her deception. Her conduct lends added weight
to my conclusion that Respondent engaged in a pattern of in-
timidation and deceit against employees to ensure that the
Champlain facility became and remained a Machinists en-
clave.
That Respondent’s scheme of unlawful Machinists support
came from its highest levels of management is established
not only by Mickan and Artkop’s presence in Champlain on
October 25 and Mickan’s discussion there of Safety Carrier’s
relationship with the Machinists and its interest, desire, and
decision to extend it to Champlain, but also by Cook’s dis-
closure that it was Vianney Dumaline, marketing representa-
tive and de facto if not de jure eastern regional manager,
who instructed him to get Machinists cards signed by the
first three drivers hired for Champlain.
Other facts strengthen the pattern of unlawful assistance
and support for the Machinists. The added Champlain wage
supplement originated with Mickan in preliminary talks with
the Machinists that had to antedate the opening in Champlain
and thus Respondent’s recognition of the Machinists in all
likelihood preceded the hiring of any drivers at the Cham-
plain facility. Respondent’s attempt to apply the ‘‘newly es-
tablished terminal’’ clause, article III,D, of the contract with-
out employees or any evidence of union representation was
unenforceable. Safeway Stores, supra at 952–953. Save-It
Discount Foods, 263 NLRB 689, 695 (1982). In insisting on
a distinction between informal and ‘‘official’’ recognition of
the Machinists, Mickan was also giving lip service to the ar-
ticle III,C contract provision authorizing the Machinists to
represent employees in any appropriate bargaining unit at
their terminal locations upon a majority showing of designa-
tion cards, although these drivers were incorporated into the
overall unit. As shown, all cards were procured by employer
inducement, coercion, intimidation and an open avowal of
preference for the Machinists, thereby tainting every one of
them. Ryder System, Inc., 280 NLRB 1024 (1986); Sarah
Newman Nursing Home, 270 NLRB 663 fn. 2 (1984). The
fact that many of the employer solicitations were before em-
ployment and well before 30 days of employment is also sig-
nificant. Ryder System, Inc., supra at 1046.
The 6-month delay in Machinists representatives first
meeting with Champlain drivers following their achieving
exclusive bargaining status, and the same representatives ini-
tial distribution of an Atlanta, Georgia supplement not fully
applicable to local employer concerns, demands and condi-
tions, are also facts which add to the legal conclusions I have
reached here. Another surprising development was the pre-
mature extension of the 1988 Agreement. The Teamsters un-
fair labor practice charge was filed on March 22, 1990.
While that fact may not explain the preparation of the March
17, 1990 Champlain supplement, or the new agreement itself,
also dated March 17, 1990, the parties’ subsequent supple-
ment B, listing the date of signing as April 23, 1990, may
be partially explained by the Teamsters charge. Surely, the
union-security, recognition, unit provisions, and newly added
union-shop clause show a heightened awareness of language
and legalities designed in so far as possible to protect the
parties from outside attack. In any event, the premature ex-
tension appears to be a suspicious act on the part of the sig-
natories and this view is strengthened when one considers the
inadequacy of Mickan’s explanation, that the Machinists
were seeking to incorporate local supplements in their agree-
ment. That does not explain the changes in language earlier
described nor does it provide a completely satisfactory expla-
nation with regard to the need for supplements since Re-
spondent was providing the Champlain wage differential
from the outset of operations in October 1989. No Intervenor
representatives testified so the matter of the premature con-
tract extension is left fairly murky.
In any event, by entering into the original agreement, as
well as the extension, and coercing employees to execute
checkoff authorizations, under circumstances in which em-
ployees could reasonably believe their execution was nec-
essary in order to receive the contract benefits and as a con-
dition of employment, and, further, by deducting dues from
employees’ pay without evidence of any valid authorization
from the employee, Respondent has independently violated
the Act. Mode O’Day Co., 280 NLRB 253, 255 (1986); Her-
man Bros., Inc., 264 NLRB 439, 442 (1982); General Instru-
ment Corp., 262 NLRB 1178 (1982).
The enforcement of the dues-checkoff clause since March
1990, contained in a contract entered with a minority union,
without more, similarly violates Section 8(a)(1) and (2) of
the Act. Ned West, Inc., 276 NLRB 32, 44 (1985); Monfort
of Colorado, 256 NLRB 612, 614 (1981).
I conclude that the Respondent recognized the Machinists
for the employees at the Champlain facility, extended the
1988 agreement to the employees there and agreed upon sup-
plements to cover local wage and working conditions, at a
973SAFETY CARRIER
8 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621. Interest accrued before January 1,
1987 (the effective date of the amendment), shall be computed as
in Florida Steel Corp., 231 NLRB 651 (1977).
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
time when the Machinists did not represent an uncoerced
majority of the drivers employed there. The execution of the
supplements and the checkoff of union dues, with and with-
out valid checkoff authorizations, constitute other aspects of
Respondent’s unlawful conduct.
CONCLUSIONS OF LAW
1. Respondent Safety Carrier is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Machinists and the Teamsters are labor organiza-
tions within the meaning of Section 2(5) of the Act.
3. By granting recognition to the Machinists as the exclu-
sive bargaining representative of unit employees at the
Champlain facility, extending the terms of the collective-bar-
gaining agreement entered into on March 22, 1988, between
Respondent Safety Carrier and the Machinists and effective
until March 21, 1991, and its successor agreement effective
from March 16, 1990, to September 30, 1993, to the unit em-
ployees at the Champlain facility and by maintaining and en-
forcing the said agreements for the employees at the Cham-
plain facility, soliciting and directing employees and appli-
cants for employment at the Champlain facility to sign au-
thorization cards on behalf of the Machinists, and telling
them that the Machinists represent the employees at the facil-
ity and that they had to sign as part of their employment or
in order to receive union benefits, and deducting dues from
the earnings of the employees at the Champlain facility and
remitting the same to the Machinists in enforcement of the
collective-bargaining agreement described, Respondent Safety
Carrier has rendered, and is rendering, unlawful aid, assist-
ance and support to the Machinists, and has thereby engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(1) and (2) of the Act.
4. The aforementioned unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I will recommend that it be ordered to cease
and desist therefrom and to take certain affirmative actions
designed to effectuate the purposes and policies of the Act.
Having found that Respondent Safety Carrier unlawfully
granted recognition as exclusive bargaining representative of
an uncoerced majority of employees at the Champlain facil-
ity to the Machinists, I will recommend that Respondent be
required to withhold recognition from the Machinists as to
the employees at said facility, and to cease giving effect to
any collective-bargaining agreement, modification, extension,
renewal or supplemental agreement between the parties as to
said facility until such time as the Machinists shall have been
certified by the Board as the exclusive bargaining representa-
tive of any appropriate bargaining unit. However, nothing in
this proposed Order will authorize or require the withdrawal
or elimination of any wage increase, or other benefits, terms
or conditions of employment which may have been estab-
lished by any such agreement. Inasmuch as the evidence
shows that the most recent designation cards solicited by Re-
spondent of the Champlain facility employees lists Machin-
ists Local ‘‘447’’ as the designated representative for pur-
poses of collective bargaining, I will add the words ‘‘succes-
sors or assigns’’ to the designation of the Machinists Union
as the contracting party labor organization the Respondent
will be obligated to cease recognizing, contracting with or on
whose behalf it may no longer withheld dues or other mon-
eys from the earnings of employees, pursuant to contract.
I will further recommend that Respondent reimburse all
present and former of its employees at the Champlain facility
for all initiation fees, dues, or other moneys exacted from
them by or on behalf of the Machinists pursuant to any dues-
checkoff provision of any collective-bargaining agreement, or
otherwise, together with interest thereon to be computed in
the manner prescribed in New Horizons for the Retarded,
283 NLRB 1172 (1987).8
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended9
ORDER
The Respondent, Safety Carrier, Inc., Champlain, New
York, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Recognizing and bargaining with International Associa-
tion of Machinists and Aerospace Workers, Local 1015,
AFL–CIO, it successors or assigns, as the collective-bar-
gaining representative of Respondent Safety Carrier’s Cham-
plain, New York facility employees, unless and until the
labor organization has been certified by the National Labor
Relations Board as the exclusive bargaining representative of
any such employees in an appropriate bargaining unit.
(b) Giving effect to a collective-bargaining agreement with
International Association of Machinists and Aerospace Work-
ers, Local 1015, AFL–CIO, or its successors or assigns, with
respect to the Champlain, New York facility employees re-
ferred to above, and any modifications, extensions, renewals,
or supplements that may have been applied to those employ-
ees, provided that nothing in this Order shall require the
withdrawal or elimination of any wage increases or other
benefits, terms, and conditions of employment that may have
been established pursuant to any such agreement.
(c) Assisting the International Association of Machinists
and Aerospace Workers, Local 1015, AFL–CIO to become
or remain the representative of the Champlain facility em-
ployees, including soliciting and directing employees and ap-
plicants for employment at the Champlain facility to sign au-
thorization cards on behalf of Local 1015, or its successors
or assigns, or telling applicants and employees that the Ma-
chinists represent Champlain facility employees or that they
would have to join as part of their employment or in order
to receive union benefits.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
974 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Reimburse all former and present employees employed
at its facility terminal at Champlain, New York, for all initi-
ation fees, dues, and other moneys, if any, paid by or with-
held from them in the manner set forth in the remedy section
of this decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of monies due under the terms of this Order.
(c) Post at its Champlain, New York facility copies of the
attached notice marked ‘‘Appendix.’’10 Copies of the notice,
on forms provided by the Regional Director for Region 3,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT recognize and bargain with International
Association of Machinists and Aerospace Workers, Local
1015, AFL–CIO, or its successors or assigns, as the collec-
tive-bargaining representative of our Champlain facility em-
ployees unless and until the Union has been certified by the
National Labor Relations Board as the representative of any
such employees.
WE WILL NOT give effect to, or in any way enforce, the
collective-bargaining agreement purporting to cover such em-
ployees at a time when the Machinists Local 1015, or its
successors, or assigns, does not represent an uncoerced ma-
jority of employees in an appropriate bargaining unit, pro-
vided however that this will not require the withdrawal or
elimination of any wage increases or other benefits, terms,
and conditions of employment established by the agreement.
WE WILL NOT assist the Machinists Local 1015, or its suc-
cessors or assigns, to become or remain the representative of
our Champlain facility employees, including soliciting and
directing employees and applicants for employment at the
Champlain facility to sign authorization cards on behalf of
Local 1015, or its successors or assigns, or telling applicants
and employees that Local 1015, or its successors or assigns,
represents Champlain facility employees or that they would
have to join the union as part of their employment or in
order to receive union benefits.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL reimburse all former and present Champlain,
New York facility employees for all initiation fees, dues, and
other moneys, plus interest, paid by them or withheld from
them.
SAFETY CARRIER, INC.