Suburban Transit Corp. And Suburban Trails, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1985

276 N.L.R.B. 15 (N.L.R.B. 1985)

SUBURBAN TRANSIT CORP
Suburban Transit Corp and Suburban Trails, Inc
and Umted Transportation Union and its Local
No 1589 Case 22-CA-11902
27 August 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 30 June 1983 Administrative Law Judge
Steven Davis issued the attached decision The Re
spondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
On 18 July 1984 the National Labor Relations
Board issued an Order remanding the proceeding
to the judge for consideration in light of the
Board's Supplemental Decision and Order in Mil-
waukee Spring Division, 268 NLRB 601 (1984)
Thereafter, on 17 January 1985, the judge issued
the attached supplemental decision The Charging
Party filed exceptions and a supporting brief, and
the Respondent filed an answering brief
The Board has considered the decision, the sup
plemental decision, and the record in light of the
exceptions and briefs and has decided to affirm the
judge s rulings, findings, and conclusions' and to
adopt the supplemental decision's recommended
Order
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis
missed
i In adopting the judge s supplemental decision Member Dennis addi
tionally observes that the Respondent did not violate art XV sec I of
the parties collective bargaining agreement by reassigning certain work
from Suburban Transit employees to Suburban Trails employees She fur
ther observes that the work reassignment did not cause any layoffs the
driver staff reduction resulted from voluntary transfers Therefore the
Respondent did not contravene its intent to maintain a 90 full time driver
level Nor did the Respondent violate the articles proscription against
using part time drivers when full time drivers were available because it
assigned the work to Suburban Trails employees who worked full time
William F Grant Esq Newark New Jersey for the
General Counsel
Alfred J Hill Esq (Wilentz Goldman & Spitzer Esq)
Woodbridge New Jersey for the Respondent
DECISION
STATEMENT OF THE CASE
STEVEN DAVIS Administrative Law Judge Pursuant
to a charge and a first amended charge filed by United
Transportation Union and its Local No 1589 (the Union)
15
on October 4 and November 23 1982 ' respectively a
complaint was issued by the Regional Director for
Region 22 of the National Labor Relations Board on No
vember 24 against Suburban Transit Corp (Transit) and
Suburban Trails Inc (Trails) and sometimes collectively
referred to herein as Respondent
The complaint alleges that Transit failed to continue in
full force and effect all the terms of its collective bar
gaining agreement with the Union by reassigning work
to employees of Trails thereby causing the termination
of certain of its employees a reduction in the wage rates
of certain of its employees and a reassignment of certain
of its employees to less desirable more onerous and
lesser paying positions in violation of Sections 8(a)(1)
(3) and (5) and 8(d) of the Act
The case was heard before me on April 6 and May 6
1983 in Newark New Jersey
On the entire record including my observation of the
demeanor of the witnesses and after due consideration of
the briefs filed by the General Counsel and Respondent
I make the following
FINDINGS OF FACT
I JURISDICTION
Transit and Trails each having offices and places of
business in New Brunswick New Jersey have each been
engaged in the interstate and intrastate transportation of
passengers They admit that in the past year they each
have derived gross revenues in excess of $250 000 from
its respective business operations and during the same
period they each have derived gross revenues in excess
of $50 000 from the transportation of passengers from
New Jersey directly to points outside New Jersey
I find that each of Transit and Trails performs a suffi
dent amount of interstate business to be found to be em
ployers engaged in commerce within the meaning of
Section 2(2) (6) and (7) of the Act 2
II THE LABOR ORGANIZATION
Respondent has denied knowledge or information as to
the Union s status as a labor organization The evidence
established that the Union whose members include cer
tam employees of Transit represents employees in col
lective bargaining negotiations with their employer and
is a party to various bargaining agreements with Transit
Employees of Transit participate in the Union including
negotiations for contracts It appears that the Union
exists for the purpose of dealing with employees con
cerning grievances labor disputes wages rates of pay
hours of employment and conditions of work I accord
mgly find and conclude that the Union is a labor organi
nation within the meaning of Section 2(5) of the Act
i All dates hereafter are in 1982 unless otherwise stated
a This finding should not be construed to mean that Transit and Trails
are separate employers As discussed infra , I find as alleged in the coin
plaint, that Transit and Trails constitute a single integrated business enter
prise and are a single employer
276 NLRB No 5
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III ALLEGED UNFAIR LABOR PRACTICES
A Facts
1 Background
Transit operates bus transportation services in New
Jersey It maintained garages in New Brunswick and
Hightstown from which its buses operated
The Union has been the representative of Transits
drivers for many years It has a current collective bar
gaining agreement with Transit which runs from Sep
tember 15 1980 to September 14 1983 Pursuant to that
agreement the drivers participate in picks three times
per year in which they select the bus runs they desire
The selection process is done according to seniority and
the runs for both garages-New Brunswick and Hight
stown-were included The runs available to be picked
are straight 8 hour runs and also split runs typically for
commuter service in which the driver would work sev
eral hours in the morning and then have no driving
work in the afternoon and would then drive the evening
commuter runs There is also an extra board which is
used by drivers who do not have work on a particular
day It is used to obtain a driver as a replacement for a
driver on vacation absent or sick and is also used for
charter work Such work on the extra board is assigned
by seniority
Historically when all the Transit drivers have made
their picks and there is work still available Trails drivers
work as part time employees for Transit and perform
such Transit work as is available
The contract also contains the following provisions
Suburban shall have the right to hire part time
drivers
It is the Company s intention to maintain at least
the current level of 90 full time drivers provided
that the current level of business continues The
Company further intends to enlarge the full time
work force
Part time drivers will be used only when there is
an insufficient number of full time drivers to cover
all of the available work In all cases the full time
drivers shall have their choice between line and
charter work provided that there are part time dnv
ers available to cover all open line work In all
cases full time drivers shall have their choice of the
biggest paying pieces of work The Company will
also attempt to satisfy full time regular run opera
tors in the assignment of extra work providing suf
ficient operators are available to cover all open
work
The limit of work available to full time drivers
will be governed only by the hours of service
regulations of the Department of Transportation,
and not by the availability of part time drivers
Trails formed in 1979 to perform a Philadelphia to
New York route purchased from Trailways operated
from the Hightstown garage from which Transit buses
and employees also operate Trails was pnmanly in
volved in running charter buses Its drivers are repre
sented by the Suburban Trails Drivers Association A
collective bargaining agreement between Trails and the
Association runs from June 9 1982 to February 14
1986
Generally speaking the contract between Transit and
the Union is more favo-able to the Transit drivers than
the Trails Association contract is to the Trails drivers 3
Negotiations for the September 1980 Transit Union
contract were held in the summer of 1980 At one of the
meetings the Union expressed concern that inasmuch as
newly formed Trails was sharing the Hightstown garage
with Transit that Company might adversely affect the
work available for Transit drivers Ronald Kohn the
vice president of Transit and Trails admittedly told the
union representatives that Trails has its own charter au
thont) and such should not be their concern Joseph
Nuzzo a Transit driver and at that time a member of
the union negotiating committee testified that Kohn told
those present that Transit drivers would benefit by
Trails presence since the Transit drivers could perform
any charter work that Trails employees were unable to
cover Kohn also assured those at the meeting that Tran
sit would be able to maintain its 90-driver complement 4
Kohn also said that the Trails employees were not there
to remove work from Transit employees and that it was
expected that Trails would be moved to a different
garage
2 The events between March and August 1982
On March 4 Ronald Kohn vice president of Transit
and Trails met with the union committee Kohn told
those present that Transit had lost about $200 000 in 1981
and was in financial distress Kohn requested that the
Union agree to postpone for 1 month a contractual
March 15 wage raise Kohn added that such delay in the
payment of the increase would allow Transit to recover
its financial position somewhat because of an expected
fare increase which would be effective before the wage
increase On March 10 Paul Gelly chairman of the
Union sent a letter to Transit rejecting the request for a
1 month delay in the payment of the raise The letter
also stated
The Union feels that many of the problems that
were pointed out to management not only in our
recent meeting but also in the past have been over
looked for whatever reasons We strongly feel that
someone who does not want to help themselves
should not ask someone else for help
The March 15 wage increase was paid on schedule to
the employees
On June 14 Kohn again met with the union committee
and told them that Transit was having more severe fi
nancial problems than previously 5 Kohn noted that the
The specific provisions of each contract will be described infra
4 At that time Transit employed about 90 full time drivers and Trails
employed about 5 full time drivers
5 Kohn s testimony that Transit s first quarter 1982 financial statement
which showed a $240 000 loss was made available to the Union was not
contradicted
SUBURBAN TRANSIT CORP
most serious cause of Transits financial distress was its
commuter operation in which a driver would operate a
bus for several hours in the morning and several hours in
the evening and would not perform work in the period
in between He would be paid for such middle spread
time although he was not working and would receive a
premium rate at time and a half for all hours worked
over 10 1/2 hours In addition the bus involved in such
run would be idle for the middle period between the
rush hours thus earning no money for the Company
during such time
In order to relieve the drain on the Company caused
by the high cost commuter operation Kohn suggested
the use of part time employees He also proposed a
freeze on wages and pension contributions Union Vice
Chairman Joseph Nuzzo testified that Kohn told those
present that if the Union refused to grant concessions
Transit may lay off certain employees or transfer the
work to Trails Kohn also stated that it was possible that
Trails would take over the Hightstown to New York run
from the Hightstown garage Kohn testified that his
final suggestion mentioned as a remote possibility
maybe was the withdrawal of Transit from the Hight
stown garage with Trails performing the work left
there The Union also suggested and the parties dis
cussed other ways of saving money for example by
changes in scheduling
The Union made no response at the meeting to the
cost saving measures proposed by Kohn
On July 6 another meeting was held Present with the
Union committee was Paul Banister an official of the
United Transportation Union 6 Certain Transit financial
records were given to Banister who told those present
that due to the economy the Union had granted cones
sions in other parts of the country Banister asked Kohn
to send a letter to Transits drivers concerning its fman
cial condition and to make a written proposal regarding
recommendations for modification of the collective bar
gaining agreement
On July 12 Transit sent a letter to its drivers which
informed them of its financial plight and the need for
relief
At a meeting held on July 19 Kohn presented the
Union with two alternative proposals to relieve Transits
expected operating loss of $340 000 for 1982 One pro
posal was to replace full time drivers with part timers for
commuter trippers and the other proposals included the
elimination of spread time and guarantee and a 1 year
freeze of wages and pension contributions
After a meeting of the membership 1 or 2 days later
the Union advised Transit that both proposals were re
jetted
Transit then decided to remove its drivers from the
Hightstown garage and permit Trails drivers and part
timers to perform such work from that location Accord
ingly preparations were begun to implement these
changes Thus new operating schedules timetables
6 Unlike the other union representatives present Banister was not an
employee of Transit
17
leases for the transfer of buses from Transit to Trails
and new picks were prepared beginning in July '
Also in July Trails leased certain new deluxe MCI
buses for use in its charter operations 8 and certain Tran
sit drivers were asked if they wanted to transfer to
Trails About five to seven drivers did transfer to Trails
at that time
3 The events of September 1982
A meeting was held on September 13 at which Kohn
announced that the following changes would take place
on September 27
(1) All Transit drivers working from the Hightstown
garage would be transferred to the New Brunswick
garage and five runs would also be transferred to the
New Brunswick gagrage
(2) Full time Trails drivers would operate from the
Hightstown garage and nine runs from Hightstown
would be performed by Trails drivers there 9
(3) Fourteen runs would be eliminated completely 10
Kohn also announced that a new pick involving new
schedules and timetables would take place and that no
Transit drivers would be laid off as a result of these
changes i t
Between September 13 and 27 each Transit driver
picked a run according to seniority pursuant to the con
tractual provision Also during that time Patrick Kil
coyne Transits operations manager asked about 15
Transit employees who were at the bottom of the senior
ity list if they wanted to transfer to Trails He explained
the differences between the Union s and the Association s
contracts in detail i 2 About six or seven drivers trans
ferred from Transit to Trails at that time
IV ANALYSIS AND DISCUSSION
A Single Employer Status of Respondent
The evidence establishes that Transit and Trails consti
tute a single integrated enterprise Thus Sidney Kuchm
the president of both companies establishes the labor re
lations policies of both businesses Ronald Kohn is the
vice president of operations of Transit and Trails
Kuchm and Kohn together negotiate contracts and ad
minister the grievance procedure for both organizations
Kenneth Kuchm is vice president of Transit and Trails
I Kohn testified that it took 2 months of preparation to effect the
change in operations which took place on September 27
e L E R a holding company which has a controlling interest in Tran
sit, owns the buses Rosalyn Kuchin the owner of L E R is the wife of
Sidney Kuchm the president of Transit and Trails Trails leased the
buses from L E R
9 These are the Hightstown to New York runs.
io The elimination of those runs is not alleged as an unfair labor prat
tice
i i In fact, no Transit employee had been laid off at the time of the
hearing
i' The collective bargaining agreement between Transit and the Union
provides for a grievance procedure which culminates in arbitration 12
paid holidays, hospitalisation , medical and dental benefits , a pension plan
up to 5 weeks paid vacation, 3 days bereavement pay a uniform allow
ance jury duty pay Christmas and safety bonuses and a guarantee of 40
hours work per week, and premium pay for split runs
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover Trails was formed by Transit both compa
nies share common facilities and they interchange unit
and other employees
I believe that the evidence is therefore clear and I find
that the four criteria for determining the existence of a
single integrated enterprise are met (1) interrelation of
operations (2) common management (3) centralized con
trol of labor relations and (4) common ownership or fi
nancial control i 3
B The Alleged 8(a)(1) and (5) and 8(d) Violations
1 Findings
Section 8(d) of the Act states that
the duties [to bargain regarding wages hours
and other terms and conditions of employment]
shall not be construed as requiring either party to
discuss or agree to any modification of the terms
and conditions contained in a contract for a fixed
period if such modification is to become effective
before such terms and conditions can be reopened
under the provisions of the contract
I believe that the decisions in Los Angeles Marine
Hardware Co 14 and Milwaukee Spring Division 15 are
controlling as to the facts in this case and are therefore
dispositive of the issues raised herein
Both cases involved a factual setting quite similar to
that involved here The employers in both cases request
ed economic relief from their respective unions because
of the high labor costs in their collective bargaining
agreements the unions declined to so modify the agree
ments and the employers then without the consent of
the unions relocated bargaining unit work during the
term of the existing collective bargaining agreements
from their unionized facility to their nonumomzed facile
ty and discharged or laid off their union employees who
had been performing such work
In both cases violations of Section 8(a)(1) and (5) and
Section 8(d) were found
In Los Angeles Marine the Board specifically held that
the requirement of Section 8(d) that a modification of an
existing contract may be made only upon the consent of
the other party is not excused either by subjective
good faith or by the economic necessity of maintaining
viability of an employers operation 16 In enforc
ing the Boards order the Ninth Circuit Court of Ap
peals stated that an employer cannot alter mandatory
contractual terms during the effective period of the
agreement without the consent of the union and that
such a repudiation [of the contract which violated the
Act] is not excused because the employer acted in good
faith or was motivated solely by economic necessity 17
In Milwaukee Spring the Board applying the similar
facts therein to Los Angeles Marine found that the em
ployer,
13 Radio Union v Broadcast Service 380 U S 225 256 (1965)
14 235 NLRB 720 (1978) enfd 602 F 2d 1302 (9th Ctr 1979)
10 265 NLRB 206 (1982)
16 235 NLRB at 735
17 602 F 2d at 1307
even though it bargained with the Union about
its decision to relocate and is willing to bargain
about the effects of its decision by deciding with
out the consent of the Union to transfer its assem
bly operations and to lay off unit employees at its
Milwaukee facility during the term of its collective
bargaining agreement in order to obtain relief from
the labor costs imposed by that agreement acted in
derogation of its bargaining obligation under Sec
tion 8(d) and hence violated Section 8(a)(1)
and (5) of the Act 18
In the instant case the evidence is clear that Respond
ent transferred work performed by Transit employees
the Hightstown to New York runs to employees em
ployed by Trails during the term of the Transit Union
contract without the consent of the Union Respondent s
purpose in transferring the work is obvious-to avoid the
high labor costs imposed by its collective bargaining
agreement with the Union
Thus in March June and July Respondent requested
economic relief from the Union Specifically it requested
a 1 month delay in payment of the March 15 wage raise
the use of part time employees to eliminate the payment
of premium time for commuter runs and a freeze on the
payment of wages and pension contributions Kohn also
mentioned the possibility that Trails employees would
perform the Hightstown to New York runs When the
Union rejected Respondents requests and proposals the
Company immediately in July began to prepare for the
implementation of the precise modifications of the con
tract rejected by the Union The employees of Trails
who received lower wages on commuter runs because
their Association contract did not provide for the pay
ment of premium pay for commuter runs then began
performing the Hightstown to New York runs on Sep
tember 27
I accordingly find and conclude that by transferring
the Hightstown to New York runs from Transit employ
ees to Trails employees and by transferring the Transit
employees to the New Brunswick garage Respondent at
tempted to accomplish indirectly what it could not legal
ly do directly-the modification of the terms of the
Transit employees existing contract and therefore Re
spondent s actions are violations of Sections 8(a)(1) and
(5) and 8(d) of the Act
The General Counsel further asserts that Respondent
unlawfully transferred charter work from Transit to
Trails beginning in July I do not agree The evidence es
tabhshes that although Trails began to perform more
charter work than Transit beginning in August such in
crease was attributable as testified by Respondents wit
nesses to the fact that 10 new MCI lavatory equipped
buses were obtained by Trails in July and placed in serv
ice in August Trails had historically performed charter
work and the assignment of those buses to Trails was
therefore proper In addition customers requested the
new buses when placing their charter orders and the as
signment therefore was made to Trails Although Transit
Is 265 NLRB 206 210
SUBURBAN TRANSIT CORP
also did charter work and had certain lavatory equipped
buses it only had one or two such buses available for
charter work and it did not have the new MCI buses
Moreover certain customers requested certain employees
for charters The employees requested were employees
of Trails who had transferred from Transit before any of
the events at issue here occurred is
I therefore find and conclude that Respondent did not
unlawfully divert charter work from Transit to Trails as
alleged by the General Counsel
2 Respondents arguments
Respondent argues that Section 8(d) s prohibition
against unilateral midterm modifications of a contract
was not violated because no actual term of the collec
tive bargaining agreement was in fact modified by it
and it continued to pay the Transit drivers according to
its contract I reject this argument This contention is er
roneous because the violation here is the relocation of
bargaining unit work without the Unions consent in
order to avoid the cost of the labor agreement as found
in Los Angeles Marine and Milwaukee Spring No conten
tion was made in those cases that any actual term of the
Union s contracts was in fact changed When the Union
herein rejected Respondents proposed contract modifi
cations Respondent in effect instituted those changes by
implementing cost saving measures-the removal of
Transit employees from the Hightstown commuter
runs-thereby preventing them from earning premium
pay This clearly constituted a midterm modification of
the contract
Moreover although it is true that the Transit drivers
transferred to New Brunswick were receiving the con
tractually guaranteed 40 hours per week and lost no
regular pay due to the transfer nevertheless it is quite
clear that the work traditionally performed by Transit
drivers-the Hightstown to New York runs-was re
moved from them and transferred to the Trails drivers
who performed such work at lesser rates In addition as
a result of the transfer Transit drivers could no longer
bid on the Hightstown to New York runs or receive pre
mium pay on such runs Thus although the minimum 40-
hour contractually guaranteed amount of work is still
provided to employees the contract also provides for the
payment of premium pay which Transit drivers can no
longer enjoy because of the removal of the Hightstown
runs Respondent was very concerned with the high cost
of its commuter runs when it first proposed that part
time employees be used and it attributed its financial dis
tress mainly to such commuter operation By circum
venting its contract with the Union thereby eliminating
the use of Transit drivers for the Hightstown runs Re
spondent unlawfully achieved its objective the modifica
tion of the Transit Union contract
Respondent also argues that the management rights
clause of the Transit Union contract permitted the trans
19 Employee Thomas Whyte testified that he transferred from Transit
to Trails in February 1982 in order to do more charter work for which
he was paid more than when be was employed by Transit He performed
charter work for Rutgers University when employed by Transit and was
requested by that school to do its charter work when later employed by
Trails
19
fer of employees to the New Brunswick garage The
clause states
The Union recognizes the right of the Company to
exercise all functions of management including the
determination of the type and quantity of service to
be rendered the control over and assignment of
equipment and other property used in the operation
of the service the scheduling and assignment of
work the determination of the size of the work
force and the control over the work force mclud
mg the right to hire promote demote transfer and
discipline or discharges for proper cause The
Union shall retain the right to contest any action of
management in accordance with the appropriate
provisions of this contract
Respondent further notes that no driver has ever had
the right to work out of any particular garage and the
effect upon the transferred Transit drivers is de mmimis
because the two garages are only 15 miles apart
As the Board observed in Milwaukee Spring the clause
cited above is a general reservation of rights to manage
ment with respect to its operations However there is no
language in the clause which expressly grants to Re
spondent the right to change the location of part of its
operation in order to avoid the comparatively higher
labor costs imposed by the Transit contract Contractual
waiver of a statutory right must be clear and unmistak
able The language allegedly establishing that a waiver
has beem made must be explicit 20
The contract containing no explicit language per
mitting Respondent to transfer a part of its oper
ations during the term of the contract without the
Union s consent we cannot find that the Union has
waived its statutory right to object to Respondent s
decision to transfer its assembly operations and to
lay off unit employees as a consequence in order to
avoid the contractual labor costs 21
Respondent also alleges that the Union by its conduct
has waived its right to object to the September 27
changes The evidence establishes that in 1968 Transit
operated a shuttle comprising about 20 buses for Rut
gers University from its New Brunswick garage In
order to remain competitive and due to the high labor
costs paid to Transit drivers Transit transferred the Rut
gers operation to Ham] Corporation a nonunion compa
ny organized by Transit in 1968 to undertake this oper
ation
In addition in 1979 Transit operated a run to Atlantic
City New Jersey from its New Brunswick garage In
that year Respondent asked the Union to modify its con
tract to provide for a flat 11 hour pay rate The Union
refused and Respondent Official Kohn spoke to its em
ployees at the South Plainfield garage who are represent
ed by the same union but who are in a separate unit in a
20 Tunken Roller Bearing Ca P NLRB 325 F 2d 746 751 (6th Cir
1963) cent denied 376 U S 971 (1964)
21 Milwaukee Spring Division 268 NLRB 601 (1984)
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
separate garage performing different routes under an
other collective bargaining agreement The South Plain
field employees agreed to the flat rate and the work was
transferred from New Brunswick to South Plainfield 22
No grievance or complaint was filed by the Union to
such removals of work from its jurisdiction
I am unable to find a waiver based on these incidents
There was no evidence of what effect if any the trans
fer of the Rutgers work 14 years before the instant trans
fer had on the Transit employees 23 As to the 1979 trans
fer it is apparent that Transit employees performed the
Atlantic City run from New Brunswick for a short time
and the transfer of work was between two bargaining
units represented by the same Union This is distinct
from the situation herein in which the Transit work was
transferred to employees represented by the Association
The union faced with the company s practice over
the years might well have remained quiescent until
such time as it was seriously dissatisfied with the
formula [fixing the proportion of profits to the
union employees] The Board therefore was not
bound to find the existence of an implied agreement
that the formula might be altered by the company
without affording the union an opportunity to bar
gain 24
I reject Respondents further contention that the
Union unreasonably delayed making any objections to
the changes The Union was first informed of the im
pending changes on September 13 They were not put
into effect until September 27 Respondent was certainly
aware in March June and July of the Union s rejection
of any proposed modification of the contract some of
which proposals Respondent implemented on September
27 Although neither the Union nor any employee filed
any grievance relating to the September 27 changes the
Union promptly filed the instant unfair labor practice
charge on October 4 attached to which was a lengthy
dissertation of the alleged facts involved It therefore
cannot be said that the Union consented to the Septem
ber 27 changes by its filing of the charge 1 week later 25
This case is distinguishable from University of Chica
go2a relied on by Respondent In that case the court
held that the employeer s midterm decision to transfer
custodial work from one bargaining unit to another was
not attributable to a desire to avoid the provisions of the
collective bargaining contract but was made to improve
the quality of the work involved 27 Thus that case is in
IIY The New Brunswick drivers alone performed the Atlantic City runs
for I or 2 weeks Then the New Brunswick and South Plainfield drivers
did the work together and finally the South Plainfield drivers alone did
those runs
2 No evidence was presented as to the management rights clause or
other terms of the contract then in effect
94 Leeds & Northrup Ca v NLRB 391 F 2d 874 878 (3d Cir 1968)
25 Sec 10(b) of the Act provides that no complaint shall issue based on
any unfair labor practice occurring more than 6 months poor to the filing
of a charge
28 210 NLRB 190 (1974) enf denied 514 F 2d 942 (7th Cir 1975)
27 The Board in Milwaukee Spring rejected a similar reliance on Uni
versity of Chicago 268 NLRB 610 fn 13
applicable to the Los Angeles Manne and Milwaukee
Spring rationale that such midterm relocations are unlaw
ful because they are in effect a repudiation of the terms
of the agreed upon contract because their intent is to
avoid the higher labor costs of the contract covering the
aggrieved unit s employees
C The Alleged 8(a)(1) and (3) Violation
The General Counsel concedes that there is no mde
pendent evidence here of antiunion motivation to prove
Respondents discriminatory conduct Rather the Gener
al Counsel argues that Respondents conduct is ether
ently destructive of employee interests under the theory
of NLRB v Great Dane Trailers 28 pursuant to which
conduct may be found to be a violation of Section
8(a)(3) even in the absence of proof of an antiunion mo
tivation and even if the employer introduces evidence
that the conduct complained of was motivated by busi
ness considerations
Respondent asserts that the September 27 changes
were not inherently destructive of employee rights es
sentially because unlike Los Angeles Marine and Milwau
kee Spring where the employers conduct was found to
be inherently destructive no discharges or layoffs of
Transit employees occurred those employees still re
ceive a guaranteed 40-hour workweek and the garage to
which they were transferred New Brunswick is only 15
miles from the Hightstown garage their former location
Thus Respondent argues that pursuant to Great Dane
the effect on the employees rights is comparatively
slight and an antiumon motivation must be proved
since it has produced evidence of legitimate and substan
tial business reasons for its conduct at issue
I am unable to agree with Respondent The fact that
Los Angeles Marine and Milwaukee Spring both involved
discharges or layoffs of employees does not mean that
other conduct of an employer cannot violate Section
8(a)(3) Thus Great Dane Trailers cited by those cases
did not hold that an employers conduct can only be ri
herently destructive of important employee rights if em
ployees are discharged or laid off Great Dane Trailers of
course involved a situation in which the employer re
fused to pay accrued vacation benefits to returning strik
ers while announcing an intention to pay such benefits
to nonstrikers The Court stated that conduct which
carries with it unavoidable consequences which the em
ployer not only foresaw but which he must have intend
ed bears its own mdicia of intent and is therefore inher
ently destructive of important employee rights
I believe that Respondents conduct is inherently de
structive of important employee rights By unilaterally
transferring the Hightstown to New York operation
from the Transit drivers to the Trails drivers and by
transferring all the Transit drivers to the New Brunswick
garage Respondent thereby unlawfully modified in mid
term its contract with the Union by removing therefrom
the possibility that those drivers could bid on the runs
transferred or receive premium pay for such runs As
the Board has stated
28 388 U S 26 (1967)
. SUBURBAN TRANSIT CORP
[A] clear repudiation of the contract's wage provi-
sion is not just a mere breach of the contract, but
amounts , as a practical matter, to the striking of a
death blow to the contract as a whole, and is thus,
in reality, a basic repudiation of the bargaining rela-
tionship. We believe ..the jurisdiction granted us
under the Act clearly encompasses not only the au-
thority but the obligation to protect the statutory
process of collective bargaining against conduct so
centrally disruptive to one, of its principal func-
tions-the establishment and maintenance of a
viable agreement on wages.29-
Moreover, Respondent's conduct here has the effect of
inhibiting its employees' right to representation by the
Union and punishing them because their collective-bar-
gaining agent lawfully refused to modify, on request, its.
contract. Thus, such conduct, in making the midterm
modifications of the contract, carried with it the "un-
avoidable consequences"-the adverse effect on the
Transit employees-which Respondent foresaw and in-,
tended. -
Furthermore, it is apparent that the nine Transit driv-
ers -resigned from that company and joined Trails in Sep-
tember 1982 only because of the Respondent's unfair
labor practices. Respondent correctly observes • that the
elimination of the 14 commuter runs, from Hightstown,
which is not alleged to be unlawful, had the effect of re-
ducing opportunities for some work among the Transit
employees. Notwithstanding that, the reduction in work
was substantially magnified by the transfer of the work
formerly done by Transit to Trails employees. Thus, Re-
spondent Official Kilcoyne sought out those employees
on the bottom of Transit's seniority list in September to
solicit their resignations , knowing full well that if they
remained at Transit, given the reduction in work caused
by the transfers, their opportunities for work would be
extremely limited. Thus, as a result, their resignation
from Transit caused them to surrender their membership
in the Union and the added benefits of the union con-
tract. 3 °
I accordingly find and conclude that Respondent vio-
lated Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent's Suburban Transit Corp. and Suburban
Trails, Inc. are each employers engaged in commerce
within the meaning of 'Section 2(2), (6), and (7) of the
Act, and collectively constitute a single integrated busi-
ness enterprise and a single employer within the meaning
of the Act.
29 Oak Cliff-Golman Baking Co, 207 NLRB 1063, 1064 (1973 ), enfd.
505 F.2d 1302 (5th Cir 1974), cert . denied 423 U S 826 (1975)
30 Certain employees testified that they transferred to Trails in Sep-
tember in order to do more charter work and thus receive higher pay for
such work than they would have received with Transit . Nevertheless if
they or other employees who did not testify performed commuter work
they would have received more money under the union contract and
they also would have had to give up other, greater benefits provided in
the union contract . In this regard , Respondent did, in fact, cause the reas-
signment of Transit employees to positions at Trails which were lesser
paying positions , as alleged in par 21 of the complaint
21
2. United Transportation Union and its Local No. 1589
is a labor organization within the meaning of Section
2(5) of the Act. -
3. The following unit is a unit appropriate for purposes
of, collective bargaining:
All motor coach operators employed by Suburban
Transit Corp. at its New Brunswick and Hight-
stown locations, but excluding all office clerical em-
ployees, professional employees, guards and super-
visors as defined in the Act, and all other employ-
ees.
4. Respondent, by deciding without the Union's con-
sent to reassign certain of its Hightstown operations from
employees of Suburban Transit Corp. to Suburban Trails,
Inc. during the term of the collective-bargaining agree-
ment between Suburban Transit Corp. and the Union be-
cause of the comparatively higher labor costs under that
agreement , has unlawfully modified the terms and condi-
tions of that agreement , which are mandatory subjects of
bargaining, in violation of Sections 8(a)(1) and (5) and
8(d) of the Act.
5. By reassigning certain of its Hightstown operations
work formerly performed by employees of Suburban
Transit Corp. to the employees of Suburban Trails, Inc.
and by transferring all the drivers of Suburban Transit
Corp. from the Hightstown garage to the New Bruns-
wick garage, Respondent removed from the drivers of
Suburban Transit Corp. the right to bid on certain
Hightstown runs , and receive premium pay for such
runs, and modified other terms and conditions of such
employees' employment, which had the effect of inhibit-
ing its employees' right to representation by the Union
and punishing them because the Union lawfully refused
to modify its contract, in violation of Section 8(a)(1) and
(3) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Respondent has not violated the Act by allegedly
transferring charter work from Suburban Transit Corp.
to Suburban Trails, Inc. .
THE REMEDY
Having found that Respondent engaged in . certain
unfair labor practices, I shall recommend that it be or-
dered to cease and desist therefrom, and that it take cer-
tain affirmative action to effectuate the policies of the
Act.
Since I have found that Respondent violated Section
8(a)(1) and (5) of the Act, I shall recommend that it re-
scind its decision to reassign certain of its Hightstown
operations from drivers employed by Suburban Transit
Corp. to Suburban Trails, Inc. and that it restore the
status quo ante by returning the Hightstown runs so
transferred to employees of Suburban Transit Corp.
Since I have found that Respondent violated Section
8(a)(1) and (3) of the Act by transferring the drivers em-
ployed by Suburban Transit Corp. to the New Bruns-
wick garage, thereby removing from them the opportuni-
ty to bid on certain of its Hightstown operation runs and
to earn premium pay on such commuter runs, and by
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
otherwise changing their terms and conditions of em
ployment I shall recommend that the employees em
ployed by Suburban Transit Corp be made whole for
any loss of earnings suffered by reason of the discrimma
tion against them from September 27 1982 and that the
employees who transferred from Suburban Transit Corp
to Suburban Trails in September 1982 be made whole
from the date of their transfer in September 1982 with
interest in the manner prescribed in F W Woolworth
Co 90 NLRB 289 (1950) and Florida Steel Corp 231
NLRB 651 (1977) See generally Isis Plumbing Co 138
NLRB 716 (1962)
In addition inasmuch as the general pick conducted
in September 1982 and any picks conducted thereafter
were tainted by the Respondents unfair labor practices I
shall further recommend that Respondent be ordered to
conduct a general pick pursuant to the terms of the col
lective bargaining agreement between Suburban Transit
Corp and the Union such pick to include all work pre
viously performed at the Hightstown garage by employ
ees of Suburban Transit Corp
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend
edsi
ORDER
The Respondent Suburban Transit Corp and Subur
ban Trails, Inc New Brunswick New Jersey their off
cers agents successors and assigns shall
1 Cease and desist from
(a) Deciding without the consent of United Transpor
tation Union and its local No 1589 to reassign certain of
its Hightstown operations from employees of Suburban
Transit Corp to employees of Suburban Trails Inc
during the term of the collective bargaining agreement
between Suburban Transit Corp and the Union because
of the comparatively higher labor costs under that agree
ment
(b) Transferring the drivers of Suburban Transit Corp
from the Hightstown garage to the New Brunswick
garage thereby removing from the drivers of Suburban
Transit Corp the right to bid on certain of its Hight
stown runs or receive premium pay for such runs or
other terms and conditions of the collective bargaining
agreement
(c) Failing and refusing to apply to all employees in
the aforesaid collective bargaining unit all terms and con
ditions of the current collective bargaining contract
absent the consent of United Transportation Union and
its Local No 1589
Si If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
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 pur
poses
(d) In any like or related manner interfering with re
straining or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the purposes of the Act
(a) On request bargain collectively with United Trans
portation Union and its Local No 1589 with respect to
its decision to reassign certain of its Hightstown oper
ations from employees of Suburban Transit Corp to em
ployees of Suburban Trails Inc
(b) Transfer back to the Hightstown garage the em
ployees of Suburban Transit Corp who were transferred
from that facility to the New Brunswick garage on Sep-
tember 27 1982
(c) Restore to its employees employed by Suburban
Transit Corp the work formerly performed by them at
the Hightstown garage
(d) Maintain in full force and effect and apply the
terms and conditions of the current collective bargaining
agreement between Suburban Transit Corp and the
United Transportation Union and its Local No 1589 to
all employees in the collective bargaining unit set forth
above
(e) Conduct a general pick pursuant to the terms of
the collective bargaining agreement between Suburban
Transit Corp and the Union such pick to include all
work previously performed at the Hightstown garage by
employees of Suburban Transits Corp
(f) Make whole the employees employed by Suburban
Transit Corp for any loss of earnings suffered by reason
of the discrimination again st them from September 27
1982 and make whole the employees who transferred
from Suburban Transit Corp to Suburban Trails Inc in
September 1982 from the date of their transfer in Sep-
tember 1982 in the manner set forth above in the section
entitled The Remedy
(g) Post at its facility at Hightstown and New Bruns
wick New Jersey copies of the attached notice marked
Appendix 32 Copies of the notice on forms provided
by the Regional Director for Region 22 after being
signed by the Respondents authorized representative
shall be posted by the Respondent immediately upon re
ceipt and maintained for 60 consecutive days in conspic
uous places including all places where notices to employ
ees are customarily posted Reasonable steps shall be
taken by the Respondent to ensure that the notices are
not altered defaced or covered by any other material
(h) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re
spondent has taken to comply
92 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 Na
tional Labor Relations Board shall read Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation
al Labor Relations Board
SUBURBAN TRANSIT CORP., 23
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Trails, Inc. in September 1982, ' from the date of their
transfer in September 1982.- _
SUBURBAN TRANSIT CORP. AND SUBUR-
BAN TRAILS, INC.
The National Labor Relations 'Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT decide without the consent of United
Transportation Union and, its Local No. 1589 to reassign
certain of our Hightstown operations from employees of
Suburban Transit Corp. to employees of Suburban Trails,
Inc. during the term of the collective-bargaining agree-
ment between Suburban Transit Corp. and the Union be-
cause of the comparatively higher, labor costs under that
agreement. •
WE WILL NOT transfer the drivers of Suburban Transit
Corp. from the Hightstown garage to the New Bruns-
wick garage, thereby removing from the drivers of Sub-
urban Transit Corp. the right to bid on certain of the
Hightstown runs or receive premium pay for such runs,
or other terms and conditions of the collective-bargain-
ing agreement.
WE WILL NOT fail or refuse to apply to all employees
in the collective-bargaining unit set forth in the collec-
tive-bargaining agreement between Suburban Transit
Corp. and United Transportation Union and its Local
No. 1589 all terms and conditions of the current collec-
tive-bargaining contract, absent the consent of United-
Transportation Union and its Local No. 1589.
WE WILL NOT in any like or, related manner interfere
with, restrain or coerce our employees in the exercise, of
the rights guaranteed them in Section 7 of the Act.
WE WILL.bargain collectively with United Transporta-
tion Union and its Local No. 1589 with respect to our
decision to reassign certain of our Hightstown operations
from employees of Suburban Transit Corp. to employees
of Suburban Trails, Inc. •
WE WILL transfer back to the Hightstown garage the'
employees of Suburban Transit,Corp. who were trans-
ferred from that facility to the New Brunswick garage.
WE WILL restore to employees employed by Suburban
Transit Corp. the' work formerly performed by them at
the Hightstown garage. -
WE WILL maintain in full force and effect and apply,
the terms and, conditions of the current collective-bar-
gaining agreement between Suburban Transit Corp.. and
the United Transportation Union and its Local No. 1589
to all employees in the collective-bargaining unit set
forth in such agreement. .
WE WILD conduct a general ' ' pick, pursuant to the •
terms of the collective-bargaining agreement between
Suburban Transit Corp. and the Union, such pick shall
include all work previously performed at the Hightstown
garage by employees of Suburban Transit Corp.,
WE WILL make whole the employees employed. by
Suburban Transit Corp. for any loss of earnings suffered
by reason of the discrimination against them from Sep-
tember 27, 1982, and make whole the employees who
transferred from Suburban Transit Corp. to Suburban
William F. Grant, Esq., Newark , New Jersey , for the
General Counsel. •
Alfred J. Hill, Esq. (Wilentz, Goldman & Spitzer, Esq.),
Woodbridge , New Jersey ; for the Respondent.
,SUPPLEMENTAL DECISION
PRELIMINARY STATEMENT
STEVEN DAVIS , Administrative Law Judge . On June
30, 1983, I issued my original decision in this proceeding.
Thereafter , while the decision was pending before the
Board , on January 23 , 1984, it issued its supplemental de-
cision in Milwaukee Spring Division , 268 NLRB 601
(1984) (Milwaukee Spring II) which it overruled its origi-
nal decision in Milwaukee Spring 1 , 265 NLRB 206
(1982). .
On May 9 , 1984, the General Counsel filed with the
Board a motion to dismiss complaint , relying on Milwau-
kee Spring H. On May 18, 1984, the Union filed with the
Board a brief in opposition to the motion to dimiss. On
June 6 , 1984,, Respondent filed with the Board a brief in
support of the General Counsel's motion to dismiss and
in opposition to the Union's brief.
On July 18 , 1984, the Board remanded this proceeding
to me for_ consideration and preparation of a supplemen-
tal' decision and denied the motion to dismiss with leave
to renew it before me.
Thereafter , all parties were provided an opportunity to
file statements of position, motions, and/or memoranda
of law , and counsel for the General Counsel, Respond-
ent, and the Union filed briefs .- Subsequently, Respondent
filed , without opposition , a letter-reply to the briefs filed
by the General Counsel and the Union. All of the docu-
ments filed by the parties have been duly considered in
the preparation of this supplemental decision.
Brief Statement of the Facts
A full statement of the facts is contained in my origi-
nal decision . Briefly stated, Suburban Transit (Transit)
had a contract . with ,United Transportation Union and its
Local 1589 (Union). During the term of the contract
Transit advised the Union that it was in financial distress
and needed wage and pension concessions ,, and wanted
to use part -time instead of full -time employees for certain
work . The Union rejected the, proposals , and thereafter
all - Transit drivers working at the Hightstown garage
were transferred to.- the New Brunswick garage, and
drivers employed by Suburban ' Trails , Inc. (Trails) con-
tinued to operate from the Hightstown garage and per-
formed work there formerly done • by Transit drivers:
Trails employees were represented by the Suburban
Trails Drivers Association. . ' .
. This case was tried, briefed, and decided on a Milwau-
kee Spring theory of violations-that midterm relocation
of unit work from ' a contract covered facility to another
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
facility was under Milwaukee Spring II not a contract
modification proscribed by Sections 8(aX5 ) and 8(d) of
the Act
Positions of the Parties
The General Counsel abandoning his motion to dis
miss contends that the facts in the instant case are distin
guishable from those of Milwaukee Spring and urges that
the record herein supports a finding that Respondent
violated the Act as set forth in the complaint and as I
found in my original decision Specifically the General
Counsel essentially argues that (a) a work preservation
clause in the contract prevented Respondent from relo-
cating the work from New Brunswick to Hightstown
without the Union s consent and by doing so Respond
ent violated Sections 8(a)(5) and 8(d) of the Act (b) the
change effected was a reassignment which caused a re
duction in wages and benefits to the reassigned employ
ees and not a relocation of work and (c) the actions
taken were inherently destructive of employees rights
and violated the contract
The Union contends that Trails is the alter ego of
Transit and that therefore all employees employed by
Transit and Trails constitute a single appropriate collec
tive bargaining unit The Union thus argues that as the
alter ego Trails was obligated to honor the Transit con
tract and by not doing so-through the unrestricted use
of part time drivers for the Hightstown runs after the
September 27 1982 change-Respondent repudiated arti
cle (a) XV of the contract which provides for limitations
on the use of part timers and article (b) III by shifting
drivers from Transit to Trails thereby disturbing the
contractual system of picks These actions according to
the Union, violated Sections 8(a)(5) and 8(d) of the Act
Respondent argues that Milwaukee Spring II requires
dismissal of the complaint inasmuch as (a) no work pres
ervation clause is contained in the contract and (b) Re
spondent bargained in good faith with the Union con
cerning the relocation of its operations Respondent also
urged that the Union waived its right to now participate
in the case by its counsels failure to appear at the hear
ing
Analysis and Conclusions
The work preservation issue
The General Counsel argues that article XV section 1,
of the contract is a work preservation clause
Suburban shall have the right to hire part time
drivers
It is the Company s intention to maintain at least
the current level of 90 full time drivers provided
that the current level of business continues The
Company further intends to enlarge the full time
work force
Part time drivers will be used only when there is
an insufficient number of full time drivers to cover
all of the available work In all cases the full time
drivers shall have their choice between line and
charter work provided that there are part time dnv
ers available to cover all open line work In all
cases full time drivers shall have their choice of the
biggest paying pieces of work The Company will
also attempt to satisfy full time regular run opera
tors in the assignment of extra work providing suf
ficient operators are available to cover all open
work
The limit of work available to full time drivers
will be governed only by the hours of service
regulations of the Department of Transportation
and not by the availability of part time drivers
He contends that the clause (a) preserved for the Tran
sit drivers the work they had historically done including
the Hightstown commuter runs and (b) guaranteed that
90 full time Transit employees would be maintained The
General Counsel argues further that the transfer of the
Transit employees from Hightstown to New Brunswick
and the performance of the Hightstown commuters runs
by Trails workers (which work was formerly done by
Transit employees) constitutes a violation of the above
quoted section of the contract He accordingly reasons
that because Respondent failed to obtain the Union s
consent before relocating the work from New Brunswick
to Hightstown it violated Sections 8(a)(5) and 8(d) of the
Act
In Milwaukee Spring II the Board noted that Section
8(d) of the Act provides that when a collective bargain
ing agreement is in effect and an employer seeks to
modif[y] the terms and conditions contained in
the contract the employer must obtain the union s con
sent before implementing the change and that before
the Board may hold that respondent violated Section
8(d), the Board must first identify a specific term con
tamed in the contract that the company s decision to re
locate modified (268 NLRB at 601)
The General Counsel relying on that holding asserts
that article XV set forth above is such a contractual
term which was modified by Respondents decision to
relocate or reassign work from Transit to Trails drivers
to be performed at Hightstown He states that that sec
tion is essentially a work preservation clause because it
sought to preserve work for the 90-person Transit work
force At first glance the argument is attractive The Su
preme Court has held that a lawful work preservation
agreement must have as its objective the preserva
tion of work traditionally performed by employees repre
sented by the union NLRB v International Long
shoremen s Assn AFL-CIO 447 U S 490 (1980)
However article XV does not by its terms identify
the type of work to be preserved or prohibit the subcon
tractmg of certain work as in traditional work preserva
tion clauses See National Woodwork Mfrs. Assn. v
NLRB 386 U S 612 (1967) Rather article XV consti
tutes nothing more than Respondents intention to
maintain a minimum of 90 drivers provided that the
current level of business continues It is thus a condi
tional expression that a minimum manning level would
be maintained It does not state that the Transit bargain
mg unit had the right to perform any specific type of
work
Milwaukee Spring II in discussing the type of contrac
tual clause needed to affect the company s decision to re
SUBURBAN TRANSIT CORP
locate its assembly operations , said that such a provision
would "require bargaining unit work ; to remain in Mil-
waukee ." Similarly, the University of Chicago, 514 F.2d
942, 949 (7th Cir. 1975), relied on by the Board, held
that: _
unless transfers are specifically prohibited " by the
bargaining agreement, an employer is free to trans-
fer work out of the bargaining unit if:" (1) the em-
ployer complies with Fibreboard Paper Products v.
N.L.R.B,, 379 U.S. 203, 85 S.Ct. 398, 13 L.Ed.2d
233 (1964), by bargaining in good faith to impasse;
and (2) the employer is not motivated by anti-union
animus , Textile Workers v. Darlington Mfg. Co., 380
U.S. 263, 85 S.Ct. 994, 13 L.Ed.2d 827 (1965). "
Accordingly, the contractual clauses, which Respond-
ent's decision' to relocate the work would have to
modify, must include a provision requiring (a) the Tran-
sit unit work to remain in New Brunswick, or, (b) that
Hightstown Transit .unit work be performed by Transit
unit employees. No such clause appears in the collective-
bargaining agreement.
The, General Counsel urges, however, that the bar-
gaining- history leading up to the negotiation of article
XV demonstrates that the Union. was concerned that
Trails operations at Hightstown would adversely affect
the work available for Transit Drivers. 'Respondent's of-
ficial Kohn assured the Union that that was not the case.
The General Counsel relies on this evidence and 'article
XV's provision that "part time drivers will be used only
when there is an insufficient number of full time drivers
to coverall of the available work," to argue for a finding
that article XV constituted an "express guarantee" that a
90-driver complement would be maintained to service
the routes in existence when the contract was negotiated
and that the full-time Transit employees would be en-
sured of work prior to the employment of part-time
(Trails) drivers. The September 1982 change permitted
the Trails drivers to have the exclusive right to perform
the Hightstown work formerly done by Transit employ-
ees there. The General Counsel reconciles the clause
"provided the current level of business continues," by ar-
guing that inasmuch as Transit and Trails are single em-
ployers, the level of the business of the Company as a
whole remained constant, and therefore Respondent was
still obligated to honor its 90-driver commitment: Wheth-
er or not that argument has merit, there were only 85
dri vers in the Transit unit on August 18, more than 1
month before the changes at issue here occurred. Thus,,
the, September 27 changes did not cause a reduction in
the contractual 90-person unit. In addition, the facts that
(a) there was apprehension by the.Union as to the effect
on the Transit drivers of the Trails operation, and (b)
there was an incidental effect upon the Transit drivers of,
the changes, does not convert article XV into a work-
preservation clause, which prohibited the relocation' with-
out the Union's consent.
The Board has said that it is not its function to create
an "implied work-preservation clause," Milwaukee Spring
11 (268 NLRB at 601).
25
There has . also been , no interference with the wage
provisions of the contract , '. as. in ' Oak Cliff-Golman
Baking Co., 207 NLRB 1063 ( 1973), enfd . 505 F . 2d 1302
(5th Cir . 1974), cert . denied 423 U.S. 826 . (1975). In that
case , the company reduced the wages and salaries of its
employees, effecting a "clear repudiation of the-con-
tract 's wage provision ." 207 NLRB at 1064 . In the in-
stant case , as in Milwaukee Spring , after. unsuccessfully at-
tempting _ to have the Union agree to wage concessions,
Respondent left those provisions intact . The Transit em-
ployees who transferred - to Trails of course suffered a re-
duction of wages and benefits because they left the cov-
erage of the Transit-Union contract and became covered
by the Trails-Association agreement . As I have previous-
ly found in my original decision, the transfer of those
employees , from the Transit to the Trails payrolls was so-
licited by , Respondent 's official . However, inasmuch as
no violation has occurred by virtue of Respondent's
transfer of the work to Trails drivers - at Hightstown, or
by its other September 1982 changes , no violation can be
found based upon the transfer of those drivers from the
Transit to the .Trails payroll.
There- being no prohibition in the contract on relocat-
ing work during its term, or , preserving work for the
Transit drivers, ' Respondent only , had an obligation to
bargain , in good faith concerning its decisions to transfer
the work to the Trails drivers to be performed at Hight-
stown, and transfer the Transit drivers employed there to
New Brunswick .- Respondent has met that obligation. In
March 1982, Respondent 's official , Kohn; met with and -
informed the 'Union that it was in financial' distress, and
requested that the Union agree to a 1-month deferral in`
the'payment of its March 15 scheduled wage raise. The
Union refused . On June 14,-Respondent advised the
Union of a greater economic crisis and suggested the use
of part-time employees ' and a freeze on ' wages and pen-
sion contributions, and the possibility that - certain work
would be transferred to' Trails, which ' would take over
the Hightstown to New York run, and the withdrawal of
Transit from ' the Hightstown garage, with Trails per-
forming the work left there . ' Other cost-saving means
were discussed by the parties . In- July, meetings were
held at which Respondent made formal proposals : (a) the
replacement of full-time drivers with part-timers for
commuter trippers and (b),the elimination-of spread time
and guarantee and a 1-year freeze of wages and pension
contributions . These proposals` were rejected by the
Union. - `
,The changes which are the subject of this dispute were
then implemented in September . It is clear that Respond-
ent bargained in good faith concerning , the decision to
transfer the. work of Trails employees , and the other
changes effected in September ." " In , July, as set forth
above, 'the -possibility " that , the operations , would be
changed in the manner in which they ultimately were
was disclosed to, the Union. No counterproposals to
these "possibilities" were made by the Union , which re-
jected the formal proposals. offered by Respondent. The
formal proposals,,too, involved a change that was appar-
ently implemented by, Respondent-the replacement of
full-time drivers with part-timers for -commuter trippers.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Even if what occurred here is viewed as a reassign
ment of work and not as a relocation as suggested by
the General Counsel it is clear that under Milwaukee
Spring II the same standard applies in both instances
The alter ego argument
The Union urges that Trails is the alter ego of Transit
and that a single bargaining unit consisting of all of Re
spondent s (Transit and Trails) drivers is appropriate and
that accordingly Trails was obligated to honor the Tran
sit Union contract and by not doing so it violated the
Act
This theory was not advanced by the General Counsel
in his complaint at trial or embraced by him in his
posthearing or supplemental briefs The suggestion of a
single bargaining unit (a) contradicts the complaint alle
gation that the Transit drivers constitute a separate ap
propriate collective bargaining unit and (b) is inconsistent
with the General Counsels theory that article XV of the
Transit contract preserves work for that unit and there
fore Respondent could not properly assign such work to
the Trails drivers unit The Union raised its alter ego
contention in its original charge filed in this proceeding
but it was not contained in the complaint The fact that
the General Counsel did not allege the alter ego status of
Trails indicates that he considered and rejected the
Union s allegation in its charge It is clear that the Union
cannot now seek to amend the complaint Section 3(d) of
the Act gives the General Counsel final authority over
the investigation of charges and issuance of com
plaints Penntech Papers Inc 263 NLRB 264 265
(1982) Winn Dixie Stores 224 NLRB 1418 1420 (1976)
NLRB v Raytheon Co 445 F 2d 272 274 (9th Cir
1971) 1 therefore reject the Union s arguments
Conclusion
Milwaukee Spring being very closely factually related
to this case is as I found in my original decision con
trolling as to the facts and dispositive of the issues
herein Inasmuch as the Board in Milwaukee Spring II
held that an employer s unilateral relocation of unit work
during the term of a contract did not violate the Act I
consider myself bound by that decision I can find noth
ing in the Transit Union contract which prohibits the re
location of the work to the Hightstown garage or its per
formance by Trails drivers Thus Respondent was free to
make such relocation or reassignment without first ob
taming the Union s consent In addition Respondent has
satisfied its obligation to bargain in good faith concern
ing its relocation reassignment decisions Moreover there
is no independent evidence of union animus
I will therefore recommend that the complaint be dis
missed in its entirety
On the foregoing I issue the following recommended'
ORDER
The complaint herein is dismissed in its entirety
1 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations, the findings conclusions, and recommended
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 pur
fpm