Sullivan Motor Delivery

National Labor Relations Board - Board Decisions

Jan 24, 1991

301 N.L.R.B. 285 (N.L.R.B. 1991)

285
301 NLRB No. 37
SULLIVAN MOTOR DELIVERY
1 On November 1, 1987, the Teamsters International Union was readmitted
to the AFL–CIO. The caption has been amended to reflect that change.
2 We deny the Respondent’s motion for an order incorporating briefs to the
administrative law judge as part of the record. We find no good cause here
to make an exception to the Rules. See Board’s Rules and Regulations, Sec.
102.45(b).
We also deny the General Counsel’s motion to reject the Respondent’s ex-
ceptions and supporting brief.
3 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 554 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
In rejecting the Respondent’s reliance on First National Maintenance Corp.
v. NLRB, 452 U.S. 666 (1981), as justification for contracting out its oper-
ations without offering to bargain over the decision, the judge found
Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964), to be apposite. We need not,
and do not, enter the debate over the applicability of these decisions to the
facts of this case. Where, as here, the Respondent’s decision to subcontract
its work and lay off its employees is motivated by antiunion reasons, the Re-
spondent is not exempt from a bargaining obligation under First National
Maintenance. Strawsine Mfg. Co., 280 NLRB 553 (1986).
The judge’s citation of the following cases is corrected: Auto Fast Freight,
272 NLRB 561, 563 (1984), enfd. 793 F.2d 1126 (9th Cir. 1986), and Western
Temporary Services v. NLRB, 821 F.2d 1258, 1266 (7th Cir. 1987).
4 In Member Oviatt’s view, there may be limited circumstances, not present
here, in which an employer’s financial inability to pay may constitute a de-
fense to an allegation that it unilaterally and unlawfully ceased contractually
required payments to union benefit funds. To make this defense successfully,
an employer must establish that it continued to recognize—and did not repu-
diate—its contractual obligations. An employer must also prove that its non-
payment was followed by its request to meet with the union to discuss and
resolve the nonpayment problem. In Member Oviatt’s opinion, in so doing an
employer demonstrates its adherence to the contract and the bargaining proc-
ess.
Sullivan Motor Delivery, Inc., and Sullivan Motor
Delivery, Inc., Debtor-in-Possession and/or
Springer Leasing, Inc., and/or ACF, Inc., Joint
Employer and/or Successor and/or Single Em-
ployer and/or Alter Ego and Teamsters ‘‘Gen-
eral’’ Local 200, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO1
and Truck Drivers, Oil Drivers, Filling Station
and Platform Workers Union, Local No. 705,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, AFL–CIO. Cases 30–CA–
9154 and 30–CA–9343, formerly 13–CA–26106
January 24, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On November 8, 1988, Administrative Law Judge
Burton S. Kolko issued the attached decision. The Re-
spondent filed exceptions, a supporting brief, and a
motion for an order incorporating briefs to the admin-
istrative law judge into the record. The General Coun-
sel filed a brief in support of the administrative law
judge’s findings, an opposition to the Respondent’s
motion, and a motion to reject the Respondent’s excep-
tions and supporting brief. The Respondent also filed
a memorandum in opposition to the General Counsel’s
motion to reject its exceptions and supporting brief.
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, briefs, and motions,2
and has decided to affirm the judge’s rulings, find-
ings,3 and conclusions except as modified.
1. The judge concluded that the Respondent failed
to bargain in good faith and that by prematurely de-
claring impasses in bargaining and by unilaterally im-
plementing its last contract proposals to Local 200 and
to Local 705 it violated Section 8(a)(1) and (5) of the
Act. We agree with the judge that the Respondent
failed to bargain in good faith and prematurely de-
clared impasses in bargaining, but we do not adopt his
finding that the Respondent unilaterally implemented
its last contract proposals. The Respondent instead uni-
laterally implemented new terms and condition of em-
ployment by continuing its operations under a subcon-
tracting arrangement with AFC, Inc.
2. In support of his finding that the Respondent
failed to bargain in good faith and prematurely de-
clared impasses in bargaining, the judge refers to testi-
mony by Andrew Schumi, Local 705’s accountant. In
his decision, the judge related Schumi’s opinion of the
economic concessions that the Respondent needed in
order to retain financial stability. To the extent, if any,
that the judge relied on this testimony, we disavow
that reliance. The judge also relied on testimony by
Local 705’s attorney, Lisa Moss, regarding the January
16, 1986 bargaining session. The judge found that
Moss’ testimony was corroborated by Robert
DiFrances, the Respondent’s primary shareholder. The
record does not support that finding. We find that
these errors are harmless.
3. About September 23, 1985, and continuing there-
after, the Respondent unilaterally discontinued pay-
ments to Local 200’s and Local 705’s health and wel-
fare and pension funds, and failed to remit to Local
200 dues already ‘‘checked off.’’ The evidence pre-
sented to prove these unilateral actions was
uncontested. The judge failed to rule on the complaint
allegations that this violated Section 8(a)(5). The Gen-
eral Counsel requests the Board to correct the judge’s
omission. We agree that the violation has been proved
and find that the Respondent by its unilateral actions
has violated Section 8(a)(1) and (5) of the Act.4
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order it to cease
and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
286 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Any additional amounts applicable to the delinquent payments shall be
paid in accordance with the criteria set forth in Merryweather Optical Co., 240
NLRB 1213, 1216 fn. 7 (1979), and will be computed at the compliance stage
of these proceedings.
Having found that the Respondent violated Section
8(a)(1) and (3) of the Act by unlawfully laying off its
employees, we shall order it to reinstate these employ-
ees to their former jobs or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and privi-
leges previously enjoyed, discharging if necessary any
replacements, and make the employees whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against them, by payment to each
employee the amount he normally would have earned
from the date of his layoff until the date of the Re-
spondent’s offer of reinstatement, less net earnings.
Backpay shall be computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest to be computed in accordance with New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).
Employees for whom no employment is immediately
available shall be placed on a preferential hiring list
for employment as positions become available. They
will be hired before other persons are hired for the
work. Priority of placement on the list is to be deter-
mined by seniority or some other nondiscriminatory
method.
Having further found that the Respondent violated
Section 8(a)(1) and (5) of the Act by failing and refus-
ing to make contributions to fringe benefit funds, we
shall order the Respondent to make whole its unit em-
ployees by making all contributions that have not been
paid and that would have been paid but for the Re-
spondent’s unlawful discontinuance of the payments.5
In addition, the Respondent shall reimburse the unit
employees for any expenses ensuing from the Re-
spondent’s failure to make the required payments, as
set forth in Kraft Plumbing & Heating, 252 NLRB 891
fn. 2 (1980), enfd. mem. 661 F.2d 940 (9th Cir. 1981),
the amounts to be computed in the manner set forth in
Ogle Protection Service, 183 NLRB 682 (1970), with
interest as prescribed in New Horizons for the Re-
tarded, supra.
We shall also order the Respondent to remit to
Local 200 dues already ‘‘checked off.’’ Interest on the
dues owed is to be computed in the manner prescribed
in New Horizons for the Retarded, supra.
ORDER
The National Labor Relations Board orders that the
Respondent, Sullivan Motor Delivery, Inc., and Sul-
livan Motor Delivery, Inc., Debtor-in-Possession and/or
Springer Leasing, Inc., and/or ACF, Inc., Joint Em-
ployer and/or Successor and/or Single Employer and/or
Alter Ego, Milwaukee, Wisconsin, and Chicago and
Skokie, Illinois, and their officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Bargaining in bad faith with Teamsters Locals
200 and 705.
(b) Changing the terms and conditions of employ-
ment of the unit employees without notification to and
bargaining with the Locals about such terms and con-
ditions.
(c) Discriminatorily laying off its bargaining unit
employees.
(d) Unilaterally laying off unit employees without
providing the Locals with notice and opportunity to
bargain about the decision to lay off employees and
the effects of the decision.
(e) Failing to make contributions to Local 200’s and
Local 705’s health and welfare and pension funds.
(f) Failing to remit the checked-off dues to Local
200.
(g) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights that
are guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Locals as the exclu-
sive representatives of the employees in the units con-
cerning terms and conditions of employment, including
the laying off of unit employees and the effects and,
if understandings are reached, embody the under-
standings in signed agreements.
(b) On request of the Locals, reinstate any term and
condition of employment of the bargaining unit em-
ployees that the Respondent unilaterally changed after
unlawfully declaring impasses in negotiations, includ-
ing any changes in the terms and conditions of em-
ployment resulting from the layoffs and the subsequent
failure to rehire employees, or the failure to rehire em-
ployees at the level of the terms and conditions of em-
ployment in effect at the time the impasses were de-
clared.
(c) Make the unit employees whole for any loss of
benefits resulting from the unilateral changes in their
terms and conditions of employment as set forth in the
remedy.
(d) Make the unit employees whole by paying all
contractually required health and welfare and pension
fund contributions, as provided in the collective-bar-
gaining agreements, that have not been paid and that
would have been paid in the absence of the Respond-
ent’s unilateral discontinuation of payments about Sep-
tember 23, 1985, and thereafter, with interest.
(e) Remit to Local 200, with interest, the dues that
it had already checked off but failed to remit.
(f) Reinstate the laid-off employees to their former
jobs or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their
287SULLIVAN MOTOR DELIVERY
6 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
seniority or other rights and privileges previously en-
joyed, discharging, if necessary any replacements, and
make the employees whole for any loss of earnings
and other benefits suffered as a result of the discrimi-
nation against them, with interest.
Employees for whom no employment is immediately
available shall be placed on a preferential hiring list
for employment as positions become available, as set
forth in the remedy.
(g) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(h) Post at its Milwaukee, Wisconsin, and Chicago
and Skokie, Illinois facilities copies of the attached no-
tice marked ‘‘Appendix.’’6 Copies of the notice, on
forms provided by the Regional Director for Region
30, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent im-
mediately upon receipt and maintained for 60 consecu-
tive 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, defaced, or cov-
ered by any other material.
(i) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply. For the purpose of de-
termining or securing compliance with this Order, the
Board, or any of its duly authorized representatives,
may obtain discovery from the Respondent or its offi-
cers, agents, successors, or assigns, or any person hav-
ing knowledge concerning any compliance matter in
the manner provided by the Federal Rules of Civil Pro-
cedure. The discovery shall be conducted under the su-
pervision of the United States court of appeals enforc-
ing this Order and may be had upon any matter rea-
sonably related to compliance with this Order, as en-
forced by the court.
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
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT refuse to recognize and bargain with
the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Locals
200 and 705, AFL–CIO, as the collective-bargaining
representatives in Milwaukee and Chicago respectively
of:
All drivers excluding office and clerical employ-
ees, foremen and assistant foremen, engineers and
draftsmen, timekeepers, guards, and watchmen.
WE WILL NOT change wage rates or other terms and
conditions of employment of employees in the above-
described bargaining units without prior notification to
and bargaining with the Locals as the representatives
of those employees.
WE WILL NOT unilaterally lay off employees without
providing the Locals with notice and opportunity to
bargain about the decision to lay off employees and
the effects of that decision.
WE WILL NOT fail to make contractually required
payments to the Locals’ trust funds.
WE WILL NOT fail to remit to Local 200 checked-
off dues.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain with the
Locals as the exclusive bargaining representatives of
the employees in the above-described units with re-
spect to rates of pay, wages, hours, and other terms
and conditions of employment and, if understandings
are reached, we will embody the understandings in
signed agreements.
WE WILL, on request, bargain with the Locals con-
cerning the decision to lay off employees on January
24, 1986, and the effects of that decision.
WE WILL reinstate and make whole those employees
laid off on January 24, 1986, for any loss of pay or
other employment benefits suffered as a result of our
unlawful conduct, plus interest.
WE WILL make the unit employees whole by paying
all arrearages to health and welfare, and pension funds,
as provided in the collective-bargaining agreements,
which would have been paid in the absence of our uni-
lateral discontinuation of the payments.
288 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL remit to Local 200 checked-off dues, with
interest, which we deducted but failed to remit.
SULLIVAN MOTOR DELIVERY, INC., AND
SULLIVAN MOTOR DELIVERY, INC.,
DEBTOR-IN-POSSESSION AND ACF, INC.,
AND SPRINGER LEASING, A SINGLE EM-
PLOYER
DECISION AND ORDER
BURTON S. KOLKO, Administrative Law Judge. The Re-
spondent (stated in the collective singular for reasons later
discussed) conducted a small package delivery service in
Milwaukee and between Milwaukee and Chicago. The terms
and conditions of employment were covered under collec-
tive-bargaining agreements with the labor organizations noted
in the case caption. Local 200 and Local 705 represented
driver/employees in Milwaukee and Chicago, respectively;
and Local 200 also represented mechanics in Milwaukee.
The gravaman of the complaint is that after the collective-
bargaining agreements expired, Respondent failed to bargain
in good faith for their renewal, unilaterally imposed terms
and conditions of employment, discriminatorily laid off its
drivers, and restructured the corporate arrangements to oust
the Unions and to avoid bargaining with the Unions. Re-
spondent denies the material allegations in the complaint. I
find that the Respondent did fail to bargain in good faith,
unilaterally did implement terms and conditions of employ-
ment, did discriminatorily lay off its drivers, and did restruc-
ture its operations to oust the Unions and to avoid bargaining
with the Unions, all in violation of Section 8(a)(1), (3), and
(5) of the Labor Management Relations Act, 29 U.S.C. §
158.
I. THE FAILURE TO BARGAIN
Larry Springer was a mechanic with Sullivan’s Motor De-
livery, Inc., and he represented the members of Local 200 as
their union steward. In 1984 he became president of Sulli-
van’s. The bargaining conduct that is the subject of or the
background for the complaint began after Springer became
president and, in fits and starts, occupied 1985 and 1986.
Gerald Sprague represented Local 200, the Milwaukee
union, in its dealings with Sullivan’s. Anticipating the expi-
ration on March 31, 1985, of the bargaining agreements for
drivers and mechanics employed by Sullivan’s, he sent out
a standard contract reopener letter and a form notice to the
Federal Mediation and Conciliation Service on January 18,
1985. (It happens that the reopening of the lead mechanic
contract was moot since it had applied only to Springer when
he was in the bargaining unit; when he became president of
Sullivan’s there was no other mechanic to be covered by that
contract.) Almost simultaneously, a reopener letter was sent
out by Local 705, the Chicago drivers’ union, along with a
form notice to the FMCS. In response, Springer sent re-
opener letters to both locals on January 29, 1985.
In response to Springer’s reopener letters he received a let-
ter from the National Freight Industry Negotiating Com-
mittee (Feb. 4, 1985), requesting individual negotiations, and
on March 6, 1985, from Raymond Fularczyk,
secretary/treasurer of Local 200 specifically seeking negotia-
tions on March 13, 1985. On March 11 Springer wrote to
Sprague that he was not available for negotiations on March
13. He stated that Sullivan’s was having financial trouble,
and that he would contact Sprague ‘‘within the next week to
submit our proposal.’’ A similar letter was sent to Local 705
in Chicago, according to Springer, but there is no evidence
that it ever was sent.
Springer did not get back to the locals until June 13. The
contracts had expired on March 31, and Springer’s proposals
to the Unions were sent with the observation that the Com-
pany’s financial straits made it critical that the parties meet
as soon as possible. No meeting took place, although Spring-
er testified that he made some telephonic inquiries about the
status of his proposals. But in August Sullivan’s received
substantial insurance premium increases, causing it to borrow
$10,000 from the principal stockholder, Joseph DiFrances, to
make up a downpayment for financing the insurance pre-
miums. That same day, August 22, 1985, Springer wrote to
Sprague, and to Ed Coco for Local 705 in Chicago, that it
was necessary to rescind the June 13 contract proposal and
to substitute a new proposal. In the Unions’ views, the June
proposal was a substantial regression from the terms of the
expired contract, and the August proposal was even more re-
gressive.
Local 200 scheduled a meeting of its membership to con-
sider both proposals. Sprague recommended rejection of
both, and the vote was to reject. Sprague and the employees
who testified stated that the Union was prepared to make
some concessions but not to the extent that Sullivan’s was
proposing, which in the case of the August proposal was a
50-percent reduction in economic benefits. Wages for the
Milwaukee drivers, Local 200, were to be reduced by $5.08,
and for Local 705 drivers in Chicago, by $5.50, from the re-
spective levels of $10.58 and $11.10.
A month after the Company’s revised contract proposal
was sent to the Unions, Sullivan’s filed a petition for protec-
tion from creditors under Chapter 11 of the Bankruptcy
Code. On September 27 Sullivan’s bankruptcy counsel,
Cunningham, wrote to each local to advise of the bankruptcy
filing, enclosing financial data and attaching a set of pro-
posals that would modify the bargaining agreements to pro-
vide the necessary financial relief for Sullivan’s. Respondent
had also filed an application with the court for rejection of
the collective-bargaining agreements. Bankruptcy Judge
James Shapiro issued his decision on November 4, 1985, de-
nying the application because the bargaining agreements be-
tween Sullivan’s and the Unions had expired and were not
in force. The decision noted that ‘‘after the parties have bar-
gained with each other to impasse, the debtor employer can
make unilateral changes consistent with proposals made to
and rejected by the Union.’’ It was from this point that Re-
spondent acted to rid itself of its collective-bargaining agree-
ments through conduct that violated the Act.
Two weeks later, on November 19, Springer wrote to
Sprague and Coco inviting each to bargaining sessions at dif-
ferent times on December 3 at Sullivan’s offices. Included
were contract proposals that drastically altered both the ex-
pired bargaining agreement and the prior proposals from Re-
spondent.
1. Bargaining with the Milwaukee local
A bargaining session on the November 19 revised contract
proposal from Sullivan’s occurred on December 6, 1985,
289SULLIVAN MOTOR DELIVERY
with Local 200. The December 6 bargaining session turned
out to be the only one that was held by Sullivan’s with the
Milwaukee Local. While Sullivan’s claims that there was a
second, I can find no record support for the holding of an-
other bargaining session, let alone evidence as to what tran-
spired. Sprague could only remember the one on December
6; Springer’s testimony on this point was inconsistent, a
minicosm of his opportunistic style of testimony throughout
this protracted proceeding. When he was testifying initially
as a Rule 611(c) witness under the General Counsel’s exam-
ination, he could recall no sessions. Later, when examined by
his principal counsel, Enich, Springer testified that there
were two meetings with Local 200, one with the younger
DiFrances present and an earlier one where all that occurred
was Sprague saying ‘‘no’’ and mocking Respondent to get
out of business if things were so bad. It turns out that
Springer was mixing up the one bargaining session in Mil-
waukee with one in Chicago, to which we shall turn soon.
The single bargaining session held December 6 between
Sullivan’s and Local 200 occurred at Sprague’s office with
Springer representing Sullivan’s, whose other counsel,
Charles Johnson, was introduced as there to take notes. At
the hearing Johnson did not testify, so the account of the
meeting devolves from Springer’s confused testimony and
Sprague’s memory, which although demonstrably limited,
impressed me as sincere and is to be credited over Spring-
er’s. Because Springer’s proposal of November 19 departed
so completely and fundamentally from every aspect of the
expired collective-bargaining agreement, Sprague’s approach
was to go down it line-by-line to determine exactly what Sul-
livan’s was proposing and, of equal importance under the cir-
cumstances, why. The topics discussed included a drastic
wage reduction to $6 per hour; a 4-day workweek; reduction
of holidays from eight to six; the elimination of the general
conditions clause, which concerned Sprague because it would
allow Sullivan’s to subcontract out at its sole discretion (a
departure from the limited subcontracting that had been done
at the Union’s sufference); the replacement of the Local 200
health and welfare plan with Sullivan’s own plan (the details
of which were never shown to the Union); the elimination
of Local 200’s pension plan and the substitution of a profit-
sharing plan; the elimination of the grievance-arbitration plan
and the funeral leave clause, which puzzled Sprague because
the current contract had no funeral clause to amend. The
meeting ended with Sprague asking Springer to send a de-
tailed statement explaining why Sullivan’s needed the pro-
posed changes and with Springer agreeing to do so. On Janu-
ary 6, 1986, Springer sent a letter to Sprague in apparent ful-
fillment of that undertaking.
The letter explained that Sullivan’s was seeking the elimi-
nation of clauses 2, 3, and 6 of article II of the Union’s secu-
rity clause because they ‘‘would sanction non-negotiated
changes.’’ This puzzled Sprague, puzzled the General Coun-
sel, and puzzles me since clause 2 provides simply that in
the event of any favorable changes in the law, the union
could have a more favorable union-security clause; clause 3
merely permits the Union to act as a source of potential em-
ployees; and clause 6 did not exist in the signed copy of the
agreement. Regarding the proposed elimination of the general
conditions clause, Springer repeated that those provisions
would be inconsistent with its right to subcontract. With re-
gard to the elimination of the Union’s health and welfare
plan, Springer again stated that he wanted to replace the
plan, without providing the specifics of the proposed new
plan. Again, the proposal for replacing the pension plan with
a profit-sharing plan was merely stated without providing
any detail. No explanation was offered for the proposed
elimination of the seniority clause and the grievance-arbitra-
tion procedure. Nor was any explanation offered for the pro-
posed elimination of such previously undisputed clauses as
emergency reopening, governmental approval, protection of
rights, and recognition and bargaining.
Springer wrote to Sprague on January 10, announcing that
the January 2 proposal (which was the explanation of the
Nov. 19 proposal) was his final offer, and demanding a re-
sponse from Local 200 by January 17. Sprague called
Springer on January 16 to request until January 20 to re-
spond because Fularczyk was not available for Sprague to
consult. On January 20 Sprague called Springer, the sub-
stance of which Sprague sent the next day by letter to
Springer requesting negotiations because:
You related to me that the Company may be shutting
down their operation effective this week and all em-
ployees may be laid off; however, you could not give
me a final date or position, but said that you would
contact me by the end of this week, that being January
24, 1986.
Although Springer denied receiving that letter, General
Counsel’s Exhibit 2(x) is the return receipt for the letter, ac-
knowledged by Springer’s signature.
On January 24 Sullivan’s notified all employees that they
were being laid off as of that date because it could no longer
afford the insurance premiums and the vehicles’ mainte-
nance. If any employees were going to be rehired, it would
be ‘‘according to modifications contained in our final con-
tract offer.’’ A separate notice to unionized employees de-
clared that the parties were at an impasse and that the com-
pany was making unilateral changes effective Monday, Janu-
ary 20, 1986. The changes described were those that were
listed in Sullivan’s November 19 proposal to Local 200. Sul-
livan’s reserved the right ‘‘to make further and conditional
changes modifying existing contract provisions.’’
On January 27, Respondent, after notifying customers of
the change in the structure but not the content of its oper-
ations, resumed operating by subcontracting pickup and de-
livery operations to ACF, Inc., a company Springer had ac-
quired in late 1984 and to which Sullivan’s had been subcon-
tracting on an occasional basis since 1981. On that occa-
sional basis, and permanently after January 27, 1986, Sulli-
van’s acted as a broker for customers with the actual haulage
done by ACF, employing ‘‘independent contractors’’ who
were paid solely on a percentage-of-revenue basis.
2. The bargaining with the Chicago local
The Chicago local, Local 705, was so insulted by Sulli-
van’s November 19, 1985 proposal that Counsel Lisa Moss,
now involved because of Sullivan’s bankruptcy petition,
wrote to Springer on December 5 that she considered the
proposal to have been made in bad faith, but that she was
willing to bargain when Sullivan’s was prepared to submit a
good-faith proposal. Moss earlier had retained an accountant,
Schumi, to evaluate the financial records that Sullivan’s had
290 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
been required to submit concerning its bankruptcy petitions,
and Schumi had advised that the substantial wage reduction
that had been proposed by Sullivan’s was excessive and that
a 10-percent wage reduction for all employees was far more
reasonable. It is no surprise, then, that when receiving the
November 19 proposal, which was the same one that Local
200 had received and thus bore no logical relationship to the
different contract with Local 705, Moss and Coco could not
understand what Sullivan’s was up to. Moreover, as with the
proposal to Local 200, the proposal to modify the expired
contract substantially was without a rationale or explanation
of the changes being sought, some of which were in areas
that had never been a problem. Thus, when Sullivan’s attor-
ney, Cunningham, sought a meeting with Local 705 for De-
cember 3, a date on which Local 705 Counsel Moss was un-
available, Moss wrote back on December 5 advising of her
desire to bargain when good-faith proposals were on the
table.
A month passed, during which Springer and Coco sup-
posedly talked on the phone but, since neither of them could
remember, we will assume that what they talked about was
inconsequential. On January 2, 1986, Springer sent a pro-
posal to Local 705 analogous to that which Local 200 had
received and, like the one to Local 200 the proposal went
even farther than the November 19 proposal in undoing
Local 705’s expired collective-bargaining agreement. On Jan-
uary 10, a followup letter was sent by Springer to Local 705
stating, ‘‘Our proposal dated January 2, 1986, was and is our
final offer.’’
Until this point no bargaining session had occurred with
Local 705. On January 16 one was held. Present for Re-
spondent were Springer and Robert DiFrances, representing
his father’s interest. Present for Local 705 was Attorney
Moss, and from the local, Coco, Navigado, Ligurotis, and
Canneno. Moss testified that the sole discussion of the con-
tract was as follows:
Mr. Springer started the meeting by stating that they
were looking for $6 per for drivers currently employed
and $5 an hour for new hires. I stated at that time
that—or I reminded him that during the bankruptcy
proceedings, the testimony of Andy Schumi and that he
had testified that the $5 and $6 proposal—that that was
an excesssive proposal and that we were willing to ne-
gotiate, however, we did not feel that the $5 and $6
proposal was a reasonable one.
Mr. Ligoritious stated that the Union was willing to
negotiate, but that the proposal was excessive. I also
believe that Mr. Coco stated during that meeting that
the Union was willing to bargain but the proposal was
excessive.
Mr. Springer said in response that he had to have the
$5 of $6—$5 and $6 rate and I said there was nothing
to talk about. I said we were willing to give conces-
sions, however not of the nature that he was looking for
and he and Mr. DeFrancis got up and walked out (Tr.
2372–2373).
Moss’ account was corroborated by DiFrances, who testified
straightforwardly and credibly, although he candidly was un-
certain about the meaning of some of the notations he made
during his note-taking at the meeting. DiFrances could not
corroborate Springer’s oft-repeated assertion that the Local
705 officials told Springer to just close up shop and get out
of Chicago.
DiFrances’ notes indicated that the meeting was a short
one, about 30 minutes, and after Springer insisted that he
needed a $5 or $6 rate to be viable and it was clear that the
Union would not agree to that rate and said there was noth-
ing more to discuss, then he and Springer agreed that there
was nothing more to do, and left. A week and a day later,
January 24, Respondent handed to the drivers notices of lay-
off, and sent one to Local 705 identical to that sent to Local
200. A week later, Sullivan’s began brokering to its cus-
tomers, using ACF, Inc., for the delivery services.
3. The Respondent’s conduct
The months during the summer were financially difficult
for Sullivan’s. Continuing losses caused it to focus on the
most acute areas of financial vulnerability, escalating insur-
ance payments and high cost union contracts. Springer recog-
nized the former was a fact of life that had to be lived with,
but the latter, while equally galling, could be dealt with. The
union contracts that had expired, but which were still de
facto operative, called for a wage rate of just under $12 per
hour, a weekly health and welfare plan payment of $63 per
driver, and a weekly pension plan payment of $24 per driver.
All Respondent could see was cash going out to the drivers
or their unions and insufficient revenue coming in to stem
the outflow. The contract proposals made to the Unions dur-
ing the summer reflected Respondent’s principal concern that
the union contracts be the source of the financial respite it
needed. Wages were to be cut about in half, and health and
pension contributions were to be under Respondent’s direc-
tion. The Unions did not seem in any hurry to push for bar-
gaining on these proposals, since the expired contracts under
which they were operating were far more beneficial, and as
far as the record shows Respondent did not really press the
matter. Instead, Respondent put its hopes for contract ref-
ormation into the legal system, namely, the imprimatur of the
bankruptcy court to reject the collective-bargaining contracts
with the Unions. This failed, but the effort had not been in
vain; for the bankruptcy court outlined a plan that could
work, although doubtless not in the spirit contemplated by
the court. The court advised that once the Respondent had
bargained to impasse with the Unions Respondent would be
free to implement the terms of its last contract proposals. It
is at this point that Respondent’s bargaining conduct lost the
valid purpose of attempting, in good faith, to convince the
inert Unions of the Company’s need for concessions.
Respondent’s proposals of November 19, 1985, and Janu-
ary 2, 1986, were made following the bankruptcy court’s No-
vember 4 observation about the result of an impasse in bar-
gaining. As described above, and like earlier proposals, they
called for slashing wage rates almost in half, and for health
and welfare and pension plan contributions that were of an
undefined amount and under Respondent’s control. More om-
inous were the remaining proposals which, as described
above, seemed to suggest contract reformation as an end in
itself but which bore no apparent or substantial relationship
to the economic relief that Respondent has claimed was its
underlying motivation. Instead, the nitpicking or empty na-
ture of the noneconomic proposals reflects the games-playing
mentality that has permeated Respondent’s conduct toward
291SULLIVAN MOTOR DELIVERY
the Unions and its defense of the General Counsel’s com-
plaint. I sense the guiding hand of counsel in both. Using as
an excuse the Unions’ reopener letters of January 1985, pro-
posing ‘‘to negotiate changes [in the expiring contracts] . . .
making reference to all language, wages, and fringe benefits
modification,’’ the Respondent proposed on November 19 a
complete reformation of the contract; from top to bottom;
subsequently bargained for 30 minutes on each contract; de-
clared an impasse in bargaining; and on the basis of that dec-
laration implemented contract proposals. This course of con-
duct implies very clearly that after November 4 Respondent
had the single-minded purpose of pretending to bargain with
the Unions so that it could effect, in fact, the relief that, in
form, had been denied to it by the bankruptcy court; namely,
the abrogation of its contracts with the Unions. Respondent’s
bargaining was superficial, as opposed to the kind of hard
bargaining that is firm but genuine, Browning Ferris Indus-
tries, 275 NLRB 71 (1985); there was no impasse in negotia-
tions because there had been no real attempt toward the give-
and-take of negotiations that is necessary to precede an im-
passe, Powell Electrical Mfg. Co., 287 NLRB 969 (1987);
and the unilateral imposition of the contract proposals was
made without a lawful impasse having occurred. By failing
to bargain in good faith and by unilaterally implementing its
contract proposals, NLRB v. Katz, 369 U.S. 736 (1962), Re-
spondent has violated Section 8(a)(1) and (5) of the Act.
Respondent challenges these conclusions by shifting the
blame to the Unions, who in Respondent’s scenerio sat
around while Respondent slowly expired, and who encour-
aged, both in Chicago and Milwaukee, that Respondent call
it quits. But this will not wash. To be sure, from the time
of the reopener letters in January until the first bargaining
sessions, a year almost (Local 200) or in fact (Local 705)
had elapsed. But while Respondent beats its breast about the
Unions’ indifference to its economic plight, Respondent’s as-
sertions that it needed economic relief can hardly be ex-
pected to make a union negotiator swoon in this day and age.
It was not until Attorney Moss and Accountant Schumi for
Local 705 got a look at Respondent’s bankruptcy filing data
that some picture began to emerge for them, and even then
it was Schumi’s view that a 10-percent wage concession was
the most that was called for. Respondent found that proposal
laughable, but never bargained on it. All of its efforts were
toward, at most, a $6-wage rate and undefined health and
pension contributions. On these, it never wavered from keep-
ing the Unions in the dark; to this day the economics of
these proposals are uncertain. Perhaps the Unions fiddled
while Respondent withered (to alter the famous metaphor),
but in the face of totally unsupported assertions that a 50-
percent wage cut was needed, it was not their duty to
counterpropose. Thus, their inertia throughout the
prebankruptcy months of 1985, and even Moss’ indignant re-
tort to Respondent in December to come back with a good-
faith proposal, are justified by Respondent’s revolutionary
and unsupported proposals. M&M Building, 262 NLRB 1472
(1982).
Once bargaining was requested, the Unions responded
quickly. This is particularly evident when looking at late
1985. November 19 was the first time that Respondent pro-
posed a date for bargaining. Local 200 responded by meeting
with Respondent 2 weeks later. Because the November 19
proposal was inapplicable to Local 705, that Union did not
have one to review until January 2, after which it met with
Respondent 2 weeks later. Within a further 2 weeks, Re-
spondent had gone out of business only to rise, unlike Laz-
arus, in a new guise. To that we now turn.
II. THE FAILURE TO BARGAIN OVER THE DRIVERS’
LAYOFF AND THE SUBSEQUENT CONTRACTING OUT OF
RESPONDENT’S DRIVING FUNCTIONS
The General Counsel asserts that Respondent acted unilat-
erally in two different fashions, each violative of Section
8(a)(5). The first, discussed above, was the unilateral imple-
mentation on January 24, 1986, effective January 20, 1986,
of the contract proposals it made to Local 200 on November
19 and to Local 705 on January 2. The second action also
taken on January 24, 1986, but effective the next day, was
the layoff of the drivers and mechanics and the resumption
of delivery business on January 27 in the guise of employing
independent contractors who worked for the Springer-owned
entity ACF, Inc. In the General Counsel’s view, whatever the
legal rubric–alter ego, successor, single employer, or joint
employer—the effect is the same: Sullivan’s continued to
pick up and deliver small packages in the Milwaukee-Chi-
cago regions having unilaterally abrogated its collective-bar-
gaining agreements. I agree.
‘‘It seems apparent that Respondent had to do something
to stop its downhill slide. However, Respondent owed a con-
tinuing duty . . . to work with the representative of the em-
ployees in proposing and making changes that affected the
employment of those employees, whatever those changes
may have been.’’ Auto Fast Freight, 272 NLRB 561, 563
(1984), enfd. 793 F.2d 1196 (9th Cir. 1986). Instead of doing
that, the following ensued as related by Sullivan’s bank-
ruptcy counsel, Cunningham (G.C. Exh. 17(e)):
Sullivan’s was, prior to filing the petition and for a
short time thereafter, in the business of delivering small
packages. In order to deliver its packages, Sullivan’s
had up to 18 drivers, all members of the Teamsters
Union, and those drivers caused a severe financial
strain on Sullivans’ overhead. In fact, there was no way
that Sullivan’s could stay in business with such high
labor costs and therefore it went into the Chapter 11.
As part of the program to come out of the 11 Sullivan’s
considered subcontracting its work to others and letting
them deal with the headaches and costs in employing
drivers, etc. After investigating the possibilities of hir-
ing drivers on a percentage basis management decided
to subcontract all the driving. ACF, Inc., a corporation
that already existed and was already being operated by
Springer well before the filing of the petition, agreed to
serve the needs of Sullivan’s at a very favorable rate.
Management and its shareholders decided to pursue that
option.
The upshot of this is that Respondent never really went
out of business. Instead, it made the business decision to
alter its payroll by laying off its drivers and contracting out
its driving functions to another company. It so happens that
Sullivan’s and the other company, ACF, while nominally
‘‘separate entities are actually part of a single integrated en-
terprise so that for all practical purposes [they are] in fact
only a ‘single employer,’’’ Western Temporary Services v.
292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
NLRB, 821 F.2d 1253, 1266 (7th Cir. 1987). We will come
to this shortly. But even assuming arm’s length between
them, it was a violation of Section 8(a)(5) and (1) of the Act
for Sullivan’s to subcontract out its entire means of pro-
viding service to customers and to lay off drivers without
bargaining with the employees’ representatives over that de-
cision and its effects, NLRB v. Advertisers Mfg. Co., 823
F.2d 1086 (7th Cir. 1987), Lapeer Foundry & Machine, 289
NLRB 952 (1988), for it is crystal clear that the sole reason
for deciding to subcontract was the desire to reduce labor
costs and, thus, was a mandatory subject of bargaining, Otis
Elevator Co., 269 NLRB 891 (1984).
Sullivan’s claims that it was forced out of business when
its Chicago office was trashed by a small number of angry,
out-of-control drivers on the day that layoff notices were re-
ceived. But there is not a scintilla of evidence that this was
the Union’s doing. Nor does it explain why the nature of
Sullivan’s Milwaukee operations was changed as well. In
short, that disgusting display by some drivers is immaterial.
It simply played into Sullivan’s hands, as such stupid acts
usually do, by giving Sullivan’s a pretext for what it wanted
to do anyway, get rid of the troublesome and expensive
union drivers en masse. By so doing, Sullivan’s
discriminatorily laid off the employees, thereby violating
Section 8(a)(3) of the Act.
Finally, Respondent relies on First National Maintenance
Corp. v. NLRB, 452 U.S. 666 (1981), as justification of man-
agement’s decision to contract out its operations. But this
case falls more appropriately under Fibreboard Corp. v.
NLRB, 379 U.S. 203 (1964). Sullivan’s was contracting out
all, not part, of its business. There was no redeployment of
capital, no venturing into new business frontiers. The motiva-
tion was strictly economic, to reduce the largest and, by this
action, most easily controlled cause of expenditures, wages.
The effect on employees of losing their jobs was clearly an
adverse one. And the Unions were given no opportunity to
bargain over a decision which so fundamentally and momen-
tously affected the employees they represented. The applica-
bility of Fibreboard is so clear that reliance on First Na-
tional Maintenance borders on the frivolous.
The General Counsel argues further that in fact ACF and
Sullivan’s are, inter alia, a single employer and that, as such,
should both be found in violation of the Act for changing the
terms and conditions of the drivers’ employment without bar-
gaining with their unions. The Board treats two or more re-
lated enterprises as a single employer for the purposes of
holding the enterprise jointly to a single bargaining obliga-
tion or for the purpose of considering liability for unfair
labor practices. ‘‘Single employer status, for the purposes of
the Act, depends on all of the circumstances of the case and
is characterized as an absence of an ‘arms length’ relation-
ship found among unintegrated enterprises.’’ JMC Transport,
283 NLRB 554 (1987). In short, single employer status ‘‘ex-
ists where two nominally separate entities are actually part
of a single integrated enterprise so that for all practical pur-
poses there is in fact only a ‘single employer.’’’ NLRB v.
Browning-Ferris Industries, 691 F.2d 1117, 1122 (3d Cir.
1982).
Springer described the operational duties of each entity
(G.C. Exh. 17(g)):
ACF is controlled by Larry Springer, president of Sulli-
vans. ACF is the company that actually does the pick
up and delivery of parcels, bears the financial burden
of the task, as well as the financial uncertainty of col-
lection, and pays to Sullivans 35% of the total charge
for each package delivered. Sullivans, on the other
hand, is primarily a dispatching and order taking entity.
As Sullivan’s bankruptcy attorney put it, were ACF ‘‘unwill-
ing to continue this current arrangement it is certainly true
that Sullivan’s could not negotiate as favorable an arrange-
ment.’’
Springer himself recruited some Sullivan drivers for ACF
driving. The hiring of ACF drivers occurred at Sullivan’s lo-
cation in Milwaukee, and from that location the drivers were
dispatched as ACF ‘‘contractors.’’ ACF utilized the same
Sullivan’s facility without paying any rent, nor was any ef-
fort made to apportion costs between them. At a different lo-
cation in Milwaukee, drivers arrived to pick up their orders,
allocated by either Springer or Ruth Buttke, the Sullivan dis-
patcher. All direction to the ACF contractor-drivers came
from Springer, the Sullivan dispatchers, or Rose Pozorski,
Sullivan’s vice president and ACF’s president and former
owner.
In Chicago, after the destruction of Sullivan’s office, Sulli-
van’s utilized ACF’s. During the several months until it
found a new office, Sullivan’s paid no rent to ACF. In any
event, ACF had no responsible official in the Chicago office.
The operation there was run by Marshall Steinfeld, a Sul-
livan employee who had dispatched Sullivan’s drivers from
the previous Sullivan’s office.
At Sullivan’s new office in Chicago, actually in Skokie,
ACF drivers reported there and dealt with Steinfeld, still a
Sullivan’s employee. All facilities in Chicago or Skokie,
when called by telephone, were answered ‘‘Sullivan’s Motor
Delivery.’’ All direction to the ACF drivers came from Sulli-
van’s employees. ACF drivers in both Milwaukee and Chi-
cago made pickups and deliveries exclusively for Sullivan’s.
Dispatch, billing, and clerical support for ACF were per-
formed by Sullivan’s and its employees, in fact the same em-
ployees who had performed the service for Sullivan’s in Mil-
waukee. All billing and driver and customer contact were so
performed, although Springer was careful to see that only
ACF letterhead bills were sent out. However, ACF and Sulli-
van’s pickup tickets were used interchangeably.
In light of this operational mish mash I must agree with
the General Counsel’s lament that ‘‘one cannot tell which en-
tity is which, or who was performing services for who[m].’’
So intertwined were the operations of ACF and Sullivan’s
that there can be no question but that they constituted a sin-
gle integrated operational enterprise.
That integration extended also to the management of these
ostensibly separate entities. While Respondent attempted to
place ACF control in the hands of Springer’s wife, June
Mershon, it is clear that Springer managed both. At Sulli-
van’s he handled finances, contracts, daily management, and
the decisions on bankruptcy and driver layoff. His was total
operational and management control, with owner DiFrances
essentially absent except when extreme financial intervention
was requested of him by Springer.
As for ACF, in other forums, Springer signed statements
referring to ‘‘a company called ACF which is controlled by
293SULLIVAN MOTOR DELIVERY
1While the General Counsel’s reply brief refers to ‘‘literally’’ having to pull
Springer’s teeth, doubtless the allusion was figurative since in fact Springer’s
teeth, if not his credibility, remained intact.
Larry Springer, who is also president of Sullivan’s.’’ He con-
ceded that he was operating ACF before Sullivan’s bank-
ruptcy. In this forum, June Mershon became the controlling
force as ostensible president. But she was a figurehead. She
had no prior experience in the small package or delivery
business. She was employed at the Singer Control Company;
in fact, a timecard for her that was introduced by the General
Counsel shows her there ‘‘at the very time she was purport-
edly meeting with potential drivers at the Sullivan facility on
January 27, 1986.’’ (G.C. Br. at 86.) And after supposedly
hiring the contractor-drivers for ACF, only once did she sign
an agreement with the contractor. Either presigned applica-
tions, signed by Rose Pozorski, or ones signed for her by
Larry Springer were used. Agreements were modified by
Springer or by Marshall Steinfeld. All ACF-Sullivan’s ar-
rangements were arranged by Springer. Leases were signed
by Springer. Interstate Commerce Commission paperwork
was signed by Springer. All significant labor relations—bar-
gaining, grievances, establishment of terms and conditions,
and hiring (Mershon’s assertions to the contrary and Spring-
er’s contradictions, evasions, half truths, and denials being
completely incredible),1 were effected by Springer or under
his supervision and direction. In short, all operational man-
agement of ACF was in Springer’s hands. Arrangements be-
tween ACF and Sullivan were made as though they were
separate offices of the same company—there was a total ab-
sence of arm’s length, the most outstanding example being
ACF’s cost-free acquisition of Sullivan’s business, for which
a competitor had been willing to pay $48,000 (essentially for
goodwill and the customer list). In short, ‘‘the only distinc-
tion in the ACF/Sullivan operation was that it was nonunion,
that drivers were paid on a different basis, and some of Sulli-
van’s drivers were terminated.’’ (G.C. Br. at 86.) A clearer
case of a single employer is hard to find. Cf. Neighborhood
Roofing, 276 NLRB 861, 867 (1985).
A further component of this single integrated enterprise is
Springer Leasing, owned by Larry Springer. Incorporated in
January 1987, it utilized contractor-drivers who drove vehi-
cles owned by Larry Springer that were used on behalf of
ACF for Sullivan’s. If the reader has trouble following this
arrangement, it is because drivers were interchanged between
Springer Leasing and ACF as determined by Sullivan’s dis-
patcher, creating so much confusion that one driver, Jarvis,
testified that he did not know he worked for Springer Leas-
ing even though that was the entity paying him. Financial
transactions between Springer, Springer Leasing, and ACF
were as unencumbered as those between family members of
the same household; that indeed is an apt comparison, as at
all times Larry Springer, owner of ACF and Springer Leas-
ing and in operational control of them and of Sullivan’s, was
essentially transacting with himself and with his spouse, June
Mershon, acting as his employee or agent.
What all this shows is the sad, sorry spectacle of the law
being used by literal minded nit-pickers thinking that they
could craft a legitimate scheme to throw out their employees’
unions. Instead of engaging in genuine bargaining to real im-
passe and then implementing the last genuine offer; or once
having made the decision to lay off employees for economic
reasons, bargaining over that decision and its effects, Re-
spondent engaged in surface bargaining and the charade of
farming out its operations to itself in the guise of separate
entities. It is the kind of cleverness that is too cute, more in
the nature of what ‘‘jailhouse lawyers’’ concoct in prison li-
braries. True union bashers would be embarrassed, for the at-
tempt was so obvious and so inartful as to be laughable,
were there no harm. But harm there was, to the jobs of those
Sullivan’s drivers who did not get rehired by ACF, to the
level of economic benefits received by those who did, and
to the concept of respect between employees and employer.
Because this course of conduct was so intentionally discrimi-
natory and its crafting evidences a tendency to read the letter
of the law with extreme literalness, the Board’s standard
remedy to cease and desist ‘‘like or related’’ conduct must
be here broadened to include ‘‘any other conduct’’ that vio-
lates Section 7 rights. For similar reasons, the General Coun-
sel’s request for visitatorial rights in supervising compliance
with the Board’s remedy is granted.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Sections 2(2), (6), and (7) of the Act.
2. The Unions are labor organizations within the meaning
of Section 2(5) of the Act.
3. The appropriate units for collective bargaining within
the meaning of Section 9(b) of the Act are:
(a) All mechanics employed by Respondent at its
Milwaukee, Wisconsin facility, excluding guards and
supervisors as defined in the Act.
(b) All drivers employed by Respondent at its Mil-
waukee, Wisconsin facility, excluding guards and su-
pervisors as defined in the Act.
(c) All drivers employed by Respondent at its Chi-
cago, Illinois facility, excluding guards and supervisors
as defined in the Act.
4. The Unions have been and are the exclusive representa-
tives of all the employees in the units for collective bar-
gaining within the meaning of Sections 9(a) and 8(a)(5) of
the Act.
5. By engaging in surface bargaining with the Unions and
then declaring prematurely that an impasse in bargaining ex-
isted, Respondent failed to bargain in good faith with the
Unions in violation of Section 8(a)(1) and (5) of the Act.
6. By unilaterally implementing new terms and conditions
of employment without agreement having been reached with
the Unions, Respondent violated Section 8(a)(1) and (5) of
the Act.
7. By discriminatorily laying off its employees who were
represented by the Unions, Respondent violated Section
8(a)(1) and (3) of the Act.
8. Respondent is a single integrated enterprise within the
meaning of the Act, comprised of Sullivan’s Motor Delivery,
Inc. and Sullivan’s Motor Delivery, Inc., Debtor-in-Posses-
sion; ACF, Inc.; and Springer Leasing, Inc.
9. The Respondent’s unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]