TLI, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1984

271 N.L.R.B. 798 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TLI, Incorporated and Crown Zellerbach Corpora-
tion and General Teamsters Local Union No.
326 a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Case 4-CA-13033
31 July 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 9 December 1983 Administrative Law Judge
James L. Rose issued the attached decision. The
Respondents filed exceptions and a supporting
brief. The General Counsel filed a brief in answer
to the Respondents' exceptions, and the Charging
Party filed cross-exceptions and a supporting
memorandum, and a brief in response to the Re-
spondents' exceptions.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 2 and
conclusions as modified, and to adopt the recom-
mended Order as modified.
The judge found that Respondent Crown Zeller-
bach (Crown) was a joint employer of the drivers
leased to it by Respondent TLI, and thus was obli-
gated with TLI to restore to the status quo ante
those terms and conditions of employment that he
found were,.unlawfully unilaterally changed. In ad-
dition, the judge ordered that Crown and TLI to-
gether must meet and bargain with the Union.
Crown filed exceptions to the judge's decision,
contending, among other things, that the judge did
not apply the appropriate standard for determining
Crown's joint employer status and that, under the
correct standard, Crown cannot be found to be a
joint employer. We disagree with Crown's asser-
tion that the judge applied an improper standard;
however, after considering the evidence, we de-
cline to adopt the judge's conclusion that Crown
was a joint employer.
I The Charging Party's motion to strike Respondent TLl's exceptions
is denied. Although the exceptions contain no citations of authority and
no supporting brief was filed by TLI, nonetheless, references in the ex-
ceptions to the judge's decision and the record are sufficient to indicate
the findings and conclusions to which TLI is excepting.
2 The Respondents have excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect. Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
271 NLRB No. 128
Crown contends that the analysis to be used in
making joint employer determinations is that set
out in Parklane Hosiery.3 The four factors consid-
ered by the Board in Parklane were: (1) functional
interrelation of operations; (2) centralized control
of labor relations; (3) common management; and
(4) common ownership or financial control. Crown
argues that, inter alia, because Crown and TLI
have neither common management nor common
ownership, they cannot be considered joint em-
ployers.
We find that the judge was quite correct in con-
cluding that Parklane is irrelevant for determining
joint employer status, and that the case applies only
when deciding whether two separate companies
constitute a single enterprise. As noted by the
judge, the appropriate standard for determining
joint employer status was recognized by the Third
Circuit in NLRB v. Browning-Ferris Industries.4
There the court found that, where two separate en-
tities share or codetermine those matters governing
the essential terms and conditions of employment,
they are to be considered joint employers for pur-
poses of the Act. Further, we find that to establish
such status there must be a showing that the em-
ployer meaningfully affects matters relating to the
employment relationship such as hiring, firing, dis-
cipline, supervision, and direction. Laerco Transpor-
tation & Warehouse, 269 NLRB 324 (1984).
In finding that Crown was a joint employer with
TLI, the judge focused on several aspects of their
relationship. The Crown/TLI lease agreement pro-
vides that Crown "will solely and exclusively be
responsible for maintaining operational control, di-
rection and supervision" over the drivers leased to
it, and the judge found that Crown, in fact, exer-
cised this authority. Drivers report daily to the
Crown facility for instructions on deliveries, and
return their trucks there when they are finished.
Mechanical or other problems on the road are re-
ported to Crown rather than TLI. When a driver is
required to work during his vacation, he is notified
by the Crown foreman. All drivers' logs and
records are kept by Crown, and are submitted to
TLI for payroll purposes. The drivers work only
for Crown, and there has never been a transfer of a
driver to another TLI job.
The judge further found that wages and other
economic benefits were almost totally under
Crown's control, and therefore Crown affected the
principal terms and conditions of employment. The
judge based this finding on Crown's presence at
both bargaining sessions between TLI and the
a 203 NLRB 597, amended 207 NLRB 991 (1973).
4691 F.2d 1117 (3d Cir. 1982).
798
TLI, INC.
Union, where Crown representative Struthers out-
lined Crown's economic position and its need to
cut labor costs substantially in order to remain
competitive in its business. The judge indicated
that Crown dictated the maximum acceptable pack-
age TLI could negotiate and still keep Crown as its
customer, and concluded that Crown was a joint
employer.
We disagree. Although Crown may have exer-
cised some control over the drivers, Crown did not
affect the terms and conditions of employment to
such a degree that it may be deemed a joint em-
ployer. The Crown foreman instructs the drivers as
to which deliveries are to be made on a given day;
however, the drivers themselves select their own
assignments, on a seniority basis. 5 The record indi-
cates that Crown neither hires nor fires the drivers
and, contrary to the judge's finding, Crown does
not discipline the employees. When a driver en-
gages in conduct adverse to Crown's operation,
Crown supplies TLI, not the employee, with an
"incident report" whereupon a TLI representative
investigates. Disciplinary notices, or necessary ac-
tions, are issued by TLI. In addition, although acci-
dents on the road are reported to Crown, it is TLI
which investigates and determines whether or nor
the accident was preventable and whether further
action is necessary. Our dissenting colleague would
find that Crown's participation in the daily oper-
ational activities of the drivers constitutes sufficient
control over terms and conditions of employment
to establish that Crown is a joint employer with
TLI. We find, however, that the supervision and
direction exercised by Crown on a day-to-day basis
is both limited and routine, and considered with its
lack of hiring, firing, and disciplinary authority,
does not constitute sufficient control to support a
joint employer finding. See Laerco, supra.
We further reject the judge's conclusion that
Crown controlled the economics of the relationship
and therefore determined the terms and conditions
of employment. Although Struthers attended both
bargaining sessions and outlined his company's po-
sition, there is no evidence that he demanded spe-
cific reductions or that he made particular propos-
als. He did make clear that without transportation
cost savings of approximately $200,000 the lease
agreement with TLI was in jeopardy and that al-
ternate transportation arrangements were being
considered. The specific savings, however, were
left entirely to TLI and the Union to work out.
Thus, it cannot be said that Crown "shared or co-
determined" those matters governing the essential
terms and conditions of employment to an extent
that it may be found to be a joint employer.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, TLI, Incorporated, Newark, Delaware,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
1. Delete all references to Crown Zellerbach
Corporation from the Order's provisions.
2. Substitute the attached notice for that of the
administrative law judge.
MEMBER DENNIS, concurring in part and dissent-
ing in part.
I agree with my colleagues that Respondent TLI
violated Section 8(a)(5), but I cannot agree with
their finding that Respondent Crown Zellerbach is
not a joint employer of the drivers with TLI.
Crown's lease agreement with TLI provides that
Crown "will solely and exclusively be responsible
for maintaining operational control, direction and
supervision over said drivers . . . including, but
not being limited to, scheduling and dispatching of
the drivers, routing instructions, loading and un-
loading procedures, and all other matters relating
to day-to-day private carriage operation of
Crown." As the judge found, not only does Crown
have the authority under the lease to control the
manner and means by which drivers perform, it in
fact does so. For example, drivers report daily to a
Crown foreman to get their instructions concerning
which deliveries are available; when drivers are
unable to make deliveries as scheduled, they report
to a Crown foreman; a Crown foreman contacts a
vacationing driver when it is necessary for the
driver to work; and Crown maintains drivers' logs
and records.
In short, Crown actually exercises the daily
operational control it reserved for itself under the
lease agreement. I would find that Crown main-
tains sufficient control over terms and conditions of
drivers' employment to constitute a joint employer
with TLI, and that it must therefore remedy the
8(a)(5) violations.
6 Seniority is determined by how long a driver has worked at the
Crown facility.
799
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain in good faith
with General Teamsters Local Union No. 326 as
the exclusive bargaining representative of employ-
ees in the following appropriate bargaining unit:
All truckdrivers employed at Crown Zeller-
bach Corporation, Newark, Delaware, plant
excluding all other employees, guards, and su-
pervisors as defined in the Act.
WE WILL NOT unilaterally implement collective-
bargaining proposals or tentative agreements or
other changes in terms and conditions of employ-
ment absent the valid, preexisting impasse in bar-
gaining or the express consent of the Union.
WE WILL NOT bypass the Union and bargain di-
rectly with our employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL, on request, bargain collectively and in
good faith with the Union as the exclusive repre-
sentative of the employees in the above-described
bargaining unit with respect to wages, hours, and
other terms and conditions of employment and on
request embody in a signed agreement any final un-
derstanding reached by the parties.
WE WILL restore to all employees in the above-
described bargaining unit holiday pay at the rate of
10 hours per holiday and the appropriate pay for
the drop and hook work and WE WILL make whole
all employees for any losses they may have suf-
fered as a result of the unilateral change in the
method of paying holiday pay and drop and hook
work pay.
TLI, INCORPORATED
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge. This
matter was tried before me on July 6 and 7, 1983, on the
General Counsel's complaint' alleging the Respondents
I The charge was filed on June 21, 1982, and the complaint issued on
February 28, 1983.
to be joint employers and to have engaged in violations
of Section 8(a)(5) of the National Labor Relations Act,
29 U.S.C. § 151, et seq., by: (a) on or about May 21,
1982,2 bypassing the Charging Party and dealing directly
with employees in the bargaining unit, (b) on or about
May 21 granting employees two additional paid holidays
and quarter of an hour pay for drop-hook work, and (c)
refusing to meet and bargain with the Charging Party
since May 27.
In addition to seeking remedies for the violations al-
leged, at the close of the hearing counsel for the Charg-
ing Party stated that he also seeks restoration of the
status quo ante which would include backpay to all indi-
viduals in the bargaining unit of $2.56 per hour since
May 24. In his brief the General Counsel also proposed
such a remedy. While the evidence does show that com-
mencing May 24 the wage rate of the bargaining unit
employees was reduced from $12.81 per hour to $10.25
per hour, this was never alleged by the General Counsel
to have been violative of the Act, nor was such an alle-
gation set forth in the charge.
The Respondents appeared separately and denied that
they are joint employers. Each specifically denies that it
has engaged in any activity violative of the Act. In addi-
tion, each Respondent contends that implementation of
the changes was following good-faith negotiations and
after reaching impasse. Finally, each Respondent con-
tends that a full restoration remedy would be inappropri-
ate even if the violations alleged are found.
On the record as a whole, including my observation of
witnesses, briefs and arguments of counsel, I make the
following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION
Crown Zellerbach Corporation (Crown) is a fully inte-
grated paper products company engaged at Newark,
Delaware, in the manufacture and distribution of corru-
gated boxes. In the conduct of its business, the Respond-
ent annually sells and delivers to points outside the State
of Delaware goods and products valued in the excess of
$50,000. It is admitted, and I find, that Crown is an em-
ployer engaged in interstate commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
TLI Incorporated (TLI) is a Missouri corporation en-
gaged throughout the United States in providing labor,
specifically truckdrivers, to various firms, including
Crown at its Newark facility.
In the conduct of its business, TLI annually receives
more than $50,000 for services performed outside the
State of Missouri. It is admitted, and I find, that TLI is
an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7).
II. THE LABOR ORGANIZATION INVOLVED
General Teamsters Local No. 326, a/w International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (the Union or the Charging
2 All dates are in 1982 unless otherwise indicated.
800
TLI, INC.
Party) is admitted to be, and I find is, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
IIl. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The material facts leading to this dispute are largely
undisputed and may be summarized as follows.
For a number of years Crown has functioned as a pri-
vate carrier in the delivery of its furnished product.
Under the applicable rules and regulations of the Inter-
state Commerce Commission, a private carrier is one
which is authorized to deliver its own product to cus-
tomers. This is contrasted with contract carrier and
common carrier. Contract carriers are licensed to haul
only for specific businesses under contract. Common car-
riers have a general license to haul commodities for
anyone. While there are other distinctions, ramifications,
and rules involved, these general distinctions suffice for
purposes of this matter.
As a private carrier, Crown is authorized to transport
its product to various customers and to backhaul materi-
als to be used in its Newark facility, but it is not author-
ized to haul other materials or to do hauling for other
companies. In connection with this private carrier oper-
ation, Crown leases tractors and trailers from a truck
leasing concern (at the material time herein one Newell
Leasing Company of Akron, Ohio) and for a number of
years has also leased the drivers.
TLI is a nationwide company engaged in the business
of furnishing truckdrivers to companies such as Crown.
Basically, under its agreement with Crown, TLI secures
the services of drivers (all of whom worked for TLI's
predecessor in hauling Crown products from the Newark
facility), arranges for the drivers to be paid, pursuant to
data furnished each week by Crown, and negotiates col-
lective-bargaining agreements with the representative of
the drivers in the appropriate bargaining unit.
As testified to by Harry Struthers, Crown's current
manager at the Newark facility, Crown leases the drivers
in order to have TLI's expertise in dealing with labor-
management relations in the trucking industry, as well as
to provide a buffer between itself and the drivers in the
event of labor disputes. For this service, Crown pays
TLI $23 per week per driver in addition to all costs of
employment of the drivers including health and welfare,
pension, fringe benefits, actual wages, mileage, work-
men's compensation, and the like.
In 1979 TLI became Crown's leasor of drivers assum-
ing the business that had been provided by a company
called Country Wide. TLI hired all of Country Wide's
drivers, recognized the Union as the bargaining repre-
sentative for those drivers, and signed the existing Na-
tional Master Freight Agreement (NMFA) along with an
addendum thereto.
In 1981 Crown undertook a study of its delivery costs
and concluded that a substantial reduction would have to
be made in order to stay competitive in the industry. It
also concluded that there were available alternatives for
delivery of its product, including the use of common car-
riers. Thus, Crown advised TLI that in order for TLI to
continue as a leasor of drivers, it would have to reach an
agreement with the Union to reduce labor costs. This
matter was broached to the Union's then chief executive
officer by TLI's director of labor relations, Charles R.
Jones. The Union was not enthusiastic.
Then in late 1981 the Union notified TLI of the forth-
coming expiration (March 31) of the NMFA along with
the addendum, proposing to reopen the contracts for ne-
gotiation. In reponse, TLI wrote the Union that it was
withdrawing from the multiemployer bargaining, and
wished to negotiate a successor agreement individually.
Although there had been some preliminary telephone
discussions between representatives of TLI and repre-
sentatives of the Union, the parties did not meet until
March 29. Struthers also attended this first meeting and
outlined Crown's economic position, stating that substan-
tial relief in labor costs was necessary.
Jones outlined his computation of the labor costs
which included an average gross pay for each driver of
$33,850 per year plus benefits (workmen's compensation
insurance, payroll taxes, health welfare and pension) of
$10,240 or a total-per-employee cost of approximately
$44,000 annually for the nine drivers.
William Zeigler, the Union's chief spokesman at the
time, stated that the Union understood Crown's position
and therefore TLI's. Zeigler stated that the Union was
willing to freeze wages and would look into such non-
productive items as sick leave and the like. The meeting
ended, however, with no proposals or counterproposals
having been submitted by either party. Apparently TLI
did agree to submit a proposal to the Union.
On April 12, Jones sent Zeigler a letter outlining the
general nature of their discussion on March 29 and at-
tached a proposal which in material respects provided
for a beginning wage rate of $10 per hour (under the ex-
isting collective-bargaining agreement employees were
receiving $12.81 per hour), mileage of 24 cents, six holi-
days to be paid for 8 hours (employees were receiving 12
holidays at 10 hours), the elimination of sick days, a max-
imum of 2 weeks' vacation, 2 days' funeral leave and the
elimination of drops and hooks (employees were receiv-
ing a minimum of one-half hour for each drop or hook in
addition to other compensation depending on the nature
of the drop or hook).3 And TLI proposed to keep the
current level of payments for health and welfare and
pension.
Zeigler wrote Jones stating, among other things, that
proposal was "totally unacceptable." In subsequent
phone conversations, however, Zeigler did advise Jones
that the Union would be willing to freeze wages and
reduce the amount of nonproductive items as he indicat-
ed earlier.
On May 5, Jones wrote again and attached to his letter
another proposal which in material respects increased the
hourly wage rate to $10.25 per hour to start ($10.65 and
$11.05 for the second and third years) with mileage of
.247 (.255 and .265), 10 holidays at 8 hours, the elimina-
tion of sick days, a vacation schedule from 1 to 5 weeks
depending on seniority, 2 days' funeral leave, the elimi-
3 A drop is the disconnection of a trailer from a tractor, and a hook is
connecting a trailer to a tractor.
801
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nation of drops and hooks, and agreement to keep the
current level of health and welfare and pension pay-
ments.
The parties then met on May 21, again with Struthers
present, to outline Crown's position that substantial labor
savings were required. In fact, Crown had made the de-
termination that unless the Union would agree to such
savings (presumably of the magnitude outlined in TLI's
proposal of May 5) Crown would sever relations with
TLI and Newell Trucking, and have its product hauled
by a common carrier. Although such action would re-
quire at least 30 days' written notice by certified mail to
TLI, Jones testified that he had been instructed by his
superiors that unless TLI was able to reach a satisfactory
agreement with the Union, TLI would waive the notice
from Crown. None of this was told to the Union before,
during, or after the May 21 meeting.
In fact, Crown had decided to commence using a
common carrier on Monday, May 24, unless a satisfac-
tory agreement was reached on May 21, but the Union
was not so informed. Neither Struthers nor Jones both-
ered to notify the Union at the negotiating session on
May 21, or subsequently that date, that absent an agree-
ment there would be no work for employees in bargain-
ing unit. In short, the parties were negotiating under a
deadline known to Crown and TLI but not to the Union.
According to Jones' notes of May 21 meeting, the
Union made a counterproposal by writing on TLI's May
5 proposal. Thus the Union's counterproposed wages of
$12.81 for the term of the contract, elimination of mile-
age, 12 holidays at 8 hours, vacation as in TLI's propos-
al, funeral leave at 3 days, elimination of drops and
hooks, and TLI to continue health and welfare and pen-
sion payments. There was no union counterproposal on
sick leave.
Thus according to Jones' notes, which are generally
consistent with Zeigler's testimony, TLI and the Union
were in disagreement on the wage rate, holidays, and fu-
neral leave. TLI proposed $10.25 per hour ($10.65 and
$11.05) along with mileage, whereas the Union proposed
$12.81 per hour for the term of the contract and no mile-
age. TLI proposed 10 holidays and the Union proposed
12. The union wanted 3 days for funeral leave. The
union accepted TLI's proposed deletion of pay for drops
and hooks.
At this session, Jones testified that Roland Blansfield,
the Union's steward and a driver for Crown, stated that
the drivers would like one-quarter-hour drops and hooks
and Jones made a note to that effect. Blansfield testified
that he believes he did not speak at this meeting.
In any event, there is no indication in Jones' notes that
TLI offered to add one-quarter hour for drops and
hooks. Perhaps Blansfield mentioned that the drivers
wanted pay for drops and hooks, but such was not an
item about which the Union and TLI had any disagree-
ment. According to Jones' notes, the Union's counterpro-
posal included the elimination of pay for drops and
hooks. At best, discussion on this item was minimal for it
was not in dispute.
After the meeting, company negotiators returned to
the Crown facility and, while Struthers was making ar-
rangements to have his boxes delivered by a common
carrier, Jones was in consultation both with his home
office and Blansfield.
Jones asked Blansfield whether he thought the men
would work for the Company's proposal and Blansfield
told him, I conclude, that he would and he thought they
would if the Company agreed to 12 holidays and a quar-
ter hour for drops and hooks. Jones left and returned,
telling Blainsfield, "You got it."
Blansfield than asked Jones for the Company's agree-
ment to be put in writing. This was done and sent to the
Union on May 25. The change in wages and benefits im-
plemented by TLI on May 24 was its May 5 proposal to
the Union plus two additional holidays and a quarter
hour for drops and hooks.
There was then a letter dated May 25 from Jones to
Zeigler stating that the parties had reached an "impasse"
on May 21 and accordingly the Company implemented
its final offer effective May 24. Zeigler replied stating
that the parties had not, in fact, reached an impasse in
negotiations and demanded further bargaining. He subse-
quently wrote TLI demanding, among other things, that
the Company meet and bargain with the Union. Neither
TLI nor Crown has responded to the Union's demands
for bargaining and at the present time, the TLI drivers
for Crown are being paid in accordance with the wage
and benefit package implemented on May 24.
B. Analysis and Concluding Findings
1. The joint employer issue
The complaint alleges that Crown and TLI are joint
employers and that Crown therefore is liable, along with
TLI, for the alleged unfair labor practices. Crown and
TLI both contend that they are not joint employers.
Specifically, in its brief, Crown contends that the crite-
ria for determining whether "two nominally separate en-
tities can be treated as joint employers (or a single em-
ployer)" are well established and are set forth by the
Board in Parklane Hosiery Co., 203 NLRB 597 (1973).
Parklane, however, concerned whether two companies
were a single employer. This, as the Board and the Third
Circuit have recognized, is a different issue from wheth-
er two companies are joint employers.
Thus in NLRB v. Browning-Ferris Industries, 691 F.2d
1117 (3d Cir. 1982), the court held that the appropriate
standard for determining joint-employer status involves
examination of facts relating to control over the work of
employees. Boire v. Greyhound Corp., 376 U.S. 473
(1964). Analysis of four factors approved by the Su-
preme Court in Radio Union Television Broadcast Techni-
cians Local 1264 v. Broadcast Service, 380 U.S. 255 (1965)
(interrelation of operations, centralized control of labor
relations, common management, and common owner-
ship) is irrelevant because such tend to prove whether
two separate companies constitute a single enterprise,
and this is a distinct concept from joint employer.
Here the question is not whether Crown and TLI are
a single employer. The question is whether Crown main-
tained sufficient control over the employment of the in-
dividuals doing the work as to conclude that it has joint
control with TLI. If so, it is a joint employer for the
802
TLI, INC.
purposes of the Act. As the Third Circuit noted, the
concept of joint employer recognizes that two distinct
business entities may in fact share or codetermine those
matters governing the essential terms and conditions of
employment." (691 F.2d at 1124.)
The work here (delivery of Crown's product) is being
done pursuant to Crown's determination to operate as a
private carrier. Thus, under the regulations of the Inter-
state Commerce Commission, Crown is required to keep
drivers' logs, which it does through the drivers; have
certain licenses; ensure that the drivers do not exceed the
maximum allowable driving time within a 24-hour period
and so forth. In short, it is Crown, and not TLI which is
responsible as the carrier. Crown, of course, does not
have to operate as a private carrier. But it chose to do
so, and thereby chose to accept whatever benefits and li-
abilities are incident to operating as such.
Under the terms of the Crown/TLI lease:
Crown at all times will solely and exclusively be re-
sponsible for maintaining operational control, direc-
tion and supervision over said drivers, such control,
direction, and supervision, including, but not being
limited to, scheduling and dispatching of the driv-
ers, routing instructions, loading and unloading pro-
cedures, and all other matters relating to day-to-day
private carriage operation of Crown.
Not only did Crown have the authority under the
lease agreement to control the manner and means by
which the drivers performed their duties, but in fact did
so. The evidence reveals that on a day-to-day basis, the
drivers would report to an employee of Crown (referred
to by the Union as dispatcher and referred to by Crown
as the shipping foreman) to get their instructions con-
cerning which deliveries were available each particular
day. Also, when drivers had mechanical or other prob-
lems and were unable to make deliveries as scheduled,
they would report to the Crown foreman. Only on rare
occasions was a representative of TLI physically present
at the Crown facility. Day-to-day control of the driver's
work was in Crown.
The drivers drive trucks with Crown's logo on them.
They report to work at the Crown facility and, when
their deliveries are finished, return their trucks to
Newark. In the event that they are required to work
during their vacation they are contacted by the Crown
foreman. On those occasions when there is a question
concerning the proper pay an employee should have re-
ceived, the employee or the union steward is referred by
TLI to the Crown account clerk. All of the drivers'
records for purposes of payment are kept by Crown and
are submitted to TLI simply for the administrative task
of making out the appropriate paycheck.
Crown's management writes memos to the drivers
concerning such matters as how to perform their duties,
safety, notification of days off, and the like. When an em-
ployee does something that is considered to be a derelic-
tion of duties, Crown notifies the employee, with a copy
to TLI.
Though employed by TLI, the drivers work only for
Crown. There has never been a transfer of a driver to
another TLI job.
Finally, the principal terms and conditions of employ-
ment (wages and other economic benefits) are almost to-
tally under the control of Crown. Crown dictated to
TLI how much savings it required in order to continue
operation as a private carrier with leased drivers and this
was relayed by TLI to the Union during the course of
contract negotiations. Indeed Struthers was present and
made the economic presentation to the Union at the only
two bargaining sessions the parties had. TLI's interest in
the outcome of bargaining concerned only keeping
Crown as a customer (at $276 per year per driver). All
wages and benefits were, in fact, paid by Crown with
TLI simply acting as a conduit.
In short, by contract Crown maintained for itself the
daily operational control of the drivers and, in fact, exer-
cised such control. It dictated the maximum acceptable
economic package TLI could negotiate and still keep
Crown's business. Under these circumstances it is clear,
and I find, that Crown shared with TLI the authority to
make decisions regarding essential terms and conditions
of employment and thus was at all material times a joint
employer with TLI.
2. The alleged violations
a. A direct dealing with employees
The General Counsel contends that on the afternoon
of May 21, following the negotiation session, Jones ap-
proached Blansfield and asked if the drivers would work
for the Company's offer, to which Blansfield responded,
in effect, that he thought they would if the Company
would give 12 holidays and a quarter hour for drops and
hooks. Such is alleged to be individual bargaining by-
passing the Union.
TLI argues that 12 holidays and a quarter hour for
drops and hooks were part of its final proposal to the
Union, thus Jones' discussion with Blansfield did not
amount to individual bargaining. Jones testified that
when in negotiations the question of 12 holidays was
raised by the Union he stated, "If that's what it takes to
get a contract O.K.," and that he made a similar state-
ment when Blansfield raised the matter of a quarter hour
for drops and hooks.
I do not credit Jones' testimony in this regard. Al-
though I found him, as well as all witnesses in this
matter, to be generally credible, he was testifying to
events which took place more than a year prior to the
hearing. His notes and his memory are inconsistent on
this point.
The Company's proposal from which the parties were
working was dated May 5. According to Jones' testimo-
ny and notes, the Union's counterproposal was notations
on the paper, which included "12.81-three years" near
wages; "12 to coincide" next to holidays and by the para-
graph proposing elimination of drops and hooks, "O.K."
There is no indication, either in Jones' notes or the
document submitted as being the Company's proposal
and the Union's counter, that the 12 holidays and the
803
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quarter hour for drops and hooks had been agreed to by
TLI. Indeed, this evidence shows that the union had
agreed to eliminate drops and hooks entirely. Other than
some comment Blansfield may have made, pay for drops
and hooks was not an item for discussion at the time. No
doubt, the Union's agreement to eliminate drops and
hooks rested in part on TLI's acceptance of its proposal
to keep the wage rate in place. But there is simply no
significant credible evidence showing that a quarter hour
for drops and hooks was part of TLI's proposal-ever.
Similary, while Jones may have indicated during the
negotiation session that he would agree to continue 12
holidays, there is no further indication in any of the doc-
umentary evidence submitted by TLI that such was ever
a part of any company proposal, final or otherwise.
In short, I conclude that when Jones had the discus-
sion with Blansfield o the afternoon of May 21 concern-
ing the wage rate, holidays, and drops and hooks, Jones
did negotiate with Blansfield.
While Blansfield was a leader among the bargaining
unit and was the shop steward, he certainly had not been
vested with the authority to negotiate an agreement.
Throughout this matter Jones had dealt with Zeigler as
the Union's spokesman and, just prior to his discussion
with Blansfield, Jones talked to Zeigler. Jones knew that
Blansfield had no authority to negotiate on his own.
I therefore conclude when Jones asked Blansfield if
the drivers would go to work for the Company's propos-
al and when Jones agreed to increase its economic pack-
age pursuant to Blansfield's statement, Jones negotiated
with an employee in derogation of the Union's authority
as the employees' bargaining representative. The Re-
spondent accordingly violated Section 8(a)(5) of the Act.
Kaiser-Permanent Medical Care Program, 248 NLRB 147
(1980).
b. Granting additional benefits
It is alleged that without prior notice to the Union or
affording the Union an opportunity to bargain about the
items discussed between Jones and Blansfield, the Re-
spondents unilaterally granted two additional paid holi-
days and a quarter hour for drops and hooks. In reality,
however, the employees were already receiving 12 holi-
days. While the agreement to pay 12 holidays was in
excess of the Respondents' contract proposal, such was
not an additional benefit. However, the proposal on holi-
days, and presumably the implementation, was to pay
employees for 8 hours as opposed to the 10 hours they
had been receiving. Thus, implementation of the holiday
provision amounted to a reduction in benefits to employ-
ees.
Similarly, agreeing to pay employees a quarter hour
for drops and hooks was more than the company propos-
al, but was, in reality, a reduction from the status quo.
Drivers had been receiving a minimum of one-half hour
for drops and hooks and in some situations an hour.
Although implementation of the holiday and drops and
hooks provisions were reductions rather than grants, it is
clear that all the facts concerning this issue were present-
ed by the parties. Indeed, TLI and Crown do not defend
on grounds that by implementing these two matters,
there was reduction rather than an increase. Rather, it is
contended that these two itlms were specifically con-
tained in TLI's "final proposal" and since the parties had
reached an "impasse" at the meeting of May 21, TLI
was at liberty to implement these items.
I reject the Respondents' defense for two reasons.
First, there is insubstantial evidence to support the con-
tention that either the 12 holidays or the quarter hour for
drops and hooks was part of TLI's proposal to the
Union. Second, even if Jones did tentatively agree to
these proposals, there is insubstantial evidence in this
record to support the contention that the parties had
reached an impasse.
It is well established that (Marriott Corp., 258 NLRB
755 fn. 2 (1981)):
Absent a valid, preexisting impasse, or the consent
of the union, an employer, during the course of
contract negotiations, is not free to implement pro-
posed changes or those tentatively agreed to by the
parties.
An impasse in negotiations is said to exist when after
good-faith bargaining, the parties are unable to reach an
agreement and from the circumstances it appears unlikely
that further bargaining will be productive. See Taft
Broadcasting Co., 163 NLRB 475 (1967), enfd. sub nom.
AFTRA, Kansas City Local v. NLRB., 395 F.2d 622
(D.C. Cir. 1968). Obviously this is a plastic concept de-
pendent on the mental state of the parties which, in turn,
is shown by the facts existing at the particular time a
party claims impasse. Thus to determine whether or not
an impasse existed at a particular moment permitting an
employer, for instance, to implement proposed changes
depends on evaluation of many objective factors. These
include how negotiations had progressed to that point;
how far apart the parties were on various significant
issues; the number of negotiation sessions the parties had;
the intensity of their positions; and the like. In the case
none of the facts that normally establish existence of an
impasse are present.
The parties met twice but only at the May 21 meeting
were specific proposals discussed. From the history of
these brief negotiations it is obvious that the parties had
not yet reached a point where no further movement was
likely. Thus on April 12, TLI sent the Union a proposed
wage and benefit package which the Union found "total-
ly unacceptable." TLI then sent a revised proposal in-
creasing the wage, holiday, and vacation offer. This pro-
posal was the focal point of discussion on May 21. And
Jones claims that he increased his offer at the meeting by
adding two holidays and a quarter hour for drops and
hooks. Though I find that the increase was not offered
until following the meeting, in either case, TLI's move-
ment precludes finding impasse. As the Third Circuit has
noted in Saunders House v. NLRB, 719 F.2d 683, 688 (3d
Cir. 1983):
A concession by one party on a significant issue
in dispute precludes a finding of impasse even if a
wide gap between the parties remains because under
such circumstances there is reason to believe that
804
TLI, INC.
further bargaining might produce additional move-
ment.
The principal issue in dispute was economic. Crown
and, therefore, TLI demanded substantial concessions,
which the Union was willing to agree to in principle.
What form the concessions would take was the matter
under discussion. The Union had agreed to elimination of
drops and hooks as part of its ecomonic proposal. Then
TLI increased its offer by agreeing to one-quarter hour
for drops and hooks. There is no indication how a quar-
ter hour for drops and hooks relates to wages but there
must be some relation. Pay for drops and hooks means
something to employees in terms of their earnings, and to
the Respondent in terms of labor costs.
It may very well have been that TLI felt under pres-
sure to conclude negotiations quickly, lest Crown sever
its lease with TLI. However, this possibility was not
communicated to the Union on May 21. Had it been, the
parties may very well have reached an agreement on
that date. In any event, on May 21, TLI made conces-
sions in its economic proposal. To accept Jones' state-
ment that the parties had reached an impasse is to accept
as a fact his self-serving declaration in the face of sub-
stantial evidence to the contrary.
I therefore conclude that there was no preexisting im-
passe when Jones agreed with Blansfield to keep the
holidays at 12, though reducing the hours paid from 10
to 8, and to pay a quarter hour for drops and hooks. By
implementing these changes from the terms of employ-
ment under which the drivers were working, TLI and
Crown, I conclude, violated Section 8(a)(5) of the Act.
c. Refusing to meet and bargain
It is unquestionably a company's obligation to meet
and bargain with the representative of its employees in
an appropriate bargaining unit. It is uncontested that by
letter of May 27 Zeigler requested Jones to meet and
bargain. Jones' June 15 letter in response ignored this re-
quest. Why the Respondents have not met with the
Union on request is not explained in this record or on
brief. In any event, there is no question concerning TLI's
responsibility (and that of Crown as a joint employer) or
the Union's continued representation of employees in the
appropriate bargaining unit, even if the May 24 change
in wages and benefits was lawful. Accordingly their fail-
ure to meet on request has been a violation of Section
8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices found above occurring in
connection with the businesses of Crown and TLI de-
scribed above have a substantial impact upon trade, traf-
fic and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof within the meaning of
Section 2(6) and (7) of the Act.
V. THE REMEDY
Having found that TLI as an employer and Crown as
a joint employer have committed certain unfair labor
practices, I shall recommend that they cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act, including restoration to
the status quo ante of those terms and conditions of em-
ployment which I have found were unlawfully changed,
with interest as provided for in Florida Steel Corp., 231
NLRB 651 (1977).
At the close of the hearing and on brief, counsel for
the Union further contends that TLI and Crown ought
to be ordered to restore the wage rate of $12.81 per hour
and make whole all those employees in the bargaining
unit whose wages were reduced effective May 24. The
General Counsel makes the same request. Neither ex-
plains the basis on which a remedy may be ordered for
commission of an unfair labor practice neither alleged
nor litigated-changing the employees wage rate during
negotiations.
When TLI implemented change in terms and condi-
tions of employment effective May 24, it did so absent a
preexisting impasse. But the change in wages was not al-
leged a violation of the Act. There is no allegation in the
complaint (or the charge) to this effect nor did the Gen-
eral Counsel seek to amend the complaint to allege that
reducing the employees' wage rate from $12.81 to $10.25
per hour on May 24 was unlawful. Even now, neither
the General Counsel nor the Charging Party contend
that reducing the wage rate was a violation of the Act.
Rather, both suggest that to remedy those violations al-
leged, the status quo ante should be restored.
The Respondents object, relying on Camay Drilling
Co., 254 NLRB 239 (1981). There the General Counsel
argued before the Board that unilateral implementation
of a final wage proposal should be found violative of
Section 8(a)(5), claiming that the matter was fully litigat-
ed. The Board did not agree that it had been sufficiently
litigated and stated, "Moreover, to determine an issue of
this magnitude when it is raised for the first time as a
post-hearing theory would place an undue burden on Re-
spondent and deprive it of an opportunity to present an
adequate defense." 254 NLRB at 240 fn. 9.
No doubt the Board may find and remedy a violation
not alleged where such has been fully litigated. See
Conair Corp., 261 NLRB 1189 (1982) (Chairman Van de
Water and Member Hunter dissenting, inter alia, on this
point), enf. denied on this point 721 F.2d 1355 (D.C. Cir.
1983). But, as the court noted, to grant a posttrial
amendment to the complaint requires at least a finding
that the affected party impliedly consented to litigating
the issue.
There is no indication that either Respondent knew
the wage reduction was being litigated, or consented to
doing so. The Respondents went to trial assuming their
exposure in the event the General Counsel prevailed to
be one thing. The now requested remedy increases that
exposure by many thousands of dollars. It is therefore
reasonable to assume that with notice, the matter would
have been tried differently-or perhaps settled.
805
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Further, as the court noted in Conair, consent should
not be inferred simply because the affected party offered
evidence bearing on the issue. Here, for instance, the
claim of impasse is material to the violations alleged and
would also be material to the broader issue of altering
wages and other terms of employment. By defending the
allegations in the complaint the Respondents did not nec-
essarily consent to litigating the wage reduction matter.
Given that the complaint was narrowly drafted, and
absent any indication during the hearing that the issues
alleged would be expanded (except for counsel's state-
ment at the close that he was seeking a broad remedy), I
conclude that the Respondents did not have notice of, or
consent to, litigation of the wage reduction issue.
It is arguable that Camay is inapposite because Board's
holding dealt with finding, or not, a substantive viola-
tion. And here the issue is one of mere remedy. Such a
distinction, however, ignores the fundamental question-
whether in fairness it can be said that the Respondents
had sufficient notice of this matter to prepare an ade-
quate defense.
In Rushton & Mercier Woodworking Co., 203 NLRB
123 (1973), the respondent violated Section 8(a)(3) in
laying off bargaining unit employees. Pursuant to its un-
lawful plan the respondent also laid off nonunit employ-
ees. In order to remedy the effects of discrimination the
administrative law judge recommended reinstatement
(and make whole) for both groups even though the
layoff of nonunit employees had not been alleged as a
violation.
The Board rejected this remedy: "These employees
were not alleged as discriminatees, and, therefore, it
would be a violation of due process to now find that
they were discharged in violation of the Act and there-
fore entitled to reinstatement." 203 NLRB at 126.
Similarly in Consolidated Casinos Corp., 266 NLRB 988
(1983), the charging party excepted to the failure of the
administrative law judge to include in his recommended
remedy three individuals who had not been named in the
complaint. The Board said: "Accordingly, consonant
with fundamental concepts of due process, the Union's
exceptions must be denied." 266 NLRB at 988.
Therefore I decline to recommend restitution to the
status quo ante for the reduction in wage rate or other
implemented changes not alleged to have been unfair
labor practices. However, since I have found the reduc-
tion in the holiday pay and the drop-hook work was un-
lawful and my findings are fairly within allegations of
the complaint, I shall order restitution of these conditions
of employment along with backpay until such time as the
Respondents bargain to a valid preexisting impasse or re-
ceives the consent of the Union before implementing
these changes. See Carpenter Sprinkler Corp., 238 NLRB
974 (1978).
On these findings of fact and conclusions of law and
the entire record, I issue the following recommended 4
' 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.
ORDER
The Respondents, TLI Incorporated and Crown Zel-
lerbach Corporation, jointly, their officers, agents, suc-
cessors, and assigns, shall
1. Cease and desist from
(a) Refusing to meet and bargain with the Union as the
exclusive bargaining representative of the unit of em-
ployees in the appropriate bargaining unit. The appropri-
ate unit for collective bargaining is:
All truckdrivers employed at Crown Zellerbach's
Newark, Delaware, plant excluding all other em-
ployees, guards, and supervisors as define in the
Act.
(b) Implementing proposed modifications of holiday
pay or drop-hook work without bargaining to a valid
preexisting impasse or the express consent of the Union.
(c) Bypassing the Union and negotiating directly with
employees.
(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 designed to ef-
fectuate the policies of the Act.
(a) Restore to all employees in the above-described
bargaining unit holiday pay at the rate of 10 hours per
holiday and the appropriate pay for the drop and hook
work as defined in the TLI addendum to the National
Master Freight Agreement, and make all employees
whole for any losses they may have suffered as a result
of the Respondents' unilateral reduction in holiday and
drop and hook pay.
(b) On request, bargain collectively and in good faith
with the Union as the exclusive representative of the em-
ployees in the above-described unit with respect the
wages, hours and other terms and conditions of under-
standing reached by the parties.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its Newark, Delaware plant copies of the
attached notice marked "Appendix."5 Copies of the
notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
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 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."
806
TLI, INC. 807
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.