Trucking Water Air Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1401 (N.L.R.B. 1985)

TRUCKING WATER AIR CORP.
Trucking Water Air Corporation and Local 445,
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America.
Case 2-CA-19593
30 September 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 31 July 1984 Administrative Law Judge
Thomas T. Trunkes issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
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,' and
conclusions2 and to adopt the recommended
Order.
i In sec III,B,1 of his decision, entitled "The Successorship Issue," the
judge analyzed the facts in this case to determine whether they met the
Board's criteria for establishing successorship. We note that the following
facts contained in the record, which the judge does not discuss, provide
further support for his conclusion that the Respondent was a successor to
Feuer Transportation, Inc. The judge found that the Respondent uses the
same facilities as Feuer at the Yonkers and Poughkeepsie terminals; but
the Respondent contends in its exceptions that it only uses a small por-
tion of the space formerly occupied by Feuer at the Yonkers terminal.
The record establishes, however, that, when it began its operations, the
Respondent leased a significant portion of each area at the Yonkers ter-
minal formerly used by Feuer, and it did not substantially reduce the
space it used at the Yonkers terminal until over 4 months later. More-
over, during the 2-month hiatus between Feuer's closing at the end of
December 1982 and the Respondent's leasing of the Yonkers terminal on
I March 1983, the Respondent's officers used Feuer's office space at the
Yonkers terminal without paying any rent In addition, the record shows
that, when its operations started, all the office equipment, shop equip-
ment, and motor vehicles that the Respondent used at both terminals
were formerly used by Feuer at those terminals. Although the Respond-
ent signed an agreement with Feuer in February 1983 to purchase certain
of Feuer's vehicles , the Respondent made no payments to Feuer under
this agreement until after the bankruptcy auction in September 1983,
even though it used the vehicles for over 6 months before then. Further-
more, the Respondent never paid any fees for the use of Feuer's office
and shop equipment during the first 6 months of its operations.
In the same section of his decision, the judge incorrectly found that the
Respondent's drivers occasionally loaded and unloaded vehicles, but that
under Feuer's union contract only platform employees had performed
this work The record establishes, however, that even under Feuer's
union contract the drivers had regularly loaded vehicles if the platform
employees had not finished their loading when the drivers reported for
work.
Finally, the judge incorrectly stated in the same section of his decision
that the record was silent as to whether the Respondent employs the
same supervisors as Feuer The record establishes that the Respondent
employs the same terminal managers as Feuer did.
2 In adopting the judge's conclusion that the Respondent is a successor
to Feuer, we do not rely on Pacific Aggregates, 231 NLRB 214 (1977),
which the judge cited Rather, we rely on Daneker Clock Co, 211 NLRB
719, 721 (1974), enfd. 516 F.2d 315 (4th Cir 1975), and CG Conn, Ltd.,
197 NLRB 442, 446-447 (1972), enfd. 474 F 2d 1344 (5th Cir 1973) Nor
do we rely on his discussion of the effect of a change in the drivers' job
1401
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Trucking
Water Air Corporation, Yonkers, New York, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order.
duties on the successorship issue, because the record establishes the driv-
ers loaded vehicles both for Feuer and for the Respondent
Member Babson finds it unnecessary to pass on whether the filing of
the charges acted as a renewal of the Union 's request to bargain or on
whether the Respondent 's failure to indicate an intention to negotiate
after the filing of the charges constituted a second refusal to bargain.
Leonard Grumbach, Esq., of New York, New York, for
the General Counsel.
Arthur Liberstein, P.C., of New York, New York, for the
Respondent.
David Kramer, Esq., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS T. TRUNKES, Administrative Law Judge. The
above proceeding was held in New York, New York, on
March 26 and 27, 1984. On a charge filed on April 21,
1983, by Local 445, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica (the Union, Teamsters Local 44, IBT, or Local 445),
the Regional Director for Region 2 of the National
Labor Relations Board on January 10, 1984, issued a
complaint, amended on February 14, 1984, pursuant to
Section 10(b) of the National Labor Relations Act (the
Act), alleging that Trucking Water Air Corporation (Re-
spondent or TWA), violated Section 8(a)(5) and (1) of
the Act by refusing to recognize and bargain with the
Union as the exclusive collective-bargaining representa-
tive of its employees in an appropriate unit. Respondent
filed an answer to both the complaint and the amended
complaint, denying the commission of any unfair labor
practices.
All parties were represented and participated at the
hearing, and had full opportunity to adduce evidence, ex-
amine and cross-examine witnesses, file briefs, and argue
orally. Both Respondent and the General Counsel filed
briefs. In addition, the General Counsel presented an oral
argument at the close of the hearing.
The issues raised in this proceeding are the following:
1. Whether TWA is a successor to Feuer Transporta-
tion Inc. and its managing agent, the Feuer Employees
Association.
2. Whether TWA violated Section 8(a)(5) and (1) of
the Act by failing and refusing to recognize and bargain
with the Union.
3. Whether TWA, as a successor to Feuer and the As-
sociation, should be ordered to pay to the pension and
welfare funds of the Union amounts owing to the funds
by Feuer and the Association pursuant to a consent judg-
276 NLRB No. 158
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment issued by the U.S. Court of Appeals on September
17, 1981.
On the entire record in this case, including my obser-
vation of the demeanor of all witnesses, I make the fol-
lowing
welfare funds. These payments were to be made on a
regular basis commencing on May 8, 1981, and ending
on May 8, 1985. Payments continued pursuant to the
Board Order and court judgment until Feuer and the As-
sociation discontinued its operations in December 1982.
FINDINGS OF FACT
1. JURISDICTION
Respondent, a New York corporation, with offices and
places of business located in Yonkers and Poughkeepsie,
New York, has been engaged in the interstate and intra-
state transportation of freight. Based on a projection of
its operations since about April 4, 1983, at which time
Respondent commenced its operations , Respondent will
annually derive gross revenues in excess of $50,000 for
the transportation of freight and commodities from
within the State of New York directly to points located
outside the State of New York. The complaint alleges,
Respondent admits, and I find that it is now, and has
been at all times material , an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Until December 1982, Feuer, a New York corporation,
with offices and places of business located in Yonkers
and Poughkeepsie, New York, was engaged in the inter-
state and intrastate transportation of freight . The stock of
Feuer was owned by the Lippner family. For many
years Feuer had recognized and had been party to a col-
lective-bargaining agreement with the Union covering its
full-time and regular part-time drivers and platform men
employed at its Yonkers and Poughkeepsie facilities, ex-
cluding all other employees , guards, and supervisors as
defined in the Act. The most recent collective-bargaining
agreement was due to expire in May 1985.
In 1980, Feuer experienced some financial difficulties.
As a result, a group of employees of Feuer organized the
Association, which took over the operations of Feuer. A
board of directors consisting of several employees of
Feuer, including James Pace, effectively controlled and
continued the operations of Feuer. Pace was the presi-
dent of the Association during its operations.
In 1980, following the filing of charges by the Union
against both Feuer and the Association , a stipulation was
entered into between the parties in early 1981 which re-
sulted in a Decision and Order of the Board on August
6, 1981, enforced by a consent judgment of the Second
Circuit U.S. Court of Appeals on September 17, 1981.
The stipulation contained provisions that Feuer and the
Association would not refuse to bargain collectively with
the Union and would make payments due to the employ-
ees in the unit represented by the Union for moneys due
on their behalf by payment to the Union's pension and
B. Operations of Respondent TWA
Respondent was incorporated on January 21, 1983.
Pace played a prominent role in the formation of Re-
spondent. He invested capital, negotiated various agree-
ments, and retained attorneys on behalf of Respondent.
Originally Pace, William Ferro, and Phyllis Lesnewski
were the original stockholders. Two months later Mike
Avezzanno joined this trio, and the stock was split in
four equal parts. The directors of Respondent at its in-
ception were Pace, Ferro, and John Lesnewski, husband
of Phyllis. The officers included Pace as president, Ferro
as vice president, and John Lesnewski as secretary-treas-
urer. Avezzano later became a director and vice presi-
dent. Pace, Ferro, Lesnewski, and Avezzano all were
former employees of Feuer.
At the commencement of operations in April, TWA
employed seven drivers, one mechanic, and three official
clerical employees, all of whom were former employees
of Feuer. It operated at the same facilities in Poughkeep-
sie and Yonkers that were formerly operated by Feuer.
Respondent purchased 13 vehicles from Feuer, as well as
office equipment and furniture.
C. Discussion and Analysis
1. The successorship issue
It is the contention of the General Counsel that TWA
is a successor of Feuer and the Association and, as such,
is bound to recognize the Union as the collective-bar-
gaining representative of its employees in an appropriate
unit and, furthermore , that Pace, a signatory to the stipu-
lation which resulted in the Board Order and court judg-
ment against Feuer and the Association , and who now is
a director and principal owner of Respondent with
knowledge of Feuer 's obligations , is bound by the Board
Order and court judgment.
Respondent contends that TWA is a new business and,
excluding the fact that it is engaged in the similar oper-
ations as Feuer, exhibits none of the criteria to establish
that it is a successor of Feuer or the Association,
The Board has offered guidelines for determining
whether a successorship bargaining obligation attends the
sale or transfer of a business . These factors are
(1) Whether there has been a substantial continuity of
the same business operations.
(2) Whether the successor uses the same plant as that
of the predecessor.
(3) Whether it has the same or substantially the same
work force.
(4) Whether the same jobs exist under the same work-
ing conditions.
(5) Whether it employs the same supervisors.
(6) Whether it uses the same machinery , equipment,
and methods of production.
TRUCKING WATER AIR CORP.
(7) Whether it manufactures the same product or
offers the same services . See Band-Age, .Inc., 217 NLRB
449, 452-453 (1975); f-P Mfg., Inc., 194 NLRB 965, 968
(1972).
Thus, it is appropriate and proper to analyze the facts
of the instant case to determine whether, and to what
extent, they meet the criteria established by the Board.
(a) Substantial continuity of the same business
operations
The undisputed facts established that Feuer, the Asso-
ciation, and TWA all have been engaged in the business
of interstate and intrastate transportation of freight, serv-
ing essentially the same customers.
(b) Use of the same plant
The undisputed evidence established that TWA occu-
pies and uses the same facilities occupied and utilized by
Feuer.
(c) The same or substantially same workforce
The undisputed evidence established that between
April 1980 and the close of business by Feuer in Decem-
ber 1982, it employed between 20 and 25 drivers; 6 to 10
platform people; 15 to 17 office clerical employees; and
approximately 7 mechanics. The undisputed evidence
further revealed that at the time TWA commenced its
operations in April 1983, it hired approximately 10 em-
ployees in the classifications listed above, all of whom
were former employees of Feuer or the Association.
(d) Whether the same jobs exist under the same
working conditions
The evidence reveals that the employees of Feuer cov-
ered by the collective-bargaining agreement with Local
445 listed various job duties. Testimony indicated that on
occasion drivers of TWA loaded vehicles, a task which
had been performed by Feuer's platform personnel.
(e) Whether Respondent employs the same supervisors
The evidence adduced at the hearing was silent with
respect to this matter. It was ascertained, however, that
James Pace was a vice president of the Association, who
later became the president of Respondent. As the number
of employees of Respondent are small, I have concluded
that Pace was the principal supervisor of the employees
of Feuer, the Association, and Respondent.
(f) Use of the same equipment machinery, and
methods ofproduction
The principal equipment owned and operated by both
Feuer and TWA are trucks used in the transportation of
freight. In December 1982, at the time it ceased its oper-
ations , Feuer owned 40 to 50 vehicles and operated 30 to
35. In an agreement signed between Feuer and TWA in
February 1983, for the sum of $77,000 , TWA purchased
various vehicles of Feuer and also assumed leases of
other vehicles owned by other companies who had
leased the vehicles to Feuer. Thus , at the start of its op-
erations in April, TWA was utilizing trucks and other
1403
motor vehicles formerly utilized at the same location by
Feuer. In addition, for at least the first 6 months of its
operations, TWA was using the same desks used by
Feuer both at the Yonkers and Poughkeepsie facilities.
(g) Whether TWA offers the same services as Feuer
It is clear from the record that TWA is engaged in the
same business previously engaged in by Feuer, that is,
the transportation of freight in both intrastate and inter-
state commerce, and offers the same trucking services
formerly offered by Feuer and the Association.
It is apparent from a review of the evidence that
TWA satisfies all the criteria considered by the Board
for determining whether it is a successor to Feuer. How-
ever, Respondent submitted a detailed and well thought
out brief to support its contention that TWA is not a
successor of Feuer. Accordingly, I shall address some of
the arguments raised by Respondent.
Respondent contends that although both Feuer and
TWA were motor carriers there was no continuity of the
same business operations as TWA was a new entity and
started a new business in the motor-carrier industry. Fur-
ther, it argues that there was a hiatus of approximately 4
months between the close of Feuer and the commence-
ment of operations by TWA. In Pacific Aggregates, 231
NLRB 214, 219 (1977), the Board affirmed the findings
of the administrative law judge who stated, "The fact
that there may have been a lapse of about 2 months be-
tween the operation by [predecessor] and the resumption
by [successor] does not negate that conclusion." (The
conclusion that the new company was a successor of the
old company.) Accordingly, I find that the 4-month
hiatus which was present in the instant case is not a de-
termining factor in weighing the tests of successorship.
Although Respondent concedes that both terminals
used by TWA and Feuer were at the same location, it
argues that with respect to the Yonkers facility, TWA
was not using the same plant that had been used by
Feuer, basing its argument apparently on the fact that
the size of the area had been diminished. Although the
undisputed facts did reveal that TWA does not utilize as
much space or platforms as used by Feuer, I do not con-
sider this difference to have any significance.
Respondent further argues that TWA did not hire
"substantially" the same work force that had been em-
ployed by Feuer. It bases its argument on the fact that
out of approximately 50 employees formerly employed
by Feuer, only approximately 10 were hired by TWA.
At first blush, Respondent appears to have merit in its
argument. However, the Board has held that the signifi-
cant factor in hiring of employees was the percentage of
employees that had been employed by the previous em-
ployer. See Band Age, supra at 452-453.
Respondent further argues that although the job titles
may,have remained the same, the working conditions of
the job changed significantly in that each employee of
TWA was not only expected to drive his vehicle but also
to load and unload vehicles as well as act as salesmen.
Thus, there are no job classifications per se. Every TWA
employee, including the principals, do whatever is neces-
sary to assure that TWA operates to meet the needs of
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its customers. Respondent argues that, in short, the
TWA employees are working under substantially differ-
ent working conditions than those that had existed at
Feuer.
Despite Respondent's eloquent argument, the answer is
quite clear. When employed by Feuer, the employees
were covered by a collective-bargaining agreement
which defined in precise terms the areas of employment.
Thus, Feuer cannot, without incurring a contractual vio-
lation, compel its employees to perform certain tasks out-
side of their job classification. TWA, on the other hand,
believing that it had no obligation to any labor organiza-
tion or bargaining agreement, has moved its employees
about the premises to perform whatever tasks are nec°s-
sary . Had Respondent abided by its legal obligations, it
would not have been able to assign work tasks as it did.
Accordingly, I find that the arguments put forth by Re-
spondent carry no weight and have no merit.
Respondent further argues that the purchase of motor
vehicles from Feuer by TWA was done in an arm's-
length transaction, and that these vehicles are no differ-
ent from vehicles that TWA could have purchased in the
open market. Respondent supports its contention by
citing Blazer Industries, 236 NLRB 103, 110 (1978),
where the judge stated: "What respondent purchased
was essentially the remains of a corporate shell-inventory
and equipment stored in a shut -down plant."
I find the instant case distinguishable from that of
Blazer. In Blazer, the predecessor company had already
been in bankruptcy and was not in operation. After some
time the equipment was purchased by Blazer. In the in-
stant case, the predecessor , Feuer , did not petition for
bankruptcy until months after TWA was in operation.
Feuer simply ceased to continue its operations in Decem-
ber 1982 and sold equipment to TWA which began oper-
ation within 4 months.
Respondent cites in its brief Lincoln Private Police, 189
NLRB 717 (1971), in which the Board found no succes-
sor relationship where the transferee hired less than the
majority of the predecessor's work force and acquired
substantially new customers. I find this case inapposite.
In Lincoln , the president of the alleged successor previ-
ously had no connection whatsoever with the predeces-
sor company . In addition , the alleged successor pur-
chased new uniforms , vehicles, and equipment , and occu-
pied different premises than did its predecessor , all fac-
tors that are not applicable to the instant case.
In Lincoln, the Board held at 719:
The Board has long recognized that a change in
ownership of a business enterprise does not in itself
absolve the new owner from an obligation , arising
under the Act, to recognize and bargain with the
union that represents the former owner's employees.
Where there is a substantial continuity in the identi-
ty of the employing enterprise , the purchasing em-
ployer is bound to recognize and bargain with the
incumbent union . In many cases that have been
before the Board on the successorship issue, it has
not accorded controlling weight to any single
factor, but has evaluated all the circumstances
present in any given case in arriving at an ultimate
conclusion.
Although the Board in Lincoln did not find a succes-
sor, as alleged by the General Counsel, it further held at
720:
While we do not mean to imply by our decision
herein that successorship can never be found where
the new employer acquires less than the predeces-
sor's entire business, or hires less than a majority of
the predecessor employer's workforce-indeed the
Board has held otherwise in prior cases-we do re-
quire in such circumstances that other sufficient cri-
teria exist which, in balance, warrant a finding that
there has been no basic change in the employing in-
dustry. In the instant case, we believe such criteria
have not been shown to exist.
Based on the Board's holding and on my analysis of
the entire record and cases cited by the parties, on bal-
ance, I am in accord with and find merit in the General
Counsel's contentions . Of the seven factors listed by the
Board in determining whether or not a company is a suc-
cessor of another, I find and conclude that the vast ma-
jority of the factors are weighed heavily in favor of the
General Counsel 's theory. Although evidence to support
one or two of the factors was scarce, I cannot see where
any of the factors of the seven listed weigh favorably on
the side of Respondent. Accordingly, I find that Re-
spondent TWA is a successor of Feuer.
2. Respondent's "Golden State" liability
The General Counsel argues that assuming, arguendo,
that TWA did not violate the Act by its refusal to bar-
gain with Local 445, nevertheless, it is obligated to
remedy the unfair labor practices of its predecessor as set
forth in the Supreme Court decisions in Golden State Bot-
tling Co. v. NLRB, 414 U.S. 168 (1973).
Respondent contends that assuming , arguendo, there
was a demand to bargain and that TWA was a successor
to Feuer, it does not follow that the obligations arising
under the prior Board's decision against Feuer should
also be imposed on TWA. It bases its arguments on the
fact that TWA, except for purchasing trucks, office
equipment, and some furniture, did not purchase the
business of Feuer nor any of its other assets. In Golden
State, supra, the Supreme Court reviewed the Board's
history of a successor's liability to remedy the unfair
labor practice of its predecessor. It stated at 174:
The Board has pursued an uneven course in its
treatment of a bona fide successor's liability to
remedy the unfair labor practices of its predecessor.
In 1944 the Board determined that liability would
not be imposed on bona fide successors, South Caro-
lina Granite Co., 58 NLRB 1448, enforced sub nom.
N.L.R.B. v. Blair Quarries, Inc., 152 F.2d 25 (CA4
1945). In 1947 the Board abandoned that view and
determined that joint and several remedial responsi-
bility would be imposed upon a bona fide successor
who had knowledge of the seller's unfair labor
TRUCKING WATER AIR CORP.
practice at the time of the purchase, Alexander Mil-
burn Co., 78 NLRB 747'. When, however, two
Courts of Appeals refused to enforce remedial
orders against bona fide successors N.L.R.B. v.
Birdshall-Stockdale Motor Co., 208 F.2d 234 (CA10
1953), and 1Y.L.R.R. v. Lunder Shoe Corp., 211 F.2d
284 (CAI 1954), the Board, in 1954, re-examined
and overruled Alexander Milburn Co., declaring, in
Syrians Grocer Co., 109 NLRB 346, that "[n]o provi-
sion of the [National Labor Relations] Act author-
izes the Board to impose the responsibility for reme-
dying unfair labor practices on persons who did not
engage therein." Id., at 348. Finally, in 1967, in yet
another turnabout, the Board overruled Symms
Grocer Co. in Perrna Vinyl; supra, ' and announced
that, in circumstances there defined, see n. 2, supra,
remedial orders would be imposed upon bona fide
successors for the unfair labor practices of their
predecessors.
In Perna Vinyl, supra at 969, the Board held that "one
who acquires and operates a business of an employer
found guilty of unfair labor practices is basically un-
changed form under circumstances which charge him
with notice of unfair labor practice charges against his
predecessor should be held responsible for remedying his
predecessor's unlawful conduct." In Golden State, supra,
the Supreme Court held, inter alia, that a successor-em-
ployer which acquires a business with knowledge of an
outstanding Board Order requiring its predecessor to re-
instate with backpay an unlawfully discharged employee
may properly be required to assume the reinstatement
obligation and to share jointly and severally with the
predecessor the backpay liability.
In its decision of August 6, 1981, the Board ordered
Feuer to make whole the employees in an appropriate
unit by payment on their behalf to the Local 445 pension
fund and Local 445 welfare fund certain amounts of
money weekly until May 8, 1985.
Although Respondent argues that as a matter of equity
the prior Board decision against Feuer should not
become an obligation of TWA, I find that this argument
has no merit. Accordingly, I shall recommend that
TWA, as successor to Feuer, be obligated, jointly and
severally with Feuer, to make the payments to the wel-
fare and pension funds as ordered by the Board in its
prior decision. As the record indicates that Feuer is no
longer in operation and has filed for bankruptcy, this
total obligation shall be borne by Respondent TWA
alone.
D. Alleged Demand for Recognition and Refusal to
Recognize the Union
It is uncontested that the following employees of both
Feuer and TWA constitute a unit appropriate for collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All full-time and regular part-time drivers and plat-
form men employed at the Yonkers and Poughkeep-
1 164 NLRB 968 (1967)
1405
sie, New York , facilities, excluding all other em-
ployees , guards, and supervisors as defined in the
Act.
At the hearing, the parties stipulated that mechanics
are included in the appropriate unit as platform men.
It is also undisputed that the Union has been the col-
lective-bargaining agent of Feuer's employees in the unit
as described above for many years. Said recognition has
been embodied in successive collective-bargaining agree-
ments, the most recent of which is effective from March
1, 1982, to March 31, 1985.
Elmore V. Schueler, president of Local 445, testified
that in January 1983 he heard that TWA was "going to
open up at the Feuer terminal in Poughkeepsie, New
York," Approximately the end of March 1983, he was
informed that TWA would be commencing operations
on April 4, 1983. As a result, Schueler and John Joyna, a
business agent for Local 445, visited the Poughkeepsie
terminal on April 4, arriving there at approximately 8:15
a.m. On his arrival, Schueler observed several trucks
marked "Feuer Transportation." He also noted dock
equipment marked "Feuer Transportation." He asked the
terminal manager to explain what was happening.
Schueler was told by the terminal manager that they
were opening up for business, and suggested that he call
James Pace who was in Feuer's Yonkers office at the
time.
The transcript of the hearing at 84-86 describes exact-
ly what occurred thereafter, according to Schueler. It
reads as follows:
I then called down and got Jim Pace on the tele-
phone and I asked Jim what was going on and he
said to me that they were open for business and I
said to him, well I see that you have Fuer [sic]
trucks out here. You've got the Fuer [sic] employ-
ees. Do you have the old business. He said, Yes, I
do. He said I was lucky to get all of the old IBM
business back. He says, I have a little bit of some
new business and we're opening for business again.
I said to him, it would seem to me, Jimmy, you
have all of the trucks, the employees and every-
thing. It seems to me that this if Fuer [sic] Trans-
portation and not TWA.
And he say, well, yes and no,
I said what do you mean, yes and no. He said,
well, under Fuer [sic] Transportation I had 24 per-
cent of the business and now under TWA, I have
80 to 90 percent of the business-or the stock, I'm
sorry. Stock.
Q. And he further said?
A. Well I asked him, what about the permit-the
ICC permit. The public service permits, et cetera.
And he said he had changed them all over from
Fuer [sic] to TWA.
I asked him about the Welfare and Pension
money. I said you owe us a lot of money under
Welfare and Pension. He says take that up with the
lawyers. I know that Fuer [sic] Transportation had
a contract which did not expire.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MR. LIBERSTEIN: Objection, Your Honor. Do we
have a pending question or-
JUDGE TRUNKES: Sustained.
Q. What else was said in regard to that, if any-
thing?
A. That's all I can recall about it right now.
Q. What was said , if anything, about the Union?
MR. LIBERSTEIN: Objection, Your Honor. He just
asked and answered the question.
JUDGE TRUNKES: He said that's all he can re-
member right now, so now he is trying to refresh
his memory.
A. I asked Mr. Pace-
JUDGE TRUNKES: Objection overruled. Go ahead.
A. I asked Mr. Pace that I wanted to sit down
with him and I wanted to talk about the situation.
And he said to me, no sense in sitting down and
talking because TWA is going to stay non-union for
at least a year. After that period of time, maybe we
will.
Q. What did you say to that, if anything?
A. I said, I'd like to sit down with you right now
and he said no.
Later, in examination by counsel for the Union,
Schueler stated, "The only discussion I had with him
that I can recall' is what I said about the Welfare and
Pension, and that' we had the contract with him. And as
far as I was concerned Fuer (sic] owed us the money
under the contract. That was it. There was a contract in
force. That's all I recall saying."
Schueler testified that, he does not recall what, if any-
thing, Pace replied to this statement.
James Pace, president of Respondent, acknowledged
that he did have a telephone conversation with Schueler
in the morning of, April 4, 1983. However, his version of
the conversation was somewhat different. He testified as
follows:
After salutations good morning and so on-Mr.
Schueler congratulated me on opening up a new
business. And, he wanted to know what my plans
are, what is going on . I explained to Mr. Schueler
that TWA is a common carrier. We're making our-
selves available to anyone and everyone for the pur-
poses of hauling general commodities. Then he
asked me then he asked me with regards to the IA
Union and I told him that we- were a non-union
company. And that we have no objections to recog-
nizing any union as long as that's what the majority
of our employees wanted at the time. And, he
thanked me and' that was it.
Pace further testified that he has had no further conver-
sations or meetings with any representative of Local 445
since that time, nor does he have any knowledge that
any other officer or director of TWA had any discus-
sions with any representative of Local 445 since that
time.
Credibility of Pace vs. Schueler
It is obvious from the testimony of Schueler and Pace
that a vast discrepancy exists with respect to the conver-
sation the parties held via telephone on April 4, 1983.
For the reasons listed below, I credit the testimony of
Schueler concerning the events that occurred:
1. Schueler impressed me as an honest and forthright
witness.
Although the General Counsel and his own attorney
attempted to elicit from him more detailed information of
the telephone conversation with Pace on April 4 to dem-
onstrate a more direct demand for recognition, Schueler
adhered to his original testimony and did not embellish it
in any way to further advance the Union 's cause.
2. On the other hand, I was unimpressed with Pace's
version of the conversation with Schueler on April 4.
His version almost sounded like a social call to wish him
good luck in his new endeavors. Nothing in the record
reflected that Pace and Schueler had anything but a busi-
ness relationship. In addition, Pace admitted to having
made statements and signed documents which, although
not accurate in fact, were signed by Pace when it was to
his advantage to do so. For example, although I credit
his testimony that he was a one-third owner of the stock
of TWA upon its incorporation, he claimed that he
owned a majority of the stock in order to obtain a loan
for TWA as a minority corporation. (It is noted that
Pace is a black man.)
Accordingly, I find that the testimony of Schueler
more accurately reflects the conversation which oc-
curred between Pace and him on April 4, 1983.
Discussion and Analysis
The General Counsel contends that Schueler's conver-
sation with Pace on April 4 was clearly addressed to
TWA's duty to recognize the Union and constituted a
request to bargain.
Respondent, on the other hand, argues that a review
and analysis of the evidence demonstrates that Local 445
did not make any demand for recognition or to bargain.
The testimony of Schueler confirmed the testimony of
Pace that there was only one telephone conversation, in
which the Union stated that it wanted to talk about "the
situation." There was no followup nor any written
demand by the Union that TWA recognize and bargain
with it.
Respondent argues, to support its theory, the follow-
ing:
It is a fundamental principle that before there can
be a violation of Section 8(a)(5) of the Act by an
employer, that there be a clear and unequivocal
demand by the union to bargain. In short, an em-
ployer is under no obligation to bargain with a
union in the absence of a demand by the union.
Thus , in Graff Motor Supply Co., 107 NLRB 175,
182 (1953), the Board specifically held that in the
absence of a clear and unequivocal demand to bar-
gain, there is no violation of Section 8(a)(5) of the
Act. (See, too, NLRB v. Columbian Co., 306 U.S.
292, 297.)
TRUCKING WATER AIR CORP.
The General Counsel counters this argument by citing
Al Landers Dump Truck, 192 NLRB 207, 208 (1971), in
which the Board stated the following:
The Board and the courts have repeatedly held that
a valid request to bargain need not be made in any
particular form, or in haec verba, so long as the re-
quest clearly indicates a desire to negotiate and bar-
gain on behalf of the employees in the appropriate
unit concerning wages, hours, and other terms and
conditions of employment . . . . [Accord: Marys-
ville Travelodge, 233 NLRB 532-533 (1977).]
On April 30, 1984, a Board panel consisting of Mem-
bers Zimmerman, Hunter, and Dennis adopted my rec-
ommended Order in Yalu Warehouse Foods, 270 NLRB
316 (1984), where it was recommended that the com-
plaint, alleging a violation of Section 8(a)(5) and (1) of
the Act, be dismissed. The facts of that case revealed
that in response to a union's claim that it had a contract
with the predecessor of the employer, the employer re-
quested proof which the union could not produce, as it
did not have a contract with the predecessor. At no time
had the employer stated that it would not bargain with
the union. The Board held that, "And without this predi-
cate , an 8(a)(5) refusal-to -bargain finding cannot stand.
On the only occasion it was requested to bargain, the
Respondent did not refuse to bargain . It simply asked the
Union to clarify the situation. The Union never renewed
its request to bargain. Accordingly, we conclude that the
Respondent has not violated Section 8(a)(5) of the Act as
alleged, and we thus dismissed the complaint." Yalu
Warehouse Food, supra at 316.
In Yalu, it should be noted that the successor had
never encountered the union agent previously. It had no
knowledge of any collective-bargaining agreements be-
tween its predecessor and the union; it had no knowl-
edge that a majority of its employees in an appropriate
unit were represented by any collective- bargaining agent.
The union, in fact, did not have a contract with the
predecessor, and at no time did the employer state that it
would not bargain with the union. I find that the facts of
the instant case have little relationship with the fact of
Yalu. In the instant case, Pace having been a principal of
both Feuer and its agent, the Employees Union, and
presently the president of Respondent TWA, had full
knowledge that Local 445 represented a majority of the
employees in an appropriate unit, Local 445 had a collec-
tive-bargaining agreement with Feuer effective until
1985, and a consent judgment had been issued by the
Second Circuit Court of Appeals against Feuer pursuant
to a formal settlement stipulation which directed Feuer
to make employees whole by payments to the union's
pension and welfare funds. With this background, it was
no surprise to Pace when Schueler telephoned him on
April 4 to discuss "the situation." In a perfect world, a
union representative would always state to an employer's
representative, "I represent a majority of your employees
in an appropriate unit. I am requesting that you meet and
bargain with me with respect to a collective-bargaining
agreement covering these employees. Under the law, you
are obligated to so bargain , and a refusal by you to do so
1407
may result in a violation of the National Labor Relations
Act." Unfortunately, we live in an imperfect world. Al-
though Schueler has had years of experience as a union
agent, and probably is aware of the Board ' s holdings in
this area, I can well understand that in speaking to Pace
on a first-name basis, he assumed that Pace knew exactly
what he was talking about when he asked Pace to meet
with him to discuss "the situation." Were they strangers
to each other , or had there been no prior Board decision
with respect to Feuer and the Union, I might well under-
stand that Pace would have no idea what situation
Schueler was talking about. However , in the setting as
described in the background of this decision , I am con-
strained to conclude that Pace had no other alternative
but to presume that Schueler had telephoned him for the
purpose of discussing a collective -bargaining agreement
arising out of the union's relationship with Feuer. Ac-
cordingly , under these circumstances, I find that
Schueler 's request that Pace "sit down" with him to dis-
cuss "the situation " meets the criteria as held by the
Board in Al Landers Dump Truck, supra. Pace's reply
that "we were a nonunion company" and his refusal to
meet with and discuss "the situation" with the Union can
mean but one thing-Pace clearly rejected Schueler's re-
quest for bargaining.
Were there any further doubt of the meaning of
Schueler's statement to Pace, this doubt was eliminated
shortly thereafter when the Union filed the unfair labor
practice charge which led to the instant complaint. In
Sewanee Coal Operators Assn., 167 NLRB 172, 177 (1969),
the Board held that the filing of charges acted as a re-
newal of the request to bargain and Respondent 's failure
to indicate an intention to negotiate , thereafter, constitut-
ed a second refusal to bargain . (See also Roberts Electric
Co., 227 NLRB 1312, 1319 (1977); and Western-Davis
Co., 236 NLRB 1224, 1227 (1978).)
Pace does concede that all the employees hired by
TWA were former employees of Feuer. Although he tes-
tified that this was mere coincidence , whether mere coin-
cidence or a deliberate hiring policy , in either case it has
no bearing on whether or not the Union represented a
majority of TWA's employees . Pace was aware of the
Union's majority status and of the collective -bargaining
agreement it had negotiated with Feuer . Should Re-
spondent 's theory that it is not a successor of Feuer be
upheld, one may conclude that Respondent had no obli-
gation as a successor to Feuer to honor the Second Cir-
cuit Court's Judgment directing it to pay certain moneys
to the Union 's funds. However, Pace , knowledgeable of
the prior proceedings, including the agreement between
the Union and Feuer, must be charged with knowledge,
as president of Respondent TWA, that the Union repre-
sents a majority of its employees . In addition , I find that
the testimony of Schueler , which I credit in its entirety,
demonstrates clearly that Schueler was requesting that
TWA bargain with the Union, and that Pace's response
that Respondent was a nonunion shop, and not suggest-
ing anything further to Schueler constitutes a refusal to
bargain. As stated earlier , I do not credit Pace's version
of the conversation which , in essence , stated to Schueler
that he would gladly recognize the Union when it
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
proved that it represented a majority of TWA's employ-
ees. Pace was aware that the Union did represent a ma-
jority of the employees and, as successor to Feuer, Re-
spondent is obligated under the Act to recognize the
Union as the collective-bargaining agent of its employ-
ees. Accordingly, I conclude that Pace 's refusal of April
4 to meet and discuss "the situation" with Schueler con-
stitutes a violation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. Respondent Trucking Water Air Corporation is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Teamsters Local 445 is a labor organization within
the meaning of Section 2(5) of the Act.
3. Respondent is a successor of Feuer Transportation,
Inc. and its managing agent, Feuer Employees Associa-
tion.
4. The following unit is appropriate for collective bar-
gaining under Section 9(b) of the Act: All full-time and
regular part-time drivers and platform men, including
mechanics, employed by Respondent at its Yonkers and
Poughkeepsie, New York facilities, excluding all other
employees, guards, and supervisors as defined in the Act.
5. Teamsters Local 445 is the exclusive bargaining
agent of all the employees in the unit described above in
paragraph 4 within the meaning of Section 9(a) of the
Act.
6. By failing and refusing to recognize and bargain
with Teamsters Local 445, as the exclusive collective-
bargaining representative of its employees in the unit de,
scribed above in paragraph 4, Respondent TWA has vio-
lated Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices affect commerce
with the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that TWA engaged in unfair labor prac-
tices, I shall recommend that Respondent cease and
desist therefrom and take affirmative action necessary to
effectuate the policies of the Act.
Having found that Respondent TWA is a successor of
Feuer and the Association , and having found that Re-
spondent , through its president James Pace , had been put
on notice of Feuer's liability in Cases 2-CA- 17064 and
2-CA-17231, Respondent , consistent with the Supreme
Court's ruling in Golden State Bottling Co. v. NLRB, 414
U.S. 168 ( 1973), shall pay to the pension and welfare
funds of the Union the amounts owing to the funds by
Feuer pursuant to the consent judgment of the Second
Circuit Court of Appeals issued on September 17, 1981.
To the amount due shall be added interest to be comput-
ed in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), Isis Plumbing Co., 138 NLRB 716
(1962), Florida Steel Corp., 231 NLRB 651 (1977).
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed2
ORDER
The Respondent, Trucking Water Air Corporation,
Yonkers and Poughkeepsie, New York, its officers,
agents , successors , and assigns, shall
1. Cease and desist from
(a) Failing and refusing to recognize and bargain col-
lectively in good faith with Teamsters Local 445, IBT, as
the exclusive bargaining representative of the employees
in the following appropriate unit:
All full-time and regular part-time drivers and
platform men, including mechanics, employed by
TWA at its Yonkers and Poughkeepsie, New York
facilities, excluding all other employees, guards, and
supervisors as defined in the Act.
(b) Failing and refusing to adhere to the consent judg-
ment of the United States Court of Appeals for the
Second Circuit in NLRB v. Feuer Transportation, Inc.,
and its managing agent, Feuer Employees Association,
issued on September 17, 1981, which directed Feuer and
its successors to make whole certain employees by pay-
ments on their behalf to the pension and welfare funds of
Teamsters Local 445.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request bargain in good faith with Teamsters
Local 445, as such exclusive bargaining representative, of
the unit described above in paragraph 1(a) of this Order,
retroactively, as of the date when Respondent failed or
refused to recognize or continue to recognize and bar-
gain with said Union; and, if requested, embody in a
signed agreement or agreements any understanding
reached.
(b) Adhere to the consent judgment of the United
States Court of Appeals for the Second Circuit in NLRB
v. Feuer Transportation, Inc., and its managing agent,
Feuer Employees Association, on September 17, 1981,
which directed Feuer and its successors to make whole
certain employees by payment on their behalf to the pen-
sion and welfare funds of Teamsters Local 445.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all cor-
porate and personal books, records, entries, and papers of
whatever description, all payroll records, job records,
social security payment records, timecards, personnel
records and reports, accounts receivable records, check-
books, checkstubs, bank statements, tax records, leases,
deeds, bills of sale and all other records documents, and
entries necessary or useful to determine any sums, pay-
ments, or benefits due under, and the extent of compli-
ance with, the terms of this Order.
(d) Post at its offices in Yonkers and Poughkeepsie,
New York, copies of the attached notice marked "Ap-
2 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.
TRUCKING WATER AIR CORP. 1409
pendix."3 Copies of the notice, on forms provided by the
Regional Director for Region 2, after being signed by
the Respondent's authorized representative, shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(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.
WE WILL NOT fail or refuse to recognize and bargain
in good faith with Local 445, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as your exclusive collective-bargaining repre-
sentative for the following appropriate collective-bar-
gaining unit:
All full-time and regular part-time drivers and plat-
form men, including mechanics, employed at our
Yonkers and Poughkeepsie, New York facilities, ex-
cluding all other employees, guards, and supervisors
as defined in the Act.
3 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 En forcing an Order of the Nation-
al 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 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 protect-
ed concerted activities.
WE WILL NOT fail and refuse to adhere to the consent
judgment of the United States Court of Appeals for the
Second Circuit in NLRB a Feuer Transportation, Inc.,
and its managing agent, Feuer Employees Association,
issued on September 17, 1981, which directed Feuer to
make whole certain employees by payment on their
behalf to the pension and welfare funds of Teamsters
Local 445, IBT.
WE WILL NOT in any like or related manner restrain or
coerce you in the exercise of the rights guaranteed you
by Section 7 of the Act.
WE WILL, on request, bargain in good faith with your
union as your collective-bargaining representative of the
unit described herein and, if requested, embody in a
signed agreement or agreements any understanding
reached.
WE WILL adhere to the consent judgment of the
United States Court of Appeals for the Second Circuit in
NLRB Y. Feuer Transportation, Inc., and its managing
agent, Feuer Employees Association issued on September
17, 1981, which directed Feuer and its successors to
make whole certain employees by payment on their
behalf to the pension and welfare funds of Teamster
Local 445, IBT.
TRUCKING WATER AIR CORPORATION