BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
QUICKWAY TRANSPORTATION, INC.
and 5-CA-33111
5-CA-33257
5-CA-33446
5-CA-33497
DRIVERS, CHAUFFEURS & WAREHOUSEMEN TEAMSTERS
LOCAL UNION NO. 639 a/w INTERNATIONAL BROTHERHOOD
OF TEAMSTERS
James C. Panousos, esq., and
Daniel Heltzer, esq., counsel for the
General
Counsel
Philip Giles, of
for the
charging party,
James H. Hanson, esq., and
A. Jack Finklea, esq.,
of
Respondent
DECISION
Eric M. Fine,
Administrative Law Judge. This case was tried in
On the entire record,
including my observation of the demeanor of the witnesses, and after
considering the briefs[3] filed by the General Counsel and the
Respondent, I make the following[4]
Respondent, a corporation, with its
main office in
Respondent is a
transportation company primarily transporting dairy products and groceries for
food chains. Respondent’s corporate
office is in
William Prevost has been the president of Respondent since February 2004,
when he began working at the company.
Prevost testified Respondent completed a handshake agreement as of the
week prior to his testimony on a five-year contract extension for the
bargaining unit at the Shelbyville terminal.
Cannon has been employed by Respondent since July 19,
2004. Cannon was a terminal manager from
July 2004 until July 2006. In July 2006,
he became the Atlantic regional vice-president until August 2007, when he
became the northern regional vice-president.
Cannon became involved
with Respondent’s start up of the Landover terminal in January 2006 when he
began visiting the terminal to gather information concerning area wages and deliveries. At that time, Giant owned the dairy, and
deliveries to the Giant stores were being made by drivers employed by Giant
Transportation. In January 2006,
negotiations were ongoing between MMD and Giant for MMD’s purchase of the dairy,
and MMD had already selected Respondent to be its primary carrier from Landover. Cannon testified that Mike Miller,
Respondent’s director of pricing and business analysis, had created a
pre-opening model as to how it would operate the Landover terminal. The model was based on 21 drivers, 21 trucks,
46 trailers, one yard jockey truck, with two yard drivers. Under the model, drivers were supposed to run
two loads a day. Respondent signed a
contract on March 3 with MMD for the delivery of the dairy products out of
Landover, with a March 27 startup for the deliveries. Respondent selected Michael Ortt as the
terminal manager for the Landover operation.
In March, Cannon was terminal manager for
Cannon testified
Respondent began advertising for company drivers in mid January and they began
to hire drivers before the operation started.
The hiring process including running a motor vehicle report on the
driver’s application for no more than two moving violations in the past three
years, the driver having two years of current tractor trailer experience, an
interview, no past convictions or DUI’s, a drug screen and a physical. Cannon testified it took 6 to 7 business days
from the time a driver first called until he was hired. At time of the sale of the dairy to MMD,
Giant laid off about 75 drivers and Respondent had former Giant drivers apply
for employment. Cannon knew that Giant
drivers were union members. Cannon
testified that prior to operations starting on March 27, Respondent committed
to hiring about three former Giant drivers, including Angelo Jackson and Kenneth
Tucker. Cannon testified that over a two
to three month period they hired about seven or eight former Giant
drivers. Cannon testified that more
applied than were hired. Cannon
testified the company drivers based in Landover were guaranteed $1000 a week at
the start up of the operations for a six week period, while Respondent’s
dispatchers became acclimated to the routes out of the Landover terminal. When the guarantee ended the company drivers
were paid $.45 a mile and $15 a stop.
For detention at a stop after an hour, the driver also received $20 an
hour paid in 15 minute increments.[5]
Cannon testified
Respondent also received a list from MMD, which MMD had received from Giant, of
area agencies for the supply of temporary drivers. Cannon testified Respondent started using
temp agencies from day one of the Landover operation, and was using them six
days a week. Cannon testified that from
the end of March 2006 until the strike in January 2007, Respondent probably
used temporary drivers almost every day.
He testified that on the slowest days, Tuesday, Wednesday and Thursday,
there may have been a few days that they did not require temporary drivers. Cannon testified if Respondent hired enough
permanent drivers to handle the peak days which are Saturday and Monday, there
would not have been enough work Tuesday through Friday to keep all of the
drivers active. Cannon testified all
Respondent’s company drivers were full time.
Kenneth Tucker applied
to Respondent through a friend Angelo Jackson in early March for a job as a
truck driver. Tucker’s job application
is dated March 8. Tucker and Jackson had
previously worked for Giant as drivers. Tucker
began driving loads for Respondent at the Landover facility on March 27. Tucker’s initial
assignment with Respondent was helping to train other drivers, including
drivers Respondent hired and drivers Respondent had brought in from other
terminals to help start the Landover terminal.
Tucker performed the training before the operation started. Tucker showed the drivers how the procedures
were handled at the stores, with the loading and unloading of the milk and
dollies.
Tucker testified that on
March 20, Tucker and Jackson met with Cannon and Ortt at the Landover facility. Tucker provided trip tickets from his prior
work week at Giant Food to show Cannon and Ortt the wages he would have earned
with the miles and stops pay Respondent was offering. In response, Cannon said he would drop the
mileage and stops pay rate for four weeks, and would pay $1,000 per week, until
they figured something out with the pay.
Tucker testified he presented the paper work because of a concern, “That
you wouldn't be able to make half the money that they say you would be able to
make running on those terms.”
Tucker testified to the
following:
Tucker
testified that during the union campaign Respondent campaigned against the
and
the creation of impression of surveillance
1. Creation of impression of surveillance
Tucker
credibly testified at follows: Tucker attended a meeting with Jackson, Taylor
and Cannon on May 25, at around 3 or 4 p.m.
Tucker had just turned in his paper work upon the completion of his
shift when
Tucker
credibly testified
Tucker
credibly testified that, during the May 25 meeting, after
a. Respondent’s witnesses
Cannon testified he
received training on what a supervisor could and could not do during the union campaign. Cannon identified a campaign instruction
sheet that Prevost gave Cannon, Taylor and Ortt entitled, “Remember These
Tips.” (Tips sheet). Cannon testified he
participated in a conference call with Taylor and Prevost in which Prevost reviewed
the Tips sheet.
Cannon testified he arrived
at the Landover terminal on May 25, having flown in from
Cannon testified, in
explanation, that around a week before the May 25 meeting, Tucker had pulled
Cannon aside seeking help in that Tucker told Cannon that the other drivers
were coming to Tucker with complaints.
Cannon could not recall what type of complaints they were. Cannon testified Tucker did not want to play
the middleman between the drivers and management. Cannon testified he told Tucker that he
needed to take himself out of that position of being the go-to or fix-it
person. Cannon testified that on May 25,
Cannon wanted to revisit that conversation and that Cannon initiated the
discussion. Cannon testified, “That's
when I took over the conversation with David Taylor and Kenny Tucker. So I just wanted to revisit with that and
somewhat reiterate that, Kenny, you don't have to be in this position to be the
sounding board for the drivers. We've
got office personnel that‑‑ that has that responsibility and has
that duty to take care of any type of problems that the driver may have. I conveyed to him that his response to the
drivers, if they did have any complaints, would be, you need to go see
management about that.” Cannon testified
that Tucker, “did bring up that another complaint, that everybody was pointing
their finger at him, as far as starting the union. And me and David Taylor both stopped him
right there and said, Kenny, let's make it very well known that no one is
pointing the finger at you, as far as starting the union.”
Cannon
testified that during the May 25, meeting, Cannon brought up the possibility of
Tucker becoming as dispatcher as they had noticed leadership qualities in
Tucker, particularly during his training of office personnel. Cannon testified Tucker liked the compliments
they were giving him stating he was interested.
Cannon testified that during the May 25, meeting, Taylor told Tucker
that Tucker had also been followed but that Tucker did “a fantastic job.”[11]
Cannon denied telling
Tucker that Cannon had received reports from other drivers that Tucker was involved
in union organizing. Cannon testified he
did not know Tucker was involved in union organizing at that point in time,
although he learned later on that Tucker was involved. When asked when he learned, Cannon testified,
“I can't recall. Just with, you know,
the‑‑ they talked back and forth from driver to office
personnel. It eventually did come out,
but putting to a calendar and what date, I can't recall.” However, Cannon testified he was sure he did
not know at the time of the May 25 meeting.
Cannon testified that as of the time of the May 25 meeting, he knew it
was illegal to engage in surveillance of union activities. He denied stating anything that would give
drivers the impression that he was engaging in surveillance of their union
activities. He denied asking Tucker
whether he was involved in union activities because Cannon knew it was illegal to
do so based on the training he had received from Prevost.
Cannon could not recall
if the
Prevost testified that he ordered the driver surveillance because of
performance issues at the Landover facility.
Prevost claimed he only became aware there was union organizing drive at
Landover, after Respondent received notice that the men had submitted cards to
have an election. Prevost testified this
was probably the last week of May 2006.
Prevost testified as soon as he learned there was a pending election, he
requested his labor counsel to prepare the Tips sheet instructions in terms of what
management could and could not say in communicating with employees during an
organizing campaign. Prevost testified
he issued the sheet to Taylor, Cannon, John Hoover and
the other people in the organization that had contact with the Landover terminal. Prevost testified as soon as he received the
sheet he emailed it to Cannon and Taylor, and he had a training session with
them over the phone. Prevost testified
that during the training session they discussed the TIPS memo that they would
not threaten, interrogate, make false promises to employees to try to get them
to vote against the union, and Respondent would not spy on employees during the
organizing campaign. Prevost testified
that during the union campaign, Respondent presented information to the
employees as to why they did not need a union at Landover. He testified that, “our preference would've
been to have run without it, but we were fine with it.” Prevost testified that Respondent started
distributing materials about the
Prevost initially testified that he did not have any
knowledge of reports of the number of employees for or against the union during
the campaign. He testified that “most of
the employees we hired had been laid off from a union company, so I was not
surprised when the petition came across and I was not surprised when the vote
was in favor of the election.” He then
testified that he received reports from the facility that, “They thought the
majority was for the union. There was
six or seven guys that did not want it, but the bulk of them had worked in
union organizations before and wanted it.”
Prevost denied receiving reports as to who the union leaders or contacts
were.
I do
not credit Prevost’s claim that he was unaware of union activity at Landover
until after the
Along
these lines, Cannon testified that he knew about the union activity at the time
of the May 25, meeting stating that, “I picked up a few rumors, that's about
it.” Cannon testified the first
indication was from the general manager of the dairy plant who heard employees
were talking about the
While Cannon admitted
knowing about union activity prior to the May 25, meeting, he disingenuously
claimed that he did know Tucker was involved in union organizing as of May 25. He admitted to obtaining knowledge of
Tucker’s pro-union stance from the drivers later on, but could not recall a
date. He could only state it was after
May 25. Cannon testified that as of the
time of the May 25 conversation, he knew it was illegal to engage in any type
of surveillance of union activities, to give drivers the impression he was
engaging in surveillance of their union activities, or to question Tucker about
his union activities, because he received training from Prevost on the Tips
sheet prior to the May 25.
Prevost incredibly claimed he only became aware there was union
organizing drive at Landover, when he received notice of the
In view of the admission
by Respondent’s counsel that Respondent was aware of the Union campaign around
a month after the operation started, as well as Cannon’s testimony that he
received reports about union activity from both dairy personnel and from
drivers, I do not credit Prevost’s claim that he did not learn of the union
campaign until after the petition was filed.
Cannon’s claim that he did not recall whether the petition was filed at
the time of the May 25 meeting is also clearly disingenuous. He claimed that he received training as to
what he could say to employees prior to the May 25, meeting as part of his
defense to allegations made by Tucker.
Yet, Prevost testified the training was only initiated due to the filing
of the petition. Therefore, if either
are to be credited then Prevost learned of the petition prior to the May 25
meeting, consulted with counsel, had Respondent’s Tips memo distributed to
Cannon and Taylor and had a conference call with them prior to the May 25,
termination meeting. If all of this
occurred as their testimony indicates, I find it highly unlikely that Cannon
would not have been told by Prevost that a petition for election had been filed
which Prevost claimed was the basis for the training. I also find it highly unlikely, that Cannon,
who impressed me as an intelligent individual would not have recalled he was
aware of such information at the time he participated in the meeting where
I have concluded based
on the credible testimony, admissions, and the record as a whole that four of
Respondent’s employees met with Giles on Sunday, May 7, due to a meeting
initiated by
Clearly, Respondent was receiving information from the drivers and dairy
officials and monitoring the status of the
Concerning
the conversation that took place during the May 25, meeting, I have credited
Tucker’s version of events over that of Cannon’s. Tucker, considering his demeanor, testified
in a calm and straight forward fashion about the conversation with good recall. On the other hand, Cannon’s story was somewhat
convoluted and did not make sense considering the record as a whole. Tucker’s and Giles testimony revealed that
b. Analysis
Cannon
testified he initiated a conversation with Tucker on May 25, in that Cannon wanted
to “reiterate that, Kenny, you don't have to be in this position to be the
sounding board for the drivers. We've
got office personnel that‑‑ that has that responsibility and has
that duty to take care of any type of problems that the driver may have. I conveyed to him that his response to the
drivers, if they did have any complaints, would be, you need to go see management
about that.” Thus, Cannon instructed Tucker not to engage in concerted activity
by telling him to tell drivers if they had any complaints rather than speak to
Tucker they should go see management.
This is akin to instructing Tucker not to discuss work related problems
with other drivers, and I find the remark to be violative of Section 8(a)(1) of
the Act. See, Jeanette
Corp., 217 NLRB 650, 656-657 (1975), enfd. 532 F.2d 916 (3d Cir.
1976); and K Mart Corp., 297 NLRB 80,
fn. 2 (1989).
In Bridgestone Firestone South Carolina,
350 NLRB No. 52, slip op. at 2 (2007), the Board stated:
In determining whether an employer's
statement has created an unlawful impression of surveillance, the test is
“whether the employees would reasonably assume from the statement that their
union activities had been placed under surveillance.” Flexsteel Industries, 311 NLRB 257, 257 (1993); United Charter Service, 306 NLRB 150
(1992) The standard is an objective one, based on the perspective of a
reasonable employee. Flexsteel, supra. The General Counsel has the
burden of establishing, by a preponderance of the evidence, that the employer
unlawfully created the impression of surveillance.
Not all employer statements about
employees' union activities are unlawful. An employer does not create an
unlawful impression of surveillance where it merely reports information that
employees have voluntarily provided. See, e.g. Rock-Tenn Co., 315 NLRB 670, 682 fn. 19 (1994), enfd. 69 F.3d 803
(7th Cir, 1995), and overruled on another point by Chelsea
Industries, 331 NLRB 1648 (2000), enfd. 285 F. 3d 1073 (D.C. Cir. 2002). As we
recently reaffirmed in North Hills Office Services, “The gravamen of an
impression of surveillance violation is that employees are led to believe that
their union activities have been placed under surveillance by the employer.”
346 NLRB No. 96, slip op. at 6 (2006) (emphasis in original). Thus, merely
informing employees that their coworkers have volunteered information about
ongoing union activities does not create an impression of surveillance,
particularly in the absence of evidence that management solicited that
information.
In Bridgestone
Firestone, supra, the plant manager issued a letter to employees in which
he thanked employees for informing him that a union was attempting to organize
the facility. In concluding the
respondent did not create the impression of surveillance by the letter the
Board explained the respondent relayed to employees only that certain coworkers
had had
voluntarily provided information about the existence of the union campaign. It was stated reasonable employees would not
discern from the letter the respondent learned of their activities through a
program of unlawful surveillance. Bridgestone
Firestone South Carolina, supra., slip op. at 3,
In North Hills Office Services, 346 NLRB 1099, 1101 (2006), the
complaint alleged two instances of the creation of the impression of
surveillance. On one occasion, a
supervisor told an employee that two of her coworkers reported that the
employee drove them to a union meeting.
The supervisor did not deny making the statement but testified he never
asked any employee to provide him with information. In the other instance, an employee testified
that during a meeting in which she was given a discriminatory warning for
distributing union literature on company time the operations manager told her
two of her coworkers informed him that she was distributing union literature
during working hours. The operations
manager did not deny making the statement.
In dismissing the Section 8(a)(1) allegations, the Board majority held
that volunteering information concerning an employee’s union activities by
other employees, in the absence of evidence that management solicited that
information does not create an impression of surveillance.
However, in Flexsteel Industries, 311 NLRB 257 (1993), the Board majority
stated:
The judge found that the
Respondent created the impression of surveillance when its personnel manager,
Don McFarland, on two occasions, informed employee Leroy Clark that he had
heard rumors about
* *
It was stated
in Flexsteel that “an employer
creates an impression of surveillance by indicating that it is closely
monitoring the degree of an employee's union involvement. See Emerson Electric Co., 287 NLRB 1065
(1988).” Id at 257. In Flexsteel it was noted that in two
separate occasions in statements coupled with interrogations and implicit
threats, McFarland related his knowledge of ‘rumors’ to Clark, thereby
informing him clearly that management was aware not only that Clark may have
been a union supporter, but was also taking note of the reported manifestations
of that support by asserting that Clark may have instigated the union campaign
and that Clark had been passing out authorization cards. It was stated that McFarland's statements, on
their face, reasonably suggested to Clark that the Respondent was closely
monitoring the degree and extent of his organizing activities,
and that these types of statements would reasonably lead
Similarly, in
his partial dissent in Flexsteel
Industries, member Oviatt stated in agreement with the majority that the
respondent there did unlawfully create the impression of surveillance
pertaining to another employee when a supervisor told that employee that he
knew the employee was getting people to sign authorization cards because people
had told the supervisor that he was doing so. Flexsteel Industries, supra. at 260. In Emerson
Electric Co., supra at 1085, the Board, in finding that a plant manager unlawful
created the impression of surveillance during a one on one meeting with an
employee, stated:
Gilbert stated not only that he knew that Alsup had attended union
meetings, but also indicated that he knew the extent of this involvement. As
set forth above, Gilbert said that he knew that Alsup had “expressed an
interest in the union,” but that Gilbert did not consider Alsup to be a
“pusher” for or against the union effort. These statements would reasonably
suggest to Alsup that the Respondent was closely monitoring the degree of his
union involvement. For these reasons we find that the Respondent created the impression
of surveillance in violation of Section 8(a)(1) of the Act.
The Board reached a similar result in finding a violation in United Charter Service, 306 NLRB 150,
151 (1992), wherein it was stated, “even if it were common knowledge that the
employees were attempting to organize, Vieira's comments went beyond
permissible limits. Not only did he tell the employees that he knew of their
organizing efforts, he also went into detail about the extent of the activities
and the specific topics they discussed at the meetings.” It was found, Vieira's statements reasonably
suggested to the employees that the respondent “was closely monitoring the
degree and extent of their organizing efforts and activities.”
I
find Respondent unlawfully created the creation of the impression of
surveillance by Cannon’s remarks to Tucker during the May 25 meeting. Tucker and Jackson, the two leading union
adherents were instructed to attend the meeting. At the outset of the meeting,
2. The surveillance and discharge of Angelo
Jackson
In Benjamin Franklin Plumbing, 352 NLRB No.
71 (2008), in finding that the discharge of two employees violated Section
8(a)(1) of the Act, the Board approved the use of a Wright Line analysis for Section 8(a)(1) allegations that turn on
motive. See also, General
Motors Corp.,
347 NLRB No. 67 fn. 3 (2006) (“Wright
Line applies to all 8(a)(3) and 8(a)(1) allegations that turn… on employer
motivation”). In Wright
Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Approved in NLRB v.
Transportation Management Corp., 462
In
the instant case, on March 20, Tucker and Jackson met with Cannon and Ortt to protest
Respondent’s wage policy, resulting Cannon contacting Prevost and Respondent
temporarily instituting a guaranteed wage rate for the drivers at the Landover
facility.
Prevost testified Respondent’s operational model for Landover was
initially was set with 21 trucks and 21 drivers with a six day a week operation
using a first and second shift deliveries.
Prevost testified during the first couple of months the start up at
Landover was not making money, and the actual business application was not matching
the model. Prevost testified they were
not getting the projected utility out of the men or the equipment they had
anticipated going into the business.
Prevost testified that to service the customer, Respondent had to rent
extra equipment and extra drivers, and they were not able to hire enough local
drivers. Prevost testified that after a
month or six weeks, they made a decision to do driver observations to determine
where they had a modeling problem.
Prevost testified he directed Taylor, Cannon, Lyman Helms, then Safety
Director John Hoover, and
Concerning the actual observations, Prevost testified
that he thought six drivers followed.
Prevost testified the observers were given the most efficient route from
the dispatch in terms of selecting which drivers were to be observed. Prevost testified he received several verbal
reports about the study. Prevost
testified it was concluded based on the observations that the drivers, due to
traffic congestion, could not do double loads as Respondent originally
anticipated in its model. Prevost
testified Respondent adjusted the model to go from 21 to 26 drivers, due to
traffic. Prevost testified he only
received a negative report about one of the six drivers and the rest were
performing as they were instructed.
Prevost testified there were no other changes made to the model.
I find Prevost’s explanation as to the timing and the
cause of the observation not be supported by record evidence. Respondent’s payroll records as summarized in
R.A. Exh. 34 reveal that by week ending April 22, Respondent already had hired
24 company drivers, and by week ending May 13, it was up to 25 drivers. Thus, the model of 21 drivers was adjusted
upward before Respondent conducted the surveillance. Moreover, Cannon testified the company drivers started
with a four week guarantee of $1000 a week,
which was extended to six weeks.
However, Respondent’s records reveal that the drivers were being paid
uniform rates per day, as opposed to Respondent’s mileage and stops formula
until May 20. (R. A. Exh. 34, p. 6).
Since the drivers were given a uniform rate per day, then it is unlikely
that a driver spending extra time at a store, impacted on his pay, or that he
had a reason to do so.
On
May 22, when the pay guarantee ended, Respondent followed Jackson, and shortly
thereafter Tucker, the two leading union adherents. While
The circumstances, behind the actual
surveillance also smack of pretext. Despite Respondent’s contention that it was just a random list of drivers
to be followed, Hoover, who along with Thomas did the actual surveillance, testified
that the day when he and Thomas arrived at the hotel in Landover from the
airport, Ortt came to their hotel, and said, “here's the guy I want you to
follow,” in reference to Jackson.
Thomas’ testimony varied
from
Moreover,
Respondent did not provide a consistent story to either Tucker or in the
testimony its witnesses as to the number of drivers that were actually
followed. Tucker credibly testified that
on May 25,
Respondent could also provide
only limited documentary evidence as to the driver observations. Aside from evidence pertaining to
A report written by
Respondent produced in response to the General Counsel’s
subpoena request a handwritten memo dated May 25, with Gardner written at the
top, which Cannon testified looked to be a report on an observation of driver
Andrew Garner. Cannon became aware of
the report through
In sum, the credited
testimony reveals that on May 22, just five days after the petition for
election was filed, Respondent began conducting a surveillance of its
drivers. Included in the surveillance
were leading union adherents Jackson and Tucker. Hoover’s testimony, reveals Respondent’s
officials were so anxious to have Jackson watched that Ortt came to their hotel
room on the day of their Landover arrival, a Sunday when the terminal was
closed, and gave them Jackson’s name stating “here's the guy I want you to
follow.” On May 25, Jackson and Tucker
were called into a meeting, and
C. The interrogations
General Counsel witness
Kevin Cook worked for Respondent as a company driver out of Landover from March
to January 2007.[21] Cook testified he had one
conversation with Cannon and one with
Cook testified he had a conversation with
Cannon around a week before the election outside the office in the Landover
plant. The conversation took place when
Cook returned from one of his runs. Just
Cannon and Cook were present. Cook
testified he came in from his run, turned in his paperwork and made his
copies. Cannon asked if he could speak
to Cook and Cook agreed. Cook testified,
“He walked out of the office and asked how I was doing, and I said I'm doing
okay. He said that he hoped that he had
my support with the election, and I said yeah, you got my support, because I
was against the union. And he said, good
guy, and he patted me on my shoulder and that was it.”
In determining whether a supervisor's questions to an employee
constitutes an unlawful interrogation, the Board examines whether under all the
circumstances, the questioning tends to interfere with, restrain, or coerce
employees in the exercise of Section 7 rights. Rossmore House, 269 NLRB 1176 (1984), affd. 760 F.2d 1006 (9th
Cir. 1985). In making this assessment,
the Board reviews various factors, including whether the employee is an open
union supporter, the employer's background (whether there is a history of
employer hostility and discrimination), the nature of the information sought
(whether the interrogator appeared to be seeking information on which to base
action against individual employees), the identity of the questioner in terms
of how high they are in the company hierarchy, the place and method of the
interrogation, and the truthfulness of the reply. The Board will determine
whether under all the circumstances the questioning at issue would reasonably
tend to coerce the employee at whom it is directed so that he or she would feel
restrained from exercising rights protected by Section 7 of the Act. Carroll & Carroll, 340 NLRB 1328,
1332 (2003). The Board will also find
statements that are not phrased as questions to constitute unlawful
interrogations when they are designed to elicit responses from employees about
their union sentiments. Medcare
Associates, Inc., 330 NLRB 935, 941 fn. 21, citing NLRB v. McCullough Environmental Services., Inc., 5 F.3d 923, 929 (5th Cir. 1993).
Respondent argues that I should not credit Cook because
he stated that
Having considered Respondent’s arguments, I am
nevertheless persuaded that Cook should be credited concerning his encounters
with Taylor and Cannon.[22]
Respondent called both Ortt and Cannon as witnesses. Ortt did not deny Cook’s assertion that
around three weeks before the election, Ortt helped arrange a ride home for
Cook with
I find that both Taylor and Cannon violated Section
8(a)(1) of the Act by interrogating Cook.
The union filed a petition for election on May 17. On May 22, Respondent for the first time at
this facility began to follow drivers, including leading union adherents
Jackson and Tucker. On May 25,
Respondent discharged
Viewed against this backdrop, I do not find
Similarly, I find Cannon’s encounter with Cook to constitute a coercive
interrogation violative of Section 8(a)(1) of the Act. While Cannon was not a regional vice
president at the time of the conversation, his testimony revealed that he had
been alternating with Regional Vice President Taylor in supervising the
Landover start up. Cannon was also
present, along with
1. The use of temporary drivers
Respondent
began making deliveries out of Landover on March 27, to about 200 Giant stores and 10 Stop and Shop stores. The Stop and Shop stores were in southern
The
NLRB election was held on June 22, and a certification of representative was
issued for the
All full-time and regular part-time company driver
employees and hostlers employed by the Employer making deliveries from its
domicile at 5 S. Club Drive, Landover, Maryland; but excluding all office
clerical employees, professional employees, managerial employees, guards and
supervisors as defined in the Act.
Following the election, Respondent continued to use the temporary drivers
on a weekly basis. For example, during
the week of July 10, Respondent used four temporary drivers on Monday, four on
Tuesday, four on Wednesday, four on Thursday, six on Friday, and eight on
Saturday. During the week of August 7,
Respondent used four on Monday, three on Tuesday, four on Wednesday, four on
Thursday, three on Friday, and six on Saturday.
During the week of September 18, Respondent used four temporary drivers
on Monday, three on Tuesday, two on Wednesday, one on Friday, and three on
Saturday. During the week of October 9,
Respondent used a temporary driver on Monday, and three on Saturday. During the week of October 16, Respondent
used one temporary driver on Monday, two on Wednesday, one on Thursday, three
on Friday, and four on Saturday.[25]
2. Bargaining unit driver Branch is offered
to convert to be an owner operator
Roger Branch was hired
by Respondent as a company driver around April 16.[26] Branch interviewed for the job as
company driver with Cannon and Ortt.
Branch credibly testified to the following: During the interview, Branch
told Cannon that Branch owned a company with his own truck, and that he wanted
to work for Respondent as an owner operator.
Cannon replied they could not do that at the time, but if Branch took a
job as a company driver, Respondent could take him on as an owner operator
later and Branch could then drive his own truck. Branch testified, “I accepted.” Branch testified Cannon did not give Branch a
specific time as to when he could become an owner operator, nor did they
discuss what the compensation would be for an owner operator at that time.[27]
Branch was hired by
Respondent on April 17 as a company driver at $.45 a mile, $15 a stop, and if there
was delay time at the stores $20 an hour broken down into 15 minute
increments. Branch testified after he started working for Respondent, he continued to
ask Ortt and Cannon about becoming an owner operator. Branch testified he and Cannon had a
conversation in June 2006, about rates if Branch were to convert to an owner
operator. The conversation took place in
Respondent’s office and that he thought Ortt was also present. Branch testified in response to a leading
question that he was approached by management about the conversation. Branch testified that, during the meeting,
Cannon showed Branch three of Branch’s trip sheets dated June 5, 12, and 19,
which contained Cannon’s handwriting.
Cannon had used Branch’s mileage and stops for each of those weeks to
show Branch what he would have earned as an owner operator for Respondent
rather than being a company driver.
Branch testified the numbers Cannon told him he would be paid as an
owner operator were $1.13 a mile, $18 dollars a stop, and $.33 a mileage
surcharge, which is a fluctuating number to offset the cost of fuel to the
driver. Branch testified Cannon’s calculations
were already on the sheets prior to time the meeting started. Branch testified the mileage for the week of
June 19 presented by Cannon was based on Branch’s mileage totals ending on June
24. Branch testified that since Cannon
had Branch’s mileage figures as current as of June 24 at the meeting that the
meeting with Cannon took place after the June 22 union election.[28]
Cannon
initially testified that an announcement had been made at Landover that
Respondent was to be receiving new northern New Jersey (NNJ) runs, and that
Respondent was going to lease owner operators.[29] Cannon testified that once the
word got out that Respondent was going to be picking up the new freight and going
to lease owner operators, Branch phoned Cannon at the
Cannon
testified that he went to Landover, met with Branch, and they went over the
contract for owner operators. Cannon
testified they discussed rates Branch could make upon becoming an owner
operator. Cannon did not know the date
he met with Branch, but estimated that it was a few weeks before the
Giles identified a document entitled, “Independent
Contractor Agreement,” with Respondent listed as the carrier. Giles testified Branch gave Giles the document
at the union hall on July 16, following a union meeting on that date.[31] Giles testified Branch told Giles
that Respondent had talked to Branch about being an owner operator. Branch asked Giles what he thought of it, and
Giles said not much. Giles asked Branch
what the rates were and Giles told him that he did not think much of the
rates. Guiles testified that, “He told
me he had talked to Mr. Cannon about this in the prior week I believe.”
On July 17, Giles sent by fax and first class mail a
letter to
As you also may know, the National Labor Relations act (NLRA) prohibits
an employer from diverting bargaining unit work from employees in the certified
bargaining unit to other employees, or from otherwise converting bargaining
unit work to non-bargaining unit work.
Furthermore, the NLRA prevents an employer from unilaterally changing
wages, hours and other terms and conditions of employment without bargaining
over such proposed changes with the
It has come to
our attention that Quickway intends to offer or already has offered bargaining
unit work to drivers and hostlers on an independent contractor, or
owner-operator basis. Such improper
diversion of bargaining unit work would violate federal labor law and
demonstrate bad faith on the part of Quickway in refusing to bargain with its
certified collective bargaining representative.
*.*.*
The Union also demands that Quickway immediately engage in
good faith collective bargaining over any proposed change in Quickway’s
operations, as well as to commence the forming of a collective bargaining agreement
between Quickway and the
Cannon responded to Giles by letter dated July 28, in which Cannon
stated:
In your letter
dated July 17, 2006, you requested information from Quickway Transportation,
Inc., with respect to contracting with independent contractors at its Landover
terminal because of concerns that Quickway (h)as diverted bargaining unit work
to those independent contractors in violation of federal law. The underlying premise of your letter and your
request for information is incorrect.
Quickway
currently has equipment for and needs 26-27 company route drivers to do the
work presently being performed at the Landover terminal. Unfortunately, we only have 22 route drivers
and have been supplementing the workforce with the use of temporary employees
from a local temp agency. Because of the
cost involved in using temporary employees, Quickway would like to reduce the
use of temporary employees and is actively trying to hire additional route
drivers to fill the company trucks.
Quickway has also
begun advertising to attract independent contractors to work out of the
Landover facility. We anticipate
beginning some additional runs that will require layovers. Notwithstanding the fact that Quickway does
not have enough route drivers to perform its current work, Quickway does not
have any sleeper cab equipment at its Landover terminal to perform those
runs. Using company route drivers is
therefore not an option, and Quickway will have to supplement its workforce
with independent contractors who have sleeper cab equipment. Those independent contactors may also
supplement any work that cannot be performed by route drivers with company
equipment. Suffice it to say, however,
despite Quickway Transportation’s plans to use independent contractors, no work
is being diverted or taken from bargaining unit employees.[32]
3. The contracting with owner operators
Respondent contracted
with Thomas Purnell as its first owner operator out of Landover on August
8. Purnell began running routes for
Respondent on August 10, which was a Thursday, and he worked three days that
week. Purnell’s records show beginning
August 14, he worked five days a week for Respondent through and including the
week of September 18. Purnell worked
four days during the week of September 25, and thereafter resumed his five day
a week schedule through the week of October 9.
Purnell was running all local runs during this period, which theretofore
had been performed by the company drivers or temporary employees.[33]
Branch credibly testified to the following: On October 13, Branch signed Respondent’s
agreement entitled “Independent Contractor Agreement.” Ortt approached Branch and gave him the
agreement on October 13. Branch had previously received a call from
Ortt stating that on October 16, Respondent was going to start the new NNJ runs. On October 16, he began running routes
as an owner operator for Respondent.
As
an owner operator Branch used Respondent’s DOT number.[34] Branch testified that upon
signing the contract his runs also changed from local to NNJ runs. When Branch became an owner operator his
compensation was $1.13 for mileage, $18 a stop, and whatever the fuel surcharge
was for the week. Respondent paid for
tolls when Branch was a company driver. As
an owner operator, Branch was also reimbursed
by Respondent for tolls for about $100 to $150 on a weekly basis. When Branch was a company driver,
Respondent was responsible for his taxes, and when he became an owner operator
he was responsible for his taxes. When
Branch became an owner operator he purchased insurance for his truck through
Respondent. He did not insure
Respondent’s truck when he drove it as a company driver. He testified that under the terms of the
independent contractor agreement with Respondent, he could only work for
Respondent. He testified this was
because he could not use Respondent’s DOT authority without their permission,
and he was purchasing his insurance through Respondent.[35] As an owner operator, Branch had to put a sign on his truck that said
Quickway and he had to display Respondent’s DOT number. The sign was a peel and stick sign. Branch testified the owner operators were not
represented by the
4. Contract Negotiations August 8 to October 4
During contract negotiations, the parties worked from a
typed template combining proposals from both the
In attendance for the
Cannon testified, relying on Hanson’s notes, that during the August 8,
session, there was a notation in the notes at page 4, stating, “extra work‑‑offered
to available employees already working.”
Cannon testified that there was a discussion on August 8, that extra
work would be offered to company drivers that are currently working or
scheduled to work. He testified any
company drivers not scheduled to work would be offered to possibly come in on
their off day. Cannon testified that any
work beyond that would be offered to subcontractors. Cannon testified that on August 8, if
Respondent needed an extra driver it was offering the work to company drivers first.
In addition to the regular attendees, Ortt attended the
August 9, session. During that session,
the
Cannon testified concerning the August 9 session referring
to page 15 of Hanson’s notes testified Giles stated on August 9, that the key
issues in negotiations were wages, health and welfare, vacation, sick leave,
personal days and holidays.[37] However,
as reflected at page 16 of Hanson’s notes, following Giles remarks about the
big picture or key issues, a discussion ensued about the use of owner
operators. Hanson’s notes read:
JHH: Using o/o’s-replace rent-a-driver-may use in place of—our workforce
exhausted.
MO: To cover the temp
CC: O/o’s cant get into some stores- a handful
KT: Will take away from us –my runs[38]
JHH: Not trying to take away from our drivers
PG: Only cannot be run by co. drivers?
CC: Calculation by miles, stops –is issue 75-80% of loads require
layover.
PG: How about using cartage agreement?
CC: Not going to do it that way-too expensive.
Cannon testified there was
a discussion that Respondent was going to replace the temporary agency drivers
that Respondent was using to supplement their company driver fleet, and
Respondent was going to start using owner operators instead of the temps.[39]
As set forth above, the first owner operator agreement was signed with
Respondent for Landover on August 8, for Purnell, who began running routes on a
full time basis on August 10. Giles, referencing his notes, testified he had a phone call with Hanson
on August 15.[40] Giles testified that during the
call Hanson told Giles that on August 10, Respondent sent out one owner
operator on a regular route. Hanson
stated the driver was off sick and the company offered the work to company
drivers including Tucker and it was turned down. Hanson also stated Respondent had no interest
in returning
The next session was August 30. Giles testified that during the August 30,
session, the parties tentatively agreed to a recognition clause that mirrored
the NLRB certification. Giles testified
that Respondent’s proposal on Article 3 management’s rights was again discussed
at this meeting. Giles again insisted
that Respondent delete the last sentence providing for unrestricted
subcontracting from the article. Hanson
replied they would have to put the article on hold. Giles testified he did believe subcontracting
was discussed at the next two sessions held on August 31 and September 1.
On September 27, the Union filed an unfair labor practice
charge in Case 5-CA-33257, alleging Respondent had diverted and/or subcontracted
bargaining unit work by using independent owner operators without bargaining in
good faith with the
The parties met on
October 2. Giles testified that during the
meeting he told Hanson the Union considered anything delivered from the dairy
to be unit work, and Hanson had said on August 9, regarding the use of owner
operators that when and if they got any work that required a layover, they
would talk to the Union and negotiate the use of owner operators versus having
Company drivers do it. Giles testified
he considered the work being performed by owner operators to be union work,
“Because we were certified as all full and part-time drivers at that location. There were no owner operators at the time
that the operation was started. It would
be new work. Anything that, you know,
was new to the unit, you know, was still covered by the unit. It was still unit work.” Giles testified that at the beginning of the
meeting, Hanson responded to Giles concern about Respondent’s using owner
operators, by stating that Respondent had been subcontracting since they
started the Landover operation by using temporary drivers. Hanson stated if someone feels cheated about
this tell us.[41] It is reflected in Giles notes of
October 2, that Giles stated stops were being removed from existing runs and
put on new trailers to create additional runs.
Hanson stated the customer tells how and when to deliver the milk. Tucker asked what about a driver that has a
regular run and now he gets something else and an owner operator gets his
run. Cannon stated we never had set
loads, and Tucker replied we have had them for the last three months. Hanson stated we have to check the facts and
the parties had a caucus.
Giles testified that during the caucus, Giles called MMD
and talked to then Dairy Manager Aumen, who has since retired. After the caucus, Giles made the assertion
that he thought the owner operators were being used to do bargaining unit
work. Giles testified he asserted that
loads were being manufactured by taking stops off existing runs and combining
them to make an additional trailer load of milk. He testified Hanson’s response is reflected
at the top of page two of Giles October 2, notes. Giles testified Hanson responded that the
dairy determines the number of stops and how many dollies are on a
trailer. Giles testified, “We went back
and forth” and that Ortt said he was not pulling stops off of the trucks to
make additional loads.[42] Giles testified Tucker said that
was not true. Tucker said, he had seven
stops on a specific run, and there was one stop off, so there was only had six
stops. Giles testified the impact of the
loss of a stop was Tucker would have
lost mileage and stop pay.
Owner operators were discussed later on during the October
2, session as reflected at page 5 of Giles notes. At that time, Giles stated owner operators
were being used to do bargaining unit work.
Giles testified Respondent was not performing any layover runs out of
Landover at that time. Hanson responded
Respondent was going to use owner operators on runs that require a
layover. Giles responded that any
delivery made from that dairy was bargaining unit work, and that giving it to
an owner operator without bargaining with the
Cannon
testified that, according to Hanson’s notes, Giles opened up the October 2 session talking about owner operators stating he was going to go to the NLRB for
a Section 10(j) injunction. Cannon
testified as he interpreted the notes that during the discussion Hanson
responded Respondent had been subcontracting since the start up by using temp
drivers, and now Respondent was going to use owner operators doing the same
type of work. Cannon testified the Union
made a claim that Respondent was taking stops off current loads to make up
additional loads just to give owner operators, and the
(general discussion re subk. & NJ runs)
-Co has subc BU work since start of operation
-Co uses o/os everwhere else
-Co will discuss new work with union to see if drivers want that work
-Co will decide when to add driver and equipment
-Co will cost new work by o/os vs. co. driver[43]
For the October 3 session, it is reflected at the third
page of Giles notes that Hanson referenced Article 15.09 and stated, “15.09
We’re OK.” Article 15.09 reads:
Section 15.09. Bargaining Unit Work/Subcontracting. Supervisory
employees or non-bargaining unit personnel may perform the work covered by this
agreement or the Employer may subcontract the work covered by this Agreement
when all of its employees are working, scheduled to work or are unavailable to
work.
Giles’s notes reflect that he told Hanson concerning Article 15.09 that
the
During the conversation, Hanson stated he anticipated they
were going to start getting some Jersey work in about two weeks, which is
referenced by the parties as northern
Giles testified that they again discussed Article 15.09
later on during the October 3 session.
Giles raised it, and his notes reflect that during the discussion Hanson
stated the
Cannon testified that on October 3, the parties discussed
proposal 15.09 relating to subcontracting.
Cannon referred to page 53 of Hanson’s notes. Cannon testified Giles stated they were going
to hold on Section 15.09, Cannon testified “I guess there was a little bit of
disagreement from the union and company, and Phil Giles was still making the
plea that the company should hire enough drivers to do all the work.” Cannon testified there was a discussion if
Respondent did not have enough drivers they were going to subcontract out to
temporary drivers or even owner operators.
Cannon testified the
The October 4 session was also attended by Ortt. Giles testified, and his notes reflect, that
when they opened the session, Giles made a verbal proposal pertaining to
subcontracting of unit work. Giles
testified he proposed the Employer agree the work of the bargaining unit shall
include but not be limited to the delivery of dairy products from the Marva
Maid Dairy in Landover, Maryland, to retail or wholesale facilities owned or
operated by (the name of the operation was left blank in the proposal), that
are 500 miles or less in total mileage and can be run without a layover. The Employer agrees that the deliveries now
being made in
Giles testified that,
after the break, Hanson stated as to subcontracting Respondent should have a
full complement of drivers by next week.
Giles testified Hanson had previously said that would be 27
drivers. Hanson stated if they had the
full complement of drivers, it was their intent to run the work they originally
bid on with company drivers and he hoped everyone would feel better. Giles responded the Union’s proposal was made
to protect the work the unit was handling when the
5. The October 15 strike vote
Giles testified that on October 15, he held a meeting with
members of the bargaining unit. Giles
called the meeting because he was receiving phone calls from members of the
union that people were very angry, “that they‑‑ they were anxious to
get a contract completed.” Giles
testified Tucker and Duncan served as conduits between bargaining unit members
and Giles. Giles testified Tucker,
Duncan, and other drivers called him.
Giles testified, “they were very upset about the pay structure. They were very upset about their benefits,
the fact that there was no contract in place.
So they were just, you know, upset about the whole situation really.”[47] Giles identified a sign in sheet
for bargaining unit employees containing 21 signatures for the October 15
meeting beginning at 9 a.m., and lasting until 10:55 a.m. Giles identified a two page handwritten
agenda that he testified he prepared prior to the start of the meeting. Giles testified the agenda was not all
inclusive of what was discussed at the meeting.
Giles testified Tucker opened the October 15, meeting with
a prayer, then Giles updated the membership on negotiations stating he felt
they were very close on agreement on a lot of the language in the
contract. Giles stated they must be willing
to maintain area standards regarding pay and benefits. Giles stated they would either get an
agreement or they would have to do something else. He stated if they had to do something else
they would have to act at a time which would have maximum impact. Giles stated he had filed strike paperwork
weeks ago but the constitution required them to take a vote on whether to
strike. Giles explained this gave the
committee the big stick that sometimes got things moving at the bargaining
table.
Giles testified he told the members there was an issue
that was probably being overlooked that they needed to understand, that
Respondent was subcontracting the bargaining unit work, that the Union had
filed unfair labor practice charges over this problem, and the outcome of the
negotiations did not mean a thing if Respondent continued to outsource their
work. Giles explained the situation in
more detail, and then he threw the meeting open to questions. Giles testified there was a lot of discussion
and people were asking for more details on what he told them. Giles could not specifically recall who spoke
at that time. He testified the
discussion, lasting about 30 minutes, was a general discussion with a question
and answer period. Giles testified he
explained to the membership about the unfair labor practice charges, that they
were important because it was always important to follow the law but even more
than that if the Company continued to divert the work we might have to take
action to stop the diversion. Giles
testified he discussed the complaint that issued over the termination of Angelo
Jackson, and that charges had been filed on the surveillance and the impression
of surveillance.
Giles testified that following the discussion they took a
strike vote which was unanimous to strike.
Giles stated if it became necessary to strike they would see a picket
line when they showed up for work and that they should join the picket
line. Giles testified he told the employees they were waiting to
strike because they were still in negotiations, that it was possible they could
resolve the charges, and it was Giles’ hope Respondent would stop diverting
work. Giles testified the diversion of
work was the main issue to him.
Giles’ written agenda for the meeting reflects a motion
was made by Tucker and
Tucker
testified that, during the meeting, Giles spoke about Respondent’s engaging in unfair
labor practices, specifically the firing of
Kevin
Cook testified that, during the meeting, Giles distributed a contract that
Respondent had given out, and Giles wanted to go over the whole contract. Cook testified they took a vote to see if
anyone wanted to accept the contract, and everyone turned the contract
down. Giles then explained what an
unfair labor practice was, and he stated all the work that came out of MMD was
their work as company drivers and no one could come in and take it from
them. Giles then passed out the ballots
to take a strike vote and asked if anyone had any questions or any
concerns. Cook testified he did not
recall what everyone said, but he stood up and said he was hurting “from losing
out on going to northern
Phillip Langhorn
testified the meeting started with Tucker leading a prayer and then Tucker
spoke for a minute stating they were not getting anywhere at the bargaining
table. Then Giles spoke and said the
meetings with Respondent were not going very well, “they weren't getting
anywhere, and so we had a strike, a vote to strike.” Langhorn testified, Giles told them what
Respondent had offered and it was not acceptable. When asked if he recalled Giles saying
anything about unfair labor practices, Langhorn testified, “The unfair labor
practice was with the owner operators running during our work.”[52] He testified the unfair labor
practice was what they were going on strike about. When asked what else was discussed with
regard to unfair labor practices, Langhorn replied, “we considered unfair was
getting paid by the mileage.” Langhorn
testified the drivers said they wanted to be paid by the hour.
Langhorn testified he
thought they discussed
Jameel Keys testified during the meeting Giles explained they would be
going on strike because the work was being given away to temporary drivers and
owner operators. Keys testified the
drivers took a vote and agreed if it came to it, they would be prepared to
strike. Keys did not know whether the NNJ
runs had started at the time the
a. Credibility
Giles credibly testified he did not take notes during the
October 15 meeting, but created the agenda outline prior to the time of the
meeting, except noting the ending time on the outline. In this regard, the agenda outline was only two
pages for close to a two hour meeting and was nowhere near the detail of the
contemporaneous notes Giles maintained during the collective bargaining negotiations.[53] The
second page of the agenda outline was mostly left blank except for a
description of the pre-planned motion by Tucker at the end of the meeting. I have also credited Giles and the testimony
of the bargaining unit employees that Giles discussed the unfair labor
practices at the meeting including the diversion of bargaining unit work. The negotiations leading up to the strike
vote did not focus on economics, rather the parties were dealing with language
issues including subcontracting. In
fact, subcontracting was discussed during the August 8, 9, and 30 sessions, and
the use of owner operators was specifically discussed on August 9.
On August 8, Purnell, the first owner operator, signed a
contract with Respondent and Purnell began to run routes for Respondent on a
full time basis on August 10. On
September 11 and 23, respectively owner operators Lane and Walker began to run
routes for Respondent. On September 27,
the
Thus, during negotiations leading up to the strike vote
the Union notified Respondent that subcontracting and the use of owner
operators was of major concern to the Union to the extent that the Union had
filed an unfair labor practice charge over the diversion of work, and the Union
was seeking injunctive relief. Both
Tucker and Giles also accused Respondent of manipulating loads to the benefit
of owner operators to the detriment of company drivers.
I find, in these circumstances, that it likely, as Giles
credibly testified, that during the October 15, meeting Giles told the members there was an issue that was probably being
overlooked that they needed to understand, that Respondent was subcontracting
bargaining unit work, that the Union had filed unfair labor practice charges
over this problem, and that the outcome of the negotiations did not mean a
thing if Respondent continued to outsource their work and to subcontract
it. Giles credibly testified he
explained to the membership about the unfair labor practice charges, and if the
Company continued to divert the work that they might have to take action to
stop the diversion. Giles credibly testified
he discussed the complaint that issued over
While
their memories varied as to the specifics of the meeting, the drivers who
testified supported Giles description of the meeting. Tucker testified Giles spoke about
Respondent’s engaging in unfair labor practices including the firing of
6. Contract negotiations November 7 to December
8
Giles testified that, during the November 7 session, subcontracting
was discussed and they again discussed Article 3, Management Rights. Giles told Hanson the
Giles testified his notes reflect a caucus at 2:10 p.m.
following Hanson’s proposal and Giles’ response. Giles testified he took Tucker and Duncan to
Giles’ office and explained to them that he had written verbatim the question
and answer in his notes and that he felt that he had nailed down the work that
Respondent had agreed to was the New Jersey work and that was the Union’s
work. Giles testified they were only out
six minutes and returned following the caucus.
Giles testified when they returned they told Hanson the Union agreed
with what he had just proposed and Respondent should withdraw Article 4.02,
which was Respondent’s proposal on casual employees. Respondent caucused and when they returned, there
was a discussion about Article 4.02, which Respondent did not agree to withdraw
during that session. Giles testified,
however, that during the November 7, session the parties tentatively agreed on
the language of Section 15.09. He
testified this was reflected in his notes made on the printed working document,
as opposed to his handwritten notes taken at the meeting. It is stated in Giles handwriting next to
15.09 of the printed working document, “TA 11-7-/06 2:17 p.m.” It was also stated in Giles actual notes of
the meeting that the parties reconvened from a caucus at 2:16 p.m., at which
point Giles stated “We agree.” The
latter comment was in obvious reference to Hanson’s proposal on
subcontracting. Giles testified
Respondent later withdrew its proposal on Article 4.02 during the November 9, session.[56]
Cannon testified referencing page 97 of Hanson’s notes that during the
November 9, session there was a discussion of the open issues and they were all
related to economics, wages, health and welfare, pension, overtime, holiday
pay, vacation pay, sick leave pay, a legal service plan, funeral pay, jury duty
time and pay for drug tests. Cannon
testified there was an understanding between the parties that nothing was
finally agreed to until the whole contract was agreed to.
Giles cited his
bargaining notes from December 6, in testifying that at the outset of that
session he stated that two complaints issued by the NLRB, and the Company
should follow the law.[57] Giles testified that following his
introductory remarks about the NLRB complaints, the remainder of the session was
a discussion on economics. Giles
testified that the four sessions following December 6, were also focused on
economics, such as wages, benefits, and vacation. He testified subcontracting issues were not
discussed at those sessions. Giles’
notes for the December 6 session reveal Respondent made its initial overall
economic proposal, which included a proposal on wages which called for
effective January 1, 2007, $45.5 per mile and $15 a stop. It was a five year proposal calling for a $.5
per mile increase per year, and beginning the second year of the agreement a
$.15 increase per stop a year. Following
Respondent’s presentation of the proposal, the
Cannon referencing page 116 of Hanson’s notes testified
that on December 6, there was a discussion from Giles wanting Respondent to
make a final offer. Cannon testified it
was not referenced in Hanson’s notes, “but as far as that I can recall, Mr. Giles
made a comment of putting the company's best foot forward or indicating what
you've got here, putting it all on the table.”
Cannon testified Respondent indicated they could put some more money on
the table, and then Giles “actually used, as far as what I remember, requesting
a best and last and final offer and also using a comment of putting the
company's best foot forward, putting it on the table, which–“ I do not credit, Cannon’s
testimony here. Hanson’s notes at page
116, reveal that the following exchange occurred:
JHH:
We’ve got some room in the mileage & stops
PG:
Put it on the table-don’t hold back – cut (illegible) the fat to the bone.
There is no reference in Hanson’s notes to Giles
using the term best, last final offer. I
am convinced if Giles had used such language Hanson, an experienced labor
attorney, would have referenced it.
Giles
testified Tucker and Duncan returned to negotiations for the December 7,
session. Giles testified that over night
he had looked at what Respondent had given him concerning pay records for drivers
Tucker and Hughes. He testified he tried
to extrapolate hourly pay from those records and it was very low on an hourly
basis. He testified that on December 7, he
told Respondent the records they had provided the
Giles
testified that, later on in that session, Respondent made a new economic
proposal, the terms of which are reflected in Giles notes of the meeting. Giles testified Respondent offered an
increase in mileage rates and in hourly rates for the jockeys. Giles testified that in response to the
proposal that he stated that what Cannon had said the previous day is exactly
what the problem is, and that the mileage pay would not work in the area. Giles stated they did not feel the driver
could make a fair wage on mileage pay and he asked if they would be willing to
work on a pay system that, within a certain radius of Landover, would be hourly
and beyond that would be a mileage-based pay system. Giles notes reflect that he suggested that
within a 75 mile radius of Landover the pay should be hourly pay. He suggested in the alternative rather than a
radius they could identify counties where there would be hourly pay. Hanson stated they would have to talk about
it before responding. He testified
Hanson responded, I do not know if we can get there. Giles stated where there is a will there is a
way. Hanson stated we were not going to
settle this contract based on the Giant contract. Giles responded, “forget Giant. We'll settle it with what we consider to be a
fair settlement.”
Hanson
later stated they could try to develop a matrix, but it is not possible to do
by tomorrow. Hanson stated they had
drivers that go into
At the beginning of the December 8, meeting, Giles
came forward with a proposal to Respondent.
Giles’ proposal as reflected in his notes was the drivers were to be
paid $18 an hour, $.15 per mile, and $10 per stop. Giles notes reflect he stated at the outset
of the session, “You want incentive pay, we want hourly pay. Let’s do both.” Giles proposal included, as reflected in his
notes, a daily and weekly guarantee as proposed, overtime as proposed, days off
as proposed, sick leave as proposed, H & W as proposed, pension -2.25 all
hours worked to Teamster National 401 (K) plan, holidays as proposed, vacation
as proposed, funeral pay as proposed, jury duty as proposed. It is stated in the notes that all leave
should be based on hourly rates.
According to Giles notes, Hanson responded after a caucus, “We
considered your proposal. The numbers
would annihilate us. An increase of
$800,000. We’re not interested in that
kind of cost.” Towards the end of the
meeting, Hanson told Giles that costs to the company were greater in the Union’s
second proposal than in the
On December 27, Region 5 issued a consolidated complaint
against Respondent. Included in the
complaint for the first time was an allegation that Respondent since July 10,
2006, and at all times since then, has assigned work performed by the Union to
other employees or independent contractors without prior notice to the Union
and without giving the Union an opportunity to bargain in violation of Section
8(a)(1) and (5) of the Act.
7. Testimony of Respondent’s witnesses
concerning the
need for and use of owner operators
Cannon testified there
came a point when Respondent considered using owner operators and this related
to the addition of 54 northern
Prevost testified that as part of the purchase of the dairy from Giant,
MMD negotiated a minimum volume requirement, and if Giant did not meet that
requirement, they were required to make a payment every month to MMD. After a few months, Giant indicated to MMD
that rather than make a cash payment, they would put the additional volume of
50 plus Stop & Shop locations located in
Prevost testified Miller, Respondent’s director of pricing and business
analysis, modeled the new routes using company tractors and using owner
operators and by far the most economically decision to MMD and to Respondent was
to use owner operators. Prevost
testified Landover did not have enough tractors with the original 21 cabs to
run the additional 54 northern NNJ stores.
He testified using owner operators was the most economical model for
Respondent as it required no capital investment and it required a lower cost to
the customer. Prevost testified
Respondent would have had a $900,000 to a million dollar in capital investment
if it leased or rented the additional tractors for the new work. He testified Respondent had done a leveraged
buyout in June 2005, so they had certain bank covenants. Prevost testified purchasing the tractors
would have affected Respondent’s debt to equity ratio and it would affect
Respondent’s fixed asset leverage ratio.
Prevost testified if the work went away, which it eventually did,
Respondent was not stuck with the equipment with owner operators.[62] Prevost
testified the longer the lease for the tractors the lower the fixed asset cost
because you are stretching the life of the asset over a longer period of
time. Prevost testified a month to month
lease would have been very expensive because lessors do not want to lease month
to month.
Prevost testified Respondent was able to lease additional
trucks on a daily basis for Mondays and Saturdays as part of its original deal
with Ryder to lease the 21 trucks.
Prevost testified when Respondent leased a daily vehicle from Ryder it
paid a fixed amount for the daily rental and a variable amount for the
miles. He testified Ryder has a pool of
vehicles for daily rentals. However, he
testified they do not have a pool of vehicles for high-mileage short-term
rentals. He testified that would have
depreciated Ryder’s asset so rapidly that it would have been cost
prohibitive.
Prevost testified there was nothing the
Cannon attended
negotiations between Respondent and MMD regarding rates for the NNJ runs. He testified Respondent decided it would need
an additional nine tractors to service the 54 NNJ stores. It was decided Respondent would also need an
additional 12 refrigerated trailers which Respondent purchased for this
operation. He testified Respondent did
not receive any compensation from MMD for the purchase of the trailers. Rather, Respondent was paid for the trailers
by the rate MMD paid for the operation.
Cannon testified there was a contractual penalty to MMD if it cancelled
the contract for the 54 stores prior to the end of the term in that MMD was
obligated to purchase the extra trailers from Respondent.[63]
Cannon testified Respondent’s decision to use owner operators rather than
company drivers for the NNJ runs was a collective decision by Respondent’s
officials. Cannon testified the reasons
were if Respondent used company drivers, they would have had to purchase
additional equipment in the form of nine sleeper cabs. He testified the decision to use owner
operators because Respondent did not want to spend the capital for the nine
sleeper cabs at a cost of $100,000’s each.
He testified the cost was the same whether Respondent purchased or
leased the cabs. Cannon testified there
was nothing the
Miller testified he analyzed the use of owner operators
for the 54 new stores. He testified the
cost of operating with owner operators versus the cost of operating company
equipment was a little less expensive to run with owner operators so Respondent
could use owner operators and not have to spend the capital to purchase
tractors. He testified the cost of the purchase
of 10 sleeper cabs would have been about $900,000. Miller testified Respondent would have been
in the same position if they leased the tractors or purchased them. Miller testified the leasing of cabs would be
a capital investment because Respondent would have to make a five-year commitment
for those tractors to a leasing company because a one year lease would be more
costly. Miller testified if they
purchased or leased sleeper cabs on a five year lease, if Respondent lost the
business, they would have to park the additional cabs or find some new
business.
Miller testified Respondent started pricing the new
business around July and finalized most of the details around the end of
September 2006. Miller testified, “We
looked at it under both methods, under company and under owner operators, and
we placed the bid based on the basis that we would try to use owner operators
because we felt that was the best way to do that from a business sense.” He testified once Respondent placed the bid
the cost was fixed whether Respondent used owner operators or company
drivers. Miller testified the projected
cost was about 4 1/2 cents per mile less to do the work with owner operators as
opposed to company drivers. Miller testified
the 4 and ½ cent per mile cost differential included the cost of leasing or
purchasing additional tractors. Miller
testified some of the company drivers actually made the NNJ layover runs on
company equipment. However, Miller claimed
he did not compare the actual cost of those runs by the company drivers to what
the owner operators were costing. Miller
testified that when he did the pricing for the 54 stores in July 2006, he did
not have any knowledge that the Landover stores were unionized and the union
status of Landover was not part of the pricing model. Miller testified they came up with the cost
of the owner operators by using what they thought the market would require to
hire owner operators which was around $1.13 per miles plus $15 a stop. He testified he did the analysis using those
figures.[65] Miller testified he concluded
concerning it would be best to hire owner operators to run the NNJ runs without
having to spend additional money on company equipment. Miller testified he provided that conclusion
to Prevost, who agreed.
Respondent’s records
reveal that it had 24 company drivers working the week of October 16. Respondent’s records reveal that it had
contracted with six owner operators by October 16. Cannon testified, “the purpose of the owner
operators, once the northern
Cannon testified the maximum owner operators Respondent had was 13, which
was during the course of the strike, and at the time of the hearing, Respondent
was still using some owner operators, although Respondent lost both the NNJ and
SNJ runs shortly after the start of the January 12, strike. He testified they used owner operators
through the strike from January 12 to March 2, 2007. Cannon testified the owner operators used
their own tractors but pulled the same trailers as company drivers and their
product was loaded by MMD as it was for the company drivers. The owner operators were listed on the
assignment board as were the company drivers.
Cannon testified referring to the owner operators, temporary
drivers and company drivers that “They all did the same work.”
Cannon testified that: During
the time period of June 1, through October 16, the company drivers could not
have handled all of Respondent’s loads because under Respondent’s model they
expected the company drivers to run more loads than they were actually
running. Respondent was expecting a
large percentage of drivers to run at least two loads a day, but they were not
doing that. As a result, Respondent had
to use temp drivers and owner operators.
Company drivers would also call off from work. Cannon testified it was less expensive for
Respondent to use owner operators than temporary drivers, when Respondent was
required to rent an extra tractor for the temporary driver.[70] Cannon testified from the start
of the operation to the time of the strike Respondent was trying to hire
company drivers.
Prevost testified the initial projected model for
Landover operations included 21 company drivers, and a six day a week operation
with first and second shift deliveries.
Prevost testified they were able to hire up to 21 company drivers at
some point, but still were not able to complete all of the loads. He testified they realized they needed change
the model to increase it to 26 company drivers to remedy the problem. Prevost testified they used company drivers,
temps, and “we brought in owner operators to train, once the
When asked why Respondent could not hire a full complement of company
drivers, Prevost testified there was a high turnover at Landover during the
March through December period. He
testified there was no longer high turnover among drivers at the time of the
hearing. He testified Respondent did not
lower its hiring standards. Prevost
testified Respondent’s last offer to the Union has been implemented at the
facility around a week after it was offered to the
Ortt testified as
follows: Respondent receives a daily fax from MMD in the afternoon showing the
number of dollies each store was receiving the next day. Ortt then broke the stores down into
geographic areas, took the amount of dollies each store was receiving and
planned the route for each trailer. Upon
Ortt’s completing the routes they were returned to MMD to load the trailers for
the next day’s deliveries. The
dispatcher and terminal manager decided which routes a driver would be
given. The dispatcher, at the time of
the hearing, was Arvester Horner.
Respondent tried to use company drivers by having them haul as many
loads as possible to maximize their pay and fleet usage. When Respondent ran out of company drivers
they resorted to temporary drivers and at some point it was temps and owner
operators.
Ortt testified that: Under
DOT regulations a driver cannot drive more than 11 hours or work more than 14
hours in a day. Respondent implemented a
sign up sheet, at the
Ortt
testified Respondent hired some of the owner operators prior to the start of
the NNJ runs. He initially claimed those
owner operators were only used if Respondent was short of company drivers
stating they would use the owner operators rather than calling temporary
agencies to fill the gap. He also
initially testified that prior to October the owner operators were not
scheduled every day, but were basically scheduled on an as needed basis if they
did not have their full compliment of company drivers come in. Ortt testified to offset the delay in the
start of the NNJ runs Respondent put the owner operators on hold, and “only
used them when we absolutely needed to, until the
Ortt testified it cost
Respondent at least $180 to $250 a day or more to use a temp driver than
company drivers. He testified if there
was no vacant tractor for the temporary employee then Respondent had to rent an
extra tractor. Respondent paid the temporary
agency by the hour for the temporary drivers, plus overtime rates. He testified Respondent was paying the
temporary agency $10 to $15 an hour per driver.
Horner had been employed by Respondent as a dispatcher since
July 15 at the time of his testimony.
Horner testified as follows: Saturdays were the heaviest days and Horner
could not meet deliveries with Respondents company trucks and drivers alone. It was also fairly busy on Friday and Monday,
with Monday being the second busiest day.
The set up was that no driver could be off on Saturday or Monday,
although sometimes they called in sick. On
Mondays, Horner also had more loads than drivers and trucks. Horner testified Respondent was renting three
to five extra tractors from Ryder almost every Saturday since Horner started,
and almost every Monday, they had to rent at least one tractor.[72] When they had more loads on a day
than they had scheduled drivers, he would first call company drivers who were
already working and if they were not available he would call company drivers
who were off that day. Once he exhausted
company driver availability, Horner would then resort to the temporary
drivers. Horner could call a temporary
agency and get a driver with as little as two hours notice on many
occasions.
Horner testified that at some point Respondent started
using owner operators. Horner testified
the owner operators were assigned loads “just like the regular drivers were
assigned the loads. If they called in
sick or to take a day off, like I said, I'm going to call the Company drivers
first, which I thought owner/operators, Company drivers, I went to them
first. If they was off, if they want to
run that extra load. If they don't want
to run that extra load, then I go to the temp.”
When asked if he treated the owner operators the same as he treated the
regular drivers, Horner responded, “They had a regular schedule? Yeah, they was
assigned the
Horner testified
Respondent receives a cube report from MMD detailing the milk to be delivered
the next day to the stores. The terminal
manager then routes the stores with no more than 50 dollies per trailer. Once everything is routed they send it back
to MMD to load the trailers according to Respondent’s routing directions. He testified it was possible for Respondent
to have altered the number dollies in a trailer to give more work to one as
opposed to another when they asked MMD to load the trailer. Horner testified he did not set the routes. Rather he received the routes and assigned
the driver to the route.
8. The January
12, 2007 strike.
Giles testified a decision was made to go on strike in the
last week of December. The decision was
made by the Union’s officers and Giles in consultation with the
Giles testified the
parties reached tentative agreement on the subcontracting issue on November 7,
and they bargained over economics and some other language issues after that
date. Giles testified he called the strike
in January because Respondent’s actions were contrary to what they had agreed
to concerning subcontracting. Giles
testified, “If you look at all my bargaining notes and you see the progression
of events, that led up to that tentative agreement, you will see that the
Company understood the Union's concern over the subcontracting and the Union's
willingness to, to allow limited subcontracting to allow the Company to operate
in the event that there was a sudden vacancy or absence for some reason. During this time, the Company continued to
hire additional owner operators, and also during this time, it was in mid
December, it was after we had had our December session, the Company suddenly
brought in, I don't know, 12, 15 drivers from other parts of the country and
were using them to ride with the existing bargaining unit members and do all of
that.[74] So I mean I didn't know where any
of this was going. Like I said though,
the actions of the company were contrary to what we had agreed to, in the
spirit to which we agreed to it. I'd say
it again. I wasn't trying to stop this
Company from offering service to its customer, to have service failures, but we
were certainly nailing down the scope of the work and the fact that bargaining
unit work should be done by bargaining unit members. And they continued to hire more owner operators
and divert additional work.”
Giles testified as follows: The strike began at 9:30 p.m.
on January 12, 2007. Giles called Tucker
at about 5 p.m. on January 12, and told him the strike was going to start at
9:30 p.m. and asked Tucker to meet Giles at the dairy at 9 p.m. When Tucker arrived, Giles had picket signs
and picket instructions available. A few
minutes before 9:30 p.m. they put the picket signs on and established a picket
line in front of the main entrance to the dairy facility. Giles had drafted letters dated January 12
addressed to MMD to the attention of Jan Tenpas and Walt Aumen, officials of
the Dairy. The letters state this was to
notify them on that date the
Giles identified the picket sign the
Cook testified he showed up for work at 4.m. the day of
the strike and was intending to go to work that day, but when he saw the picket
line he went on strike. Cook confirmed
his receipt of and Giles description of the unfair labor practice strike
instructions as well as Giles description of the picket sign. Cook participated in the picketing almost
every day. Cook testified, “I was on
strike to try to get the work back, try to make more money, because I was upset
for the owner/operators taking all of the work.” Cook testified he thought if they had gotten
a contract the strike would have ended and they would have gone back to
work. Cook testified he did not
understand the dispute in negotiations between the
Cook testified the owner operators were running varied
runs before the NNJ runs began in that they were given the same runs as the
company drivers. Cook testified he
earned the most money by running the longer distance runs due to the increased
mileage. Cook testified he thought the
use of owner operators decreased his income because they were giving them the
longer runs to NNJ. Cook told the
dispatcher he was willing to take the run, but he would just give it to the
owner operators. Cook testified he was
not getting those runs unless an owner operator was not available. Cook testified he remembered calling Ortt in
the morning and asking if he needed Cook to take a run, and Ortt said an owner
operator had taken it.[78]
Tucker testified he went
on strike because of the unfair labor practices, the firing of Angelo Jackson
and the diverting of bargaining unit work.
He testified there was no other reason he went on strike.[79] He testified if Respondent and
the
9. Contract negotiations January 2007
Giles
testified the January 15, 2007, session opened with Hanson stating they were
working on a mileage grid. Giles notes
read Hanson stated, “we’ve been working on a final offer. A mileage grid -
bands. Also some other economic
proposals and language, but let’s focus on the economics. We have some language on the shoe allowance
that we talked about B-4. We had also
talked about the 72 hours notice of picketing.”
During the meeting, Respondent presented a two page document, entitled
“Company’s Economic Proposal, January 15, 2007.” The proposal included a mileage matrix. Giles testified based on the work sheets
Respondent had provided the mileage matrix proposal came to a rate of $18.99 an
hour. Giles testified that Hanson
asserted the January 15 proposal was a 12.3 percent increase. Giles responded why not add the 12.3 percent
increase to the hourly rate Giles had calculated for a floor of $21.25 an hour
under Respondent’s mileage matrix.
Hanson responded they could not do that, they do not have it any where
in the company. Giles told Hanson that
he was going to have to do something to resolve the hourly pay versus mileage
and stops.
As
reflected by Giles’ notes, Hanson stated they had a huge philosophical
difference. Hanson stated he thought the
drivers would love the pay package.
Giles stated you do not know them.
Giles stated, as reflected in his notes, “You're in an area where hourly
pay, H and W, health and welfare, a pension paid by the employer, and they also
expect sick leave. None of that's
here.” The notes reflect Cannon stated
we put together this proposal and it was Respondent’s final offer. Giles stated we do not accept. Hanson asked Giles to let the drivers decide,
and Giles stated it would be rejected 100 percent. Giles’ notes reflect that towards the end of
the meeting, Giles stated they were not getting anywhere, and asked if Respondent
wanted to meet the next day. Hanson
responded, “I don’t think it would do any good.
I don’t know where the compromise lies then.” Cannon asked Giles if he was going to take
Respondent’s proposal to the members for a vote, and Giles stated no they had
two members there to ask them what they think of it. Cannon said they are only seven percent of
the group, that it was not fair to the other 93 percent. Giles asked what happens after it is
rejected? Cannon replied as reflected in
the notes, “we’re one step closer to getting through to the end.” At the end of the meeting, Giles asked if
this was Respondent’s last, best, and final offer, and both Cannon and Hanson
responded that was correct. Respondent’s
written January 15, 2007, economic proposal includes a proposed a matrix pay
system for the drivers based on a 5 year agreement. In the first year for the first two grids,
drivers whose routes were 0 to 75 miles were to receive $.55 a mile, and 76 to
150 miles, $.52 a mile. There were four
grids in all with routes of over 300 miles receiving $.46 per mile. All of the drivers were to be paid $17 a stop
for the first year, with $.25 increases per year.
Cannon testified he was informed by Giles the contract
offer was voted down unanimously by the members on January 16, 2007. Prevost’s testified Respondent
implemented its January 15 offer shortly after the start of the January 12,
strike. However, the
Giles
testified Respondent’s January 15 offer was incomplete. He testified there were still several
language issues open. He testified
Respondent had advanced numerous work rules in November, and the
At
the time of the hearing, the parties last met on January 17, 2007, with a federal
mediator. Giles testified that during
that session, the Company made a slight modification by proposing a conditional
weekly guarantee on wages. He testified
there was still movement being made. Giles
characterized movement by the
JH-We have, in the
economics, 5 major areas of disagreement:
1-Producitvity pay-same all around the country. 40% union
2. O/T + Guarantees- We don’t pay o/t. It’s factored into the pay structure.
3. P/H/sick leave-
4. H & W—We have offered a company plan, we would do
L639 H & W but all have to contribute to the plan.
5. Pension- U has proposed 639 pension, has moved off of
that & proposed Teamsters Nat’l 401 (k) w/defined contribution, we have an
ESOP + have shown the value of that. We
also have a
PG-Responds to the 5 above + rules + regs +bargaining unit
work.
JH- A lot of the language issues will fall into place as
we get it done.[81]
Giles testified on January 17, after meeting with the Respondent,
Mediator Lynn Sylvester returned to talk with the
LS- I told the Company that the answer to the question is
somewhere in the middle. The concept
they are willing to discuss is:
Guaranteed weekly amount w/ the following
1 5 days of availability, including Sat.
2. Doesn’t apply to unexcused absences.
3 Could not refuse load if hours available.
Giles testified after Sylvester gave the
PG- Flesh out what your concept is.
JH- Must be available to work 5 days including Saturday,
doesn't apply on unexcused absences. Cannot refuse a load w/hrs available.
PG- How would you determine the guarantee?
JH- It would be a weekly minimum.
PG- We're not any closer than we were five hours ago. What about hours, miles and stops?
JH- We're not interested in hourly wages.
LS- It seems to me that what it comes down to is what the
numbers are.
JH- 5 mos of thinking about it, I still don't know what
the solution is.[82]
Giles testified then they took a break and Sylvester met with Respondent. Giles’ notes reveal that when she returned
she ended the session by stating:
LS –We’re at the end of the rope for today. I’ve asked them to go back & look at some
other things and I’ll stay in touch w/ the
Giles testified he did not agree that there was no movement at the
January 17 session. However, Giles
testified all Respondent ever proposed was miles and stops. When asked if that ever changed from the
beginning, Giles responded, “I don't think so, no.”
Cannon testified he recalled talking to Hanson about some
type of daily or weekly guarantee. When
asked if Respondent made a formal proposal to the
4:22 p.m.
PG, Mr. Giles: Flesh out concept.
JHH: Explained weekly guarantee. They can't refuse loads, unexcused
absences.
It is reflected at page 203 of the notes:
PG: Weekly guarantee ties to hours. Will, and then 40 or 70 hours, won't agree to
something that's not fair.
JHH: Eyes of the beholder.
PG: (Talked about)
PG: Boils down to we're not interested in mileage
and you're not interested in hourly.
JHH: Can't figure out how to bridge that gap.
E. Analysis
a. Legal principles
In
Fibreboard Paper Products Corporation v.
NLRB, 379 U.S. 203, 209, (1964), the Court stated, on the facts therein,
that contracting out of work previously performed by bargaining unit employees
is a subject about which the Act requires bargaining. There the Court approved the Boards “directing
the Company to resume its maintenance operations, reinstate the employees with
back pay, and bargain with the
The
facts of the present case illustrate the propriety of submitting the dispute to
collective negotiation. The Company's decision to contract out the maintenance
work did not alter the Company's basic operation. The maintenance work still
had to be performed in the plant. No capital investment was contemplated; the
Company merely replaced existing employees with those of an independent
contractor to do the same work under similar conditions of employment.
Therefore, to require the employer to bargain about the matter would not
significantly abridge his freedom to manage the business.
The Court
also emphasized that a desire to reduce labor costs was a matter “peculiarly
suitable for resolution within the collective bargaining framework…”Id at 214.
In First National Maintenance Corp. v NLRB, 452
We conclude that the harm likely
to be done to an employer's need to operate freely in deciding whether to shut
down part of its business purely for economic reasons outweighs the incremental
benefit that might be gained through the union's participation in making the
decision, and we hold that the decision
itself is not part of § 8(d)'s “terms and conditions,…”
The Court cited the facts of the case to show the limits of
its holding. In that case, the Employer
decided to terminate its cleaning contract with a nursing home, and it had no
intention of replacing the discharged employees or moving the operation
elsewhere. The employer’s sole purpose
was to reduce its economic loss and there was no claim of antiunion
animus. The employer’s dispute was with
the nursing home over the size of its management fee to be paid to the employer. The Court noted the union was not selected as
the bargaining representative or certified until well after petitioner's
economic difficulties with the nursing home had begun. Thus, the Court was not faced not faced with
an employer's abrogation of ongoing negotiations or an existing bargaining
agreement. The Court noted the decision
to halt the work at the location in question represented a significant change
in the employer’s operation, not unlike opening a new line of business or going
out of business entirely. Id at 687-688.
In Torrington Industries, Inc., 307 NLRB 809 (1992), the Board
majority found the employer violated Section 8(a)(5) of the Act by laying off
two bargaining unit employees and replacing them with a nonunit employee and
independent contractors, without giving the union notice to bargain about the
decision and the effects on unit employees.
The Board cited Justice Stewart’s concurring opinion in Fibreboard for the proposition that when
all that is involved is the substitution of one group of workers for another to
perform the same work at the same plant under the ultimate control of the same
employer that such decision does not involve a change in the scope and
direction of the enterprise and is therefore not a core entrepreneurial
decision which is beyond the scope of the bargaining obligation. The Board majority concluded that, given the
circumstances, it did not have to address the issue as to whether labor costs
were a factor of the employer’s decision to subcontract since the employer’s
reasons had nothing to do with a change in the scope and direction of its
business. Rather, the employer simply
replaced two employees hauling sand and stone with a nonunit employee and
independent contractors. The Board
majority noted that no substantial commitment of capital or change in
the scope of the business would be involved in negotiating with the
In Naperville
Ready Mix, Inc., 329 NLRB 174 (1999), enfd. 242 F.3d 744 (7th
Cir. 2001), cert. denied 534 U.S. 1040 (2001), the Board found the employer
violated Section 8(a)(5) of the Act when in the midst of contract negotiations
and within three days of a strike it instructed its attorney to draft documents
setting up ten corporate shells, in which the titles of certain of the
employer’s trucks were placed. After
examining the nature of the transactions, the Board concluded they were not
arms length business arrangements, but rather stratagem designed to give the
appearance rather than the effect of removing the employer from the ready mix
business. It was concluded the employer
engaged in a type of subcontracting to subcontractors of its own creation. It was found there was no major shift in the
direction of the employer’s business, rather it continued to engage in the
delivery of ready mix product to construction sites with the only difference
the work that was being performed by bargaining unit drivers changed to being
done by “owner drivers” through an elaborate subcontracting arrangement. It was also noted that the employer did not
engage in a significant redirection of capital in that before and after the
purported sale of the corporations into which title of the trucks had been
placed, the employer continued to bear financial risk because the new owners
had not yet paid for the trucks. Thus,
the employer continued to use the same equipment in which it continued to have
an ownership interest. The Board stated,
the employer’s basic operation remained unchanged, and it merely replaced the
employees driving the trucks with other employees under the owner operator
rubric, and in some cases it used the same employees under the new title,
maintaining essentially the same control over them that it always enjoyed. The Board concluded its motivation for
engaging in this maneuver was its concern over the labor costs of a union
contract. The Board found for labor cost
reasons the employer subcontracted the work to employees named as owners of the
various corporations its attorney had set up.
In Overnite
Transportation Co., 330 NLRB 1275, 1276 (2000), affd. in part, reversed in
part 248 F.3d 1131 (3rd Cir. 2000) (nonpublished), the Board majority cited the
rationale pertaining to subcontracting in Torrington
Industries, supra. with approval. In
Overnite, the Board majority stated:
At issue here is a decision to deal
with an increase in what was indisputably bargaining unit work by contracting
the work to outside subcontractors rather than assigning it to unit
employees. We think it plain that the
bargaining unit is adversely affected whenever bargaining unit work is given
away to nonunit employees, regardless of whether the work would otherwise have
been performed by employees already in the unit or by new employees who would
have been hired into the unit. In any
event, it is not clear in this case that the Respondent’s current employees did
not, themselves, lose work opportunities. Overnight,
supra at 1276.[83]
Thus,
the Board has held that a bargaining unit is adversely impacted when new work
is subcontracted out rather than letting the unit expand.
In Acme Die
Casting, 315 NLRB 202 fn. 1 (1994), the Board majority noted that
In Sociedad Espanola de Auxilio Mutuo y Beneficiencia
de P.R. v. NLRB, 414 F.3d 158, 166-167 (1st
Cir. 2005), the court citing the Board’s decision in Acme Die Casting, supra enforced the Board’s finding of unlawful
subcontracting holding that the subcontracting was a mandatory
subject of bargaining even if it did not result in loss of union jobs. The court stated:
There is
good reason for the Acme Die rule.
Union members have an interest in an employer's subcontracting decision in
addition to the potential for layoffs. This work provides bargaining unit
members with the opportunity to obtain extra shifts (possibly at overtime
rates) or to expand the size of the unit through the hiring of new employees.
Considering these interests (and possibly others), the Board has reasonably
concluded that the duty to bargain over subcontracting extends beyond the
circumstance where the employer's subcontracting decision will result in the
direct loss of union employment.
In Regal
Cinemas, Inc., v. NLRB, 317 F.3d 300 (D.C. Cir. 2003), the court affirmed
the Board’s finding that a movie theater operator violated Section 8(a)(5) of
the Act by refusing to bargain over its converting to manager operated theaters
and terminating its union represented projectionists. The court in Regal Cinemas stated:
Here, the Board affirmed the ALJ's conclusion that the Fibreboard/Torrington approach governed Regal's decision to convert to manager-operated
theaters and thereby eliminate the projectionist position. This conclusion
stemmed directly from the ALJ's determination that Regal "has continued to
operate the same business at the same locations and the only change is in the
identity of the employees doing the work." JDA 16. On review, Regal
maintains that the Board's decision cannot be sustained due to its reliance
upon
* * *
Although the instant case involves a transfer of unit work to managers
and assistant managers, and not a transfer of unit work to an outside
subcontractor, we find this distinction to be irrelevant. What matters, in our
view, is that Regal, like the employer in Rock-Tenn, transferred "
'the same work' " performed by the union-represented projectionists to its
managers and assistant managers " 'under similar conditions of employment,'
" and did so, not because of technological change but, instead, to reduce
its labor costs.
In Dallas & Mavis Specialized Carrier Co.,
346 NLRB 253, 258 (2006), the Board citing Fibreboard
Paper Products v. NLRB, supra.,
and Torrington Industries, supra.,
found the transfer of work for bargaining unit truck drivers to
owner operators to be violative of Section 8(a)(5) of the Act. The Board stated
We reject the Respondent's argument that the decision to replace
employee drivers with owner-operators was a change in the scope, nature, and
direction of its enterprise pursuant to First National Maintenance Corp. v.
NLRB, supra. The Respondent's transfer of the Belvidere-Toledo run to the
owner-operators involved “nothing more than the substitution of one group of
workers for another to perform the same work.” Gaetano & Associates, 344 NLRB 531, 533 (2005) (citing Fibreboard
and
In San Luis Trucking, Inc., 352 NLRB No. 34 (2008), the Board approved
the judge’s findings that an employer violated Section 8(a)(1) and (5) of the
Act by transferring a majority of its trucking work from its wholly owned
subsidiary to another company. In
finding a violation of Section 8(a)(5) the judge concluded that the
subcontracting of the work did not alter the employer’s basic operations as
goods were still transported from the subcontractor to the employer’s stores
and warehouse. Rather, the essential
difference was a change in the identity of the drivers who transported the
grocery goods, and no capital investment was made by or contemplated by the
respondent in connection with its decision, in that the respondent had all
times maintained its subsidiary’s trucks in a state ready for activation. The judge stated in San Luis Trucking, id., JD slip op. at 20-21 that:
The Respondents' decision to substitute
Unified for SLT to transport grocery goods for Factor Sales was motivated, at
least in part, by labor costs, which are amenable to collective bargaining.
This is demonstrated by the Respondents' reliance on SLT's alleged losses as a
reason for the transfer of SLT's business to Unified. Dorsey Trailers, Inc., 321 NLRB 616, 616-617 (1996), enf. denied
134 F.3d 125 (3d Cir. 1998); Rock-Tenn
Co., 319 NLRB 1139, 1139 fn.2 (1995);[84] Furniture Renters of America, Inc., 311
NLRB 749, 750 (1993) enf. denied 36 F.3d 1240 (3d Cir. 1994) ("labor costs
were a factor in the subcontracting decision").
* * *
Alternatively, ‘it is well established
that an employer's subcontracting decision cannot be a legitimate
entrepreneurial decision exempt from bargaining when, as here, antiunion
considerations are at the heart of the alleged fundamental change in the
direction of the corporate enterprise.’ Joy
Recovery Technology Corp., 320 NLRB 357 fn. 3 (1995), enfd. 134 F.3d 1307
(7th Cir. 1998). Thus, even
if the Respondents' decision to subcontract SLT's transportation business to
Unified were deemed to constitute a change in the scope and direction of the
business, the decision would nevertheless be a subject of mandatory bargaining
if it was motivated by antiunion considerations. The
evidence demonstrates that the Respondents' decision to subcontract SLT's
transportation business to Unified was motivated by and was in response to the
union activities of SLT's drivers. [FN11] Accordingly, the Respondents' failure
to notify the
b. Respondent unlawfully diverted bargaining unit work[85]
In the instant case, on March 27, Respondent began operations at
Landover servicing about 200 Giant stores in
The
NLRB election was held on June 22, and a certification of representative was
issued for the
The testimony of
Respondent’s officials reveals that, sometime in June or July, MMD approached
Respondent about the addition of NNJ runs, which was initially estimated at 35
stores, and then increased to 54 stores.
Cannon testified Respondent was informed the NNJ stores were going to be
500 and 600 mile roundtrips, and many of the new routes would require a layover
for the driver. Cannon testified the
start of the NNJ runs was expected by Respondent to be in the latter part of
August, but it was pushed back several times by MMD to the actual start date of
October 16.
As
a result of the upcoming contract for the new runs, Cannon contacted and met
with company driver Branch, after the June 22, election sometime in late June
or early July, and he offered Branch a chance to convert to owner
operator. Cannon told Branch the pay as
an owner operator was $1.13 a mile, $18 dollars a stop, and $.33 a mileage
surcharge. Cannon also discussed with
Branch other requirements in that the owner operator would have to maintain at
least $1,000 escrow account, and the possibilities of purchasing a license
plate for the truck through Respondent. Branch
felt the money Respondent was offering was not sufficient for local runs, but
agreed to convert to owner operator status when the longer NNJ runs began.[86]
On July 16, Branch met
with Giles and showed him a copy of the “Independent Contractor Agreement”
Cannon had given Branch. Branch also
discussed with Giles rates Respondent was offering Branch if he agreed to
convert to owner operator status. On
July 17, Giles sent by fax to Taylor, a letter stating, “It has come to our
attention that Quickway intends to offer or already has offered bargaining unit
work to drivers and hostlers on an independent contractor, or owner-operator
basis. Such improper diversion of
bargaining unit work would violate federal labor law and demonstrate bad faith
on the part of Quickway in refusing to bargain with its certified collective
bargaining representative.” Giles went
on to state that the Union demands Respondent immediately engage in good faith
collective bargaining over any proposed change in Quickway’s operations, as
well as to begin negotiations for a collective bargaining agreement.
Cannon responded to
Giles by letter dated July 28, in which Cannon stated the Respondent has
equipment and needs for 26 to 27 company drivers, but only had 22 and had been
supplementing the workforce with temporary employees. Cannon stated the Respondent was actively
seeking to hire additional company drivers to fill company trucks in an effort
to cut costs by decreasing the use of temporary employees. Cannon also told Giles that Respondent had
been advertising for independent contractors in that they anticipated some
additional runs that would require layovers.
Cannon stated Respondent did not have enough company drivers to perform
its current work, and it did not have any sleeper cabs at Landover. Cannon stated, “Using company route drivers
is therefore not an option, and Quickway will have to supplement its workforce
with independent contractors who have sleeper cab equipment. Those independent contactors may also
supplement any work that cannot be performed by route drivers with company
equipment. Suffice it to say, however,
despite Quickway Transportation’s plans to use independent contractors, no work
is being diverted or taken from bargaining unit employees.”
Respondent contracted
with Thomas Purnell as its first owner operator out of Landover on August 8 and
Purnell began running routes on August 10.
Purnell’s records show beginning August 14 through October 16, Purnell was
working a full time schedule for Respondent equivalent to the full time
schedule of the company drivers. Purnell
was running all local runs during this period, which theretofore had been
performed by the company drivers or temporary employees.
Contract negotiations
began on August 8. Giles testified in
preparing for negotiations, he obtained copies of four contracts which
Respondent had at other terminals with other Teamster locals. Giles testified that in all four contracts
owner operators were covered by the collective bargaining agreement.[87] During the August 8, session,
Giles informed Respondent that while they may reach tentative agreements on
specific proposals nothing was agreed to until they reached an agreement on
everything. The
Giles credibly testified, as reflected in his bargaining notes,
that during the August 9, session, Hanson stated when and if Respondent
obtained some additional work that involved layovers, they would come to the
JHH: Using o/o’s-replace rent-a-driver-may use in place of—our workforce
exhausted.
MO: To cover the temp
CC: O/o’s can’t get into some stores- a handful
KT: Will take away from us –my runs
JHH: Not trying to take away from our drivers
PG: Only cannot be run by co. drivers?
Cannon testified there was a discussion that Respondent was going to
replace the temporary agency drivers that Respondent was using to supplement
their company driver fleet with owner operators. Thus, Hanson’s notes reveal the
Respondent signed its second contract for an owner
operator with Lane on September 5,[89] and entered a contract with the
owner operator Walker on September 19.[90] On September 27, the Union filed an unfair
labor practice charge alleging Respondent had diverted and/or subcontracted
bargaining unit work by using independent owner operator delivery drivers
without bargaining in good faith with the
The parties met on
October 2. Giles opened up the meeting talking about owner operators stating he was going
to go to the NLRB for a Section 10(j) injunction. Cannon testified Hanson stated Respondent had
been subcontracting since the start by using temp drivers, and now Respondent
was going to use owner operators doing the same type of work. Cannon testified the Union made a claim that
Respondent was taking stops off current loads to make up additional loads just
to give owner operators work. Giles
credited testimony reveals that at the beginning of the October 2 meeting,
Hanson responded to Giles’ concern about Respondent’s using owner operators, by
stating Respondent had been subcontracting since they started the Landover operation
by using temp drivers. Hanson stated if
someone feels cheated about this tell us.
During this session both Giles and Tucker accused Respondent of taking
stops off company drivers’ loads, and Tucker’s in particular, and giving those
stops to owner operators.
The discussion about owner operators continued later on
during the October 2, session. Giles again
asserted that owner operators were being used to do bargaining unit work. Hanson responded the Respondent was going to
use owner operators on runs that require a layover. Giles responded that any delivery made from
that dairy was bargaining unit work, and that giving it to an owner operator
without bargaining with the
(general
discussion re subk. & NJ runs)
-Co has subc BU work since start of operation
-Co uses o/os everywhere else
-Co will discuss new work with union to see if drivers want that work
-Co will decide when to add driver and equipment
-Co will cost new work by o/os vs. co. driver
During October 3 session,
the parties discussed proposed Article 15.09 concerning subcontracting. Giles told Hanson concerning Article 15.09
that the
During the conversation, Hanson stated he anticipated that
they were going to start getting some NNJ work in about two weeks. Hanson stated some of the routes were up to
500 plus miles, might have 6 stops on them, that on average they would be
around 475 miles a trip with 5 stops. He
said they estimated that it would take 12 to 16 hours to run these trips. Hanson stated 65 percent of the routes would take
over 14 hours to run. Hanson stated they
had done some costing for the routes using owner operators versus company
drivers with per diem and hotel, and that it would be 3.5 to 9.5 cents a mile
less to use owner operators. Giles asked
what would the costs be without per diem and a hotel, and Hanson said he would
have to figure that out. Hanson told
Giles Respondent calculated $25 per day per diem and $75 a day hotel costs if
they had to layover someone without a sleeper cab. Giles responded that $75 a night for a hotel
could buy a lot of sleeper cabs. Giles
asked what Respondent was proposing to the owner operators and Cannon responded
the stop pay was $1.33 a mile, and he said that was based on $1.13 a mile and
$18 per stop. Hanson said the tolls were
the owner operator's expense. Giles
notes reflect that Hanson stated they were proposing to use owner operators for
the
The parties again discussed Article 15.09 later on during
the October 3 session. Giles stated that
Article 15.09 and the last sentence of Article 3, which provided for unlimited
subcontracting was a major problem.
Giles stated the company was going to have to do something about it or
this was all just a big waste of time.
Giles stated, if you think I'm going to negotiate a contract that allows
unlimited subcontracting, then “I'm pissing in the wind.” Hanson stated we now have 24 drivers, the
work we started with, Respondent figured they would need 27 drivers and that
was what they want to have. Giles stated
as new work is added, the Union wanted their membership to grow, and if work
was doable with company drivers, the
When the October 4 session opened, Giles made a verbal proposal pertaining to the subcontracting of unit
work. Giles proposed the Employer agree
the work of the bargaining unit shall include but not be limited to the
delivery of dairy products from the Marva Maid Dairy in
Giles called a union meeting on October 15, where a
strike vote was taken. During the
meeting, Giles told the members there was an issue that was
probably being overlooked that they needed to understand, that Respondent was
subcontracting bargaining unit work, that the Union had filed unfair labor
practice charges over this problem, and that the outcome of the negotiations
did not mean a thing if Respondent continued to outsource their work and to
subcontract it. Giles told the
membership if the Company continued to divert the work that they might have to
take action to stop the diversion. Giles
discussed the complaint that issued over
Respondent’s had 24
company drivers working the week of October 16, and Respondent had contracted
with six owner operators by October 16. Respondent’s
records reveal following October 16, company drivers and owner operators
regularly ran NNJ runs. Respondent’s
records reveal that between October 16 and December 30, there were 16 days in
which owner operators ran non New Jersey routes referred to as local runs which
prior to October 16 had been run by the bargaining unit; there were seven days
in which owner operators ran SNJ routes which prior to October 16, had been
performed by the bargaining unit; and there were nine days in which owner
operators ran mixed SNJ and NNJ routes.
During the November 7,
session, the parties came to a tentative agreement on subcontracting by
agreeing to Article 15.09, based on Hanson’s verbal representation during the
meeting that the work presently being performed was bargaining unit work. At that time, as referenced above, company
drivers were running some of the NNJ runs.
However, despite Hanson’s representation during bargaining that
Respondent intended to run the runs other than the NNJ runs with bargaining
unit members, the owner operators continued to run both the SNJ runs and local
runs after October 16. Toward the end of
the December 8, session, the last meeting before the strike, Giles stated this
was not going to last much longer, that they needed to wrap this up now, that
they were not going to let this drag on for months. Respondent refused Giles’ request for a quick
resumption of negotiations stating earliest the they could meet was January 15,
2007. At the end of the meeting, Giles
stated, the “men and the union are really pissed over these ULP’s. The Company needs to stop breaking the law.”
Cannon testified that in
early December, Prevost had instructed him to begin preparations for a
strike. In this regard, during this time,
Respondent continued to increase the number of owner operators contracting with
additional owner operators on November 14, November 29, December 11, and
December 21, and Cannon brought in drivers from outside company to train on
Respondent’s Landover procedures. On December 27, Region 5 issued a
consolidated complaint against Respondent.
Included in the complaint for the first time was an allegation that
Respondent since July 10, 2006, and at all times since then, has assigned work
performed by the Union to other employees or independent contractors without
prior notice to the Union and without giving the Union an opportunity to
bargain in violation of Section 8(a)(1) and (5) of the Act.
Giles testified a
decision was made to go on strike in the last week of December. Giles testified it was decided the strike
would begin on January 12, 2007. Giles credibly
testified that, “What triggered the decision in the last week of December was
the National Labor Relations Board issued a complaint against the Company over
the diversion of bargaining unit work.” Giles
testified the parties reached tentative agreement on the subcontracting issue
on November 7, and they bargained over economics and some other language issues
after that date. Giles testified he
called the strike on January 12, 2007, because Respondent’s actions were contrary
to what they had agreed to concerning subcontracting. Giles testified, “If you look at all my
bargaining notes and you see the progression of events, that led up to that
tentative agreement, you will see that the Company understood the Union's
concern over the subcontracting and the Union's willingness to, to allow
limited subcontracting to allow the Company to operate in the event that there
was a sudden vacancy or absence for some reason.” He testified during this time Respondent
continued hire additional owner operators and in mid December Respondent
brought in 12 to 15 drivers from around the country to ride with bargaining
unit members. Giles testified, “I wasn't
trying to stop this Company from offering service to its customer, to have
service failures, but we were certainly nailing down the scope of the work and
the fact that bargaining unit work should be done by bargaining unit
members. And they continued to hire more
owner operators and divert additional work.”
The strike began at 9:30 p.m. on January 12, 2007. Giles was present for the start of the
strike, at which time he handed out picket signs using the term “Unfair” and he
gave out printed instructions to the bargaining unit members stating “You are
helping to publicize the strike by Teamsters Local Union No. 639 against
Quickway Transportation for their unfair labor practices.” On that same evening, Giles hand delivered
two letters to officials of MMD notifying them that the
1. Respondent’s use of owner operators was presented
to the
Sometime after the
The parties met on
August 8, for their initial negotiation session, at which time Respondent
proposed for unlimited subcontracting as part of its management rights
clause. While Respondent had contracted
with owner operator Purnell on August 8, it did not inform the
Thus, despite Giles July
17, demand to bargain, Respondent’s officials gave the
Following
the August sessions, Respondent signed on two more owner operators in
September, and on September 27, the
Thus,
on October 2, Hanson told Giles that owner operators were not company
employees, and were not part of the bargaining unit. He told Giles to the extent Respondent used
owner operators as they had temporary employees Respondent would not bargain
over their usage, and he rejected Giles suggestion of possibly including owner
operators in the collective bargaining unit as they were at Respondent’s other
locations. He made the statement that
Respondent would bargain with the
During the October 3,
session, Giles stated bargaining unit work should be covered by union members
and Respondent should maintain enough drivers to do the work of the unit. Hanson said if we do not have enough drivers
to get the work done, then we will subcontract it. Giles stated if the normal work of the union
requires 25 people, the company should have 25 drivers, not 10 and say they can
subcontract the rest. During the
conversation, Hanson stated he anticipated that they were going to start
getting some NNJ work in about two weeks.
Hanson stated some of the routes were up to 500 plus miles, might have 6
stops on them, that on average they would be around 475 miles a trip with 5
stops. Hanson stated they had done some
costing for the routes using owner operators versus company drivers with per
diem and hotel, and that it would be 3.5 to 9.5 cents a mile less to use owner
operators. Giles asked what would the
costs be without per diem and a hotel, and Hanson said he would have to figure
that out. Hanson told Giles Respondent
calculated $25 per day per diem and $75 a day hotel costs if they had to
layover someone without a sleeper cab.
Giles asked what Respondent was proposing to the owner operators and
Cannon responded the stop pay was $1.33 a mile, and he said that was based on
$1.13 a mile and $18 per stop. Hanson
said the tolls were the owner operator's expense. Hanson stated they were proposing to use
owner operators for the
When providing the Union
with the costs of the owner operators, Respondent’s officials failed to mention
the owner operators were also being paid a fluctuating fuel allowance, and he incorrectly
told the
It is a violation of
Section 8(a)(5) of the Act for an employer to change a mandatory term or condition
of employment without bargaining with a union.
Litton financial Printing Div. v
NLRB, 501
Of course, there are certain compelling economic considerations that the Board has long recognized as excusing bargaining entirely about certain matters. The Board has limited its definition of these considerations to “extraordinary events which are 'an unfores