NOTICE: This opinion is subject to formal revision before
publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive
Secretary, National Labor Relations Board,
New Concept Solutions, LLC and Freight Drivers and Helpers Union No. 557 a/w International Brotherhood of Teamsters[1] and Federation of Private Employees, Party in Interest and International Brotherhood of Trade Unions, Local 713, Party to the Contract. Case 5–CA–30312
May 25, 2007
DECISION AND Order
By Members Liebman, Schaumber, and Kirsanow
On August 12, 2003, Administrative Law Judge C. Richard Miserendino issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel and Charging Party filed answering briefs, and the Respondent filed a reply brief. The General Counsel filed cross-exceptions, and the Respondent filed an answering brief.
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,[2] and conclusions and to adopt the recommended Order as modified and set forth in full below.[3]
ORDER
The National Labor Relations Board adopts the recommended
Order of the administrative law judge as modified and set forth in full below,
and orders that the Respondent, New Concept Solutions, LLC,
1. Cease and desist from
(a) Refusing to hire bargaining-unit
employees of Leaseway Motorcar Transport Company (Leaseway), the predecessor employer,
because of their union-represented status in the predecessor’s operation, or
otherwise discriminating against these employees to avoid having to recognize
and bargain with the Freight Drivers and Helpers Union No. 557, a/w
International Brotherhood of Teamsters (the Teamsters).
(b) Refusing to recognize and bargain in good faith with the Teamsters as the exclusive collective-bargaining representative of its employees in the following appropriate unit:
INCLUDED: All full-time and regular part-time employees who are utilized by the Company in the movement of motor vehicles from motor vehicle manufacturing facilities and/or storage areas and/or loading and unloading of those motor vehicles.
EXCLUDED: All other employees, office clerical employees, guards and supervisors as defined in the Act.
(c) Unilaterally changing wages, hours, and other terms and conditions of employment of the employees in the above-described unit without first giving notice to and bargaining with the Teamsters about these changes.
(d) Assisting and recognizing the Federation of Private Employees (FOPE) and/or International Brotherhood of Trade Unions, Local 713 (Local 713), as the exclusive representative of its employees.
(e) Entering into and enforcing collective-bargaining agreements with FOPE and Local 713 containing union-security and dues-checkoff provisions.
(f) Coercing its employees to select FOPE and/or Local 713 as the exclusive representative of its employees.
(g) Granting FOPE and/or Local 713 unrestricted access to its facilities and employees in order to solicit members, while denying access to the Teamsters.
(h) Enforcing and/or giving effect to the collective-bargaining agreement with Local 713; provided, however, that nothing in this Order shall authorize or require the withdrawal or elimination of any wage increase or other improved benefits or terms and conditions of employment that may have been established pursuant to the performance of that collective-bargaining agreement.
(i) Telling its employees to ignore the Teamsters and that the Respondent has hired an off-duty police officer to patrol the yard for the employees’ protection.
(j) Telling its employees that the Teamsters had put Leaseway out of business because of the high wages the company had to pay and that the Respondent could not afford to pay those wage rates.
(k) Telling its employees that it was in their best interest to belong to a union, but that the Respondent wanted some control over which union was selected.
(l) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to effectuate the policies of the Act.
(a) Notify the Teamsters in writing that it recognizes that Union as the exclusive representative of its unit employees under Section 9(a) of the Act and that it will bargain with it concerning terms and conditions of employment for employees in the above-described appropriate unit.
(b) Recognize and, on request, bargain with the Teamsters as the exclusive representative of the employees in the above-described appropriate unit concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement.
(c) At the request of the Teamsters, rescind any departures from terms and conditions of employment that existed immediately prior to the Respondent’s takeover of predecessor Leaseway’s operation, retroactively restoring preexisting terms and conditions of employment, including wage rates and benefit plans, until it negotiates in good faith with the Teamsters to agreement or to impasse.
(d) Make whole, in the manner set forth in the remedy section of the judge’s decision, the unit employees for losses caused by the Respondent’s failure to apply the terms and conditions of employment that existed immediately prior to its takeover of predecessor Leaseway’s operation, subject to Respondent demonstrating in a compliance hearing that, had it lawfully bargained with the Teamsters, it would have, at some identifiable time, lawfully imposed less favorable terms than those that had existed under its predecessor.
(e) Withdraw and withhold all recognition from Local 713 as the exclusive collective-bargaining representative of its employees.
(f) Reimburse, with interest as provided in New Horizons for the Retarded, 283 NLRB 1173 (1987), all present and former employees for all initiation fees, dues, and other moneys paid by them or withheld from them pursuant to the terms of dues-checkoff and union-security provisions of the collective-bargaining agreements between the Respondent and FOPE and the Respondent and Local 713.
(g) Within 14 days of the date of this Order, offer employment to the following named former unit employees of the predecessor, Leaseway, and other similarly situated employees who would have been employed by the Respondent but for the unlawful discrimination against them, in their former positions or, if such positions no longer exist, in substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed, discharging if necessary any employees hired in their place.
Gil Brooks, Sr. Harry Smith
Victor Estrada Al Sturtevant
Sharon Evans Charles Sussan
James Holland, Jr. Ricky Swick
Howard Kohlahafer Roger Vandevender
Jeff Kotch William C. Whitelaw
John H. Moe James A. Wilkes
David Rawls Norman Yuille
(h) Make the employees referred to in the preceding paragraph 2(g) and other similarly situated employees whole for any loss of earnings and other benefits they may have suffered by reason of the Respondent’s unlawful refusal to hire them, in the manner set forth in the remedy section of the judge’s decision.
(i) Within 14 days from the date of this Order, remove from its files any reference to the unlawful refusal to hire the employees named in the preceding paragraph 2(g) and, within 3 days thereafter, notify them in writing that this has been done and that the refusal to hire them will not be used against them in any way.
(j) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment records, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order.
(k) Within 14 days after
service by the Region, post at its
(l) Within 21 days after service
by the Region, file with the Regional Director a sworn certification of a responsible
official on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
Dated,
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Wilma B. Liebman, |
Member |
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Peter C. Schaumber, |
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Peter N. Kirsanow, |
Member |
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(Seal) National Labor Relations Board
APPENDIX
Notice To Employees
Posted by Order
of the
National Labor Relations
Board
An Agency of the
The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.
federal law gives you the right to
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and protection
Choose not to engage in any of these protected activities.
We will not refuse to hire bargaining-unit employees of Leaseway Motorcar Transport Company (Leaseway), the predecessor employer, because of their union-represented status in the predecessor’s operation, or otherwise discriminate against these employees to avoid having to recognize and bargain with the Freight Drivers and Helpers Union No. 557, a/w International Brotherhood of Teamsters (the Teamsters).
We will not refuse to recognize and bargain in good faith with the Teamsters as the exclusive collective-bargaining representative of our employees in the following appropriate unit:
INCLUDED: All full-time and regular part-time employees who are utilized by us in the movement of motor vehicles from motor vehicle manufacturing facilities and/or storage areas and/or loading and unloading of those motor vehicles.
EXCLUDED: All other employees, office clerical employees, guards and supervisors as defined in the Act.
We will not unilaterally change wages, hours, and other terms and conditions of employment of our employees in the above-described unit without first giving notice to and bargaining with the Teamsters about these changes.
We will not assist or recognize the Federation of Private Employees (FOPE) or International Brotherhood of Trade Unions, Local 713 (Local 713), as the exclusive representative of our employees.
We will not enter into and enforce collective-bargaining agreements with FOPE and Local 713 containing union-security and dues-checkoff provisions.
We will not coerce our employees to select FOPE or Local 713, or any other labor organization, as the exclusive representative of our employees.
We will not grant FOPE or Local 713 unrestricted access to our facilities and employees in order to solicit members, while denying access to the Teamsters.
We will not enforce or give effect to the collective-bargaining agreement with Local 713.
We will not tell our employees to ignore the Teamsters and that we have hired an off-duty police officer to patrol the yard for their protection against the Teamsters.
We will not tell our employees that the Teamsters put Leaseway out of business because of the high wages the company had to pay and that we could not afford to pay those wage rates.
We will not tell our employees that it is in their best interest to belong to a union, but that we want some control over which union they select.
We will not in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights set forth above.
We will notify the Teamsters in writing that we recognize that Union as the exclusive representative of our unit employees under Section 9(a) of the Act and that we will bargain with it concerning terms and conditions of employment for employees in the above-described appropriate unit.
We will recognize and, on request, bargain with the Teamsters as the exclusive representative of our unit employees concerning terms and conditions of employment and, if an understanding is reached, embody the understanding in a signed agreement.
We will, at the request of the Teamsters, rescind any departures from terms and conditions of employment that existed immediately prior to the date we took over Leaseway’s operation, retroactively restoring preexisting terms and conditions of employment, including wage rates and benefit plans, until we negotiate in good faith with the Teamsters to agreement or to impasse.
We will make whole the unit employees for losses caused by our failure to apply the terms and conditions of employment that existed immediately prior to our takeover of Leaseway’s operation, subject to our demonstrating in a compliance hearing that, had we lawfully bargained with the Teamsters, we would have, at some identifiable time, lawfully imposed less favorable terms than those that had existed under Leaseway.
We will withdraw and withhold all recognition from Local 713 as the exclusive collective-bargaining representative of our employees.
We will reimburse, with interest, all present and former employees for all initiation fees, dues, and other moneys paid by them or withheld from them pursuant to the terms of dues-checkoff and union-security provisions of the collective-bargaining agreements between ourselves and FOPE and ourselves and Local 713.
We will, within 14 days from the date of the Board’s Order, offer employment to the following named former unit employees of the predecessor, Leaseway, and other similarly situated employees who would have been employed by us but for our unlawful discrimination against them, in their former positions or, if such positions no longer exist, in substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed, discharging if necessary any employees hired in their place.
Gil Brooks, Sr. Harry Smith
Victor Estrada Al Sturtevant
Sharon Evans Charles Sussan
James Holland, Jr. Ricky Swick
Howard Kohlahafer Roger Vandevender
Jeff Kotch William C. Whitelaw
John H. Moe James A. Wilkes
David Rawls Norman Yuille
We will make the above-named employees and other similarly situated employees whole for any loss of earnings and other benefits they may have suffered by reason of our unlawful refusal to hire them, less any net interim earnings, plus interest.
We
will, within 14 days from the date of the Board’s Order, remove from our
files any reference to our unlawful refusal to hire the above-named employees,
and we will,
within 3 days thereafter, notify them in writing that this has been done and
that the refusal to hire them will not be used against them in any way.
New Concept Solutions, llc
Thomas P. McCarthy, Esq., for the General Counsel.
Stephen D. Shawe, Esq., Arthur M. Brewer,
Esq., and Laura A. Pierson Scheinberg,
Esq., for the Respondent.
James F. Wallington, Esq., for the Charging Party.
DECISION
Statement of the Case
C. Richard Miserendino, Administrative Law
Judge. This case was tried
in
At
the time NCS was awarded the GM contract it had only three employees, all of
whom were managerial. A precondition of the contract awarded to NCS was that
its work force had to be unionized. In December 2001, NCS hired 12 new employees.
No Leaseway employees were hired. A few
days after the 12 new hires began orientation and training, NCS recognized the
Federation of Private Employees (FOPE) as its employees’ exclusive representative
for collective-bargaining purposes and entered into a collective-bargaining
agreement. About 2 months later, FOPE withdrew as the exclusive bargaining
representative of the NCS employees. A short time later, NCS recognized the
International Brotherhood of Trade Unions, Local 713 (Local 713) as its
employees’ exclusive representative for collective-bargaining purposes and
signed a collective-bargaining agreement with Local 713, which effectively was
the same as the FOPE contract.
The
amended complaint alleges that the Respondent violated Section 8(a)(3) of the
Act by refusing to hire former Leaseway employees because of their Teamsters
membership in order to avoid a successorship obligation to recognize and
bargain with the Union and to avoid paying the union wage scale; that the
Respondent violated Section 8(a)(2) of the Act by prematurely recognizing and
providing unlawful assistance to FOPE and by providing unlawful assistance to
Local 713; that the Respondent violated Section 8(a)(3) of the Act by executing
a contract with FOPE and Local 713 containing a union-security clause and dues-checkoff
provisions; that the Respondent violated Section 8(a)(1) of the Act by
admonishing its employees not to talk to the Teamsters, by telling them that it
had hired an off-duty police officer to protect them from the Teamsters, by telling
them that the Teamsters put Leaseway out of business with higher wages and that
it could afford to operate only because it was not paying Teamsters’ wage
scale, and by discouraging employees from contacting the Steelworkers Union and
telling them that it wanted some control over which union represented its
employees; that the Respondent violated Section 8(a)(5) of the Act by refusing
to bargain with the Teamsters and by making unilateral reductions in wages, as
well as other unilateral changes in terms and conditions of employment.
On
the entire record, including my observation of the demeanor of the witnesses,
as well as my credibility determinations based on the weight of the respective
evidence, established or admitted facts, inherent probabilities, and reasonable
inferences drawn from the record as a whole, and after considering the
posthearing briefs filed by the General Counsel, the Respondent, and the
Charging Party Union,2 I make
the following
Findings of Fact
i. jurisdiction
The
Respondent, a limited liability corporation, provides transportation and
logistics services to customers in the automotive manufacturing industry with
an office and place of business in
The
Respondent admits and I find that it is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act. The Respondent also
admits and I find that the
ii. alleged unfair
labor practices
A. Leaseway
The
GM Baltimore assembly plant produces Chevy Astro vans. As the vehicles come off
the production line, they are released to the releasing agent, who processes
the vehicle and ships it to the appropriate destination. (Tr. 141.)
The releasing agent is responsible for bringing the units, or Chevy
Astro vans, into the yard where it is determined if the vehicle is to be delivered
by rail or truck. If the vehicle is to
be delivered by truck, a “driveaway” employee drives the vehicle from the plant
to the yard where it is tagged and then taken to an area where the
truckdrivers, or “truckaways,” load the vehicle onto their rigs. If the vehicle is to be delivered by rail,
the driveaway takes the vehicle to the yard where it is tagged and then to the
rail loading bays, where the vehicle is loaded onto a rail carrier. (Tr. 146,
448.)
Leaseway
performed the yard and truckaway work for General Motors at the
B.
NCS
NCS
was formed as a non-asset based business in March 2001 by David Johnson. (Tr. 886; GC Exhs. 7–16.) In July 2001, his father, Charlie Johnson,
became actively involved with the Company. (Tr. 917.) Charlie Johnson started in the car hauling
business in 1985. He eventually operated a nonunion company known as Active
Transportation Company, and acquired another trucking company known as Safety
Carrier, Inc. Active Transportation was
organized by the Teamsters 2 years after it began operating. Safety Carrier had a collective-bargaining
agreement with the International Association of Machinists (Machinists) at the time
it was acquired. (Tr. 149.)
From
1995–2000, Charlie Johnson served on the Employer Bargaining Committee for the
National Master Automobile Transporters Agreement with the International Brotherhood
of Teamsters and Local Unions covering eastern area truckaway, driveaway, yard
and shop personnel. (Tr. 40.) Charlie Johnson’s company, Active Transportation,
as well as Leaseway Motor Transport Company were parties to the master agreement.
In
1999, Charlie Johnson learned that GM was soliciting bids from nonunion
competitors of Active Transportation which, according to Johnson, placed his
company at a competitive disadvantage because he was required to pay his
drivers at the Teamsters wage rate. (Tr.
47, 183; GC Exh. 6.) In January 2001, at
an industry meeting in
C. Preparing
to Bid for Leaseway’s Work
In
2001, David Johnson prepared an alternative “cost opportunity” proposal to present
to General Motors, whereby a new company, New Concept Solutions, would receive,
release, and deliver cars and trucks. (GC Exh. 17; Tr. 59.) The NCS proposal projected that GM would save
an estimated $10 million per year on its plant releasing and rail
loading/unloading “using an AFL–CIO recognized work force (where receiving and
vehicle staging is not currently accomplished by UAW employees) and to work to
develop lane building opportunities to increase velocity thus reducing average
delivery times by utilizing Independent Contractors to provide haul away dealer
direct delivery.” (GC Exh. 17.) David Johnson included this language in the
proposal because GM told him that the work force had to be unionized. (Tr. 890.)
In
May 2001, David and Charlie Johnson, accompanied by a GM representative, toured
the GM assembly plants located in Linden, New Jersey, Orion, Michigan, and
Baltimore, Maryland, in anticipation of NCS making a bid for the yard work,
which at the time was performed by Leaseway at all three locations. (Tr. 65,
889–890.) On May 31, David Johnson made
his proposal to takeover the yard work at the GM Baltimore assembly plant.3 After
that, David Johnson met with the GM representatives to discuss his proposal in
June and in October. (Tr. 949.) He also spoke to the GM representatives on the
phone at least once a month until October, at which point the frequency of
their phone conversations increased. (Tr.
950.) At all times, it was made clear to
David and Charlie Johnson that NCS was required to have a unionized work force
in order to obtain and keep the GM yard work. (Tr. 112.)
D.
NCS Receives Contract for the Yard Work at GM Baltimore Assembly Plant
In
late October, WARN notices were given to the Leaseway employees advising them
that Leaseway was terminating business at the GM Baltimore assembly plant as of
December 31, 2001. (Tr. 466, 503.)
By
letter, dated November 21, NCS was officially notified that it had been awarded
the releasing and rail loading, effective January 1, 2002. (GC Exh. 20.) Under
its new contract with GM, NCS was also responsible for the truckaway dispatch
operation. NCS would solicit rates for the truckaway work from independent
contractors, provide them to GM, who would select the lowest bidder to do the
truckaway work. (Tr. 94, 919.)
E.
The November 29, 2001 Meeting with
GM and the UAW
The
United Auto Workers of America, Local 239 (UAW), represents approximately 1500–1600
assembly line workers at the GM Baltimore assembly plant. In late November
2001, a plant newspaper jointly published by GM and the UAW notified the GM
employees that NCS, whose employees were represented by the Machinists, was
going to take over the yard work at the plant. (GC Exh. 40; Tr. 415, 477.)4 A meeting was held on November 29, 2001, to
introduce NCS, and to answer questions from the UAW representatives. (Tr. 420.)
Charlie and David Johnson were present for NCS, along with Charlie Ross, NCS
operations manager, and Lisa Lunsford, a consultant retained by NCS to
facilitate the hiring and training of NCS employees.[5]
Charlie
Johnson introduced himself and reviewed his background in the trucking industry.
According to Charles Miller, a former UAW shop chairman, who attended the
meeting, Charlie Johnson told the group that the NCS employees would be
represented by the “Machinists,” although he could not recall which Machinist
local. (Tr. 209.) The current UAW shop chairman, James Basilone, testified that
Johnson told the group that the independent drivers doing the truckaway work
would be represented by the Machinists and that these drivers would drive out to
150 miles from the plant. (Tr. 422.) Basilone’s
testimony is consistent with Charlie Johnson’s testimony that he told everyone
at the meeting that the drivers doing the truckaway work up to 150 miles would
be represented by the Machinists. (Tr.
74.)[6] I therefore credit Charlie Johnson’s testimony
on this point.[7]
F.
NCS Contacts MOED
The
City of
MOED
also offers training programs: on-the-job training which is provided by the
employer and subsidized by MOED, which awards 50 percent of wage reimbursement
for the trainees (Tr. 406); and employer based training in which the employer
can send the trainees to “vendors” (or, schools such as Baltimore City
Community College) and 50 percent of these costs are provided by MOED. If
training is required, MOED prepares a customized training alert, which is sent
to all the career centers and is also posted in a “public folder.” (Tr. 311.) Job seekers interested in training
must come to a career center for an individual assessment done by a staff
member who reviews any deficiencies the applicant may have, their particular
needs and skills, and educational background. (Tr. 312–313.)
There
are analogous programs throughout the
On
November 15, 2001, David Johnson phoned MOED inquiring about its services. (Tr.
297, 894–895; GC Exh. 21, P11, entry note 38.)[8] The call was referred to Susan Tagliaferro, a
MOED business liaison, for followup.[9]
Later that day, she provided Lisa Lunsford, NCS’ consultant, with an overview
of MOED’s services and started to gather information about NCS’ business and hiring
needs. (Tr. 297; GC Exh. 45.) Over the next few days, Tagliaferro and
Lunsford spoke on the phone and exchanged e-mails. (GC Exhs. 45–46; Tr. 298.)
Tagliaferro testified that to the best of her recollection she was told by either
Lisa Lunsford or Charlie Johnson that NCS was not a union company. (Tr. 299.)[10]
Lunsford
provided Tagliaferro with a completed application and job description for a yardman.
(GC Exhs. 48–49.) Lunsford also told Tagliaferro that the facility involved was
the GM assembly plant on
On
November 30, MOED Officials Edith Brown-Johnson, Deborah Holland, and Romella
Stevens met with David Johnson and Charlie Ross for NCS. The purpose of the meeting was to discuss arrangements
for hiring and training NCS employees.
According to David Johnson, he opened the meeting by telling the MOED
representatives that NCS was a new company looking to hire approximately 15 employees
and that the Company had received work at the GM Broening Highway plant (Baltimore
assembly plant). (Tr. 896.) The MOED staff told Johnson and Ross that job
seekers would be located through four career centers, that MOED would advertise
the job opportunity internally, and that those who came to the career centers
could then apply for the positions. (Tr.
386.) Brown-Johnson reviewed NCS’
customized training application, which specified the number of people to be
trained, the starting wage and benefits, and the prerequisites for hiring. (Tr. 387; GC Exh. 48.) A valid driver’s
license was required, driving experience was helpful, but a high school degree
was not required. Instead, an applicant needed only 8th grade reading and math
skills. David Johnson requested that a 1-day mass interviewing session be held
at one of MOED’s career centers. (Tr. 385.)
During
the meeting, Edith Brown-Johnson asked David Johnson if NCS was a union company
and he responded, “No.” (Tr. 389, 896.)[11] Deborah Holland, a MOED work force development
specialist, testified that David Johnson mentioned that NCS was taking over a
company. She testified that when she
asked him if NCS was “going to hire any people from the old company,” David
Johnson stated, “No.” (Tr. 678, 685.)[12] David Johnson testified that he did not tell
The
initial training budget for NCS was approximately $38,000 of which 50 percent
or $19,000 would be subsidized by MOED.[13] (GC Exh. 67; Tr. 391.) The prescreened applicant
interviews were scheduled for December 7, 2001, at MOED’s
G.
The Teamsters Demand Recognition and
Request to Bargain
By
letter, dated November 30, 2001, Charlie Johnson notified Teamsters Business
Representative John McLain that NCS “was awarded the releasing and haul away
business as a logistics provider for General Motors” effective January 2,
2002. (GC Exh. 23.) GM asked Johnson to
send this letter because the Teamsters planned a demonstration at the GM plant
on December 4, 2001. (Tr. 91.)[14]
At
4:05 p.m. on December 4, McLain unsuccessfully attempted to call Charlie
Johnson at 702–638–8080, the number that Johnson gave in his November 30
letter. McLain testified that he left a message with a person who answered the
phone asking Johnson to call him. (Tr.
445.) Charlie Johnson testified that he never got the message and McLain
testified that he never got a return call. On December 5, McLain faxed a letter
to Johnson which, in relevant part, stated:
You are a
signatory of a Work Preservation Agreement under the National Master Automobile
Transporters Agreement Bargaining Unit. Your November 30, 2001 letter claims
that some business entity you are Chairman of named “New Concept Solutions” has
been “awarded the releasing and haul away business as a logistics provider for
General Motors.”
Based
upon this information, Teamsters Local 557, with the consent and participation
of Teamsters National Automobile Transporter Industry Negotiating Committee
(TNATINC), demands that you and your new entity meet and bargain regarding the
mandatory subjects of bargaining relating to those NMATA bargaining unit
employees affected by your purported award of General Motors releasing and haul
away business. Such meeting must take place in
McLain sought
to negotiate with NCS on behalf of the Leaseway employees because it thought
that Charlie Johnson still owned Active Transportation Company and that he was
still a signatory to the national
master agreement. (Tr. 466–468, 470.)
By
letter, dated December 6, 2001, Attorney Marty Klaper, whose law firm represented
NCS at the time, advised McLain that as of July 26, 2001, Charlie Johnson no
longer had an ownership interest in Active Transportation Company and that he
was no longer a member of the National Automobile Transportation Industry
Negotiating Committee. (R. Exh. 1.) Klaper further advised that Johnson had no
obligation to engage in bargaining with the Teamsters.
H.
NCS Screens and Hires its Work Force
On
December 7, 2001, NCS interviewed several employees at the
I. Leaseway Employees Seek Jobs with NCS
On Friday, December 14, 2001, a MOED Rapid Response team
met with the Leaseway employees, to discuss unemployment, searching for jobs,
and training.[16]
James Holland Sr., a long-time Leaseway employee, testified that he was on his
way to this meeting when he was stopped by Leaseway Supervisor Howard Huff, who
told him that he wanted to hire some the Leaseway employees for NCS, including
Union Shop Steward John Moe also asked Huff on December
14 if NCS was going to hire Leaseway employees. (Tr. 480-481.) Moe testified
that when he asked Huff about the possibility of employment with the new company,
Huff looked at him strangely and replied that the pay scale was going to be
about $13 an hour. Moe responded that he would rather make $13 an hour than
nothing and that some of the other employees may also be willing to work for
that wage. (Tr. 482.) Huff told Moe that he would talk to Charlie Johnson and
get back to him.
A short time later, Teamsters Business Representative
John McLain also asked Huff if NCS was going to hire any Leaseway employees. (Tr. 456.) Huff told him that he did not
know, but that he would find out. In the meantime, McLain told Moe to make a
list of all the Leaseway employees who were interested in working for NCS. (Tr.
457.) On Wednesday, December 19, Moe asked Huff again if NCS was going to hire
any Leaseway employees. Moe testified that Huff told him “that Mr. Charlie Johnson
was bringing his own people and didn’t want to hire any current employees of
Leaseway.” (Tr. 483.) Huff later made
the same statement to McLain. (Tr. 456.)
Moe nevertheless followed McLain’s instructions. He polled the employees and
made a list of 16 Leaseway employees who were interested in employment with
NCS. (Tr. 483; GC Exh. 74.) Four of those employees were African American.[17] On December 28, 2001, the last day of
Leaseway’s operation, Moe gave the list to Huff.
J. Charlie Johnson Calls Ron Borges
Ron Borges was the national director of the Federation of
Private Employees (FOPE), an AFL–CIO affiliated labor organization. He formerly
was employed as the vice president of labor relations for Ryder Trucking
Company. He, along with Charlie Johnson, was a member of the Employer Committee
of the National Automobile Transporters, Labor Division, under the national
master agreement. (GC Exh. 3, p. 116.) The two got to know each other fairly
well by working on the bargaining committee and by socializing together. (Tr.
171.)
Ryder eventually was bought by another carrier. Borges
lost his job. According to Johnson, he ran into Borges in November 2001 coming
out of a trucking company owned by another friend of Johnson. Borges told Johnson
that he was working for a union. (Tr. 172–173.) According to Johnson, Borges
told him that he represented this other friend’s employees and told Johnson “if
you ever do anything would you let me come in and talk to your people.” (Tr.
173.) Johnson replied, “Yes,” and Borges told him, “[W]ell talk to John because
John can tell you that we have a good relationship and so forth.” (Tr. 173.)[18]
According to Charlie Johnson, on December 17, he phoned
Ron Borges and “I told Ron I was coming in and that if he wanted to he could
come in and talk to the people on the 18th.” (Tr. 174; 98.) Johnson testified that Borges actually drove
from the
K. Orientation Begins and FOPE Solicits Members
In the meantime, on December 17, NCS began orientation
and offsite training for its newly hired employees at the
On the second day of orientation, Charlie Johnson spoke
to the group of new hires. Karen Ayers, who was an NCS trainee, testified that
Charlie Johnson gave a speech about the Company and his philosophy. Johnson
also told the trainees that their starting wage would be $11 an hour, which
surprised Ayers and the others because MOED had told them it would be $15 an
hour. (Tr. 240.) He also told them that it was possible that they might receive
$11.50 an hour. (Tr. 280.) At the end of the speech, Charlie Johnson told the
group he wanted to them to meet an old friend, who he had worked with previously,
that he was a really nice guy, and that everyone should give him their full
attention. (Tr. 241, 270; 632.) Johnson left, and Ron Borges came in the room.
(Tr. 174–175.)
Borges told the NCS trainees that he was a union
representative and what his union could do for them. He told the trainees that
he could do better than the $11 an hour that Charlie Johnson was going to pay
them. (Tr. 243; 632–633.) Karen Ayers testified that Borges proposed asking for
$11.50 an hour and for 50 cent increases every year. (Tr. 244.) He passed out
authorization cards to join the union, but did not tell them the purpose of the
cards. According to Karen Ayers, Borges told the trainees that “it would be
best if everyone [joined]” and that “he would like to get things taken care of
quickly because he needed to leave town soon.” (Tr. 243.)
Every trainee signed an authorization card. Borges collected
the cards and the group took a lunchbreak.[20]
While the trainees were taking a break, Borges met with
Charlie Johnson. (Tr. 244–245; 634–635.) About 30 minutes later, the trainees
returned from break and Borges told them that he had gotten them $11.50 an hour
and a 50-cent raise in January, and that they would discuss other items
later. (Tr. 245; 636.) Charlie Johnson, however, denied that he discussed
wages with Borges at this point. (Tr. 101, 102.) He testified that during the
break Borges told him that he had signed cards, but Johnson did not look at the
cards. Instead, he told Borges he wanted to call his attorney.
While Borges was updating the trainees, Charlie Johnson
phoned Attorney McGuire, who testified that Johnson “called us mid-morning on
the 18th and said that Borges had made a verbal demand for recognition and that
. . . could we arrange for a neutral to do a card check.” (Tr. 703.) Charlie
Johnson and Borges then drove separately to the law firm of Shawe and Rosenthal
for a card check. In the meantime, McGuire arranged for Attorney Charles Siegal, in the law firm of Blades and Rosenfeld, to serve as a
neutral. (Tr. 704.) Around noon on December 18, Charlie Johnson, David Johnson,
and Ron Borges arrived at McGuire’s office. A short time later, Siegel joined
them. Borges and Siegel went into a conference room to check the cards against
a list of employees and their W-4 forms. When they came out, Siegel signed a
form certifying that a majority of the NCS trainees had signed cards designating
FOPE as their exclusive collective-bargaining representative. (R. Exh. 6; Tr. 704.)
After the card check and recognition, Attorney McGuire
gave Borges the typed draft of the collective-bargaining agreement he
previously prepared with FOPE’s name already typed in the contract. (Tr. 706.) According to McGuire, “Borges
seemed to be at least familiar with what the basics were that the—what the package
was that the company was already offering the employees, the wages and the
benefits, and so forth.” (Tr. 707; 731.)
As they went through the draft contract Borges proposed some changes to
the probationary period, vacation, and wages, and a tentative agreement was
reached. McGuire finalized the contract on December 19, Charlie Johnson signed
it on December 20,[21]
it was mailed to Ron Borges, who signed and dated it December 31, and mailed it
back to McGuire. (GC Exh. 4; Tr. 708.)
McGuire testified, however, that the parties agreed the contract would be effective
December 20, 2001. (Tr. 737.)
On December 19, while McGuire was preparing the final contract,
Borges met with the NCS trainees again at the
On December 28, 2001, several NCS employees began working
at the GM Baltimore assembly plant, at which time Leaseway turned over its
inventory to NCS. (Tr. 10–104.) Among those employees were Supervisors Marty
Weathers and Howard Huff, Office Manager Sharon Huff, and new hired yardman
Alan Reardon.
L. The Teamsters Handbill the GM Facility
On December 31, 2001, several Teamsters representatives
stood outside the Holabird Avenue gate of the GM Baltimore assembly plant (near
the entrance for the NCS employees) attempting to pass out Teamsters materials
to the NCS employees as they entered the gate to the plant. (Tr. 582–583; GC
Exh. 80.)
On
January 2, 2002, Teamsters Vice President William Alexander, Business
Representative John McLain, and Shop Stewards Jack Hamm and John Moe again
distributed Teamsters literature outside the gate near the entrance for the NCS
employees. Around 1 p.m., Alexander and Teamsters Attorney Michael Wallington entered
the parking lot of the GM facility in an attempt to speak to NCS employees. As
they spoke to a truckdriver, Charlie Johnson drove up in a car and asked them if
they had permission to be on the property. (Tr. 585; 844–845.) Wallington asked Johnson
if he had permission to be on the property, and Johnson replied that he had a
signed lease. Johnson told Alexander and Wallington that if they wanted to be
on the property they needed his permission. Alexander stated that he attempted
to call Johnson, but never received a return phone call. (Tr. 586.) Johnson told the two men that he had nothing
to do with the Teamsters and asked them to leave the property, which they did.
Following
this incident, Charlie Johnson hired security guards to monitor the parking
lot. The guards began working on January
3, and remained onsite for approximately 30 days. (Tr. 847.) Around the same time, Charlie Johnson held a
meeting of all NCS employees in the lunchroom. Karen Ayers testified that Johnson told the
group to ignore the Teamsters and that he had hired an off-duty police officer
to patrol the yard for the employees’ protection. (Tr. 256–257.) She further
testified that Charlie Johnson told the employees that the Teamsters had put
Leaseway out of business because of the high wages the Company had to pay and
that Charlie Johnson could not afford to run the Company like that, which was
why they were receiving $11.50. (Tr.
257.) Johnson denied making the latter statement.
The
Teamsters continued leafleting at the GM Baltimore assembly plant on and off
through March. When they were not leafleting, three or four former Leaseway
employees would observe the NCS employees working from a vacant lot across the
street from the GM facility. (Tr. 567, 570.)
M.
The Teamsters Learn that FOPE Represents
the NCS Employees
On
January 10, 2002, Teamsters Business Representative John McLain visited the GM
Baltimore assembly plant office complex where he encountered Howard Huff. McLain began questioning Huff in attempt to
find out where NCS got its new employees and who represented them. (Tr. 460–462.)
Huff eventually told McLain that the employees had been referred by MOED and
that they were members of FOPE.
On
February 4, 2002, Teamsters President William Alexander walked into MOED’s
offices looking for Tagliaferro and Brown-Johnson, who agreed to meet with him
even though he did not have an appointment. (Tr. 330, 396.) According to Tagliaferro, Alexander identified
himself as a teamsters local president and told them that he had some questions
and concerns about MOED recruiting employees for NCS. (Tr. 330–331.) Alexander
asserted that former Leaseway employees had been excluded from the hiring
process and demanded information regarding the recently hired NCS
employees. Tagliaferro and Brown-Johnson
told Alexander that could not release any information without authorization
from the city of
Tagliaferro
and Brown-Johnson also did not tell Alexander that NCS was in the process of
filing additional positions. (GC Exhs.
61–62.) They also did not tell him that MOED had approved NCS’ request for more
recruits and training. (Tr. 396; GC Exh. 65.) On February 8 and 13, interviews were conducted
at the