Lowery Trucking Co.

National Labor Relations Board - Board Decisions

Apr 20, 1972

196 N.L.R.B. 479 (N.L.R.B. 1972)

LOWERY TRUCKING CO. 479
Lowery Trucking Co., and Ace Limes, Inc. and Meat
and Highway Drivers, Dockers, Helpers and Miscel-
laneous Truck Terminal Employees Local No. 710,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America . Case 18-CA-3121
April 20, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
8(a)(1),(3), and (5) of the Act, filed November 30, 1970, and
March 11, 1971, respectively.
2. A complaint issued by the General Counsel against
Respondents alleging Respondents violated Section 8(a)(1)
and (5) of the Act, dated July 2, 1971.
3. Answers of Lowery and Ace denying the commission
of unfair labor practices, served July 15 and 16, 1971, re-
spectively.
4. A hearing held by me on September 28, 1971, at Coun-
cil Bluffs, Iowa.
5. Briefs received from the General Counsel and Respon-
dents on October 28, 1971.
Upon the entire record 2 in this case and from my obser-
vation of the witnesses while testifying, I make the follow-
ing:
FINDINGS
On November 9, 1971, Trial Examiner John F.
Funke issued the attached Decision in this proceed-
ing. Thereafter, the General Counsel and the Charg-
ing Party filed exceptions and supporting briefs and
Respondent Ace filed cross-exceptions and an an-
swering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
Trial Examiner's rulings, findings, and conclusions,
with the following modification, and to adopt his Rec-
ommended Order.
We find it unnecessary to pass on the Trial
Examiner's interpretation of the General Motors Cor-
poration case, 191 NLRB No. 149, as Respondent's
September 10, 1970, letter clearly shows that Respon-
dent voluntarily offered to bargain about its decision
to cease the Omaha-Chicago operation as well as the
effects of this decision.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Trial Examiner and hereby orders that
the complaint herein be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN F. FUNKE, Trial Examiner: This proceeding was
brought before the National Labor Relations Board upon:
1. A charge and amended charge by the above Charging
Party, herein Local 710, against Lowery Trucking Co., and
Ace Lines, Inc., I herein Lowery and Ace and collectively
as the Respondents, alleging Respondents violated Section
i The name of Respondent Ace Lines , Inc., appears as amended at the
I THE BUSINESSES OF THE RESPONDENTS
Respondent Lowery is engaged in the business of leasing
trucks and related equipment to various common carriers.
It receives annual revenues in excess of $50 ,000 from the
leasing of trucks to carriers engaged in interstate commerce.
Respondent Ace is a Missouri corporation having its
principal place of business at Des Moines , Iowa, where it is
engaged in the interstate transportation of commodities
among 10 states and has terminals at Des Moines and Chi-
cago, Illinois. It receives revenues in excess of $50 ,000 annu-
ally from interstate freight transportation.
Lowery and Ace are engaged in commerce within the
meaning of the Act.3
II. LABOR ORGANIZATION INVOLVED
Local 710 is a labor organization within the meaning of
the Act.
III THE UNFAIR LABOR PRACTICES
A. Background and the Issues
In Lowery Trucking, supra, the National Labor Relations
Board found Respondent had violated Section 8(a)(1) and
(5) of the Act and issued its usual cease-and-desist order and
further ordered Respondents, upon request, to bargain with
Local 710. Enforcement was ordered by the Eighth Circuit,
above, on August 14, 1970.4
Following this decision, Ace, on or about September 17,
terminated its meat hauling operations between Omaha and
Chicago and terminated the employment of all employees
in the unit found appropriate by the Board in Lowery Truck-
ing.
The sole issue presented is whether Respondents bar-
gained in good faith with Local 710 on the effects of this
termination upon the employees in the bargaining unit.5
hearing
2 The motion of counsel for Respondent Ace Lines, Inc., to correct the
transcript is hereby granted.
3 Lowery Trucking Co, and Ace-Alkrre Freight Lines, Inc, 177 NLRB No.
7, enfd. sub nom Ace-Alkrre Freight Lines, Inc v. N L R B, 431 F.2d 280
(C.A 8). Both the Board and the court found Lowery and Ace to be point
em4ployers.
Unless otherwise noted all dates hereafter refer to 1970.
5 The allegation in the complaint, par. 1 l-a, that Respondent failed to
bargain in good faith concerning the decision to terminate the Omaha-
Chicago operation and thereby violated Sec. 8(a)(5) was dismissed on motion
by the Trial Examiner on the authority of General Motors Corporation, 191
NLRB No. 149 The General Counsel argues in his brief that General Motors
applies only to a decision to sell a plant; not to a decision to close a plant
In fact, however, the issue posed to the Board was whether the court decisions
cited p 4, In. 7, of General Motors, which applied to plant closings and plant
removals should be extended to plant sales In finding that they should be
Continued
196 NLRB No. 74
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Facts
Following the issuance of the court's decision enforcing
the Board's Order, Lynn Easter , chairman of the board for
Ace, testified that he telephoned Oscar Mischan , an organ-
izer for Local 710 who had been involved in the prior litiga-
tion, informing him of the decision and asking him if he
wanted to negotiate . Mischan and Easter agreed to meet in
the union hall in Chicago and on September 8, Easter and
R. R. (Dick) Wynant met with Mischan .6 There is almost no
dispute as to what took place at this meeting . Mischan
presented Easter and Wynant with the Master Freight
Central States Over-the -Road Agreement , known as the
"book," as the proposed contract . There was discussion of
the mileage rates , hourly rates, health and welfare and pen-
sion payments required . All of these rates were higher than
wages and payments Ace was then making to its drivers.
There was also discussion of the wages to be paid the "city
drivers" for making meat deliveries in Chicago . Easter and
Wynant asked for time to study the proposal and agreed to
be back in about I week.
Easter testified that after his return to Des Moines there
was discussion of the proposed rates with other members of
the board of directors and they determined Ace would be
better off not operating . On September 10 Easter sent the
following letter (G.C. Exh . 4) to Mischan:
As you know from our recent negotiations with you in
Chicago, we have been considering the permanent ces-
sation of the Omaha to Chicago meat operation due to
present and anticipated future costs of operation.
You told us that you wanted to know our intended
action as soon as possible, and by next Tuesday at the
latest, so this is to advise you that we intend to cease
operation next week.
If you desire any further discussion concerning this
contemplated action and its effects , please notify us
immediately.
Easter received no reply from Mischan or Local 710 but on
September 16 Marvin Gittler , attorney for Local 710, sent
the following letter (G.C. Exh . 6) to Easter:
Your September 10, 1970 , letter to Mr. Oscar Mis-
chan , of Local 710, I.B.T., has been referred to my
office.
Please be advised that we consider your letter to be
a threat of a partial termination of your operations as
a reprisal to those employees who have authorized Lo-
cal 710, I.B.T., to represent them . It is obvious that such
a gross act of discrimination against some of your em-
ployees is intended and has the effect of warning other
employees of the Ace-Alkire Freight Lines (and Low-
ery Trucking Company ) and that they, too, would suf-
fer a similar fate if they exercise their rights guaranteed
under Federal statutes.
As found by the National Labor Relations Board,
which was recently affirmed by the United States Court
of Appeals , your unlawful actions and dilatory tactics
have effectively deprived your employees of the bene-
expanded the Board, ipso facto, approved the decisions with respect to clos-
mts and removals.
Wynant was vice president of Ace.
r Easter and Wynant proposed a modification of the health and welfare
and pension rates Mischan said he would speak to Joyce, secretary-treasurer
of 710 and then told them there would be no modification . Easter also
protested that the new rates would put Ace out of business. No concessions
were offered by Local 710.
fits of collective bargaining for an extended period of
time . Rather than commence good faith negotiations,
as ordered by the National Labor Relations Board and
Court of Appeals , you have elected to respond to our
initial contract proposal with another threat.
Local 710 , I.S.T., has already demonstrated its will-
ingness and patience to prosecute your Company
through all available legal means . This determination
has not wavered . In addition , it is clear that a primary
labor dispute exists between Local 710, I.B.T., and all
those Locals affiliated with it, and the Ace-Alkire
Freight Lines and Lowery Trucking Company.
You may be assured that Local 710, I.B.T., will un-
dertake every available legal act to bring this dispute to
a speedy and effective conclusion on behalf of and for
the benefit of the employees it represents.
Would you please advise the undersigned imme-
diately as to whether you intend to undertake good-
faith negotiations and, if so , when you will be available.
This letter Easter turned over to John R. Phillips , attorney
for Ace . Phillips answered this letter with one dated Septem-
ber 21 (G.C. Exh . 7) to Gittler which reads:
Your letter of September 10, 1970 to Lynn W. Easter
has been referred to us as counsel for Ace Lines, Inc.
Your letter is factually erroneous on a number of
points . Shortly after receiving the opinion of the Court
of Appeals , dated August 14, 1970 , Ace Lines request-
ed negotiations with Local 710. This can hardly be
called "dilatory tactics." A negotiatin g meeting was
held in Chicago , at which meeting Mr. Mischan repeat-
edly stated that the Union was making one economic
offer concerning wages and benefits of the drivers (not
an "initial contract proposal"). Representatives of Ace
Lines said that in view of existing operational costs,
and the Union's intractable position on monetary sub-
jects , the Company was forced to consider termination
of the Omaha-Chicago meat operation . Mr. Mischan's
only response was to request notice of Ace Lines' deci-
sion as soon as possible.
Ace Lines has made no "threat" to any employees, or
to Local 710 . As requested Mr. Easter wrote Mr. Mis-
chan on September 10 that "we intend to cease opera-
tions next week" and "if you desire any further
discussion concerning this contemplated action and its
effects , please notify us immediately." Local 710 made
no response.
Ace Lines has "undertake[n] good faith negotiations."
If your client wishes further discussions, Company rep-
resentatives are available for a meeting in Des Moines.
All communications between the parties terminated with a
letter from Gittler to Phillips dated October 7 (G.C. Exh. 8),
which reads:
This will acknowledge receipt of your letter dated
September 21, 1970 . I apologize for the delay, but trial
and out-of-town commitments have kept me out of my
office.
I think it would serve no useful purpose for you and
me to engage in a court debate as to whose facts are
right or as to whose facts are in error. However, I
believe that you and I agree that the United States
Court of Appeals has ordered your principals to bar-
gain with Local Union No. 710 , I.B. of T.
From our point of view your client's decision to ter-
LOWERY TRUCKING CO. 481
minate the "Chicago run" rather than respond to our
initial contract proposal is somewhat less than the
"good faith" which the NLRB and court order antic-
ipates. Further, affecting the employment of the drivers
in the unit without giving the Union a fair and reasona-
ble opportunity to negotiate on that decision, or the
effects, supports our contention that Mr. Easter would
prefer reprisals for selecting a union over compliance
with the court's order.
We are now, have been, and will continue to be
anxious and available to enter into real serious negotia-
tions on behalf of the employees we represent. We do
not feel, however, that the Company s attitude and
actions are either honest or legal . Without foreclosing
any avenues to resolve the issues between us, be ad-
vised that we intend to undertake all means available
to protect the rights of those whom we represent. If
your principals are desirous of commencing and con-
tinuing real negotiations , we are available. We do, how-
ever, hold your principals liable for any and all losses
accruing to employees because of its action.
There was no further correspondence nor any further nego-
tiations.
While this correspondence was being exchanged, Easter
and Wynant went to Council Bluffs to see Walter Lowery,
coowner of Lowery, to explain to him they were going to
drop the Omaha-Chicago meat run, which would involve
the termination of the Teasing agreement between Lowery
and Ace. (G.C. Exh. 11.) The date of this meeting is fixed
by Wynant as September 10. There appears to have been,
from the testimony of Lowery and Wynant, some discussion
of factors involved in severing the lease agreement and
Lowery was told that the reason was Ace's inability to meet
the terms of the proposed Central States Agreement.
Four employees ofLowery-Ace testified, Slotton, Moore,
Benton , and Gates. All had been drivers for Ace on its
Omaha-Chicago run and all testified, in substance, that they
were notified during the period between September 10 and
14 that Ace was closing its operations because it was losing
money and were told there was no further work for them at
Ace. All but Moore, who was not interrogated on this point,
were later employed by Lowery in his shop. Lowery testified
that of the 13 drivers employed by Ace all were given em-
ployment, although not immediately, by Lowery, that some
went to work in the shop, some went to work elsewhere, and
some accepted driving jobs.8
C. Conclusions
Apart from Respondents' prior unfair labor practices
which must be considered, the decision in this case rests on
the meeting between the parties in early September and
upon the correspondence between them since that meeting.
It must be noted that upon receipt of the court's decision
Ace notified Local 710 of the decision, offered to negotiate,
and set a date for a meeting. That this meeting proved
fruitless was not the fault of Ace. It was confronted at this
meeting with the Teamsters "book," the Central States
Over-the-Road Agreement. When it sought lower health,
welfare, and pension rates Mischan, after consultation with
his secretary treasurer Joyce, told the Ace representatives
that the payments would have to be made as set forth in the
Agreement. Although Respondents are charged with no un-
fair labor practice with respect to this meeting the General
8 The driving jobs were on Lowery trucks leased to other companies
Lowery had no ICC license.
Counsel implies , in his brief , that the almost immediate
rejection of the contract as evidenced by the letter of Sep-
tember 10 (G.C. Exh . 4) established that the closing down
of the operation was premature . I do not agree . There is
nothing in the record to show that further negotiations
would leave gained any concessions from Local 710. The
Respondents were not confronted with a contract proposal
but with "the book ," a master agreement covering f I States.
No employer in the trucking business could have expected
special exemptions from Local 710 or from the Internation-
al which negotiated the agreement . Ace took a far more
realistic view of the confrontation than does the General
Counsel . It was bargaining with one of the most powerful
locals of the Brotherhood of Teamsters, not with a suppli-
cant union , and understood that the contract was offered on
a "take-it-or-leave -it" basis.
We now reach the issue of Ace 's obligation to bargain
concerning the effects of the closedown on its employees. In
its letter to Mischan of September 10, Ace made an unqual-
ified offer to bargain with Local 710 "concerning this con-
templated action and its effects ." An unqualified
acceptance of this offer would have presumably precluded
the litigation which ensued . Instead of accepting, however,
Local 710 forwarded the letter to its attorney for reply. The
reply by Gittler (G.C. Exh . 6) characterized the offer as a
threat of reprisal against Ace's employees , repeated its de-
termination to "prosecute your Company through all avail-
able means" and asked to be advised when Ace intended to
"undertake good faith negotiations ." There is nothing in
this last statement to indicate that Local 710 would agree to
bargain on the effects of the closedown but rather , in view
of the general tenor of the letter, it constituted a request to
resume negotiations leading to a contract . The answer of
Ace's attorney merely denied Gittler 's allegations and re-
eated its willingness to bargain , as it had offered to do on
September 10. The last item of correspondence was Gittler's
reply (G.C. Exh. 8) which again charged Ace with bad faith
and dishonesty and implied a threat of further litigation.
While offering to resume bargaining Gittler , although it was
Local 710 which had been first approached, suggested nei-
ther a time nor place for meeting.
Conceding that Respondents have been found guilty of
unfair labor practices and do not come into court with clean
hands I cannot find that they (or particularly Ace) com-
pounded their guilt by further violation of Section 8(a)(5) as
alleged . It was Ace which made the overtures to resume
bargaining, as it properly should have done, but it was Local
710 which proposed a take -it-or-leave-it contract. On the
day its decision was made Ace notified Local 710 of its
willingness to negotiate on the effects of that decision upon
the employees , an offer which could have been accepted
without resort to the threat of further litigation as a re-
sponse .9 I do not know what an employer is required or
expected to offer the bargaining agent other than the oppor-
tunity to negotiate . This is what Ace did and it is all I would
require it to do.
9 Although the bargaining situation stood in a different posture, I find the
language of the Board in American Bus Lines, Inc, 164 NLRB 1055, appropri-
ate There the Board stated, p 1055
When the Union was first apprised of Respondent 's plan to promote all
of the porters to utility -baggagemen with the concomitant disappearance
of the Union's bargaining unit, it became incumbent upon the Union to
enforce its bargaining rights diligently by attempting to persuade the Re-
spondent to alter its decision if it found the decision unacceptable .. .
However, the Union's immediate reaction was merely to protest the
proposal in a letter by characterizing it as an invasion of its statutory
rights . Its next and final course of action was to file an unfair labor
practice charge
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings and upon the entire record RECOMMENDED ORDER
in this case , I make the following:
CONCLUSION OF LAW
It is recommended that the complaint be dismissed in its
entirety.
1. Respondent did not violate Section 8(a)(1) and (5) of
the Act.