Oak Harbor Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 2014

361 N.L.R.B. 884 (N.L.R.B. 2014)

884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Oak Harbor Freight Lines, Inc. and Teamsters Locals
81, 174, 231, 252, 324, 483, 589, 690, 760, 763,
839, and 962 and Teamsters Local 174. Cases
19–CA–031797, 19–CA–031827, 19–CA–031865,
19–CA–032030, 19–CA–032031, 19–CA–031526,
19–CA–031536, 19–CA–031538, and 19–CA–
031886
October 31, 2014
DECISION AND ORDER
BY CHAIRMAN PEARCE AND MEMBERS HIROZAWA
AND JOHNSON
On May 16, 2012, the Board issued a Decision and
Order in this proceeding, which is reported at 358 NLRB
328. Thereafter, the Respondent filed a petition for re-
view in the United States Court of Appeals for the Dis-
trict of Columbia Circuit, and the Charging Party Unions
filed a petition for review in the United States Court of
Appeals for the Ninth Circuit. The Unions’ petition for
review was subsequently transferred to the United States
Court of Appeals for the District of Columbia Circuit,
and the General Counsel filed a cross-application for
enforcement in the United States Court of Appeals for
the District of Columbia Circuit.
At the time of the Decision and Order, the composition
of the Board included two persons whose appointments
to the Board had been challenged as constitutionally in-
firm. On June 26, 2014, the United States Supreme
Court issued its decision in NLRB v. Noel Canning, 134
S.Ct. 2550 (2014), holding that the challenged appoint-
ments to the Board were not valid. Thereafter, the court
of appeals vacated the Board’s Decision and Order and
remanded this case for further proceedings consistent
with the Supreme Court’s decision.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
In view of the decision of the Supreme Court in NLRB
v. Noel Canning, supra, we have considered de novo the
judge’s decision and the record in light of the exceptions
and briefs. We have also considered the now-vacated
Decision and Order, and we agree with the rationale set
forth therein. Accordingly, we affirm the judge’s rul-
ings, findings, and conclusions and adopt the judge’s
remedy and recommended Order to the extent and for the
reasons stated in the Decision and Order reported at 358
1 On October 7, 2014, Teamsters 206 Employers Trust filed a motion
to intervene in this proceeding. The Respondent filed a response, and
Teamsters 206 Employers Trust filed a reply brief. We deny the mo-
tion as untimely. The Trust provided no explanation for its failure to
seek intervention before the judge at the hearing stage or before the
Board while the case was pending on exceptions. Further, the Trust has
not shown any changed circumstances warranting its late intervention.
NLRB 328, which is incorporated herein by reference,
and as further revised and set forth in full below.2
AMENDED REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, we shall order it to cease and
desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having found that the Respondent unlawfully discon-
tinued contributions to the Oregon Warehouseman Trust,
we shall order the Respondent to make whole its unit
employees covered by the Oregon Trust by making all
delinquent Oregon Trust fund contributions on behalf of
those employees, including any additional amounts due
the fund in accordance with Merryweather Optical Co.,
240 NLRB 1213, 1216 fn. 7 (1979).3 Further, the Re-
spondent shall be required to reimburse its unit employ-
ees for any expenses ensuing from its failure to make the
required contributions to the Oregon Trust, as set forth in
Kraft Plumbing & Heating, 252 NLRB 891 fn. 2 (1980),
enfd. mem. 661 F.2d 940 (9th Cir. 1981), including all
medical expenses that were not covered by the Respond-
ent’s medical plan but would have been covered by the
Oregon Trust. Such amounts should be computed in the
manner set forth in Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with in-
terest at the rate prescribed in New Horizons for the Re-
2 We shall modify the Order and notice to provide that, upon the Un-
ion’s request, the Respondent shall rescind the health care plan it uni-
laterally implemented on February 26, 2009. See, e.g., Lexus of Con-
cord, 330 NLRB 1409, 1418 (2000); Whitesell Corp., 357 NLRB 1119,
1125 (2011), modified on reconsideration on other grounds 2011 WL
5931998 (Nov. 29, 2011). We shall also substitute a new notice in
accordance with our decision in Durham School Services, 360 NLRB
694 (2014).
In rejecting the Respondent’s equitable estoppel argument, Member
Johnson notes that the Respondent does not contend that either a sub-
scription agreement or an employer union pension certification has ever
existed for the Oregon Trust, nor does it contend that it did not have the
opportunity to bargain about it. Cf. Manitowoc Ice, Inc., 344 NLRB
1222 (2005) (finding union was equitably estopped from challenging
the employer’s unilateral change in its profit-sharing plan, noting that
the issue had been discussed at bargaining and that the union had ac-
quiesced in all previous changes).
Further, Member Johnson agrees that the judge did not abuse his
discretion in denying the Respondent’s motion to amend its answer to
allege the additional affirmative defense that the parties had reached
impasse on the issue of benefits for returning strikers. Member John-
son finds that, even if the Respondent’s defense had been properly
raised, the defense fails on its merits because the Respondent has not
established the requisite “economic exigency.” Specifically, the Re-
spondent has not shown that its action was caused by external events,
was beyond its control, or was not reasonably foreseeable. See RBE
Electronics of S.D., Inc., 320 NLRB 80, 82 (1995).
3 We leave to the compliance stage the question of whether the Re-
spondent must pay any additional amounts into the benefit fund in
order to satisfy our “make whole” remedy. Merryweather Optical Co.,
supra.
361 NLRB No. 82

OAK HARBOR FREIGHT LINES, INC. 885
tarded, 283 NLRB 1173 (1987), compounded daily as
prescribed in Kentucky River Medical Center, 356 NLRB
6 (2010).4
Having unilaterally implemented its company health
care plan for unit employees, the Respondent shall be
ordered, upon the Union’s request, to restore the status
quo ante by ceasing to give effect to its unilaterally im-
plemented company health care plan for unit employees
and by bargaining in good faith with the Unions over
health care benefits. Further, we shall order the Re-
spondent to restore the status quo ante in the expired col-
lective-bargaining agreement with respect to the Oregon
Trust and to continue to make contributions to that fund
pursuant to the expired collective-bargaining agreement
until the Respondent negotiates in good faith to a new
agreement or to a lawful impasse.5
ORDER
The Respondent, Oak Harbor Freight Lines, Inc., Cali-
fornia, Oregon, Washington, and Idaho, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally discontinuing required contributions
into the Oregon Warehouseman Trust.
(b) Unilaterally implementing terms and conditions of
employment, including its company health care plan,
without having reached a genuine impasse with the Un-
ions, and refusing to bargain in good faith with the Un-
ions with respect to health care benefits for employees in
the following appropriate bargaining unit:

All truckdrivers, helpers, dockmen, warehousemen,
checkers, power-lift operators, hostlers, and other such
employees as may be presently or hereafter represented
by each Local Union as referenced in Appendices A, B,
C, and D, engaged in local pick-up, delivery and as-
sembling of freight, within the jurisdiction of the Local
Union and office-clerical and shop employees em-
ployed by the Respondent excluding however, the clas-
sifications set forth immediately below in section 1.04.
4 To the extent that an employee has made personal contributions to
a fund that are accepted by the fund in lieu of the employer’s delin-
quent contributions during the period of the delinquency, the Respond-
ent will reimburse the employee, but the amount of such reimbursement
will constitute a setoff to the amount that the Respondent otherwise
owes the fund.
5 In light of our finding that the Respondent’s obligations to the
Washington Teamsters Welfare Trust were lawfully cancelled in Sep-
tember 2008, we shall not order a return to the terms of the expired
collective-bargaining agreement with respect to that trust or a monetary
remedy for the failure to make contributions to that trust after its can-
cellation.
1.04 The following classifications of employees
are specifically excluded from the coverage of this
Agreement:
(a) confidential employees, supervisory and pro-
fessional employees within the meaning of the Labor
Management Relations Act of 1947, as amended;
(b) employees already covered by an existing un-
ion contract not included in this agreement;
(c) office supervisors exercising independent
judgment with respect to the responsibility for di-
recting the work or recommending hiring and firing;
and
(d) nonbargaining unit employees.

(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Upon the Union’s request, restore the status quo
ante as it existed prior to February 26, 2009, by ceasing
to give effect to the Respondent’s health care plan for
bargaining unit employees, and bargain in good faith
with the Unions over health care benefits.
(b) Make unit employees covered by the Oregon
Warehouseman Trust whole by paying all delinquent
contributions to the Oregon Warehouseman Trust, as
well as any additional amounts due to the fund, restore
the status quo ante in the expired collective-bargaining
agreement with respect to that fund, and continue to
make contributions to that fund until the Respondent
negotiates in good faith to a new agreement or to a law-
ful impasse.
(c) Reimburse unit employees covered by the Oregon
Warehouseman Trust, with interest as provided in the
amended remedy section of this decision, for any ex-
penses resulting from its failure to make the required
payments to the Oregon Warehouseman Trust.
(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment rec-
ords, timecards, personnel records and reports, and all
other records necessary to analyze the amounts due under
the terms of this Order.
(e) Within 14 days after service by the Region, post at
its facilities in the States of California, Oregon, Washing-
ton, and Idaho, and mail a copy thereof to each laid-off
bargaining unit employee,

copies of the attached notice
marked “Appendix.”6
Copies of the notice, on forms
6 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 886
provided by the Regional Director for Region 19, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. In addition to physical posting of paper notices,
notices shall be distributed electronically, such as by
email, posting on an intranet or an internet site, and/or
other electronic means, if the Respondent customarily
communicates with its employees by such means. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material. In the event that, during the penden-
cy of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceed-
ings, the Respondent shall duplicate and mail, at its own
expense, a copy of the notice to all current employees
and former employees employed by the Respondent at
any time since February 26, 2009.
(f) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically
found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated 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 bene-
fit and protection
Choose not to engage in any of these protected
activities.

After a trial at which we appeared, argued and present-
ed evidence, the National Labor Relations Board has
found that we violated the National Labor Relations Act
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
and has directed us to post this notice to employees in
both English and Spanish and to abide by its terms.
Accordingly, we give our employees the following as-
surances:
WE WILL NOT do anything that interferes with these
rights.
WE WILL NOT unilaterally implement terms and condi-
tions of employment, including our own health care plan,
without having reached a genuine impasse with Team-
sters Locals 81, 174, 231, 252, 324, 483, 589, 690, 760,
763, 839, and 962 (the Unions) and WE WILL NOT refuse
to bargain in good faith with the Unions with respect to
health care benefits for our employees in the bargaining
unit:

All truckdrivers, helpers, dockmen, warehousemen,
checkers, power-lift operators, hostlers, and other such
employees as may be presently or hereafter represented
by each Local Union as referenced in Appendices A, B,
C, and D, engaged in local pick-up, delivery and as-
sembling of freight, within the jurisdiction of the Local
Union and office-clerical and shop employees em-
ployed by us excluding however, the classifications set
forth immediately below in section 1.04.
1.04 The following classifications of employees
are specifically excluded from the coverage of this
Agreement:
(a) confidential employees, supervisory and pro-
fessional employees within the meaning of the Labor
Management Relations Act of 1947, as amended;
(b) employees already covered by an existing un-
ion contract not included in this agreement;
(c) office supervisors exercising independent
judgment with respect to the responsibility for di-
recting the work or recommending hiring and firing;
and
(d) nonbargaining unit employees.

WE WILL NOT unilaterally discontinue required contri-
butions to the Oregon Warehouseman Trust.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of rights
listed above.
WE WILL, upon the Union’s request, restore the status
quo ante as it existed prior to February 26, 2009, by ceas-
ing to give effect to our company health care plan for our
employees in the above-described bargaining unit and
WE WILL bargain in good faith with the Unions over
health care benefits.
WE WILL make unit employees covered by the Oregon
Warehouseman Trust whole by paying all delinquent
contributions to the Oregon Warehouseman Trust, as
well as any additional amounts due to the fund, and WE

OAK HARBOR FREIGHT LINES, INC. 887
WILL restore the status quo ante in the expired collective-
bargaining agreement with respect to that fund and con-
tinue to make contributions to that fund until we negoti-
ate in good faith to a new agreement or to a lawful im-
passe.
WE WILL reimburse unit employees covered by the Or-
egon Warehouseman Trust, with interest, for any ex-
penses resulting from our failure to make the required
payments to the Oregon Warehouseman Trust.
OAK HARBOR FREIGHT LINES, INC.

The Board’s decision can be found at
www.nlrb.gov/case/19–CA–031797 or by using the QR
code below. Alternatively, you can obtain a copy of the
decision from the Executive Secretary, National Labor Re-
lations Board, 1099 14th Street, N.W., Washington, D.C.
20570, or by calling (202) 273-1940.