Overnite Transportation Co., Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1969

175 N.L.R.B. 797 (N.L.R.B. 1969)

OVERNITE TRANSPORTATION COMPANY, INC. 797
Overnite Transportation Company , Inc. and
Chauffeurs, Teamsters & Helpers Local Union
No. 171, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America . Case 5-CA-3029
April 30, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On November 27, 1968, Trial Examiner Louis
Libbin issued his Supplemental Decision in the
above-entitled backpay proceeding finding that the
Respondent had fully complied with the Board's
Order' and recommending that the entire proceeding
be dismissed, as set forth in the attached
Supplemental Decision. Thereafter, the Chauffeurs,
Teamsters & Helpers Local Union No. 171,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, the Charging Party herein, and the
General Counsel filed exceptions to the Trial
Examiner's Supplemental Decision together with
supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has considered the Trial Examiner's
Supplemental Decision, the exceptions and briefs,
and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the backpay proceeding be, and it hereby
is, dismissed in its entirety.
'157 NLRB 1185, enfd . 372 F.2d 765 (C.A. 4); rehearing denied (April
4, 1967, unreported); cert. denied 389 U.S. 838.
'Upon consideration of the scope of our order as enforced by the court
as well as the nature of the settlement before the hearing in this present
proceeding , we reject the Charging Party's contention respecting other
matters it sought but was not allowed by the Trial Examiner to litigate In
doing so, however, we do not hold that in a backpay proceeding, a
Charging Party is precluded from urging matters not set out by the
Regional Director, but properly within the contemplation of a Board
remedial order.
proceeding was instituted by the Regional Director for
Region 5 pursuant to Sections 102.52, 102.53, and 102.54
of the Board's Rules and Regulations, Series 8, as
amended, for the purpose of resolving the controversy
which has arisen over the remedy required by the terms of
the Board's Order of March 29, 1966 (157 NLRB 1185,
1190-92), directing Respondent, inter alia , to make
employees whole for losses resulting from Respondent's
unilateral action which the Board found violated Section
8(a)(1) and (5) of the Act. The Court of Appeals for the
Fourth Circuit enforced the Board's Order on February 6,
1967, and denied Respondent's petition for rehearing on
March 7, 1967 (372 F.2d 765). The United States
Supreme Court denied Respondent's petition for a Writ of
Certiorari on October 10, 1967 (389 U.S. 838).
Pursuant to due notice, a hearing was held before me in
Roanoke, Virginia, on October 8 and 9, 1968. All parties
were represented by counsel who appeared and
participated in the hearing. On November 12, 1968, all
parties filed briefs, which I have fully considered.
Respondent's motion to dismiss this proceeding, submitted
in writing at the instant hearing and upon which I
reserved ruling, is hereby granted for the reasons
hereinafter indicated.
Upon the entire record' in this proceeding,' I hereby
make the following:
FINDINGS
1. Background
In its Decision and Order, dated March 29, 1966, the
Board made the following findings: Rutherford Freight
Lines, Inc., herein called Rutherford, was engaged as a
common carrier of freight by motor vehicle and operated
terminals at Roanoke and Pulaski, Virginia. The Union
was the recognized bargaining representative in a separate
unit for each terminal and had a collective-bargaining
agreement with Rutherford for the employees at these
terminals. This agreement terminated by its terms on
August 31, 1964, but Rutherford continued to maintain
the existing contract level of wages and conditions. On
November 19, 1964, Respondent became the "successor"
to Rutherford, having purchased the latter's assets and
terminals, and on the afternoon of that day began
operating the Roanoke and Pulaski terminals in the same
manner and with the same employees and supervisors.
Without notice to or consultation with the Union,
Respondent immediately that afternoon unilaterally put
into effect a lower hourly wage rate and other less
favorable changes in hours and working conditions for the
Roanoke and Pulaski employees in the bargaining units.
It was this unilateral action which the Board found
violative of Section 8(a)(5) and (1) of the Act.
The Board's Order, inter alia, requires Respondent to
"restore the status quo ante and make employees whole
for Respondent's unlawful unilateral action in accordance
with the recommendations set forth in the section entitled
TRIAL EXAMINER 'S SUPPLEMENTAL
. DECISION
STATEMENT OF THE CASE
Louis LIBBIN, Trial Examiner: This supplemental
'Obvious inadvertent errors in the typewritten transcript of testimony in
the instant hearing are noted and corrected in Appendix A. [Omitted from
publication.]
'I have taken official notice of, and have read , the record in the original
unfair labor practice proceeding, to which frequent reference was made in
the instant hearing.
175 NLRB No. 127
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
`The Remedy' "(157 NLRB at 1192). The following
recommendations of the Trial Examiner, adopted by the
Board , appears in the Remedy section (at p. 1190):
Effectuation of the purposes of the Act requires
that employees whose statutory rights have been
invaded by reason of Respondent 's unlawful action, and
who have suffered economic loss by reason thereof,
shall if possible be restored to the employment status
they enjoyed prior to such unlawful action. Here,
Respondent continues to operate the Roanoke and
Pulaski terminals in the same manner as its
predecessor , and to use the services of the same
employees. As it is speculative, and cannot be
determined , what rate of pay, hours, and working
conditions might have governed the employees'
employment had Respondent fulfilled its obligation to
bargain with their representative , and as in any event
their existing wages , hours , and working conditions
could not have been changed until and unless the
Respondent has fulfilled its bargaining obligation, I
shall recommend that Respondent restore the wages,
hours, and working conditions which prevailed at these
terminals on November 19, 1964, just before
Respondent assumed control of them, and make
employees whole for any economic loss they suffered as
a result of Respondent's unlawful action by paying each
of them the difference between Rutherford' s prevailing
wages on November 19 and the new scale of wages
Overnite placed them on at takeover . . . . [Emphasis
supplied.]
2. The issue raised in the notice of backpay hearing
As permitted by Section 102.52 of the Board's Rules
and Regulations, the Regional Director issued only a
Notice of Backpay Hearing, without any backpay
specifications . Section 102.54 does not require, and
Respondent did not file, an answer under these
circumstances . Although five issues are set forth in the
Notice of Backpay Hearing, all but the first one were
resolved either prior to or at the instant hearing.
On January 4, 1968 , Respondent restored the status
quo ante with respect to all former Rutherford employees
and made them whole for losses incurred from November
19, 1964 , the date of Respondent's takeover , to January 4,
1968. The backpay for this group totalled over $ 100,000.
The General Counsel concedes that there has been full
compliance with the Board 's Order with respect to the
employees who were taken over from Rutherford on
November 19, 1964.'
Issue 1 . in the notice of backpay hearing , the only
unresolved issue in this notice , is entitled , "The issue as to
the scope of the Order." The Regional Director "contends
that the [Board's] Order is applicable not only to the
Rutherford employees on the payroll on November 19,
1964, but also to employees hired by Respondent since
said date at those terminals and those transferred to those
terminals" and that "accordingly , Respondent owes the
difference between what those employees actually earned
and what they would have received , had not Respondent
unilaterally changed wages and other conditions of
employment , to date of restoration of status quo as
required by the Board Order." The notice further states
that the "method of computation of backpay due the
group here in controversy is not in dispute " and that the
"remedy herein sought is not applicable to over-the-road
drivers."
The Union agrees with the Regional Director 's position,
hereinabove set forth , except that it contends that this
remedy should also be applied to over-the-road drivers
who were hired at, or transferred to, these terminals by
Respondent after November 19, 1964.
Respondent contends that the Board 's Order applies
only to its former employees of Rutherford because they
were the only ones affected by Respondent 's unilateral
changes of November 19, 1964 , that Respondent took no
unilateral action with respect to the rates for new hires
and transferred employees after November 19, 1964,
because it had first bargained in good faith with the
Union on these subject matters , and that this group was
not in existence at the time of the takeover and could not
be affected by Respondent ' s unilateral action of
November 19, 1964.
Employees who were hired by Respondent at, or
transferred to, the Roanoke and Pulaski terminals after
November 19, 1964 , were paid a lower rate than that in
effect for Rutherford employees prior to Respondent's
takeover on November 19, 1964. Respondent 's records
with respect to the Roanoke terminal show that the first
new or transferred full-time employees at this terminal
was on January 19, 1965 . Thereafter , there was one on
January 25, one on January 26, one on April 23, four
during the period from May 17 to May 29, about 20
during the remainder of 1965, about 18 in 1966, about 10
in 1967 and about 13 in 1968 up to September 28. With
respect to the regular part-time employees at the Roanoke
terminal , Respondent 's records show that there was only
one new employee in 1965 and that was on July 10, that
there were 6 in 1966 and 4 in 1968 up to September 28.
With respect to full-time new or transferred employees at
the Pulaski terminal , Respondent 's records show the first
one on June 28, 1965, then 1 in July and November 1965,
7 in 1966, 1 in 1967 and 1 in 1968 . With respect to
regular part-time employees at the Pulaski terminal,
Respondent 's records show the first one on June 6, 1965,
then 3 in the remainder of 1965 , 8 in 1966 and l in 1967.
The employees listed in this paragraph constitute the
group' in controversy.
3. Negotiations after November 19, 1964°
By letter dated November 30, 1964, Respondent
recognized the Union as the bargaining representative for
its employees at its Roanoke and Pulaski terminals and
expressed its willingness to negotiate a contract for these
two units . The Union 's reply letter, dated December 14,
requests Respondent to submit the earliest dates when it
would be able to meet for the purpose of negotiations. By
reply letter dated December 16, Respondent stated that
"we assume that you do not intend to request that
bargaining begin before or during the Holiday Season,
which is immediately ahead of us . Bargaining during this
period would be most inconvenient for us and undoubtedly
would not be as fruitful as it will be if we wait until after
'The Regional Director's compliance officer had assured Respondent
that "the posting of the Notice [attached to the Board's Decision] does not
in any way affect the positions of any of the parties regarding their
respective contentions relating to the issue of the rights of employees other
than those formerly employed by Rutherford" (Reap. Exh. 16).
This does not include over-the-road drivers , whom the Union seeks to
include, and casual employees who are not included in the appropriate
unit.
'The findings in this section are based on admissions and credited
evidence and testimony which is undisputed.
OVERNITE TRANSPORTATION COMPANY,
the first of the year." Respondent then suggested that the
first meeting be held on January 8, 1965. The Union
replied by letter, dated December 18, in which it suggested
that the first meeting be held on January 12, 1965.'
Thereafter, 38 bargaining sessions were held. Although all
subjects of a proposed contract were discussed at these
sessions and agreement was reached on some subjects,
mention is hereinafter made only of discussions relating to
the wage rates, and structure.
The first meeting was held, as suggested by the Union,
on January 12, 1965. The union representatives asked
Respondent's representatives why Respondent had reduced
the wage rates. A lengthy discussion followed during
which Respondent's representatives advised the Union as
to its wage structure at these terminals and what was
proposed for new and old employees. The Union proposed
the National Motor Freight Agreement. It was the failure
of this proposal to make any distinction between the rates
for new employees and former Rutherford employees
which was a point of contention from the start.
Respondent's representatives sought to justify its wage
differentials and the hiring-in rates of employees, pointing
out that Respondent was a different type of motor carrier
operation, that all employees should not be entitled to the
same rate, and that the Union should also take into
consideration Respondent's policy on overtime. The Union
disagreed with Respondent's position and explanation,
stating that all employees in the same classification should
get the same top rate.
The next 6 bargaining sessions were held on January
28, February` 11, March 4, March 5, April 1, and April
15, 1965. The subject of the wage differentials was
discussed at every meeting. The Union was kept informed
as to the hiring rate used by Respondent at that time. The
Respondent orally offered statistics to support its position
on its wage structure, such as comparisons between
Respondent's operations and other union carriers in the
country with respect to tonnage cost, man hours, length of
haul, and total revenue. At the April 1 meeting,
Respondent submitted a complete proposed written
contract for the Roanoke terminal as a counterproposal to
the National Motor Freight Agreement earlier proposed
by the Union, which included minimum wage proposals.
Respondent's contract proposal provided for a $2-per-hour
starting rate for new hires. Respondent proposed that new
hires be advanced to the full rate of $2.60 per hour, which
was then being paid to the old employees, with the rate of
advancement depending on their initiative, skill, attitude
toward the work, attendance and length of service, and
explained why it took this position. The Union's position
was that all employees in the same category should get the
same rate and that new hires should get the top rate
received in that category. At the April 15 meeting,
Respondent presented a complete proposed written
contract for the Pulaski terminal. The wage issue was
again discussed, with each side stating their same
respective position and supporting arguments. No
agreement was reached on this issue.
Ten additional meetings were held in 1965 on the
following dates: May 4 and 18, June 3 and 29, July 20,
August 12 and 31, September 20, and November 2 and
30. Seven meetings were held in 1966 on the following
dates: February 8, May 17, June 7, September 29,
November 10, and December 6 and 7. Fourteen additional
meetings were held in 1967 and 1968, with the 38th and
`This correspondence were exhibits in the original unfair labor practice
hearing in 1965.
799
last meeting on July 25, 1968. The parties discussed and
bargained on the wage issue throughout these sessions. At
the 15th meeting on September 20, 1965, the Union took
the position that it would be an unfair labor practice for
Respondent to pay non-Rutherford employees less than it
was paying the former Rutherford employees. At the 19th
meeting on May 17, 1966, the Union presented a new
contract proposal which demonstrated that the parties
were getting further apart, as the Union's wage demand
was increased in that proposal. During the period of
negotiations, Respondent proposed some advances for
designated new men . While the Union did not object, it
continued to adhere to and insist on its position that all
men within the same classification be paid the same high
rate, without regard to the factors which Respondent
pointed out they considered as the basis for advancing new
men to the top rate in a category. In early 1968,
Respondent documented and offered to the Union the
statistics which it had presented orally throughout these
sessions in support of its position, showing comparisons
with other union carriers throughout the country. There
was no narrowing of the gap between the parties on the
wage issue and no agreement on it was ever reached.
4. Concluding findings
a. As to new and transferred employees
In agreement with counsel for Respondent I find,
contrary to the contentions of the Regional Director and
the Union, that the Board's Order does not apply to
employees hired by Respondent at, or transferred to, the
Roanoke and Pulaski terminals after the takeover on
November 19, 1964. In the first place, the decisions of the
Trial Examiner and of the Fourth Circuit Court of
Appeals demonstrate that the Board's Order was intended
to, and does, apply only to former Rutherford employees.
The original unfair labor practice hearing was held on
June 17, 1965. Although there were already some new and
transferred employees on Respondent's payroll at these
terminals as of that date, there was no evidence or
litigation regarding them in any respect and no specific
claim or contention at that hearing that they should be
included in any remedial order. The entire proceeding was
directed to the nature of the sale of Rutherford to
Respondent and the effect of Respondent's unilateral
action on November 19, 1964, upon the Rutherford
employees who were taken over by Respondent. Thus,
throughout his decision, the Trial Examiner refers only to
Rutherford employees. As previously noted, the
recommendations in the Remedy section, which are
incorporated in the Board's make-whole order, refer
specifically to "employees whose statutory rights have
been invaded on November 19, 1964, to "their existing
wages, hours and working conditions," and to the "new
scale of wages Overnite placed them on at takeover."
(Emphasis supplied.) Obviously, no statutory rights of new
or transferred employees were invaded on November 19,
1964, as none were at that time employed. This language,
and therefore the Board's Order, clearly refers only to the
Rutherford employees who had been taken over by
Respondent. And this was the interpretation placed upon
the Board's Order by the Fourth Circuit Court of Appeals
which enforced it. Thus, the Court stated at the outset
that (372 F.2d at 767)
There is presented for our decision this question:
May the Board lawfully direct Overnite to restore to
employees who formerly worked for the selling
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
company the economic benefits that had been
maintained by the seller and incorporated in its
contract with the Union , notwithstanding that the
contract had expired before the sale, and that the
purchaser , Overnite , had made known in advance and
consistently its unwillingness to maintain such level of
employee benefits? We think so on the facts of this
case . [Emphasis supplied.]
Thus the Board Order which the court enforced was one
which directed Respondent to restore the status quo ante
for employees who formerly worked for Rutherford, the
selling company .' This was the only group of employees
regarded by the Court as the "affected employees," whom
"the Board ' s Order requires Overnite to make " "whole
for losses caused by the unilateral changes in working
conditions" (372 F.2d at 770). I therefore find that the
Board ' s Order , as enforced by the Circuit Court of
Appeals , was never intended to, and does not, apply to
new employees hired at , or transferred to, these terminals
by Respondent after November 19, 1964.
Counsel for the Union and for the General Counsel
contend that the Board ' s Order is applicable to the new
and transferred employees because they were also affected
by Respondent ' s unilateral action of November 19, 1964.
In support of this position they argue that , had there been
no unilateral changes at the time of takeover , the new and
transferred employees would have been hired and worked
at the Rutherford rates and conditions until there had
been good-faith bargaining about reducing them. Thus,
counsel in effect contend that Respondent unilaterally
changed the wages and employment conditions of the
non-Rutherford employees . The undisputed facts in the
record before me do not support their position.
The Union had been made aware of Respondent's
reduced wage structure before the commencement of
negotiations and even before the takeover . On November
30, 1964 , 11 days after the takeover , Respondent
recognized the Union as the bargaining representative for
these two terminals and expressed a willingness to
negotiate contracts for them . It was not until December
14 that the Union first requested a date for negotiations.
That the first meeting was not held until January 12,
1965, a date suggested by the Union , was not due to any
dilatory tactics by Respondent . In any event , on that date
the Union was fully advised of Respondent's wage
differentials and hiring rates . Respondent advanced
arguments in support of its position and explained why it
could not pay the old Rutherford rates . Thereafter, there
was extensive and intensive bargaining on this issue for
approximately 3 1/2 years in a total of 38 sessions, with
the parties getting further apart instead of closer. No
claim or contention has been advanced that Respondent
has not been bargaining in good faith , and the record
before me would not support such a claim . The hiring
dates of the new and transferred employees have been
previously noted . The first new employee was hired on
January 19 , 1965, exactly 2 months after the takeover and
1 week after the first bargaining session . Two more were
hired before the second bargaining session of January 28.
By the time the fourth new employee had been hired on
April 23, 1965, seven bargaining sessions had already been
held. Two more were hired after the eighth session and
two more after the ninth meeting . The remainder were
hired during the balance of 1965 and in 1966, 1967, and
1968.
The facts in this case demonstrate that, contrary to the
contentions of counsel for the General Counsel and the
Union, Respondent would not have hired the new and
transferred employees at the old Rutherford rates and
conditions even if it had not unilaterally changed those
rates and conditions on November 19, 1964. Moreover,
Respondent's conduct with respect to the new hires would
not, and did not , constitute unlawful unilateral action
because Respondent had given the Union notice of its
intention to apply the reduced rate structure and such
notice "was sufficient to permit timely and effective
bargaining."' I therefore find that the new and transferred
employees were not affected by Respondent's unilateral
action of November 19, 1964, and reject as being without
merit the additional argument advanced for applying the
Board's Order to them.
b. As to over- the-road drivers
Although the foregoing findings dispose of the issue
relating to the over-the-road drivers, I would in any event,
in agreement with the General Counsel and the
Respondent, exclude them from any applicable remedy.
The pertinent contract between Rutherford and the Union
did not contain a classification or wage rate for
over-the-road drivers. The Union and Rutherford had not
bargained for over-the-road drivers at either the Roanoke
or Pulaski terminals because no over-the-road drivers were
employed at those terminals. Over-the-road drivers were
domiciled at the Bristol terminal and were covered by a
separate contract at that terminal. The over-the-road
drivers were subject to the wages, hours and conditions
contained in the contract which was in effect at their
domicile. There were numerous differences in the wages,
hours and working conditions between city and
over-the-road drivers. For example, road drivers were paid
by the mile, while city drivers were paid by the hour; road
drivers enjoyed breakdown pay, city drivers did not; the
road contract contained a specific provision for "two-man
operations" and also provided for billeting and sleeping
facilities ; the city contract contained no such provisions;
the city contract contained a provision for overtime
premium pay after 40 hours in a week, the road contract
contained no such provision.
I find that the over-the-road drivers were neither the
subject of, nor affected by, any unilateral changes by
Respondent, including those of November 19, 1964.
RECOMMENDED ORDER
'Contrary to the suggestions of the General Counsel and the Union, the
above-stated clear and unambiguous language in the Court 's opinion may
not be overcome by a subsequent denial , without opinion , of Respondent's
petition for rehearing merely because in said petition Respondent for the
first time argued , among other things, against an interpretation which
would make the Board's Order also applicable to over -the-road drivers,
new employees , and transferred employees . Indeed, the fallacy of such an
argument is demonstrated by the General Counsel 's additional contention
that the Order does not apply to over-the-road drivers.
I find that there has been full compliance with the
Board's Order. Accordingly, I recommend that the Board
adopt the foregoing Findings and Conclusions and dismiss
this proceeding.
'Chatham Manufacturing Company, 172 NLRB No 219 (p. 3). In this
case the Company gave the Union 5 days' notice of its intention to change
an employee' s minimum incentive rate