Contract Carrier, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1981

258 N.L.R.B. 353 (N.L.R.B. 1981)

CONTRACT CARRIER, INC.
Contract Carrier, Inc. and Teamsters Local Union
No. 245, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America. Case 17-CA-9802
September 29, 1981
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 1, 1980, Administrative Law Judge
James L. Rose issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting 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 at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,'
and conclusions2 of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Contract Carri-
er, Inc., Greenfield, Missouri, its officers, agents,
successors, and assigns, shall take the action set
forth in the recommended Order, except that the
attached notice is substituted for that of the Ad-
ministrative Law Judge.
I In adopting the finding of the Administrative Law Judge that Re-
spondent violated Sec. 8(aXS) by refusing the Charging Party's request to
meet and to bargain, we note that, although not mentioned by the Ad-
ministrative Law Judge, the record shows that the Charging Party twice
requested Respondent to bargain with it by letter in June and August
1980, and that Respondent rejected its request by letter each time.
2 Respondent correctly contends that the diminution in the size of its
business is a relevant factor to be considered in determining whether or
nor it is a successor. See, e.g., Atlantic Technical Services Corporation, 202
NLRB 169 (1973). The Administrative Law Judge considered, inter alia,
the fact that Respondent employs fewer truckdrivers than its predecessor
Tri-State. As we stated in Mondovi Foods Corporation, 235 NLRB 1080
1082 (1978), a change in the scale of operations by itself "must be ex-
treme before it will alter a finding of successorship." We have carefully
examined the record and find, in accordance with the Administrative
Law Judge, that the change in the scale of operations here is not suffi-
ciently extreme, especially when considered in light of the other relevant
factors, to warrant a finding that Respondent is not a successor employer
258 NLRB No. 43
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and
other terms and conditions of employment
with Teamsters Local Union No. 245, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive representative of
the employees in the bargaining unit described
below.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of rights guaranteed them
by Section 7 of the Act.
WE WILL, upon request, bargain with the
above-named Union as the exclusive repre-
sentative of all employees in the bargaining
unit described below, with respect to rates of
pay, wages, hours, and other terms and condi-
tions of employment and, if an understanding
is reached, embody such understanding in a
signed agreement. The bargaining unit is:
All full time and regular part time truck
drivers, warehousemen, mechanics and pro-
duction employees employed at the Compa-
ny's facility located in Greenfield, Missouri,
the only facility herein, but excluding all
sales employees, clerical employees, guards,
supervisors, and professional employees as
defined in the Act, and all other employees.
CONTRACT CARRIER, INC.
DECISION
STATEMENT OF THE CASE
JAMES L. ROSE, Administrative Law Judge: This
matter was heard before me in Springfield, Missouri, on
March 24, 1981, upon the General Counsel's complaint
which alleged that the Respondent has refused to bargain
with the Charging Party in violation of Section 8(a)(5) of
the National Labor Relations Act, as amended, 29 U.S.C.
§151, et seq.
The General Counsel alleges that the Respondent's ob-
ligation to bargain arises from the fact that it is a succes-
sor to Tri-State Explosives, Inc., (herein Tri-State),
353
DECISIONS OF NATIONAL LABOR RELATIONS BO)ARD
which in turn was a successor to Pilshaw Explosives
Co., Inc. (herein Pilshaw). Both had recognized the
Charging Party as the representative of employees in an
appropriate bargaining unit and both executed collective-
bargaining agreements with the Charging Party.
The Respondent generally denied that it has commit-
ted any unfair labor practice, and specifically contends
that it is not a successor to Tri-State- therefore not ob-
ligated to bargain with the Charging Party. In addition,
the Respondent contends that the bargaining unit alleged
by the General Counsel, and the one for which Tri-State
and Pilshaw recognized the Charging Party, is not ap-
propriate. The scope of the bargaining unit is limited to
employees at the Respondent's Greenfield, Missouri, fa-
cility whereas the Respondent contends that the only ap-
propriate unit would include employees at the Green-
wood, Missouri, facility as well.
Upon the record as a whole, including my observation
of the witnesses, briefs, and arguments of counsel, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS oF LAW
I. JURISI)ICTION
The Respondent is a Missouri corporation engaged in
the business of storage and transportation of explosives.
The Respondent commenced operations on June 16,
1980, pursuant to a contract with E. I. DuPont de Ne-
mours, Inc. (herein DuPont), to furnish labor for the de-
livery of DuPont products. Based on projections, the Re-
spondent will, as a link in the interstate transportation
commodities, annually derive gross revenues in excess of
$50,000, and annually provide services in excess of
$50,000 to DuPont. 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.
II. THE I.ABOR ORGANIZATION INVOI.VED
The Charging Party, Teamsters Local Union No. 245,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America
(herein the Union), is admitted to be, and I find is, a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALEGED UNFAIR l.ABOR PRACTICES
A. The Facts
The material facts are substantially undisputed, the
parties differing only on the ultimate conclusions to be
drawn from them. For some years Pilshaw had been a
distributor of DuPont explosives in western Missouri,
Kansas, parts of Oklahoma, and Arkansas. Pilshaw oper-
ated two facilities, the principal of which was at Green-
field, Missouri, in the southwestern part of the State. The
second and much smaller facility was in Greenwood,
about 130 miles north and near Kansas City. Finally, Pil-
shaw had an office in Overland Park, Kansas, a suburb
of Kansas City. In its capacity as a distributor of DuPont
explosives and related materials, Pilshaw hired salesmen,
office clerical employees, truckdrivers to make deliv-
eries, and, at the Greenfield facility, employees to run
the mixing plant where ammonium nitrate and fuel oil
(anfo) were mixed to form a blasting substance. At each
facility were magazines (warehouses built specifically to
store explosives), an office trailer, and at Greenfield a
garage of some variety.
Operating out of the Greenfield facility were the trac-
tor-trailers as well as straight trucks. Only straight trucks
were used at Greenwood. Although somewhat unclear
from the record, at the time of Pilshaw it appears there
were 10 trucks and drivers stationed at Greenfield, in-
cluding a lead driver, along with 3 employees in the
mixing plant, and at Greenwood there were 3 drivers. At
both facilities there was supervision and a small office
staff.
In early 1978 the Union began an organizing campaign
among the Greenfield employees which culminated in
certification of the Union in the following unit:
All full time and regular part time truck drivers,
warehousemen, mechanics and production employ-
ees employed at the Company's facility located in
Greenfield, Missouri, the only facility herein, but
excluding all sales employees, clerical employees,
guards, supervisors, and professional employees as
defined in the Act, and all other employees.
Pilshaw and the Union negotiated and executed a col-
lective-bargaining agreement effective September 1,
1978, to expire August 31, 1981. In late 1979 Pilshaw
ceased doing business. DuPont bought Pilshaw's equip-
ment and buildings and then leased them to Tri-State;
and Tri-State then became the DuPont distributor oper-
ating out of the Greenfield and Greenwood facilities.
James Cox, who since 1966 had been the Greenwood
branch manager for Pilshaw, became the magazine
keeper at Greenwood and secretary of Tri-State. The
president, and apparently principal owner of Tri-State,
was David Bumgardner, who also owned and operated a
DuPont explosive distributorship in Little Rock, Arkan-
sas.
Following this change, the Union demanded that Tri-
State recognize it as the exclusive collective-bargaining
representative of the Greenfield unit, which Tri-State did
on November 20, 1979. Tri-State and the Union executed
a collective-bargaining agreement on April 15, 1980.
Among other things, it contained a union-shop clause
and a provision for dues checkoff.
In May 1980, Bumgardner determined to give up the
Greenfield/Greenwood distributorship. Around the first
of June, Cox was contacted by officials of DuPont to as-
certain whether he would be interested in forming a
company to provide labor for distributing DuPont explo-
sive products in the same general area where Tri-State
had operated. That is, Cox was informed by officials of
DuPont that they were not interested in having another
distributorship arrangement. Rather DuPont would un-
dertake all other aspects leaving only the matter of labor
involved in receiving, warehousing, and distributing the
products to DuPont customers. Cox agreed and on or
about June 16, 1980, began doing business as Contract
Carrier, Inc.; with he and his wife as part owners of the
Respondent, and himself as the chief operating officer.
354
CONTRACT CARRIER. INC.
Unlike Tri-State, the Respondent does not lease any of
the equipment from DuPont, although it has some re-
sponsibility for maintenance of the trucks.
According to Cox's testimony, while DuPont owned
the magazines, Pilshaw owned the trucks and the mixing
plant. When Pilshaw went out of business, DuPont
bought the trucks and mixing plant and leased the build-
ing and equipment to Tri-State.
Cox testified that, after beginning business as Contract
Carrier, he hired five truckdrivers, four of whom had
previously been employees of Tri-State, to work out of
the Greenfield facility. Others were hired for Green-
wood, one of whom had been hired for Greenfield then
transferred to Greenwood.
The business of the Respondent, as Cox testified, "We
supply the labor for the services of taking care of the
magazines and shipping and receiving and making deliv-
eries to DuPont customers." Or, as he told the former
Tri-State employees he hired, "they would be making
deliveries, driving the vehicles as they had before, load-
ing and unloading the trucks, doing some maintenance
on their own trucks, and doing whatever was needed to
be done around the magazine area to get the work
done."
The Respondent does not supply labor for the mixing
plant. DuPont determines, through some arrangement
with Gulf Oil Company at a nearby Kansas facility, to
have anfo mixed and bagged there. When anfo is deliv-
ered to the DuPont customers, the Respondent's drivers
pick it up at the Gulf facility.
Otherwise, truckdrivers at the Greenfield facility do
essentially the same work they had in the past, delivering
DuPont explosives and related products to DuPont cus-
tomers in western Missouri, Kansas, and parts of Oklaho-
ma, and Arkansas. However, three customers of Tri-
State, which together accounted for about 29 percent of
Tri-State's business, are not serviced by the Respondent.
As with Tri-State, and Pilshaw before it, where the de-
livery requires the use of a tractor and trailer, the deliv-
ery is made from the Greenfield facility. Use of the
Greenwood facility is limited to customers in and around
the Kansas City and northern Missouri areas where the
loads do not require the use of a tractor and trailer.
There has been some limited interchange of employees
between the Greenfield and Greenwood facilities. As in-
dicated, one employee was hired to work at Greenfield
but after about 3 weeks was moved to Greenwood,
where he had previously been employed by Tri-State.
Two employees who normally work at Greenfield have
spent some time working out of the Greenwood facility.
There is no evidence of whether or not during the exist-
ence of Pilshaw and Tri-State employees ever were in-
terchanged between the facilities for short periods.
By the time Tri-State went out of business, apparently
there were two employees in the mixing plant operating
the bagging machine, the other having voluntarily been
laid off some few months previously. There is no indica-
tion in the record whether and to what extent the
amount of mixing and bagging done by Tri-State had
been reduced or to what extent the delivery of anfo to
DuPont customers involved making pickups at the Gulf
facility.
B. ,Inaulvsi and Concluding Finding,
1. The successorship
It is well settled that where one employer becomes the
successor to another, that employer is required by Sec-
tion 8(a)(5) of the Act to assume the duty to bargain
with the exclusive representative of the predecessor's
employees in an appropriate bargaining unit. Y.L.R.B. v.
Burns International Security Services. Inc., 406 U.S. 272
(1972). The question is whether the Respondent is the
successor to Tri-State. I find it is.
As the Board recently said. "... in determining
successorship, the keynote is whether there is substantial
continuity of the employing industry." Saks & Companv
d/b/a Saks Fifth Avenue, 247 NLRB 1047, 1150 (1980).
Analysis of this in turn requires consideration both of the
work done and the work force doing it.
The work being done is that of distributing DuPont
explosives to various customers in portions of a four-
state area. Although some customers may have changed
(a common event in business), the basic work is the
same. DuPont explosives are delivered to the Respond-
ent's facilities for storage and subsequently loaded on the
same DuPont trucks which had been used by Tri-State
to deliver the same type of product to the same type of
customers in the same fashion.
The only significant difference in the Respondent's op-
eration from that of Tri-State or Pilshaw is that anfo is
no longer mixed at the Greenfield plant. The fact that
DuPont may have decided to cease mixing anfo at this
facility and purchase mixed and (sometimes) bagged anfo
from Gulf does not change the basic nature of the busi-
ness.
And, the work is substantially the same as had been
employed by Tri-State. All but one of the truckdrivers
now employed by the Respondent at the Greenfield fa-
cility were employed by Tri-State. The four were mem-
bers of the Union and, pursuant to the dues checkoff,
were current in their dues through June 1980, the month
in which the Respondent began operations and in which
some of these employees were hired. According to Cox,
Tri-State had seven truckdrivers (one of whom is now
the Greenfield manager), 2 mechanics, and three mix
plant employees. The dues checkoff for June shows a
unit complement of 10 which would break down to I
leadman, 6 drivers, I mechanic, and 2 mix plant employ-
ees. Whichever, it appears that there are now fewer
truckdrivers working for the Respondent out of the
Greenfield facility than had worked for Tri-State. Never-
theless, it is clear that the bargaining unit is substantially
identical and that those who do work for the Respond-
ent are doing precisely the same work as they had done
for Tri-State, using the same equipment. In short, there is
substantial continuity of the work force.
Even though there have been some minor changes in
the precise employee complement and the customers
serviced, neither is greater than might reasonably be ex-
pected had there been no change in the employer.
Finally, a majority of those in the bargaining unit as
now composed were members of the Union, and there
was no apparent hiatus in the work being done. These
355
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
factors, along with those noted above convince me that
the Respondent is Tri-State's successor. Mondovi Foods
Corporation, 235 NLRB 1080 (1978).
I conclude that there is substantial continuity of the
employing industry and that the Respondent is the suc-
cessor to Tri-State. The Respondent is therefore obligat-
ed to recognize and bargain with the Union as the exclu-
sive collective-bargaining representative of the Respond-
ent's employees in the unit described above.
2. The bargaining unit
The Respondent contends that, nevertheless, the scope
of the bargaining unit has substantially changed, making
the only appropriate unit that of a multifacility. Since the
General Counsel failed to establish that the Union repre-
sents a majority of all employees of both the Greenwood
and Greenfield facilities, Respondent cannot be ordered
to bargain with the Union.
It is noted first that a single-plant unit is presumptively
appropriate notwithstanding that a multiplant unit might
also be appropriate. E.g., Wescom, Inc., 230 NLRB 1159
(1977). The Respondent has the burden of rebutting this
presumption. Here, there is insubstantial evidence to sup-
port the conclusion that the single-plant unit is not ap-
propriate.
While there is some evidence of limited interchange of
employees between the two facilities, the extent of the
interchange is not well defined and appears to be ad hoc
and sporadic. As the General Counsel notes, inasmuch as
these facilities are 130 miles apart, it is impracticable to
have any real interchange of employees on any kind of a
regular basis. Where an employee for some particular
reason must work at other than his normal facility, spe-
cial arrangements have to be made. While Cox has gen-
eral management authority over both facilities, there is
an individual in charge of day-to-day supervision at
Greenfield.
On the other hand, there is a Board certification and
history of collective bargaining in the single-plant unit,
both significant factors. Cf. Amax Coal Company, 243
NLRB 571 (1979). I therefore conclude that the Re-
spondent has not overcome the presumption that the unit
described above is appropriate.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The unfair labor practice found above, occurring in
connection with the Respondent's operation, has a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tends to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V. REMEDY
Having concluded that the Respondent has engaged in
the unfair labor practice described above, I shall recom-
mend that it cease and desist therefrom, and that it be or-
dered to recognize and bargain with the Union as the ex-
clusive collective-bargaining representative of the em-
ployees in the appropriate bargaining unit.
Upon the foregoing findings of fact, conclusions of
law, and the entire record of this matter, and pursuant to
the provisions of Section 10(c) of the Act, I hereby issue
the following recommended:
ORDER'
The Respondent, Contract Carrier, Inc., Greenfield,
Missouri, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with Teamsters Local Union No. 245, affiliated
with International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, by failing
to recognize or bargain with the Union as the exclusive
representative of its employees in the following appropri-
ate unit:
All full time and regular part time truck drivers,
warehousemen, mechanics and production employ-
ees employed at the Company's facility located in
Greenfield, Missouri, the only facility herein, but
excluding all sales employees, clerical employees,
guards, supervisors, and professional employees as
defined in the Act and all other employees.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor
organization as the exclusive representative of all em-
ployees in the aforesaid appropriate unit, with respect to
rates of pay, wages, hours, and other terms and condi-
tions of employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its Greenfield, Missouri, facility copies of
the attached notice marked "Appendix." 2 Copies of said
notice, on forms provided by the Regional Director for
Region 17, after being duly signed by the Respondent's
representative, shall be posted by the Respondent imme-
diately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 17, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, and recommended Order herein shall, as provided in
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
2 In the event that 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 National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
356