Greenleaf Motor Express

National Labor Relations Board - Board Decisions

Dec 17, 1991

305 N.L.R.B. 866 (N.L.R.B. 1991)

866
305 NLRB No. 124
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 298 NLRB 227.
Greenleaf Motor Express, Inc. and Ashtabula
Chemical Corp. and Chauffeurs, Teamsters,
Warehousemen and Helpers of America, Local
Union No. 377, affiliated with International
Brotherhood of Teamsters, AFL–CIO.1 Case 8–
CA–18908
December 17, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On February 21, 1989, Administrative Law Judge
Thomas A. Ricci issued the attached decision in this
proceeding. The Respondent filed exceptions and a
supporting brief. Thereafter, on April 16, 1990, the
Board remanded the proceeding to the judge for further
hearing and the taking of additional evidence.2 On De-
cember 26, 1990, the judge issued the attached supple-
mental decision. The Respondent filed exceptions and
a supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has reviewed the decision, the supple-
mental decision, and the record in light of the excep-
tions and briefs and has decided to affirm the judge’s
rulings, findings, and conclusions only to the extent
consistent with this Supplemental Decision and Order.
Contrary to the judge, we find that the General
Counsel has failed to meet his evidentiary burden to
show that the Respondent unlawfully reduced the
wages of its employees in violation of Section 8(a)(5)
and (1). We shall, therefore, dismiss the complaint in
its entirety.
The Respondent is a motor carrier engaged in the
transportation of hazardous chemicals. It operates a
fleet of trucks and trailers for this purpose and em-
ploys a crew of over-the-road drivers. Pursuant to
agreement with the Union, these employees were to be
compensated according to the following wage formula:
The Employer agrees to pay each employee eight-
een (18) percent of all gross revenues that each
employee directly produces (reduced by pension
and health and welfare costs as provided else-
where in this agreement), and additionally,
[$15.00] per load for each load that each em-
ployee is authorized by the employer to load and
which each employee actually loads. Each em-
ployee shall receive [$10.00] per hour [for waiting
time spent] beyond the [2] consecutive hours de-
tention at a customers location.
The issue in this case concerns the meaning of the
agreement’s phrase, ‘‘all gross revenues that each em-
ployee directly produces,’’ and its application to the
circumstances that arose around January 1, 1986, as
described below.
In late 1985, the Respondent discovered that it
would be unable to secure continuation of its insurance
coverage, in part because of the nature of the haz-
ardous materials it transported. Without such insurance
coverage, the Respondent recognized that it would be
unable to maintain its necessary Interstate Commerce
Commission (ICC) and Ohio Public Utility Commis-
sion permits to do business. With its insurance cov-
erage set to expire on December 31, 1985, and faced
with the prospect of liquidation, the Respondent en-
tered into a series of agreements with another motor
carrier, Leaseway Bulk Services.
Under the terms of these agreements, commencing
January 1, 1986, the Respondent leased to Leaseway
its entire fleet of tractors and trailers, agreed to be-
come Leaseway’s management agent, and transferred
its operating permits to Leaseway. Leaseway then
commenced the servicing of the Respondent’s cus-
tomers pursuant to tariffs filed with ICC by Leaseway
that determined the amount to be charged to each cus-
tomer. Leaseway used the tractors and trailers leased
from the Respondent. The vehicles were driven by the
Respondent’s unit employees and serviced in the Re-
spondent’s garage. Customers (the shippers of the haz-
ardous materials) paid their delivery fees to Leaseway,
which retained 17 percent of the payment and for-
warded the remainder to the Respondent. Thus, instead
of receiving 100 percent of its former delivery fee
when it serviced customers directly under its own tar-
iffs, commencing January 1, 1986, the Respondent ef-
fectively received 83 percent of the delivery fee under
the Leaseway tariffs.
Beginning the second week of January 1986, the Re-
spondent calculated employees’ wage rates on the
basis of the gross revenues received by the Respondent
from each route, i.e., the gross revenue charged by
Leaseway less the 17 percent retained by Leaseway.
On January 10, 1986, the Union asked the Respondent
why employees’ net pay had been reduced, and the
Respondent offered to meet and discuss the issue. The
parties met on January 31, 1986. The Union offered to
negotiate wages if the Respondent would agree to re-
store payment as it existed prior to January 1, 1986.
When the Respondent declined to do so, negotiations
ceased. On February 4, 1986, the Union filed the in-
stant charge.
At the hearing, the General Counsel argued that
prior to January 1, 1986, there was a contractual for-
mula used to calculate wages, but, on that date, the
Respondent ‘‘modified that formula’’ resulting in a re-
duction of wages, i.e., that unit employees were enti-
867GREENLEAF MOTOR EXPRESS
3 Although the complaint does not allege that the charged violation
was Sec. 8(d) in character and specifically alleges that the Respond-
ent engaged in a unilateral reduction without prior notice to the
Union and without having afforded the Union an opportunity to bar-
gain, the parties litigated the case under the theory that a wage com-
pensation formula was in effect and covered the circumstances that
arose on January 1, 1986. We also note that the complaint does not
allege that the Respondent was obligated to bargain over the deci-
sion to enter into the arrangement with Leaseway.
4 At the remand hearing the Respondent introduced evidence con-
cerning the parties’ bargaining history as it pertains to the wage
compensation formula. That bargaining history shows that employees
formerly were compensated based on a flat mileage formula and
that, at the Respondent’s suggestion, the parties agreed in 1982 to
a new formula, the current one, tied to a percentage of gross reve-
nues. According to the testimony of the Respondent’s chief nego-
tiator, Richard Higley, the Respondent informed the Union and its
membership at that time that under the new formula employees
would be facing the same risks and rewards as the Respondent, de-
pending on whether revenues increased or decreased. Higley testified
that he discussed with the Union and its membership that employ-
ees’ wages would be based on a percentage of all gross revenues
that the driver produced directly for the Respondent. At the original
hearing, Union Business Agent Frank Licate testified on direct ex-
amination that the term ‘‘revenue’’ was intended to mean ‘‘the driv-
ers’ revenue.’’ On cross-examination, however, Licate testified that
‘‘it’s the gross revenue that is generated by Greenleaf.’’ There is no
evidence that the parties in 1982 considered how a gross revenues
formula would apply to circumstances such as that specifically aris-
ing in 1986.
5 Higley’s testimony that in 1982 he discussed with the Union that
the percentage would be applied to gross revenues that the driver
produced directly for the Respondent is consistent with this interpre-
tation.
6 The parties’ use of the word ‘‘directly’’ in the wage agreement
does not materially advance the General Counsel’s contention.
Higley testified without contradiction that ‘‘directly’’ simply distin-
guishes between billed services actually performed by the driver and
other billed services not performed by the driver, such as weight or
cleaning services performed by other employees, or for rental
charges. Thus, the inclusion of ‘‘directly’’ simply reflects the par-
ties’ understanding that the driver receives no payment whatsoever
for billed services performed by other employees.
7 The judge concluded, in agreement with the General Counsel,
that the drivers necessarily were entitled to 18 percent of the amount
received by customers for driving services because, to find other-
wise, would result in the insertion into the contract of the wording
‘‘for Greenleaf.’’ At the time of the wage agreement in 1982, how-
ever, inclusion of the Respondent’s name would have been super-
fluous, because no other entity received ‘‘gross revenues’’ and, thus,
Continued
tled, by contract, to the full 18 percent of the revenues
they produced, not merely the revenues produced for
the Respondent.3 Conversely, the Respondent argued
that under the terms of the wage compensation ar-
rangement, the Respondent was obligated to pay its
drivers 18 percent of all gross revenues produced by
the drivers for the Respondent and, therefore, the Re-
spondent properly applied the 18-percent wage entitle-
ment to all the revenues that it, in return, received
from Leaseway.4
Inasmuch as both the General Counsel and the Re-
spondent agree that the governing source of the em-
ployees’ wage entitlement is the established formula
tied to ‘‘all gross revenues that each employee directly
produces,’’ it is evident that, in order to prevail on the
complaint, the General Counsel bears the evidentiary
burden to show that the Respondent failed to comply
with that formula and thereby effectively changed em-
ployees’ wages unilaterally. On this record, we find
that the General Counsel has failed to meet this bur-
den.
We are unable to conclude that the Respondent uni-
laterally altered the wage compensation formula. The
Respondent continued to a pay drivers at an 18-percent
rate after January 1986, as it had before. As it had
done in the past, the Respondent calculated that 18-
percent figure based on the revenues it received from
the employees’ driving services. Employees received
less money than they had before because the Respond-
ent’s gross revenues were lower, a variable evidently
contemplated by the parties when they agreed to a per-
centage-based compensation formula, according to the
testimony of the Respondent’s negotiator, Higley.
We do not find compelling the contention of the
General Counsel that the term ‘‘all gross revenues that
each employee directly produces’’ necessarily means,
on its face, that the 18-percent wage deduction refers
to something other than the gross revenues produced
for the Respondent, i.e., that it must mean the total
cost to the customers of the service performed by the
driver.
Prior to 1986, the Respondent billed its customers
based on its own published tariffs and directly received
from those customers all the ‘‘gross revenues’’ that
were billed and collected. Thus, when the parties
agreed to a wage formula tied to gross revenues, there
was no entity, other than the Respondent, that billed
and collected ‘‘gross revenues.’’ Accordingly, it is not
unreasonable to argue, as does the Respondent, that the
most logical interpretation of the wage compensation
formula is that it is tied to revenues produced for the
Respondent.5 Commencing in 1986, however, the Re-
spondent no longer billed customers based on its own
published tariffs, and it did not receive the full amount
of the cost to the customer of the services its driver
provided. Those revenues were received from cus-
tomers by Leaseway pursuant to its own tariffs. In
these circumstances, it does not necessarily follow that
‘‘gross revenues,’’ as used in the wage formula, must
mean the gross revenues that the drivers produced for
Leaseway rather than the gross revenues produced for
the Respondent. Further, it does not necessarily follow
that the term ‘‘all gross revenues that each employee
directly produces,’’ by definition, refers only to the
driver, irrespective of the motor carrier that is billing
and collecting the revenues referred to in the wage
agreement.6
Thus, there is nothing in the wage compensation for-
mula, as written, that compels the interpretation ad-
vanced by the General Counsel.7 As the General Coun-
868 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as a practical matter, its omission had no bearing on the employees’
wages at that time. As noted, Higley’s testimony regarding the par-
ties’ bargaining history supports this interpretation.
8 At the remand hearing, the General Counsel introduced no evi-
dence and did not cross-examine the Respondent’s witness, Higley.
9 Cf. Plasterers Local 627 (Jack Hart Concrete), 274 NLRB 1286,
1287–1288 (1985).
sel submitted no evidence either that the parties con-
templated such an interpretation when agreement on
the wage formula was reached or that any past practice
supports the interpretation advanced by the General
Counsel,8 we find that the General Counsel has not
carried his evidentiary burden to show that the Re-
spondent altered unilaterally the established wage com-
pensation formula in violation of Section 8(a)(5) and
(1).9 Accordingly, we shall dismiss the complaint.
ORDER
The complaint is dismissed.
SUPPLEMENTAL DECISION
THOMAS A. RICCI, Administrative Law Judge. On Feb-
ruary 21, 1989, I issued a decision in this proceeding, finding
that the Respondent had violated Section 8(a)(5) of the Act
and ordering affirmative remedial action. On April 16, 1990,
at the request of the Respondent, the Board remanded the
proceeding for further hearing to take evidence to be offered
by the Respondent relative to the ‘‘Parties’ Applicable Bar-
gaining History’’ as it might relate to the critical issue pre-
sented in this proceeding. The remand hearing was held at
Cleveland, Ohio, on October 4, 1990. Briefs were filed by
the General Counsel and the Respondent.
On the record, and from my observation of the witness, I
make the following
FINDINGS OF FACT
The basic question underlying this case is whether the Re-
spondent, early in 1986, unilaterally reduced the pay rate for
its drivers without first bargaining with their established rep-
resentative, here the Charging Party. For 4 years, since 1982,
there had been a contract in effect between the parties. It
reads as follows:
The employer agrees to pay each employee eighteen
(18) percent of all gross revenues that each employee
directly produces (reduced by patient and health and
welfare costs as provided elsewhere in this agreement),
and additionally, ($15) per load for each load that each
employee is authorized by the employer to load and
which each employee actually loads. Each employee
shall receive ($10) per hour (for waiting time spent) be-
yond the (2) consecutive hours detention at a cus-
tomer’s location.
From January 1986 on, instead of paying the drivers 18
percent of the gross revenues their work produced, the Re-
spondent paid them much less. It did that because, unable to
obtain the necessary insurance for its transportation of haz-
ardous materials, it put another company’s name on its
trucks, which made it possible to continue its business as
usual. The other company, which had the necessary insur-
ance, permitted the Respondent use of its name in return for
17 percent of the amount paid by the Respondent’s cus-
tomers for the transportation of their materials. The Respond-
ent’s position is that because it had to pay part of its income
to another company, the drivers had to give up part of their
wages.
The collective-bargaining agreement then in effect contains
no such provision. Insofar as the employees were concerned,
their work did not change an iota; they served the same cus-
tomers of the Respondent, and they drove the same trucks.
In short, the fact that the name on the truck was changed had
no effect on the work for which they had always been paid
what the contract called for.
I am under the impression that what the Respondent told
the Board, when it asked that the proceeding be remanded
for further proof, is that before 1986 the parties had under-
stood that in a case like this—where the company had to pay
somebody else for part of what the employees’ work pro-
duced—the employees would bear the brunt.
At the remand hearing the Respondent was given unlim-
ited opportunity to offer whatever proof it wished to produce.
All it came forth with was the oral testimony of Richard
Higley, an agent of the Respondent and a man who had ne-
gotiated the 1982 contract on behalf of the Respondent.
There is not the slightest evidence in his entire story that
even begins to support the assertion that the parties had ever
agreed to the unilateral changes in pay which the Company
put in effect in 1986. My decision issued on February 21,
1989, will stand without change.
Higley spoke at great length about the reason why the
Company, in 1982, changed its method for paying the truck-
drivers from a mileage to a percentage basis. Before that
time drivers were paid so much a mile for their driling the
Company’s trucks, as are many drivers on the road. From
then on, they would receive a percentage of what the cus-
tomers paid to the Respondent for the work performed by the
individual drivers in making each and every delivery. All this
talk about why the Company, Respondent, did what it did in
1982, and how it all benefited the drivers, is completely irrel-
evant to the question here presented. An employer’s reason
for signing a contract with a union, which, among other
things, establishes the pay rate, cannot change the meaning
of the plain language of the contract. Every employer hopes
to make an increased profit during the life of the contract.
If he so succeeds he does not have to pay more to the em-
ployees. If he earns less than he hoped, he is not therefore
free to pay them less.
Higley also spoke at length about how at a meeting with
the drivers in 1982 he made clear to them that as to any
money the Company received from its customers for work
that was performed by employees other than the drivers, no
part of that money was to go to the drivers. Higley called
these ‘‘accesorily charges,’’ and listed them as including
weighing the truck, cleaning the truck, advanced loading
work, and standby charges while the truck was idle and not
being driven by anyone, etc. The witness explained that pay
for these kinds of miscellaneous services performed by other
employees, the drivers involved in this case got nothing.
Again, all these factual statements on the record have
nothing to do with this case. If an employer has different cat-
egories of employees, and some do this work, while others
869GREENLEAF MOTOR EXPRESS
do that, of course neither class gets paid for what the others
perform. I can understand Higley having explained all that
to these drivers at the time, but with the concept of percent-
age of money received by the Company being involved there
is no charge here of wrongdoing by the Respondent in not
paying these drivers for any work performed by others. The
documents offered in evidence even show that on one occa-
sion at least one of the drivers did perform an ‘‘accessorial
service,’’ and was paid for it. This case stays limited to the
Company not paying the drivers for work ‘‘driving the
truck.’’ They had 18 percent coming to them of what the
customers paid for that work which they, the drivers, and no-
body else performed. The Respondent also stopped paying
that without bargaining with the Union and in direct viola-
tion of the collective-bargaining agreement then in effect.
That Higley was completely off base in his testimony at
the remand hearing is most clearly shown by the sole exam-
ple which he described as proof that the parties had agreed
to interpret the existing contract as the Respondent now as-
serts. This Company has no authority to make any deliveries
into Canada. Some of its customers want their product
trucked to Canadian towns and cities. When such a deal is
made the Respondent arranges with a Canadian trucking
company to truck the hazardous materials from the border of
the two countries in and through Canadian territory. The Re-
spondent’s drivers haul the load to the border, where the
drivers of the Canadian company hook the loads to their own
trailers and then truck the material to its final destination.
Because the shipping customers of the Respondent pay ac-
cording to weight and mileage, they pay two separate
amounts to the Respondent—one for the trucking work per-
formed by the Respondent’s own drivers and one for the
driving done by the Canadian companies.
The Respondent now compares the money paid by its cus-
tomers for the work performed by Canadian drivers to the
amount retained by the American company for use of its
name on the Respondent’s truck. Because its drivers are not
entitled to be paid for work performed by the Canadian com-
pany drivers, they are also not entitled to 18 percent of the
money the Respondent pays the second American company
for use of its name on its trucks. There is absolutely no anal-
ogy between the two situations. I find the defense argument
completely without merit .
Accordingly, I reaffirm my decision exactly as issued of
February 21, 1989.