Sentle Trucking Corporation

National Labor Relations Board - Board Decisions

Mar 2, 1982

260 N.L.R.B. 596 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sentle Trucking Corporation and International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Teamsters
Steel Haulers' Local Union No. 800. Case 6-
CA-12501
March 2, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 20, 1981, Administrative Law
Judge Donald R. Holley issued the attached Deci-
sion in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief,
and Respondent filed a brief in support of the Ad-
ministrative Law Judge's Decision.
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
briefs and has decided to affirm the rulings, find-
ings, t 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, Sentle Truck-
The Administrative Law Judge found that fleet driver Phillipi testi-
fied that "at an unstated time" he called Respondent's terminal manager
to inquire into the possibility of "bumping" onto equipment owned by
Respondent. However, the General Counsel correctly points out that
Phillipi testified that he called Respondent on July 16, 1979. This inad-
vertent error is insufficient to affect the Administrative Las; Judge's con-
clusion that Phillipi was not discriminalorily discharged.
2 In the absence of exceptions thereto, we adopt, pro forma, the Ad-
ministrative Law Judge's conclusions that Respondent violated Sec.
8(a)(5) and (1) of the Act by sending a letter to employees on June 18,
1979, in which it solicited their approval of a proposed modification of
the contract, based on his finding that the employees were not advised by
the letter or otherwise that Respondent merely sought to initiate the con-
tractual relief procedure; and that Respondent did not violate Sec. 8(a)(5)
and (I) of the Act by holding a meeting on July 14. 1979, at which Re-
spondent offered to seek contractual relief if employees would agree to
the modifications proposed in its June 18, 1979. letter and discussed the
options available to drivers, based on his finding that a representative of
the local union was present during the meeting.
In adopting the Administrative Law Judge's conclusion that Respond-
ent did not violate Sec. 8(a)(5) and (I) of the Act by canceling trailer
leases without first bargaining with the employees' collective-bargaining
representative, we find it unnecessary to pass on his discussion of the Su-
preme Court's opinion in Local 24. International Brotherhood of Teamsters,
Chauffeurs. Warehousemen and Helpers of America. .4FL-CIO'. et l. .
Oliver. 358 U.S 283 (1959). We note that the National Master Freight
Agreement (NMFA) itself recognizes and provides for the use and termi-
nation of equipment leases with a 30-day cancellation clause and swe find
no circumstances here showing that Respondent's termination of the
leases was in any manner in derogation of its right to cancel such leases
under the NMFA See DeBolt Transfer Company, 259 NLRB 889 (1982).
260 NLRB No. 79
ing Corporation, Armagh, Pennsylvania, its offi-
cers, agents, successsors, and assigns, shall take the
action set forth in the said recommended Order.
DECISION
STATEMENT OF THE CASE
DONAt.D R. HOLLEY, Administrative Law Judge:
Upon an original charge filed on June 27, 1979, amended
on July 15 and October 5, the Regional Director for
Region 6 of the National Labor Relations Board (herein
called the Board) issued a complaint on October 311
which alleges that Sentle Trucking Corporation (herein
called Respondent) violated Section 8(a)(l), (3), and (5)
of the National Labor Relations Act, as amended (herein
called the Act), by, inter alia, bypassing International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Teamsters Steel Haulers' Local
Union No. 800 (herein called the Union or Local 800),
and dealing directly with employees, canceling trailer
leases with owner-operators and fleet owners, and un-
lawfully terminating the employment of 12 named truck-
drivers. In its several answers to the complaint, Respond-
ent denies that it engaged in the unfair labor practices al-
leged in the complaint.
This case was heard before me in Pittsburgh, Pennsyl-
vania, on May 19 and 20, 1980. All parties appeared and
were afforded the opportunity to participate in the hear-
ing. Thereafter, the General Counsel and Respondent
filed briefs which have been carefully considered.
Upon the entire record, the briefs, and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, an Ohio corporation, is a common carrier
engaged in intrastate and interstate transportation of
freight and steel commodities. It maintains some nine ter-
minals in several States, including a facility at Armagh,
Pennsylvania. The Armagh terminal2 is the only facility
immediately involved in the instant case. During the 12-
month period ending October 1, 1979, it derived gross
income exceeding $50,000 for the transportation of
freight and steel commodities from Pennsylvania loca-
tions to points located outside said State. It is admitted,
and I find, that Respondent is engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Teamsters Steel Haulers' Local
Union No. 800, is a labor organization within the mean-
ing of the Act.
I All dates herein are in 1979. unless otherwise indicated
2 On occasion, the Armagh terminal is called the Johnstown terminal
in the record.
596
SENTIE TRUCKING CORPORA FION
Ill. THE All EGEiD UNFAIR L.ABOR PRACTICE S
A. Facts
Respondent is engaged primarily in the transportation
of steel at its nine terminals located in the eastern and
central portions of the United States.
In June 1979, Respondent utilized some 25 drivers at
the Armagh terminal. Among these were company driv-
ers, who operated company-owned tractors and trailers;
owner-operators, who drove their own equipment which
had been leased to Respondent: and fleet drivers, who
drove equipment owned by others who had leased their
equipment to Respondent.
Local 800 has represented Respondent's Armagh ter-
minal truckdrivers since 1972. From that time to the
present date, Respondent has been a member of the Na-
tional Steel Carriers Association which has negotiated a
series of contracts with the Union. The most recent
agreement entitled the National Master Freight Agree-
ment and Eastern Conference Area Iron & Steel Rider
(herein called NMFA) was entered on April 1, 1979, and
expires on March 31, 1982.
When the current NMFA was executed, Respondent
utilized about 12 leased tractors and trailers at the
Armagh terminal. Its practice prior to that time had been
to cause the owner-operators and fleet operators to haul
steel for Respondent on outgoing trips and permit them
to trip lease and haul grain on their backhauls.3 The les-
sors did not share the revenues they obtained for back-
hauling grain with Respondent. Thus, Respondent, in
effect, used the lessors' equipment only on outgoing
trips.4 While Respondent was able to use leased equip-
ment profitably before the current NMFA was executed,
it could not use it profitably after April 1, 1979. 5
During their testimony, Jesse Sentle, Jr., Respondent's
president, and Richard Evans, Respondent's eastern divi-
sion manager, indicated that Respondent had two alter-
natives which it could pursue to alleviate the economic
problem caused by use of leased equipment after the cur-
rent NMFA was executed. The first was to promulgate a
plan affording economic relief from the collective-bar-
gaining agreement which would thereafter be submitted
to the appropriate competitive review board pursuant to
the terms of the NMFA. Witness James Hutchinson, Jr.,
the employer co-secretary of the Eastern Conference
Joint Area Committee, credibly indicated that the proce-
dure followed for economic relief from the NMFA is
one wherein the particular carrier seeking relief discusses
its proposal with the local union and the company's em-
ployees and thereafter files a request for relief with itself
or the union co-secretary, and the case is then docketed
for a hearing before a competitive review board com-
posed of an equal number of employer and union mem-
bers who decide whether the relief should be granted or
denied. The second alternative available to Respondent
I While trip leasing, the owner-operator and/or fleet owner operates as
an independent contractor.
I One owner-operator hauled both ways for Respondent and another,
who is not involved in this proceeding, leased dump equipment to Re-
spondent.
5 See Resp. Exhs. I(a) and (b) which reveal that Respondent operated
at a loss when using both leased tractors and trailers after April I, 1979.
was to cancel its equipment lease with owner-operators
and fleet owners and operate with company equipment.
While the Union represents employees rather than
owner-operators and fleet owners in their capacity as
equipment owners or lessors, the current NMFA con-
tains provision for minimum equipment rental. Thus,
owners leasing tractors are, by the terms of the agree-
ment, entitled to a minimum rental for tractors of 33 per-
cent of the gross revenue produced for the lessee and the
minimum trailer rental fee is 13 percent of gross revenue
produced. The agreement provides that the driver is to
be paid:" 26 percent of gross revenue as wages; 3 percent
to cover vacation, holidays, sick pay, and funeral leave;
$141.60 per month to the Union's health and welfare
fund;7 and $1.02 per hour for straight time worked to a
maximum of 40 hours to the Union's pension fund. s
Sentle testified that he decided in June to attempt to
obtain economic relief from the NMFA through the
competitive review board procedure. Consequently, on
June 18 he sent correspondence to all owner-operators
and fleet owners utilized at each of Respondent's nine
terminals. The correspondence was placed in the record
as General Counsel's Exhibit 4 and states, in pertinent
part:
DEAR OWNER/OPERATOR AND/OR FLEET
OWNER:
We are entering our second month of the new con-
tract, and we find that economically there is no
way we can exist unless some relief is granted. We
have thought of cancelling leases, but we feel a pro-
ductivity formula will better serve you and me.
Effective July 1, 1979, Sentle will pay the $74.50
Health, Welfare and Pension Premium if your
weekly gross is $2,200.00 or greater. If you gross
$1,500.00 or less, you will pay the $74.50. Any
figure between $1,500.00 and $2,200.00 we will both
share this cost proportionately. We will deduct
your share from your truck check.
If you have any questions concerning this matter,
please contact your terminal manager. I hope you
will all agree to this method so that we can protect
everyone's job, and the company can continue to
exist.
Thank you,
SENTLE TRUCKING CORPORATION
Jesse W. Sentle, Jr.
President
-- I agree with the above deduction
-I do not agree
Signature
6See G.C F.xh 2. arts 53, 55, 5., 59. and 60, and supplemental agree-
ment attached to the NMFA.
7 Eligibility requirements are set forth in art 49 of the supplemental
agreement attached to the NMFA in the record as GC. Exh 2
8 Ibid, art 50
597
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Please complete and return to your terminal im-
mediately.
Sentle claimed Respondent's normal practice is to send
all notices to employees, including the company newspa-
per, to all local unions involved, and Evans testified that
a copy of the June 18 correspondence was sent to
Robert Todd, then the business agent of Local 800. Todd
denied that he received such correspondence from Re-
spondent.9 Evans admitted he did not contact Local 800
before the letter which he describes as a questionnaire
was sent to the drivers. According to Evans, only two
drivers responded to the June 18 letter and their re-
sponses were negative.
On June 27, Todd filed the original charge in this case
and on the same day he informed Evans he had filed
charges because he felt Respondent was bypassing the
Union and dealing directly with employees. Evans in-
formed Todd that Respondent considered the corre-
spondence to be a questionnaire.
The General Counsel placed in the record as General
Counsel's Exhibits 3(a)-(i) nine equipment leases execut-
ed on various dates by Respondent and the owner-opera-
tors and fleet owners whose leased equipment was used
at the Armagh terminal. Each of the leases provide, inter
alia, ". . . Either party shall have the right to terminate
this lease at any time after thirty days from the effective
date hereof by mailing or delivering to the other party
. . . two copies of a written notice of termination." By
letters dated July 11, Respondent notified the owners of
leased equipment it was then using at each of its nine ter-
minals that it was terminating their trailer leases effective
July 17, 1979, at 8 a.m.' The letters sent to owners of
leased equipment used at the Armagh terminal stated, in
pertinent part: I
Effective July 17, 1979, at 8:00 a.m., we find it nec-
essary to cancel your trailer lease.
We have company trailers available at 13% of the
gross according to contract. If you are loaded on
July 17, deliver your load and load back to your
home terminal. Company trailers are available at
Toledo, Ohio. Please see Jerry Kish.
We are sorry to take this action but, due to the pro-
hibitive cost of the new contract, we find this
action necessary.
Thank you,
SENTLE TRUCKING CORPORATION
[s] Jesse W. Sentle
Jesse W. Sentle, Jr.
President
JWS/shp
9 I make no credibility resolution regarding this issue as Evans did not
testiiy that he personally mailed the letter to Todd. I note, however. that
Todd indicated in his pretrial statement given to the investigating agent
that he received a copy of the letter at or about the same time the owner-
operators received theirs
i' Armagh owner-operator Koloshinsky was not sent a lease termina-
tion letter as he leased a dump trailer to Respondent and was in a differ-
ent division (bulk division).
I See G.C Exh 5.
PS: There is a meeting at the Johnstown Terminal
July 14, 1979, at 10:00 a.m. to discuss this problem.
Evans testified that Respondent made no attempt to con-
tact Local 800 before sending its lease termination let-
ters, but claimed he sent the Union a copy of a termina-
tion letter. Todd denied having received such a letter
from Respondent, but indicated he learned of the situa-
tion through discussion with an owner-operator.
On July 14, a meeting was held with the drivers at the
Armagh terminal. Respondent was represented by Evans
and Terminal Manager Harry McLaughlin. Todd repre-
sented the 9 or 10 drivers who attended. Prior to the
meeting, Todd informed Evans and McLaughlin that
there was no way the drivers would agree to pay their
health and welfare coverage. Evans started the discus-
sion at the meeting by indicating the Company could not
afford the new contract and stated it had to get relief.
He informed the drivers Respondent could no longer
afford to let owner-operators and fleet drivers haul only
one way, but that Respondent could continue to use
them if they hauled both ways for the Company and
used a company trailer. As an alternative, he indicated
the drivers might consider bumping onto company
equipment, or continue to haul for Respondent on a trip
lease basis. At some point, Evans indicated the drivers
could make a proposal in the presence of their business
agent if they desired to, and the Company would submit
any such proposal to the competitive review board and
ask for relief.' 2 Todd indicated there would be no deals
as the newly negotiated contract was a good one, and he
informed the drivers that the Union could not agree to
any deals because that would lead to all drivers paying
for their health and welfare coverage. Several drivers
commented they would like to bump onto company
equipment and tear it up. Evans informed those drivers
the Company did not want them anyway. At the conclu-
sion of the meeting, one of the owner-operators com-
mented they would probably have to seek employment
elsewhere, and after the meeting ended Arnold Hearn,
Delmont Hearn, Jack Leckey, Guy Diehl, and Todd
went across the street to Jones Motor Freight to seek
work. Evans observed the group when they went to
Jones.
Evans' uncontradicted testimony reveals that Respond-
ent utilized some 35 tractors and trailers of owner-opera-
tors and/or fleet owners on July 14 throughout its
system. It then had some 40 company trailers which
were available in event such lessors decided to pull com-
pany trailers. While two owner-operators working in ter-
minals other than the Armagh terminal chose to continue
to haul for Respondent using their own tractors and a
company trailer after July 14, none of the owner-opera-
tors or fleet owners based at the Armagh terminal indi-
cated a desire to pull a company trailer with their tractor
'2 T dd denied that Esans mentioned going to the competitive review
board during the meeting and he claimed seseral drivers said they would
pull company trailers but Evans told them the Company did not want
Ihem. I found Evans to be a straightforward witness and credit his testi-
mony Todd was not an impressive witness, and I gained the impression
that he described only that part of the meeting which was favorable to
the Union's case
598
SENI'LE TRUCKING CORPORATION
after July 14. While General Counsel alleges in the com-
plaint that the Armagh drivers "... ceased work con-
certedly and engaged in a strike ... " from July 17 for-
ward, the record merely reveals that the owner-opera-
tors and fleet owners refrained from offering to use com-
pany trailers after July 17. Neither the owners nor their
drivers engaged in picketing or similar activity which
would normally be expected in a strike situation. Re-
spondent admittedly refused to dispatch any owner-oper-
ators or equipment owned by fleet owners after 8 a m.
on Jul)' 17 unless the owner agreed to pull a company
trailer.
On July 20, Respondent terminated all owner-opera-
tors and fleet owners by identical letters, the body of
which stated (G.C. Exh. 6):'3
You have not reported for duty for seventy-two
(72) hours. Accordingly, we are considering you a
Voluntary Quit and dropping you from the Senior-
ity Rolls of Sentle Trucking Corporation effective
this date.
Please send to Toledo or your local terminal Sentle
permits, cancelled leases, etc.
While Evans testified that the Armagh terminal drivers
of fleet equipment were not sent termination letters on
July 20, the record reveals that Gene Nicholson, who
drove equipment owned by Delmont Hearns, did receive
a termination letter.'4 Nicholson was last dispatched on
July 16 and testified that he returned to the Pennsylvania
area on July 19. The record fails to indicate whether
Nicholson ever contacted Respondent after he was dis-
patched on July 16. Hearn, the owner of the equipment
he drove, never indicated he intended to pull a company
trailer.
Fleet driver Phillippi, who also drove equipment
owned by Delmont Hearn, testified he asked Terminal
Manager McLaughlin at an unstated time about bumping
onto company equipment. McLaughlin replied that he
did not know for sure; that he would have to check on
it.' 5 Subsequently, later in July, Phillippi purchased his
own tractor and offered to haul for the Company with a
company trailer. Evans' uncontradicted testimony reveals
13 The drivers named as alleged discriminatee, in the complaint are:
OWNER-OPERATORS
Guy Diehl
Charles Feathers
Arnold Hearn
Delmont Hearn (also fleet owtner)
Larry Heard
John Leckey
James Shaw
Robert Steele
FLEET DRIVERS
Vincent Conrad
Gene Nicholson
Roger Phillippi
Ronald Slovak
'4 Fleet drivers Vincent Conrad. Roger Phillippi, and Ronald Slovak
were not sent termination letters
's The NMFA, art 43, sec. 5, requires written notice of intent to
bump onto company equipment Although Phillippi had a copy of the
contract, he admittedly filed no written request that he be permitted to
bump onto company equipment
that Conrad and Slovak were hired as Company drivers
around the end of August or in early September. 16
On July 21, seven of the eight owner-operators who
were terminated by Respondent on July 20, one owner
of fleet equipment, and a person whose signature is not
legible, filed a grievance protesting the termination of
their employment." The grievance was not resolved at
the first step of the grievance procedure and it was dock-
eted for consideration by the Western Pennsylvania Joint
Area Grievance Committee. On September 6, that com-
mittee refused to consider the grievance because the per-
sons involved had not grieved individually. Witness
Hutchinson, secretary of the committee in question, was
unable to state whether the committee would have con-
sidered grievances had the individuals filed separately
after September 6. In any event, no individual grievances
were filed after September 6.
IV. ANAl.YSIS AND CONCLUSIONS
A. Threshold Issues
Respondent's claim that the Board's decision in Collyer
Insulated Wire, A Gulf and Western Systems Co.., 192
NLRB 837 (1971), justifies dismissal of this case and de-
ferral to the mandatory grievance procedure set forth in
the NMFA, and the General Counsel's claim that trailer
leasing had become a term or condition of employment
of Respondent's owner-operators by July 1979, pose two
threshold issues which should be resolved before the re-
maining issues raised by the pleadings are addressed.
1. The Collyer issue
In Collyer Insulated Wire, supra, and subsequent cases,
the Board has deferred to the grievance-arbitration pro-
cedure of the litigants' collective-bargaining agreements
in instances wherein the dispute involved is essentially
one concerning the terms or meaning of such agreement.
On the other hand, its policy is to not defer in cases
where the pleadings allege that employees suffered dis-
criminatory treatment because they attempted to exercise
rights guaranteed by Section 7 of the Act. General
American Transportation Corporation, 228 NLRB 808
(1977), and United States Postal Service, 237 NLRB 117
(1978). Moreover, once it has decided to assert jurisdic-
tion, the Board resolves all the issues in a given case.
Meharry Medical College, 236 NLRB 1396 (1978).
Applying the foregoing to the instant case, I find that
deferral would be inappropriate in this case as the com-
plaint alleges, inter alia, that 12-named employees were
discharged because they engaged in an unfair labor prac-
tice strike and/or other protected concerted activity for
their mutual aid or protection.
2. The lease issue
Citing Local 24, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL-
'i The record fails to reveal whether Conrad and Slovak sought, prior
to late August or early September. to bump onto company equipment. As
their seniority date is their date hired in August or September. I presume
they did not fillow the applicable contractual bumping procedure
" See Resp Exh 3
599
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO, et al. v. Oliver, 358 U.S. 283 (1959), the General
Counsel contends that I should find Respondent had
leased trailers from the owner-operators, involved herein,
so long that trailer leasing had become a term or condi-
tion of their employment which could not be changed
unilaterally. In my view, his reliance on Oliver is mis-
placed. In that case, the Supreme Court held that the
parties involved did not violate Ohio antitrust laws by
agreeing during contract negotiations that carriers would
pay certain minimum rates if they leased tractors or trail-
ers from persons who also drove for them. The Court
noted that such rental rates were an appropriate subject
for bargaining because the rental rates were intimately
connected with the remuneration drivers receive for
driving, and carriers could, absent agreement on mini-
mum equipment rental rates, pay their drivers low rental
and, in effect, cause them to divert moneys supposedly
received for driving to pay the cost of owning and using
their equipment. The Court did not purport to find that
equipment leasing could become a term or condition of
employment.
In certain instances, the Board has found that benefits
received by employees over an extended period of time
have become terms or conditions of their employment.
The theory, however, is that the employee has been re-
warded for performing work for the employer and once
the particular benefit has been conferred for a sufficient
period to cause the employee(s) to come to rely on it as
part of his remuneration for performing work, it becomes
a term or condition of his employment. No such situation
exists in this case as the owner-operators have leased
their equipment to Respondent and the lease agreements
expressly provide that they can be canceled at will by
either party once they have been in effect for 30 days.
Moreover, the NMFA requires separate checks for driv-
ers' wages and equipment rental; expressly requires that
the minimum 30-day clause be included in leases; and
provides that owner-drivers shall have seniority as driv-
ers only. '
In sum, it is clear, and I find, that the moneys paid by
Respondent to owner-operators for equipment rental
were clearly rental moneys rather than remuneration for
driving services, and as the leases provided either party
could cancel at will after the lease had been in effect for
30 days, the owner-operators were precluded from rely-
ing on continued receipt of such rental moneys. I find
that the trailer leases in question had not become terms
or conditions of the drivers' employment by July 1979.
B. The Alleged Direct Dealings With Employees
Paragraph 12 of the complaint, read in conjunction
with conclusionary allegations set forth in paragraphs 20
and 22, alleges that Respondent violated Section 8(a)(l)
and (5) and independently violated Section 8(a)(1) by:
1. Sending employees the June 18 letter which solicit-
ed "employees to agree to accept changes in the health
and welfare and pension provisions of the NMFA."
2. Offering by the July 11 letter "to provide equipment
to employees under terms and conditions different from
18 See G.C. Exh. 2, art. 22, secs. 2 and 6, p. 65, and art. 43, sec. 6, p.
106.
the rates of pay, wages, hours of employment and other
terms and conditions of employment of said employees."
3. Conducting a meeting on July 14 at which it solicit-
ed "employees to agree to Respondent's proposal
changes in the health and welfare and pension provisions
of the NMFA and to agree to other changes in terms
and conditions of employment."
For the reasons set forth below, I conclude that Re-
spondent violated Section 8(a)(l) and (5) as alleged by
sending enployees the June 18 letter, but I conclude that
its July 11 and July 14 actions were not violative of the
Act.
1. The June 18 Letter
As revealed, supra, Respondent's president, Sentle, in-
formed employees by letter dated June 18, inter alia:
Effective July 1, 1979, Sentle will pay the $74.50
Health, Welfare and Pension Premium if your
weekly gross is $2,200.00 or greater. If you gross
$1,500.00 or less, you will pay the $74.50. Any
figure between $1,500.00 and $2,200.00 we will both
share this cost proportionately. We will deduct
your share from your truck check. 19
The letter requested that recipients indicate their agree-
ment or disagreement with the deduction. It is undisput-
ed that Local 800 which represented the owner-opera-
tors and fleet owners who received copies of the letter
was not consulted before Respondent sent the letters.
There is a long line of cases which hold that an em-
ployer acts in bad faith and violates the Act by dealing
directly with employees at a time when they are repre-
sented by an exclusive bargaining agent. One of the earli-
est is Medo Photo Supply Corporation v. N.L.R.B., 321
U.S. 678, 684 (1944), where the Supreme Court stated:
The National Labor Relations Act makes it the
duty of the employer to bargain collectively with
the chosen representatives of his employees. The
obligation being exclusive . . . it exacts "the nega-
tive duty to treat with no other."
While Respondent contends that by sending the June
18 letter to owner-operators and fleet owners it was
merely following the contractual procedure for obtaining
economic relief pursuant to the terms of the NMFA, the
letter fails to indicate it was sent for such a purpose and
the record otherwise fails to reveal that the recipients
were so advised.
In sum, the June 18 letter clearly informed Respond-
ent's owner-operators and fleet owners that Respondent
intended to modify the terms of the NMFA effective
July 1, 1979, and solicited their approval of the modifica-
tion. As the Union was not consulted before the letter
was sent, it is clear, and I find, that by sending the letter
to employees and soliciting their reaction, Respondent
dealt individually with employees and bypassed the
Union in violation of Section 8(a)(1) and (5) of the Act.
While the conduct arguably constituted independent vio-
"9 The so-called productivity formula was never effectuated by Re-
spondent.
boo
SENTLE TRUCKING CORPORATION
lation of Section 8(a)(l) of the Act, such a finding would
add nothing to the remedy for the violation. Consequent-
ly, I refrain from deciding that issue.
2. The July 11 letter
As revealed, supra, the July 11 letter which was sent
by Respondent to its owner-operators and fleet owners
advised them that effective July 17 at 8 a.m. their trailer
leases would be canceled. The letter also stated, inter
alia, "We have company trailers available at 13 % of the
gross according to contract." While the General Counsel
alleges in the complaint that Respondent was, by insert-
ing the verbage described, offering to provide equipment
to employees contrary to the terms of the NMFA, the
allegation actually constitutes an exercise in semantics.
Thus, the record reveals the situation existing on July 11
was one wherein Respondent was indicating it was can-
celing the trailer portion of the leases it then had with
owner-operators and fleet owners and advising them that
it would continue to lease their tractor if they elected to
pull a company trailer, but instead of receiving 75 per-
cent of the gross revenue produced they would receive
13 percent less or 62 percent of the gross.
For the reasons set forth, infra, I conclude that Re-
spondent did not violate the Act when it notified its
owner-operators and fleet owners on July II that it was
terminating their trailer leases. Consequently, I find that
it did not offer by the July II letter to provide equip-
ment to employees under terms and conditions which
differed from terms and conditions of employment they
had previously enjoyed. Accordingly, I recommend that
paragraph 12(b) of the complaint be dismissed.
3. The July 14 meeting
As revealed, supra, Local 800 Business Representative
Todd attended the July 14 meeting held at the Armagh
terminal. During the course of that meeting, Evans, in
the presence of Todd, indicated to those present that if
they agreed to the productivity formula concerning
health and welfare and pension payments outlined in the
June 18 letter, Respondent would seek economic relief
from the contract through the competitive review board.
Additionally, Evans indicated the drivers attending the
meeting could elect to pull a company trailer, exercise
their driver seniority and bump onto company equip-
ment, or trip lease for Respondent. Todd indicated the
Union would permit no alteration of the NMFA, and
none of the drivers voiced an intention to pursue the
other alternatives mentioned by Evans.
In the circumstances described, it is clear, and I find,
that the changes in the terms and conditions of employ-
ment suggested by Evans at the July 14 meeting were
made in the presence of the employees' bargaining repre-
sentative. Consequently, Evans' conduct cannot be de-
scribed as an attempt to bypass the Union and deal di-
rectly with employees as alleged. I recommend that
paragraph 12(c) of the complaint be dismissed.
C. The Alleged-Unlawful Alteration of Employees'
Terms and Conditions of Employment Through
Cancellation of Trailer Leases
Paragraphs 13-15 and 22 of the complaint allege, in
sum, that by canceling the trailer leases of the Armagh
owner-operators and fleet owners effective July 17, with-
out notice to or bargaining with the Union, Respondent
violated Section 8(a)(l) and (5) of the Act. I find the
contention is without merit.
The General Counsel argues alternative theories in his
brief. The first is that trailer leasing had become a term
or condition of employment by July 1979, and Respond-
ent could not alter the past practice unless it followed
the contractual procedure for obtaining economic relief
from the NMFA. Having found that trailer leasing had
not become a term or condition of employment by July
1979, I reject the theory.
The second theory of violation urged is that Respond-
ent canceled the leases of owner-operators and fleet
owners in retaliation for their refusal to agree to the pro-
ductivity formula described in the June 18 letter and reit-
erated at the July 14 meeting. In his brief (pp. II and
12), counsel for the General Counsel claims that Evans'
admission during cross-examination that Respondent
would have followed the contractual procedure for ob-
taining economic relief from the NMFA before it can-
celed the leases of owner-operators and fleet owners if
the drivers had agreed to the productivity formula pro-
posed on June 18 and reiterated on July 14, justifies a
conclusion that Respondent canceled the leases in retali-
ation for the drivers' refusal to agree to the productivity
formula. Evans' testimony does not lead me to the con-
clusion urged when it is considered in conjunction with
other record facts.
As revealed, supra, Respondent utilized the tractors
and trailers of approximately 35 owner-operators and
fleet owners at its nine terminals when the current
NMFA was executed. Sentle credibly testified that Re-
spondent knew immediately that it could not use leased
equipment profitably and comply with the terms of the
agreement. Computations placed in the record as Re-
spondent's Exhibits l(a) and (b) support his contention.
Respondent had two avenues it could pursue; i.e., cancel
the leases of owner-operators and fleet owners or at-
tempt to obtain relief from the contract. It chose the
latter course, and Sentle prepared the June 18 letter
which was sent to owner-operators and fleet drivers. Sig-
nificantly, the letter stated at the outset, inter alia.
We are entering our second month of the new con-
tract, and we find that economically there is no
way we can exist unless some relief is granted. We
have thought of canceling leases, but we feel a pro-
ductivity formula will better serve you and me.
While I have found that Respondent violated Section
8(a)(l) and (5) of the Act by sending owner-operators
and fleet owners the June 18 letter without notifying the
Union and bargaining with it over the change in the
terms and conditions of employment of employees an-
nounced in the letter, it is clear, and I find, that Re-
601
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent sought by sending the letter to avoid cancella-
tion of the leases by proposing something it felt would
be more palatable to the owner-operators and fleet
owners. As previously indicated, the owner-operators
and fleet owners rejected Respondent's productivity for-
mula proposal, and by letters dated July 11 their trailer
leases were canceled.
According to Evans' testimony, Respondent had 40
company trailers available for owner-operators and fleet
owners to pull when it canceled the leases of its 35 les-
sors at all 9 terminals. It is undisputed that Respondent
had paid its lessors 13 percent of gross revenue produced
for trailer rental prior to July 11. Thus, by using its own
trailers rather than those of lessors, which it apparently
did not need, it could obviously save money.
In sum, it is obvious that Respondent had a legitimate
economic motive for cancelling the trailer leases of its
owner-operators and fleet owners on July 11, 1979. As I
view the record facts, Respondent sought to reach a so-
lution to its economic dilemma which would be more ac-
ceptable to its lessors than lease cancellation, and can-
celed the leases after the lessors and their bargaining rep-
resentative rejected all the alternatives it proposed. In
the circumstances, I find that General Counsel has failed
to prove that the trailer leases of the Armagh terminal
owner-operators and fleet owners were canceled in re-
taliation for their refusal to agree to accept Respondent's
productivity formula. For the reasons stated, I recom-
mend that paragraphs 13-15 and 22 of the complaint is
dismissed.
D. The Alleged Discriminatory Discharges
Paragraphs 16-19 and 21 of the complaint allege, in
effect, that the 12 drivers named in fn. 13 of this decision
"ceased work concertedly and engaged in a strike" from
July 17, 1979, forward; that the strike was caused by Re-
spondent's unfair labor practices; and that Respondent
terminated them on July 20, 1979, because they engaged
in a strike or other protected concerted activities, thus
violating Section 8(a)(3) of the Act.
While General Counsel has alleged that Respondent's
drivers ceased work concertedly and commenced a strike
against Respondent on July 17, 1979, the record fails to
reveal that such drivers jointly decided to refuse to haul
for Respondent further on or before July 17, and it fails
to reveal that they congregated in the area of the
Armagh terminal with picket signs or otherwise engaged
in activities normally associated with a strike. Instead,
the record merely reveals that subsequent to the mailing
of the July 11, 1979, letter which canceled their trailer
leases effective July 17, 1979, at 8 a.m., none of the
Armagh owner-operators or fleet owners indicated to
Respondent that they: desired to haul for it using their
own tractors and a company trailer; desired to exercise
their seniority rights as drivers, i.e., bump onto company
equipment; 20 or desired to haul for Respondent on a trip
lease basis.
20 The NMFA and the supplements thereto do not define the bumping
rights of owner-operators in a situation wherein they drive their tractor
and a company trailer
As revealed, supra, Respondent notified owner-opera-
tor drivers Guy Diehl, Charles Feathers, Arnold Hearn,
Delmont Hearn (also fleet owner), Larry Hearn, John
Leckey, James Shaw, and Robert Steele by letters dated
July 20, 1979, that Respondent considered them to have
quit their employment and it was terminating them. A
similar letter was sent to fleet driver Gene Nicholson.
The record fails to reveal that Roger Phillippi, Vincent
Conrad, or Ronald Slovak, all fleet drivers, were termi-
nated on July 20, 1979, or at any time thereafter.
As revealed, supra, Phillippi testified that he asked
Armagh Terminal Manager McLaughlin at an unstated
time about bumping onto company equipment.
McLaughlin said he would check on it, but he never got
back to Phillippi. Subsequently, in late July, Phillippi
purchased his own tractor and volunteered to haul for
Respondent using a company trailer. Although article 43,
section 5 of the NMFA, contains provisions which
permit a fleet driver to bump onto company equipment
after giving written notice of an intent to bump, the
record fails to show that Phillippi, who testified he had a
copy of the contract, utilized the procedure .2
Although General Counsel has alleged that fleet driv-
ers Roger Phillippi, Vincent Conrad, and Ronald Slovak
were discharged by Respondent on July 20, 1979, the
record fails to reveal that they were discharged on that
date or thereafter. In this regard, the record merely re-
veals that Conrad and Slovak were hired as company
drivers in August or September 1979.
Consideration of the facts summarized above cause me
to conclude that the General Counsel has failed to prove
that the 12 employees named in the complaint engaged
in a concerted work stoppage and/or a strike from July
17, 1979, forward. Instead, I find that the record reveals
the owner-operators quit their employment by electing
not to haul further for Respondent using company trail-
ers. While it appears that Respondent erroneously sent
Nicholson the same type of letter sent to owner-opera-
tors on July 20, 1979, the record fails to reveal that
Nicholson engaged in a protected concerted work stop-
page or a strike as alleged in the complaint, or that he
was discharged because he had engaged in such activity.
Finally, the record fails to reveal that fleet drivers
Conrad, Phillippi, and Slovak were discharged by Re-
spondent on July 20, 1979, as alleged, and it fails to
reveal that they engaged in a protected concerted work
stoppage or strike from July 17, 1979, forward, as al-
leged in the complaint.
In sum, for the reasons indicated, I find that General
Counsel has failed to prove that the employees named in
paragraph 16 of the complaint were discharged by Re-
spondent because they engaged in a strike and/or other
concerted activity protected by the Act, and I recom-
mend that paragraphs 16-19 and 21 of the complaint be
dismissed.
2' See G C ixh 2, p 1Oh
602
SENTLE TRUCKING CORPORATION
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The employees covered in the multiemployer bar-
gaining unit set forth in articles 2 and 3 of the NMFA
constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
4. At all times material herein the International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Teamsters Steel Haulers' Local
Union No. 800, by virtue of Section 9(a) of the Act, has
been, and is, the exclusive representative of the employ-
ees in the multiemployer unit described in paragraph 3
above for the purpose of collective-bargaining with re-
spect to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
5. By announcing on June 18, 1979, that it intended to
alter provisions of the NMFA without giving notice to
or bargaining with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Teamsters Steel Haulers' Local Union No. 800,
and by seeking employee approval of such alterations in
the NMFA, Respondent bypassed the Union and dealt
directly with employees in violation of Section 8(a)(l)
and (5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
7. The Respondent has not violated the Act in any re-
spects other than those specifically found.
THE REMEDY
Having found that Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act, I shall recommend
that it cease and desist therefrom and take certain affirm-
ative action designed to effectuate the policies of the
Act.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER 2 2
The Respondent, Sentle Trucking Corporation.
Armagh, Pennsylvania, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Bypassing International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Teamsters Steel Haulers' Local Union No. 800, and at-
tempting to deal directly with employees in the bargain-
ing unit set forth below by unilaterally announcing an in-
tention to refuse to pay for their health and welfare and
pension benefits in accordance with the provisions of the
National Motor Freight Agreement and the Eastern
Conference Iron & Steel Rider. The unit found to be ap-
propriate for the purposes of collective bargaining is:
All employees covered in the multiemployer bar-
gaining unit set forth in Articles 2 and 3 of the Na-
tional Master Freight Agreement and the Eastern
Conference Area Iron & Steel Rider.
(b) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of
their rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act.
(a) Bargain, upon request, with Local 800 concerning
any proposed changes in the wages, hours, or other
terms and conditions of employment of bargaining unit
employees, and reduce to writing and sign any agree-
ment reached as a result of such bargaining.
(b) Post at its place of business at the Armagh. Penn-
sylvania, terminal copies of the attached notice marked
"Appendix. "2 " Copies of said notice, on forms provided
by the Regional Director for Region 6, after being duly
signed by Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not spe-
cifically found.
22 In the event no exceptions are filed as prov ided hb Sec 102.46 of
the Rules and Regulations of the National labor Relations Board, the
findings, conclusions. and recommended Order herein shall, as provided
in Sec 102 4X of the Rules and Regulations. be adopted hy the Board and
become its findings, conclusions, and Order, and all objeclions Ihereto
shall he deemed waited for all purpxose,
:2 In the event that this Order is enforced hb) a Judgment of a United
States Court of Appeals. the word, in the notice reading "Pos)led hs
Order if the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enfiorcing an
Order of the National abhor Relations Board"
603
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT bypass International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Teamsters Steel Haulers' Local
Union No. 800 and attempt to deal directly with
bargaining unit employees by unilaterally announc-
ing an intention to refuse to pay for their health and
welfare and pension benefits in accordance with the
provisions of the National Master Freight Agree-
ment and the Eastern Conference Area Iron & Steel
Rider.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of the rights guaranteed them under Sec-
tion 7 of the Act.
WE WILL bargain, upon request, with the above-
named Union concerning any proposed changes in
the wages, hours, or other terms or conditions of
employment of employees in the bargaining unit set
forth below, and reduce to writing and sign any
agreement reached as a result of such bargaining.
The bargaining unit is:
All employees covered in the multiemployer
bargaining unit set forth in Articles 2 and 3 of the
National Master Freight Agreement and the
Eastern Conference Area Iron & Steel Rider.
SENTI E TRUCKING CORPORATION
604