W.S.P. Trucking, Inc.

N.S.P. TRUCKING, INC. 1101 If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Edison 5-4211, Extension 2131. W.S.P. Trucking, Inc. and W.S.P. Inc. and Freight, Construction, General Drivers, Warehousemen & Helpers Union Local No. 287, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case No. 20-CA-3030. September 9,1965 DECISION AND ORDER On May 20, 1965, Trial Examiner James R. Hemingway issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in the unfair labor practices as alleged, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examner's Decision. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings,' conclusions, and recoln- mendatlons of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Order recommended by the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. i We agree with the Trial Examiner's findings that in the circumstances of this case the Respondent did not violate Section 8(a) (5) of the Act by negotiating individually with the employees concerning the sale of the converted trucks However, in sustaining his ultimate finding, we do not adopt any possible implication therein that individual bargaining was privileged because of the fact that the bargaining unit was unaffected by sale of the trucks. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on March 30, 1964, an amended charge filed on dune 11, 1964, and a second amended charge filed on August 27, 1964, by Freight, Construction, General Drivers, Warehousemen & Helpers Union Local No. 287, International 154 NLRBB No. 92. 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the Union, against W.S.P. Trucking, Inc., and W.S.P. Inc., herein called the Respondents, the General Counsel caused a complaint to issue on September 3, 1964, alleging that Respondents had engaged in and were engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, 29 U.S.C., Sec. 151, et seq. The Respondents' answer, filed on September 23, 1964, denied jurisdiction of the Board and denied the commission of any unfair labor practice. Pursuant to notice, a hearing was held before Trial Examiner James R. Heming- way, in San Jose, California, on November 4, 5, and 12, 1964. Following the close of the hearing, Respondents and General Counsel filed briefs. Upon the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS At all times material herein, W S.P. Trucking, Inc., a California corporation, with its main office and principal place of business located at Campbell, California, is, and has been, engaged as a hauling broker in the business of transporting sand, gravel, rock, and fill dirt, among other products, for various companies within the State of California. At all times material herein W.S P. Inc., a California corporation, has been engaged in the business of owning and leasing to W.S P. Trucking, Inc., equipment for opera- tion of W.S.P. Trucking, Inc., in its business. During all times material hereto, the principal stockholders of W S P. Trucking, Inc., were Garland Spears (500 shares), Ted Williams (250 shares), Charles Gibbins (50 shares), and Richard Triesenberg (50 shares). The officers of W.S.P. Trucking, Inc., during all times material herein, were Charles Gibbins, president, Richard Triesenberg, secretary-treasurer, Garland Spears, treasurer, and Julia Spears, vice president. The directors of said coiporation are Spears, Williams, and Gibbins. W.S.P. Inc., since the incorporation of W.S.P. Trucking, Inc., in 1962, has been a title-holding company. It has no employees. Before September 1964, the stock- holders of W.S.P. Inc. were Spears (two-thirds interest) and Williams (one-third interest). After September 1964, Spears bought out Williams' shares and was the sole owner. Before September 1964, the directors of W.S.P. Inc , were Spears, Williams, Gibbins, and Julia Spears. The officers were Garland Spears, president; Gibbins, secretary-treasurer; Julia Spears, vice president. During the hearing, Garland Spears, in his testimony, repeatedly used the first person in speaking of the operations of either one or the other of the Respondents. Looking through the cor- porate fiction, I find that Respondents are, essentially, an alter ego for Spears. Because of the interlocking directorate, officers, and owners, dominated by Garland Spears, I find that the Respondents are a single-integrated employer within the mean- ing of Section 2(2) of the Act. For the period between May 1, 1963, and April 30, 1964, W.S.P. Trucking, Inc., performed hauling services for L. C. Smith Company, a California corporation, valued at $265,984.45. For the same period, L. C. Smith performed work on inter- state highways valued in the amount of $183,711.15. During the same period, W.S.P. Trucking, Inc., performed hauling services valued in excess of $135,000. For the same period of time, Leo F. Piazza Paving Co. performed work or services on inter- state highways valued in excess of $130,000. During the same period of time, W S.P. Trucking, Inc., performed hauling services valued in excess of $12,000 for Kaiser Cement and Gypsum Corporation, which company in turn sold and shipped goods directly outside the State of California or performed services outside the State of California in an amount exceeding $50,000. During the same period of time, W.S P. Trucking, Inc., performed hauling services for Henry J. Kaiser Company, Sand and Gravel Division, valued at $42,000. The latter company is a Nevada corporation with its principal office at Oakland, California. The Sand and Gravel Division of said company is not separately incorporated, but is one of three operating divisions of said company. For the period from May 1, 1963, to April 30, 1964, Henry J. Kaiser Company shipped goods or performed services outside the State of California valued in excel of $50,000. Upon the foregoing findings of fact, I find that Respondents are engaged in com- merce within the meaning of Section 2(6) and (7) of the Act,1 and I find that it will effectuate the policies of the Act to assert jurisdiction. 1 HPO Service, Inc., 122 NLRB 394; Siemons Mailing Service, 122 NLRB 81; Interna- tional Brotherhood of Teamsters, et al. (Utah Sand and Gravel Products Corp.), 148 NLRB 118. W.S.P. TRUCKING, INC. 1103 II. THE LABOR ORGANIZATION INVOLVED The Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Refusal to bargain 1. The union agreement W.S.P. Trucking, Inc., hereinafter called Trucking, was incorporated in 1962 and became the operating portion of the business previously handled by W.S.P. Inc. The business, under one corporation or the other, has been operating since 1958 and has had an agreement with the Union ever since then. On March 8, 1963, Trucking and the Union signed a copy of the contract which had been negotiated by and between the Northern and Central California Chapter of the Associated Contractors of America, Inc., and Heavy, Highway, Building and Construction Teamsters Committee for Northern California. This agreement covered the period from April 30, 1962, to April 30, 1965. 2. The appropriate unit and the Union's majority therein The complaint alleges that all employees of Trucking at its operation at Campbell, California, including truckdrivers, but excluding office clerical employees, guards, and supervisors as defined in the Act , constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. The Respond- ents' answer does not deny this. I find that , at all times material hereto, the unit was as alleged in the complaint. Since the contract involved contained a hiring hall clause and a union -shop clause phrased to come within the provisions of Section 8(f) of the Act,2 the Union's majority in the appropriate unit is not questioned . I find that on March 8, 1963, and at all times thereafter to April 30, 1965, the Union was the exclusive representa- tive of the employees in the appropriate unit , above described, for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 3. Facts concerning alleged refusal to bargain The contract covers employee-drivers and owner-operators in the service of Trucking. Both are in the unit. By the terms of this contract, the owner-operators are deemed to be employees and not independent contractors, and they are required to be members of the Union. The employer, under the contract, is obliged to pay to the Union for owner-operators the amounts required to be paid to the Union for employees' pension and health and welfare funds. Owner-operators are excluded only from the seniority provisions of the contract and from certain of the provisions regarding hiring procedure. They are, however, required to be requisitioned through the Union's hiring hall. The owner-operator is paid under the contract wage scale for his time (including vacation time) but he receives an additional amount for his equipment. He is required to maintain and service his equipment himself. At the time Trucking signed a copy of the AGC master contract in March 1963, it had four bottom-dump trucks on lease from W.S.P. Inc. which were being driven by employee-drivers in addition to 14 bottom-dump trucks driven by owner-operators. In June 1963, Respondents sold (through W.S.P. Inc.) one such truck (previously driven by an employee-driver) to a man named Jim Diehl. As a result, one J. R. Pratt, an employee-driver was laid off. Diehl was sent to the Union for "clearance." 3 By September of 1963, Respondents had sold the four bottom-dump trucks to owner- operators, but the original employees driving the last three trucks were not laid off as a consequence of the sale, because two had already quit before the trucks were sold and one had been discharged for cause before the sale. In addition to the 18 bottom-dump trucks, Trucking operated 6 semis and I transfer truck. After Sep- tember 1963, only the semis were driven by employee-drivers. 2 No one contends in this case that the requirement of membership in the Union on and after the eighth day of employment is Illegal as to over-the-road drivers or as to any specific types of drivers in the service of Respondents. 8 This is a word used by Respondents. Actually, the procedure was to have the Union dispatch a driver, whether an employee-driver or owner-operator. Under the contract, the employer could ask for a driver by name. In the case of Diehl, as soon as he entered Into a contract for the purchase of a truck from W.S.P. Inc., Trucking would have called the Union to say that Diehl was being sent to the Union for dispatch. 1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Spears expected to sell all his trucks to owner-operators eventually, but because the semis were not satisfactory in Trucking's business, Spears wished to convert the semis to transfer trucks before selling them. Semis are an end-dump truck with a very long box. When the box is raised at the front to dump a load, the front end of the box rises so high that the unit becomes top heavy. On uneven or soft ground, they are in danger of tipping over and most of the drivers of Trucking had actually tipped over at least once.4 Not only did this result in loss of time and expense for Trucking, but it caused inconvenience to any customer of Trucking on whose job a semi tipped over. As a result, semis were not given as much work as other trucks. About mid-January 1964, Trucking, having decided to convert the six semis, removed the trailer boxes and sent the remainder of the unit to Los Angeles for conversion to transfer trucks (or "slam bangs" as they are called in the vernacu- lar).5 The employees wha had driven the semis were informed that Respondents intended to sell the tractors of the converted units to owner-operators when they were returned and that, as a consequence, when the trucks were sold, the employee- drivers would be terminated.6 While the trucks were away for conversion, the employee-drivers were not called to work.? Each of the employee-drivers spoke with Spears about the purchase of a tractor, and before the end of January 1964 two lease-purchase agreements had been signed, one by Richard Plo,s who had been driving a semi until they were sent for conversion, the other to Gary Cobb, who had not been employed by Trucking before. Although the other four tractors of the units being converted were not under contract of sale, Trucking, on January 31, 1964, sent termination notices to the four drivers who had not bought tractors: Manuel Silviera, Joseph Cabral, Keith Hammond, and Lloyd Hall. Each termination slip gave, as the reason for termination, that the company equipment had been sold, but the notice further stated: "At such time as the company gets new equipment in you will be considered for re-employment." 9 At this time, Trucking considered Silviera and Hall as unqualified to drive transfer trucks, and apparently did not intend to recall them when the converted units were returned. When the next two converted trucks were returned, Trucking recalled Cabral and Hammond to drive them. Another tractor for a transfer truck was sold on Feb- ruary 12, 1964, to a nonemployee, Clarence Bagwell, by conditional sale contract. The Union, on the same day, gave Bagwell a dispatch slip as an owner-operator. All the tractors sold on conditional sale or lease-purchase contracts were, by those con- tracts, required to remain in the service of Trucking until the full purchase price was paid. The total price of each was $18,500 plus financing charges, and the down pay- ment ranged from $1 ,500 to $4,000. One converted unit remained to be manned. The evidence shows that on February 19, 1964, a man by the name of Caldwell was dispatched as a "slam bang " driver; hence, he was not an owner-operator. The Respondents in mid-February 1964 urged Hammond and Cabral to buy the tractors they were driving. Hammond declined outright. Cabral attempted to raise the down payment but was unsuccessful and so informed Spears. In early March 1964, Trucking told Hammond that he would have to speed up in his driving, and when Hammond refused to do so, Respondents told Hammond that there was a prospective buyer for his truck and that he could quit or be terminated on sale of his truck. Hammond said that he would decide before the end of the week . Near the end of the week he notified Trucking's bookkeeper that he would not work after the end of the week. Hammond denied that he had quit, testifying that he had chosen 4 Respondents adduced evidence that they had tipped over 14 times in a 6-month period. s This consists of an end-dump truck and a trailer . When a load is delivered , the truck is disconnected from the trailer , is pulled to the desired location and dumped , then is backed to the trailer, the box of which is so constructed that it slides forward into the truck box . The trailer-box load is then dumped by the same mechanism used for dumping the truck. The driver then backs up to the trailer and returns the empty box, hitches onto the trailer, and leaves for the next load. 9 Technically , the sale was by W.S.P. Inc., and the drivers would be terminated by Trucking , but because I have found that the two corporations constitute one employer, I use the plural "Respondents." 7It was the practice for Respondents to telephone employees the night before if they were to be given a work assignment the next day . If there was no can, the employee did not work. There was no notice of layoff, therefore. a Plo exercised a right to rescind later. He signed a straight lease agreement in March 1964. P This did not affect the seniority of those reemployed . Seniority, under the contract, was not broken by a layoff of less than 12 months. W.S.P. TRUCKING, INC. 1105 to be terminated . However, Spears sought to induce Hammond to continue until the truck was sold and Hammond declined, saying that he had gotten other work. I find that Hammond quit rather than continue for an indefinite, but expectantly short, period until his truck was sold. Since Hammond has seniority over Cabral, Ham- mond could not have been terminated without cause until Cabral's truck, as well as Hammond's, had been sold. Soon after Hammond quit, Cabral quit.rather than be caught suddenly without a job when his truck should be sold. The record shows that, on March 16, 1964, the Union dispatched one F . Vidal as a "slam bang" driver, apparently replacing Hammond . There is no evidence to show a replacement for Cabral. The next sale of a tractor, equipped with transfer box, hoist, and accessories (which accessories remained the property of the seller), was made on May 11, 1964, when Arnold Rose, not an employee-driver for Trucking previously so far as the record shows, signed a conditional sale contract. At the time of the hearing, Truck- ing had three transfer trucks being driven by employees. Hall was rehired in June 1964, and drove a transfer as an employee. At the time the Respondents made the decision to convert the semis to transfer trucks and to sell them to owner-operators when converted, they did not give the Union formal notice. Black, the business agent for the Union, testified that Respond- ents did not mention a decision to convert and sell the trucks in question until late March 1964, presumably after the charge was filed, since the charges were a subject of discussion. He did concede that Spears had, at various times, talked of the pos- sibility of getting rid of the semis because of their dangerous design and getting transfer trucks, and he testified that Spears had at times said that he was going to "go owner-operator," but he described these statements as passing remarks and denied that he was informed, in advance, of Respondents' actual decision to convert the semis to transfer trucks. Spears testified that he had, in the fall of 1963, spoken to Black about both the conversion of semis and the sale of trucks to owner-operators. There is other testimony to the same effect. This testimony, I find, is not in conflict with Black's testimony, for the statements made by Spears were not statements of actual decision to convert and sell. Spears also testified that, before he sent Bagwell to Black for a clearance (dispatch slip) in February 1964, he talked with Black and told Black that he had sold a transfer truck and was sending the buyer down for a clearance. However, if an invitation to bargain or formal notice of intent to con- vert the semis to transfer trucks was necessary in this case , there was none. 4. Contentions and concluding findings The General Counsel , in his brief, lists the following as the issues in this case: Whether the Respondents violated the Act by: (a) Dealing directly with employees to the exclusion of the Union. (b) Failing to bargain with the Union about Respondents ' decision to con- vert semi-unit vehicles to transfer-unit vehicles. (c) Failing to bargain with the Union about the effect upon the employees of the conversion of the semi-unit vehicles. (a) Dealing directly with employees Black testified that the Union had no objection to the sale of a vehicle to the employee operating it. The Union felt that an employee was privileged to buy a truck and become an owner-operator. Furthermore, since the employee-buyer of the truck would, under the 1963 contract, still be in the bargaining unit as an owner- operator, the unit would have been unaffected by the sale of a truck. Under the cir- cumstances, Respondents' dealing with employees regarding purchase by the latter of trucks they had been or would be driving involved no matter the Union would be, or was, concerned in bargaining about . For this reason, I find no unfair labor prac- tice in Respondents' negotiating with employees for the sale of trucks to them. (b) Failing to bargain about decision to convert semis to transfers The evidence tends to establish that employers under the contract in question were regarded by the Union as having a free hand in the type of equipment they owned or operated. If Respondents had made an outright sale of the semis to another contrac- tor, they would have been under no obligation to negotiate with the Union over the effect on the employees who had been driving the semis. If the semis were not replaced at once, Respondents would have been free to terminate the drivers of the 206-446-66--vol. 154-71 1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD semis. If Respondents had later bought new transfer trucks, they would then have gotten drivers for such trucks through the Union's hiring hall, and they could have asked for any qualified driver by name, for former employees, or for owner-operators. So far as I can determine from the evidence, such practices regarding changes in equipment were not unusual in the trade, and the Union would not have expected to bargain about the changes. By getting rid of the semi boxes, Respondents were not going out of business even in part, and they were not materially changing the nature of their business. Except to the extent that Respondents might be materially changing their business operations and thereby affecting the bargaining unit or employees therein, there would appear to have been no reason to bargain with the Union concerning the mere conversion of semis to transfer trucks any more than there would have been any reason to bargain concerning every sale or purchase of equipment. Although Respondents may have given no formal notice of intent to convert semis to transfer trucks, there is abundant evidence that Spears had voiced to Black his idea of converting the semis to transfer trucks or of getting rid of the semis and get- ting transfer trucks instead. If such conversion or change were a matter that the Union would have any reason to bargain about, Black would be expected to have made some kind of statement equivalent to: "When you decide to take action, let me know so that we can discuss the matter." Black's failure to do so could readily be interpreted by Respondents to mean that the Union had no concern in the conversion. I find no unfair labor practice in Respondents' mere act of converting semis to transfer trucks without giving the Union formal notice of intent and a chance to bar- gain about the change. (c) Failing to bargain regarding effect of conversion of trucks on employees Since the Union's only legitimate concern in bargaining about changes in equip- ment would be the effect of such changes upon employees, this third contention of the General Counsel is the only one requiring full consideration. We are not con- cerned here with a problem such as is presented when unit work is to be subcontracted to an outside, independent subcontractor or when an employer terminates certain of his operations altogether, because owner-operators, under the 1963 contract, are not true subcontractors-they are within the definition of "employee" under the Act and were within the bargaining unit.10 By contracting to sell tractors to employees who continued in Respondents' service, the Respondents did not terminate any portion of their business. At one point during the hearing, upon my request for a statement of position, the General Counsel's counsel stated that the General Counsel did not take the position that it was an unfair labor practice for the Respondents, without notice to the Union, to sell equipment or to convert equipment alone, and he stated that he took the position that such notice was necessary only if there was first a conversion and then a sale of the equipment to one who was not then an employee- driver so that an employee-driver would have been displaced. The General Counsel might, like the Union, have taken the position that even a sale (without conversion) to a nonemployee which resulted in the substitution of an owner-operator for an employee-driver, was an unfair labor practice if done without notice to the Union, but he did not do so. I presume that he did not do so because he conceded (what I have found to be true) that it was common practice for employ- ers in the trucking-contracting business to sell to owner-operators whenever possible because owner-operators are considered more likely to care for their equipment when they have a financial interest in it and because such sale relieves the employer of main- tenance and insurance costs. The AGC contract, signed by Respondents, impliedly recognizes this custom by covering both employee-drivers and owner-operators with- out limiting the practice of selling to owner-operators in any way. In fact, when the AGC and the Union representatives were negotiating the 1963 agreement, the Union proposed a provision that employers should not be permitted to use owner-operators if this resulted in the layoff of employees. This proposal was rejected by the AGC and did not become part of the contract. When Spears signed this contract in March 1963, he told Black that he did not want to own any tractors if he could avoid it. He quoted Black as responding that he did not care as long as the owner-operators were on the payroll as provided in the contract. When the Respondents sold the four bottom-dump trucks to owner-operators in 1963, Spears told Black about it and, " Bowman Transportation, Inc., 142 NLRB 1093, 1096, and cases there cited. W.S.P. TRUCKING, INC. 1107 according to Spears, Black told him to send the new men to the union hall to be sure that they had a union clearance. Black conceded that he knew of these sales and of giving clearances to owner-operators for Respondents , but he denied knowing that any employee-drivers had lost their jobs as a result of the sales. His lack of knowl- edge, however, suggests indifference, because a sale to an owner-operator carries with it at least a possibility that it was made before the employer-driver was actually terminated. With Trucking's payment to the Union of sums due under the contract for the health and welfare fund and pension fund, it sent a quarterly report, listing the names of all drivers on the payroll , including both employee-drivers and owner- operators. Thus, the Union could note changes in personnel if it wished to do so. It was Spears' understanding from his various conversations with Black that the Union had no objection to the sale of tractors as long as the Respondents complied with the contract requirements of clearing the owner-operators through the Union's hiring hall, paying the sums due for pensions, health, and welfare, and complying with all provisions regarding wages and other compensation. Black appears to have visited Respondents' premises and talked with Spears from time to time and might have looked over the list of drivers any time he chose to ask . Since Black could easily have learned of, and questioned , the termination of Pratt when the tractor he was driving was sold but failed to do so, Spears' understanding of his privileges was strengthened. On all the evidence, I conclude that Spears' understanding was justi- fied and I find that, by failing to object to such sale of equipment that Respondents already had made to owner-operators, without advance notice to the Union, the Union, if it had any right to bargain concerning such sales , waived that right. I am not impressed by the argument of the General Counsel that a unilateral deci- sion to convert , followed by a sale of the converted equipment to owner-operators, without advance notice to the Union , constituted a refusal to bargain . If the sale of equipment alone or the conversion of the equipment alone was a prerogative of an employer without bargaining with the Union , as custom and understanding had established it, I cannot find any greater duty to bargain when the two are combined. On January 24, 1964, as a result of a charge filed by a stranger to this case, the Board obtained a stipulation by the terms of which respondents in that case (which included the Union and the AGC chapter who were parties to the 1963 contract aforementioned ) agreed not to "maintain, apply, reaffirm, invoke, give effect to, enforce or attempt to enforce Section 12 [subcontractors] ... and Section 24, 'Owner- Operator' . . . ( said sections not being expressly limited to the contracting or subcon- tracting of work to be done at the site of construction) . . ." and that they would not "enter into any other provision or agreement which , expressly or by implication, would require A.G.C. or its employer-members, or other employers in the 46 north- ern counties of California, to cease or refrain from subcontracting work to or doing business with: (i) subcontractors who do not, or do not agree to, observe the terms of said Master Agreement with respect to work to be performed off the site of con- struction ; or (ii ) independent self-employed owner-operators driving their own trac- tors, rigs, dump trucks, or other equipment , in their capacity as such ...." I do not interpret the words "independent self-employed owner-operators" to cover the owner- operators in the service of the Respondents as described in this case . "Independent self-employed owner-operators" refers to true subcontractors , whereas "owner- operators," as used by Respondents, were, as previously pointed out, employees. Between March 3 and 20, 1964, representatives of the parties to the original AGC master contract of 1963 met for the purpose of amending the contract to conform to the foregoing stipulation, and on March 28, 1964, they signed an agreement to the effect that sections 12 and 24 of the master agreement would be given effect but only to the extent that they might "be lawfully applied to work done at the site of the con- struction, alteration, painting or repair of a building, structure or other work." The apparent effect of this agreement was, at least arguably, to exclude owner-operators who were not doing work at the site of the construction from the coverage of the con- tract (including the union-shop clause and the clauses requiring contributions to the health and welfare and pension funds) and, in effect, removed over-the-road owner- operators from the collective -bargaining unit . It is not necessary to this decision to decide, and I do not decide, whether or not owner-operators who would fall within the Board's definition of employees would remain covered under the employee pro- visions of the AGC contract after the execution of the March 20 agreement. Although Respondents were not signatory to the March 20 agreement, they appar- ently regarded it as a modification of their agreement with the Union. Before March 20, 1964, a sale of a truck not used at the site of construction work to an 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD owner-operator, even if that resulted in the termination of an employee-driver, would not have reduced the unit. After that date, arguably it might have. This, I believe, explains why no charge was filed in January or February when Respondents' sale of transfer trucks to nonemployees first resulted in the termination of employee-drivers and why it was filed on March 27, a week after the foregoing amendment was signed. This also may explain testimony of Black that he would have objected to the sale of semis even without conversion to transfer trucks, on the ground that Respondents were "selling the equipment to get out from the existing labor agreement," because the owner-operators would have been under the contract "only in regards that the owner- operator provision relates to job site," and that "Mr. Spears started to sell, when he converted the semis to transfers, he started to sell them, and in selling them he started to terminate Local 287 for his employees." All such testimony apparently relates to acts that would have occurred after March 20, 1964. Respondents, before that date, always had sent owner-operators to the Union for clearance and had contributed to the health and welfare and pension funds on their behalf. Obviously, they were not then attempting to terminate the application of provisions of the contract to owner- contractors. It is a fair deduction that, when the facts occurred which are the basis for this case, the Union did not regard them as an unfair labor practice. Those same facts cannot ex post facto become an unfair labor practice because of facts that later took place. The Union had another objection to Respondents' conduct. This related to the application of the seniority provisions of the contract. When Black spoke with Spears in the latter part of March 1964 about the charge, the discussion was, according to Black, about the seniority of the men laid off-not, apparently, about the Respond- ents' right to lay off employee-drivers when equipment was sold . It was apparently Trucking's intent, when it terminated four employee-semi drivers, on January 31, 1964, to reemploy two--Cabral and Hammond-as transfer truckdrivers pending sale of the tractors on those trucks, but it was the intent of Respondents then not to rehire Hall or Silviera to drive transfer trucks. Spears testified that, in his opinion, Hall and Silviera were not qualified to drive transfer trucks and that, under the con- tract (section 3f, second paragraph), the employer was the sole judge of the qualifi- cations of the drivers and was given the right to discharge them on such grounds. We are not here concerned with the question of whether this contract privilege might be exercised arbitrarily or only on reasonable grounds for belief, because this is not a proceeding for the enforcement of the contract. The contract contained a provision for arbitration of disputes, and any question of the proper application of the seniority rules could have been arbitrated. I have found that, even if the Respondents would normally be obliged to notify the Union of an intent to sell the transfer trucks following their conversion from semis, in order to give the Union a privilege of bargaining thereon, the Respondents were justified, in January 1964, in believing that they were acting within the permis- sible limits of the collective-bargaining agreement in view of the general customs of the trade, the fact that the contract unit then included both employees and owner- operators, the fact that the contract did not (and apparently was not intended to) expressly prohibit switching from employee-drivers to owner-operator drivers if the opportunity to do so existed, and the fact that the Respondents had made prior sales to owner-operators to the knowledge of the Union without being questioned by the. Union about the effect thereof on employee-drivers. The General Counsel takes the position that the Respondents' mention to Black of intention to convert semis to transfer trucks was not of an intention imminently to be acted on, and that notification of a possible conversion does not relieve the Respondents of the duty to notify the Union when Respondents' intention was ready to be acted on. This is too narrow a delineation of the Respondents' bargaining obli- gation.ll In view of all the facts and circumstances in this case, it is my opinion that it was the Union's responsibility, following discussions of probable changes, to put Respondents on notice that the Union wished advance information regarding the effect of a sale or conversion of equipment upon the tenure of employment of employee-drivers in order to bargain thereon. RECOMMENDED ORDER On all the evidence and my conclusions therefrom , I recommend that the complaint in this case be dismissed in its entirety. n Hartmann Luggage Company, 145 NLRB 1572.