Compton Service Co., Inc.

COMPTON SERVICE COMPANY, INC. 557 Compton Service Company, Inc. and Teamsters Local Union No. 688, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America . Case 14-CA-7721 July 26, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On April 30, 1974, Administrative Law Judge Paul E. Weil issued the attached Decision in this proceed- ing. Thereafter, the General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in support of the Administrative 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, findings, and conclusions 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 Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the complaint herein be dismissed in its entirety. DECISION STATEMENT OF THE CASE PAUL E. WEIL, Administrative Law Judge: On December 14, 1973, Teamsters Local Union No. 688, hereinafter called the Union, filed with the Regional Director for Region 14 of the National Labor Relations Board, hereinafter called the Board, a charge alleging that Compton Service Compa- ny, Inc., had failed to bargain in good faith with the Union by bargaining individually with its employees concerning wages, hours, and other terms and conditions of employ- ment On January 31, 1974, the said Regional Director, on behalf of the General Counsel of the Board, issued a com- plaint and notice of hearing. The complaint alleges that Compton Service Company, Inc., Compton Leasing, Inc , and Am-Del-Co, Inc., are a single employer; each of said companies is the alter ego of the others; the three compa- nies, referred to in the complaint and herein as Respondent, violated Section 8(a)(5) of the Act by bargaining directly with several employees, members of the Union which is the collective-bargaining representative of various employees in various units of Respondent's employees; and Respondent unilaterally subcontracted certain unit work without notice to the Union. By its duly filed answer I Respondent admits and denies certain allegations regarding ownership and structure of the three corporations, admits that Compton Leasing, Inc., and Compton Service Company, Inc., are each signatories to collective-bargaining contracts with the Charging Party, and denies the commission of any unfair labor practices. On the issues thus joined the matter came on for hearing before me in St. Louis, Missouri, on March 19, 1974. All parties were present and represented by coun- sel; all had an opportunity to call witnesses and adduce relevant and material evidence. At the close of the hearing all parties waived oral argument; briefs have been received from the General Counsel and Respondent. Upon the entire record in this matter and in contempla- tion of the briefs, I make the following- FINDINGS OF FACT I JURISDICTION AND THE EMPLOYER STATUS OF THE THREE RESPON- DENTS Respondent, Compton Service Company, hereinafter separately called Compton Service, is a corporation en- gaged in the warehouse and delivery business for various enterprises within the St. Louis area. It has 30 to 35 employ- ees engaged largely in warehousing and delivery work for three enterprises, J. C Penney, Speed Queen, and Mc- Graw-Edison. It has governmental authority to operate de- livery service in both Missouri and Illinois. Half of the stock is owned by Billy J. Hunt, Compton Service's president, and by members of his family; the other half is owned by Hollis Garrett, vice president and secretary of Compton Service. Compton Leasing Company, Inc., hereinafter called Compton Leasing, is licensed as an employment agency. Its function is to supply employees to enterprises requiring fur- niture handling and delivery employees. At the time of the hearing Compton Leasing had contracts with Furniture Distribution Center pursuant to which it furnished seven employees and with Carafiol, a chain of furniture stores, pursuant to which it had, in the recent past, furnished six employees. Apparently both Carafiol and Furniture Distri- bution Center provided their own trucks or vans for the use of these employees. In addition Compton Leasing furnished employees and trucks to Compton Service which in turn Compton Service provided to Famous Barr Company, a St. Louis department store. The trucks furnished by Compton Leasing to Compton Service and used at the Famous Barr warehouse were owned by Famous Barr and are under lease by Famous Barr to Compton Leasing. Compton Leasing has separate contracts with the Charging Party for the con- tingents of employees working at Famous Barr at Carafiol and at Furniture Distribution Center The contracts are all identical with the contract between Compton Service and The answer was apparently inadvertently omitted from the formal docu- ments introduced at the hearing No mention thereof was made on the record and a copy was supplied to me In the absence of explanation, I presume that the answer was duly filed 212 NLRB No. 96 558 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Charging Party covering the employees at J. C. Penney, Speed Queen, and McGraw-Edison. Compton Leasing is owned 50 percent by Mr. Hunt and his family, 50 percent by Mr. Garrett and his family. The third corporation involved herein is Am-Del-Co, Inc., hereinafter called Am-Del-Co. Mr. Hunt is also presi- dent of Am-Del-Co and Mr. Garrett the vice president. Messrs. Hunt and Garrett and their families split the stock of Am-Del-Co as of Compton Service and Compton Leas- ing. Am-Del-Co is engaged in the business of providing, somewhat as a broker, owner-operators to any enterprise with whom they could make a contract. The record reveals that Am-Del-Co has acted as an agent only for one operator and has contracted for his services only for a period of time between December 21, 1973, and March 2 or 3, 1974. Murray Hines is the operations manager for the Famous Barr Division of Compton Leasing. His main duties are to supervise the employees of Compton Leasing performing work for Compton Service at Famous Barr. Hines has repre- sented Compton Leasing in negotiations and grievance committee panels with the Union, he also has represented Compton Service in the same capacity. Murray Hines is also the general manager of Am-Del-Co. I find that, as alleged in the complaint, Compton Service, Compton Leasing, and Am-Del-Co are affiliated businesses engaged in a common enterprise with common offices, own- ership, directors, and operators and constitute a single-inte- grated business enterprise. By reason of the fact that all employees of the two corporations which have employees, Compton Service and Compton Leasing, and are subject to identical labor relations contracts which are negotiated and enforced by the same persons, I find that the three corpora- tions have a common labor policy. Insofar as the General Counsel has alleged that each of said companies is and has been the alter ego of the others, whatever connotations such a statement may have are not necessarily adopted. I find that the three corporations con- stitute a single enterprise and a single employer. II THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES tionwide in scope. Apparently some saving was accom- plished thereby and other enterprises, including Respondent's customers, were interested in the same type of service. When Carafiol, one of the customers of Compton Leasing, found that it had more delivery work to do than the six men it normally used from Compton Leasing could handle, it asked Murray Hines if he could provide them with an owner-operator. In his capacity as general manager of Am-Del-Co, Hines provided an owner-operator, who worked from December 21 until about March 1 delivering Carafiol's merchandise in his own truck. Respondent, aware that it was probably losing business to the owner-operator mode of delivering merchandise, de- termined to expand Am-Del-Co's program. To that end Hines attempted to recruit additional owner-operators ap- parently without much success? Commencing about No- vember 19, Hines talked with three employees of Compton Leasing, Raymond Blackey, Ally Darnell, and John Hus- key, suggesting to them that they operate as owner-opera- tors for Am-Del-Co, going over with each of them the costs that they would have to incur, either leasing or buying a truck, and the pro that could be made thereby. Hines offered them no sped job but merely asked them to con- sider the matter. Each of them considered the matter, at least one of them took it up with a union agent and was told that the Union frowned upon the idea of employees driving as owner-operators and each of them declined to enter into the relationship. Hines testified that he selected these three men because he knew that Famous Barr, where they worked, was going to be using more owner-operators and that the employees low on the Famous Barr seniority list3 would get little or no employment thereafter. This in fact has come to pass. Where the Famous Barr division prior to the advent of the new year had used in excess of 40 employ- ees, at the time of the hearing it was using only 16 or 17. The other employees on the seniority list were not working and the three employees to whom Hines addressed himself, who occupied positions 37, 42, and 43 out of 43 employees on the seniority list, had not worked since February 25. Hines asserted that he was concerned to get good men as lease drivers or owner-operators and that he knew these three men were competent and dependable. Hmes further testi- fied that he suggested to these men that they could drive as owner-operators for Am-Del-Co and continue to work whenever they were called for Famous Barr under the union contract. Background The contracts between Respondent and the Union ex- pired November 1, 1973. The employees went on strike and negotiations continued. After a strike lasting several weeks the new contracts were signed and the employees went back to work. In the meantime a considerable backlog had accu- mulated. In addition to the backlog of warehousing and deliveries, the Christmas season arrived and all employees were at work. In the recent past in St. Louis enterprises requiring deliv- ery work had increasingly been subcontracting their deliv- ery work to owner-operators under agreements directly with the owner-operators or through agents, some of them na- Discussion and Conclusions I do not think that Respondent engaged in any unfair labor practices in the situation presented by this case. I find that the three enterprises constitute a single employer. The units I find to be a unit of all employees of Compton Service working at J. C. Penney, Speed Queen, and McGraw-Edi- r It is not possible to tell from the record whether the failure of Am-Del-Co to provide more than one owner-operator with more than one contract was due to Am-Del-Co's inability to find owner-operators or its inability to find enterprises which would use their owner-operators or both. 3 A separate seniority list was established for each of the divisions of Compton Leasing under the separate contract signed with the Union. COMPTON SERVICE COMPANY, INC. 559 son, another unit of all employees of Compton Leasing employed at Famous Barr, yet another of all employees of Compton Leasing at Carafiol, and another of all employees of Compton Leasing at Furniture Distribution Center.4 The three employees contacted by Hines were not offered em- ployment nor were they offered a change in their working conditions as employees of Compton Leasing. Respondent at no time had a contract to provide owner-operators of Famous Barr where the three men worked andindeed now that Famous Barr is doing about half of its work with own- er-operators it is not doing so pursuant to any contract with Respondent. Accordingly, the terms and conditions which Murray Hines was talking about with these three employees were outside the employment relationship and not inconsis- tent with it. I recognize that this is a somewhat narrow and legalistic disposition of the issue but it is nonetheless neces- sary in my opinion. Respondent was in a position of rapidly losing its business because as an employer it could not com- pete with those enterprises furnishing owner-operators to its customers and its customers accordingly sought elsewhere for owner-operators and found them, depriving Respondent and its employees of the work they had theretofore done. The decision to do this was not made by Respondent nor was Respondent privy to it. The only way that Respondent could salvage business from the situation was to itself act as the agent of owner-operators which it attempted to do through Am-Del-Co. Respondent makes much of the fact that Hines acted outside of his function, beyond his authori- zation, and in disobedience of his direct orders from Presi- dent Hunt not to approach employees of Compton Leasing in his search for owner-operators. I do not find it necessary to reach this argument in view of my findings above. With regard to the allegation of the complaint that Re- spondent had a duty to bargain with the Charging Party concerning the subcontracting of the delivery service at Ca- rafiol during the December, January, and February period 4 There are no longer employees working at Carafiol , which has gone completely to the owner-operator method of delivery and no longer called upon Compton Leasing for employees Carafiol's contract with Compton Leasing provides only that Compton Leasing shall supply employees as requested by Carafiol and does not provide that Compton Leasing's employ- ees shall do all of the delivery work for Caraftol. to an owner-operator under arrangements made through Am-Del-Co, I find that no bargaining duty arose from this situation. The decision to use an owner-operator rather than to expand the Carafiol unit of employees was a decision of Carafiol, not of Respondents. As I have pointed out above, Carafiol's contract with Respondent required only that Re- spondent furnish employees as requested by Carafiol. When Carafiol declined to request additional employees but in- stead requested an owner-operator, Hines wearing his Am- Del-Co general manager's hat came forward with an owner- operator to meet Carafiol's request. Again Respondent was not responsible for the decision nor privy to it. Nor can it be argued that Respondent should have used its influence, if any, with Carafiol to require Carafiol to use employees rather than owner-operators. It is obvious that no such in- fluence existed and Respondents had no apparent legal right to insist that the delivery work which it had contracted to do be performed solely either by Respondent's employees or by employees rather than by independent contractors. Under these circumstances I can see no violation in Respondent's refusing to bargain with the Union, Respon- dent had nothing to bargain about, it was taking no steps to dissipate the unit. On the contrary, all its interests would best be served by the continuation of the unit. Respondent did not change its operations, it's customers changed theirs. Upon the basis of the foregoing findings of fact and con- clusions, and pursuant to Section 10(c) of the National La- bor Relations Act, as amended, I hereby issue the following recommended: ORDERS I find that Respondent did not violate the Act by refusing to bargain or failing to bargain with the Union as alleged. In view of the above findings, I recommend that the com- plaint be dismissed in its entirety. 5 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relation Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes