Debolt Transfer Company

DEBOLT TRANSFER COMPANY 889 Debolt Transfer Company and International Broth- of employment without bargaining with or receiving the erhood of Teamsters, Chauffeurs, Warehouse- consent of the Union; and by unlawfully terminating the men and Helpers of America, Teamsters' Steel employment of six employees, in violation of Section Haulers Local Union No. 800. Case 6-CA- 8(a)(3) of the Act. Respondent admits various allegations 13461 of the complaint but denies any violation of the National Labor Relations Act, as amended, 29 U.S.C. §151 et seq., January 4, 1982 herein called the Act. At the hearing, the parties were represented by coun- DECISION AND ORDER sel and were afforded full opportunity to be heard, to in- MEMBERS FANNING, JENKINS, ANDtroduce and meet material evidence, to call and examine ZMME FAINGMA JNISADwitnesses, and to present oral argument. At the conclu- Z~IMMERMAN^~ ^sion of receipt of the evidence, the parties waived oral On May 26, 1981, Administrative Law Judge argument. Respondent and the General Counsel filed Robert W. Leiner issued the attached Decision in post-hearing briefs. Upon consideration of the entire this proceeding. Thereafter, General Counsel filed record, including the briefs, and my observation of the exceptions and a supporting brief, and Respondent demeanor of the witnesses, I make the following: filed an answering brief in support of the Adminis- FINDINGS OF FACT trative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the i. THE BUSINESS OF RESPONDENT National Labor Relations Act, as amended, the Na- The complaint alleges, Respondent admits, and I find tional Labor Relations Board has delegated its au- that at all material times, Respondent, a Pennsylvania thority in this proceeding to a three-member panel. corporation with terminal facilities located in Homestead The Board has considered the record and the at- and Ambridge, Pennsylvania, is a common carrier en- tached Decision in light of the exceptions and gaged in intrastate and interstate transportation of freight briefs and has decided to affirm the rulings, find- and steel commodities. In the 12-month period ending ings, and conclusions of the Administrative Law June 30, 1980, Respondent, in its business operations, de- Judge and to adopt his recommended Order, as rived gross revenues in excess of $50,000 for the trans- modified below.' portation of freight from the Commonwealth of Pennsyl- vania directly to points outside that State. Respondent ORDER admits that, at all material times, it has been and is an employer engaged in commerce within the meaning of Pursuant to Section 10(c) of the National Labor Section 2(2), (6), and (7) of the Act. Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended II. THE LABOR ORGANIZATION INVOLVED Order of the Administrative Law Judge and The complaint alleges, Respondent admits, and I find hereby orders that the complaint be, and it hereby that the International Brotherhood of Teamsters, Chauf- is, dismissed in its entirety. feurs, Warehousemen and Helpers of America, Team- ... ~~~____.~~__~ ~sters' Steel Haulers Local Union No. 800, is, and has 'In dismissing the complaint, the Administrative Law Judge made an been at all material times, a labor organization within the alternative finding that Flynn, assistant to the director of the Eastern meaning of Section 2(5) of the Act. Conference of Teamsters, waived any objection to the cancellation of the leases at the January 25, 1980, bargaining session. In adopting his finding, we do not rely on or find it necessary to reach his alternative finding. DECISION A. Background DECISION The parties agree that for purposes of this proceeding, STATEMENT OF THE CASE Respondent maintains two trucking terminals: Home- ROBERT W. LEIR Ae Lw J e Ts stead and Ambridge, Pennsylvania. At both locations, ROBERT W. LEINER, Administrative Law Judge: This Respondent's employees include not only drivers who matter was heard before me in Pittsburgh, Pennsylvania, Respondents empl own tractors and traily ders but also on February 9, 1981, upon a complaint and notice of employees known as "owner-operators" who, while em- hearing dated July 17, 1980, and Respondent's duly filed ployees of Respondent, drive tractors and trailers which answer.' The complaint alleges a violation of Section they lease to Respondent. Drivers, other than the owner- 8(aX3), (5), and (1) of the Act, by virtue of Respondent operators, operate, but do not own, equipment and do DeBolt Transfer Company unlawfully bypassing the not lease the equipment to Respondent. Union and dealing directly with unit employees; by uni- Aside from other company drivers at both of its loca- laterally implementing changes in terms and conditions tions, at all material times, Respondent employed four owner-operators at the Homestead terminal; two owner- 'The charge in this case was filed and served by the Union, Interna- operators at the Ambridge terminal The owner-opera- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Teamsters' Steel Haulers Local Union No. 800, on May tors at both of the terminals are represented by Local 15. 1980. 800 of the Teamsters; the other drivers at both terminals 259 NLRB No. 116 DEBOLT TRANSFER COMPANY 889 Debolt Transfer Company and International Broth- of employment without bargaining with or receiving the erhood of Teamsters, Chauffeurs, Warehouse- consent of the Union; and by unlawfully terminating the men and Helpers of America, Teamsters' Steel employment of six employees, in violation of Section Haulers Local Union No. 800. Case 6-CA- 8(a)(3) of the Act. Respondent admits various allegations 13461 of the complaint but denies any violation of the National Labor Relations Act, as amended, 29 U.S.C. §151 et seq., January 4, 1982 herein called the Act. A t the hearing, the parties w ere represented by coun- DECISION AND ORDER sel and were afforded full opportunity to be heard, to in- By MEMBERS FANNING, JENKINS, AND tr od uc e and meet material evidence, to c al l and examine ZIMMERMAN witnesses, and to present oral argument. At the conclu- sion of receipt of the evidence, the parties waived oral On May 26, 1981, Administrative Law Judge argument. Respondent and the General Counsel filed Robert W. Leiner issued the attached Decision in post-hearing briefs. Upon consideration of the entire this proceeding. Thereafter, General Counsel filed r ec ord, including the briefs, and my observation of the exceptions and a supporting brief, and Respondent demeanor of the witnesses, I make the following: filed an answering brief in support of the Adminis- FINDINGS OF FACT trative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the I. THE BUSINESS OF RESPONDENT National Labor Relations Act, as amended, the Na- The complaint alleges, Respondent admits, and I find tional Labor Relations Board has delegated its au- that at all material times, Respondent, a Pennsylvania thority in this proceeding to a three-member panel. corporation with terminal facilities located in Homestead The Board has considered the record and the at- and Ambridge, Pennsylvania, is a common carrier en- tached Decision in light of the exceptions and gaged in intrastate and interstate transportation of freight briefs and has decided to affirm the rulings, find- and steel commodities. In the 12-month period ending ings, and conclusions of the Administrative Law June 30, 1980, Respondent, in its business operations, de- Judge and to adopt his recommended Order, as riv ed gross revenues in excess of $50,000 for the trans- modified below. portation of freight from the Commonwealth of Pennsyl- vania directly to points outside that State. Respondent ORDER admits that, at all material times, it has been and is an employer engaged in commerce within the meaning of Pursuant to Section 10(c) of the National Labor Section 2(2), (6), and (7) of the Act. Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended II. THE LABOR ORGANIZATION INVOLVED Order of the Administrative Law Judge and The complaint alleges, Respondent admits, and I find hereby orders that the complaint be, and it hereby that the International Brotherhood of Teamsters, Chauf- is, dismissed in its entirety,.feurs, Warehousemen and Helpers of America, Team- sters' Steel Haulers Local Union No. 800, is, and has 'In dismissing the complaint, the Administrative Law Judge made an been at all material times, a labor organization within the alternative finding that Flynn, assistant to the director of the Eastern meaning of Section 2(5) of the Act, Conference of Teamsters, waived any objection to the cancellation of the leases at the January 25, 1980, bargaining session. In adopting his finding, w M~o a t n h e re^'o y o"<indn* n^ ^ h'hY~ t'v 8 S :'" THE ALLEGED UNFAIR LABOR PRACTICES we do not rely on or find it necessay to reach his alternative finding.Il.TEALGDUFRLBOPACCS DECISION ~~~~~~~~~~A. Backgrournd DECISION A -^ O The parties agree that for purposes of this proceeding, STATEMENT OF THE CASE Respondent maintains two trucking terminals: Home- RBERT W . LEINER, Administrative Law Judge. This stead and Ambridge, Pennsylvania. At both locations, ROBERT W. LEINER, Administrative Law Judge: This Respondent's employees include not only drivers who matter was heard before me in Pittsburgh, Pennsylvaniac operate Respondent's own tractors and trailers but also on February 9, 1981, upon a complaint and notice of employees known as "owner-operators" who, while em- hearing dated July 17, 1980, and Respondent's duly filed ployees of Respondent, drive tractors and trailers which answer.' The complaint alleges a violation of Section they lease to Respondent. Drivers, other than the owner- 8(aX3). (5), and (1) of the Act, by virtue of Respondent operators, operate, but do not own, equipment and do DeBolt Transfer Company unlawfully bypassing the not lease the equipment to Respondent. Union and dealing directly with unit employees; by uni- Aside from other company drivers at both of its loca- laterally implementing changes in terms and conditions tions, at all material times, Respondent employed four owner-operators at the Homestead terminal; two owner- *The charge in this case was filed and served by the Union, Interna- operators at the Ambridge terminal. The owner-opera- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Teamsters' Steel Haulers Local Union No. 800, on May tors at both of the terminals are represented by Local 15,1980. 800 of the Teamsters; the other drivers at both terminals 259 NLRB No. 116 DEBOLT TRANSFER COMPANY 889 Debolt Transfer Company and International Broth- of employment without bargaining with or receiving the erhood of Teamsters, Chauffeurs, Warehouse- consent of the Union; and by unlawfully terminating the men and Helpers of America, Teamsters' Steel employment of six employees, in violation of Section Haulers Local Union No. 800. Case 6-CA- 8(a)(3) of the Act. Respondent admits various allegations 13461 of the complaint but denies any violation of the National Labor Relations Act, as amended, 29 U.S.C. §151 et seq., January 4, 1982 herein called the Act. A t the hearing, the parties w ere represented by coun- DECISION AND ORDER sel and were afforded full opportunity to be heard, to in- By MEMBERS FANNING, JENKINS, AND tr od uc e and meet material evidence, to c al l and examine ZIMMERMAN witnesses, and to present oral argument. At the conclu- sion of receipt of the evidence, the parties waived oral On May 26, 1981, Administrative Law Judge argument. Respondent and the General Counsel filed Robert W. Leiner issued the attached Decision in post-hearing briefs. Upon consideration of the entire this proceeding. Thereafter, General Counsel filed r ec ord, including the briefs, and my observation of the exceptions and a supporting brief, and Respondent demeanor of the witnesses, I make the following: filed an answering brief in support of the Adminis- FINDINGS OF FACT trative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the I. THE BUSINESS OF RESPONDENT National Labor Relations Act, as amended, the Na- The complaint alleges, Respondent admits, and I find tional Labor Relations Board has delegated its au- that at all material times, Respondent, a Pennsylvania thority in this proceeding to a three-member panel. corporation with terminal facilities located in Homestead The Board has considered the record and the at- and Ambridge, Pennsylvania, is a common carrier en- tached Decision in light of the exceptions and gaged in intrastate and interstate transportation of freight briefs and has decided to affirm the rulings, find- and steel commodities. In the 12-month period ending ings, and conclusions of the Administrative Law June 30, 1980, Respondent, in its business operations, de- Judge and to adopt his recommended Order, as rived gross revenues in excess of $50,000 for the trans- modified below. portation of freight from the Commonwealth of Pennsyl- vania directly to points outside that State. Respondent ORDER admits that, at all material times, it has been and is an employer engaged in commerce within the meaning of Pursuant to Section 10(c) of the National Labor Section 2(2), (6), and (7) of the Act. Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended II. THE LABOR ORGANIZATION INVOLVED Order of the Administrative Law Judge and The complaint alleges, Respondent admits, and I find hereby orders that the complaint be, and it hereby that the International Brotherhood of Teamsters, Chauf- is, dismissed in its entirety,.feurs, Warehousemen and Helpers of America, Team- sters' Steel Haulers Local Union No. 800, is, and has 'In dismissing the complaint, the Administrative Law Judge made an been at all material times, a labor organization within the alternative finding that Flynn, assistant to the director of the Eastern meaning of Section 2(5) of the Act, Conference of Teamsters, waived any objection to the cancellation of the leases at the January 25, 1980, bargaining session. In adopting his finding, w M~o a t n h e re^'o y o"<indn* n^ ^ h'hY~ t'v 8 S :'" THE ALLEGED UNFAIR LABOR PRACTICES we do not rely on or find it necessay to reach his alternative finding.Il.TEALGDUFRLBOPACCS DECISION ~~~~~~~~~~A. Backgrournd DECISION A -^ O The parties agree that for purposes of this proceeding, STATEMENT OF THE CASE Respondent maintains two trucking terminals: Home- RBERT W . LEINER, Administrative Law Judge. This stead and Ambridge, Pennsylvania. At both locations, ROBERT W. LEINER, Administrative Law Judge: This Respondent's employees include not only drivers who matter was heard before me in Pittsburgh, Pennsylvaniac operate Respondent's own tractors and trailers but also on February 9, 1981, upon a complaint and notice of employees known as "owner-operators" who, while em- hearing dated July 17, 1980, and Respondent's duly filed ployees of Respondent, drive tractors and trailers which answer.' The complaint alleges a violation of Section they lease to Respondent. Drivers, other than the owner- 8(aX3). (5), and (1) of the Act, by virtue of Respondent operators, operate, but do not own, equipment and do DeBolt Transfer Company unlawfully bypassing the not lease the equipment to Respondent. Union and dealing directly with unit employees; by uni- Aside from other company drivers at both of its loca- laterally implementing changes in terms and conditions tions, at all material times, Respondent employed four owner-operators at the Homestead terminal; two owner- *The charge in this case was filed and served by the Union, Interna- operators at the Ambridge terminal. The owner-opera- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Teamsters' Steel Haulers Local Union No. 800, on May tors at both of the terminals are represented by Local 15,1980. 800 of the Teamsters; the other drivers at both terminals 259 NLRB No. 116 DEBOLT TRANSFER COMPANY 889 Debolt Transfer Company and International Broth- of employment without bargaining with or receiving the erhood of Teamsters, Chauffeurs, Warehouse- consent of the Union; and by unlawfully terminating the men and Helpers of America, Teamsters' Steel employment of six employees, in violation of Section Haulers Local Union No. 800. Case 6-CA- 8(a)(3) of the Act. Respondent admits various allegations 13461 of the complaint but denies any violation of the National Labor Relations Act, as amended, 29 U.S.C. §151 et seq., January 4, 1982 herein called the Act. A t the hearing, the parties w ere represented by coun- DECISION AND ORDER sel and were afforded full opportunity to be heard, to in- By MEMBERS FANNING, JENKINS, AND tr od uc e and meet material evidence, to c al l and examine ZIMMERMAN witnesses, and to present oral argument. At the conclu- sion of receipt of the evidence, the parties waived oral On May 26, 1981, Administrative Law Judge argument. Respondent and the General Counsel filed Robert W. Leiner issued the attached Decision in post-hearing briefs. Upon consideration of the entire this proceeding. Thereafter, General Counsel filed r ec ord, including the briefs, and my observation of the exceptions and a supporting brief, and Respondent demeanor of the witnesses, I make the following: filed an answering brief in support of the Adminis- FINDINGS OF FACT trative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the I. THE BUSINESS OF RESPONDENT National Labor Relations Act, as amended, the Na- The complaint alleges, Respondent admits, and I find tional Labor Relations Board has delegated its au- that at all material times, Respondent, a Pennsylvania thority in this proceeding to a three-member panel. corporation with terminal facilities located in Homestead The Board has considered the record and the at- and Ambridge, Pennsylvania, is a common carrier en- tached Decision in light of the exceptions and gaged in intrastate and interstate transportation of freight briefs and has decided to affirm the rulings, find- and steel commodities. In the 12-month period ending ings, and conclusions of the Administrative Law June 30, 1980, Respondent, in its business operations, de- Judge and to adopt his recommended Order, as rived gross revenues in excess of $50,000 for the trans- modified below. portation of freight from the Commonwealth of Pennsyl- vania directly to points outside that State. Respondent ORDER admits that, at all material times, it has been and is an employer engaged in commerce within the meaning of Pursuant to Section 10(c) of the National Labor Section 2(2), (6), and (7) of the Act. Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended II. THE LABOR ORGANIZATION INVOLVED Order of the Administrative Law Judge and The complaint alleges, Respondent admits, and I find hereby orders that the complaint be, and it hereby that the International Brotherhood of Teamsters, Chauf- is, dismissed in its entirety,.feurs, Warehousemen and Helpers of America, Team- sters' Steel Haulers Local Union No. 800, is, and has 'In dismissing the complaint, the Administrative Law Judge made an been at all material times, a labor organization within the alternative finding that Flynn, assistant to the director of the Eastern meaning of Section 2(5) of the Act, Conference of Teamsters, waived any objection to the cancellation of the leases at the January 25, 1980, bargaining session. In adopting his finding, w M~o a t n h e re^'o y o"<indn* n^ ^ h'hY~ t'v 8 S :'" THE ALLEGED UNFAIR LABOR PRACTICES we do not rely on or find it necessay to reach his alternative finding.Il.TEALGDUFRLBOPACCS DECISION ~~~~~~~~~~A. Backgrournd DECISION A -^ O The parties agree that for purposes of this proceeding, STATEMENT OF THE CASE Respondent maintains two trucking terminals: Home- RBERT W . LEINER, Administrative Law Judge. This stead and Ambridge, Pennsylvania. At both locations, ROBERT W. LEINER, Administrative Law Judge: This Respondent's employees include not only drivers who matter was heard before me m Pittsburgh, Pennsylvania operate Respondent's own tractors and trailers but also on February 9, 1981, upon a complaint and notice of employees known as "owner-operators" who, while em- hearing dated July 17, 1980, and Respondent's duly filed ployees of Respondent, drive tractors and trailers which answer.' The complaint alleges a violation of Section they lease to Respondent. Drivers, other than the owner- 8(aX3). (5), and (1) of the Act, by virtue of Respondent operators, operate, but do not own, equipment and do DeBolt Transfer Company unlawfully bypassing the not lease the equipment to Respondent. Union and dealing directly with unit employees; by uni- Aside from other company drivers at both of its loca- laterally implementing changes in terms and conditions tions, at all material times, Respondent employed four owner-operators at the Homestead terminal; two owner- *The charge in this case was filed and served by the Union, Interna- operators at the Ambridge terminal. The owner-opera- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Teamsters' Steel Haulers Local Union No. 800, on May tors at both of the terminals are represented by Local 15,1980. 800 of the Teamsters; the other drivers at both terminals 259 NLRB No. 116 DEBOLT TRANSFER COMPANY 889 Debolt Transfer Company and International Broth- of employment without bargaining with or receiving the erhood of Teamsters, Chauffeurs, Warehouse- consent of the Union; and by unlawfully terminating the men and Helpers of America, Teamsters' Steel employment of six employees, in violation of Section Haulers Local Union No. 800. Case 6-CA- 8(a)(3) of the Act. Respondent admits various allegations 13461 of the complaint but denies any violation of the National Labor Relations Act, as amended, 29 U.S.C. §151 et seq., January 4, 1982 herein called the Act. A t the hearing, the parties w ere represented by coun- DECISION AND ORDER sel and were afforded full opportunity to be heard, to in- By MEMBERS FANNING, JENKINS, AND tr od uc e and meet material evidence, to c al l and examine ZIMMERMAN witnesses, and to present oral argument. At the conclu- sion of receipt of the evidence, the parties waived oral On May 26, 1981, Administrative Law Judge argument. Respondent and the General Counsel filed Robert W. Leiner issued the attached Decision in post-hearing briefs. Upon consideration of the entire this proceeding. Thereafter, General Counsel filed r ec ord, including the briefs, and my observation of the exceptions and a supporting brief, and Respondent demeanor of the witnesses, I make the following: filed an answering brief in support of the Adminis- FINDINGS OF FACT trative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the I. THE BUSINESS OF RESPONDENT National Labor Relations Act, as amended, the Na- The complaint alleges, Respondent admits, and I find tional Labor Relations Board has delegated its au- that at all material times, Respondent, a Pennsylvania thority in this proceeding to a three-member panel. corporation with terminal facilities located in Homestead The Board has considered the record and the at- and Ambridge, Pennsylvania, is a common carrier en- tached Decision in light of the exceptions and gaged in intrastate and interstate transportation of freight briefs and has decided to affirm the rulings, find- and steel commodities. In the 12-month period ending ings, and conclusions of the Administrative Law June 30, 1980, Respondent, in its business operations, de- Judge and to adopt his recommended Order, as rived gross revenues in excess of $50,000 for the trans- modified below. portation of freight from the Commonwealth of Pennsyl- vania directly to points outside that State. Respondent ORDER admits that, at all material times, it has been and is an employer engaged in commerce within the meaning of Pursuant to Section 10(c) of the National Labor Section 2(2), (6), and (7) of the Act. Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended II. THE LABOR ORGANIZATION INVOLVED Order of the Administrative Law Judge and The complaint alleges, Respondent admits, and I find hereby orders that the complaint be, and it hereby that the International Brotherhood of Teamsters, Chauf- is, dismissed in its entirety,.feurs, Warehousemen and Helpers of America, Team- sters' Steel Haulers Local Union No. 800, is, and has 'In dismissing the complaint, the Administrative Law Judge made an been at all material times, a labor organization within the alternative finding that Flynn, assistant to the director of the Eastern meaning of Section 2(5) of the Act, Conference of Teamsters, waived any objection to the cancellation of the leases at the January 25, 1980, bargaining session. In adopting his finding, we do not rely on or find it necary to reach his alternative finding. THE ALLEGED UNFAIR LABOR PRACTICES DECISION ~~~~~~~~~~A. Backgrournd DECISION A -^ O The parties agree that for purposes of this proceeding, STATEMENT OF THE CASE Respondent maintains two trucking terminals: Home- RBERT W . LEINER, Administrative Law Judge. This stead and Ambridge, Pennsylvania. At both locations, ROBERT W. LEINER, Administrative Law Judge: This Respondent's employees include not only drivers who matter was heard before me m Pittsburgh, Pennsylvania operate Respondent's own tractors and trailers but also on February 9, 1981, upon a complaint and notice of employees known as "owner-operators" who, while em- hearing dated July 17, 1980, and Respondent's duly filed ployees of Respondent, drive tractors and trailers which answer.' The complaint alleges a violation of Section they lease to Respondent. Drivers, other than the owner- 8(aX3). (5), and (1) of the Act, by virtue of Respondent operators, operate, but do not own, equipment and do DeBolt Transfer Company unlawfully bypassing the not lease the equipment to Respondent. Union and dealing directly with unit employees; by uni- Aside from other company drivers at both of its loca- laterally implementing changes in terms and conditions tions, at all material times, Respondent employed four owner-operators at the Homestead terminal; two owner- *The charge in this case was filed and served by the Union, Interna- operators at the Ambridge terminal. The owner-opera- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help- ers of America, Teamsters' Steel Haulers Local Union No. 800, on May tors at both of the terminals are represented by Local 15,1980. 800 of the Teamsters; the other drivers at both terminals 259 NLRB No. 116 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are represented by other Teamsters locals: Teamsters problems relating to owner-operators, a "Competitive Local 249, Homestead, and Teamsters Local 261, Am- Review Board" is established for that purpose under arti- bridge. cle 61, section 7. Local 800, founded in the early 1970's, represents em- At the hearing, Respondent amended its answer to ployees who are owner-operators of steel-hauling trac- admit that (1) on or about January 25, 1980, Respondent tors and/or trailers for steel-hauling employers. At the and the Union entered into the NMFA (G.C. Exh. 3) ef- Homestead terminal, Respondent maintained the practice fective for the period April 1, 1979, through March 31, of leasing tractors and trailers from owner-operators for 1982; (2) the employees covered in the multiemployer a period of more than 5 years; at the Ambridge terminal bargaining unit set forth in articles 2 and 3 of the for a period of 6 months, both periods occurring before, NMFA, including employees of Respondent, constitute a and ending with Local 800's strike against, inter alia, unit appropriate for collective bargaining within the DeBolt in the period August 1979 through January 25, meaning of Section 9(b) of the Act; (3) Local 800 and 1980. The ordinary leasing practice both at Ambridge affiliated local unions of the International Brotherhood and Homestead was for Respondent to lease from a of Teamsters have been the designated as exclusive col- single owner-operator both his tractor and trailer. lective-bargaining representative of the employees in the Indeed, it was rare that Respondent leased only a trailer multiemployer unit, and have been recognized as such or a tractor. representative by Respondent for its employees pursuant Along with other employers in the eastern United to successive collective-bargaining agreements; and (4) at States engaged in the iron and steel trucking business, all material times, the Union by virtue of Section 9(a) of Respondent, in the period April 1, 1976, through March the Act has been and is the exclusive representative of 31, 1979, was a party to the National Master Freight the employees in the multiemployer unit for the purposes Agreement (herein called NMFA) with the Eastern Con- of collective bargaining with respect to rates of pay, ference of the Teamsters Union and the several local wages, hours of employment, and other terms and condi- unions representing its employees. Although the record tions of employment. is not clear as to when Respondent (as an independent As above noted, a strike among Respondent's and the employer rather than as a member of any multiemployer industry employees started about August 22, 1979, after group) executed this expired agreement (G.C. Exh. 4), the expiration of the NMFA March 31 1979 and ended there is no dispute that it was bound by that agreement. on or a J ry 2 The record shows that there was no successor agreement executed upon the termination of this 1976-79 NMFA . Contract Execution of January 25, 1980 and this resulted in the above strike of August 1979. Thereafter, the employers in the industry, including Re- On January 25, 1980, Respondent, as an individual em- spondent, about January 1980, executed a further NMFA ployer, met with the Union at a motel in Greentree, effective for the period April 1, 1979, through March 31, Pennsylvania, for the purpose of negotiating and execut- 1982. (G.C. Exh. 3; herein sometimes known in the ing a successor collective-bargaining agreement for that record as "the Red Book.") 2 which had expired on March 31, 1979. Present were The parties agree that the current NMFA provides, in Richard Wallace (General Counsel's sole witness; no detail, for the terms and conditions of employment of other witness was called in support of the complaint) a owner-operators including the applicability of grievance business representative of Local 800 for 3 years and re- procedures (art. 8; art. 44-45) and the compensation of sponsible for representation of the owner-operators at the owner-operators (arts. 22, 55, and 61). Respondent's two terminals; Robert Flynn, assistant to It should be noted, in particular, that art. 55, section the director of the Eastern Conference of the Interna- 18 (G.C. Exh. 3, the current NMFA) dealing with tional Brotherhood of Teamsters; Joseph Mazza, Steel owner-operators, states, inter alia, that the employer is Division Teamsters representative; Jerry Shulteis, an as- prohibited from putting into operation any "scheme" to sistant to Flynn, present to take notes at the collective- defeat the terms of the agreement "wherein the [con- bargaining session; 3 Ray Slogan and Bill Barber, steward tract] provisions as to compensation for services on and and business representative, respectively, of Teamsters for use of equipment owned by owner-operator shall be Local 249; and, for Respondent, John DeBolt and Stan- lessened, nor shall any owner-operators' lease be can- ley Wilmot, president and general manager, respectively, celled for the purpose of depriving employees of em- and Thomas MacMullan, attorney for Respondent. ployment and any such complaint that should arise per- It is undisputed that Respondent was meeting financial taining to such cancellation . . . shall be subject to Arti- hardship in the operation of its business. At this meeting, cle 44 .. ." Section 44 provides, inter alia, for the es- DeBolt and attorney McMullan, demanded any and all tablishment of an employer-local union grievance com- forms of economic relief which were enjoyed by any mittee which hears all grievances of owner-operators other employer subject to the NMFA. DeBolt credibly except (as provided in sec. 61) those relating to the rates testified that he told Flynn that he could not sign the of leases and compensation of the owner-operators under "Red Book" because to do so would be to commit eco- article 61. To review and adjust employer complaints on the wage rates and practices, because of competitive Neither Shulteis nor the presumptively corroborative notes were pro- duced, nor were there any other Teamsters witnesses to this bargaining ' I have maintained the identification of documents made at the hear- session whose testimony might be deemed favorable to General Counsel's ing: thus the "Red Book," which is the current NMFA which binds Re- case. Cf. District 65, Distributive Workers of America (Hartz Mountain Cor- apondent. (G.C. Exh. 3.) portion), 593 F.2d 1155, fn. 21 (D.C. Cir. 1978). 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are represented by other Teamsters locals: Teamsters problems relating to owner-operators, a "Competitive Local 249, Homestead, and Teamsters Local 261, Am- Review Board" is established for that purpose under arti- bridge.cle 61, section 7. Local 800, founded in the early 1970's, represents em- At the hearing, Respondent amended its answer to ployees who are owner-operators of steel-hauling trac- admit that (1) on or about January 25, 1980, Respondent tors and/or trailers for steel-hauling employers. At the and the Union entered into the NMFA (G.C. Exh. 3) ef- Homestead terminal, Respondent maintained the practice fective for the period April 1, 1979, through March 31, of leasing tractors and trailers from owner-operators for 1982; (2) the employees covered in the multiemployer a period of more than 5 years; at the Ambridge terminal bargaining unit set forth in articles 2 and 3 of the for a period of 6 months, both periods occurring before, NMFA, including employees of Respondent, constitute a and ending with Local 800's strike against, inter alia, unit appropriate for collective bargaining within the DeBolt in the period August 1979 through January 25, meaning of Section 9(b) of the Act; (3) Local 800 and 1980. The ordinary leasing practice both at Ambridge affiliated local unions of the International Brotherhood and Homestead was for Respondent to lease from a of Teamsters have been the designated as exclusive col- single owner-operator both his tractor and trailer. lective-bargaining representative of the employees in the Indeed, it was rare that Respondent leased only a trailer multiemployer unit, and have been recognized as such or a tractor. representative by Respondent for its employees pursuant Along with other employers in the eastern United to successive collective-bargaining agreements; and (4) at States engaged in the iron and steel trucking business, all material times, the Union by virtue of Section 9(a) of Respondent, in the period April 1, 1976, through March the Act has been and is the exclusive representative of 31, 1979, was a party to the National Master Freight the employees in the multiemployer unit for the purposes Agreement (herein called NMPA) with the Eastern Con- of collective bargaining with respect to rates of pay, ference of the Teamsters Union and the several local wages, hours of employment, and other terms and condi- unions representing its employees. Although the record tions of employment. is not clear as to when Respondent (as an independent As ao n a s Respondent's and the employer rather than as a member of any multiemployer industry employees started about August 22, 1979, after group) executed this expired agreement (G.C. Exh. 4), t e a o t N Mr 3 1 a e there is no dispute that it was bound by that agreement. oorauJnay2, 1980. The record shows that there was no successor agreement executed upon the termination of this 1976-79 NMFA D. Contrac Execution of January 25, 1980 and this resulted in the above strike of August 1979. Thereafter, the employers in the industry, including Re- On January 25, 1980, Respondent, as an individual em- spondent, about January 1980, executed a further NMFA ployer, met with the Union at a motel in Greentree, effective for the period April 1, 1979, through March 31, Pennsylvania, for the purpose of negotiating and execut- 1982. (G.C. Exh. 3; herein sometimes known in the ing a successor collective-bargaining agreement for that record as "the Red Book.") 2 which had expired on March 31, 1979. Present were The parties agree that the current NMPA provides, in Richard Wallace (General Counsel's sole witness; no detail, for the terms and conditions of employment of other witness was called in support of the complaint) a owner-operators including the applicability of grievance business representative of Local 800 for 3 years and re- procedures (art. 8; art. 44-45) and the compensation of sponsible for representation of the owner-operators at the owner-operators (arts. 22, 55, and 61). Respondent's two terminals; Robert Flynn, assistant to It should be noted, in particular, that art. 55, section the director of the Eastern Conference of the Interna- 18 (G.C. Exh. 3, the current NMFA) dealing with tional Brotherhood of Teamsters; Joseph Mazza, Steel owner-operators, states, inter alia, that the employer is Division Teamsters representative; Jerry Shulteis, an as- prohibited from putting into operation any "scheme" to sistant to Flynn, present to take notes at the collective- defeat the terms of the agreement "wherein the [con- bargaining session; 3 Ray Slogan and Bill Barber, steward tract] provisions as to compensation for services on and and business representative, respectively, of Teamsters for use of equipment owned by owner-operator shall be Local 249; and, for Respondent, John DeBolt and Stan- lessened, nor shall any owner-operators' lease be can- ley Wilmot, president and general manager, respectively, celled for the purpose of depriving employees of em- and Thomas MacMullan, attorney for Respondent. ployment and any such complaint that should arise per- It is undisputed that Respondent was meeting financial taining to such cancellation . . . shall be subject to Arti- hardship in the operation of its business. At this meeting, cle 44 ... ." Section 44 provides, inter alia, for the es- DeBolt and attorney McMullan, demanded any and all tablishment of an employer-local union grievance com- forms of economic relief which were enjoyed by any mittee which hears all grievances of owner-operators other employer subject to the NMFA. DeBolt credibly except (as provided in sec. 61) those relating to the rates testified that he told Flynn that he could not sign the of leases and compensation of the owner-operators under "Red Book" because to do so would be to commit eco- article 61. To review and adjust employer complaints on the wage rates and practices, because of competitive Neither Shulteis nor the presumptively corroborative notes were pro- duced, nor were there any other Teamsters witnesses to this bargaining 'I have maintained the identification of documents made at the hear- session whose testimony might be deemed favorable to General Counsel's ing: thus the "Red Book," which is the current NMFA which binds Re- case. Cf. District 65, Distributive Workers of America (Ham Mountain Cor- spondent. (G.C. Exh. 3.) poration), 593 F.2d 1155, fn. 21 (D.C. Cir. 1978). 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are represented by other Teamsters locals: Teamsters problems relating to owner-operators, a "Competitive Local 249, Homestead, and Teamsters Local 261, Am- Review Board" is established for that purpose under arti- bridge.cle 61, section 7. Local 800, founded in the early 1970's, represents em- At the hearing, Respondent amended its answer to ployees who are owner-operators of steel-hauling trac- admit that (1) on or about January 25, 1980, Respondent tors and/or trailers for steel-hauling employers. At the and the Union entered into the NMFA (G.C. Exh. 3) ef- Homestead terminal, Respondent maintained the practice fective for the period April 1, 1979, through March 31, of leasing tractors and trailers from owner-operators for 1982; (2) the employees covered in the multiemployer a period of more than 5 years; at the Ambridge terminal bargaining unit set forth in articles 2 and 3 of the for a period of 6 months, both periods occurring before, NMFA, including employees of Respondent, constitute a and ending with Local 800's strike against, inter alia, unit appropriate for collective bargaining within the DeBolt in the period August 1979 through January 25, meaning of Section 9(b) of the Act; (3) Local 800 and 1980. The ordinary leasing practice both at Ambridge affiliated local unions of the International Brotherhood and Homestead was for Respondent to lease from a of Teamsters have been the designated as exclusive col- single owner-operator both his tractor and trailer. lective-bargaining representative of the employees in the Indeed, it was rare that Respondent leased only a trailer multiemployer unit, and have been recognized as such or a tractor. representative by Respondent for its employees pursuant Along with other employers in the eastern United to successive collective-bargaining agreements; and (4) at States engaged in the iron and steel trucking business, all material times, the Union by virtue of Section 9(a) of Respondent, in the period April 1, 1976, through March the Act has been and is the exclusive representative of 31, 1979, was a party to the National Master Freight the employees in the multiemployer unit for the purposes Agreement (herein called NMPA) with the Eastern Con- of collective bargaining with respect to rates of pay, ference of the Teamsters Union and the several local wages, hours of employment, and other terms and condi- unions representing its employees. Although the record tions of employment. is not clear as to when Respondent (as an independent As ao n a s Respondent's and the employer rather than as a member of any multiemployer industry employees started about August 22, 1979, after group) executed this expired agreement (G.C. Exh. 4), t e a o t N Mr 3 1 a e there is no dispute that it was bound by that agreement. oorauJnay2, 1980. The record shows that there was no successor agreement executed upon the termination of this 1976-79 NMFA D. Contrac Execution of January 25, 1980 and this resulted in the above strike of August 1979. Thereafter, the employers in the industry, including Re- On January 25, 1980, Respondent, as an individual em- spondent, about January 1980, executed a further NMFA ployer, met with the Union at a motel in Greentree, effective for the period April 1, 1979, through March 31, Pennsylvania, for the purpose of negotiating and execut- 1982. (G.C. Exh. 3; herein sometimes known in the ing a successor collective-bargaining agreement for that record as "the Red Book.") 2 which had expired on March 31, 1979. Present were The parties agree that the current NMPA provides, in Richard Wallace (General Counsel's sole witness; no detail, for the terms and conditions of employment of other witness was called in support of the complaint) a owner-operators including the applicability of grievance business representative of Local 800 for 3 years and re- procedures (art. 8; art. 44-45) and the compensation of sponsible for representation of the owner-operators at the owner-operators (arts. 22, 55, and 61). Respondent's two terminals; Robert Flynn, assistant to It should be noted, in particular, that art. 55, section the director of the Eastern Conference of the Interna- 18 (G.C. Exh. 3, the current NMFA) dealing with tional Brotherhood of Teamsters; Joseph Mazza, Steel owner-operators, states, inter alia, that the employer is Division Teamsters representative; Jerry Shulteis, an as- prohibited from putting into operation any "scheme" to sistant to Flynn, present to take notes at the collective- defeat the terms of the agreement "wherein the [con- bargaining session; 3 Ray Slogan and Bill Barber, steward tract] provisions as to compensation for services on and and business representative, respectively, of Teamsters for use of equipment owned by owner-operator shall be Local 249; and, for Respondent, John DeBolt and Stan- lessened, nor shall any owner-operators' lease be can- ley Wilmot, president and general manager, respectively, celled for the purpose of depriving employees of em- and Thomas MacMullan, attorney for Respondent. ployment and any such complaint that should arise per- It is undisputed that Respondent was meeting financial taining to such cancellation . . . shall be subject to Arti- hardship in the operation of its business. At this meeting, cle 44 ... ." Section 44 provides, inter alia, for the es- DeBolt and attorney McMullan, demanded any and all tablishment of an employer-local union grievance com- forms of economic relief which were enjoyed by any mittee which hears all grievances of owner-operators other employer subject to the NMFA. DeBolt credibly except (as provided in sec. 61) those relating to the rates testified that he told Flynn that he could not sign the of leases and compensation of the owner-operators under "Red Book" because to do so would be to commit eco- article 61. To review and adjust employer complaints on the wage rates and practices, because of competitive Neither Shulteis nor the presumptively corroborative notes were pro- duced, nor were there any other Teamsters witnesses to this bargaining 'I have maintained the identification of documents made at the hear- session whose testimony might be deemed favorable to General Counsel's ing: thus the "Red Book," which is the current NMFA which binds Re- case. Cf. District 65, Distributive Workers of America (Ham Mountain Cor- spondent. (G.C. Exh. 3.) poration), 593 F.2d 1155, fn. 21 (D.C. Cir. 1978). 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are represented by other Teamsters locals: Teamsters problems relating to owner-operators, a "Competitive Local 249, Homestead, and Teamsters Local 261, Am- Review Board" is established for that purpose under arti- bridge.cle 61, section 7. Local 800, founded in the early 1970's, represents em- At the hearing, Respondent amended its answer to ployees who are owner-operators of steel-hauling trac- admit that (1) on or about January 25, 1980, Respondent tors and/or trailers for steel-hauling employers. At the and the Union entered into the NMFA (G.C. Exh. 3) ef- Homestead terminal, Respondent maintained the practice fective for the period April 1, 1979, through March 31, of leasing tractors and trailers from owner-operators for 1982; (2) the employees covered in the multiemployer a period of more than 5 years; at the Ambridge terminal bargaining unit set forth in articles 2 and 3 of the for a period of 6 months, both periods occurring before, NMFA, including employees of Respondent, constitute a and ending with Local 800's strike against, inter alia, unit appropriate for collective bargaining within the DeBolt in the period August 1979 through January 25, meaning of Section 9(b) of the Act; (3) Local 800 and 1980. The ordinary leasing practice both at Ambridge affiliated local unions of the International Brotherhood and Homestead was for Respondent to lease from a of Teamsters have been the designated as exclusive col- single owner-operator both his tractor and trailer. lective-bargaining representative of the employees in the Indeed, it was rare that Respondent leased only a trailer multiemployer unit, and have been recognized as such or a tractor. representative by Respondent for its employees pursuant Along with other employers in the eastern United to successive collective-bargaining agreements; and (4) at States engaged in the iron and steel trucking business, all material times, the Union by virtue of Section 9(a) of Respondent, in the period April 1, 1976, through March the Act has been and is the exclusive representative of 31, 1979, was a party to the National Master Freight the employees in the multiemployer unit for the purposes Agreement (herein called NMPA) with the Eastern Con- of collective bargaining with respect to rates of pay, ference of the Teamsters Union and the several local wages, hours of employment, and other terms and condi- unions representing its employees. Although the record tions of employment. is not clear as to when Respondent (as an independent As ao n a s Respondent's and the employer rather than as a member of any multiemployer industry employees started about August 22, 1979, after group) executed this expired agreement (G.C. Exh. 4), t e a o t N Mr 3 1 a e there is no dispute that it was bound by that agreement. oorauJnay2, 1980. The record shows that there was no successor agreement executed upon the termination of this 1976-79 NMFA D. Contrac Execution of January 25, 1980 and this resulted in the above strike of August 1979. Thereafter, the employers in the industry, including Re- On January 25, 1980, Respondent, as an individual em- spondent, about January 1980, executed a further NMFA ployer, met with the Union at a motel in Greentree, effective for the period April 1, 1979, through March 31, Pennsylvania, for the purpose of negotiating and execut- 1982. (G.C. Exh. 3; herein sometimes known in the ing a successor collective-bargaining agreement for that record as "the Red Book.") 2 which had expired on March 31, 1979. Present were The parties agree that the current NMPA provides, in Richard Wallace (General Counsel's sole witness; no detail, for the terms and conditions of employment of other witness was called in support of the complaint) a owner-operators including the applicability of grievance business representative of Local 800 for 3 years and re- procedures (art. 8; art. 44-45) and the compensation of sponsible for representation of the owner-operators at the owner-operators (arts. 22, 55, and 61). Respondent's two terminals; Robert Flynn, assistant to It should be noted, in particular, that art. 55, section the director of the Eastern Conference of the Interna- 18 (G.C. Exh. 3, the current NMFA) dealing with tional Brotherhood of Teamsters; Joseph Mazza, Steel owner-operators, states, inter alia, that the employer is Division Teamsters representative; Jerry Shulteis, an as- prohibited from putting into operation any "scheme" to sistant to Flynn, present to take notes at the collective- defeat the terms of the agreement "wherein the [con- bargaining session; 3 Ray Slogan and Bill Barber, steward tract] provisions as to compensation for services on and and business representative, respectively, of Teamsters for use of equipment owned by owner-operator shall be Local 249; and, for Respondent, John DeBolt and Stan- lessened, nor shall any owner-operators' lease be can- ley Wilmot, president and general manager, respectively, celled for the purpose of depriving employees of em- and Thomas MacMullan, attorney for Respondent. ployment and any such complaint that should arise per- It is undisputed that Respondent was meeting financial taining to such cancellation . . . shall be subject to Arti- hardship in the operation of its business. At this meeting, cle 44 ... ." Section 44 provides, inter alia, for the es- DeBolt and attorney McMullan, demanded any and all tablishment of an employer-local union grievance com- forms of economic relief which were enjoyed by any mittee which hears all grievances of owner-operators other employer subject to the NMFA. DeBolt credibly except (as provided in sec. 61) those relating to the rates testified that he told Flynn that he could not sign the of leases and compensation of the owner-operators under "Red Book" because to do so would be to commit eco- article 61. To review and adjust employer complaints on the wage rates and practices, because of competitive Neither Shulteis nor the presumptively corroborative notes were pro- duced, nor were there any other Teamsters witnesses to this bargaining 'I have maintained the identification of documents made at the hear- session whose testimony might be deemed favorable to General Counsel's ing: thus the "Red Book," which is the current NMFA which binds Re- case. Cf. District 65, Distributive Workers of America (Ham Mountain Cor- spondent. (G.C. Exh. 3.) poration), 593 F.2d 1155, fn. 21 (D.C. Cir. 1978). DEBOLT TRANSFER COMPANY 891 nomic suicide; that it was futile to sign it because Re- that he then asked Flynn whether that would be effec- spondent could not live under its terms. Wallace testified tive with regard to him in their eastern states conference only that he could not recall DeBolt saying this. I credit area. Flynn, according to DeBolt, said that since it was DeBolt. Wallace was sitting 12 feet away from DeBolt okay in the central states, there would be no doubt that and Flynn who faced each other across the table. Wal- it would be okay in the eastern conference area. With lace recalled that DeBolt and McMullan mentioned that that assurance, DeBolt testified that he then signed the in respect to another employer, Spector Industries, they contract on behalf of Respondent and that was the only were entitled to cancel the lease arrangements with their reason he signed. owner-operators, and Respondent wanted that right; that While DeBolt agrees that there was a discussion be- Flynn told them that if Respondent wanted that relief it tween him and Flynn with regard to the presentation of must abide by article 61, section 7, which would place matters before the competitive review board, DeBolt the matter before the Competitive Review Board; and said that this had to do only with regard to Respondent's that Flynn said that Respondent could not get relief on request for other economic relief such as reduction in the an overall basis but that each of his claims would have to pension and health and welfare contributions. With be reviewed. MacMullan insisted that he wanted the regard to these other requests for relief, Flynn, accord- relief accorded to all carriers but Flynn insisted that he ing to DeBolt, said that there would be no general right must use contract procedures and get relief from the to a reduction in these rates but that these requests for Eastern Conference. In particular, Wallace recalls that economic relief, i.e., changes in contract rates, would Flynn made the same statement with regard to Respond- have to be submitted on an individual basis before the ent's demand for the right of trailer leasing cancellations. competitive review board. Wallace testified that the Union told Respondent with After he signed the "Red Book," DeBolt testified that regard to the cancellation of the trailer lease in the Spec- he was still "wary" of Flynn's assurance that Respondent tor case, that such a cancellation was an individualized had the right to cancel the trailer leases. He said that case, and that Flynn said that, as in the Spector case, Re- when this January 25, 1980, meeting ended, he asked spondent must utilize contract procedures to get relief Flynn to put in writing what the Union had agreed to at from its trailer leases. In particular, Wallace denied that the meeting with regard to Respondent's right to cancel the Spector case was thrown in by the Union as an in- the trailer leases. Flynn agreed to do so as soon as he got ducement for the Company to execute the contract. back to Washington, D.C.6 Respondent canceled the There is no dispute that Respondent demanded, in the leases on the next working day, Monday, January 28. alternative, that it receive the benefit of the "Lakeshore On Monday, January 28, 1980, Respondent, by its gen- Rider,"' and that the Union refused Respondent's re- eral manager, Stanley Wilmot, sent certified mail letters quest. (G.C. Exhs. 5(a)-5(f)) to each of the six owner-operators DeBolt's subsequent testimony contradicts Wallace's. to the following effect: Debolt testified that he then regarded the parties at im- passe after the Lakeshore Rider was refused but told You are hereby notified that any and all lease Flynn that, to sign the contract, he needed economic agreement(s) between yourself and DeBolt Transfer, relief. According to DeBolt, Flynn then told him that Inc., will be cancelled and become null and void as the contract itself permits relief; that Respondent had the at 12:00 p.m. (midnight) Sunday, February 3, 1980, right under the existing contract (G.C. Exh. 3) to cancel in accordance with the five (5) day notification pro- the truck (trailer) leases and that the owner-operators vision contained in paragraph (1) of said lease(s). would have to "pull company trailers."5 Flynn, accord- ing to DeBolt, then asked whether this would help him Please arrange to sign and obtain a new lease from out. DeBolt said that he asked Flynn whether Flynn was this office which will become effective 12:01 a.m., "sure" that Respondent had the right to cancel the trailer Monday, February 4, 1980 for future use. leases. Flynn said that they did; that it had been done successfully with another company and had been upheld ery truly yours by the Central States Teamsters Conference. DeBolt said DeBolt Transfer, Inc. 7 By letter (Resp. Exh. 1) dated January 29, 1980, Flynn 'The ordinary method of compensation under Respondent's leases of wrote to Respondent as follows: owner-operator trailers and tractors was to pay 75 percent of the gross revenues as compensation for such leases, retaining 25 percent for itself Please be advised that equipment leases may be out of which it paid the drivers' health and welfare, pension, and other cancelled in accordance with the collective-bargain- fringe benefits. It is undisputed that such a ratio sometimes resulted in Respondent losing money because the retained 25 percent was exhausted ing agreement. As an example, you have the right by fringe benefits and other direct costs. The "Lakeshore Rider" while to add Company equipment provided that there is permitting Lakeshore to retain only 20 percent of the gross revenues, granting the driver 80 percent of the gross revenues, but required the em- January 25, 1980, the day of execution of the present NMFA, fell on ployee to pay his own fringe benefits out of his O-percent compensation. aFriday ' Again, the only limitation on cancellation is in art. 55, sec. 18: to pre- vent cancellation where the purpose is to deprive the owner-operator of ' These letters were sent to owner-operators William Leach, Ralph employment. Since complaints regarding the employer's cancellation are Johnson, Carlo DeSimone. Elmer Bates, Thomas Bates, Eugene McLa- heard, under that section, pursuant to the grievance procedure, the terms more. The complaint alleges that these six owner-operators (as a result of themselves assume a right of cancellation in the employer subject only to Respondent's unilateral action in canceling their leases) were thereafter subsequent grievance. Nothing therein suggests an obligation to bargain unlawfully not scheduled for work upon their failure to execute new before canceling. leases, in violation of Sec. 8(aX3) of the Act. DEBOLT TRANSFER COMPANY 891 nomic suicide; that it was futile to sign it because Re- that he then asked Flynn whether that would be effec- spondent could not live under its terms. Wallace testified tive with regard to him in their eastern states conference only that he could not recall DeBolt saying this. I credit area. Flynn, according to DeBolt, said that since it was DeBolt. Wallace was sitting 12 feet away from DeBolt okay in the central states, there would be no doubt that and Flynn who faced each other across the table. Wal- it would be okay in the eastern conference area. With lace recalled that DeBolt and McMullan mentioned that that assurance, DeBolt testified that he then signed the in respect to another employer, Spector Industries, they contract on behalf of Respondent and that was the only were entitled to cancel the lease arrangements with their reason he signed. owner-operators, and Respondent wanted that right; that While DeBolt agrees that there was a discussion be- Flynn told them that if Respondent wanted that relief it tween him and Flynn with regard to the presentation of must abide by article 61, section 7, which would place matters before the competitive review board, DeBolt the matter before the Competitive Review Board; and said that this had to do only with regard to Respondent's that Flynn said that Respondent could not get relief on request for other economic relief such as reduction in the an overall basis but that each of his claims would have to pension and health and welfare contributions. With be reviewed. MacMullan insisted that he wanted the regard to these other requests for relief, Flynn, accord- relief accorded to all carriers but Flynn insisted that he ing to DeBolt, said that there would be no general right must use contract procedures and get relief from the to a reduction in these rates but that these requests for Eastern Conference. In particular, Wallace recalls that economic relief, i.e., changes in contract rates, would Flynn made the same statement with regard to Respond- have to be submitted on an individual basis before the ent's demand for the right of trailer leasing cancellations. competitive review board. Wallace testified that the Union told Respondent with After he signed the "Red Book," DeBolt testified that regard to the cancellation of the trailer lease in the Spec- he was still "wary" of Flynn's assurance that Respondent tor case, that such a cancellation was an individualized had the right to cancel the trailer leases. He said that case, and that Flynn said that, as in the Spector case, Re- when this January 25, 1980, meeting ended, he asked spondent must utilize contract procedures to get relief Flynn to put in writing what the Union had agreed to at from its trailer leases. In particular, Wallace denied that the meeting with regard to Respondent's right to cancel the Spector case was thrown in by the Union as an in- the trailer leases. Flynn agreed to do so as soon as he got ducement for the Company to execute the contract,.back to Washington, D.C. 6 Respondent canceled the There is no dispute that Respondent demanded, in the leases on the next working day, Monday, January 28. alternative, that it receive the benefit of the "Lakeshore On Monday, January 28, 1980, Respondent, by its gen- Rider,"' and that the Union refused Respondent's re- eral manager, Stanley Wilmot, sent certified mail letters quest. (GC. Exhs. 5(a)-5(f)) to each of the six owner-operators DeBolt's subsequent testimony contradicts Wallace's. to the following effect: Debolt testified that he then regarded the parties at im- passe after the Lakeshore Rider was refused but told You are hereby notified that any and all lease Flynn that, to sign the contract, he needed economic agreement~s) between yourself and DeBolt Transfer, relief. According to DeBolt, Flynn then told him that Inc., will be cancelled and become null and void as the contract itself permits relief; that Respondent had the at 12:00 p.m. (midnight) Sunday, February 3, 1980, right under the existing contract (G.C. Exh. 3) to cancel in accordance with the five (5) day notification pro- the truck (trailer) leases and that the owner-operators vision contained in paragraph (1) of said lease(s). would have to "pull company trailers."' Flynn, accord- ing to DeBolt, then asked whether this would help him Please arrange to sign and obtain a new lease from out. DeBolt said that he asked Flynn whether Flynn was t h is o ffi ce w h ich w ill become effective 12:01 a.m., "sure" that Respondent had the right to cancel the trailer Monday, February 4, 1980 for future use. leases. Flynn said that they did; that it had been done successfully with another company and had been upheld V e ry t ru l y y o u rs, by the Central States Teamsters Conference. DeBolt said DeBolt Transfer, Inc. 7 By letter (Resp. Exh. 1) dated January 29, 1980, Flynn 'Mhe ordinary method of compensation under Respondent's leases of wrote to Respondent as follows: owner-operator trailers and tractors was to pay 75 percent of the gross revenues as compensation for such leases, retaining 25 percent for itself Please be advised that equipment leases may be out of which it paid the drivers' health and welfare, pension, and other cancelled in accordance with the collective-bargain- fringe benefits. It is undisputed that such a ratio sometimes resulted in Respondent losing money became the retained 25 percent was exhausted ing agreement. As an example, you have the right by fringe benefits and other direct costs. The "Lakeshore Rider" while to add Company equipment provided that there is permitting Lakeshore to retain only 20 percent of the gross revenues, granting the driver 80 percent of the gross revenues, but required the em- January 25, 1980, the day of execution of the present NMFA, fell on ployee to pay his own fringe benefits out of his 80percent compensation. aFriday. I Again, the only limitation on cancellation is in art. 55, sec. 18: to pre- vent cancellation where the purpose is to deprive the owner-operator of These letters were sent to owner-operators William Leach, Ralph employment. Since complaints regarding the employer's cancellation are Johnson, Carlo DeSimone. Elmer Bates, Thomas Bates, Eugene McLa- heard, under that section, pursuant to the grievance procedure, the terms more. The complaint alleges that these six owner-operators (as a result of themselves assume a right of cancellation in the employer subject only to Respondent's unilateral action in canceling their leases) were thereafter subsequent grievance. Nothing therein suggests an obligation to bargain unlawfully not scheduled for work upon their failure to execute new before canceling. leases, in violation of Sec. 8(aX3) of the Act. DEBOLT TRANSFER COMPANY 891 nomic suicide; that it was futile to sign it because Re- that he then asked Flynn whether that would be effec- spondent could not live under its terms. Wallace testified tive with regard to him in their eastern states conference only that he could not recall DeBolt saying this. I credit area. Flynn, according to DeBolt, said that since it was DeBolt. Wallace was sitting 12 feet away from DeBolt okay in the central states, there would be no doubt that and Flynn who faced each other across the table. Wal- it would be okay in the eastern conference area. With lace recalled that DeBolt and McMullan mentioned that that assurance, DeBolt testified that he then signed the in respect to another employer, Spector Industries, they contract on behalf of Respondent and that was the only were entitled to cancel the lease arrangements with their reason he signed. owner-operators, and Respondent wanted that right; that While DeBolt agrees that there was a discussion be- Flynn told them that if Respondent wanted that relief it tween him and Flynn with regard to the presentation of must abide by article 61, section 7, which would place matters before the competitive review board, DeBolt the matter before the Competitive Review Board; and said that this had to do only with regard to Respondent's that Flynn said that Respondent could not get relief on request for other economic relief such as reduction in the an overall basis but that each of his claims would have to pension and health and welfare contributions. With be reviewed. MacMullan insisted that he wanted the regard to these other requests for relief, Flynn, accord- relief accorded to all carriers but Flynn insisted that he ing to DeBolt, said that there would be no general right must use contract procedures and get relief from the to a reduction in these rates but that these requests for Eastern Conference. In particular, Wallace recalls that economic relief, i.e., changes in contract rates, would Flynn made the same statement with regard to Respond- have to be submitted on an individual basis before the ent's demand for the right of trailer leasing cancellations. competitive review board. Wallace testified that the Union told Respondent with After he signed the "Red Book," DeBolt testified that regard to the cancellation of the trailer lease in the Spec- he was still "wary" of Flynn's assurance that Respondent tor case, that such a cancellation was an individualized had the right to cancel the trailer leases. He said that case, and that Flynn said that, as in the Spector case, Re- when this January 25, 1980, meeting ended, he asked spondent must utilize contract procedures to get relief Flynn to put in writing what the Union had agreed to at from its trailer leases. In particular, Wallace denied that the meeting with regard to Respondent's right to cancel the Spector case was thrown in by the Union as an in- the trailer leases. Flynn agreed to do so as soon as he got ducement for the Company to execute the contract,.back to Washington, D.C. 6 Respondent canceled the There is no dispute that Respondent demanded, in the leases on the next working day, Monday, January 28. alternative, that it receive the benefit of the "Lakeshore On Monday, January 28, 1980, Respondent, by its gen- Rider,"' and that the Union refused Respondent's re- eral manager, Stanley Wilmot, sent certified mail letters quest. (GC. Exhs. 5(a)-5(f)) to each of the six owner-operators DeBolt's subsequent testimony contradicts Wallace's. to the following effect: Debolt testified that he then regarded the parties at im- passe after the Lakeshore Rider was refused but told You are hereby notified that any and all lease Flynn that, to sign the contract, he needed economic agreement~s) between yourself and DeBolt Transfer, relief. According to DeBolt, Flynn then told him that Inc., will be cancelled and become null and void as the contract itself permits relief; that Respondent had the at 12:00 p.m. (midnight) Sunday, February 3, 1980, right under the existing contract (G.C. Exh. 3) to cancel in accordance with the five (5) day notification pro- the truck (trailer) leases and that the owner-operators vision contained in paragraph (1) of said lease(s). would have to "pull company trailers."' Flynn, accord- ing to DeBolt, then asked whether this would help him Please arrange to sign and obtain a new lease from out. DeBolt said that he asked Flynn whether Flynn was t h is o ffi ce w h ich w ill become effective 12:01 a.m., "sure" that Respondent had the right to cancel the trailer Monday, February 4, 1980 for future use. leases. Flynn said that they did; that it had been done successfully with another company and had been upheld V e ry t ru l y y o u rs, by the Central States Teamsters Conference. DeBolt said DeBolt Transfer, Inc. 7 By letter (Resp. Exh. 1) dated January 29, 1980, Flynn 'Mhe ordinary method of compensation under Respondent's leases of wrote to Respondent as follows: owner-operator trailers and tractors was to pay 75 percent of the gross revenues as compensation for such leases, retaining 25 percent for itself Please be advised that equipment leases may be out of which it paid the drivers' health and welfare, pension, and other cancelled in accordance with the collective-bargain- fringe benefits. It is undisputed that such a ratio sometimes resulted in Respondent losing money became the retained 25 percent was exhausted ing agreement. As an example, you have the right by fringe benefits and other direct costs. The "Lakeshore Rider" while to add Company equipment provided that there is permitting Lakeshore to retain only 20 percent of the gross revenues, granting the driver 80 percent of the gross revenues, but required the em- January 25, 190, the day of execution of the present NMFA, fell on ployee to pay his own fringe benefits out of his 80percent compensation. aFriday. I Again, the only limitation on cancellation is in art. 55, sec. 18: to pre- vent cancellation where the purpose is to deprive the owner-operator of These letters were sent to owner-operators William Leach, Ralph employment. Since complaints regarding the employer's cancellation are Johnson, Carlo DeSimone. Elmer Bates, Thomas Bates, Eugene McLa- heard, under that section, pursuant to the grievance procedure, the terms more. The complaint alleges that these six owner-operators (as a result of themselves assume a right of cancellation in the employer subject only to Respondent's unilateral action in canceling their leases) were thereafter subsequent grievance. Nothing therein suggests an obligation to bargain unlawfully not scheduled for work upon their failure to execute new before canceling. leases, in violation of Sec. 8(aX3) of the Act. DEBOLT TRANSFER COMPANY 891 nomic suicide; that it was futile to sign it because Re- that he then asked Flynn whether that would be effec- spondent could not live under its terms. Wallace testified tive with regard to him in their eastern states conference only that he could not recall DeBolt saying this. I credit area. Flynn, according to DeBolt, said that since it was DeBolt. Wallace was sitting 12 feet away from DeBolt okay in the central states, there would be no doubt that and Flynn who faced each other across the table. Wal- it would be okay in the eastern conference area. With lace recalled that DeBolt and McMullan mentioned that that assurance, DeBolt testified that he then signed the in respect to another employer, Spector Industries, they contract on behalf of Respondent and that was the only were entitled to cancel the lease arrangements with their reason he signed. owner-operators, and Respondent wanted that right; that While DeBolt agrees that there was a discussion be- Flynn told them that if Respondent wanted that relief it tween him and Flynn with regard to the presentation of must abide by article 61, section 7, which would place matters before the competitive review board, DeBolt the matter before the Competitive Review Board; and said that this had to do only with regard to Respondent's that Flynn said that Respondent could not get relief on request for other economic relief such as reduction in the an overall basis but that each of his claims would have to pension and health and welfare contributions. With be reviewed. MacMullan insisted that he wanted the regard to these other requests for relief, Flynn, accord- relief accorded to all carriers but Flynn insisted that he ing to DeBolt, said that there would be no general right must use contract procedures and get relief from the to a reduction in these rates but that these requests for Eastern Conference. In particular, Wallace recalls that economic relief, i.e., changes in contract rates, would Flynn made the same statement with regard to Respond- have to be submitted on an individual basis before the ent's demand for the right of trailer leasing cancellations. competitive review board. Wallace testified that the Union told Respondent with After he signed the "Red Book," DeBolt testified that regard to the cancellation of the trailer lease in the Spec- he was still "wary" of Flynn's assurance that Respondent tor case, that such a cancellation was an individualized had the right to cancel the trailer leases. He said that case, and that Flynn said that, as in the Spector case, Re- when this January 25, 1980, meeting ended, he asked spondent must utilize contract procedures to get relief Flynn to put in writing what the Union had agreed to at from its trailer leases. In particular, Wallace denied that the meeting with regard to Respondent's right to cancel the Spector case was thrown in by the Union as an in- the trailer leases. Flynn agreed to do so as soon as he got ducement for the Company to execute the contract,.back to Washington, D.C. 6 Respondent canceled the There is no dispute that Respondent demanded, in the leases on the next working day, Monday, January 28. alternative, that it receive the benefit of the "Lakeshore On Monday, January 28, 1980, Respondent, by its gen- Rider,"' and that the Union refused Respondent's re- eral manager, Stanley Wilmot, sent certified mail letters quest. (GC. Exhs. 5(a)-5(f)) to each of the six owner-operators DeBolt's subsequent testimony contradicts Wallace's. to the following effect: Debolt testified that he then regarded the parties at im- passe after the Lakeshore Rider was refused but told You are hereby notified that any and all lease Flynn that, to sign the contract, he needed economic agreement~s) between yourself and DeBolt Transfer, relief. According to DeBolt, Flynn then told him that Inc., will be cancelled and become null and void as the contract itself permits relief; that Respondent had the at 12:00 p.m. (midnight) Sunday, February 3, 1980, right under the existing contract (G.C. Exh. 3) to cancel in accordance with the five (5) day notification pro- the truck (trailer) leases and that the owner-operators vision contained in paragraph (1) of said lease(s). would have to "pull company trailers."' Flynn, accord- ing to DeBolt, then asked whether this would help him Please arrange to sign and obtain a new lease from out. DeBolt said that he asked Flynn whether Flynn was t h is o ffi ce w h ich w ill become effective 12:01 a.m., "sure" that Respondent had the right to cancel the trailer Monday, February 4, 1980 for future use. leases. Flynn said that they did; that it had been done successfully with another company and had been upheld V e ry t ru l y y o u rs, by the Central States Teamsters Conference. DeBolt said DeBolt Transfer, Inc. 7 By letter (Resp. Exh. 1) dated January 29, 1980, Flynn 'Mhe ordinary method of compensation under Respondent's leases of wrote to Respondent as follows: owner-operator trailers and tractors was to pay 75 percent of the gross revenues as compensation for such leases, retaining 25 percent for itself Please be advised that equipment leases may be out of which it paid the drivers' health and welfare, pension, and other cancelled in accordance with the collective-bargain- fringe benefits. It is undisputed that such a ratio sometimes resulted in Respondent losing money because the retained 25 percent was exhausted ing agreement. AS an example, you have the right by fringe benefits and other direct costs. The "Lakeshore Rider" while to add Company equipment provided that there is permitting Lakeshore to retain only 20 percent of the gross revenues, granting the driver 80 percent of the gross revenues, but required the em- January 25, 190, the day of execution of the present NMFA, fell on ployee to pay his own fringe benefits out of his 80percent compensation. aFriday. I Again, the only limitation on cancellation is in art. 55, sec. 18: to pre- vent cancellation where the purpose is to deprive the owner-operator of These letters were sent to owner-operators William Leach, Ralph employment. Since complaints regarding the employer's cancellation are Johnson, Carlo DeSimone. Elmer Bates, Thomas Bates, Eugene McLa- heard, under that section, pursuant to the grievance procedure, the terms more. The complaint alleges that these six owner-operators (as a result of themselves assume a right of cancellation in the employer subject only to Respondent's unilateral action in canceling their leases) were thereafter subsequent grievance. Nothing therein suggests an obligation to bargain unlawfully not scheduled for work upon their failure to execute new before canceling. leases, in violation of Sec. 8(aX3) of the Act. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no subterfuge to avoid the labor contract or to dis- spondent felt that by virtue of the negotiations, Respond- criminate against the employees. ent was correct in canceling the truck leases. Without Article 22, Sections 5 and 6 both refer to the contradiction, Wallace testified that he told Wilmot that minimum 30-day cancellation clause for lease equip- it was wrong to do so; was a definite breach of contract; ment. Article 55, Sections 5 and 6 also make refer- that in order to cancel the leases Respondent had to go ence to the minimum 30-day lease. Further, Section through the contract procedures to get relief; and that in 15 provides for negotiation and arbitration of any two other trucking operations in which Respondent had disputes in this regard. Of course, Sections 16 an interest, Respondent had not terminated the trailer through 20 of Article 55 are aimed at preventing leases; and that Wallace believed that in doing so with subterfuges and violations of the agreement. Your regard to the two terminals in which the Union repre- attention is also directed to Article 43 (Seniority). sented the owner-operators, Respondent was attempting I trust that the above explanation in reference to to eliminate owner-operators at these two terminals and the contract is satisfactory to you. was using the trailer lease cancellations as a subterfuge to Sincerely, do so in violation of the contract.9 s/s Robert T. Flynn 1. The two meetings between Wallace and Wilmot Robert T. Flynn Robert T. Fln Sometime in or about mid-February 1980, Wilmot and Lastly, DeBolt testified, with respect to his execution Wallace met at a restaurant in Pittsburgh wherein of the collective-bargaining agreement on January 25, Wilmot repeated the request for economic relief and that at the time of actually signing it, he told Flynn that, stated that Respondent wanted the Lakeshore Rider if "I am only signing this 'Red Book' on your assurance the matter was to get off dead center concerning the that I have the right to cancel the truck leases." DeBolt cancellation of the leases Wallace told him that the La cancellation of the leases. Wallace told him that the La- te stified that Flynn answered, "You have the right." DeBolt said that nothing was said regarding submission cou no Rider rovsion as going to be withdrawn and of these cancellations to the competitive review board or could not be granted to Respondent. Wilmot placed this any other body. Thereafter, DeBolt said that Respondent meeting as early March 1980. For urposes of this pro- was going to cancel the truck leases at its first opportuni- ceedg, the date placed by Wallace (he was unsure of ty and that someone the Respondent said, "Do what you the date) as some 2 weeks after receiving the first phone want." Thereafter, after execution of the contract, call would place the meeting sometime in mid or late DeBolt said that he spoke to Wallace and told him, February. The next meeting was held on April 1, 1980, "Your guys are not going to like this at all." DeBolt said notwithstanding Wallace's contrary recollection that it that Wallace answered, "That's tough." DeBolt said that was held 2 weeks before April 1. It was held at the he rejoined, "If it is okay with you, it's okay with me." Howard Johnson's restaurant in Monroeville, Pennsylva- This testimony was received without objection and Wal- nia. lace was not recalled to deny this testimony. In any event, it would appear probable that this Wallace testified that although trailer leasing cancella- second meeting between Wilmot and Wallace (at which tion was mentioned, Flynn repeatedly stated that Re- Wallace was accompanied by three owner-operator em- spondent would have to go through contract procedures ployees of Respondent) occurred after a letter (G.C. in order to gain such relief. He testified that at least two Exh. 6) from Flynn to DeBolt, dated March 7, 1980: employers, J. F. Scott and CRST Company, had re- ceived relief although the relief did not relate to the leas- I have been advised by the three Local Unions that ing of equipment but rather to rates of pay, pension and you are blatantly violating the collective-bargaining health and welfare contributions.8 One of them, CRST agreement. [Your] conduct is not only a violation of Company, was not a signer of the "Red Book"; with the contract but is an unfair labor practice. Under regard to the other, J. F. Scott, it was a "Red Book" the circumstances, the Local Unions reserve the signer, but the economic relief did not relate to the leas- right to take appropriate legal and economic action ing of the equipment. Wallace, as above noted, did not in protest of your unfair labor practices. testify with regard to DeBolt's testimony wherein, after We strongly object to your abuse of the rights of the contract was signed, DeBolt told him that Respond- our taking unilateral action without ent's employees would not like the lease cancellations regard to their rights or the collective-bargaining and Wallace allegedly replied: "That's tough." regard to their rights or the collective-bargaining and Wallace allegedly replied: "That's tough." Wallace further testified that after the meeting on Jan-ag reement. As fa r as we are concerned you and uary 25, within 3 to 4 days, he received telephone callsy have d d any redbt h from owner-operators inquiring why the trailer leases yo my have had and you ma be assured that had been canceled. Wallace testified that he told themfrom thls time on we will never agai deal with you that he did not know but would find out. In subsequent except at arm's length. You have abused the em- telephone calls to Respondent from Wallace, he finally The General Counse conceded tha the operations at other trucking reached General Manager Wilmot who told him that Re- terminals which Respondent had an interest where those operation in cluded the use of owner-operators and the leasing of tractors and trailers This corroborates DeBolt's testimony concerning the matters on had no bearing on the instant case. Further, Respondent's lease cancella- which Flynn insisted the competitive review board procedures were re- tions in this case related only to trailers. It did not eliminate owner-oper- quired, i.e., changes in contract rates, whether wages or fringe benefits. ators and sought to maintain the truck leases. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no subterfuge to avoid the labor contract or to dis- spondent felt that by virtue of the negotiations, Respond- criminate against the employees. ent was correct in canceling the truck leases. Without Article 22, Sections 5 and 6 both refer to the contradiction, Wallace testified that he told Wilmot that minimum 30-day cancellation clause for lease equip- it was wrong to do so; was a definite breach of contract; ment. Article 55, Sections 5 and 6 also make refer- that in order to cancel the leases Respondent had to go ence to the minimum 30-day lease. Further, Section through the contract procedures to get relief; and that in 15 provides for negotiation and arbitration of any two other trucking operations in which Respondent had disputes in this regard. Of course, Sections 16 an interest, Respondent had not terminated the trailer through 20 of Article 55 are aimed at preventing leases; and that Wallace believed that in doing so with subterfuges and violations of the agreement. Your regard to the two terminals in which the Union repre- attention is also directed to Article 43 (Seniority). sented the owner-operators, Respondent was attempting I trust that the above explanation in reference to to eliminate owner-operators at these two terminals and the contract is satisfactory to you. was using the trailer lease cancellations as a subterfuge to Sincerely, do s o in violation of the contract. 9 s/s Robert T. Flynn 1. The two meetings between Wallace and Wilmot Robert T. Flynn Rbr T. Fln , .,., .,Sometime in or about mid-February 1980, Wilmot and Lastly, DeBolt testified, with respect to his execution Wallace met at a restaurant in Pittsburgh wherein of the c o l lec tiv e-b arg ainin g agreement on January 25, Wilmot repeated the request for economic relief and that at the time of actually signing it, he told Flynn that, stated that Respondent wanted the Lakeshore Rider if "I am only signing this 'Red Book' on your assurance th mte w t ge o d c o i that I have the right to cancel the truck leases." DeBolt ct h e m a t ie r w a s o t o ge t o ff a d ead center concerning the testiied hat lynnanswred. You ave he rght. c an c el la t lo n o f t h e le ases. W a ll ac e told him that the La- testified that Flynn answered, "You have the right." kehrRirpovsnwagigtobwtdanad DeBolt said that nothing was said regarding submission k es h o re R g d e r panted ^ g°'"g to be withdrawn and of these cancellations to the competitive review board or c o u l d n o t b e garyM h 1 9 t o Respondent. Wilmot placed this any other body. Thereafter, DeBolt said that Respondent ceeding asth dt M arc h 198 0 b F o r Purposes of this pro- was going to cancel the truck leases at its first opportuni- ceedg, the date placed by Wallace (he was unsure of ty and that someone the Respondent said, "Do what you t h e date) a s some 2 weeks after receiving the first phone want." Thereafter, after execution of the contract, c a ll w o u ld place the meeting sometime in mid or late DeBolt said that he spoke to Wallace and told him, February. The next meeting was held on April 1, 1980, "Your guys are not going to like this at all." DeBolt said notwithstanding Wallace's contrary recollection that it that Wallace answered, "That's tough." DeBolt said that w as held 2 weeks before April 1. It was held at the he rejoined, "If it is okay with you, it's okay with me." Howard Johnson's restaurant in Monroeville, Pennsylva- This testimony was received without objection and Wal- "nia. lace was not recalled to deny this testimony. In any event, it would appear probable that this Wallace testified that although trailer leasing cancella- second meeting between Wilmot and Wallace (at which tion was mentioned, Flynn repeatedly stated that Re- Wallace was accompanied by three owner-operator em- spondent would have to go through contract procedures ployees of Respondent) occurred after a letter (G.C. in order to gain such relief. He testified that at least two Exh. 6) from Flynn to DeBolt, dated March 7, 1980: employers, J. F. Scott and CRST Company, had re- ceived relief although the relief did not relate to the leas- I have been advised by the three Local Unions that ing of equipment but rather to rates of pay, pension and you are blatantly violating the collective-bargaining health and welfare contributions." One of them, CRST agreement. [Your] conduct is not only a violation of Company, was not a signer of the "Red Book"; with the contract but is an unfair labor practice. Under regard to the other, J. F. Scott, it was a "Red Book" the circumstances, the Local Unions reserve the signer, but the economic relief did not relate to the leas- right to take appropriate legal and economic action ing of the equipment. Wallace, as above noted, did not in protest of your unfair labor practices. testify with regard to DeBolt's testimony wherein, after We strongly object to your abuse of the rights of the contract was signed, DeBolt told him that Respond- our m taking unilateral action without ent's employees would not like the lease cancellations regard to their rights or the collective-bargaining and Wallace allegedly replied: "That's tough." r e ement . As e fr as we are conceivedbargand Wallace further testified that after the meeting on Jan-attorney har dstwe any credib ou anc uary 25, within 3 to 4 days, he received telephone callsyou may have ha d an y cr e dlthat from owner-operators inquiring why the trailer leases fromthi h av e h ad a nd wil m v r be agi "red that had been canceled. Wallace testified that he told them f ro m t h ls tie on we will never again deal with you that he did not know but would find out. In subsequent except at arm s length. You have abused the em- telephone calls to Respondent from Wallace, he finally------- ,ece ,eea Mange i » i,.i_ , i tol1. him. .1.t .e oThe General Counsel conceded that the operations at other trucking reached General Manager Wilmot who told him that Re- ^terminals in which Respondent had an interest where those operations in- cluded the use of owner-operators and the leasing of tractors and trailers This corroborates DeBolt's testimony concerning the matters on had no bearing on the instant case. Further, Respondent's lease cancella- which Flynn insisted the competitive review board procedures were re- lions in this case related only to trailers. It did not eliminate owner-oper- quired, i.e., changes in contract rates, whether wages or fringe benefits. ators and sought to maintain the truck leases. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no subterfuge to avoid the labor contract or to dis- spondent felt that by virtue of the negotiations, Respond- criminate against the employees. ent was correct in canceling the truck leases. Without Article 22, Sections 5 and 6 both refer to the contradiction, Wallace testified that he told Wilmot that minimum 30-day cancellation clause for lease equip- it was wrong to do so; was a definite breach of contract; ment. Article 55, Sections 5 and 6 also make refer- that in order to cancel the leases Respondent had to go ence to the minimum 30-day lease. Further, Section through the contract procedures to get relief; and that in 15 provides for negotiation and arbitration of any two other trucking operations in which Respondent had disputes in this regard. Of course, Sections 16 an interest, Respondent had not terminated the trailer through 20 of Article 55 are aimed at preventing leases; and that Wallace believed that in doing so with subterfuges and violations of the agreement. Your regard to the two terminals in which the Union repre- attention is also directed to Article 43 (Seniority). sented the owner-operators, Respondent was attempting I trust that the above explanation in reference to to eliminate owner-operators at these two terminals and the contract is satisfactory to you. was using the trailer lease cancellations as a subterfuge to Sincerely, do so in violation of the contract. 9 s/s Robert T. Flynn 1. The two meetings between Wallace and Wilmot Robert T. Flynn Rbr T. Fln , .,., .,Sometime in or about mid-February 1980, Wilmot and Lastly, DeBolt testified, with respect to his execution Wallace met at a restaurant in Pittsburgh wherein of the c o l lec tiv e-b arg ainin g agreement on January 25, Wilmot repeated the request for economic relief and that at the time of actually signing it, he told Flynn that, stated that Respondent wanted the Lakeshore Rider if "I am only signing this 'Red Book' on your assurance th mte w t ge o d c o i that I have the right to cancel the truck leases." DeBolt ct h e m a t ie r w a s o t o ge t o ff a d ead center concerning the testiied hat lynnanswred. You ave he rght. c an c el la t lo n o f t h e le ases. W a ll ac e told him that the La- testified that Flynn answered, "You have the right." kehrRirpovsnwagigtobwtdanad DeBolt said that nothing was said regarding submission k es h o re R l d e r Provision was going to be withdrawn and of these cancellations to the competitive review board or c o u l d n o t b e grlMaed th Respondent. Wilmot placed this any other body. Thereafter, DeBolt said that Respondent ceeding as, date Mpl c h 198 0 b F o W purposes of this pro- was going to cancel the truck leases at its first opportuni- ceedg, the date placed by Wallace (he was unsure of ty and that someone the Respondent said, "Do what you t h e date) a s some 2 weeks after receiving the first phone want." Thereafter, after execution of the contract, call would place the meeting sometime in mid or late DeBolt said that he spoke to Wallace and told him, February. The next meeting was held on April 1, 1980, "Your guys are not going to like this at all." DeBolt said notwithstanding Wallace's contrary recollection that it that Wallace answered, "That's tough." DeBolt said that w as held 2 weeks before April 1. It was held at the he rejoined, "If it is okay with you, it's okay with me." Howard Johnson's restaurant in Monroeville, Pennsylva- This testimony was received without objection and Wal- "nia. lace was not recalled to deny this testimony. In any event, it would appear probable that this Wallace testified that although trailer leasing cancella- second meeting between Wilmot and Wallace (at which tion was mentioned, Flynn repeatedly stated that Re- Wallace was accompanied by three owner-operator em- spondent would have to go through contract procedures ployees of Respondent) occurred after a letter (G.C. in order to gain such relief. He testified that at least two Exh. 6) from Flynn to DeBolt, dated March 7, 1980: employers, J. F. Scott and CRST Company, had re- ceived relief although the relief did not relate to the leas- I have been advised by the three Local Unions that ing of equipment but rather to rates of pay, pension and you are blatantly violating the collective-bargaining health and welfare contributions." One of them, CRST agreement. [Your] conduct is not only a violation of Company, was not a signer of the "Red Book"; with the contract but is an unfair labor practice. Under regard to the other, J. F. Scott, it was a "Red Book" the circumstances, the Local Unions reserve the signer, but the economic relief did not relate to the leas- right to take appropriate legal and economic action ing of the equipment. Wallace, as above noted, did not in protest of your unfair labor practices. testify with regard to DeBolt's testimony wherein, after We strongly object to your abuse of the rights of the contract was signed, DeBolt told him that Respond- our m taking unilateral action without ent's employees would not like the lease cancellations regard to their rights or the collective-bargaining and Wallace allegedly replied: "That's tough." r e ement . As e fr as we are conceivedbargand Wallace further testified that after the meeting on Jan-attorney har dstwe any credib ou anc uary 25, within 3 to 4 days, he received telephone calls you ma have ha d an y cr e dlthat from owner-operators inquiring why the trailer leases f o m thi h av e h ad a nd w o u m v b e a as su r ed, t h a t had been canceled. Wallace testified that he told them f ro m t h ls tame on we will never again deal with you that he did not know but would find out. In subsequent except at arm s length. You have abused the em- telephone calls to Respondent from Wallace, he finally------- ,ece ,eea Mange i » i,.i_ , i tol1. him. .1.t .e oThe General Counsel conceded that the operations at other trucking reached General Manager Wilmot who told him that Re- ^terminals in which Respondent had an interest where those operations in- cluded the use of owner-operators and the leasing of tractors and trailers This corroborates DeBolt's testimony concerning the matters on had no bearing on the instant case. Further, Respondent's lease cancella- which Flynn insisted the competitive review board procedures were re- lions in this case related only to trailers. It did not eliminate owner-oper- quired, i.e., changes in contract rates, whether wages or fringe benefits. ators and sought to maintain the truck leases. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no subterfuge to avoid the labor contract or to dis- spondent felt that by virtue of the negotiations, Respond- criminate against the employees. ent was correct in canceling the truck leases. Without Article 22, Sections 5 and 6 both refer to the contradiction, Wallace testified that he told Wilmot that minimum 30-day cancellation clause for lease equip- it was wrong to do so; was a definite breach of contract; ment. Article 55, Sections 5 and 6 also make refer- that in order to cancel the leases Respondent had to go ence to the minimum 30-day lease. Further, Section through the contract procedures to get relief; and that in 15 provides for negotiation and arbitration of any two other trucking operations in which Respondent had disputes in this regard. Of course, Sections 16 an interest, Respondent had not terminated the trailer through 20 of Article 55 are aimed at preventing leases; and that Wallace believed that in doing so with subterfuges and violations of the agreement. Your regard to the two terminals in which the Union repre- attention is also directed to Article 43 (Seniority). sented the owner-operators, Respondent was attempting I trust that the above explanation in reference to to eliminate owner-operators at these two terminals and the contract is satisfactory to you. was using the trailer lease cancellations as a subterfuge to Sincerely, do so in violation of the contract. 9 s/s Robert T. Flynn 1. The two meetings between Wallace and Wilmot Robert T. Flynn Rbr T. Fln , .,., .,Sometime in or about mid-February 1980, Wilmot and Lastly, DeBolt testified, with respect to his execution Wallace met at a restaurant in Pittsburgh wherein of the collective-bargaining agreement on January 25, Wilmot repeated the request for economic relief and that at the time of actually signing it, he told Flynn that, stated that Respondent wanted the Lakeshore Rider if "I am only signing this 'Red Book' on your assurance th mte w t ge o d c o i that I have the right to cancel the truck leases." DeBolt ct h e m a t ie r w a s o t o ge t o ff a d ead center concerning the testiied hat lynnanswred. You ave he rght. c an c el la t lo n o f t h e le ases. W a ll ac e told him that the La- testified that Flynn answered, "You have the right." kehrRirpovsnwagigtobwtdanad DeBolt said that nothing was said regarding submission k es h o re R l d e r Provision was going to be withdrawn and of these cancellations to the competitive review board or c o u l d n o t b e grlMred to Respondent. Wilmot placed this any other body. Thereafter, DeBolt said that Respondent ceeding as, date Mpl c h 198 0 b F o W purposes of this pro- was going to cancel the truck leases at its first opportuni- ceedg, the date placed by Wallace (he was unsure of ty and that someone the Respondent said, "Do what you t h e date) a s some 2 weeks after receiving the first phone want." Thereafter, after execution of the contract, call would place the meeting sometime in mid or late DeBolt said that he spoke to Wallace and told him, February. The next meeting was held on April 1, 1980, "Your guys are not going to like this at all." DeBolt said notwithstanding Wallace's contrary recollection that it that Wallace answered, "That's tough." DeBolt said that w as held 2 weeks before April 1. It was held at the he rejoined, "If it is okay with you, it's okay with me." Howard Johnson's restaurant in Monroeville, Pennsylva- This testimony was received without objection and Wal- "nia. lace was not recalled to deny this testimony. In any event, it would appear probable that this Wallace testified that although trailer leasing cancella- second meeting between Wilmot and Wallace (at which tion was mentioned, Flynn repeatedly stated that Re- Wallace was accompanied by three owner-operator em- spondent would have to go through contract procedures ployees of Respondent) occurred after a letter (G.C. in order to gain such relief. He testified that at least two Exh. 6) from Flynn to DeBolt, dated March 7, 1980: employers, J. F. Scott and CRST Company, had re- ceived relief although the relief did not relate to the leas- I have been advised by the three Local Unions that ing of equipment but rather to rates of pay, pension and you are blatantly violating the collective-bargaining health and welfare contributions." One of them, CRST agreement. [Your] conduct is not only a violation of Company, was not a signer of the "Red Book"; with the contract but is an unfair labor practice. Under regard to the other, J. F. Scott, it was a "Red Book" the circumstances, the Local Unions reserve the signer, but the economic relief did not relate to the leas- right to take appropriate legal and economic action ing of the equipment. Wallace, as above noted, did not in protest of your unfair labor practices. testify with regard to DeBolt's testimony wherein, after We strongly object to your abuse of the rights of the contract was signed, DeBolt told him that Respond- our m taking unilateral action without ent's employees would not like the lease cancellations regard to their rights or the collective-bargaining and Wallace allegedly replied: "That's tough." r e ement . As e fr as we are conceivedbargand Wallace further testified that after the meeting on Jan-attorney har dstwe any credib ou anc uary 25, within 3 to 4 days, he received telephone calls you ma have ha d an y cr e dlthat from owner-operators inquiring why the trailer leases f o m tay h av e h ad a nd w o u m nv b e a as su r ed t h a t had been canceled. Wallace testified that he told them f ro m t h ls tame on we will never again deal with you that he did not know but would find out. In subsequent except at arm s length. You have abused the em- telephone calls to Respondent from Wallace, he finally------- ,ece ,eea Mange i » i,.i_ , i tol1. him. .1.t .e oThe General Counsel conceded that the operations at other trucking reached General Manager Wilmot who told him that Re- ^terminals in which Respondent had an interest where those operations in- cluded the use of owner-operators and the leasing of tractors and trailers This corroborates DeBolt's testimony concerning the matters on had no bearing on the instant case. Further, Respondent's lease cancella- which Flynn insisted the competitive review board procedures were re- lions in this case related only to trailers. It did not eliminate owner-oper- quired, i.e., changes in contract rates, whether wages or fringe benefits. ators and sought to maintain the truck leases. DEBOLT TRANSFER COMPANY 893 ployees and the Local Unions and we will not ent's overall compliance with contributions to the var- forget you. ious fringe benefit funds. Wilmot testified without con- tradiction, however, that this audit was not the result of Very truly yours, any filed grievance by Local 800. Respondent notes that s/s Robert T. Flynn no grievance had been filed over lease cancellation by Robert T. Flynn any of the owner-operators. The leases in question herein, according to the agree- Copies of this letter to Respondent were sent to Locals ment of the parties, relate to tractors and trailers sepa- 249, 261, and 800, as well as to Thomas D. MacMullan, rately. As above noted, the practice is for Respondent to attorney for Respondent. The letter, itself, fails to deny lease both a tractor and a trailer from the owner-opera- the substance of the alleged agreement regarding lease tor. It is agreed that the lease provides for a lease term cancellations at the January 25, 1980, meeting. At the of 30 days, cancelable by either party, however, on a 5- April 1, 1980, meeting, Wallace accused Respondent of day written notice. canceling the leases to the owner-operators (in view of The parties agreed that in practice, from time to time, not canceling owner-operators leases at other terminals owner-operators have canceled tractor and/or trailer in which Respondent had an interest) to eliminate leases on a 5-day notice for economic reasons, equipment owner-operators at two of Respondent's terminals and to failures and other reasons not particularly specified in the break the Union at DeBolt Transfer Company. Wilmot record; and that Respondent's January 28, 1980, letters of denied this. Elmer Bates and the other owner-operators lease cancellation, although phrased in terms of canceling said that they could not afford to pull company trailers, "all lease agreements" were directed solely at the cancel- that they were not going to pull company trailers and lation of the trailer leases. Indeed, the parties agree that questioned why other owner-operators at these other it was the Respondent's intent to have the owner-opera- "divisions" at which Respondent had an interest were al- tors use their own leased tractors to haul trailers which lowed to do it and they were not. When the owner-oper- were owned by Respondent. The parties further agree ators asked whether something could be worked out that the cancellations themselves were in accordance other than the cancellation of their trailer leases, Wlmot with the terms of the leases and that motivation for the said that there was no alternative that he could think of. Elmer Bates then asked whether a Lakeshore Rider ar- due to the fact the leases was solel economic and was rangement could be provided and asked Wilmot why terms imposed by the collective-bargaining agreement that could not solve the problem. Wilmot replied that it e s m o sed t h e collective-bargaining agreement that could not solve the problem. Wilmot replied that it (G.C. Exh. 3) regarding the cost of leasing trailers; and was up to the Union and not to Respondent. Wallace (G.C Exh. 3) regarding t h e co s t o f leasg trailers; and was up to the Union and not to Respondent. Wallace that it was cheaper for Respondent to operate by having then said that he was taking the matter to the National tht w as heper fors hl pompany trailersather than Labor Relations Board. the owner-operators haul company trailers rather than Labor Relations Board. It is undisputed that DeBolt never filed a request for leased trailers. relief under contract procedures. It was also conceded As a result of the above cancellations, none of the six that other independent carriers (not members of any mul- owner-operators at Respondent's two terminals has ex- tiemployer bargaining group) like DeBolt had filed re- ecuted or agreed to execute a new lease for his tractor quests for relief and some of them have been granted. and none of them has therefore been scheduled to haul Respondent's witnesses testified that, pursuant to the Jan- merchandise for Respondent since the cancellation. The uary 25 meeting, they did not file for relief under the result is that none of them have therefore worked for contract procedures because they believed that they had Respondent since the lease cancellations. an agreement with the Union making such request for relief unnecessary in terms of their alleged right to2. Contention of the parties cancel the trailer leases unilaterally. The General Counsel argues that under Local 24, In- On the other hand, Wallace testified that the Union did ternational Brotherhood of Teamsters Chauffeurs, Ware- not file a grievance under the contract because of Re- housemen and Helpers of America, AFL-CIO, et al. v. spondent's alleged breach of contract (in the unilateral Oliver, et al, 358 U.S. 283 (1959), the wage rates in- act of canceling the leases) because the Union already volved in owner-operator leases are a mandatory subject had three to four grievances on file against Respondent; of bargaining within the meaning of Sections 8(d) and and because the Union considered the filing of griev- 8(aX5) of the Act; that there was an existing collective- ances a waste of time since Respondent has refused to bargaining agreement executed by Respondent and Local abide by agreements settling the grievances. Wilmot, on 800 (G.C. Exh. 3); that while individual cancellation of a the contrary, testified that on January 29, 1980, the par- lease may be a mere contract violation and not a viola- ties settled five to six grievances which were all the out- tion of Section 8(aX5), where, as here, there has been a standing grievances at that time; that there had been no change in the methods of payment (a mandatory subject) complaints from the Union regarding the settlement of on a unitwide basis, a "blanket unilateral cancellation of these grievances; and that there had been no allegation trailer leases," there is an 8(a)5) and 8(d) violation. Fur- that Respondent has been dragging its feet in executing ther, the General Counsel notes that Respondent took the agreed-upon solutions to the grievances. Indeed, ac- this unilateral action notwithstanding the existence of a cording to Wilmot, there had been no union request for further action under contract procedures notwithstanding , Thus, the leased tractors would thereafter haul Respondent's trailers, that the Union has been conducting an audit of Respond- not leased trailers. DEBOLT TRANSFER COMPANY 893 ployees and the Local Unions and we will not ent's overall compliance with contributions to the var- forget you. ious fringe benefit funds. Wilmot testified without con- tradiction, however, that this audit was not the result of Very truly yours, any filed grievance by Local 800. Respondent notes that s/s Robert T. Flynn no grievance had been filed over lease cancellation by Robert T. Flynn any of the owner-operators. The leases in question herein, according to the agree- Copies of this letter to Respondent were sent to Locals ment of the parties, relate to tractors and trailers sepa- 249, 261, and 800, as well as to Thomas D. MacMullan, rately. As above noted, the practice is for Respondent to attorney for Respondent. The letter, itself, fails to deny lease both a tractor and a trailer from the owner-opera- the substance of the alleged agreement regarding lease tor. It is agreed that the lease provides for a lease term cancellations at the January 25, 1980, meeting. At the of 30 days, cancelable by either party, however, on a 5- April 1, 1980, meeting, Wallace accused Respondent of day written notice. canceling the leases to the owner-operators (in view of The parties agreed that in practice, from time to time, not canceling owner-operators leases at other terminals owner-operators have canceled tractor and/or trailer in which Respondent had an interest) to eliminate leases on a 5-day notice for economic reasons, equipment owner-operators at two of Respondent's terminals and to failures and other reasons not particularly specified in the break the Union at DeBolt Transfer Company. Wilmot record; and that Respondent's January 28, 1980, letters of denied this. Elmer Bates and the other owner-operators lease cancellation, although phrased in terms of canceling said that they could not afford to pull company trailers, "aal lease agreements" were directed solely at the cancel- that they were not going to pull company trailers and lation of the trailer leases. Indeed, the parties agree that questioned why other owner-operators at these other i w Respondent's intent to have the owner-opera- divisions" at which Respondent had an interest were al- trs use their own leased tractors to haul trailers which lowed to do it and they were not. When the owner-oper- wr o y Respondent." The parties further agree ators asked whether so m e t h ing c o ul d b e w o r k ed out that the cancellations themselves were in accordance other thanthe c a nc e l latio n o f t h eir t r ail er leasesWilmot with the terms of the leases and that motivation for the said that there w as no alte t h c t o cancellation of the leases was solely economic and was Elmer Bates then asked whether a Lakeshore Rider ar- due to the fact that Respondent could not afford the rangement could be provided and asked Wilmot why t e i o s e by thetcolspcndentbaouldniot agrdethe that could not solve the problem. Wilmot replied that it (eGC s Em po s ed 3 a t h e collective-bargaining agreement was up to the Union and not to Respondent. Wallace tGh Cti E x h t 3) cheapr fo t h e cost of leasing trailers; and then said that he was taking the matter to the National the o w as ne-pera f o rhucpondent to operate by having Labor Relations Board. h e owner-operators haul company trailers rather than It is undisputed that DeBolt never filed a request for l eas ed trilrs. relief under contract procedures. It was also conceded A s a r e su lt o f t he ab o v e cancellations, none of the six that other independent carriers (not members of any mul- owner-operators at Respondent's two terminals has ex- tiemployer bargaining group) like DeBolt had filed re- ec u te d o r agreed to execute a new lease for his tractor quests for relief and some of them have been granted. an d no n e o f t he m h as therefore been scheduled to haul Respondent's witnesses testified that, pursuant to the Jan- merchandise for Respondent since the cancellation. The uary 25 meeting, they did not file for relief under the r esu l t is that none of them have therefore worked for contract procedures because they believed that they had Respondent since the lease cancellations. an agreement with the Union making such request for relief unnecessary in terms of their alleged right to 2. Contention of the parties cancel the trailer leases unilaterally. The General Counsel argues that under Local 24, In- On the other hand, Wallace testified that the Union did ternational Brotherhood of Teamstes Chauffeurs. Ware- not file a grievance under the contract because of Re- housemen and Helpers of America, AFL-CIO, et al. v. spondent's alleged breach of contract (in the unilateral Oliver, et al, 358 U.S. 283 (1959), the wage rates in- act of canceling the leases) because the Union already volved in owner-operator leases are a mandatory subject had three to four grievances on file against Respondent; of bargaining within the meaning of Sections 8(d) and and because the Union considered the filing of griev- 8(aX5) of the Act; that there was an existing collective- ances a waste of time since Respondent has refused to bargaining agreement executed by Respondent and Local abide by agreements settling the grievances. Wilmot, on 800 (G.C. Exh. 3); that while individual cancellation of a the contrary, testified that on January 29, 1980, the par- lease may be a mere contract violation and not a viola- ties settled five to six grievances which were all the out- tion of Section 8(aX5), where, as here, there has been a standing grievances at that time; that there had been no change in the methods of payment (a mandatory subject) complaints from the Union regarding the settlement of on a unitwide basis, a "blanket unilateral cancellation of these grievances; and that there had been no allegation trailer leases," there is an 8(a)(5) and 8(d) violation. Fur- that Respondent has been dragging its feet in executing ther, the General Counsel notes that Respondent took the agreed-upon solutions to the grievances. Indeed, ac- this unilateral action notwithstanding the existence of a cording to Wilmot, there had been no union request for further action under contract procedures notwithstanding t. Thus, the leased tractors would thereafter haul Respondent's trailers, that the Union has been conducting an audit of Respond- not leased trailers. DEBOLT TRANSFER COMPANY 893 ployees and the Local Unions and we will not ent's overall compliance with contributions to the var- forget you. ious fringe benefit funds. Wilmot testified without con- tradiction, however, that this audit was not the result of Very truly yours, any filed grievance by Local 800. Respondent notes that s/s Robert T. Flynn no grievance had been filed over lease cancellation by Robert T. Flynn any of the owner-operators. The leases in question herein, according to the agree- Copies of this letter to Respondent were sent to Locals ment of the parties, relate to tractors and trailers sepa- 249, 261, and 800, as well as to Thomas D. MacMullan, rately. As above noted, the practice is for Respondent to attorney for Respondent. The letter, itself, fails to deny lease both a tractor and a trailer from the owner-opera- the substance of the alleged agreement regarding lease tor. It is agreed that the lease provides for a lease term cancellations at the January 25, 1980, meeting. At the of 30 days, cancelable by either party, however, on a 5- April 1, 1980, meeting, Wallace accused Respondent of day written notice. canceling the leases to the owner-operators (in view of The parties agreed that in practice, from time to time, not canceling owner-operators leases at other terminals owner-operators have canceled tractor and/or trailer in which Respondent had an interest) to eliminate leases on a 5-day notice for economic reasons, equipment owner-operators at two of Respondent's terminals and to failures and other reasons not particularly specified in the break the Union at DeBolt Transfer Company. Wilmot record; and that Respondent's January 28, 1980, letters of denied this. Elmer Bates and the other owner-operators lease cancellation, although phrased in terms of canceling said that they could not afford to pull company trailers, "aal lease agreements" were directed solely at the cancel- that they were not going to pull company trailers and lation of the trailer leases. Indeed, the parties agree that questioned why other owner-operators at these other i w Respondent's intent to have the owner-opera- divisions" at which Respondent had an interest were al- tors use their own leased tractors to haul trailers which lowed to do it and they were not. When the owner-oper- wr o Respondent." The parties further agree ators asked whether so m e t h ing c o ul d b e w o r k ed out that the cancellations themselves were in accordance other thanthe c a nc e l latio n o f t h eir t r ail er leasesWilmot with the terms of the leases and that motivation for the said that there w as no alte t h c t o cancellation of the leases was solely economic and was Elmer Bates then asked whether a Lakeshore Rider ar- due to the fact that Respondent could not afford the rangement could be provided and asked Wilmot why t e i o s e by thetcolspcndentbaouldniot agrdethe that could not solve the problem. Wilmot replied that it (eGC s Em po s ed 3 a t h e collective-bargaining agreement was up to the Union and not to Respondent. Wallace tGh Cti E x h t 3) cheapr fo t h e cost of leasing trailers; and then said that he was taking the matter to the National the o w as ne-pera f o rhucpondent to operate by having Labor Relations Board. h e owner-operators haul company trailers rather than It is undisputed that DeBolt never filed a request for l eas ed t r a er s. relief under contract procedures. It was also conceded A s a r e su lt o f t he ab o v e cancellations, none of the six that other independent carriers (not members of any mul- owner-operators at Respondent's two terminals has ex- tiemployer bargaining group) like DeBolt had filed re- ec u te d o r agreed to execute a new lease for his tractor quests for relief and some of them have been granted. an d no n e o f t he m h as therefore been scheduled to haul Respondent's witnesses testified that, pursuant to the Jan- merchandise for Respondent since the cancellation. The uary 25 meeting, they did not file for relief under the r esu l t is that none of them have therefore worked for contract procedures because they believed that they had Respondent since the lease cancellations. an agreement with the Union making such request for relief unnecessary in terms of their alleged right to 2. Contention of the parties cancel the trailer leases unilaterally. The General Counsel argues that under Local 24, In- On the other hand, Wallace testified that the Union did ternational Brotherhood of Teamstes Chauffeurs. Ware- not file a grievance under the contract because of Re- housemen and Helpers of America, AFL-CIO, et al. v. spondent's alleged breach of contract (in the unilateral Oliver, et al, 358 U.S. 283 (1959), the wage rates in- act of canceling the leases) because the Union already volved in owner-operator leases are a mandatory subject had three to four grievances on file against Respondent; of bargaining within the meaning of Sections 8(d) and and because the Union considered the filing of griev- 8(aX5) of the Act; that there was an existing collective- ances a waste of time since Respondent has refused to bargaining agreement executed by Respondent and Local abide by agreements settling the grievances. Wilmot, on 800 (G.C. Exh. 3); that while individual cancellation of a the contrary, testified that on January 29, 1980, the par- lease may be a mere contract violation and not a viola- ties settled five to six grievances which were all the out- tion of Section 8(aX5), where, as here, there has been a standing grievances at that time; that there had been no change in the methods of payment (a mandatory subject) complaints from the Union regarding the settlement of on a unitwide basis, a "blanket unilateral cancellation of these grievances; and that there had been no allegation trailer leases," there is an 8(a)(5) and 8(d) violation. Fur- that Respondent has been dragging its feet in executing ther, the General Counsel notes that Respondent took the agreed-upon solutions to the grievances. Indeed, ac- this unilateral action notwithstanding the existence of a cording to Wilmot, there had been no union request for further action under contract procedures notwithstanding t. Thus, the leased tractors would thereafter haul Respondent's trailers, that the Union has been conducting an audit of Respond- not leased trailers. DEBOLT TRANSFER COMPANY 893 ployees and the Local Unions and we will not ent's overall compliance with contributions to the var- forget you. ious fringe benefit funds. Wilmot testified without con- tradiction, however, that this audit was not the result of Very truly yours, any filed grievance by Local 800. Respondent notes that s/s Robert T. Flynn no grievance had been filed over lease cancellation by Robert T. Flynn any of the owner-operators. The leases in question herein, according to the agree- Copies of this letter to Respondent were sent to Locals ment of the parties, relate to tractors and trailers sepa- 249, 261, and 800, as well as to Thomas D. MacMullan, rately. As above noted, the practice is for Respondent to attorney for Respondent. The letter, itself, fails to deny lease both a tractor and a trailer from the owner-opera- the substance of the alleged agreement regarding lease tor. It is agreed that the lease provides for a lease term cancellations at the January 25, 1980, meeting. At the of 30 days, cancelable by either party, however, on a 5- April 1, 1980, meeting, Wallace accused Respondent of day written notice. canceling the leases to the owner-operators (in view of The parties agreed that in practice, from time to time, not canceling owner-operators leases at other terminals owner-operators have canceled tractor and/or trailer in which Respondent had an interest) to eliminate leases on a 5-day notice for economic reasons, equipment owner-operators at two of Respondent's terminals and to failures and other reasons not particularly specified in the break the Union at DeBolt Transfer Company. Wilmot record; and that Respondent's January 28, 1980, letters of denied this. Elmer Bates and the other owner-operators lease cancellation, although phrased in terms of canceling said that they could not afford to pull company trailers, "aal lease agreements" were directed solely at the cancel- that they were not going to pull company trailers and lation of the trailer leases. Indeed, the parties agree that questioned why other owner-operators at these other i w Respondent's intent to have the owner-opera- divisions" at which Respondent had an interest were al- tors use their own leased tractors to haul trailers which lowed to do it and they were not. When the owner-oper- wr o Respondent." The parties further agree ators asked whether so m e t h ing c o ul d b e w o r k ed out that the cancellations themselves were in accordance other thanthe c a nc e l latio n o f t h eir t r ail er leasesWilmot with the terms of the leases and that motivation for the said that there w as no alte t h c t o cancellation of the leases was solely economic and was Elmer Bates then asked whether a Lakeshore Rider ar- due to the fact that Respondent could not afford the rangement could be provided and asked Wilmot why t e i o s e by thetcolspcndentbaouldniot agrdethe that could not solve the problem. Wilmot replied that it (eGC s Em po s ed 3 a t h e collective-bargaining agreement was up to the Union and not to Respondent. Wallace tGh Cti E x h t 3) cheapr fo t h e cost of leasing trailers; and then said that he was taking the matter to the National the o w as ne-pera f o rhucpondent to operate by having Labor Relations Board. h e owner-operators haul company trailers rather than It is undisputed that DeBolt never filed a request for l eas ed triers. relief under contract procedures. It was also conceded A s a r e su lt o f t he ab o v e cancellations, none of the six that other independent carriers (not members of any mul- owner-operators at Respondent's two terminals has ex- tiemployer bargaining group) like DeBolt had filed re- ec u te d o r agreed to execute a new lease for his tractor quests for relief and some of them have been granted. an d no n e o f t he m h as therefore been scheduled to haul Respondent's witnesses testified that, pursuant to the Jan- merchandise for Respondent since the cancellation. The uary 25 meeting, they did not file for relief under the r esu l t is that none of them have therefore worked for contract procedures because they believed that they had Respondent since the lease cancellations. an agreement with the Union making such request for relief unnecessary in terms of their alleged right to 2. Contention of the parties cancel the trailer leases unilaterally. The General Counsel argues that under Local 24, In- On the other hand, Wallace testified that the Union did ternational Brotherhood of Teamstes Chauffeurs. Ware- not file a grievance under the contract because of Re- housemen and Helpers of America, AFL-CIO, et al. v. spondent's alleged breach of contract (in the unilateral Oliver, et al, 358 U.S. 283 (1959), the wage rates in- act of canceling the leases) because the Union already volved in owner-operator leases are a mandatory subject had three to four grievances on file against Respondent; of bargaining within the meaning of Sections 8(d) and and because the Union considered the filing of griev- 8(aX5) of the Act; that there was an existing collective- ances a waste of time since Respondent has refused to bargaining agreement executed by Respondent and Local abide by agreements settling the grievances. Wilmot, on 800 (G.C. Exh. 3); that while individual cancellation of a the contrary, testified that on January 29, 1980, the par- lease may be a mere contract violation and not a viola- ties settled five to six grievances which were all the out- tion of Section 8(aX5), where, as here, there has been a standing grievances at that time; that there had been no change in the methods of payment (a mandatory subject) complaints from the Union regarding the settlement of on a unitwide basis, a "blanket unilateral cancellation of these grievances; and that there had been no allegation trailer leases," there is an 8(a)(5) and 8(d) violation. Fur- that Respondent has been dragging its feet in executing ther, the General Counsel notes that Respondent took the agreed-upon solutions to the grievances. Indeed, ac- this unilateral action notwithstanding the existence of a cording to Wilmot, there had been no union request for further action under contract procedures notwithstanding t. Thus, the leased tractors would thereafter haul Respondent's trailers, that the Union has been conducting an audit of Respond- not leased trailers. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract mechanism (the General Counsel cites art. 2, agreement, which, inter alia, provides for 30-day leases sec. 5 or art. 61, sec. 7) to place its desired economic and their cancellation (G.C. Exh. 3) to prohibit Respond- relief before the competitive review board by way of a ent from unilaterally terminating the leases. grievance system. The dispositive element in this case is that Respondent, Respondent has three arguments: (1) A contract after being refused any adjustment or rate reduction on waiver derived from the fact that the lease agreement leased equipment, unilaterally canceled the underlying itself permits, and the parties had in practice applied, leases. There is no General Counsel contention that Re- cancellation on a 5-day notice which Respondent in fact spondent failed to abide by the notice, or other mechani- gave; and therefore, the parties, including the Union cal requirements of lease cancellation. Rather, the Gener- (through its owner-operators and the lease) have agreed al Counsel argues that the cancellation of the leases under the terms of the contract and the lease, and by themselves, while not a change in pay rates, results in a practice, to the very procedure which Respondent fol- severe impact on owner-operator "wages" and that can- lowed in canceling all the owner-operator leases; and cellation requires good-faith bargaining and not unilateral there is no difference between canceling one lease and all change. I disagree. the leases especially where, as here, the contract pro- The contract (art. 22, sec. 5; art. 55, sec. 6) provides vides for (and specifically defines the limits of) lease can- for and recognizes the use and termination of leased cellation by Respondent, and where there has been no equipment with a 30-day cancellation clause.' 2 The basic proof of subterfuge, and indeed where there has been a contract limitation on the use of owner-operators is the stipulation that Respondent's motivation has been solely prohibition (art. 22, sec. 18) against using any device or economic. (2) Moreover, by virtue of the January 25, "scheme" to " . . . defeat the terms of the Agreement 1980, meeting, even if the collective-bargaining agree- . . . nor shall any owner-operator lease be cancelled for ment and the lease do not provide express written waiv- the purpose of depriving employees of employment ers, then, in any case, Respondent notified, bargained, . .. ." The parties herein stipulated to the contrary: that and received express consent of the Union to waive any cancellation of the leases was purely economically moti- contrary right in the Union not to grant Respondent the vated. There was no argument or even assertion that Re- right to unilaterally cancel the trailer leases. (3) In any spondent's action here would deprive the owner-opera- event, Respondent's conduct does not amount to an tors of employment. At most, the drivers would haul unfair labor practice but merely a breach of contract for company trailers behind trucks which continued subject which the Union's relief should be solely in the Federal to their beneficial leases. In any event, Respondent's courts under Section 301 of the Act for breach of con- leases cancellation can hardly be called a "scheme." tract or for arbitration under the terms of the agreement More important, the terms of article 55, section 18, as within the Collyer deferral doctrine. See Collyer Insulated above noted, forbid that a "lease be cancelled for the Wire, A Gulf and Western Systems Co., 192 NLRB 837 purpose of depriving employees of employment .. ." (1971). and directs complaints thereof to the agreement's griev- ance procedure (art. 44). It is thus plain from this lan- 3. Discussion and conclusions guage that, whatever the Employer's motive, the effect The parties stipulated that Respondent's motivation in of the cancellation or the Union's redress, the Employer canceling the six leases was wholly economic. has the right of cancellation. The grievance procedure is I will assume, arguendo, that lease cancellation and here invoked after cancellation. Thus the employer does lease rates, as part of, or impacting on, wages, Teamsters the canceling and there is no bargaining as a condition v. Oliver, 358 U.S. 283, are mandatory subjects of bar- precedent to canceling. gaining, N.L.R.B. v. Wooster Division of Borg-Warner I therefore hold that, regardless of any January 25, Corporation, 356 U.S. 342, 349-350 (1958)." 1980, agreement at the bargaining table or Flynn's Janu- There is nothing, however, in Teamsters v. Oliver, ary 29, 1980, confirmatory letter to DeBolt, Respondent supra, Wooster Division of Borg-Warner, supra, or the had the right, here, unilaterally, to cancel the trailer General Counsel's citation of Brown & Connolly, Inc., 237 leases (keeping the truck leases); that Respondent did not NLRB 271, 279 (1978), which controls this case. in any way change or attempt to change the contract While it is true that the bargaining on January 25 lease rates thereby;' 3 that the terms of the lease and its 1980, related to Respondent's several requests for eco- cancellation, if impacting on wages or other terms and nomic relief, and while it is also true that the Union may conditions of employment within Section 8(d) of the Act, have refused any change in owner-operator lease or pay were matters already agreed on by the parties; and that rates, including the Lakeshore Rider, except via a special showing of economic need made before the competitive There is no contention that the automatic 30-day renewal clause in review board (art. 61, sec. 7) to change the contract Respondent's lease (O.C. Exh. 2) cancelable on merely 5 days' notice was revw bard (art 6, s. 7) to c e te c t inconsistent with the collective-bargaining agreement. If so, Respondent's rates, there is nothing in the current collective-bargaining lease form was a breach of that agreement. In any event, the matter was neither alleged, litigated, or argued. My right to interpret the terms of " In view of the allegation that Respondent's conduct, in failing to the agreement is limited, of course, to the presence or absence of an schedule for work the owner-operators whose lease were canceled, what- unfair labor practice. N.LR.B. v. C A C Plywood Corporation, 385 U.S. ever Respondent's benign motivation, violated Sec. 8(aX3) of the Act, I 421, 428 (1967). reject Respondent's argument that the matter be deferred to arbitration " There is no dispute that the "Red Book," the collective-bargaining under the collective-bargaining agreement pursuant to Collyer Insulated agreement, requires the employer to pay 75 percent of the gross freight Wire, supra. See General American Transportation Corporation, 228 NLRB invoice as owner-operator wages and, of the retained 25 percent, pay the 808 (1977). driver's health, welfare, and pension benefits. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract mechanism (the General Counsel cites art. 2, agreement, which, inter alia, provides for 30-day leases sec. 5 or art. 61, sec. 7) to place its desired economic and their cancellation (G.C. Exh. 3) to prohibit Respond- relief before the competitive review board by way of a ent from unilaterally terminating the leases. grievance system. The dispositive element in this case is that Respondent, Respondent has three arguments: (1) A contract after being refused any adjustment or rate reduction on waiver derived from the fact that the lease agreement leased equipment, unilaterally canceled the underlying itself permits, and the parties had in practice applied, leases. There is no General Counsel contention that Re- cancellation on a 5-day notice which Respondent in fact spondent failed to abide by the notice, or other mechani- gave; and therefore, the parties, including the Union cal requirements of lease cancellation. Rather, the Gener- (through its owner-operators and the lease) have agreed al Counsel argues that the cancellation of the leases under the terms of the contract and the lease, and by themselves, while not a change in pay rates, results in a practice, to the very procedure which Respondent fol- severe impact on owner-operator "wages" and that can- lowed in canceling all the owner-operator leases; and cellation requires good-faith bargaining and not unilateral there is no difference between canceling one lease and all change. I disagree. the leases especially where, as here, the contract pro- The contract (art. 22, sec. 5; art. 55, sec. 6) provides vides for (and specifically defines the limits of) lease can- for and recognizes the use and termination of leased cellation by Respondent, and where there has been no equipment with a 30-day cancellation clause. 1 The basic proof of subterfuge, and indeed where there has been a contract limitation on the use of owner-operators is the stipulation that Respondent's motivation has been solely prohibition (art. 22, sec. 18) against using any device or economic. (2) Moreover, by virtue of the January 25, "scheme" to " ... defeat the terms of the Agreement 1980, meeting, even if the collective-bargaining agree- . . nor shall any owner-operator lease be cancelled for ment and the lease do not provide express written waiv- the purpose of depriving employees of employment ers, then, in any case, Respondent notified, bargained, . . ." The parties herein stipulated to the contrary: that and received express consent of the Union to waive any cancellation of the leases was purely economically moti- contrary right in the Union not to grant Respondent the vated. There was no argument or even assertion that Re- right to unilaterally cancel the trailer leases. (3) In any spondent's action here would deprive the owner-opera- event, Respondent's conduct does not amount to an tors of employment. At most, the drivers would haul unfair labor practice but merely a breach of contract for company trailers behind trucks which continued subject which the Union's relief should be solely in the Federal to their beneficial leases. In any event, Respondent's courts under Section 301 of the Act for breach of con- leases cancellation can hardly be called a "scheme." tract or for arbitration under the terms of the agreement More important, the terms of article 55, section 18, as within the Collyer deferral doctrine. See Collyer Insulated above noted, forbid that a "lease be cancelled for the Wire, A Gulf and Western Systems Co., 192 NLRB 837 purpose of depriving employees of employment . . . ." (1971). and directs complaints thereof to the agreement's griev- ance procedure (art. 44). It is thus plain from this lan- 3. Discussion and conclusions guage that, whatever the Employer's motive, the effect The parties stipulated that Respondent's motivation in o f th e cancellation or the Union's redress, the Employer canceling the six leases was wholly economic. h a s t h e right of cancellation. The grievance procedure is I will assume, arguendo, that lease cancellation and h e r e invoked after cancellation. Thus the employer does lease rates, as part of, or impacting on, wages, Teamsters t h e canceling and there is no bargaining as a condition v. Oliver, 358 U.S. 283, are mandatory subjects of bar- precedent to canceling. gaining, N.L.R.B. v. Wooster Division of Borg-Warner I therefore hold that, regardless of any January 25, Corporation, 356 U.S. 342, 349-350 (1958)." 19 8 0 , agreement at the bargaining table or Flynn's Janu- There is nothing, however, in Teamsters v. Oliver, arY 2 9, 1 9 80 , confirmatory letter to DeBolt, Respondent supra. Wooster Division of Borg-Warner, supra, or the h a d t h e right, here, unilaterally, to cancel the trailer General Counsel's citation of Brown & Connolly, Inc., 237 le a se s (keeping the truck leases); that Respondent did not NLRB 271, 279 (1978), which controls this case. in any way change or attempt to change the contract While it is true that the bargaining on January 25, le a se r a t e s thereby; 13 that the terms of the lease and its 1980, related to Respondent's several requests for eco- cancellation, if impacting on wages or other terms and nomic relief, and while it is also true that the Union may conditions of employment within Section 8(d) of the Act, have refused any change in owner-operator lease or pay w e r e matters already agreed on by the parties; and that rates, including the Lakeshore Rider, except via a special showing of economic need made before the Competitive There is no contention that the automatic 30ay renewal clause in review board (art, 61, sec. 7) to change the contract Respondent's lease (O.C. Exh. 2) cancelable on merely 5 days' notice was review board (art. 61, sec. 7 1 to change the contract inconsistent with the collective-bargaining agreement. If so, Respondent's rates, there is nothing in the Current collective-bargaining l form was a breach of that agreement. In any event, the matter was neither alleged, litigated, or argued. My right to interpret the terms of " In view of the allegation that Respondent's conduct, in failing to the agreement is limited, of course, to the presence or absence of an schedule for work the owner-operators whose lease were canceled, what- unfair labor practice. N.L.R.B. v. C A C Plywood Corporation, 385 U.S. ever Respondent's benign motivation, violated Sec. 8(aX3) of the Act, 1 421, 428 (1967). reject Respondent's argument that the matter be deferred to arbitration " There is no dispute that the "Red Book," the collective-bargaining under the collective-bargaining agreement pursuant to Collyer Insulated agreement, requires the employer to pay 75 percent of the gross freight Wire, supra. See General American Transportation Corporation, 228 NLRB invoice as owner-operator wages and, of the retained 25 percent, pay the 808 (1977). driver's health, welfare, and pension benefits. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract mechanism (the General Counsel cites art. 2, agreement, which, inter alia, provides for 30-day leases sec. 5 or art. 61, sec. 7) to place its desired economic and their cancellation (G.C. Exh. 3) to prohibit Respond- relief before the competitive review board by way of a ent from unilaterally terminating the leases. grievance system. The dispositive element in this case is that Respondent, Respondent has three arguments: (1) A contract after being refused any adjustment or rate reduction on waiver derived from the fact that the lease agreement leased equipment, unilaterally canceled the underlying itself permits, and the parties had in practice applied, leases. There is no General Counsel contention that Re- cancellation on a 5-day notice which Respondent in fact spondent failed to abide by the notice, or other mechani- gave; and therefore, the parties, including the Union cal requirements of lease cancellation. Rather, the Gener- (through its owner-operators and the lease) have agreed al Counsel argues that the cancellation of the leases under the terms of the contract and the lease, and by themselves, while not a change in pay rates, results in a practice, to the very procedure which Respondent fol- severe impact on owner-operator "wages" and that can- lowed in canceling all the owner-operator leases; and cellation requires good-faith bargaining and not unilateral there is no difference between canceling one lease and all change. I disagree. the leases especially where, as here, the contract pro- The contract (art. 22, sec. 5; art. 55, sec. 6) provides vides for (and specifically defines the limits of) lease can- for and recognizes the use and termination of leased cellation by Respondent, and where there has been no equipment with a 30-day cancellation clause. 1 The basic proof of subterfuge, and indeed where there has been a contract limitation on the use of owner-operators is the stipulation that Respondent's motivation has been solely prohibition (art. 22, sec. 18) against using any device or economic. (2) Moreover, by virtue of the January 25, "scheme" to " ... defeat the terms of the Agreement 1980, meeting, even if the collective-bargaining agree- . . nor shall any owner-operator lease be cancelled for ment and the lease do not provide express written waiv- the purpose of depriving employees of employment ers, then, in any case, Respondent notified, bargained, . . ." The parties herein stipulated to the contrary: that and received express consent of the Union to waive any cancellation of the leases was purely economically moti- contrary right in the Union not to grant Respondent the vated. There was no argument or even assertion that Re- right to unilaterally cancel the trailer leases. (3) In any spondent's action here would deprive the owner-opera- event, Respondent's conduct does not amount to an tors of employment. At most, the drivers would haul unfair labor practice but merely a breach of contract for company trailers behind trucks which continued subject which the Union's relief should be solely in the Federal to their beneficial leases. In any event, Respondent's courts under Section 301 of the Act for breach of con- leases cancellation can hardly be called a "scheme." tract or for arbitration under the terms of the agreement More important, the terms of article 55, section 18, as within the Collyer deferral doctrine. See Collyer Insulated above noted, forbid that a "lease be cancelled for the Wire, A Gulf and Western Systems Co., 192 NLRB 837 purpose of depriving employees of employment . . . ." (1971). and directs complaints thereof to the agreement's griev- ance procedure (art. 44). It is thus plain from this lan- 3. Discussion and conclusions guage that, whatever the Employer's motive, the effect The parties stipulated that Respondent's motivation in of the cancellation or the Union's redress, the Employer canceling the six leases was wholly economic. h a s t h e right of cancellation. The grievance procedure is I will assume, arguendo, that lease cancellation and h e r e invoked after cancellation. Thus the employer does lease rates, as part of, or impacting on, wages, Teamsters t h e canceling and there is no bargaining as a condition v. Oliver, 358 U.S. 283, are mandatory subjects of bar- precedent to canceling. gaining, N.L.R.B. v. Wooster Division of Borg-Warner I therefore hold that, regardless of any January 25, Corporation, 356 U.S. 342, 349-350 (1958)." 19 8 0 , agreement at the bargaining table or Flynn's Janu- There is nothing, however, in Teamsters v. Oliver, arY 2 9, 1 9 80 , confirmatory letter to DeBolt, Respondent supra. Wooster Division of Borg-Warner, supra, or the h a d t h e right, h e r e , unilaterally, to cancel the trailer General Counsel's citation of Brown & Connolly, Inc., 237 le a se s (keeping the truck leases); that Respondent did not NLRB 271, 279 (1978), which controls this case. in any way change or attempt to change the contract While it is true that the bargaining on January 25, le a se r a t e s thereby;' 3 that the terms of the lease and its 1980, related to Respondent's several requests for eco- cancellation, if impacting on wages or other terms and nomic relief, and while it is also true that the Union may conditions of employment within Section 8(d) of the Act, have refused any change in owner-operator lease or pay w e r e matters already agreed on by the parties; and that rates, including the Lakeshore Rider, except via a special showing of economic need made before the Competitive There is no contention that the automatic 30ay renewal clause in review board (art, 61, sec. 7) to change the contract Respondent's lease (O.C. Exh. 2) cancelable on merely 5 days' notice was review board (art. 61, sec. 7 1 to change the contract inconsistent with the collective-bargaining agreement. If so, Respondent's rates, there is nothing in the Current collective-bargaining l form was a breach of that agreement. In any event, the matter was neither alleged, litigated, or argued. My right to interpret the terms of " In view of the allegation that Respondent's conduct, in failing to the agreement is limited, of course, to the presence or absence of an schedule for work the owner-operators whose lease were canceled, what- unfair labor practice. N.L.R.B. v. C A C Plywood Corporation, 385 U.S. ever Respondent's benign motivation, violated Sec. 8(aX3) of the Act, 1 421, 428 (1967). reject Respondent's argument that the matter be deferred to arbitration " There is no dispute that the "Red Book," the collective-bargaining under the collective-bargaining agreement pursuant to Collyer Insulated agreement, requires the employer to pay 75 percent of the gross freight Wire, supra. See General American Transportation Corporation, 228 NLRB invoice as owner-operator wages and, of the retained 25 percent, pay the 808 (1977). driver's health, welfare, and pension benefits. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract mechanism (the General Counsel cites art. 2, agreement, which, inter alia, provides for 30-day leases sec. 5 or art. 61, sec. 7) to place its desired economic and their cancellation (G.C. Exh. 3) to prohibit Respond- relief before the competitive review board by way of a ent from unilaterally terminating the leases. grievance system. The dispositive element in this case is that Respondent, Respondent has three arguments: (1) A contract after being refused any adjustment or rate reduction on waiver derived from the fact that the lease agreement leased equipment, unilaterally canceled the underlying itself permits, and the parties had in practice applied, leases. There is no General Counsel contention that Re- cancellation on a 5-day notice which Respondent in fact spondent failed to abide by the notice, or other mechani- gave; and therefore, the parties, including the Union cal requirements of lease cancellation. Rather, the Gener- (through its owner-operators and the lease) have agreed al Counsel argues that the cancellation of the leases under the terms of the contract and the lease, and by themselves, while not a change in pay rates, results in a practice, to the very procedure which Respondent fol- severe impact on owner-operator "wages" and that can- lowed in canceling all the owner-operator leases; and cellation requires good-faith bargaining and not unilateral there is no difference between canceling one lease and all change. I disagree. the leases especially where, as here, the contract pro- The contract (art. 22, sec. 5; art. 55, sec. 6) provides vides for (and specifically defines the limits of) lease can- for and recognizes the use and termination of leased cellation by Respondent, and where there has been no equipment with a 30-day cancellation clause. 1 The basic proof of subterfuge, and indeed where there has been a contract limitation on the use of owner-operators is the stipulation that Respondent's motivation has been solely prohibition (art. 22, sec. 18) against using any device or economic. (2) Moreover, by virtue of the January 25, "scheme" to " ... defeat the terms of the Agreement 1980, meeting, even if the collective-bargaining agree- . . nor shall any owner-operator lease be cancelled for ment and the lease do not provide express written waiv- the purpose of depriving employees of employment ers, then, in any case, Respondent notified, bargained, . . ." The parties herein stipulated to the contrary: that and received express consent of the Union to waive any cancellation of the leases was purely economically moti- contrary right in the Union not to grant Respondent the vated. There was no argument or even assertion that Re- right to unilaterally cancel the trailer leases. (3) In any spondent's action here would deprive the owner-opera- event, Respondent's conduct does not amount to an tors of employment. At most, the drivers would haul unfair labor practice but merely a breach of contract for company trailers behind trucks which continued subject which the Union's relief should be solely in the Federal to their beneficial leases. In any event, Respondent's courts under Section 301 of the Act for breach of con- leases cancellation can hardly be called a "scheme." tract or for arbitration under the terms of the agreement More important, the terms of article 55, section 18, as within the Collyer deferral doctrine. See Collyer Insulated above noted, forbid that a "lease be cancelled for the Wire, A Gulf and Western Systems Co., 192 NLRB 837 purpose of depriving employees of employment . . . ." (1971). and directs complaints thereof to the agreement's griev- ance procedure (art. 44). It is thus plain from this lan- 3. Discussion and conclusions guage that, whatever the Employer's motive, the effect The parties stipulated that Respondent's motivation in of the cancellation or the Union's redress, the Employer canceling the six leases was wholly economic. h a s t h e right of cancellation. The grievance procedure is I will assume, arguendo, that lease cancellation and h e r e invoked after cancellation. Thus the employer does lease rates, as part of, or impacting on, wages, Teamsters t h e canceling and there is no bargaining as a condition v. Oliver, 358 U.S. 283, are mandatory subjects of bar- precedent to canceling. gaining, N.L.R.B. v. Wooster Division of Borg-Warner I therefore hold that, regardless of any January 25, Corporation, 356 U.S. 342, 349-350 (1958)." 19 8 0 , agreement at the bargaining table or Flynn's Janu- There is nothing, however, in Teamsters v. Oliver, arY 2 9, 1 9 80 , confirmatory letter to DeBolt, Respondent supra. Wooster Division of Borg-Warner, supra, or the h a d t h e right, h e r e , unilaterally, to cancel the trailer General Counsel's citation of Brown & Connolly, Inc., 237 le a se s (keeping the truck leases); that Respondent did not NLRB 271, 279 (1978), which controls this case. in any way change or attempt to change the contract While it is true that the bargaining on January 25, le a se r a t e s thereby; 13 that the terms of the lease and its 1980, related to Respondent's several requests for eco- cancellation, if impacting on wages or other terms and nomic relief, and while it is also true that the Union may conditions of employment within Section 8(d) of the Act, have refused any change in owner-operator lease or pay w e r e matters already agreed on by the parties; and that rates, including the Lakeshore Rider, except via a special showing of economic need made before the Competitive There is no contention that the automatic 30ay renewal clause in review board (art, 61, sec. 7) to change the contract Respondent's lease (O.C. Exh. 2) cancelable on merely 5 days' notice was review board (art. 61, sec. 7 1 to change the contract inconsistent with the collective-bargaining agreement. If so, Respondent's rates, there is nothing in the Current collective-bargaining l form was a breach of that agreement. In any event, the matter was neither alleged, litigated, or argued. My right to interpret the terms of " In view of the allegation that Respondent's conduct, in failing to the agreement is limited, of course, to the presence or absence of an schedule for work the owner-operators whose lease were canceled, what- unfair labor practice. N.L.R.B. v. C A C Plywood Corporation, 385 U.S. ever Respondent's benign motivation, violated Sec. 8(aX3) of the Act, 1 421, 428 (1967). reject Respondent's argument that the matter be deferred to arbitration " There is no dispute that the "Red Book," the collective-bargaining under the collective-bargaining agreement pursuant to Collyer Insulated agreement, requires the employer to pay 75 percent of the gross freight Wire, supra. See General American Transportation Corporation, 228 NLRB invoice as owner-operator wages and, of the retained 25 percent, pay the 808 (1977). driver's health, welfare, and pension benefits. DEBOLT TRANSFER COMPANY 895 Respondent's January 28 cancellation of the six leases In any event, while the credibility issue legally thus herein was in accord with the Red Book where, as here, need not be reached, yet in view of the evidence that there is no assertion of an attempt to change the lease Wallace, 10 feet from DeBolt and Flynn, may not have rates (clearly a matter for the competitive review board), heard their entire conversation; the Union's failure to a discriminatory purpose in the cancellations or an at- submit other witnesses to the January 25 bargaining ses- tempt at some sort of subterfuge. sion to support Wallace's testimony, especially the ab- The General Counsel's principal argument seems to sence of Flynn and his notetaker; Wallace's failure to be derive from dictum in Brown d Connolly Inc., supra, 237 called in rebuttal to deny DeBolt's testimony regarding a NLRB 271, 279, wherein it was asserted that while a uni- conversation with Wallace himself (" . . . your guys are lateral, individual change from contract requirements in not going to like this at all .. ." to which Wallace alleg- an employer's sick leave obligation is a mere breach con- edly responded: "That's tough"); the presence of Flynn's tract, a mass unitwide unilateral change in the sick leave unexplained January 29, 1980, letter which is consistent obligation would violate Section 8(a)(5). In the present with DeBolt's testimony (that Flynn gave him permis- case, Respondent is not unilaterally changing a contract sion to cancel the leases), I would credit DeBolt and dis- term or the terms (rates) of the leasing; it is merely can- credit Wallace's contrary testimony regarding what celing the lease because of economic reasons; a contin- Flynn authorized to DeBolt at the January 25 bargaining gency expressly provided for in the contract. The Gener- session. 1 I conclude, therefore, that Flynn, in the alter- al Counsel, again, does not urge that the lease was incon- native, waived any union objection to unilateral cancella- sistent with contract provisions or cancelled other than tion. under its terms. In the Brown & Connolly, dictum, the It is recommended, therefore, that the complaint alle- contract terms under which sick leave could be taken gations of 8(a)(5) violations be dismissed. 16 Similarly, the were at issue; here, Respondent was unilaterally termi- refusal of Respondent to schedule for work the six nating an agreement sponsored by and consistent with owner-operators who refused to haul Respondent's trail- the collective agreement, but not changing any contract ers derives from neither an unlawful cancellation of their term. The contract, of course, does not require notice or trailer leases nor any other alleged or proven discrimina- bargaining on lease cancellation; it merely provides a tory motive. It is their own refusal to haul company minimum cancellation period. The fact that such cancel- trailers that causes their idleness. I further recommend lation has an impact on the owner-operator's income that the allegations alleging Respondent's discriminatory may be true. But that was part of the existing bargain failure under Section 8(a)(3) of the Act to schedule the agreed to by the Union. owner-operators be dismissed. Nothing in Local 24, Teamsters Union v. Oliver, supra, 358 U.S. 283, is to the contrary. As above, assuming, ar- CONCLUSIONS OF LAW guendo, that that case implies that the instant lease is a mandatory subject of bargaining, N.L.R.B. v. Wooster Di- 1. DeBolt Transfer Company, Respondent herein, is an vision of Borg-Warner Corporation, the matter has been employer within the meaning of Section 2(2), (6), and (7) thoroughly bargained about and the fruit of such bar- of the Act- gaining is the actual lease (G.C. Exh. 2). Thus, the result 2. The Union is a labor organization within the mean- of the actual bargain permits Respondent to act under ing of Section 2(5) of the Act. the terms of the lease which, I have noted, is not alleged 3. A preponderance of the credible evidence fails to to be inconsistent with the underlying collective-bargain- establish that Respondent has violated Section 8(a)(5) or ing agreement, either by lease terms or motivation in the (3) of the Act, as alleged. cancellation. If, as the General Counsel urges (Br. p. 6): it Query: If such an obligation devolves on Respondent here, would its owner-operators, contrary to current practice and mutual understanding, be barred hereafter from unilaterally canceling their leases with Respond- . . . the cancellation of trailer leases becomes a ent, even under the terms thereof, if Respondent objects, only if the mandatory subject of bargaining under Oliver be- Union first bargains to impasse with Respondent and then submits to the cause the lease cancellation necessarily affects the competitive review board (which apparently deals only with hardship amount of compensation received by the owner-op- rates under art. 61) or, more appropriately, the grievance committee under art. 44, 45? erators ..... 1 Since Respondent's lease cancellation is not inconsistent with the collective-bargaining agreement, there is no question of prohibiting re- That result was bargained out by the parties by virtue of course to DeBolt's and Flynn's testimony under the parole evidence rule. the Union recognizing-indeed, providing, in the con- Even if it were inconsistent, however, I observe that Flynn's January 29, tract for-the termination of the lease. Moreover, the 1980, letter, written afler the execution of the January 25 collective-bar- gaining agreement removes the bargaining conversations from the oper- evidence, undenied, shows that the actual practice is for ation of the rule; and cf. Richmond Homes Inc.. 245 NLRB 1205 (1979). either party to cancel the 30-day lease on a 5-day notice. " Again, if Respondent sought to change contract rates of leased To imply a lease cancellation bargaining obligation on equipment, then, as the General Counsel argues, Respondent must come Respondent 4 would be to change the bargain struck by before the competitive review board (art. 6, sec. 7) to plead special cir- cumstances. Here, since I hold the lease cancellation has been bargained the parties. over, resulting in a contract-approved lease and cancellation, the fact that cancellation has an impact on and adversely affects owner-operator wages (G.C. Br., p. 6) is a risk bargained over and resolved by the owner-operators' collective-bargaining representative. The economic result, foreseen in the collective-bargaining agreement, including unilater- al risks of termination, must be borne by the parties. DEBOLT TRANSFER COMPANY 895 Respondent's January 28 cancellation of the six leases In any event, while the credibility issue legally thus herein was in accord with the Red Book where, as here, need not be reached, yet in view of the evidence that there is no assertion of an attempt to change the lease Wallace, 10 feet from DeBolt and Flynn, may not have rates (clearly a matter for the competitive review board), heard their entire conversation; the Union's failure to a discriminatory purpose in the cancellations or an at- submit other witnesses to the January 25 bargaining ses- tempt at some sort of subterfuge. sion to support Wallace's testimony, especially the ab- The General Counsel's principal argument seems to sence of Flynn and his notetaker; Wallace's failure to be derive from dictum in Brown d Connolly Inc., supra, 237 called in rebuttal to deny DeBolt's testimony regarding a NLRB 271, 279, wherein it was asserted that while a uni- conversation with Wallace himself (" . . . your guys are lateral, individual change from contract requirements in not going to like this at all . . ." to which Wallace alleg- an employer's sick leave obligation is a mere breach con- edly responded: "That's tough"); the presence of Flynn's tract, a mass unitwide unilateral change in the sick leave unexplained January 29, 1980, letter which is consistent obligation would violate Section 8(a)(5). In the present with DeBolt's testimony (that Flynn gave him permis- case, Respondent is not unilaterally changing a contract sion to cancel the leases), I would credit DeBolt and dis- term or the terms (rates) of the leasing; it is merely can- credit Wallace's contrary testimony regarding what celing the lease because of economic reasons; a contin- Flynn authorized to DeBolt at the January 25 bargaining gency expressly provided for in the contract. The Gener- session." 5 I conclude, therefore, that Flynn, in the alter- al Counsel, again, does not urge that the lease was incon- native, waived any union objection to unilateral cancella- sistent with contract provisions or cancelled other than tion. under its terms. In the Brown d Connolly, dictum, the It is recommended, therefore, that the complaint alle- contract terms under which sick leave could be taken gations of 8(a)(5) violations be dismissed. 16 Similarly, the were at issue; here, Respondent was unilaterally termi- refusal of Respondent to schedule for work the six nating an agreement sponsored by and consistent with owner-operators who refused to haul Respondent's trail- the collective agreement, but not changing any contract ers derives from neither an unlawful cancellation of their term. The contract, of course, does not require notice or trailer leases nor any other alleged or proven discrimina- bargaining on lease cancellation; it merely provides a tory motive. It is their own refusal to haul company minimum cancellation period. The fact that such cancel- trailers that causes their idleness. I further recommend lation has an impact on the owner-operator's income that the allegations alleging Respondent's discriminatory may be true. But that was part of the existing bargain failure under Section 8(a)(3) of the Act to schedule the agreed to by the Union. owner-operators be dismissed. Nothing in Local 24, Teamsters Union v. Oliver, supra, 358 U.S. 283, is to the contrary. As above, assuming, ar- CONCLUSIONS OF LAW guendo, that that case implies that the instant lease is a mandatory subject of bargaining, N.L.R.B. v. Wooster Di- 1. D e B o lt Transfer Company, Respondent herein, is an vision of Borg-Warner Corporation, the matter has been employer within the meaning of Section 2(2), (6), and (7) thoroughly bargained about and the fruit of such bar- Of the A c t. gaining is the actual lease (G.C. Exh. 2). Thus, the result 2. The Union is a labor organization within the mean- of the actual bargain permits Respondent to act under ing o f Section 2(5) of the Act. the terms of the lease which, I have noted, is not alleged 3. A preponderance of the credible evidence fails to to be inconsistent with the underlying collective-bargain- establish that Respondent has violated Section 8(a)(5) or ing agreement, either by lease terms or motivation in the (3) of the Act, as alleged. cancellation. If, as the General Counsel urges (Br. p. 6): 1" Query: I f such an obligation devolves on Respondent here, would its owner-operators, contrary to current practice and mutual understanding, be barred hereafter from unilaterally canceling their leases with Respond- ... the cancellation of trailer leases becomes a ent, even under the terms thereof, if Respondent objects, only if the mandatory subject of bargaining under Oliver be- Union first bargains to impasse with Respondent and then submits to the cause the lease cancellation necessarily affects the competitive review board (which apparently deals only with hardship amount of compensation received by the owner-op- rates under art. 6 1) or, m ore appropriately, the grievace committee under art. 44, 457 erators .... i Since Respondent's lease cancellation is not inconsistent with the collective-bargaining agreement, there is no question of prohibiting re- That result was bargained out by the parties by virtue of course to DeBolt's and Flynn's testimony under the parole evidence rule. the Union recognizing-indeed, providing, in the con- Even if it were inconsistent, however, I observe that Flynn's January 29, tract for-the termination Of the lease. Moreover, the 1980, letter, written ajjer the execution of the January 25 collective-bar- gaining agreement removes the bargaining conversations from the opcr- evidence, undenied, shows that the actual practice is for ation of the rule; and cf. Richmond Homes Inc.. 24 NLRB 1205 (1979). either party to cancel the 30-day lease on a 5-day notice. 1 Again, if Respondent sought to change contract rates of leased To imply a lease cancellation bargaining obligation on equipment, then, as the General Counsel argues. Respondent must come Respondent" would be to change the bargain struck by befo re th e competitive review board (art. 6, sec. 7) to plead special cir- cumstances. Here, since I hold the lease cancellation has been bargained the parties. over, resulting in a contract-approved lease and cancellation, the fact that cancellation has an impact on and adversely affects owner-operator wages (G.C. Br., p. 6) is a risk bargained over and resolved by the owner-operators' collective-bargaining representative. The economic result, foreseen in the collective-bargaining agreement, including unilater- al risks of termination, must be borne by the parties. DEBOLT TRANSFER COMPANY 895 Respondent's January 28 cancellation of the six leases In any event, while the credibility issue legally thus herein was in accord with the Red Book where, as here, need not be reached, yet in view of the evidence that there is no assertion of an attempt to change the lease Wallace, 10 feet from DeBolt and Flynn, may not have rates (clearly a matter for the competitive review board), heard their entire conversation; the Union's failure to a discriminatory purpose in the cancellations or an at- submit other witnesses to the January 25 bargaining ses- tempt at some sort of subterfuge. sion to support Wallace's testimony, especially the ab- The General Counsel's principal argument seems to sence of Flynn and his notetaker; Wallace's failure to be derive from dictum in Brown d Connolly Inc., supra, 237 called in rebuttal to deny DeBolt's testimony regarding a NLRB 271, 279, wherein it was asserted that while a uni- conversation with Wallace himself (" . . . your guys are lateral, individual change from contract requirements in not going to like this at all . . ." to which Wallace alleg- an employer's sick leave obligation is a mere breach con- edly responded: "That's tough"); the presence of Flynn's tract, a mass unitwide unilateral change in the sick leave unexplained January 29, 1980, letter which is consistent obligation would violate Section 8(a)(5). In the present with DeBolt's testimony (that Flynn gave him permis- case, Respondent is not unilaterally changing a contract sion to cancel the leases), I would credit DeBolt and dis- term or the terms (rates) of the leasing; it is merely can- credit Wallace's contrary testimony regarding what celing the lease because of economic reasons; a contin- Flynn authorized to DeBolt at the January 25 bargaining gency expressly provided for in the contract. The Gener- session.'" I conclude, therefore, that Flynn, in the alter- al Counsel, again, does not urge that the lease was incon- native, waived any union objection to unilateral cancella- sistent with contract provisions or cancelled other than tion. under its terms. In the Brown d Connolly, dictum, the It is recommended, therefore, that the complaint alle- contract terms under which sick leave could be taken gations of 8(a)(5) violations be dismissed. 16 Similarly, the were at issue; here, Respondent was unilaterally termi- refusal of Respondent to schedule for work the six nating an agreement sponsored by and consistent with owner-operators who refused to haul Respondent's trail- the collective agreement, but not changing any contract ers derives from neither an unlawful cancellation of their term. The contract, of course, does not require notice or trailer leases nor any other alleged or proven discrimina- bargaining on lease cancellation; it merely provides a tory motive. It is their own refusal to haul company minimum cancellation period. The fact that such cancel- trailers that causes their idleness. I further recommend lation has an impact on the owner-operator's income that the allegations alleging Respondent's discriminatory may be true. But that was part of the existing bargain failure under Section 8(a)(3) of the Act to schedule the agreed to by the Union. owner-operators be dismissed. Nothing in Local 24, Teamsters Union v. Oliver, supra, 358 U.S. 283, is to the contrary. As above, assuming, ar- CONCLUSIONS OF LAW guendo, that that case implies that the instant lease is a mandatory subject of bargaining, N.L.R.B. v. Wooster Di- 1. D e B o lt Transfer Company, Respondent herein, is an vision of Borg-Warner Corporation, the matter has been employer within the meaning of Section 2(2), (6), and (7) thoroughly bargained about and the fruit of such bar- Of the A c t. gaining is the actual lease (G.C. Exh. 2). Thus, the result 2. The Union is a labor organization within the mean- of the actual bargain permits Respondent to act under ing o f Section 2(5) of the Act. the terms of the lease which, I have noted, is not alleged 3. A preponderance of the credible evidence fails to to be inconsistent with the underlying collective-bargain- establish that Respondent has violated Section 8(a)(5) or ing agreement, either by lease terms or motivation in the (3) of the Act, as alleged. cancellation. If, as the General Counsel urges (Br. p. 6): 1" Query: I f such an obligation devolves on Respondent here, would its owner-operators, contrary to current practice and mutual understanding, be barred hereafter from unilaterally canceling their leases with Respond- ... the cancellation of trailer leases becomes a ent, even under the terms thereof, if Respondent objects, only if the mandatory subject of bargaining under Oliver be- Union first bargains to impasse with Respondent and then submits to the cause the lease cancellation necessarily affects the competitive review board (which apparently deals only with hardship amount of compensation received by the owner-op- rates under art. 6 1) or, m ore appropriately, the grievace committee under art. 44, 457 erators .... is Since Respondent's lease cancellation is not inconsistent with the collective-bargaining agreement, there is no question of prohibiting re- That result was bargained out by the parties by virtue of course to DeBolt's and Flynn's testimony under the parole evidence rule. the Union recognizing-indeed, providing, in the con- Even if it were inconsistent, however, I observe that Flynn's January 29, tract for-the termination Of the lease. Moreover, the 1980, letter, written ajjer the execution of the January 25 collective-bar- gaining agreement removes the bargaining conversations from the opcr- evidence, undenied, shows that the actual practice is for ation of the rule; and cf. Richmond Homes Inc.. 24 NLRB 1205 (1979). either party to cancel the 30-day lease on a 5-day notice. 1 Again, if Respondent sought to change contract rates of leased To imply a lease cancellation bargaining obligation on equipment, then, as the General Counsel argues. Respondent must come Respondent" would be to change the bargain struck by befo re th e competitive review board (art. 6, sec. 7) to plead special cir- cumstances. Here, since I hold the lease cancellation has been bargained the parties. over, resulting in a contract-approved lease and cancellation, the fact that cancellation has an impact on and adversely affects owner-operator wages (G.C. Br., p. 6) is a risk bargained over and resolved by the owner-operators' collective-bargaining representative. The economic result, foreseen in the collective-bargaining agreement, including unilater- al risks of termination, must be borne by the parties. DEBOLT TRANSFER COMPANY 895 Respondent's January 28 cancellation of the six leases In any event, while the credibility issue legally thus herein was in accord with the Red Book where, as here, need not be reached, yet in view of the evidence that there is no assertion of an attempt to change the lease Wallace, 10 feet from DeBolt and Flynn, may not have rates (clearly a matter for the competitive review board), heard their entire conversation; the Union's failure to a discriminatory purpose in the cancellations or an at- submit other witnesses to the January 25 bargaining ses- tempt at some sort of subterfuge. sion to support Wallace's testimony, especially the ab- The General Counsel's principal argument seems to sence of Flynn and his notetaker; Wallace's failure to be derive from dictum in Brown d Connolly Inc., supra, 237 called in rebuttal to deny DeBolt's testimony regarding a NLRB 271, 279, wherein it was asserted that while a uni- conversation with Wallace himself (" . . . your guys are lateral, individual change from contract requirements in not going to like this at all . . ." to which Wallace alleg- an employer's sick leave obligation is a mere breach con- edly responded: "That's tough"); the presence of Flynn's tract, a mass unitwide unilateral change in the sick leave unexplained January 29, 1980, letter which is consistent obligation would violate Section 8(a)(5). In the present with DeBolt's testimony (that Flynn gave him permis- case, Respondent is not unilaterally changing a contract sion to cancel the leases), I would credit DeBolt and dis- term or the terms (rates) of the leasing; it is merely can- credit Wallace's contrary testimony regarding what celing the lease because of economic reasons; a contin- Flynn authorized to DeBolt at the January 25 bargaining gency expressly provided for in the contract. The Gener- session." 5 I conclude, therefore, that Flynn, in the alter- al Counsel, again, does not urge that the lease was incon- native, waived any union objection to unilateral cancella- sistent with contract provisions or cancelled other than tion. under its terms. In the Brown d Connolly, dictum, the It is recommended, therefore, that the complaint alle- contract terms under which sick leave could be taken gations of 8(a)(5) violations be dismissed. 16 Similarly, the were at issue; here, Respondent was unilaterally termi- refusal of Respondent to schedule for work the six nating an agreement sponsored by and consistent with owner-operators who refused to haul Respondent's trail- the collective agreement, but not changing any contract ers derives from neither an unlawful cancellation of their term. The contract, of course, does not require notice or trailer leases nor any other alleged or proven discrimina- bargaining on lease cancellation; it merely provides a tory motive. It is their own refusal to haul company minimum cancellation period. The fact that such cancel- trailers that causes their idleness. I further recommend lation has an impact on the owner-operator's income that the allegations alleging Respondent's discriminatory may be true. But that was part of the existing bargain failure under Section 8(a)(3) of the Act to schedule the agreed to by the Union. owner-operators be dismissed. Nothing in Local 24, Teamsters Union v. Oliver, supra, 358 U.S. 283, is to the contrary. As above, assuming, ar- CONCLUSIONS OF LAW guendo, that that case implies that the instant lease is a mandatory subject of bargaining, N.L.R.B. v. Wooster Di- 1. D e B o lt Transfer Company, Respondent herein, is an vision of Borg-Warner Corporation, the matter has been employer within the meaning of Section 2(2), (6), and (7) thoroughly bargained about and the fruit of such bar- Of the A c t. gaining is the actual lease (G.C. Exh. 2). Thus, the result 2. The Union is a labor organization within the mean- of the actual bargain permits Respondent to act under ing o f Section 2(5) of the Act. the terms of the lease which, I have noted, is not alleged 3. A preponderance of the credible evidence fails to to be inconsistent with the underlying collective-bargain- establish that Respondent has violated Section 8(a)(5) or ing agreement, either by lease terms or motivation in the (3) of the Act, as alleged. cancellation. If, as the General Counsel urges (Br. p. 6): 1" Query: I f such an obligation devolves on Respondent here, would its owner-operators, contrary to current practice and mutual understanding, be barred hereafter from unilaterally canceling their leases with Respond- ... the cancellation of trailer leases becomes a ent, even under the terms thereof, if Respondent objects, only if the mandatory subject of bargaining under Oliver be- Union first bargains to impasse with Respondent and then submits to the cause the lease cancellation necessarily affects the competitive review board (which apparently deals only with hardship amount of compensation received by the owner-op- rates under art. 6 1) or, m ore appropriately, the grievace committee under art. 44, 457 erators .... is Since Respondent's lease cancellation is not inconsistent with the collective-bargaining agreement, there is no question of prohibiting re- That result was bargained out by the parties by virtue of course to DeBolt's and Flynn's testimony under the parole evidence rule. the Union recognizing-indeed, providing, in the con- Even if it were inconsistent, however, I observe that Flynn's January 29, tract for-the termination of the lease. Moreover, the 1980, letter, written ay}er the execution of the January 25 collective-bar- gaining agreement removes the bargaining conversations from the opcr- evidence, undenied, shows that the actual practice is for ation of the rule; and cf. Richmond Homes Inc.. 24 NLRB 1205 (1979). either party to cancel the 30-day lease on a 5-day notice. 1 Again, if Respondent sought to change contract rates of leased To imply a lease cancellation bargaining obligation on equipment, then, as the General Counsel argues. Respondent must come Respondent" would be to change the bargain struck by befo re th e competitive review board (art. 6, sec. 7) to plead special cir- cumstances. Here, since I hold the lease cancellation has been bargained the parties. over, resulting in a contract-approved lease and cancellation, the fact that cancellation has an impact on and adversely affects owner-operator wages (G.C. Br., p. 6) is a risk bargained over and resolved by the owner-operators' collective-bargaining representative. The economic result, foreseen in the collective-bargaining agreement, including unilater- al risks of termination, must be borne by the parties. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, conclusions of ORDER ? 1 law, and the entire record, and pursuant to Section 10(c) It is recommended that the complaint be dismissed in of the Act, I hereby issue the following recommended: its entirety. "In the event no exceptions are filed as provided by Sec. 10246 of in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and the Rules and Regulations of the National Labor Relations Board, the become its findings, conclusions, and Order, and all objections thereto findings, conclusions, and recommended Order herein shall, as provided shall be deemed wived for all purposes. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, conclusions of ORDER"' law, and the entire record, and pursuant to Section 10(c) It is recommended that the complaint be dismissed in of the Act, I hereby issue the following recommended: its entirety. " In the event no exceptions are filed a, provided by Sec. 102.46 of in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and the Rules and Regulations of the National Labor Relations Board, the become its fmdings, conclusions, and Order, and all objections thereto findings, conclusions, and recommended Order herein shall, as provided shall be deemed waived for all purposes. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, conclusions of ORDER"' law, and the entire record, and pursuant to Section 10(c) It is recommended that the complaint be dismissed in of the Act, I hereby issue the following recommended: its entirety. " In the event no exceptions are filed a, provided by Sec. 102.46 of in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and the Rules and Regulation, of the National Labor Relations Board, the become its fidings, conclusions, and Order, and all objections thereto findings, conclusions, and recommended Order herein shall, as provided shall be deemed waived for all purposes. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the foregoing findings of fact, conclusions of ORDER"' law, and the entire record, and pursuant to Section 10(c) It is recommended that the complaint be dismissed in of the Act, I hereby issue the following recommended: its entirety. " In the event no exceptions are filed a, provided by Sec. 102.46 of in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and the Rules and Regulations of the National Labor Relations Board, the become its fmdings, conclusions, and Order, and all objections thereto findings, conclusions, and recommended Order herein shall, as provided shall be deemed waived for all purposes.