Greenleaf Motor Express, Inc. And Ashtabula Chemical Corp.

844 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Greenleaf Motor Express, Inc. and Ashtabula Chem- ical Corp. and International Brotherhood of Teamsters, Warehousemen and Helpers of America, Local No. 377, a/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Cases 8- CA-17792 and 8-CA-18146 17 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND STEPHENS On 26 December 1985 Administrative Law Judge Thomas A. Ricci issued the attached deoi- sion. The Respondent filed exceptions and a sup- porting brief and the General Counsel filed excep- tions and a supporting brief. Thereafter on 16 April 1986 the Board remanded the proceeding to the judge for further consideration of certain 'testimony and resolutions of credibility. On 22 May 1986 the judge issued the attached supplemental decision. The Respondent filed exceptions and a brief in sup- port. Subsequently the Respondent also filed a motion to remand to the judge for the purpose of considering newly discovered evidence, along with supporting affidavits. The National Labor Relations Board has delegat- ed its authority in this proceeding to a- three- member panel. The Board has considered the decision, the sup- plemental decision, and the record' in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions, as modi- i The Respondent's motion to remand the proceeding to the judge for the purpose of considering evidence relating to a 1982 agreement be- tween Greenleaf and -the International Union is denied, as there is no showing that the alleged evidence could not have been proffered earlier in the proceeding, there is no contention that the Respondent currently has such evidence in its possession, and even if such evidence were avail- able, its production would not alter the disposition of the case 2 The Respondent has excepted to some of the judge's credibility find- ings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We do not affirm the judge's statement in the portion of his decision entitled "III The Unfair Labor Practices," that the Respondent has en- gaged in conduct violative of Sec. 8(a)(5) since ' 1982. Such a finding reaches beyond the 10(b) period, is not alleged in the complaint, and is unnecessary to the resolution of the issues in the case. 2 The General Counsel has excepted to the judge's failure specifically to include in his Conclusions of Law a reference to his factual findings that on 25 August 1984 during the conduct of an unlawful poll, the Re- spondent, by its supervisor, Richard Higley, bypassed the Union and dealt directly with unit employees and interrogated them about their union sentiments As the record supports the judge's factual findings of 8(a)(1) violations based on direct dealing and interrogation, we add them to the Conclusions of Law. The Order and notice have been revised ac- cordingly. We agree with the judge's conclusion that all drivers of the Respond- ent-Greenleaf and Ashtabula together-constitute a single appropriate feed, s 'and to adopt the recommended Order as modified4 and set forth in full below. In adopting the judge's finding that the Union did not know about or acquiesce in the Respond- ent's exclusion of the Ashtabula drivers from the Union, we note that while Greenleaf employees, in- cluding Union Steward Robert Wright, were aware of Ashtabula's existence, the two groups of drivers initially worked in entirely different geographic areas, approximately 150 miles apart, had no regu- lar contact with each other, and were unlikely to have any knowledge or concern about the others' terms and conditions of' employment or union status. Moreover, the Ashtabula drivers worked in a different State, outside the jurisdiction of' Local Union 377. Further, during 1982 and 1983 Ashtabu- la functioned as a brokerage 'operation whereby owner-operators leased their trucks to the' company and received separate payments for equipment rental and their driving services,. Because this system existed for some months before the Re- spondent, apparently in late 1983, ceased using bro- kers and also began intermittent assignments of drivers from both companies on the same runs, it is reasonable that none of, the Greenleaf employees, including Wright, would have known immediately that the Respondent thereby was circumventing its bargaining obligation and creating a parallel non- union work force to perform bargaining unit work. Wright testified that although he knew two Ashta- bula drivers, he did not know during the time they were employed that they were nonunion. Further, Wright testified that he did not inform Union Busi- ness Agent Frank Licate that Ashtabula was oper- ating with nonunion drivers. Licate's testimony,es- tablishes that while he knew ' about Ashtabula's use of broker-drivers as early as 1982 and 1983, he was not then aware of its having any impact on the Greenleaf operation or its infringing on bargaining unit work. The record is clear that Licate first learned about the Respondent's using nonunion drivers alongside unit employees in May 1984, within the 6-month period of Section 10(b) of,the Act,5 and that he immediately investigated. and unit for bargaining and that the community-of-interest factors he recites support this determination. See, eg., Naccarato Construction Co., 233 NLRB 1394 (1977), Appalachian Construction, 235 NLRB 685 (1978); Better Budding Supply Corp., 259 NLRB 469 (1981), Neighborhood Roofing & Contracting, 276 NLRB 861 (1985) a The General Counsel requests a visitatonal clause authorizing the Board, for compliance purposes, to obtain discovery from the Respond- ent under the Federal Rules of Civil Procedure subject to supervision of the United States court of appeals enforcing this Order Under the cir- cumstances of this case, we find it unnecessary to include such a clause. Nathan's Furniture Store, 278 NLRB 268 (1986). 5 Because the Union's knowledge of this practice and the Respondent's refusal to bargain on demand occurred within the 10(b) period, Chairman Dotson finds it unnecessary to pass on the judge's alternative analysis concerning continuing violations of the Act 285 NLRB No. 116 GREENLEAF MOTOR EXPRESS protested the matter. For these reasons-including the changing nature of the Ashtabula operation, the reasonable understanding of the Greenleaf drivers, and the swift and staunch reaction by the union business agent once he learned that the Respondent was using unrepresented drivers to do bargaining unit work-we find no basis for concluding that the Union condoned the Respondent's activities or in any way waived its representational rights over the Ashtabula drivers. ORDER The National Labor Relations Board orders that the Respondent, Greenleaf Motor Express, Inc., and Ashtabula Chemical Corp., Ashtabula, Ohio, its officers, agents, -successors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with International Broth- erhood of Teamsters, Warehousemen and Helpers of America, Local 377, as the exclusive bargaining representative of all the employees in the appropri- ate ' bargaining unit, concerning wages, hours, and conditions of employment. (b) Polling its employees whether they wish to become members of the Union. (c) Polling its employees to inquire whether they agree with the proper demands of their exclusive bargaining agent in the collective-bargaining proc- ess. (d) Bypassing the Union and dealing directly with unit employees. (e) Interrogating employees about their union sentiments. (f) Promising its employees to form an employee employer committee to resolve employee com- plaints apart from the statutory bargaining agent. (g) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. - (a) On request of the Union, bargain collectively with the Union in good faith regarding rates of pay, wages, hours of employment, and other terms and conditions of employment for all employees in the appropriate bargaining unit and, if an agree- ment' is reached, reduce the agreement to writing and sign it. The bargaining unit is: All over-the-road truckdrivers employed by the Respondent-both Greenleaf Motor Ex- press, Inc. and Ashtabula Chemical Corpora- tion-excluding all supervisors as defined in the Act. (b) Make whole any of its employees in the ap- propriate bargaining unit for any monetary benefits 845 they may have been denied for being classified "Ashtabula" employees during the period 12 March 1984 to the time the Respondent may alter the conditions of employment following good-faith bargaining with the Union. (c) Post at its place of business in Ashtabula, Ohio, copies of the attached notice marked "Ap- pendix."6 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's authorized representa- tive, shall be posted by the' Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 6 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to bargain with Internation- al Brotherhood of Teamsters, Warehousemen and Helpers of America, Local No. 377, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers,of America on request. WE WILL NOT poll our employees to inquire whether they agree with the proper demands of their exclusive bargaining agent in the collective- bargaining process. WE WILL NOT bypass the Union and deal direct- ly with our employees who are members of the bargaining unit. WE WILL NOT interrogate our employees con- cerning their union sentiments. WE WILL NOT promise our employees that we will form an employee-employer committee to re- solve complaints apart from their statutory bargain- ing agent, in this case, the Union. 846 - DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, recognize and bargain col- lectively in good faith concerning rates of pay, wages, hours, and other terms and conditions of employment with the Union as the exclusive bar- gaining representative of the employees in the ap- propriate unit and, if an understanding 4is reached, embody such understanding in a signed agreement. The appropriate bargaining unit is: All over-the-road truckdrivers employed by the Employer-both Greenleaf Motor Express, Inc. and Ashtabula Chemical Corporation-ex- eluding all supervisors as defined in the Act. WE WILL make whole any of our employees in the appropriate bargaining unit for any monetary benefits they may have been denied by virtue' of their "Ashtabula" classification during the period 12 March 1984 to the time we may alter the condi- tions of employment following good-faith bargain- ing with the Union. GREENLEAF MOTOR ExPRESS, INC. AND ASHTABULA CHEMICAL CORP. Mark S. Neubecker, Esq., for the General Counsel. Stuart W. Hyvonem, Esq. and Mr. Ray T Blankenship, of Greenwood, Indiana, for the Respondent. Anthony P. Sgambati, Esq. (Green, Schivoni, Murphy, Haines, & Sgambati), of Youngstown, Ohio, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge. A hear- ing was held in this proceeding in Ashtabula, Ohio, on 16, 17, and 18 September 1985, on complaint of the Gen- eral Counsel against Greenleaf Motor Express, Inc., and Ashtabula Chemical Corp., a single employer doing busi- ness under two names (the Respondent). The complaint issued on 30 May 1985, on charges filed on 12 September 1984 and on 20 March 1985, by International Brother- hood of Teamsters, Warehousemen and Helpers of America, Local No. 377 (the Union or the Charging Party). The issues presented are whether the Respondent violated Section 8(a)(5) of the Act by refusing to bargain with the Union as the statute commands, and whether it violated Section 8(a)(1) of the Act. Briefs were filed by the General Counsel and the Respondent. On the entire record and from my observation of the witnesses, I make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Greenleaf Motor Express, Inc. and Ashtabula Chemi- cal Corp., are separate corporations, each engaged in, the interstate and intrastate transportation of bulk chemicals; they both operate out of a single location at 4606 State Road, in Ashtabula, Ohio; each of them annually derives gross income in excess of $50,000 for the transportation of commodities from the State of Ohio directly to points outside the State. I find that the Respondent is an em- ployer within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that International Brotherhood of Teamsters, Warehousemen and Helpers of America, Local No. 377,- a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor orga- nization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint contains the following allegation of fact, which in its answer the Respondent does not deny: 3(A) At all times material herein, Greenleaf Motor Express, Inc., and Ashtabula Chemical Corp., have been affiliated business enterprises with common of- ficers, ownership, directors, management, and su- pervision; have formulated and administered a common labor policy affecting employees of said operations; have shared common premises and fa- cilities; have provided services for and/or made sales to each other; have interchanged personnel with each other; and have held themselves out to the public as a single integrated business enterprise. Absent any denial by the Respondent, all these factual - statements stand as established facts on this record. Time and time again, throughout the extended transcript, offi- cers and management agents of the single Company, re- ferred to some drivers as Ashtabula employees and others as Greenleaf employees. They also spoke of some of them as union men and others as nonunion men. The fact is, it is, and has always been, one Company, and what it did in its treatment of its employees will be therefore here discussed in that light. For a number of years these employees have been cov- ered by successive collective-bargaining contracts be- tween the Company and Teamsters` Local 377. The last contract was effective from 1983 through July 31, 1984. In 1982 the Company started hiring truckdrivers under the separate name it then established-Ashtabula Chemi- cal Corp.-to do the same kind of chemical transporta- tion it had always done and was still doing with its old drivers. The new ones were called brokers because they owned their own trucks which they 'leased to the Com- pany by the trip. They were paid a certain amount for the use of their truck and a certain amount for the driv- ing that they performed. I think, although the record is not clear on this point, that for what work they per- formed the new drivers, or so-called brokers,' were paid GREENLEAF MOTOR EXPRESS the same amount as were paid the old drivers, called Greenleaf drivers, whether it be by the mile driven or by the hours worked. But in at least two important respects the new men were treated differently by the Company. The contract then in effect required that the Company withhold a certain amount from the earnings of all driv- ers and pay it to the Union's health and welfare pension fund, to the credit of each man. The Company did not do that with respect to the newly hired drivers: It gave the money to them instead, and they kept it all. Also, the contract required that all drivers become members of the Union within 31 days of their employment. None of the so-called Ashtabula men joined, and the Company did not enforce that part of the contract as to them. In 1983 the brokerage arrangement ceased and the owner-drivers continued to work as regular drivers, using the company-owned trucks, exactly as the old ones had always done. They shifted back and forth, sometimes two drivers, one from each group, going out on the same single trip together. It was an integrated operation throughout. Before reaching the question of the Compa- ny's unilateral action vis-a-vis its new employees, and the consequent violations of the statute that that action meant, there is a defense argument that must be consid- ered. Although it argued to the union representatives during the discussions that took place that the named corporations were separate entities, the Respondent sur- rendered on that point when it formalized its answer to the complaint by expressly not contradicting the single employer allegations. At the hearing it argued that the two groups of employees were nevertheless separate bar- gaining units and that therefore the contract in effect did not apply to the new, added drivers. On this record it is an unconvincing defense. All the drivers are under common supervision; all are disciplined by the same supervisors-Mark Jarvis. They are sent out to work by a single dispatcher, attend the same safety meetings, are subject to the same employ- ment policies, are all paid on the same scale, and all serv- ice the same customers of the Company using the same equipment. The fact that on occasion, when a man has driven a truck to a customer said to be that of Ashtabula, a Greenleaf officer first gives the money in payment to an Ashtabula clerk and that clerk then makes a check payable to that driver, is no more than a charade. It is like an employer taking money out of his left hand pocket, putting it into his right hand pocket, and then paying his employee. In the face of the assertion that the employees of the two groups do not have a community of interests, management representatives admitted on the stand that employees from one group are often used to make deliveries for the other and vice versa. See Kansas City Coors, 271 NLRB 1388 (1984). It is a single bargain- ing unit that was always, and is still today involved in this case. Another simple way of stating the reality of this case is that a collective-bargaining agreement is not limited in its application only to those employees in the appropriate unit who are at work when the contract is made; it ap- plies as well to other employees hired later who do the same work and are joined, within a single bargaining 847 unit, by the community of interests that underlies the work of all of them. When an employer who is party to a union contract hires additional people and arranges conditions of em- ployment with them that differ from the terms of the union contract, it ignores Section 8(a)(5) of the statute. This statement of law is so well established a principle as not to require citation of authority. This Respondent started doing just that back in 1982 and clearly violated the statute from then on. The original charge in this pro- ceeding was filed by the Union in September 1984. Based on this last fact the Respondent makes another defense argument. It says that because no one complained about its unilateral dealings with employees in the bargaining at the start, it is too late to file charges about it now. Re- stated: Because the employees knew about those drivers, called "Ashtabula men" and "nonunion," for so long a period, it must be held that the Union consented to whatever the Respondent was doing, regardless of whether it was violating the statute. Again, the position misconceives Board law. To begin with, the Union-and in this case the Union was represented by Frank Licate, business agent, of Local 377-did not know of how the Respondent was ignoring its contract obligations until quite later. But even if the union officers are aware of flagrant violations of the statute by an employer it does not mean that that employer becomes licensed to continue its illegal con- duct, and never mind the filing of proper charges with the Board. Section 10(b) of the statute does establish a cutoff period-6 months before the filing of charges- and no formal findings of unfair labor practices may be made on whatever happened before that date. In this case it means that if any of the "nonunion" drivers lost any benefits they were entitled to under the then con- tract' in effect before March 1984 (6 months before the initial charge was filed by the Union), no remedy may be enforced for such losses and no findings may be made re- garding those earlier events. But if those drivers were prejudiced in any respect after that cutoff date, a remedi- al order is now proper and findings of unfair labor prac- tices are folly authorized under the statute. As it happens, the Union, as such, had no knowledge of this device used by the Respondent to hire nonunion men. It is a small company; on its so-called "separate" Greenleaf payroll it had, and has, about six or eight truckdrivers. Licate, the business agent who was in- volved throughout the events, and who was in charge of this small company on behalf of the Union, is responsible for about 200 contracts covering as many companies throughout his district. He therefore had little occasion, or time, to watch over the conduct of this particular cor- poration. Moreover, for sometime the drivers hired under the "Ashtabula" name as "nonunion" men, were used almost entirely to work at a place called Mounds- ville, about 150 miles away from Ashtabula, the home office of the Respondent. Moundsville is not within the geographic jurisdiction of Local 377's Representative Li- cate's territory. It -follows he was not likely to know at all what was going on so far away. It was only when he learned about it all, that he told the Respondent, in writ- 848 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ing, that,those drivers too were to be treated as the con- tract in effect provided. What the Respondent really relies on to support its as- sertion that. the Union knew, and approved of what it was doing, is the fact that 'its local, or "Greenleaf union men, did know about it and did not care. When the driv- ers -go to Moundsville they at times must spend the entire week there at a motel to make the necessary deliv- eries in that area. The employees living in Ashtabula did not like to do that, and so^ the Respondent hired new men because it needed more of them anyway. The fact that the new men preferred to keep all the money they earned, instead of having the Company send part of it to the Union's health and welfare and pension fund, and to the Union as union dues, meant nothing to the old driv- ers who were union members. Even Robert Wright, who was for a time the Local 377 steward, knew of this prac- tice by the Company and did nothing about it. But it does not follow from this that Local 377 can be held to have approved of the Respondent's direct disregard of its contractual obligation. Nor does it support the assertion now by the Respondent that the Union agreed that two separate bargaining units came into existence-one "union," and one "nonunion." A 3-year contract between the parties expired in 1982. It was then extended for a 1-year period in 1983. An "addendum" to the Teamsters' master freight agreement was then signed by these parties for the period 5 August 1983 to 31 July 1984. Licate's testimony, which I credit, is that about September 1983 he learned that what he always knew asthe Greenleaf Company was operating out of Moundsville with nonunion drivers. As that loca- tion was outside his jurisdiction he did nothing about it then. Later, in May 1984, he learned that the Company was mixing up its drivers, using both those located in Ashtabula, who had always been covered by the Team- sters contract, and its Moundsville men to work togeth- er; often two men-one union and one nonunion-on the same run. Now it became clear to him that all unit work was being performed by an integrated group. By this time the parties were in communication about negotiat- ing a renewal of'the addendum contract about to'expire on 31 July. On 16 April 1984 the Union formally notified the Company of its intent to terminate the existing contract and requesting a meeting. The Company responded on 31 May, and agreed to meet and negotiate. - On 5 June the Union wrote a written proposal of new terms to the Company; that letter included the following paragraph:. Greenleaf Motor Express and Ashtabula Chemical must honor the recognition clause in the National Master 'Freight Agreement by informing all Ashta- bula Chemical employees to become members of Teamsters Local Union 377 after thirty one (31) days of employment. By this time Licate knew exactly what the Company was doing-ignoring the contract with respect to its so- called Ashtabula drivers. Therefore, on 6 June 1984, he also filed a formal grievance reading as follows: As business agent for Teamsters Local No. 377, I am filing this grievance against Greenleaf Motor Express and Ashtabula Chemical Company for their failure to cooperate and comply with the recogni- tion clause of the existing collective bargaining agreement -as outlined in National Master Freight, Article III(E) Sec. 1-2-3. Greenleaf Motor Express is operated as Ashtabula Chemical, a nonunion com- pany, even though drivers are performing-the same type of work, dispatched on the same trips as Greenleaf, along with driving company equipment owned by Greenleaf. Due to the direct violation of the Road Agreement by the Company's failure to inform new employees of their obligation to join Teamsters Local Union 377 after 31 days of em- ployment, Local 377 is left with no alternative but to enforce the Agency Shop Clause of the Road Agreement which Greenleaf is signatory through an Addendum dated August 1, 1983 to July 31, 1984. Based on the violations set forth here, Local 377 hereby requests that Greenleaf Motor Express and Ashtabula Chemical Company, immediately inform all drivers who are not in the Union on the date the grievance is filed to become members of Local Union 377. That grievance was never processed, in accordance with the provisions of the contract still'then in effect. In- stead, the parties met a number of times, in an effort to reach agreement on contract renewal. In the discussion the question"of the "nonunion" drivers being covered by the contract was discussed a number of times. Every proposal offered by the Respondent was in terms of the "Greenleaf" drivers, always careful to exclude by impli- cation at least those said to be on the Ashtabula payroll. That it was the position of the Company that those driv- ers must be excluded from the bargaining unit is clearest fact on this somewhat confused record. It is at this point that the first unfair labor practice finding must be made. Inclusion or exclusion of certain employees from the bar- gaining unit is not a proper subject of collective bargain- ing. During those discussions-certainly before 31 July 1984, when the contract covering the appropriate unit was in effect-the Company was continuing to ignore the Union's grievance, and treating its "Ashtabula" driv- ers differently than what the contract called 'for. In so doing it was clearly violating Section 8(a)(5) of the Act, and I' so fmd. 'It is also the position of the Respondent now that by the time the talking ended the Union had agreed to ex- clusion of the "nonunion" drivers from coverage of the contract. In its brief the Respondent contends that be- cause the question about inclusion' of the "nonunion" drivers was discussed during the negotiations, it follows that matter became a proper subject of collective bar- gaining. It did not. Licate did talk about that possibility with the company -representatives; he had no choice, with the Company holding firm 'to its insistence on their, exclusion. Moreover, there is also evidence that many of the drivers kept vascillating on whether all the drivers should be members of the Union. At times -the "Ashtabu- la" men thought "yes"; at times they thought "no." In GREENLEAF MOTOR EXPRESS 849 the end, the Company placed in -the Union's hands a comprehensive contract proposal. Again, the unit was described as limited to "Greenleaf' drivers only. In the resultant uncertainty the Union called a meeting of its members and asked them whether they wished to ratify that proposal. Licate spoke to them and took the position it was wrong and should be rejected. All the employees present voted against ratification. This was on 18 August 1984. On 20 August Licate advised the Company of the vote of rejection. On 12 September the Union filed this charge with the Board, alleging violations of Section 8(a)(5). In February 1985 the contract put its last offer in effect, the one re- jected by the Union. The Respondent's essential defense to this final and un- questionable unilateral change in conditions of employ- ment was that Licate agreed to exclusion of the "Ashta- bula" drivers from coverage of the contract, and that ratification was not necessary, because Licate had given the Company to so understand. Neither defense stands up on this record. During the 5 or 6 years preceding the 1984 negotiations, every contract agreed to between these parties was ratified by the employees before it became effective, both agreements to be bound by the Teamsters' national contract and the various addendums between these parties. The written correspondence of those events, received in evidence, shows clearly the Company always knew ratification by the employees was a requisite under the Teamsters' rules. There is nothing persuasive to prove the Union intended in this instance to depart from its established practice. And it is not true Licate ever agreed to the contract proposal submitted by the Company and rejected by the employees. As stated above, the fundamental disagree- ment that split the employees, and that the Respondent deemed important enough to insist on throughout, was whether all drivers should be subjected to contractual re- quirements that the Company withhold part of their earnings and forward it to the Union in part for benefits in the health and welfare and pension fund of the Union and in part as union dues. Licate's testimony is he never yielded on either of those two questions, and correspond- ence and proposals of all kinds support his testimony. I must believe him, if only because of the explicit griev- ance he filed towards the very end on that very subject. Mark Jarvis, David Jarvis, and Jack Jarvis, all officers and operational managers of both-named corporations, were present at many of the discussions with Licate. Their testimony, intended to prove the union officer in the end agreed to exclude the "Ashtabula" drivers from the bargaining unit, is not convincing and I do not credit their combined assertion. Mark Jarvis, while admitting Licate a number of times insisted all the drivers had to be union members and covered by the contract, also said that at the end of July Licate said: "Let's keep every- thing the way it is. Let's-ACC will remain non-union, GMX will remain union." But the witness also then added that when 'the company negotiators asked Licate "Would you put that into a side agreement?" The union business agent responded, "he would acknowledge it, and he would accept it, but he would not put into writ- ing." This is double-talk testimony I cannot accept. David Jarvis' testimony also goes both ways and is no more convincing. He said that at a 18 July meeting Licate was told by management "none of the Ashtabula Chemical men wanted in the Union," and 'that Licate's answer was "that would be impossible, all would have to be in to the Union." In the next breath this witness then added Licate also said: "To hell with them, let them do what they want, stay out of it." David Jarvis closed his testimony with the statement, "Like I' said, Frank Licate said they had to be in union." Jack Jarvis' testimony also shifted back and forth. At one point he quoted Licate as saying: "Just leave well enough alone, the hell" with them, some day they're going to want in, that's it.... He didn't want them." At another point in his testimony this witness also admitted he did receive, from Licate, "a demand, that you put the ACC drivers in the union ...." This witness' testimony must also be appraised in the light of his own predelic- tions of the moment, to say nothing of the simultaneous violations of Section 8(a)(1) of the statute that were being committed by the Respondent. From his later testi- mony: "I said that `I have no objections to anybody join- ing the Union. They can all join the Union. But I cannot have it that the man at the bottom of the seniority, non- union, go down and join the Union, which puts him ahead of the seniority."' It must also be noted that de- spite the fact the Company operates a single integrated operation, it always uses and always used its employees interchangeably, it maintained a separate seniority list- one for "union" and one for "nonunion" men! Considering all the testimony, I find that the Union never agreed with the Company to dismember the bar- gaining unit and to exclude from it those employees who were not at that time members of the Union, called the Ashtabula drivers by the Respondent. It, follows that continuing, throughout the period of the bargaining, up to the end of August when the last contract between the parties expired, and going on thereafter, right up through the'time of the hearing held in this proceeding, the Re- spondent violated Section 8(a)(5) of the Act by not en- forcing the same conditions of employment on its non- union men that the contract called for. Violations of Section 8(a)(1) In many Board cases involving allegations of refusal to bargain properly with a union, there are also found inde- pendent violations of Section 8(a)(1) of the, Act, some form of coercion or other practices on employees indi- vidually. In most instances the two violations-of Sec- tion 8(a)(5) and 8(a)(1)-stand apart, are not necessarily interrelated. Here, there is a very definite relationship be- tween the coercive conduct with respect to the employ- ees themselves-violations of Section 8(a)(1)-and the unlawful conduct vis-a-vis the Union. In fact, the Re- spondent's unlawful doings with the employees directly strenghtened the finding that the simultaneous bargaining with the Union was not correctly being carried on. (1) There is confused testimony about a number of meetings management held with its employees. Custom- arily, about once a month, it holds what are called "safety meetings," to discuss problems of day-to-day 850 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD truckdriving operations. During these events, the super- visors took these opportunities to discuss matters pertain- ing to the Union also at such meetings . Whatever, the first violation of Section 8(a)(1) is shown clearly on'the record in the direct testimony of Richard Higley, who said he was the chief negotiator for the Company at all the bargaining sessions . He said that on receiving the Union's proposal letter dated 5 June 1984-the one which included the specific demand that all "Ashtabula" drivers must become union members-he decided to check with the employees to ascertain whether they did or did not care to join the Union. He said he was pro- voked into doing that because the Union's demand came as a surprise to him. If this record shows nothing more than this beginning testimony by Higley, a direct viola- tion of the statute-unlawful questioning of employees concerning their union sentiments-is proved. See Struksnes Construction Co., 165 NLRB 1062 (1967). It was not a test of a union's claim to majority representa- tion status. The Union was and is in fact the established bargaining agent, with a contract and all . There was no assurance to the employees that there would be no re- prisals in consequence of their votes; one came in late to the meeting when the balloting ; took place, and Higley accepted his written ballot and therefore certainly knew how he voted. But a more solid basis for the unfair labor practice finding is that Higley's real object then was to resolve a dispute he was having with the Union , behind its back, as it were, directly with the employees, and never mind the statutory requirement that the established Union is the exclusive representative of all the employees in the appropriate unit! As it developed, it began to appear that in his testimo- ny later Higley was mixed up . It seems the polling of which he spoke took place in August, on August 25, after he learned that the employees voted to reject his last offer to the Union. What he did that day, according to some documents ,received in evidence, was to gather the "Greenleaf" or union employees first, and then, sepa- rately, the "Ashtabula" or nonunion employees. He asked the first, group to say whether they wished to have the other drivers join the Union , and the other group whether they wished to become union members . The un- contradicted testimony of Bobby Blaire, a so-called non- union driver, about what was said before the balloting, is as follows: Well, we were talking about what it would cost us to get into the Union, how much union dues, -retire- ment and everything was going to cost us right off the top. . . . What . . . he [Higley] was explaining that some of us-he said it would be-I think it was around $80 that it would cost us . . . . I guess that was per month . . . . And that came out first and so some of us-the lower guys didn't even make that, so sometimes we wouldn't even make enough you know, to get into-pay your union dues. If I look at the Respondent's questioning of its em- ployees in this light, it was still improper interrogation concerning union sentiments , and a deliberate bypassing of the Union and direct dealing with the employees. I find' that by so polling its employees in the face of the Union's continuous, proper insistence that all employees in the bargaining unit must be subject to any resultant collective-bargaining agreement, the Respondent violated Section 8(a)(1),of the Act. Unable to convince the Union that the bargaining unit should be dismembered, Higley turned to the employees themselves to persuade them, with very pertinent comment on the cost of union mem- bership, to put pressure on the Union to agree with his view of a proper collective-bargaining contract! (2) Weldy, then a nonunion man being paid by Ashta- bula check, testified that one day in June Higley called him to the office and asked what the "biggest complaint was of the nonunion drivers." When Weldy said it in- volved the motel where the men had to spend time in Moundsville, a place they did not like, Weldy also said then "we need something to protect us . . . because at times, Mark flew off the handle, Mark Jarvis. And we have to have some sort of protection ... ." With this, still according to Weldy's testimony, "he [Higley] told me, yes, he knew sometimes Mark got carried away and that if we didn't have a union, if the Union was to go out, they would have to set up some sort of a committee with drivers and everybody represented so that we'd have some sort of protection .... Q. Did he tell you who would be on this committee? A. It would-he said the drivers would be represented by other drivers." The witness then recalled that a month later, on 7 July, there was a regular once a month safety meeting with all drivers present and all the Jarvises as supervisors also present. After the safety subjects had been discussed, Jack Davis asked Wright, then still the union steward, to speak to the drivers. Wright then announced that the Company had agreed to provide a more desirable motel at Moundsville, and also to give certain added conces- sions the Union had demanded. Wright also explained to all the men that the nonunion men were to; remain non- union. At that point Weldy spoke up and protested the favored treatment that, was given the union men on the two separate seniority lists. During the meeting Higley, who was also present, used a blackboard "to demonstrate the advantages of nonunion and being union, and what it would cost as far as your benefits go, what the Union charges and for what he could-they could get benefits for you." Higley also told the men then "you really didn't need a union because they would set up a commit- tee that . . . with drivers represented on it so that we would have the same-more or less the same procedure as the union would have, without the Union." According to Jack Jarvis, who testified later, it was Weldy who suggested a committee to handle the com- plaints of the drivers and that his first response was "That sounds logical, L would consider that." This wit- ness continued that his next comments were "it seemed to be the fair way of doing this would be two senior, two junior drivers, and company representation, so it would be fair that seniority would not overrule or any- thing would be equal and fair." Asked to explain the pur- pose of the projected committee, Jarvis then said. "To represent the nonunion employees in case they had com- plaints." GREENLEAF MOTOR EXPRESS 851 Higley contradicted Weldy's starting testimony about a committee; he said instead that it was Weldy who came to him and first suggested such a committee, and that he agreed it was the correct thing to do. Higley did recall that that conversation came after Licate had writ- ten his 5 June demand that all Ashtabula drivers had to join the Union. This is a critical statement by the manag- er because regardless of who first mentioned a committee such as this, it was still an unfair labor practice for the Respondent's agent to agree to such an arrangement. What it really meant, and surely it was what Higley de- sired throughout, was dealing with the employees entire- ly apart from the Union which had a statutory right to be exclusive representative! No action was taken to formally organize any commit- tee. But, in the light of the total record, I credit Weldy against Jarvis and Higley, and I find that by suggesting the formation of a committee to deal directly with the employees, apart from their union representative, the Re- spondent violated Section 8(a)(1) of the Act, as alleged in the complaint. Serta Film, Inc., 267 NLRB 362 (1983). Licate testified, without contradiction, that after in- forming the Respondent that the Company's last contract proposal had been rejected, he requested that Higley meet with him and bargain about the conditions of em- ployment applicable to the "Ashtabula" drivers and that Higley refused to do so. The parties never met again in negotiations. I find, in conclusion, that the Respondent literally refused to bargain with the Union concerning all employees in the appropriate unit and thereby violated Section 8(a)(5) of the Act. In remedy it must be ordered to do so now. The Respondent continued to apply the terms of the contract that had expired on 31 July 1984, only, of course, concerning the employees it called "Greenleaf" employees, no matter which of the two named corpora- tions they worked for. In November the Teamsters Local 377 Health and Welfare Fund informed the Re- spondent, in writing, that it had been advised by Licate that the premium rates for its employees had been raised as of 1 September 1984, from $44.50 to $55, and that therefore additional money should be sent to the fund. There were several such requests and the Respondent then sent the additional health and welfare payments to the fund. But, in keeping with its firm resolve, it paid only for its so-called Greenleaf drivers, and not for any of the rest. In February 1985 the Respondent put into effect all the terms and conditions of the contract that it had offered the Union but which had been rejected in August 1984. I find no merit in the argument made now that Li- cate's action in seeking to obtain increased payments for the Union's health and welfare fund either proves (1) that he had agreed to be bound by the contract that had been rejected in August, or (2) that he accepted that offer on 1 September 1984, the day from which the added payments were requested. Licate never wavered in his determination to force the Company to recognize Local 377 as bargaining agent for the "Ashtabula" driv- ers. On that subject the record could not be clearer. By the time the November demand for more money was re- ceived by the Respondent, he had already filed his charge with the Board-proof positive that he did not believe the issue was settled to the Respondent's satisfac- tion. No contract was ever signed; indeed the parties never even met again in negotiations after 1 August for the very reason that the Company refused to discuss the most proper subject of bargaining-employment condi- tions for all employees in the bargaining unit. Unfair labor practices-especially as so clearly shown here on this record-are not disposed of unilateral, ambiguous action of a charging party. After the charge has been filed the sole responsibility for disposition of the case rests with the General Counsel. All Licate was trying to do, by the device of a claim from the Union's fund; was to squeeze more money from the Respondent so as to least benefit some of the employees the Union represent- ed. To hold his single act-no contract was ever signed!-as sufficient basis to deny all employees in the correct bargaining unit the rights guaranteed by this stat- ute would make a mockery of the law. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. The Respondent, Greenleaf Motor Express, Inc., and Ashtabula Chemical Corp., is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Teamsters, Ware- housemen and Helpers of America, Local 377, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. The following employees of the -Respondent consti- tute a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(a) of the Act: All over-the-road truckdrivers employed by the Re- spondent-both Greenleaf Motor Express, Inc. and Ashtabula Chemical Corporation-excluding all su- pervisors as defined in the Act. 4. The Union is now and has been at all times material the exclusive representative of all employees in the above-described unit for the purpose of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. By refusing to bargain with the Union as the exclu- sive bargaining representative of all the employees in the appropriate bargaining unit the Respondent has violated, and is violating Section 8(a)(5) of the Act. 6. By polling its employees about whether they wish to become members of the Union the Respondent violat- ed Section 8(a)(1) of the Act. 852 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 7. By polling its employees to inquire whether they agreed with the proper demands of their union represent- ative in the collective-bargaining process, the Respond- ent violated Section 8(a)(1) of the Act. 8. By promising its employees it would create an em- ployee-employer committee to resolve employee com- plaints absent their statutory bargaining agent , the Re- spondent violated Section 8(a)(1) of,the Act. 9. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. THE REMEDY The essential remedial action is that the Respondent must recognize Local 377 as exclusive representative of all its employees-whether on the payroll of Greenleaf or Ashtabula, and bargain with it in good faith on behalf of all its employees . It must also cease and desist. from interrogating employees as to their union sentiments, sug- gesting the formation of any committee to handle em- ployee complaints apart from their union representative, or polling employees to ascertain whether they wish to become union members or whether they agree with the demands of their union representative voiced in the course of regular collective bargaining. , As it was an unfair labor practice for the Respondent to have failed to deduct health and welfare and pension payments from the earnings of some of its employees and forwarding that money to the Local 377 fund, the Com- pany must be ordered to do that now. This correct prac- tice of treating all employees in the appropriate unit alike must continue until such time as, after proper bargaining with the Union, some other terms and conditions of em- ployment may be agreed on. The record does not show whether, in its disparate treatment of the drivers, the Respondent denied to any of, the "Ashtabula" employees any monetary benefits en- joyed by the other group under the terms of the collec- tive-bargaining agreement in effect . That matter will be left to the compliance investigation stage of this proceed- ing. If it develops that some of the employees were denied monetary benefits coming to them under the con- tract in effect, the Respondent will be responsible to compensate them accordingly. [Recommended Order omitted from publication.] SUPPLEMENTAL DECISION THOMAS A. Ricci, Administrative Law Judge. On 26 December 1985 I issued a decision in this proceeding, fording, among other things, that the Respondent Com- pany had unlawfully insisted on separating two groups of employees, treating one as though they were not repre- sented by the Union, the Charging Party here, and the other as properly within, a bargaining unit represented by the Union. One of the defense contentions by the Re- spondent was that in the talking that took place between the parties-the Company insisting that the first group, which it called the nonunion employees, must remain un- represented by the Union, and the Union demanding that all the employees must be included in a single collective- bargaining contract-the Union agreed to the exclusion of the nonunion men. My finding, based on the totality of the evidence was that the Union had not agreed to such an arrangement. On 16 April 1986 the Board remanded the proceeding to me for further consideration of the testimony of two witnesses-Robert Wright and Lester Clement-whose testimony touched on that question. I have completely re-examined the testimony of those two witnesses, as well as the transcript record in its entirety, and reaffirm my findings and conclusions in every respect as previ- ously made. Clement was the last witness called by the Respondent in defense . He said he is a truckdriver and was present at the bargaining sessions. He started by saying that one day on 18 July, one of the first bargaining sessions, the Union's principal spokesman, Businees Agent Licate, wanted the nonunion men in the Union. And then the witness added : "And then they changed, [sic] his changed his mind and said he didn't want them in." As he went on, the witness was asked to repeat: Q. Now, at sometime after that July, 18, 1984 meeting did you gain knowledge that Mr. Licate had changed his mind on the Ashtabula being union or versus nonunion? A. Yes, sir. Q. Tell us how that happened. A. It was under a discussion that we had. Q. Where did that discussion take placed? A. At Greenleaf Motor Express. The last question put to Clement by the company rep- resentative was a purely leading one intended to put a date in his mouth: Q. And that occurred about a month after the - July 18, 1984 meeting? A. Yes. That the date the witness meant as the time Licate changed his mind and no longer wanted to represent the so-called nonunion drivers, was 18 August was finally made clear by the General Counsel's question: Q. Mr. Clement let me pick up with your last statement. Is it your statement that about a month after the 18 July meeting you found out somehow that Mr. Licate had a change of mind regarding in- cluding the Ashtabula drivers in the Union? A. Yes. sir. I do not credit this witness of the Respondent. That date, 18 August, was the day Licate took the Respond- ent's final offer-one which still provided for exclusion of the nonunion men from the bargaining unit-to the employees for their consideration . Nothing is clearer on this record than that when Licate told the assembled em- ployees that day the purpose of the meeting , he made it absolutely clear they should reject the offer because, he was opposed to, such exclusion. How likely is it that he would at the same time tell witness Clement that he was of a completely opposite mind? To put the question is to GR,EENLEAF -MOTOR EXPRESS 853 answer it. Clement was not telling the truth at the hear- ing. Wright was also not a credible witness; he was evasive at times, uncertain, and changed his story on occasion. His demeanor as a witness, and the obvious inconsistency between his assertion concerning Licate's final position and the other objective facts on the record, compel me to reject his testimony. For example: He testified that one day he gathered a group of drivers and asked them to sign a document stat- ing they did not wish to become union members. He pro- duced a xeroxed copy of a document bearing a number of signatures. The top was cut off and the sheet of signed names stapled to another sheet of paper with typing on it, detailing what those employees wanted as a condition for joining the Union. The witness explained that he cut off the original piece-which he had written in his own hand, and replaced it with typing so it would be more clearly legible. Asked where was the original, his answer was "I have the originals somewhere." Asked which em- ployees he had gathered for that meeting-those who were covered by the expiring union contract or the others, the nonunion ones-it was impossible to get a -straight answer from the witness. First he said it was the union men, then he said they were the nonunion men. The question of the validity of that document is of no importance at all in this case, for the clearest fact is that -there were drivers who preferred not to be union men in order to avoid having deductions taken from their' pay for health and welfare benefits and for union dues. But in appraising Wright's credibility as against the General Counsel's witnesses who spoke straight and clearly, this witness suffered very badly. Wright testified that when he showed that list of names to Licate, the business agent said, "he had no choice, there were going in the Union." He was also present at the meeting Licate called when the drivers voted against the Company's proposal after Licate told them he would not agree to excluding the nonunion drivers. In the face of these admissions by his own wit- nesses, the Respondent's representative obtained the fol- lowing testimony from Wright: Q. Then, the company and Mr. Licate entered into negotiations in 1984 for a new contract at that point in time, and you were party to the negotia- tions, where you not? A. Yes, sir. Q. During the negotiations, was the subject of Ashtabula Chemical being nonunion brought up? A. Yes, it was when we first started. Q. And was it the Company's position that those people were to be operating nonunion? A. Would you rephrase that again? Q. Okay, I'm sorry. Was the Company's position that Ashtabula Chemical Company was a nonunion operation and was to remain so? A. That's what they wanted, yes. Q. And was that proposed in union contract ne- gotiations with Mr. Licate? A. Well, our con-when we finally made our contract, they weren't even mentioned, but we-we went over the Ashtabula Chemical drivers before we got into the contract. Which is it? What was the witness saying? Did Licate agree to exclude the men when the final contract was reached, or is it that "when we finally made our con- tract, they weren't even mentioned?" This witness was either fabricating or simply did not know what he was talking about. However I look as it, it serves not at all to support the Respondent's defense. I adhere to my decision as issued on 26 December 1985.1 L If no exceptions are-filed as provided by Sec 102.46 of the Board's Rules and Regulations, the findings, conclusions, and recommended -Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses.