Anchor Motor Freight, Inc.

National Labor Relations Board - Board Decisions

Sep 29, 1989

296 N.L.R.B. 944 (N.L.R.B. 1989)

944 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Anchor Motor Freight, Inc. and Teamsters Local
294, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America , AFL-CIO
Nu-Car Carriers, Inc. and Teamsters Local 294, af-
filiated with the International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and
Helpers of America , AFL-CIO.' Cases 3-CA-
14003-1 and 3-CA-14003-2
September 29, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 31, 1989, Administrative Law Judge
Joel P. Biblowitz issued the attached decision.The
General Counsel filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
' On November I, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO Accordingly, the caption has been amended to
reflect that change
2 The judge omitted a description of the jurisdictional facts. As alleged
in the complaint , Respondent Anchor, in the course and conduct of its
operations, annually derives gross revenues in excess of $ 50,000 from pro-
viding transportation services to other employers directly engaged in
interstate commerce, including General Motors Corp. During the same
period, Anchor, in the course and conduct of its operations , provides and
performs transportation services valued in excess of $50,000 in States
other than the State of New York Respondent Nu-Car, annually, in the
course and conduct of its operations , derives gross revenues in excess of
$50,000 from providing transportation services to other employers direct-
ly engaged in interstate commerce , including General Motors Corp
During the same period , Respondent Nu-Car, in the course and conduct
of its operations , provides and performs transportation services valued in
excess of $50,000 in States other than the State of New York.
Alfred Norek, Esq., for the General Counsel.
Nicholas J. D'Ambrosio, Jr., Esq. (Bond, Schoeneck &
Kina), for Respondent Anchor.
David R. Knowles, Esq. and Daniel G. Zeiser, Esq. (All-
port, Knowles & Miller), for Respondent Nu-Car.
Bruce C. Bramley Esq. (Pozefsky, Pozefsky & Bramley), for
the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL P. BIBLOwITz, Administrative Law Judge. This
case was heard by me on November 2, 1988, in Albany,
New York. The consolidated complaint issued on No-
vember 10, 1987,' and was based on unfair labor practice
charges filed on October 2 by Teamsters Local 294, af-
filiated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (the
Union). The consolidated complaint alleges that in
August and September the Union made separate (al-
though nearly identical) requests for information from
Anchor Motor Freight, Inc. (Respondent Anchor or
Anchor) and Nu-Car Carriers, Inc. (Respondent Nu-Car
or Nu-Car) (collectively Respondents), information
which was necessary and relevant to the Union's per-
formance as the collective-bargaining representative of
the drivers, yard employees, and garage employees em-
ployed by Respondents. The complaint alleges that the
Respondents failed and refused to provide the Union
with this requested information, in violation of Section
8(a)(1) and (5) of the Act.
On the entire record, I make the following2
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION STATUS
There being no dispute, I find that Respondent
Anchor and Respondent Nu-Car are each employers en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. FACTS AND ANALYSIS
Respondents Nu-Car and Anchor are involved in the
same business-transporting new automobiles from (rele-
vant to this matter) a Conrail ramp in Selkirk, New
York, to automobile dealers throughout New York State
and southern New England. Prior to August 31, Anchor
transported only automobiles manufactured by General
Motors (GM), while Nu-Car transported cars manufac-
tured by Ford Motor Co. (Ford), as well as other manu-
facturers, except GM. For many years Anchor has been
owned by Leaseway Transportation Corp. (Leaseway);
in December 1986, Nu-Car was purchased by Leaseway,
and the Union was so informed at the time.
Both Anchor and Nu-Car (as well as the Union) are
signatories to the National Master Automobile Trans-
porters Agreement (the National Agreement), 3 as well as
the Eastern Conference Area Truckaway, Yard and
Shop Supplement (the Supplement), which were effec-
tive June 1, 1985, through May 31, 1988. In addition,
Anchor and Nu-Car each executed local riders (Riders)
' Unless indicated otherwise, all dates referred to herein are for the
year 1987
2 Certain errors in the transcript are noted and corrected.
a Art. 2, sec 4 of the National Agreement states* "The employees,
Unions, Employers and Association covered by this Master Agreement
and the various Supplements thereto, shall constitute one bargaining
unit "
296 NLRB No. 122
ANCHOR MOTOR FREIGHT
with the Union to these other agreements . Because
Anchor performed hauling work exclusively for GM, it
was considered a contract carrier under these agree-
ments ; as Nu-Car performed hauling work for Ford and
others, it was considered a common carrier under the
agreements . The two principal differences in the agree-
ments between these two classifications were in premium
pay and the employment of yardmen. As a contract car-
rier, Anchor was subject to certain higher pay rates and
overtime premium pay under the National Agreement,
while Nu-Car was not. In addition , under its Rider,
Anchor was obligated to employ yardmen to pull and
load the new cars for its drivers , while Nu-Car was not
so similarly obligated.
The situation changed when, by letter dated June 8,
GM wrote to Nu-Car and Anchor:
Due to economic conditions and, in particular,
truckaway rates at Selkirk which are the highest in
the General Motors distribution system , we are re-
questing that you present a bid package to handle
all General Motors traffic from the Selkirk rail fa-
cility.
By letter dated July 16, GM thanked Anchor for its
bid on the Selkirk work, but stated "that due to econom-
ic reasons a change in carriers is necessary at that loca-
tion," and, effective August 30, Anchor would no longer
perform that work. By letter dated July 17, GM con-
firmed its decision to accept Nu-Car's bid to perform the
hauling work for GM at Selkirk. In July, John Bulgaro,
business agent, was called to a meeting by representa-
tives of Anchor and Nu-Car. At this meeting, he was in-
formed by Bruce Jackson , vice president and general
manager of Nu-Car, that GM has requested bids for the
hauling work at Selkirk and Anchor lost the work and it
was awarded to Nu-Car, effective August 31. Bulgaro
asked Jackson for copies of those letters and by letter
dated August 12, Jackson sent Bulgaro GM's request to
Nu-Car for a bid and GM's July 16 and 17 letters to
Anchor and Nu-Car regarding the awarding of the bid.
On July 30, the Union filed a grievance against
Anchor, "grieving the subterfuge of the existing Rider
by Anchor Motor Freight" the basis for this grievance
(as well as the demands for information ) is, as testified to
by Bulgaro:
My feeling was that the companies were trying to
circumvent the use of the Anchor rider. The
Anchor rider produced better conditions for our
members in Selkirk, New York, and it was more ex-
pensive for the company to operate under and we
felt that they were trying to eliminate this and work
under the cheaper rider, which would have been
Nu-Car.
In other words, the Union was alleging that Respond-
ents and/or Leaseway instigated the rebidding of the Sel-
kirk work for GM, so that Nu-Car, with the cheaper
contract, could obtain the work from Anchor, with more
profits, presumably, going to the parent of both,
Leaseway.
945
The grievance could not be resolved at the first level
so it was argued before the Eastern Conference Automo-
bile Transporters Joint Committee (the Joint Committee),
where the parties presented witnesses and oral argument.
On August 25, the Joint Committee issued a decision
stating that it was deadblocked.
Also on the agenda of the Joint Committee on that
day was a grievance filed by Respondents . Since Nu-Car
obtained the GM work previously performed by Anchor
at Selkirk , it was offering transfer rights to all (or almost
all) of Anchor's employees . According to Jackson: "The
purpose of filing this case is to determine the proper se-
niority positions for all of the affected employees." Re-
spondent proposed four possible solutions for the Joint
Committee to choose from ; minutes of the meeting state:
"Mr. Jackson explained to the panel that the Company
did not have any preference as to which list was used,
but that they needed a decision prior to the work being
performed ." Bulgaro told the Joint Committee that the
seniority issue should not be determined until after the
Joint Committee decided the Union 's subterfuge griev-
ance. The Joint Committee disagreed with the Union and
decided that the seniority lists of Anchor and Nu-Car
should be dovetailed on the basis of one -to-one, which
Nu-Car did.
On November 2, the National Automobile Transport-
ers Joint Arbitration Committee (the Arbitration Com-
mittee), heard the arguments of both sides regarding the
deadlocked grievance ; Bulgaro also argued that the se-
niority decision issued by the Joint Committee was in-
correct, but it appears that the Arbitration Committee
did not answer this argument. On November 18, the Ar-
bitration Committee issued its findings ; the principal find-
ing is as follows:
On the basis of the above findings, the Committee
holds that Local Union 294's contention that Gener-
al Motors' bidding procedure was initiated by
Leaseway Transportation and not by General
Motors Corporation solely to permit Leaseway to
take advantage of the Nu-Car Local Rider which
the Anchor drivers claim is less advantageous to the
drivers is not supported by any evidence. The evi-
dence, moreover, establishes that General Motors
work at Selkirk is being handled by Nu-Car pursu-
ant to an agreement with General Motors. The
Local Union 's assertion that this represents evidence
of subterfuge is not supported by the evidence. In
event new evidence becomes available to the Local
Union as the result of charges filed with the Nation-
al Labor Relations Board , the Committee notes that
pursuant to its Rules of Procedure , such evidence
may be produced and submitted to this Committee
by the Local Union as a basis for request for rehear-
ing to be considered by the Committee consistent
with its existing Rules of Procedure.
Based on its claim of subterfuge , on August 12 and 13,
the Union made its requests for information to Anchor
and Nu-Car; the August 12 letter to Anchor begins by
stating, inter alia:
946 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We believe that there is or may be a violation of
the collective bargaining agreement to the extent
that our union has recently been notified that your
company will be or may be in the near future termi-
nating its operations in Selkirk , New York and, con-
trarily, Nu-Car Carriers, Inc. (Leaseway Transpor-
tation), will be continuing its operations in Selkirk,
New York, on an expanded basis . Based on the in-
formation we presently have, it is our belief that
such an action is merely a subterfuge in an effort to
avoid the provisions of your company's collective
bargaining agreement with our union.
As noted above, it is our belief, based on the in-
formation we presently have, that the object of
your company 's notification of its termination of op-
erations in Selkirk, New York, is strictly and solely
the result of your company's efforts to circumvent
the provisions of your collective bargaining agree-
ment with our union.
The letter then requests "the following records and in-
formation in order to allow us to both properly adminis-
ter the collective bargaining agreement and prepare for
and present the pending grievance herein":
1. All written documentation in the possession of
your company with respect to the most recent two
bids/negotiations for the General Motors work in
the geographic jurisdiction covered by your compa-
ny's Selkirk, New York, terminal, including, but not
limited to, all correspondence from and to General
Motors regarding the contracts for such work; all
bid/negotiation specifications and written corre-
spondence for the bidding of such work ; all corre-
spondence and documentation relating to the bids
for such work , including the manner in which such
bids came about ; all notices for the bidding for such
work issued by General Motors; copies of the two
most recent contracts for such work ; and all docu-
mentation and correspondence setting forth the
terms and conditions of the new (most recent) con-
tract between your company and General Motors, if
any.
2. Identify the individuals in your company who
worked on and had any part in the preparation of
the most recent two bids for the General Motors
work described in item No. 1 above.
3. Identify what contact, if any, occurred be-
tween individuals employed by your company and
individuals employed by Nu-Car Carriers, Inc.
(Leaseway Transportation) with respect to the most
recent two bids for the General Motors work de-
scribed in item No . 1 above.
4. Specify the manner in which your company
found out about the bidding process/negotiation
process for the General Motors work described in
item No. 1 above.
5. Identify the following services that are provid-
ed to your company by or at Nu-Car Carriers, Inc.
(Leaseway Transportation):
a) administrative bookkeeping;
b) clerical work bidding;
c) labor relations;
d) managerial;
e) supervision, and
f) other (please identify and specify)
6. Identify the following services that are provid-
ed to Nu-Car Carriers, Inc. (Leaseway Transporta-
tion) by or at your company:
a) administrative bookkeeping;
b) clerical work bidding;
c) labor relations;
d) managerial;
e) supervision, and
f) other (please identify and specify)
7. Identify any other terminals operated by your
company affected by the most recent notification of
termination of General Motors work in the near
future.
8. The manner or method of ownership of your
company, including its stockholders, the date of ac-
quisition of such stock and the names of the princi-
pal officers of your company , its board of directors
and the stockholders.
9. Identify by name and position all individuals
having a supervisory or management responsibility
over and for your employees employed at your Sel-
kirk , New York terminal , including , but not limited
to, labor relations.
10. Specify the anticipated closing date of your
facility located in Selkirk, New York.
11. Specify the anticipated date on which your
company will lose the General Motors work at
your Selkirk, New York, facility.
12. Specify the names of, positions held, and pro-
portionate amounts of time spent by any employees
or officers of your company who now work for or
may have worked for or on behalf of Nu-Car Carri-
ers, Inc . (Leaseway Transportation) during the pre-
ceding two (2) years on a shared or full-time basis.
The August 13 letter to Nu-Car begins by stating:
It has recently come to our attention that your
company is, or may be in the process of, violating
its collective bargaining agreement with this union,
by reason of the concerted actions between your
company and Anchor Motor Freight, Inc.
(Leaseway Transportation), an associated company
also under contract with this union . Specifically, we
believe that there is or may be a violation of the
collective bargaining agreement to the extent that
our union has recently been notified that Anchor
Motor Freight, Inc. (Leaseway Transportation) will
be or may be in the near future terminating its oper-
ations in Selkirk, New York, and contrarily, your
company will be continuing its operations in Sel-
kirk, New York , on an expanded basis . Based on the
information we presently have, it is our belief that
such an action is merely a subterfuge in an effort to
avoid the provisions of Anchor Motor Freight,
Inc.'s (Leaseway Transportation) collective bargain-
ing agreement with our union.
ANCHOR MOTOR FREIGHT
In an effort to aid us in our attempts to adminis-
ter our union 's collective bargaining agreement with
your company and in an effort to pursue our rights
as they are set forth in Article 7 of the National
Master Automobile Transporters Agreement (Sec-
tion 3 thereof), we hereby request the following
records and information in order to allow us to
both properly administer the collective bargaining
agreement and prepare for and present the pending
grievance herein:
The requested information is almost identical to that
requested from Anchor . Obviously, certain of the re-
quests name Nu-Car rather than Anchor and request 10
to Nu-Car states : "Specify the anticipated date on which
your company will gain the General Motors work at
your Selkirk , New York facility," rather than the re-
quests of Anchor, requests 10 and 11.
By letter dated August 21, J. R. O 'Mullane, vice presi-
dent of the Automotive Carrier Division of Leaseway,
wrote to Bulgaro:
I have been asked to respond to your August 12,
1987 correspondence requesting certain information
pertaining to the relationship between Anchor
Motor Freight, Inc., and Nu -Car Carriers, Inc.
In response to your request for information, I
would appreciate it if you would provide me with
the specific basis of Local 294's claim that Anchor
Motor Freight and Nu-Car Carriers are alter egos
or single employees. [sic]
Once I have received your response, Anchor will
review the requests contained in your August 12th
correspondence and supply appropriate responses. If
you have any questions concerning my request,
please contact me. Thank you for your assistance.
By letter of the same date, Bob Brigham , of Nu-Car,
wrote to Bulgaro:
Your August 13, 1987 correspondence to Nu-Car
Carriers , Inc., has been forwarded to me for reply.
As you know , we have already provided to you
the letters you requested from General Motors.
In order to evaluate the relevancy of your
lengthy request for additional information, it is nec-
essary that you advise me as to the specific factual
basis of the Union's apparent allegation that Nu-Car
Carriers, Inc., is a single employer with Anchor
Motor Freight , Inc., and/or Nu-Car and Anchor
Motor Freight are alter egos . Pursuant to current
National Labor Relations Board law, the informa-
tion you have requested is not presumptively rele-
vant.
Upon receipt of your response, Nu-Car will pro-
vide an appropriate response to your request. Thank
you very much for your cooperation.
Jackson , as vice president and general manager of Nu-
Car, also replied to Bulgaro on that date:
Your August 13, 1987 correspondence to Nu-Car
Carriers, Inc., has been forwarded to me for reply.
947
As you know , we have already provided to you
the letters you requested from General Motors.
In order to evaluate the relevancy of your
lengthy request for additional information , it is nec-
essary that you advise me as to the specific factual
basis of the Union 's apparent allegation that Nu-Car
Carriers, Inc. is a single employer with Anchor
Motor Freight, Inc. and/or Nu-Car and Anchor
Motor Freight are alter egos . Pursuant to current
National Labor Relations Board law, the informa-
tion you have requested is not presumptively rele-
vant.
Upon receipt of your response , Nu-Car will pro-
vide an appropriate response to your request. Thank
you very much for your cooperation.
On September 20 counsel for the Union sent identical
letters to O'Mullane, Brigham , and Jackson:
Our law firm represents Teamsters Local 294. In
that capacity , we have been asked to respond to
your letter to the Local dated August 21, 1987.
As you know, the Local is presently pursuing a
grievance filed by it against Anchor Motor Freight,
Inc., under the terms of the National Master Auto-
mobile Transporters Agreement . As you also know,
that grievance deals specifically with the circum-
stances surrounding the so-called "loss" of the Gen-
eral Motors work by Anchor Motor Freight, Inc.,
at its Selkirk , New York facility on or about August
30, 1987 and the simultaneous "gaining" of that
very same work by Nu-Car Carriers, Inc. at its Sel-
kirk, New York facility on August 31, 1987.
As has been the Local's position throughout
these proceedings, the Local believes that under the
terms of the National Master Automobile Trans-
porters Agreement and particularly , pursuant to Ar-
ticles 1, 5 and 33 therein , the loss by one company
and the simultaneous gain by the other is simply a
subterfuge in order to allow the sole parent compa-
ny, Leaseway Transportation , to perform the very
same work at less than the high wages and terms
and conditions previously agreed to in the Anchor
collective bargaining agreement . It is the position of
the Local that both companies (Anchor and Nu-
Car) are a single employer and that the entire pro-
cedure described above is a direct violation of the
Articles cited above, and even more specifically,
Article 33. The two facilities in question , under the
terms of the National Master Automobile Trans-
porters Agreement comprise a single bargaining unit
and are both owned, upon information and belief,
by the same entity, namely, Leaseway Transporta-
tion . Accordingly, it is the position of the Local
that all three entities (Anchor, Nu-Car and
Leaseway) have, in an improper manner, "trans-
ferred" and "diverted" the General Motors work in
question from Anchor to Nu-Car.
As noted in the Local's original letters to Anchor and
Nu-Car, the Local is operating at this time based upon
the information it has been able to gather . The informa-
948 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion requested in the earlier letters is necessary not only
for the purpose of allowing the Local to administer its
collective bargaining agreement with the named employ-
ers, but moreover , is required pursuant to the terms of
that agreement as information properly requested under
the provisions of the grievance procedure.
It is the Local 's belief that both Anchor and Nu-
Car are equally as involved in this matter for the
simple reason that, based upon the Local 's informa-
tion and belief, labor relations and other key man-
agement personnel shared responsibilities with re-
spect to both companies as well as shared offices
and administrative services and that separate and
distinct bid procedures could not possibly have
taken place with respect to the so- called "rebid-
ding" of the General Motors work in question.
Based upon the information presently known by the
Local , it is the Local's belief that Anchor and Nu-
Car could not possibly have acted separate and dis-
tinct in this matter, but rather , only as a single em-
ployer.
Based on all of the above, the Local respectfully
requests that each and every one of the items of in-
formation previously requested be supplied. Addi-
tionally , the Local hereby requests that it be ad-
vised what happened with all of the pieces of equip-
ment, including vehicles and trailers , formerly oper-
ated by Anchor at its Selkirk, New York facility,
vis-a-vis Nu-Car Carriers.
By letter dated October 8, counsel for Respondent in-
formed Bulgaro that Nu-Car would not grant the
Union 's request for information ; he closed the letter by
stating : "In short, given the particular facts of this case,
your request for information is neither relevant nor nec-
essary ." Anchor also refused to provide the requested in-
formation.
Under well-settled Board law an employer must pro-
vide a union with requested information "if there is a
probability that such data is relevant and will be of use
to the union in fulfilling its statutory duties and responsi-
bilities as the employees ' exclusive bargaining representa-
tive ." Associated General Contractors of California, 242
NLRB 891, 893 ( 1979); NLRB v. Acme Industrial Co.,
385 U . S. 432 ( 1967). In Bohemia, Inc., 272 NLRB 1128,
129 (1984) (cited by counsel for the General Counsel, as
well as counsel for Respondents), stated:
The Board uses a liberal , discovery-type standard to
determine whether information is relevant, or po-
tentially relevant , to require its production. NLRB
v. Truitt Mfg. Co., 351 U.S . 149 (1956). Information
about terms and conditions of employment of em-
ployees actually represented by a union is presump-
tively relevant and necessary and is required to be
produced . Ohio Power Co., 216 NLRB 987 ( 1975),
enfd . 531 F.2d 1381 (6th Cir . 1976). Information
necessary for processing grievances under a collec-
tive-bargaining agreement, including that necessary
to decide whether to proceed with a grievance or
arbitration , must be provided as it falls within the
ambit of the parties ' duty to bargain . NLRB v. Acme
Industrial, supra ; Bickerstaff Clay Products, 266
NLRB 983 (1983).
However, when a union 's request for information
concerns data about employees or operations other
than those represented by the union, or data on fi-
nancial , sales and other information , there is no pre-
sumption that the information is necessary and rele-
vant to the union 's representation of employees.
Rather, the union is under the burden to establish
the relevance of such information . Ohio Power,
supra.
Based on this criteria , it is the Union 's burden to estab-
lish the relevancy of its August 12 and 13 requests to its
collective-bargaining obligations.
These cases usually arise from "double breasted" situa-
tions where a union learns that an employer with whom
it has a contract is also involved in a nonunion operation.
In order to learn whether the employer is violating its
agreement , the union requests information regarding the
ownership and operation of the two (or more) compa-
nies . As the administrative law judge stated in Profession-
al Eye Care , 289 NLRB 738, 752 ( 1988): "The union may
require information thatwill help determine whether a re-
cipient of transferred work is in some way related to the
transferring employer where it represents the employees
of the transferring employer ." However, prior to being
entitled to such information, the union must establish "a
reasonable basis to suspect such violations have oc-
curred ." Walter N. Yoder & Sons v. NLRB , 754 F.2d 531
at 535 (4th Cir . 1985), enfg . 270 NLRB 652 ( 1984); Pence
Construction Co., 281 NLRB 322. In Proctor Mechanical
Corp., 279 NLRB 201 (1986), the refusal to furnish the
information was a violation (in part) because the union
"had documentary proof, not mere suspicions , the Proc-
tor and IOTEC shared officers." In Bentley-Jost Electric
Corp., 283 NLRB 564 (1987), the union was in possession
of a sufficient amount of information for the administra-
tive law judge to conclude that it "had a reasonable basis
for its belief that Respondent" was diverting work to a
nonunion operation , in violation of its contract.
In Sheraton Hartford Hotel, 289 NLRB 483, 484 (1988),
the Board stated:
When the requested information does not pertain to
matters related to the bargaining unit, to satisfy the
burden of showing relevance , the union must offer
more than mere suspicion for it to be entitled to the
information.
In dismissing the complaint , the Board stated:
At best, the Union has advanced a hypothetical
theory explaining how the information might be
useful in determining whether the Respondent has
violated the parties' contract. We find that the
Union's preferred reason for believing the informa-
tion relevant is nothing more than mere suspicion.
In Bohemia, Inc., supra , the Board stated:
The Union 's request for information was based
solely on the suspicion of some Culp Creek employ-
ANCHOR MOTOR FREIGHT
ees that work had been transferred to Drain because
of the wage cut there . The Union does not contend,
nor does the record demonstrate , that it had any ob-
jective factual basis for believing such a transferred
occurred.
One reason for the dismissal of the complaint in Bohe-
mia, was "the absence of any objective basis for believ-
ing unit work was being diverted ." See also Calmat Co.,
283 NLRB 1103 (1987).
These are the criteria upon which the instant matter is
to be judged. The evidence here establishes no objective
basis for the Union 's demand here; rather it appears that
the demand is supported solely by sheer conjecture. For
example, when asked what he meant by subterfuge, Bul-
garo testified : "My feeling was that the companies were
trying to circumvent the use of the Anchor rider." Addi-
tionally, the September 10 letter of counsel for the Union
to the Respondent states:
the loss by one company and the simultaneous gain
by the other is simply a subterfuge in order to allow
the sole parent company, Leaseway Transportation,
to perform the very same work at less than the high
wages and terms and conditions previously agreed
to in the Anchor collective bargaining agreement.
Although this is not an unreasonable argument it is
still only "mere suspicion" (Sheraton Hartford) and not
sufficient to satisfy the Board's criteria for relevance. For
949
this reason, I recommend that this allegation and the
consolidated complaint be dismissed.4
CONCLUSIONS OF LAW
1. Respondents Anchor Motor Freight, Inc., and Nu-
Car Carriers, Inc. are each employers engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent did not violate Section 8 (a)(1) and (5)
of the Act as alleged in the consolidated complaint.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
s
ORDER
It having been found and concluded that Respondents,
Anchor Motor Freight, Inc. and Nu-Car Carriers Inc.,
have not engaged in unfair labor practices as alleged, the
consolidated complaint is dismissed its entirety.
4 Counsel for Respondent Nu-Car, in his brief, requests that the con-
solidated complaint be dismissed on another ground , as well , that the
Board should defer to the determination of the Joint Committee issued on
November 18. Based on my reading of Olin Corp., 268 NLRB 573 (1984);
United Technologies Corp, 274 NLRB 609 (1985); and Federated Answer-
ing Service, 288 NLRB 341 (1988), and the Board 's concern for "two-
tiered arbitration process" (General Dynamics Corp., 268 NLRB 1432
(1984)) 1 would not defer
5If no exceptions are riled 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.