N. C. Coastal Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Aug 5, 1975

219 N.L.R.B. 1009 (N.L.R.B. 1975)

N. C. COASTAL MOTOR LINES, INC. 1009
N. C. Coastal Motor Lines , Inc. and Freight Drivers
and Helpers Local Union No. 557, affiliated with
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen, and Helpers of America.
Case 5-CA-6787
August 5, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On March 31, 1975, Administrative Law Judge
Richard L. Denison issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel and the Charging Party filed answering
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order. We find no merit to
the Respondent's contention that it has been denied
due process.
The Respondent argues that the Administrative
Law Judge's conclusion that it was discriminatorily
motivated and his recommendation that the Respon-
dent reinstitute the bargaining unit work go beyond
the scope of the complaint and were not litigated,
thereby depriving it of due process. It urges that, at
the least, the Decision and recommended Order be
modified or alternatively that the record be reopened
so that it may adduce further evidence. In essence,
the Respondent contends that it was not on notice
that there was any question about its motivation or
about reinstituting the bargaining unit operation and
that an unfair labor practice may not be found, or
remedy ordered, that is not supported by a complaint
allegation or litigated at a hearing.
We do not agree with the Respondent's arguments.
The acts found unlawful were fully set forth in the
complaint. The complaint asserts that the Respon-
dent refused to bargain in good faith, alleging two
specific acts: insisting on meeting in Raleigh, North
Carolina, and unilaterally terminating the bargaining
unit operation without notice to the Union and with-
out offering to bargain over the effects. Those were
the only violations found by the Administrative Law
Judge.
The remedy was not alleged, but there is no such
requirement. The absence of any proposed remedy in
the complaint did not lead•the Respondent to request
a bill of particulars and the Respondent does not
contend that it assumed any violations would be left
unremedied. However, the record demonstrates that
the Respondent contemplated the remedy it objects
to and litigated its economic justification to its satis-
faction at the hearing.
In its answer to the complaint, the Respondent
averred that it was economically motivated. The
General Counsel announced in his opening state-
ment that he would produce evidence to show the
Respondent's antiunion motivation, that over-the-
road drivers were performing the bargaining unit's
former work, and that the terminal operation had not
been abolished. Respondent's counsel at the hearing
asserted that the bargaining unit operation had been
abolished, that the Respondent's actions were eco-
nomically justified, and that its actions were not mo-
tivated by any antiunion feeling.
The Administrative Law Judge consistently ruled
that the reasons for the Respondent's actions were
relevant and repeatedly ruled in the Respondent's fa-
vor when it sought to, and did, adduce evidence to
support the contention in its answer and in its open-
ing statement that it was economically motivated.
The greater part of the testimony at the hearing was
directly related to whether or not the Respondent
was economically justified and to whether it was hos-
tile to the Union.
The Respondent's economic justification was dealt
with extensively in its brief to the Administrative
Law Judge. It predicated much of its legal argument
and its discussion of any remedy on its economic
contentions and denied any union animus. The Re-
spondent specifically asserted that it would be vain
to reinstitute the bargaining unit operation precisely
because of its claim that it was terminated for "sound
economic reasons."
The record as a whole shows beyond any doubt
that the Respondent was fully aware that its motiva-
tion and economic justification were in issue and that
it might be required to remedy any unfair labor prac-
tices by reinstituting the bargaining unit operation.
The Respondent can scarcely be heard to complain
now not only that it did not know that there was any
question about the reasons for its actions or of re-
turning to the status quo ante, but also that there was
no reason it should have known.
Further, although the Board has stated that where
reinstitution of an operation would work an unneces-
sary hardship it was reluctant to impose that remedy
if the employer had not been discriminatorily moti-
vated, the Board enjoys wide discretion in fashioning
remedies to effectuate the Act's policies and has nev-
219 NLRB No. 143
1010 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er held that such a remedy can or will be ordered
only when a respondent has acted from union ani-
mus. Nor can the remedy be termed "punitive" as
the Respondent contends . Restoration of the status
quo ante following an unfair labor practice is prima
facie appropriate; it is for the Respondent to demon-
strate that it is not appropriate.
The record shows that the Respondent has not dis-
posed of its operating equipment 1 and still maintains
a terminal in Baltimore , where it cleans, loads, and
dispatches trucks; employs a terminal manager at
that terminal , and that at least 60 percent of the work
previously performed by the bargaining unit is still
being performed, while only three of the four em-
ployees in the bargaining unit have been ordered re-
instated. Any economic or operational disruption
will be minimal compared to the Respondent's viola-
tion of its employees' rights and is attributable solely
to the Respondent's failure to satisfy its lawful bar-
gaining obligation.
Accordingly, we find no merit to the Respondent's
exceptions and deny its motion to reopen the record.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent N. C. Coastal Motor Lines,
Inc., Baltimore , Maryland, its officers , agents, suc-
cessors, and assigns , shall take the action set forth in
the Administrative Law Judge's recommended Or-
der.
1 David T. Bailey , Jr., vice president in charge of dispatchers, testified
that the trucks and trailers "were put somewhere else."
does not deny that Respondent failed to notify the Union
of the purposed curtailment of the operations at Baltimore.
Affirmatively , the answer pleads that a representative of
the Union has requested a conference with D . T. Bailey,
Jr., in Baltimore , Maryland , on several occasions since
June 20, 1974; and that officers of the Respondent have
offered to meet a representative of the Union in Raleigh,
North Carolina, on several dates in June and July 1974.1
All parties were afforded full opportunity to participate
in the trial. The briefs filed by the parties have been care-
fully considered.
Upon the entire record and from my observation of the
demeanor of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTION
N. C. Coastal Motor Lines, Inc., the Respondent, a
North Carolina corporation , is engaged in the operation of
freight terminals in several States and the interstate trans-
portation of freight by motor carrier. The only terminal
involved in these proceedings is located in Baltimore,
Maryland . During the preceding 12 months , a representa-
tive period , Respondent derived gross revenues in excess of
$50,000 from the interstate transportation freight. At all
times material herein , Respondent is, and has been, an em-
ployer as defined in Section 2(2) of the Act, engaged in
commerce and an operation affecting commerce as defined
respectively in Section 2(6) and (7) of the Act.
II. LABOR ORGANIZATION
Freight Drivers and Helpers Local Union No. 557, affili-
ated with International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America, hereinafter
referred to as the Union, or as Local 557, is and has been at
all times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge: This
case was heard at Baltimore , Maryland, February 18, 1975.
The charge was filed July 22, 1974, and a complaint issued
January 10, 1975, alleging, that Respondent violated Sec-
tion 8(a)(l) and (5) of the Act by refusing to bargain in
good faith with the Charging Party, the duly certified bar-
gaining representative of its Baltimore city drivers in that
Respondent allegedly insisted on meeting with the Union
only in Raleigh , North Carolina; and further, unilaterally
terminated his Baltimore , Maryland, operations in the bar-
gaining unit without notice and without offering to bargain
with the Union concerning the effects of its ceasing these
operations . Respondent's answer denies having committed
any unfair labor practices as alleged in the complaint, but,
Respondent, an interstate trucking company, maintains
its principal terminal in Raleigh , North Carolina. Respon-
dent also has a small terminal in Baltimore , Maryland, un-
der the supervision of Terminal Manager Charles P. Hebb.
Until on or about May 15, the Baltimore operations con-
sisted of four city drivers Robert Francis, Michael Bake-
well, James Miller , and Ronald Shaffer, and the terminal
manager . Following an NLRB election on May 10, which a
Local 557 won, the Union was certified on May 20, as the
exclusive collective-bargaining representative for
Respondent's Baltimore city drivers. On May 28, Local
557's President , Joseph Vibuela, assigned Business Repre-
sentative Daniel Mattio as the Union's bargaining repre-
sentative for the purpose of negotiating a contract with the
Respondent covering the employees in a certified unit.2
1 All dates are in 1974 , unless otherwise specified.
2 All full-time and regular part -time truckdrivers employed by the em-
ployer at its 1630 Ludlow Street, Baltimore, Maryland, location, excluding
N. C. COASTAL MOTOR LINES , INC. 1011
That same day, Mattio contacted Terminal Manager
Hebb , identified himself , and explained his reason for call-
ing. Hebb promised to contact Mattio in a couple of days,
but did not do so . On June 3 , Mattio called again. Hebb
responded that he had to talk with someone in Raleigh,
North Carolina , after which he would get back to Mattio,
but thereafter Hebb did not respond . On June 5 or 6, Mat-
tio called Hebb again whereupon Hebb instructed him to
contact Tom Bailey at the Company 's headquarters in Ra-
leigh .3 Upon calling for Bailey later that day, Mattio was
permitted to talk only to the dispatcher , who, when he
heard the purpose of Mattio 's call, responded that he
would forward the information to Bailey and have him
return the call. Bailey did not call . Finally , on June 19 or
20, Mattio managed to get through to Bailey and asked
him to meet with him in Baltimore to negotiate a contract
for the employees in the Baltimore bargaining unit of
N. C. Coastal . Bailey responded that he made periodic vis-
its to Baltimore, and the next time he would be in Balti-
more he intended to stay for a week or 10 days, and would
then contact Mattio to set a date and to meet and negoti-
ate. Mattio heard nothing further from Bailey , and there-
fore decided to contact Mr. Bernard Jeweler , the Union's
attorney . Jeweler advised Mattio to wait about a week.
Thereafter , during the first week of July , Mattio again
called Respondent 's Raleigh headquarters and talked to
the dispatcher who again promised to have Bailey call.
When he heard nothing further, Mattio again contacted
Jeweler who wrote a letter dated July 10, addressed to
Thomas Bailey , Jr., summarizing Mattio's efforts to meet
and bargain with Respondent , and reminding Bailey that if
the company did not intend to bargain in good faith with
the Union by engaging in dilatory tactics , Local 557 would
have no choice but to seek relief from the National Labor
Relations Board. D. T. Bailey, Jr., responded by letter dat-
ed July 17, addressed to Jeweler stating:
In reply to your letter of July 10th I take exception
to your statement and opinion that I have delayed in
answering Mr. Maddio 's request for conference. On
June 20 I told Mr . Maddio that I could see him on
June 21st and also since some were on vacation, I
would be here next week and could see him at any
time.
For your information , Mr. Hebb does not have the
authority to negotiate for us.
On July 19 , Jeweler wrote to D. T . Bailey, Jr., as fol-
lows:
In response to your letter of July 17, 1974, Mr.
Maddio is not in agreement with your assertion that
you informed him on June 20, 1974, that you could see
him on June 21, 1974, nor is he in agreement with your
assertion that you offered to meet with him at any
time during the week subsequent to June 20, 1974.
In any event, Mr. Maddio is available for negotia-
tions on either Thursday, July 25, or Friday, July 26,
office clerical employees , professional employees , guards and supervisors as
defined in the Act.
3 Based on the credited testimony of Mattio who exhibited a better me-
mory and whose testimony was more precise than that of Hebb.
1974, and Mr. Maddio suggests that a proper meeting
place would be in the Conference Room , at the Union
Hall, located at 6000 Erdman Avenue , Baltimore. If
you would rather not meet at the Union Hall, Mr.
Maddio is agreeable to conferring with you at any
other mutually acceptable place in the Baltimore area.
Please contact Mr. Maddio and indicate to him
whether or not you can schedule a meeting for June 25
or 26 and please also indicate your preference for the
place of such a meeting . If you 're unavailable on July
25 or 26, Mr. Mattio will offer alternative dates.
On July 22 , Jeweler filed a charge on behalf of Local 557
with the Baltimore Regional Office of the Board.
On July 23 , 1974, D . T. Bailey , Jr., wrote the following
letter to Mattio:
In reply to Mr. Jeweler's letter of July 10 , 1974, we
cannot meet with you on July 25 or 26 , due to prior
committments but will be in Raleigh during the next
two weeks and can meet with you anytime between
the hours of 8:30 a .m. or 5 : 30 p.m . except on Sundays.
If you will let us know at convenient time , we will
be here.
David Thomas Bailey , Jr., vice president in charge of
dispatchers for Respondent , testified that the Company
maintains an office in Jersey City, New Jersey , and Balti-
more , Maryland , but that the only terminal for the
Company's operations is located in Raleigh , North Caroli-
na. At the time of the hearing, the Company employed
approximately 40 employees. According to Bailey, in the
spring of 1974, the Company had a high percentage of
what it calls "L.T.L. Business ." L.T.L. stands for Less
Than a Truck Load . In other words , this type of business
consists of making numerous pickups of small quantities of
freight in and around the Baltimore area , loading manual-
ly, which Respondent then carries over the road and dis-
tributes at the various designated destinations . This type of
business Respondent found expensive in terms of both
manpower and equipment -costs . Therefore , in the spring of
1974, particularly in March , Bailey testified that Respon-
dent was seriously considering phasing out its LTL Busi-
ness both in New Jersey and in the Baltimore areas in
favor of concentrating on more profitable full trailer load,
point to point operations . According to Bailey , since under
the Company 's grant of authority from the ICC, Respon-
dent is prohibited from refusing such small shipments, the
Company decreased its LTL business during the second
and third quarters of 1974, until 90 percent of the loads
were solid. Bailey further testified , "We have picked up
other loads in other locations that are compatible to the
Baltimore area, as far as our trucks are concerned, so we
are loading solid loads and paletized ." Bailey was unable
to pin point when the (final decision to eliminate the LTL
operations in Baltimore was made ,. but testified that the
decision was made some time during March or April of
1974. Thus , following the representation election won by
the Union on May 10, Respondent eliminated the entire
bargaining unit, discharging Robert Francis on May 15,
and gradually reducing Michael Bakewell 's hours until on
June 18, he was no longer working . James Miller voluntari-
1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly quit on July 24. Ronald Shaffer was discharged on Au-
gust 8. None of these employees were replaced.
D. T. Bailey, Jr., admitted that the decision to eliminate
the LTL operations in Baltimore and the effectuation of
that decision was made without notice to and bargaining
with, the duly certified representative of Respondent's Bal-
timore employees . Respondent says the lack of notice was
"inadvertent ." The gist of Bailey's explanation for this
course of action was simply that he was so busily engaged
in Respondent's operations, he was either unaware or
failed to consider that fact that he had an obligation to
meet and consult with the Union . Bailey also admitted that
he refused to meet with the Union in Baltimore because
being a small Company his presence was required in Ra-
leigh . However, Bailey also testified that he had done more
traveling than any of the Company 's other officers , partic-
ularly since November 1973, and that he did make a trip to
Baltimore immediately prior to the NLRB election and on
a weekend (staying over night) in June or July . With re-
spect to this latter trip, Bailey admitted that he never
thought of contacting Mattio for the purpose of bargaining
and that it would have been possible for him to have met
and negotiated for three or four hours . With respect to the
conversations which took place between Bailey and Mat-
tio, Bailey was able to recall very little in the way of details
concerning these conversations. His answers to questions
concerning these contracts contained responses such as "I
think so," "I'm sure I did ," "I don't recall" etc. Therefore
to the extent that Bailey's rather vague testimony concern-
ing his limited communication with Mattio differs from the
precise detailed description of these contacts by Mattio, I
credit Mattio's version . Bailey also was not precise or de-
tailed in his testimony concerning the elimination of the
work of the Baltimore city drivers, while drivers Ronald
Shaffer and Michael Bakewell4 testified in considerable
detail concerning the events occurring immediately prior to
the NLRB election , and the circumstances surrounding the
phasing out of Respondent's LTL Business, and their re-
sulting termination. To the extent their testimony differs
from that of Bailey and Hebb , I credit Shaffer and Bake-
well. Shaffer was a city driver for Respondent from Febru-
ary 1973 until August 7. He described his work as picking
up freight at various customers and bringing it back to the
terminal where it was dropped and later picked up by over-
the-road drivers . Shaffer testified that a majority of the
time the city drivers would pick up full loads , but there
were some LTL freight . Around the end of April, the union
organizational drive started when Shaffer and Bakewell
contacted Joe Zappacosta at Local 557, and obtained
union authorization cards which they and the other city
drivers returned signed a couple of days later.
According to Shaffer, during the week before May 10
representation election , D. T. Bailey, Jr., came to Balti-
more and proceeded to speak individually with the drivers.
Shaffer was approached in a trailer two or three days be-
fore the election. No one else was present . According to
Shaffer, Bailey asked for his views concerning the Union,
and how he was going to vote . He stated if the Union did
4 In his brief, General Counsel states that the correct spelling is Bagual.
not get in, there would be a 25-cent-per-hour raise immedi-
ately and another 25-cent raise by the end of 1974. Bailey
mentioned that Robert Francis would also get a raise.
Michael Bakewell, a city driver for Respondent from
some time in 1973 until June 18, 1974, testified that a cou-
ple of days prior to the representative election, D. T. Bai-
ley, Jr., asked him how he liked the Union and how he was
going to vote. Bakewell did not answer. Then Bailey prom-
ised him more money, more hours, and more benefits if he
did not vote for the Union.
Bailey, in his testimony, admitted to talking to the Balti-
more employees about the Union. He testified, " I am sure
we talked about it, but I cannot tell you what we said word
for word. I have no idea." Thus, once again , as elsewhere
in his testimony concerning other events, Bailey exhibited
a convenient loss of memory concerning his preelection
conversations with employees. I therefore find that during
the incident in question, Bailey did question Shaffer and
Bakewell concerning how they were going to vote, and did
in fact promise Shaffer and Robert Francis raises immedi-
ately and another by the end of 1974, as testified to by
Shaffer. Following the election, the over-the-road drivers
began bringing into the terminal more and more freight
formerly handled by the unit drivers. As this occurred, Mi-
chael Bakewell 's hours were reduced. Shaffer, whose duties
included staying in the terminal sometimes answering the
phone as loads were called in, observed an even flow of
freight as he recorded on the board pickups for the next
day. Thus, based upon his actual observations in taking
telephone orders for freight pickup, Shaffer concluded that
there was enough work for the city drivers to be employed
40 hours per week. Prior to May 10, Shaffer testified that
he averaged around 50 hours per week, but, at the time of
his termination , by which time the other city drivers had all
been terminated, he was working 66 hours per week. On
the day of his termination, Shaffer arrived at the terminal
after having been out all day in his truck picking up loads
at different customers. Hebb, the terminal manager, in-
structed Shaffer simply to leave the tractor and trailer
hooked up and he would send it out on the road. Shaffer
asked "does this mean I am laid off?" According to Shaf-
fer, Hebb replied, "Yes, due to union activities and freight,
etc., we're going to close up shop." Shaffer inquired con-
cerning what Hebb was going to do the next day about
picking up freight all day at Proctor and Gamble,
Michael's Warehouse and Lever Brothers. Hebb replied
that one of the road drivers would pick them up. Hebb
testified fully at the hearing, but omitted any reference
whatsoever to a conversation with Shaffer on the day of his
termination.
According to Michael Bakewell, prior to the union cam-
paign, he was working on a 40-hour-week basis, but after
the Union won the election, his hours were decreased down
to 3 days, then to 2, and finally to 1. At this point, Termi-
nal Manager Hebb instructed him to call in everyday.
Bakewell testified that the reduction in work began about 2
to 3 weeks after the election at which time the road drivers
started picking up freight in the city, and at Lever Brothers
in particular. Finally, after calling in for approximately 3
weeks without having been assigned any work, Bakewell
ceased calling the company after the following conversa-
N. C. COASTAL MOTOR LINES, INC. 1013
tion with Hebb. Hebb told Bakewell he had no work for
him. Bakewell accused Hebb of giving his work to the road
drivers , and laying him off because he was trying to get the
Union in. Hebb replied that was right . Terminal Manager
Hebb did not deny having this conversation with Bakewell,
and therefore , under all the circumstances , Bakewell is
credited.
During the course of the hearing , Respondent altered its
contention somewhat , by asserting that Robert Francis and
Michael Bakewell were discharged for a cause and also
because they were no longer needed for LTL work. With
respect to Robert Francis, D. T. Bailey, Jr., testified that it
was only after the NLRB election that Respondent discov-
ered through a police report that he had been involved in
an accident on March 18. Hebb testified that Michael
Bakewell burned out a starter in a tractor and collapsed a
trailer some time during the spring . However , Hebb also
testified as follows:
Q. (By Mr. Joslin) Are you familiar with the cir-
cumstances under which Mr. Bakewell left the Com-
pany?
A. Mr. Bakewell-We just did not have the amount
of work for Mr. Bakewell at the time.
Q. Was he calling in at this time?
A. At that time, Mike Bakewell called in every
morning.
Q. Was this in accordance with the instructions you
gave him?
A. Yes sir.
Bakewell remembered the starter and trailer incidents,
but denied the responsibility for either of them.
ANALYSIS AND CONCLUDING FINDINGS
In their briefs, counsel for General Counsel, and the
Charging Party argue that Respondent violated Section
8(a)(1) and (5) of the Act by insisting on meeting with the
Union in Raleigh, North Carolina, instead of meeting in
Baltimore , where the bargaining unit was located . Respon-
dent, on the other hand, urges that its offices are located in
Raleigh, that the management of the Company consists
only of three persons , and that their duties keep them close
to Raleigh, particularly during the summer months. The
record clearly shows that during the Union's initial efforts
to begin bargaining the Respondent did not give prompt
attention to the commencement of negotiations in that in
several instances , company officials did not respond, as
promised , to representative Mattio's efforts to set a time
and place for a meeting . Finally, when pressed by corre-
spondence from the Union's attorney , Respondent insisted
on meeting in Raleigh and refused to meet in Baltimore.
This conduct by Respondent, considered in light of D. T.
Bailey, Jr.'s admissions that he had been traveling more in
the months in question, and that he had made a trip to
Baltimore in June or July, and could have negotiated for
three or four hours with the Union but never considered
doing so, displays a lack of serious attention to the labor
relations phase of its operations , sufficient to establish a
violation of Section 8(a)(1) and (5) of the Act. Insulating
Fabricators, Inc., 144 NLRB 1325 (1963); General Motors
Acceptance Corporation, 196 NLRB 137 (1972); Gulf Con-
crete Company, 165 NLRB 627 (1967).
Counsel for General Counsel also contends that
Respondent's antiunion animus is established by the pre-
election remarks made by D. T. Bailey, Jr., to employees
Shaffer and Bakewell, and that it was not until after the
Union won the representation election that Respondent
eliminated the bargaining unit by transferring the city
driver's work to over-the-road drivers, and then terminat-
ing the entire bargaining unit, without notice to or bargain-
ing with the Union over the effects of the change. Respon-
dent urges that a decision to cease the LTL operations was
made prior to the election in March and April, that it was
solely an economic decision, and that its LTL operations
ceased both in Baltimore and in the Newark, New Jersey,
area, leaving insufficient work to justify the continued em-
ployment of the city drivers. Respondent argues that Rob-
ert Francis was also discharged partly because of lack of
work, and partly because he failed to report an accident.
Bakewell, it is urged, was also discharged for damage to
company property in addition to lack of work. Respondent
contends that James Miller voluntarily quit, and that Shaf-
fer was laid off for lack of work. Respondent's witnesses
admit that the Union was not notified or afforded an op-
portunity to bargain about any aspect of its elimination of
the LTL phase of its operations.
I find that Respondent's assertion that employees Fran-
cis and Bakewell were discharged for cause is without mer-
it. The incidents attributed to these employees occurred
prior to the election and, in particular, Bakewell's alleged
misconduct occurred there 4 months prior to his discharge.
Moreover, the testimony of D. T. Bailey, Jr., and C. P.
Hebb concedes and clearly establishes that the only reason
these employees, as well as Shaffer were released was
Respondent's change in its Baltimore operations.
I further find that the General Counsel has failed to
prove that James Miller quit Respondent's employ because
there was not enough work for him as a result of the
change in operations. Miller did not testify. The only evi-
dence concerning Miller is Terminal Manager Hebb's testi-
mony, that one morning when Miller failed to come to
work, Hebb called, at which time Miller said he quit be-
cause he "could not take the guff that the boys at the sugar
house gave him the night before when he was there to
load."
The General Counsel in the complaint has not alleged
any violations of the Act, with respect to whether or not
Respondent failed in its obligation to bargain with the
Union, concerning the decision to eliminate the LTL oper-
ations in Baltimore. I do find that Respondent's admitted
failure to notify and bargain with the Union concerning
the effects of its decision to eliminate city drivers in Balti-
more violated Section 8(a)(1) and (5) as alleged. I further
find, as fully litigated at the hearing, that Respondent's
motive in making the change was discriminatory. Respon-
dent presented mostly undetailed and conclusionary testi-
mony together with second hand, unverified documentary
evidence in support of its position that the decision to elim-
inate its Baltimore city drivers was solely an economic one.
Such evidence is insufficient to overcome the credited, and
for the most part uncontradicted, testimony of Shaffer that
1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately prior to the election D. T. Bailey, Jr., prom-
ised him a 25-cent-per-hour raise immediately, and another
25 cents an hour by the end of the year. Shortly after the
Union won the election, the company began transferring
the work of the city drivers to over-the-road drivers, and
terminated the entire bargaining unit. Such conduct clearly
shows that Respondent was utilizing the LTL decision as a
device to negate the results of the representation election.
Thus, whether Respondent's conduct is considered a trans-
fer of work and within the scope of the Supreme Court's
ruling in Fibreboard Paper Products Corp. v. N. L. R. B., 379
U.S. 203 (1964) (see also the Board's decision in Bruce E.
Kronenberger and Herbert Schoenbrod d/b/a American
Needle & Novelty Company, 206 NLRB 534; or a partial
closing of operations as in Ozark Trailers, Inc., 161 NLRB
561 (1966), Respondent has plainly failed to satisfy its obli-
gation to bargain with the duly certified representative of
its Baltimore City drivers.
CONCLUSIONS OF LAW
1. Respondent is an Employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Local 557 is a labor organization within the meaning
of Section 2(5) of the Act.
3. All full-time and regular part-time truckdrivers em-
ployed by the Employer at its 1630 Ludlow Street , Balti-
more, Maryland, location , excluding office clerical employ-
ees, professional employees , guards and supervisors as
defined in the Act, constitute an appropriate unit for bar-
gaining within the meaning of Section 9(b) of the Act.
4. The Union, Local 557, has been at all times material
herein, the exclusive representative of the employees in the
aforesaid appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By insisting on bargaining in Raleigh , North Caroli-
na, in the context of a lack of diligent effort to meet and
negotiate with the Union, and by unilaterally transferring
the work of its Baltimore city drivers to road drivers and
terminating the bargaining with the Union, Respondent
violated Section 8(a)(5) and (1) of the Act.
6. 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
with their designated representative.
However, the crux of the problem of fashioning a reme-
dy in cases of this type is the question of whether or not the
company should be ordered to nullify the change and re-
store their operations. The Board has expressed reluctance
to order the resumption of operations, especially in cases
where the closing of operations was for nondiscriminatory
reasons, and where machinery has been removed or plant
facilities are otherwise not available. Burroughs Corpora-
tion, 214 NLRB No. 88. A similar reluctance has been ex-
pressed where the change was a major one entailing a sub-
stantial withdrawal of capital investment, where the
remaining operation bears little relationship to the discon-
tinued operation, or where other practical considerations
weigh against the restoration of the status quo ante. Summit
Tooling Company and Ace Tool Engineering Co., Inc., 195
NLRB 479 (1972); Kingwood Mining Company, 210 NLRB
844 (1974). However, in other cases where, as here, there is
strong evidence that a discriminatory motive brought
about the change of operations, and the change itself con-
sists for the most part, of shift of work from unit employees
to others without a substantial physical change in opera-
tions, the Board has ordered a resumption of operations.
Florida-Texas Freight, Inc., 203 NLRB 509 (1973). Here
Respondent never met and bargained with the Union fol-
lowing the representation election, but simply gave the bar-
gaining unit's work to its road drivers and terminated the
unit employees. The Union was presented with a fait ac-
compli. The remarks made to employees by D. T. Bailey,
Jr., and Terminal Manager C. P., Hebb, coupled with the
timing and manner in which the change was effectuated,
establishes the Company's discriminatory motive. Under
all these circumstances, I shall order the Respondent to
restore the status quo ante by reinstituting the work of its
Baltimore city drivers and by offering the terminated bar-
gaining unit employees reinstatement to the positions
which they held prior to their unlawful termination with
backpay computed on a quarterly basis plus interest at 6
percent per annum as prescribed in F. W. Woolworth Com-
pany, 90 NLRB 289 (1950), and Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), from date of termination to the
date of reinstatement.
Upon the foregoing findings of fact, and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
Having found that the Respondent has engaged in and is
engaging in certain unfair labor practices, I shall order
it to cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
To remedy Respondent's violation of Section 8(a)(5), as
found herein, by its insistence on meeting in Raleigh,
North Carolina, and lack of diligence in arranging to meet
with the Union, and by its unilaterally ceasing to assign
work to its Baltimore city drivers and transferring said
work to road drivers, I will order that Respondent, upon
request, meet and bargain with the Union, and that it shall
cease and desist from unilaterally transferring unit work or
otherwise making unilateral changes in its employees'
terms and conditions of employment without consulting
ORDERS
The Respondent, N. C. Coastal Motor Lines, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Freight Drivers
and Helpers, Local Union No. 557, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
5 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Sec.
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
N. C. COASTAL MOTOR LINES, INC.
men and Helpers of America , as the exclusive bargaining
representative of Respondent 's employees in the appropri-
ate unit with respect to wages, hours, and other terms and
conditions of employment ; and from unilaterally transfer-
ring unit work or otherwise unilaterally changing the wag-
es, hours , and other terms and conditions of employment
of unit employees without notice to and bargaining with
their duly designated collective bargaining representative.
The appropriate unit is:
All full-time and regular part-time truckdrivers em-
ployed by the employer at its 1630 Ludlow Street, Bal-
timore , Maryland, location excluding office clerical
employees , professional employees , guards and super-
visors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action , designed to ef-
fectuate the policies of the Act:
(a) Reinstitute and restore the work previously per-
formed by its Baltimore city drivers represented by Freight
Drivers and Helpers Local No. 557, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, and offer to Robert Francis,
Michael Bakewell , and Ronald Shaffer, immediate and full
reinstatement to their former positions or, if those positions
no longer exist , to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privi-
leges, and make them whole for any loss of pay suffered by
them in the manner set forth in the section above entitled
"Remedy."
(b) Bargain collectively with Freight Drivers and Help-
ers Local Union No. 557, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America , as the exclusive bargaining repre-
sentative of Respondent 's employees in the appropriate
unit described above with respect to wages, hours, and
other terms and conditions of employment.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records , social security payments records , time cards,
personnel records, and all other records necessary to ana-
lyze the amount of backpay due under the terms of this
recommended Order.
(d) Post at its terminal in Baltimore , Maryland, copies
of the attached notice marked "Appendix." 6 Copies of
such notice on forms as provided by the Regional Director
for Region 5, after being signed by an authorized repre-
sentative of Respondent shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
6 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National 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."
1015
(e) Notify the Regional Director for Region 5, in writing
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing in which all parties had the opportunity to
present their evidence, it has been decided that we violated
the law and we have been ordered to post this notice. We
intend to carry out the order of the Board and to abide by
the following:
WE WILL NOT refuse to bargain collectively with
Freight Drivers and Helpers Local Union No. 557,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of all full-
time and regular part-time truckdrivers employed by
the Employer at its 1630 Ludlow Street, Baltimore,
Maryland location, excluding office clerical employ-
ees, professional employees, guards and supervisors as
defined in the Act.
WE WILL NOT unilaterally transfer unit work or other-
wise unilaterally make changes in wages, hours, and
other terms and conditions of employment for the em-
ployees in the appropriate unit described above with-
out notice to and bargaining with the exclusive collec-
tive-bargaining representative of our employees.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights as guaranteed to them by Section 7 of
the Act.
WE WILL reinstitute and restore the operations previ-
ously performed by our Baltimore city drivers in the
appropriate unit represented by Freight Drivers and
Helpers Local Union 557 affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men of America, and we will bargain collectively with
the above-named labor organization as the exclusive
bargaining representative of our employees in the ap-
propriate unit with respect to wages, hours, and other
terms and conditions of employment.
WE WILL offer to Robert Francis, Michael Bakewell,
and Ronald Shaffer, terminated as the result of the
transfer of their work to others, immediate and full
reinstatement to their former positions or, if those po-
sitions no longer exist, to substantially equivalent posi-
tions , without prejudice to their seniority or other
rights and privileges, and make them whole for any
loss of pay suffered by them as a result of our bypass-
ing their above-named , exclusive collective-bargaining
representative.
N. C. COASTAL MOTOR LINES, INC.