O-J Transport Co.

National Labor Relations Board - Board Decisions

May 11, 2001

333 N.L.R.B. 1381 (N.L.R.B. 2001)

O-J TRANSPORT CO. 1381
O-J Transport Company, Inc. and Gratiot Driver
Leasing, Inc. and International Union, United
Automobile, Aerospace and Agricultural Im-
plement Workers of America (UAW), AFL–CIO
and National Federation of Public and Private
Employees, AFL–CIO, Federation of Private
Employees Division, affiliated with District 1,
Marine Engineers Beneficial Association
(MEBA), AFL–CIO, Party to the Contract.
Case 7–CA–41105
May 11, 2001
DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS
LIEBMAN AND HURTGEN
On September 23, 1999, Administrative Law Judge
Philip P. McLeod issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed cross-exceptions, supporting ar-
gument, and an answering brief. The Respondent filed
an answering brief and a reply brief.
The National Labor Relations Board has delegated 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,1 and conclusions as
modified herein and to adopt the recommended Order as
modified and set forth in full below.2
The judge found that Respondent O-J Transport Com-
pany, Inc. violated Section 8(a)(2) and (1) of the Act by
recognizing National Federation of Public and Private
Employees, AFL–CIO, Federation of Private Employees
Division (FOPE) as the bargaining representative of a
unit of its truck drivers at a time when O-J did not em-
ploy a substantial and representative complement of em-
ployees in that unit. The judge also found that O-J vio-
lated Section 8(a)(3) and (1) by entering into and enforc-
ing a collective-bargaining agreement with FOPE con-
taining a union-security clause. We agree with the judge,
for the reasons stated in his decision.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
2 We shall modify the judge’s recommended Order to conform to the
remedies normally provided for the kinds of violations committed in
this case. See, e.g., Cascade General, 303 NLRB 656, 657 fn. 14
(1991), enfd. 9 F.3d 731 (9th Cir. 1993), cert. denied 511 U.S. 1052
(1994). Thus, the Respondent is required to withdraw recognition from
the Union unless and until it has been certified by the Board as the
exclusive representative of employees in an appropriate bargaining
unit. We note that the Respondent need not refund the dues of employ-
ees who voluntarily joined the Union before March 16, 1998, when the
Respondent and the Union entered into a collective-bargaining agree-
ment containing a union-security clause. Cascade General, 303 NLRB
at 657 fn. 14. Interest on refunded dues shall be computed in the man-
ner prescribed in New Horizons for the Retarded, 283 NLRB 1173
(1987). Finally, we shall add certain standard remedial provisions that
were omitted from the judge’s recommended Order.
In its exceptions O-J argues that the judge found the
8(a)(2) violation on a theory that was not alleged in the
complaint. It contends that the complaint alleges as
unlawful only conduct allegedly committed by O-J and
Gratiot Driver Leasing, Inc. (GDL) as joint employers,3
and therefore that the judge erred in finding that O-J had
violated Section 8(a)(2) acting alone.
We find no merit in that contention. The complaint al-
leges that “[the] Respondents engaged in [the unlawful
conduct] even though FOPE did not represent a majority
of the Unit, or at a time when Respondents did not em-
ploy a substantial and representative compliment [sic] of
employees in the Unit.” (Emphasis added.) Thus, al-
though the complaint does not explicitly allege an 8(a)(2)
violation by O-J acting alone, it certainly does allege a
violation on a premature recognition theory, which was
the violation the judge found. And although counsel for
the General Counsel did not move to amend the com-
plaint, she clearly stated, on the first day of the hearing,
that the premature recognition allegation did not depend
on a finding of joint employer status.4 No party opposed
proceeding on that basis until O-J broached the subject in
its posthearing brief to the judge. The theory under
which the judge found the violation—i.e., that O-J pre-
maturely recognized FOPE—was, at a minimum, closely
related to the complaint allegation—if not expressly al-
leged—and it was fully litigated.5 We therefore find that
the judge properly found that O-J alone violated Section
8(a)(2).6
The judge found that O-J and GDL were joint employ-
ers of drivers on GDL’s payroll. But although, as the
judge noted, the Board normally finds joint employers to
be jointly and severally liable for unfair labor practices,
he declined to do so with regard to GDL. He reasoned
3 GDL was in the personnel leasing business. Its only customer was
O-J, to which it leased truckdrivers.
4 McKenzie Engineering, 326 NLRB 473 (1998), and Sumo Airlines,
317 NLRB 383, 384 (1995), cited by O-J, are distinguishable from this
case. In neither of those cases did counsel for the General Counsel
make any statement of that sort.
5 Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920
F.2d 130 (2d Cir. 1990).
6 The General Counsel has not excepted to the judge’s failure to ad-
dress the merits of the complaint’s alternative allegation that O-J and
GDL, as joint employers, violated Sec. 8(a)(2) by recognizing FOPE
when FOPE did not represent a majority of the drivers employed by the
two firms.
333 NLRB No. 168
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1382
that GDL had dissolved; that its dissolution took place at
the same time that O-J was committing unfair labor prac-
tices; that GDL was not a party to the contract with
FOPE, and thus need not be directed to remedy the viola-
tions arising from that agreement; and that there was no
reason to believe that O-J could not provide the appro-
priate monetary remedy imposed. The General Counsel
contends that the judge should not have excused GDL
from all remedial obligations.
We agree with the judge that no remedy is warranted
with respect to GDL, but only for the following reasons.
FOPE sought recognition only from O-J (not from GDL),
and it is clear that only O-J unlawfully recognized and
entered into a contract with FOPE.7 Thus, even if the
Respondents were joint employers of some drivers at the
time O-J extended recognition, there is no basis for find-
ing liability on the part of GDL. We therefore need not
decide whether O-J and GDL were joint employers be-
cause the determination of that issue would not affect the
outcome of this case.
ORDER
The National Labor Relations Board orders that the
Respondent, O-J Transport Company, Inc., Detroit,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Recognizing National Federation of Public and Pri-
vate Employees, AFL–CIO, Federation of Private Employ-
ees Division, affiliated with District 1, Marine Engineers
Beneficial Association (MEBA), AFL–CIO (FOPE) as the
exclusive collective-bargaining representative of its drivers
at a time when FOPE does not represent a majority of em-

7 Professional Facilities Management, 332 NLRB No. 40 (2000).
As the judge noted, at the time of the hearing the Board held the
view that employees of a supplier employer, such as GDL, who were
jointly employed by the supplier and a user employer, such as O-J,
could not be included in a bargaining unit with employees who were
solely employed by the user employer without the consent of both
employers. Lee Hospital, 300 NLRB 947, 948 fn. 12 (1990). After the
judge issued his decision, the Board overruled Lee Hospital and its
progeny and held that such a unit is permissible without the employers’
consent. M.B. Sturgis, Inc., 331 NLRB 1298, 1304 (2000). The Board
in M.B. Sturgis also explained that the fact that a single supplier em-
ployer’s employees may be jointly employed does not require a union
petitioning to represent the supplier’s employees to name the joint
employers or to litigate the existence of a joint employer relationship.
Id. at 1308. fn. 21. In Professional Facilities Management, the Board
held that the same reasoning applies to a union, such as FOPE, that
seeks to represent only the employees of a user employer, even if they
are jointly employed. 332 NLRB No. 40, slip op. at 1–2.
Member Hurtgen notes that this case involves only Sec. 8(a)(2), i.e.,
recognition that is prohibited by that section. Accordingly, he does not
pass on any 8(a)(5) issues, i.e., recognition that can be required by that
section.
ployees in a bargaining unit comprising a substantial and
representative complement of employees.
(b) Entering into or enforcing a collective-bargaining
agreement with FOPE containing a union-security clause
at a time when FOPE does not represent a majority of
employees in a bargaining unit comprising a substantial
and representative complement of employees; provided,
however, that nothing in this Order shall require the Re-
spondent to rescind any improvements made in the em-
ployees’ terms and conditions of employment pursuant to
the collective-bargaining agreement.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Reimburse its employees, with interest, for dues
and fees withheld from or paid by them pursuant to the
contractual union-security agreement.
(b) Withdraw recognition from FOPE as the exclusive
collective-bargaining representative of its drivers unless
and until it has been certified by the National Labor
Relations Board as the exclusive representative of those
employees in an appropriate bargaining unit.
(c) Within 14 days after service by the Region, post at
its Detroit, Michigan facility, copies of the attached no-
tice marked “Appendix.”8 Copies of the notice, on forms
provided by the Regional Director for Region 7, after
being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent 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 Respon-
dent to ensure that the notices are not altered, defaced, or
covered by any other material. In the event that, during
the pendency of these proceedings, the Respondent has
gone out of business or closed the facility involved in
these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all cur-
rent employees and former employees employed by the
Respondent at any time since March 3, 1998.
(d) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
8 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
O-J TRANSPORT CO. 1383
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT recognize National Federation of
Public and Private Employees, AFL–CIO, Federation of
Private Employees Division, affiliated with District 1,
Marine Engineers Beneficial Association (MEBA),
AFL–CIO (FOPE) as the exclusive collective-bargaining
representative of our drivers at a time when FOPE does
not represent a majority of employees in a bargaining
unit comprising a substantial and representative comple-
ment of employees.
WE WILL NOT enter into or enforce a collective-
bargaining agreement with FOPE containing a union-
security clause at a time when FOPE does not represent a
majority of employees in a bargaining unit comprising a
substantial and representative complement of employees;
provided, however, that we are not required to rescind
any improvements made in the employees’ terms and
conditions of employment pursuant to the collective-
bargaining agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL reimburse our employees, with interest, for
dues and fees withheld from or paid by them pursuant to
the contractual union-security agreement.
WE WILL withdraw recognition from FOPE as the
exclusive collective-bargaining representative of our
drivers unless and until it has been certified by the Na-
tional Labor Relations Board as the exclusive representa-
tive of those employees in an appropriate bargaining
unit.
O-J TRANSPORT COMPANY, INC.

Linda Rabin Hammell, Esq., for the General Counsel.
Sheldon Kline, Esq. (Morgan, Lewis, & Bockius, LLP), for O-J
Transport Co.
Peter R. Albertins, Esq. (Foster, Swift, Collins & Smith, P.C.),
of Lansing, Michigan, for Gratiot Driver Leasing, Inc.
Ronald R. Borges, of Farmington Hills, Michigan, for FOPE.

DECISION
STATEMENT OF THE CASE
PHILIP P. MCLEOD, Administrative Law Judge. I heard
this case in Detroit, Michigan, on April 21 and 22, 1999. The
case originated from a charge filed by International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL–CIO (UAW) on June 23, 1998. On
October 13, 1998, a complaint and notice of hearing was is-
sued. The complaint alleges O-J Transport Company Inc. (O-J)
and Gratiot Driver Leasing, Inc. (GDL) are joint employers
who violated Sections 8(a)(1), (2), and (3) of the Act by recog-
nizing National Federation of Public and Private Employees,
AFL–CIO, Federation of Private Employees Division, affiliated
with District 1, Marine Engineers Beneficial Association
(MEBA), AFL–CIO (FOPE) as the representative of a unit of
drivers employed by Respondents; by negotiating a collective-
bargaining agreement with FOPE; and by enforcing the agree-
ment’s union-security clause “even though FOPE did not repre-
sent a majority of the unit, or at a time when Respondents did
not employ a substantial and representative complement of
employees in the unit.”
In its answer to the complaint, Respondents admitted certain
allegations, including the filing and serving of the charges; their
status as employers within the meaning of the Act; the status of
UAW and FOPE as labor organizations within the meaning of
the Act; and the status of certain individuals as supervisors and
agents of Respondent within the meaning of Section 2(11) of
the Act. Respondents denied being joint employers and having
engaged in any conduct which would constitute an unfair labor
practice within the meaning of the Act.
At the trial herein, all parties were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to
introduce evidence. Counsel for the General Counsel, counsel
for both Respondents, and FOPE all were represented, partici-
pated fully, and filed timely briefs which have been duly con-
sidered. UAW, the Charging Party, made no appearance and
filed no brief.
Counsel for the General Counsel advances two independent
theories to support the complaint. The first theory is that O-J
and GDL were joint employers of a single bargaining unit of
drivers at the time O-J granted recognition to FOPE. Pursuant
to this theory, the General Counsel contends that FOPE did not
represent a majority of the unit described in the complaint be-
cause there were approximately 130 drivers in that unit at the
time of recognition and because FOPE had authorization cards
for only eight drivers. The General Counsel’s second theory is
independent of the first. Pursuant to the second theory, even if
O-J and GDL are not joint employers, O-J violated the Act by
recognizing FOPE at a time when there was not a substantial
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1384
and representative complement of drivers in the unit employed
by O-J.
Respondents argue the General Counsel has failed to prove
that O-J Transport and GDL were joint employers at the time
FOPE was recognized, but that even if a joint employer rela-
tionship is shown, the General Counsel has failed to prove that
O-J, GDL, and FOPE all consented to the formation of the bar-
gaining unit described in the complaint. Respondent argues
that under current Board doctrine, the bargaining unit described
in the complaint could not be formed without the consent of all
parties. In response to the General Counsel’s second theory,
Respondents argue that at the time O-J recognized FOPE, “O-J
was engaged in normal business operations and employed a
substantial and representative complement of drivers.” Accord-
ing to Respondents, at the time of recognition, O-J did not an-
ticipate that it would hire any additional drivers or curtail its
use of leased drivers and owner-operators. According to Re-
spondents and FOPE, the bargaining unit expanded dramati-
cally in the subsequent months due to a collectively bargained
restriction on O-J’s use of leased drivers, and this subsequent
expansion did not affect the lawfulness of O-J’s recognition of
FOPE.
On the entire record in this case, and from my observation of
the witnesses, I make the following
FINDINGS OF FACT
THE UNFAIR LABOR PRACTICES
A. Background
Respondent O-J is a trucking company that hauls automobile
parts in Detroit, Michigan, and surrounding areas. Its custom-
ers are the “big three” automobile companies: Ford, General
Motors, and Chrysler.
In 1997, and for many years prior, O-J did not employ
truckdrivers directly, but instead relied exclusively on leased
drivers and owner-operators. Three driver leasing companies,
Respondent GDL, Logistics Services, Inc. (LSI), and Drive
Staff, supplied O-J with the vast majority of its leased drivers,
with most of those coming from GDL. On average, O-J used
between 130 and 140 leased drivers. In addition, O-J used
between 90 and 120 owner-operators.
Louis James has been O-J’s president since 1997. His im-
mediate predecessor as president was Calvin Outlaw, James’
uncle. O-J is wholly owned by John James, Louis James’
brother. O-J is a member of the O-J Transport Group, a federa-
tion of companies in all of which John James has an ownership
interest. The O-J Transport Group includes Motor City Inter-
modal, O-J Transportation Land Development, Renaissance
Global Logistics, and Motor City Logistics (formerly known as
International Contract Logistics, hereafter ICL). O-J’s presi-
dent, Louis James, is the chairman of Renaissance Global Lo-
gistics’ board of managers. He is also on the board of ICL.
FOPE has represented employees at ICL for 1-1/2 to 2 years.
B. The Joint Employer Relationship
GDL is a personnel leasing company. It was incorporated in
July 1989 by Kathryn Niemer, O-J’s current vice president of
administration and general counsel. Niemer has known John
James and Calvin Outlaw for 27 years. She is an attorney who
formerly practiced law at the firm which represents GDL in this
proceeding. At all material times until about May 1998 GDL
supplied drivers and dispatchers to O-J, GDL’s only customer,
pursuant to a leasing agreement.
Danny Hay originally owned GDL, and at the same time
worked as O-J’s operations manager. In August 1993 Gerald-
ine Carter purchased GDL from Hay for $1. Carter has been
employed by O-J since November 1979 in a variety of capaci-
ties, including office manager and administrative assistant to
Calvin Outlaw. Like Hay, Carter has owned GDL while simul-
taneously working for O-J. Until May 1998 when GDL ceased
all business, Carter divided her time equally between working
for O-J and running GDL. Carter was remunerated by a
$500/month draw from GDL, which she received in addition to
her O-J salary. Sharon Evans, another O-J employee, assisted
Carter in conducting GDL business and served as GDL’s cor-
porate secretary. Since approximately April 1, 1997, Carter has
worked full-time as O-J’s human resource manager.
GDL had annual gross receipts of $3 to $4 million. Carter
listed her home residence as GDL’s legal address, but actually
conducted GDL’s business at O-J’s terminal at 4005 W. Fort
Street in Detroit. She never conducted formal corporate GDL
meetings. O-J’s support staff performed GDL’s payroll and
personnel work; GDL had no human resource department itself.
O-J’s human resource department interviewed prospective
GDL drivers and set up their mandatory drug tests. Discharged
GDL drivers were instructed to return their logs and other
property to O-J, and O-J’s human resource department advised
displaced GDL drivers about termination of benefits. O-J’s
human resource department maintained custody and control of
the leased drivers’ personnel files.
Pursuant to the lease agreement between O-J and GDL, O-J
had the sole and exclusive right to direct, supervise, and control
the manner in which transportation services were performed by
GDL’s leased workers, as well as the method of their perform-
ance. O-J could not discharge GDL drivers directly, but could
cause GDL to replace them. By agreement, GDL was obligated
to adopt and enforce all of O-J’s specific work rules. Carter
testified that she in fact incorporated O-J’s work rules as her
own and enforced them as to the leased drivers. O-J’s manag-
ers made incident reports to Carter, on the basis of which GDL
drivers were disciplined or discharged. The fringe benefits
offered to drivers by GDL were the same as those carried by O-
J. In fact, both O-J and GDL participated in the same 401(k)
plan.
Leased drivers utilized by O-J performed their work with O-
J’s trucks and equipment. Even the dispatchers were on the
payroll of GDL rather than O-J. All leased drivers reported to
those dispatchers and received their delivery route and pick-up
instructions from them. Wages paid by GDL were determined
by O-J’s trip-rate structure. GDL had no independent written
formula regarding payment to drivers.
In 1993, 1 month before Carter purchased GDL from Hay for
$1, Teamsters Local 299 was certified by the Board as the bar-
gaining representative of the drivers employed jointly by O-J
and GDL. Niemer, then an attorney in private practice, served
as the legal representative of both O-J and GDL in that pro-
ceeding. In that capacity, Niemer signed a stipulated election
O-J TRANSPORT CO. 1385
agreement and tally of ballots containing recitals that O-J and
GDL were joint employers.
Representatives of GDL and O-J collaborated on bargaining
strategies with respect to Teamsters Local 299. Negotiations
did not yield an agreement. Unfair labor practice charges
brought by Teamsters Local 299 led to a consolidated com-
plaint alleging O-J and GDL as joint employers. O-J and GDL,
in their combined answers filed by Niemer, admitted to their
joint employer status.
In the following year a petition was filed with the Board that
resulted in Teamsters Local 299 being decertified. Niemer
once again represented both O-J and GDL, and once again
stipulated to their joint employer status in an election agree-
ment. The Excelsior list that Niemer forwarded to the Board
prior to that election, as well as the March 22, 1995, certifica-
tion of results refers to O-J and GDL as joint employers, as
does the tally of ballots that Niemer signed.
C. Beginning of the Merger Between GDL and O-J
I find that in August or September 1997 Carter informed
Louis James that she was considering dissolving GDL. James
replied that O-J would consider hiring the GDL drivers. Fur-
ther, in mid-February 1998 Carter advised Louis James that she
had made a decision to dissolve GDL. James said that O-J
would hire GDL drivers.
I credit Carter’s affidavit dated September 10, 1998, regard-
ing these matters over her denials on the witness stand. Simi-
larly, I discredit Louis James’ denial that he ever spoke to
Carter about dissolving GDL. The circumstances of Carter’s
affidavit make it more worthy of belief, and I rely on Carter’s
pretrial affidavit as a substantive admission of a party oppo-
nent. Carter’s affidavit was furnished to the Board in private.
She chose not to be represented by counsel at the affidavit ses-
sion, and, presumably receiving no advice or warnings about
the legal import of her admissions, supplied frank evidence. In
contrast, she delivered her trial testimony facing corporate su-
periors Niemer and James, who have power over her now-sole
livelihood at O-J.
There is further evidence that Carter’s affidavit is more reli-
able than either her or Louis James’ trial testimony. On the
witness stand, the demeanor of both Carter and James was
guarded and evasive when it came to the issue of Carter dis-
solving GDL. Further, in his testimony, Louis James contra-
dicted himself on the subject. When called as an adverse wit-
ness in the General Counsel’s case-in-chief, even though he
was vague about the date, saying that it was “after all of the
drivers came over,” James nevertheless admitted that Carter
told him she intended to dissolve GDL. When recalled as O-J’s
witness, James implausibly testified that he never spoke to
Carter about her dissolving GDL. It is simply incredible that
Carter and James never discussed the matter, and equally im-
plausible that they only discussed the issue in passing. In fact,
all the circumstances here point to the fact that they undoubt-
edly discussed the issue at length at some point prior to April 1.
Prior to that date, Carter relied on a monthly draw for operating
GDL, and after that date Carter became a full-time employee of
O-J. Those two events did not happen in a vacuum. On the
witness stand, Carter claimed that she discussed the dissolution
not with James but with Niemer. This testimony, however, was
not even corroborated by Niemer, even though Niemer was
recalled to the stand thereafter.
It is undisputed that in February 1998, James instructed
Niemer to hire 10 “knowledgeable and experienced drivers” to
serve as “lane ambassadors.” According to James, in January
1998, prompted by Ford’s urging and implementation of “just
in time” and “in-line sequence” operations, James realized that
O-J needed to communicate more effectively with its customers
at the operational level. James thus, decided that O-J needed to
have a group of knowledgeable and experienced drivers who
could relay information and solve problems at the customers’
loading docks. This group of drivers who were to perform
certain customer relations duties, James called “lane ambassa-
dors.”
According to James, Niemer was assigned to identify poten-
tial lane ambassadors. Niemer compiled a list of 10 potential
lane ambassadors, all of whom were drivers employed by GDL.
Respondent admits that before O-J hired a single lane ambassa-
dor, Niemer met with Carter, president of GDL, and told her
that O-J wanted to hire some of GDL’s drivers as lane ambas-
sadors. Significantly, the timing of this conversation in mid-
February is almost exactly the same as the conversation be-
tween Carter and James, which Carter candidly admitted in her
pretrial affidavit, in which Carter told James of her decision to
dissolve GDL. I find it impossible to believe that at the time of
this conversation, Carter and Niemer did not also discuss
Carter’s intention to terminate GDL. It stretches the imagina-
tion to believe that while Respondent did not previously em-
ploy one single driver, and even the O-J dispatchers were on
the payroll of GDL, Niemer would have gone to Carter to seek
permission to hire not one, but ten of GDL’s employees directly
without both Niemer and Carter discussing the long-term im-
plications of this move. What is most plausible is that if Carter
did ever discuss the dissolution of GDL with Niemer, it was in
this conversation, not later, and perhaps this is why the subject
was not raised with Niemer when she was called as a witness
following Carter.
Niemer gave the list of 10 potential lane ambassadors to
James. James then met with these drivers, explained the duties
of a lane ambassador, as well as extra benefits they would re-
ceive, and asked them whether they would be interested in
working for O-J. As lane ambassadors, in return for the extra
duties and responsibilities, lane ambassadors would receive an
extra $75 per week. Further, as employees of O-J, the lane
ambassadors would be paid for nondriving time, such as time
spent on the customer’s dock performing lane ambassador du-
ties. They were to receive vacation benefits, paid sick leave,
pay during jury duty, paid leave for bereavement, and pay when
the automotive plants shut down. All 10 accepted the position
and began working directly for O-J soon thereafter.
D. O-J Recognizes FOPE as Exclusive Bargaining Agent
of all Drivers
Very shortly after the lane ambassadors were hired by O-J,
one of them telephoned FOPE to inquire about the Union.
Apparently, this lane ambassador learned about FOPE because
FOPE represented employees of International Contract Logis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1386
tics (ICL), a sister company of the O-J Transport Group, as
described above.
Following the phone call, Walter Browne, president of
FOPE, traveled to Detroit and had dinner with two of the lane
ambassadors. Those two lane ambassadors then set up a meet-
ing between Browne and all of the lane ambassadors for the
following day. On February 21 the lane ambassadors met with
Browne and, during this meeting, signed FOPE authorization
cards.
On February 26 Browne faxed a letter to Louis James de-
manding that O-J recognize FOPE as the collective-bargaining
representative of O-J’s truckdrivers and mechanics.
Louis James testified that on getting the recognition demand,
he asked Niemer to handle the matter. Niemer testified she
telephoned FOPE in Florida and spoke to a person named Gil-
bert Carillo, who sent her copies of the signed authorization
cards by fax. As pointed out by counsel for General Counsel,
Niemer testified she retained the faxed cards but later “lost”
them and was consequently unable to produce them in response
to the General Counsel’s subpoena. Niemer was unable to
identify the exact date of the call or the fax transmission. Be
that as it may, I do credit Niemer that FOPE faxed her copies of
eight authorization cards. I do so in part because while Nie-
mer’s credibility left something to be desired, Browne was
entirely credible. I credit Browne entirely that he accumulated
eight authorization cards from lane ambassadors in the manner
he described, and I find that these were later shown to Niemer
in support of FOPE’s demand for recognition.
According to both Niemer and Louis James, the decision to
recognize FOPE with respect to O-J’s drivers was made by
James. He made the decision to grant voluntary recognition
based solely on Niemer’s assurance that FOPE had a card ma-
jority. He never saw the cards himself. James authorized Nie-
mer to send FOPE a letter granting voluntary recognition.
On March 3 Niemer sent a letter to Walter Browne, in which
O-J Transport voluntarily recognized FOPE as the collective-
bargaining representative of O-J’s truckdrivers. Although
FOPE had demanded recognition on behalf of O-J’s truckdriv-
ers and mechanics, the letter granted recognition to FOPE for
O-J’s “truck drivers only.”
At the trial and in her posttrial brief, counsel for the General
Counsel devoted a great deal of attention suggesting there was
some form of collusion between O-J and FOPE, both as to the
recognition itself and as to the collective-bargaining agreement
which was later negotiated between them. Respondent, on the
other hand, spent a great deal of time devoted to proving its
own innocence. While I in no way credit all of Respondent’s
asserted innocent reasons for recognizing FOPE, if—and to the
extent—counsel for the General Counsel’s case were to depend
on proving such collusion, I would find against her. Whatever
O-J’s own reasons may have been for recognizing FOPE, there
is no substantial evidence to suggest any wrongdoing or collu-
sion on the part of FOPE. For reasons more fully explained
below, however, I find that collusion between O-J and FOPE is
simply not a necessary element of this case.
What is relevant—and in fact undisputed—is that at the time
recognition was extended, O-J employed only 10 drivers, 8 of
whom had signed FOPE authorization cards. All 10 were GDL
leased drivers who had just been hired by O-J within the past
several days to serve as “lane ambassadors.” O-J’s records
show that seven of the card-signers were authorized to “trans-
fer” from GDL to O-J on February 13. Almost all of the card-
signers completed O-J employment applications within the
week before they executed FOPE authorization cards. Four
completed this “transfer” from GDL to O-J within 48 hours of
meeting with Browne.
E. The Collective-Bargaining Agreement Between
O-J and FOPE
Negotiations between O-J and FOPE began March 10 and
concluded March 16 with the signing of a collective-bargaining
agreement. It is undisputed that GDL did not participate in the
negotiations with FOPE, nor did O-J agree to negotiate on
GDL’s behalf. During negotiations, Niemer represented O-J.
Niemer’s testimony about negotiating and signing this
collective-bargaining agreement casts a shadow of incredulity
which, standing by itself, raises questions about the arms-length
nature of the relationship between O-J and FOPE. For exam-
ple, Niemer testified that although all of O-J’s negotiators took
notes at the sessions, no one retained them—not even Niemer
herself, an attorney. According to Niemer, nor did O-J retain
any of FOPE’s written bargaining proposals. Further, Niemer
claims she selected John Azhar, a senior project analyst, and
Debra Latimore, O-J’s chief financial officer, to assist her dur-
ing negotiations. Neither Azhar nor Latimore were called as
witnesses by Respondent.
Many of Niemer’s actions, beginning with her not keeping
the notes she purportedly took, to the lack of any proof what-
ever of any real cost analysis of the final collective-bargaining
agreement, run counter to most standards of professionalism.
In the final analysis, however, Louis James’ explanation of his
reasons for entering into the collective-bargaining agreement
with FOPE is not altogether incredulous. Moreover, I found
the testimony of Browne, both as to recognition and as to the
negotiation of the collective-bargaining agreement, to be alto-
gether credible. I find FOPE’s actions utterly consistent with
the goals of any self-respecting labor organization in trying to
negotiate this collective-bargaining agreement.
According to Louis James, who I credit on this issue, going
into negotiations with FOPE, he communicated three main
bargaining objectives to Niemer. First, James wanted a con-
tract that was affordable, based on O-J’s contracts with its cus-
tomers. Second, James wanted to be able to use leased drivers
because, given the market for drivers, it was very difficult for
O-J to find drivers. And third, James wanted to maintain O-J’s
ability to use owner-operators, because they represented one-
third or more of O-J’s fleet.
Niemer claims she entered negotiations with a written draft
proposal which included a management-rights clause that al-
lowed O-J to “do anything, any time, anywhere.” As noted,
Niemer produced no copy of this purported proposal, but in my
view it is not terribly significant whether negotiations began
with a proposal from O-J or FOPE. I have no doubt that during
the first bargaining session O-J and FOPE identified the major
issues for bargaining. Nor do I have any doubt, as testified to
by both Niemer and Browne, Browne objected to O-J’s ability
O-J TRANSPORT CO. 1387
to use leased drivers and owner-operators. Any self-respecting
union would have done the same thing. Further, FOPE had
successfully made the same demand on ICL. Niemer was
aware of this because in late 1997 she had reviewed the ICL
draft agreement at John James’ request.
In total the parties bargained for 7 days. One bargaining ses-
sion was held each of the first 3 days. The last 4 days of bar-
gaining were more intense. Bargaining concluded on March 16
and the parties signed the contract on that date.
In the end, although FOPE attempted to limit O-J’s use of
owner-operators, O-J ultimately retained its ability to use
owner-operators without restriction. In order to prevail on the
owner-operator issue, however, O-J agreed to make essentially
the same concessions regarding leased drivers as it had done
with ICL. O-J retained its ability to use leased drivers for a
period of 90 days, but after 90 days, the leased drivers were
required to become employees of O-J. In addition, O-J was
required to offer employment, within a period of 90 days, to
“certain of” the leased drivers it was using at the time the con-
tract was negotiated. It also agreed to hire them at current O-J
benefit levels, to waive the probationary period, and to carry
forward the drivers’ lease-company seniority.
According to Louis James, at the conclusion of bargaining,
Niemer gave James an oral assurance that the labor agreement
did not increase O-J’s labor costs. She did not provide any
written analysis or calculations. James admits he signed the
contract without thoroughly reading it. Be that as it may, James
testified credibly that he believed the agreement satisfied the
three objectives he had outlined at the beginning of bargaining.
According to James, the 90-day limit on the use of leased driv-
ers was not a major concession because it allowed O-J to con-
tinue using driver leasing companies as a “recruiting tool.”
Similarly, the agreement to offer employment to “certain of”
the leased drivers was not perceived as a major concession
because it only required O-J to offer permanent employment to
“some or however many we wanted” of the leased drivers O-J
was using at the time. Although the agreement provided a
number of new benefits for O-J’s drivers, James believed that
O-J’s labor costs would increase only slightly because O-J
could anticipate productivity gains as a result of the negotiated
performance and attendance bonuses.
F. Continuation of the Merger Between GDL and O-J
Shortly after the collective-bargaining agreement was signed,
O-J offered permanent employment to all of the leased drivers
from GDL and LSI. It made no offers to the five or ten drivers
leased from Drive Staff.
Niemer testified that about 75 percent of the drivers added to
the O-J payroll came from GDL. O-J’s and GDL’s payroll
records, taken in conjunction with Carter’s testimony that GDL
did no business after May 1998, reveal that most of GDL’s
drivers “transitioned” to O-J during the months of February
through April. Because leased drivers retained previous senior-
ity when transferred to the payroll of O-J, O-J’s records do not
show with complete accuracy how the O-J payroll expanded.
What the records do show is that O-J either employed or leased
120 drivers and 38 owner-operators on January 15; 125 drivers
and 44 owner-operators on March 3; and 134 drivers and 61
owner-operators on July 16. The parties agree that by July 16
the O-J payroll had expanded to about 130 drivers, of which all
but 13 were formerly employed by GDL. There is no question
that throughout this period, O-J’s business operations remained
relatively stable, and it incurred no major increases or down-
turns in business.
O-J admits that the union-security clause of the collective-
bargaining agreement with FOPE has been applied to all drivers
that have been added to its payroll since the agreement was
signed. O-J has regularly deducted union dues from drivers’
paychecks and remitted the moneys to FOPE.
G. The Dissolution of GDL
As I have found above, in August or September 1997, Carter
informed Louis James that she was considering dissolving
GDL. More significantly, in mid-February 1998, at the same
time Louis James, with the help of Niemer, decided to hire the
first 10 GDL employees as “lane ambassadors,” Carter advised
James that she had decided definitely to dissolve GDL. James
said that O-J would hire GDL drivers.
I have no doubt whatever that conversations continued be-
tween Carter, Niemer, and James well into and even beyond
March 1998 concerning Carter’s decision to dissolve GDL.
Carter, Niemer, and James all testify to such conversations. I
simply find that those were not the first such conversations on
that subject. For example, while James testified Carter never
had a conversation with him in which they discussed Carter’s
decision to dissolve GDL, he then testified that some time after
April 1, Carter and James had a “general conversation” about
Carter’s reasons for taking a job with O-J, at which time Carter
“mentioned, in passing, her decision to dissolve GDL.” That
James is making a valiant effort to place his first notice of
Carter’s decision to dissolve GDL sometime after the
collective-bargaining agreement was signed with FOPE is ut-
terly transparent. I find James’ testimony on the issue of the
timing of their conversations about Carter’s decision to dissolve
GDL totally unbelievable.
After the collective-bargaining agreement was signed by O-J
and FOPE, the transition of employees from GDL to O-J in-
creased posthaste. During the transition, Carter played an ac-
tive role. For example, Carter’s pretrial affidavit noted that if
she was “not mistaken,” she told transferring GDL employees
that they had to join FOPE because of the contract. Carter’s
testimony also reveals that she met with small groups of GDL
drivers, explained her decision to dissolve GDL, and told the
drivers that they could work for O-J. Over the next few
months, GDL drivers were all gradually transferred to the pay-
roll of O-J, a task performed largely by Carter herself.
As noted, approximately April 1, Carter officially assumed
the title of human resources manager of O-J. She no longer
split her time between O-J and GDL. Carter ceased receiving
any draw from GDL. GDL ceased doing all business sometime
in May 1998.
Analysis and Conclusions
The Board’s well-established standard for determining joint
employer status asks whether two employers “share or code-
termine those matters governing the essential terms and condi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1388
tions of employment.” Lee Hospital, 300 NLRB 947, 948
(1990). Under this standard, joint employer status will be
found where both parties “meaningfully affect matters relating
to the employment relationship such as hiring, firing, discipline,
supervision, and direction.” Id.; see also TLI, Inc., 271 NLRB
798 (1984), affd. 772 F.2d 894 (3d Cir. 1985); Laerco Trans-
portation, 269 NLRB 324, 325 (1984).
In looking at the period prior to February 1998, before O-J
directly hired its first 10 employs as lane ambassadors, there is
little question that O-J and GDL were joint employers of
truckdrivers and dispatchers alike. First, one cannot overlook
the fact that on not just one, but numerous occasions O-J and
GDL have acknowledged and admitted they were a joint em-
ployer of GDL employees. In 1993, 1994, and again in 1995,
Kathryn Niemer, O-J’s current vice president of administration
but, then an attorney in private practice, stipulated repeatedly in
various Board proceedings that O-J and GDL were joint
employers.
Further, the facts reflect without question the truth of that
admission. Niemer herself incorporated GDL. GDL performed
the sole function of supplying drivers and dispatchers to O-J.
GDL’s original owner, Danny Hay, also worked as O-J’s opera-
tions manager. Geraldine Carter, who purchased GDL from
Hay for $1, has been employed continuously by O-J since No-
vember 1979 in a variety of capacities, including office man-
ager and administrative assistant to Calvin Outlaw, and now as
human resources manager. Although Carter ostensibly owned
GDL, she divided her time equally between working for O-J
and running GDL, and was remunerated by a mere $500/month
draw from GDL, which she received in addition to her O-J
salary. Sharon Evans, another O-J employee, assisted Carter in
conducting GDL business and served as GDL’s corporate sec-
retary.
All of GDL’s business was actually conducted at O-J’s ter-
minal at 4005 W. Fort Street in Detroit. O-J’s support staff
performed GDL’s payroll and personnel work. GDL had no
human resource department itself. O-J’s human resource de-
partment interviewed prospective GDL drivers and set up their
mandatory drug tests. Discharged GDL drivers were instructed
to return their logs and other property to O-J, and O-J’s human
resource department advised displaced GDL drivers about ter-
mination of benefits. O-J’s human resource department main-
tained custody and control of the leased drivers’ personnel files.
Pursuant to the lease agreement between O-J and GDL, O-J
had the sole and exclusive right to direct, supervise, and control
the manner in which transportation services were performed by
GDL’s leased workers, as well as the method of their perform-
ance. O-J could not discharge GDL drivers directly, but could
cause GDL to replace them. By agreement, GDL was obligated
to adopt and enforce all of O-J’s specific work rules. Carter
testified that she in fact incorporated O-J’s work rules as her
own and enforced them as to the leased drivers. O-J managers
made incident reports to Carter, on the basis of which GDL
drivers were disciplined or discharged. The fringe benefits
offered to drivers by GDL were the same as those carried by O-
J, and both O-J and GDL participated in the same 401(k) plan.
Wages paid by GDL were determined by O-J’s trip rate struc-
ture. GDL had no independent written formula regarding pay-
ment to drivers. Based on these facts, there can be no serious
question that O-J and GDL shared or codetermined those mat-
ters governing the essential terms and conditions of employ-
ment of GDL employees, and that O-J meaningfully affected
matters relating to the employment relationship such as hiring,
firing, discipline, supervision, and direction of GDL drivers and
dispatchers. I find that at all times material herein, O-J and
GDL were joint employers of drivers and dispatchers employed
by GDL.
Nor is there any serious question that when O-J hired 10
“lane ambassadors” from the payroll of GDL beginning in Feb-
ruary 1998, these employees performed duties substantially
similar to the work being performed by employees on the pay-
roll of GDL. Indeed, in footnote one of its posttrial brief, Re-
spondent O-J states: “Throughout this brief, drivers who serve
as lane ambassadors are called ‘drivers’ and ‘lane ambassadors’
interchangeably. This is because lane ambassadors are merely
drivers with additional duties. They are not a separate classifi-
cation of employees; they are a sub-classification of drivers.
Therefore, it is appropriate to refer to lane ambassadors as both
‘lane ambassadors’ and ‘drivers’.” Counsel for the General
Counsel argues that all of these drivers (those on the payroll of
O-J and those on the payroll of GDL) share such a substantially
similar community of interests that they constitute a single
bargaining unit. Respondent counters that regardless of
whether GDL and O-J are joint employers, before a single bar-
gaining unit is found, the joint employers must first consent—
and no consent exists here.
In support of its position, Respondent notes current Board
cases hold that if two employers are joint employers of certain
employees, those employees may not be included in a bargain-
ing unit with other of the employer’s employees unless both
employers consent. Hexacomb Corp., 313 NLRB 983 (1994);
Brookdale Hospital Medical Center, 313 NLRB 592, 593
(1993); Lee Hospital, supra at fn. 12; Greenhoot, Inc., 205
NLRB 250, 251 (1973). Respondent acknowledges that in
1996 the Board heard oral argument in three cases involving
joint employers and the Greenhoot doctrine, but no decision
has been issued to date. See Jeffboat Division, American Com-
mercial Marine Service Co., 9–UC–406; M. B. Sturgis, Inc.,
14–RC–11572 (331 NLRB No. 173 (2000)); and Value
Recycle, Inc., 33–RC–4042. Counsel for the General Counsel
responds that, “as urged in the December 2, 1996, oral argu-
ment before the Board in Jeffboat Div., American Commercial
and Marine Services, the Board should return to its traditional
test of deciding unit questions by analyzing control, actual or
potential, over employment conditions, in light of the parties’
commercial relationship. Consent is irrelevant for bargaining
in units of jointly and solely employed workforces, as long as
one of the joint employers controls some working conditions of
both workforces.” For reasons explained below, while I find
that O-J and GDL were joint employers of drivers on the GDL
payroll, I find it unnecessary to address the issue whether those
drivers and the drivers on the payroll of O-J constitute a single
bargaining unit or separate bargaining units.
Counsel for the General Counsel and Respondents address
the issue of whether Respondents violated Section 8(a)(2) of
the Act by recognizing FOPE at a time when O-J did not em-
O-J TRANSPORT CO. 1389
ploy a substantial and representative complement of drivers.
As both note, an employer violates Section 8(a)(2) by recogniz-
ing a union at a time when the employer does not employ a
substantial and representative complement of employees. Gro-
cery Haulers, Inc., 315 NLRB 1312, 1316 (1995); Cascade
General, 303 NLRB 656, 657 (1991), enfd. 997 F.2d 571 (9th
Cir. 1993), supplemented by 9 F.3d 731 (9th Cir. 1993); Delta
Carbonate, Inc., 307 NLRB 118, 119 fn. 7 (1992), enfd. with-
out opinion 989 F.2d 486 (3d Cir. 1993); Hilton Inn Albany,
270 NLRB 1364, 1365 (1984); Herman Bros., 264 NLRB 439,
440 (1982); Hayes Coal Co., 197 NLRB 1162, 1163 (1972).
As these decisions have noted, determining whether a
representative complement exists strikes a salutary balance
between the objectives of allowing a maximum number of
employees to voice their selection and deciding questions
concerning representation as quickly as possible.
I agree with Respondent that the Board’s decision in Ana-
conda Co., 225 NLRB 953, 955 (1976) (quoting Clement-
Blythe Cos., 182 NLRB 502, 502 (1970)), is instructive. The
issue in that case was whether an employer violated Section
8(a)(2) by voluntarily recognizing a union at a time when the
unit was expected to expand. At the time of recognition, Feb-
ruary or March of 1975, there were 11 employees in the bar-
gaining unit; the union had nine valid authorization cards. At
the time of the hearing, December 1975, the unit had expanded
to 16 employees. By March 1976 the employer expected that
there would be 32 employees in the unit. By December 1976
83 unit employees were expected, and by November 1977, 95
unit employees were expected. Despite these specific plans for
expansion the Board concluded that there was a substantial and
representative complement of employees in the unit at the time
of recognition and therefore the employer did not violate Sec-
tion 8(a)(2). If, however, an employer expects that the unit will
expand in the immediate future, and is able to predict that ex-
pansion with “reasonable certainty,” recognizing the union
would violate Section 8(a)(2) of the act. See Hospital San
Francisco, Inc., 293 NLRB 171, 174 (1989). In the instant
case, at the time of recognition, FOPE had authorization cards
from 8 of the 10 employees on O-J’s payroll. In Anaconda, it
took 9 months for the unit to expand from 11 to 16. It was
expected to take a year from the date of recognition for the unit
to double in size, and almost 3 years for the unit to expand
more than eight-fold. In the instant case, the “unit expansion”
to more than 10-fold was, for all practical purposes, overnight.
That it actually took a few months for GDL employees to be
transitioned to the O-J payroll was a delay prolonged only by
the necessary time it took to actually process required paper-
work to transfer employees from one payroll to the other.
I agree with counsel for the General Counsel that O-J knew
at the time it granted recognition to FOPE that its driver work-
force was soon going to expand exponentially. Geraldine
Carter had already broached the subject of dissolving GDL with
O-J in 1997. When Carter renewed the subject with Louis
James in mid-February 1998 and told James she had made a
decision to dissolve GDL, James pledged to hire the GDL driv-
ers. Obviously this does not mean there was absolute certainty
that either event would take place. Presumably Carter could
have changed her mind. Even if she did not James could have
decided not to hire the GDL drivers directly. He might have
decided at the last minute to approach LSI or Drive Staff, both
companies from whom he leased at least some drivers, and
suggest they hire the GDL drivers, leasing them back to O-J.
Other circumstances might have changed Carter’s and James’
plan as well, but the important element here is that there was
indeed a plan. Absent unforeseen and unexpected circum-
stances, that plan—for Carter to dissolve GDL and for James to
hire GDL employees—was a virtual certainty, which both ex-
pected to take place in the immediate, not the distant, future. In
short, I find that as of March 3 when it recognized FOPE, O-J
knew with “reasonable certainty” that it would be placing more
than 100 additional drivers on its payroll.
In fact, the hiring of O-J’s first 10 employees as “lane am-
bassadors” appears to be the logical beginning of O-J imple-
menting the plan. As James himself testified, Ford Motor
Company had been pressing him for some time to have em-
ployees on his own payroll that could perform some customer-
relations function. This was not a concept that Ford had only
recently devised. James’ own testimony makes it clear that he
had dragged his feet for some time in meeting Ford’s request.
One would have to be extremely naive to believe it was shear
coincidence that at precisely the same time Carter was consid-
ering dissolving GDL, and had informed James of this, James
decided to finally meet Ford’s request and hire the first 10 em-
ployees as “lane ambassadors.” On the contrary, it is perfectly
natural that James would finally meet Ford’s request and estab-
lish the lane ambassador position when he did given that Carter
had told James she was thinking of dissolving GDL. Nor is it
surprising that when James decided to hire these “lane ambas-
sadors,” he did not even consider any drivers being leased to
him by LSI or Drive Staff. As James testified, he had Niemer
put together a list of potential candidates, and every single one
of those potential candidates was on the payroll of GDL. It is
perfectly natural that only GDL employees would be consid-
ered for such a position given that GDL, unlike LSI or Drive
Staff, was “in house,” i.e., being run by Carter, an O-J em-
ployee, from O-J’s own business offices, and Carter had al-
ready discussed with James her intent to dissolve GDL.
As I have noted, counsel for the General Counsel devotes a
great portion of her posttrial brief suggesting that O-J and
FOPE were engaged in some form of collusion, both on the
matter of recognition and the matter of the collective-
bargaining agreement. While there may have in fact been such
collusion here, I doubt it. Granted collusion is extremely diffi-
cult to prove, but what the record here tends to suggest is that
FOPE was acting innocently and with due diligence in securing
the employee authorization cards, demanding and obtaining
recognition, and negotiating the collective-bargaining agree-
ment with O-J. In the final analysis, however, FOPE’s culpa-
bility or innocence is irrelevant. O-J employed only 10 drivers
directly as of March 3, the date it recognized FOPE based on a
card-showing from eight drivers. It was O-J who knew with
virtual certainty that the bargaining unit, even assuming it was
made up only of drivers on its own payroll, would expand ex-
ponentially in the immediate future. Based on all the facts,
therefore, I find that O-J violated Section 8(a)(2) of the Act by
recognizing FOPE at a time when O-J did not employ a sub-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1390
stantial and representative complement of employees in that
unit.
As O-J and FOPE approached the bargaining table, FOPE’s
demands, including the demands that O-J cease using leased
drivers and owner-operators, were utterly consistent with the
institutional interests of every labor organization. There is
simply no basis for finding any collusion between FOPE and
O-J. This is not to say that FOPE was completely ignorant of
how its demands, if met, would affect the size of the bargaining
unit. Obviously FOPE knew the approximate number of driv-
ers, both leased drivers and owner-operators, that O-J was us-
ing. FOPE knew that if either of these demands was agreed to,
the size of the bargaining unit would expand 10-fold, or per-
haps even more. In view of its agreement with ICL, FOPE no
doubt even had some reason for optimism that it would gain
one of these concessions. What FOPE did not necessarily
know, however, was how easily it would win the concession
from O-J to stop using leased drivers, given the fact it was al-
ready O-J’s plan to move the leased drivers of GDL to its own
payroll.
In many ways, O-J was in a no-lose position by recognizing
FOPE when it did. If O-J could negotiate a collective-
bargaining agreement to its liking, all would be well. If O-J
could not negotiate a collective-bargaining agreement to its
liking, and a strike ensued by the 10 lane ambassadors, O-J
could simply alter its plan to hire the GDL employees. Or it
could choose to go through with its plan. In either case, O-J
would have available at least 10 times the number of drivers
represented by FOPE. Economic action, if any, would have
very limited effect on O-J. In the end, O-J was able to negoti-
ate an agreement that it found very palatable. As Louis James
testified, he did not see the contract with FOPE as involving
any major concessions. He not only retained the right to use
owner-operators, he secured the right to continue use leased
drivers for up to 90 days, thereby effectively allowing for a
probationary period during which new employees would not be
protected by whatever rights and privileges might be afforded
by the collective-bargaining agreement. Since it was already
his intention—as expressed to Carter—to hire GDL employees
directly, the agreement indeed represented few concessions by
James. I find that by entering into the collective-bargaining
agreement with FOPE containing a union-security clause, when
both parties knew the result would be to expand the bargaining
unit 10-fold and at the same time require those “new” employ-
ees to join the Union, O-J violated Section 8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. Respondents O-J and GDL are, and have been at all times
material herein, employers engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. Respondents O-J and GDL are, and have been at all times
material herein, joint employers of GDL employees.
3. FOPE and UAW are, and have been at all times material
herein, labor organizations within the meaning of Section 2(5)
of the Act.
4. By recognizing FOPE as the exclusive collective-
bargaining representative of its drivers at a time when O-J did
not employ a substantial and representative complement of
employees in that bargaining unit, Respondent O-J violated
Section 8(a)(1) and (2) of the Act.
5. By entering into a collective-bargaining agreement with
FOPE containing a union-security clause, when both parties
knew the result would be to expand the bargaining unit 10-fold
and at the same time require those “new” employees to join the
Union, Respondent O-J violated Section 8(a)(1) and (3) of the
Act.
6. The unfair labor practices which Respondent O-J has
been found to have engaged in have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the sev-
eral states and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce within
the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices in violation of the Act, I shall recommend
that it be ordered to cease and desist and to take certain affirma-
tive action designed to effectuate the policies of the Act.
Counsel for General Counsel argues in her posttrial brief that
GDL is culpable as a joint employer for O-J’s unfair labor prac-
tices, and that as such it should be held jointly and severally
liable for providing the necessary remedy. It is true that while
GDL was in business supplying leased drivers to O-J, GDL and
O-J were joint employers of those employees. It is also true
that where joint employer status is found, the Board typically
holds joint employers jointly and severally liable for unfair
labor practices found to have been committed. The circum-
stances that gave rise to Respondent O-J’s unfair labor prac-
tices, however, occurred contemporaneously with GDL dissolv-
ing. Even though GDL was separately represented at the unfair
labor practice hearing, all of the evidence indicates that GDL
has conducted no business of any kind after May 1998. GDL
was not a signatory to the collective-bargaining agreement with
FOPE, and therefore to the extent there is a need to direct the
remedial portions of this decision to that agreement, there is no
need and no reason to include GDL. Further, Respondent O-J
is an ongoing, thriving enterprise, and there is no reason to
believe O-J cannot and will not be in a position to provide the
appropriate monetary remedy in this case. Accordingly, I find
no reason whatever to hold GDL jointly and severally liable for
providing the necessary remedy herein, and to do so would
simply be punitive.
As counsel for the General Counsel notes in her posttrial
brief, there is no debate that O-J deducted dues on the strength
of its union-security clause with FOPE. In view of the unlaw-
ful recognition granted by O-J to FOPE, obviously the remedy
must include that O-J cease giving effect to the collective-
bargaining agreement with FOPE, reimburse employees with
interest for monies withheld from their pay as a result of having
to join FOPE pursuant to the union-security clause of that
agreement, and withdraw recognition to FOPE. Board law is
clear, however, that any improvements in employees’ terms and
conditions must not be rescinded. Cascade General, 303
NLRB 656, 657 (1991); A.M.A. Leasing, Ltd., 283 NLRB 1017
fn. 4 (1987).
O-J TRANSPORT CO. 1391
Finally, counsel for the General Counsel argues that the rem-
edy should include a provision requiring O-J to withhold future
recognition of FOPE unless and until such time as the Board
certifies FOPE as the exclusive collective-bargaining represen-
tative of its employees. I find that such a provision would have
an unnecessary and unwarranted punitive effect on FOPE. As
noted several times above, counsel for General Counsel at-
tempts repeatedly to implicate FOPE in some form of collusion
with O-J, both as to the matter of recognition and with regard to
the collective-bargaining agreement. Despite her repeated at-
tempts, however, there is simply no evidence of any collusion
or wrongdoing on the part of FOPE. Once the existing
collective-bargaining agreement is abrogated, the employees
are made whole by O-J for the monies unlawfully withheld
from their pay, recognition is withdrawn from FOPE, and O-J
posts an appropriate notice to employees, all of the unfair labor
practices will have been adequately remedied. To then pre-
clude FOPE from ever obtaining the opportunity to represent
O-J’s employees unless it is certified by the Board is punitive,
for any other labor organization could lawfully organize em-
ployees and be recognized on the basis of a valid authorization
card check. Such drastic measures might be appropriate if ac-
tual collusion was shown between O-J and FOPE, but despite
her repeated efforts to infer such collusion in this case, counsel
for the General Counsel has simply failed to provide any sub-
stantive reliable evidence to prove the point. Consequently,
provided FOPE should obtain a fresh showing of majority sup-
port, obtained in an uncoerced manner following Respondent
O-J’s complete remedy of its unfair labor practices found
herein, I find no reason to restrict FOPE from representing
employees in a manner that would not be imposed on any other
labor organization.
[Recommended Order omitted from publication.]