W.S.P. Trucking, Inc.

National Labor Relations Board - Board Decisions

Sep 9, 1965

154 N.L.R.B. 1101 (N.L.R.B. 1965)

N.S.P. TRUCKING, INC. 1101
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, Sixth Floor,
Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No.
Edison 5-4211, Extension 2131.
W.S.P. Trucking , Inc. and W.S.P. Inc. and Freight , Construction,
General Drivers , Warehousemen & Helpers Union Local No.
287, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America . Case No. 20-CA-3030.
September 9,1965
DECISION AND ORDER
On May 20, 1965, Trial Examiner James R. Hemingway issued his
Decision in the above-entitled proceeding, finding that Respondent had
not engaged in the unfair labor practices as alleged, and recommending
that the complaint be dismissed in its entirety, as set forth in the
attached Trial Examner's Decision. Thereafter, the General Counsel
filed exceptions to the Trial Examiner's Decision and a brief in support
thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings,' conclusions, and recoln-
mendatlons of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner, and orders that
the complaint herein be, and it hereby is , dismissed in its entirety.
i We agree with the Trial Examiner's findings that in the circumstances of this case
the Respondent did not violate Section 8(a) (5) of the Act by negotiating individually
with the employees concerning the sale of the converted trucks However, in sustaining
his ultimate finding, we do not adopt any possible implication therein that individual
bargaining was privileged because of the fact that the bargaining unit was unaffected by
sale of the trucks.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on March 30, 1964, an amended charge filed on dune 11, 1964,
and a second amended charge filed on August 27, 1964, by Freight, Construction,
General Drivers, Warehousemen & Helpers Union Local No. 287, International
154 NLRBB No. 92.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein
called the Union, against W.S.P. Trucking, Inc., and W.S.P. Inc., herein called the
Respondents, the General Counsel caused a complaint to issue on September 3,
1964, alleging that Respondents had engaged in and were engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended, 29 U.S.C., Sec. 151, et seq.
The Respondents' answer, filed on September 23, 1964, denied jurisdiction of the
Board and denied the commission of any unfair labor practice.
Pursuant to notice, a hearing was held before Trial Examiner James R. Heming-
way, in San Jose, California, on November 4, 5, and 12, 1964. Following the close
of the hearing, Respondents and General Counsel filed briefs.
Upon the entire record and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
At all times material herein, W S.P. Trucking, Inc., a California corporation, with
its main office and principal place of business located at Campbell, California, is,
and has been, engaged as a hauling broker in the business of transporting sand, gravel,
rock, and fill dirt, among other products, for various companies within the State of
California.
At all times material herein W.S P. Inc., a California corporation, has been engaged
in the business of owning and leasing to W.S P. Trucking, Inc., equipment for opera-
tion of W.S.P. Trucking, Inc., in its business.
During all times material hereto, the principal stockholders of W S P. Trucking,
Inc., were Garland Spears (500 shares), Ted Williams (250 shares), Charles Gibbins
(50 shares), and Richard Triesenberg (50 shares). The officers of W.S.P. Trucking,
Inc., during all times material herein, were Charles Gibbins, president, Richard
Triesenberg, secretary-treasurer, Garland Spears, treasurer, and Julia Spears, vice
president. The directors of said coiporation are Spears, Williams, and Gibbins.
W.S.P. Inc., since the incorporation of W.S.P. Trucking, Inc., in 1962, has been a
title-holding company. It has no employees. Before September 1964, the stock-
holders of W.S.P. Inc. were Spears (two-thirds interest) and Williams (one-third
interest). After September 1964, Spears bought out Williams' shares and was the
sole owner. Before September 1964, the directors of W.S.P. Inc , were Spears,
Williams, Gibbins, and Julia Spears. The officers were Garland Spears, president;
Gibbins, secretary-treasurer; Julia Spears, vice president. During the hearing,
Garland Spears, in his testimony, repeatedly used the first person in speaking of the
operations of either one or the other of the Respondents. Looking through the cor-
porate fiction, I find that Respondents are, essentially, an alter ego for Spears.
Because of the interlocking directorate, officers, and owners, dominated by Garland
Spears, I find that the Respondents are a single-integrated employer within the mean-
ing of Section 2(2) of the Act.
For the period between May 1, 1963, and April 30, 1964, W.S.P. Trucking, Inc.,
performed hauling services for L. C. Smith Company, a California corporation,
valued at $265,984.45. For the same period, L. C. Smith performed work on inter-
state highways valued in the amount of $183,711.15. During the same period, W.S.P.
Trucking, Inc., performed hauling services valued in excess of $135,000. For the
same period of time, Leo F. Piazza Paving Co. performed work or services on inter-
state highways valued in excess of $130,000. During the same period of time,
W S.P. Trucking, Inc., performed hauling services valued in excess of $12,000 for
Kaiser Cement and Gypsum Corporation, which company in turn sold and shipped
goods directly outside the State of California or performed services outside the State
of California in an amount exceeding $50,000. During the same period of time,
W.S P. Trucking, Inc., performed hauling services for Henry J. Kaiser Company,
Sand and Gravel Division, valued at $42,000. The latter company is a Nevada
corporation with its principal office at Oakland, California. The Sand and Gravel
Division of said company is not separately incorporated, but is one of three operating
divisions of said company. For the period from May 1, 1963, to April 30, 1964,
Henry J. Kaiser Company shipped goods or performed services outside the State of
California valued in excel of $50,000.
Upon the foregoing findings of fact, I find that Respondents are engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act,1 and I find that it will
effectuate the policies of the Act to assert jurisdiction.
1 HPO Service, Inc., 122 NLRB 394; Siemons Mailing Service, 122 NLRB 81; Interna-
tional Brotherhood of Teamsters, et al. (Utah Sand and Gravel Products Corp.), 148
NLRB 118.
W.S.P. TRUCKING, INC . 1103
II. THE LABOR ORGANIZATION INVOLVED
The Union is, and has been at all times material herein, a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Refusal to bargain
1. The union agreement
W.S.P. Trucking, Inc., hereinafter called Trucking, was incorporated in 1962 and
became the operating portion of the business previously handled by W.S.P. Inc. The
business , under one corporation or the other, has been operating since 1958 and has
had an agreement with the Union ever since then. On March 8, 1963, Trucking and
the Union signed a copy of the contract which had been negotiated by and between
the Northern and Central California Chapter of the Associated Contractors of
America, Inc., and Heavy, Highway, Building and Construction Teamsters Committee
for Northern California. This agreement covered the period from April 30, 1962,
to April 30, 1965.
2. The appropriate unit and the Union 's majority therein
The complaint alleges that all employees of Trucking at its operation at Campbell,
California , including truckdrivers , but excluding office clerical employees, guards, and
supervisors as defined in the Act , constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 ( b) of the Act. The Respond-
ents' answer does not deny this. I find that , at all times material hereto , the unit was
as alleged in the complaint.
Since the contract involved contained a hiring hall clause and a union -shop clause
phrased to come within the provisions of Section 8(f) of the Act,2 the Union's
majority in the appropriate unit is not questioned . I find that on March 8, 1963,
and at all times thereafter to April 30, 1965 , the Union was the exclusive representa-
tive of the employees in the appropriate unit , above described , for the purposes of
collective bargaining within the meaning of Section 9 (a) of the Act.
3. Facts concerning alleged refusal to bargain
The contract covers employee-drivers and owner-operators in the service of
Trucking. Both are in the unit. By the terms of this contract, the owner-operators
are deemed to be employees and not independent contractors, and they are required
to be members of the Union. The employer, under the contract, is obliged to pay to
the Union for owner-operators the amounts required to be paid to the Union for
employees' pension and health and welfare funds. Owner-operators are excluded
only from the seniority provisions of the contract and from certain of the provisions
regarding hiring procedure. They are, however, required to be requisitioned through
the Union's hiring hall. The owner-operator is paid under the contract wage scale
for his time (including vacation time) but he receives an additional amount for his
equipment. He is required to maintain and service his equipment himself.
At the time Trucking signed a copy of the AGC master contract in March 1963,
it had four bottom-dump trucks on lease from W.S.P. Inc. which were being driven
by employee-drivers in addition to 14 bottom-dump trucks driven by owner-operators.
In June 1963, Respondents sold (through W.S.P. Inc.) one such truck (previously
driven by an employee-driver) to a man named Jim Diehl. As a result, one J. R.
Pratt, an employee-driver was laid off. Diehl was sent to the Union for "clearance." 3
By September of 1963, Respondents had sold the four bottom-dump trucks to owner-
operators, but the original employees driving the last three trucks were not laid off
as a consequence of the sale, because two had already quit before the trucks were
sold and one had been discharged for cause before the sale. In addition to the 18
bottom-dump trucks, Trucking operated 6 semis and I transfer truck. After Sep-
tember 1963, only the semis were driven by employee-drivers.
2 No one contends in this case that the requirement of membership in the Union on
and after the eighth day of employment is Illegal as to over-the-road drivers or as to any
specific types of drivers in the service of Respondents.
8 This is a word used by Respondents. Actually, the procedure was to have the Union
dispatch a driver, whether an employee-driver or owner-operator. Under the contract,
the employer could ask for a driver by name. In the case of Diehl, as soon as he entered
Into a contract for the purchase of a truck from W.S.P. Inc., Trucking would have called
the Union to say that Diehl was being sent to the Union for dispatch.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Spears expected to sell all his trucks to owner-operators eventually, but because
the semis were not satisfactory in Trucking's business, Spears wished to convert the
semis to transfer trucks before selling them. Semis are an end-dump truck with a
very long box. When the box is raised at the front to dump a load, the front end of
the box rises so high that the unit becomes top heavy. On uneven or soft ground,
they are in danger of tipping over and most of the drivers of Trucking had actually
tipped over at least once.4 Not only did this result in loss of time and expense for
Trucking, but it caused inconvenience to any customer of Trucking on whose job
a semi tipped over. As a result, semis were not given as much work as other trucks.
About mid-January 1964, Trucking, having decided to convert the six semis,
removed the trailer boxes and sent the remainder of the unit to Los Angeles for
conversion to transfer trucks ( or "slam bangs" as they are called in the vernacu-
lar).5 The employees wha had driven the semis were informed that Respondents
intended to sell the tractors of the converted units to owner-operators when they
were returned and that, as a consequence, when the trucks were sold, the employee-
drivers would be terminated.6 While the trucks were away for conversion, the
employee-drivers were not called to work.? Each of the employee-drivers spoke
with Spears about the purchase of a tractor, and before the end of January 1964
two lease-purchase agreements had been signed, one by Richard Plo,s who had been
driving a semi until they were sent for conversion, the other to Gary Cobb, who had
not been employed by Trucking before. Although the other four tractors of the
units being converted were not under contract of sale, Trucking, on January 31, 1964,
sent termination notices to the four drivers who had not bought tractors: Manuel
Silviera, Joseph Cabral, Keith Hammond, and Lloyd Hall. Each termination slip
gave, as the reason for termination, that the company equipment had been sold,
but the notice further stated: "At such time as the company gets new equipment in
you will be considered for re-employment." 9 At this time, Trucking considered
Silviera and Hall as unqualified to drive transfer trucks, and apparently did not intend
to recall them when the converted units were returned.
When the next two converted trucks were returned, Trucking recalled Cabral and
Hammond to drive them. Another tractor for a transfer truck was sold on Feb-
ruary 12, 1964, to a nonemployee, Clarence Bagwell, by conditional sale contract.
The Union, on the same day, gave Bagwell a dispatch slip as an owner-operator. All
the tractors sold on conditional sale or lease-purchase contracts were, by those con-
tracts, required to remain in the service of Trucking until the full purchase price was
paid. The total price of each was $18,500 plus financing charges, and the down pay-
ment ranged from $1 ,500 to $4,000 . One converted unit remained to be manned.
The evidence shows that on February 19, 1964, a man by the name of Caldwell was
dispatched as a "slam bang " driver ; hence , he was not an owner-operator.
The Respondents in mid-February 1964 urged Hammond and Cabral to buy the
tractors they were driving. Hammond declined outright. Cabral attempted to raise
the down payment but was unsuccessful and so informed Spears. In early March
1964, Trucking told Hammond that he would have to speed up in his driving, and
when Hammond refused to do so, Respondents told Hammond that there was a
prospective buyer for his truck and that he could quit or be terminated on sale of his
truck . Hammond said that he would decide before the end of the week . Near the
end of the week he notified Trucking's bookkeeper that he would not work after the
end of the week. Hammond denied that he had quit, testifying that he had chosen
4 Respondents adduced evidence that they had tipped over 14 times in a 6-month period.
s This consists of an end -dump truck and a trailer . When a load is delivered , the truck
is disconnected from the trailer , is pulled to the desired location and dumped , then is
backed to the trailer , the box of which is so constructed that it slides forward into the
truck box . The trailer-box load is then dumped by the same mechanism used for dumping
the truck . The driver then backs up to the trailer and returns the empty box, hitches
onto the trailer , and leaves for the next load.
9 Technically , the sale was by W.S.P . Inc., and the drivers would be terminated by
Trucking , but because I have found that the two corporations constitute one employer,
I use the plural "Respondents."
7It was the practice for Respondents to telephone employees the night before if they
were to be given a work assignment the next day . If there was no can, the employee
did not work. There was no notice of layoff , therefore.
a Plo exercised a right to rescind later. He signed a straight lease agreement in
March 1964.
P This did not affect the seniority of those reemployed . Seniority, under the contract,
was not broken by a layoff of less than 12 months.
W.S.P. TRUCKING, INC. 1105
to be terminated . However, Spears sought to induce Hammond to continue until
the truck was sold and Hammond declined, saying that he had gotten other work.
I find that Hammond quit rather than continue for an indefinite, but expectantly short,
period until his truck was sold. Since Hammond has seniority over Cabral, Ham-
mond could not have been terminated without cause until Cabral's truck, as well as
Hammond's, had been sold. Soon after Hammond quit, Cabral quit.rather than be
caught suddenly without a job when his truck should be sold. The record shows that,
on March 16 , 1964 , the Union dispatched one F . Vidal as a "slam bang" driver,
apparently replacing Hammond . There is no evidence to show a replacement for
Cabral. The next sale of a tractor , equipped with transfer box, hoist , and accessories
(which accessories remained the property of the seller), was made on May 11, 1964,
when Arnold Rose, not an employee-driver for Trucking previously so far as the
record shows, signed a conditional sale contract. At the time of the hearing, Truck-
ing had three transfer trucks being driven by employees. Hall was rehired in June
1964, and drove a transfer as an employee.
At the time the Respondents made the decision to convert the semis to transfer
trucks and to sell them to owner-operators when converted, they did not give the
Union formal notice. Black, the business agent for the Union, testified that Respond-
ents did not mention a decision to convert and sell the trucks in question until late
March 1964, presumably after the charge was filed, since the charges were a subject
of discussion. He did concede that Spears had, at various times, talked of the pos-
sibility of getting rid of the semis because of their dangerous design and getting
transfer trucks, and he testified that Spears had at times said that he was going to
"go owner-operator," but he described these statements as passing remarks and denied
that he was informed, in advance, of Respondents' actual decision to convert the
semis to transfer trucks. Spears testified that he had, in the fall of 1963, spoken to
Black about both the conversion of semis and the sale of trucks to owner-operators.
There is other testimony to the same effect. This testimony, I find, is not in conflict
with Black's testimony, for the statements made by Spears were not statements of
actual decision to convert and sell. Spears also testified that, before he sent Bagwell
to Black for a clearance (dispatch slip) in February 1964, he talked with Black and
told Black that he had sold a transfer truck and was sending the buyer down for a
clearance . However , if an invitation to bargain or formal notice of intent to con-
vert the semis to transfer trucks was necessary in this case , there was none.
4. Contentions and concluding findings
The General Counsel , in his brief, lists the following as the issues in this case:
Whether the Respondents violated the Act by:
( a) Dealing directly with employees to the exclusion of the Union.
(b) Failing to bargain with the Union about Respondents ' decision to con-
vert semi-unit vehicles to transfer -unit vehicles.
(c) Failing to bargain with the Union about the effect upon the employees of
the conversion of the semi -unit vehicles.
(a) Dealing directly with employees
Black testified that the Union had no objection to the sale of a vehicle to the
employee operating it. The Union felt that an employee was privileged to buy a
truck and become an owner-operator. Furthermore, since the employee-buyer of
the truck would , under the 1963 contract , still be in the bargaining unit as an owner-
operator, the unit would have been unaffected by the sale of a truck. Under the cir-
cumstances , Respondents ' dealing with employees regarding purchase by the latter of
trucks they had been or would be driving involved no matter the Union would be,
or was, concerned in bargaining about . For this reason , I find no unfair labor prac-
tice in Respondents' negotiating with employees for the sale of trucks to them.
(b) Failing to bargain about decision to convert semis to transfers
The evidence tends to establish that employers under the contract in question were
regarded by the Union as having a free hand in the type of equipment they owned or
operated. If Respondents had made an outright sale of the semis to another contrac-
tor, they would have been under no obligation to negotiate with the Union over the
effect on the employees who had been driving the semis. If the semis were not
replaced at once, Respondents would have been free to terminate the drivers of the
206-446-66--vol. 154-71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
semis. If Respondents had later bought new transfer trucks, they would then have
gotten drivers for such trucks through the Union's hiring hall, and they could have
asked for any qualified driver by name, for former employees, or for owner-operators.
So far as I can determine from the evidence, such practices regarding changes in
equipment were not unusual in the trade, and the Union would not have expected
to bargain about the changes. By getting rid of the semi boxes, Respondents were
not going out of business even in part, and they were not materially changing the
nature of their business. Except to the extent that Respondents might be materially
changing their business operations and thereby affecting the bargaining unit or
employees therein, there would appear to have been no reason to bargain with the
Union concerning the mere conversion of semis to transfer trucks any more than
there would have been any reason to bargain concerning every sale or purchase of
equipment.
Although Respondents may have given no formal notice of intent to convert semis
to transfer trucks, there is abundant evidence that Spears had voiced to Black his
idea of converting the semis to transfer trucks or of getting rid of the semis and get-
ting transfer trucks instead. If such conversion or change were a matter that the
Union would have any reason to bargain about, Black would be expected to have
made some kind of statement equivalent to: "When you decide to take action, let me
know so that we can discuss the matter." Black's failure to do so could readily be
interpreted by Respondents to mean that the Union had no concern in the conversion.
I find no unfair labor practice in Respondents' mere act of converting semis to
transfer trucks without giving the Union formal notice of intent and a chance to bar-
gain about the change.
(c) Failing to bargain regarding effect of conversion of trucks on employees
Since the Union's only legitimate concern in bargaining about changes in equip-
ment would be the effect of such changes upon employees, this third contention of
the General Counsel is the only one requiring full consideration. We are not con-
cerned here with a problem such as is presented when unit work is to be subcontracted
to an outside, independent subcontractor or when an employer terminates certain of
his operations altogether, because owner-operators, under the 1963 contract, are not
true subcontractors-they are within the definition of "employee" under the Act and
were within the bargaining unit.10 By contracting to sell tractors to employees who
continued in Respondents' service, the Respondents did not terminate any portion of
their business. At one point during the hearing, upon my request for a statement of
position, the General Counsel's counsel stated that the General Counsel did not
take the position that it was an unfair labor practice for the Respondents, without
notice to the Union, to sell equipment or to convert equipment alone, and he stated
that he took the position that such notice was necessary only if there was first a
conversion and then a sale of the equipment to one who was not then an employee-
driver so that an employee-driver would have been displaced.
The General Counsel might, like the Union, have taken the position that even a
sale (without conversion) to a nonemployee which resulted in the substitution of an
owner-operator for an employee-driver, was an unfair labor practice if done without
notice to the Union, but he did not do so. I presume that he did not do so because
he conceded (what I have found to be true) that it was common practice for employ-
ers in the trucking-contracting business to sell to owner-operators whenever possible
because owner-operators are considered more likely to care for their equipment when
they have a financial interest in it and because such sale relieves the employer of main-
tenance and insurance costs. The AGC contract, signed by Respondents, impliedly
recognizes this custom by covering both employee-drivers and owner-operators with-
out limiting the practice of selling to owner-operators in any way. In fact, when the
AGC and the Union representatives were negotiating the 1963 agreement, the Union
proposed a provision that employers should not be permitted to use owner-operators
if this resulted in the layoff of employees. This proposal was rejected by the AGC and
did not become part of the contract. When Spears signed this contract in March
1963, he told Black that he did not want to own any tractors if he could avoid it. He
quoted Black as responding that he did not care as long as the owner-operators were
on the payroll as provided in the contract. When the Respondents sold the four
bottom-dump trucks to owner-operators in 1963, Spears told Black about it and,
" Bowman Transportation, Inc., 142 NLRB 1093, 1096, and cases there cited.
W.S.P. TRUCKING, INC. 1107
according to Spears , Black told him to send the new men to the union hall to be sure
that they had a union clearance. Black conceded that he knew of these sales and of
giving clearances to owner-operators for Respondents , but he denied knowing that
any employee-drivers had lost their jobs as a result of the sales. His lack of knowl-
edge, however, suggests indifference , because a sale to an owner-operator carries
with it at least a possibility that it was made before the employer-driver was actually
terminated. With Trucking's payment to the Union of sums due under the contract
for the health and welfare fund and pension fund, it sent a quarterly report, listing the
names of all drivers on the payroll , including both employee-drivers and owner-
operators . Thus, the Union could note changes in personnel if it wished to do so.
It was Spears' understanding from his various conversations with Black that the
Union had no objection to the sale of tractors as long as the Respondents complied
with the contract requirements of clearing the owner-operators through the Union's
hiring hall , paying the sums due for pensions , health, and welfare, and complying
with all provisions regarding wages and other compensation . Black appears to have
visited Respondents ' premises and talked with Spears from time to time and might
have looked over the list of drivers any time he chose to ask . Since Black could easily
have learned of , and questioned , the termination of Pratt when the tractor he was
driving was sold but failed to do so, Spears ' understanding of his privileges was
strengthened. On all the evidence, I conclude that Spears' understanding was justi-
fied and I find that , by failing to object to such sale of equipment that Respondents
already had made to owner-operators, without advance notice to the Union, the
Union, if it had any right to bargain concerning such sales , waived that right.
I am not impressed by the argument of the General Counsel that a unilateral deci-
sion to convert , followed by a sale of the converted equipment to owner-operators,
without advance notice to the Union , constituted a refusal to bargain . If the sale of
equipment alone or the conversion of the equipment alone was a prerogative of an
employer without bargaining with the Union , as custom and understanding had
established it, I cannot find any greater duty to bargain when the two are combined.
On January 24, 1964, as a result of a charge filed by a stranger to this case, the
Board obtained a stipulation by the terms of which respondents in that case (which
included the Union and the AGC chapter who were parties to the 1963 contract
aforementioned ) agreed not to "maintain, apply, reaffirm , invoke, give effect to,
enforce or attempt to enforce Section 12 [subcontractors] ... and Section 24, 'Owner-
Operator' . . . ( said sections not being expressly limited to the contracting or subcon-
tracting of work to be done at the site of construction) . . ." and that they would not
"enter into any other provision or agreement which , expressly or by implication,
would require A.G.C. or its employer-members, or other employers in the 46 north-
ern counties of California , to cease or refrain from subcontracting work to or doing
business with: ( i) subcontractors who do not , or do not agree to, observe the terms
of said Master Agreement with respect to work to be performed off the site of con-
struction ; or (ii ) independent self-employed owner-operators driving their own trac-
tors, rigs, dump trucks, or other equipment , in their capacity as such ...." I do not
interpret the words "independent self-employed owner-operators" to cover the owner-
operators in the service of the Respondents as described in this case . "Independent
self-employed owner-operators" refers to true subcontractors , whereas "owner-
operators," as used by Respondents , were , as previously pointed out, employees.
Between March 3 and 20, 1964, representatives of the parties to the original AGC
master contract of 1963 met for the purpose of amending the contract to conform to
the foregoing stipulation , and on March 28, 1964, they signed an agreement to the
effect that sections 12 and 24 of the master agreement would be given effect but only
to the extent that they might "be lawfully applied to work done at the site of the con-
struction, alteration, painting or repair of a building, structure or other work." The
apparent effect of this agreement was, at least arguably, to exclude owner -operators
who were not doing work at the site of the construction from the coverage of the con-
tract ( including the union-shop clause and the clauses requiring contributions to the
health and welfare and pension funds) and, in effect, removed over-the-road owner-
operators from the collective -bargaining unit . It is not necessary to this decision to
decide, and I do not decide, whether or not owner-operators who would fall within
the Board's definition of employees would remain covered under the employee pro-
visions of the AGC contract after the execution of the March 20 agreement.
Although Respondents were not signatory to the March 20 agreement, they appar-
ently regarded it as a modification of their agreement with the Union. Before
March 20, 1964, a sale of a truck not used at the site of construction work to an
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
owner-operator, even if that resulted in the termination of an employee-driver, would
not have reduced the unit. After that date, arguably it might have. This, I believe,
explains why no charge was filed in January or February when Respondents' sale of
transfer trucks to nonemployees first resulted in the termination of employee-drivers
and why it was filed on March 27, a week after the foregoing amendment was signed.
This also may explain testimony of Black that he would have objected to the sale of
semis even without conversion to transfer trucks, on the ground that Respondents
were "selling the equipment to get out from the existing labor agreement ," because the
owner-operators would have been under the contract "only in regards that the owner-
operator provision relates to job site," and that "Mr. Spears started to sell, when he
converted the semis to transfers, he started to sell them, and in selling them he started
to terminate Local 287 for his employees." All such testimony apparently relates to
acts that would have occurred after March 20, 1964. Respondents, before that date,
always had sent owner-operators to the Union for clearance and had contributed to
the health and welfare and pension funds on their behalf. Obviously, they were not
then attempting to terminate the application of provisions of the contract to owner-
contractors. It is a fair deduction that, when the facts occurred which are the basis
for this case, the Union did not regard them as an unfair labor practice. Those same
facts cannot ex post facto become an unfair labor practice because of facts that later
took place.
The Union had another objection to Respondents' conduct. This related to the
application of the seniority provisions of the contract. When Black spoke with Spears
in the latter part of March 1964 about the charge, the discussion was, according to
Black, about the seniority of the men laid off-not, apparently, about the Respond-
ents' right to lay off employee-drivers when equipment was sold . It was apparently
Trucking's intent, when it terminated four employee-semi drivers, on January 31,
1964, to reemploy two--Cabral and Hammond-as transfer truckdrivers pending
sale of the tractors on those trucks, but it was the intent of Respondents then not to
rehire Hall or Silviera to drive transfer trucks. Spears testified that, in his opinion,
Hall and Silviera were not qualified to drive transfer trucks and that, under the con-
tract (section 3f, second paragraph), the employer was the sole judge of the qualifi-
cations of the drivers and was given the right to discharge them on such grounds. We
are not here concerned with the question of whether this contract privilege might be
exercised arbitrarily or only on reasonable grounds for belief, because this is not a
proceeding for the enforcement of the contract. The contract contained a provision
for arbitration of disputes, and any question of the proper application of the seniority
rules could have been arbitrated.
I have found that, even if the Respondents would normally be obliged to notify
the Union of an intent to sell the transfer trucks following their conversion from
semis, in order to give the Union a privilege of bargaining thereon, the Respondents
were justified, in January 1964, in believing that they were acting within the permis-
sible limits of the collective-bargaining agreement in view of the general customs of
the trade, the fact that the contract unit then included both employees and owner-
operators , the fact that the contract did not (and apparently was not intended to)
expressly prohibit switching from employee-drivers to owner-operator drivers if the
opportunity to do so existed, and the fact that the Respondents had made prior sales
to owner-operators to the knowledge of the Union without being questioned by the.
Union about the effect thereof on employee-drivers.
The General Counsel takes the position that the Respondents' mention to Black
of intention to convert semis to transfer trucks was not of an intention imminently to
be acted on, and that notification of a possible conversion does not relieve the
Respondents of the duty to notify the Union when Respondents' intention was ready
to be acted on. This is too narrow a delineation of the Respondents' bargaining obli-
gation.ll In view of all the facts and circumstances in this case, it is my opinion
that it was the Union's responsibility, following discussions of probable changes, to
put Respondents on notice that the Union wished advance information regarding the
effect of a sale or conversion of equipment upon the tenure of employment of
employee-drivers in order to bargain thereon.
RECOMMENDED ORDER
On all the evidence and my conclusions therefrom , I recommend that the complaint
in this case be dismissed in its entirety.
n Hartmann Luggage Company , 145 NLRB 1572.