Harbor Cartage, 927 (1984)

Docket Number:07-CA-19607

HARBOR CARTAGE

Harbor Cartage, Inc. and Local 299, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 7-CA19607

11 April 1984 DECISION AND ORDER

BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS

On 28 January 1983 Administrative Law Judge Lowell Goerlich issued the attached decision. The Respondent filed exceptions and a supporting brief.

The National Labor Relations Board has delegated its authority in this proceeding to a threemember panel.

The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions as modified and to adopt the recommended Order.

The judge found Respondent Harbor Cartage,

Inc. (Harbor or the Respondent) to be a successor to Seaport Transportation Company (Seaport);

that, as Seaport's successor, the Respondent violated Section 8(a)(5) and (1) of the Act by unlawfully refusing to recognize and bargain with Teamsters Local 299, the bargaining representative of Seaport's drivers; and that the Respondent entered into an unlawful prehire agreement with Teamsters Local 124 in violation of Section 8(a)(2) and (1) of the Act. The Respondent excepts, contending that it was obligated to enter into the collective-bargaining agreement with Local 124, and did not act unlawfully by doing so; that the facts support a finding that it has a fundamentally different type of business operation from that of Seaport; that, at all times relevant, Local 299 has not represented a majority of Harbor's employees; and that, assuming arguendo Harbor is a successor to Seaport, it should not be obligated to reimburse employees for losses they may have suffered as a result of the alleged unfair labor practices. We find no merit in the Respondent's exceptions with respect to the violation findings made by the judge, which we adopt for the reasons set forth below. However, we find merit in the Respondent's contention that its backpay liability is limited to the reimbursement of any dues deducted from employee wages pursuant to its unlawful prehire agreement with Local 124.

According to the Respondent, the nature of its operation differs so substantially from that of Seaport that it cannot be found to be engaging in the same employing industry. We disagree. Harbor is owned by Andrew Paul Mesarosh, who was em269 NLRB No. 152 ployed as Seaport's dispatcher at the time that company closed its freight transporting operation on 6 March 1981. When Harbor opened for business on 9 March 1981, at the same address and with the same telephone number Seaport had, it employed five drivers, three of whom were driving for Seaport when it closed;' one former Seaport clerical; and Seaport's salesman who brought with him the customers he had serviced while working for Seaport. Harbor purchased blank freight bills containing Seaport's name for about $800 and used these supplies by attaching labels with Harbor's name over that of Seaport.2

The most striking difference between the operation of Seaport and that of Harbor is that Seaport owned and maintained its own trucking equipment,3 while Harbor leases the equipment necessary to conduct its freight hauling operations.4

This difference has not, however, resulted in any change in the kind of work performed by unit drivers or the type of services Harbor provides to customers. Thus, at the time that Seaport closed, it was engaged primarily in the transportation of piggyback trailers and containers and, with the exception of about one truckload a day, had gotten out of the business of handling less than truckload (LTL) freight.5

Similarly, Harbor is in the business of transporting piggyback trailers and containers, and transports less than a truckload a day of LTL freight. Further, Harbor does business with all of the major shipping agents and container brokers used by Seaport, and transports many of the same commodities transported by Seaport.6

ISeaport's drivers were represented by Local 299. The parties stipulated that the appropriate unit is:

All full-time and regular part-time drivers employed by the Respondent at its Detroit offices, but excluding guards, and supervisors as defined in the Act and all other employees.

The Respondent excepts to the judge's reliance on this fact, contending that freight bills are common throughout the industry and that all motor carriers are required by law to use them. We find it significant only to the extent that the freight bills represent the only Seaport supplies on record as being available for purchase by Harbor.

s Seaport owned about 12 to 15 tractors, 2 vans, and 6 to 8 trailers.

When Seaport ceased operations, it sold its remaining equipment to 'various people [and] brokers,' not including Harbor.

' Given this difference it is not surprising that Harbor leased less office space than Seaport, leased neither dock space nor garage space as did Seaport, and employed no mechanics. (Seaport had employed two mechanics who were not in the bargaining unit.) I According to the unrefuted testimony of Seaport's president, Seaport ceased handling LTL freight, which was not profitable, about 6 to 8 months before closing in an effort to save the Company.

e The evidence contains a customer list for both operations showing 162 customers for Seaport, and 218 customers for Harbor. These lists include agents and brokers, as well as producers, and have 44 names in common. The record reflects that Harbor carries for a wider variety of producers than did Seaport, in part because Alliance Shippers Association, a shipper common to both, has itself expanded operations considerably since the time it serviced Seaport. The customer lists do not indicate what volume of business is represented by any one producer.

927

DECISIONS OF NATIONAL LABOR RELATIONS BOARD As for operating authority, Harbor purchased, 7 and had transferred to it through application to the appropriate regulatory authorities, Seaport's commercial zone authority issued by the Michigan Public Service Commission, and Seaport's common carrier authority and one contract carrier permit, both issued by the Interstate Commerce Commission. Like Seaport, Harbor has a carrier bond and a custom bond to haul bonded freight.8

On these facts, we find, as did the judge, that Harbor conducts substantially the same business as Seaport, operating from the latter's former premises pursuant to the same regulatory authorities, using the same type of trucking equipment, and hauling the same type of freight for substantially the same customers.9

We further find, as did the judge, that the Respondent employed a majority of Seaport's drivers to perform its hauling work. When the Respondent commenced operations on 9 March 1981, it had in its employ five drivers, three of whom were driving for Seaport when it ceased operations on 6

March 1981. By letter dated 28 July 1981, Local 299, the bargaining representative of Seaport's drivers, demanded that Harbor, as successor to Seaport, negotiate with Local 299...

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