McCormick Dray Lines, 155 (1995)

Docket Number:04-CA-22380
 
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McCormick Dray Lines, Inc. and Teamsters Local Union No. 764, International Brotherhood of Teamsters, AFL-CIO. Case 4-CA-22380

April 28, 1995

DECISION AND ORDER

BY MEMBERS STEPHENS, BROWNING, AND COHEN

On October 7, 1994, Administrative Law Judge Frank H. Itkin 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 three-member 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,1 and conclusions and to adopt the recommended Order.

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, McCormick Dray Lines, Inc., Muncy, Pennsylvania, its officers, agents, successors, and assigns, shall take the action set forth in the Order.

1 In contending that it need not supply information requested by the Charging Party, the Respondent argues, inter alia, that a sub-contracting clause contained in its collective-bargaining agreement with the Charging Party allows it to transfer work to owner operators. Thus, the Respondent argues, it is not in violation of the contract. We find that the Charging Party's request for information was not based exclusively on the subcontracting clause, and that the General Counsel has established that the Charging Party had an objective factual basis for believing that the Respondent was transferring work in violation of the parties' collective-bargaining agreement.

The Respondent also maintains that the Charging Party conceded at the hearing that two of the entities about which it seeks information-McCormick Contracting of Massachusetts and McCormick Contracting of South Carolina-do not exist. The General Counsel, however, explicitly declined to concede this point at the hearing. Further, even assuming arguendo that the two companies did not exist as of the time of the hearing, that does not mean that they did not exist as of the time of the request for information. Respondent's owner testified that, at some time after the request, he told the Union that the companies did not exist. Of course, even if this testimony is credited, it does not establish the nonexistence of the companies at the time of the request. If the companies existed then, or at a time that could be covered by a contractual claim by the Union, information concerning them would be relevant. In our view, the issue of when these companies existed can be resolved in compliance.

Sheila Mayberry, Esq., for the General Counsel. Charles J. McKelvey, Esq., for the Respondent. Donald E. Deivert, for the Charging Party.

DECISION

FRANK H. ITKIN, Administrative Law Judge. An unfair labor practice charge was filed in this case on January 18 and a complaint issued on February 25, 1994. The complaint

was later amended at the hearing. The General Counsel alleged in the complaint that Respondent Employer violated Section 8(a)(5) and (1) of the National Labor Relations Act by failing and refusing to furnish to Charging Party Union certain requested information necessary for and relevant to the Union's performance of its duties as the exclusive collective-bargaining agent of an appropriate bargaining unit of the Employer's employees. Respondent Employer, in its answer, denied violating the Act as alleged. Accordingly, a hearing was held on the issues raised on August 4, 1994, in Willamsport, Pennsylvania, and on the entire record thus made, including my observation of the demeanor of the witnesses, I make the following

FINDINGS OF FACT

Respondent Employer is engaged in the interstate and intrastate transportation of freight with facilities in Muncy, Pennsylvania, and is admittedly an employer engaged in commerce as alleged. Charging Party Union is admittedly a labor organization as alleged. The Employer and the Union are parties to a collective-bargaining agreement, effective from November 25, 1991, to November 24, 1994, covering an appropriate unit of the Employer's local drivers and road drivers.1 The collective-bargaining agreement contains, inter alia, grievance and arbitration provisions. (See G.C. Exh. 2.)

On December 28, 1993, Donald Deivert, the Union's president and business representative, mailed to James Webb, the Employer's president, a questionnaire to be filled out and returned by January 3, 1994. See appendix A annexed to the complaint filed in this proceeding. The Employer admittedly did not furnish the information as requested. Deivert explained that he had requested this information because he had ''come to the conclusion that'' the Employer ''was trying to establish a double breasted operation'' and that the Employer and other named business entities listed below ''were doing our bargaining unit work or were involved in it.'' Deivert assertedly needed the requested information in order to file a grievance under the current collective-bargaining agreement.

Specifically, as appendix A to the complaint shows, Deivert had requested with respect to Respondent Employer McCormick Dray Lines, as well as business entities described as WCI, Avis Truck Service, McCormick Contracting of PA, MA and SC, and CK Services of New Jersey, the following information: A description of the types of businesses in which they are engaged; the geographical areas in which they do business; their business addresses and office locations; their post office box numbers and locations; their business telephone numbers and directory listings; their banking institutions with branch locations and account numbers; their banking institutions with branch locations and account numbers of their payroll accounts not identified above; where and by whom their accounting records are kept; their principal accountants, bookkeepers, and payroll preparers; where and by whom their corporate records are kept; where and by whom their other business record books are kept; their workers' compensation insurance carriers with policy numbers;

1 As Union President and Business Representative Donald Deivert explained, ''Local drivers work within . . . the area of Williamsport and they're home every day. Road drivers may be gone from one to five days.''

their other health insurance program carriers with policy numbers; their Federal taxpayer identification numbers; their other Federal or state taxpayer identification numbers; amounts involved, reasons for and dates of transfer of any funds between McCormick Dray Lines and the other named entities; amounts involved, reasons for and dates of transfer of any funds between their divisions; their sources and amounts of lines of credit; the businesses to whom they rent, lease, or otherwise provide office or warehouse space; their building and/or office suppliers; businesses that use their tools, equipment, or vehicles; businesses to whom they sell, rent, or lease their operating, warehouse and office equipment, tools or vehicles; businesses from whom they buy, rent, or lease their equipment; their equipment transactions arranged by written agreement; customers that are now or were formerly customers of the above entities; any jobs that they have bid with customer and dollar amounts; customers that they have referred to the above entities with dollar amount and reasons thereof; their corporate officers, directors, supervisors, and representatives actively involved with day-to-day operations; places and dates of their directors' meetings; their owners and/or stockholders and their ownership interests in the above entities or any other company; companies to whom they sell their customers' accounts; the relationship between McCormick Dray Lines and the above entities; dates when they commenced operations; other businesses or corporations with which James Webb is associated; and how the equipment (tractors and trailers) used by them is registered and licensed and their ICC numbers are registered.

In support of the above request for information, Deivert testified that his Union has represented the Employer's unit drivers for over 40 years; that the unit employees struck the Employer during January 1993 for approximately 2 weeks; and that he had observed and had been given the following ''information'' by employees ''about other companies'' using the Employer's facility:

I witnessed McCormick Contracting trucks going into

. . . WCI, Webb Communications. I witnessed WCI trucks going into McCormick terminals there at Muncy and hauling freight, general freight. . . . McCormick Contracting . . . is a nonunion trucking company that Mr. Webb owns. . . . WCI . . . stands for Webb Communications, Inc.

Deivert testified that before the strike there had been some 62 to 68 unit drivers at the Employer's Muncy facility, and that after the strike the Employer made ''quite a few changes'' and the ''numbers decreased.'' He explained:

The changes were, the freight that we used to haul we no longer hauled anymore. We started to see it being run by the 15 individuals who crossed over the [Union's] picket line . . . [and are now] working for McCormick Contracting. And also Mr. Webb created the job for one of the gentlemen that crossed over the line in our bargaining unit which was not in any agreement. He created a local job for one of the individuals, and at the time McCormick Contracting did not have any local positions . . . out of the Muncy terminal.

. . . After the strike . . . McCormick Contracting started to get dispatches from the Muncy terminal. . . .

[T]hat didn't happen prior to the strike . . . with...

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