Central Transport, Inc. v. N.L.R.B.
| Decision Date | 08 July 1993 |
| Docket Number | Nos. 92-3072,92-3055,s. 92-3072 |
| Parties | 143 L.R.R.M. (BNA) 2550, 125 Lab.Cas. P 10,718 CENTRAL TRANSPORT, INCORPORATED, Central Cartage, Company and Big John Incorporated, Petitioners, Cross-Respondents, v. NATIONAL LABOR RELATIONS BOARD, Respondent, Cross-Petitioner. |
| Court | U.S. Court of Appeals — Seventh Circuit |
James H. Hanson, Scopelitis, Garvin, Light & Hanson, Indianapolis, IN, Timothy K. Carroll (argued), Dykema Gossett, Detroit, MI, for Cent. Transport, Inc., Cent. Cartage, Co. and Big John Inc.
Julie Broido, James M. Stephens, N.L.R.B., Contempt Litigation Branch, Aileen A. Armstrong, Collis Suzanne Stocking, John D. Burgoyne, John D. Burgoyne (argued), N.L.R.B., Appellate Court, Enforcement Litigation, Washington, DC, William T. Little, N.L.R.B., Region 25, Indianapolis, IN, for N.L.R.B.
Before BAUER, Chief Judge, EASTERBROOK, Circuit Judge, and REAVLEY, Senior Circuit Judge. 1
Central Transport, Inc., Central Cartage, Co. (jointly "Central"), and Big John Incorporated petition this Court for review of an order issued by the National Labor Relations Board. The Board found that Central and Big John committed four violations of the National Labor Relations Act ("the Act"). 29 U.S.C. §§ 151-160. The Board filed a cross-petition for enforcement of the order. For the following reasons, we enforce the order as to Big John, and enforce in part and vacate in part the order against Central.
Central Transport and Central Cartage are subsidiaries of Centra Inc. Both are trucking companies. Central Transport ships freight in interstate commerce between cities to shipping terminals. After the freight is delivered to the terminals, Central Cartage delivers it to intra-city locations. Central leased mechanics from Big John, a personnel corporation, to maintain trucks at its Roanoke, Indiana terminal. Central Transport and Central Cartage have stipulated that they are a single employer for purposes of this litigation.
Central leased three new mechanics from Big John in late 1987 and early 1988. Ray Carr, a Central employee and the Roanoke shop manager, hired and supervised the mechanics. Big John was paid on a cost-plus basis: it paid the leased employees and withheld the appropriate taxes; it passed these costs to Central and received a fixed percentage in compensation. When they were hired, the terminal mechanics were not represented by a union. Ray Carr informed each new mechanic that the shop was non-union and that the shop would close if employees brought in a union. Five mechanics worked for Central at the Roanoke terminal in April 1989. Three of them signed union authorization cards with Local 414 of the Chauffeurs, Teamsters & Helpers Union, which is affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("the Union"). The Union's business agent, Michael Hinton, sent a letter to "Mr. Ray Carr, Big John, Inc." on April 18, 1989, informing him of the Union's election and requesting recognition. Hinton Letter, Government Exhibit (G. Ex.) 7. The Union conducted an election pursuant to NLRB regulations on April 19, and the mechanics elected the Union by a vote of 3 to 2. On April 21, 1989, the Union petitioned the Board for certification of its representation of the mechanics. The Board issued the certification on May 30, 1989. Big John was the only employer named in the petition and the Board's Certification of Representation. G. Exs. 3(a), (b), & (c). Central was not made a party to the election and certification proceedings.
After Carr received Hinton's letter, he asked mechanics Bell and Murdock whether they signed union authorization cards. Both falsely denied signing the cards. The terminal manager, Jim Bowen, questioned mechanic Melton. Melton was the union election observer. Bowen asked Melton if he voted for the Union, and to identify the mechanics who did. After the election, Carr told mechanic Bell that the shop would close because the employees elected to have union representation.
On July 1, 1989, Hinton wrote to John Anger, Big John's President, to inform him of the Union's certification by the Board and to arrange a meeting. On July 14, 1989, Hinton met with Anger to discuss the terms of the mechanics' collective bargaining agreement. Hinton gave Anger a copy of the Union's proposal for pension and welfare benefits, the Uniform Indiana Automotive Maintenance Agreement (the "blue book"). The blue book sets forth the agreement reached between the Indiana Conference of Teamsters and the Indiana Motor Carriers Labor Relations Association. Hinton told Anger that the Union could agree to a wage rate lower than that given in the blue book and, during the administrative proceedings, the Board found that Hinton also informed Anger that all the elements of the Union's proposal were negotiable. Central Transport, Inc. v. NLRB, 1992 WL 17779 (NLRB), 139 L.R.R.M. 1404 (Jan. 27, 1992), at * 3 n. 5 (hereinafter "Board op."); Central Transport, Inc. v. NLRB, 1992 WL 17779 (NLRB) at * 5 (July 11, 1991) (included as Appendix to Board op.) (hereinafter "ALJ op.").
Anger informed Hinton that he needed to discuss the Union's proposals with Central because Central would be responsible for any increase in labor costs. Anger discussed the proposal with Central Vice President Dennis Toca. According to Toca and Anger's calculations, the expanded benefits the Union requested would increase the cost of operating the Roanoke terminal $200 per week, per man. On May 31, 1989, Toca wrote Anger to warn him that Central would not absorb cost increases due to the unionization. On August 17, 1989, Toca wrote Anger another letter:
We are experiencing a severe downturn in overall business in both the truckload and LTL areas. Consequently, we are looking to keep costs in line and cut whenever necessary.
Therefore, we cannot agree to your request for $200.00 per week per man. We will be forced to discontinue using Big John Inc. in Ft. Wayne effective September 1, 1989 and will undoubtedly absorb the work in other shops in an effort to keep costs in line.
Toca Letter to Anger of 8/17/93, G. Ex. 5. Neither Big John nor Central made counter-offers to the Union and there were no negotiations after the initial meeting between Anger and Hinton. Central closed the terminal on September 1, and mechanics Bell, Murdock, and Melton (the mechanics who voted for the Union) were laid off. One mechanic had already left Roanoke, and the fifth was transferred to another terminal.
Hinton, on behalf of the Union, contacted Anger on September 8, 1989 to request bargaining over the effects of the closure of the terminal. On October 8, Anger informed Hinton that he would be unavailable to meet before October 18. The work performed by the Roanoke facility was transferred to a new terminal in Kokomo, Indiana. On October 26, 1989 and in February 1990, Central contacted the three laid-off mechanics directly to offer them jobs at different facilities.
The Union filed separate unfair labor practice charges against Big John and Central. See Board Consolidation Order, Petitioners' Appendix at 19-20. On October 2, 1989, the charges were amended to allege that Big John and Central were joint employers. On November 13, 1989, the Regional Director of the Board ruled that Big John and Central were joint employers, consolidated the charges against them, and issued a complaint. Id. The complaint charged Big John and Central with unlawful interrogation of and threats to employees, unlawful discharge or layoff of employees, and unlawful refusal to bargain in good faith, violations of Sections 8(a)(1), (3), and (5) of the Act. 29 U.S.C. §§ 158(a)(1), (3), & (5). An administrative law judge (ALJ) heard the consolidated cases on March 4, 5, and 6, 1991.
The ALJ determined that Central employees Carr and Bowen improperly interrogated employees Bell, Murdock, and Melton about their support for, and involvement in, the Union election. The ALJ found that these interrogations violated Section 8(a)(1) of the Act. ALJ op. at * 5. The ALJ also found that Carr threatened mechanics Berger and Bell with shop closure if the Union won the election in violation of Section 8(a)(1). Id.
The ALJ also ruled that as joint employers, Big John and Central failed to negotiate in good faith for a collective bargaining agreement with the mechanics and over the effects of the closure of the terminal. He held that these failures violated Sections 8(a)(1) and (5). The ALJ also rejected the employers' contention that the decision to close the terminal was economically motivated and forced by a Union ultimatum on benefits. Id. at * 5-7. He found the closing was motivated by anti-union animus, and that Central's decision to reallocate work to other facilities and the effects of the closure were mandatory subjects for bargaining. Id. at * 7. The ALJ held that the layoffs violated Section 8(a)(3) because they were retaliatory. Additionally, the ALJ found that bypassing the Union's request for effects bargaining and contacting the laid off employees directly violated Sections 8(a)(1) and (5).
The ALJ imposed a series of remedies to correct the employers' violations. For the unlawful interrogations and threats, the ALJ ordered the employers to cease and desist, and to post an appropriate notice to employees. To remedy the retaliatory terminal closing and layoffs, the ALJ ordered Central to reopen its Roanoke terminal and to reinstate (with back pay) the three laid off mechanics. To remedy Big John and Central's failure to bargain in good faith, he ordered the employers to bargain in good faith and to post a notice. ALJ op. at * 9.
The Board affirmed the ALJ's rulings. It rejected Central's claim that the Union and the Board's failure to join Central in the certification proceedings barred a finding that...
To continue reading
Request your trial
-
Barker v. A.D. Conner Inc.
...se a violation of § 8(a)(1)”); NLRB v. Champion Laboratories, Inc., 99 F.3d 223, 228 (7th Cir.1996) (same); Central Transport, Inc. v. NLRB, 997 F.2d 1180, 1190–91 (7th Cir.1993) (supervisor's threats to close down plant were unfair labor practice despite supervisor's lack of authority to e......
-
Cent. States, Se. & Sw. Areas Pension Fund v. Norfolk S. Ry. Co.
...that an employer is a joint employer, an employer may not be held liable for failure to bargain. See Cent. Transp., Inc. v. N.L.R.B., 997 F.2d 1180, 1185-86 (7th Cir. 1993); Alaska Roughnecks and Drillers Ass'n v. N.L.R.B., 555 F.2d 732, 736 (9th Cir. 1977). The Second Circuit has not addre......
-
Electromation, Inc. v. N.L.R.B., s. 92-4129
...STANDARD OF REVIEW We have jurisdiction to consider the parties' petitions under 29 U.S.C. Sec. 160(e) and (f). Central Transport Inc. v. NLRB, 997 F.2d 1180, 1184 (7th Cir.1993); NLRB v. Joe B. Foods, Inc., 953 F.2d 287, 291 (7th Cir.1992). However, our role in reviewing Board decisions is......
-
Guardian Industries Corp. v. N.L.R.B.
...the NLRA. See NLRB v. Gissel Packing Co., 395 U.S. 575, 619-20, 89 S.Ct. 1918, 1942-43, 23 L.Ed.2d 547 (1969); Central Transport, Inc. v. NLRB, 997 F.2d 1180, 1190 (7th Cir.1993); Northern Wire Corp. v. NLRB, 887 F.2d 1313, 1317-18 (7th Cir.1989). It denies, however, that Osterhout made suc......