N.L.R.B. v. Lantz

• Decision Date: 29 October 1979
• Docket Number: No. 78-2399,78-2399
• Parties: 102 L.R.R.M. (BNA) 2789, 87 Lab.Cas. P 11,673 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Douglas LANTZ, d/b/a Transportation Consultants, Alcan Forwarding Company, and/or AFCO, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 290

607 F.2d 290

102 L.R.R.M. (BNA) 2789, 87 Lab.Cas. P 11,673

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. Douglas LANTZ, d/b/a Transportation Consultants, Alcan Forwarding Company, and/or AFCO, Respondent.

No. 78-2399.

United States Court of Appeals Ninth Circuit.

Oct. 29, 1979.

R. Michael Smith, NLRB, Washington, D. C., argued, for petitioner; Elliott Moore, NLRB, Washington, D. C., on brief.

A. Stevenson Bogue, Nelson, Harding, Yeutter, Leonard & Tate, Lincoln, Neb., for respondent.

On Application for Enforcement of an Order of the National Labor Relations Board.

Before HUFSTEDLER and ANDERSON, Circuit Judges, and GRANT, ^* District Judge.

GRANT, District Judge:

This case is before the court on the application of the National Labor Relations Board (hereinafter "Board") for enforcement of its order entered against Respondent Douglas Lantz, which is reported at 235 NLRB 140. The court has jurisdiction over this proceeding under Section 10(e) of the National Labor Relations Act (hereinafter "Act"), as amended, 29 U.S.C. § 151, et seq., as the unfair labor practices found by the Board occurred within the State of Alaska. There is no dispute that respondent's operation satisfied the Board's jurisdictional requirements and that it is an employer engaged in commerce within Section 2(2), (6), and (7) of the Act. Between March 28 and May 20, 1977, the International Brotherhood of Teamsters, Local Union No. 959 (hereinafter "Union") filed charges against respondent alleging certain violations of Sections 8(a)(1), (3) and (5) of the Act. A hearing was held before an administrative law judge on September 13 and 14, 1977.

The administrative law judge's decision of December 21, 1977, which was adopted without significant modification by the Board, is the basis of the following rendition of the facts:

Alcan Forwarding Company ("Alcan") and Transportation Consultants ("TC") are Alaskan trucking businesses organized in 1972 by Douglas Lantz. Lantz; Jean Lantz, his wife; and Gayle Yotter, his stepdaughter, were Alcan's incorporators as well as its president, vice president, and secretary-treasurer, respectively. Lantz and Jean Lantz were TC officers and Yotter was one of its incorporators. TC owned rolling stock ten truck-tractors and eight trailers designed for transportation of bulk materials used in oil well exploration. In September, 1975, the State of Alaska dissolved Alcan's certificate of incorporation for failure to file annual reports and/or to pay fees.

In December, 1975, Lantz, on behalf of TC, and Richard Mettle, an employee of a division of Dow Chemical ("Dowell"), reached an agreement committing TC to furnish rolling stock, including its maintenance, in aid of Dowell's hauling activities between Fairbanks and Alaska's North Slope.

At about the same time, Lantz alleges that a firm known as AFCO contracted with Dowell to provide drivers and fuel for TC's rolling stock. Lantz testified that AFCO was operated by a James Taylor, and that he, Lantz, had no interest in or control over it. AFCO's inclusion in the arrangement was necessitated, Lantz continued, by an Interstate Commerce Commission ("ICC") prohibition against both equipment and drivers being under common control absent common-carrier authorization. Lantz would have this court believe that any violations of Section 8(a)(3) and (5) in the present case were perpetrated by Taylor's AFCO and not by any venture with which he was or is associated.

Lantz testified that Dowell's representative in the arrangements just described was the same Richard Mettle with whom Lantz had reached an agreement in December 1975. The record contains no documentation of the Taylor arrangements, and neither Mettle nor Taylor testified.

In contradiction of Lantz's avowed noninvolvement with AFCO which is to say, with the driver aspect of the Dowell venture the record contains a written contract dated January 7, 1976, in which Alcan Forwarding, Identified in the contract as AFCO for short, agreed to provide "experienced line drivers and arrange truck fueling as requested by Dowell." The document was signed for Alcan Forwarding by Gayle A. Yotter, Lantz's stepdaughter and corporate secretary-treasurer, and for Dowell by Mettle the person who supposedly had extracted the same commitment from Taylor's AFCO the month before.

Furthermore, on January 7, 1976, the day she contracted with Dowell in the name of Alcan Forwarding Yotter additionally signed a collective bargaining contract with the Union to cover those "employed as Teamsters, Drivers, Chauffeurs, Warehousemen, or as employees under any classification within the jurisdiction of the Union." The agreement provided that the Union's exclusive hiring hall would refer to Alcan "qualified workmen" for whom Alcan was required to make welfare and pension contributions to designated Union trust funds. The agreement also was to remain in effect "until June 30, 1977, and . . . thereafter from year to year," subject to renegotiation upon proper notice. On January 7th and 8th, 1976, four employees were dispatched and the first Dowell load departed Fairbanks on January 14th.

The Dowell venture operated out of a shop building and adjoining office structure leased by TC and located in Fairbanks. The TC rolling stock was garaged and maintained in the shop and the drivers were dispatched on Dowell hauls from this point. In the latter half of January, petitioner contends that Jodi Collins became the venture's dispatcher for drivers and shared the office space with TC. Respondent contends that Collins was designated by James Taylor to be only AFCO's day-to-day representative. Testimony revealed that TC and Collins had a single telephone which Collins answered and that TC provided Collins with a motor vehicle and living quarters. Both Collins and Lantz interviewed job applicants and Lantz had the right to veto the hiring of any driver, and did so at least once. On occasion Lantz also dispatched drivers on Dowell hauls. When Lantz was not present in Fairbanks a frequent occurrence he relied on Collins to "tell (him) what was happening" with regard to the venture, and also transmitted instructions to her. In response to such instructions, Collins discharged some TC employees.

On January 16, 1976, Larry Harness was dispatched to Alcan as a teamster mechanic. Shortly before January 28th, Charles Clark was interviewed by Lantz in the venture's office for a position. On January 28th, Clark was dispatched to Alcan as a mechanic, and for the first two or three weeks of their employment, Harness and Clark worked as mechanics. Thereafter they worked mainly as line drivers, although they continued to do maintenance. The Union continued dispatching drivers and mechanics to Alcan through May 1976.

From January to March, Harness and Clark, as well as the other drivers and mechanics, were paid on a single payroll maintained under the "AFCO" style. All billings to Dowell in connection with the venture were in the name of AFCO. During this period, Alcan also began forwarding to the Union, on behalf of the referred drivers and mechanics, the pension/welfare contributions required under the bargaining agreement.

From January to March 1976, the administration of the Union trust fund received reports from Alcan, signed by Jodi Collins, which listed compensable hours for both driving and maintenance time.

Sometime in March, the venture's maintenance time began being paid from a TC account, while driving time continued to be paid from an "AFCO" account. Separate books were thereafter kept for the TC and driving aspects of the venture, but Jean Lantz did the payroll computations for both. TC checks were signed by Jean Lantz and checks for driving time, under the "AFCO" style, were signed by Collins. At about the time of the payroll change, Alcan ceased making Union pension/welfare contributions for maintenance time.

In May, the Union trust fund office commenced a collection action against Alcan and Yotter for liquidated damages incurred as a result of Alcan's late filing of the January transmittal report. On June 4th, Lantz met with a Union business agent and other Union officials. The parties discussed shortages in Alcan's pension/welfare and dues checkoff contributions and the liquidated damages for Alcan's late filing of the January transmittal report. The Union indicated to Lantz that one of its problems was its inability "to contact anyone from (Alcan)". Lantz was asked if Jodi Collins was still his office manager. He replied that she was and gave a corrected address, as well as agreeing to pay Alcan's pension/welfare and dues arrearages.

In connection with Alcan's arrearages, union officials inspected Alcan's books, which were then maintained under the "AFCO" style. Subsequently, Alcan cured its delinquencies and the lawsuit was dismissed.

In July or August 1976, Clark and Harness learned that pension/welfare contributions were no longer being made for maintenance work. They asked Lantz what was happening. Lantz responded that he "could not afford to pay union scale for mechanical work, and if the employees wanted to keep receiving that portion of their pay, they would have to work non-union." Lantz further stated that the "maintenance shop was going completely non-union" and if they did not want to work non-union they could go without their paychecks. Subsequently, Clark and Harness were relieved of all mechanical work.

After September, Alcan ceased making pension/welfare contributions for driving time. In December, Clark asked Lantz about the continuing non-payment of driver's benefits, declaring that he was going to the Union to get his pay straight. Lantz responded with some four-letter words as descriptive of his ideas about the Union and stated that he was getting rid of his Union drivers and operate on a "gypo" (non-union) basis.

On January 19 and 20, 1977, Clark and Harness, respectively, finished their last trips for the...