# Appendix — Land Air Delivery, Inc. v. National Labor Relations Board

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1989
- **Citation:** 493 U.S. 810

## Text

O03 1Q2N Supreme Court, US,
Re L806 1} 822 e8
0. |
MAY 8 198
‘7 JOSEPH F. ShANtOL OR.
CLeae
Lee
IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1988

LAND AIR DELIVERY, INC, - - ~- Petitioner
versus

NATIONAL LABOR RELATIONS

BOARD, - - - - - - - Respondent

APPENDIX TO PETITION FOR CERTIORARI

DAVID LEIGHTTY
TILFORD, DOBBINS, ALEXANDER
& BUCKAWAY
600 W. Main Street, Suite 202
Louisville, Kentucky 40202
(502) 584-6137
Counsel of Record

PAUL V. GUAGLIARDO
601 W. Main Street, Suite 202
Louisville, Kentucky 40202
Counsel for Petitioner

LOUIS J. AMATO
Attorney at Law
P. O. Box 340
Bowling Green, KY 42102-0340
Of Counsel

WESTERFIELD-BONTE CO., 619 W. KENTUCKY~P.O. BOX 3251, LOUISVILLE, KY. a

~ err:

TABLE OF CONTENTS

{| Note: The required Rule 28.1 statement appears in
the accompanying Petition For Writ of Certiorari. |

Opinion and Judgment of Court of Appeals (as orig-

inally decided, December 2, 1988) ...........2005.

Order of Court of Appeals, denying petition for re-

hearing (entered March 2, 1989) ................

Order of Court of Appeals denying suggestion that

rehearing be en banc (March 2, 1989) ...........

Order of Court of Appeals denying motion to stay

mandate ( hiarel Do, BOCB): «visi vices ca iNieweddes's

Order of Court of Appeals amending original opinion

(SCE es SO ce aes nae wien sas ed be

Decision and Order of NIRB (November 27, 1987)

Decision and Recommended Order of ALJ (Septem-
her 30, 1986)

ee we oe A ie ae ae a, we a i a ae ae be tae i i hoe ia a Ge Ee Pay ee et

PAGE

UNITED STATES COURT OF APPEALS

No. 87-1758
Argued October 3, 1988 Decided December 2. 1988
Laxp Aim Detivery, INc., ‘: - . Petitioner
e,
NaTIonaL LABor Retarions Boarn, . - Respondent

Petition for Review of an Order of the
National Labor Relations Board

Darid Leightty, with whom Louis J. Amato was on the
brief, for petitioner.

Joseph A, Oertel, Attorney, National Labor Relations
Board, with whom Aileen A. Armstrong, Deputy Associate
General Counsel, and Howard EF. Perlstein, Attorney, Na-
tional Labor Relations Board, were on the brief for re-
spondent.

sefore: Rurn B. Gixspure and Sinperman, Circuit
Judges, and Miron Pouiack,* Senior District Judge,
United States District Court for the Seuthern Distriet of
New York.

Opinion for the Court filed by Circit Judge SitpernM an,

SILBERMAN, Crrewt Judge: This is a petition for review
of a decision by the National Labor Relations Bonrd. The
Board affirmed a finding by an administrative law judge
that Land Air Delivery, Inc. violated sections S(a)(5) and
S(a)(1) of the National Labor Relations Act, 29 U.S.C.
$§ 158(a) (5) & 158(a)(1) (1982), by permanently contract-
ing out bargaining unit work during the course of a strike

*Sitting by designation pursuant to 28 ULS.C. § 294¢d),

without notifying and bargaining with the Teamsters Local.
The Board also found that Land Air violated sections 8(a)
(3) and 8(a) (1) of the Act, 29 U.S.C. §§ 158(a) (3) & T58(a)
(1), by refusing to reinstate strikers, who made an uncon-
ditional offer to return to work, in place of new independent
contractors. We eonelude that the Joard’s decision was
supported by eubstantial evidence in the record as a whole,
and therefore we deny the petition for review.

}

Land Air Delivery, Inc. is an air freight motor carrier
that engages in the pickup and delivery of small packages
for overnight earriers. In 1973, the Board certified Team-
sters Local 41 as the exclusive bargaining agent of “fa]l]
truck drivers and warehousemen” employed by Land Air.
Tn 1975, the Board clarified the bargaining unit by exclud-
ing independent contractors who transported freight for
Land Air. At the time of the strike that led to this litiga-
tion, Land Air employed 13 bargaining unit truckdrivers
and used an additional group of independent contractor
drivers.

The unit employees were covered by the Teamsters’
National Master Freight Agreement (“NMEA’), which
was effective from March J, 1982 to March 31, 1985. The
extent of Land Air’s use of independent contractors was a
major issue iM the 1982 negotiations for a new contract.
Petitioner presented at least three subcontracting pro-
posals to the nnion during their negotiations, and the union
rejected each one. The union insisted upon the more
restrictive subcontracting language provided in Article 32
of the NMFA, which prohibited the subcontracting of work
that employees in the bargaining unit performed. The
parties eventually reached a bargaining impasse in late
1982 over the subcontracting language (and over an ac
ceptable grievance machinery), and the union struck to

3

enforce its demands. After three days, Land Air agreed to
the subcontracting language in the NMEA.

In November 1984, the union notified the company that
the union had authorized a strike, pursuant to the terms of
the NMFA, to protest both the company’s failure to comply
with certain grievance awards and its refusal to take a
deadlocked grievance to the next step of the grievance
procedure. All 13 unit employees struck, and Land Air
immediately hired replacement workers. To continue its
business during the strike in INansas Citv, Land Air used a
mix of employees from other locations, its contractors and
contractor drivers, newly-hired employees, and its) own
staff and supervisors. The company hired eight new em-
ployees in November and December 1984; three of these
employees were terminated in December 1984, and five were
terminated on March 28, 198». Thus, as of Mareh 28, 1985,
Land Air had terminated all of its replacement employees.

The company also signed agreements with 12. inde-
pendent contractors between February 20 and March 1,
1985. Five of these persons had not been contractors before
the strike, and all 12 contractors continued to work for
Land Air after the end of the strike. Although the exact
timing is not clear from the record, the combination of
subcontracting on February 20 and March 1 and termina-
tion of replacement employees on March 28 resulted in the
elimination of all bargaining unit positions by March 1950.

The strike lasted almost five months, until April 1985,
and it resulted in violent action by the strikers against
replacement workers and company property. During the
course of the strike, Land Air filed an unfair labor practice
charge against the union stemming from these acts of
violence and coercion, On February 4, 1985, the union
entered into an informal settlement agreement, which con-
tained a nonadimission clause, and it also issued a Notice to

4

Employees and Members that it would not engage in eoer-
cive acts.

The strike ended on April 9, 1985, when the union mem-
bers offered orally to return to work unconditionally. Mt
that time, the general manager of Land Air informed the
former strikers that there was no work for them. On
April 11, the union’s business agent communicated the same
unconditional offer to Land Air by mail. Land Air took no
action to reinstate the striking employees, and the union
filed a charge against the company alleging that it) had
committed an unfair labor practice by refusing to reinstate
the strikers. The Board’s regional director dismissed the
charge, finding that “the subject strike was an economic
strike giving the employees the right to reinstatement only
at such time when positions become available.” Because
Land Air had not hired any new employees since the uneon-
ditional offer of April 9, the regional director concluded
that the company’s refusal to reinstate the strikers was not
a violation of the Act.

After the regional director issued his ruling, the union
made several requests for employment information from
Land Air, On June 3, the union asked whether the com-
pany had hired any new employees since April 1, 1985 or
whether any of the work previously performed by the
bargaining unit employees was subcontracted as of June
3. Land Air, erroneously stating that the inquiry involved
inatters relating to 2 pending case before the Board,' de-
clined to comment on the inquiry. On June 22, the union
went back on strike. On July 16, the union’s attorney again
requested information from the company, this tine asking
for “the employment status of each and every member with
Land Air Delivery, Ine.” Land Air responded that it would

'The relevant unfair labor practice charge was dismissed on
May 21. 1985, and the period allowed for filing an appeal had
expired by the date of Land Air's response.

i)
reply to the request by August 2, but it failed to do so. On
August 16, the union’s attorney again requested employ-
ment information from the company and, for the first time,
accused Land Air of subcontracting bargaining unit work
without first bargaining with the union.

On August 22 1985, Land Air’s attorney responded to
the union’s queries. His letter stated that with regard to
“putting a label” on the employment status of the persons
working for the company, “your guess is as @ood as mine.”
Ife went on to say that during the strike, the company “hired
“some additional employees as replacements and continued
to conduct business as it formerly did prior to the strike.”
On October 9, 1985, after some further communication with
the company, the union filed a charge with the Board as-
serting that Land Air had violated sections 8(a)(1) and (3)
of the Act by, teter alia, “continuling] to allow independent
contractors or sub-Independent contractors to continue to
perform work of the bargaining unit once there was an
unconditional offer to return to work.” On February 20,
1986, the union filed an amended charge alleging violations
of sections 8(a)(1), (3), and (5), and specifying:

On or about February 1, 1985, [Land Air] by its offi-
cers, agents and representatives subcontracted out
bargaining unit work without notice to or bargaining
with the Union.

On or about April 9, 1985, [Land Air] by its officers,
agents and representatives failed and refused to re-
instate striking employees who had made an uncondi-
tional offer to return to work.

The administrative law judge found that Land Air had
violated sections 8(a)(1), (3), and (5) of the Act by per-
manently subcontracting unit work without prior bargain-
ing. He determined that by March 1985, petitioner had
contracted out all bargaining unit positions. He ordered

6

the company to reinstate nie strikers and directed that
they receive backpay from Land Air (four of the striking
employees were not ordered reinstated because of specific
instances of employee misconduct). The ALJ rejected the
company’s claim that the union’s charges were barred by
the statute of limitations in section 10(b) of the Aet, 29
U.S.C. § 160(b) (1982). The Board affirmed the AL.J’s
findings on these issues, and Land Air petitions this court

for review.
ts

Petitioner contends that as a matter of law an employer
is entitled to replace economic strikers permanently with
subcontractors at any time during the strike without bar-
eaining with the union over that decision.2. The Board, on
the other hand, appears to maintain that an employer is
vever (even during an economle strike) permitted to sub-
contract permanently, without bargaining over the deci-
sion.’ We reject petitioner’s contention, and do not find it

+

necessary, in order to resolve this case, to pass on the
Board’s proposition. Even if pressing “business necessity”

“Although neither petitioner nor the Board in their briefs is
entirely clear as to what is meant by pormanent subcontracting,
we take the term to mean subcontracting for an indefinite future
period not to terminate at the expiration of the strike.

8The Board urged that an emplover has two options when faced
with an economic strike: (1) it can hire permanent employee re-
placements or (2) it can contract out the werk on a temporary
basis. But ef. Elliott River Tours, Tne., 246 N.L.R.B. 935 (1979)
(Board countenanced contracting out for two years, which exeeeded
the duration of the strike, because subcontractor demanded jong
term as condition for taking on the work). Tn view of Elliott River
Tours, Wwe do not take the Board's current position to preclude
argument that at least long-term subcontracting is available in
special circumstances, ic, When permanent replacements or tem-

porary subcontractors are not viable options.

would justify permanently contracting out unit work, Land
Air has not shown such necessity here,

Long settled is the rule that an employer-—at least
absent an economic strike—is obliged to bargain with his
union before he decides to subcontract. The basis for this
requirement is that subeontracting erodes the bargaining
unit and is an “appropriate” subject for collective bareain-
ing. Fibreboard Paper Products Corp. v. NLRB, 379 U.S.
205 (1964). Also lone settled, however, is the principle that
an employer faced with an economic strike is entitled to
replace strikers permanently with new employees. VILRD
v. Mackay Radi, 304 U.S. 3335 (1938). Land Air elaimes
that Mackay Radio in ettect “trumps” Fibreboard, because
there is no meaningful distinction between replacing strik-
ers with permanent employees and replacing them with
permanent subcontractors. We see at least a theoretical
distinction, however, and that difference probably has

practical consequences,

A permanent subcontract diminishes the bargaining unit
hy the scope of the subcontract. See International Union,
UAW v. NLRB, 381 F. 2d 265, 266 (D.C. Cir.), cert. denied,
889 UL S. 857 (1967). Contracting out all bargaining unit
work, as occurred in this case, completely destroys the bar-
gaining unit. Although as a practical matter it may be
true that total replacement of strikers by new permanent
employees will often result in a decertification of the union,
there is a legal difference between the employer unilaterally
dissolving the unit by contracting out its work and the em-
ployees in the unit themselves decertifying the union. Until
decertification, the employer is obliged to bargain with the
striking union over all terms and conditions of employment
in the bargaining unit, and his obligation would be lessened
if a portion of the work of the unit were permanently sub-
contracted. Bringing on permanent replacements, more-

over, does not necessarily lead to the extinction of the

8

bargaining unit. A striking union might be able to gain
the allegiance of at least some of the replacement empley-
ees Who, combined with strikers, could provide the union
With continued imajority support. We think, therefore, that
the Board is within its authority to treat permanent sub-
coutracting during a strike differently from the use of
permanent employee replacements for purposes of scetion
S(a)(5) of the Act.

Despite our conclusion that permanent subcontracting
iz not legally equivalent to the use of permanent replace-
ments, we still must confront the question whether per-
manent subcontracting violated the NLURA under the cir-
culistances of this case, Petitioner relies for support
primarily on the decision of the Ninth Cireuit in Mawai
Meat Company v. NERB, 321 F. 2d 397 (9th Cir. 1963),
where the court held that an employer's unilateral decision
to subcontract work permanently during an economic strike
did not violate section S(aj(5). But cf. American Cyana-
mid v. NLRB, 592 F.2d 256, 360 1.7 (Tth Cir, 1978) (read-
ing Tawan Meat as compatible with distinction between
eenerally permissible temporary subcontracting in face of
strike and generally impermissible permanent subcontract-
ing): sce also Soule Glass & Glazing Co. v. NLRB, 652 F.2d
1095, 10s8s-S9 (Ist Cir. 1981); NERB ve. King Radio Corp..
416 I. 2d 569, 572 (10th Cir. 1969) (distinguishing between

‘Petitioner claims that his decision to subeontract did not fore-
close reuiployment of strikers, because it planned to offer strikers
the right to reinstatement if the subcontractors ceased operations.
This argument, as far as we can determine, was not preserved in
Land Air’s exeeptions to the ALJ°’s decision or presented to the
Board. so it is not properly before us. We note, however, that
unless petitioner was asserting that the subcontracting was really
temporary, cf. EMiott River Tours, Ine., supra note 3, the argument
misses the point, for whether or not petitioner was prepared to
reamploy strikers if the subcontractors terminated their relation
ship. the bargaining unit was truncated in the meantime.

Q

permanent and temporary subcontracting). Judge Dnni-
way’s opinion in Ilawaii Meat, however, was carefully
drawn to deal with the exigencies of the partienlar situation
presented, and to exclude from the decision’s compass cases
like the instant one. In Jawai Meat, the employer deter-
mined before the strike to subcontract permanently its
hauling operations in the event of a strike, and it notified
the union of its plans just before the strike. It was un-
disputed that the emplover’s purpose in subcontracting was
totaily defensive—to keep its plant operating during the
strike. Jd, at 399.) The court rejected the Board’s finding
of a violation of section 8(a)(5), because to require an
employer to bargain to impasse over a subcontracting deci-
sion under those exigent circumstances would be to give the
union a practical veto over the decision. As the court
observed, the union could easily delay an impasse and
thereby prevent the employer from continuing business
during the strike. See id. at 400. We read Hawaii Meat,
then, to stand for no more than the proposition that an
employer may not be obliged to bargain with a union about
permanent subcontracting during a strike when that sub-
contracting is necessary to the business purpose of keeping
the plant continuously in eperation and time of decision is

of the essence.’

‘The Board’s brief dismisses Hawaii Meat altogether. because
it was decided prior to the Supreme Court's decision in Fibrehoard.
That position seems quite disingenuous to us, because the court in
Hawau Meat assumed the result in Fibreboard, as it had been de-
cided by the Board and by this court. Sce Hawaii Meat, 321 F.2d
at 399. Indeed, Judge Duniway’s reasoning, suggesting that it is
anomalous to require an employer to bargain with the union about
measures the employer needs and will use to blunt a strike before
they are employed, does not appear inconsistent with Chief Justice
Warren's opinion in Fibreboard, which foensed on the *tappro-
priateness’” of bargaining over the subcontracting decision, Fibre-
board. 379 U.S. at 214.

——————————

10

Although the Board has permitted unilateral subeon-
tracting that extends bevond the end of a strike in a case
where the subcontractor insisted on such an arrangement,
see Elliott Liver Tours, 246 NLRB. 935 (1979) (two year
subcontract), it does not appear to have accepted even our
narrow reading of Haean Meat that permanent subcontrac-
ting may be undertaken without first bargaining when
needed to continue operations. See supra note 3. It is
unnecessary for us to pass on the Board’s reluctance to
endorse Hawai Meat, however, because it is clear to us
that the ALJ was amply supported in his finding that peti-
tioner’s decision was not motivated by business necessity."

The subcontracting at issue in this case took place more
than three months after the strike started, and Land Air
had successfully operated during that entire period with a
mixture of employees from other locations, pre-strike con-
tractors, ngav employees, and office staff and supervisors.
Although the employer pointed to violence by union mem-
bers and large security expenses as the business reason for
the decision, the subcontracting did not take place until
after the unicn had settled the employer’s unfair labor
practice charge stemming from the violence. Thus, since

"In its line of cases concerning temporary subcontracting dur-
Ing an economle strike, the Board uses the phrase ** business neces-
sitv’’ to refer to decisions motivated by the desire to maintain
business operations during the course of a strike. See Elliott River
Tours, 2406 NLRB. at 935; Empire Terminal, 151 N.L.R.B. 1359,
1364-65 (1965), aff'd sub nom. Dallas General Drivers, Local No.
745 V. NLRB, 3595 F.2d 842 (D.C. Cir. 1966); Shell Oil Co., 149
NLRB. 285, 285 (1964). It is not clear from the Board’s de-
cisions Where the burden of proof lies on that issue, nor has the
Board enunciated a standard of proof. As far as we can tell, for
example, it has never held that an employer must meet the burden
of demonstrating that defensive measures taken were its only op-
tion or that they were the option that would have the least adverse

effect on the barewainine wnt.

_——___ ee

11

the ALJ found no evidence of violence after the entry of the
settlement agreement, it was reasonable for him to conclude
that the contracting out was not an effort to avoid violence.
(If the ALJ’s determination were unsupported, we would
have quite a different case.) And, despite petitioner's
contention that the employees themselves asked to be con-
verted to subcontractors, the ALJ found that the employees
had not demanded subcontractor status as a condition for
their continued service. In faet, Land Air’s president
testified before the ALJ that the reason for the shift to
independent contractors was “something that had happened
somewhere as far as court cases were concerned ... .”

In the context of the past years of dispute between
petitioner and the union over the degree of subecontraet-
ig, Land Air’s decision to subcontract all of its driving
work during the union’s ineffective strike hardly looks
motivated by business necessity. Rather, it appears that
petitioner seized the opportunity it thought legally avail-
able to fashion a final solution to the dispute over the use
of independent contractors. There is no reason to believe
that negotiation with the union over that issue was any
more inappropriate or anomalous in March 1985 than it had
been in previous years. See American Cyanamid Ce:;-¥,
NLRB, 592 F. 2d 356, 361 (7th Cir. 1979) (“There has been
no showing that this company would have been harmed by
negotiating with the union [during a strike] prior to con-
tracting out the maintenance work permanently.”). The
union could not have at that point, as it could have in
Hawan Meat, used manipulative bargaining to stymie Land
Ain’s efforts to maintain operations.’

‘The Seventh Cireuit in American Cyanamid seems to suggest
that an initial decision to subcontract in the face of a strike is by
definition always temporary and becomes permanent only at the
employer's discretion (perhaps only when le refuses to reinstate

: (Footnote Continued on Nevrt Page)

12

Se, we see no need to consider what circumstances would
justify an employer’s unilateral decision permanently to
subcontract bargaining unit work to withstand a strike.
Whatever those circumstances arguably might be, they do
not exist in this case. Land Air was able to operate at the
onset of ihe strike without permanently contracting out unit
work, and there is no evidence that it was unable to con-

tinuine doing so.*

IIT.

Land Air's final contention is that the union’s claim is
barred by the statute of limitations in section 10(b) of the
Act, which provides that “no complaint shall issue based
upon any unfair labor practice occurring more than six
months prior to the filing of the charge with the Board...”
29 TLS. © 160(b) (1982). The union’s unconditional offer
to return to work came on April 9, 1985; the union filed its
original charge, alleging a violation of sections 8(a) (3) and
(1) on October 9, 1985, and it filed an amended charge,

(Footnote Continued From Preeeding Page)

strikers). 592 F.2d at 360. But that view ignores the prospect
that an employer may not be able casily to obtain subeontracting
on a temporary basis. In that regard, the American Cyanamid
court may not have fully comprehended the Ninth Cireuit’s Hawai
Meat opinion; the court there held that the employer did not have
to bargain before making its decision to subcontract permanently,
but might have to bargain after the decision if the union asked to
bargain about whether to keep the subcontracting arrangement in
effect once the strike ended. Compare American ‘Cyanamid, 392
F.2d at 360 0.7 with Mawau Meat, 321 F.2d at 399.

‘Because the company’s unilateral decision to use contractors
was illegal under section S(aj)(9), it follows that the use of con-
tractors cannot justify the company’s refusal to reinstate the em-
plovees. Thus, the Board also was correet,to find a violation of

section Sfa)(3).

which specifically alleged a violation of section 8(a)(5), on
lebruary 20, 1986.

We agree with the Board that although the alleged vio-

lation of section S(a)(5) took plaee more than six months
before the filing ef the amended complaint on February 20,
1986, the union did not have notice of the permanent sub-
contracting of unit work until a date within the six month
period preceding February 20. The limitations period
does not begin to run until the party filing the charge knows
or has reason to know that an unfair labor pratice has oe-
eurred. See, e.g... NERB v. International Brotherhood of
Klectrical Workers, 827 F.2d 530, 533° (9th Cir. 1987);
Teamsters Local Union No, 42 Vv. NLRB, S825 F.2d 608, 614
(Ist Cir. 1987); cf. ILGWU v. NLRB, 463 F.2d 907, 922
(D.C. Cir. 1972) (where uniow’s “failure to file a charge
Within six months .. . [is] due to the company’s frandulent
concealment of its plans rather than the union’s lack of
diligence,” time bar is tolled). Although the union did
accuse the emplover on August 16, 1986 of unilaterallly sub-
contracting unit work, Land Air’s return letter of August
22, which stated that the company had “continued to con-
duct business as it formerly did prior to the strike,” could

reasonably have been construed as a denial.

Alternatively, we agree with the Board that the original
charge, which was filed within six months of the uneond-
itional offer to return to work, was sufficient to support
the General Counsel’s seetion S(a)(5) complaint. It alleged,
iuter alia, that Land Air had “continued to allow indepen-
dent contractors or sub-Independent contractors to continue
to perform work of the bargaining unit once there was an
unconditional offer to return to work.” The Supreme
Court bas instructed that in framing its complaint, the
Board is not Jimited to specific matters alleged in the
charge, NLRB v. Famt Milling Co., 360 US. S01, 307-08
(1999), and we have recently held that “when the Board

14

ventures outside the strict confines of the charge, it must
limit itself to matters sharing a significant factual affilia-
tion with the activity alleged in the charge.” G.JV. Gallo-
way Co. v. NLRB, 856 F.2d 275, 280 (D.C. Cir 1988). Be-
cause the factual activity alleged in the union’s charge in
this case was the precise activity that supported the Board’s
allegations under section S(a)(5), it seems clear that the
Board did limit itself to matters “sharing a significant fact-
ual affiliation” with the activity alleged in the original
charge.
* ¥ * 1 *
For the foregoing reasons, the petition for review is
Denied.

15

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 87-1758
September Term, 1988

Lanp Air Detivery, Inc., . - : : Petitioner
v.
NaTIONAL Lapor Revations Boarp, . - Respondent

Berore: Ruth B. Ginsburg and Silberman, Circuit Judges,
and Pollack, Senior District Judge, U.S. District
Court for the Southern District of New York

ORDER — Filed March 2, 1989

Upon consideration of petitioner’s petition for rehear-
ing, filed January 18, 1989, and of petitioner’s motion to
supplement the appendix it is

ORDERED, by the Court, that the motion to supplement
the appendix is denied and it is

FurTHER OrpeRED, by the Court, that the petition for
rehearing is denied.

kor The Court:
Constance L. Dupre, Clerk

(s) By: Robert A. Bonner
Robert A. Bonner
Deputy Clerk

16

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 87-1758

September Term, 1988

Lanp Air Detivery, INc., - - : . Petitioner
v.
NationaL Lasor Reiations Boarp, - - Respondent

BerorE: Wald, Chief Judge, Robinson, Mikva, Edwards,
Ruth B. Ginsburg, Starr, Silberman, Buckley,
Williams, D. H. Ginsburg and Sentelle, Circuit
Judges ;

ORDER — Filed March 2, 1989

Petitioner’s Suggestion For Rehearing Hn Bane has
been circulated to the full court along with petitioner's
motion to supplement the appendix. Upon consideration of
the foregoing it is

OrpERED, by the Court ex bane, that the motion to sup-
plement the appendix ts denied and, no member of the court
having requested the taking of a vote upon the suggestion,
it is

FurTHER Orperen, by the court ex bane, that the sug-

vestion for rehearing ci bane is denied.
Kor The Court:
Constance L. Dupre, Clerk

( 46

misconduct on, or alter 4+ February. None is presented in
this record.

bh. The February-March, 1985 (independent
contractor) contracts

President Selineller testified that he did not have the
number of contractor drivers, or owner operators who
worked out of Kansas City, before, or after the strike. At
the outset it is to be noted that General Counsel does not
contest the status of Land Air’s contractors as independent
contractors. Neither did president Schneller know the last
date (day) that Land Air had employed employees (as op-
posed to all contractors). General manager Schneller, Jr.
testified that Land Air keeps no records of employees that
the independent contractors have, though he acknowledged
they took a count at one time, Although Schneller, Jr.
testified that he would make the decision on whether an-
other contractor should be hired, he asserted that he hasn’t
had to make that decision. However, Schneller, Jr. has
acknowledged that either he, or Mawby make the current
decisions as to whether or not to mecrease the volume of bus-
iness that is given to the independent contractors. Schnel-
ler also testified that he didm’t know for sure if any of the
contractors have hired new employees since 9 April (when
employees offered to return to work unconditionally, to be
discussed infra.) This is however diffieult to fully accept,
since Schneller, Jr. regularly paid the contractors for the
work they and their drivers performed. Employer kept
daily records of the revenues generated in the service of its
principal customer Emery. Some of those records are in
evidence, see e.g. G.C. Ex. 6, a series of 21 such records.
Those records, limited though they may be, not only show
revenues generated in deliveries for Emery, but they also
show, at least in significant part for present purpose, the
pickup and deliveries by certsin contractors and by certain

47

drivers as related to certain contractors. Tam constrained
to conclude therefrom that if Schneller, Jr2s referenced
“for sure” has not indicated a mental reservation he had
in his complete denial, his complete denial itself exhibits
a reluctance to candidly respond as to what he did know,
eo, from these records.

The General Counsel has placed in evidence twelve con-
tracts exeeuted by Land Air contractors in February-March
1985, Not Michalski, but Schneller, Jr. (then supervisor)
signed each such contract on behalf of Land Air (though
without his title being expressed). The aforesaid December
1985 listed current contractors are the same 12 contractors
under contract as of February-Mareh 1985.) Kaeh such eon-
tract provided the contractor would be paid 75% of gross.
Kach such contract has an addendum acknowledzement of
receipt of certain equipment into Land Air's service, which
in cach instance is acknowledged by supervisor Jack Mawby.
Hach contract contains a signatory page with a place for
signature of the contractor evidencing agreement to the con-
tract, but also a place on that same page for a dated
(second) signature acknowledging receipt of a fully execut-
ed copy. In the body of the agreements there is statement
that the agreement is made on 20 February 1985, though
in Mawby’s case it is stated as made on 1 Mareh 1985, All
twelve contracts bear contractor signatures evidencing their
agreement to the contract’s terms. All twelve contractors
signed the acknowledgment of receipt of a fully executed
copy. Though nine have not dated that acknowledgement,
three have, namely William IK. (hen) Smith on 20 Peb-
ruary TSo; Tom Pope on 22 February 1985; and Jack
Mawhby on 1 March 1985, No other evidence is presented as
other date of execution. On weight of the above evidence
(as presented) it is concluded and found that Pope executed
his contract on 22 February; that (supervisor) Jack Mawby
executed his contract on 1 March 1985; and that the other
10 contractors executed their above contracts on or about

48

20 February 1985. However, from Employer's own for-
mal and compiled report as to original date of contracts,
it is apparent, and T find, that five had vof previously been
under contract, namely Benetield, Horton, Fowler, Pope
“and supervisor Jack Mawby.

President Schneller offered testimony in explanation of
the execution of these contracts in February-Mareh on the
general basis that something had happened ina court case
somewhere, and Employer's attorney had drafted a new
contract: that he was not involved in it; and that Land Air
changed them (contracts) with anybody we had. Although
president Schneller related he would imagine each (con-
tractor) had, or should have had one contract earlier, it is
apparent from the supplied data compilation from lm-
ployer’s own records that was not the case as to the above
five. Inter alia, each such contract also contains the follow-
ing paragraph:

13. As required by the Interstate Commerce Commis-
sion Lease and Interchange regulations, this Agree-
ment shall continue in effect for a period of thirty (30)
days from the day and date first above written, and
thereafter continuously unless cancelled by either party
by thirty (30) days written notice.

Upon review of the aforesaid 12 contracts, president
Schneller identified only five that he personally free had
heen independent contractors before the strike. CPhey are
reflected below by asterisk.) The General Counsel however
appears to concede in brief that the record will support two
others, namely Russell Sloan and Bill Haney as hired by
Land Air as subcontractors before 20 February 1985 (pre-
sumably) satisfied with support for the Employer reported
dates of December 1985 for Sloan, and Angust 1984 for
Haney. In any event, on evidence presented of record, if
is so found. The aforesaid 12 contracts, with equipment

~

referenced as then placed in use are:

1 yumdbsy [Ryo 4 puudbsp pepo, tl
dnyrd |
SUVA & yorpe “AQMETY SUB ©
Youd y,
U>-L
OME I Woy ‘edog un |
S ub | ppeuog;, “sepwoo SUBA
SUBA ZG Youu y “UOLLOPy] dnyord | Hig] “Aeuryy SULA 7
Youd yy,
uO L, duyorg |
OME | UO, “Pleyoueg SURA F JjOSsuyy “UOT S SURA
“(addy oe Gnas “owEN — (ad | a ae iy aueN a te (ada f
Wy ON) Wy ON) y ON)
quaudinby quawidinby quoudinbsy

pumdbap pei

’

LHe GP
YAR]L PVpoury,

NAAT OG]

your eq p
HULL fe Otay

Wey TY ity

OHUMOTE Let LeG AL

Yd “SALA,

OULEN

dO

This is not to sav Tam without reservation in certain
of these equipment findings, particularly in regard to the
extent of Sloan equipment, chiefly because G.C. x. 6 series
of dates of service would not support use of that much
equipment by contractor Sloan in Land Air use, at least
much before the end of June. Tlowever, G.C. Ex. 6 was
offered definitively for other purpose, is far from a com-
plete daily list; and it does not address many intervening
days. On the other hand Employer conceded in brief that
Roger Williams, who testified he was hired and employed
by Sloan for a week before being employed by Thatcher,
also testified that while he was employed by Sloan and
Thatcher, both had wo other drivers working for them,

The General Counsel does argue in bricf that Employer's
employment records are incomplete and contradictory at
best. Employer confirmed at hearing (and see G.C. Ex. 7)
that Employer had hired (at least) eight (8) employees
after the strike, and that these eight continued to be employ-
eos of Emplover until date stated. Shown in order of date
of hire, secondly by date of termination, and alphabetically

otherwise, they are:

Name date hired date terminated
Mawby, Janice 19 Nov. 1984 28 March 1985
Epperson, Edward 21 Nov. 1984 20 Dee. 1984
Hlodges, Mark 21 Nov. 1984 20 Dec, 1984
Horton, Bob 31 Nov. 1984 2) Dec, 1984
Millis, James 2} Nov. 1984 2S Mareh 1985
Horton, Ken’ 21 Nov. 1984 2S Mareh 1985
Lynch, Jack 21 Nov. 1984 28 March 1985
Fowler, Donald 1 Dee. TOS4 2S March 1985

It js apparent from the above that HMmoployer had ter-
minated three of the eight on 20 December 1984; and that
it terminated all the remaining five employees on 28 March
1985. Minplover offers no explanation for its termination

of these 5 employees on 2S Mareh 1985. Moreover, the

aL

asterisk above denotes two (purported) employee drivers
who had (purportedly) signed independent contractor con-
tracts with Employer on 20 February 1985, thus over a
month earlier than their termination as employees on 2S
Mareh 1985. These two individuals do not appear with
contractor designation on 27 February 1985, though they
do on 20 and 29 March 1985 (See G.C. Ex. 6 series). Two
others, not listed as hired employees, Pope and Benefield
similarly do not appear with contract. designation on 27
February 1985 (though also purportedly independent con-
tractors as of 20 February 1985); and they do appear with
contractor designation on 20 and 29 Mareh. Benefield how-
ever had worked carlicr for Emplover on 7 December 1984.
Tt mnust be, and is included there is inconsistency, if not out-
right contradiction in Emplover’s records on employee vis-
a-vis independent contractor status, which Employer has
not adequately explained.

Respondent’s witness Michael Lawrence Reynolds test-
ified specifically that he was hired in October, 1982; that
since then he and Griffitts drove (Griffitts’) two vehicles:
and that Griffitts did't hire auymore employees. Respond-
ent’s witness Roger Williams testified specifically that he
was initially hired by Sloan on 19 or 20 November 1984,
but worked less than a week for Sloan; that he was then
employed by Thatcher; and that thereafter only he and
Thatcher drove (Thatcher's two vans). No employee of
Ken Smith (apparently) testified; and president Schneller
could not recall if Smith was a contractor who did not drive
himself for a period, but had come back to driving (during
the strike). From testimony of Respondent's witness
Jimmy Allen MeDonnell, it is apparent that MeDonneli in
material times (indeed from June-July 1984 on) regularly
drove Lyneh’s oie vehicle, Lyich was a Land Air full-time
supervisor all along (since 1980), It is thus clear from
weight of evidence of record that during the strike, and

thereafter, Lynch drove regularly and substantially. It is

as readily apparent that when Lynch drove, he drove Land
Air’s equipment, while still employed as a full-time Land
Air supervisor; and he did so after the striking employees’
unconditional offer to return. Respondent’s witness David
Andrew Nelson testified that he was emploved by M.N.T.
» days before the strike: and Nelson testified that shortly
after the strike he drove striking employee Walter Gunn’s
route, and continued to do so as of hearing date. Nelson
did not testify as to other drivers of contractor Rinehart
dobva M.K.T.. However it is clear Rinehart had six vehi-
cles contracted ia Land Air use. On 26 November 1984, the
first such daily record available (G.C. Ex. 6 series im evi-
dence ) 1 addition to Mark Rinehort honself, five other
drivers are listed in association Ww Ainchart contract
ric., Nelson, Green, Craig, Anderso; Barb. It is thus
indicated that Rinehart had six velie: ua use for Land Air
at that time. Whether such was an expansion of lis sub
contract service, and the degree of same on unit work ts not
specifically apparent.

Prior to the strike Land Air owned the trucks (mostly
Vans), driven hy unit eniployees, According to president
Schneller most of them have now been sold. Selneller
acknowledged some were sold to (unidentified) contractors,
some were junked, or sold to truck dealers; and a few lave
heen retained. Schneller however confirmed the latter are
presently used by supervisors, and as spares for the con-
tractors. (The exact number remaining does not appear of
record.) Schneller also testified that, as before, super-
Visors occasionally work the trucks, when needed. Presi-
dent Schneller however acknowledged at times in the past
he had had union grievances filed when supervisors pre-
viously worked the trucks. .lecording to president Schuel-
ler, Land Air presently has wo employee drivers working

ont of Nausas City; its all contracted out. Selineller ae

} } }
nowledged there a Land A
Clits i] Lit ) oh = » ~
im~serres | (1jel now ti Pr nes ~ } |
} , } 1) ’ ; ] }
j Odie ({] 1) f ». e
’ 1) } 7 ] ; y? ] t? ]
i il ~ ‘ ~('] (| i proved ~ ~
ord ny to Se} ( l hy sa SUP _
+ ? 4"
nigo sci Lit’] _ 1 tha } = =U
ight maintenance ‘hanical work. &
- } }
Ms) ACKHO leqdav2eqd that KE iis > “ss _
; ; ol»
and delivery work,
1° ‘ . 1]
According to president Schneller, the emp
‘ .
rep ements (who are now contractors) had

}

said they would rather work as contractors. Oh

had testified that they had asked Jim about it. (on cross
examination he testified they had asked Michalski.) Ne

ler talked to his attorney. The attorney talked to manage
ment there (Kansas City). They then did what they did:
riz. put them on as contractors. (No former emplovee and
now contractor corroborated president Sehneller.) | Schne!
ler testified it was before the employees offered to return
to work. At best it is arguably but shortly before 20
February 1985 because one of the factors President Schne!-
ler asserted he considered was a reduction ino security
expense by virtue of contractors taking their veliicles home.
In that regard, Respondent Employer had paid (partially,
with Emery) for night security of parked trucks, for 3
months, thus into February, 1985.

Speak has testified that at no time during the period
when the 1982-1985 collective-bargaining agreement Was in
effect did Land Air notify the Union that it wanted to
bargain coneerning subcontracting unit work; nor did. it
bargain with the Umon during that period. Clearly that
testimony encompasses that Respondent Employer never
discussed with the Union its intent to subcontract out a//
unit work, permanently. TL conclude and find Employer

a

ot

clearly had not notified the Union, or any employees, before
9 April 1985 that all unit positions had been permanently
subcontracted.

6. The unconditional offers to return to work
a. The oral offer

At 6 am., 9 April 1985, Speak and all unit employees,
except Joe Fincher and Walt Malinowski whom Speak re-
lates were working that day, met at a local restaurant and
discussed the subject of an unconditional return to work.
At 7 am. Speak and the above unit employees drove to
Emery’s dock. Speak remained on the street as the unit
employees went to the dock. A few minutes later the em-
plovees left the dock area and went to an adjacent lot. One
of the employees informed Speak that they had been in-
formed to wait in the lot until they (local management, but
otherwise unidentified) spoke to their lawyers. Speak
joined the employees in the lot.

At S:50 a.m. general manager Michalski, accompanied
by a Company lawyer (Rod Turner) came out to the group.
Michalski asked Speak if he was the spokesman. Speak re-
plied he was. Michalski inquired of Speak if Speak was
agreeing to return to work unconditionally ; and Speak re-
plied, yes, we was (sic) going to return to work without
conditions. Michalski said there would be no work today.
(Qn cross-eXamination Speak confirmed that during their
conversation Michalski had told Speak, “I didiw’t know you
all would be offering to come back to work.” Speak in the
same conversation asked, “What about tomorrow?” Mich-
alski replied his answer stood, there would be no work to-
day. Michalski then inquired if there had been any changes
in (employee) address or telephone number. Two unit em-
ployees, Ron Stevens and Bill Guyton responded, giving
their changes, After obtaining the changes, Michalski re-

~
-
wl

peated “There’s no work today. This meeting is over.”
Michalski waiked back into the building. KEmployer did not
seek clarification on the absence of Malinowski and Fincher
from the group. Employer also did not inform the Union
that all unit work had been contracted out, let alone per-
manently contracted out.

bh. the written offer

Speak did not hear from the mployer that day, or the
next day, 10 April. Although Speak at one point testified
that he wrote Employer a letter requesting information con-
cerning them (Land Air) hiring employees and subcontract-
ing our work, Speak acknowledged on cross-examination,
and it is otherwise clear in the record that a request specifi-
cally on subcontracting information was not made of Km-
ployer until 5 June. By letter dated 11 April 1985, address-
ed to Michalski, and sent by certified mail, Speak wrote
Kinployer:

This is to inform vou that as of April 9, 1985, we have
agreed to return to work at Land Air Delivery without
conditions.

Please be advised that our complete seniority list has
been and still is available for work.

It is concluded and found that on 9 April the Union made
an oral unconditional offer to return on behalf of all unit
employees; and that, in any event, on 11 April Speak con-
firmed the unconditional offer to return was on behalf of
all unit employees, in writing.

Speak also again sent the unit employees to return to
work, with union steward John Farris as spokesman. Re-
spondent established that in prior statement, Speak stated
he was later informed that the men were (again) told there
was no work for the day; but he was also told that the em-
ployees were told they should stay off the Company's pro-

56
perty. Whether this incident occurred before or after, as
to which the evidence appears ambiguous, though before
would appear more likely, in any event, Local 41 filed a
charge against Land Air on 11 April 1985.

7. The first unfair labor practice charge; union
refusal to withdraw and dismissal.*

In this charge docketed as Case No. 17-CA-12654, Local
41 alleged that Land Air had violated Seetion S(a)(1) and
(3) in that:

Since on or about April 9, 1985, the above named Kim-
plover, . . . refused to return to work unfair labor
practice strikers who unconditionally offered to return
to work and sinee such date has refused to return to
work said strikers, all hecause said strikers engaged in
an unfair labor practice strike on behalf of Teamsters
Loeal No. 41, against the above-named Employer.

President Schneller has testified that when the employ-
ees made their offer to return to work, the Company had
no work for them to do; and he referred the whole matter
to the attorney. The attorney advised Schneller that we
couldu’t discriminate against taking them (employees) back,
but right now they had been replaced: and if we had any
openings that they’d have to be considered and (it) not be
held against them that they were - just heeause they were
on strike. The attorney also talked to president Schneller
about the effect that upcoming collective-bargaining might
have on whether we would be taking some of the employees
back, or giving them some work that was currently being
done by contractors. The attorneys were going to negoti-
ate that; and president Schneller relates, T wouldn't get in-

2This charge was apparently amended, but in what respeet
does not appear directly of record.

Ot

volved in that. It is clear to me from context president
Schneller’s intended nieaning was that his attorney(s) were
to handle such negotiations for him. It is equally clear to
me and T find that Employer had internally adopted the
position that the former striking employees had been a//
permanently replaced by contractors; but also, tifernally
had not precluded a return of certain unit positions, by
negotiation (e.g. by subcontract cancellation).

Following investigation the Regional Director for the
soard’s Region 17 dismissed the aforesaid charge (as
amended) concluding that further proceedings were not
warranted, and reciting therein ivfer alia:

From the evidence disclosed by the investigation,
it appears that the collective-bargaining agreement in
effect at the time of the Union’s strike which conmnene-
ed on November 13, 1984, provided that in the event a
grievance deadlocked at the Cartagemen’s Association
Grievance Comittee level, the Employer could exer-
cise its right to refuse to process a grievance further.
Under this provision, the Union can then resort to
economi¢ recourse notwithstanding any other provision
of the collective-bargaining agreement. The investiga-
tion revealed that the strike which commenced on No-
vember 15, 1984 was in fact prompted by the Employ-
er’s refusal to process further a deadlocked grievance
involving a driver. In addition, it was noted that in its
correspondence to the Employer announcing the strike,
the Union notified the Employer that it was taking
“economic action” against the Company.

Under these circumstances, it appears that the sub-
ject strike was an economic strike giving the employees
the right to reinstatement only at such time when po-
sitions become available. In this regard, it does not
appear that the Employer has hired any employees
since the Uniomws April 9, 1985 unconditional offer to

58

return to work. Therefore, the Employer's refusal to
immediately reinstate its striking employees is not a
violation of the Act.

There is no reference to Mmiplover having subcontracted

all unit work permanently.

8. The request for information on subcontracting:
interim employee communication with Schneller,
Jr.; and strike resumption.

a. request for information

Local 41 did not withdraw the charge, but neither did
it appeal the Regional Director's dismissal of the charge.
Rather, by letter dated 3 June 19590, Speak wrote Michalski
making the following further inquiries :

Would you please respond to me as soon as pos-
sible if vou have hired any new employees since April
1, 198).

Also are you subcontracting any of the work pre-
viously performed by our Bargaming Umit employees
prior to the strike?

If vou need any further questions answered con-
cerning these questions please contact me.

Speak (essentially) acknowledges this was the first inquiry
he had specifieally made about the subcontracting of the
Employer. By letter dated 5 June 1985, Michalski ae-
knowledged receipt of Speak’s letter, and advised Speak
it had been forwarded to Hmplever’s attorney. By letter
dated 10 June 1985, attorney Amato, who had not been
copied with charge dismissal letter wrote Speak, and ad-

vised:

Since vour questions involve matters directly relat.

ing toa pending case before the N.LLR.B. T don't feel

59

that it would be appropriate for me to discuss these
matters at this time.

In point of fact the charge had been already dismissed on
21 May 1985; and tlie period for filing an appeal had well
run out by 10 June. Speak testified credibly that Land Air
did not answer (and I find Employer did not timely answer)
the questions Speak had asked in his 3 June letter. While
it is apparent that Speak did not seek any immediate clari-
fication of the Amato letter’s erroneous reliance on the
charge still being under investigation, it is apparent that
Amato had sent copy of his letter to both Schneller (pre-
sumably president Sehneller) and Michalski. Assuming
Amato was not aware of the earlier dismissal, it is difficult
for me to accept he would net have soon thereafter become
aware of it. The fact is no clarification of position on the
subcontracting was timely forthcoming from Employer,

though Speak had specifically requested it.

hy. This COUT E rsations Lie hore i ¢ miploye fe Cundiff
and Schucller, Jr.

Schneller, Jv, testified that at 7:28 on 10 June (thus
While Schneller was still sw]pervisor) he had a phone conver-
sation with employee Lindsay Cunditf (a former striker),
In that conversation, according to Sehneller, Cundiff said
that 90% of the men who worked at Land Air just wanted
their fair settlement of vacation time and sick days that
were owed to them by Land Air Cundiff told Sehneller,
Jr. that as far as we was concerned the whole thing was
over, but he did not know the Unions position on this mat-
ter. Supervisor Schneller told Cundiff we have to check
with the attorneys, Cundiff said he did not want the wni-
forms Land Air had provided him, just the pay that should
be coming to him. According to Schneller, Cundiff also

said that he was working then; and that he would deny this

OO

conversation ever took place. Cundiff gave Schneller a
phone number were he could be reached. Schneller relates
that a few days later, on 13 June 1985, at 7:30 a.m., Cundiff
ealled Schneller, Jr. back. According to Schneller, Cundiff
this time said all of the former employees wanted their
settlement on their vacation and sick days immediately be-
cause they knew it was over. Cundiff told Schneller that
the Uniows basis for delaying this is to recover backpay.
Cundiff said all of the former employees felt this way, ex-
cept Joe Fincher, because they (the other employees) did
not want anything to do with him. According to Schneller,
Jr. he told Cundiff that he still had not heard from his at-
torneys. There is no evidence that Employer at this time
sought any clarification on Union's prior offer on behalf
of all employees to unconditionally return to work. What
is only apparent is that on the same day as Cundiff’s first
couversation, Amato sent his nonresponsive letter to the
Union.

Cundiff was called as a rebuttal witness by General
Counsel. Cundiff confirmed he had two phone conversa-
tions with Schneller, Jr, and that he placed the calls. Cun-
diff testified that he was concerned about his vacation
time: and that in the first conversation he asked Schneller,
Jr., about vacation time that he felt was due him. Ac-
cording to Cundiff Schneller told him he would get with the
lawyers, and to eall him back in a couple of days. Cunditf
did call a second time; and according to Cundiff, Schneller
told Cundiff this time that the cheeks were in the hands
of the lawyer and that’s all he knew. Cundiff asserted that
was the end of the conversation.

Cundiff otherwise specifically denied that he told Schnel-
ler that all he wanted was his money, and that he didn’t
want to come back to work: and hie specifically denied that
he said that all that any of the other strikers wanted was
their money, and that they didm’t want to come back to

61

work. Cundiff dened that there was any discussion of
sick leave. (It appears that as of July the Union was claim-
ing as due to Cundiff: $1,541.54 for pro rata vaeation
earned through 12 November 1984; $305.76 for 39 days sick
pay; and $101.82 for 8 hours worked on 12 November 1984,
the day before the strike. By answer of Amato letter of
22 August 1985, Emoplover contended that Cundiff had been
paid on 17 November for the work on 12. November; con-
firmed the amount of the vacation pay then due; and con-
tended otherwise that Cundiff was due only 2 days. sick
leave benefit of $208.84. There were other disputed claims.
If such claim disagreements appear inconsistent with Cun-
diff recollection of Schneller, Jr. assertion the checks were
in the hands of the attorneys, vo more does Employer's
assertion that all the employees no longer wanted to return
appear imconsistent with Amato's response to requested
negotiations at this time, and resumption of strike activity

on 22 June 1985,

be thie strike resmiunphron

On 22 June 1985, Local 41 went back on strike; and
according to Speak this time they began to stay at the
Kmery facilities. Speak has testified they observed new
employees come apd go whom they had not seen before.
Speak asserted that prompted the Union to file the new (in-
stant) charges. Tlowever, as noted, the new (instant)
charges were not to be tiled until S October. There is some
evidence (in G.C. fix. 6 series) to support Speak’s reported
observations, 772, an apparent appearance of new contract
driver names in June, July and Aneust. At least as of
time of renewed strike, Employer could not doubt continued

Interest im return to employment by its unit employees,

02
9, Negotiations and correspondence

By letter of 1 July 1985 to Conder, attorney Amato
acknowledged receipt of an earlier letter of 78 June 1980
from Local 41's seeretary-treasurer Johnson designating
Conder as a member of the Union's subcommittee for nego-
tiations. After presenting the details of his existing sched-
ule for the month of July, looking to mutual agreement on
a date to begin negotiations, Amato requested that the
Union's proposal, if available, be submitted prior to the
meeting to be arranged. Though Speak had a recollection
at one point that there were a number of letters hetwoen
Johnson and Amato as to which Speak has asserted Amato
could not make the meetings with Johnson, none were intro-
duced. Moreover, Speak later acknowledged that Conder
had the negotiations; and Speak was not aware of any
direct letters, or phone calls between Conder and Amato.
Conder did not testify. Conder did reply to Amato, but on
this record, in September, Other matters were being pur-
sued by the Union in the interim,

Local 41° attorney Michael A. LeVota wrote a letter
dated 16 July 1985. Therein, in addition to requesting
that certain vacation and other (sick leave) benefits pay-
ments be made to the thirteen unit employees, LeVota

requested :

We hereby request that you provide us with the
employment status of each and every member with
Land Air Delivery, Ine. hereinafter referred to as the
“company” and pursuant to 290140 RS, Mo, 1982, pro-
vide us with the effective date of their layoff status or
termination,

By letter dated 22 July 1989, Foe Schr HN, Jr, acknowledged

receipt of the above letter ou that day sand observed it Wa

misaddressed. Schnell, Ja, advised Land Abies respouse

.*)
fo

would accordingly be written 10 days from the date of

Schneller’s letter, not LeVota’s letter as requested. There
Was however no response from Employer before Local 41's
attorney had occasion to write a second letter.

LeVota's second letter, dated 16 August 1985, addressed
to Amato stated prior Employer correspondent indicated
the Union would receive a reply by 1 August 1985; but that
it had not received a reply as of 16 August. The LeVota
letter recited, inter alia:

In addition to our lack of information as to our
members’ status, Land Air... refuses to clarify its
position with reference to the reinstatement of our
members, Te refresh your memory, our members un-
conditionally offered to return to work on or about

April 9, 1985.) Our members’ unconditional offer to
return to work has continued unabated sinee April 9,
even though Land Air has refused to take meaningful
and concrete steps to schedule collective bargaining.
Additional requests to clarify the company’s position
have not been fruitful.

Copies of prior correspondence were supplied; and it was
specifically broaght to the attention of Amato that the ap-
peal time had run prior to Ainato’s letter of 10 June 1985,
LeVota’s letter then went on to further assert:

The company's position with regard to the uncen-
ditional return of our members is further complicated
by an indication by the company that our members
would only be offered re-employment as independent
contractors and not as employees which are part of the
bargaining unit. We reached this conclusion beeause
the only communications we have in this matter is a
draft of a letter that was mailed to me but addressed
to Teamsters Local 41 by Joseph Sehneller Sr. diated
April 9, 1985, a copy of whieh is attached hereto. Thi-

Ot

draft does not appear to have memorialized into a final
correspondence but shows an intent on the part of the
company to discriminate against our members for their
strike activities. Since the National Labor Relations
Board has viewed our strike as an economic strike, the
company has a duty to reinstate the employees once
they have conditionally (sic) agreed to return to work.
NLRB v. Fleetwood Trailer Co. 289 US, 375, 378, 66
LRRM 2727 (1967) and our striking members retain
their employee status pursuant to 2(3) of the National
Labor Relations Act while on strike. Neither Team-
sters Local 41 nor the striking employees have been
advised by the company that they have been perman-
ently replaced... (Emphasis supplied.)

This questioned document referred to above has not been

placed in evidence by any party. With reference to prior

Regional Director dimissal letter of 21 May 1989, copy

(then) supplied to Amato, LeVota further related:

the Regional Director had indicated at that time
that it did not appear that Land Air had hired any
employees since our unconditional offer to return to
work on April 9, 1985.) Information however has come
to Local 41 since Mr. Hendrix’s letter of May 21, 1985
in which the company has added additional independ-
ent contracters or in the alternative the independent
coutractors have added additional employees and/or
sib-contractors. fll of this however establishes a pat-
fern of conduct on the part of the company flat is
calculated to unlawfully and unilaterally do away with
the certified bargaining unit by wmealaterally sub-con-
tracting bargaining unit work without first bargain-
ing with Teamsters Local tt. Our specific informa-
tion ix that there has been a significant Increase in

work since April 9, 1985, especially in the Johuson

65

County, Kansas area. We have been advised that the
following individuals at the designated addresses are
now performing work previously performed by our
bargaining unit and these individuals were not asso-
ciated with the company prior to April 9, 1985, to-wit :

(Emphasis supplied.)
Name Address

1. Roger Williams — P.O. Box 529, Platte City, MO 64079

2. Jack Wright 1205 Main, Oswatomie, KS 66064

3. Dave Anderson 401 North Washington, Spring Hili, KS
Hb6863

4. Don Fowler 1254 Lowell, Kansas City, KS

». Tom Pope 902 NW. Waukomis, Kansas City, MO

6. Joe Peterson 21270 S. Clair, Spring Hill, KS 66083

7. Weith (last name unknown )
8. |. Smith
9. Terry MeDonald

We have also been advised by Emery Air Freight
that Land Atr Delivery, Inc. will also take on the addi-
tional responsibility of all dock work for Emery Air
Freight, Ine. and given this inerease work force, we
see no practical reason precluding our members from
being reinstated to their positions with the company.
We are also advised that Terry MeDonald, listed above,
who was previously a dock worker for Emery has left
the employment of Emery Air Freight and is now act-
Ing as an independent contractor for the Company.

Le Vota specifically requested a written position, pertinently

as lo:

a. The employment statuts of our members per our
letter of July 16, 1985:

—66

e Our request for service Jetters pursuant to
290.140 R.S.Mo. 1982;

d. Whether the draft letter of April 9, 1989. cor-
rectly states the company’s position that our members
will only be offered reinstatement as independent con-
tractors ;

e. Whether additional independent contractors or
additional employees of tdepe vdent contractors are
performing the work previously done by our bargaining
vwnit; (emphasis supplied)

f. Why Land Air Delivery, Inc. continues to refuse
to reinstate the striking employees and the specific
circumstances under times, dates and places under
which our members’ jobs will be reinstated; and

e, What specifie time, place and date the company

proposes to meet to resume collective bargaiming.
Finally, LeVota’s letter advised of the prospect of new

charges:

Beeause of this new information that shows the sig-
nificant hiring of independent contracts to perform our
bargaining unit’s work and because of the now 4-month
delay since our members have continually offered to
return to work, we consider your company’s present
refusal to reinstate our members as a violation of
S(.A)(3) of the NLRA by discriminating against our
members for their union activity associated with their
economic strike. Since there was an indication of a
potential willingness to resume bargaining we feH in
vood faith that we should allow your and your company
the opportunity to clarify your position before return.
ing to the National Labor Relations Board for appro-
priate action; however, unless you clarify your posi-
tion within ten (10) days from the date of this letter,

we shall return to the National Labor Relations Board

67

with our new information to file unfair labor charges
for the reasons previously discussed,

While the Union clearly in this letter of 16 August 1985
had raised a concern about Employer's subcontracting and
made request for information thereon in general form, the
concerns expressed were about information indicating, in
contrast with Regional Director earlier determination that
Kmployer had not hired employees after 9 April, that there
were now specific indications Mmployer had thereafter
added contractors, or its contractors had added employees,
with the specifies of the latter presented by Union for Em-
ployer clarification. Significantly, Union pointed out that
neither it, or employees had been theretofore advised by
Kmployer that the strikers had been permanently replaced,

By letter of 22 August attorney Amato replied to at-
torney LeVota, as follows:

With regard to the employment status of the mem-
bers T can only state to vou the facts as they occurred
but as far as putting a label on their status your guess
is as good as mine. The facts are that on November
15, 1954 the members went out on strike in an attempt
to impose economic sanctions against the company for
its refusal to process further a deadlocked grievance.
This was in accordance with an addendum to the Agree-
ment between the company and Loeal 41. The strikers
were notified to return to work and failed to do so. The
company hired some additional employees as replace-
ments and continued to conduct business as it formerly
did prior to the strike. On April 9, 1985 the members
offered to return to work “unconditionally” and were
advised that there were no positions available. Sub-
sequently, a charge was filed with the N.L.R.B, C.A-
12564 and after an investigation the Regional Director,
on May 21, 1985 declined to issue a complaint. No

’

68

appeal was taken from this decision. On or about June
92. 1985 members of Local 41 again began picketing
the Emery facility on Prarie View Road with a sign
that reads, ‘On Strike—Teamsters Local 41—Land Air
Delivery—Unfair Labor Practice’. This picketing has
continued up to and including this date. (imphasis
supplied.)

Not only did Employer not inform the Union that all
striking union employees had been replaced by permanent
subcontract, Employer specifically disavowed the employees
were terminated. Thus after responding to certain union
claims made in regard to vacation and sick leave benefits,
not deemed further material herein, Amato additionally

responded :

In regard to item ¢. of your letter Iam unable to
see that the Missouri statute you refer to is pertinent
or relevant to this situation. The company did not
dismiss any of the members and to the contrary re-
quested that they return to work. In view of the facts
as T have stated them above your position of requesting
a letter of dismissal pursuant to the Missouri statute
cited appears totally inconsistent.

As to the draft of a letter referred to in your item
d., L would first of all like to know how that document
came into your possession. As you may or may not
know, since it Was prior to your representation of
Local 41, there have been numerous company records,
letters, ete. that have mysteriously appeared in the
possession of officials of Local 41. In fact the theft

of these documents is presently part of a legal action
pending in the U.S. District Court in’ Kansas City
which is the reason for my inquiry as to how this letter

came into vour possession. Nevertheless, it is not now,

69

nor has is ever been the position or intention of the
company to offer reinstatement to the members on the
condition that they become independent contractors.
The draft letter, as you know, was never signed nor
sent and does not even purport to say that such would
be a condition of reinstatement. I sincerely question
your good faith efforts to resolve these important is-
sues for the members in view of the totally erroneous
characterization of the language in the referred to
draft letter.

Item 3.; Land Air has continued to conduct its
business in the same manner and method as it did fol-
lowing the strike on November 13, 1984. No new con-
tractors or employees have been added since April 9,
1985.

Item f.; Land Air has not refused to reinstate any
of the members and does not know at this time when
additional employees will be required.

With respect to the names and addresses of the per-
sons you list on page two of your letter, two of the
individuals, Don Fowler and Tom Pope, are Land Air
Independent Contractors and the rest are employees of
Land Air Independent Contractors. All of these per-
sons, with the exception of Terry McDonald, became
associated with Land Air or one of its contractors
prior to April 9, 1985. Tam advised that Mr. MeDonald
was hired by one of the contractors to replace a driver
that quit who had been working prior to April 9th.

Employer did not definitively advise the Union that
Fowler and Pope had entered subcontracts on 20 Febru-
ary along with the others (Benefield and Ken Horton, and
supervisor Mawby on 1 March 1985), let alone that all unit
work had been permanently subcontracted out since that

70

time. In contrast, in regard to those specifically inquired
about and addressed by Amato and or whose circumstances
have been earlier addressed (viz. Roger Williams, Fowler,
Pope and Terry McDonald), G.C. Ex. 6 series reflects An-
derson and Wright as Rinehart associated drivers since
(at least) early December, 1984; Peterson at least sinee
20 February 1984; Keith similarly (at least) as of 29 March
1985; and C. Smith similarly (at least) as of 8 April 1985.

In final correspondence (of record), by letter dated 5
September 1985 Conder responded to Amato’s 1 July let-
ter, confirming desire to meet in Kansas City, providing
the Union’s proposal, and requesting Amato call Conder.
The Union proposal submitted was a one sheet document
proposing the new NMEA recently negotiated for period
1 April through 31 March 1988, but with copies of changes
enclosed. Conder’s letter, though indicating the Union
preferred the NMEA also related:

we recognize tht (sic) if you desire to Nego-
tiate an Agreement other than one involving a Multi-
Employer Unit we must and will accommodate that
desire. This proposal is in no way intended to require
you to join or becone (sic) a part of any Multi-lm-
plover Umt or Group.
The Union reserves the right to add to, delete, or
otherwise modify thid (sie) proposal at any time dur-

ing negotiations.

a. Kinery dock work takeover

It may be observed that the Amato 22 August letter
did not specifically address union assertions as to the
claimed significant Increased work generally and/or spe-
cifically in the Johnson County, Kansas area; nor did it
directly address Land Air’s taking on the dockwork for
Emery. As to the latter, president Schneller has testified

71

that in July, 1985, Land Air started to do all of Emery’s
dockwork. However, Schneller explained that prior to this
Kmery picked up their freight at tie airplane, and sorted
the freight at the dock. Although Schneller initially said
he didn’t really know, Schneller thereafter stated. that
Kmery basically had a crew of part-timers in the morning,
and a crew in the evening; and Schneller guessed there
were about 8-10 employees. Schneller further explained
however that when Emery came to Land Air-to take over,
Emery had streamlined the business, and had done away
with most of the freight handling on the dock. What ever
was left, Emery wanted Land Air to do. Moreover, Schnel-
ler testified that there was no additional compensation
granted Land Air for its performance of this new work;
and Land Air had to absorb it. According to Schneller,
Land Air thus could not afford to hire any new dockwork
employees. Land Air in turn foreed this work upon the
contractors. President Schneller also testified that. this
work had never been done by bargaining unit people; it had
never been done by anyone (with Land Air) before. (There
is no specific complaint allegation as to Respondent Km-
ployer’s failure to reinstate strikers for the above dock
work. However, there is general allegation that Respond-
ent Employer has refused, and continued to refuse to rein-
state strikers.) The Company urges that it (ack of Emery
compensation for the work) was further evidence why the
Company could not recall any employees to perform this
work.

h. Tnereased contractor work

With regard to contractors being given increased work,
Schneller testified only generally. Land Air is provided
manifests from Emery computers. Supervisor dispatcher
Mawby hands the manifests out to the contractors. They
break the freight out; and each contractor takes what goes

(Pp

to him. President Schneller initially testified that Mawby
doesn't decide how much work he is going to give con-
tractors, that the work is broken into geographical areas.
Some Land Air contractors don’t have any employees, some
one, and some more than one. President Schneller testi-
fied that there is no set pattern to the work. President
Schneller also testified that it was primarily, Michalski
who had made the decision on the hire of additional con-
tractors, and/or the arrangements that were made with the
contractors on geographical areas, or what work they were
to be assigned. However, Schneller later acknowledged
that Mawby does it now; and that Mawby makes any ad-
justments in the work of contractors as required at any
given time. Mawby has radio contaet with the contractors
and their drivers, though contractors/drivers usually call
Mawby. Schneller did not know if the contractors had
hired additional employees after 9 April 1985. Mawby did
not testify.

General Counsel introduced a 21-page exhibit (G.C. Ex.
6) as a document prepared by Land Air personnel and re-
flecting the number of pickups and deliveries on the date(s)
indicated on the document(s) made by Land Air personnel
on behalf of Emery. Respondent Imployer expressed no
objection; indeed expressed willingness to stipulate the
documents (making up the exhibit) were prepared in the
ordinary course of business; and while reserving only exact
accuracy, agreed that for all practical purposes they ac-
curately refleet what happened. The documents cover 21
dates, inclusive of the date before and day of strike (though
driver identity on these days was coded for asserted se-
curity purposes), the first day following apparent making
of the above independent contractor contracts, the day be-
fore and day of Union's unconditional offer, and various
other dates extending over a year. General Counsel’s pur-
pose in offering the exhibit as stated at the proffered time

73

was to give an idea, over time, as to how much business
Land Air did for Mimery, because that is the bulk of the
work that was performed by the unit. To the extent Re-
spondent would object to any appropriate probative force
being given to this Exhibit in assertion made in brief that
KXmployer is not sure what the exhibit proves, that asser-
tion, if intended as an objection to be placed now, e.g. on
exhibit inadequacy for purpose offered, in my view comes
too late. T shall view the exhibit as appropriately refleet-
ing material dates; and overall, as an adequate random
sampling of the business records of Respondent, and cer-
tainly for the explicitly stated purpose when offered, with-
out objection. Respondent Employer otherwise, in brief,
would itself have the gross revenues observed, with asser-
tion that though fluctuating, the revenues remained in $4000
to $5000 range. This will be done.' Pickups and deliveries
are thus shown under heading “P D> and revenues in
combined (and rounded) dollars under caption “Rev.”,
The same may then be portrayed as follows:

‘Any totals on the exhibit placed in evidence are not legible,
nor has Employer supplied its contended summations. Nonethe-
less the individuals’ revenues are presented, and they have been
totalled for the purpose.

i4

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iv

It is readily apparent from the above that Kmployer
has had more pickups and deliveries in the last 10 days
(starting 9 April 1985 and extending over a 7-month pe-
riod) than it did in the prior 11 days (starting the day be-
fore the strike and extending through 5-month strike pe-
riod). There were 3,435 pickups and 4,081 deliveries in
the first 11 days, or an average of 311 pickups to 371 de-
liveries, per day. In the last 10 days there were 4,506
pickups and 4,689 deliveries, or an average of 430 pickups
to 469 deliveries, per day. In short, in the 10 days starting
9 April 1985 the average of total pickups per day had in-
creased 38% (119 increase divided by 311 base), and the
average of total deliveries had inereased 26% (9% in-
crease divided by 371 base). Moreover, contrary to Km-
ployer urging, it is as obvious that gross revenues on the
average had similarly increased. The gross volumes for
the first 11 days presented was in total £44,698, or an aver-
age of $4063 gross revenue per day. The gross revenues
for the last 10 days presented was $47,603, or an average
of $4760 per day. The difference was an increase in aver-
age gross revenues per day of $697, or 170 (697 increase
divided by $4063 base). Moreover the increase toward
9000 level is discernibly more pronounced at the end of
the second period. New names compatibly begin appear-
ing on GC, Ex. 6 for the first time in the same period
see e.g. Bob (and or Rob), John, Fred and Gary Sloan;
Terry Mawby and Gary Mawby; and individuals Carl,
Steve, Eddie, Donna, and Gribble on Rinehart. T eredit
Speak (at least) that he began seeing new faces following
union and employee strike return on 22. June.

10.) Further contentions and offered evidence on
failure to reinstate

Speak testified that Land Air has not to date reinstated
any striking employee. Speak testified that Employer has

(6

not notified him they had replaced any unit employee.
Land Air is still engaged in the pickup and delivery work
for Emery. Speak also testified that from observance of
the dock there is no way to tell if drivers are employees of
Land Air or subcontractors. All bargaining unit employees
wore Emery uniforms. After the strike, although not
necessarily immediately, according to Speak, all the indi-
viduals who performed the work previously performed by
bargaining unit employees, eventually did wear Emery
uniforms.

On cross-examination, Speak acknowledged that in 1982
when Speak first began policing the agreement, and prior
to negotiation of the 1982-1985 agreement there were then
about 12 employees in the bargaining unit; and Speak’s
recollection was that there were about 25 people working
on some kind of contact at that time. He was aware of the
prior unit clarification, though before his time, and of the
fact thet Employer was subcontracting even at that time.
Speak did not know the current (ast two months) number,
but acknowledged it was probably true there are now ap-
proximately 25; but he testified that he had personal be-
lief, that there’s more contractors and contractor helpers
now than when he first came with the unit,

Respondent establishes that in prier affidavit of 1 May
1985, Speak had then stated, “Since that time by 1982 we
had about 12 employees on the seniority list and approxi-
mately 25 independent contractors.” Speak acknowledged
that therein he had also stated “I have no idea how many
people are currently working for Land Air, probably 25.”
At hearing, he testified that he didi’t know if all of them
were contractors or not. Ile further testified im explana-
tion of the references to 25 contractors of some kind, that
to the best of his ability and knowledge they (Land Air)

had hired several people just as employees,

id

On other occasion Speak referred to the 25 as extra
people working there that he referred to as contractors,
other than bargaining unit employees. On later occasion
he also said he would say it was approximately the same
number in April 1985 but didwt have any way of keeping
up with exact numbers. He didw’t have access to the books.
Respondent urges, aid relies heavily on asserted Speak ad-
mission that the number of contractors now are the same
as they were before the strike,

Contentions of the parties

General Counsel observes correctly that Respondent has
admitted that Mmployer had subcontracted all the unit work
since at least Mareh 1985; that all strikers were perma-
nently replaced; and that Employer acknowledged that
Employer had not given earlicr notice to, or bargained with
the Union concerning its decision to subcontract part, and
then the entirety of the unit work. General Counsel asserts
that Respondent sees its past practice in subcontracting
as privileging its unilateral (subcontracting) actions during
the strike. However, General Counsel sees the subcontract-
Ing issues as essentially threefold: (1) does an employer
have the right to permanently sabcontraet unit work dur-
ing a strike without notice to, or bargaining with the Union:
(2) is the decision to subcontract work in this ease a man-
datory subject of bargaining under the Board’s decision
In Otis Plerator, 269 NERB SOL (1984): and did the Union
Waive its right to bargain about unilateral subcontracting
of unit work, On the latter point, on this record. it could
not be clearer in background that the Union did not waive
its right to bargain about subcontracting of unit work. In-
deed Employer does not contend it did; but (seemingly)
only that the parties have had dispute over application to

prior subcontracting,

78

General Counsel's basic argument essentially proceeds
as follows: Subcontracting as an issue of bargaining nor-
mally arises where, as here, it,“ . . will effect some change
in the terms and conditions of employment of the employ-
ees involved.” Westinghouse Electric Cerp., 108 NLRB
443, 446 (1965). An employer's subcontracting that effee-
tively eliminates the work of an entire unit of employees,
but substituies a performance of the same work for the
employer by a contractor, even when motivated by economic
considerations alone, is a mandatory subject of bargaining,
Fibreboard Peper Products, Corp., 379 U.S, 205, 214-215
(1964). In strike circumstances, the Board has previously
held that permanent replacement by subcontracting is sim-
larly a mandatory subject of bargaining where the effect
of a permanent replacement of strikers by subeontract is
essentially an abolition of all unit positions, Alerander
Linn Hospital Association, 244 NLRB 387, 390 (1979),
enf’d. 106 LRRM 2546 (3rd Cir. 1980). Indeed the Gen-
eral Counsel has contended that the Board has long re-
quired an employer to bargain about subcontracting when
the subcontraet is intended to be permanent, and thus will
impair the status of the Union, Southern California Sta-
tioners, 162 NLRB 1517, 1533-34, 1539-42 (1967). Perma-
nent subcontracting is to be distinguished from nonper-
manent, stopgap or temporary measures designed by an
employer to continue serving its enstomers during the
strike, Minpire Terminal Warehouse Co,, 1091 NLRB 1359,
1964-1265 (1965). General Counsel concedes that an em-
ployer is not under a dity to bargain over temporary sub-
contracting necessitated by a strike where such subcon-
tracting does not transcend reasonable measures necessary
in order to maintain operations in strike circumstances,
with acknowledement that subcontracting prohibition with-
out bargaining are not hard and fast rules nor to be me-
chanically applied, Shell Oi Co, 149 NLRB 305, 307 (1964)

7

(adequate notice of transfer of work, willingness to confer
and minimal effect on unit); and Shell Oil Co., 149 NLRB
298, 300 (1964) (temporary subcontracts limited in dura-
tion to economic strike; and with Board approval of the
exercise of right to maintain established practices not pre-
cluded by contract with respect to subcontracting during
period between contracts).

General Counsel thus readily has viewed as distin-
guishable varying case circumstances where an employer
may subcontract as a femporary measure to aid the em-
ployer to keep its operations intact during a strike, and
where the subcontracting during a strike does not exceed
what is necessary for that purpose, e.g., as here, to reason-
ably ensure deliveries to the employer's customers, Empire
Terminal, supra, 191 NLRB at 1365; and Shell Oil Co..
supra 149 NLRB at 300-301 (1964), (but notably in the lat-
ter, with an issue of any erpanded subcontracting practices
reserved.) General Counsel furthermore acknowledges the
appropriate temporary character exists, even if the sub-
contract period extends beyond the strike, provided the
subcontracts when entered are of reasonable duration, and
initially dictated by exigencies of the strike, or because
of threat of imminent strike, Elliot River Tours, Inc., 246
NLRB 935 (1979).

Kmplover correctly observes that it is axiomatic that
permanent replacement of striking employees for ceonomic
reasons during an economic strike dees not eonstitute a
violation of the Aet, MAR. ve MacKay Radio, 304 U.S.
O80 (1938). KMmplover then centrally defends that. the
strike which commenced on 13 November 1984 was an eco-
nomic strike; that Emplover’s permanent replacement. of
economic strikers with contractors rather than employees
was for equally elear economic reason, namely to enable
it to continue to meet its contractual obligations to Emery;

and (it asserts) permanent replacement by subeontract is

SU

noi a violation of the Act. Employer thus contends the
economic strikers here were consequently entitled to rein-
statement only when, and if work was available. Km-
ployer contends the record shows that work was not avail-
able on 9 April 1985, and thereafter. mployer further
asserts in the latter regard that the record shows no in-
crease in Employment subcontracting since the end of the
strike on 9 April 198».

The Respondent would basically rely on Arthur Corp.,
246 NLRB 1183 (1979) urging it as a case in which the
Board has affirmed an administrative law judge holding
that an employer who (essentially permanently) subcon-
tracted bargaining unit work during a strike did not violate
the Act when the Employer refused to reinstate economic
strikers who had unconditionally offered to return to work.
It was there found that the offer came after subcontract re-
placements were told and they understood they were to com-
plete the pending work. It seems to me that the A rthur case
supra is distinguishable on two counts. First, the complaint
did not allege a violation of Section S(a) (5); and accord-
ingly it does not address any employer related bargaining
obligation under the Act, even in absence of discriminatory
motive. A second distinction even on 8(a)(3) and S(a) (1)
violation is that in Arthur, as General Counsel correctly
observes, the decision to close the affected operation had
clearly preceded any union activity, and it was occasioned
for clear economic reason. However, Employer has also
urged as of particular relevance in the Arthur case that the
administrative law judge had cited and relied upon the de-
cision of the Ninth Circuit Court of Appeals in Taiwan Meat
Co. v. N.L.R.B., 321 F.2d 397 (9th Cir. 1965), wherein the
Court had held that an employer’s permanent replacement
of striking employees with subcontractors was not a viola-
tion of the Act, if done for economic reasons. The Mawar
Meut case did involve Section S(a) (5). The trial examiner

8]

however had found, and the Board affirmed in the under-
lying case, Hawaii Meat Co., 139 NLRB 966 (1962), that the
employer was obligated to bargain with the Union about its
decision to subcontract out its delivery work, with reliance
on its (then) recent Town & Country Mfg. case, 136 NLRB
1022 (1962), enf’d. 316 F.2d 846, 847 (Sth Cir. 1963). The
Board also in Hawaii Meats specifically expressed the view
that NLRB. vy. Mackay Radio, 304 U.S. 333 (1988) was not
dispositive. The Board acknowledged that Mackay held
that an employer is justified, in attempting to keep his plant
in operation, to hire new employees as replacements for
economic strikers. However the Board noted the employer
was obligated to continue to bargain with the union after
a strike occurred; and it thereafter ruled in Maieaii Meats,
supra, 139 NLRB at 969, “The elimination of unit jobs (and
the consequent erosion of the bargaining representative’s
status) is, we are satisfied a mandatory subject for bargain-
ing, even though the employer may seek to justify his action
in terms of the replacement of economic strikers.” Notably
the Board therein also held, id. page 969 “In this ease, in-
dividual strikers are not being replaced by other employees,
but instead, the positions they held before the strike have
been eliminated so that no replacement is being substituted
for the striker.” The Board also observed thereafter the
“very existence of the certified unit was at stake.” Em-
ployer nonetheless urges as language particularly appli-
cable, the Court’s asserted comparison of permanent. re-
placement of striking employees with employees, to per-
manent replacement of employees with subcontractors, 321
KF. 2d at 400, to wit:

We think it no more proper for the Board to in-
trude upon the decision of the employer in a strike
sifuation to keep going by subcontracting, than to in-
trude upon a decision to replace, premanently, indi-
vidual strikers. This, we think, is consistent with

82 y

the philosophy expressed by the Supreme Court in
N.L.R.B. v. Insurance Agents’ Union, 1960, 361 US.
477, 488-498.

Employer argues the above Hawaii Meats (Court) de-
cision was cited by the administrative law judge, in the
Arthur ease which (Employer asserts) was then affirmed
by the Board. I do not agree, To the contrary it appears
to me that what Employer would rely upon as such was
actually but the administrative law judge’s recitation of
that employer’s particular contention or urging; and that
the judge made it clear in the following paragraph the dis-
positive rationale was otherwise, viz., “The applicable legal
principles covering this case are set forth in N.D.R.B. v.
Townhouse T.V. & Appliances, Inc., 531 F, 2d 826, 828-829
(7th Cir. 1976) .. .,” a case in which the Seventh Circuit
enforced in pertinent part the Board's determination that
an employer had subcontracted out its delivery unit work
to avoid recognition of the Union.’ The short answer in
the ixsue presented here, mm any event, is that the very
argument sought to be raised by Employer herein has pre-
viously been raised before other administrative law judges,
been duly considered, and rejected as inconsistent with
existing Board precedent, and with those repeated rulings
thereafter approved by the Board, Alexander Linn ITospital
Association, 244 NLRB 387, 390, and fn. 2 (1979): South-
ern California Stationers, 162 NLRB 1517, 1542 (1967).
Contrary to urging by Employer in its bricf, the breakdown
in attempted analogy of striker employee replacement by
employee, and unit displacement by subcontract has been
clearly exposed, and flaw explieated, American Cyanamid
Co.. 235 NLRB 1316, 1323 (1978), enf?d, 592 F. 2d 356, 398

(1979). IT am bound by existing Board precedent, not
: }

5Townhouse T.V. & Appliances, 213 NLRB 716, 723A (1974).

83

clearly reversed by the Supreme Court, ov the Board. Lowa
Beef Packers, Inc., 144 NLRB 615 (1963).

Employer has itself otherwise raised as salient the
Board’s ruling in Elliott River Tours, Inc., 246 NLRB 935
(1979), overruling an administrative law judge, and _ find-
ing an employer did not violate the Act in subcontracting
an employer’s commercial river trips for 1978 and 1979 to
other outfitters when the employer was presented with an
imminent strike threat from the entire unit of Oregon
river guides. The Board specifically held the employer
in such cireumstances was rightly concerned that its cus-
tomers not face an abrupt cancellation of their trips after
coming long distances; and the subcontractor outfitter
there conditioned its acceptance of providing the 1978 serv-
ice on the contractor’s inclusion of the 1979 season. The
subcontracting of 1978 and 1979 trips could thus be, and
was considered an economic and business necessity faced by
the Employer. I am persuaded that the Elliot River Tours
vase is, as General Counsel contends it to be, a case of
permissible temporary subcontracting, with the expanded
length of contract reasonably warranted on the particular
circumstances of that case, circumstances that are demon-
strably inapposite to those presented here, as discussed
further ifra,

To the extent Employer would rely on other Board hold-
ings, e.g., in Precision Castings Co., 223 NLRB 183 (1977),
and The Emporium, 221 NILRB 1211 (1975), the reliance is
misplaced. It is clear those cases are Inapposite on their
facts in that in Precision Castings there were no discern-
ible adverse effects on the unit occasioned by subeontract-
ing, 233 NLRB at 210; and in the /mportum case, a clear
prior opportunity had been provided the Union to bargain
about the contracting because of Employer's timely notice
to Union of prospective cessation of unit tailoring work
and subcontract of it to independent contractor, a condition

oS)

4

also clearly lacking here. Moreover it is clear, 7d. fn. 1,
that the Board relicd on Westinghouse Electric Corp., Bet-
tis Atomic Power Laboratory, 153 NURB 443 (1965) where
at 446 it reviewed its clarification of holdings on subcon-
tracting noting particularly there is no violation where
there is no “significant detriment” to employees in the unit.
Clearly such is inapposite here. As it is not the effeet of
a contractual prohibition of subcontracting during a strike
that is of controlling consideration, Employer’s relianee on
Pittsburg Die Striker’s Lodge No. 50 v. Pittsburg Forgings
Co., 255 F. Supp. 142 (W.D. Pa. 1966) that an employer
can subcontract in a strike, cannot cause Employer to
prevail.

In summary then, the record before me, considered in
its entirety, makes it appear sufficiently clear that soon
after the strike had commenced on 13 November 1984, Em-
ployer had been able to make its required deliveries for
Emery by an initial and changing mix of use of its em-
ployees from other locations, its contractors and contrac-
tor drivers, newly-hired employees and use of its own office
staff and or supervisors, and various relatives and spouses
of the above. Respondent's general summary that “it
wasn’t easy” to hire drivers when the strike began must be
viewed in that light, aud it does not reasonably extend to
buttress February-March contracts. After the first week
or so of the strike Employer setuled in, meeting its service
deliveries essentially with a mix of contractors and con-
tractors’ drivers, newly-hired employees, and continued use
of its supervisors, e.g., Schneller, Jr., Mawby and Lynch.
There is simply no evidence offered by Employer that is
persuasive that in late February or early March, 1985, that
Kmployer was acting out of business necessity in entering
contracts for the first time with Benefield, Fowler, Horton,

Pope and supervisor Mawby.

85

Respondent’s bare assertion, subsequently revealed to
be uncorroborated hearsay at that, that these employees
“would rather work as contractors” does not suffice to estab-
lish these employees had demanded as a condition for their
continued service, that they be made contractors. Certainly
the same does not excuse or justify Respondent’s act at
that time entering subcontracts with not just the five,
but all of its contractors, and in substance and effect there-
by permanently eliminating all unit work for employees,
without prior notice to the Union, or Employer bargaining
thereon. Whatever may or may not be the merits of the
disputes between the parties over use of its contractors
prior to the strike, none of its contractors before the strike
are shown to have performed the unit work specifically
performed by these 18 unit employees. The 5 contracts
entered for the first time by their terms put into Employ-
er’s service 7 pieces of equipment; and they alone thus
affected half of the units’ work, despite the fact that Re-
spondent by this time was experiencing no difficulty in
meeting its deliveries otherwise, e.g. by employee and su-
pervisor service as drivers. Although Employer did net
join in the informal settlement of its charge, the Employer
was certainly aware the Union had entered the settlement
agreement in early February, and it was aware of the terms
of the agreement under which the Union had agreed, and
was to notify its employee-members, that the Union would
not in the future engage in unlawful local or ambulatory
picketing, or other specifically described unlawful conduct.
In agreement with General Counsel contention, I conclude
and find, ivfra Part II, that there was no evidence offered of
any strike violence, or threat of same, by anyone after 4
February when the Union entered this agreement. The Gen-
eral Counsel contends not just the five (or seven) positions
filled by the five new contractors but all unit positions were
effectively extinguished by the Employer’s treatment of its

86

February-March contracts as permanent replacement of
unit employees. I agree, at least as to 12 of the unit em-
plovees. (One position, that servicing General Motors’
Leeds facility, would on the face of this record appear
potentially permanently lost to Employer's competitor,
Shock Transfer.) I further find myself in agreement with
General Counsel’s contention that by the above acts of per-
manent subcontracting Employer has violated Section
8(a)(5) and (1), unless the matter is to be deemed not such
for some other reason.

Certain generally applicable principles are clear. An
employer may not make unilateral changes in mandatory
subjects of bargaining prior to a good faith impasse in
bargaining, Milwaukee Spring Division, 268 NLRB 601
(1984); nor make changes in mandatory terms and condi-
tions of employment contained in an existing contract, with-
out union consent, Brown Co., 278 NLRB No. 118 (1986) ;
Section 8(d) of the Act. Mere good faith and willingness
to bargain is no defense for an Employer who in fact makes
unilateral changes in working conditions during a period
of negotiations, NLRB v. Katz, 869 U.S. 736, 743° (1962).
An employer also has a statutory obligation to continue
to follow the established terms and conditions of an expired
contract as to the employer-employee relationship pending
negotiations and until it has bargained to impasse with
their exclusive representative, ef. Richmond Recording
Corp., 280 NLRB No. 77, Slip Op. (24 June 1986), ALJ
Dee. pg. 52.

Here the contract terminated on 31 March 1985, dur-
ing an ongoing strike. However, the permanent subcon-
tract of all the unit work had already substantially oe-
curred, in late February, and it was completed in early
Mareh, thus during the life of the contract, and accom-
plished without notice to the Union, let alone with its con-
sent. While the contract had terminated on 31 Mareh 1985,

87

thus before the Union’s unconditional offer to return made
on behalf of all employees, the only prior notice the Em-
ployer had given the Union on the course of future bar-
gaining, was of its timely withdrawal from the multi-em-
ployer association, and its determination not to be bound
by any contract that association might negotiate. Em-
ployer did not withdraw recognition from the Union. Its
obligation was to continue to negotiate with the Union as
the representative of its employees, upon demand. The
fact the Union continued on strike after termination of the
prior agreement did not serve to extinguish Hmployer’s
obligation to bargain with the Union about any Emplover
desired changes albeit on its desired individual Employer
basis.

Employer did not give notice to the Union of its action,
or intention with regard to a permanent subcontracting of
all unit positions, neither in February-March, nor at time
of actual termination of the agreement: and not even at
time of Union’s unconditional offer to return to work made
on behalf of all striking employees. Tam not persuaded
there is any efficacy to that end, in Michalski surprise of
an interest by employees in a return to employment (as
opposed to when they returned), where the strike of em-
ployees had continued unabated at Employer's entrance.
T am wholly persuaded that Employer's intended perman-
ency of the prior subcontracts is sufficiently made evident
from the continued use of subcontract drivers (certainly
beyond the contractual 50-day required notice of termina-
tion provision), and the Empolyer’s continued failure to
recall the available employees. But the Union was not
made aware of any of this. It is one thing for an employer
to (essentially) indicate to the Union and employees that
as a result of their economic strike and the employer's
coneurrent determination to, and = suecessful conduct of
operations, employees have been replaced in’ their indi-

ms 88

vidual positions, and resultingly there are presently no
open unit positions then available for the formerly strik-
ing emplovees to return to. It is quite another, for the
formerly striking employees and their representative to
have not been consulted, and to be kept ignorant of the
accomplished fact that the very unit positions, previously
occupied by the striking employees, and as to which the
Union has bargaining status in represcuting employees,
have been unilaterally and permanently contracted away
by their employer to others, without any notice to the em-
ployees, or opportunity for their exclusive representative
to have bargained on their behalf with Employer thereon.
Any subsequent offer to bargain generally, so long as the
facts of permanent subcontracting remained undisclosed,
absolves Employer of nothing. The only remaining sub-
stantive issue on Enmplover’s initial failure to bargain with
the Union over subcontracting is thus whether Employer's
decision made unilateraily to permanent subcontract to
independent contractors was a decision made unilaterally
ona mandatory subject of bargaining in the circumstances
of this case.

On this issue of Employer's decision to permanently
subeontract unit work to independent contractors as an
issue of a decision on a mandatory subject of bargaining,
General Counsel correctly observes we look to the Board’s
ruling in Ofis Llevator, 269 NLRB sol (1984), where, at
page $92, the Board stated:

the critical factor to a determination whether the

decision is subject to mandatory bargaining is the es-

sence of the decision itself, ie., whether it turns upon

a change in nature of the business, or turns on labor
costs.

The facts supportive and warranting the ready conclusion

that Mmplover’s subcontracting did not effect a change in

89

the nature of the business are fully set forth above in de-
tail and need not be repeated beyond brief summary here
that it is obvious that Employer provides the same services
to Emery, continues to conduct its business at the same
locations and facilities, did so with the same supervisors ;
and conducts essentially the same pickup and delivery
operations. The only thing that has changed is that con-
tractors and their employee drivers now perform all the
bargaining unit work previously performed by the unit
employees, Circumstances essentially much akin to those
presented in the Fibreboard Products case, supra. The
above is hardly indicative of a fundamental change in di-
rection of the business. Ner do T conclude it has been
made so by Employer's (arguably) concurrent sale of cer-
tain van (and truek) equipment, where some has been sold
to the same independent contractors, and some retained
for continued use of supe visors on bargaining unit work,
and for (spare) use by contractors in the same work, or
junked for obsolescence that would be present in any case,
albeit some has also been sold to truck dealer in unspeci-
fied amount. In my view this is not the type of, or ade-
quate showing made of withdrawal of capital, that the
Board has previously considered as portryaing a substan-
tive redirection of enterprise. There was also no showing
made by Employer of any business need for speed, or con-
fidentiality, or “unencumbered decision making” in’ such
action.

To the extent the Employer has advanced contention
that the Company’s business has taken on a new direction
and undergone a change in nature by virtue of Mmery’s
imposition of certain dockwork on Land Air in the summer
of 1985, apart from Employer's urging the same work was
much reduced by Emery, the shorter answer is that that
later business condition can afford no support or justifi-
eation for Emplover’s action in permanently subcontracting

90

3 or 4 months earlier in the year. (For the same reason
I do not rely on General Counsel's labor cost saving argu-
ments based on that same period.) Moreover their appears
to be no evidentiary warrant in this record to conclude that
had Employer allowed former striking employees to timely
return, they would not have been able to assimilate these
new dock duties, just as well, at that time.

The General Counsel has not sought to show, or if so,
has not successfully shown that independent contractor
base (75% of gross) effected direct labor cost savings to
Employer over its prior costs generated from payment of
unit employee wages and benetits, ete. General Counsel's
arguments appear to certrally rest on the prior Board
holdings prohibition an Employer's permanent subcontract
of the unit work in strike circumstances, because of its
destruction of unit positions, and union representation
status, as noted earlier. Neither has Employer addressed
that consideration.

Employer has argued in brief that the use of employee
drivers with its own equipment, stored at the Land Air
(Emery) facilities had cost the Company considerable sums
of money, which were expended to provide security for its
equipment, and to repair vehicles because of patterns of
vandalism, and violence. Whatever might have been the
efficacy of such an argument if applicable to period and
cireumstances prevalent carly on in the strike, see related
discussion Part IT iufra, it has much less convincing fac-
tual base and support in explaining late February early
March subcontracts, particularly where also following un-
ion entry of settlement agreement on + February 1989, and
related union pledge not to engage in certain such acts;
and where there are no such acts thereafter reported for
at least some two weeks before Employer permanently

subcontracts the unit work away. The absence of a con-

vincing justification being advanced, and Employer's con-

9]

cealment from the Union, strongly indieate other reason,
an unlawful discriminatory one. Moreover, even if to be
construed otherwise, the Board must deal with industrial
reality. [It seems to me that an employer's labor costs also
realistically extends to costs associated with labor unrest,
including any inefficiencies in costs of operations resulting
from its emplovees engagement ina lawful strike. To the
extent unlawful conduct results in additional financial loss
through damage to property, ete. and is traceable to Union,
or employees as agents of the Union, such conduet is un-
lawful and can be remedied in other forum, ef. Construction
Workers v. Laburniwm Constr. Corp., 347 US. 656 (1964).
If the conduct a union is shown to have been egregious, the
Board may impose a forfeiture of bargaining order, Lavra
Modes Co., 144 NLRB 1592 (1963). It is not however to
be remedied by an Employer's own unilateral action of
seeretively subcontracting away all unit positions, and a
related concealed practical destruction of the Union's repre-
sentative status. The subject of discriminatorily moti
vated contracting Was specificnty exeluded in Otis levator.
supra, 269 NLRB at fn. 4, p. S02: and ef. Sands Motel and
AMM, Ine., 280 NLRB No, 15, Slip Op. p. 2, fn. 2 (50 May
1986). Even if not to be Building, he noticed Joe
Fincher and Dale Guyton in Fincher’s car, side-by-side
Lynch's vehicle. Lynch testified credibly that Fincher, in
the driver’s seat, then raised a wooden-handled, eight-to-
ten inch ice pick and said, “Um going to shove this up
your ass.” Lyneh reported the incident immediately to the
Land Air dispatcher, and at his next stop called the threat
in to the Kansas City Missouri police, On cross-examina-
tion Lynch readily acknowledged that Guyton had said
nothine during the incident. General Counsel further es-

tablished that in the police report Lynch filed on the tee pick

109

incident that Lynch had wof then mentioned Guyton. Lynch
also (eventually) acknowledged that he had subsequently
attended a court proceeding on the ice pick incident, and
that it involved only Fincher. Guyton denied that he was
present at this incident. Kmployer has offered no other
supporting evidence of Guyton’s presence.

Although | find Lyich to have been a generally reliable
witness, in the instance of Lynch's recalled presence of
Guyton at tle ice pick incident I entertain sufficient doubt
arising from the above inconsistencies to be unwilling to
conclude on the status of the above evidence offering that
Guyton was present with Fincher on that occasion, par-
ticularly with Guyton’s unequivocal and equally apparent
eredible denial. Nonetheless, | credit Lynch as to his pre-
vious conversation with Stevens. (Stevens? denial did not
sufficiently address particulars.) There was (1 find) no
confrontation of Fincher (or Guyton) later fhat day at the
Koch stop, where Stevens had understood, and had fore-
warned Lynch the problem was to occur, and as to which
problem Stevens wanted no part, and from which he dis-
associated himself. Lynch iestified that he didn’t report
Stevens’ satement to the police because he (understandably )
did not believe Stevens was involved with the incident.
However Stevens’ re cunt to Lynch of Fincher’s and Guy-
ton prospectively meeting Lynch at the Koch stop (which
did not oceur) may well account for a Lynch present imis-
recollection of Guyton’s presence at other location, as indi-
cated by earlier documentary recording of the incident
without Guyton presence. In omy view, Stevens, for his
part in conversing with Lyiea, forewarning him of a prob-
lem, while at the same time wholly disavowing it, and dis-
associating himself from it, did not engage in misconduct.

Lynch has described a later driving incident. On this
occasion Lynch had a security person with him. The in-

cident involved nonemployee, but union member David

110

Evans, who was accompanied by Fincher. Lynch testified
that Evans drove his Monte Carlo and attempted te broad-
side Lynch on an apparently unspecified date. Lyneh re-
ported this incident to the police in connection with a later
Monte Carlo (blocking) incident involving another driver.
However in this instance the police arrested both Evans
and Lynch, Lyneh testifying that it was because it was one
person’s word against the other. (Apparently it was two
against two. Otherwise there is no explanation offered as
to the apparent noninvolvement of the security person as
a witness for Lynch (or Fincher as witness for Evans).
In any event Lynch testified that neither he or Evans
pressed charges on this incident.

Lynch has also testified to his discovery of four ice
picks in the tires of his Land Air vehicle after a stop, on
an unidentified day; and also, to similar damage to his
vehicle, along with smashed windshield damage, at his
home, in early December 1954. In neither incident did
Lynch have any knowledge of the perpetrator(s).

Jimmy McDonnell was employed by Lyneh and drove
Lynch Delivery’s one vehicle. McDonnell testified that on
4 Pecember 1984. a red and silver Chevrolet truck pulled
up behind him while MeDonnell was waiting at a stop in
Kansas City “on standby.” Fincher drove the car which
was owned by Lindsay Cundiff. McDonnell testified that
Evans and another striking employee were riding with
Fincher. MeDonnell confirmed it was not Cundiff. They
vot out of the vehicle and began picketing MeDonnell’s
vehicle. MeDonnell relates that Fincher, after signalling
McDonnell to roll down his window, asked McDonnell why
he didn't get out of the truck. MeDonnell did not reply.
Fincher bent the rear (or side) view mirror down, without
damage. McDonnell radioed the Land Air dispatcher to
call the police. The police arrived and warned Fincher

and the other about tampering with MeDonnell’s vehicle.

111

MeDonnell then received a pickup call. After arrival
at the stop, making the pickup and placing it in the van,
McDonnell got in the van. At this time MeDonnell’s father
was with him in the van. As soon as McDonnell started
up the van, an (unidentified) projectile shattered the back
window of the van, and left a small hole in the back of the
front passenger seat. MeDonnell quickly turned around
and saw Evans run into an alley that MeDonnell knew to be
an “L-shaped” alley. McDonnell drove his van to the other
end of the alley, arriving in time to see Fincher pull out,
and with Evans as passenger. MeDonnell confirmed Cun-
diff was not in the vehicle.

James Ellis was employed by Land Air as a driver from
29 November 1984 to mid-1985 when he beeame a dock
supervisor, Ellis relates that on 10 December 1984 he
drove a truck to a stop. Ellis saw three individuals walk
to the truck. One hit a door, and Ellis saw Fincher hit a
tire. Ellis ran around the truck, and he observed Fincher
walk to an alley and throw an ice pick. Ellis called the
police; and when they arrived, Ellis showed the police the
hole in the tire, and he then directed the police to the ice
pick. Ellis (and MeDonnell) were summoned to criminal
proceedings against Fincher. Ellis testified that Fincher
pled guilty ; and Employer presented in evidence confirming
certificate of the Sixteenth Judicial Cireuit, Kansas City
Municipal Division.

On the same day, 10 December 1984, MeDonnell was
driving with security rider Gary Genova. A Chevrolet
“blazer,” belonging to Stevens followed them. In the ear
were Fincher, Mvans and an unidentified individual. Me-
Donnell and Genova got out of their vehicle, as did Fincher
and the others. MeDonnell went into the stop (Casey
Southern) and brought the freight back out. MeDonnell
observed Genova talking to the three individuals. As Me-
Donnell approached Genova, Genova requested that he eall

112

the police. MeDonnell did, and when they arrived, the
police arrested the three men in the Chevy “blazer.” Me-
Donnell however did not observe the incident; and Genova
did not testify.

It cannot be gainsaid that there is sufficient evidence
presented that Fincher engaged in misconduct disqualify-
ing his reinstatement, based on Fincher’s threats of general
violence to Lynch and Reynolds on 15 Novembtr 1984;
threat of personal injury to Lynch on 1 November 1984;
veiled threat of physical harm to Reynolds of the same na-
ture as Griffitts in prior strike; and Fincher’s personal
involvement in ice pick damage to Ellis’ truck tire. It is
co found. In contrast there is in my view insufficient evi-
dence presented as to any misconduct suflicient to disqualify
either Dale Guyton, or Don Stevens.

,
b. William Greenfield

While there is some conflict as to date, it is clear and I
find that the following incident oceurred on Ellis’ first day
of employment, 20 November 1984. Ellis otherwise testi-
fied credibly that he was followed by Wilham Greenfield
and another individual to a furniture store where Ellis
delivered some mattresses at the dock. As Ellis came out
of a dock door and walked to the front of the truck he heard
air escaping from the tires of the truck; and he observed
Greenfield getting back into his orange truck. On inspee-
tion of the truck, Ellis discovered 3 tires had been vandal-
wed. In his testimony, Ellis evidenced difficulty initially
in remembering Greenfield's name; and, on c¢ross-examin-
ation he also acknowledged that the name had been later
supplied to him by the dispatcher after Ellis had deseribed
the man he saw getting back into the orange truck.

Ellis also testified that on 17 December 1984, Greenfield
and another person, whose name Ills did not know, were

again following his truck. Greenfield was driving the

115

truck; and Tom Pope accompanied Ellis as security rider.
When Ellis stopped at an intersection he observed the other
person accompanying Greenfield get out of the truck be-
hind. Ellis, who had previously had his truck padlocked,
immediately got out of his own truck, and ran to the back,
Klis found a padlock had been placed on the back door.
Not having a key to this padlock, Ellis had to get the lock
eut off; and resultingly, it delayed his deliveries,

Ellis testified that he was summoned, and did testify
on 8 September 1985 in criminal proceedings brought
against Greenfield. On that occasion Ellis testified about
the furniture store incident involving damage to 3 tires.
Respondent has also placed in evidence records of a con-
viction by a jury in the Distriet Court of Johnson County,
Kansas, Criminal Department. The conviction was of
criminal damage in an amount (finally) of less than $150,
a Class A misdemeanor. (Speak recalled this conviction
as one on appeal. Employer introduced records showing
there was a motion for a new trial that was denied. There
is no other record evidence presented of an appeal.) The
sentence imposed was a year, and fine of $1000; and Green-
field was placed in bench probation for a year. Greenfield
did not testify in this proceeding. It is apparent from the
above furniture store incident (alone) that Employer had
sufficient grounds to conclude that Greenfield is disqualified
from reinstatement by virtue of his misconduct in con-
nection with damage to property at the furniture store.

«. Lindsay Cundiff

It appears that the major dispute of fact, or at least
the most difficult for resolution in this area, oceurs in re-
lation to Cundiff, and his personal responsibility in certain
incidents. Schneller, Jr. testified that at 8:30 a.m., on 13
November 1984, the first day of the strike, the left the

dock to run downtown deliveries, and was followed by a

114

rust-colored Monte Carlo (belonging to Evans). Striking
employee Lindsay Cundiff and nonemployee David Evans
were in the Monte Carlo car. Cundiff picketed Schneller’s
vehicle at S

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_1318%3A2. Public record. Not legal advice.