On Application for Enforcement of An Order of the National Labor Relations Board.
Before CUMMINGS, Chief Judge, ESCHBACH, Circuit Judge, and WRIGHT, Senior Circuit Judge.*fn*
WRIGHT, Senior Circuit Judge.
Helmkamp Construction Company (Helmkamp), a general contractor, previously maintained a fleet of trucks to fulfill its hauling needs and occasionally perform contract hauling for others. It was signatory to a collective bargaining agreement with Teamsters Local 525 (Union), due to expire April 30, 1983.
Late in 1982 Helmkamp decided to close down its trucking division and sell its trucks because it was no longer profitable. Future trucking needs would be satisfied by independent contractors.
In December 1982 or January 1983, Helmkamp's president, Byron Farrell, met with Union representative Marshal McDuffy, and disclosed Helmkamp's plans. McDuffy neither protested the decision nor requested bargaining over the effects of closing the trucking division. He expressed his regrets and noted the growing problem nationwide with owner-operators replacing Union drivers.
In response to a letter not in the record, Helmkamp wrote to the Union, and delivered a copy to McDuffy on February 28. The letter confirmed the plan to close the trucking operation, terminate the existing collective bargaining agreement effective at its expiration on April 30, 1983, and thereafter utilize lease agreements with independent owner-operators to satisfy Helmkamp's trucking needs. Farrell agreed to McDuffy's request to meet later with Illinois Conference of Teamsters President Bill Bounds.
In early March, Farrell, Bounds and McDuffy met and Farrell again repeated Helmkamp's intentions and offered to bargain over the effects of the impending closure of its trucking operation. In April, Bounds wrote to request negotiations to continue or replace the existing collective bargaining agreement. Farrell responded by letter of April 18, 1983 that Helmkamp still intended to eliminate the trucking division and saw no need to enter into a new collective bargaining agreement since it would no longer employ any truck drivers. He reiterated his willingness to bargain, however, over the effects of the termination. He received no response.
Farrell called McDuffy again in May to remind him that liquidation of Helmkamp's trucks was nearing completion. McDuffy requested that Helmkamp postpone sale of the last few trucks pending a later meeting.
They met on August 18, 1983. McDuffy presented Farrell with two contracts and demanded that Helmkamp sign one. Both contained clauses requiring Helmkamp to carry owner-drivers on its payroll and require them to join the Union as a condition of doing business with Helmkamp.*fn1 Farrell refused to sign because Helmkamp would no longer own any trucks nor have need for drivers. McDuffy said it made no difference and they would "both have to get [their] best hold and [see what would happen]."
On August 19, Farrell received a telegram from Bounds stating that Helmkamp had the Union's last and best offer and if it refused to sign the Union would "take all legal economic recourse that they [deemed] necessary."
Helmkamp sold or leased its remaining trucks and laid off the last of its drivers on August 23. Helmkamp has since utilized only independent contractors.*fn2 On August 26, the Union struck Helmkamp and began to picket. The picketing expanded to various construction sites until it was halted on September 7, pursuant to a temporary restraining order issued by the district court for the Southern District of Illinois. Helmkamp signed a new collective bargaining agreement on September 21, 1983, containing the disputed Union membership requirements. In return, the Union agreed not to enforce the disputed clauses pending judicial termination of their legality.
The Regional Director of the Board issued a complaint alleging that the Union violated Sections 8(b)(4)(A) and (B) of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 158(b)(4)(A) and (B), by picketing and threatening to picket Helmkamp to force the self-employed owner-drivers to join the Union and to force Helmkamp to ...