Hood Industries, Inc.

HOOD INDUSTRIES, INC. 597 Hood Industries, Inc., and its Wholly Owned Sub- sidiary, B & K Transportation, Inc. and Team- sters Local 25, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case -CA-14624 March 20, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On October 17, 1979, Administrative Law Judge Karl H. Buschmann issued the attached Decision in this proceeding. Thereafter, Respondent and the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order. 3 Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. Subsequent to the close of the hearing, the Administrative Law Judge granted Respondent's request to correct the transcript. In accord with the grant of this request, the testimony of Bruce Hood, as quoted in the underlying Decision, should have read that he was advised by legal coun- sel prior to the election that "after the election we could still-go out of the trucking business." 2 In its brief, Respondent claims that the Administrative Law Judge inadequately distinguished Kingwood Mining Company, 210 NLRB 844 (1974). While Respondent correctly points out that Kingwood involved the subcontracting of unit work, i.e, mining operations, this change of op- erations was part of a larger restructuring of Kingwood's operations which caused it to cease all mining and concentrate its resources exclu- sively on processing purchased coal through its coal tipple. This tipple had been used predominately to process coal extracted by independent mining operations. The Board majority, Member Jenkins dissenting, found that Kingwood had no obligation to bargain about such a basic management decision. In contrast, the Board has repeatedly found that delivery services connected to retail or manufacturing enterprises may not be eliminated without bargaining over such a decision and its effects. Walker Company, 183 NLRB 1322 (1970); Town & Country Manufacturing Company. Inc., 136 NLRB 1022 (1962), enfd. 316 F.2d 846 (5th Cir. 1963); cf. R & H Masonry Supply. Inc., 238 NLRB No. 149 (1978). More- over, such a defense is not available where, as here, the decision to cease delivery operations is discriminatorily motivated. Jays Foods, Inc., 228 NLRB 423 (1977), enfd. in part 573 F.2d 438 (7th Cir. 1978), cert. denied 439 U.S. 859; Townhouse T V & Appliances, 213 NLRB 716 (1974), enfd. as modified 531 NLRB 826 (7th Cir. 1976). 3 In adopting the Administrative Law Judge's recommendation that Respondent be ordered to reestablish its trucking operation, we find it necessary to clarify a statement in the remedy section of his Decision that "(T]he Board has not ordered such a status quo ante remedy in situations where it would be punitive because it would cause undue economic hardship,"citing Great Chinese American Sewing Company, 227 NLRB 1670 (1977). The Great Chinese case involved a unique situation, and the majority, rather than forcing the reestablishment of a clearly unprofitable 248 NLRB No. 89 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Hood Indus- tries, Inc., and its wholly owned subsidiary, B & K Transportation, Inc., Wakefield, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. operation, found that the policies of the Act were sufficiently fulfilled by a full make-whole order covering the employees of the terminated plant Then-Member Fanning would have ordered the respondents to reopen the closed plant. We continue to adhere to the well-established principle that, in cases involving discriminatory conduct, the restoration of the status quo ante is the proper remedy unless the wrongdoer can demonstrate that the normal remedy would endanger its continued viability See Lion Uniform. Janesville Apparel Division, 247 NLRB No. 123 (1980); R & H Masonry Supply, Inc., supra We have modified the Administrative Law Judge's notice to conform with his recommended Order APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT coercively interrogate em- ployees concerning union activities. WE WILL NOT threaten employees that they would be discharged because of their union ac- tivity. WE WILL NOT discharge or otherwise dis- criminate against any employee because of the union activity of our employees. WE WILL NOT contract out bargaining unit work because of the union activities of our employees. WE WILL NOT refuse to recognize and bar- gain with Teamsters Local 25, a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representative of our employees in the following unit: All full-time and regular part-time chemical drivers, truck drivers and shipper-receivers employed by the Employer at 14 Audubon Road, Wakefield, Massachusetts, but exclud- ing all office clerical employees, production and maintenance employees, managerial em- ployees, professional employees, guards and supervisors as defined in the Act. H O O D I N D S T R E S, IND E R9 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of the rights guaranteed them in Section 7 of the Act. WE WILL reestablish our own trucking oper- ation. We will offer John Wharton, Irving Sweetser, Roger Morrison, Nils Swanson, and Paul Brown immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for their loss of earnings with backpay, plus in- terest. WE WILL, upon request, recognize and bar- gain with said Union as the exclusive collec- tive-bargaining representative of our employ- ees in the bargaining unit set forth above with respect to wages, hours, and other terms and conditions of employment; and, if an under- standing is reached, WE WILL embody such understanding in a signed agreement. HOOD INDUSTRIES, INC., AND ITS WHOLLY OWNED SUBSIDIARY B & K TRANSPORTATION, INC. DECISION STATEMENT OF THE CASE KARL H. BUSCHMANN, Administrative Law Judge: This case arose upon the filing of a charge on June 14, 1978, by Teamsters Local 25 and a complaint dated Sep- tember 15, 1978. The complaint, as amended, charged Hood Industries, Inc., and its wholly owned subsidiary B & K Transportation, Inc., with violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act. Respondent's answer filed September 28, 1978, admitted most of the jurisdictional allegations in the complaint and denied that it had committed any unfair labor practices. A hearing was held on October 31 and November 1, 1978, in Boston, Massachusetts. General Counsel and Re- spondent filed briefs on January 17 and January 15, 1978, respectively. Upon the entire record in this case, including the tran- script, exhibits, briefs, and from observation of the wit- nesses, I make the following: FINDINGS OF FACT Respondent Hood Industries Inc. (Hood), is a Massa- chusetts corporation engaged in the manufacture and sale of polyurethane foam products. Located at 14 Audubon Road, Wakefield, Massachusetts, Hood is admittedly an employer engaged in commerce within the meaning of the Act. Hood is jointly owned and operated by Bruce Hood, president, and Kenneth Lundstrom, vice presi- dent. Prior to February 1978, Hood employed James Foley to handle the distribution of its products. The transporta- tion of chemicals, however, was done by Hood with its own drivers and equipment.' Foley owned and main- tained his trucks and tractors and also hired the drivers to perform the hauling of Hood's products. Under this arrangement, Hood paid Foley $21 per hour, of which $5 was deducted and paid directly to the drivers. Up to 30 percent of the trucking was subcontracted by Foley to outside firms at a rate of about $18 per hour. In January 1978, Foley became terminally ill. Con- cerned about his family and the future of their business relationship, Hood purchased all of Foley's equipment, trucks, and permits and formed B & K Transportation, Inc. (B & K), as a corporation under the laws of Massa- chusetts for the sole purpose of transporting or distribut- ing Hood's products. As a wholly owned subsidiary of Hood, it had the same offices and location as the parent company at 14 Audubon Road, Wakefield, Massachu- setts. With the purchase of Foley's equipment on Febru- ary 22, B & K became immediately operational and was officially in business on April 1, 1978. During this time, B & K employed Foley's wife as a dispatcher. Following an organizational campaign to organize the drivers of B & K, the Union on April 6, 1978, filed a pe- tition on behalf of "all truck drivers and platform work- ers" employed by Hood Industries (B & K Transporta- tion). Hood was notified of the petition on the same day and immediately engaged legal counsel for the reasons stated by Hood in his testimony: Well, I think my opening statement was, "I want to get out of the trucking business. How do I go about it?" I think his reply at that point was that if we went out of the trucking point [sic], that we had always had the right to go out of the trucking business, that if we went out at that point that we probably would be charged with an unfair labor practice and that we should proceed to the point of the election, be- cause half the election would keep still-go out of the trucking business. Nevertheless, on April 28, 1978, Respondent's and the Union's representatives met at the Board's Regional Office in Boston, Massachusetts, and signed a Stipulation for Certification Upon Consent Election. The unit was described as, "[a]ll full-time and regular part-time chemi- cal drivers, truck drivers, and shipper-receivers em- ployed" by Hood and B & K. The Union won the elec- tion on May 19, 1978, and was certified on May 30, 1978. Immediately thereafter, by letter, dated June 1, 1978, Respondent informed the Union: Please be advised that Hood Industries, Inc. and B & K Transportation, Inc. intend to go out of the business respectively of the hauling of chemicals ' For this purpose Hood owned a Peterbilt tractor and a chemical tanker to avoid contamination of its chemical supplies. Hood also leased several trailers and owned a White tractor, used as a "yard horse" to move these trailers. I HOOD INDUSTRIES, INC. 599 and the transportation of foam products. As pres- ently contemplated this decision would be fully im- plemented within 30 days. This notice is given in light of your union being the certified representative of the affected employees. In the meantime, on May 15, 1978, Respondent's vice president, Lundstrom, had a conversation with employee Roger Morrison, which is best summarized in Morrison's own words: He asked me if I was going to a Union meeting. I said, "What union meeting. I didn't know anything about a union meeting. If there is a union meeting, I'm going." I asked him how he knew about it and I didn't. He said he had ways of finding out. Several days later, on May 18, 1978, Lundstrom spoke with employee John Wharton, and according to Whar- ton, stated: The Union has its good points and its bad points and that the union would treat you as a number and not a person and you would end up getting the shaft by the Union. He proceeded to say that they had been fair with us and he said also, on top of that, that if the Union got in that he would sell the equipment and all of us drivers would be out of a job. I say well you're the boss and I proceeded to the loading dock to see if there was another load to go out. Pursuant to Respondent's June 1, 1978, letter, advising the Union that B & K intended to go out of the trucking business, the parties met on June 9, 1978. The Union was represented by Herbert Salter and Ernest Sheehan, while Bruce Hood and attorney Harold Mack appeared on behalf of Respondent. Mack explained that the reasons for the decision to discontinue the trucking operation were economic problems, and that in any case, Hood had only intended to perform its own trucking on a tem- porary basis. Mack stated that B & K business was gone and that nothing was left. Sheehan disagreed and replied that the Union still represented these 10 people and that something had to be done for them. Mack repeated that there was nothing left and that nothing could be done. To this Sheehan replied that he would file a charge on behalf of the employees. Following this meeting, the Union, by letter dated June 1978, requested Respondent to start negotiations at the earliest convenience. Respondent answered with a letter, dated June 16, 1979, stating as follows: By letter dated June 1, 1978, you were advised that Hood Industries, Inc. and B & K Transporta- tion, Inc. intend to go out of the business respec- tively of the hauling of chemicals and the transpor- tation of foam products. At your request, the parties met on June 9 and discussed the subject matter of the companies' June I letter. Having afforded your union, as the representative of the affected employ- ees, the opportunity to discuss this matter, the em- ployers will proceed to implement their decisions. As for the three shippers-receivers who will remain in the employ of Hood Industries, Inc., they constitute only a small portion of the stipulated unit and, standing alone, do not constitute a unit appro- priate for bargaining. For all of the above reasons, your request to commence negotiations must be de- clined. The parties have not met since the June 9 meeting. At various dates thereafter, Respondent discharged six mem- bers of the bargaining unit: On June 15, John Wharton; on June 23, Irving Sweetser; in late June, Charles Moran; and on September 15, Nils Swanson and Roger Morrison. Paul Brown was also discharged during this time.2 These five drivers were admittedly terminated be- cause B & K went out of the trucking business. Charles Moran, who had been hauling the chemical tanker, was replaced because Respondent had difficulty in reaching him at his home.3 He was replaced by Joe Babcock and Joe Lawrence. Analysis It is the General Counsel's position that Respondent, by Vice President Lundstrom and Agent Foley, commit- ted independent 8(a)(l) violations by interrogation and threats; that Respondent violated Section 8(a)(3) and (1) because of the discriminatory discharges of its truck- drivers; and that Respondent by failing and refusing to bargain with the Union representing the truckdrivers, violated Section 8(a)(5) and (1) of the Act. Respondent, on the other hand, argues that Foley was not an agent of Respondent and that, in any case, evi- dence relating to certain statements made by him were inadmissible because of his death. Respondent argues that its trucking operation was intended only as a temporary measure and that the decision to discontinue it was for economic, not union, considerations, and that it had no obligation to bargain over this issue. Even if there was an obligation to bargain, according to Respondent, it had afforded that opportunity to the Union. Initially it must be observed that the Board may con- sider as evidence statements of persons who are de- ceased, but that such evidence must be scrutinized with great care. Calandra Photo, Inc., and Irwin C. Levin, its Agent and Member of its Board of Directors, 151 NLRB 660, 669 (1965). The record contains testimony by sever- al individuals as to certain statements made by Foley. The General Counsel argues that several of these state- 2 Respondent's answer admitted the termination of Paul Brown. s Charles Moran testified that he was not fired or laid off. Lundstrom testified that Moran was terminated because Respondent was unable to contact him. The record shows that Moran lived at various times in three different places, at his home in Woburn, at his sister's house, and in his truck. He could apparently only be reached by telephone at his sister's. Under the working relationship, Moran apparently did not report regu- larly at Respondent's plant. Instead, the Company would have to contact him from time to time for certain assignments. Respondent had attempted to contact him at his sister's house, but by the time Moran returned the call at 11 p.m., the assignment had already been given to another dnver. Thereafter, Moran made no effort to obtain other assignments. Although Moran was an active union supporter, the record does not support the allegation that he was discharged for his union activity HOOD INDUSTRIES, INC. 599 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ments amounted to threats in violation of Section 8(a)(1). I have concluded that the issues in this case can be re- solved without reliance on Foley's statements, although they may be helpful as corroborative evidence, and that the alleged agency relationship between Respondent and Foley is tenuous at best and generally unsupported in the record. Accordingly, I have decided to consider Foley's remarks not as a basis for any independent 8(a)(l) viola- tions but for purposes of background information and corroborating evidence of some of Respondent's motives and conduct. 4 Statements made by Lundstrom. As summarized above, in the afternoon of May 15, 1978, Lundstrom asked Mor- rison if he was going to the union meeting. When Morri- son expressed surprise about the meeting and inquired how Lundstrom knew about it, Lundstrom replied that he had ways of finding out. Lundstrom thereby indicated that he had the latest information about the Union, and that he intended to ascertain which employees were in- volved with it. In the light of all surrounding circum- stances, I find that Lundstrom's interrogation was coer- cive and violated Section 8(a)(l) of the Act. Blue Flash Express, Inc., 109 NLRB 591 (1954). Similarly, Lundstrom's conversation with John Whar- ton on May 18, 1978, gave rise to a violation of Section 8(a)(1). During this conversation, Lundstrom unequivo- cally stated that "if the Union got in . . . he would sell the equipment and all of us drivers would be without a job." This statement clearly portrays the implication that Respondent may take adverse action on its own initia- tive, unrelated to economic necessities, if the employees supported the Union. Similar to threats to close the plant, Respondent created an atmosphere of fear to dis- courage the union activities of its employees. This con- duct is clearly proscribed by Section 8(a)(1) of the Act. N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618-- 619 (1969). The discontinuation of the trucking operation. Although there is evidence 5 that Respondent had already contem- plated, in November 1977, prior to the onset of Foley's illness, taking over his trucking operation, the record in- dicates that Respondent's decision to form B & K was made because of the expected incapacitation of Foley. B & K was a subsidiary of Hood, but the record supports a finding that B & K and Hood constituted a single em- ployer within the meaning of the Act. Bruce Hood and Ken Lundstrom were the joint owners of both entities and functioned as the management in both corporations. They closely controlled the day-to-day activities of Hood and B & K and supervised their employees. C. K. Smith & Co., Inc., 569 F.2d 162 (Ist Cir. 1978). Although Respondent went to considerable efforts to show that B & K was intended as a temporary expedient to take care of Respondent's trucking needs, and that its short existence was unprofitable and burdensome, the record shows that Respondent went out of the trucking business because of Respondent's union animus. To be sure, B & K's operation was not profitable during the months of April and May (with a loss of $406.85 in April 4 Respondent's motion to strike all testimony pertaining to conversa- tions with Foley is hereby denied. 5 As supported by the testimony of John Wharton and Nils Swanson. and about $3,200.00 in May), when the decision was made to cease its operation. In June, B & K showed a profit. But the record is not convincing that B & K was intended to be nothing more than a stop-gap measure for 2 or 3 months. Even if Respondent's intentions had been to operate B & K on a temporary basis, 6 the timing of its decisions to go out of the trucking business-first, on April 6, when the Union had filed its representation deci- sion and then, on June 1, one day after the Union won the election-leads necessarily to the inference that the advent of the Union was the true reason for Respon- dent's decision. This inference is supported by Lundstrom's remarks on May 18 when he told Wharton that if the Union got in he would sell the equipment and the drivers would be without jobs. Moreover, according to the testimony of Nils Swanson, Foley warned him on May 18 that Re- spondent would not stand for a union. Irving Sweetser testified to a similar conversation with Foley on May 18. And on May 19, Charles Moran had a conversation with Foley where he stated that Bruce Hood would not put up with a union and that he would sell the trucks. Final- ly, on May 22, Foley talked again with Swanson in the presence of Morrison, suggesting that Respondent would sell the equipment and "get gypsies in there to haul their freight." In sum, Respondent's decision to cease its trucking operation and its action in selling the equipment and terminating the employees, who were members of the Union, were motivated by a desire to discourage union membership and not to bargain with the Union. The issue now presented is whether Respondent's ces- sation of the trucking operation was permissible under Textile Workers Union v. Darlington Manufacturing Co., 380 U.S. 263 (1965). There the Court recognized that an employer has a right to go out of business for any rea- sons, including antiunion motives. Id. at 268. A partial closing, however, may have repercussions on the remain- ing business. Accordingly, a partial closing is an unfair labor practice, according to Darlington, "if motivated by a purpose to chill unionism in any of the remaining plants of the single employer and if the employer may reasonably have foreseen that such closing would likely have that effect." Id. at 275. The General Counsel, how- ever, has not attempted to show, nor does the record support, that Respondent's intentions were to chill union- ism of other employees at Hood or that the employer may reasonably have foreseen such an effect. Rather the General Counsel submits that Darlington is distinguish- able. Relying upon Town & Country Manufacturing Co. Inc., and Town & Country Sales Co., Inc., 136 NLRB 1022 (1962), enfd. 316 F.2d 846; B. F. Goodrich General Products Co., a Division of B. F Goodrich Company, 221 NLRB 288 (1975); and R & H Masonary Supply, Inc., 238 NLRB No. 149 (1978), the General Counsel argues that B & K was not a separate identifiable portion of Hood but that it operated as an incident thereto, because Hood required the hauling of its products and merely trans- ferred that function from B & K to an outside firm. At first blush, the issue seems to be a close one. The record indicates that prior to the formation of B & K, 6 This is supported only by the testimony of Hood and Lundstrom HOOD INDUSTRIES, INC. 601 Foley's operation was that of an independent contractor and not an agent of Hood. The only evidence of an agency relationship was that Hood paid Foley's drivers their hourly wages directly. In all other respects, Foley's operation was that of an independent contractor who owned and maintained the equipment, hired the drivers, decided when to subcontract the trucking business, and generally controlled his own operation. In short, when Hood assumed the trucking operation, it took over a sep- arate identifiable entity, and incorporated this line of business into a separate entity known as B & K Trans- portation Inc. When Respondent decided to cease the trucking business, it basically involved the original oper- ation which Respondent had taken over from James Foley. Hood remained thereafter in essentially the same position as it was prior to its purchase of Foley's oper- ation, so that instead of contracting with Foley for the distribution of its products, Hood now contracted with other hauling firms. Nonetheless, Hood and B & K must be considered to have been a single employer, because the two individuals, Bruce Hood and Kenneth Lund- strom, owned and operated both entities, closely super- vised both operations, and determined their labor policy. And Respondent or a part of Respondent's operation simply did not go out of business. Rather, Respondent sold the trucks, discharged the drivers, and contracted for the trucking service. This aspect of Respondent's op- eration, namely, the subcontracting of the trucking ser- vice, distinguishes this case from Darlington, supra. An employer has the right to go partially out of business for antiunion motives (unless its purpose is to chill unionism among the rest of the employees), but "contracting out" a portion of the business for antiunion considerations vio- lates Section 8(a)(3) and (1) of the Act. For example, in Jays Foods, Inc. v. N.L.R.B., 573 F.2d 438, 445 (7th Cir. 1978), where the respondent, a producer of snack foods, contracted its trucking operation to another firm because of antiunion, or partially antiunion considerations, the court considered it to be "well settled that an employer violates Section 8(a)(3) and (1) of the Act by subcon- tracting part of an integrated business and dismissing the persons employed therein if the action is motivated at least in part by antiunion considerations." The court there held, in agreement with the Board, that the Re- spondent had violated the Act. See also Wassau Steel Corp. v. N.L.R.B., 377 F.2d 369, 371-372 (7th Cir. 1976). Still for consideration is the issue of whether Respon- dent had an obligation to bargain over the dissolution of the trucking operation and the subcontracting of it to outside firms. Under the guidelines established by the Court in Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203 (1964), and by the Board in Westinghouse Electric Corp., 150 NLRB 1574 (1965), it is clear that Re- spondent had an obligation to bargain over this issue. Re- spondent's reliance upon Summit Tooling Company and Ace Tool Engineering Co., Inc., and Summit Tooling Com- pany of Ace Tool Engineering Co., Inc., 195 NLRB 479 (1972), and Kingwood Mining Company, 210 NLRB 844 (1974), is misplaced. Neither of those decisions involved the contracting out of part of respondent's operation. Moreover, when, as here, Respondent's antiunion motive for the contracting out is taken into consideration, the Employer's bargaining obligation becomes clearer. For even in situations where courts have decided that a uni- lateral decision by a company to subcontract its distribu- tion or trucking operation was not the subject of manda- tory bargaining, they have based their decision upon a finding that the partial closing was "unstimulated by union animus, having its motivation based solely in eco- nomics of operation and not being a substitution of one set of employees for another." ,X:L.R.B v. Adams Dairy, Inc., 350 F.2d 108 (1965), cert. denied 382 U.S. 1011 (1966). The record shows, as summarized above, that Respon- dent has failed and refused to bargain with the Union over its decision to subcontract the trucking operation. The June 9 meeting was nothing more than a forum in which Respondent announced its unequivocal and final decision to go out of the trucking business. The Compa- ny made no attempt to prove that the decision was eco- nomically motivated and it made no effort to accommo- date the drivers in finding other employment. All subse- quent efforts by the Union to bargain with Respondent were met with the response that the Company was no longer in the trucking business. Any suggestion that the unit which, after the termination of the drivers, consisted of only three shipper-receivers was not a unit appropri- ate for bargaining is not persuasive under these circum- stances. Respondent would be benefiting from its own wrongful conduct. CONCLUSIONS OF LAW 1. The Respondent, Hood Industries, Inc., and its wholly owned subsidiary, B & K Transportation, Inc., is a single employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Teamsters Local 25, a/w International Brotherhood of Teamsters Chauffeurs, Warehousemen & Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(1) of the Act by: (a) Coercively interrogating an employee concerning his union activity. (b) Threatening an employee that certain employees would lose their jobs because of their union activity. 4. Respondent violated Section 8(a)(3) and (1) of the Act by discharging its drivers, John Wharton, Irving Sweetser, Roger Morrison, Nils Swanson, and Paul Brown because of their union activity and by contracting out bargaining unit work because of the union activities of its employees. 5. Respondent violated Section 8(a)(5) and (1) of the Act by refusing and failing to bargain with the Union as the duly certified bargaining agent of "all full-time and regular part-time chemical drivers, truck drivers and shipper-receivers" employed by Respondent when it de- cided to subcontract the trucking operation, sell the equipment and discharge the drivers. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 7. Any other allegations have not been sustained. HOOD INDUSTRIS, INC. 601 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and take certain af- firmative action designed to effectuate the policies of the Act. Respondent violated Section 8(a)(3) and (1) of the Act by contracting out bargaining unit work and discharging employees. Board remedies attempt to put the parties in the position they would have been but for the unfair labor practice. Where an employer contracts out bargain- ing unit work and discharges employees in order to in- terfere with their statutory rights, it is appropriate to order the Employer to reinstate the employees with backpay and to discontinue the contracting out of the work that those employees had performed. The Board has not ordered such a status quo ante remedy in situa- tions where it would be punitive because it would cause undue economic hardship. Great Chinese American Sewing Company; Esprit de Corp., 227 NLRB 1670 (1977). In the instant case I do not believe that it would be an undue hardship for Respondent to resume its trucking operation. And Respondent has not shown that the eco- nomic burden of purchasing trucks and resuming its trucking operations would endanger the continued viabil- ity of Respondent. I therefore recommend that Respon- dent be ordered to reestablish its trucking operation, and to reinstate Wharton, Sweetser, Morrison, Swanson, and Brown and to make them whole for any loss of earnings and other benefits resulting from their discharges by pay- ment to each of them of a sum of money equal to the amount each normally would have earned as wages and other benefits from the date of his discharge to the date on which reinstatement is offered, less net earnings during that period. The amount of backpay shall be com- puted in the manner set forth in F. W. Woolworth Compa- ny, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Cor- poration, 231 NLRB 651 (1977).' In view of the seriousness of Respondent's violations, I recommend that Respondent be ordered to cease and desist from in any manner interfering with, restraining, or coercing employees in the exercise of rights guaran- teed to them in Section 7 of the Act.8 It is recommended that Respondent be ordered to pre- serve and, upon request, make available to the Board or its agents, for examination and copying, all payroll re- cords, social security payment records, timecards, per- sonnel records and reports, and all other records neces- sary to analyze the amount of backpay due. It is further recommended that Respondent be ordered to recognize and bargain with the Union as the exclusive collective-bargaining representative of the employees in the described bargaining unit: All full-time and regular part-time chemical drivers, truck drivers and shipper-receivers employed by the Employer at 14 Audubon Road, Wakefield, Massa- 7See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). e N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941); Boston Pet Supply, Inc., 227 NLRB 1891 (1977). chusetts, but excluding all office clerical employees, production and maintenance employees, managerial employees, professional employees, guards and su- pervisors as defined in the Act. Upon the foregoing findings of fact, conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER9 The Respondent, Hood Industries, Inc., and its wholly owned subsidiary B & K Transportation, Inc., Wakefield, Massachusetts, its officers, agents, successors, and as- signs, shall: I. Cease and desist from: (a) Coercively interrogating employees concerning union activities. (b) Threatening employees that they would be dis- charged because of their union activity. (c) Discharging or otherwise discriminating against any employee because of the union activities of its em- ployees. (d) Contracting out bargaining unit work because of the union activities of its employees. (e) Refusing to recognize and bargain with Teamsters Local 25, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bargaining representative of its employees in the unit described herein in the Section of this Decision entitled, "The Remedy." (f) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaran- teed to them in Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Reestablish its own trucking operation. (b) Offer John Wharton, Irving Sweetser, Roger Mor- rison, Nils Swanson, and Paul Brown immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, and make them whole for their loss of earnings in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (d) Upon request, recognize and bargain with Team- sters Local 25, a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the exclusive collective-bargaining representative of its employees in the bargaining unit set forth above, a In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. HOOD INDUSTRIES, INC. 603 with respect to wages, hours, and other terms and condi- tions of employment; and, if an understanding is reached, embody such understanding in a signed agreement. (e) Post at its Wakefield, Massachusetts, place of busi- ness copies of the attached notice marked "Appendix." ' Copies of said notice, on forms provided by the Regional 'o In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." Director for Region 1, after being duly signed by Re- spondent's authorized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 21, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith.