Phillips Transfer Co.

In the Matter of ALTON MILLER, AN INDIVIDUAL, DOING BUSINESS AS PHILLIPS TRANSFER COMPANY and TRUCK DRIVERS LOCAL #89, IN- TERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA (A. F. OF L.) Case No. 11-C-1°56.-Decided July 15, 191.6 Mr. Arthur R. Donovan, for the Board. Mr. Bodes K. Myers, by Mr.. Leland H. Logan, both of Bowling Green, Ky., for the respondent. Mr. Robert D. Malarney, of Indianapolis, Ind., for the Union. Mr. Angelo J. Fiurmara, of counsel to the Board. DECISION AND ORDER On May 13, 1946, Trial Examiner Bennett issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, exceptions to the Intermediate Report were filed by the respondent. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions of the respondent, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Alton Miller, an individual, doing business as Phillips Transfer Company, Bowling Green, Ken- tucky, and his officers, agents, successors, and assigns shall : 1. Cease and desist from : 69 N. L. R. B., No. 62. 493 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Discouraging membership in Truck Drivers Local #89, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (A. F. of L.), or any other labor organization of his employees, by discharging or refusing to reinstate any of his employees, or by discriminating in any other manner in regard: to their hire or tenure of employment, or any term or condition of their employment ; (b) Refusing to bargain collectively with Truck Drivers Local #89, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (A. F. of L.), as the exclusive representative of all truck drivers and helpers of Alton Miller, an individual, doing business as Phillips Transfer Company, Bowling Green, Kentucky, exclusive of office and clerical employees, foremen, supervisors, and all other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action ; (c) In any other manner interfering with, restraining, or coercing his employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Truck Drivers Local #89, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (A. F. of L.), or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Sec- tion 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Offer to each of the employees whose names appear in Appendix B of the copy of the Intermediate Report, attached hereto, immediate and full reinstatement to his former or a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges, in the manner set forth in Section V of said Intermediate Report, entitled "The remedy"; (b) Make whole each of the employees whose names appear in. Appendix B of said Intermediate Report for any loss of pay he may have suffered by reason of respondent's discrimination against him, in the manner set forth in Section V of said Intermediate Report, entitled "The remedy"; (c) Upon request, bargain collectively with Truck Drivers Local #89, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America (A. F. of L.), as the exclusive representa- tive of all his employees in the aforesaid appropriate unit, with respect to rates of pay, wages, hours of employment, and other conditions of employment ; PHILLIPS TRANSFER COMPANY 495 (d) Post at his place of business at Bowling Green, Kentucky, copies of the notice attached to the Immediate Report, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being duly signed by the respond- ent or his representative, be posted by the respondent immediately upon receipt thereof and maintained by him for sixty (60) consecu- tive days thereafter, in conspicuous places in his place of business, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (e) Notify the Regional Director for the Eleventh Region in writ- ing, within ten (10) days from the date of this Order, what steps respondent has taken to comply herewith. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. INTERMEDIATE REPORT Mr. Arthur R. Donovan, for the Board. Mr. Bodes K. Myers, by Mr. Leland H. Logan, both of Bowling Green, Ky., for respondent. Mr. Robert D. Malarney, of Indianapolis, Ind., for the Union. STATEMENT OF THE CASE Upon a first amended charge duly filed on March 12, 1946,' by Truck Drivers Local #89, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, A. F. of L., herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Eleventh Region (Indianapolis, Indiana), issued its complaint dated March 13, 1946, against Alton Miller, an individual, doing business as Phillips Transfer Company,' herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, accompanied by notice of hearing thereon, were duly served upon respondent and the Union. With respect, to the unfair labor practices, the complaint alleged in substance that respondent: (1) from on or about January 6, 1946, and at all times there- after, (a) advised, urged, threatened, and warned his employees to refrain from becoming or remaining members of the Union, (b) made disparaging and derog- atory remarks to his employees concerning the Union, and (c) advised his employees that they should not remain in the Union; (2) on or about January This notice, however, shall be, and it hereby is, amended by striking from the first paragraph thereof the words "THE RECOMMENDATIONS OF A TRIAL EXAMINER" and substituting in lieu thereof the words "A DECISION AND ORDER." I The original charge was filed on January 30, 1946. 2 At the hearing, the complaint was amended with respect to the name of the respondent. 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11, 1946, discharged 16 named employees 3 and has since failed and refused to reinstate them because of their membership in and activities in behalf of the Union; (3) on or about January 7, 1946, and at all times thereafter refused and continues to refuse to bargain collectively with the Union as the exclusive representative of the employees in an appropriate unit although the Union rep- resented a majority of the employees therein; and (4), by the aforesaid acts, engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1), (3), and (5) of the Act. Pursuant to notice, a hearing was held on April 16 and 17, 1946, at Bowling Green, Kentucky, before the undersigned Trial Examiner, Martin S. Bennett, duly designated by the Chief Trial Examiner. The Board, respondent, and the Union were represented by counsel. At the commencement of the hearing, re- spondent filed a Plea to Jurisdiction, alleging that he was not engaged in interstate commerce, and moving that the complaint be dismissed. The motion was denied with leave to renew. Respondent then filed a Request for Bill of Particulars. The motion was granted in part and denied in part. Respondent filed an answer which, as amended at the hearing, admitted some of the allegations of the com- plaint with respect to the nature of his business and denied every other allegation of the complaint. Full opportunity was afforded all parties at the hearing to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. During the hearing, motions by counsel for the Board to conform the pleadings to the proof with respect to formal matters were granted. Counsel for the Board, respondent, and the Union argued -orally before the under- signed at the conclusion of the hearing and were afforded an opportunity to file briefs. Briefs have been received from respondent and the Union. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACr 1. THE BUSINESS OF THE ]RESPONDENT Respondent, Alton Miller, doing business as Phillips Transfer Company, is engaged in the business of receiving, hauling, and delivering freight in and around Bowling Green, Kentucky.' Under a contract with the Louisville & Nashville Railroad, which operates in 13 States and through Bowling Green, respondent picks up and delivers to the railroad's freight depot at Bowling Green, from in and about Bowling Green, freight destined for shipment over the Louisville & Nashville lines ; under the same contract, respondent picks up at the freight depot and delivers in and around Bowling Green incoming freight brought to Bowling Green by the railroad. During the 12-month period prior to the instant hearing, respondent and his predecessor a picked up and delivered to the railroad freight depot approximately 20 percent of all freight shipped by the railroad from Bowling Green. Approxi- 8 Their names are : Lucien Marrow LeRoy Taylor Frank Lawson John Huffman Ewing Skaggs John L. Potter Robert Glass Paul E. Brooks Winfred Hay Finis Bibbs Walter Marrow Malcue Carson Clifford Lawrence Hess Stovall Evans Smith Roosevelt Pearson ° Miller also operates a taxicab company and a bus company in Bowling Green ; they are not involved in this proceeding. s The business was operated by Roy T. Phillips for 27 years. As is hereinafter set forth in more detail, the business was transferred to Miller by Phillips on the morning of January 10, 1945. There has been no substantial change in the nature of operations since that date. PHILLIPS TRANSFER COMPANY 497 mately 87 percent of all freight forwarded from Bowling Green by the railroad was shipped to points outside the State of Kentucky. A sampling of the railroad records indicates that during the months of January, February, March and April 1946, shipments carried by the railroad from its Bowling Green station were composed as follows : January February March April 1-13 Number of interstate shipments______ 1415 1802 1996 1002 Number of intrastate shipments----__ 266 231 296 6128 During the 12-month period prior to the instant hearing , respondent and his predecessor picked tip and delivered from the railroad freight depot approxi- mately 70 percent of all incoming freight brought to Bowling Green in less than carload lots by the railroad. Approximately 70 percent of all incoming freight brought to Bowling Green by the railroad was shipped from points outside the State of Kentucky? A sampling of the railroad records for 4-day periods during the first 4 months of 1946 indicates that shipments received in Bowling Green in less than carload lots were composed as follows: January February March April 21-24 19-22 115 10-13 Number of interstate shipments---------- 231 289 225 235 Number of intrastate shipments---------- 89 123 117 8108 Upon the entire record, the undersigned finds that respondent is engaged in commerce within the meaning of the Act.' II. THE ORGANIZATION INVOLVED Truck Drivers Local .# 89, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees of respondent. III. THE UNFAIR LABOR PRACTICES A. The discriminatory discharges ; the refusal to bargain 1. The appropriate unit The complaint alleges that all truck drivers and helpers, exclusive of office and clerical employees, foremen, supervisors, and all other supervisory em- ployees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, con- stitute a unit appropriate for the purposes of collective bargaining. The record indicates that respondent employs, in addition to truck drivers and helpers, one office clerk and one supervisory employee who manages the business. The undersigned finds that the above-described unit, at all 'times material herein, constituted and now constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section. 9•.(b) of the Act. e These figures are typical of the monthly breakdown and total for the 12-month period prior to the instant hearing. I This figure includes both carload and less than carload lots. Respondent does not handle carload shipments. 8 See footnote 6, supra. Respondent contended that his operations did not affect commerce and were not subject to the jurisdiction of the Board. This contention is rejected. See N. L. R. B. V. Balti- more Transit Company, 140 F. (2d) 51 (C. C. A. 4), cert. den. 321 U. S. 795 ; Matter of Peerless Stages, Inc., 62 N. L. It. B. 1514 ; and Matter of Carroll's Transfer Company, 56 N. L. It. B. 935. 701592-47-col, 69--33 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Representation by the Union of a majority in the appropriate unit The complaint alleges that on January 7, 1946, and at all times thereafter, respondent refused to bargain collectively with the Union as the exclusive repre- sentative of the above-described employees in the appropriate unit. In support of the allegation that the Union represented a majority of the employees in the appropriate unit, counsel for the Board introduced in evidence 16 signed appli- cations for membership in the Union." All bore the date of January 6, 1946, and also bore the counter-signature of Assistant Business Agent Woerner of the Union. There were 20 employees in the appropriate unit during the week ending January 12" Woerner testified that he was present at a meeting of the Union held on Janu- ary 6, 1946, and that 17 of respondent's employees attended. He personally saw each of the respective 16 signers sign or print his name and he then counter- signed the application blanks with his own signature. Four of the employees whose names appear on the application forms were called as witnesses for the Board. Three, John Huffman,` John L. Potter, and Roosevelt Pearson, testified that they attended a meeting of the Union on January 6, 1946, and signed the application forms bearing their respective signatures. Walter Marrow, who is unable to read or write, testified that he attended the meeting of January 6 and, it being his intention to apply for membership in the Union, asked one of those present to sign his, Marrow's, card for him and that this was done. Roy T. Phillips, who, as hereinafter found, owned and operated the business until Janu- ary 10, testified that various employees told him that the Union represented them and that lie never questioned the union majority in the unit of 20. The sixteen cards, referred to above, were offered and received in evidence at the hearing. Respondent, having the opportunity to inspect and compare the signatures thereon against his own records, made no attack on the authenticity of the signatures, although the 16 employees were available to testify. Respondent contends, however, that the application for membership in the Union bearing the name of Walter Marrow was not a valid application inasmuch as Marrow did not personally sign it. As heretofore noted, Marrow testified that he was present at the meeting of the Union held on January 6; that he is unable to read or write ; that he intended to apply for membership in the Union on that occasion; and that lie authorized one of those present to sign his, Marrow's, name to the application for membership. In view of Marrow's credible and uncontroverted testimony, the undersigned rejects respondent's contention and finds that the application bearing Marrow's name is a valid application for membership in the Union" Respondent further contends that the Union did not represent a majority of the employees in the appropriate unit, because the 16 applicants for membership had merely applied for membership in the Union, had not actually been ac- cepted into membership by the Union, and had not paid dues to the Union. It is well settled that applications for membership in a union may be counted in determining whether or not it has a majority for the purposes of collective bar- gaining, and this is true although no dues may have been paid by the respective applicants. Respondent's contention is rejected." 10 On one of the forms, that of Clifford Lawrence, the signer printed his name. 11 As is hereinafter set forth, the 16 applicants for membership were discharged on January 11. At the time of the hearing there were approximately 14 employees in the appropriate unit. 12 Also referred to as Hoflrinan. 11 See flatter of Robcsou Cutlery Conipanit, Inc., 67 N. L. R. 11. 481. '' N. L. R. B. v. Chicago Apparatus Coinpanlj, 116 F. (241) 53 (C. C. A. 7) ; Matto- of consolidated Machine Tool Corporation, 67 N. L. It. P. 737. PHILLIPS TRANSFER COMPANY 499 In view of the above circumstances and in view of the testimony disclosing the circumstances under which the cards were signed and obtained, the under- signed finds that the 16 above-described application forms constitute valid designations of the Union. The undersigned finds that on January 6, 1946, and at all times thereafter, the Union was and now is the duly designated representative of a majority of the employees in the aforesaid appropriate unit, and by virtue of Section 9 (a) of the Act, the Union at all such times was and now is, the exclusive representa- tive of all the employees in the aforesaid.unit for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment, or other conditions of employment. 3. Sequence of events Prior to January 10, 1946, Roy T. Phillips had operated the Phillips Transfer Company for approximately 27 years. There is no evidence in the record of any organization among his employees prior to the campaign conducted by the Union. As heretofore set forth, on January 6, 1946, 17 of respondent's truck drivers and helpers attended a regular meeting of the Union and 16 applied for mem- bership therein. On the morning of January 7, Assistant Business Agent Woerner of the Union, together with employee Roosevelt Pearson and another business agent of the Union, Gregory, called upon Phillips. Werner told Phillips that the Union represented a majority of his employees and wanted to negotiate a contract. Phillips replied that he was unwilling to negotiate with the Union and that he would sell his business rather than bargain with the Union. Woerner informed Phillips "that he was in violation" of the Act and left 15 Phillips testified that he did not question the union majority on January 7, but decided that he would retire rather than deal with the Union. Later that day, he spoke to his employees and told them that he had no objection to the Union but that he did object to a closed shop, and that the employees did not have to join the Union in order to obtain a wage increase." The employees informed him that a majority had applied for membership in the Union." On the morning of January 9, Phillips approached Alton Miller, the respond- ent, at the latter's taxicab office located directly across the street from the Phillips Transfer Company premises. He offered to sell the business to Miller, explaining, when Miller questioned him, that his reason for selling was because the Union had "moved in on" him. Miller stated that he would consider the matter and at about 11: 01 a. in., accepted the offer and gave Phillips a check. Miller told Phillips, as the latter testified, that he "didn't give a damn" about the attempt of "Pat Ansboury" [business agent of the Union] to "take over now." The parties went to the otfice of a local attorney who drew up a bill of sale of the business 18 The bill of sale provided that Phillips would continue to operate the business until January 12, 1946, at which time he would turn over to Miller "full and com- 15 This finding is based on the testimony of Woerner, which Phillips admitted was correct. This finding is based upon 17ie testimony of Phillips. The complaint did not allege, and no findings have been made with respect to, the com- mission of unfair labor practices by Phillips. '" Findings as to the events on January 9 and January 10, except where otherwise indicated, are based upon the testimony of Phillips and Miller, which is in substantial agreement. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plete possession of the property herein and the title" . . .'A The parties also agreed that Phillips would, until January 31, advise Miller concerning the prob- lems of the business. On the morning of January 10, there was considerable unrest among the employees, who, as Phillips testified, were disturbed over the impending transfer of the business. Phillips went across the street to Miller 's taxicab office and discussed the matter with him. Finally, at about 9 a. at., Miller said to Phillips, as Miller testified , "I will take the business over now." Phillips at once returned to the premises of the Phillips Transfer Company. He assembled the drivers and helpers, paid them off, and informed them that the business was sold to Miller and that they were no longer in his, Phillips', employ. At about 9:30 a. in.. Miller entered the premises and took control of the business. He admitted that he regarded himself as the owner of the business from about 10 a. in. that day, January 10 2° There is a conflict of testimony as to what transpired in the plant after Miller took control of the business at approximately 10 a. in. Employees John Huffman, Walter Marrow, John Potter, and Roosevelt Pearson, whose names appear in the complaint as dischargees , all testified that Miller told them there were no jobs for them; the parties stipulated that the other 12 employees whose names also appear in the complaint would testify similarly, if called as witnesses . Huffman, as he testified, summoned Calvin Stout, steward for the Union in another concern in the city, who conferred with Miller ; at about 12: 30 or 1: 00 Miller indicated that he would pay the men a certain wage rate and he then put them back to work. Phillips and Miller each testified that the men refused to go to work for Miller after being paid off by Phillips , but admitted that the inen, around noon , returned to work. In view of the foregoing , it is clear, and the undersigned finds, that.the men resumed work that afternoon and worked the rest of the day. The following day, Friday, January 11, they reported at the usual time and commenced their respective duties. At about 10: 00 a. in. on January 11, Woerner, together with Business Agent Grimes of the Union, and another union member , Butler, met Miller and the latter's attorney , Rodes Myers, at Myers ' office . Woerner informed Miller and Myers that the Union represented a. majority of respondent's employees and sub- mitted a proposed contract. Miller did not challenge the union majority but stated that he was willing to bargain with the men but not with the Union. He then offered to negotiate with the Union if they would agree not to organize the employees of his two other concerns for a period of one year 21 Woerner agreed to this and the meeting recessed for lunch and to give Myers an opportunity to study the contract S2 submitted by the Union." 19 The bill of sale was not introduced in evidence. Portions of the bill of sale were read into the record by agreement of the parties and findings as to its provisions are based thereupon. The parties stipulated that the bill of sale was'entered into on January 9. ^ Contrary to his express testimony above, respondent contend ; that he did not take control of the business until Saturday , January 12 . In view of the testimony and conduct of both Miller and Phillips, as set forth above, the undersigned finds that although the Bill of Sale provided for the transfer of the business on January 12, the business was actually transferred on the morning of January 10, the employees were so informed, and Miller thereupon became the employer. 21 This was denied by Miller . His denial is rejected as it is inconsistent with his subse- quent testimony and conduct as hereinafter set forth. 22 On leaving the meeting, Miller told Hershel Wright, one of his taxi drivers, as the latter testified, that he could close down the business "if I have to" and that he would close it on Saturday. 23 This finding is based on the testimony of Woerner. Myers did not testify. PHILLIPS TRANSFER COMPANY 501 The parties met again after lunch. Myers then stated that the picture had changed and that the Louisville and Nashville Railroad had cancelled its hauling contract with the respondent 24 Miller stated that pressure had been brought to bear by his bank and he was not free to negotiate with the Union. Woerner informed Miller that he was violating the Act by refusing to bargain, and that the Union intended to organize all of respondent's enterprises. Woerner further indicated that the Union had already received membership applications from a number of Miller's taxicab company employees. Myers then advised Miller that it was possible for him to remove the business from interstate commerce and thus not be required to negotiate with the Union, by dispensing with some of his operations. Myers added, as Woerner testified, that by so doing Miller "would come under the State Law and he could fire every man there that signed the application for membership." As an alternative, Myers advised Miller that "if he didn't want to negotiate with" the Union, "- the only thing for him to do was to close the business down." Miller then stated that "the primary reason for his purchase of the business" was to obtain the building for use as a new car agency and that "he was going to close down and he wouldn't operate any more with scabs on the truck." The conference broke up and the union representatives departed for Louisville.2° Miller left the meeting and immediately told his cab driver, Hershel Wright, as the latter testified, "I wouldn't sign it [the contract] because it isn't fair to the rest of my workers." 20 Miller told Wright that the Union contended it had signed up 27 employees of his taxicab company and that he, Miller, didn't believe it. He instructed Wright to assemble the taxicab company employees, "as he was going to talk to every man personally to see if he had signed a paper." Miller then addressed the taxicab company employees and questioned them whether or not they had applied for membership in the Union ; they replied that they had not. He then told Wright, with reference to the Phillips Transfer Company, "I will just close it down and see what we can do tomorrow [January 12]." Miller returned to the Phillips Transfer Company office and told Phillips that he was shutting down the business and to so notify his customers. As the 16 employees named in the complaint returned from their duties that afternoon they were discharged by Miller and given their checks 27 Miller, as he paid them off, told the men, as Potter, Pearson and Huffman testified, that he didn't mind their joining the Union but that by so doing they would cause the cab drivers to sign up with the Union" 24 In addition to the pick-up and delivery contract described in Section I of the Report, Phillips had another contract with the railroad for over-the-road hauling ; due to a techni- cality, this latter contract was not assigned to Miller along with the other contract. 25 These findings are based upon the testimony of Woerner and Miller . Although Miller denied that he refused to sign a contract , elsewhere in his testimony he admitted that he could not get together with the Union and that he told them he had decided not to sign. In addition, after the meeting, he told taxicab driver Hershel Wright, as the latter testified , that he refused to sign a contract with the Union . His denial is rejected. 20 Wright, who testified for respondent, was then employed by Miller's taxicab company. He had left respondent's employ prior to the date of the instant hearing. 22 Miller also paid off several others in the unit at that time. 28 The parties stipulated that 12 other dischargees named in the complaint would testify similarly. Miller testified that he did not discharge the drivers and helpers but that they quit their jobs on the afternoon of January 11. Follis Anthony and Bud Henry, who had not applied for membership in the Union and had been retained in respondent 's employ after January 11, testified that Miller did not discharge any of the drivers and helpers on January 11. Hershel Wright testified that he was in the Phillips Transfer Company office on the after- noon of January 11, that, the men returned early from their routes that day, and that the 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD That evening, Woerner telephoned Miller and asked to meet him for further discussion. Miller hung up without replying. On Saturday, January 12. Miller, as he testified, changed his mind and decided to reopen his business. On -Monday, January 14, Miller hired a number of new employees who as of the (late of the hearing were still in respondent's employ. On Tuesday, January 15, the 16 disehargees named in the complaint, all of whom had applied fors membership in the Union on January 6, 1946, went to respondent's office and asked for their jobs. Miller refused to reinstate them and told them that they had no jobs 2D On March 6, 1946, Woerner wrote to Miller and again informed him that the Union represented a majority of respondent's employees and stood ready and willing to bargain in good faith. The letter further stated that the 16 em- ployees discharged by Miller on January 11, 1946, were, and had been since their discharge, ready and willing to return to their jobs. No reply was received by the Union. At the bearing, Driller testifi,,,l that lie w:es unli•illing to negotiate a contract with the Union and that he would not reinstate the men because they had walked off their jobs. 4. Summation and concluding findings (a) The refusal to bargain Respondent contends that he may not be held responsible for any unfair labor practices occurring prior to January 12, 1946, the effective date contained in the Bill of Sale for the sale of the business . As heretofore found, Phillips and Miller mutually agreed to accelerate the provisions of the Bill of Sale. They agreed that Phillips would turn over the business to Miller on the morning of January 10 and this was done. Under the circumstances and upon the entire record, the undersigned finds that there was a de facto transfer of the business by Phillips to Miller on the morning of January 10, 1946. Assuming, as respondent contends , that he acquired no legal interest in the business until January 12, 1946, nevertheless , in view of his assumption of control thereof by mutual agree- ment with Phillips on January 10, he became an employer within the meaning of Section 2 (2) of the Act , and, as an employer , was subject, on January 11 as well as thereafter, to the obligations imposed by the Act. On the morning of January 11, 1946, the Union asked respondent to recognize it as the collective bargaining representative of his employees and also submitted a proposed contract . This did not come to respondent as a surprise , since Phillips had informed him on January 9, that he, Phillips , was selling the business because the Union was organizing the employees . On that occasion, Miller replied, as Phillips testified , "he didn't give a damn." Nor did respondent challenge the Union's statement that it represented , as it did, a majority of respondent's em- men then quit their jobs and were paid off by Miller. Phillips also testified that the men returned from their routes prior to the usual check-in time. In view of Miller's admission that when he left the conference with the representatives of the Union on the afternoon of January 11, he intended to close down the business; Phillips' and Wright's testimony that Miller told them he was closing down the business on January 11 ; and Phillips' testimony that he thought he had the checks ready for the men when they came in Friday, the undersigned rejects the testimony of Miller, Wright and Phillips where inconsistent with the findings of the undersigned that the men were discharged. Anthony and Henry had a very poor recollection of almost all matters con- cerning which they testified. On the other hand, Potter, Pearson and Huffman testified in a clear and forthright manner and had an excellent recollection of the events which trans- pired. The testimony of Anthony and Henry is rejected. 29 Bud Henry and Follis Anthony, as heretofore indicated, were retained in respondent's employ. PHILLIPS 'TRANSFER COMPANY 503 ployees. On the afternoon of January 11, Miller informed the union representa- tives that lie was not free to negotiate a contract with the Union as pressure had been brought to bear upon hint by his banker. He then stated that the only course of conduct for him, Miller, to follow was to shut down the business. He returned to his plant and discharged the 16 employees who had applied for membership in the Union on January 6. Two others, who had not applied for membership in the Union, and who testified for respondent in the instant pro- ceeding, were retained. Later that evening, Woerner telephoned Miller and asked to meet him for further discussion. Miller hung up on him. On Monday, January 14, Miller hired a group of new employees who had not previously been employed by him. On March 6, Woerner wrote to Miller offering again to bargain with respondent. Respondent did not reply, although he received the letter. At the instant hearing, on April 16, Miller testified that he was unwilling to bargain with the Union. In view of the foregoing and upon the entire record, it is obvious and the undersigned finds, that on January 11, 1946, and at all times thereafter, respondent has refused to bargain collectively with the Union as the exclusive representa- tive of his employees in an appropriate unit with respect to rates of pay, wages, hours, and other conditions of employment, and that respondent has thereby interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed in Section 7 of the Act. (h) The discriminatory discharges Respondent, by his own admission, returned to the plant on the afternoon of January 11, 1946, with the intention of closing it down so as to avoid bargaining with the Union. It has heretofore been fount that he proceeded to discharge the 16 employees who had applied for membership in the Union on January 6. He further indicated his motive in effecting the discharges by stating that he was letting the men go since by joining the Union they would cause his taxicab drivers to apply for membership in the Union. Not only did lie on January 14 hire a number of new employees to replace the dischargees but he retained in his employ at least 2 of the original employees who had not applied for membership in the Union on January 6. On Tuesday, January 15, the 16 dischargees went to the premises of respondent and asked to be reinstated; he refused, stating that they had no jobs. Accordingly, and upon the entire record, the undersigned finds that the 16 employees whose names appear in Appendix B were discharged on January 11, 1946, and thereafter were refused reinstatement by respondent, Alton Miller, doing business as Phillips Transfer Company, because of their membership in and activities on behalf of the Union. Respondent, by discharging these employees and thereafter refusing to reinstate them, has discriminated against them in regard to their hire and tenure of employment, thereby discouraging member- ship in the Union and interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of respondent set forth in Section III, above, occurring in con- nection with the operations of respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing ccmmerce and the free flow of commerce. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V. THE REMEDY Since it has been found that respondent has engaged in and is engaging in unfair labor practices affecting commerce, it will be recommended that he cease and desist therefrom and take certain affirmative action which the undersigned finds will effectuate the policids of the Act. As found above, upon being presented by the Union with a request for recog- nition, respondent, without questioning the union majority, flatly refused to recognize the Union or to negotiate a contract with it. On the contrary, he declared that lie would shut ihwn the business. He returned to his plant and proceeded to discharge each and every one of his employees who had applied for membership in the Union but five days previously, specifically stating, as hereto- fore found, that their applying for membership in the Union would have a similar effect upon the employees of his other enterprises. Although requested again, on several occasions, by the Union to negotiate, he ignored these requests, although he at no time questioned the union majority in the unit. In addition, he promptly hired other employees to replace the 16 men discriminatorily discharged and refused to reinstate them when they asked for their jobs. Because of respondent's unlawful conduct and its underlying purpose, the undersigned is convinced that the unfair labor practices heretofore found are persuasively related to the other unfair labor practices proscribed by the Act and that danger. of their commission in the future is to be anticipated from respondent's conduct in the past.30 Unless the order is coextensive with the threat, the preventive purpose of the Act will be thwarted. In order, therefore, to make more effective the interdependent guarantees of Section 7, to prevent a recurrence of unfair labor practices, and thereby minimize industrial strife which burdens and obstructs commerce, ayd thus effectuate the policies of the Act, the undersigned will recommend that respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 .of the Act. It has been found that respondent discriminated with respect to the hire and tenure of the 1.6 employees whose names appear in Appendix B. Miller testified that as of the date of the instant hearing, respondent was operating with 14 truck drivers and helpers instead of the 20 employed at the time of the discharges. No other evidence of a reduction of operations was introduced by respondent. The remedy which the undersigned will recommend will provide for the con- tingency of a bone fide and legitimate reduction in operations. The undersigned will recommend that respondent offer to each of the em- ployees whose names appear in Appendix B full and immediate reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. This reinstatement shall be effected in the following manner. All employees hired since, and including, January 1.1, 1946, shall, if necessary, be dismissed by respondent to provide employment for those employees to be offered, and who shall accept, reinstatement. If, there- upon, there is not sufficient employment immediately available for the employees to be offered, and who shall accept, reinstatement, then all positions shall be distributed by respondent among the employees presently working, excluding those dismissed, and the employees to be offered, and who shall accept, rein- statement, in accordance with respondent's usual method of reducing his force, without discrimination against any employee because of his union affiliation or activities, following such system of seniority or other non-discriminatory pro- cedure as has been heretofore applied by respondent in the conduct of his busi- ness. Those employees remaining after such distribution, for whom no em- ployment is immediately available, shall be placed on a preferential list, with 80 N. L. R. B. v. Express Publishing Company, 312 U. S. 426. PHILLIPS TRANSFER COMPANY 505 priority determined among them in accordance with such system of seniority or Cher non-discriminatory procedure as has heretofore been applied by respond- ent in the conduct of his business, and thereafter, in accordance with such list, he offered reinstatement by respondent to their former or substantially equiv- alent positions as such employment becomes available and before other persons are hired for such work. 'i`he undersigned will also recommend that respondent make whole each of the employees named in Appendix B for any loss of pay he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to the amount which lie normally would have earned as wages from the date of his discharge to the date of offer of reinstatement or place- ment upon the above-described preferential list, less his net earnings during that period.61 In addition, having found that respondent has refused to bargain collectively with the Union as the exclusive representative of the employees in an appro- priate unit, the undersigned will recommend that respondent, upon request, bargain collectively with the Union. Upon the basis of the abuve smdings of fact, and upon the entire record, the undersigned makes the following CONCLUSIONS OF Lxw 1. Truck Drivers Local #89, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, A. F. of L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing his employeees in tie exercise of the rights guaranteed in Section 7 of the Act, respondent has engaged in, and is engaging in, unfair labor practices, within the meaning of Section 8 (1) of the Act. 3. By discriminating in regard to the hire and tenure of employment of Lucien Marrow, John Huffman, Robert Glass, Finis Bibbs, Clifford Lawrence, Evans Smith, LeRoy Taylor, Ewing Skaggs, Paul E. Brooks, Walter Marrow, Hess Stovall, Roosevelt Pearson, Frank Lawson, John L. Potter, Winfred Hay, and Malcue Carson, respondent has engaged in, and is engaging in, unfair labor practices, within the meaning of Section 8 (3) of the Act. 4. All truck drivers and helpers of Alton Miller, individually, and doing business as Phillips Transfer Company, exclusive of office and clerical employees, fore- men, supervisors, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. Truck Drivers Local #89, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, A. F. of L., was, on January 6, 1946, and at all times thereafter has been and is, the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 6. By refusing on January 11, 1946, and at all times thereafter, to bargain collectively with Truck Drivers Local #89, International Brotherhood of Team- 31 By "net earnings" is meant earnings less expenses, such as for transportation; room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county, municipal, or other work-relief projects shall be considered as earnings. See Republic Steel Corporation v. N. L. R. B., 311 U. S. 7. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., as the exclusive representative of all employees in the aforesaid appropriate unit, respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) othe Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that Alton Miller, individually, and doing business as Phillips Transfer Company, Bowling Green, Kentucky, his officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Truck Drivers Local #89, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., or any other labor organization of his employees, by discharging or refusing to reinstate any of his employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of employment ; (b) Refusing to bargain collectively with Truck Drivers Local #89, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., as the exclusive representative of all truck drivers and helpers of Alton Miller, individually, and doing business as Phillips Transfer Companyaffil owling Green, Kentucky, but excluding office and clerical employees, foremen supervisors ; (c) In any other manner interfering with, restraining, or coercing his em- ployees in the exercise of the right to self-organization, to form labor organiza- tions, to join or assist Truck Drivers Local #89, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Offer to each of the employees whose names appear in Appendix B of this Report immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges, in the manner set forth in the Section above-entitled "The remedy" ; (b) Make whole each of the employees whose names appear in Appendix B of this Report for any loss he may have suffered by reason of respondent's discrimination against him, in the manner set forth in the Section above-entitled "The remedy" ; (c) Upon request, bargain collectively with Truck Drivers Local #89, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. F. of L., as the exclusive representative of all his employees in the aforesaid appropriate unit; (d) Post immediately at his place of business at Bowling Green, Kentucky, copies of the notice attached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being duly signed by respondent or his representative, be posted by re- spondent immediately upon receipt thereof and maintained by him for sixty (60) consecutive days thereafter, in conspicuous places in his place of business, including all places where notices to employees are customarily posted. Reason- PHILLIPS TRANSFER COMPANY 507 able steps shall be taken by respondent to insure that said notices are not altered, defaced, or covered by any other material ; (e) Notify the Regional Director for the Eleventh Region (Indianapolis, In- diana ), in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps respondent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, respondent notifies said Regional Director in writing that he has complied with the foregoing recommendations, the National Labor Relations Board issue an order requiring respondent to take the action aforesaid. " As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended, effective November 27, 1945, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all mo- tions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing within ten (10) days from the date of the order transferring the case to the Board. Dated May 13, 1946. MARTIN S. BENNETT, Trial Examiner. "APPENDIX A" NoTICE To AI.I. EicPLoYEEs Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist TRUCK DRIVERS LOCAL #89, INTER- NATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE- HOUSEMEN AND HELPERS OF AMERICA, A. F. of L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent positions, in the manner set forth in the Trial Examiner's Intermediate Report, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. WE WILL BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, hours of employment or other conditions of employment, and if an understanding is reached, embody such 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD understanding in a signed agreement . The bargaining unit is : All truck drivers and helpers , exclusive of office and clerical employees, foremen, supervisors , and all other supervisory employees , with authority to hire, promote, discharge , discipline, or otherwise effect changes in the status of employees, or effectively recommend such action. Lucien Marrow LeRoy Taylor Frank Lawson John Huffman Ewing Skaggs John L. Potter Robert Glass Paul E. Brooks Winfred Hay Finis Bibbs Walter Marrow Malcue Carson Clifford Lawrence Hess Stovall Evans Smith Roosevelt Pearson All our employees are free to become or remain members of the above-named union or any other labor organization. Ai'e will not discriminate in regard to hire or tenure of employment or my terra or coildition of employmneOt against any employee because of membership in or activity on behalf of any such labor organization. ALTON MILLER, doing business as PHILLIPS TRANSFF.n COMPANY Employer Dated----------------- By------------------------------------------------- (Itepresentative) (Title) NoTF-: Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement upon application in accord- ance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. "APPENDIX B" Lucien Marrow LeRoy Taylor Frank Lawson John Huffman Ewing Skaggs John L. Potter Robert Glass Paul E. Brooks Winfred Hay Finis Bibbs Walter Marrow Malcue Carson Clifford Lawrence Hess Stovall Evans Smith Roosevelt Pearson