Genova Express Lines, Inc.

GENOVA EXPRESS LINES, INC Genova Express Lines, Inc., and Genova Tansport, Inc. and Teamsters Local 500, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 4-CA-9257, 4-CA- 9409, 4-CA-9413, 4-CA-9667, and 4-RC-13165 September 24, 1979 DECISION, ORDER, AND CERTIFICATION OF REPRESENTATIVE BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPIIY On May 11, 1979, Administrative Law Judge Thomas A. Ricci issued the attached Decision in this proceeding. Thereafter, Petitioner, Respondent, and the General Counsel filed exceptions and supporting briefs. 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, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order, as modified herein.3 I The General Counsel excepts that the Administrative Law Judge failed to rule on several 8(a)(l) allegations. First, he argues that Genova Transport violated the Act because its secretary asked employee Rem Sise. "Rem., what do you think about the Union?" Nothing further was said when Sise re- sponded that he preferred not to discuss it. These bare facts are not sufficient for us to conclude that Respondent Genova Transport, Inc., coercively inter- rogated an employee concerning his union activities. Second, the General Counsel argues that uncontroverted testimony establishes that while em- ployee Feller was waiting to take a load Joseph Genova, Sr. (who was de- ceased at the time of the hearing), said, "If they get in your way out there, run them over" (apparently referring to strikers). Nothing more was said when Feller offhandedly replied that he would not run over his friends. In these circumstances we do not conclude that Genova. Sr., "ordered" Feller to run over his fellow employees or that Feller reasonably would have been restrained by the statement. These allegations are hereby dismissed. We find it unnecessary to reach the remaining allegations because even if found the remedy would be unaltered. Respondent Genova Express excepts to the requirement of an offer of reinstatement in the notice, inasmuch as it made an unconditional offer of reinstatement to the discrminatees. We find merit to that exception and shall modify the notice to conform to the Administrative Law Judge's recom- mended Order. We shall also modify the recommended Order and notice regarding Respondent Genova Transport to provide for reinstatement of unfair labor practice strikers. 2 The results of the June 2, 1978, election at Genova Transport, Inc., were inconclusive because of determinative challenges. Since we agree that the challenge to Stoneback's ballot was properly sustained, we find it unneces- sary to reach the issues surrounding Nichol's ballot because it is no longer determinative. Accordingly, we shall certify the Union as the collective-bar- gaining representative. While Chairman Fanning and Member Jenkins recognize that the rule allowing an employer 5 days to reinstate strinkers is current Board law, they nonetheless adhere to their position stated in Drug Package Company, Inc., 228 NLRB 108. 119 (1977). See also 0 & F Machine Products Comnpany. 239 NLRB 1013. fn. 3 (1978), and Newport News Shipbuilding and Do, Dock Company, 236 NLRB 1637, fn. 3 (1978). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge, as modified be- low, and hereby orders that the Respondents, Genova Express Lines, Inc.. and Genova Transport, Inc., Wil- liamson, New Jersey, their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Add the following paragraph 2(b) as regards Re- spondents Genova Transport, Inc., and reletter subse- quent paragraphs accordingly: "(b) Offer to all unfair labor practices strikers who struck on or after May 1, 1978, and who make uncon- ditional application to return to work immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges previously enjoyed, dismissing and replacements if necessary. Further, if the Re- spondent does not reinstate the striking employees within 5 days from the date of unconditional applica- tion, make them whole for any loss of earnings they may suffer as a result of Respondent's refusal, from the the date of application, less any net earnings dur- ing the period of refusal. Backpay is to be computed in the manner prescribed by the Board in F W. Woolworth Companv, 90 NLRB 289 (1950), with in- terest as prescribed in Florida Steel Corporation, 231 NLRB 651 (1977). See generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)." 2. Substitute the attached notices for those of the Administrative Law Judge. CERTIFICATION OF REPRESENTATIVE It is hereby certified that a majority of the valid ballots have been cast for Teamsters Local 500, Inter- national Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America, and that. pursuant to Section 9(a) of the National Labor Rela- tions Act, as amended, the said labor organization is the exclusive representative of all the employees in the unit found appropriate herein for the purposes of collective bargaining in respect to rates of pay. wages, hours of employment, or other conditions of employ- ment: All truckdrivers, warehousemen, mechanics, and helpers employed by Genova Transport, Inc., but excluding all office clerical employees. guards and supervisors as defined in the Act. 245 NLRB No. 28 229 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a hearing, that we violated the National Labor Relations Act, as amended, by discharging employees because they engaged in union activities, has ordered us to post this notice. We intend to abide by the fol- lowing: WE WILL NOT discourage membership in Teamsters Local 500, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor or- ganization of our employees, by discharging any of our employmees because of their membership in, support of, or activities in favor of the above- named or any other labor organization. WE WILL NOT interrogate our employees con- cerning their union activities. WE WILL NOT threaten to discharge employees because of their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights to self-organization, to form, join, or assist the above-named labor organiza- tion, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aide or protection, or to refrain from any and all such activities. WE WILL make whole each of the following employees for any loss of earnings they may have suffered as a result of our discrimination against them, plus interest: James H. Pratt Gregory W. Fera Harvey Tillmann Charles Ruppert James Ruppert George Carpenter Joseph Porreca James Justice GENOVA EXPRESS LINES, INC. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a hearing, that we violated the National Labor Relations Act, as amended, by discharging employees because they engaged in union activities, has ordered us to post this notice. We intend to abide by the fol- lowing: WE WILL NOT discourage membership in Teamsters Local 500, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or in any other labor or- ganization of our employees, by discharging any of our employees because of their membership in, support of, or activities in favor of the above- named or any other labor organization. WE WlI.L NOT threaten to discharge employees because of their union activities. WE WILL NOT threaten to close our business in retaliation against our employees because of their union activities. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of their rights so self-organization, to form, join, or assist the above-named labor organiza- tion, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL offer Robert Feller, James Gatling, and Arthur Kelley, immediate and full reinstate- ment, or, if their old jobs are not available, sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges. WE WILL make whole each of the foregoing employees for any loss of earnings they may have suffered as a result of our discrimination against them, plus interest. WE WILL offer, upon their unconditional ap- plication. to reinstate unfair labor practice strik- ers who struck on or after May 1, 1978. to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions. dismissing any replacements, if necessary, and WE WILL make them whole for any loss of earnings they may suffer as a result of our refusal, if any, to rein- state them within 5 days after applications. GENOVA, TRANSPORI. IN('. DECISION STATEMENT OF THE CASE THOMAS A. RIC(l. Administrative Law Judge: This Deci- sion is an integral part of the consolidated stage of five cases, one a representation proceeding and the others com- plaint cases. The charges in the complaint cases and the petition in the representation case were filed by Teamsters Local 500, International Brotherhood of Teamsters. Chauf- feurs, Warehousemen and Helpers of America, here called 230 GENOVA EXPRESS LINES. INC. the Union. Respondents are two employers. Genova Ex- press Lines. Inc., here called Genova Express, and Genova Transport, Inc., here called Genova Transport. The repre- sentation petition was also filed by this same Union and concerns the employees of Genova Transport. There was an election, and the results were inconclusive because of chal- lenged ballots. The Board directed a hearing on the chal- lenges. The unfair labor practice issues to be decided in- volve alleged violations of Section 8(a)(l), (3), and (5) of the Act. Briefs were filed after the close of the hearing by all parties. Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENTS Genova Express, a State of New Jersey corporation, is engaged in the business of freight hauling from its location in Williamstown, New Jersey. During the year preceding issuance of the complaint here involved this Company shipped goods valued in excess of $50,000 to points located outside the State of New Jersey. I find that Genova Express is an employer engaged in commerce within the meaning of the Act. Genova Transport, also a State of New Jersey corpora- tion, is engaged in the interstate transportation of food stuffs and produce, with its principal office and place of business in Williamstown, New Jersey. During the year pre- ceding issuance of the complaint in the course of its busi- ness it received goods valued in excess of $50,000 for ser- vices performed outside the State of New Jersey. I find that Genova Transport is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. A Picture of the Overall Case Two separate and distinct companies, or employers, are involved in this complex combined Board proceeding. At the time of the events one of them-Genova Express-was in the trucking business, in part operating as a common carrier under ICC license, and the other, Genova Trans- port, was likewise in the trucking business but as a contract carrier under different ICC license. There is no showing that any employees of either Company had ever been repre- sented by a union until Teamster Local 500 appeared on the scene early in 1978. The issues to be decided, i.e.. the real disputes that were litigated by the parties, can best be understood if first a revealing sequence of events is clearly stated. The story starts with William Brown, secretary-treasurer of the Teamsters local, accompanied by several drivers, ap- pearing at the office of Genova Express in the yard on March 8, 1978, and demanding immediate recognition as exclusive bargaining agent. The reaction of Joseph Genova, Jr., sole stockholder and president of Genova Express, was to discharge eight of his workers. He fired them because of their prounion activity. I find that Genova Express, a Re- spondent here, thereby violated Section 8(a)( I) and (3) of the Act as to all eight of the men individually named in the complaint.' That same day the Union filed charges with the Board against Genova Express (Case 4-CA 9256) alleging viola- tions of Section 8(a)(3). It also filed that day a representa- tion petition for an election among the same group of em- ployees. Also that day these employees started picketing the premises. For 3 months without interruption the Union picketed 7 days a week, 24 hours a day. One week later. by letter dated March 13 addressed to every one of the eight dischargees, Genova Express offered all of them unconditional reinstatement. On March 15 Brown was back in the office with some of the men to say that unless Genova, Jr., recognized the Union and bar- gained immediately, never mind the pending election pro- ceeding before the Board, the employees refused to return to work. The Employer again refused to extend exclusive recognition, and the men went back on the picket line, Whatever may be said of the employees' reason for picket- ing between March 8 and 15. there can be no question as to their purpose after that date: it was purely to coerce Genova Express into either yielding to whatever the Union's demands were or discontinuing its business. For the rest of March and into April the commercial operations of Genova Express were practically at a stand- still; no one was hired, and the only truck which ran was one operated by Genova, Jr. I find that from March 15 on these employees were carry- ing on an economic strike. Again, the record is overly bur- dened with repetitive testimony, about the letters of offering reinstatement and the reactions of the employees. But that the discrimination against the eight, legal or illegal, ended on March 15 is an absolute fact, and all the talk about it only obfuscates the real issue. On April 21 the General Counsel issued his first complaint in this overall picture in Case 4-CA-9257; it reads, in critical part: "On or about March 8, 1978, Respondent discharged its employees listed below, and until on or about March 15, 1978, Respondent failed and refused to reinstate said employees."' I No purpose would be served and it would confuse the reader of this Decision were I to detail the diversified testimony of many witnesses about the conversation that took place on March 8 for the unlawful discharges were admitted on the record by Genova. Jr. From his testimony: "Did ou fire the people on March 7? The Witness: Yes. I did." Neither at the hearing nor in its post-hearing brief did Genova Express suggest any other objective reason for the discharges. 2 From the testimony of Teamsters Agent Brown, who went to the Com- pany with the men in response to the recall letters: A ...The men had got letters from the company to return to work We had a meeting that morning and they asked me to go with them. Because of the past practices in the company and why they seeked out a union they didn't want to go there by themselves . He [Genova. Jr.] said. 'lI don't want to discuss nothing with you. They are not coming here with no union . There's work here and that's it" 231 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On April 25 the usual Board-conducted election in the representation case took place, and the Union won. We turn to Genova Transport, the other Respondent. Its stock was owned by its president, Joseph Genova, Sr., the father of Genova, Jr. This second company operated at that moment out of the same terminal as did Genova Express but with a completely separate group of employees servic- ing a completely different group of customers. For the mo- ment it will be sufficient to say that Genova Transport's drivers were paid a percentage of the rate, while Genova Express drivers were hourly paid. On May 1, 1978, Team- sters Agent Brown appeared at the yard office with two of Genova Transport's drivers and demanded immediate rec- ognition as bargaining agent for the employees of Genova Transport. Genova, Sr., rejected the demand out of hand and charged one of the two employees then with Brown with having "stabbed him in the back." Did he discharge those particular two employees that day? Against the major contentions to be decided this is a minor issue, and it will be discussed below. What is significant is that right away the drivers of Genova Transport-at least seven or eight of them-joined the pickets of Genova Express, and the pick- eting continued full blast as before. That same day, May , as it had done with respect to Genova Express, Teamsters Local 500 filed a representation petition with the Board seeking an election among the em- ployees of Genova Transport (Case 4-RC-13165). Signifi- cantly, it did not file any unfair labor practice charge then against Genova Transport so as to allege any discrimina- tory discharge in violation of Section 8(a)(3). On May 18 there was a stipulation for consent election signed in the Genova Transport RC case. That same day the Union filed a charge against that Company alleging that it had unlaw- fully discharged seven named employees on May I (Case 4 CA-9413). The Board election was held on June 2, 1978. with inconclusive results; there were challenges, as to which the Board later ordered a formal investigatory hearing. On July 28 the General Counsel issued a separate complaint in Case 4-CA-9413 in which it is alleged that three not seven-of Genova Transport's employees had been illegally discharged. Meanwhile, after the Board certified Local 500 as bar- gaining agent in the unit of Genova Express employees in May, there was some conversation between Genova, Jr., and Brown (see below). On May 16 the Union filed still another separate charge against Genova Express saying that it had refused to bargain in violation of Section 8(a)(5) (Case 4-CA-9409). With this the General Counsel swept aside the first complaint against Genova Express, consoli- dated the two unfair labor practice charges against that Company and, on July 28-the same day a complaint is- sued against Genova Transport-issued an amended com- plaint against Genova Express alleging again the eight ille- gal discharges on May 8 plus an illegal refusal to bargain pursuant to the Board certificate starting on May 16, 1978. It must be noted that at the end of July, almost 5 months after the filing of the first charge and the first representation election petition and after all the governmental investiga- tion that must have been carried on, the General Counsel had no hesitancy in looking upon the two companies as quite distinctive and separate business employers. The hear- ing on the July 28 complaint in Case 4-CA 9409 was scheduled to take place on September 5, 1978; it never took. place. Instead, on September 29 the Union filed still another charge (Case 4-CA-9667), this one naming both Genova Express and Genova Transport as Respondents. The charge was written by the Union, of course, which was in the best position to kn6w what it was complaining about. It reads follows: The above named firms have jointly been engaged in the following activities: In the last six months Respon- dents changed their operations to defeat the bargaining rights of employees on the payroll of Genova Express Lines, Inc. and to defeat the employment rights of said employees, and this action constitutes an effort to con- tinue to avoid bargaining with Teamsters Local 500, International Brotherhood of Teamsters, Chauffeurs. Warehousemen and Helpers of America. Two months later the General Counsel abandoned the basic concept underlying all the outstanding complaints as well as both representation cases, joined all four of the CA cases, and issued, on November 30, 1978, an all embracing complaint entitled: "Order Further Consolidating Cases, Amended Consolidated Complaint and Notice of Hearing." Here, for the first time throughout the long story, in addi- tion to repetition of all the earlier unfair labor practices allegations, there is articulated the idea that Genova Ex- press and Genova Transport are "a single employer." It was on the basis of this complaint that the January 1979 hearing was held. Single, or not single. emplover Contrary to the literal allegation of the complaint, I find that Genova Express and Genova Transport never were and are not now a single employer. There is simply no evi- dence supporting that statement. They are separate corpo- rations; have separate owners, officers, directors and man- agers; maintain separate records and check accounts; and service different customers. They employ, or used to em- ploy when they were in full operation, separate groups of employees. But most significant, there is no evidence in the least indicating common control of labor relations, indeed. nothing to show the slightest community of interest be- tween the two groups of employees, one working for Genova Express and the other for Genova Transport. But the clearest affirmative proof that the two Companies never were a single employer in the Board's established use of the phrase is seen in the activities of the employees them- selves. The Board has long held that legal technicalities such as corporate entities, or even formal separation of rec- ords and documents which do have meaning in other areas of law, do not control here. It is the appropriate grouping of employees for collective-bargaining purposes-the basic concern of this statute-that governs instead. That is why the Board will join the employees of separate legal entities into a single bargaining unit when it is shown that the com- bined group really has a "community of interest vis-a-vis the employer" however differently named. That is what collec- tive bargaining is all about. If the managerial and labor 232 GENOVA EXPRESS I.INES. IN('. relations structures of the two employers belie the common interest and ift' the employees themselves never once thought otherwise there is really no need to discuss the matter at length. If the employees of Genova Express thought their economic destiny was controlled bh the same hand that ruled over those of Genova Transport working in and out of the same location- they would hardly have asked for a separate election. And if the Board agents, in their investi- gation of one case after another. thought for a moment the whole mess was masterminded by a single employer. they would not have held separate elections or issued separate certificates. After this, if there is any doubt left about the question, it is surely dispelled by the 2 months of picketing by the Teamsters Union, while the employees of Genova Transport calmly crossed the picket line every day to go to work. Would the Teamsters ever have stood by as truckdrivers crossed their picket lines for such a long period if the Union thought for a moment that these people were scabs instead of neutrals? Actually, a look at the record as a whole does furnish an explanation for this apparent incoherence in the complaint. Elsewhere it alleges that Genova Express did wrong be- cause during the strike it tried to get some of its work done by Genova Transport. even try to sell its business to the other company, and that the latter did wrong in trying to help Genova Express by assisting it in this way.' This part of the complaint is consistent with the essence of the Union's last charge filed in September, 6 months after the start of its futile strike against both companies. It said, in that charge that Respondents changed their operations "to defeat the bargaining rights" of the Genova Express em- ployees and "to defeat their employment rights." That an employer's attempt-when his employees refuse to work by engaging in an economic strike-to have the necessary work done by somebody else endangers the future work opportunities of the strikers is, of course. true. But to say that his "purpose" is to hurt the strikers conveniently ig- nores the other side of the coin. It can also be said with no less persuasion that his purpose is to survive. As Joseph Genova, Jr., said as a witness at the hearing when asked how come he started to drive a truck himself: "I had to eat." Before finally disposing of this question-which really goes to the heart of the whole case-there is another aspect of the record that must be appreciated. With the financial and commercial relationship between the two companies being the big question, the General Counsel subpenaed all records of Genova Express-including every conceivable document any coporate employer might have, some going as far back in its inception in 1970; the subpena listed no less than 19 separate groupings of papers maintained by )The complaint contains the following two pars 16. Since on or about April 10. 1978. Respondent has begun to change the operations of Express from freight hauling to the leasing of tractors and trailers and has attempted to transfer its Interstate Com- merce Commission authority to Transport as a means of accomplishing such freight hauling. 17. Since on or about April 10. 1978. Respondent has begun to change the operations of Transport by attempting to have Transport assume Express' Interstate Commerce Commission authority and h) having Transport perform freight hauling for Express any employer. All of this material was produced for the General ('ounsel's inspection and was so used. The UInion. as the Charging Party. subpenaed all records. in like infini- tesimal detail, of Genova Transport, and these also were fully' produced for examination. This means the prosecution side of the case knew of everv financial transaction that took place at least throughout the period March 8. 1978. to the day of the hearing. Joseph Genova, Jr.. testified in defense about what he had done during the strike, how he had tried to do some business to survive, as much as possible. I take his testi- mony at face value as I must. Had he said one word I mean factually as distinguished from conclusionar) state- ments- that was not true about how he conducted his busi- ness, the other side had it in its power to prove otherwise from its records. It did not do so; it follows Genova told the truth. Apart from the trucking operations it carried on with the use of its tractors and trailers Genova Express also did busi- ness by contracting for "trip leases," shipments with other interstate carriers. This was possible under its ICC permit and involved no employees working directly for Genova Express. With the advent of the strike in March this aspect of his business failed very greatly. As the witness said: Q ... Describe the character of the business for us A. It was long haul business. Q. The type of business that it did. why was it doing that business? A. To keep the rights alive. Q. What does that mean? Does that mean you have to do a certain amount of business? Do you go out and solicit? A. Not necessarily. If a customer calls, we should satisfy their needs within reason. Q. Did you do any soliciting for Express? A. No, We did not. Q. After March 15th? A. No. Q. Of the business that you did before March 15th at Express, What percentage of that business were you able to do since March 15th? A. About ten percent. a little less than ten percent of the total gross of Express. Q. Who did that business? A. I did. Q. How did you do that? Was it yourself? A. That's correct. Any my nephew helped me. Q. Was the type of business that Express did during this period, and I am speaking post March 15th. was that the type of business that most of these drivers were involved in when they were working? A. No. They never did that. As to the direct operations-- carried on with the employ- ees who went on strike-it died just about completely for about 1-1/2 months. Once or twice Genova, Jr., found a way, b contract arrangement-again called trip-lease-to have a Genova Transport driver make a run for him. There 233 DECISIONS OFt NATIONAL LABOR RELATIONS BOARD otherwise was no one working for the company at all. On April 15 Genova. Jr., sold six of the eight tractors he owned at the time of the strike, and he started to do local cartage by himself: for the limited Philadelphia area he needed no ICC license. He had no other way of working. "Because I offered the jobs back to the employees, but no one came back. I had customers to satisfy, no one would cross the picket line so I operated as an individual myself driving my own truck." To this day Genova Express had not hired a man since the inception of the strike. In April Genova, Jr., tried to sell his ICC rights to his father, owner of Genova Transport, and signed a contract with him to that effect. He did this after trying without success to sell his ICC rights partially to other trucking companies by public advertising. At that time Genova Transport was still operating without a strike on its hands, and there was therefore a chance that the customers affected by the license might be serviced and the value of the license preserved. But the transfer could not take effect without ICC approval: it was never again. Genova Express' request of the ICC to permit temporary implementation of the changeover was also denied. Genova, Jr., did something else- starting in April and continuing at the end of the year--- something detailed at great length throughout the hearing and urged by the Cen- eral Counsel and the Union as strongly indicative of an evil intent. The tractors and trailers he used when working him- self as a truckdriver were still registered in the name of Genova Express and still insured under that name. Not- withstanding, he placed a decal on the equipment reading Joseph Genova Transportation Co.-not to be confused with Genova Transport, Inc., the second Respondent here. It was no more than another name he gave himself person- ally. During the first week or 2 that he did this-- before Genova Transport was also hit with a Teamsters strike and picketing-his purpose might have been to deceive custom- ers or anybody else along the road. But as to what his rea- son was after that date there is a lot of double talk by all the parties, including Genova, Jr., himself. One argument by Respondent seems to be that this proves Genova Express went out of business, a position it took towards the Union when, after the May 3 Board certification, the Company offered to bargain about "the effects" of its going out of business. If the owner of an employing corporate entity can be said to have "gone out of business" merely because he starts doing the hand work himself and remains the only employee in this sense, it matters not what he called him- self. Words do not change facts, neither do names. All that matters is that throughout the strike-the picketing ceased altogether at the end of October-no replacements were hired, the volume of work dropped to 10 percent of what it had been, and the only workman was the boss himself. I also discern nothing persuasive in the reasoning-if such it can be called-advanced by the Union when it says the use of another name or decal reveals an intent to de- fraud the Union and to destroy the jobs of the striking em- ployees. A like inference is urged, still by the Union, based upon the fact that Genova, Jr., tried to transfer his ICC rights or to sell his business-whatever it be called; this too is said to prove an intent to destroy the jobs and the Union. Instead, the objective facts are that GCenova was strapped for workmen, the Union was squeezing him by making it impossible for him to operate. and then it complained be- cause he tried to salvage something of his business assets. Nothing came of the attempt anyway. The Union, there- fore, like this Respondent. finds itself in the same position. Its strike was successful to the point where nobody crossed the picket line, and the Employer was reduced to his sole efforts. It is against this stark fact that questions of law must be decided. One last comment on this subject. There is an unspoken implication-perhaps just another argument by the Union that I really do not understand--that Respondent resorted to this devious subterfuge of changing Genova, Jr.'s name in order to conceal an illegal intent to punish the unioneers by putting an end to the Company's real "business." Here, of course, the Union considers the true "business" of Re- spondent the business of employing the old employees at such rates of pay and indirect benefits as they think or thought right when they struck. This is but another way of saying that an employer has no right to hold firm against the economic demands of a union on strike. To state the proposition is to refute it. Whatever ideas paragraphs 16 and 17 of the General Counsel's last complaint or whatever the wording of the Union's last charge in Case 4 CA 9667-were intended to convev I find no evidence sufficient to support an) unfair labor practice findings. B. The UnJair Labor Practices Alleged and the Evtidenc The pervasive mistaken notion that these two companies are or were a single employer runs through other sections of the combined complaint. But certain allegations of direct violations of the statute can fairly be seen, at least if the testimony of the participants be considered together with the wording of the complaint. For example, paragraph 12(a) says that "Respondent" discharged eight employees on March 7; as used in the pleading "the Respondent" means both Genova Express, Inc.. and Genova Transport, Inc. Strongly indicative of the cautious technique of keep- ing two arrows in the bow, the complaint also says that "Respondent through Joseph S. Genova" fired these eight people on March 7. This means. in the light of the testi- mony, that Genova Express-even if in fact a single em- ployer, discharged the eight. There is like double talk at many other places in the complaint. Be that as it may, the understandable allegations will be disposed of first in terms of whatever each of the two separate employers did vis-a-vis their employees' union activity. I. It has already been found that Genova Express dis- charged eight of the its employees on March 8 in violation of Section 8(a)(3). All eight men were offered unconditional reinstatement on March 15 and refused to come back. The strike against Genova Express was therefore converted to an economic one on that date: there is no issue of reinstate- ment as to any of the eight-none ever offered to return to work after that date: Gregory Fera, one of the eight, was disabled then, remained disabled later, was still unable to work months later at the hearing, and therefore there is no backpay coming to him. The seven must be made whole in the usual way for earnings lost between March 8 and 15, 234 (GENOVA EXPRESS NINE-S. INC' 1978. This precise finding as to both illegalit and remed fits squarely into the literal language of the complaint. 2. Genova Express committed violations of Section 8(a)(1). Upon learning that his employees were signing up with the Union Genova, Jr., asked Fera, the driver, what hc knew about all this. Genova also decided to hold a meeting of employees that very night and had Schaffer. the dis- patcher, communicate with all of them. Schaffer did that, asked each man what he knew about the union activity, and told them (a message he got from the boss himself), that it' they did not come to the meeting they might as well not come back to work at all.' Genova himself asked another man, Charles Ruppert, what he knew about the Teamsters' move, and when Ruppert said no Genova told him to "find out who the instigator is" and that he was "going to fire him." Genova also asked Ruppert to come to the evening meeting, adding that if he was not there "by 8 o'clock, do not bother coming to work the next day." None of the men came to the meeting, and, as is com- pletely undisputed, they were fired the next day because of their union activity. I find, of course, that Genova's interrogation of Fera and Ruppert was unlawful interrogation and an unfair labor practice under Section 8(a)( I). I also find that the message to the men-regardless of who told them or how, was a threat of discharge and a further unfair labor practice. But these are descriptive details greatly belabored in the rec- ord, that add nothing of substance to the real dispute be- tween the parties. If an employer fires a man today because he joins the union, the fact that yesterday he said he would do that does not change the story at all. Nor. in this case, does it change the nature of' what happened later. 3. When Genova, Jr., with no employees at all willing to work, started himself to drive because he had no choice the pickets followed his truck in their own cars. This was not the most peaceful and orderly picket line, at least those first 3 months when it kept on all week around the clock. No- body dared to work cross that line. One picket was con- victed in a criminal court of "rock throwing." Another man, Nichols, not an employee, who was using the lot as a courtesy to do some repair work on his own truck and trailer, got it off the premises in a hurry; there is evidence that he was told by the pickets this would be wise. As a union witness Gatling at one point in his testimony general- ized about "harassing," antiunion telephone calls received by the pickets' wives at home "by company people" and "name calling" by "managers" or the picket line. Later in his testimony the same witness was asked were such com- ments made by the pickets in the direction of management: he answered: "Now I guess at times there were comments made but I couldn't say who or when." I Schaffer is called a supervisor in the complaint as issued. After he testi- fled as the General Counsels first witness the complaint was amended to strike the allegation he was a supervisor What Genova, Jr.. asked him and told him to do-including the statement "there will be no union here" are not called violations of Sec. 8(aXt) by Genova, Jr., because they are things he said to a plain rank-and-file employee Schaffer. It is still a play on words, for none of these coercive statements including those made directly bh management to employees are contradicted, and no added unfair labor practice findings as to them can change the correct resolution of the guts question of the case. One day. as he saw a car with two pickets ollowrulig his truck for several miles. Gcnoa, Jr., stopped at the side of the road. 'he pickets stopped behind him. Riding with Genova was is nephew a Junior high school student. Ihe ho bs stepped out of' the truck ca;b with a "pipe" in his hands. according to employee Galling and stood there on the side- walk, looking back. Nothing happened: the truck continued to its destination further on. and the pickets continued to taill. At the entrance gate to the customer's lot, still accord- ing to Gatling," made a U-turn, and turned on to the road . . and he then tried to hit the car with the tractor part of' the truck. and the driver answered ankd the truck missed us." Genova said that his nephew had .a caniera in his hand. and that pickets had been throw ing rocks at his truck, as well as at his nephew. I think (athilig was ahsolIutels exag- gerating in his version of this incident. Iie changed his stor\ in sonie respects as he went along and was simpll not a convincing witness. He said that before the bo\ emerged from the truck cab onto the sidewalk. he. (atling, was walking up from his car just to see who xxas driling. 1ol- lowing Genova's truck from the company. ard from the moment it set out to make a deliver as (alitling had had to be doing. he certainly knew who was driing. Another flareup between pickets and managenent oc- curred one morning in August or September. (enloxa's ti- ther, Joe Genova. Sr.. had a heart attack and died a lew months later. Again Genova, Jr.. was driving a truck. re- turning to the terminal. Who spoke first'? How can anone know when tempers are so heated on a successful picket line'? Again, from witness Gatling: "... he started to pull i to the yard and he cut us as close as he you know he thought he could. and he struck Bobby [picket Feller] s he cut in to the yard. with the end of the trailer." From the testimony of Feller, the other picket who was supposed to have been "knocked down": "... he [(tenoval proceeded to stop across the highway and told us to leave him alone And I conversed back to Mr. (ienova. Jr.. and I must have upset him because when I he pulled away and the way he had his trailer situated, he knocked me off my feet." Feller admitted having told Genova that morning that he hurt his father more than the Union did. Feller also said that he was not hurt when he ell. He filed criminal charges. but the) were dismissed. When Galling was asked had el- ler been hurt he answered. "I'm not a doctor." When asked had Gienova, Jr., been found guilty of' wrongdoing in the courts, Gatling answered "it was dismissed by a kangaroo court." Against this sort of testimony - on its ftace destruc- tive of the witnesses' credibilit' -- I believe G(eno' a's ver- sion. He said he did ask the pickets when he arrived had they not done enough to his father, and that when a picket said he had hurt his father more he was offended. As to Feller, Genova said he did not hit him. and that the man just tripped down. I make no unfair labor practice findings on the basis of either of the two foregoing incidents. I. Unfair labor practices by (Genova Flransport The exact number of emplosees working tor Genovat Transport on May I. 1978, is not clear on this entire record. but there were somewhere between 8 to 1() At this ime the 2315 IDE('CISI()NS OF NATIONAL. LABOR REI.ATIONS BOARD (;enoa xpress employees had been picketing for about 2 months. On Monday morning when Brown, the l'eamsters agent. appeared at the office and demanded immediate rec- ognition as bargaining agent of Joe Genova. Sr., he was accompanied by Gatling and Feller. There is a question as to what Genova. Sr., said at that time. Unfortunatel. as already stated. as suffered a heart attack, and he died a few months later. According to Brown, Genova. Sr.'s immedi- ate reaction to the Urnion's demand was: "he told us to get the frig off the lot, there ain't £sing to be no union here . . And stay off of our property." As Gatling recalled: "he [Genova] said no, and he threw me and Bobby Feller off his property and told us we were fired, to join the other guys across the street." On cross-examination Gatling admitted the owner never used the word "fired." or "discharge." Fel- ler's version is: "Mr. Genova ordered me, told me, to get off his property and join the rest of the strikers ... Hie told me 'thanks for stabbing him in the back.'" Genova. Jr., testified that he heard this conversation fromn his office. He quoted his father as saying: "I'm not going to sign them Ithe contract] . . . He said, 'They can join the rest of them on the picket line' " Genova, Jr.. also admitted that his father did tell Feller, "Thanks for stabbing me in the back." There is also testimony by Giatling that during April, in a general discussion among transport employees about the Union, Genova. Sr.. said, "if you stayed with him, you had a job; if you went with the union, you didn't. They'd closed the doors." Feller, too, testified that during March. while commenting on the trouble his son was having with the Union, Genova, Sr., said to him: "that he's never have a union that, there he would close the place down." Given the total story of this record, including Genova, Jr.'s admissions, I must credit these employees witnesses on this point. I find that Gjenova, Sr., on behalf of Genova Transport Respondent. discharged Gatling and Feller on May 1. that his reason was because they pressed the union campaign, and that by such discrimination Respondent Genova Transport violated Section 8(a)(3) of the Act. I also find that Genova, Sr.'s statements to employees that he would close down the business if the employees chose to be represented by the Union were violations of Section 8(a)(1) of the Act. A third man, Arthur Kelley. was also driving a truck for Cienova Transport at that time. He first drove for this Com- pany in March, and he was not a full-time employee, for he said he also drove for other companies during April. He said that he finished a run on Friday, April 29. He went on to testify that on Monday, May 1, Genova, Sr., telephoned him at home to ask "do you know that the Union's over here?" When Kelley said that he did, Genova, Sr., went on to say "the guys were stabbing him in the back." Now Kel- ley responded "they feel like they need to be organized." With this the employer told him: "Well, if you signed a card, or if anybody signed the cards for the union, they're fired." Kelley said that same day he appeared on the picket line. How long Kelley remained on the picket line this record does not show. Hlow soon-maybe the same week, or the same day-- he went right on working for his other employ- ers, this record also does not show. He did say that he worked for other trucking companies thereafter. In any event, I do find that Genova. Sr., that day discharged him from employment at this Company because he was pro- union and thereby again violated Section 8(a)(3). Whether Kelley lost any work or earnings because of this is a very close question, and it can only be resolved at the usual compliance stage of the proceeding. Before leaving Genova Transport as a Respondent in this case, a word about the nature of the strike against it. The picketing at it single location --against both Companies- ended completely late in October. What activities--if any-- took place thereafter by the employees vis-a-vis their em- ployers is unknown so far as this record shows. The results of the Board election in Case 4-RC-13165, limited to the Genova Transport employees, still remains to be resolved. Since the picketing against Genova Transport started on May I all of its employees, it seems, have been on strike. There is no credible evidence that any striker was ever of- fered real reinstatement. Was it or is it an unfair labor prac- tice strike. or an economic strike? In his brief the General Counsel calls it an unfair labor practice strike. In light of the unquestionable evidence that Brown of the Teamsters was determined from the beginning to force acceptance of the Union upon Genova Transport, it cannot be doubted that one of the purposes of the strike was strictly economic to win recognition for the Teamsters. It is still a fact three men were unlawfully discharged that day. It follows under Board law that the strike must be deemed as much a protest against the Company's unfair labor practices. I therefore find that the Genova Transport employees were unfair la- bor practices strikers. As to what this means today or may mean one day if ever any of the now gone employees offers to work again for Genova Transport I make no comments. There is no valid refusal to bargain charge against that Company. Indeed, the question concerning representation as to it is now be- fore the Board. Genova, Sr., the owner and direct opera- tional head, had died. While there is much indication this Company too. like Genova Express, is literally at a stand still if not out of business, that question was not really ex- plored at this hearing. I therefore leave the question of the status of the old Genova Transport employees in limbo, as I must. 2. 8(a)(5) allegation against Genova Express It will be recalled that the Union was certified by the Board as a bargaining agent for the Genova Express em- ployees on May 3. Shortly before that date in anticipation of the Board certification, Brown communicated with the Company to ask for a bargaining meeting. In response, on May 3 the company lawyer Jeff Masin, wrote to Brown suggesting that the parties meet at the office of the Federal Mediation and conciliation Service as soon as the Board certificate issued. On May 16 there was such a meeting. Brown was accompanied by two employees, and Masin spoke for the Company. Masin started the conversation by saying that the Company was planning to go out of busi- ness and then began to explain. Before he could continue Brown interrupted him. At this point there is a bit of con- flict as to what Brown said, but one thing is clear--the 236 GENOVA EXPRESS LINES. INC meeting was very short, with Brown stalking out of the room in a huff. Brown's version is that his immediate reaction to the phrase "going out of business" was: "Show me some proof that you are going out of business. You are not just going to come here and tell me you are going out of business and that's it .... One word led to the other and I just told him what to do, and I left." (It takes little imagination to know what Brown meant by the phrase "I just told him what to do.") Masin's testimony is that the meeting lasted no more than 10 minutes, that as soon as he said his client was going out of business Brown stopped him and in a loud voice and with many obscenities, rejected the idea, demanded proof, and said only "he did not see any purpose to the discussion, or discussing anything further at that date." The parties never met again. One week later, on May 23. Brown sent a mailgram to Masin: "We desire a meeting to bargain regarding the closure and the effects of the closing." On May 31 Masin answered with a letter offering to meet at Brown's convenience. Within I week Herbert Fisher, attor- ney for the Union, telephoned Masin in response to his letter and proposed the Company pay to each of its former employees $500 for each year worked as severance pay. Masin talked to his client, and on June 12 called Fisher with a counterproposal of $25 severance pay for each year of employment. Fisher took it under consideration. There never was any further communication between the parties. If this record showed nothing more than these recise facts the 8(a)(5) allegation against Genova Express would have to be dismissed. There is more. It is a fact that this Com- pany was in the process of going out of business. The month before Genova, Jr., had sold the greater part of his transportation equipment. His entire complement was on strike, and he had hired no replacement. He was attempting to sell his ICC right to his father, at least during the month of April, while Genova Transport was still operational be- cause the Union had not yet called those people out on strike. In the hope of surviving Genova, Jr., had on occa- sion arranged for somebody to take a "trip lease" run for him; this was his attempt to pacify those customers who were pressing him. But the most significant reality which underlay this entire situation is the reason why Brown could not take it that day in the mediator's office. Every strike has two-albeit alter- native-objectives. One is to force the employer into a giv- ing to the union or to the employees what they want in the form of improvements in economic benefits. The other-if the first objective is not achieved-is to put the employer out of business. When a union knows that an employer can replace strikers and continue doing business as usual pay- ing the wages he thinks right and the union thinks wrong-- that union does not strike. It is the knowledge that his busi- ness will otherwise die-or the fear that such will happen that is held out as the weapon to coerce the employer. These are harsh words, but the law permits this kind of destructive action by employees in concert. The trouble here, to Brown, was that the strike succeeded in achieving the second objective. Genova Express may still at that time have been straining to keep some business going, but the fact that it was losing almost all of it is a fact. If Genova, Jr.. decided either out of Arath or in frustration to forget about trying to hire any employees of his own at all. this was his countervailing right. and this is what he offered to talk about with the Union. What is more, the fact that Brown's true resentment in May gresw out of Genova Express' progressive steps to "go out of business" appears also in both the Union's charge and the General Counsel's complaints against that com- pany. The charge calls Genova Express' change of opera- tions wrong because it tended "to defeat the employment rights" of the employees. The complaint, in charging Genova Express with an illegal refusal to bargain. goes out of its way to state what subject it was that the Company refused to talk about. And it is the fact (Genmoa Express "'attempted to transfer its Interstate Commerce Commission rights to Transport." I find both of these statements want- ing. A union calls all the employees off the ob does all it can to see that the employer can obtain no replacements. and then complaints that the emplo er's purpose in tring to sell his business is to deprive the strikers of jobs. The complaint stands in no more defensible posture. Gienova Express tried to go out of business by selling ICC rights to Genova Transport. They are absolutely two separate em- ployers. It was forced to try this move b the Charging Party's economic pressure. And this matter going out of business is precisely what Genova Express wanted to talk about with the Teamsters. But Brown refused to talk! If ever there was a case where bargaining about "the effects" of an employer going out of business ould have been the proper thing to do. this is it. The jobs of a number of people were at stake: they were gambling wsith the dan- ger that the emploser might hold firm in his resolve not to yield economically; and Genova. Sr., as still liing and capable of taking over his son's ICC rights. Ihe t nion could have made all sorts of proposals towards possibl\ avoiding the ongoing deterioration of G(enosa Express' business: it might have been able to compromise on eco- nomic matters. suggest ways of continuing the direct hire of' truckdrivers and mechanics on a basis acceptable to both parties. It is in the nature of the economic struggle in our industrial world that sometimes one of the parties is de- stroyed and on occasion it is the union in a particular bar- gaining unit. One last attempt in the General Counsel's brief to turn the case upside down deserves comment. It sas that the eight men discharged by Genova Express on Ma, 8. 1978. must be given backpay from that day to the da) of' the hearing and continuing thereafter until such time as theN are offered adequate reinstatement. This is another wa of saying that all the while they stayed on the picket line the\ were there against their will because he Comlpany was re- fusing to employ them. If this very belated new ics v were to hold it would also mean that the strike against Genova Express was an unfair labor practice strike all the time. Further. if the strike was always an unfair labor practice strike and if it was the Employer himself w ho refused to use his own employees for work because of their union acti"l- ties, the attempt- successful or not to sell the busines would appear in a totally different light. See .L. .R. X. Darlington M C. (o., 380 U.S. 263 (1965). There is a diffe-- ence between an employer who tries to sell his business or 237 DECISIONS OF NATIONAL LABOR RELATIONS BOARD part of it because he wants to punish his employees for going union and an employer, his back to the wall under union strike pressure, who seeks to salvage whatever he can of his commercial enterprise. I do not think that the General Counsel can issue a new and different complaint almost 2 months after the close of the hearing. Three separate complaints issued, each relating to the eight discharges. The first, dated April 21. 1978. reads: "On or about March 7, 1978. Respondent discharged its employees listed below, and until on or about March 15, 1978, Respondent failed and refused to reinstate said em- ployees." The last complaint, dated November 30, reads, in paragraph 12(a): "On or about March 8, 1978, Respondent. through Joseph S. Genova, discharged the employees listed below and until on March 15, 1978. failed and refused to reinstate said employees." From the transcript: Jtl)(;t RT('(l: . . . Suppose you win this case, how much hackpay do you want for this man, [Feral who couldn't work anyhow? Anything at all? One week, March 8 to 15? A year. Till the month after next? Tell me. MR. BRNS'I:IN (General Counsel): As to this wit- ness, it would appear there would be no backpay due. JuD)(; RI('lI: Then talk to me about the other seven people in paragraph 12(a). MR. BERNSTEIN: As to the other seven people, it would appear that there would be one week backpay. On the total record, I find that the evidence does not prove a violation of Section 8(a)(5) of the Act by Respon- dent Genova Express, Inc. IV. THE (HAI.LEN(iES-(ASE 4-RC-13165 A. Stoneback The Union challenged the ballot of James Stoneback on the ground that he was not an employee of Genova Trans- port on June 2, 1978, when the election was held. I find that the evidence supports the challenge and shall therefore rec- ommend that the challenge as to him be sustained. He was a trip-lease independent truckdriver working un- der contract for Midwest Emery, a trucking company. He owned his own tractor and trailer and was an old friend of John Davy, son-in-law of Genova, Sr. Stoneback's total tes- timony shows that he often did less work during the winter than at other times of the year because of his health. In January 1978 his equipment deteriorated and was in need of repair. Davy permitted him to bring it to the company yard where Stoneback could repair it at his leisure. Stone- back also stopped running for Midwest Emery in Novem- ber 1977 because he was found physically disabled and thereafter not permitted by ICC rules to go on the high- ways. But in January 1978 he recovered, and he was certi- fied as physically fit. During February and March he made an occasional trip-lease run for Genova Transport, while at the same time putting his own truck and trailer in better shape. In about March Genova Transport he did "a couple of little odd jobs" for in the yard. Later that month and into April he was put on the payroll of the Company as a me- chanic and worked with more regularity, even if not a full 40 hours each week. I:rom May 3 on he never again did any work for this Company, and on May 15 he resumed his regular employment with Midwest Emery. His contract with that company was never cancelled, and he never in- formed them that he used his equipment at any time for (jenova Transport although his contract required him to do that if he ever ran the highways for anybody else. tle worked continually for Midwest Emery thereafter through- out 1978 earning, as he said, about $20,000. At the hearing Stoneback said that he left Genova irans- port bacause "there wasn't much to do around there, and with this other stuff, I didn't want to make things any worse then they were. With everybody else stopping and some- body going in, I guess that's not too good a practice." Stoneback also said that when he left he told Genova. Sr., he would return "whenever it was straigntened out," and that this was still his intention at the time of the hearing in January 1979. There can be no real question but that on June 2, when the election took place, Stoneback was not an employee of Genova Transport. He is a truckdriver not a mechanic by profession: he never sold his equipment, he never can- celled his contract with Midwest Emery, he normally takes off in the winter from what is arduous road work for him, and he resumed his regular employment and stayed at it throughout 1978 as he had always done. Delores Davy, the Company's secretary and Genova. Sr.'s daughter, testified that when leaving the Company at the start of May Stone- back said: "It is best that I just don't do anything around here. I don't want to cause any more problems, more than what you have already." As soon as this is all straightened out maybe we could proceed with the sale of my truck, and I'll come back in the shop and work as a mechanic." I do not believe the fact that Stoneback may have discussed the possibility of selling his equipment to Genova Transport, which he never did, alters the significance of these facts in the least. B. Nichols James Nichols started as a regular truckdriver in October 1977. At the June 2, 1978, election the Company challenged his ballot on the ground he had quit voluntarily before that date. The factual question here turns on something that happened on April 30, the day before the Genova Trans- port group (after being denied recognition), decided to strike in protest. Apart from whatever Nichols testified were his inten- tions, after the strike started, as to why he never returned to work, he said that on Friday, April 28, when he returned from a run he was told by Genova, Sr., that there was another run scheduled for him to Chicago for the following Monday. May . Genova got in touch with him again on Sunday. April 30, to urge that he leave the next day early on that assignment. The Genova Express pickets were al- ways in front of the place, and Genova, Sr., thought that Nichols might avoid having any trouble with them if he left early. Nichols said that in response to a note the employer left at his residence he telephoned back to say he refused to 238 GENOVA EXPRESS LINES. INC. do the work assigned. "I told the man that I didn't- I knew there was going to be a picket line up because I was told ... The Express fellows you know-I had talked to them and they said there was going to be a picket line up." And Nich- ols did not report for work-just like that. Nichols never came back to offer to work again. One week or so later he returned with the Company's credit card which he used on the road and picked up his personal be- longings. Within 3 weeks he found work elsewhere, and he has been regularly employed at one company or another since. He never appeared on the picket line against either of these two Companies. Nichols' varied oblique attempts to call himself' a striker on May I to evade the direct evidence that he had just quit his job individually--and not as an integral component of any concerted activity-is totally unconvincing. First he said that he refused to work because of the Genova Express picket line, then he changed it to say that it was because of the other picket line. But there was no picketing by employ- ees of Genova Transport when he refused the assignment on Sunday. Indeed, those employees did not advance their recognition claim until Monday, and their decision to strike was made only because of that refusal. Nichols' testimony that he had just "decided I was going to go union" and that he never intended to quit is meaningless against the forego- ing clear facts. Whatever his reason I find that he voluntarily quit his employment with this Company on April 30 when he delib- erately and alone refused to go to work, and that thereafter he was not an employee eligible to cast a ballot in the later June 2 election. C. Misunderstanding at the Counting of Ballots Despite the challenge to Nichols' ballot it was opened after all ballots had been cast, following a discussion among the parties and the Board agent who was in charge of the proceeding, Robert Ward. Ward was under the impression that Delores Davy, then acting as representative of the Em- ployer, had agreed to withdraw this particular challenge. On the assertion that Davy had not agreed to have Nichols vote the Company then objected to the entire election on that score, inter alia. In the light of the total testimony of the three principal participants in this episode I cannot say either that in fact Davy clearly withdrew the challenge or that Ward did not have a reasonable ground to form the impression that she did so intend. The lady's father had been rushed to the hospital the day before: she was there unexpectedly be- cause the company lawyer-who was expected to take over-had been unable to attend; she defended the chal- lenge not on the basis of what she personally knew but on what her father had told her about Nichols having quit. As Ward very candidly said at the hearing: "It was a very tense situation .... She [Mrs. Davy] started directing com- ments toward Mr. Feller that her father had a heart attack. and if anything happened to her father he was going to be responsible. She didn't understand why the Company was being put through this whole mess. I told her to clam her- self." There is another reality about the stage setting and the heated dramatics of what must hase been going on-that cannot be ignored in the confusion that resulted. Brown. the Union's staff representative. quarreled with Davy when she started by saying the challenge was a good one. From Davy's testimony, which I credit because it is not contra- dicted and because her story comports with the impression made by Brown at the hearing: "Q. Did you agree to the opening of this ballot? A. I didn't agree to any of them. Bill Brown seem to have belittled me in front of everyone telling me I was no lawyer, and I didn't know anything about law. This was the first election we had ever been through. I really didn't know the procedure that should take place. He argued down every point I rose and protested. He argued it right down to the ground and told me I didn't know any- thing. 'You don't know anything. Go ahead and open it.' " "'He was talking to Mr. Ward. No matter what I said counted. Everything I said he just argued down and told me our attorney should have been there." Even Feller, the striker who was acting as union observer, quoted Brown as telling Davy "to keep her mouth shut." Ward, of course, could hardly remember every jot and tittle of what she said; after all, this was only one of' who knows how mans such cases he handles. He did recall. at one point at least. that Davy "nodded her head." Without belaboring the thing, I think the fairest thing that can be said is that there was a mutual misunderstand- ing here between the compan) agent and the Board agent. In the circumstances and in the light of the general princi- ple that Board elections may above all be fair to all parties concerned, I recommended in the event it should be neces- sary to decide that the Board find the Employer did not truly mean to withdraw its challenge to Nichols. Tiil RI DNii)y Genova Express must make whole, in the usual wa,y. the eight employees unlawfully discharged on March 8. 1978. And it must be ordered not again to commit unfair labor practices coercive upon its employees under Section 8(a)( I) of the Act. As to Genova Transport, it too must make whole the three employees illegally discharged on Ma I. 1978. I find, considering all relevant factors revealed in the rec- ord, that none of these three was really offered reinstate- ment after dismissal such as to cut off backpay at any time, as the Company contended at the hearing. On July 19 Genova Transport wrote a letter to Gatling asking him to come back to work. He telephoned in and told Genova, Sr.. he was ready to come, but the owner told him "there's no work for you unless you can get me Mrs. Paul's back." Paul was one of the substantial customers of the Compan ftor whom it trucked food. Genova talked to Gatling about pos- sible rates of pay in the event Gatling came back, but the record is clear that the owner kept conditioning the man's reinstatement upon his winning back the customer. This was not Gatling's responsibility. If later, as Gatling con- ceded, he ignored a similar deceptive recall letter, it is per- fectly understandable. With an employer so obviously de- termined to cut off its employees' union activities an 239 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unlawfully discharged man does not have to put up with repetitive charades. Feller, too, received a letter than on its face offered un- qualified reinstatement. He telephoned again and again saying he was ready to take a load out. But repeatedly he was told there was none. It is true that the system was for a man to go out on a run when there were orders for trans- portation to satisfy. But such a long series of telephone calls, all answered with the same statement that there was nothing at that moment, proves conclusively that Genova Transport was never willing to take back the man. One day the company secretary, Davy, called Mrs. Feller at home and said a load was available for Feller for quick delivery. Feller was not home; he was working somewhere else, as was his right, and therefore did not call back right then and there. But he quickly resumed his periodic calls to ask was there anything and as before kept getting the same an- swer-that there was nothing. Kelley, the man who worked elsewhere for other compa- nies-on and off-both before and after the discharge, also received a recall letter in July. At the hearing he said that he ignored it. His is a confusing element in this case because of his apparent employment at all times with other compa- nies. I therefore think it best that the question of any possi- ble loss of earnings due him to finally resolved after fuller inquiry in the compliance stage of the proceeding. IV. THE EFFECTS OF THE UNFAIR LABOR PRA('II('ES UPON COMMERCE The activities of Respondent set out in section III. above, occurring in connection with the operations of these Com- panies described in section 1, above, have a close, intimate, and a substantial relationship to trade, traffic. and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. CONCI.USIONS OF LAW 1. By discharging the eight employees listed in the com- plaint Respondent Genova Express Lines. Inc.. has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 2. By the foregoing conduct, by interrogating employees concerning their union activities, arid by threatening to dis- charge employees because of their union activities Genova Express had engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)( ) of the Act. 3. By discharging Robert Feller, James Gatling, and Ar- thur Kelley Respondent Genova Transport, Inc., had en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, by threatening to discharge employees because of their union activities, and by threat- ening to close its business in retaliation for the union activi- ties of its employees that same Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(I) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. Upon the fregoing findings of fact, conclusions of law, and the entire record and pursuant to Section 10(c) of the Act I hereby issue the following: ORDER' A. The Respondent. Genova Express. Inc.. Williams- town, New Jersey. its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Discouraging membership in Teamsters Local 500. International Brotherhood of Teamsters. Chauffeurs. Ware- housemen and Helpers of America or any other labor or- ganization of its employees by discharging employees or otherwise discriminating against them in their employment conditions becaue of their membership in or activities on behalf of the above-named labor oraganization or any other organization. (b) Interrogating employees concerning their union ac- tivities or threatening to discharge employees because of their union activities. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights to self-or- ganization, to form, join, or assist the above-named labor organization or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to ef- fectuate the policies of the Act: (a) Make whole the eight employees named in the com- plaint for any loss of pay or any benefits they may have suffered by reason of this Respondent's discrimination against them, with interest thereon to be computed in the manner prescribed in F. W. Woolworth Company. 90 NLRB 289 (1950). and Flordia Steel Corporaiion. 231 NLRB 651 (1977).2 (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records neces- sary to analyze the amount of backpay due under the terms of this Order. (c) Post at its Jamestown, New Jersey. plant copies of the attached notice marked "Appendix A."' Copies of said no- tice, on forms provided by the Regional Director for Re- gion 4, after being duly signed by its representatives, shall be posted by this Respondent immediately upon receipt In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, he findings. 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. See, generally. Isis Plumbing and Heating Co., 138 NLRB 716 1tl962) In the event that this Order is enforced by a Judgment olf a United States Court of Appeals. the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 240 GCENOVA EXPRESS l.INES. IN(,. 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 it to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 4, in writ- ing, within 20 days from the date of this Order, what steps this Respondent has taken to comply herewith. B. The Respondent. Genova Transport, Inc., Williams- town, New Jersey. its officers, agents, successors. and as- signs, shall: 1. Cease and desist from: (a) Discouraging membership in Teamsters Local 500, International Brotherhood of Teamsters. Chauffeurs, Ware- housemen and Helpers of America or any other labor or- ganization of its employees by discharging employees or otherwise discriminating against them in their employment conditions because of their membership in or activities on behalf of the above-named labor organization or any other labor organization. (b) Threatening to discharge employees because of their union activities or threatening to close its business in retali- ation for the union activities of its employees. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights to self-or- ganization, to form, join, or assist the above-named labor organization or any other labor organization, to bargain collectively through representatives of their own choosing. and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessar to effectuate the policies of the Act: (a) Make whole Robert Feller. James Gatling. and Ar- thur Kellev for any loss of pa, or an5 benefits they ma have suffered b reason of this Respondent's discrimination against them. with interest thereon to be computed in the manner prescribed in F. 1. Wo. holworth (1par1n. 90 Nl.RB 289 (1950), and Florida Steel (orporatilon. 231 NL.RB 651 (1977). (b) Preserve and. upon request. make available to the Board or its agents. for examination and cop\ing, all pa5- roll records, social security payment records. limecards, personnel records and reports. and all other records neces- sar to anal ze the amount of backpa due under the terms of this Order. (c) Post at its place of business in Williamstown. Neu Jersey. copies of the attached notice marked "Appendix B." Copies of' said notice. on forms provided bh the Regional Director otr Region 4. after being duly signed b its repre- sentatives, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 con- secutive days thereafter, in conspicuous places. including all places where notices to employees are customarily posted. Reasonable steps shall be taken by it to insure that said notices are not altered. detfaced, or co, ered b an5 other material. (d) Notify the Regional Director fr Region 4. in writ- ing, within 20 days from the date of this Order, what steps Respondent has taken to comply herewith. It IS HIERBY FRlitR ORDERE) that the complaint be dismissed. and it hereby is dismissed, to the extent that it alleges violations of Section 8(a)(5) of the Act by either of the two named Respondents. 241