Fisher Foods, Inc.

FISHER FOODS, INC. Fisher Foods, Inc. and Gerald F. Schillo and William E. Halloran. Milton Ratner d/b/a Rentar Driver Services and Fisher Foods, Inc. and James Banyard, and Robert T. Rosenfeld Cases 8-CA-10941, 8 CA-11373, and 8-CA- 11405 September 28, 1979 DECISION AND ORDER BY MEMBERS PENELLO, MURPHY, AND TRUESDALE On April 26, 1979, Administrative Law Judge Da- vid L. Evans issued the attached Decision in this pro- ceeding. Thereafter, the General Counsel and the Charging Parties filed exceptions and supporting briefs, and Respondents Fisher Foods, Inc., and Rentar Driver Services separately filed cross-excep- tions and supporting briefs, and briefs in opposition to the exceptions of the General Counsel and the Charging Parties. 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 as modified herein and to adopt his recommended Or- der. Paragraphs 8(m) of the amended complaint alleges that Respondent Fisher violated Section 8(a)(1) of the Act through its dispatcher Ray Ziedonis' coercively informing employees of the existence of a blacklist of union activists circulated between Respondents I The General Counsel and the Charging Parties have excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credibility unless the clear preponderance of all of the rel- evant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. 2 In adopting the Administrative Law Judge's conclusion that Respondent Fisher did not violate Sec. 8(a)(1) of the Act when its attorney, John Duvin, stated to the employee negotiating committee, inter alia, that he did not care whether the committee recommended contract ratification, we rely only on his finding that the comment was made outside the 10(b) period. Also, in view of our agreement with the Administrative Law Judge's find- ing that dispatcher Fred Finley did not, in fact, threaten employee Nowak with discharge because Nowak had asked questions at an employee meeting, we place no reliance on the Administrative Law Judge's further comments that, assuming Finley made the remark alleged, the remark was good-na- tured teasing which was not in violation of the Act. We find it unnecessary to pass on the Administrative Law Judge's analysis of Arlan's Department Store of Michigan Inc., 133 NLRB 802 (1961). In view of the Administrative Law Judge's findings on the merits, adopted herein by the Board, the discussion of Arlan's is not essential to the resolution of any issue before the Board in this case. Rentar and Fisher and telling employees that an offi- cial of Rentar had inquired about the work perform- ance and attitude of grocery drivers on said blacklist. The General Counsel and the Charging Party have excepted to the Administrative Law Judge's failure to find a violation based on this complaint allegation. In his Decision the Administrative Law Judge found, in- ter alia, that the evidence did not support a finding either that there was in existence a blacklist or that Respondent Rentar had targeted for discrimination employees who were union activists. However, the Administrative Law Judge, apparently by inadver- tence, omitted to recommend a specific disposition of the complaint allegation at paragraph 8(m). As we are in agreement with the Administrative Law Judge's conclusion that Ray Ziedonis was not a statu- tory supervisor, we find any comments made by him to any employees not imputable to Respondent Fisher and not established as violations of Section 8(a)(1). With respect to the questioning by Respon- dent Rentar's president of Ziedonis about the work abilities of certain of the employees, we conclude in the entire context of the proceeding that no violation has been established based thereon. 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 recommend Order of the Administrative Law Judge and hereby orders that the complaint be, and it hereby is, dismissed in its entirety. DECISION STATEMENT OF TIE CASE DAVID L. EVANS. Administrative Law Judge: This matter was heard before me in Cleveland, Ohio, on September I - 15 and October 16-20, 1978. In general terms, the com- plaint alleges that Fisher Foods, Inc. (herein called Respon- dent Fisher), and Milton Ratner d/b/a Rentar Driver Ser- vices (herein called Respondent Rentar), jointly or separately committed acts in violation of Section 8(a)(1) of the Act, that because of said unfair labor practices 41 em- ployees engaged in a protected strike, and that the employ- ees were discharged by either or both Respondents for this strike activity, or other protected-concerted activity, in vio- lation of Section 8(a)(1) and (3) of the National Labor Re- lations Act, 29 U.S.C. 151 et seq., herein called the Act. Respondents generally deny the commission of any unfair labor practices and specifically allege that by striking, the dischargees breached a no-strike clause contained in a con- tract between Respondent Rentar and the dischargees' statutory collective-bargaining representative, Truckdrivers Union, Local No. 407 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of 245 NLRB No. 87 685 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America (herein called the Union). The Union is not a party to this proceeding. General Counsel, both Respondents, and the Charging Party' have filed briefs which have been carefully consid- ered.2 Upon the entire record and my observation of the witnesses, and having taken into account all of the argu- ments made at the hearing and briefs submitted, I make the following: FINDINGS OF FA("I AND CON(CILUSIONS OF LAW I. JURISDICTION Respondent Fisher, an Ohio corporation with its princi- pal office and place of business in Bedford Heights, Ohio. operates retail grocery stores in Ohio and various other States of the United States. Annually it derives revenue in excess of $500,000 from its Ohio operations and purchases in excess of $10,000 in goods for use in said operations directly from suppliers located outside Ohio. Fisher admits, and I find and conclude, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Milton Ratner d/b/a Rentar Driver Services is a sole proprietorship based in Chicago, Illinois, where it is en- gaged in the business of furnishing truckdrivers pursuant to lease agreements with various employers. Respondent Rentar admits, and I find and conclude, that it received in excess of $30,000 between April 4, 1977, and February 27. 1978, from Respondent Fisher for services rendered and that it is an employer within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondents admit, and I find and conclude, that the Union is, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR I.ABOR PRACITICES A. Summary of Case and Contentions Respondent Fisher is a large retailer of groceries head- quartered in Cleveland, Ohio. It was once operated by a Fisher family, but in 1965 it was purchased by another con- cern, the president of which is John Fazio. Fazio testified that Respondent Fisher now employs over 2,200 employees who work under some 200 contracts with various locals of the Teamsters Union. The Cleveland facilities involved di- rectly herein are Respondent Fisher's grocery warehouse (herein called the Richmond Road facility or the ware- house) and a meat commissary (or storage facility) within a While there are four Charging Parties, their interests and contentions are identical, and they are referred to in the singular for the sake of convenience. ' Respondent Fisher has filed a motion to strike Charging Party's brief on the ground that it was not served upon Respondent Fisher with its filing with me. as required by the Sec, 102.42 of the National Labor Relations Board's Rules and Regulations and Statements of Procedure, Series 8, as amended. As Respondent was served by Charging Party with a copy of its brief within a few days after filing with me, I find that Charging Party has substantially complied with the Board's Rules, and there is no prejudice to Respondent Fisher. Accordingly, the motion is denied. mile of the grocery warehouse. Teamsters Local 407 has represented employees at both facilities since before the purchase of the business by Fazio. At the time of the events of this case there were 70 to 90 truckdrivers working out of the warehouse and commissary. Respondent Fisher and the Union entered into a contract on January 31, 1977. That contract contained a compulsory arbitration and no-strike clause. The General Counsel and Charging Party contend that certain of the dischargees took a "hard line" during the negotiations preceding execution of this contract and that because of that union or protected- concerted activity Respondent Fisher (by an attorney,. un- disputed supervisors, and two dispatchers whose status is in dispute) threatened these employees with loss of employ- ment. On February 2, 1977. Respondent Fisher and Respon- dent Rentar entered into a contract (herein called the driver leasing agreement) pursuant to which Rentar assumed re- sponsibility for a portion of the management functions of Fisher's Cleveland trucking operation effective 12:01 a.m. on April 3. 1977. The General Counsel contends that by the driver leasing agreement Respondent Fisher and Respon- dent Rentar became joint employers. On April 5 Respon- dent Rentar signed as a "successor" a contract identical to the January 31 contract between Respondent Fisher and the Union. Respondent Rentar. after negotiations with and consent of the Union, required all warehouse and meat commissary truckdrivers (as well as all other truckdrivers in other Fisher Cleveland units) to fill out numerous forms. including an application form. On April 7. within hours before a deadline established for completion of the forms, 41 employees represented by the Union began a strike which the Union opposed. All 41 strikers were discharged by Respondent Rentar. The General Counsel's theory of a violation of Section 8(a)(3) is one of multiple alternatives; as stated in his brief: . . .It was also alleged that since on or about April 7. 1977. and continuing to date Fisher's grocer drivers have engaged in a protected strike and have picketed its Bedford Heights. Ohio, premises, the protected strike herein begin [sic] cause by the unfair labor prac- tices referred to above (the threats and required appli- cations forms). It was further alleged that on or about April 7, 1977, Fisher and/or Rentar terminated certain of their gro- cery and meat drivers and since that date has failed and refused to reinstate them because they engaged in union and/or protected concerted activities including inter ahia, a refusal to cross the picket line at Fisher's Bedford Heights, Ohio facility and/or because of their refusal to fill out a Rentar employment application as condition of their continued employment. In the alter- native, if' Fisher were found not to be a joint employer with Rentar it is alleged that on or about April 3. 1977, Fisher severed its drivers from its payroll and subcon- tracted its trucking operations to Rentar and since that date has failed to reinstate them to their former posi- tions because of their Union and/or protected con- certed activities engaged in as Fisher employees and on or about April 7, 1977, Rentar acting as an agent of Fisher and/or a principal discharged said drivers for 686 FISHER FOODS, INC failing to fill out new Rentar employment applications and/or in reprisal for protected concerted activities en- gaged in while the employees of Fisher and/or Rentar. Charging Party essentially adopts these contentions and adds that the employees were protected in striking because Respondent Fisher violated article XX of the January 31. 1977, contract by entering the driver leasing agreement with Rentar. Respondent Fisher denies that its dispatchers were super- visors within the meaning of Section 2(11) of the Act and that any of the alleged threats occurred. Both Respondents deny they are joint employers' and further assert that nei- ther the execution of the driver leasing agreement nor the requirement of new application forms violated the Act in any manner. They further allege that the strike initiated April 7 violated the no-strike clause contained in either the Union-Rentar or the Union-Fisher agreement or both. and therefore the strikers were engaged in unprotected activity. The General Counsel and Charging Party reply that alleged unfair labor practices over which the employees struck were so serious that the employees were not bound by the no- strike clause. B. Status of Dispatchers The complaint alleges that, at all times material herein. two of Respondent Fisher's dispatchers, Ray Ziedonis and Fred Finley. were supervisors within the meaning of Sec- tion 2(11) of the Act and that they threatened employees with various reprisals and made various admissions which are discussed below. My findings and conclusions as to the status of Ziedonis and Finley are as follows: The driving operation of the warehouse was under the general supervision of Transport Superintendent Charles Uber. The 70 regularly employed drivers of Respondent Fisher were dispatched out of the Richmond Road ware- house beginning at midnight and throughout the day. Most of the dispatching was done on the midnight shift, and the remainder was done between 7 a.m. and 3 p.m. Essentially no dispatching was done during the third shift, although there was one dispatcher present. It was the duty of the dispatcher to assign runs, call in employees as needed, take telephone calls from drivers, and issue and receive the pa- perwork attendant to the driving, such as bills of lading and drivers' logs. "Bid" runs were yearlong assignments which were often long distance and were more lucrative to the driver. By contract these runs were awarded on the basis of seniority, and the senior drivers almost always took the bid runs. There were about 20 bid runs, and the remainder of the runs to be assigned were referred to as nonbid or extra- board runs, which were also assigned on the basis of senior- ity. If there were more runs in a day than drivers to fill them, any laid-off employees were called, again in order of seniority. Thereafter, any vacancies were filled from a list of drivers furnished by the Union. The dispatcher would call such casual employees in the order they appeared on the 3 In addition to denying joint employer status with Respondent Fisher, Respondent Rentar pleads alternatively that it cannot be charged with re- sponsibility of any violations b Respondent Fisher before April 4. the effec- tive date of the February 2 dver leasing agreement. Union's list. Ater the completion of' the day's first run. employees would return to the warehouse for another as- signment. These assignments were distributed on a first-in- first-out basis: however. a driver was dispatched again only if his weekly hours accumulated, or to be accumulated, did not exceed Department of Transportation regulations. he witnesses of the General Counsel and Charging Part h po- thesized that if two (or more) drivers completed their tirst runs simultaneousl and if there was available one run which both drivers desired and if both had sutficient allow- able hours remaining in the week, the dispatcher could have chosen between them on the basis of a tfactor other than seniority. However, the General Counsel and Charging Party cite no example of this having happened or upon what basis, other than seniority, the choice might hare been made. Dispatchers transmitted driver grievances, but did not in any %way act upon them and were consulted onl\ where their action was questioned and their testimony at arbitra- tion meetings necessary. They could chastise emplosees for not doing their work, but had no authorit to discipline them in any manner which would affect their tenures of employment. 4 Drivers who were to be absent reported to the dispatcher. who called extra employees as described above. There is no evidence that a dispatcher ever questioned the reason for a reported absence or that an5 dispatcher had the authority to do so. The General Counsel relies heavily upon the fact that from 4 p.m. until 7 a.m. each day there were no supervisors or truckdrivers present at the warehouse if the dispatchers are held not to be such. Of course, after they got their as- signments, there were no truckdrivers present at the ware- house except upon the occasion of a driver's return tior needed repair of a vehicle. If any truckdriver had problems during his run, he called the dispatcher who, if he could provide a ready answer from memory or written proce- dures, called the acknowledged supervisor. Transportation Superintendent Charles Uber. While these were not fre- quent. there is no evidence that the calls handled by the dispatchers without consultation with Uber required the ex- ercise of any degree of discretion. The Board has recognized that. where dispatch proce- dures are relatively routine and there are few truck-driving employees present during a shift, absence of other manage- ment representatives does not alone make out terminal dis- patchers to be supervisors within the meaning of Section 2(11) of the Act. Spector Freight Sstem, Inc.. 216 NLRB 551 ( i1975). Here the assignments were dictated by seniority, and the runs were routine, being essentially to the same stores and factories each day. some on bid runs of a year's duration. Moreover, the telling of employees that they are not shaping up or that they should keep their trailers clean (the most that was shown) does not, without more, establish authority to "discipline" employees envisioned by Section 'Without citing relevant examples, witnesses for the General Counsel tes- tified hat dispatchers could take drivers "out of service" f the) disobeyed a dispatcher's order to do things like cleaning a trailer. ber. without contra- diction. testified that. if a dispatcher ever told a driver he could not take a run because of ans reason. the driver would be sent home ith pay, and there would be no discipline which would affect an emplosee's tenure with- out independent nsestigation b a uperisr 68X7 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2(11) of the Act. Commercial Movers, Inc.. 240 NL.RB 288 (1979). Accordingly, I find that neither Ziedonis nor Finley was a supervisor within the meaning of Section 2(1 1) of the Act at any time material herein. C. Chronology of Relevant Events; Alleged Violations of Section 8(a)(1); Credibility Resolutions On July 31, 1976, the then existing warehouse and com- missary drivers' contract between Respondent Fisher and the Union expired. Thereafter, the contract was continued in effect from day to day while negotiations were being conducted. Principal representatives for Respondent Fisher were attorney John Duvin and Vice President Frank Mc- Donald. Usually representing the Union were President John Tanski and Business Representative Phil Fusile. Also present were employee negotiating committee members Gerald Schillo and Carl Koniar. Schillo was also president of an employee faction called the Fisher Drivers' Benevo- lent Fund. The negotiations took place at a local motel at which employee-members of the Benevolent Fund rented a room ostensibly to monitor the negotiations on behalf of the employees. As background for events within the 10(b) limitations period,5 the General Counsel introduced testimony of Koniar, Schillo, and employee Bill Halloran that on July 29, 1976, after a protracted negotiation session. the employ- ees invited Duvin and McDonald to the rented room for drinks. The employees testify that while Duvin, but not Mc- Donald, was in the room, Schillo asked Duvin if there were a "blacklist" at the Fisher operation and that Duvin replied that there was, but that Schillo's name was not on it, but that those of other employees in the crowded room were. Duvin testified that Schillo laughingly stated to him: "Come on, Bob. I know there's a blacklist. Tell me who's on it." Duvin testified that he replied that if there were a black- list it was not very effective judging by the presence of the many employees in the room with many years of seniority. This single exchange occurred over 2 years before the hear- ing, between 10:30 and 12 p.m. after a hard day's bargain- ing, and therefore credibility is all the more difficult to as- sess. Be that as it may, I find that Duvin did not admit to the existence of a blacklist. Duvin impressed me as a credi- ble witness on this point, as on others. Moreover, his ac- count is more logical than that of three employees. What the term "blacklist" connotes was never explained. Presum- ably, to the employees the term would have meant a list of employees targeted for discrimination (on some account) by an employer, and this is the only logical explanation of Schillo's broaching the subject to Duvin as well as subse- quent surmises expressed by the employees regarding a sus- pected blacklist, as discussed infra. But if Respondent had been disposed to place any employee on a blacklist because of his protected-concerted activity, it would have been Schillo, the acknowledged leader of all dissidents. But the employees' account is that Schillo was the only employee exempted from the list, a conclusion which makes abso- lutely no sense, especially in light of the General Counsel's theory of this case that the object of the subsequently ex- 'The first charge against Respondent Fisher was on April 14, 1977. Ac- cordingly, no violation may be found based solely on conduct antedating October 15. 1976. ecuted driver leasing agreement was a reprisal against dissi- dents, such as Schillo. Therefore, the most I conclude from the conflicting testimony is that Schillo conveyed to Duvin that employees suspected the existence of a blacklist and that Duvin's response did not allay this suspicion. The negotiations continued into January 1977. They' were conducted at an intensive pace. As Duvin put it, the parties practically lived at the motel. At various points tem- pers flared, and vulgarities flew. Duvin testified, without rebuttal. that at one point during the negotiations Schillo read a statement in which he threatened D[uvin with phys- ical assault. The complaint alleges that Duvin. on or about early No- vember 1976, "unlawfully informed the committee he did not care whether it recommended ratification of the grocery driver contract to their fellow employees because he in- tended to ignore the committee." In September 1976 a ten- tative agreement had been reached. Schillo and Koniar promised to recommend its ratification at an employee meeting. Just what the two men did at the meeting is un- known, but employees rejected the pact, and, after the vote was taken, Schillo and Koniar posted a notice at the Fisher warehouse thanking the employees for their rejection of the contract. The notice infuriated Duvin who (logically) felt that Schillo and Koniar had gone back on their word. Ac- cording to Schillo and Koniar. at the following negotiation session, on September 23, Duvin told the Union that he did not consider the two employees to be human, he did not care whether the employee committee members recom- mended contract proposals thereafter, and he would ignore the two men in negotiations thereafter. Schillo and Koniar testified that Duvin repeated these statements in the No- vember negotiations shortly before a second ratification vote was taken. Duvin freely admitted making such a state- ment to the employees on September 23, but denied making the statement again in November. He added that in making these statements he also specified that bargaining was there- after to be on an impersonal basis strictly between Fisher and the Union. because he felt the employees not to be trustworthy after seeing the notice posted by them. I credit Duvin that the statement was made only once, immediately after the appearance of the notice, as Schillo and Koniar had to be led to place the remarks in November, within the 10(b) period, and again Duvin's demeanor impressed me favorably. Schillo and Koniar also testified that at various points during the negotiations Duvin told the Union that the Em- ployer might subcontract out all or portions of its trucking operations if it did not get what it wanted in the contract, a statement which the complaint alleges to be violative of Section 8(a)(1). Schillo. but not Koniar, also testified that in the November I bargaining session Duvin stated that the contemplated contracting would result in layoffs. Duvin freely admitted that he told the Union that the current practice of paying drivers by the hour rather than by a mileage rate for runs in excess of 75 miles was costing Fisher $750,000 annually and that Fisher wanted a mileage rate for long-distance runs comparable to those contained in its competitors' contracts with the Union. Duvin pointed out that Respondent Fisher had some rights to contract out unit work under article XX of the expired and proposed 688 FISHtER FOODS. INC contracts' and it was exploring the possihilit of subcon- tracting to alleviate its competitive disadvantage. Schillo and Koniar acknowledged that I)uvin at various times al- luded to Fishers' competition in pressing for a mileage rate and in mentioning the possibility of subcontracting. (Dur- ing the negotiations the Union proposed a total ban on subcontracting. At one point a limited ban was agreed upon, hut later rescinded.) The complaint alleges, as an independent violation of Section 8(a)( 1). that in December 1976 Duvin told the conm- mittee he "was present at negotiating meetings with said committee only because he was legally required to be pre- sent but that he intended to ignore the committee." Koniar testified that in an early December negotiation session Duvin said "that the only reason he was present owoas be- cause of the law. He had to be. And as far as we sere concerned, that the driver negotiating team was all over for us." Duvin acknowledged that at one session he made the statement that he was present only because of the requisites of law at one session, but he places it in October. Koniar made no attempt to set the context of the statement, and Schillo did not testify' on the point, but Duvin testified that he premised the remark on his expressed belief that the negotiations were then at an impasse. At any rate, the nego- tiations continued for many sessions after the remarks. whether Duvin attended because of law or any other rea- son. The contract was ultimately signed on January 31, 1976, without a mileage rate for the long hauls and with article XX intact. Schillo and Koniar attempted to present a pic- ture of the negotiations being conducted and completed only through their efforts, as if the Union did nothing to help them. I find this extremely doubtful, but since the Union is not a party to this case, I need make no conclusion in this regard. The complaint alleges that on or about January 10, 1977, 7 Uber, during a conversation concerning a grievance with a grocery driver, "unlawfully threatened an employee (Halloran), with termination in the near future." In late Art. XX provides ARl( I F 20 St B('ONTRA( tIN( The Employer agrees that no work or services presently performed or hereafter assigned to the collective bargaining unit will he subcontracted or transferred for the purpose of circumventing the terms and pros isions of this Agreement to any outside company which does not provide wages and conditions of employment substantially equivalent to those provided in contracts which other employers In this geographic area have with the International Brotherhood of Teamsters. Chauffeurs. Warehousemen and Helpers of America. If during the term ,of this Agreement. the Employer deems it advis- able to abandon the present method of store deliveries and subcontracts to a common or contract carrier, all of the deliveries then being made by the employees covered by this Agreement. then a condition of such subcontract shall he the employment. in accordance with their seniorit. of such employees by the common or contract carrier as the common or contract carrier requires to make the deliveries. It being understood that the common or contract carrier assumes all of the conditions in effect in the contract covering the employees involsed. 7All subsequent references to dates are in 1977. unless olherwise indi- cated. 1976 Hlalloran had filed a grievance over the fact that an- other truckdriver, junior in seniorit' to hiim, had been as- signed a new tractor to drive. On January 10 -alloran, accompanied b employee Patrick ('harlebois. approached admitted Supervisor C'harles LUber at the s arehouse dis- patch window and inquired about the status of his griev- ance. According to Halloran and ('harlebhois. iUber replied that Jack Beedlow. maintenance superintendent. had said that Halloran should not worry about the assignment of new equipment or getting a new tractor because he was not going to be around long enough to use one. tiber denied that he made any such statement or that Beedlow had aid anything of the sort. Uber testified that he and Beedlow had decided that the junior employee should he assigned the new tractor because it was an experimental model (having a type of engine not theretofore used by Respondent Fisher). and the junior employee was a more reliable driver and would give the equipment at more accurate test, and that this is what he told Halloran. I credit Halloran and Charle- bois. both of whom impressed me favorably on this point. Halloran gave an impressive recitation of the encounter even though throughout he was repeatedly interrupted hb frivolous objections from counsel for Respondent Fisher. Respondent Fisher argues that Charlebois should be dis- credited because he responded negatively about such an incident having occurred when he answered interrogatories in a collateral suit in Federal istrict ('ourt I reject this contention because the question in the interrogatory as compound and confusing and did not mention l!ber b name. It is not surprising that an ordinary witness, even with the assistance of a lawyer would have missed the gra- vamen of the question as stated. Finally Uber was too smug and his answers, too pat on this issue to be cred- ited. The complaint alleges that on January 28 Ziedonis threatened an employee that a subcontractor would take over Fisher's operation and that employees would be termi- nated as a result. Employee )on Roberts testified that near the end of January he approached dispatcher Ziedonis at the dispatch window and asked wh, he had not been given a run for which he thought he had sufficient illowable driv- ing hours remaining in the week. Roberts' testimon> of Zie- donis' reply is: "He told me that I wasn't going to et the back haul, it was already gone, and that there would be some people missing out of the ranks because it would be thinner . . . [because] Rentar was coming in from Chicago [T]hey will thin the ranks down." There was no at- tempt to explain how the inquiry about a backhaul would have precipitated the comment about thinning the ranks. Moreover. the General Counsel had to caretully guide Rob- erts to connect the thinner ranks portions of the testiony to Rentar. According to this record, no one below the Fazio-Duvin level of the management hierarchy knew of Rentar in January, and Ziedonis credibl> denied ha;ing heard of Rentar before March. While people occasionall engage in non sequiturs in conversation, there is simpl no explanation for such a comment as that described bv Rob- erts. especially at the time that he testifies it was made. Accordingly, I cannot credit Roberts and I do credit Zie- donis, a particularly candid witness who credithbl' denied that he made such a remark. The complaint alleges that near the end oft January Re- 689 DI)L('ISIONS OF NAI lONAL IABOR RELATIONS BOARD spondent Fisher's route supervisor. )ave Walters. threat- ened "an employee driver that the drivers would no longer he working in Respondent Fisher's southern division he- cause the drivers were not cooperating with the Respondent Fisher with respect to contract negotiations therehb costing Respondent Fisher too much money." Employee Ron Nowak testified that about the end of January 1977. after the contract was ratified by the membership. he made a delivery to one of Respondent Fisher's stores in Dayton. Ohio, which is part of the southern division of Respondent Fisher's Ohio operation. Nowak testified that on this visit Walters called him into the store manager's otffice and told him that he had heard Corporate Vice President Tom Kelly say at a supervisors meeting that Respondent Fisher was contemplating contracting out the southern division be- cause the drivers were costing Fisher too much money. Walters, according to Nowak, stated "that it would be a possibility that some of us drivers might be losing our jobs over this." Nowak acknowledged that Walters also said that he "did not understand how Fisher Foods planned to get away with this action . . . the Teamsters would not go along with the program that Fisher Foods was anticipat- ing." It is undisputed that Walters is a midlevel manage- ment person who reports directly to Kelly, and the several store managers of the southern division report to Walters. Walters did not testily. On March 2 Respondents executed the driver leasing agreement which is attached to this decision as an appen- dix. It is by virtue of this agreement that the General C'oun- sel contends that Respondents are made out to be joint Employers. On the date of the execution of the driver leas- ing agreement, agents of the Union met with officials of Rentar at a local motel. In attendance were Anthony Apa, Sr., vice president of Rentar. and his two sons, Anthony. Jr., and Michael, and John Tanski, president of Local 407: Cecil Kinney. vice president: Thomas Eddie Lee, secretary- treasurer: and Phil Fusile, business agent. No one repre- senting Respondent Fisher was present. At this meeting, according to Kinney, the driver leasing agreement was pre- sented to the Union as a fait accompli by Apa. The union representatives abruptly terminated the meeting, saying that they would have to hear of it from Fisher, and also that they would not discuss the matter without the presence of Local 400, which represented produce delivery employees, and Local 336, which represented the ice cream drivers of Respondent Fisher. On March 21 a meeting was conducted which included representatives of Locals 336 and 400: John Fazio, president of Respondent Fisher: the Apas: and the same representatives for Local 407. Fazio confirmed Apa's representation of March 2. The locals responded that Re- spondent Rentar would be obligated to assume the labor agreement which Respondent Fisher had executed on Janu- ary 31 and that all drivers would have to be employed by Respondent Rentar with full seniority credit. Apa verbally agreed to these demands: the locals then demanded that Apa's agreement be put in writing, and he agreed that this would be done. The locals inquired of Fazio what would happen in the event the March 2 contract was terminated. Fazio stated that Fisher would, according to Kinney, "reas- sume the contract if the operations came back under his direction-the direction for Fisher's and would assume the drivers with their full company seniority." The Unions asked [Fazio to put this promise in writing, and apparently' Fazio agreed to do so. At the March 21 meeting it was agreed that a meeting of all employees affected would be conducted by Rentar to explain the driver leasing agreement. A notice on union stationery which was signed by John Tanski, president, I'homas 1'. Lee. secretary-treasurer, and Jim Kinney, vice president. and dated March 21 was posted at the ware- house, stating: N()ll( t 1(: Al.L I ()(AI l NION, NO. 4(17 )RIVERS iMPI OYI I) BY FISIER FO()Ol)S, IN('.: IIIFRIF vi.iL. Il A ME iN(; 1111 1) BY RNIAR ('(IRPO)- RAII()N, (N MAR(II 27. 1977, 2:IX) P.M. Al IIIF H(l.ll)AY INN, 6001 R('KSII)F ROAD, INI)I.PENI)IN('E, 01110, (I EX- P1 AIN 'II-tIR INIENI Ii) IAKI ()V}!R lilt IRUCKING (OP- IRAIIONS OF FISIILR F())l)S, IN( ., II F( lIIVE APRIL 3, 1977 AN) O() ANSWFIR ANY 0QIl Sll()INS lt-E MEMBEtRS MAY PARII( I'AIIN(i IN iitS MI.ltIN(i 'WIl.l BH 1111- I)RIV- I:RS ()1: I.)('A. NO(). 407. I.()('Al. NO. 336, ANI) .()( Al. NO(). 4(00 AND) Ii` (I-1( lIRS )t 11tilE IIIRi (3) RSPII('IIVI I.O)( AIS. II IS VIRY IMP()RIANI IHAI EVERYONE Al'll:NI) IIS MI I N(;. Employee Halloran testified that around the time this no- tice was posted he was asked by Ziedonis whether he was seeking employment and what he was going to be doing "when the new people came into Fisher Foods." Halloran testified that Ziedonis also said that there were going to be a lot of changes made. Ziedonis did not deny this question and statement, which the complaint also alleges to be viola- tive of Section 8(a)( I ). The meeting announced by the March 21 notice was held as scheduled. It was conducted by Anthony Apa, Sr., and was attended by officers of Local 407 as well as the two other locals which represented the Fisher drivers. Fisher representatives attending were Frank McDonald, Senior Vice President Joseph Vigliotti, and the vice president over produce. Joseph l.amanna. Upon arrival, the 200 employ- ees were presented packets of approximately 25 forms, in- cluding a Rentar application form. According to a tran- script which was taken, Apa began the meeting by explaining that Rentar was a substantial Company which had done business with Fisher for years in different local- ities and that it also serviced other large accounts through- out the country. He stated: "[Oln April 3, when this thing comes into effect, everybody here in the room who is now present will at that time become employees of' Rentar Driver Services. We will supervise. We will police, we will administer any policy that we have in our table of organiza- tion. We're a fine company. We're gentlemen." After other remarks Apa stated that the forms in the packet which had been distributed had to be completed and in Rentar's files Kinney, who was the only person who was examined in detail about the March 21 meeting, was not specifically asked whether Fazio at that point promised lo reduce this last assurance to writing. but he indicated on cross- examination that he got all the union-requested assurances from Fazio and that at the March 27 employee meeting discussed mnfra Apa stated to the employees that such assurances had been given by azio on March 21. h90 FIShtlER F())I)S IN( (in ('hicago), h I week after it began to he the Employer on April 3. Although the rnion's notice of March 21 had stated that questions from employees would he answered. Apa made it clear from the start that questions from the floor would not be welcome. Apa stated that he had received questions from the three unions the Monda! before and would read and attempt to answer them. The first such question was. What would happen if either Fisher or Rentar canceled the agreement between them'? Apa's repl' sas: Everything in the event whomever chooses to dis orce each other from this contract. everything reverts hack to status quo as of the present: and that will he gixen in writing before the day of the takeover to our l ocal Union. I gave that promise, as Mr. John Fazio did. on Monday of this last week. Apa answered 14 other numbered questions on such topics as method of dispatch (the same), separate seniority lists (they would maintain separate lists for the separate divi- sions, but "flexibility" was going to be requested from the locals and the drivers), and severance pay (there would be none, because the "changeover" was not a discharge of the employees). Apa thereafter. with expressed reluctance. en- tertained questions from the floor. The first was from Schillo. who asked if Rentar was assuming "the full existing contract with Fisher Foods." Apa replied. "In its entiret'." and asked for verification of that from the union represen- tatives present. Lee expressed concurrence on the part of Local 407. Schillo also asked a question about the necessity of the forms, lack of severence pay. and payroll procedures. Employee Pat Charlebois asked how long Rentar would stay (Apa's answer: "Our contract with Fisher Foods is as long as your contract is"), and Charlebois repeated the question of what would happen if the Fisher-Rentar con- tract were terminated (Apa's answer: "You go back as Fisher employees. That we agreed to put in writing"). Koniar asked about the existence of a blacklist; Apa denied knowledge of such and, to applause, stated that all employ - ees would be treated fairly. Jim Banyard, steward for Local 407, asked if the grievance procedure would remain the same: Apa said it would. There were several other questions put to Apa by em- ployees in the three locals. All questions and answers were of a civil nature until employee Ron Nowak took the floor. After asking repetitive questions, Nowak embarked upon a desultory question-oration which took a full page of the transcript. The tone of the meeting quickly degenerated when Apa attempted a response. Apa asked if Nowak was understanding him; Nowak replied, "No, I don't under- stand nothing because I'm Polish...." Thereafter foillowed an exchange between Apa and Nowak in which both were sarcastic and profane. Not atypical of Nowak's remarks to Apa was: "I asked you a question. If you're too indirect to answer the question. sit. Otherwise don't be ass smart." In an attempt to demonstrate that the March 27 meeting was conducted in a coercive atmosphere. the General Counsel and Charging Party introduced testimon to the effect that there were persons in the audience who were nonemployees and armed with guns. These individuals were identified as Eddie L.ee, the union secretar-ltreasurer. and several others w. ho were not identified hb nic. but onl as "''riggers" who s erc members of l.ocal 4()7. Thele is no eidellnce that Respondents kelN i the riggers or a one else present possessed firearms. Schillo lestified that alter the meeting was concluded he approached V\ilglott and re- peacted the questions about s erlaice pa! itand consequences it the Ilsher-Renitar aereeient ssere termlnaled. Schllo tes- titied that Vigliotti stated that the emplo, ees were not re- ceil lng se :crance pa; because their rel.ationship wsith Is her s\as not being severed and Ilthi Rentar w; as being hrought in onl to help in the management. Schillo testiftied that V\gli.otti added that the rittenl assuranicc mentioned b Apa ould he given to the I nion hb April 3. Vighottl tlitl? denied talking to Schillo ifter the iecting terminated. aind he as joined ill this denial hb l.amanna. Both men testied thit as soon s Apa termlinated the meeting. the, eited together as fast as possible. I credit Schllo's testinonl about this exchange. lie mpressed mne as a thoroughl credible wkitness on this point. and I do not belie e he .ts making up the story out of whole cloth. Vigliottl and anm;annna were beating a hast retreat rom the meeting. which had heated p after the Nouak-pa1 deh;bcle. and I find it more probable that neither remembered Vigliotti's ans, ers. which were. in essence. a repetioin of A hat \pit had said at the meeting Not satisfied ,kith the anssv er he recei ed from Apa or Vigliotti. Schillo attelptted several times to call Tanski. Taski. according to Schillo. id not return his calls. Employee Roberts testified that. on MNlarch 29. M;lanager of Fleet Operations Jack Beedlow told him that "\hen Rentar ook oer there would he abeout 20 people in the motorycle gang missing." This statemenit the (eneral ('ounsel alleges to be a threat. since Roberts testified thiat the term "motorcycle gang" had been used b several per- sons to refer to those emplosees who aggressiely engaged in union .ind protected-concerted activities. Regardless of what the term "motorcycle gang" meant to various persons around the shop. I find th;it Beedlo% d id not m;ake the threat alleged. Beedlosu denied the threat and further de- nied having previously heard of the term "motorccle gang" around the shop. Roberts' testimony was presented in a complete acuum; no attempt was made to gise the context of the remark, nor was there the slightest suggestion of why Beedlow would have singled out Roberts to nimake the statenment to. Moreover, Roberts injected gratuitous, nonresponsive remarks into his testimnon) an obvious efttort to assist his foriler' fellow employees. thus presenting n unfavorable impression. Because of his demeanor and the failure to establish any plausible setting for the alleged re- mark, I discredit Roberts. The complaint alleges that during the week following the March 27 meeting an employee (Nowak) was threatened hb l]her and dispatcher Finlev because of his asking questions at that meeting. Regarding Uher, Nowak testified on direct as f)lloas: Q. Could ou tell us what, if any thing. Mr. ;her said to you and what you said to Mr. I 'her? A. Mr. her told me that I should he taching mi step. Al the lmcl of the he.ring R i,erts hlad rcrred hbcause of h, he.llh. I)62('ISIONS OF NATIONAL LABOR REL.ATIONS BOARI) Q. Did he say anything else? A. Because of the March 27th meeting. Q. Did he say anything else'? A. Not that I recall at this time. Q. Did he mention anything about a list? A. Yes, he did. Q. What did he say? A. That I was on a so-called black list. Q. Did he give you a reason why? A. He was relating to the March 27 meeting. Q. What did he say in regard to the March 27 meet- ing? A. That because of Mr. Apa and me and the ques- tion and answer period, that I -the questions I asked Mr. Apa. Q. Do you recall anything else that was said? A. No, I don't. Uber denied mentioning a blacklist. He did testify: I told Mr. Nowak that that was a really dumb way to start off a new relationship with a new employer with an outburst like that and that it wasn't called for and, he, more or less, agreed ... He said, "Yes, I know. It just happened." Uber's account of Nowak's contrition is corroborated by the testimony of Charging Party Banyard and Apa that during the meeting of April 5, discussed infra, Nowak ex- tended (and Apa accepted) an apology for his March 27 conduct. The fear of a purported blacklist is at the core of the General Counsel's theory of this case, yet Nowak had to be dragged through his testimony that Uber even men- tioned a blacklist and that Uber related the chastisement to a purported blacklist. For this reason, and an insolent de- meanor, I discredit Nowak. Moreover, in giving his denial of the alleged threat, Uber gave a logical account. and his demeanor impressed me favorably. Nowak described Finley's remark during the week as fol- lows: Q. What did Mr. Finley say to you, if anything? A. He said that he understood I had made quite a name for myself. Q. Did he say anything else? A. Yes, he did, that-we got into a conversation about Tony Apa again, that I made myself quite a name with Mr. Apa, and that I related the fact that he asked what I would be doing for a job when the take- over took place, and that I might have to be looking for a job. And he related the fact that "you probably can never tell." Finley testified that Nowak had told him that he had asked a lot of questions and caused quite a bit of disturbance. Finley testified that he only replied: "[T]hat was nice way to start out with your new employer." Finley added that Nowak replied, "That's the way it goes," and the conversa- tion terminated with both men laughing. I credit this denial by Finley. Nowak, like Roberts, punctuated his testimony with gratuitous vituperations toward the Union and Re- spondents and bore a sullen attitude which rendered him incredible on this point as well as others. The complaint alleges, as another independent violation of Section 8(a)(l) by Respondent Fisher, that, on the last workday before the effective date of the drive service agree- ment, Uber threatened an employee in violation of 8a)(1). In support of this allegation. employee Hlalloran testified that on April I Uber shook his hand and said that it had been nice working together. Halloran asked Uber if he was going somewhere Uber replied that he was not. Halloran stated that he planned to go nowhere, and Uber replied. "[D]on't be too sure." Uber credibly testified that he told all employees on April I that it had been nice working with them, as that was the last day Fisher would he their em- ployer. In giving this testimony tiber was generalizing, and it was quite obvious that he had no recollection of the state- ment he made to Halloran as opposed to those he made to other employees on that day. For this reason I credit Hallo- ran's account. At the April 3 meeting of the Benevolent Fund, several of the drivers conferred with an attorney regarding their fears about the Rentar situation. The attorney advised them to seek answers from their union representatives. The employ- ees proceded to the hall of another area labor organization. where they found Tanski and Kinne." Tanski told the em- ployees that they were still Fisher employees, that they need not fill out the forms in the packet presented to them on March 27, and that the Union would negotiate with Rentar which forms would be completed. Tanski further told them that he had consulted legal counsel, and the Union would secure from Rentar and Fisher a written agreement which would guarantee their security in the event that the Fisher-Rentar agreement were terminated. Tanski showed the employees an unsigned form which was constantly referred to throughout the hearing as the three- party agreement. He stated that he would meet with Apa and Fazio the following day, when he would secure their signatures. He further stated that an employee meeting would be conducted on April 9 to explain the results of his meetings with the Employees. Tanksi specifically told the gathered employees not to engage in any type of w ork stop- page over the matter, but rather to resort to the grievance procedure if they felt there was a violation of the contract. Tanski told stewards BanNard and Nowak" to go to the Teamster hall on the ollowing day to discuss the negotia- tions with Rentar and Fisher. At 12:01 a.m.. April 4 Apa appeared at the warehouse to take over the operations. As drivers reported to work through the morning, Apa interviewed them individually and in groups. He reintroduced himself' told them that he intended to implement a few changes immediately, re- minded them of the necessity of filling out the fbrms in the packet, and offered to answer questions. Schillo asked if Apa was planning to meet with Tanski to sign the three- party agreement that day. Apa replied that he knew noth- ing of a three-party agreement" and had no plans to meet with Tanski. At the desk at which he was seated Apa had r' Tanski did not testilfy the lindings o this paragraph are hased on the testimony of' emplo)ees and nion Vice President Kinney Nowak was made a steward after he March 27 meeting , This was true. While, during the March 27 meeting. Apa had promised the employees that Rentar and Fisher would sign agreements insuring their security. he had not promised a single agreement signed by the nion. Fisher, and Rentar. Nor did V'igiotii meniin three-party agreement in his exchange with Schillo ter the March 27 meeting In Ihct. there as no mention of a three-party agreement h anwone until anski b rought it up on April 3 692 FISHER FOODS, INC. before him several copies of the drivers dispatch sheet. which is a two-column chart with the names of all regular drivers listed in order of seniority. Employees Halloran. Schillo. Charlebois, and Koniar testified that when they ap- peared for such interviews, they noted that there were marks or inked "dots" by six or eight employee names, in- cluding theirs and that of Nowak. It is apparent that the employees thought that they were then looking at a "black- list." Each of the employee witnesses testified that the dots were placed by the names of the employees most vocal in the opposition to concessions to Fisher in the negotiations preceding the January 31 contract or to the Fisher-Rentar agreement or to both. Ziedonisl3 confirmed that the six or eight employees were "spokesmen" for employees regarding various matters, such as grievances and negotiations. Halloran testified that, during the day following his no- ticing the dots on the dispatch sheet, he asked dispatcher Ziedonis what the dots were for. According to Halloran. Ziedonis replied that Apa had been inquiring as to what kind of driver he was, what his attitude was, and what his performance had been. Charlebois testified that he also asked Ziedonis on April 4 the purpose of the dots. Charle- bois relates the conversation of that day thusly: Q. What did you say to him and what did he say to you? A. I asked him what these dots were next to the names that were on the seniority roster, dispatch ros- ter, and he said, "Well, those are the guys that they are going to get rid of." And I said, "Seriously, what is this, what does this mean? And he said, well Tony Apa, Sr. had asked him about these people that were on this list that had the dots after the names, what kind of employees they were, if they gave him any trouble, if they came to work every day. Generally, that was in the conversation. Ziedonis admitted these conversations, and he freely ac- knowledged that Apa had not only asked these questions but also asked which of the employees on the dispatch sheet were "troublemakers." Apa's account of the dots, their numbers, and the reasons for them consisted of extreme implausibilities and inconsistencies. On direct examination he testified that he made marks by the names of those em- ployees who had asked questions, not specifying whether the questions to which he referred were those raised at the March 27 meeting or those raised during the interviews he conducted. Apa testified that, after some of the employees were interviewed, he asked Ziedonis how long each had worked there and that Ziedonis asked why Apa was asking. Apa's account of his reply to Ziedonis is convoluted to the point of unintelligibility, but it began with the statement that these were the ones who had asked him questions and ended with the assertion: "I should extend myself to make sure that he [the type of driver who asked questions] got off at the right foot." On cross-examination Apa said that he placed marks by the names of all drivers that morning and that there was "no way" there could have been marks by only the names of six or eight. He further denied on cross- examination that he asked Ziedonis if any of the drivers were troublemakers. I credit Ziedonis. a straightforward. candid witness. who testified that between 4 and 6 a.m. Apa asked questions about the group of employees whom Zie- donis identified as "spokemen." including Schillo, Halloran. Nowak. and Charlebois. One of the questions asked was if any were troublemakers: Ziedonis told Apa that they were not and that each was a good worker. According to Zie- donis. as he asked about each truckdriver, Apa made a mark by his name with a felt-tip pen. I further find that these were the marks seen by Halloran and Schillo, who credibly withstood extensive cross-examination on their tes- timony that they saw these marks on the sheet at 6 a.m., and, obviously, Apa had to have made the marks before they arrived. As noted above, at the April 3 impromptu meeting, Tanski told stewards Nowak and Banyard to come to the union hall at 9 a.m. on April 4 to prepare for a meeting with Rentar and Fisher. When Banyard and Nowak ap- peared they were told by Kinney to leave, as there was no meeting to be conducted. Banyard and Nowak were paid for their loss of working time by the Union. On April 5 Tanski and Kinney met with representatives of Rentar and Fisher. The Union presented the three-party agreement form to the Employers and stated that the Union's law firm had decided that the agreement had to be signed in order to insure the members' security. Both Rentar and Fisher refused to sign the document presented. Intead, two separate agreements were reached. Rentar and the Union executed an agreement by which Rentar recog- nized that it was "a full successor employer to Employer- Fisher. is willing to fully assume the terms and obligations [of the January 31 Fisher-Union contract] and to continue employment of all currently employed Fisher drivers cov- ered by [that agreement) and to recognize and credit the seniority . . . of all such drivers for all employment pur- poses." Rentar further agreed to execute the Fisher-Union agreement, which it then did. Also on that date the Union was given a letter from Charles W. Fazio, vice president of Respondent Fisher and son of John Fazio, who was then in Los Angeles. The letter, inadvertently dated April 5 and addressed to Tanski and Lee, stated: Gentlemen: Below is the agreement reached between Fisher Foods and Truck Drivers Union, Local 407 in a meeting held at Fishers on Tuesday, April 5. 1977. In the event that Fisher Foods reassumes the deliv- ery operations during the life of the present 1976-1979 labor contract, Fishers will offer employment to the drivers then actively involved in their deliveries and will assume the obligations of the aforementioned col- lective bargaining agreement. Fisher will recognize and credit the length of service of all drivers covered for the purpose of employment including but not limited to seniority rights, vacation, holidays, health and welfare benefits, and pension benefits. Yours sincerely. /s/ Charles W. Fazio 13 At the time of the hearing Ziedonis was the transport superintendent. the position previously held by Uber. Charles W. Fazio 693 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Tanski, Lee, and Kinney accepted the letter as an agree- ment and signed it on behalf of the Union. After the above agreements were signed, the union and Rentar representa- tives negotiated which of the 25 frms were to be completed by the drivers, and 20 were agreed upon. On the following day, April 6, Apa, Business Agent Art Majewski, and stewards Banyard and Nowak went over the forms which were to be completed. At this meeting the Union agreed to a I p.m., April 7, deadline for completion of the forms. While the men were reviewing the forms, Nowak asked where the three-party agreement was. Ma- jewski replied that there was none, but that Rentar had signed labor agreements with the Union. Majewski also told Nowak that all of the employees' rights would be pre- served by the Union-Rentar agreements." There is no evi- dence that Nowak and Banyard were told of the Charles Fazio-Union letter of agreement. A notice was posted by the Union detailing which of the forms had to be completed and giving an explanation of their purpose. The notice was signed by Tanski, Kinney, and Lee. Also posted was a notice signed by those three that a meeting concerning the transition from Fisher to Rentar would be conducted by the Union on April 16 and that employees should submit any questions about the tran- sition by Friday. April 8. Across the bottom of this notice Banyard scrawled a message that the announced meeting replaced the one previously scheduled for April 9. A third notice was posted stating that the required forms had to be completed by I p.m. on April 7 or the employee would not work an would not be paid. Gerald Schillo was not scheduled to work on April 6. He had tried to contact his union representatives during that day by calling the union hall. He was told that none of the representatives were in town except Majewski, who was at the Richmond Road warehouse. He went to the warehouse in search of Majewski. He did not find Majewski, but he did see the three notices posted. He did not know that they were the product of negotiations between Rentar and the Union. Schillo began calling fellow drivers and urging them to come to a local tavern to discuss the matter. One of the employees called was Nowak, who also began calling em- ployees. When he was called by Schillo, Nowak did not mention the agreements Rentar had signed with the Union, the assurances by Majewski, or the fact that the forms had been negotiated by the Union. Nor in calling other employ- ees to gather at the tavern did Nowak mention these facts. After an exercise in evasiveness which consumed six pages of the transcript, Nowak stated that he did tell "several" employees (whom he could not name except for employee Kinsey'5 ) of these facts after reaching the tavern. During the evening the employees came to the tavern, and at some point it was decided that they would proceed '1 It was also during this meeting that Nowak apologized to Apa for his obstreperous conduct during the March 27 meeting. Apa accepted the apol- ogy. " Nowak testified that he told employee Kinsey. and others, that the forms had been negotiated with the Union. The transcript at various points incorrectly names "Kinney" as the employee mentioned by Nowak. Respon- dent Fisher's motion to correct the transcript in this regard is granted. The motion additionally to correct the transcript to insert another complete ques- tion and answer in the transcript of Nowak's testimony is denied. to the warehouse en masse. About 10 employees, led by Schillo, approached the warehouse at midnight and de- manded of dispatcher Ziedonis that they be told just who they were working for, Rentar or Fisher. Ziedonis referred the men to Vigliotti, who was then contacted by telephone. Schillo asked Vigliotti who they were employed by. Vigliotti replied that they were employed by Rentar. Schillo asked if the three-party agreement had been signed: Vigliotti replied that it had not. Vigliotti urged Schillo to tell the employees to go to work at their scheduled starting times. As he testified, Schillo replied, "Well, we're not working for Rentar because we don't have any contractual arrangements that I know of." As he acknowledged on cross-examination. Schillo was demanding the three-party agreement as promised by Tanski on April 3. As Schillo further acknowledged on cross-examination, the strikers were demanding physical production of that agreement be- fore the strike would be terminated. When asked if the em- ployees would have accepted Vigliotti's verbal assurances that the three-party agreement had been signed, Schillo re- plied: "f he would have told us, I don't think we would have went to work. He would have had to produce it to us." After this exchange, picket lines were established at the warehouse and commissary by Schillo and those he led. During the early morning hours Apa appeared. It is undis- puted that Apa told Schillo and all the other strikers (in- cluding Nowak, Halloran, Koniar, and Charlebois) that, if they would discontinue picketing and report to work (im- mediately or as scheduled), none would be discharged. This appeal was rejected, as were appeals by the Union, which included production of the Union-Charles Fazio letter of agreement, and the strike continued. Several employees were asked by the General Counsel why they went on strike. Their answers all fit a pattern: when asked on direct for a recitation of the reasons they went on strike, they invariably mentioned the alleged threats by Fisher; on cross-examination they did not men- tion, or disavowed, the allegation that the strike was caused in whole or in part by the threats. The testimony of Schillo was the archetype: on direct he listed threats and "harass- ment" as causes for the strike, but on cross-examination he stated unequivocally, "I wasn't striking because I was threatened that they were going to [subcontract]. I was striking because they did subcontract to a driver leasing company." The testimony on cross-examination of all other witnesses of the General Counsel was consistent: they were not going to work for a driver leasing company, at least not without the three-party agreement which Tanski had prom- ised them on April 3, and this is what they told manage- ment officials of Fisher and Rentar at the inception of the strike and during its course. Accordingly, I find that the causes of the strike were: (1) Respondent Fisher entered the driver leasing agreement with Respondent Rentar, (2) Respondent Fisher and Re- spondent Rentar refused to enter the three-party agreement promised the employees by Tanski, and (3) Respondent Rentar was requiring them to execute the forms agreed upon by the Union, and the employees struck rather than execute the application forms because they perceived that doing so was an acknowledgment that they would there- 694 FISHER FOODS. INC. after be employees of Respondent Rentar as opposed to Respondent Fisher. On the evening of April 7 a meeting of Rentar and union officials was conducted at the office of a Rentar attorney. Present also were Schillo and other strikers. The Union and Rentar again urged the strikers to cease the strike immedi- ately and file grievances over their dispute.'6 Schillo and the others refused, whereupon the attorney produced a list of 27 employees who were fired immediately. The remainder of the strikers were fired by telegrams sent by Rentar on April 28. These telegrams stated that the employees were fired for excessive absenteeism, which, under the circum- stances. is tantamount to discharge for continuing their strike activity, and I so find and conclude.' D. Discussion and Concluding Findings 1. Alleged violations of Section 8(a)(1): joint employer status of Respondents The allegation that Respondent Fisher, by Duvin, vio- lated Section 8(a)(1) of the Act by telling the Union that it was considering subcontracting parts of its operation can- not be sustained. The remark was made in a context of bargaining where, if anything. Respondent Fisher was re- quired to disclose any thought of subcontracting. Whether the remark was made to satisfy Respondent's statutory ob- ligation or as a tactical maneuver to secure more favorable contractual terms, there is no element of interference, re- straint, or coercion and therefore no violation of Section 8(aXl1). Accordingly, I recommend that paragraph 8(a) of the complaint be dismissed. Nor is there a coercive element in Duvin's remark that he did not care whether the employee bargaining committee members recommended ratification of a contract or not. While it is difficult to envision any circumstance wherein such a statement could be considered violative, certainly there is no such circumstance here. Schillo and Charlebois had told Duvin they would recommend a previous con- tract; then, after the votes were counted, they posted a no- tice thanking the employees for rejecting it. In such circum- stances Duvin's remark amounted to nothing more than a statement that he considered Schillo and Charlebois un- trustworthy. Accordingly, I recommend that paragraph 8(b) of the complaint be dismissed. Duvin's statement that he was attending a bargaining session because that is what the law required him to do is alleged to have violated Section 8(a( 1). The General Coun- sel suggests no authority for such a proposition, and, of course, none can be found. Employers are not required to like the law that requires their presence at bargaining ses- sions; they are only required to be there commensurate with the requirements of Section 8(d) of the Act. The Gen- eral Counsel's contention in this regard is reduced to the proposition that employers may not like the law, but they cannot say so even in the midst of heated, protracted nego- 4" The Union threatened to expell the employees from membership i they did not terminate the strike immediately. The nion later led trucks con- veyed through the picket line. " See Kellogg Company. 189 NLRB 948 (1971). tiations. The free speech provision of Section 8(c) makes it clear that Congress intended to insulate such expressions from unfair labor practice allegations. Accordingl., I rec- ommend that paragraph 8(c) of the complaint be dismissed. There is no element of interference, restraint, or coercion in Uber's January 10 statement to Halloran that he need not worry about receiving new equipment since he (Hallo- ran) would not be around long enough to drive it. Halloran had no salient union activity; the complaint alleges no nex- us between Uber's statement and any protected activities of Halloran, and the record suggests none. Thus, the allega- tion rests upon speculation. an improper basis tor finding that an unfair labor practice has been committed. Accord- ingly. I recommend that paragraph 8(d) of the complaint be dismissed. I have found that Ziedonis was not a supervisor within the meaning of Section 2( 11) of the Act. Therefore no find- ing of a violation can be based on his alleged threats. More- over, I have discredited Roberts' testimony that in January Ziedonis said that Rentar was being brought in to thin out the ranks. Additionally, even assuming a supervisory status for Ziedonis and the accuracy of Roberts' testimony, I would find no violation. Again, the complaint alleges no nexus between the statement and the protected activity of Roberts or any other employee. Ziedonis is not alleged to have said that any particular group of employees would be eliminated, and to infer that he meant such is, again, specu- lation. Accordingly, I recommend that paragraph 8(e) of the complaint be dismissed. In the January Nowak-Walters conversation in Dayton, Walters stated that Respondent Fisher was contemplating subcontracting the southern division of the operation be- cause the drivers were making more than the supervisors and costing Fisher too much money. Walters added that he did not see how Respondent Fisher could get away with subcontracting the work as long as the Union was around. Duvin had previously told the union negotiating committee that the drivers' receiving hourly rates for runs over 75 miles was costing Respondent Fisher $750,000 per year in excess of what the labor cost would be if such runs had a mileage rate, as was the case with Respondent Fisher's competitors, and, therefore, Fisher was contemplating sub- contracting the work. As related by Nowak. Walters' state- ment consisted of little more than those made by Duvin on the topic: it was couched in terms of economic consider- ations rather than suggesting retaliation for any protected activity of Nowak or any other employee, and it was cou- pled with an opinion that the Union would not let the em- ployees suffer because of the contemplated action by Re- spondent Fisher. Therefore, there is no element of interference, restraint, or coercion in Walters' remark to Nowak. Accordingly, I recommend that Section 8(f) of the complaint be dismissed. Since Ziedonis was not a supervisor or agent of Respon- dent Fisher, it is not chargeable to Respondents that on March 21 he asked Halloran if he was seeking work else- where because Rentar was coming in. Moreover, there is nothing in the question to imply that Respondent Rentar was going to discharge Halloran for protected activity or any other reason. The record is replete with references to 695 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees' distrust for Rentar. In the circumstances the nature of the question was that of asking Halloran if he was going to quit because of the presence of Rentar. In either event there is no violation made out by the General Coun- sel on this point, and I therefore recommend that para- graph 8(h) of the complaint be dismissed. I have discredited Roberts' account of a March 29 threat by Beedlow which was couched in terms of members of a "motorcycle gang" being missing after Rentar came. More- over, there is no probative evidence that the term "motorcy- cle gang" meant anything to anyone at the warehouse ex- cept Roberts, who considered the term to refer to notoriously outspoken employees. Therefore, I recommend that paragraph 8(i) of the complaint be dismissed. On April 1 Uber told all truckdrivers that it had been nice working with them. In the discussion that followed, Uber told Halloran that he should not be too sure that he (Halloran) was not going somewhere. Like all other truckdrivers, Halloran was to be transferred, at least on paper, to the status of an employee of Rentar on April 3. Uber's remark is therefore no more than a statement "that he would no longer be employed by Respondent Fisher in the future," as alleged in paragraph 8(g) of the complaint. However, the statement does not constitute a "threat" as further alleged in that paragraph; it is no more than a re- mark consistent with Fisher's position that, after April 3, the employees would be employed only by Rentar. More- over, assuming that Uber's remark constituted a threat, there is no way short of speculation to conclude that it was premised on the protected activity of Halloran or any other employee. Accordingly, I recommend that paragraph 8(g) of the complaint be dismissed. The General Counsel contends that, after Nowak's per- formance at the March 27 meeting, he was told by Uber that he was on a blacklist and that Finley asked what he would be doing for a job after Rentar came in. I have dis- credited Nowak's testimony regarding both alleged re- marks, and, of course, I have further found that Finley was not a supervisor within the meaning of Section 2(1 1) of the Act. Moreover, even as related by Nowak, Finley's remark was more in the nature of good-natured teasing. Apa had made it clear that he wanted no questions from the floor. Nowak not only persisted for 20 minutes in badgering Apa with unwanted (and sometimes incomprehensible) ques- tions but also did so in scurrilous terms. He was met in kind by Apa to the undoubtable amusement of all present. It is hardly surprising that word of the spectacle reached those who had not attended, such as Finley. Finley's greeting, even as accounted by Nowak, was that of an amused co- worker and contained no hint of a threat. Accordingly, I recommend that paragraphs 8(j) and (k) of the complaint be dismissed. Paragraph 8(1) of the complaint alleges that, in violation of Section 8(aX i), "[O]n or about April 3, 1977, Respondent through a Respondent Fisher's supervisor at the Bedford Heights, Ohio facility imposed a requirement on all grocery and meat drivers that they sign new employment applica- tions in order to continue working for Respondent." Since only Rentar officials insisted upon the completion of the applications, it is necessary to resolve first the issue of whether the March 2 contract made Fisher and Rentar joint employers. As originally stated in Sakrete of Northern California, Inc., 137 NLRB 1220 (1962), and recently in L. E. Davis, d/bl/a Holiday Inn of Benton, 237 NLRB 1042 (1978), the principal factors to which the Board looks to determine whether arguably separate employers will be treated as joint employers are interrelation of operations, centralized control of labor relations, common management, and, in some cases, common ownership or financial control. Here, under the terms of the February 2 agreement, the opera- tions of Rentar and Fisher-Fazio are interrelated to the point that Rentar has no apparent identity apart from that of Fisher. Indeed, there was no capital investment by Rentar in the venture. The wages and other terms and con- ditions of employment of the Rentar employees were estab- lished by the contract originally signed by Fisher and adopted by Rentar because of union insistence. The origi- nal employee complement of Rentar was hired by Fisher; the continued tenure of each is dependent upon the satisfac- tion of Fisher. Fisher continues to control dispatching of all drivers, even to the point of specifying the routes to be taken. In brief, after the effective date of the February 2 agreement, Rentar was to handle the paperwork, deal with the Union.s and little or nothing more. Under such circum- stances Rentar and Fisher are joint employers, and I so find and conclude. Since Respondents are a joint employer, the employees did not, under the National Labor Relations Act, lose their status as employees of Respondent Fisher. They were not discharged by Fisher, nor does the General Counsel con- tend that they were. The employees did not lose Fisher as an employer; they gained Rentar. They woefully resented Rentar, and they resisted signing applications which consti- tuted acknowledgment that Rentar was an employer of theirs. While the dischargees resented the application forms, there is no dispute that the requirement (and the designation of each of the 20 of the original 25 forms) was the subject of negotiations with the Union. Additionally, the designation of the hour at which the forms were to be completed was also negotiated with the Union. Therefore, while Respondents, as joint employers, required the em- ployees to fill out the forms, they did so with the prior knowledge and acquiescence of, and negotiation with, the employees' statutory collective-bargaining representative. Under the circumstances, the requirement that the em- ployees complete the application forms by I p.m. on April 7, 1977, did not constitute an unfair labor practice, and I accordingly recommend that paragraph 8(1) of the com- plaint be dismissed. 2. Alleged 8(a)(3) violation As stated in his brief, the General Counsel contends that the 41 strikers were discharged in violation of Section 8(a)(3) because: The strike, beginning on April 7, 1977, occurring after Fisher's extensive violations of Section 8(a)(1) of the i' This objective was made clear by the testimony of John Fazio. Why the Union acquiesced was not litigated 696 FISHER FOODS, INC. Act referred to above, was an unfair labor practice strike to protest the blacklist,' 9 threats of subcontract- ing and transfer to Rentar which was ready to bring to fruition what Fisher merely had threatened. Citing Mastro Plastics v. N.L.R. B., 350 U.S. 270 (1956), the General Counsel argues that because of these unfair labor practices, the employees were protected from discharge pursuant to the no-strike clause of the Union-Rentar agree- ment which General Counsel concedes to have been in ef- fect on April 7. The General Counsel does not contend that Respon- dent's entering the driver leasing agreement consti- tuted a separate unfair labor practice, nor could he do so given the factor of Union acquiescence. 20 If the driver leasing agreement was not an unfair labor prac- tice, it could not have been an element of an unfair labor practice strike, even if it was the fruition of al- leged threats. It is undisputed that the no-strike clause found in the Union-Rentar contract plainly prohibits economic strikes during its term. In Mastro Plastics, supra, the Supreme Court rejected a contention that such clauses prohibit "all strikes, even those against unlawful practices destructive of the foundation on which collective bargaining must rest." In rejecting this contention the Court did not hold that all unfair labor practice strikes are protected. The Board has consistently recognized this by holding that "only strikes in protest against serious unfair labor practices should be held immune from general no-strike clauses." Arlan's Depart- ment Store of Michigan, Inc., 133 NLRB 802 at 807 (1961). Even though I have found that no unfair labor practices occurred prior to the strike, I believe it incumbent upon me to further point out that even if Ziedonis and Finley were supervisors and even if I had credited all of General Coun- sel's testimony regarding the alleged threats, those alleged unfair labor practices were not by their own nature "seri- ous" to the point that they licensed the strike in violation of the no-strike clause. Nor would the alleged threats plus the requirement of completed application forms have constituted such "seri- ous" unfair labor practices, since it is undisputed that the required forms, and the hours at which they were to be completed, were negotiated with the Union. The terms and conditions of employment of the employees did not change with the alleged threats. Nor were they changed by the forms and their deadline for completion except through the '' There is no allegation that there was in existence a blacklist. Assuming the pleadings arguably include an allegation o a blacklist, there s no evi- dence that one existed. Although. as seen by the employees on Apnl 4. Apa made marks, or dots, on the senionty list by the names of some of the spokesmen, there is no evidence that Respondent Rentar had these individ- uals targeted for discrimination. Some of the striker dischargees assumed that Apa intended to discharge or otherwise discriminate against the spokes- men, and, assuming an accuracy to their assumption. there is still no unfair labor practice made out in Apa's intentions. aCharging Party does contend that the execution of the driver leasing agreement constituted an unfair labor practice. Such an allegation was in- cluded in the onginal complaint, was withdrawn from the pleadings by the amended complaint, and was reinserted by a midirial amendment, but only as an alternative in the event Respondent Fisher and Respondent Rentar are found not to be joint employers. As I have found Respondents to be joint employers, the allegation is, in effect, withdrawn processes of collective bargaining. Esen if the deadlines had not been met. the employees were not to be discharged: they and their Union were told only that they would not be allowed to initiate runs if the forms were not completed b, I p.m. on April 7.' Therefore. assuming the proof of all facts relied upon b General Counsel, they were not unfair labor practices sufficiently serious to have clothed the strike with a mantle of statutory protection. Rather. the ttfall in that category of less serious violations which, as the Board stated in Arlan's, supra. can be remedied b arbitrational processes and. of course. 8(a)( ) charges could have been filed. The General Counsel and Charging Party seek to distin- guish A.4rlan's by arguing that in this case resort to the griev- ance procedure would have been futile because the Union either ignored or opposed the employees who objected to the driver leasing agreement. Because of the element of union acquiescence. it is a virtual certainty that an griev- ance protesting the driver leasing agreement itself would have been unsuccessful. However, no such assumption can be made regarding grievances over any tangible adverse impact on the employees' terms and conditions of employ- ment resulting from the driver leasing agreement or Rentar's operation under it. General Counsel and Charging Party argue that any grievances would have been ineffective because the Union was failing to fairly represent the em- ployees at all times since the inception of negotiations in June 1976. As I was constrained to point out on numerous occasions during the hearing, the Union is not a respondent in this case. Fisher and Rentar are the respondents. and if resort to the grievance procedure was futile, it was not be- cause of any unlawful action on their part. Had it been alleged and proved that the Union's treatment of the em- ployees violated Section 8(b)(I)(A) of the Act, perhaps an argument could have been made that the employees were justified in initiating and continuing their strike over their representative's objection. But there was no such allegation and no such issue presented here. The Charging Party's position goes a great deal further than General Counsel's Mastrro Plastics theory. In its brief the Charging Party argues that the driver leasing agreement violated article XX of the January 31 agreement and that because of that breach and the alleged threats and the re- quirement that the forms be completed, the strike was not only permissible but also mandatory. As stated in its brief. "[t]he drivers were backed against the wall. Their choices were to either act or to submit to be later picked off one by one." The Charging Party's theory is supported by neither logic nor law. If Rentar was present to eliminate systematically these employees, it is hardly likley that Apa would have offered reinstatement to all strikers in the early morning hours of April 7, including the spokesmen by whose names on Apa's seniority list the dots appeared. The legal argu- ment that the employees were justified in striking because the January 31 contract had been violated by Respondent Fisher is without authoritative support and constitutes a 2" The conclusion Ihat there had been no unlawful changes in the emplor,- ees' terms and conditions of empliismenl is seeminglo aicknoledged h\ General Counsel's failure to include in the complainl ins aillega.tion ol pre- strike violations of Sec 8a H 3) 697 D)ECISIONS OF NATIONAL LABOR RELATIONS BOARI) blueprint for industrial chaos. Even radical breaches of la- bor contracts do not license strikes in violation of general no-strike clauses, let alone these actions, which would also constitute "serious" unfair labor practices according to the Charging Party's argument. A fortiori, a breach which is merely arguable or theoretical2 does not protect such strikes. Moreover, industrial chaos would be virtually as- sured if employees were protected in striking over such al- leged breaches of collective-bargaining agreements where their statutory collective-bargaining representative not only does not support the strike, but strenuousv opposes it." In summary, the employees struck because the driver leasing agreement had been executed, because the forms were required to be completed by I p.m. on April 7, and because Respondent Rentar and Respondent Fisher had not executed the three-party agreement promised by Tanski on April 3. If any of the three reasons was paramount. it was the last. The employees demanded the three-party agreement because they felt that without it they had no security in the event the Fisher-Rentar contract was termi- nated pursuant to the 30-day-notice clause. Before the strike, Majewski attempted to assure Nowak and Banyard that the labor agreements with Fisher and Rentar provided the desired security. Reprehensibly, Nowak failed to tell strike leader Schillo of the April 6 Union-Rentar negotiation session, the execution of the Union-Rentar agreement, or Majewski prestrike assur- ances." After the strike began, Schillo and the other strikers refused to accept the Union's assurances that the Charles Fazio letter of agreement protected them in the event that the Fisher-Rentar agreement was terminated. Simply, stated, the employees felt the letter was inadequate, and they began and continued their strike to secure the three- party agreement. But even if the strikers were justified in their skepticism of the Charles Fazio letter and even if the letter was not all that the Union had promised on April 3 and not all that Apa and Vigliotti had promised on March 27 to produce by April 4, the allegedly broken promises did not constitute unfair labor practices, "serious" or otherwise. 21 This is the most that would be here were it not for the acquiescence by the Union, a factor which negates all claims of a breach of the contract. I As a remedy, the Charging Party asks that dischargees be reinstated and the statusr quo ante be restored. This could not be done on this record, even if violations on the part of Respondents jointly, or severally, were found. The status quo ante was Fisher, as the sole employer, extending, and the Union accepting, recognition as the collective-bargaining representative of the warehouse truckdnvers. To grant the requested relief. not only would I be required to order Respondent Fisher and Respondent Rentar to rescind their contractual agreement. but also I would have to order Rentar and the Union to rescind their two agreements described above (as well as any subsequent agreements) and further order Fisher to again extend. and the Union to again accept, recognition as collective-bargaining representative on a single- employer basis. Each such order would run against the Union. which was not a party to this proceeding as a respondent, "party to the contract." or otherwise and was not given notice of this proceeding. Accordingly, the requested relief cannot be granted. 14 As Schillo testified, there would have been no strike if Respondent Rentar, Respondent Fisher, or the Union had produced the three-party agreement. 2i Banyard left on an assigned run immediately after the April 6 negotia- tion session. Therefore, the dischargees (except possibly for Kinsey and the few that Nowak claimed to have informed at the prestrike tavern meeting) initiated their strike in ignorance of the fact that the forms and hour for completion had been negotiated with the Union and that Apa had signed contracts with the Union. and the strikers were not protected from discharge pursuant to the no-strike clause. CoN(I tUSI)NS Of LAW 1. Respondents are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act and are joint employers under the Act. 2. General Counsel has failed to establish that either Re- spondent has engaged in unfair labor practices as alleged in the complaint. Recommended Order r dismissal omitted from publication.) APPENDIX C)N I RA( I THIS CON IRA(I. made and entered into this 2nd day of February. 1977, by and between Milton D. Ratner d/b/a Rentar Driver Services. (hereinafter referred to as Rentar), and Fazio's, Division of Fisher Foods, Inc.. (hereinafter re- ferred to as Fazio's). Rentar. with general office located at 7025 South Pulaski Road. Chicago. Illinois 60629, as an independent contrac- tor agrees to supply Fazio's with drivers who are compe- tent, experienced and duly licensed and who are legally qualified under all state and federal regulations to drive owned or leased vehicles in intra and/or interstate com- merce. Drivers will be in the employ of Rentar who shall exer- cise sole power to fix their compensation. Rentar will pay the driver's wages and provide any of the benefits required by any appl:cable bargaining agreement. Rentar will pay all applicable federal and state taxes with respect to the employment of such drivers, including social security and unemployment compensation taxes. Rentar will maintain complete driver records, as well as payroll records and re- ports and carr Workmen's Compensation Insurance on all drivers and will comply with all applicable laws and regula- tions of all governmental agencies relative to the employ- ment of such drivers. Fazio's shall reserve the right to approve the employment of each driver prior to assignment to its service and there- after have the right to require Rentar to remove any such driver and/or to substitute another dnver or to transfer any driver to other work. Fazio's shall control dispatch and direct the drivers and oversee the driver's day-by-day operations. Fazio's shall specify the starting point and time, the destination point, and the route to be traveled in respect to each trip. Fazio's shall determine when the drivers take their vacation peri- ods. Drivers will report to Fazio's for detailed instructions with regard to the operation of the vehicles and submit daily trip reports, trip logs and accident reports. No driver shall be required to work beyond hours specified by the Motor Carriers Safety Regulations applicable to private carriers as set forth in Department of Transportation, Inter- state Commerce or State Regulations. Rentar shall not be liable to Fazio's for loss or damage to Fazio's property, nor shall it be liable to Fzio's or third persons for damage or inlurv tIro ,t1r pcrl', or property. 698 FISHER FX)DS. INC. This contract will cover drivers furnished by Rentar to Fazio's for their operation emanating in the State of Ohio to points and places within the Continental United States. Rentar shall have authorization to reimburse employees covered by this contract for expenses incurred in expediting movement of Fazio's equipment covered by this contract. It is agreed that the amount paid by Fazio's to Rentar shall be the actual cost incurred by Rentar in the perform- ance of its obligations hereunder (including expenses in- curred in the preceding paragraph of this agreement), plus service charge to cover overhead, not to exceed $20.00 on account of fees incurred in connection with the work of any single driver in a given week. Aforementioned service charge shall be reduced by one-half for the second and third years of this contract. Payment to Rentar by Fazio's for services under this agreement shall be in a form and manner mutually agreed to by both parties. This agreement shall continue in force and effect for three (3) years, with date corresponding to National Master Freight Agreement. It is further agreed that this contract can be made null and void in 30 days hb written notice b' either parts. WIIN:SS: FAZI( S I)I',ISI()N 01 FISHtIR Ot()()S. IN(C. 's/Frank 1. McDonald /s/John Fazio John Fazio. President Wi INss: MI.l(oN D. RAINIR )/B/A Ri, tAR RI\t R StR',I( S /s/Anthony Apa /s/Norman J. loskin Anthony Apa. Vice President Norman J. Hoskin, President