B & F Cartage

B & F CARTAGE h45 Franklin Fouts, d/b/a B & F Cartage and Leonard Messina Marvin King, d/b/a C & M Leasing Company and Leonard Messina and Francis Evans. Cases 8- CA-12612, 8-CA-12613, and 8-CA-12677 August 27, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY On March 27, 1980, Administrative Law Judge John M. Dyer issued the attached Decision in this proceeding. Thereafter, Respondent Marvin King, d/b/a C & M Leasing Company, filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Orders, as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Orders of the Administrative Law Judge, as modi- fied below, and hereby orders that: A. Respondent Franklin Fouts, d/b/a B & F Cartage, Newark, Ohio, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating employees concern- ing their support of the Union. (b) Threatening employees with loss of their jobs if they do not withdraw their support of the Union. (c) Threatening employees with loss of their jobs and other reprisals if they select the Union as their bargaining representative. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action to effec- tuate the policies of the Act: (a) As Respondent Fouts holds security interest in the two vehicles used by Respondent King, it is i In light of Hickrnmott Foods. Inc. 242 NLRB 1357 (1979). 've find that the narrow cease-and-desist language, "in any like or related manner," is adequate to remedy the iolations here. We shall modify the recommend- ed Orders and notices accordingly We hall also modify the recommended Orders and notices hby adding the standard reinstatement language, and uc shall set forth the recomn mended Orders in the proper format 251 NLRB No. 68 possible that Respondent Fouts may resume oper- ation of its spotting business. It is therefore ordered that, if Respondent Fouts resumes such operation, it shall offer William F. Hutchinson, Leonard Mes- sina, Francis Evans, and Harvey Glancy immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed. (b) Mail to Hutchinson, Messina, Evans, and Glancy copies of the attached notice marked "Ap- pendix A." 2 Copies of said notice, on forms pro- vided by the Regional Director for Region 8, after being duly signed by Respondent Fouts or an au- thorized representative of Respondent Fouts, shall be mailed by Respondent Fouts immediately upon receipt thereof, as provided above. (c) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps Respondent Fouts has taken to comply herewith. B. Respondent Marvin King, d/b/a C & M Leas- ing Company, Newark, Ohio, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discriminatorily refusing to hire employees and terminating employees because they engage in union and concerted activities among themselves and with other employees for their mutual aid and protection. (b) Creating the impression that union activities are under Respondent King's surveillance. (c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action to effec- tuate the policies of the Act: (a) Offer William F. Hutchinson, Leonard Mes- sina, and Francis Evans immediate and full rein- statement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights and privileges previously enjoyed, and make them whole for any loss of pay they may have suf- fered because of Respondent King's discrimination against them in accordance with the recommenda- tions set forth in the section of the Administrative Law Judge's Decision entitled "The Remedy." 2 In the event that his Order i enforced bh) a Judgment of a United States Court of Appeal. the words in the ntice reading "Posted h) Order of the National Labor Rellatiolns tloard" hall read "Posted Pursu- ant to a Judgment of the Uniled Staltes Court of Appeals Enfircing Order of the National Lahor Relation, Hoard" H & F CARTAGE tt4 5 646 I)ECISIONS ()F1: NATIONAI I.ABOR RELATIONS BOARD (b) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (c) Mail to its employees and to the three discri- minatees and post at its Newark, Ohio, location copies of the attached notice marked "Appendix B."3 Copies of said notice, on forms provided by the Regional Director for Region 8, after being duly signed by Respondent King or an authorized representative of Respondent King, shall be so mailed and posted by Respondent King immediate- ly upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondent King to insure that said notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director for Region 8, in writing, within 20 days from the date of this Order, what steps Respondent King has taken to comply herewith. :' See fn. 2, supra. APPENDIX A NOTICE To EMPI.OYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union To bargain collectively through repre- sentatives of their own choice To engage in activities together for the purpose of collective bargaining or other mutual aid or protection To refrain from the exercise of any or all such activities. In recognition of these rights, we hereby notify our employees that: WE WILL NOT discourage membership in In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, Local Union 637, or any other labor organiza- tion, by threatening employees with the loss of their jobs if they do not withdraw their sup- port of the Union. WE WILL NOT threaten employees with the loss of their jobs and other reprisals if they select the Union as their bargaining representa- tive. WE WILL NOT unlawfully interrogate em- ployees concerning their support of the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them under Section 7 of the Act. If we reenter the spotting business, WE WILl immediately notify employee William F. Hutchinson, Leonard Messina, Francis Evans, and Harvey Glancy, and offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre- viously enjoyed. FRANKLIN FOUTS, D/B/A B & F CARTAGE DECISION STATEMENT OF THE CASE JOHN M. DYER, Administrative Law Judge: Leonard Messina, an individual, herein called Messina, on Febru- ary 16, 1979,1 filed separate charges against Franklin Fouts, d/b/a B & F Cartage, herein called Respondent Fouts or B & F, and against Marvin King, d/b/a C & M Leasing Company, herein called Respondent King or C & M, alleging that B & F and C & M had terminated Messina and William F. Hutchinson on January 31 and refused to employ them in violation of Section 8(a)(l) and (3) of the Act because of their membership in and activities on behalf of International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 637, herein called the Team- sters, Local 637, or the Union. On March 14, Francis Evans, an individual, herein called Evans, filed a charge against C & M alleging that it violated Section 8(a)(1) and (3) of the Act by terminating him on February 27 because of his membership in and activities on behalf of Local 637. On March 22, the Regional Director issued an order consolidating cases, consolidated complaint and notice of hearing consolidating these three cases for hearing. The complaint alleged that on January 31 B & F sold its equipment, property, etc., to C & M, and that C & M became its successor, in continuing the "spotting" busi- ness operations at the plant of Owens Corning Company, ' Unless stated otherise,. all dales occurred in 1979 13 & CARIA(;i 047 herein called O.C., in Newark, Ohio. It is alleged that & F xiolated Section X(a)(1) of the Act hb threats andl interrogations, and terminlllted MessiIna ad lutchinoln in violation of Section 8(a)(3) of the Act It is alleged that C & M violated Section 8(a)(3) of the Act by refus- ing to employ Messina and Hutchison because of their union activities, and sought to convert the employees to independent contractors and thereafter terminated Evans because of his union activities. Respondent King is also alleged to have violated Sectionl 8(a)(1) by giving an im- pression that he had engaged in unlawful surveillance. Respondent Fouts acknowledged that it had been in business until January 31, that the business was then ter- minated and no longer in commerce, but denied that it had violated the Act in any way. C & M's answer admitted the service of the charge and the commerce facts, but denied that it was a succes- sor of B & F, although admitting that it had purchased B & F's equipment. and denied that it had violated the Act as alleged. Further, it asserted that it was not an employ- er under the Act, an apparent reference to its position that it had independent contractors and not employees. Since Respondent Fouts virtually admits it went out of business so that it would not have to deal with the Union, and Respondent King bought and continued the business knowing of the employees' union organizational attempts and the filing of a representation petition and the reasons why Fouts went out of business, the essential question in these cases is what liability the parties have. I have concluded that Respondent Fouts violated Section 8(a)(1) of the Act by various threats. interrogations, and statements but, I have decided that under the Darlington2 doctrine, since B & F has terminated all operations and ceased to exist except for moneys owed to it, that such business cessation and the termination of its four employ- ees did not violate the Act. However, if the termination of the business is not a complete cessation but merely an interruption and such is hereafter shown, then when and if Respondent Fouts goes back into business it may become liable for the termination or reinstatement of its four employees. At present it is liable for its 8(a)(1) vio- lations, and an appropriate order will be entered with a conditional order if Respondent Fouts reenters business. I further concluded that Respondent King is a successor employer to Respondent Fouts, and as such, is liable to remedy jointly and severally Respondent Fouts' unfair labor practices in addition to its own unfair labor prac- tices. I have concluded that Respondent King failed to hire, or continue in employment, employees Messina and Hutchinson and, thereafter, discharged employee Evans in violation of the Act. I have concluded that these em- ployees were employees and not excluded from the pro- tection of the Act as independent contractors. Addition- ally, Respondent King violated Section 8(a)(l) of the Act, and an appropriate remedy will be proscribed. The parties were afforded full opportunity to appear. to examine and cross-examine witnesses, and to argue orally at the hearing held in Newark, Ohio, on August 8, 2 See I, vtdc I rrAer I ro,,, of lt;lrila v Darlnigt o , i l /llan /rmlg. (Co. 180 l' 2 (1915) 1979. General Counsel and Respondents have filed briefs which have been carefully considered. O()n the llire record in this case, including the exhibits a:nd the Ictstlinliln, and on mnis evaluation of the reliability of the witnesses based on the e idence and the context of the case. I make the following: FININ(;S O1 F xci I. (OM :CIR I-INI)INGS ANI) NION S I A I[US Franklin Fouts, d/b/a B & F Cartage, is a sole propri- etorship which ,was engaged in the business of "spotting" trailers for common carriers al the O()wens Corning Com- pany (O.C.) plant in Newark, Ohio, from February 22. 1978. through January 31, 1979. During that period it re- ceived more than $50,000 for spotting services performed for common carriers which were directly engaged in in- terstate commerce. Marvin King, d/b/a C & M Leasing Company, is a sole proprietorship engaged in the business of "spotting" trailers for common carriers at the O.C. plant. Since be- ginning operations on February 1, 1979. Respondent King has received revenue in excess of $50,000 for spot- ting services performed for common carriers which are directly engaged in interstate commerce. I find and conclude that Respondent Fouts has been, and was at all times material herein, an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. I find and conclude that Respondent King, since Feb- ruary 1, 1979, and at all times material thereafter, has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondents King and Fouts admit and I find that the Union herein is a labor organization within the meaning of Section 2(5) of the Act. II. HI UNI-AIR I.ABOR PRACIICES A. Background and Facts Franklin Fouts is a director of regional operations, or manager, of Commercial Lovelace which is a company engaged in the common carrier business. Fouts became aware of an opportunity to initiate a small business en- gaged in "spotting" trailers at the O.C. plant in his hometown of Newark. Ohio. "Spotting" trailers means moving loaded or unloaded trailers to or from an O.C. dock to or from another Iccation on the O.C. property where it had been left or would be picked up by a com- mercial interstate carrier. In Fouts' operations he bought and used two tractors which were not licensed or equipped for highway use. In addition to Fouts, one or two other carriers had spotting operations at the O.C. plant plus one company which was spotting trailers brought in on railroad cars. B & F employed four employees each of whom would work 12 hours on and 12 hours off for 3 consecutive days and then would be off for 3 days. Thus there was always one employee on duty for 12 hours at O.C. The men would work 36 hours I week and 48 hours the next week under this system. They received their instructions It & V (AR1A(;[ 64' 648 DECISIONS ()OF NATIONAL IABOR REI.AI()ONS BO()ARI) directly from the O.C. dispatcher, who would call the guard's shack where B & F had a desk and order trailers moved to or from specific docks. Mrs. Betty Fouts (herein call Betty), the B of B & F (Franklin) would go to the guard's shack in the morning and pick up the bills or reports which she used to pre- pare her bills for O.C., as well as note the hours, etc. for each of the employees. The spotting duties were per- formed by B & F for a set price and each of the four employees during 1978 was paid $5 an hour. The four employees, Hutchinson, Messina, Evans, and Glancy, were all experienced spotters when they began work for B & F. All parties agree that the work is routine and repeti- tious. Fouts stated that the main thing he was interested in was preventive maintenance on the two tractors, but that if any of the employees had any questions they could contact his wife or him when he was available. B. The Union Organizational Campaign and the Termination of B & F Fouts had been hopeful that his services would be of such a quality that he could get other O.C. spotting work. These were expectations that he shared with the men and additionally they hoped that the situation would improve and they might "go union" with increased pay and benefits. Fouts acknowledged that the men were an- ticipating this and he testified that in early January 1979, he had discussed with them increasing his O.C. services and had interviewed some prospective employees. Right after the first of the year, Fouts met with the four em- ployees and offered them 50 cents per hour more in wages or a hospital insurance plan. Most of the men elected to take the wage increase. Employee Evans testified that with Glancy present Fouts said he could not afford the Union, and was offer- ing them their choice of a raise or the insurance. Ac- cording to Evans, Fouts also said that anybody that talked about the Union was going to be terminated. Mes- sina testified that when he received the 50-cent raise, he reminded Fouts that he had said there would be a union after a year and that they would get all their benefits. Fouts replied that they could not have a union. Fouts testified he did not mention termination, firing, or any other word when speaking about the Union. He stated that he said choosing a Union was their preroga- tive. Based on Fouts' admitted reaction to union organiza- tion a few days later, I credit Evans' version of this con- versation including that Fouts was unalterably opposed to having a union represent the B & F employees. I also conclude and find that this threat violated Section 8(a)(l) of the Act. Following the granting of the raise, employee Hutch- inson procured union authorization cards from Local 637's president, West, on January 6. He signed a card and gave cards to employees Messina and Evans who signed and gave them back to him. Hutchinson asked his wife to take the three signed cards to the union head- quarters and give them to West. The Union on January 9 filed a petition for an election with the National Labor Relations Board. A copy of this petition was mailed to Respondent Fouts who received it on either January II or 12. Fouts testified that when he returned home, he found a copy of the petition in his mail, and on January 12 called employee Messina. Messina testified that Fouts was angry and asked what kind of s- Messina was pull- ing on him. Messina said he did not understand, and Fouts said he found a petition for union representation in his mail and told Messina that the men had until 4 o'clock the next day to withdraw their union cards. Fouts told Messina to get them together and have them withdrawn or it was all over. Messina said that Fouts did all the talking and follow- ing their conversation he called Evans and told him that Fouts said they had to withdraw their union cards. Evans said they had signed them and saw no use in with- drawing them at that point. Messina relayed the same message to Hutchinson who said that he did not want to withdraw his union card. Hutchinson, who worked his own truck on his days off, was out of town on January 12 and had a message to call Fouts when he returned. Hutchinson called Fouts on January 13 and Fouts asked what they were trying to pull by signing union cards. Hutchinson responded that the benefits and wages were too low, that they could not live on that money any longer, and had to have more. He said he had understood when they first went to work that they were going to go union around the first of the year, and that all Fouts had come up with was 50 cents an hour more, which he did not consider enough. Fouts replied that he had ways of getting around the Union, and if he had to he would quit his job, take a partner, spot the trailers himself, and do away with their jobs. Fouts said he could not afford the Union, it was too ex- pensive and he had ways of getting around West. At the conclusion of the call Hutchinson called West and told him about the situation and that Fouts had given them until 4 o'clock to withdraw their union cards. West told him to call Fouts and say that Fouts had until 3 o'clock to withdraw his threats to the em- ployees. Hutchinson called Fouts and gave him West's message. Later that afternoon Fouts called Messina and asked how he was doing. Messina interpreted this as an inquiry about getting the union cards withdrawn and replied that he had talked to Hutchinson and Evans, who said they had signed the cards and were not going to withdraw them. Fouts said he hoped West had jobs for all of them. Fouts said he would quit his job at Commercial Love- lace and become an owner-operator driver, hire a part- ner, and eliminate at least two men and reminded Mes- sina that he was third on the seniority list which would have meant displacing him. Fouts also said that the men could not work 6 months without screwing up and in that way he would get rid of them. Messina asked if they were going to continue working and Fouts said they would work until "the bottom falls out and that will be it." Fouts testified that he may have said he hoped West had jobs for them because he would not. In regard to quitting his job and becoming an owner-operator, Fouts B & CAR'A(GE said he might have said that even if he did so, that would be the only way to salvage the Company on eco- nomics, but added that such would be declared an unfair labor practice. Hie said he stated that he could not do that. I do not credit Fouts' denial since it appears to be an er postF fcto explanation of his statement. I credit the mu- tually corroborating testimony of the employees, that these threats were made and find that they violated Sec- tion 8(a)( 1 ) of the Act. Betty, who testified that she recalled Fouts asking the employees whether they signed union cards and saying that economically there was no way that they could go with the Teamsters, did not recall him saying that he could get around West. She also did not recall him saying that he would quit his job and run the business for himself, but admits that they had an idea that once he was ready to leave Commercial Lovelace, he would take over the business. Betty called Leonard Messina on January 30 and told him there was going to be a meeting at 6 p.m. in the guardhouse the following day. She then called Hutchin- son and gave him the same information and he said he could not be there and asked if it was important. She said they were going to terminate the Company. She tes- tified that he asked whether it was because they had signed union cards and she responded that there was no way they could afford the Teamsters Union. He said he thought they could negotiate. She said no, there was just no way they could afford the Teamsters Union, and that the men did what they had to do and the Company was going to do what it had to do. Hutchinson stated that, in the telephone call, Betty said they had sold the Company and were going to pay them off the following night. To his statement that he had hoped they could work it out some other way, she replied that once they had signed the union cards that was it, that they could not do any' more because they would be full union members, and they could not afford the Union so they sold the Company. The complaint alleges that Betty's statements to Hutchinson violated Section 8(a)(1) as a threat to termi- nate the business because of the employees' union activi- ties. I do not agree since at the time of her statement she was conveying information to Hutchinson as to what had been decided and what Respondent Fouts was in the process of doing, that they were terminating the Compa- ny and paying the men off the following night. Betty's statements at that stage are completely different from those which her husband made on January 12th and 13th when he was attempting to dissuade the employees from exercising their rights by his threats to close down the business or terminate them. Betty was not threatening the employees but merely stating what Respondent's de- cision was and why it had arrived at it. Since I find, infra, that the closing of the business and the termination of the employees is not an unfair labor practice, under Darlington it follows that relaying information about the decision and its effectuation is also not violative of the Act. Accordingly, I will dismiss the complaint allegation regarding Betty Fouts. On January 31, Hutchinson and Messina met with the Fouts around 6 p.m. at the guard shack. According to Hutchinson, Fouts said they were sorry that the Compa- ny had to stop, but it was no longer feasible for them to stay in business, and so they had sold it to Mr. King and as of 8 p.m. they would no longer have jobs. They were given their pay in full. Fouts told Hutchinson and Mes- sina that if they wanted to talk to King about jobs they would have to come back at midnight when King would be there. C. King's Takeover of the Business Hutchinson and Messina left and returned around mid- night. When they arrived, Harvey Glancy handed Hutchinson a card from King with his phone number and said if you want to talk to him call him. Hutchinson said that King was supposed to be there at midnight, and Glancy said that King had been there at 8 p.m. and left. Hutchinson called King and asked if he and Messina were going to have a job. King said no, that he had no openings because he had his own employees who had been with him and he felt obligated to keep them on. Hutchinson said he and Messina could use the work and would like to work for King. King replied that he did not feel obligated to let his men go in order to give them a job. On February 8, Hutchinson went to King's office and asked if there was any way that King could use Leonard Messina. He told King he could use a job but could sup- port himself without it, but Messina needed his job back because he had no other way to make a living. King said he had his own employees and was going to use them. Hutchinson asked if the Union was the reason they had been turned down, and King denied it. King asked if Leonard Messina would be interested in a road job, and Hutchinson said no, that Messina had been spotting for 10 years and had not driven on the road in a long time. King testified that on February 1, Hutchinson asked for employment for himself and Messina. and he did not hire them and told Hutchinson that he had his own em- ployees whom he was going to use. They were Smith and Spurgeon, and neither had ever worked as "spot- ters" prior to this time and King had never employed them until February . King did not dispute Hutchin- son's testimony of the February 8 meeting. When he agreed to buy the two tractors from Fouts and take over the business, King was fully aware that the Union was trying to organize the spotters. Indeed, in the contract between Fouts and King there is a specific para- graph setting forth that Fouts notified King that the Union had requested certification for a unit of spotters on January 9, and that there had been no election. Fur- ther it states that Fouts had decided to terminate his op- eration for economic reasons and could not warrant that the employees would not seek representation. King, who operates under his own name in securing freight loads and hiring independent owner-operators to deliver them, started C & M Leasing Company on Feb- ruary I for the O.C. spotting operation and maintained it as an individual proprietorship. He agreed that spotting is routine work performed over and over again, and that 649 650 [)ECISI()NS OF NAFIONAL LABOR RLAIONS ()F NAARI) as far as he knew Messina and Hutchinson were skilled spotters and he did not consider them undesirable as em- ployees. King maintained that he had purchased the Company and could hire whom he wanted. King testified that in setting up C & M and before Glancy, Evans, Spurgeon, or Smith started work they were told that their relationship would be that of em- ployer and independent contractors and they would have to sign contracts once they were prepared by his attor- ney. Evans testified that on January 29 he saw King at the guard shack, and King said Evans would be working for him after the first of the month. King said he would pay Evans $240 a week, $20 a week more than Fouts paid him, and Evans said he needed hospitalization insurance since he had a new baby. King replied that he would have something on that within 60 days. Evans recalled that King said Evans would have to sign a lease as if he was "tripleasing" as long haul owner-operators do for in- dividual trips. Evans said he did not question the condi- tions since the job was shaky and he needed work. Charles Spurgeon testified that he had contacted King for over-the-road work and was told by King that he would need a driver for a spotting operation. He went to King's office, and was told that he would start February I at $210 a week, and would have to sign a lease, which King's attorney was then preparing. Spurgeon testified that he worked at the plant spotting and was still there at the time of the hearing, but that Jack Wright was paying him and he was not sure whether he was working for Jack Wright or for King. Charles Smith testified that he was employed by King from February 2 until March 1. He stated that King talked to him about a leasing arrangement his lawyer was preparing, but said that no specific terms were talked about prior to his starting work. On February 26, Evans got some union cards from Hutchinson and asked Smith and Glancy to sign them. Evans testified that on February 27 King asked him and Carl Smith to meet his attorney, and they said they probably could. King then said he heard that Evans was not going to sign a lease. Evans answered yes, and King said he had heard Evans was an instigator and he was fired. Evans asked King what he meant by saying Evans was an instigator and did not get a reply. He told King he wanted a written statement that he was fired and King refused. Evans went to work that evening at 8 p.m. because he stated he wanted to be fired in front of a wit- ness. When he arrived at work. Spurgeon said he under- stood Evans had quit. King arrived about 10:30 p.m. and fired Evans again. Smith testified that he did not see a lease until the other two employees went to King's lawyer and came back with a copy of it. He said they told him they had to sign the lease agreement right then or return to Newark without a job. Smith said he did not go to King's lawyer and sign a lease because he was told he would not he able to take the document for review by his own lawyer. Respondent terminated Smith on March 1 when he re- ported back for work and was told there were orders that he could not enter the plant. Since February I, none of those working for C & M had their social security or income taxes withheld. King maintained that as independent contractors they had to take care of such matters themselves. On May I C & M signed a contract with Jack D. Wright, who referred to himself as J. D). Wright l.easing. under which Wright undertook to provide 210 hours of spotting services per week, as needed, for 8 months at ().C. as an independent contractor under Marvin King. Wright apparently took over the employees who were with King and has since that time deducted income tax and social security from them and has treated them as his employees. Wright testified that when he signed the agreement he knew of the Union's organizational effort and the unfair labor practice charges against King. The contract which those who remained with King signed was the same form signed by Jack Wright and provided that the employer, King, had a business of pro- viding spotting services in which such services were per- formed by independent contractors. Under this contract they agreed to render services at O.C., which consisted of causing a truck trailer to be located at a place on O.C. premises designated by O.C. agents. The agreement stated "Contractor shall have the exclusive right of de- termination as to the manner, means and methods by which the truck trailers are 'spotted' so long as the truck trailers are placed in the directed location safely and without damage to employer's client or employer." The agreement provided that the work must meet the ap- proval of the employer, that the employer would not be responsible for injury or damage caused by the contrac- tor, even if the employer provided the equipment Fur- ther. it provided that the employer was going to pay the premiums for coverage of independent contractors under the State's Workmen's Compensation Program, and would provide the independent contractor with and maintain the equipment necessary for the performance of the contract. The agreement provided a weekly wage but allowed the employer the right to reduce the amount proportionately to the number of hours the employee contracted for but did not work. Cancellation of the con- tract on a specific number of days written notice was al- lowed in the event that the employer no longer had con- tracts or was unable to provide equipment or if the "in- dependent contractor" was not physically able to per- form his work, or failed to produce the results wanted by the employer. D. 4nalysis and Conclusions As found above, Franklin Fouts violated Section 8(a)(1) of the Act by his interrogations of his employees' union activities, by his "or else" demands that they with- draw their union cards, and by his threats that he would terminate them or reduce their employment and perform the work himself. Although Respondent attempted to put these threats in the posture of Respondent's deciding to go out of busi- ness, these statements and threats were made before such decision was finally reached by the Fouts in an effort to get the employees to cease and recant their union activi- & F CA R TA : F b51 ties and are clear violations of Section 8(a)(1). and I so find. Since the Fouts retain a security interest in the trucks which are specialized vehicles for spotting, aind are owed other mnones by King for the purchase of the business, there remains a possibility that King might fail to fulfill his contract and the vehicles could revert to the Fouts. In such a situation it is possible that the Fouts might decide to reenter the spotting business. Since such a prospect is possible an order should run against B & F Cartage directing it to jointly and severally remedy the unfair labor practices found against it, and if the Fouts decide at some future date to reenter the spotting busi- ness they will he under a duty to offer their employees positions in such business. In the circumstances here, where & F has ceased its business operatios, 1 cannot find that under Darlington the termination of the four employees, and particularly, the terminations of Hutchinson and Messina violated the Act. It is clear that the Fouts went out of business to avoid the Union, and what they thought would be an un- alterable union demand to sign the National Freight Agreement which they fell would make their company unprofitable. I cannot find under the facts here. that there was any other business owned by the Fouts where this closing of operations could have had a chilling effect. Therefore, I am constrained to find that the termi- nations of the four employees did not violate the Act. However, as noted above, an order providing mailing to the employees of a notice remedying the 8(a)(1) viola- tions and containinig a provisional Order if Respondent Fouts reenters the spotting business will be recommend- ed. King, in his individual proprietorship role, as C & M Leasing, began this business with the full knowledge that the employees were attempting to organize a unit of spotters. With his admissions that Hutchinson and Mes- sina were not undesirable employees, but were experi- enced spotters and that he had nothing against them, there is no reason for King to have lied to Hutchinson and Messina. in telling them he was giving his own em- ployees the two jobs and employ two new inexperienced individuals he had never employed before, except to at- tempt to defeat the union organizational activities of the ex-Fouts employees. King offered no other reason for his false statements to Hutchinson or to support his actions. Indeed, he testified he knew that individual contractors do not have employee status and are not under National Labor Relations Board jurisdiction. Under the circumstances here the Fouts' knowledge of Hutchinson's strong prounion sentiments must also be imputed to King, particularly where the reasons for Fouts leaving the business was so clearly made known to King. The only apparent reason for King's refusal to hire Hutchinson and Messina and hiring Smith and Spurgeon is to evade dealing with a union and nullify the employ- ees' organizational attempts. Further weight is added to this conclusion by King's terming Evans an instigator the day after Evans tried to get Glancy and Smith to sign union cards. King's state- ment when added to his statement he had heard that Evans was not going to sign a lease, gave Evans the clear impression that King had engaged in surveilling Evans' union activities, or in some way gotten such in- ftormation. King immediately terminated Evans for alleg- edly refusing to sign an agreement. This again was a device to avoid dealing with the Union. King's actions tos, ard Evans invol'ed an independent violation of Sec- tion 8(a)(l) as well as violations of Section 8(a)(3) and ( I). It is clear that the job of a spotter here is repetitive and limited to moving trailers from one location to an- other on the O.C. premises at O.C.'s directions. The indi- vidual does not set his hours or decide how many hours he will work but is given a set schedule of 12 hours a day, which he works for 3 consecutive days, is off the next 3 days, and is then back for 3 more days. If the con- tract calls for a certain amount of hours and if he is not there the full amount his wages are accordingly docked. The contract says the individual has "the exclusive right of determination as to the manner, means and method by which the truck trailers are 'spotted,' so long as the truck trailers are placed in the directed location safely and without damage to employer's client or em- ployer." This latitude of determination is virtually nonex- istent. Backing a trailer into a dock or pulling it away and parking it allows the person only the use of what skills he has in driving a tractor trailer in a limited area arld nothing more. There is "no exercise of entrepreneur- ial skills" involved in this job. As was stated, all that is necessary is the ability to read and write, drive a truck, and follow the instructions of the O.C. supervisors. Board law dictates that a person so employed is an employee and not an independent contractor. The per- sons employed by King on February I were employees, and entitled to that status, and were not independent contractors, and I so find and conclude. Further, I find that Respondent King had a duty to employ Hutchinson and Messina and violated Section 8(a)(3) and (I) of the Act by his failure to employ them. Respondent King was a successor employer of Respond- ent Fouts, continuing the same business in the same loca- tion under virtually the same conditions, using the same equipment, and giving the same service and with a duty to employ the same work force under the circumstances here. Therefore, I will order Respondent King to employ Hutchinson and Messina and reimburse them for lost wages etc., since February 1, 1979, and reemploy Evans and make him whole for lost wages, etc., from February 27. 1979, and post appropriate notices. At the time of the hearing it appeared that ack D. Wright d/b/a J. D. Wright Leasing was a subcontractor for Respondent King and employed four spotters. What- ever rights Wright has are of a subordinate nature to Re- spondent King's employees Hutchinson, Messina, Evans, and Glancy. Ill. tiel IltI-.CT O1- HI UNFAIR ABOR PRACTICES l'PON COMMIRCE The activities of Respondents Fouts and King. as set forth in section II and therein found to constitute unfair labor practices in violation of Section 8(a)(1) and (3) of 13 & F YARAGE 651 652 DECISI()NS ()F NATIONAL I.AI3()R REAII()NS B()ARI) the Act, occurring in connection with the business oper- ations of Respondents Fouts and King, as set forth in section 1, have a close, intimate, and substantial relation- ship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY IOR RESPONI)DIN I:OUTS Having found that Respondent Fouts violated Section 8(a)(1) of the Act by the unfair labor practices set forth above, I recommend that it be ordered to cease and desist from violating the Act in the above and any other manner, and that it mail to its four employees Messina, Hutchinson, Evans, and Glancy, an appropriate Notice to Employees (Appendix I) so informing them and addi- tionally informing them of a conditional order of their reinstatement rights if Respondent Fouts resumes its spotter business. Since I have found that the Darlington case is applicable to the situation of Respondent Fouts' termination of business, I can not find that such termina- tion violates the Act. However, since there is a possibil- ity that Respondent Fouts could resume this business, since he has a security interest on two vehicles suitable only for this business, and is owed other moneys by its successor Respondent King, such a resumption would be a continuation of the business and it would owe rein- statement rights to the four employees it terminated on January 31, 1979. Accordingly, the order and notice will provide for these rights based on the condition of Respondent Fouts resuming its spotting business. On the basis of the foregoing findings and the entire record, I make the following: CONCLUSIONS OF LAW FOR RESPONDENT FOUTS 1. Respondent Fouts at material times was an employ- er engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent Fouts violated Section 8(a)(l) of the Act by: unlawfully interrogating employees concerning their support of the Union; threatening employees with loss of their jobs if they did not withdraw their support of the Union; threatening employees with loss of their jobs and other reprisals if they selected the Union as their bargaining representative. V. Iti RMIlDY I OR RSPONDI)LN KING Having found that Respondent King engaged in the unfair labor practices set forth above, I recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent King refused to hire William F. Hutchinson and Leonard Messina on Febru- ary 1, 1979, and discharged Francis Evans on February 27, 1979, and thereafter refusing to hire them, I recom- mend that Respondent King offer them immediate and full reinstatement to their former positions as employees, or, if such positions have been abolished or changed in Respondent King's operations, then to any substantially similar positions, without prejudice to their seniority or other rights and privileges, and that Respondent King make them whole for any loss of pay they may have suf- fered by reason of Respondent King's discriminatory ac- tions by payment to them of a sum equal to that which each would have normally received as wages from the dates of their refusal to hire or termination until Re- spondent offers them reinstatement, less any net earnings in the interim, plus interest. Backpay is to be computed on a quarterly basis in the manner prescribed in 1: U' Woolworth Company, 90 NLRB 289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977).:' I further rec- ommend that Respondent King make available to the Board, upon request, payroll and other records in order to facilitate checking the amounts of backpay due them and other rights they might be entitled to receive. CONC.USIONS F01 LAW FOR RSPONI)ENT KIN(; 1. Respondent King is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Respondent King violated Section 8(a)(3) and (1) of the Act by its discriminatory refusal to hire Hutchinson and Messina and its termination of Francis Evans be- cause they engaged in union and concerted activities among themselves and with other employees for the pur- pose of mutual aid and protection. 3. Respondent King further violated Section 8(a)(l) of the Act by creating the impression that union activities were under Respondent King's surveillance. [Recommended Order omitted from publication.] :' See. generally. Ii Plumbhing & Ieating Co . 138 NLRB 716 (1962)