Samuel B. Gass

728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the appropriate unit described below, concerning rates of pay, wages, hours of employment, and other conditions of employment. The bar- gaining unit is: All lithographic production employees at our New York City, New York, plant, excluding sales employees, professional sketch artists, office and clerical employees, nonworking supervisors, plant superintendents, and all supervisors as defined in Section 2(11) of the Act. WE WILL NOT encourage membership in N. Y. Printing Pressmen's Union No. 51, I.P.P. & A.U. of N A, AFL-CIO, or in N. Y. Press Assistants' Union No 23, I.P.P. & A.U. of N.A., AFL-CIO, or in any other labor organization or discour- age membership in Local 1, Amalgamated Lithographers of America, or in any other labor organization, by discharging or laying off employees or discriminat- ing against them in any other manner in regard to their hire or tenure of employ- ment or any term or condition of employment, except to the extent that their rights in that regard may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL baigain collectively, upon request, with Local 1, Amalgamated Lithographers of America, as the exclusive representative of all our employees described above with respect to rates of pay, wages, hours of employment and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. WE WILL reimburse Nicholas Napolitano and Joseph J. Patini for any loss of earnings suffered by reason of the discrimination practiced against them. All our employees are free to become, remain, or refrain from becoming or remain- ing, members of Amalgamated Lithographers of America, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized by Section 8(a)(3) of the Act. HEMISPHERE PRESS, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) TRU-FIT PLATE CORP., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York, No. 751-5500. Samuel B. Gass; Lipman Bros., Inc.; Lipman Poultry Products, Inc.; Riverside Poultry Farms, Inc.; Lipman Poultry Farms, Inc.; By-Products, Inc.; Samuel Lipman Sons; Pinecrest Hatcheries, Inc. and Truck Drivers, Warehousemen and Help- ers Union, Local No. 340, affiliated with International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 1-CA-4715. August 27,1965 DECISION AND ORDER On March 17, 1965, Trial Examiner Thomas S. Wilson issued his Decision in the above-entitled proceeding, finding that the Respond- 154 NLRB No. 62. SAMUEL B. GASS, ET AL. 729 'ents had engaged in and were engaging in certain unfair labor prac- tices within the meaning of the National Labor Relations Act, as amended, and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent Gass and the other corporations named in the caption hereof, referred to herein collec- tively as Respondent Lipman, filed exceptions to the Trial Ex- aminer's Decision and supporting briefs.' Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and the briefs, and the entire record in this case, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner to the extent consistent with this Decision. 1. We agree with the Trial Examiner that the various Lipman corporations named herein constitute an integrated enterprise,' and that Respondents Lipman and Gass are joint employers of the 1 Respondents ' requests for oral argument are hereby denied as the record , the excep- tions, and the briefs adequately present the issues and the positions of the parties. 2 These findings and conclusions are based , in part, upon credibility determinations of the Trial Examiner, to which Respondents except. After a careful review of the record, we conclude that the Trial Examiner's credibility findings are not contrary to the clear preponderance of all the relevant evidence . Accordingly , we find no basis for disturbing the Examiner 's credibility findings in this case . Standard Dry Wall Products , Inc., 91 NLRB 544 , enfd. 188 F . 2d 362 ( C.A. 3). We also reject Respondents' charge that the Trial Examiner was biased and prejudiced. We do not adopt the characterization in footnote 8 of the Trial Examiner 's Decision regarding the testimony of Respondents ' witness Pushard , referred to by the Trial Ex- aminer as the man who had purchased a jeep from Samuel Gass . Pushard 's testimony, when considered in its entirety, is fragmentary and equivocal , and neither confirms nor contradicts Miville. There is nonetheless no basis for disturbing the Trial Examiner's findings concerning the events of August 24, 1964. Miville's testimony concerning his conversation that day with Samuel Gass is supported by employee Bennett, and Samuel Gass did not testify on this issue We find no merit in Respondents' exceptions to the Trial Examiner 's conclusions, in footnote 10 of the Decision , with regard to Roy's testimony , as Roy was in fact im- peached by employee Bennett's unrebutted testimony Respondent Gass moved to remand the case and reopen the record so that it could introduce the transcript of a proceeding before the Maine Employment Security Commis- sion and the Decision therein for the purpose of discrediting Mr. and Mrs. Miville. The General Counsel opposed the motion on the grounds that at the time of the hearing herein Respondent Gass had possession both of the transcript , as appears from the cross- examination of Miville by Respondent Gass ' attorney in the instant proceeding, and of the Commission's Decision , which it introduced into evidence in the instant proceeding. There is , accordingly, no merit to Respondent Gass ' motion and it is hereby denied. 8 The Trial Examiner properly took official notice of the Board 's prior decision involv- Ing Respondent Lipman, Lipman Bros ., Inc., etc., 147 NLRB 1342 , wherein the Board found that the various Lipman corporations constituted a single integrated enterprise. Seane and Line Fishermen's Union of San Pedro, etc. (William J. Horner, et al.), 136 NLRB 1, footnote 4. 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drivers here involved. In so doing, we note the following. The only officers and directors, and the controlling shareholders of all the Lipman corporations are the three Lipman brothers, Bernard, Frank, and Harold. Until the instant charges were filed, the three directors of Respondent Gass were its president, Samuel B. Gass; Harold Lipman; and Beverly Lipman Gass, Samuel Gass' wife and the Lipmans' sister. Respondent Lipman is Respondent Gass' sole customer under an oral contract which Lipman can cancel unilaterally and the Gass trucking firm performs an essential function for Respondent Lipman. The events in the instant case shed further light on the relation- ship between the Respondents. On the morning of August 19, 1964,4 immediately following the signing of authorization cards by all the Gass drivers, Morgan, the feedmill superintendent, castigated two of the drivers for their organizational activity and their failure to discuss it with Gass. On the following day,5 notices were posted at the feedmill putting its facilities "off limits" to the drivers although they had previously had access thereto, and driver Miville was dis- charged by Harold Lipman, and told that Lipinan was taking over the trucking firm. When Miville questioned Samuel Gass about Harold Lipman's claim to ownership of the trucking firm, Gass did not deny it. When Miville and other drivers questioned Gass about reinstatement for Miville, he repeatedly told them "he'd try every- thing in his power" to effectuate this result. On August 20, when Gass received the Union's letter requesting recognition and bargain- ing, he brought it to one or more of the Lipmans, and thereafter immediately advised his employees that he was going out of business, and that a new company would be taking over. During the meeting between the drivers and Mr. and Mrs. Gass which ensued to avoid this result, one of the drivers expressed a fear of discharge when the Lipmans took over, and Mrs. Gass told him this would not happen because "I believe you was [sic] picked as one of the men to remain on the job." At this meeting, the employees signed a document ex- pressing their disinterest in union representation. Thereafter, the feedmill's facilities were again opened to the drivers, Gass told Miville that he [Gass] could now keep his trucking outfit, and Morgan told another Gass driver that if the employees had not signed the document, they would have been working for him the following Monday morning. It is clear from the above that Respondent Lipman possessed and exercised such control over the working conditions and employment ' Unless otherwise specified , all events occurred in 1964. The Trial Examiner's Decision incorrectly indicates that the notice posting occurred on August 19 rather than August 20. SAMUEL B. GASS, ET AL. 731 status of the Gass drivers as to make it their joint employer with Respondent Gass. Accordingly, we find that Respondents Lipman and Gass are the joint employers of the drivers herein involved and, as such, are jointly and severally liable for the unfair labor practices found here.6 2. Respondents urge that all the drivers herein involved are "agri- cultural laborers" within the meaning of Section 2 (3) of the Act, and not therefore "employees" subject to the jurisdiction of the Board. In agreement with the Trial Examiner's conclusion, we find no merit to this contention. Respondent Lipman is engaged in various enterprises connected with poultry, including the hatching and raising of chickens, their preparation for market, their sale, and the manufacture of chicken feed. It employs Respondent Gass in two ways. (1) Under oral contract with Lipman Poultry Farms, Inc.,7 Respondent Gass de- livers feed produced at the Lipman feedmill to poultry farms owned and operated by Respondent Lipman, and to other farms where poultry is raised for Respondent Lipman by independent formers 8 (2) Pursuant to another oral arrangement, Gass delivers most of the products from the byproducts processing plant to the feedmill. This latter work is a minor part of the Gass operation involving only 1 to 3 percent of the 1,500 tons hauled weekly. Section 2(3) of the Act excludes agricultural laborers from the definition of employees covered by the Act. Annually, since 1946, Congress has added a rider to the Board's appropriation bill provid- ing that no part of the appropriation shall be "used in connection with ... bargaining units composed of agricultural laborers . . ." as set forth in section 3(f) of the Fair Labor Standards Act. On numerous occasions, the Board has stated that it was its policy to 6 Accord N.L R.B. v. Dayton Coal and Iron Corp., 208 P. 2d 394 (C.A. 6) ; N.L R.B. v. Long Lake Lumber Company, etc., 138 F. 2d 363 (C A 9) ; Harvey Aluminum (Incorpo- rated), et al., 147 NLRB 1287; Freda Redmond and Sir James, Inc., 147 NLRB 1025, Gay- lord Discount Stores of Delaware, Inc., Gay Apparel Corporation, 137 NLRB 557, 567-568; International Trailer Company, Inc., et al, 133 NLRB 1527; Panther Coal Company, Inc., et al., 128 NLRB 409 ; H. E. Stoudt & Son, Inc., 114 NLRB 838. We also agree with the Trial Examiner's conclusions that Respondents Lipman and Gass each meets the Board's jurisdictional standards As Respondent Lipman annually sells and transports quantities of poultry valued in excess of $50,000 directly to States of the United States other than the State of Maine, it is subject to the Board's jurisdic- tion on the basis of its direct outflow. As Respondent Gass annually performs services valued in excess of $50,000 for Respondent Lipman, it is subject to the Board's jurisdic- tion on the basis of indirect outflow. Kenilworth Delivery Service, Inc, 140 NLRB 1190 ; H P 0 Service, Inc, 122 NLRB 394. 7 The Trial Examiner's Decision erroneously states that this agreement is with Lipman Poultry Products, Inc. 8 Respondent Lipman has various arrangements for the hatching and raising of its chickens, two of which are involved here. Respondent Lipman owns 10 farms, on which its employees raise chickens. In addition, it has oral agreements with about 150 to 200 independent farmers who have no employees but themselves raise chickens owned by Respondent Lipman. Respondent Lipman keeps title to the chickens, and provides the feed. The farmers are paid according to the number of birds they raise for the period of time in which they raise them. 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consider the interpretation of that section and Act by the Labor Department in view of that agency's responsibility and experience in administering that section. Section 3(f) states : "Agriculture" includes farming in all its branches and includes ... the raising of ... poultry, and practices ... performed by a farmer or on a farm as an incident to, or in conjunction with, such farming operations, .. . That part of the definition relating to various branches of farm- ing itself, including work such as the cultivation of the soil, the growing of agricultural commodities, and the raising of livestock or poultry, is commonly termed the "primary" definition of agriculture, whereas "practices . . . performed by a farmer or on a farm" are within the "secondary" definition.9 The work performed by the drivers herein involved does not constitute a branch of farming or the raising of poultry such as would bring it within the "primary" definition. In order to satisfy the requirements of the "secondary" definition, the work which is performed, whether by a farmer or on a farm, must be performed "as an incident to, or in conjunction with" the operations of the farmer performing the function or the farm on which it is performed. The line between practices that meet these requirements and those that do not is not susceptible of precise definition. The relationship of the practice to agricultural activity or to a commercial activity must be determined by an examination and evaluation of all the relevant facts and circumstances. The result depends not on any mechanical application of isolated factors or tests but rather on a consideration of the total situation.1° In making a determination in the instant case, we note the following factors. The individuals involved are engaged in the work of truckdriving. They are em- ployed by joint employers, Respondent Gass, a truckdriving firm, and Respondent Lipman, which engages in various nonagricultural and agricultural operations. A minor part of the drivers' work, deliveries from the byproducts plant to the feedmill, is clearly non- agricultural as both these plants are commercial enterprises where the products involved undergo substantial change." The major part 0 Farmers Reservoir & Irrigation Company v . McComb, Wage and Hour Administrator, 337 U S. 755. 10 Mitchell v. Budd, 350 US 473; Maneja v. Waialua Agricultural Co., Ltd. See also the Wage-Hour Administrator's interpretations of the agricultural exemption in the Fair Labor Standards Act, 29 C .F.R. part 780 , § 780 153 and 780.154. "The byproducts plant processes byproducts of Lipman -owned chickens for delivery to the feedmill and sale to other customers The feedmill mixes these byproducts with various other materials to produce chicken feed . See Mitchell v. Budd, supra, at 481-482 ; Oxford Royal Mushroom Products, Inc., 139 NLRB 1015; cf. McAnally Enterprise, Inc., 162 NLRB 527 ; Calaf v. Gonzalez, 127 F. 2d 934 ( C.A. 1) ; Bowie v. Gonzalez, 117 F. 2d 11 (C.A. 1) ; Armour Ches-Peake etc., 120 NLRB 681. SAMUEL B. GASS, ET AL. 733 of the drivers' work involves the fulfillment of the feedmill's com- mitments to supply feed for the 10 farms owned by Respondent Lipman and the 150 to 900 farms on which independent farmers raise Lipman chickens. We find, upon consideration of the above, that the work of the drivers is performed as an incident to or in con- junction with the operations of the feedmill rather than to the operations of any farmer or farm. Accordingly, these drivers are "employees" within the meaning of the Act subject to the jurisdic- tion of the Board.12 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondents Samuel B. Gass, Augusta, Maine; and Lipman Bros., Inc. ; Lipman Poultry Products, Inc. ; Riverside Poultry Farms, Inc. ; Lipman Poultry Farms, Inc.; By-Products, Inc.; Samuel Lipman Sons; and Pinecrest Hatcheries, Inc., Augusta, and Winslow, Maine; their officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discharging and thereafter refusing to reinstate any employee, or discriminating in any other manner in regard to the hire, tenure of employment, or any term or condition of employment of any em- ployee in order to discourage membership and activities in Truck Drivers, Warehousemen and Helpers Union, Local No. 340, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, or any other labor organization. (b) Coercively or otherwise unlawfully interrogating their em- ployees concerning their union activities or sympathies; or threaten- ing to cease business in order to coerce their employees not to assist or support any labor organization. (c) Refusing to bargain collectively with respect to rates of pay, wages, hours of employment, or other terms and conditions of em- ployment, with the above-named Union as the exclusive representative of all their employees in the following appropriate unit : All full-time truckdrivers, driver-mechanics and mechanics, em- ployed at the Samuel B. Gass plant or terminal, exclusive of office 12 Both Respondents moved to remand the case and reopen the record for the taking of additional evidence on the question of the agricultural exemption . Respondent Gass offered to prove that the drivers here involved had been ruled exempt as agricultural laborers from the minimum wage and overtime provisions of the Fair Labor Standards Act, and Respondent Lipman offered to present further detailed information concerning its various operations . The General Counsel opposed these motions , and Respondent Lipman filed a response thereto. We find merit in the General Counsel's opposition to a remand Respondent Gass sub- mitted no documentary evidence in support of its allegation concerning a Labor De- partment ruling, and we have been administratively advised that there has been no such ruling. Furthermore , even if we assumed the truth of the matters proffered by Respondent Lipman concerning its operations , it would not change our conclusions with regard to the work of the truckdrivers here involved . Accordingly, the motions to remand are hereby denied. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clerical employees, salesmen, professional employees, guards, and supervisors as defined in the Act. (d) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist Truck Drivers, Ware- housemen and Helpers Union, Local No. 340, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of colleerive bar- gaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right might be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment, as authorized by Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds necessary and appropriate to effectuate the purposes of the Act : (a) Offer to Gerald Miville immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges. and make him whole in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy." Notify the above-named employee if pres- ently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. (b) Upon request, bargain collectively with Truck Drivers, Ware- housemen and Helpers Union, Local No. 340, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of employment, and other terms of conditions of employ- ment, and embody any understanding reached in a signed agreement. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Post in conspicuous places at the Samuel B. Gass plant or terminal located at Augusta, Maine, including all places where notices to employees are customarily posted, copies of the attached SAMUEL B. GASS, ET AL. 735 notice marked "Appendix." 13 Copies of said notice, to be furnished by the Regional Director for Region 1, shall, after being duly signed by Respondents' representatives, be posted by them immediately upon receipt thereof, and be maintained by them for 60 consecultive days thereafter. Reasonable steps shall be taken by Respondents to insure that said notices are not altered , defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondents have taken to comply herewith. 13 In the event that this Order is enforced by a decree of a United States Court of Appeals , there shall be substituted for the words "a Decision and Order " the words "a Decree of the United States Court of Appeals . Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate 'the purposes of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discharge and thereafter refuse to reinstate any employee, or discriminate in any other manner in regard to the hire, tenure of employment, or any term or condition of employ- ment of any employee in order to discourage membership and activities in Truck Drivers, Warehousemen and Helpers Union, Local No. 340, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT refuse to bargain collectively with Truck Drivers, Warehousemen and Helpers Union, Local No. 340, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of the employees in the bargaining -unit described below. WE WILL, upon request of the Union, bargain collectively with Truck Drivers, Warehousemen and Helpers Union, Local No. 340, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the ex- elusive bargaining representative of the employees in the bar- gaining unit described below, with respect to rates of pay, wages, hours of employment, and other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All full-time truckdrivers, truckdriver-mechanics, and mechanics, employed at the Samuel B. Gass plant or termi- 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nal, exclusive of office clerical employees, salesmen, pro- fessional employees, guards, and supervisors as defined in the Act. WE WILL offer Gerald Miville immediate and full reinstate- ment to his former or substantially equivalent position, without prejudice to any seniority or other rights previously enjoyed, and make him whole for any loss of pay he may have suffered as a result of our discrimination against him. WE WILL NOT coercively or otherwise unlawfully interrogate our employees concerning their union activities or sympathies; or threaten to cease business in order to coerce our employees not to assist or support any labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-orga- nization, to form labor organizations, to join or assist Truck Drivers, Warehousemen and Helpers Union, Local No. 340, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representa- tives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right might be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act. All our employees are free to become and remain, or refrain from becoming or remaining, members of the above-named or any other labor organization, except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of the Act. SAMUEL B. GASS, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) LIPMAN BROS., INC.; LIPMAN POULTRY PRODUCTS, INC. ; RIVERSIDE POULTRY FARMS, INC. ; LIPMAN POULTRY FARMS, INC. ; BY-PRODUCTS, INC. ; SAM- UEL LIPMAN SONS; PINECREST HATCHERIES, INC., Employer. Dated---------------- By------------------------------------- (RepresentativP ) (Title) SAMUEL B. GASS, ET AL. 737 NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of his right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act of 1948, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Boston Five Cents Savings Bank Building, 24 School Street, Boston, Massachusetts, Telephone No. 523-8100, if they have any question concerning this notice or compliance with its provisions. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon a charge filed on August 21, 1964, and amended on September 24, 1964, by Truck Drivers, Warehousemen and Helpers Union, Local No. 340, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called the Union or Charging Party, the General Counsel of the National Labor Relations Board, hereinafter called the General Counsel' and the Board respectively, by the Regional Director for Region 1 (Boston, Massachu- setts), issued its complaint dated October 5, 1964, against Samuel B. Gass, hereinafter referred to as Respondent Gass, and the other corporations named above, herein referred to collectively as Respondent Lipman. The complaint alleged that Respond- ents Gass and Lipman were an integrated enterprise with a common labor policy and had engaged in and were engaging in unfair labor practices affecting commerce within the meaning of Sections 8 (a) (1), (3), and (5) and 2 (6) and (7) of the Labor Management Relations Act, 1947, as amended, herein called the Act. Copies of the charge and amended charge, complaint and notice of hearing thereon were duly served upon the Union and Respondents individually and collectively. Respondent Gass and Respondent Lipman duly filed individual answers admitting certain allegations of the complaint but denying the commission of any unfair labor practices. Pursuant to notice, a hearing hereon was held at Augusta, Maine, on November 23 and 24, 1964, before Trial Examiner Thomas S. Wilson. All parties appeared at the hearing, were represented by counsel or a representative, and were afforded full opportunity to be heard, to produce, examine, and cross-examine witnesses, to intro- duce evidence material and pertinent to the issues, and were advised of their right to argue orally upon the record and to file briefs and proposed findings and con- clusions or both. Oral argument at the conclusion of the hearing was waived. Briefs have been received from General Counsel, and from Respondent's Gass and Lipman on January 14, 1965. Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDING OF FACT 1. THE RESPONDENTS Each of the named Respondents is, and has been at all times material herein, a corporation duly organized under and existing by virtue of the laws of the State of Maine. At all times herein mentioned, Respondent Lipman has maintained its principal office and places of business at Riverside Drive, Augusta, Maine, and Winslow, Maine, herein called Respondent Lipman's plant, and is now and continuously has been engaged at said plants in the hatching, feeding, general care, processing, sale, and distribution of poultry. The only officers and directors of the various Lipman corporations are the three Lipman brothers, Bernard, Harold, and Frank. 'This term specifically includes the attorney appearing for the General Counsel at the hearing. 206-446-66-vol. 151 48 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These separate Lipman corporations constitute a single integrated organization engaged in the chicken business from the egg, or the chicken, to the dressed poultry and return , In general these operations work something like this: Respondent Pinecrest Hatcheries, Inc., hatches chicks from eggs and sells such chicks to Lipman Poultry Farms, Inc., which grows such chicks on 150 to 200 farms owned or leased by it and at the proper time sells the grown chickens to Lipman Bros., Inc., which kills, dresses, and sells the dressed poultry on the market and sells the feathers, feet, and other byproducts to By-Products, Inc., which processes such by- products and sells the resulting product to Samuel Lipman Sons which mixes such byproducts with grain, flour, etc., to make chicken feed at its feedmill and sells said feed to Lipman Poultry Farms, Inc., which feeds same to its growing chicks- and then the whole process starts all over again .2 In general, and disregarding the individual corporations involved, the Lipman brothers have divided the overall Lipman operations so that brother Frank takes care of the growing of the chicks on the farms, Bernard the sales and Harold the rolling stock and the maintenance and production of the feedmill and other plants. During the past year, Respondent Lipman sold and transported quantities of poultry valued in excess of $50,000 directly to States of the United States other than the State of Maine. About 3 years ago Respondent Samuel B. Gass was incorporated under the laws of the State of Maine. Prior to that time Samuel B. Gass, an individual, here referred to as Sam Gass, had operated this same trucking business as a sole pro- prietorship. Sam Gass, the individual, is now the president of the corporation and Beverly Lipman Gass, Sam's wife, is its treasurer. Until after the filing of the charges in the instant matter the directors of the corporation were Sam and Beverly Gass and Harold Lipman. After the filing of the charges herein Harold Lipman was replaced as such director by a third party unrelated to the Lipmans. As her name implies, Beverly Lipman Gass is the sister of Bernard, Harold, and Frank Lipman. At all times herein mentioned , Respondent Gass, the corporation, has maintained its principal office and place of the business at Bangor Street, in the city of Augusta, and State of Maine, hereinafter referred to as Respondent Gass' terminal and is now and continuously has been engaged at said plant in the hauling and transpor- tation of poultry feed from Respondent Lipman's feedmill to chicken farms owned or leased by Respondent Lipman Poultry Farms, Inc. During the past year Respondent Gass, in the course and conduct of its said trucking operations within the State of Maine, derived gross income in excess of $100,000 from said trucking operations which were performed pursuant to an oral contract or arrangement with Respondent Lipman Poultry Products, Inc. In addi- tion the evidence shows that Respondent Gass is also engaged in the trucking of some products from By-Products, Inc., to the feedmill operated by Respondent Samuel Lipman Sons under some arrangement not disclosed in this record. I find that Respondent Lipman and Respondent Gass are engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Truck Drivers, Warehousemen and Helpers Union, Local No. 340, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization admitting to membership employees of Respond- ent Gass. M. THE UNFAIR LABOR PRACTICES A. The facts As of August 1, 1964, Respondent Gass was operating nine specially equipped tank trucks for the hauling and unloading of feed with seven drivers, one mechanic, and one mechanic-driver. Shortly prior to August 1 Gass employed Henry Roy, who had formerly been employed by one of the Lipman corporations, as a bookkeeper with the authority to hire and fire. The announcement of Roy's authority caused driver Gerald Miville, 2I recognize that two Respondents , Riverside Poultry Farms, Inc., and Lipman Poultry Products, Inc., remain unaccounted for in the above-enumeration-just as they did during the testimony of Harold Lipman upon whose testimony the above -findings are made. Each, however, plays its part in this integrated process. No doubt one or both of these Re- spondents have something to do with the production of hatching eggs which appears to have been the one part of the operations omitted during Lipman's testimony. Other testimony indicated that Respondent Lipman did produce its own hatching eggs. SAMUEL B. GASS, ET AL. 739 whose 8 years of employment with Gass made him the second longest driver in point of service, to worry about job security and to begin talking with his fellow employees about joining a union. So on August 14, at the request of Miville and from the Miville home, Robert W. (Pinnoccio) McLaughlin telephoned Albert Hastings, the president and business agent of Local 340, about the possibility of the Gass employees joining the Union and requesting union authorization cards for that purpose. The requested union authorization cards were received by McLaughlin through the mails on August 17. That evening Miville and McLaughlin visited all but two of the Gass employees and secured their signatures on such authorization cards. Early the next morning the other two employees also executed cards so that 100 percent of the Gass employees had signed cards for the Union. The signed cards were mailed back to Hastings who, on August 19, sent Respondent Gass a letter offering to prove the Union's majority and demanding bargaining rights. This letter was received by Respondent Gass on the morning of August 20. However on the morning of August 19 Thomas Morgan, superintendent of Respondent Lipman's feedmill, having heard that the Gass employees had signed union authorization cards and immediately following a conversation he had with Sam Gass, met Gass drivets Parlor and McLaughlin in the scaleroom of the feedmill while they were waiting to load their trucks. Morgan told them that Sam Gass knew what the employees were up to, that Sam could not figure out what caused the employees to do what they had done and that he, Morgan, thought the men had jumped into the Union too quickly and that they should have gone to Sam and talked it over with him first. Morgan also stated that Gass did not seem to be bothered about the matter. Later that same day, August 19, signs were suddenly posted at the feedmill inform- ing the Gass employees that the mill and all its facilities were "off limits" to them. These signs effectively prevented the drivers from using the restrooms and the vending machine which, until that time, they had customarily used. Also either later that same day or some day prior thereto,3 driver Miville was on the top of his truck loading the same when Harold Lipman, Thomas Morgan, and Lipman employee Caron passed by. According to Lipman and Caron, Miville made a vulgar remark to Lipman relative to a character with a feminine name.4 Lipman and the others with him walked on without comment. On Thursday, August 20, about 4:45 a.m. Sam Gass stopped Miville as he was about to start his day's work telling him that Frank Lipman wanted him off Lipman property and wanted to see Miville in person at 6.45 am. at the feedmill. Upon reporting at the feedmill office as ordered, Miville was met by Harold Lipman and inquired for Frank. Harold said that he would take care of Miville and that Miville was "all through." When Miville asked for an explanation, Harold answered, "you've been shooting your mouth off at my chicken farmers and been fooling at women on the farms." Miville replied that his discharge was really on account of the Union. Harold retorted, "You didn't have to sign the union papers" and then inquired as to how many Gass employees had signed such papers When Miville told him "100 percent," Lipman said, "I'm taking the trucking outfit over" and ended the interview by ordering Miville off his property again.5 8 Harold Lipman and Caron placed this incident on August 19 whereas Miville thought it had happened a month or more before. Respondent's witness , Thomas Morgan, who supposedly was present , was not interrogated about the matter , raising the inference that his testimony in regard thereto would have been unfavorable to Respondent 6 Contrary to the testimony of Lipman, this unknown and apparently fictitious female appears to have been a standing joke of some years standing both at the feedmill and between Miville and Harold Lipman 5In his testimony Lipman maintained that he, not Frank Lipman, telephoned Sani Gass to have Miville report in the morning because he , Harold , "wanted the pleasure of kicking [Miville] to hell out of the yard" because of Miville's "vulgar" remark of Au- gust 19 to him regarding this fictitious female As for the discharge interview itself, Harold Lipman testified that "I told him [Miville] not to get on my property and I don 't want to see his dirty face again." When asked if there was any talk of a union at that interview , Lipman answered, "I don't know of any talk of no union." It is noteworthy that Lipman's testimony of the Miville interview contained no refer- ence to the alleged vulgar remark which supposedly caused the interview. When I asked when he first learned of any union activity among the Gass employees, Harold Lipman became evasive and noticeably indefinite except for the fact that his 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Later that morning Miville and Union President Hastings drove to the Gass terminal where Hastings asked to see Sam Gass. Mrs. Gass answered that Sam was away but that she could take care of his business. Hastings then introduced himself as the president and business agent of Local 340. With that Mrs. Gass broke with, "Oh, you're from the Union. You get out of this yard and get off from this property. Go on and get out. Get out . . . . You get out of this yard or I'll call the police. We don't have any union around here yet, and we're not going to . Now get out or I'll call the police if you don't get out this instant." Hastings and Miville departed quietly. An hour or so later Miville telephoned the terminal and asked Sam Gass if Hastings could talk to him. Sam refused, saying that Hastings would have to talk to Sam's attorney. Mrs. Gass broke into the conversation on an office extension line and said, "We don't want to talk to no union man. We don't want no union man around here." Sam Gass then said, "I'll take care of my own business, ... you'll hear from my lawyer." When Miville asked Gass if he were "all through," Gass said, "Yes, ... Lipman don't want you on the farm. I have no more work for you." 6 During the afternoon of August 20 Sam Gass informed all the drivers that their employment would be terminated as of Friday. He also told them to tell their wives to come for the drivers' checks later than usual the next day because they would be given two checks. When asked about these two checks, Sam stated that he was quitting the business and that a new trucking company would take over on Monday. On the morning of August 21, McLaughlin, having thus been informed that Sam was losing his business, inquired of Superintendent Thomas Morgan at the feedmill as to what would happen to Sam's business if the employees should "sign off" the Union. Morgan, saying that he would call the Lipmans and find out the answer to that question, departed ostensibly to consult the Lipmans. A few minutes later Morgan returned and reported to employees McLaughlin and Parlin that, if the drivers got together with Sam Gass before 5 p.m. that day, they [the Lipmans] would give Sam back his business. Acting upon this advice, McLaughlin returned to the terminal and reported his conversation with Morgan to some of his fellow employees and then to bookkeeper Roy. Roy telephoned to Sam Gass who agreed to meet with the drivers at the ter- minal and did so within the hour accompanied by Mrs. Gass. Morgan also came over from the feedmill. After some discussion in the office the Gasses stated that, in order to "save Sam's business," it would be necessary for the drivers to send the Union a registered letter and a telegram signed by all the drivers withdrawing from the Union. Mrs. Gass instructed them to bring her back receipts for both. Driver Parlin arrived at the office about this time and Sam Gass suggested that Parlin write the letter to the Union because his handwriting was good. Parlin reluctantly agreed to do so and did write the letter of withdrawal with assistance on phraseology from Sam Gass who consulted a slip of paper he had in his pocket from time to time as he did so. Mrs. Gass stated at least once that the Gasses could have "nothing" to. do with it and that whatever the men did they were doing "voluntarily." After the letter had been written and each driver present had signed the same, the drivers set out to secure the missing signatures of drivers Pooler and Carleton. After locating Pooler and Carleton, all the drivers set off in two automobiles, one of which was Sam Gass', for the postoffice where a telegram signed by each of the drivers was sent to the Union. With the accomplishment of this mission a little after 11 a.m., the drivers returned' to their regular work. The 3 hours so spent was not deducted from their pay. Subsequently McLaughlin and Parlin asked Sam Gass about the possibilities of returning Miville to work now that the drivers had "signed off" the Union. Sam stated that he would do everything in his power but did not know if the Lipmans would want Miville back on the farms.? Later that day Morgan informed McLaughlin that, if the drivers had not withdrawn from the Union, they would have been working for him on Monday morning under knowledge came "after" the interview with Miville Thus the Harold Lipman testimony is contradicted by the testimony not only of Miville but also of Thomas Morgan and Sam Gass Harold Lipman was a most unconvincing witness As a witness he was sly, evasive, argumentative, inconsistent, and contradicted the testimony of numerous other witnesses, including those called by Respondents. In addition his demeanor upon the stand was such as to cause me to have grave doubts as to his veracity. Consequently I have been forced to credit the testimony of others over the testimony of Harold Lipman. 8 Again the alleged vulgar remarks were not mentioned. 7 Again there was no mention of vulgar remarks. SAMUEL B. GASS, ET AL. 741 rules whereby there would have been no coffee breaks, a driver would have been subject to discharge if caught taking unauthorized coffee breaks, and would have had to punch in and out for the lunch period. None of these things were required by the rules under which Gass operated. On Friday afternoon, Miville reported at the terminal in response to a telephone call from Mrs. Gass. At this time Sam Gass told Miville that the drivers had "signed off the Union" so that he could retain his trucking business and that he, Gass, would ,do everything possible to get Miville back to work. As a result of information received over the weekend that Gass had been telling his employees that he had offered Miville his job back but that Miville had refused, Miville went down to the terminal to straighten this incorrect information out on Monday, August 24. Gass offered Miville his job back "under the old conditions " Miville stated that he would come back under the condition that he could talk freely with the boys about a union. To this Gass replied "I have no work for you." Gass hired a new driver at that same time.8 On September 10 Miville received the following letter over the signature of Gass' attorney: Mr. Gass has authorized me to offer you immediate and unconditional reinstatement to your job at the trucking company. The offer is made not- withstanding the fact that you are previously offered reemployment on Au- gust 21, 1964, and later on August 24, 1964, which offers you then refused. If you wish to return to employment, will you please get in touch with Mr. Gass immediately at the garage on receipt of this letter. Promptly upon receipt of this letter, Miville and his wife drove to the terminal 'office where, in the absence of Sam Gass, Miville told Mrs. Gass that he was reporting for work in accordance with the letter he had received from the Gass' attorney. To the inquiry as to whether his job was available Mrs. Gass answered, as she testified, that "his job has always been available, and as far as I was concerned it was only his big mouth that had got him fired in the first place." She then added that she did not have a truck available at that time and probably would not have until Monday morning. At this point mechanic Darveau broke in to report that he would have a truck available sometime that afternoon. When Mrs. Gass ordered him to report on Monday, Miville stated he was just reporting back for work. He then left the office, went outside into the garage about 10 feet away where he and his wife chatted with Darveau for a couple of minutes about the fact that Darveau was entering the hospital that afternoon for an operation. 9 About 2 minutes after Miville had left the office, Mrs. Gass appeared at the office doorway to the garage and angrily told Miville "it was my garage and I wouldn't have him or anybody coming in using . . . swearing or insulting me," as Mrs. Gass phrased it in her testimony. Miville's response was, in his words, "what the hell are you talking about?" Whereupon Mrs. Gass claimed that she had been insulted again and threatened to fire Miville. Miville inquired how Mrs. Gass was going to fire him when he did not even have a timecard in the rack and was not to report for work until Monday. At this point Roy stepped in and ordered Miville to report for work on Monday-which ended the episode for the time.is 8 Sam Gass did not deny Miville's testimony as to the condition attached to his return to work. Instead Respondent produced a witness who had just purchased a jeep from Sam Gass, who heard a part of the conversation between Gass and Miville only, but did hear Gass say, "well, If you want to come back and forget everything, come back like It was or used to be, something to that effect, he [Gass] said everything is okay." This testimony would appear to confirm Miville that there were conditions to Miville's reinstatement. 0 Every witness to this Incident testified that the conversation between Mrs . Gass and Miville had been completely amicable to this point. 10In Mrs. Gass' account of the episode she claimed that, while Miville was conversing with his wife and Darveau in the garage, he suddenly said to her "Sam Gass Is a nice man, one of the nicest men I ever worked for," to which she replied , "Yes, Sam is a nice man" whereupon Miville retorted with a remark no gentleman should make to a lady. Miville denied having made the statement as claimed by Mrs Gass, on the ground, as he put It, "I know better than that . . . . I wouldn't say a thing like that to her. I knew she would fire me in a minute If I said that. Any boss would fire." The other two witnesses to this episode, Darveau and Roy, were neither sure as to what had actually been said and, In addition , both were rather successfully impeached. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At 4:15 p.m. the following day, September 11, Sam Gass sent the following telegram to Miville. Because of your insubordination and profanity to Mrs. Gass on September 10. You are hereby discharged and requested not to report for work on Sep- tember 14. Subsequently Miville has never been employed or offered reinstatement by Respondent Gass. B. Conclusions 1. Discharge of Gerald Miville For 8 years Miville had been a satisfactory employee to Respondents Gass and Lipman despite his well-known tendencies toward vulgarity and joking. Then Miville became the leader in the move to organize the Gass drivers into the Union for their mutual protection. Slightly more than 2 days after Miville's successful campaign to secure signed union authorization cards from 100 percent of the Gass drivers, he was precipitously discharged from his employment with Gass by Harold Lipman, who claimed not even to be connected with Respondent Gass despite the fact that he had been a director thereof from its incorporation until after the charges here had been filed. Even before the discharge of Miville, Lipman official, Thomas Morgan, was advising Gass employees that they were wrong in jumping into the Union without first consulting Gass. In addition Respond- ent Lipman had indicated its displeasures at these union developments among the Gass employees by placing the Lipman feedmill with its restrooms and vending machine facilities "off limits" to all Gass employees. Despite Harold Lipman's double negative "denial," quoted supra, that he knew of any union activity among the Gass employees until some unspecified time almost immediately after he discharged Miville at 6 45 a m., August 20, it is crystal clear that Respondents Gass and Lipman had definite knowledge of the union activity then going on among the Gass employees, at least as early as the morning of August 19. Respondents' claim to the contrary is therefore unbelievable and here discredited. If Harold Lipman intended his aforementioned double negative denial of any knowledge of union activities among the Gass employees to constitute also a denial of the fact that he affirmatively stated in the discharge interview that Miville had executed a union authorization card as well as inquired as to how many other Gass employees had done likewise, I cannot credit any such intended denial and must find from all the circumstances that at that dismissal interview Lipman asserted that Miville had signed a union authorization card as well as threatened to take over the Gass trucking concern because 100 percent of the Gass employees had executed similar authorization cards. This threat, which Gass confirmed by announcing the demise of his trucking business to his employees later that same day, as Lipman obviously intended it to be conveyed, constituted a threat of loss of their employment as a penalty to the employees for their known union activity and amounted to a violation of Section 8(a)(1) of the Act by both Respondents. I so find. Respondent Lipman argues that it cannot be held responsible for the discharge of Miville because he was not an employee of Respondent Lipman. Technically Miville was an employee of Respondent Gass. But Miville lost his employment with Respondent Gass at the insistence and order of Respondent Lipman. In fact, Harold Lipman demanded and received "the pleasure of" informing Miville that he was discharged. Respondent Lipman assumed and was granted authority over the employment status of Miville and the rest of the Gass employees by reason of its threat to ter- minate its oral agreement with Gass. By thus assuming and exercising that authority over the employment status of the Gass employees, Respondent Lipman made itself the joint employer of those employees with Respondent Gass." In addition the facts here clearly prove that Respondent Gass constituted but another segment of the whole integrated Lipman enterprise and was subject to the same management and labor policies as were the other Lipman corporations com- prising the rest of that integrated complex. Respondents contended at the hearing that they had no union animus at least since Respondent Lipman had executed a union contiact covering some of its em- ployees after a 5-day strike in October 1963 under what Harold Lipman volun- teered at the instant hearing were conditions of "blackmail." No further proof of Harold Lipman's antiunion feelings beyond his undenied threat to terminate the u See West Texas Utilities Company, 108 NLRB 407, enfd. 218 F. 2d 824 (C.A. 5), cert. denied 349 U.S. 953. SAMUEL B. GASS, ET AL. 743 Gass contract immediately upon learning that 100 percent of the Gass drivers had signed union authorization cards is required. The similar animus of Respondent Gass was made all too apparent by the statements and actions of Mrs. Gass to require further comment. The timing of the Miville discharge together with the statements made at the' time of his dismissal leave no doubt but that Miville was discharged on August 20 by Respondent Gass and Lipman because both Respondents knew or believed that Miville was the leader of the union movement among the Gass employees, and in order to discourage such union membership and activities among the employees of Respondent Gass in violation of Section 8(a) (3) and (1) of the Act. Contrary to this finding Harold Lipman would have us believe that he personally discharged Miville solely because of certain alleged vulgar remarks made by Miville to Lipman supposedly on the morning of August 18 at a time when Lipman claimed that he had no knowledge of Miville's union activity. As noted supra, the record disproves the latter part of this contention. As for the first part thereof, the record is clear that to Lipman's own knowledge Miville had been making similar vulgar, but joking, remarks over a period of years without objection from Harold Lipman. Such remarks had been considered as jokes, bad though they may have been, for a long period of time. Even accepting Lipman's testimony that Miville made the disputed remark on August 19, a finding which I cannot make due to Lipman's proven lack of veracity, Miville's denial and Respondent's failure to even seek corroboration from Lipman official, Morgan, who supposedly was present, it is noteworthy that Harold Lipman paid no attention to the remark at the time it supposedly was made, became infuriated by it, if at all, only after Miville's union activity had become known, at which time Lipman demanded "the pleasure" of kicking Miville off his property. Thus, even from Harold Lipman's testimony it becomes apparent that his aggravation was caused by Miville's union activity rather than the alleged vulgar remarks. The sockdolager, of course, is the fact that, despite his alleged righteous anger at the vulgarity, during the dismissal interview Harold Lipman made no mention of the alleged vulgar remarks although he would have us believe that they were the cause of Miville's discharge Instead the record is clear that Harold Lipman talked about Miville's union activity and, upon learning that 100 percent of the Gass employees had executed union authorization cards, immediately threatened to take over the trucking concern. Under these facts it is unmistakably clear, and I have no hesitancy in finding, that the alleged vulgarity, even if it occurred, was no more than a pretext used by Harold Lipman to attempt to disguise the real reason for Miville's discharge which was his union activity among the Gass employees. 2. The offers of reinstatement The speed with which Respondents offered Miville reinstatement on August 24, after the union matter had been taken care of to the satisfaction of Respondents, serves to confirm the discriminatory nature of Miville's discharge, particularly as Gass conditioned that reinstatement on Miville's refraining from discussing the Union. On September 10 Miville received a letter from Respondent's attorney offering him "immediate and unconditional reinstatement" to his job if he would get in touch with Respondent "immediately " As requested, Miville reported immediately. The first half of his conversation with Mrs. Gass, all witnesses agree, was perfectly amicable throughout with arrangements being completed between the two for Miville to return to work on Monday, September 14. This was so even though Mrs. Gass admittedly threw in a provocative remark about Miville's "big mouth" and unnecessarily delayed Miville's reinstatement because of her inability to locate a truck for him despite advice from her mechanic that a truck would be available that same Thursday afternoon. Everybody agreed that even these irritants did not bother Miville. Then followed approximately a 2-minute break after Miville left Mrs. Gass' office during which he conversed so quietly in the garage with his wife and mechanic Darveau that Roy in the office could not hear the conversation. The second portion of the conversation began, everybody agrees, when for some unaccountable reason, Mrs. Gass left her desk in the office and went to the doorway leading into the garage after which Mrs. Gass claims Miville made the offending statement to her, a remark which came right out of a clear sky as Mrs. Gass tells it. Actually Mrs. Gass was the only witness to testify that Miville made the offending statement Not even bookkeeper Henry Roy, who wanted to retain his job with Respondent Gass, corroborated the testimony of Mrs. Gass, although he did testify that he "was under the impression," and, "it was my understanding at that particular 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time" that Miville did make some statement similar to that testified to by Mrs. Gass. But even this corroboration, if such it was, was greatly weakened by the fact acknowl- edged by all that the episode ended when Roy ordered Miville to report for work on Monday, an order which would not have been given if Miville had actually used the phrase in question. The other two participants in the episode flatly denied the use of the phrase by Miville. On the other hand Mrs. Gass admitted to being "excitable." She had amply demonstrated that trait, plus her animus against the Union, by furiously threatening Business Agent Hastings with the police if he did not get off her property immediately, the threat being made just as soon as Hastings had introduced himself to her in his union capacity. She demonstrated the same thing again when she impetuously broke into the telephone conversation between Miville and Sam Gass to say that they would not talk to a union man. So at the end of the first part of the conversation of September 10, Mrs. Gass had failed to provoke Miville into some untoward action which would justify a further refusal of reinstatement even with her reference to his "big mouth" and the uncalled for delay in reinstating him until Monday. She could forsee Miville's imminent return to work, a revival of interest in the union activity she had worked so hard to stop and the further possibility of Lipman's terminating her valuable cartage contract for this reason. Excited and frustrated she moved to the doorway and made her remark that nobody was going to insult and swear at her, which explains Miville's genuinely astonished, "What the hell are you talking about?" Accordingly I am convinced and, thereafter, find, contrary to Mrs. Gass' testimony, that Miville never uttered the words which Mrs. Gass has now convinced herself he used on that occasion. 3. Interference, restraint, and coercion Respondents Gass and Lipman learned of the union activity among the Gass drivers at least on August 19. Respondent's campaign to interfere with, restrain, and coerce the Gass drivers into abandoning this organizational effort began imme- diately when feedmill Superintendent Thomas Morgan attempted to persuade the drivers to discuss the matter with Sam Gass before joining the Union. This attempted persuasion not having proved successful on August 19, Harold Lipman discharged Miville before Miville could even get to work on the morning of August 20. Upon interrogating Miville, Lipman learned that 100 percent of the drivers had joined the Union. Hence, discharging one man was obviously going to be insufficient for the purpose so Lipman promptly reverted to a maneuver which had worked successfully when used by these same parties before: He threatened to take over Respondent Gass' trucking outfit with the resultant loss of employment by all the rest of the Gass drivers. On Thursday afternoon Sam Gass made it a point to notify all his drivers that Friday would be their last day of employment as he was going out of business. Such a threat to cease business because of a union is so well recognized as a violation of 8(a) (1) as to require no citation of authority.12 Also on Thursday Superintendent Morgan took occasion to notify the Gass em- ployees that, if they succeeded in getting together with Sam Gass before 5 p.m. and settling their difficulties, Sam would be permitted to retain his buisness. This meant also the men's employment. Through these threats to the Gass drivers of losing their employment unless they could "save Sam's business" by withdrawing from the Union, the drivers met with Sam and Mrs. Gass on the morning of August 21 and were then instructed by the Gasses that "in order to save Sam's business," the drivers must withdraw from the Union through a registered letter signed by each of the drivers, which Sam Gass helped them to compose, and through a similar telegram of withdrawal signed by each and sent to the Union. Mrs. Gass demanded that the receipts for both these messages of withdrawal be returned to her, in contradistinction to her protestations made during the meeting at the terminal office that what the men were doing they were doing on their own. 12 This is so even if Sam Gass had testified truthfully that he "voluntarily " decided to retire from business because his liabilities to Respondent Lipman were so great for any failure to make feed deliveries that he could not undertake those responsibilities if he was forced to operate with a union crew and under a union contract. Actually Sam Gass' "decision" was only a part and parcel of Respondent Lipman's campaign of coercion which commenced with its threat to cancel the Gass carriage contract and to take over the trucking concern. SAMUEL B. GASS, ET AL. 745 By this well contrived and coordinated campaign Respondents Gass and Lipman succeeded in coercing the Gass drivers once again into abandoning their union membership in violation of Section 8(a)(1) of the Act. 4. The refusal to bargain The evidence shows, and I find, that all full-time truckdrivers, driver-mechanics, and mechanics employed by Respondent Gass at Respondent Gass' plant or terminal, exclusive of office clerical employees, salesmen, professional employees, guards, and supervisors as defined in the Act, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act.13 As of August 17, 1964, Respondent Gass employed seven full-time drivers, one full-time driver-mechanic, and one full-time mechanic in said appropriate unit. By early morning of August 18, 1964, each one of said employees in the afore- mentioned appropriate unit had executed voluntarily a card applying for membership in the Union and authorizing said Union to bargain on their behalf with Respondent. Thus the Union was the duly authorized bargaining representative of the employees in the appropriate unit. By letter dated August 19, 1964, over the signature of David Hastings as president and business agent, the Union advised Respondent that a majority of its truckdrivers and mechanics were represented by the Union for the purposes of collective bargain- ing and requested recognition of said Union with an offer to prove the Union's majority status upon request. This letter was received by Respondent Gass on the morning of August 20. Respondent Gass has never answered that request in writing. Instead of answering the Union's request by letter, Respondents Gass and Lipman promptly undertook their campaign to coerce the Gass drivers into abandoning the Union as found above. The indulging in such unfair labor practices in order to dissipate the Union's majority constitutes a refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. I so find.14 C. The agricultural exemption defense Unlike the prior case involving these same Respondent Lipman corporations alone, 147 NLRB 1342, and now on appeal, Respondents Gass and Lipman have pleaded in the instant case: (1) Respondent Gass is engaged exclusively in the State of Maine in hauling feed from the feedmill under contract with Respondent Lipman Poultry Farms, Inc., which in turn is engaged exclusively in farming in the State of Maine and thus not engaged in interstate commerce, and (2) That all em- ployees of Respondent Gass are agricultural workers and thus exempt from the Act under the exemption for agricultural employees contained in Section 2(3) of the Act. On the other hand Respondent Lipman has also pleaded in its answer here that Respondent Lipman Bros., Inc., sold and transported poultry at a value in excess of $50,000 through and into States of the United States other than the State of Maine. By pleading thus Respondents are attempting to carry water on both shoulders: (1) In maintaining that Lipman Poultry Farms, Inc., is not engaged in interstate commerce, Respondents are in effect contending that each of these numerous Lipman corporations are separate and distinct employers and that each must be judged on its own particular little segment of the total activities involving the whole Lipman commercial operation, while (2) In the instance of Respondent Gass Respondents by this pleading are contending the opposite; i e., that Gass, instead of being a mere commercial hauler of feed, is an integral part of the farming branch of the Lipman enterprises, Lipman Poultry Farms, Inc., but not of the remainder of the integrated enterprise. As such integral part of the Lipman Poultry Farms, Inc., the Gass employees become agriculture employees like those of the Poultry Farms. The facts here show that through these various individually named Lipman cor- porations Respondent Lipman operates a commercial enterprise from the egg to the dressed poultry on the market shelf. For reasons best known to themselves, the Lipmans have chosen to operate each of the many integral segments of this com- mercial enterprise under a differently named corporate entity, each of which has the same officers and directors: Bernard, Frank, and Harold Lipman. 18 See Edward P. Tepper, d/b/a Shoenberg Farms, 132 NLRB 1331. 14 See Joy Silk Mills, Inc., 85 NLRB 1263, enfd. In pertinent part 185 F. 2d 732 (C.A.D C.), cert. denied 341 U.S. 914. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the prior hearing involving all these same Lipman corporations, but not Respond- ent Gass, I and the Board found "Upon the foregoing facts, the Respondents concede, and I find, that at all times material herein they have been a single integrated enter- prise and joint employer engaged in commerce within the meaning of the Act." As Respondents here introduced no evidence to the contrary of the above finding, I adopt the above-quoted finding for the instant case. The facts presented here would permit no other finding. The facts here show that Respondent Gass was either an integral part of this integrated commercial enterprise which was engaged in commerce or else it was an independent trucking concern hauling for a commercial enterprise which in turn was engaged in commerce. In either event the employees of Respondent Gass do not qualify as "Agricultural employees" or "working on the farm" so as to be exempt from the provisions of the Act. See Farmers Reservoir & Irrigation Company v. McComb, Wage and Hour Administration, 337 U.S. 755. This defense is without merit. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of Respondents described in section I, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found that Respondents have engaged in certain unfair labor prac- tices, it will be recommended that each of them cease and desist therefrom and that they take certain affirmative action designed to effectuate the policies of the Act. It having been found that Respondents discriminated in regard to the hire and tenure of employment of Gerald Miville by discharging him on August 20, 1964, and thereafter refusing to reinstate him, I will recommend that Respondents offer him immediately and full reinstatement to his former, or substantially equivalent position without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay he may have suffered by reason of said discrimination against him by payment to him of a sum of money equal to that which he would have earned as wages from the date of the discrimination to the date of his reinstate- ment, less his net earnings during such period in accordance with the formula set forth in F. W. Woolworth Company 90 NLRB 289, with interest thereon at 6 percent per annum. It having been found that on and after August 20, 1964, and at all times thereafter, Respondents have refused to bargain collectively in good faith with Truck Drivers, Warehousemen and Helpers Union, Local No. 340, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the duly authorized exclusive bargaining representative of Respondent Gass' em- ployees in the aforefound appropriate unit, it will be recommended that Respondents, upon request, bargain collectively with said Union in good faith as the exclusive bargaining representative of Respondents' employees in the appropriate unit. Because of the variety, extent, and type of the unfair labor practices engaged in by Respondents, I sense an opposition to the policies of the Act in general, and hence deem it necessary to order Respondents to cease and desist from in any manner infringing upon rights guaranteed their employees in Section 7 of the Act. CONCLUSIONS OF LAW 1. Truck Driver, Warehousemen and Helpers Union, Local No. 340, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 2. By discharging Gerald Miville on August 20, 1964, and thereafter refusing to reinstate him, thereby discriminating in regard to his hire and tenure of employ- ment, and discouraging union membership and activities among their employees, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act 3. All full-time truckdrivers, driver-mechanics, and mechanics employed by Respondent Gass at its plant or terminal, exclusive of office clerical employees, sales- men, professional employees, guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times since August 18, 1964, Truck Drivers, Warehousemen and Helpers Union, Local No. 340, affiliated with International Brotherhood of Teamsters, THE WESTON AND BROOKER COMPANY 747 .'Chauffeurs, Warehousemen and Helpers of America, has been, and now is, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By failing and refusing on, and at all times since, August 20, 1964, to bargain •collectively with Truck Drivers, Warehousemen and Helpers Union, Local No. 340, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as such exclusive bargaining representative , Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By interfering with , restraining , and coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act, Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] 'The Weston and Brooker Company and United Stone and Allied Products Workers of America, AFL-CIO, CLC. Case No. 11- CA- 4192. August 97,1965 DECISION AND ORDER On March 24, 1965, Trial Examiner James V. Constantine issued his Decision in the above-entitled proceeding, finding that the Re- spondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that the Respondent had not engaged in certain other unfair labor practices alleged in the com- plaint and recommended that such allegations be dismissed. There- after, Respondent, the Charging Party, and the General Counsel filed exceptions to the Decision and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following modifications.' 1 The Trial Examiner's Decision , section III , C, 1, inaccurately reports a conversation concerning longevity pay that took place during bargaining negotiations. The date of the bargaining session was July 23 and not March 23. Moreover, the statements at- tributed by the Trial Examiner to Respondent 's Counsel Smith were in fact made by President Weston. Also, the Trial Examiner's Decision, section III, C, 2, refers to Section 10(d) of the Act. The correct section is Section 8(d). 154 NLRB No. 58.