Manley Transfer Co.

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Manley Transfer Company, Incorporated, Kansas Delivery Service , Inc. and Raymond Brooks d/b/a Brooks Transfer and Storage' and Local Union No . 41, International Brotherhood of Teamsters . Case 17-CA-2887. April 28, 1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On January 6, 1967, Trial Examiner Jerry B. Stone issued his Decision in the above-entitled proceeding, finding that Respondents have engaged in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondents filed exceptions to the Trial Examiner's Decision _and a supporting brief, and the General Counsel filed cross-exceptions to the Trial Examiner's Decision. 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. 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, cross- exceptions, brief, and the entire record in the case, and hereby adopts the findings,2 conclusions, and recommendations of the Trial Examiner, as modified herein. The Trial Examiner found, and we agree, that Respondent Manley's control of Respondent Kansas was such as to constitute Kansas a subordinate instrumentality of Manley, and Kansas' supervision and employees were in effect a part of Manley's supervision and work force. We also agree with the following findings of the Trial Examiner: Manley and Kansas, through the actions of Manager George E. Harris on March 10, 1966, violated Section 8(a)(1) and (3) of the Act by interrogating employees Melvin Beerbower, Gerald L. Cobb, Dean Howard, and John Darrell Foster about their union activities, threatening them with discharge if they did not abandon their union activities, offering a wage increase if they would forget about the Union, and discharging Foster because of his union activity. Manley and Kansas further violated Section 8(a)(1) of the Act on March 16, 1966, when Harris threatened Foster that I Herein called Manley, Kansas, and Brooks. I Respondents' exceptions are in considerable part directed to the credibility resolutions of the Trial Examiner. On the basis of 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 the terminal in Lawrence, Kansas, would be closed to prevent unionization and promised Foster a job in Kansas City, Missouri, if he would forget about the Union. Manley and Kansas, by their failure to recognize the Union, the cessation of business by Kansas on March 26, 1966, and the pretextuous substitution of Brooks for the operation of the Lawrence, Kansas, terminal, engaged in a course of conduct whereby they clearly refused to bargain in good faith with the Union in violation of Section 8(a)(5) and (1) of the Act. Manley and Kansas also violated Section 8(a)(3) and (1) of the Act by discriminatorily terminating Cobb, Howard, and Beerbower on March 26, 1966. In addition, the Trial Examiner found that Brooks was chargeable with the foregoing unfair labor practices because he knowingly participated in the plan of Manley and Kansas to avoid unionization of the employees at the Lawrence terminal and was aware of but did not disavow their other unlawful actions to that end. We find merit in Respondents' contention that there is insufficient support in the record for the Trial Examiner's finding that Brooks had knowledge of the unlawful purposes that motivated the actions of Manley and Kansas. The Trial Examiner stated that he "was convinced from all the facts" that Lawrence Manley and Harris, the representatives of Manley and Kansas,3 fully and frankly discussed with Brooks the entire problem of unionization and their proposals for dealing therewith. Although the Trial Examiner stated that he relied "upon a composite evaluation of the credited aspects of the testimony of Lawrence Manley and Brooks and the logical consistency of all the evidence," he did not, however, specify or set forth the basis for his conviction. Accordingly, as the record does not contain any evidence that Brooks was in fact informed by Manley and Kansas of their unlawful purpose in taking various steps to defeat the Union, we conclude, contrary to the Trial Examiner, that the General Counsel has not proved by a preponderance of the evidence that Brooks knowingly participated in and was aware of the various unfair labor practices of Manley and Kansas. We shall therefore dismiss the complaint insofar as it alleges that Brooks committed any unfair labor practices in the course of his dealings with Manley, Kansas, the employees, or the Union. Having found that Respondents Manley and Kansas unlawfully ceased operation of business at Lawrence, Kansas, terminated their employees, and transferred the operation thereof to Brooks, we shall order Manley and Kansas to restore the status quo ante by terminating their contract and lease no reason for disturbing those findings . Standard Dry Wall Products , Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). J Lawrence Manley managed Manley Transfer Company, a family-owned corporation , and together with his wife had a 90- percent interest in Kansas Delivery Service , while Harris had the remaining 10 percent. - 164 NLRB No. 21 MANLEY TRANSFER COMPANY agreement with Brooks, taking over the operation of the Lawrence, Kansas, business, offering reinstatement and backpay to Foster, Beerbower, Cobb, and Howard, and bargaining collectively with the Union.4 Finally, we find in agreement with the General Counsel that the policies of the Act will best be effectuated by his proposed Appendix which utilize simple and readily understandable language to inform the employees of their rights, how these rights were violated, and by what process they have been upheld.5 Accordingly, we shall adopt said notice except for two changes, namely, (1) insertion of a paragraph stating that Manley and Kansas will cancel their contracts with Brooks and take over from him the operation of the business at Lawrence, Kansas, and (2) deletion of Brooks as one of the Respondents found to have violated the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified below, and hereby orders that Respondents, Manley Transfer Company, Incorporated, and Kansas Delivery Service, Inc., their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in or activities on behalf of Local Union No. 41, International Brotherhood of Teamsters, or any other labor organization of their employees, by discharging or otherwise discriminating in regard to the hire or tenure of employment or any term or condition of employment of any of the employees employed by Manley Transfer Company, Incorporated, and Kansas Delivery Service, Inc. (b) Refusing to bargain collectively concerning rates of pay, wages, hours of employment, and other conditions of employment with Local Union No. 41, International Brotherhood of Teamsters, as the exclusive representative of the truckdrivers and laborers of Manley Transfer Company, Incorporated, and Kansas Delivery Service, Inc., at Lawrence, Kansas, excluding office and clerical workers, professional employees, guards, and supervisors as defined in the Act. (c) Interrogating employees of said Respondents concerning their or other employees' union affiliation or activities or protected concerted activities in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1) of the Act. (d) Threatening employees of said Respondents with discharge, the closing of the terminal, or other ' Town & Country Manufacturing Co., Inc., 136 NLRB 1022, 1028. s Macy's Missouri-Kansas Division, 162 NLRB 754. 6 In the event that this Order is enforced by a decree of a 175 reprisals because of their activity on behalf of Local Union No. 41, International Brotherhood of Teamsters. (e) Offering employees of said Respondents wage increases to induce them to cease activity on behalf of said Union. (f) Promising employees of said Respondents benefits to induce them to cease their activity in behalf of said Union. (g) In any other manner interfering with, restraining, or coercing employees of said Respondents in the exercise of their right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act, and to refrain from any and all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act: (a) Terminate said Respondents' contract and lease agreements with Raymond Brooks d/b/a Brooks Transfer and Storage, and take over the operation of the Lawrence, Kansas, business. (b) Offer to John Darrell Foster, Gerald L. Cobb, Melvin Beerbower, and Dean Howard immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them. (c) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Upon request, bargain collectively with said Union as the exclusive representative of all employees in the above-described appropriate bargaining unit concerning rates of pay, wages, hours of employment, and other conditions of employment, and embody such agreement reached in a signed contract. (e) Post at the premises at Lawrence, Kansas, copies of the attached notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 17, shall be posted by Respondents' representatives, after being duly signed by Respondents representative, immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken 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." 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 17, in writing, within 10 days from the receipt of this Decision, what steps have been taken to comply herewith. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges that Raymond Brooks d/b/a Brooks Transfer and Storage engaged in any unfair labor practices. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that: After a trial in which both sides had the opportunity to present their evidence, the National Labor Relations Board has found that we violated the law and has ordered us to post this notice and to keep the promises that we make in this notice. Therefore, WE WILL cancel our agreements with Raymond Brooks d/b/a Brooks Transfer and Storage and take over from him the operation of the business at Lawrence, Kansas. WE WILL NOT discharge or otherwise discriminate against you in order to discourage membership in or support for Local Union No. 41, International Brotherhood of Teamsters, or any other labor organization. Since it has been found that we did discriminate against John Darrell Foster, Gerald L. Cobb, Melvin Beerbower, and Dean Howard when we discharged them, WE WILL offer them their former jobs together with all the rights and privileges they enjoyed at the time we discharged them, and WE WILL pay them for any wages they may have lost as a result of our discrimination against them. Additionally, we will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to their former jobs after discharge from the Armed Forces. WE WILL, upon request, bargain collectively with Local Union No. 41, International Brotherhood of Teamsters, as the exclusive representative of our employees in the below- described appropriate bargaining unit concerning rates of pay, wages, hours of employment, and other conditions of employment, and embody any agreement reached in a signed contract. The appropriate bargaining unit is: All truckdrivers and laborers of the Manley Transfer Company, Incorporated, and Kansas Delivery Service at Lawrence, Kansas, excluding office clerical workers, professional employees, guards, and supervisors as defined in the Act. WE WILL NOT refuse to bargain collectively concerning rates of pay, wages, hours of employment, and other conditions of employment with Local Union No. 41, International Brotherhood of Teamsters, as the exclusive representative of our employees in the above-described appropriate bargaining unit. WE WILL NOT interrogate or question you concerning your or other employees' union affiliation or activities or protected concerted activities. WE WILL NOT threaten you with discharge, the closing of the terminal, or other reprisals because of your activity on behalf of Local Union No. 41, International Brotherhood of Teamsters. WE WILL NOT offer you wage increases to get you to stop supporting Local Union No. 41, International Bortherhood of Teamsters. WE WILL NOT promise you benefits to get you to stop supporting Local Union No. 41, International Brotherhood of Teamsters. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of your right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of your own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Section 7 of the Act. You are free to become or remain, or refrain from becoming or remaining, members of Local Union No. 41, International Brotherhood of Teamsters, or any other labor organization. MANLEY TRANSFER COMPANY, INCORPORATED (Employer) Dated By (Representative) (Title) KANSAS DELIVERY SERVICE, INC. (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 provisions , they may communicate directly with the Board's Regional Office, 610 Federal Building, 601 East 12th Street, Kansas City, Missouri 64106, Telephone FR 4-5282. MANLEY TRANSFER COMPANY 177 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JERRY B. STONE, Trial Examiner: Upon a charge and an amended charge filed (on March 31, 1966, and July 26, 1966, respectively) by Local Union No. 41, International Brotherhood of Teamsters (herein sometimes called the Union or Charging Party), the General Counsel of the National Labor Realtions Board, by the Regional Director of Region 17 (Kansas City, Missouri), issued his complaint dated July 29, 1966, against Manley Transfer Company, Incorporated, Kansas Delivery Service, Inc., and Raymond Brooks d/b/a Brooks Transfer and Storage (herein sometimes called Respondent Manley, Respondent Kansas, and Respondent Brooks respectively or jointly as Respondents). The aforesaid complaint alleged violations of Section 8(a)(1), (3), and (5) of the Act by the Respondents. Respondents' duly filed answer admitted some of the facts, denied other facts, and denied the commission of unfair labor practices. Pursuant to appropriate notice, a hearing in this matter was held on August 31, 1966, before me. All parties were represented at and participated in the hearing and were afforded the right to present evidence, to examine and cross-examine witnesses, to offer oral arguments, and to file briefs. Briefs were filed by the General Counsel and the Respondents and have been considered. The issues involved in this proceeding are whether the Respondents jointly or whether Respondent Kansas Delivery Service, Inc. (a) did or did not engage in illegal acts (of interrogation, threats of discharge, offer of wage increases, threats of closing a terminal, promise of benefits) in violation of Section 8(a)(1) of the Act, (b) did or did not discriminatorily terminate an operation by Kansas Delivery Service, Inc., and the employment of certain employees in violation of Section 8(a)(1), (3), and (5) of the Act, (c) did or did not terminate the employment of or refuse to recall or rehire an employee (Foster) in violation of Section 8(a)(1) and (3) of the Act, and (d) did or did not refuse to bargain with the Union in violation of Section 8(a)(5) of the Act. Upon the entire record in this case and from my observation of the witnesses, the following findings of fact, conclusions of law, and recommendations are made.' FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER(S) INVOLVED The facts pertaining to the business of the Employer(s) are based upon the pleadings, admissions thereto, stipulations of the parties, and statements of counsel narrowing the issues at the hearing. Manley Transfer Company, Incorporated, is now, and at all times material herein has been, a Kansas corporation, engaged as a common carrier operating in, but not limited to, the States of Kansas and Missouri. In the course and conduct of its business operations, ' All credibility resolutions made herein are based on a composite evalution of the demeanor of the witnesses, a logical consistency of all the facts, and the probabilities of the evidence as a whole. Without going into detail it may be said that witnesses Nabor, Foster, Kappelman, Beerbower, Cobbs, and Howard testified fully, frankly, and with forthright and truthful appearances. Neither Lawrence Manley, Harris, nor Brooks impressed me as reliable witnesses . In their testimony and appearance they presented facts in fragmented detail and with an Manley Transfer Company, Incorporated, during a 1-year representative period derives gross income in excess of $50,000 from the interstate transporation of commodities. Lawrence D. Manley is now, and at all times material herein has been, a stockholder and director of Manley Transfer Company, Incorporated, and the president and majority stockholder of Kansas Delivery Service, Inc. Kansas Delivery Service, Inc., is now, and at all times material herein has been, a Kansas corporation. Prior to March 26, 1966, it engaged in the trucking business at its Lawrence, Kansas, terminal. However, Kansas Delivery Service, Inc., has never held any authority from any authority of any State or Federal government regulatory authority to engage in the trucking business. Prior to March 26, 1966, Kansas Delivery acted as an agent for Manley Transfer Company, Incorporated, in the Lawrence, Kansas, area. In the course and conduct of its business operations, Kansas Delivery Service, Inc., during a 1-year representative period, derives gross income in excess of $50,000 from the interstate transportation of commodities. Raymond Brooks d/b/a Brooks Transfer and Storage is now, and at all times material herein has been, a sole proprietorship operating in the trucking business principally within the State of Kansas. Raymond Brooks d/b/a Brooks Transfer and Storage has never held any authority from any State or Federal government regulatory authority to engage in the trucking business. Since on or about March 26, 1966, Raymond Brooks d/b/a Brooks Transfer and Storage has acted as an agent for Manley Transfer Company, Incorporated, in the Lawrence, Kansas, area. In the course and conduct of its business operations, Raymond Brooks d/b/a Brooks Transfer and Storage, during a 1-year representative period, derives gross income in excess of $50,000 from the interstate transporation of commodities. Based upon the foregoing, and as conceded by the Respondents, it is concluded and found that the Respondents are, and at all times material herein have been, employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Based upon the pleadings and admissions therein, it is found and concluded that Local Union No. 41, International Brotherhood of Teamsters, is and at all times material herein has been, a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background Respondent Kansas an Instrumentality of Respondent Manley 2 Respondent Manley is a Kansas corporation operating a avoidance of specifics in general. Their testimony in general did not appear consistent with undisputed events. Testimony of Manley, Harris, and Brooks in many ways was inconsistent with each other's testimony and with events as ultimately revealed by their own testimony. The testimony of any witness inconsistent with the facts found hereinafter is discredited. 2 The facts are based upon a composite evaluation of stipulations by the parties and of the credited aspects of the testimony of Lawrence Manley and George Harris. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD trucking business (as a common carrier) in interstate commerce. Respondent Manley is a family owned corporation with ownership being equally divided between three brothers and one sister (Robert F. Manley, Ruth M. Caldwell, Lawrence D. Manley, and Charles E. Manley). The officers and principal agents of the corporation are as follows: President Robert F. Manley; Secretary and Treasurer Ruth M. Caldwell; Vice President and Director Charles E. Manley; and General Manager and Director Lawrence Manley. As part of its operations, Respondent Manley maintains terminals in towns serviced by Manley. In small towns, Respondent Manley, as a matter of policy, tries to have agents rather than company-owned stations.3 Pursuant to such policy Respondent Manley has contracts with some eight or nine agents. The contracts between Respondent Manley and the agents, as described by L. D. Manley, are standard contracts with only minor variations as to the percentage of commission. The contract between Respondent Kansas Delivery and Respondent Manley dated April 22, 1964, is herein set out:4 This agreement , made and entered into this 22 day of April 1964, by and between THE MANLEY TRANSFER COMPANY, INC., CHANUTE KANSAS, and or its successors and assigns , partly of the first part , hereinafter called "Company," and Kansas Delivery Service Inc. of .... Street , City of Lawrence , State of Kansas, party of the second part, hereinafter called "Agent." WITNESSETH: Whereas: That for and in consideration of the facilities to be furnished and the service to be rendered by Agent, and the compensation paid therefor by Company,, as hereinafter set forth, the parties hereto convenant and agrees as follows: AGENT AGREES: 1. To Perfom pickup and delivery service, where legally authorized at the station of Lawrence, Ks. for all freight shipments which can be handled by the Company at lawfully published tariff rates and to furnish to the public any information contained in freight tarrifs and circulars (such information to be secured from station files or from Freight Traffic Department of the Company), insofar as the same is applicable to the transportation of the freight. 2. To furnish, at above address for the transaction of Company business and the accommodation of its patrons, suitable and adequate dock space for the proper handling of freight shipments and to maintain said dock, approaches, and premises attached thereto in a clean and safe condition at all times, and to reimburse and hold harmless Company from any and all expenses incurred and/or claims arising directly or 3 The evidence is not clear as to whether in some of the small towns the terminals are company owned. In those places where Respondent Manley has such agents the agents receive a commission from revenues collected. 4 The contract between Respondent Manley and Respondent Brooks, dated April 18, 1958, and relating to the Ottawa, Kansas', station is substantially similar to the contract between Respondent Kansas and Respondent Manley dated April 22, 1964. Respondent Brooks' April 18, 1958, contract differed in that as to paragraph 8-reports of company business had to be rendered on indirectly from or on account of any neglect or failure to so maintain the said dock, approaches or appurtenant premises. 3. Agent covenants and agrees to protect, indemnify and hold harmless Company from and against any and all loss, damage, cost and expense, including attorneys' fee, that may be suffered or incurred by Company, or by any person or persons, firm, association, or corporation resulting from: (a) Injury to or death of persons, loss or destruction of, or damage or delay to property, including the conversation thereof, caused by, or resulting in any manner from any acts or omissions negligent or otherwise, of Agent, or any of the employees in performing, or failing to perform any of the services or duties on the part of Agent to be performed hereunder. (b) The issuance of any false or fraudulent bills of lading for freight charges by Agent or any of the Agents' employees. (c) Theft, embezzlement or defalcation on the part of Agent, or any of the Agent employees. 4. To be liable for and protect at all times any and all money and/or property of the Company in the care or under the supervision of the Agent; and to indemnify and save the Company harmless from any loss of or damage to such money and/or property, however occurring and whether or not such loss be due to the fault of or within the control of the Agent. The title to all freight and proceeds thereof shall be at all times in the Company, it being the intention of this agreement that the agent shall at all times be in the position of trustee of said freight and the proceeds thereof for the Company. 5. In the performance of the Work hereunder, Agent shall comply with all applicable federal and state enactments with reference to Employer's Liability, Workmen's Compensation and Workman's Insurance (and when requested by Company shall furnish proof of such compliance) and shall indemnify and hold harmless Company from and against any and all loss, liability, damages, claims, demands, costs and expenses of whatsoever nature due to the existance of such enactments or resulting from any claim of subrogation provided in such enactments or otherwise. 6. Agent shall also comply strictly at all times with all other laws, rules, regulations and ordinances, state, federal or municipal, applicable to operations and service to be performed by Agent hereunder, and Agent expressly, agrees to indemnify Company and save it harmless from all liability for any failure or default on the part of Agent or in his behalf. a weekly basis instead of a daily basis and as to paragraph 15-Respondent Brooks' commission was at the rate of 50 percent. It is noted also that the contract between Respondent Brooks and Respondent Manley, dated March 22, 1966, and relating to the Lawrence, Kansas, station, was similar to Respondent Kansas and Respondent Manley's contract of" April 22, 1964, excepting Respondent Brooks' rate of commission (paragraph 15) was set at 30 percent of Manley's net revenue per bill that agent handles. MANLEY TRANSFER COMPANY 7. Agent agrees to procure and keep in full force and effect during the life of this agreement, and to assume the expense of adequate insurance covering the operations provided for in this agreement, including Cargo, Public Liability and Property Damage and Workmen's Compensation Insurance, and to furnish to Company copies of policies or certificates of such insurance coverage. Such policies or certificates shall be issued by companies and on forms and for Amounts approved by Company. 8. To render reports of Company business on the Daily days of each month; and also to remit to Company or deposit to account of Company at such times, or as may hereafter be prescribed by the Treasurer of Company, all moneys belonging to Company or collected for the account of the Company. 9. To permit authorized representatives of Company, during business hours, to inspect and check all property of Company, and inspect and audit all records and accounts pertaining to the business of Company kept or supervised by Agent, and to permit such authorized representatives, at their discretion, to collect all moneys belonging to the Company in the possession of the Agent. 10. To render reports of Over, Short, and Damages within twenty-four hours after they occur to 0 S & D Clerk. 11. To place and maintain suitable sign or signs dsignating aforesaid premises as the Freight station of the Company. 12. That the title to all station equipment, signs, et cetera, furnished to the Agent shall be in the Company at all times and Agent will return said property or pay for its value upon the termination of this agreement. Upon the termination of this agreement the Agent will permit a representative of the Company to remove all signs, decalcomanlas and any and all other evidence which might lead the public to believe that Agent is still the Agent for the Company. 13. Immediately upon the termination of this agreement, to remove from the telephone directory, or any other advertising media, any item listing or reference indicating that Agent is acting in any capacity for the Company. 14. Agent specifically authorizes Company to deduct from any money that may be due Agent hereunder any sums representing an expense incurred by the Company by reason of loss or damage to freight shipments due to negligence on part of Agent or its employees. 15. To Pay Agent commission at the rate of: 40% of Manley Transfer Co. Inc. Net Revenue per bill that agent handles. Agent will furnish all power equipment and office equipment , handling equipment and dock. for pickup and delivery and other work incidental to the proper handling of records and maintenance of the station. 179 16. To permit Agent to deduct commission to which he is entitled under paragraph fifteen from Company funds in his possession when making remittances as provided in paragraph eight. IT IS MUTUALLY AGREED: 17. That payment as aforesaid shall constitute full and complete compensation to Agent for all facilities furnished and services rendered by Agent. 18. Agent shall employ and direct all persons performing any service hereunder and such persons shall be and remain the sole employee of and subject to the control and direction of Agent and not the employees or subject to the direction and control of Company, it being the intention of the parties hereto that Agent shall be and remain an independent Contractor and that nothing herein contained shall be construed as inconsistent with that status. 19. This agreement shall take effect on the date first herein written and shall continue in full force and effect until terminated by written notice given by either party hereto to the other party, on any date in such notice stated, not less however, than fifteen (15) days subsequent to the date on which such notice shall be given. However Carrier may terminate the agreement at any time immediately upon written notice to Contractor in the event Contractor fails to comply with any of the terms of this agreement. 20. The waiver of a breach of any of the terms or conditions hereof shall be limited to the act or acts constituting such breach and shall never be construed as being a continuing or permanent waiver of such terms or conditions, all of which shall be and remain in full force and effect as to future acts or happenings, not with-standing any such waiver. THIS AGREEMENT cancels any and all previous contracts and agreements pertaining to the subject of commission agency between Agent and Company and/or its predecessors in interest except as to unfulfilled obligations heretofore incurred, and this agreement constitutes the entire contract between the parties, and any additional or subsequent agreement shall be in writing and signed by both parties hereto. IN WITNESS WHEREOF the parties hereto have caused this agreement to be executed the day and year first hereinabove written. Kansas Del. Serv. /s/ George Harris AGENT /s/ Ed J. Copenhaven WITNESS TO AGENT'S SIGNATURE MANLEY TRANSFER COMPANY, INC. (COMPANY) /s/ Robert F. Manley PRESIDENT /s/ Ruth M. Caldwell WITNESS TO PRESIDENT SIGNATURE 298-668 0-69-13 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD From 1959 to 1964 George Harris operated a business known as George Harris Delivery Service in Lawrence, Kansas. During this period of time, pursuant to the standard type of contract utilized by Respondent Manley with its agents, the George Harris Delivery Service operated a terminal for Respondent Manley at Lawrence, Kansas. The George Harris Delivery Service handled some contract work for other customers also during this time. In early 1964 George Harris found himself in financial difficulties and approached Lawrence D. Manley with his problem. Harris told Lawrence D. Manley that he could not come up with the money he needed and that he did not know what to do. Lawrence D. Manley credibly testified to the effect that since Respondent Manley had always taken the position that it would prefer to have agents rather than company- owned stations in small towns that he told Harris that he would like for Harris to continue on. Lawrence D. Manley and Harris discussed arrangements whereby there would be a continuation of the enterprise. As a result of their discussions and agreements a corporation was formed called Kansas Delivery Service, Inc., and Lawrence D. Manley signed certain notes and advanced certain moneys. The owners of the new corpo ration were Lawrence D. Manley, Manley's wife, and _Harris. Harris owned 10 percent interest in the corporation, Lawrence D. Manley owned 80 percent, and Manley's wife owned 10 percent interest. Harris was the operating manager of the new corporation-Kansas Delivery Service, Inc. Respondent Kansas and Respondent Manley on April 22, 1964, entered into a contract (set forth previously herein) and continued to operate as had George Harris Delivery Service, employing the same persons, at the same location, using substantially the same equipment, with the same supervision, and within the meaning of the Board successorship law being the same employing enterprise.5 Essentially the operations of the terminal by Respondent Kansas at Lawrence, Kansas, was in accordance with the terms of its contract with Respondent Manley (dated April 22, 1964). The facts reveal that Lawrence Manley in major effect left the supervision and day-to-day operations of Respondent Kansas in Harris' hands. Harris credibly testified that if he needed to that he did consult with Lawrence Manley as to decisions. Employees of Respondent Kansas were paid with checks drawn on Respondent Kansas' checking account. Respondent Kansas made the necessary income tax and social security deductions from employee wages. The facts reveal that Lawrence Manley left the problems, excepting the case of Foster on March 10, 1966, as to hiring and firing in Harris' hands. The facts reveal that Harris set the wages for Respondent Kansas' employees. It is noted however that the limits within which he could do so would be governed by his knowledge of income from the commission set for Respondent Kansas by his contract with Respondent Manley. The facts also reveal that when Respondent Kansas succeeded the George Harris Delivery Service as on enterprise , that Harris told the employees that they had a new boss-Larry Manley. The facts reveal that Respondent Harris regularly used "Manley" freight bills for all work but on occasion utilized plain statements. s See Witham Buick, Inc., 139 NLRB 1209; Chemrock Corporation, 151 NLRB 1074, and cases cited therein. 6 Apparently this was because Respondent Kansas had to use Respondent Manley's ICC permit for over-the-road work. As I have indicated, the facts reveal that the parties operated in accordance with their contract. Such specific facts of Beerbower credibly testified to the effect that Harris had instructed him in filling out his log book to write in the name of carrier as "Manley Transfer. `6 Respondent Kansas had title to its trucks but also had to have a nonnegotiable title in Respondent Manley's name to comply with ICC requirements. Respondent Kansas' wage checks were transmitted (in mail pouches picked up at Respondent Manley's terminal) to the terminal at Lawrence, Kansas. Lawrence Manley did the bookkeeping for and the making of various governmental reports for Respondent Kansas from his home. The facts do not reveal that there has ever been any transfer of employees between Respondent Manley and Kansas.' The facts are overwhelming that the substantial bulk of Respondent Kansas' business was done for Respondent Manley and in connection with the hauling of "Hallmark" cards. The facts are also overwhelming that the public and the employees of Respondent Kansas knew that Respondent Kansas' principal business and existence was as an agent enterprise of Respondent Manley. Thus (1) the signs at the Lawrence, Kansas, terminal of Respondent Kansas identified the terminal as a Manley terminal and not as a Kansas Delivery Service, Inc., terminal; (2) employees of Respondent Kansas were instructed to answer the telephone by saying "Manley Transfer Company;" (3) Respondent Kansas' trucks were painted with colors identified as Manley Transfer Company colors and had Manley's name on them; (4) Respondent Kansas' trucks pulled Manley trailers; (5) Respondent Kansas used Manley's ICC permits and kept log books under the name of Manley, and (6) Respondent Manley paid the cost of cargo insurance for Respondent Kansas. It is also highly significant that the bulk of the work performed by Respondent Kansas required transportation under authority of the ICC and that Respondent Kansas had no such authority but by virtue of delegation of Respondent Manley's ICC permit was able to perform such transportation. It is also significant that the contract between Respondent Kansas and Respondent Manley provided, inter alia, that either party could terminate the contract within 15 days of appropriate notice of intention to do so. Respondents Kansas and Manley were thus operating in February and March 1966 when the union engaged in organizational efforts at the Lawrence terminal. As indicated in the facts found hereinafter Respondents Manley, Kansas, and Brooks engaged in a conspiracy to destroy the unionization of employees at the Lawrence terminal (operated by Kansas for Respondent Manley). The facts hereinafter found also reveal (1) that on March 10, 1966, Lawrence Manley told Kappelman of the Union that he would close the Lawrence terminal before he would recognize the union; (2) that on March 15, 1966, Lawrence Manley, although professing that he had nothing to do with Respondent Kansas' operation, did question Nabors as to whether an exception to the standard contract could not be made such as Respondent Manley had elsewhere with the Union; (3) that the events of March 22, 1966, wherein Respondent Manley signed a contract with Respondent Brooks to be effective on March 26, 1966, prior to canceling (with 15 days' notice as operations as to who made what reports, etc., are revealed by the contract set out in detail previously. I do not find that the conclusionary statement of intention of the parties as to an independent contractor relationship 4o be supported by the record as a whole. MANLEY TRANSFER COMPANY 181 required by contract) or receiving request for cancellation of its current contract with Respondent Kansas, clearly reveal that Respondent Manley and Respondent Kansas considered Respondent Manley to be the superior employer and not an "arms-length" business associate; and (4) that Brooks' credited testimony reveals that his negotiations as to lease of equipment from Respondent Kansas was done with Respondent Manley's agent. Considering the foregoing and all the facts in this case, including those set out hereinafter, the evidence reveals that Respondent Manley's control of Respondent Kansas was and is such as to constitute Respondent Kansas a subordinate instrumentality of Respondent Manley. Thus the facts reveal that in real effect Respondent Kansas' supervision constituted a part of Respondent Manley's supervision and the employees of Respondent Kansas were and are employees of Respondent Manley.8 B. Commencement of Union Activity9 In early February 1966, John Darrell Foster, an employee of Respondent Kansas, contacted Lawrence Kappelman, vice president of Local 41 (the Union). Foster asked Kappelman for information about getting a union. Kappelman told Foster that he would send him some union cards to get signed and to send them back in. Foster received some union cards on February 13, 1966, and by February 16, 1966, had secured the signatures of employees (of Respondent Kansas) Howard, Cobb, and Beerbower. Foster also signed a union card on February 16, 1966. The card that was signed by Foster is typical of the cards signed by Beerbower, Cobb, and Howard and is herewith set out: AUTHORIZATION FOR REPRESENTATION 1, the undersigned , employee Kansas Deliv-Manley Transfer 315 North Third Lawrence, Kansas Address City State Employed as Truck Driver-Labor Home Address 739 Lake St. /s/ John Darrell Foster At Rate Per flour $ 2.00 Tel No. UI-3-5948 hereby authorize the Local Union No. 41 International Brotherhood of Teamster- to represent me and, in my behalf, to negotiate and conclude all agreements as 9 Allen Milk Company, 158 NLRB 285, Chemrock Corporation, 151 NLRB 1074. 'The facts are based upon a composite of the credited testimony of Foster, Beerbower, Cobb, Howard, Nabors, and Kappelman. 10 The facts are based upon the credited testimony of Foster and Nabors and a fair inference from all of the evidence. 11 The facts are based upon a composite evaluation of Kappelman's credited testimony, a fair inference from all of the evidence, and a logical consistency of all the evidence Lawrence Manley in his testimony in effect denied the incident as testified to by Kappelman and referred to a diary as reflecting that he was out of town on March 10, 1966 Manley's testimony revealed that his diary did not refresh his mind but merely that he relied on the accuracy of his diary I am convinced from the overall evidence that he did return to the Manley Transfer Company site in Kansas City sometime between 2.45 and 4 p in , on March 10, 1966, and that this was when Kappelman saw Lawrence Manley and the incident set out occurred I am convinced that Foster was a most truthful and forthright witness and that he related what Harris said to him about a call from "Larry." Lawrence Manley impressed to hours of labor, wages and other employment conditions. The full power and authority to act for the undersigned as described herein supersedes any power of authority heretofore given to any person or organization to represent me. Date _2-16-66 /s/ John Darrell Foster Dean Howard /s/ John Darrell Foster Witness PLEASE PRINT NAME Foster thereupon sent the signed union card to Local 41. C. Events of March 10, 1966 Foster Telephones Kappelman 10 Several weeks later on March 10, 1966, around 2:45 p.m., Foster called the union hall (Local 41) and spoke to Local 41's Vice President Kappelman. Foster told Kappelman that the employees were "more or less getting tired of waiting" and wanted to know what the union was going to do if anything. Kappelman told Foster that he would check into the matter. Kappelman, apparently, forthwith caused the union cards (Beerbower, Howard, Cobb, and Foster's) to be referred to D. L. Nabors (general organizer with the Teamsters, Joint Council 56) for appropriate handling concerning representation rights. D. Events of March 10, 1966 Kappelman's Talk with Manley 11 On March 10, 1966, between 2:45 and 4 p.m., Local 41's Vice President Kappelman had just parked his car at the Manley Transport Company's location when Lawrence Manley drove up. Kappelman and Manley engaged in a conversation at this point. Kappelman told Manley that there were men at the Lawrence, Kansas, location who desired union representation and that Manley should get ready to sign a Teamsters contract. Lawrence Manley told Kappelman that before this transpired that he would close the operation. E. Events of March 10, 1966 Foster's Discharge 12 Around 4:45 p.m. Foster was unloading mail at the post me as a witness who was reluctant to testify . I discredit his denial that the Kappelman conversation occurred and I find his testimony unreliable to establish that he was not in Kansas City on March 10, 1966 I also discredit his testimony that he first learned of union activity on March 14, 1966, from a conversation with Harris 12 The facts are based upon the credited testimony of Foster. Foster was a forthright , frank, and truthful appearing witness I discredit Hams' testimony to the effect that at the post office Foster was belligerent and told him he was not going to do the work assigned, and that only after Foster was discharged did the question or knowledge of union arise. I discredit Harris' testimony to the effect that he discharged Foster because of his failure to do what he was told to do and because of complaints Harris' testimony as a whole did not appear to be frank or forthright. Harris' testimony as a whole convinces me that his testimony was contrived and presented to support pretextuous reasons for his actions. Harris seemed to become confused in his attempt to present his contrived testimony . I discredit Harris' version of the discharge incident 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office. Respondent Kansas' Manager George Harris came to where Foster was and spoke to him. Harris told Foster that he had to talk to him, that he did not care whether this went farther than between them . Harris told Foster that Larry had just called him from Kansas City and said that four of the employees had signed union cards and he wanted instigators fired. Harris asked Foster if he had had anything to do with it. Foster told Harris that he had. Harris told Foster that he had to fire him. Foster told Harris that he could not fire him over the Union. Harris told Foster that he was fired and that-anyway he had had complaints about Foster from Hallmark cards13 and could fire him for that. Conclusion Considering the foregoing I conclude and find that Respondents Manley and Kansas by the conduct of Manager Harris of March 10, 1966 , (1) interrogated employee Foster about his union activities in a manner constituting interference , restraint, and coercion within the meaning of Section 8(a)(1) of the Act and (2) threatened employees with discharge if they did not abandon their union efforts. Such conduct of Respondents Manley and Kansas is conduct violative of Section 8(a)(1) of the Act. The General Counsel alleges and contends that the March 10, 1966 , discharge was violative of Section 8(a)(3) of the Act. The Respondent contends that Foster was discharged for cause. Considering all of the foregoing and the facts set out hereinafter, I am convinced that the facts reveal that Foster was discharged because of his union activity. Basically the issue is one of credibility and I found Foster a much more credible witness than I found Harris. I am convinced that Harris did not tell Foster that he was being discharged for failure to do what he was told. I am also convinced from the overall evidence that Harris tried to justify the discharge to the employees on the ground of complaint from Hallmark and that he has added as an afterthought a contention that Foster failed to do what he was told . I am also convinced that Harris is not credible as a witness as regards his contention of complaints , of Foster's failure to do his work as ordered, or as to the reason for discharge . I thus conclude and find that Respondents ' Manley and Kansas discharged Foster on March 10, 1966, in violation of Section 8(a)(3) and (1) of the Act.14 F. Harris' Talk with Employees March 10,1966-6 p.m. 15 On March 10, 1966, at 6 p.m. George Harris told employees Beerbower, Cobb, and Howard that he wanted to talk to them . Harris told the employees that he had had 13 Foster's work for Respondent Kansas involved transportation of Hallmark cards. " Although as indicated the facts reveal that Respondent Manley is the superior employer and Respondent Kansas is Respondent Manley's agent instrumentality , it should be noted that responsibility would also be at Respondent Manley's doorsteps under the rationale of Austin Company, 101 NLRB 1257, and West Texas Utilities Company, 108 NLRB 407 15 The facts are based upon a composite of the credited aspects of the testimony of Hams, Howard, Beerbower, and Cobb. Harris in his testimony indicated that he did not agree to a raise I found the testimony of Howard , Beerbower, and Cobb more persuasive on this point I especially found Howard to be a persuasive and truthful appearing witness I credit the testimony of Howard, Beerbower, and Cobb to the effect that Harris told them that they to terminate Foster. Harris told the employees he was disappointed that they had gone behind his back to the Union. Harris asked the employees why they had not come to him. Howard told Harris that if they had that they would have lost their jobs and nothing would have been done. Harris told the employees that they had to get this settled, that there was not going to be a union , and that he would not run as a union shop . Harris told the employees that if they did not stop trying to get a union that they might as well look for another job. Harris asked the employees what they were griping about. The employees told Harris that they would like to be paid for the hours worked and that they would like raises. Harris told the employees that he had just given them raises within the past several months. Harris told the employees to tell him what the score was, that they should tell him what they were thinking about, and that he would see what he could do. The employees thereupon told Harris the specifics of their wage raise desires. Harris told the employees that he would tell the secretary about the raises. Howard asked Harris if he had fired Foster because of the Union. Harris told Howard that he had not fired Foster because of the Union but because of complaints from Hallmark. Howard told Harris that if Harris had fired Foster over the union deal that he (Howard) would quit. Harris replied that if the employees did not like their jobs, that if they were not satisfied, that they should just find another job. Conclusion Considering the foregoing, I conclude and find that Respondents Manley and Kansas by the conduct of Manager Harris on March 10 , 1966, (1) interrogated employees about their union activities in a manner constituting interference , restraint , and coercion within the meaning of Section 8(a)(1) of the Act, (2) threatened employees with discharge if they did not abandon their union activities , and (3) offered employees a wage increase if they would forget about the union. Such conduct of Respondents Manley and Kansas is conduct violative of Section 8(a)(1) of the Act. G. Events of March 10, 1966 Foster telephones the union hall about his discharge 16 On March 10, 1966 , Foster called Local 41 's union hall to relate the incident of his discharge . Apparently Foster was told by some one at the Union's office" that D. L. Nabors, general organizer with the Teamsters, Joint Council 56, would handle the matter. Apparently Foster was also told that Nabors was out at the time but that he (Foster) should call back later. would get a raise I discredit Harris ' testimony to the effect that he only told them he would think about a raise Harris also testified to the effect that he told the employees that Foster was fired because he would not do what he was told. Howard, who was a forthright and truthful appearing witness, testified that Harris told them that he fired Foster because of complaints from Hallmark. I credit Howard 's testimony to this point and discredit Harris' version . Harris was not as truthful or forthright appearing a witness as were the employees regarding these incidents. Is The facts are based upon a composite evaluation of the credited testimony of Foster and Nabors and a fair inference from all the evidence IT There is no evidence to reveal exactly who Foster talked to on this occasion MANLEY TRANSFER COMPANY 183 The matter of Foster's telephone call concerning his discharge was referred by Local4l to D. L. Nabors for appropriate handling. H. Events of March 11, 1966 Nabors appraised of events 18 D. L. Nabors became aware of the aforesaid union cards and of Foster's telephone call (re discharge) on March 11, 1966. Nabors told his secretary that when Foster called back to inform him to come to Nabors' office on Monday, March 14,1966. 1. Events of March 11, 1966 Harris reports to Manley is On March 11, 1966, Harris reported to Lawrence Manley that he had fired Foster and about his conversation with the other employees. J. Events of March 14,1966 Foster talks to Nabors; Nabors talks to Manley; Quinn talks to Nabors 20 On March 14 , 1966, Foster went to Nabors ' office and the two discussed the facts concerning Foster's discharge on March 10, 1966. Nabors, thereafter, telephoned Lawrence Manley at Manley's Transfer Company, Nabors told Lawrence Manley that the Union represented a majority of the employees at the Lawrence station. Nabors told Manley that Foster had been discharged and that the Union wanted Foster returned to work with no loss of time (pay). Nabors told Manley that the Union would then proceed through the Board (NLRB) with a representation election. Lawrence Manley told Nabors that he would talk to Harris and then call Nabors back. What transpired next is best revealed by the following excerpts of the credited testimony of Nabors. Q. Did he call you back? A. He had Mr. Quinn call me. Q. Mr. Quinn , are you referring to one of the counsel for respondent? A. Yes, this Mr. Quinn , one of these gentlemen (indicating). Q. When did Mr. Quinn call you? A. The same day, it was later in the day, after I talked to Manley. 19 The facts are based upon Nabors' credited testimony. 10 The facts are based upon a fair inference from all of the evidence Lawrence Manley and George Harris testified to the effect that Manley first learned of the labor problems on or around March 14, 1966 I found Manley and Harris' testimony to the events following March 10 , 1966, to appear contrived and I do not credit or believe it as to this factfinding or as to later events as indicated I am convinced that under the circumstances of this case, Harris would have immediately been in contact with Lawrence Manley to report what had happened 20 The facts are based upon a composite of the credited aspects of the testimony of Foster, Nabors, and Lawrence Manley. Lawrence Manley's testimony as to his talks with Nabors was generalized and not specific as to times or details Manley testified to the effect however that he always told Nabors that he had nothing to do with Respondent Kansas' operations and that Nabors would have to negotiate with Harris Considering the more completeness of Nabors' testimony , the logical consistency of the evidence, the limited nature, and the general appearance of Q. What was said on this occasion by you and Mr. Quinn? A. Mr. Quinn, of course, he told me this was separate from Manley Transfer and Larry Manley didn't have anything to do with it. He was just in the middle, so to speak, and I told him that all the equipment, that this had come from the boys, I didn't know this first-hand, but from the information I had received, that the only way that you would know this is Kansas Delivery Service would be if you looked at one of their paychecks and it had Kansas Delivery Service signed by Larry Manley. The dock had Manley Transfer on it. * A. I told him they were hauling Manley freight, they had the colors of Manley, which is yellow and black letters, Manley wrote on the side, the telephone number in the book was Manley Transfer, you call up on the phone, they answered the phone as Manley Transfer, and I told him I represented these people and if I didn't get someting, Mr. Foster was put back to work, I was contemplating striking the job. And through this conversation or conversation a little later, Mr. Quinn asked me if I would wait until Mr. Dannevik got back in town. He was out of the city. K. Nabors' Talks With Manley and His Attorneys and With Harris 21 During the period of time between March 14, 1966, and March 26, 1966, Lawrence Manley and his attorneys had a number of conversations with Nabors about the problems of recognition, about contract terms, and about reinstatement of Foster. Nabors during this time had several conversations with Harris about the same matters. L. Events of March 15, 1966, Lawrence Manley-Nabors Conversation22 On the morning of March 15, 1966, Lawrence Manley telephoned Union Organizer Nabors and suggested a meeting. A short time later Nabors and Lawrence Manley on the morning of March 15, 1966, met at Local 41's offices. At this meeting Nabors continued to press his demands for recognition, that Manley Transfer Company was the employer of the (Kansas Delivery Service, Inc.) Lawrence employees, and that Foster should be reinstated. Nabors pointed out the various reasons that he contended the Manley Transfer Company was the said employer. Lawrence Manley insisted that he was "in the contrivance of Manley's testimony , I found Nabors' version more credible and discredit Manley's testimony as inconsistent with the facts found., 2i The facts are based upon a composite of the credited aspects of the testimony of Nabors , Manley, and Harris. 22 The facts are based upon a composite of the credited testimony of Lawrence Manley and Nabors The testimony and evidence reveal that there were a number of conversations between Nabors and Manley and between Nabors and Harris Considering all the testimony and evidence , I am convinced that Nabors confused the dates when he testified that the events set forth herein occurred on March 22, 1966 I believe his testimony to be reliable-that it occurred Tuesday in the a in I believe Lawrence Manley's testimony to the effect that his conversations with Nabors occurred during the week of March 14, 1966. Considering the events that I have found that occurred on March 14, 1966, and the probabilities of expected follow through and the foregoing, I am convinced that the events set out herein occurred on March 15, 1966, and so fix the date. 184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD middle" and had nothing to do with Kansas Delivery Service, and that negotiations would have to be with George Harris. Nabors and Manley discussed possible contract terms. Lawrence Manley talked to Nabor about lesser rates than the "standard" teamster contract called for. Lawrence Manley referred to a Manley Transfer Company union contract that deviated from the standard rates. Nabors told Manley that he could not agree to a deviation without talking to Roy Williams (Nabors' immediate superior) as to certain deviations but told Manley that he would agree to try to work out something concerning road delivery rates. M. Manley's Talk with Harris March 15, 1966 23 During the afternoon of March 15, 1966, Lawrence Manley drove to Lawrence, Kansas, and discussed with Manager George Harris the questions relating to the Union's demand for recognition, the demand that Foster be reinstated, and the threat of strike action that Nabors had previously made in the conversation Nabors had with Attorney Quinn. N. Events of March 16,1966 Harris' conversation with Foster 24 On March 16, 1966, Manager Harris telephoned Foster's home and left word that he had Foster's coats at the terminal and that Foster could come and get them. When Foster returned home that day, he received the foregoing message and went to the Manley Transfer Company Terminal at Lawrence, Kansas. What transpired at the time that Foster went to the terminal is revealed by the following excerpts from Foster's credited testimony. Q. What was said on this occasion by Mr. Harris and by you if anything? A. Well, I just walked in and got my coats, and I was walking out, and he asked me, "Foster, are you going to keep pushing the union?" I said, "I went out after it and I am going to get it." Well, he said, "I will tell you one thing, before I have a union, I will lock the doors." I went on outside and then he said if I wanted a job in Kansas City, "just tell me where" and he'd get it for me, and I told him I wanted the union, I still wanted the union, and I told him I would think about it. I got in the car and left. THE WITNESS: He said if it's a job in Kansas City you want, you just tell me where and I will get it for you. * * * * * THE WITNESS: He said that before he had a union shop he'd lock the doors. * * * * * THE WITNESS: Just like I stated, about him asking if I was going to keep pushing the union. I said yes, I went out after it and I was going to get it. Then he said that about the union shop, before we get a union shop he was going to lock the doors. Then I went outside and he said, "If it's a job in Kansas City you want, tell me where and I'll get it." Conclusion Considering the foregoing , I conclude and find that Respondent Manley and Kansas by the conduct of Manager Harris on March 16 , 1966, (1) threatened an employee25 that Respondents would close the terminal in order to prevent unionization and (2) promised an employee benefits (a job in Kansas City) if he would forget about the Union . Such conduct of Respondents Many and Kansas is conduct violative of Section 8(a)(1) of the Act. 0. Events of March 17,1966 Lawrence Manley contacts Brooks 26 In the past Raymond Brooks (d/b/a Brooks Transfer and Storage Company) had talked to Lawrence Manley about the possibility of Brooks' handling Manley's Ottawa and Lawrence, Kansas, commission agent positions. On March 17, 1966, Lawrence Manley went to Ottawa, Kansas, and spoke to Raymond Brooks about the possibility of Brooks taking over the Manley Transfer Company Terminal in Lawrence, Kansas, and operating it in conjunction with Brooks' Ottawa business. Lawrence Manley told Brooks of the problems that he and Harris 23 The facts are based upon a composite of the credited testimony of Manley and a fair inference from all of the evidence 24 The facts are based upon a composite evaluation of Foster's credited testimony and the logical consistency of all of the evidence. Foster testified to the effect that this event occurred on March 16 or 17, 1966. Considering all of the evidence and the probabilities thereof, I am convinced that Lawrence Manley and Hams would have been concerned over the threatened strike action and the March 15 meeting between Nabors and Lawrence Manley I am thus convinced that Harris ' contact with Foster would have occurred at the earliest reasonable moment so as to stop union support Therefore I am convinced that this event occurred on March 16, 1966, and so fix the date Such precise fitting of dates is not absolutely necessary and a finding that this event occurred on March 17, 1966, would not affect the ultimate results The logical consistency of all the evidence and the probabilities thereof reveal that the following events occurred in chronological order--(1) Harris spoke to Foster concerning his uniforms and another job, (2) Lawrence Manley contacted Brooks as to the possible taking over ol the operation, (3) Brooks and Hams got together as to the job problems, (4) Nabors and Foster saw Harris, and (5) Nabors had another telephone call with Lawrence Manley. The evidence reveals that all of these events occurred during the same week. 2s Foster, the employee threatened, having been discriminatonly discharged (in' violation of Section 8(a)(3) of the Act) clearly was an employee within the meaning of Section 8(a)(1) of the Act on March 16, 1966 2s The facts are based upon a composite evaluation of the credited aspects of the testimony of Lawrence Manley and Brooks and the logical consistency of all of the evidence. Brooks testified that Manley contacted him on March 16 or 17, 1966 I am convinced that Manley contacted Brooks 'after learning that Harris had been unsuccessful in talking Foster out of future union activity. As indicated previously, the exact chronology of events is not really in question As indicated previously, a precise date finding herein is not essential so long as the other date findings would be in chronological order Since I am convinced that these events all occurred during the same week , I am persuaded that this event occurred on March 17, 1966, and so find the events as occurring on that date . Both Lawrence Manley and Raymond Brooks impressed me as witnesses who were reluctant to testify to the full and complete details of events. Considering their demeanor and the logical consistency of all the evidence, I do not believe their testimony to the effect that Manley merely inquired as to the possibility of Brooks' handling the Lawrence operation. On the contrary I am convinced that they fully and frankly discussed the facts as set forth in the fact found herein. MANLEY TRANSFER COMPANY 185 were having with the Union, that the Union was demanding recognition, that the Union was demanding that Foster be reinstated, that the Union was threatening strike action, and that he did not intend to operate the Lawrence terminal under contract with the Union. P. Events of March 17 or 18, 1966 Brooks visits Lawrence, Kansas 27 Later on, either on March 17, 1966, or March 18, 1966, Raymond Brooks went to Lawrence, Kansas, and saw George Harris. Brooks and Harris discussed the business operations, the problems of the operations, the union problem and Harris' actions thereto, the status of Foster, and the employment of Harris by Brooks. Brooks and Harris went out to the Hallmark plant to survey that part of the Lawrence operation. Brooks and Harris also checked into the possibility of a new terminal site capable of handling Brooks' equipment. Q. Events of March 17 or 18, 1966 Nabors and Foster see Harris 28 Around the end of the day on March 17 or 18, 1966,29 Nabors and Foster went to the Manley Transfer Company terminal at Lawrence, Kansas. What transpired at this time is revealed by the following excerpts from Nabors' credited testimony. Q. What was said by you and what was said by Mr. Harris on this occasion, if anything, sir? A. Well, of course, this was a long time ago and I don't remember all of the conversation verbatim, but the crux of the conversation, I was still trying to get him to put Foster back to work, no loss of time, give us a letter of recognition, and we would sit down and work out the difficulty. He told me that under what Manley allotted him he couldn't pay union wages, and I told him if we went there, got Foster back to work I would sit down with him and Larry Manley and work out something where he could live under the contract. He was going to sleep on it and call me the next morning and let me know. I was supposed to send him a copy of the contract to figure out how many pennies it would cost. Q. When you refer to the copy of the contract, are you referring to Respondent's Exhibit 2? A. Yes. Q. Did you send him a copy? A. I did. Q. Did you call him the next day? A. I don't know if I called him or he called me, I think I missed his call and I called him back. He said, "I couldn't go along with it." He couldn't put Foster back to work. Q. Did you discuss with Harris the circumstances surrounding the termination of Mr. Foster? A. I sure did. Q. What did Harris tell you as to the reason he had fired Foster? A. Well, he gave me an altogether different reason from what I received from Foster. Q. That's understandable. What did he tell you? A. He told me he fired him, the man wasn't doing his job. Q. Did he go into details in what respect he wasn't doing his job? A. Of course, he said the man down at Hallmark had called several times on him. R. Events of March 18 or 19,1966 Nabors talks with Manley 30 Following Nabors' conversation with Harris on March 17 or 18, 1966, and Harris' reply that he could not put Foster back to work, Nabors got in touch with Lawrence Manley on the telephone on either March 18 or 19, 1966, with reference to the problem. Lawrence Manley told Nabors in effect that he could not put Foster back to work because if he did so Harris might quit and he did not want Harris to quit. Nabors told Lawrence Manley that the employees had told him that Brooks and Harris had been attempting to rent another terminal facility. Lawrence Manley in effect denied to Nabors that this was being done. Apparently during the next week Nabors had conversations with Manley's attorneys of a similar vein to the ones previously held with Lawrence Manley and Attorney Quinn. 21 The facts are based upon a composite evaluation of the credited testimony of Howard , a fair inference from all of the evidence , and the logical consistency of all of the evidence Since the evidence reveals that the qestion of Brooks ' availability to take over the Lawrence operation was one of importance, I am convinced that Brooks immediately after talking to Lawrence Manley went to Lawrence, Kansas, to check out the problems with Hams . Neither Brooks nor Hams appeared frank or forthright as witnesses. I discredit their testimony to the effect that Brooks and Harris first saw_ each other around March 26, 1966, in regards to the situation . I am convinced from all of the evidence that they saw each other on March 17 or 18 and fully and frankly discussed all of the problems , including union problems, checked out terminal sites , and checked the routine of the operation, and discussed the employment of Hams by Brooks 2s The facts are based upon a composite evaluation of the credited testimony of Nabors, Foster, and Harris Nabors testified that the event occurred around March 17 or 18, 1966 Harris indicated the event occurred several days before March 22, 1966. The questioning of and the answers by Foster to the timing of this event were ambiguous I am convinced that the indication in his testimony that the event may have happened on March 21 or 22 was caused by such ambiguousness and is not reliable I find Nabors' and Harris' timing of the event reliable and in connection with the other facts place the event as set forth in the facts found 21 The event followed in time the visit to Lawrence , Kansas, by Brooks as set out previously 31 The facts are based upon a composite evaluation of Nabors' and Manley's credited testimony, a fair inference from all of the evidence, and the logical consistency of all the evidence Nabors on direct examination placed the acquisition of reports from employees about Brooks' and Harris' checking another terminal site for rental as being 2 weeks before Brooks took over (on March 29, 1966) On cross-examination the question and Nabors' answers thereto are ambiguous as to whether he had "official" or "unofficial" notice of when Brooks rented the other site. Manley credibly testified that he was out of town during the week of March 21-26, 1966. I am thus convinced that the conversation did not occur during this week Since the event of Brooks ' taking over had occurred by March 29, 1966, and since Manley thus would not have expressed concern over Harris' quitting at that time, I am convinced that the overall evidence reveals this incident to have occurred on March 18 or 19, 1966 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD S. Events of March 22, 196631 Events of March 24,1966 On March 22, 1966, Manley Transfer Company reduced to writing a new contract with Raymond Brooks d/b/a Brooks Transfer and Storage Company concerning the operation of Manley Transfer Company's terminal in Lawrence, Kansas. The contract was to become effective as of March 26,1966. The aforesaid contract is herewith set out: This agreement, made and entered into this 22 day of March 1966, by and between THE MANLEY TRANSFER COMPANY, INC., CHANUTE, KANSAS, and or its successors and assigns, party of the first part, hereinafter called "Company," and Raymond Brooks of .... Street, City of Ottawa State of Kansas, party of the second part, hereinafter called "Agent." WITNESSETH: Whereas: that for and in consideration of the facilities to be furnished and the service to be rendered by Agent, and the compensation paid therefor by Company, as hereinafter set forth, the parties hereto convenant and agrees as follows: AGENT AGREES: 1. To Perform pickup and delivery service, where legally authorized at the station of Lawrence, Ks. for all freights shipments which can be handled by the Company at lawfully published tarrif rates and to furnish to the public any information contained in freight tarrifs and circulars (such information to be secured from station files or from Freight Traffic Department of the Company), insofar as the same is applicable to the transporation of the freight. 2. To furnish, at above address for the transaction of Company business and accomodation of its patrons, suitable and adequate dock space for the proper handling of freight shipments and to maintain said dock, approaches, and premises attached thereto in a clean and safe condition at all times , and to reimburse and hold harmless Company from any and all expenses incurred and/or claims arising directly or indirectly from or on account of any neglect or failure to so maintain the said dock, approaches or appurtenant premises. 3. Agent convenants and agrees to protect, indemnify and hold harmless Company from and against any and all loss, damage, cost and expense, including attorneys' fees, that may be suffered or incurred by Company, or by any person or persons, firm, association , or corporation resulting from: (a) Injury to or death of persons, loss or destruction of, or damage or delay to property, including the conversion thereof, caused by, or resulting in any manner from any acts or omissions negligent or otherwise, of Agent, or any of the employees in performing, or failing to perform any of the service or duties on the part of Agent to be performed hereunder. "The facts are based upon stipulations of the parties , upon the credited aspects of the testimony of Brooks and Harris, and upon a fair inference from all of the evidence As indicated previously it is hard to believe, and I do not believe, Lawrence Manley's testimony that he did not know of the events of March 22, 1966, (b) The issuance of any false or fraudulent bills of lading for freight charges by Agent or any of the Agent's employees. (c) Theft, embezzlement or defalcation on the part of Agent, or any of the Agent employees. 4. To be liable for and protect at all times any and all money and/or property of the Company in the care or under the supervision of the Agent; and to indemnify and save the Company harmless from any loss of or damage to such money and/or property, however occurring and whether or not such loss be due to the fault of or within the control of the Agent. The title to all freight and proceeds thereof shall be at all times in the Company, it being the intention of this agreement that the agent shall at all times be in the position of trustee of said freight and the proceeds thereof for the Company. 5. In the performance of the Work hereunder, agent shall comply with all applicable federal and state enactments with reference to Employer's Liability, Workmen's Compensation and Workman's Insurance (and when requested by Company shall furnish proof of such compliance) and shall indemnify and hold harmless Company from and against any and all loss, liability, damages, claims, demands, costs and expenses of whatsoever nature due to the existance of such enactments or resulting from any claim of subrogation provided in such enactments or otherwise. 6. Agent shall also comply strictly at all times with all others laws, rules, regulations and ordinances, state, federal or municipal applicable to operations and service to be performed by Agent hereunder, and Agent expressly agrees to indemnify Company and save it harmless from all liability for any failure or default on the part of Agent or in his behalf. 7. Agent agrees to procure and keep in full force and effect during the life of this agreement, and to assume the expense of adequate insurance covering the operations provided for in this agreement, including Cargo, Public Liability and Property Damage, and Workmen's Compensation Insurance, and to furnish to Company copies of policies or certificates of such insurance coverage. Such policies or certificates shall be issued by companies and on forms and for Amounts approved by Company. 8. To render reports of Company business on the Daily days of each month; and also to remit to Company or deposit to account of Company at such times, or as may hereafter be prescribed by the Treasurer of Company, all moneys belonging to Company or collected for the account of the Company. 9. To permit authorized representatives of Company, during business hours, to inspect and check all property of Company, and inspect and audit all records and accounts pertaining to the business of Company kept or supervised by Agent, and to permit until after they happened As Lawrence Manley was an 80 percent owner of Respondent Kansas, I am convinced that George Harris would not "cancel" his contract without a specific understanding with Lawrence Manley. MANLEY TRANSFER COMPANY such authorized representatives, at their discretion, to collect all moneys belonging to the Company in the possession of the Agent. 10. To render reports of Over, Short, and Damages within twenty-four hours after they occurr to 0 S & D Clerk. 11. To place and maintain suitable sign or signs designating aforesaid premises as the Freight station of the Company. 12. That the title to all station equipment, signs, et cetera, furnished to the Agent shall be in the Company at all times and Agent will return said property or pay for its value upon the termination of this agreement. Upon the termination of this agreement the Agent will permit a representative of the Company to remove all signs, decalcomanias and any and all other evidence which might lead the public to believe that Agent is still the Agent for the Company. 13. Immediately upon the termination of this agreement, to remove from the telephone directory, or any other advertising media, any item listing or reference indicating that Agent is acting in any capacity for the Company. 14. Agent specifically authorizes Company to deduct from any money that may be due Agent hereunder any sums representing an expense incurred by the Company by reason of loss or damage to freight shipments due to negligence on part of Agent or its employees. 15. To Pay Agent commission at the rate of: 30% of Manley Transfer Co. Inc. Net Revenue per bill that agent handles. Agent will furnish all power equipment and will transport all trailers between Lawrence, Ks. and K.C., Mo. for pickup and delivery and other work incidental to the proper handling of records and maintenance of the station. 16. To permit Agent to deduct commission to which he is entitled under paragraph fifteen from Company funds in his possession when making remittances as provided in paragraph eight. IT IS MUTUALLY AGREED: 17. That payment as aforesaid shall constitute full and complete compensation to Agent for all facilities furnished and services rendered by Agent. 18. Agent shall employ and direct all persons performing any service hereunder and such persons shall be and remain the sole employees of and subject to the control and direction of Agent and not the employees or subject to the direction and control of Company, it being the intention of the parties hereto that Agent shall be and remain an independent Contractor and that nothing herein contained shall be construed as inconsistent with that status. 32 Harris testified that he submitted a written resignation to Lawrence Manley when he told the boys on March 26, 1966, that he was closing down Later when questioned about the March 22, 187 19. This agreement shall take effect on the date first herein written and shall continue in full force and effect until terminated by written notice given by either party hereto to the other party on any date in such notice stated, not less however, than fifteen (15) days subsequent to the date on which such notice shall be given. However, Carrier may terminate the agreement at any time immediately upon written notice to Contractor in the event Contractor fails to comply with any of the terms of this agreement. 20. The waiver of a breach of any of the terms or conditions hereof shall be limited to the act or acts constituting such breach and shall never be contrued as being a continuing or permanent waiver of any such terms or conditions, all of which shall be and remain in full force and effect as to future acts or happenings, not with-standing any such waiver. THIS AGREEMENT cancels any and all previous contracts and agreements pertaining to the subject of commission agency between Agent and Company and/or its predecessors in interest except as to unfulfilled obligations heretofore incurred, and this agreement constitutes the entire contract between the parties, and any additional or subsequent agreement shall be in writing and signed by both parties hereto. IN WITNESS WHEREOF the parties hereto have caused this agreement to be executed the day and year first hereinabove written. /s/ Raymond Brooks AGENT /s/ Robert Lee WITNESS TO AGENT'S SIGNATURE MANLEY TRANSFER COMPANY, INC. (COMPANY) /s/ Glen T. Robbin GENERAL MANAGER /s/ Robert Lee WITNESS TO GENERAL MANAGER SIGNATURE Either shortly before or after the execution of the foregoing instrument some official of Manley Transfer Company notified George Harris of what was being done and told him to send in a letter requesting cancellation of the agreement between Manley Transfer Company and the Kansas Delivery Service, Inc., covering the Lawrence peration. George Harris thereupon did so on the same date.32 Harris appeared to be a very confused witness attempting to tell a pretextuous and prefabricated story. I am convinced that in the haste to prepare a pretextuous defense that Harris overlooked a formal resignation as manager of Kansas Delivery Service, Inc. In fact I am convinced that Harris did not consider that he was resigning but was merely participating in a necessary change to defeat unionization. 1966, letter requesting cancellation he placed the date of his letter of resignation as being on March 22, 1966 I do not believe Harris' testimony on this point 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On March 24, 1966, Respondent Manley transmitted a letter to Harris as follows: March 24,1966 317 N. Santa Fe. Chanute, Kansas George E. Harris Kansas Delivery Service 315 N. 3rd Lawrence, Kansas Dear George; It was with regret that we received your cancellation letter, but this is to advise we will cancel your contract with Manley Transfer Co., Inc. effective March 26,1966. Very truly yours, R. F. Manley President Manley Transfer Co., Inc. T. Events of March 26,1966 Respondent Kansas Terminates its Employees 33 On March 26, 1966, George Harris told employees Beerbower, Howard, and Cobb that he was tired of staying up all night worrying about the union deal, that he had talked to Larry (Manley) the night before and that Larry had said to use his best judgment, that he was going to close the doors. Beerbower asked Harris how Lawrence Manley could afford to quit hauling the Hallmark load. Harris told Beerbower that he did not know, that it didn't make any difference because he was out of a job like the rest of the M.34 Conclusions A consideration of all the facts clearly reveal that Respondents Manley and Kansas terminated the employment of Cobb, Howard, and Beerbower, because they had engaged in union activity. Harris' interrogation and threats to employees as to the closing of the operation if they engaged in union activity coupled with the facts of requested bargaining by the Union clearly reveal that Respondent Manley and Kansas were discriminatorily motivated in their termination of the employees on March 26, 1966. The subterfuge between Respondent Manley, Kansas, and Brooks clearly support a further inference that Respondents considered themselves to benefit by not having unionization of employees at the "commission agent" sites.35 I have considered the fact that Respondent Manley as to its basic organization has contracts with the Union. I am persuaded however that Respondents considered it to be beneficial to keep down unionization at the small town "commission agent" sites. 13 The facts are based upon a composite of the ciedited aspects of the testimony of Beerbower , Cobb, Howard, and Hams. 34 If Respondents Manley's andKansas ' actions had been on the up and up , it is hard to understand why Harris did not tell his employees on March 22, 1966, of his action and why on March 26, I, thus, conclude and find from all the facts that Respondents Manley and Kansas discriminatorily discharged Cobb, Howard, and Beerbower because they had engaged in union activities. Such conduct is violative of Section 8(a)(3) and (1) of the Act. U. The Appropriate Bargaining Unit The parties stipulated to the effect and I find as a fact that "all truck drivers and laborers of Kansas Delivery Service, Inc., at its Lawrence, Kansas, terminal , excluding office-clerical workers, professional employees, guards, and supervisors defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act." The parties stipulated to the effect and I find as a fact that "all truckdrivers and laborers of Raymond Brooks d/b/a Brooks Transfer and Storage, at its Lawrence, Kansas, terminal, excluding office-clerical workers, 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." The total evidence in this case reveals that the appropriate bargaining unit involved herein could best be described as, and I so find the described unit to be as follows: "All truckdrivers and laborers of the enterprise doing business at Lawrence, Kansas, as agent for Manley Transfer Company, Inc., and operating a terminal thereat for Manley Transfer Company, Inc., excluding office- clerical workers, professional employees, guards and supervisors defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act." V. Majority Status of Union There is no dispute and I find as a fact that the employees who constituted the appropriate bargaining unit on March 10, 1966, were Foster, Beerbower, Cobb, and Howard. The facts also reveal that each of the above- named employees had around February 16, 1966, signed an appropriate authorization card designating the Union as their bargaining agent. I conclude and find as a fact that the Union (Local 41) was on March 10, 1966, the duly designated collective-bargaining representative of the employees in the described appropriate bargaining unit. W. Demands for Recognition and Bargaining The facts are clear that Kappelman on March 10, 1966, in his conversation with Lawrence Manley, and that Nabors, during the week of March 14-19, 1966, in his conversations with Lawrence Manley, with George Harris, and with Manley's attorneys made demands for recognition and bargaining upon Respondent Manley and Respondent Kansas. The facts are also clear that. Respondent Manley and Respondent Kansas by the actions taken on March 10, 1966, with respect to the discharge of Foster, with respect to Harris' talk to the 1966, he told the employees he had talked to Lawrence Manley the night before and was going to close the doors. 3s See the decision of the Supreme Court of the United States in Textile Workers Union v Darlington Manufacturing Co., 380 U S. 263, 273, in. 18. MANLEY TRANSFER COMPANY 189 other employees, with respect to Harris' attempt to dissuade Foster from union activity on March 16, with respect to the pretextuous cessation of business by Respondent Kansas and the pretextuous substitution of Respondent Brooks for the Lawrence, Kansas, operation, engaged in a course of conduct whereby both Respondent Manley and Respondent Kansas clearly refused to bargain in good faith with the Union. Such conduct of Respondent Manley and Respondent Kansas clearly violated Section 8(a)(5) and (1) of the Act. I so conclude and find.36 X. Events of March 26,1966, and Thereafter Respondent Brooks operations 31 As indicated previously Respondent Manley and Respondent Brooks executed a contract on March 22, 1966, with effective date as of March 26, 1966, for Respondent Brooks to act as Respondent's agent in its Lawrence, Kansas, operation. On March 26, 1966, at 3:30 p.m. Raymond Brooks signed a lease for a new terminal site for the Lawrence operation. On Monday, March 28, 1966, Raymond Brooks d/b/a Brooks Transfer and Storage commenced operations as Manley Transfer Company's Lawrence, Kansas, agent. Brooks Transfer and Storage commenced its operations in Lawrence, Kansas, using substantially the same type equipment and doing the same work as had formerly been done by Kansas Delivery Service, Inc. Some of Brooks' trucks had Manley Transfer Company's name on them and some did not. None had the name of Brooks Transfer and Storage on them. Brooks, similar to Kansas Delivery Service, Inc., had a contract with Manley Transfer Company to be Manley's agent in Lawrence, Kansas. Similar to Kansas Delivery Service, Inc., Brooks uses Manley's ICC licenses when required. Brooks has at the Lawrence, Kansas, site some office equipment which he has purchased. Brooks also has at the Lawrence office some Kansas Delivery Service, Inc., office equipment which he has not paid for or signed notes for. Brooks has the same telephone number that Kansas Delivery Service, Inc., had and also instructs the employees to answer the telephone as "Manley Transfer." Brooks Transfer and Storage commenced operations at Lawrence, Kansas, with the following personnel . George Harris commenced work as a driver. Several employees were transferred from Brooks' Ottawa location and two new employees were hired from Ottawa. Mrs. Harris, who had worked for Kansas Delivery Service, Inc., was employed for office work a few days later. None of the other Kansas Delivery Service, Inc., employees, including Foster, was hired. Events of March 28,1966 On March 28, 1966, Raymond Brooks negotiated a lease with George Harris and Glenn Robbins (of Respondent Manley) for certain equipment of Respondent Kansas. Conclusion Considering the foregoing and all the facts in this case (including those set forth relating to the operation by Kansas Delivery Service, Inc., and the involvement therein of Manley Transfer Company, Inc.,38 the facts that the bulk of the work performed by Brooks at Lawrence, Kansas, required transportation under authority of the ICC and that Respondent Brooks had no such authority but by virtue of delegation of Respondent Manley's ICC permit was able to perform such transportation, and that the contract between Respondent Manley and Respondent Brooks provided, inter alia, that either party could terminate the contract within 15 days of appropriate notice to do so), the evidence reveals that Respondent Manley's control of Respondent Brooks was and is such to constitute Respondent Brooks a subordinate instrumentality of Respondent Manley. Thus the facts reveal that in real effect that Respondent Brooks' supervision constituted a part of Respondent Manley's supervision and that the employees of Respondent Brooks were and are employees of Respondent Manley.39 As indicated herein the appropriate bargaining unit at Respondent Brooks' Lawrence enterprise was the same described appropriate unit as in Respondent Kansas' enterprise. Considering all of the foregoing facts relating to Respondent Kansas, Respondent Manley, and Respondent Brooks, the evidence is overwhelming that Respondent Brooks, within the meaning of Board's successorship law, is a successor to Respondent Kansas.40 Y. Respondents Manley's, Kansas', and Brooks' Conspiracy Without reiterating all of the facts previously found, I find the preponderance of the evidence to reveal that Respondents Manley, Kansas, and Brooks jointly and knowingly participated in a plan to thwart the unionization of the employees at the Lawrence terminal of the commissioned agent for Respondent Manley. Thus, I am convinced from all the facts that after Lawrence Manley had learned that Manager Harris had been unable to dissuade Foster from union activity on March 16, 1966, that Lawrence Manley decided he had to get Respondent Brooks for the Lawrence operation as a counter to union or strike action. I am convinced that the facts reveal that 39 Note is taken of fn . 15 in the decision of the Supreme Court in Textile Workers v. Darlington Mfg. Co., supra at 272. Respondent Manley apparently contends that since the contract between Respondent Manley and the Teamsters includes a recognition clause and procedures for determining contract violations that this is a factor to be considered . I find no merit to this contention . See Sucesion Mario Mercado E Hijos d/b/a Central Ruftna , 161 NLRB 696, 712. 31 The facts are based upon a composite evaluation of the credited aspects of Brooks' and Harris' testimony, upon stipulations, and upon a fair inference from all of the evidence. Brooks' and Harris' testimony as to their contacts with each other was very unpersuasive and to the extent not set forth herein is discredited. 3e The facts reveal that all of Respondent Manley's commission agents operated under similar contracts and conditions. It is noted however that Respondent Manley and Respondent Kansas had a more involved relationship because of Lawrence Manley's investment and duties as regards writing checks and bookkeeping, and the arrangement between Respondent Manley and Respondent Kansas for the fueling of trucks and the billing therefore. I do not find such differences to affect the ultimate determination of the relationship between Respondent Manley and Respondent Brooks. 39 Allen Milk Company, 158 NLRB 258. 40 Witham Buick, Inc. 139 NLRB 1209; Chemrock Corporation, 151 NLRB 1074, and cases cited therein. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lawrence Manley fully and frankly discussed with Raymond Brooks on March 17, 1966, the entire problem of unionization, of threatened strike action, and of the steps he and Harris had undertaken, and of a desire to have Brooks take over the Lawrence operation so as to defeat the Union. I am convinced also that when Harris and Brooks talked to each other on March 17 or 18, 1966, that they thoroughly understood the foregoing, and that Harris frankly and fully told Brooks of the actions he had undertaken. I am also convinced that Brooks, on March 22, 1966, knew that Respondent Manley was executing the arrangements to substitute his outfit for Respondent Kansas. Additionally I note that testimony of Manley, Brooks, and Harris revealed that such testimony was confused and contryed and was a deliberate avoidance of the true story. From all of this I am persuaded that the true facts reveal that Respondents Manley, Brooks; and Kansas jointly and knowingly participated in a plan to destroy unionization among the employees in the bargaining unit at the Lawrence terminal of the commission agent of Respondent Manley. Since the evidence, as set out previously, reveals that Respondent Kansas had the obligation to bargain with the Union as regards the appropriate bargaining unit, and especially since the facts reveal that Respondent Brooks participated in a plan to destroy the Union's majority in the bargaining unit, Respondent Brooks commenced operations with a fixed obligation to recognize and bargain with the Union as to such appropriate unit. Since Respondent Brooks participated in a pretextuous plan to destroy the Union's majority in the bargaining unit and to avoid bargaining with the Union as exclusive bargaining representative of its employees, I conclude and find from the fact that Respondent Brooks has not recognized and bargained with the Union that Respondent Brooks violated Section 8(a)(5) and (1) of the Act from the moment that it took over the operation at Lawrence, Kansas, on March 26,1966.4' Since the facts reveal that Respondent Brooks participated with Respondent Manley and Respondent Kansas in a plan to destroy the Union's majority and with knowledge of the unfair labor practices committed by Respondent Kansas and Respondent Manley, Respondent Brooks also commenced operations with a fixed duty to disavow or eliminate such unfair labor practices at least to the extent of employing the former employees, including Foster, of Respondent Kansas, and to disavow all other acts of known interference within the meaning of Section 8(a)(1) of the Act. Respondent Brooks' failure to employ Foster, Cobb, Howard, and Beerbower, under the circumstances of this case, reveals that its conduct as of March 26, 1966, and thereafter was conduct violative of Section 8(a)(3) and (1) of the Act. I so conclude and find. Since the facts reveal that Respondent Brooks participated in a plan with Respondent Manley and Respondent Kansas to avoid unionization of the employees at the Lawrence terminal (commission agent of Respondent Manley), and since the facts reveal that Respondent Brooks was on notice of the unfair labor practices committed by Respondents Manley and Kansas, Respondent Brooks' failure to disavow such unfair labor practices42 constituted in effect a continuation of such 41 Chemrock Corporation , 151 NLRB 1074 42 Set forth elsewhere as being violative of Section 8(a)(1), (3), and (5) 43 1 find that the facts in Intergraphic Corporation of America, unfair labor practices. In addition to the previous findings of Respondent Brooks' conduct violative of Section 8(a)(5) and (1), I hereby conclude and find that Respondent Brooks has violated Section 8(a)(1) by failure to disavow the conduct of Manager Harris on March 10 and 16, 1966, previously found violative of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close intimate, and substantial relationship 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 Having found that the Respondents have violated Section 8(a)(3), (5), and (1) of the Act, I will recommend that Respondents cease and desist from such violative conduct and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondents Manley, Kansas, and Brooks have refused to bargain collectively with the Union as the exclsuive representative of the employees in the appropriate unit, it will be recommended that the Respondents, upon request, bargain collectively with the Union as such representative, and in the event that an understanding is reached, embody such understanding in a signed agreement. Compliance with the foregoing will be deemed to have been effectuated by such bargaining by Respondent Manley and such instrumentality as it utilizes in its employing structure as the enterprise it Lawrence, Kansas. Having found that Respondents Manley and Kansas discriminatorily terminated the employment of Foster on March 10, 1966, and having found that Respondents Manley and Kansas discriminatorily terminated the employment of Cobb, Howard, and Beerboweer on March 26, 1966, and having found that Respondent Brooks has discriminated with regard to the failure to employ Foster, Cobb, Howard, and Beerbower at all times after March 26, 1966, it will be recommended that the Respondents offer to the following named employees, full and immediate reinstatement to their former, or substantially equivalent positions, without prejudice to their seniority and other rights and privileges. The employees are John Darrell Foster, Gerald L. Cobb, Melvin Beerbower, and Dean Howard. Compliance with the foregoing will be deemed to have been effectuated by such reinstatement offers being made by Respondent Manley and such instrumentality as it utilizes in its employing structure as the enterprise at Lawrence, Kansas. It will also be recommended that Respondents Manley and Kansas jointly and severally make Foster whole for any loss of earnings he may have suffered by reason of the discrimination against him from March 10, 1966, until March 26, 1966,43 and that Respondents Manley, Kansas, and Brooks, jointly and severally make whole Foster, 160 NLRB 1284, and New Madrid Manufacturing Company, 104 NLRB 117, are slightly different from those in this case. I do not make Respondent Brooks responsible for backpay to Foster before Brooks commenced operations. MANLEY TRANSFER COMPANY 191 Cobb, Howard, and Beerbower for any loss of earnings suffered by them from March 26, 1966, until the date of said offer of reinstatement at the employing enterprise of Manley Transfer Company, Inc., at Lawrence, Kansas. Such loss of earnings shall be computed by determining the wages each would have earned from the date of termination to date of offer of reinstatement, less their net earnings during such period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 294, and with interest thereon as prescribed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. As the unfair labor practices committed by the Respondents were of a character which go to the very heart of the Act, it is recommended that the Respondents cease and desist therefrom and cease and desist from infringing in any other manner upon the rights of employees guaranteed by Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Local Union No. 41, International Brotherhood of Teamsters, is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. 2. The Respondents, at all times material herein, have been and are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By interfering with, restraining, and coercing employees in the exercise of their rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminating in regard to the hire and tenure of employment , thereby discouraging membership in or activities on behalf of a labor organization, the Respondents have engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. All truckdrivers and laborers of the Manley Transfer Company, Incorporated's employing structure at Lawrence , Kansas, excluding office-clerical workers, 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. 6. Local Union No. 41, International Brotherhood of Teamsters, at all times since February 16, 1966 , has been the exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of the Act. 7. Respondent Manley by its actions on March 10, 1966, and thereafter, Respondent Kansas by its actions on March 10, 1966 , and thereafter, and Respondent Brooks by its actions on March 22, 1966 , and thereafter, in refusing to bargain with the Union as to the terms and conditions of employment of employees in the appropriate bargaining unit , have engaged in unfair labor practices within the meaning of Section 8 (a)(5) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of the Act. [Recommended Order omitted from publication. ]