Thompson Transport Co., Inc.

746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thompson Transport Company, Inc. and Truck Drivers and Helpers Union Local No. 696, affiliated with International Brother- hood of Teamsters , Chauffeurs , Warehouse- men and Helpers of America . Cases 17-CA- 2881 and 17-CA-2934 June 21, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On February 14, 1967, Trial Examiner W. Edwin Youngblood issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision with a supporting brief and General Counsel filed cross-exceptions with his supporting brief. 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 and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, only to the extent consistent herewith: The Trial Examiner found, and we agree, for the reasons set forth in the Trial Examiner's Decision, that Respondent interfered with, restrained, and coerced its employees in violation of Section 8(a)(1) by making statements in November and early December 1965, as to a possible closure of the Phillipsburg terminal in the event of union organization, and violated Section 8(a)(5) and (1) of the Act, following certification of the Union as exclusive bargaining representative, by closing the Phillipsburg terminal on or about March 31, 1966, without prior notice to and bargaining with the Union concerning the decision to close the terminal and the effects of the closing upon the employees. However, as we do not agree that a preponderance of the evidence supports the Trial Examiner's further finding that the Phillipsburg terminal was closed out of a desire to avoid bargaining with the Union, we do not adopt his conclusion that employees at that location were discharged in violation of Section 8(a)(3) and (1) of the Act. In finding the Phillipsburg closure to have been discriminatorily motivated, the Trial Examiner concluded that the economic considerations advanced by the Respondent as giving rise to its decision to close that terminal were unconvincing, pretextual in nature, and insufficient to overcome the General Counsel's prima facie case. We disagree. Although the timing of the closure in relation to the Union's certification, and the prior warnings to employees of a possible closing in the event they selected a Union created a suspicion of unlawful motivation, we are here confronted with a record which plainly establishes the uneconomic nature of the Phillipsburg operation, and also shows that further losses could be fairly anticipated for 1966 should Respondent continue to maintain its facilities at that location. Thus, the record reveals that Respondent's president, Thompson, made his decision to close the terminal on March 22, 1966, at which time he was fully aware that Respondent was confronted with a substantial projected loss in business for 1966 viewed in light of an operating loss at Phillipsburg for 1965. In this regard, Respondent, on November 16, 1965, became cognizant that a 9- million-gallon haul of asphalt from the Consumer Cooperative Refinery at Phillipsburg for the Interstate Highway 70 job, to be delivered during the summer of 1966, would not be carried by its trucks, which normally hauled 16-18 million gallons of the total asphalt production of 20 million gallons produced at the refinery. The cartage of asphalt was Respondent's greatest source of business for Phillipsburg based trucks. Thereafter, in January 1966, Respondent also became aware that the 1965-66 State highway maintenance contract for northwest Kansas had been lost by the Consumer Cooperative Refinery, which had previously supplied about 3 million gallons of asphalt using Respondent's Phillipsburg based trucks. Respondent was contacted by the successful bidders of this contract and agreed to continue hauling asphalt for State highway maintenance to northwest Kansas, but it would now be supplied from refineries much closer to Respondent's McPherson terminal, located in east- central Kansas. Furthermore, although Respondent had hauled casinghead with Phillipsburg based trucks for the Service Petroleum Company to the refinery in Phillipsburg, that haul was curtailed in the summer of 1965 due to a fire, and then completely eliminated in January 1966 when Service Petroleum lost the contract. While the foregoing was known to Respondent in advance of the closure, it was not until after Thompson returned from his month-long European trip in early March 1966 that he was informed by General Manager Sanders, that Respondent's financial records for McPherson and Phillipsburg revealed an operating loss of about 165 NLRB No. 96 THOMPSON TRANSPORT CO. 747 $33,000 at Phillipsburg for 1965.1 The facts also show that the trucks and other equipment at Phillipsburg were obsolete and inefficient. Against this background, unlike the Trial Examiner, we are unwilling to rely upon the manner and timing of the announcement to close the terminal as determinative of an unlawful motivation herein. Nor are we willing to find that factor, coupled with the statements of Terminal Manager N. Wise in November and early December 1965, made 3-4 months prior to the decision to close, as a sufficient basis upon which to conclude that Respondent was unlawfully motivated in making the decision to close. On the contrary, the series of events culminating in the announcement of the closing are consistent with a lawful economic motive based upon the dim prospect for business in the year 1966 out of the Phillipsburg terminal caused by (1) the anticipated loss of asphalt business amounting to about 12 million gallons or 75 percent of its normal asphalt business, (2) the actual loss of casinghead business, and (3) the report in March that the Phillipsburg operation had suffered a substantial financial loss during the year 1965. As Thompson did not become aware of a portion of the lost hauling volume until January 1966, and did not receive the Phillipsburg financial statement until March, his decision to close the terminal on March 22, 1966, about 2 weeks after his return from a month-long trip to Europe, reflects a chronology indicative of a bona fide economic closing. We conclude that the General Counsel has failed to prove by a preponderance of the evidence that the Respondent's decision to close the Phillipsburg operation was motivated in whole or in part by union animus or the desire to avoid bargaining with the Union rather than by economic considerations. Accordingly, we find that the Respondent did not violate Section 8(a)(3) and (1) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order that it cease and desist therefrom, and from like or related conduct, and that it take certain affirmative action to effectuate the policies of the Act. We have found in agreement with the Trial Examiner that Respondent violated Section 8(a)(5) and (1) by its failure to notify and bargain about its decision to close the Phillipsburg terminal and the effects of that decision on its employees. In fashioning our affirmative order, we are mindful that the remedy should "be adapted to the situation that calls for redress,"2 with a view toward "restoring the situation as nearly as possible to that which would have obtained but for [ the unfair labor practice]." 3 In view of the nature of the violation herein, an order restoring the status quo ante, would require Respondent to recreate the situation existing prior to the closedown of the Phillipsburg terminal by reopening the discontinued terminal. However, we believe that our remedy should also be tempered by practical considerations, which if applied to the present situation dictate against restoration of the Phillipsburg terminal as being impractical and nonessential to the formulation of a meaningful remedy, since the terminal has been closed for a considerable period of time and the trucks and other equipment have been shipped some distance away.4 Also, we have found that Respondent's decision to close the Phillipsburg terminal was motivated solely by economic considerations.5 Accordingly, unlike the Trial Examiner, we shall not require reestablishment. Effectuation of the policies of the Act does require, however, that Respondent be required to establish a preferential hiring list of all employees in the appropriate unit following the system of seniority, if any, customarily applied to the conduct of Respondent's business, and, if operations are ever resumed at Phillipsburg or anywhere in the Phillipsburg area, at that time offer reinstatement to those employees, and bargain with the Teamsters, upon request.6 Our order will so provide. Of course, if Respondent decides to resume its Phillipsburg operation, it shall offer all those in the appropriate unit reinstatement to their former or substantially equivalent positions there. Under the present set of circumstances, however, a bargaining order alone cannot suffice as an adequate remedy for the unfair labor practices committed. It is evident that had Respondent adhered to its bargaining obligation, the employees at Phillipsburg would not have been terminated without the protection of collective bargaining. As a result of bargaining, the employees quite possibly would not have been terminated at all. In any event, it must be presumed, as in Winn-Dixie,7 that the employees would have retained their jobs at least until Respondent had fulfilled its bargaining obligation by negotiating to a bona fide impasse. Particularly is this true since Respondent owned the Phillipsburg property and could have remained on the premises for as long as it desired beyond the closing date, and further there is nothing in the instant record to suggest that Respondent I We do not deem the variance between Respondent's 1965 Federal Income Tax return and its Statement of Income and Expense for 1965, as significant, since both documents reveal a substantial financial loss for the year 1965. 2 N L R B v Mackay Radio & Telegraph Co., 304 U S 333, 348 9 Phelps Dodge Corp. v N.L R B., 313 U S. 177,194. ' Ozark Trailers, Incorporated, 161 NLRB 561 5 Ozark Traders, Incorporated, supra s McGregor Printing Corporation, 163 NLRB 938. ' Wtnn-Dixie Stores, Inc., 147 NLRB 788, affd. in pertinent part 361 F 2d 512 (C A 5) 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD permanently abandoned the Phillipsburg operation," or that Respondent would not resume operations there if it would acquire adequate hauling contracts. Thus, under these circumstances, it is both reasonable and necessary to require that "the employees whose statutory rights were invaded by reason of Respondent's unlawful unilateral action, and who may have suffered losses in consequence thereof, be reimbursed for such losses until such time as the Respondent remedies its violation by doing what it should have done in the first place."9 Accordingly, we shall further order that Respondent shall make the discharged employees whole for any loss of pay they may have suffered as a means of remedying the 8(a)(5) violations involved herein.10 The liability for such backpay shall cease on July 12, 1966, the date on which Respondent fulfilled its duty to bargain as to the effects of its decision to suspend operations from the Phillipsburg facility. Backpay shall be based upon the earnings which the terminated employees would normally have received during the applicable period less any net interim earnings, and shall be computed on a quarterly basis in the manner set forth in F.W. Woolworth Company, 90 NLRB 289; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344; with interest thereon. Isis Plumbing & Heating Co., 138 NLRB 716. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Thompson Transport Company, Inc., McPherson, Kansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with Truck Drivers and Helpers Union Local No. 696, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of all drivers, mechanics, and servicemen at Respondent's Phillipsburg, Kansas, terminal, excluding all office clerical employees and professional employees, guards, and supervisors as defined in the Act, by failing or refusing to bargain with the above-named labor organization with regard to the decision to close the Phillipsburg terminal, and the effects such discontinuance of operations had upon the employees in the appropriate unit. (b) Threatening employees that it will close its Phillipsburg terminal if they select the Union as their collective-bargaining representative. (c) In any like or related manner interfering with, restraining, or coercing the employees in the appropriate unit in the exercise of their right to self- organization, to form, join, or assist the above-named Union, or any other union, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Make Ronald Wise, Robert Ringle, and Willis Hodge whole for any loss of pay suffered by them in the manner set forth in the section herein of the Board's Decision entitled "The Remedy." (b) Establish a preferential hiring list of all employees in the appropriate unit following the system of seniority, if any, customarily applied to the conduct of Respondent's business, and, if operations are resumed at Phillipsburg or anywhere in the Phillipsburg area, at that time offer reinstatement to those employees to their former or substantially equivalent positions and bargain collectively with the above-named labor organization, upon request. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (d) Mail an exact copy of the attached notice marked "Appendix" to Truck Drivers and Helpers Union Local No. 696, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, and to all employees in the appropriate unit who were employed by Respondent at its Phillipsburg terminal immediately prior to March 31, 1966.11 Copies of said notice, to be furnished by the Regional Director for Region 17, shall, after being signed by Respondent's duly authorized representative, be mailed immediately upon receipt thereof, as herein directed. (e) Notify the Regional Director for Region 17, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges violations not found herein. B We note that despite the Phillipsburg closing, this case does not involve a complete or partial permanent abandonment of the business operations formerly conducted through that facility Respondent continues to haul products from the Phillipsburg area, through the use of other facilities Thus, Respondent hauls gasoline and oil from the Phillipsburg refinery to its customers in northwest Kansas with the aid of a leased tractor and driver, and when necessary with its trucks based in McPherson Furthermore , after the Phillipsburg closedown , Respondent resumed the hauling of casinghead to the Phillipsburg refinery from a new source in southwest Kansas, again with the use of its McPherson based trucks 0 Winn-Dixie Stores , Inc., supra 10 Royal Plating and Polishing Co , Inc, 148 NLRB 545, and cases cited therein at fn 7 " In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " THOMPSON TRANSPORT CO. 749 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 mail this notice and to keep our word about what we say in this notice. WE WILL NOT refuse to bargain collectively in good faith with Truck Drivers and Helpers Union Local No. 696, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of all employees in the appropriate unit by failing or refusing to bargain with the above-named labor organization with regard to the decision to close the Phillipsburg terminal, and the effects such discontinuance of operations had upon the employees in the appropriate unit. The appropriate unit is: All drivers, mechanics, and servicemen at the Phillipsburg, Kansas, terminal of Thompson Transport Company, Inc., excluding office clerical employees, and professional employees, guards, and supervisors, as defined in the Act. WE WILL NOT threaten our employees with closing the Phillipsburg terminal if they select the Union as their collective-bargaining representative or threaten other reprisals for engaging in union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce the employees in the appropriate unit in the exercise of their right to self-organization , to form , join , or assist unions to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from such activities. WE WILL establish a preferential hiring list of all employees in the appropriate unit following the system of seniority, if any, customarily applied to the conduct of our business, and, if operations are resumed at Phillipsburg or anywhere in the Phillipsburg area, at that time offer reinstatement to those employees to their former or substantially equivalent positions and bargain collectively with the above-named labor organization, upon request. WE WILL make Ronald Wise, Robert Ringle, and Willis Hodge whole for any loss of pay suffered by them as a result of failure and refusal to bargain with the aforenamed Union concerning the decision to close the Phillipsburg terminal, and the effects such discontinuance of operations had upon the employees in the appropriate unit. THOMPSON TRANSPORT COMPANY, 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 374-5282. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE W. EDWIN YOUNGBLOOD, Trial Examiner : This case was heard at Phillipsburg , Kansas, on July 19, 20, and 21, 1966 ,1 pursuant to a complaint issued June 17 upon a charge filed March 23 in Case 17-CA-2881, and a complaint issued July 6 upon a charge filed May 27 and an amended charge filed July 6 in Case 17-CA-2934. The complaint in Case 17-CA-2881 alleges that Respondent has violated Section 8 (a)(5) of the Act by: (a) refusing to bargain collectively in good faith with the Union since on or about March 1 and (b) by discharging the drivers, mechanics, and servicemen employed at its Phillipsburg, Kansas, terminal and by closing its Phillipsburg , Kansas, terminal and transferring those operations to its McPherson , Kansas, terminal without notice to or bargaining with the Union and thereafter continuing to refuse to bargain about said operational change. Further, this complaint alleges that Respondent by the foregoing conduct and by threatening its employees with closing the Phillipsburg terminal if the terminal was unionized has violated Section 8(a)(1) of the Act. The complaint in Case 17-CA-2934 alleges that Respondent discriminatorily discharged Willis Hodge on or about December 1, 1965, and Ronald Wise, Robert Ringle , and Dorothy Peasley on or about March 31, in violation of Section 8(a)(1) and (3) of the Act. Respondent denies the commission of any unfair labor practices. Briefs have been received from the General Counsel and the Respondent. Upon the entire record , including my evaluation of the witnesses based upon the evidence and my observation of their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Until about March 31, Respondent, a Kansas corporation and common carrier of petroleum products, operated terminals at McPherson, Kansas, and Phillipsburg, Kansas. Respondent annually performs I All dates herein are in 1966 unless otherwise indicated 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD services valued in excess of $50,000 for other Kansas enterprises which in turn annually purchase goods and materials valued in excess of $50,000 directly from outside the State of Kansas . I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Respondent's Animus Toward the Union 1. At McPherson The Union attempted to organize the employees at Respondent's McPherson, Kansas, terminal in 1963. At that time, Respondent opposed the efforts of the Union to organize, in fact, Darrell Thompson, president of Respondent, threatened employees with reprisals in the event they selected the Union as their collective- bargaining representative-these threats being made on April 28 and May 12, 1963. In addition, in April, May, or June, 1963, Thompson and other agents of Respondent interrogated employees concerning their interest in or activities on behalf of the Union. Finally, in his efforts to defeat the Union, Thompson in late April and May 1963 granted benefits and announced the granting of benefits to employees in order to discourage their interest in or activity on behalf of the Union. The Union commenced an effort to organize the employees at Phillipsburg in the fall of 1965.2 Thompson, admitted in this proceeding that Respondent's position continued as it was in 1963, that is, in opposition to the Union." 2. At Phillipsburg In March or April of 1964 Willis Hodge approached Norman Wise, Phillipsburg terminal manager, with the request that he start driving a truck for Respondent. Wise told Hodge that he "could start driving if [he] would promise not to start a union." Hodge replied that he would not "start a union but if the other boys tried to get a union in [he] would vote for it." Wise repeated that if Hodge promised not to start a union that he "could go back to work." As found above, the Union' s organizing drive at Respondent's Phillipsburg terminal commenced in the 2 This finding is based on the credited and undemed testimony of Dorothy Peasley and J J. Glenn, assistant business agent for the Union 3 The foregoing, except as otherwise indicated, is based on the credited testimony of Thompson and certain allegations in the complaint issued in Thompson Transport, Inc , 17-CA-2186, which allegations are admitted in a stipulation entered into by Respondent, the Union and the General Counsel providing for the entry of a Decision and Order by the Board, which is in evidence in this proceeding as General Counsel's Exhibit 17 I have taken official notice of the complaint and stipulation in 17-CA-2186 in the interest of clarifying the Board's Decision and Order " The foregoing, except as otherwise indicated, is based on the credited testimony of Hodge Wise disagreed as to the date of this conversation but did admit that he asked Hodge if he put Hodge back on would he not try to get the Union started and that Hodge said that he would not Wise denied anything else being said. Wise denied having any conversation at all with Hodge at Martha's Cafe Wise's denials were unconvincing. first part of November 1965. In the latter part of November or the first part of December 1965, Hodge again had a conversation with Wise about the Union in a place called "Martha's Cafe." Wise told Hodge that he thought that if the Union was voted in that they might close the terminal down.4 About November 7, 1965, Mrs. Dorothy Peasley, who was employed as an office employee and relief dispatcher by Respondent, and who worked under Norman Wise, terminal manager, had a conversation with Wise in the office. Wise told Peasley that "he was afraid that if the terminal went union , it would cause quite a turmoil and there was a possibility, he was afraid the terminal might close because of it." Wise repeated this statement two or three times during the month of November. This was all that Wise said." Wise said to Peasley one day in early December 1965, "You should know what is going on among the drivers and why won't you tell me?" Peasley replied that she did not know what was going on among the drivers.6 The General Counsel contends that Wise's statements to Peasley and Hodge that if the Union were voted in Respondent might close the terminal violated Section 8(a)(1) of the Act. The complaint alleges these statements occurred on December 29, 1965, and the evidence establishes they were made in November and in early December 1965. I must reject the Respondent's contention that the variance between the dates alleged in the complaint and the dates established by the evidence is fatal to this allegation of the complaint.7 Moreover, I likewise must reject Respondent's contention that the statement to Hodge was ambiguous because Wise used the word "they." It is clear in context that Wise was referring to action by the Company such as closing the terminal. Finally, I must reject Respondent's contention that Wise's statements to Peasley were merely predictions and not coercive; it is clear the statements referred to the fact that Thompson might close the terminal if it "went union" and thus were clearly coercive. Accordingly, I find that Respondent violated Section 8(a)(1) by the foregoing conduct. B. The Representation Proceeding In Thompson Transport Company, Inc., Case 17-RC-4912,6 the Regional Director issued a Decision and Direction of Election on December 9, 1965, finding a unit appropriate for collective bargaining purposes within the meaning of Section 9(b) of the Act consisting of: "All ' Wise admitted making the statements attributed to him by Peasley However, Wise further testified in regard to his discussion of union affairs with Peasley that he said that if the Union got in and there was a demand for higher wages he was "scared" that Thompson would close the Phillipsburg terminal Wise also testified that he told Peasley that he had heard several times before that the terminal was losing money and "they were on the verge of shutting down anyway on account of losing money " I do not believe Wise made these additional statements As indicated above, his testimony was unconvincing Accordingly, I have credited the testimony of Peasley as set forth above which was persuasively given 6 The foregoing is based on the credited testimony of Peasley Wise denied having such a conversation. As stated above, his denials were not persuasive r Haynes Stellate Company, Division of Union Carbide Corporation, 136 NLRB 95,98 e At the request of the General Counsel, I have taken official notice of this representation proceeding THOMPSON TRANSPORT CO. drivers, mechanics and servicemen at Respondent's Phillipsburg, Kansas, terminal excluding office clerical employees and professional employees, guards and supervisors as defined in the Act." The Regional Director specifically rejected the Employer's contention that leased drivers were not employees but individual contractors and included in the unit the leased driver stationed at Phillipsburg. An election was conducted on December 29, 1965, at which time two votes were cast for the Union and two votes were cast against the Union. There were five challenged ballots. On January 28, the Acting Regional Director issued a Supplemental Decision and Order in which he sustained the challenges to four ballots. The remaining ballot was that of Willis Hodge, the leased driver referred to in the Regional Director's Decision of December 9, 1965. Hodge's ballot was challenged by the Board agent pursuant to the Board's telegraphic order of December 28, 1965, denying the Employer's request for review of the Decision and Direction of Election in all other respects. In the Supplemental Decision the Acting Regional Director again found that Hodge was not an independent contractor and found that his status was that of an employee. In so doing, the Acting Regional Director considered a letter to Hodge dated December 1, 1965, from Norman Wise, terminal manager at Phillipsburg, and the Employer's assertion that Hodge was terminated on November 16, 1965. Further the Acting Regional Director found that Hodge's status was that of an employee who had a reasonable expectancy of continued employment. Therefore the Acting Regional Director overruled the challenge to Hodge's ballot and directed that it be opened and counted. A revised tally of ballots was issued about January 28 reflecting that three votes had been cast for the Union and two against the Union. On February 23, the Regional Director issued a certification of representatives certifying that the Union was the exclusive bargaining representative of certain employees at Respondent's Phillipsburg, Kansas, terminal. At the hearing in this proceeding the Respondent sought to litigate the status of Hodge; once again contending that Hodge had been terminated on November 16, 1965." The General Counsel objected to this on the basis that the Regional Director had decided this question in the representation proceeding and that Respondent therefore was precluded from relitigating the point in this proceeding. I sustained the General Counsel's objection on the basis of the Board's well- established policy not to relitigate in an unfair labor practice proceeding such as this, issues which were or could have been litigated in a prior related representation proceeding absent newly discovered or previously unavailable evidence. I adhere to the ruling made at the hearing. It seems to me that it is implicit in the Decision of the Regional Director that he found that Hodge was not terminated or discharged on December 1, 1965. Consistent with the foregoing, I must, as Respondent argues in its brief, reject the General Counsel's contention based on Respondent's letter of December 1, 1965, that Hodge was discriminatorily discharged on that date. From the foregoing, it is clear, and I find, that the Union was the certified collective-bargaining representative of the employees of Respondent in the appropriate unit set forth above, and that Respondent was legally obligated to 0 This was in support of Respondent's contention that Section 10(b) of the Act would bar Hodge's case because if discharged on November 16, 1965, the charge filed May 27 was filed more than 6 months after the discharge 10 Glenn fixed the date of this conversation as March 7 but 751 recognize and bargain with the Union as such representative. C. The Union's Attempts to Bargain with Respondent On March 1, Union Respresentative J.J. Glenn called Respondent's attorney, William Haynes, and requested that Respondent bargain with the Union regarding wages, hours, and working conditions of Respondent's employees. Haynes asked Glenn if he had prepared contract proposals, and when Glenn replied that he had, Haynes requested that a copy be mailed to him. Haynes told Glenn that Thompson was in Europe. That same day, March 1, Glenn mailed the contract proposal to Haynes. On March 7, Glenn again called Haynes and asked if he had received the Union's proposed contract. Haynes stated that he had and, upon Glenn's request that Haynes draft a counterproposal, Haynes agreed to do so. Glenn also asked for a date for them to meet. Haynes said that he "would get with Mr. Thompson," and try to arrange a meeting. On March 15, Glenn again called Haynes about negotiating and asked about a counterproposal. Haynes informed Glenn that Thompson had just returned from out of town and said that he would give Glenn a date and a counterproposal but that he would have "to be in touch with his client first." Glenn felt that Haynes was stalling and so on March 15, he wrote a letter to Respondent's terminal manager in Phillipsburg, Norman Wise, relative to a meeting with Respondent's representative. By letter dated March 18, Haynes advised Glenn that he would be willing to meet on March 23 or another date if that was not satisfactory. On March 22, Glenn called Haynes for a time to meet since none was specified in Haynes' letter. Haynes informed Glenn that there was no further need to meet "due to the fact that they had closed the Phillipsburg terminal." Glenn told Haynes that he "definitely wanted to know why [they] weren't notified, being we had been certified. Haynes informed [Glenn] that it was their prerogative to close the terminal if they saw fit." Glenn then asked about negotiations with respect to closing the terminal and the seniority of the employees and severance pay. Haynes replied that "being they were closing, that people had been laid off, there was no further need to meet." Glenn testified that Haynes told him that in the spring season there would be some employment at the McPherson terminal and the Phillipsburg employees should make applications as new employees. to Glenn then filed, on March 23, the charge in Case 17-CA-2881.11 It is apparent that Respondent made its decision and closed the Phillipsburg terminal without notice to the Union and without affording the Union an opportunity to bargain about the closing and the effects of the closing upon the employees. I find that Respondent by so doing violated Section 8(a)(5) of the Act.12 D. The Closing of the Terminal 1. The termination of certain employees On March 24 , Norman Wise informed Peasley that her employment would be terminated on March 31. Robert obviously that date was in error because Glenn did not learn of the closing of the Phillipsburg terminal until March 22 i! The foregoing is based on the credited and undemed testimony of Glenn 12 Ozark Trailers, Inc , 161 NLRB 561 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ringle was told by Norman Wise on approximately March 24 that they were closing the shop on March 31. Ringle asked Wise a day or so later if Wise knew what was going to become of him and Wise said "no, he didn't know if [Ringle] would be transferred or not . He also didn't say that [Ringle ] would be terminated on that day." As a result of receiving the information that the terminal was closing, Ringle found another job . Ringle then told Wise that he had found another job and that he wanted to quit.13 Ronald Wise , brother of Norman Wise, was told, about March 24, by his brother that the terminal was shutting down . Ronald continued to work for Respondent for 3 to 4 weeks after March 31. During this time Ronald was engaged in transporting trucks and shop equipment from the Phillipsburg terminal to the McPherson terminal, and he also hauled some asphalt. 2. The General Counsel's prima facie case It is clear from the foregoing that Respondent strongly opposed the advent of the Union at its McPherson, Kansas, terminal in 1963. Thus, when the Union sought to organize the employees , Thompson , himself, on several occasions , admittedly threatened employees with reprisals if they selected the Union as their bargaining representa- tive. In addition , Thompson and other agents of Re- spondent admittedly interrogated employees concerning their union activities and granted and announced benefits to employees in order to discourage their union activities. That this attitude of strong opposition to the Union continued during the Union 's organizing campaign at Phillipsburg is clear from the record herein. Thus, Thompson admitted at the hearing herein that his position in opposition to the Union was the same as it was in 1963. In addition , as found above, Respondent 's attitude of continuing forceful opposition to the Union is reflected in the interview for employment of Hodge which Terminal Manager Norman Wise conducted . In that interview Wise conditioned Hodge's employment with Respondent on his "promise not to start a union." Respondent 's attitude is further reflected in Wise's statements to Hodge and Peasley that if the Union were voted in the terminal might be closed . Wise also reflected Respondent 's attitude toward the Union by his conduct in attempting to secure knowledge about the employees ' union activities through Peasley. Respondent's attitude in opposition to the Union is further reflected in the circumstances under which its attorney informed the Union 's representative of the decision to close the terminal . Without any advance notice to the Union and, in fact, under circumstances which had given no hint whatsoever of any intent to close, the Union was bluntly informed on March 22 that there was no need for the parties to meet because the terminal had been closed. And when the Union protested the lack of notice to the certified-bargaining representative , they were informed that it was the Company's prerogative to close "if they saw fit." And when the Union sought to negotiate about the effect of the closing on employees they were informed that the people had been laid off already and if the employees wished to seek employment at the McPherson terminal in the spring they should make applications as new employees . I consider very significant the timing of the announcement of the closing of the terminal with respect to the date of the Union 's certification. Thus the Union was certified on February 23, Thompson returned from Europe about March 4, and the closing was announced a scant 18 days later. Under all the circumstances , I find that the General Counsel has established a strong prima facie case for concluding that Respondent closed the terminal and terminated its employees to avoid bargaining with the Union and to defeat the Union . We turn now to the reasons advanced by Respondent for closing the terminal. 3. The Respondent's defenses Respondent contends that it closed the terminal purely for business reasons. In fact , Thompson denied that the union activities of his employees played a part in the decision to close. Respondent relied primarily on the factors summarized below as reasons for the closing. a. The Sand-Orr contract On November 16, 1965, according to Thompson's testimony , the Sand-Orr Construction Company was low bidder on a contract let in Norton , Kansas, to work on Interstate Highway 70. This work encompassed two "spreads" or stretches of highway where work was to be done. In that connection , asphalt would have to be hauled from the Consumer Cooperative Refinery in Phillipsburg to the two spreads referred to above. It seems that Respondent hauls asphalt from the Cooperative to some spreads, and a competitor, Kansas Transport , hauls to some spreads . Unfortunately the two spreads for Highway 70 were the competitor's spreads and not Respondent's. The 1-70 contract calls for hauling about 9 million gallons of asphalt from the Cooperative to spreads , and Thompson testified that this was business Respondent would not get. Thompson testified that the Cooperative was the main customer Respondent had insofar as asphalt transportation was concerned . In fact , Thompson testified that Respondent normally hauled 90 percent of the asphalt production of the Cooperative . Since 9 million gallons of asphalt from the Cooperative would be hauled by a competitor, Thompson testified this meant the loss of a big percentage of hauling which Respondent normally did. Thompson estimated "for easy figuring" that the Cooperative produced 20 million gallons of asphalt a year and so the loss of 9 million gallons would be a big loss for Respondent . Thompson testified that when Sand-Orr received this contract on November 16, 1965, he knew Respondent lost 9 million gallons of asphalt hauling "at that particular date." b. State maintenance Thompson testified that he was requested to come to Kansas City by representatives of a major oil company. When he arrived in Kansas City, he was asked if Respondent could haul asphalt products from Augusta, Kansas, to northwest Kansas, for the summer of 1966. Thompson stated that they estimated the amounts involved at something in excess of 2 million gallons going to northwest Kansas. Testifying in more detail , Thompson stated that he talked with "the traffic manager and assistant traffic manager , Chuck Fortman and Jim Beatty" in Kansas City, and that they were with Mobil Oil Company. Thompson then stated that although he did not 'S Ringle could not recall exactly when his employment for Respondent ended THOMPSON TRANSPORT CO. 753 remember the exact date of this conversation it was "sometime" in the month before he left for Europe. Thompson then testified that he left for Europe on about February 4 and fixed the date of this conversation as in the month of January 1966. Further that Fortman and Beatty told him that they had made a successful bid to furnish asphalt for northwest Kansas for the year 1965-66. Thompson stated that the Cooperative had been furnishing asphalt for State maintenance prior to this for years. Thompson further testified that Respondent for years had hauled the majority of asphalt from the Cooperative to northwest Kansas for this purpose. Thompson testified further that shortly after the above occurred "and I will be rather vague on this date because I don't remember the exact date" he received a telephone call from Ray Wells, assistant traffic manager of Skelley Oil Company in Kansas City. Wells asked if Respondent could haul in excess of 1 million gallons of asphalt from Skelley's refinery. The source of asphalt for this purpose was El Dorado, Kansas, and Augusta, Kansas. El Dorado is 20 miles northeast of Augusta and El Dorado and Augusta are 70 miles from the McPherson terminal and about 250 miles from the Phillipsburg terminal. Thompson testified that this meant that while Respondent was getting more business, it was business out of the McPherson terminal and not the Phillipsburg terminal because it was so far from the source of supply. According to Thompson, Alvis Jackson of the Cooperative notified him after the above occurred that the Cooperative had lost the contract for servicing the State highway maintenance for the Northwest Division of Kansas. c. The Service Petroleum Company contract Thompson testified that Respondent had hauled casinghead gas for the Service Petroleum Company from the Deerfield and Lakin, Kansas, plants in 1963 and 1964. In the summer of 1965 the Deerfield plant burned down. Respondent, however, continued to haul from the Lakin plant in the fall of 1965 but on January 1, 1966, Respondent lost this haul. Leo Wilmot, general manager for Service Petroleum, told Thompson at that time that Service Petroleum had lost the contract and Respondent therefore would no longer have this haul. Respondent has not hauled from Lakin since January 1966. Thompson testified with respect to, the closing of the terminal that the loss of business was "certainly a paramount issue." He referred also, however, to other "issues" such as equipment getting old like steel asphalt tanks. Thompson testified that new aluminum tanks were needed in order to show a profit. In addition, Thompson testified that Respondent had received numerous customer complaints because their tractors could not make deliveries on time since they were so old that they had many breakdowns. So he concluded that it was essential to purchase 10 new tractors at a cost of about $200,000 and 10 more trailers at a cost of about $100,000. These purchases were also necessary, according to Thompson, because Respondent needed to switch from gasoline power equipment to diesel equipment because diesel equipment was more economical to operate. Thompson testified that for 2 years the Phillipsburg terminal had been getting in worse shape due to losing business. The books for the two terminals were kept together. Respondent had been trying to separate the books and a new Burroughs machine was being used to accomplish this. The machine was actually purchased 2 years before, but they only decided to separate the books "a year or so ago."14 Respondent had no records they could rely upon until 1965. When Thompson returned from Europe and in about the first or second week in March 1966, he talked with Sanders who advised that he had practically completed separating the records for the two operations and that the "picture" showed a loss of about $33,000. Thompson inquired if the figures were correct, and Sanders replied, "reasonably so." When Thompson asked if that meant within 10 percent, Sanders replied that the figures were more accurate than that. At the hearing and in the absence of supporting records, I received a document in evidence (Resp. Exh. 8) captioned "Statement of Income and Expense" for the year 1965 for the limited purpose of establishing that such a document was before Thompson when he made his decision. I in effect sustained the General Counsel's objection to admitting the document as proof of its contents. The hearing was adjourned with the understanding that the General Counsel would be afforded the opportunity to examine certain records of the Respondent, and unless he advised the Trial Examiner on or before August 1 of his desire to further examine Mr. Thompson the hearing would be considered closed as of August 1. I requested the General Counsel to advise me what his position was with respect to Respondent's Exhibit 8 after examining the Company's records and stated that if I heard nothing further from the General Counsel regarding Respondent's Exhibit 8 I would assume that his objection was withdrawn and I would receive Respondent's Exhibit 8 into evidence. After the hearing adjourned, I received a stipulation signed by the General Counsel and the Respondent with a letter attached from the Charging Party interposing no objection to the stipulation. The stipulation contains no objection to Respondent's Exhibit 8 and the General Counsel did not request the hearing to be reconvened and I therefore receive Respondent's Exhibit 8 into evidence as proof of its contents. The stipulation is hereby marked Trial Examiner's Exhibit 1 and it is also received in evidence. Thompson testified that he reached the decision to close the Phillipsburg terminal on March 22. Further that he informed Mr. Jackson of the Cooperative of his decision and Jackson was "quite upset" about it. Thompson testified that he told Jackson' he would try to get Kansas Transport in to handle the business. Thompson testified further that Respondent is now operating "in the neighborhood of 45" tractors which is pretty close to the same number Respondent operated in July 1965. In 1965 Respondent operated about 20 tractors out of Phillipsburg and 25 out of McPherson. Thompson added that of course not all tractors were operated every day. As set forth above, Respondent relies primarily on loss of business as justification for the closing of the Phillipsburg terminal. Yet it is apparent from Thompson's testimony that most of the business lost occurred long before March 22. The 1-70 contract, according to Thompson, involved 9 million gallons of asphalt, and Thompson estimated that the total asphalt business lost to " Will Sanders, general manager for Respondent, testified that the Burroughs accounting machine was purchased in March 1964 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent was between 11 or 12 million gallons of asphalt.15 Yet Thompson knew the 1-70 contract situation as early as November 16, 1965, and it will be recalled that the Deerfield plant burned down in the summer of 1965 nevertheless Thompson took no action until shortly after the Union was certified as bargaining representative of Respondent's employees at Phillipsburg. Under these circumstances I am unable to attach much weight to Thompson's testimony with respect to the acquisition of about 3 million gallons of new business in the vicinity of the McPherson terminal, or to the loss of the hauls from the Lakin plant. Respondent also asserts as a defense the cost of replacing equipment such as tractors. It is clear, however, from Thompson's testimony that Respondent was operating about the same number of tractors at the time of the hearing as it did the previous summer. It is apparent that this expense was a continuing one and closing the Phillipsburg terminal would have no effect on this cost item. As to the net loss reflected on Respondent's Exhibit 8 of approximately $33,000 for the year 1965 at the Phillipsburg terminal, I cannot give the weight to this item Respondent desires. For, as the General Counsel contends in his brief, the stipulation establishes that Respondent used a different method for computing tractor and trailer expense on Respondent's Exhibit 8 than it did in its income tax return for 1965. The figures of Respondent's Exhibit 8 are in excess of $21,000 more than the figures shown for these items on the income tax return. This results in increasing the Respondent's losses correspondingly or from about $12,000 to $33,000, a substantial increase. I find the reasons asserted by Respondent for the closing to be unconvincing, pretextuous in nature, and insufficient to meet the General Counsel's prima facie case. Accordingly, I find and conclude for all the reasons set forth above that Respondent closed the Phillipsburg terminal to avoid bargaining with the Union in violation of Section 8(a)(5) and that this closing was tantamount to unlawfully discharging Peasley, Ronald Wise, Ringle, and Hodge16 in violation of Section 8(a)(3) of the Act." Since Ringle was informed of the terminal closing and as a result thereof obtained employment elsewhere, I must reject Respondent's contention that he quit his employment.18 Nor does the fact that Ringle, Wise, Hodge, and Peasley were offered employment at McPherson change this finding. I do not consider offers of employment at McPherson, a distance of about 190 miles from Phillipsburg, as substantially equivalent employment.19 Moreover, neither the fact that Peasley was an office worker and not in the unit nor the fact that she was not shown to be a prounion adherent is sufficient to bar the above finding.20 Finally, since Hodge occupied the status of an employee on March 31 with a reasonable expectancy of continued employment which was extinquished by the illegal closing of the Phillipsburg terminal, the fact that the evidence may not show company knowledge of his union activity likewise does not preclude the above finding.21 11 Both the General Counsel and the Charging Party objected repeatedly to Thompson's testimony as to the value of contracts involved on the basis that the records were the best evidence In that regard, colloquies between the Trial Examiner and counsel show that Attorney Haynes did not adduce this testimony to establish that Respondent lost any particular amount of business last year, or to establish the actual dollar value of any contracts Respondent had. 10 Hodge's status as an employee is described above. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the 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 Respondent has engaged in unfair labor practices in violation of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative steps designed to effectuate the policies of the Act. It having been found that Respondent unlawfully closed its Phillipsburg terminal which was tantamount to discriminatorily discharging Willis Hodge, Ronald Wise, Robert Ringle, and Dorothy Peasley in violation of Section 8(a)(3) and (1) of the Act, I shall recommend that Respondent be required to reopen its Phillipsburg terminal and offer the foregoing employees immediate and full reinstatement to their former or substantially equivalent positions. As to Hodge, this means only that he is to be restored to the status he occupied on March 31. In making this recommendation, I have considered particularly these facts: Respondent still owns the building in Phillipsburg in which its terminal was located; although this building was leased, it was only for 1 year, which year should end shortly if it has not already; Respondent apparently has given at least some consideration to reopening this terminal as shown by its letter of July 12, to the Union offering a 10-cent wage increase and preferential employment to all employees in the bargaining unit as of March 31, in the event that the Phillipsburg terminal was reopened; Respondent has continued to operate a truck in the Phillipsburg area servicing some of its customers; closing the terminal did not extinguish Respondent's obligations as a common carrier to service certain customers in the Phillipsburg area; and finally, although some financial hardship may occur, it is the result of the Respondent's own unlawful actions in closing the Phillipsburg terminal.22 I further recommend that Respondent make the employees named above whole for any loss of earnings they may have suffered by reason of the unlawful discrimination against them, by payment to each of them of a sum of money equal to the amount which the employee would normally have earned as wages from the date of the employees' termination, except for Hodge whose backpay will have to be determined on the basis of what he normally would have earned when in the status he occupied on March 31, to the date of Respondent's offers of reinstatement, less the employees' earnings during said period. Backpay shall be computed in the manner provided in F. W. Woolworth 17 Cf Preston Feed Corporation, 134 NLRB 629, enfd 309 F 2d 346 (C A 4) 11 Cf. Arlington Hotel Company, Inc , 127 NLRB 736, 751 11 Cf Ref-Chem Company, 153 NLRB 488,493 20 Cf. Arlington Hotel Company, Inc , supra (not in unit); Muscle Shoals Rubber Company, 157 NLRB 829 (minimal or no union activities shown) 21 Cf Muscle Shoals Rubber Company, supra 22 Preston Feed Corporation, supra THOMPSON TRANSPORT CO. Company, 90 NLRB 289, with interest as directed by the Board in Isis Plumbing & Heating Co., 138 NLRB 716. Having found that Respondent refused to bargain in violation of the Act, it will be recommended that, upon request, Respondent bargain collectively with the Union and if an understanding is reached , embody such understanding in a signed agreement. As the conduct in closing its Phillipsburg terminal and terminating its employees there to avoid bargaining with the Union goes "to the very heart of the Act," I shall also recommend that Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). Upon the basis of the foregoing findings of fact and upon the entire record , I made the following: CONCLUSIONS OF LAW 1. Thompson Transport Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truckdrivers and Helpers Union Local 696, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. All drivers, mechanics and servicemen at the Phillipsburg, Kansas, terminal of Thompson Transport Company, Inc., excluding office clerical employees, and 755 professional employees , guards and supervisors, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. The Union, at all times material herein , has been and now is the exclusive representative of all employees in the aforesaid appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally closing its operation at Phillipsburg, Kansas, on or about March 31, without prior notice to and bargaining with the Union as the exclusive representative of the employees in the aforesaid appropriate unit concerning the decision to close the terminal and the effect of the closing upon said employees , Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By - unlawfully closing the Phillipsburg terminal to avoid bargaining with the Union thereby discriminatorily discharging the employees named above, Respondent has engaged in unfair labor practices in violation of Section 8(a)(5), (3), and (1) of the Act. 7. By interfering with , restraining, and coercing its employees Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.]