Miller Trucking Service, Inc.

556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miller Trucking Service, Inc., and/or Miller Trucking Service, Inc., a subsidiary of Tulsa Crude Oil Purchasing Company and Truck Drivers and Helpers Local Union No. 696, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 17-CA-3264 June 11, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On March 21, 1968, Trial Examiner George J. Bott issued his Decision in the above-entitled proceeding, finding that the Respondent which he designated as Miller Trucking Service, Inc., had engaged in certain unfair labor practices. He, however, recommended no remedy for these violations . He also found that the Respondent which he designated as Miller Trucking Service, Inc., a subsidiary of Tulsa Crude Oil Purchasing Company, although continuing the same operations after buying the Respondent 's stock, had not engaged in the unfair labor practices alleged in the complaint, and was not responsible for remedying the unfair labor practices he found to have occurred. Accordingly, the Trial Examiner recommended that the complaint be dismissed in its entirety. Thereafter, the General Counsel filed exceptions to the Trial Examiner' s Decision and a supporting brief and the Respondent filed cross-exceptions to the Trial Examiner's Decision and a 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, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. Prior to May 20, 1967, Hilary Miller and his wife owned substantially all of the outstanding common stock of Respondent Miller Trucking Service, Inc. Hilary Miller was president of the corporation and managed the business . On May 20, 1967, the Respondent received a letter from the Union, asserting that it represented a majority of the Respondent's truckdrivers and mechanics for the purpose of collective bargaining. The letter also requested a meeting. However, no response was ever made to this letter. On May 31 , the Respondent was served with a Notice of Representation Hearing and 176 NLRB No. 76 a copy of the Union's election petition dated May 22. The election petition was subsequently withdrawn. Hilary Miller had, by this time, begun to make inquiries respecting the possible sale of his stock in the Respondent. On or about May 24, 1967, he met with representatives of Tulsa Crude Oil Purchasing Company to negotiate the terms and conditions for sale of the Respondent's stock. Another meeting was held on or about May 31, and on June 10 the parties executed an agreement for the transfer of all outstanding shares in the Respondent, the transfer to take place on June 19. Hilary Miller thereafter acquired all shares not held by him, and the transfer of the stock took place as fixed in the sales agreement. The Respondent was a corporation, and was never dissolved. But the connections of the Millers with the Respondent were completely severed with the transfer of stock. Also, pursuant to a clause in the sales agreement proposed by Tulsa Crude Oil Purchasing Company, Hilary Miller caused all ten employees of the Respondent to be terminated on June 17. Thereafter, the Respondent rehired all but four of the former drivers. Except for closing one of its terminals and having some new managerial personnel, the Respondent operates in the same manner as before the stock transfer, using the same equipment, servicing the same customers and employing the same number of employees,' at the same work and under the same general terms and conditions of employment. 1. Ignoring the continuity of the Respondent as a legal entity, the Trial Examiner analyzed this case on the theory that upon the transfer of stock, Hilary Miller was replaced, as employer, by Tulsa Crude Oil Purchasing Company. Contrary to this analysis, we find that at all times in question the employer was Miller Trucking Service, Inc., regardless of its stock ownership. Although a corporate identity will sometimes be pierced in order to avoid its use to shield one who seeks to evade legal responsibility,' it will not be pierced to sanction its own wrongdoing. In other contexts, the Board has consistently held that mere change of stock owership does not absolve a continuing corporation of responsibility under the Act.' Because we do not accept the Trial Examiner's analysis of the case as involving two separate and unrelated legal entities, we do not reach the question of whether his application of the Darlington4 'Although the evidence was not crystal clear , driver Wagner testified that there are about the same number of drivers as prior to the transfer of stock . There was also testimony to the effect that when they were given applications for rehire, the employees were told that if they did not apply, the Respondent would have to hire others . No contrary evidence was offered 'See Fletcher, Cyclopedia of the Law of Private Corporations . Secs. 41, 43, 4231 'See West Boyston Manufacturing Company of Alabama. 87 NLRB 808, 851 , The M B Farrin Lumber Company. 117 NLRB 575; Dunkirk Broadcasting Corporation, 120 NLRB 1588; Dixie Highway Express, Inc, 153 NLRB 1224, Martin White, Jr. Inc, 165 NLRB No. 81 4N L R B v. Darlington Mfg Co. 380 U S. 263. Nor do we reach the MILLER TRUCKING SERVICE, INC. 557 doctrine is a correct statement of law. Hilary Miller is not, and need not be, a respondent in this proceeding inasmuch as any violations were committed in the name of the Respondent, a corporation and can be cured by that entity and its agents . The transfer of stock of the Respondent did not itself constitute an unfair labor practice here. If any unfair labor practices occurred in connection with the transfer, they were the result not of the stock transfer but rather of managerial decisions respecting how the business would function both before and after that transfer. 2. The Trial Examiner found and we agree that on May 20, 1967, when the Respondent received the Union's request for recognition, Hilary Miller, the Respondent's president , engaged in an unlawful poll of four employees regarding their organizational activities; on May 22, he unlawfully interrogated a fifth employee; and on about June 15, he threatened another employee, whom we find to have been the leading union activist, with economic reprisal because of his union activities , in violation of Section 8(a)(l) of the Act. The Trial Examiner, however, recommended no remedy as, in his view, the Respondent was "out of business" and therefore no remedy was practicable. We, however, find merit in the General Counsel's exception to the Trial Examiner' s failure to order the Respondent to remedy its unlawful conduct, in view of our finding above that at all times in question , the Respondent was a continuing corporate entity. 3. The Trial Examiner found that the Respondent did not violate Section 8(a)(3) and (1) of the Act by terminating its employees, an action which he viewed as part of the transfer of the business from Hilary Miller to Tulsa Crude Oil Purchasing Company and therefore privileged under Darlington. We agree that the evidence is insufficient to establish that the terminations were violative of Section 8(a)(3) of the Act, but for the following reasons. As mentioned above, the purchaser of the stock proposed the terminations , and the record indicates only that Hilary Miller agreed thereto. Although the purchaser of the stock knew of the employees' organizational activity, we cannot conclude, on the basis of the very limited evidence in the record, that the proposal to terminate was motivated by antiunion considerations as opposed to nondiscriminatory business reasons. A new management was preparing to operate the business, and new managers often desire , for reasons unrelated to union activities , to start afresh, with employees of their own choosing . In these circumstances , we find that the record does not establish that the Respondent violated Section 8(a)(3) and (1) of the Act by the termination of its employees . We shall accordingly dismiss this portion of the complaint. question of whether the Trial Examiner has correctly construed the Board's decision in Perma Vinyl Corporation . 164 NLRB No. 119, enfd . 398 F.2d 544 (C.A. 5). 4. We turn now to a consideration of the Respondent's duty to recognize and bargain with the Union. For the reasons set forth in the Trial Examiner's discussion of unit appropriateness, we find that the unit described in the Union's letter to the Respondent and the election petition constitutes an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. ' Further, we find, in agreement with the Trial Examiner, that a majority of the employees in the unit designated the Union as their collective-bargaining representative. The Trial Examiner, however, found that the Respondent did not violate Section 8(a)(5) and (1) of the Act by refusing to accord the Union recognition. For the reasons set forth below, we find merit in the General Counsel's exception to this finding. After receiving the Union's letter asserting its representational status, and requesting a meeting for the purpose of collective bargaining, the Respondent engaged in widespread interrogation of employee organizational activity, and unlawfully threatened an employee respecting such activity. The cumulative impact of such conduct on the employees' ability to continue to freely exercise their Section 7 rights is surely substantial under these circumstances. We agree with the Trial Examiner's observation that Hilary Miller's failure to grant the Union statutory recognition was motivated by a desire to gain time in which to get out of the business, thereby destroying the Union.6 Contrary to the Trial Examiner, however, we find that Miller was an agent of the Respondent and that the Respondent is charged with his refusal and the responsibility for remedying it. The failure of Miller Trucking Service, Inc., to recognize the Union was, therefore, in violation of Section 8(a)(5) and (1) of the Act.7 5. The Trial Examiner further found that the Respondent had no duty to bargain about "the decision to go out of business," relying on Darlington.' The General Counsel excepts to this on the basis that he has alleged that there was no going out of business, but rather the Respondent failed to bargain specifically about the effects of the sale on the rights of the employees. The General Counsel further contends that the terminated employees who were denied reinstatement should be reinstated with backpay pursuant to Section 8 (a)(5) and (1) of the Act. We find merit in the General Counsel's contentions. As noted above, on June 17, Hilary Miller, while acting as the Respondent' s agent, terminated the 'The appropriate unit is All truckdrivers and mechanics of Miller Trucking Service, Inc., excluding office employees, professional employees, guards and supervisors as defined in the Act. 'For example, the Trial Examiner credited testimony that on handing an employee his termination notice , Hilary Miller said: " (Tlhis is the way it's got to be, I cannot buck the union wages." 'See Fabricators, Inc. 168 NLRB No. 21 IN L R B v. Darlington Mfg Co, 380 U S. 263. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent's employees without bargaining with, or contacting the Union. There is no evidence showing that the Union, which had only shortly before requested recognition and which, we have found, was entitled to it, knew at this time of the Respondent's plans to terminate its employees. Although there were many questions which might profitably have been the subject of collective bargaining, the Respondent ignored the Union's request for recognition. Such questions might have included whether mass terminations were necessary at all; and if so, when the terminations would occur; notice to employees of the impending terminations; and rights of employees with respect to rehiring. Thus the Respondent's bargaining with the Union might well have affected those very terms which Hilary Miller agreed to with the purchaser of his stock, with respect to the job tenure of its employees. In view of the foregoing, we conclude and find that the Respondent further violated Section 8(aX5) and (1) of the Act by unilaterally terminating its employees" without bargaining with the Union. 1. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The unfair labor practices of the Respondent set forth above, occurring in connection with the operations of the Respondent, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. II. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices, as set forth above, we shall order that it cease and desist therefrom and take certain affirmative action to effectuate the purposes of the Act.'° Having found that the Respondent refused and failed to recognize or bargain with the Union as the exclusive representative of its employees in an appropriate unit, we shall order that the Respondent, upon request, bargain collectively with the Union, concerning rates of pay, wages, hours of employment, or other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. `See :Northwestern Publishing Company. 144 NLRB 1069, enfd. 343 F.2d 521 (C.A. 7). prima facie case that the Respondent failed to rehire four of the terminated employees in violation of Section 8(aX3) and (1) of the Act. Respondent thus failed to put on evidence as to its motivation in refusing to rehire the four employees. In light of our findings herein, we find it unnecessary to determine whether the Trial Examiner was correct with respect to this issue. "Some of the Respondent 's truckdrivers do not regularly report to its LaCrosse. Kansas, terminal Therefore, in order to effectuate the Order herein , we shall order that the Respondent mail copies of the attached Notice to such employees , as they have less opportunity to read the bulletin board than is normally anticipated. Having found that the Respondent further refused and failed to bargain collectively with the Union by bypassing the above-named Union and unilaterally terminating its employees, we shall order that the Respondent offer to Duane Mader, Ralph Gottschalk, Harley Rogers, and Robert Rogers immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, if necesary dismissing employees hired since their terminations," and make them whole for any loss of earnings they may have suffered by reason of the Respondent's unlawful unilateral action, by payment to them of a sum of money equal to that which they normally would have earned from the aforesaid date of their termination, to the date of the Respondent's offer of reinstatement less their net earnings during such period.': The backpay provided herein shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289; N.L.R.B. v. Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. We shall, however, order no reinstatement and backpay for the other six employees whom the Respondent terminated, as the record indicates that they were reinstated forthwith and there is no contention that they lost any pay, or other rights or privileges as a result of the Respondent's unlawful unilateral conduct. CONCLUSIONS OF LAW 1. Miller Trucking Service, Inc., is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Truck Drivers and Helpers Local Union No. 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. The Respondent violated Section 8(a)(1) of the Act by threatening an employee with economic reprisal because of his union activities and interrogating its employees concerning their protected activities. 4. At all times since May 20, 1967, the above-named Union has been the exclusive representative for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, of an appropriate unit of all "The record shows that the Respondent continued to operate in essentially the same fashion after the stock transfer as before, and employed the same number of employees after the stock transfer "See, e.g., Fibreboard Paper Products Corp v N. L R 8, 379 U.S 203, enfg. 138 NLRB 550. MILLER TRUCKING SERVICE, INC. 559 truckdrivers and mechanics of the Respondent, excluding office employees, professional employees, guards and supervisors as defined in the Act. 5. The Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act by its failure and refusal on and after May 20, 1967, to recognize or bargain collectively with the Union. 6. The Respondent has further violated Section 8(a)(5) and (1) of the Act by bypassing the Union and unilaterally terminating its employees. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 8. The Respondent did not engage in unfair labor practices within the meaning of Section 8(a)(3) of the Act by terminating its employees. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Miller Trucking Service, Inc., LaCrosse, Kansas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully interrogating its employees concerning their union activities. (b) Threatening employees with economic reprisals because of their union activities or sympathies. (c) Refusing to recognize or bargain collectively with Truck Drivers and Helpers Local Union No. 696, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of all its employees, with respect to rates of pay, hours of employment, and other terms and conditions of employment in the following appropriate unit: All truckdrivers and mechanics of Miller Trucking Service, Inc., excluding office employees, professional employees, guards and supervisors as defined in the Act. (d) Bypassing the above-named Union and unilaterally terminating all of its employees. (e) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , as guaranteed in Section 7 of the Act, and to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with Truck Drivers and Helpers Local Union No. 696, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of all employees in the unit found appropriate, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to Duane Mader, Ralph Gottschalk, Harley Rogers, and Robert Rogers 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 by them in the manner set forth in the section above entitled "The Remedy." (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) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary or useful to determine the amount of backpay due and the rights of reinstatement under the terms of this Order. (e) Post at its terminal in La Crosse, Kansas, copies of the attached notice marked "Appendix"" and mail a copy of said notice to each employee who does not regularly report to the LaCrosse terminal. Copies of said notice, on forms provided by the Regional Director for Region 17, shall, after being duly signed by the Respondent's representative, be mailed to employees who do not regularly report to the La Crosse terminal, and be posted by the Respondent immediately upon receipt thereof, and. maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent 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 date of this Order, what steps have been taken to comply herewith. IT IS FURTHER ordered that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein. "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." 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Dated By (Representative ) (Title) Pursuant to the 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 our employees that WE WILL NOT unlawfully interrogate our employees concerning their union activities WE WILL NOT threaten our employees with economic reprisals because of their union activities or sympathies WE WILL NOT refuse to recognize or bargain collectively with Truck Drivers and Helpers Local Union No 696, affiliated with international Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of all our employees in the appropriate unit with respect to rates of pay, hours of employment, and other terms and conditions of employment WE WILL NOT bypass the above-named Union and unilaterally terminate our employees WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act, and to refrain from any and all such activities WE WILL offer Duane Mader, Ralph Gottschalk, Harley Rogers, and Robert Rogers immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges WE WILL 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 WE WILL make whole Duane Mader, Ralph Gottschalk, Harley Rogers, and Robert Rogers for any loss of pay which they incurred as a result of our bypassing the above-named exclusive bargaining representative and unilaterally terminating them WE WILL bargain collectively, upon request, with Truck Drivers and Helpers Local Union No 696, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such an understanding in a signed agreement The appropriate bargaining unit is All our truckdrivers and mechanics excluding office employees, professional employees, guards and supervisors as defined in the Act MILLER TRUCKING SERVICE, INC (Employer) 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 816-374-5181 TRIAL EXAMINER'S DECISION STATEMENT OF THE PROCEEDING GEORGE J BOTT, Trial Examiner Upon a charge and amended charge filed on June 22 and August 29, 1967,' the General Counsel of the National Labor Relations Board issued a complaint and notice of hearing dated August 30, 1967, in which he alleged that Miller Trucking Service, Inc , (herein Respondent Miller) and/or Miller Trucking Service, Inc , a subsidiary of Tulsa Crude Oil Purchasing Company, (herein Respondent Tulsa) had engaged in unfair labor practices in violation of Section 8(a)(1), (3) and (5) of the National Labor Relations Act, as amended, herein called the Act Respondent Miller and Respondent Tulsa filed an answer, and a hearing was held before me in Hays, Kansas on December 5 and 6, 1967, at which all parties except the Union were represented Subsequent to the hearing, General Counsel and Respondents Miller and Tulsa filed briefs which I have carefully considered Upon the entire record in the case and from my observation of the witnesses, I make the following FINDINGS OF FACT I JURISDICTION OF THE BOARD Between June 14 and June 19, 1967, Tulsa Crude Oil Purchasing Company purchased all of the outstanding stock of Miller Trucking Service, Inc , a Kansas corporation The stock represented all of the assets of Respondent Miller On June 19, 1967, the operations of Respondent Miller were transferred to Tulsa Crude Oil Purchasing Company, an Oklahoma corporation, and the latter company has continued to operate Miller Trucking Service, Inc as its wholly owned subsidiary Prior to the sale and transfer of operations to Respondent Tulsa, Respondent Miller was engaged in transporting crude oil and other petroleum products and maintained terminals at La Crosse and Hays, Kansas Respondent Miller over the years performed transportation services for such companies engaged in commerce as Derby Refinery Company, Skelly Oil Company, Mobile Oil Company, Continental Oil Company and Phillips Petroleum Hilary Miller, former president of Respondent Miller, and John Beardslee, general manager in charge of purchasing for Derby Refinery, testified that Respondent Miller in the period The first charge named Miller Trucking Service inc and Tulsa Crude Oil Purchasing Company as the employer and described Tulsa Crude Oil Purchasing Company as successor The amended charge named Respondent Miller Trucking Service Inc and Miller Trucking Service Inc a subsidiary of Tulsa Crude Oil Purchasing Company as the employer MILLER TRUCKING SERVICE, INC 561 from July 1, 1966, through June 1967, received $59,872 for transporting crude oil for Derby Refinery Company Beardslee also testified that Derby Refinery purchased approximately $12,000 worth of crude oil a day from outside the State of Kansas and that its wholesale sale of gasoline outside the State of Kansas in any given year exceeded $50,000 I find on the basis of the entire record, including the stipulations of the parties and Miller's and Beardslee's credited testimony, that Respondent Miller, before its stock was sold to Respondent Tulsa, was an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act S Beardslee also testified that since the sale of stock to Tulsa Crude Oil Purchasing Company, Tulsa s subsidiary, Respondent Tulsa, has continued to perform approximately $5,000 worth of transportation services per month for Derby Refinery I find that Respondent Tulsa is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act ' II THE LABOR ORGANIZATION INVOLVED that he would send him union authorization cards and that when Mader had secured the employees' signatures to them and returned them to him, he would meet with the employees and discuss "bargaining" with them When Glenn sent the union cards to Mader as promised, Mader signed one and distributed the rest to the other employees By May 13, eight employees had signed authorization cards, some in Mader's presence, and Mader mailed them to Glenn On May 15 or 16, Glenn telephoned Mader and arranged to meet with the employees in Hays on May 18 Seven of the eight card signers were present at the May 18 meeting Glenn discussed the benefits that the employees might hope to obtain if they were organized, and it was agreed that he would write a letter to Miller advising him that the Union represented his employees On May 19, 1967, Glenn dispatched a letter to Hilary Miller, president of Respondent Miller, advising him that the Union represented a majority of his truckdrivers and mechanics "for the purpose of collective bargaining" and noting that he was "ready to meet" with Miller at his convenience It was stipulated that the letter was received on May 20, and Miller testified that he did not answer it Truck Drivers and Helpers Local Union No 696, affiliated with International Brotherhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, herein called the Union, is a labor organization within the meaning of Section 2 (5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Basic Findings 1 The employees organize and sign union authorization cards In April, May, and June, 1967, when all of the important events in this case took place, Respondent Miller employed nine drivers and a mechanic Five of the drivers were stationed at the Hays terminal, two others and a mechanic at La Crosse and the remaining drivers were domiciled at Sublette In late April or early May, according to Duane Mader, a truckdriver, whose testimony I credit, he and the other drivers at Hays discussed among themselves the desirability of joining a union and agreed that it was a good idea The men at La Crosse and Sublette were soon made aware of the proposal, and it was decided that they should get in touch with a local of the Teamsters Union After some delay caused by difficulty in finding the right local union, Mader finally reached J J Glenn, business agent of the Union, by telephone in Topeka, Kansas, and explained what the employees wanted Glenn told Mader iH P 0 Services Inc 122 NLRB 394 The fact that Derby Refinery deducts from the price it pays producers the cost of transportation or any other private understanding between the producers and Derby cannot overcome the facts that Derby made the arrangements with Miller and paid Miller to transport the products for it I reject Respondents argument therefore that the record does not show that Respondent Miller performs services in excess of $50 000 for an enterprise over which the Board would assert jurisdiction 'Beardslee is in charge of purchasing for Derby Refinery but he said he also had general knowledge about Derby s sales Contrary to Respondent s position Beardslee was sufficiently competent to testify about Derby s interstate operations The Trial Examiner also indicated to counsel for Respondent that the testimony would be accepted subject to cross-examination and that if necessary the hearing could be moved to Tulsa to examine Derby Refinery Company s records 2 Miller receives the Union's demand for bargaining and questions some employees about it Miller conceded that as soon as he got the Union's letter notifying him that it represented a majority of the employees, he took it into the shop where he found four employees, and read it to them He then asked, "Does anybody know anything about this " Since no one replied, he asked if anyone had signed a union card, and Harley Rodgers, a driver, replied, "We signed some cards " This was the end of the incident, according to Miller, for he said no more, and returned to his office Harley Rodgers, an employee who testified about Miller's interrogation on May 20, agreed in essence with Miller's version He did add, however, that when Miller asked him if he knew anything about the Union s letter, he told him that he had been to a union meeting I find that Respondent Miller, on May 20, 1967, interrogated employees about their union activities as alleged in the complaint The complaint also alleges that Miller interrogated another employee on May 22 about his union activities, but Miller denied it Employee Herbert Wagner, still employed by Respondent Tulsa, testified that when he was in Hays, Kansas, on a trip from his Sublette base he sometimes stayed at Miller's home He said that on one of these occasions Miller asked him if he knew anything about "the deal" Wagner denied that Miller used the word "union" in describing the "deal," but he said he knew that Miller meant the "Union" and he told him he had been "contacted" Wagner was clearly a reluctant witness, but I find it unnecessary to resolve the minor issue about the use of a particular word, and I find, contrary to Miller's denial, that he also interrogated Wagner about the union activity which was occurring 3 Miller's threat to deprive Mader of his vacation pay because of his union activities Mader took 3 days off from work with permission in May 1967, and was paid for it According to him, the 3 days were part of his earned vacation Mader was again absent from work for 3 days in early June 1967 with 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Miller's permission and he again made a claim for vacation pay, but this time did not receive it Mader testified without contradiction that he asked Mrs Miller, who kept the Company's books and was in charge of the payroll, about the failure to pay him for what he thought was due him for the last 3 days of his vacation, but Mrs Miller suggested that he see Mr Miller According to Mader, he saw Miller on June 14 or 15 with Mrs Miller present He testified that Miller told him that he "would not get paid for (his) vacation until this whole thing is settled " Mader asked Miller what he meant, and Miller said that Mader knew what he meant, and added that "If you guys want the God damn union to run you and tell you what to do, it looks like they are going to write your paychecks" Miller's version of the conversation with Mader about vacation pay differed from Mader's He agreed that he had given Mader permission to take 3 days leave in June and that Mader made a written claim for vacation pay He said, however, that when he saw Mader he said nothing to him about the Union, but merely explained that Mader had no vacation pay due him until after the anniversary date of his employment with the Company, which was July 31 There was a considerable amount of testimony about what the Respondent's vacation policy actually was Miller's position was that employees are entitled to I week's leave until they complete 5 years of service, at which time they are entitled to 2, but he insisted that leave is not earned on an annual basis until the employee has each year reached the anniversary date of his hire Since Mader had been hired on July 31, he claimed that although he was entitled to vacation pay in 1967, he could not receive it until after July 31 of that year Mader, however, identified company records, which are in evidence, which indicate that he received vacation pay in past years during the summer months but before his anniversary arrived Miller suggested, but offered no concrete examples, that employees may save their vacations for many months, implying that this is what may have happened in Mader's case He also claimed that he was not aware until the hearing in this case that Mrs Miller had paid Mader vacation pay for 3 days not worked in May Mrs Miller was not called as a witness The only importance Respondent's actual vacation policy has in regard to the alleged threat is its possible bearing on the credibility of the participants in the discussion I find it unnecessary to completely resolve that question, because as confused as Mader occasionally appeared, I am inclined to accept his version of what he understood the policy was and how it was applied, for he impressed me as honest, if somewhat uncertain I thought, on the other hand, that Miller's account of his conversation with Mader was lame and unimpressive, not consistent with past practice and not logically acceptable, particularly in the absence of some explanation from Mrs Miller I find, in accord with Mader's testimony, that during a discussion of his claim for vacation pay, Miller told him that he would not be paid, and attributed the loss to the employees' union activities 4 Miller sells all stock in Respondent Miller to Respondent Tulsa, terminates all employees, and retires from the transporation business Respondent Miller terminated all employees on June 17, 1967 Miller testified that his health was not up to par" and his doctor had advised him to reduce his activities Following this suggestion from his doctor in March 1966, Miller passed the word to selected people that he might sell his business Until May 1967, any conversations Miller had about selling were general and uncertain, but he said that he did speak with a representative of Tulsa Crude Oil Purchasing Company in late 1966 about the possibility Miller said he also received inquiries from Rock Island and Jayhawk Transportation but these occurred after he started negotiating with Tulsa Crude Oil on May 24 He did state, however, without contradiction, that he got a "feeler" from a representative of National Cooperative Refinery Association during the first part of May and spoke with their manager at McPherson, Kansas, on or about May 12, about a sale As noted above, Miller received the Union's claim to represent his employees on May 20 On May 24, negotiations with Tulsa Crude Oil began in earnest Miller said that on May 24 he was telephoned by Holsinger, of Tulsa, who asked him directly if the business was for sale, and he said it was Holsinger said he would call back, and he apparently spoke with Wier, president of Tulsa, for Wier telephoned Miller shortly thereafter and made arrangements for a meeting later in the day Miller met with Wier and other representatives of Tulsa Crude Oil on the afternoon of May 24 to discuss the details of the proposed sale During the course of the discussions, Wier asked Miller if his company "had a labor union " Miller told him it did not, but said he had received a letter from the Union which he showed to Wier According to Miller, there was no discussion of the Union's written claim to representation except that Wier asked him what he was doing about it, and he replied that he was retaining counsel On May 22, 1967, the Union filed a Petition for Certification of Representatives with the Regional Office of the Board covering Respondent Miller's drivers and mechanic, and, on May 31, the Regional Director notified the Company of a hearing on the petition On or about June 1, Miller and representatives of Tulsa Crude Oil met again on the sale and at this meeting Miller gave Tulsa's representatives the Union's petition for certification of representatives, a copy of which had been forwarded to him with the notice of hearing He said Tulsa's representatives made no comment about the petition other than to ask him if he had retained counsel yet, and he told them that he had At least one more meeting of the parties took place before the details and mechanics of the sale were settled It is not clear at which meeting it occurred, but there was discussion at one of the meetings about what would happen to Respondent Miller's employees when the transfer of operations took place Miller said it was understood during the negotiations that his employees would be required to apply to Respondent Tulsa for employment and take an examination before being hired Miller thought that although the tenure of his employees was discussed during negotiations and agreed on, the understanding was not reduced to writing, but his counsel stated at the hearing that the sales agreement as finally drawn contained a clause that "buyers shall be under no obligation to retain or continue in employment the present employees of the corporation In this regard, stockholders shall cause the corporation to notify, and that all employees shall be notified (of their termination), as of the closing date " Counsel also stated that the sales agreement provided that "Stockholders agree to 'These words do not appear in the transcript but their inclusion is in consonance with the rest of the statement MILLER TRUCKING SERVICE, INC. 563 personally bear and pay any vacation benefits, sick leave or any termination benefits due the present employees of the corporation upon such termination of their employment." On July 17, 1967, Miller notified all employees by letter which he personally handed to them that "the owners of Miller Trucking Service, Inc. have sold all of their interest and authority to an Oklahoma corporation" and "accordingly, your services will no longer be needed ending today, Saturday, June 17, 1967." It appears that Miller owned all but a few shares of stock in Respondent Miller. He acquired those that were outstanding and assigned all stock, including a few shares owned by his wife, to the purchaser. The purchaser, Respondent Tulsa, began operations on the following Monday, June 19. Miller no longer has any connection with Miller Trucking Service, Inc.' After Respondent Miller terminated its employees on June 17 they were introduced to representatives of Respondent Tulsa who were on the premises. The employees filled out job applications, took written examinations, and the drivers were given a road test. Respondent Tulsa did not (tire Mader, Gottschalk, Robert Rodgers and Harley Rodgers. Respondent Miller's termination of all employees and Respondent Tulsa's failure to hire the four named individuals are alleged as violations of Section 8(a)(3) of the Act.' Some of the employee witnesses described their terminations and attempts at employment with Respondent Tulsa. Truckdriver Harley Rodgers, who had worked for Respondent Miller for many years, testified that when Miller handed him his notice of termination of June 17 he said, "Harley, this is the way its got to be. I cannot buck the union wages."' Miller then told Rodgers that there were two men from "the Oklahoma corporation" at the terminal who would take his employment application. Rodgers and his brother Robert were introduced to the Tulsa representatives by Amos, another employee of Miller who appears to have done some office work, including dispatching of drivers, and the Rodgers were given employment applications. On the following Monday, they returned the applications, took a written test and a driving test, but were advised later that day by Respondent Tulsa's representative that their applications had been rejected. Truckdriver Kippes stated that Miller commented that "this is it, this is the only way out" when he gave him his notice. General Counsel pleaded surprise, and offered an affidavit Kippes had given a Board representative on July 'The corporation known as Miller Trucking Service, Inc. has not been dissolved. 'The complaint describes "the Respondent" as Miller Trucking Service, Inc., and/or Miller Trucking Service , Inc., a subsidiary of the Tulsa Crude Oil Purchasing Company, and it alleges that the Respondent violated Sections 8(axl), (3) and (5) of the Act. It is General Counsel's first and basic position that Miller's sale of stock did not destroy the corporate entity known as "Miller Trucking Service , Inc.," and , this being so, there is only one Respondent involved which never went out of business. These contentions, and the identity of the "employer" or "employers" involved and their separate or joint liabilities for having committed or remedying any unfair labor practices, will be treated fully later. My identification of Respondent Miller as the employer which terminated employees and Respondent Tulsa as the employer which did not hire certain employees is, at this point, only for the purpose of hoped for clarity in setting forth the facts and chronology. 'Whether Miller said it was "the union" or "union wages" which he couldn't buck is unimportant for the thrust is the same, and I credit Harley Rodgers' testimony, for he impressed me as a careful, honest witness, that Miller did mention the Union in his parting statement. 11, 1967, in which he stated that Miller said "something about this was the only way out, he couldn't buck them all his competitors and drivers." During the rest of his examination , however, Kippes insisted that all that Miller said at the time was what he had testified to. He did not say that he could not recall what Miller had said, and so I reject the affidavit as past recollection recorded.' Kippes was hired after taking a written examination and a road test. He still gets his instructions from Amos, and he said that operations are "just like it was before," "that there was no change from company to company," but he noted that the Hays terminal has been closed and the former Hays employees are now employed at La Crosse. Mader testified that the only comment Miller made when he handed him his termination notice was "Boys, I've sold out." Mader was interviewed by Tulsa's representatives and also took the examinations, but he was not hired. When he inquired about his status, he was told that he and three others had not been taken on, and in his case it was because he had received too many tickets for speeding. Mader said Gottschalk, who was with him at the time, was informed that he had been rejected because he had worked for too many employers during the last year. Nothing was said about the Union to either of them. 5. Alleged violation of Section 8(aX5) of the Act; the demand; refusal; appropriate unit and the Union's majority As already found, Respondent Miller received the Union's letter in which it claimed to represent the drivers and the mechanic on May 20, and he never replied to it. The complaint alleges that "All truck drivers and mechanics employed by Miller Trucking Service, Inc., and/or Miller Trucking Service, Inc., a subsidiary of Tulsa Crude Oil Purchasing Company, at its Hays and/or La Crosse, Kansas, facilities, excluding clerical employees and supervisors as defined in the Act" constitutes an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b), and I so find for the following reasons: At the time of the demand for recognition, Respondent Miller had two terminals, one at Hays and the other at La Crosse, Kansas. Five employees were stationed at Hays, three at La Crosse and two lived in Sublette, Kansas, but got their instructions from Hays. All of the drivers do essentially the same kind of work, transporting the same kinds of products and, although stationed at one location, they frequently make pickups and deliveries in the area normally serviced by another terminal. All of the drivers regardless of location get instructions from the same persons. All drivers are paid on the same basis and receive the same fringe benefits . Both terminals were administered from Hays. Equipment was repaired at either terminal. The similarity of functions, skills, wages and working conditions described make it evident that the employees in the unit sought have a substantial mutuality of interests and may be appropriately grouped in a single unit.' There were 10 employees in the appropriate unit on May 20, 1967, the day that Miller received the Union's 'It should be noted, however, that Kippes was a very reluctant witness, and I have no hesitancy in fording that what he told the Board investigator was what he recalled at that time. 'M. F A Oil Company and M F A Petroleum Company of Columbia. Missouri. 162 NLRB No. 102. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD demand for recognition ,10 and 8 of them had previously signed union authorization cards which clearly designated the Union as the employees' representative for collective bargaining." Respondent attacks the cards on various grounds, however, claiming that they are not valid designations of the Union. Some of the employees were not called to identify their signatures, for example, and their cards were identified by others. Harley Rodgers identified his brother's card as well as his own, and Mader identified his own and employee Gottschalk's. In each case, however, the witness was present when the employee's signature was affixed, and this is an acceptable method of authenticating authorization cards or other instruments. ' 2 I also find, contrary to Respondents contention, that the record establishes that the employees' intended to designate the Union as their representative for collective bargaining when they signed the cards and that there is no evidence of any substance that their signatures were obtained by fraud, deceit or misrepresentation. In the first place, the cards, as already noted, speak clearly for themselves. Second, although there is some evidence that some employees were told that signing the cards was for their "protection" against discharge , and in one case an employee testified that he merely "glanced" at the card before he signed it and did not "to his knowledge" authorize the Union to represent him, there is substantial evidence that individually and as a group the employees knew that they were authorizing the Union to represent them and to seek a meeting with Respondent for the purpose of collective bargaining. Mader testified credibly, for example, that he contacted the Union and secured the cards because the employees had discussed unionization for their betterment among themselves. After Mader got the cards, he distributed them as instructed by the Union's business agent, and he told the employees that signing a card was for their "protection" and for bargaining too. Third, a union meeting was held on May 18, 1967, after the cards were signed, at which the Union's representative discussed possible improvements in wages, hours and working conditions, and advised the employees that he would write the Company claiming to represent the employees. This action, of course, is clearly consistent with the clear purpose of the card itself." Finally, even those employees who testified and indicated that they had something other than collective bargaining in mind when they signed a card, actually knew what they were doing and intended to designate the Union. Scheiderman explained the need for "protection" in the context of employees "talking about the union," "There is nothing unclear about the scope of the unit in the Union's demand , as Respondent suggests in its brief, for the letter stated that the Union represented a majority of Respondent' s "truck drivers and mechanics" without reference to a particular terminal or location. "The card states in bold type at its very beginning that it is an "Authorization for Collective Bargaining Representative," and that grant of authority is never qualified elsewhere in the card. "N.L R B v. Merrill. d/b/a Merrill Axe! and Wheel Service. 414 F.2d 1323 (C.A. 10) "Even if some employees were told that the card was for job "protection" and were told nothing else , this is not, in my view, inconsistent with the overriding purpose stated in the cards, and is not, in any event, the kind of representation that invalidates a card . See N L R B v. Hamburg Shirt Corporation. 371 F 2d 740, 745 (C.A.D.C ), Dayco Corporation v. N L.R B. 382 F.2d 577, 582 (C.A. 6); Jov Silk Mills, Inc. v NLRB B. 185 F.2d 732, 743 (C A.D C ). CJ NLRB v. Gotham Shoe Mfg Co. 359 F 2d 684 (C.A 2). and he conceded that he intended to "go along" with the rest of the employees "who wanted the union" and that this had something to do with his signing a card. He also heard Glenn, the Union's business representative, tell the employees that he would write a letter to Respondent and claim to represent the drivers. In Urban's case, he agreed that he read the card before he signed it, and he said that although Mader told him that the card meant "protection" and did not mention "bargaining" at all, Mader's remarks had no bearing on his motives for signing the authorization. Employee Kippes said he did not read the card before he signed it, but I do not credit him because he solicited other employees and must have been aware of the legend on the card. He also attended the meeting which Glenn addressed, and he remembered Glenn telling the assembled employees that Miller "would have a letter in the mail" informing him that "the employees wanted to bargain." Employee Wagner said that Mader told him that the "main" reason for signing a card, was to "protect" the employees in case "word of this game out, this union." He also conceded that he read thesard. 11 I find that all cards in evidence are valid designations of the Union and that the Union represented a majority of employees in an appropriate unit when it claimed majority status and asked to meet with Respondent Miller." B. Analysis, Additional Findings, and Concluding Findings 1. Introduction to the problem The above findings have been made without particularly underscoring Hilary Miller's sale of all of his company's stock to Tulsa Crude Oil Purchasing Company and his retirement from the transportation business and from the company he formerly headed. These factors, it seems to me however, are crucial. This is not the now conventional, albeit frequently difficult, case of an employer who refuses to recognize a union on the basis of authorization cards and whose good faith must be partially tested in the light of any unfair labor practices he committed. The remedy in such a case is hard enough to fashion; but the employer may be ordered to bargain without an election or certification on the resolution of the issues of whether he made a fair' election impossible by his unfair labor practices or rejected the Union's demand without an adequate basis in fact. This is a case where the Employer's identity has disappeared or changed radically. The glaring reality of this change cannot be dimmed out, in viewing the conduct and determining the liabilities of the parties, or party Respondent, by routinely invoking the "employing industry" concept while emphasizing Miller' s sale of stock and not assets as his method of going out of business . This is true despite the superficial appeal of General Counsel's contention that since Miller sold only his stock, the corporation never died, and, qua corporation, must expiate any unfair labor practices "It was evident to me at the hearing that Wagner and other employees like Kippes were reluctant witnesses who were having second thoughts about their reasons for signing union authorization cards "This is not the kind of a case where employees were told , or where the effect of the statements made to them amounted to a representation, that the only reason for the card was to obtain an election or for something other than the card purported to authorize Cf. N L R B v Crawford MJg Co. 386 F 2d 367 (C. A. 4), N L R B v S E Nichols Company et a!. 380 F 2d 438 , 444-45 (C.A 2) MILLER TRUCKING SERVICE, INC. 565 committed during its corporate life.16 2. Interrogation of employees As found earlier, on May 20, 1967, as soon as he got the Union's letter in which it claimed that it represented a majority of Respondent's employees, Miller read it to a group of employees and asked if they knew anything about the claim. No one replied, and Miller then asked if anyone had signed a union card. Harley Rodgers answered that some of the employees had attended a union meeting and signed union cards . I have also found that on May 22 Miller asked another employee what he knew about the "deal," meaning the Union's claim. It does not appear that Miller was aware at this time that the Union had filed a petition for an election with the Board, and since he had just gotten the Union's letter claiming majority status, it seems that his inquiries served a legitimate purpose and satisfied one of the standards, laid down by and explicated by the Board in recent cases, which must be present as a minimum , absent unusual circumstances, before interrogation or polls will be held permissible." However, the Board's revised criteria also require that an employer's purpose to determine the truth of a union' s claim must be communicated to the employees questioned, but even assuming that an expression of that purpose was unnecessary here because Miller's reason might have appeared obvious, nevertheless the poll fell short of the standards which must be met because no assurances against reprisals were given and the poll was not by secret ballot. By interrogating employees as found, Respondent Miller violated Section 8(a)(1) of the Act. 3. The threat to deprive Mader of vacation pay in violation of Section 8 (a)(1) of the Act I have found that, during a dispute over Respondent's failure to pay Mader 3 days vacation pay, Miller told him that he would not receive his vacation pay "until this whole thing is settled ," and added that the employees could look to the Union for payment of their wages. When these remarks were made on June 14 or 15, Miller had practically completed negotiations for the sale of all of Respondent Miller's stock , and a few days later all employees were terminated as required by the sales agreement . In this context , Miller's statement that Mader would not get his vacation pay "until this whole thing is settled" could have referred to the sale , but the remark remains unclear and unexplained , for Miller denied that he made it at all. But in any case , regardless of what Miller had in mind , by connecting the withholding of Mader's vacation pay with union activities , and indicating at the same time that employees might have to look to the Union for their wages in the future , Respondent Miller threatened Mader with a reprisal because of his union activity as alleged in the complaint . By such coercive conduct, Respondent Miller violated Section 8(a)(1) of the Act. 4. The discharge of all employees on June 17, 1967, allegedly in violation of Section 8 (a)(3) of the Act retiring from business because of his health and had had some inquiries from possible purchasers before he received the Union's demand for recognition, he conceded, and it is clear, that he gave his first clear signal that his company was on the market to Tulsa Crude Oil Purchasing Company on May 24 when he told their representatives that he would sell and began serious negotiations only a few hours thereafter. This, of course, was but a few days after he got the Union's letter and a day or so after he had learned that the employees had signed union cards. It is also a fact that when Miller handed Harley Rodgers his last paycheck on June 17 he said it had to be "that way" because he couldn't "buck the union wages." I have no hesitancy therefore in finding on the basis of the whole record, including the timing of the sale and Miller's admission to Rodgers, that Miller was partially motivated in selling out by the fact that his employees had organized themselves. It follows from this that the discharge of all employees, even though pursuant to the sales agreement with the purchaser, is a direct consequence of Miller's sale of all the corporation's stock and, if the sale was illegal, the terminations were equally a violation of the Act. When a business is closed, sold or transferred in a labor relations context the decisions of the Supreme Court in N.L.R B v. Darlington Mfg. Co.," and John Wiley & Sons, Inc. v. Livingston et al," must be initially considered for their impact on the rights of the parties involved. In my judgment, as far as Respondent Miller is concerned, the principles stated in Darlington govern here, and I find that when Miller, president of Respondent Miller, sold all of the corporate stock to Respondent Tulsa, terminated his employees and retired from the transportation business completely, neither he nor the corporation which he headed committed any unfair labor practices, regardless of Miller's motivation or the stock purchaser's continued operation of Miller Trucking Service, Inc., as its wholly owned subsidiary. In Darlington, the Court held that "when an employer closes his entire business, even if the liquidation is motivated by vindictiveness toward the union, such action is not an unfair labor practice."" It is true, as General Counsel points out, that Darlington involved a "going out of business" situation and that here there was a sale of stock and the corporation headed by Miller has not dissolved, but I consider these factors irrelevant. In Darlington, the Court said that, "A proposition that a single business man cannot choose to go out of business if he wants to would represent such a startling innovation that it should not be entertained without the clearest manifestation of legislative intent or unequivocal judicial precedent so construing the Labor Act. We find neither." 31 That it is the real change in ownership that is controlling, and not the particular from or method by which the change is effected, is evident from the language in other cases which the Court cited. In Southport Petroleum Co. v. N.L.R.B, 315 U.S. 100, 106, for example, the Court stated that "Whether there was a bona fide discontinuance and a true change of ownership which would terminate the duty of reinstatement created by the Board's order or merely a disguised continuance of Although Miller testified that he had contemplated " Excepto the extent of amnesty granted in Section 10(b) of the Act 380 U.S. 263 "Strukcnes Construction Co., Inc,. 165 NLRB No. 102 , Leonard "373 U S 543 Fontana, et at, d/b/a Fontana Bros ., 169 NLRB No. 56. Cohen Bros "Supra at 273, 274. Fruit Company, 166 NLRB No. 2. "Supra at 270. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the old employer, does not clearly appear." And in N.L.R.B. v. New Madrid Mfg. Co., 215 F. 2d 908, 914 (C.A. 8), which the Supreme Court cited with approval, the court said: But none of this can be taken to mean that an employer does not have the absolute right, at all times, to permanently close and go out of business, or to actually dispose of his business to another, for whatever reason he may choose , whether union animosity or anything else, and without his thereby being left subject to a remedial liability under the Labor Management Relations Act for such unfair labor practices as he may have committed in the enterprise, except to the time that such actual and permanent closing or true and bona-fide change in ownership has occurred. [Emphasis supplied.] Miller operated his business as a sole proprietorship for many years until it was incorporated in 1964. He owned all the stock , except a few shares which his wife held, and he ran the business and his wife kept the books. If Miller had not incorporated, and had later sold his business assets, there would be no question that the entity which he owned and managed was out of business . If Miller as the sole stockholder had voted to distribute the corporation's assets as a dividend to stockholders and had then disposed of the assets, the application of Darlington would be evident. 33 In my opinion, Hilary Miller was Miller Trucking Service , Inc. and the corporation was Miller, and the corporate fiction cannot disguise the fact that by the sale of atovk Miller "disposed of his business to another" and A *'true and bona-fide change in ownership" occurred. 22 Logic supports the view that the Darlington rule applies when the sole owner and operator of a corporation sells the stock to another, instead of selling the assets and dissolving the corporation , and severs all connection with the corporation which issued the stock. General Counsel contends that here we do not have a "going out of business" situation, but I have noted that in New Madrid Mfg. Co., the principal case cited by the Supreme Court, the "employing industry" was not liquidated, but "To my knowledge there are no cases in which the Board was faced directly with the problem of the sale of all stock as a means of divesting an individual or a group of ownership in the kind of a fact situation we have here. In determining whether to impose liability on a "successor ," which is not the same, of course, as deciding the responsibility of the owners of the "predecessor," the various techniques by which a business may be acquired do not seem to make any difference in the result , and this may be some guide to us here. See Burlington Roadbudders . Inc, 149 NLRB 791, where the seller first offered to sell stock but then used the asset distribution method; Stnko Manufacturing and Tool Company, 154 NLRB 1474, where liability was imposed on the purchaser of the predecessor's stock, but it also appeared that the corporation was subsequently dissolved. In Vaileydale Packers. Inc. 162 NLRB No. 139, the transfer was effected by a lease . Cases like Dixie Highway Express, inc., 153 NLRB 1224, and Dunkirk Broadcasting Corporation . 120 NLRB 1588, which contain broad dicta that "change in stock ownership alone did not work a change in corporate identity" (Dunkirk. at 1389), are of little help because they did not involve the issue of the seller 's liability in the context we have here, but involved primarily the effectiveness of a bargaining order where the business remained fundamentally the same . In a sense, these are basically "successor" type cases whose scope have not yet been determined in the light of the Darlington holding or the Board 's decision in Perma Vinyl Corporation , 164 NLRB No. 119. "N.L R B. v. New Madrid Mfg Co., supra at 914. It is not unusual for the Board to disregard the corporate entity and look to the real owner to effectuate the policies of the Act See Ogle Protection Service. Inc and James Ogle, 149 NLRB 545. continued as a going business, but more important, in Darlington , the proposition that a single business man could not go out of business if he wished was labeled a "startling innovation" by the Court. This broad and positive language and the holding of the Court would have little practical meaning if in order to come within its ambit an employer must dismantle his business instead of disposing of it as a going concern with its valuable good will. It is true that the Court noted in Darlington that since the Darlington property and equipment could not be sold as a unit and were eventually auctioned off piecemeal, the Court was not confronted with "the sale of a going concern, which might present different considerations under Section 8(a)(3) and 8(a)(5)."24 However the cases the Court cited indicate that it had in mind the liability of the purchaser of a going business and was not suggesting a limitation on the immunity of the seller dependent on his method of disposing of his investment." An employer who goes out of business in whole or in part is responsible for any unfair labor practices committed before the decision to terminate was made. 16 Respondent Miller's final decision to sell its stock and thereby transfer its assets to Respondent Tulsa was made not later than May 24 and its ultimate termination of all employees was an integral part of its decision and sale. If, as I have found , Respondent Miller had the right under the law to eliminate itself as an employer through the technique it chose, then its discharge of its employees as part of the transaction was not illegal. I find and conclude that Respondent Miller did not violate Section 8(a)(3) of the Act as alleged in the complaint." 5. Respondent Miller's refusal to bargain with the Union The heart of this case is the discharge of Miller's employees and it effects every other issue in the case. If Miller had not sold his business and terminated the employees but had nevertheless ignored the Union's demand for recognition and awaited the processing of the petition for an election it filed with the Board, it would have been difficult enough to have found that the General Counsel had sustained his burden of proving that the refusal was in bad faith, for the unfair labor practices Miller committed were not so flagrant that they carried the day for the General Counsel on the issue or justified a bargaining order on the ground that Miller had made a "Darlington, supra. fn 14, at 271. "John Wiley d Sons, Inc v. Livingston , 376 U.S. 543, N L.R.B. v. Deena Artware , Inc. 361 U.S. 398. Wiley was a Section 301 action under the Act, where the Court held that arbitration may be compelled .Wtder a labor agreement against one who is regarded as a successor to the agreement. Deena Artware dealt in part with the question of whether separate corporations were in fact separate or merely divisions or departments of a "single enterprise" and so liable for the obligations of each other. There is no contention here that Tulsa Crude Oil Purchasing Company's wholly owned subsidiary is a "disguised continuance" or an alter ego of Miller Trucking Service, Inc., but rather, as stated, that there has been no legally sign ificant change in the employer at all because the corporation still exists under the laws of Kansas and only its stock changed hands. "Darlington, supra at 271 ; A C Rochat Company, 163 NLRB No. 49; Makela Welding, Inc and Kemp Welding, Inc, v. N.L R B., 387 F.2d 40 (C.A. 6). "See Motor Repair. Inc. 168 NLRB No. 148, where no violation was found with respect to employees discharged by virtue of the closing, but a remedy was ordered for an employee whose discharge "was unrelated to the closing." MILLER TRUCKING SERVICE, INC. 567 fair election possible. 18 But since I see Miller as out of business and his termination of employees as legitimate as his withdrawal, finding an illegal refusal in the context is less warranted. Here again the ' logic of the Court's opinion in Darlington persuades me that there is no duty to bargain about a decision to go out of business completely. Not only did the Court broadly state that . when an employer closes his entire business, even if the liquidation is motivated by vindictiveness towards the Union, such action is not an unfair labor practice,"" but the imposition of such a duty with its attendant sanctions if the obligation is not fulfilled would here too appear incongruous in the context of the Court's description of the suggestion that an employer cannot go out of business without statutory liability as a " startling innovation." But the Board has reserved decision on this issue.]" In my opinion, and without reference to what the Board might do in a different situation, I find that, in the circumstances existing here, Respondent Miller did not violate Section 8(a)(5) of the Act by failing to respond to the Union's request for a meeting but proceeding to negotiate a sale of the Company instead. The Union was not an established representative . Miller's decision to sell was almost contemporaneous with the Union's claim, and the claim was shortly followed by the Union's filing of a representation petition and the Board's notification of hearing on it. Although certification is not the only method by which a union may establish itself as a bargaining representative and so the representation proceeding is not controlling," Miller Trucking Service, Inc., notified the Board by wire while the proceeding was pending that the Company had sold its interests to Respondent Tulsa. Thereafter, the Regional Director postponed the hearing on the representation matter until June 29, 1967, and thereafter postponed it indefinitely after the charge was filed. No charge was filed until June 22, and by the time the representation case was postponed, Miller was out of business, and Respondent Tulsa had commenced operations. In this context, Respondent Miller might reasonably have awaited the outcome of the representation proceeding as it did, provided it committed no other unfair labor practices. I have found that it did not. Perhaps paradoxically, Miller's failure to grant the Union statutory recognition was not motivated by a desire to gain time in which to undermine the Union, but to gain time in which to go out of business, thereby destroying the Union, but this is what "See Hammond & Irving. Incorporated. 154 NLRB 1071; N L.R.B v. Flomatic Corporation, 347 F.2d 74 (C.A. 2), Aaron Brothers Company of California. 158 NLRB 1077; John P. Serpa. Inc.. 155 NLRB 99. "Supra at 274. "In Royal Plating and Polishing Co. Inc.. 152 NLRB 619, 621, and in Ozark Trailers, Incorporated, 161 NLRB No. 48, the Board noted that since the cases involved only a partial closing of a business, it was not faced with the question of whether a decision to go out of business completely is a mandatory subject of bargaining, and it therefore need not consider the effect of the Court's decision in Darlington. In Motor Repair, Inc. 168 NLRB No. 148, however, the Board held a permanent closing of even a part of an employer 's business was not a violation of Section 8(a)(3) and (5) of the Act because, as required by Darlington . the evidence did not preponderate in favor of a finding that, in closing part of the business the employer was motivated by a desire to chill unionism in other divisions. This holding would have indicated to me that the Board would go the same way in a complete closing case , but, in fn . 4 of the slip opinion , it noted that since the General Counsel had not excepted to the failure of the Trial Examiner to pass on the allegation that Respondent violated Section 8(a)(5) by unilaterally ceasing operations , the Board had not addressed itself to that issue. Darlington says he may do. C. Respondent Tulsa's Alleged Unfair Labor Practices or Responsibility for Remedying Respondent Miller's Respondent Miller having terminated all employees on June 17, Respondent Tulsa accepted applications from them and hired six of the unit employees. Respondent Tulsa began operations on June 19, and it appears to have operated in essentially the same fashion as did Respondent Miller, using the same equipment and servicing the same customers. The complaint alleges that Respondent Miller and/or Respondent Tulsa is the Respondent and that the Respondent violated Section 8(a)(l), (3), and (5) of the Act. As has been repeatedly emphasized earlier, General Counsel contends that there was no change in corporate identity, that the corporation still exists and that the corporation committed all the unfair labor practices. By this reasoning, he concludes that Respondent Tulsa committed the same unfair labor practices that Respondent Miller did by virtue of the same actions. Although General Counsel disavowed relying on any theory of "successorship," at least as such, he flatly stated that, in fixing liability on the purchaser (successor?), if it was a purchaser, he was relying on the Board's recent decision in Perma Vinyl Corporation,32 which actually is a "successor" type case.33 Since I have found that there was a real change in ownership, I turn to the treatment of Respondent Tulsa's liability on the basis of General Counsel's theory and the cases he cites. First of all, it must be noted that at the close of General Counsel's case-in-chief, I dismissed, on appropriate motion, all allegations that Respondent Tulsa, that is to say, Miller Trucking Service, Inc., a subsidiary of Tulsa Crude Oil Purchasing Company, committed any unfair labor practices, but I left said Respondent or Company in the complaint as a party Respondent for the purpose of considering its liability under Perma Vinyl for remedying the unfair labor practices, if any, committed by Respondent Miller before Respondent Tulsa took possession of the Company. I renew my ruling here, and my reasons for dismissal were simply these: On the assumption that Respondent Tulsa is an innocent purchaser for value, it could not have violated Section 8(a)(1) of the Act by interrogating employees on May 20, after Miller got the Union's demand, or by threatening Mader on June 14, because it had not come into existence and could not have participated in those unfair labor practices. Similarly, Respondent Miller, not Respondent Tulsa, discharged employees on June 17, and although the sales agreement provided that the employees be terminated, there is no evidence that this was intended to aid Respondent Tulsa in avoiding its responsibilities under the Act and there is likewise no evidence of any kind that Respondent Tulsa was motivated by antiunion "United Mine Workers v. Arkansas Oak Flooring Co, 351 U.S. 62, 71-72 "Perms Vinyl Corporation, Dade Plastics Co. and United States Piper and Foundry Company. 164 NLRB No. 119. "Consistent with the complaint' s identification of Miller Trucking Service, Inc., before and after sold his stock, as the Respondent, and General Counsel's reluctance to rely on the "successorship" theory, which is now very well established, the complaint does not allege that Miller Trucking Service, Inc., a subsidiary of Tulsa Crude Oil Purchasing Company, is a "successor ." See Geo. Wash. L. Rev Vol. 36, No. I (October 1967), at 215-223, U. Pitt L Rev, Vol. 29, No. 2 (December 1967), at 273-286. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considerations when it refused to hire four of Respondent Miller's former employees . Therefore Respondent Tulsa did not violate Section 8(aX3) of the Act as alleged. Respondent Tulsa did not violate Section 8 (aX5) of the Act, for, assuming that the unit is still the same and has not been substantially altered by the closing of the Hays terminal or the merger of it into any other division of Respondent Tulsa, the Union made no demand for bargaining ion Respondent Tulsa, and, in any case, there is no evidence that Respondent Tulsa's failure to reply to the letter that the Union sent Miller was in bad faith." In regard to the Perma Vinyl basis for imposing liability on Respondent Tulsa, since the case involves the question of the duty of one employer to remedy the "unfair labor practices of his predecessor by reinstating the discriminatees,"" the short and simple answer would appear to be that since Respondent Miller did not discriminate against employees or illegally refuse to bargain with the Union, there is nothing of substance left for Respondent Tulsa to remedy." Moreover, in considering Perma Vinyl, first it ought to be stated what the instant case is not so that the Perma Vinyl doctrine and the rationale of the courts and Board in other cases where there has been a change in ownership in the "employing industry"" may be better understood. This is not an alter ego case, or one where the new company is a disguised continuance of the old. Tulsa had no connection with the Miller corporation , and Miller, the individual and sole owner of Miller Trucking Service, has no connection with Respondent Tulsa.J" Neither is it a case where the new owners committed unfair labor practices on their own , participated in the unfair labor practices of their predecessor or took other actions to evade their responsibilities under the Act." In those situations the Board and courts have had no difficulty in requiring the "new" company to remedy its own unfair labor practices and acknowledge the status which the union had acquired in the "old" company or would have acquired in the "new" if no unfair labor practices had been committed. In Perma Vinyl, the Board found that : "U. S. Pipe acquired Perma Vinyl's business with knowledge of the unfair labor practice proceeding against that company. Upon consummation of the sale and transfer of assets to "Cf. C'hemrock Corp., 151 NLRB 1074; Overnlte Transportation Company, Inc., 157 NLRB 1185, 1189, enfd . 372 F.2d 765 (C.A. 4). "Perma Vinyl, supra "There would remain Miller's interrogation and threat under Section 8(a)(1) of the Act. "N L R B. v. Cotten, d/b/a Kiddie Kover Mfg Co.. '105 F.2d 179, 183 (C.A. 6). "See N L.R B v. New Madrid Mfg. Co. supra, N L.R B v. F G McFarland. 306 F.2d 219, 220 (C.A. l0); N.L.R B v. Deena Artware, Inc. supra. N.L R B v. Herman Brothers Pet Supply, Inc., 325 F.2d 68, 71 (C.A. 6k Intergraphic Corporation of America. 160 NLRB No. 100, N.L.R.B. v. Birdsall-Stockdale Motor Co, 208 F.2d 234 (C.A. 10). "The successor committed unfair labor practices in N L R B. v. Armato, 199 F.2d 800, 803-804 (C.A. 7), by refusing to bargain with the union and unilaterally granting wage increases, in New Madrid Mfg Co., supra, and in Makela Welding. Inc. and Kemp Welding, Inc. supra, the purchaser participated in the unfair labor practices committed by the predecessor; in Trt State Maintenance Corp. 167 NLRB No. 140, an employer refused to hire en nurse the employees of his predecessor , contrary to the practice in the industry, in an effort to avoid successorship status and the obligation to bargain with the certified representative of those employees . In Gibbs Shipyard. Inc v. N.L R B. 333 F.2d 459 (C A. 5), the "new" company was held for the unfair labor practices of the "old" even without reliance on the successorship doctrine because it was in practical control of the predecessor at the time the unfair labor practices were committed. it, U. S. Pipe continued to operate the former facilities of Perma Vinyl without substantial change. The operation was continued at the same location. Essentially the same personnel were employed and they worked under the direction and control of supervisors who had been on Perma Vinyl's payroll. Sorosky, president of Perma Vinyl, who had personally participated in that company's unlawful activity, became plant manager under U. S. Pipe. In that capacity, he made a speech to the employees in opposition to the Union." In requiring U. S. Pipe to remedy Perma Vinyl's unfair labor practices, the Board reversed Symns Grocer Co.,'" which holds that a bona fide purchaser with knowledge of unfair labor practices of its predecessor is not responsible for remedying the unfair labor practices, and, reevaluating its position in the light of Wiley," where the Court required a successor company to arbitrate grievances under its predecessor's contract, returned to its policy it had established in 1948 in Alexander Milburn Company!'. that the successor employer who acquired the business with knowledge of the existence of the unfair labor practice proceeding is responsible, jointly and severally with its predecessor, for remedying the unfair labor practices. In both Alexander Milburn and Perma Vinyl the successor knew of an unfair labor practice proceeding pending against the seller when it purchased the business. Indeed, in Perma Vinyl, the person who became plant manager of the successor participated in the predecessor's unfair labor practices as president of the company, and in Alexander Milburn, the successor unlawfully ignored the Union's request to bargain. The Board noted these factors and relied upon them in "balancing the equities" and attaching liability to the purchaser who as the "beneficiary of the unremedied unfair labor practices" acquires and operates a business as a "successor" with "notice of unfair labor practice charges against his predecessor."" When the transaction in this case which resulted in Respondent Tulsa performing the services and operations which Respondent Miller previously performed was completed there were no unfair labor practice charges pending against Respondent Miller. What was pending was a letter from the Union claiming to represent a majority of Miller's employees and a petition for certification and a notice of hearing on it from the Board. I find these circumstances obviously insufficient to charge Tulsa with notice of "unfair labor charges" which had not yet been filed," and I find nothing in the record to support a finding that Tulsa knew that Miller had committed or was committing any unfair labor practices. Knowledge is crucial in applying Perma Vinyl. I find that General Counsel has not established by a preponderance of the evidence that Respondent Tulsa is responsible for remedying any unfair labor practices that Respondent Miller may have committed." "109 NLRB 346. "John Wiley di Sons. Inc v. Livingston, et al, 376 U.S. 543, 549. "The Alexander Milburn Company. 78 NLRB 747. "The Alexander Milburn Company, supra at 749, Perma Vinyl, supra "Actually, in Perma Vinyl, a hearing on the charges before a Trial Examiner of the Board had been held and U . S. Pipe knew it before the sale of Perma Vinyl's assets and business was finalized by the closing agreement, and in Alexander Milburn, the Trial Examiner's decision had been issued before the purchase. "General Counsel, although disclaiming at the hearing , at least at times, reliance on the "successor theory," and although putting his case primarily on Perma Vinyl, cites Chemrock Corporation, 151 NLRB 1074, as dispositive of the question of Respondent Tulsa's liability. First, Chemrock MILLER TRUCKING SERVICE, INC. IV. THE REMEDY I have found that Respondent Miller violated Section 8 (a)(1) of the Act by interrogating employees about their union activities and threatening an employee with loss of vacation benefits because of union activities , but I have also found that Respondent Miller did not discriminate against employees in violation of Section 8(a)(3) of the Act by terminating them after he sold his stock to Respondent Miller, or violate Section 8(a)(5) of the Act by refusing to accord the Union recognition as requested. Respondent Miller is out of business , and I have found that Respondent Tulsa is not responsible for remedying any of Respondent Miller's unfair labor practices . In these circumstances, no remedy for the violation of Section 8(a)(1) of the Act seems practicable , and I will therefore recommend none. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: is a "successor" case and is frequently cited as such. Second , in that case, the purchaser hired the employees in one unit represented by a labor organization and dealt with it, but it refused employment to employees in another unit for unlawful reasons, which has not been established in this case . I find Chemroek not controlling. CONCLUSIONS OF LAW 569 1. Respondent Miller was, and Respondent Tulsa is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent Miller did not violate Section 8(a)(3) and (5) of the Act. 4. Respondent Tulsa did not violate Section 8(a)(1), (3) and (5) of the Act and is not responsible for remedying any unfair labor practices which Respondent Miller committed. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law , and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety.