Plastics Transport Inc.

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plastics Transport Inc. and Stafford Trucking Inc. and Local 330, General Chauffeurs, Salesdrivers and Helpers, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 38-CA-985 September 7, 1971 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On April 29, 1971, Trial Examiner Paul E. Well issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter the Respondents filed exceptions to the Trial Examiner's Decision and a brief in support thereof, and the General Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Trial Examiner and hereby orders that the Respondents, Plastics Transport Inc., Waterman, Illinois, and Stafford Trucking Inc., Portage, Wiscon- sin, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Order.3 I The Respondents' request for oral argument is denied, since, in our opinion, the record, including the transcript, exhibits, and exceptions and briefs, adequately presents the issues and the positions of the parties 2 In the exceptions the Respondents allege bias and prejudice on the part of the Trial Examiner Upon a careful analysis of the whole record, we find nothing to support Respondents' allegations Accordingly, they are rejected, as lacking in merit 3 Member Kennedy agrees with Member Fanning and Member Jenkins that Respondents violated Section 8(a)(I), (3), and (5) as found by the Trial Examiner With respect to the remedy, however, Member Kennedy would order the Respondents, in the alternative, to offer reinstatement to the discrimmatees by either reestablishing the terminal at Waterman , Illinois, or offering reinstatement to the discriminatees at its Portage, Wisconsin, terminal, together with paying their moving expenses. He would order the Respondents to make the discnminatees whole for any loss of pay suffered by paying each of them a sum of money equal to the amount he would have earned as wages from the date of his termination to the date he secures equivalent employment elsewhere or Respondents offer him reinstatement at either the Waterman or Portage terminal. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PAUL E. WEIL, Trial Examiner: On August 10, 1970, Local 330, General Chauffeurs, Salesdrivers and Helpers, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, hereinafter called the Charging Party, filed a charge with the Regional Director for Subregion 38 of the National Labor Relations Board, hereinafter called the Board, alleging that Plastics Transport Inc. and Stafford Trucking Inc., hereinafter called Respondent Plastic and Respondent Stafford or, jointly, Respondents, violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act by failing and refusing to bargain with the Union, by attempting to negotiate with the employees represented by the Union, and by threatening loss of employment. On October 5, 1970, the said Regional Director on behalf of the General Counsel of the Board issued a complaint and notice of hearing alleging that Respondents are affiliated businesses and constitute a single-integrated business enterprise, that Respondents violated Section 8(a)(1) of the Act by promising benefits, threatening reprisals, refusing to bargain with the Union as the collective-bargaining representative in an appropriate unit, negotiating with the employees in derogation of the Union's rights to negotiate, removing the equipment from one of Respondents' terminals, ceasing operations without bargaining with the Union, and by failing and refusing to reinstate, on their unconditional application, employees who engaged in an unfair labor practice strike to protest the above unfair labor practices. By its duly filed answer Respondents denied that they are an integrated operation and denied the commission of any unfair labor practices. On the issues thus joined the matter came up for hearing before me in Ottawa, Illinois, on January 19 through January 22, 1971. All parties were represented by counsel and had an opportunity to examine and cross-examine witnesses and introduce relevant evidence, to argue orally, and to file briefs. Briefs have been received from the General Counsel, the Charging Party, and Respondents. Thereafter affidavits were forwarded to me by counsel for the Charging Party and counsel for Respondents concerning a telephone conversation between the two lawyers. The affidavits were not wholly consistent with each other but revealed the existence of a possible issue, one determination of which could afford Respondents a defense to the refusal-to-bargain charge. Accordingly I ordered the hearing reopened and called both attorneys as the Trial Examiner's witnesses and examined them with regard to the telephone call which was the subject of the affidavit. Each counsel cross-examined the other and the General Counsel cross-examined both. 193 NLRB No. 10 PLASTICS TRANSPORT INC. All parties waived the filing of additional briefs. Upon the entire record in this case and in consideration of the briefs, I make the following. FINDINGS AND CONCLUSIONS I BUSINESS OF THE RESPONDENTS Respondent Stafford is an interstate hauler of silicate sand between points in Wisconsin, Illinois, Indiana, Michigan, and Iowa with annual gross revenue in excess of $50,000 and is engaged in commerce within the meaning of the Act. Respondent Stafford operates under a license or authority granted by the Federal Interstate Commerce Commission. In the year 1966 Jack Stafford, president and majority stockholder of Respondent Stafford, purchased a corpora- tion known as Plastics Transport Inc , to obtain its intrastate trucking rights in the State of Illinois. Stafford was advised at this time that he could not incorporate Plastics Transport Inc. into Stafford Trucking because he did not apply for rights in Illinois under Stafford's name. After purchasing the stock of Plastics Transport Inc.' Stafford divided the shares in the corporation between his two sons, Robert and James, hoping that he could get them involved in the trucking business. Stafford however at that time retained the presidency of Respondent Plastics and remained at all times until the present the general manager of its operation. The board of directors of Respondent Plastics, as presently constituted, consists of Robert Stafford and James Stafford (the sons who own the stock), Wilcy Stafford, apparently a daughter of the Stafford family, Grace Stafford, who is Mrs. Jack Stafford, and Jack Stafford. The board of directors of Stafford Trucking includes Jack Stafford, Grace Stafford, and Wilcy Stafford with Jack as the president, Wilcy the vice president, and Grace as secretary-treasurer. Robert Stafford, called as a witness, testified that he is employed full time by American Motors as a supervisor of industrial engineering and that his brother, James, is employed full time as a mechanic and part-time manager for Respondent Stafford in its Portage, Wisconsin, terminal . He stated that he has not been involved in the day-to-day operations of Respondent Plastics but could not speak for his brother in that regard. He testified that he received his share of ownership of Respondent Plastics as a gift from his father, contributed nothing to the cost of Respondent Plastics and has received no dividends on those shares. He testified that his father, Jack Stafford, is running the business of Respondent Plastics for him and his brother. Robert Huber, who is the general manager of Respon- dent Plastics' terminal in Waterman, Illinois, testified that he was first employed by Respondent Stafford as a driver in 1961 and continued in that capacity until March 1969 when he was transferred to Stafford's terminal in Ottawa, Illinois, which had been opened approximately 4 years before. He was the manager of all Stafford trucking operations in the State of Illinois, reported only to Jack Stafford and hired all the employees employed at the Stafford terminal in Ottawa. Plastics Transport Inc was apparently not operating at that time Stafford purchased the corporate shell and the authority granted Plastics 55 In July 1969, following organization by a labor organiza- tion of the employees at Stafford's Ottawa terminal, the terminal was closed down and the operation moved to Waterman, Illinois, with Huber continuing as the manager but with a new crew of employees. When Huber commenced operations in Waterman, Illinois, the drivers operating from that terminal were drivers who had been employed by Respondent Stafford in Wisconsin and were sent to Ottawa by Stafford. Thereafter these drivers were replaced with drivers hired locally by Huber in Waterman. On January 1, 1970, the name of the operation in Waterman, Illinois, was changed from Stafford Trucking Inc. to Plastics Transport Inc. No other change in the Waterman operation took place at that time. All drivers who had been employed by Respondent Stafford continued to work for Respondent Plastics, driving the same equipment and serving the same customers. Huber continued to receive his instructions and orders from Jack Stafford and to send his bills of lading to Jack Stafford. The paychecks, which now bore the name of Respondent Plastics, continued to be signed by Mrs. Jack Stafford. The drivers at the Waterman terminal before and after January 1, 1970, drove both interstate and intrastate loads. The interstate loads were driven under authonty assigned to Respondent Stafford by the ICC and the intrastate loads under rights assigned to Respondent Plastics by the State of Illinois. It is conceded that the drivers spent about an equal amount of time driving under Stafford's rights and Plastics' rights. All equipment used was the property of Respondent Stafford and bore its name. Huber was unaware of any lease agreement between the Respondents for the equip- ment. Prior to 1970, according to the testimony of Robert J. Tobin, CPA, who has done the accounting for both Respondents since 1966, the wages of all of the drivers and all personnel concerned with Respondent Plastics were paid by Respondent Stafford. This led to a profit showing for Respondent Plastics which Tobin considered to be excessive and difficult to justify. Accordingly he suggested to Grace Stafford that a different accounting system should be set up to more accurately reflect the profit and loss picture of Respondent Plastics as a separate corporation. Probably as a result of his recommendation, Grace Stafford directed Tobin to allocate all the expenses of the Waterman terminal and payrolls to Respondent Plastics rather than Respondent Stafford. Tobin testified candidly that it was as unrealistic to attribute all the expenses to Respondent Plastics as it was previously to attribute them to Stafford inasmuch as half of the business of the Illinois terminal was operated under Stafford's ICC authority. The result of the change was that although Respondent Plastics' business increased somewhat in the last year of its operation the books now showed a large loss rather than a profit as in each of the previous years. This loss was of such nature that it wiped out all of the accumulated profits and left Transport Inc to operate intrastate in the State of Illinois 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent Plastics on paper owing Respondent Stafford a sum of some $25,000.2 The evidence reveals that except to the extent that Huber solicited business, all business conducted by Respondent Plastics in Illinois was generated by Jack Stafford and Respondent Stafford. All management other than Huber's on-the-spot management at the Waterman terminal was supplied by Jack Stafford and his wife, Grace. The sole supervision was embodied in Manager Huber, who had been a Stafford employee paid by Stafford until January 1, 1970. Thereafter until August 15 he was paid by Plastics and, the terminal having been shut down on August 15, his payment by Respondent Stafford resumed until he resigned from Stafford's employment in October 1970.3 I conclude that the General Counsel has met his burden of showing that the two Respondents are in a fact a single, integrated employer and that jurisdiction should be asserted on the basis of Respondent Stafford's interstate operations. I find that Respondents are a single, integrated employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATION INVOLVED The Charging Party is and at all times relevant hereto has been a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES On August 3, 1970, Jim Smith, the business agent of the Charging Party, came to the Waterman terminal and met with Manager Huber. He informed Huber that he had cards authorizing the Charging Party to represent all of the six regular drivers then employed at the Waterman terminal and asked for recognition. Huber informed Smith that he had no authority to recognize the Union and stated that he would get in touch with Jack Stafford and inform him of the Union's demand. Huber at that time examined the cards and agreed that they were authentic.4 That afternoon Huber telephoned Jack Stafford at his home and informed him of the demand for recognition, and that he had examined the cards and found them valid. Stafford replied that he would have to shut the terminal down if the Union came in because he could not afford the Union. After talking the matter over he agreed that he would come down on August 5 and told Huber to set up a meeting with the employees so that he could speak to them. During this conversation Jack Stafford mentioned his son Robert in connection with Respondent Plastics; this was the first indication to Huber that Robert had anything to do with Respondent Plastics. The meeting was held between the six drivers, Stafford, and Huber on the afternoon of August 5, 1970. When the employees were informed of the meeting, they delegated one of their number, Edward Harding, to inform the Union of it. Harding talked to Smith by telephone and Smith stated that he would be unable to attend the meeting but 2 it should be pointed out that the only change was in the bookkeeping, no change in operations took place 3 Huber is now employed as a truckdriver by another company unrelated to the Stafford operation delegated Harding to speak for the men and to request recognition from Jack Stafford. The meeting commenced with Harding identifying himself as a spokesman for the men and asking Stafford for recognition. Stafford count- ered with the statement that he would not grant recognition and wanted to know what the employees wanted. One of the employees, Allen Priar, stated in words or substance that they wanted a union contract and that the contract rate was $4 an hour and 14 cents a mile. Stafford stated that he could not afford this rate and offered $3.15 an hour and 10 cents a mile but no union contract. He also stated that he would shut down the terminal before he would sign a union contract and that no one was going to tell him how to run his business. During the conversation another employee, John Modglin, who had recently had an accident and had had difficulty with the insurance coverage because of it, entered into a discussion with Jack Stafford about the accident insurance and workmen's compensation insurance during the course of which Stafford stated that he was going to talk to a man in a few days about an insurance policy that Stafford believed would be better for the employees. One of the employees finally asked Stafford directly what he would offer and he offered $3.25 an hour for loading and unloading plus 10 cents a mile but without a union. An employee asked Stafford what he had against unions. Stafford said he had nothing against unions other than that he did not want them running his business and mentioned that he had once belonged to the Musicians Union. Just before the meeting was completed, Stafford said, "Well this is the offer; take it or leave it but I'll tell you one thing boys, there's no union going to be in my business. If you want to go union go elsewheres and work." 5 The employees assembled outside the office and agreed that they would not accept Stafford's offer of $3.25 an hour and 10 cents a mile without a union but would insist on a union contract. They agreed that they would immediately go on strike unless Stafford agreed to this in principle. The strike apparently was occasioned by Stafford's statement that if the employees insisted on a union contract and would not accept his offer he would remove the trucks back to his Wisconsin base. The men communicated their decision to strike to Stafford as he was leaving. He stated that they had until Saturday to accept his terms or he would remove the trucks. A picket line was formed on August 5 and continued thereafter for about a week. On August 8, Saturday, the men assembled at the plant and Stafford arrived in his car with drivers from his Portage operation. Stafford ascertained from Huber that the men were determined not to accept his offer without a union contract and attempted to move the trucks. The men caused a tandem trailer which was passing at that time to park in front of the door to the garage so that the tractors could not be taken out of the garage and the men also parked their cars in front of the trailers so that the trailers could not be removed. This impass continued for about an hour until the local police were called and prevailed on the 4 There is no issue concerning the authenticity of the authorization cards signed by the six drivers. S The quotation is from the testimony of Modglin , whom I credit. Stafford's denial of this statement is discredited. PLASTICS TRANSPORT INC. 57 men to move the tractor and their automobiles . Thereupon the trucks were driven away. During this period of time, for an hour or an hour and a half, Stafford sat in Harding's automobile talking with Harding and employee Bacon about the trucking industry in general and Stafford's operation in particular . During the course of this conversa- tion Stafford again reiterated that he would not sign a contract with the Union for the Plastics operation but would close it up first. Stafford testified that the subject of closing the Water- man terminal had been discussed between him and his wife for a considerable period of time because Respondent Plastics was not making enough money to warrant keeping it open. He testified that when the figures for the year 1970 showed an alarming loss by Respondent Plastics he and his wife determined to shut down the terminal , and that it was as result of this determination that he took the action, on August 8, of removing the trucks and shut down Respondent Plastics' operations on August 15. He testified that his decision had nothing to do with the union organization . Manager Huber testified that Grace Stafford had on a few occasions in the past mentioned the possibility of shutting down the terminal but that he was aware of no plans having been made to do so prior to the demand for recognition by Smith. Conclusions I conclude that all over-the-road truckdrivers located at the Respondents' Waterman, Illinois, terminal, excluding salesmen, clerical employees, guards, professional employ- ees 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 and that at all times since July 11, 1970, a majority of the employees in said unit have designated the Charging Party as their exclusive representative for purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. I conclude that on or about August 3, 1970, and at all times since, the Union has requested and is requesting that Respondents bargain collectively with it with respect to rates of pay, wages, hours of employment and other terms and conditions of employment as the exclusive collective- bargaining representative of Respondents' employees in said unit. I further find that since August 5, 1970, Respondents have refused to bargain collectively with the Union and that on that date , August 5, 1970, Respondents by Jack Stafford attempted to bargain directly with employees in the unit notwithstanding the Union's representation of said employees. In this regard Respondents contend that it was in fact bargaining with the Union through Mr. Harding who was designated as the Union's spokesman. This defense will avail Respondents nothing . In the first place Harding was not the Union's spokesman except for the purpose of seeking recognition . In the second place all negotiating done by Jack Stafford in the meeting of August 5, 1970, was predicated on his position that he would not recognize the Union but would shut the plant down rather than sign a contract with the Union . This is not good-faith bargaining within the meaning of the Act and such negotiation by Respondents does not vitiate their duty to negotiate with the Union on demand. I find further that by the cessation of operations at the Waterman terminal, without negotiat- ing with the Union, Respondents attempted to undermine and destroy the Union's majority status. I find that Respondents violated Section 8(a)(1) of the Act by informing their employees that they would not bargain with the Union , that it would go out of business before bargaining with the Union and that it would not sign a contract with the Union. I find that Respondents violated Section 8(a)(5) of the Act as well as Section 8(a)(1) by refusing to bargain with the Union , refusing to recognize the Union and by attempting to bargain with the employees in derogation of the Union 's authority from the employees to represent them, all on August 5, 1970. Poststrike Events On August 7 Attorney Carmell addressed a letter to Manager Huber at Waterman , Illinois, containing an unconditional offer on behalf of each of the striking employees to return to work and asking that Respondents contact either Carmell or Business Agent Smith or Floyd at their Elgin, Illinois, office. Respondents contend that on August 9, 1970, Jack Stafford authorized Attorney Rabmovitz to represent them in the instant matter and that he attempted to contact the union representatives without success on August 12 and 13. He eventually talked to Attorney Sherman Carmell, who represents the Charging Party, on August 13 at which time he told Carmel] that he had an appointment with the field examiner of the National Labor Relations Board on August 17 and advised Carmell that he wanted to negotiate the labor dispute between Respondents and the Union. According to Attorney Rabinovitz, Carmell informed him that he would have to negotiate with the Union 's business agent with regard to a contract and that he would have to reinstate the employees with backpay. Attorney Carmell testified that he received Attorney Rabinovitz' call on March 13, that Rabinovitz wanted to know the Union's position with reference to settling the unfair labor practice charges and that at no time stated that the Employer was willing to recognize and bargain with the Union. According to Carmell , Rabinovitz agreed to discuss the matter with his client and after meeting with the representatives of the General Counsel would call back to discuss the matter further . He never called back. The Respondents contend that at the close of the conversation between Attorneys Rabinovitz and Carmell, Attorney Carmell agreed to have his client contact Attorney Rabinovitz to enter into negotiations. The Charging Party on the other hand contends that Attorney Rabinovitz stated that he had not completed his investigation and would be in contact with the Charging Party when the investigation was complete. I credit Mr. Carmell's testimony in this regard . I am convinced that Mr. Rabinovitz' recollection is at fault . Under examination by the General Counsel Mr. Rabinovitz testified that a letter addressed to him on August 24, 1970, by Field Examiner Ferree contained an accurate account of a telephone conversation between Attorney Rabinovitz and Field Examiner Ferree on August 17. In this letter Ferree quotes 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Rabinovitz as stating that no written reply to Carmell's letter had been sent as of August 17 and that Attorney Rabinovitz "intended to contact Business Agent Jim Smith about it." In a return letter dated August 27 to Ferree from Attorney Rabinovitz he stated that he had to meet with his client before he could state his position and added "I feel that I need this one meeting before I call Business Agent Smith, who I indicated I would call, but will definitely talk to you after my meeting with the Staffords." I am convinced by the exchange of correspondence which Attorney Rabinovitz confirmed on the witness stand that in fact his conversation with Attorney Carmell resulted in his agreeing to consult with his client and contact the union agents thereafter. Although Attorney Rabinovitz stated in his affidavit that he had been authorized by his client to offer reinstatement to all employees, the record is clear that he has never done so. Carmell made an unconditional offer on behalf of each of the striking employees on August 7 which was admittedly received. Harding, Bacon and Elkin, three of the truckdrivers, went to Manager Huber on August 10 and offered to return to work on Stafford's terms without a contract. The only answer they received was that Stafford had placed the matter in his attorney's hands. Admittedly no employee has ever been offered reinstatement. Respondents contend that under the Darlington rules they had a right to close their entire business operation for any reason or no reason and accordingly may not be charged with a violation herein. However this case must be distinguished from Darlington on its facts. I have found above that Respondent Stafford and Respondent Plastics are the same company. The Waterman terminal was operated as no more than one of the terminals of Stafford and about half of its business consisted of interstate shipments under Stafford's authorization. Respondents have not, as in Darlington, gone out of the business engaged in at the Waterman terminal. They have ceased their intrastate operations but are continuing their interstate operations using their Portage, Wisconsin, drivers operat- ing out of the Portage terminal.? In any event as the General Counsel points out Respondents by the closure of the Waterman plant must have succeeded in "chilling" unionism among the Portage drivers it brought down to cross the picket line and remove the equipment on Saturday, August 8. Respondents before closing the Waterman terminal had a duty to bargain with the Union about the closure of the terminal, with regard to the effects on their drivers of the closure, even under the Darlington decision. Under the circumstances of this case, where as I have found Respondents closed the terminal in retaliation for the union activities of their employees, Respondents had a duty to offer reinstatement to their employees who were unfair labor practice strikers and who had made an unconditional offer to return. I find that by their failure to do so Respondents have additionally violated Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with Respondents' opera- tions 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 thereof. Upon the foregoing findings of fact and upon the entire record I make the following: CONCLUSIONS OF LAW 1. At all times material herein Respondents have engaged in commerce as a single employer within the meaning of Section 2(6) and (7) of the Act. 2. At all times material herein the Charging Party was a labor organization within the meaning of the Act. 3. All over-the-road truckdrivers located at Respon- dents' Waterman, Illinois, terminal, excluding salesmen, clerical employees, guards, professional employees 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, and at all times since July 11, 1970, a majority of the employees in said unit have designated the Charging Party as their exclusive representative for purposes of collective bargaining with respect to rates of pay, wages, hours of employment and other terms and conditions of employment. 4. At all times since August 3, 1970, the Charging Party has requested and is requesting that Respondents bargain collectively with it with respect to rates of pay, wages, hours of employment and other terms and conditions of employment as the exclusive collective-bargaining repre- sentative of Respondents' employees in the unit set forth above. 5. Since August 5, 1970, Respondents have failed and refused to bargain collectively in good faith with the Union by the various acts and conduct set forth above. 6. By failing and refusing to reinstate their employees who are unfair labor practice strikers and who have made an unconditional offer to return to work, Respondents have discriminated against their employees in violation of Section 8(a)(3) of the Act. 7. By the acts and conduct set forth above and by threatening to close the plant and discharge employees because of their union activity, Respondents have inter- fered with, coerced and restrained their employees within the meaning of Section 8(a)(1) of the Act. THE REMEDY Having found that Respondents have engaged in unfair labor practices violative of Section 8(a)(5), (3) and (1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The General Counsel contends that under the circum- 6 Textile Workers v Darlington Manufacturing Co, 380 U S 263 ( 1965) Respondents are serving their intrastate customers by interstate shipments 7 The record does not disclose the extent, if any, to which the from suppliers in Wisconsin or elsewhere PLASTICS TRANSPORT INC. stances of this case Respondents should be ordered to reopen their Waterman terminal and reinstate the employ- ees therein . The Respondents contend on the other hand that the decision to close the plant was economically motivated. In circumstances where a plant is closed for economic reasons and the violation found was the failure of the employer to bargain with the union concerning the closing, the Board has almost uniformly declined to order the reopening of the plant. However in the instant case the circumstances compel me to recommend the reopening of the plant as the General Counsel asks. I have found above that Respondents have not, as in Darlington, ceased to perform the services formerly performed from their Waterman plant. At least half of the work from the Waterman terminal was the movement of interstate shipments under Stafford's authority. Only the intrastate shipments directly attributable to the Plastics authority have been discontinued. Respondents have not relinquished the terminal building which they rented in Waterman but continue to lease under Stafford's name. Respondents had six employees at the time they discrimina- torily shut down the Waterman plant; presumably at least three would be required to continue its interstate shipping now being serviced out of their Portage terminal. This is consistent with the testimony of Huber who stated that for the months that he continued in Respondents' employ at Waterman there was enough work for three drivers. Respondents' alleged economic motivation appears to be wholly specious. As its accountant testified, two accounting systems were operated, one placing most of the expenses on Respondent Stafford wherefor Respondent Plastics showed a net profit annually, and the second placing most of the expenses on Respondent Plastics wherefor it showed a net operating loss. The accountant testified that neither accounting system gives a true picture of the profit and loss situation at the Waterman terminal and he was not asked to develop a system which would do so or to compute the reasonable expectation of profit or loss under such a system. Respondents made much of the fact that Jack Stafford was not educationally qualified to make such a computation and Grace Stafford, his wife, who handles Respondents' finances was not called as a witness. It is clear from the testimony of Jack Stafford that no decision to shut down the terminal had taken place prior to the meeting on August 5 at which he failed to coerce the employees to drop the Union. Clearly the decision to shut down resulted from his failure in that regard. The reopening of the Waterman terminal would entail no additional financial outlay other than the institution of some form of supervision." The resumption of operations from the Waterman terminal would serve to restore the status quo ante to the end that the Union would be able to " Huber is no longer employed by Respondents 9 Fibreboard Paper Products Corp v N L R B, 379 U S 203, 216, cf Royal Plating and Polishing Co. 160 NLRB 990 10 1 have not found that the removal of the trucks under the circumstances herein violated the Act Rather I have found that the shutdown of the Waterman terminal was a violation The removal of the trucks under the circumstances of the employees' strike activity was not a significant step by Respondents in my opinion The trucks at all times belonged to Stafford and were useable and were used in its operations 59 engage in meaningful bargaining without undo disturbance of the present economic posture of Respondent .9 Respondents contend that the only appropriate means by which the alleged question concerning representation could be resolved is by an election conducted by the Board. I have found above that all employees of Respondents were members of the Union at the time it made its demand and that Respondents engaged in direct and massive unfair labor practices to dissipate the majority so attained by the Union. The record also reveals that after Respondents' removal of their trucks 10 at least three of the six employees came to Manager Huber and offered to return to work under Stafford's conditions, i.e., without a union contract. This direct evidence renders unnecessary any presumptions or inferences such as have led some courts to require additional consideration by the Board whether Respon- dents' acts may be considered to have rendered an election impossible. Here the undermining of the Union was demonstrably effective. Accordingly the appropriate reme- dy must necessarily be an order that Respondents bargain with the Union on demand in the unit set forth above. Finally, with regard to the unfair labor practice strikers who sought reinstatement with Respondents, an effective remedy for Respondents' failure to reinstate them should include backpay for the period of time between the receipt by Respondents on August 10 of their offer and such time as they are reinstated or have declined reinstatement. Upon the basis of the foregoing findings of fact, and conclusions of law and upon the entire record in the case, I hereby issue the following recommended: Ii ORDER Respondents Plastics Transport Inc. and Stafford Trucking Inc., their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the Union as the exclusive bargaining representative of Respondents' em- ployees in the appropriate unit by failing and refusing to bargain on demand with said Union, by attempting to bargain unilaterally with the employees to the detriment of the Union and by unilaterally shutting down their terminal thereby terminating the employment of the unit employees without prior bargaining with the Union or any other labor organization they may select as their representative. (b) Discouraging membership in the Union by failing and refusing to grant reinstatement upon the unconditional offer of unfair labor practice strikers therefor or in any other manner discriminating against them with respect to their hire or tenure of employment or any other term or condition of employment. (c) Interfering with, restraining or coercing their employ- ees in the exercise of their statutory rights by threatening to There is no showing that Stafford has disposed of them or that they are not available to be returned to the Waterman terminal to the extent that they are needed upon its reopening ii In the event no exceptions are filed as provided by Section 10246 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shut down the terminal in the event they insisted on representation by the Union. (d) In any like or related manner interfering with, restraining or coercing their employees in the right to self- organization, to form their own labor organizations, to join or assist the Union or any other labor organization, to bargain collectively with representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Resume operations from the Waterman, Illinois, terminal and offer reinstatement to their striking employees who have made an unconditional offer of reinstatement. (b) Upon request bargain collectively with the Union as the exclusive representative of all employees in the unit set forth above and if an agreement is reached, upon request, sign a contract embodying the same. (c) Notify immediately the above-mentioned individuals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. (d) Post at their terminal in Waterman, Illinois, and at their terminal in Portage, Wisconsin,12 copies of the attached notice marked "Appendix " 13 Copies of said notice, on forms provided by the Regional Director for Subregion 38 (Peoria, Illinois), after being duly signed by Respondents' representative, shall be posted by Respon- dents immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Subregion 38 in writing, within 20 days from the date of the receipt of this Decision, what steps the Respondents have taken to comply herewith.14 12 As I have found above Respondents' closing of the Waterman terminal necessarily came to the attention of the Portage drivers who were required to remove the trucks from behind the Union's picket line in Waterman, Illinois Accordingly in order to dissipate the chilling effect of this action the posting of notices in Portage is required 13 In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD " 14 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read "Notify the Regional Director for Subregion 38, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a Trial in which all sides had a chance to give evidence the National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post this notice. The Act gives all employees these rights: To engage in self-organization To form, join or help unions To bargain collectively through representatives of their own choosing To act together for collective bargaining or other mutual aid or protection To refrain from any or all of these things WE WILL NOT do anything that interferes with, restrains, or coerces employees with respect to these rights. WE WILL NOT threaten our employees with closing the terminal if they insist on representation by Local 330, General Chauffeurs, Salesdrivers and Helpers, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT refuse to bargain with the above- named labor organization or any other labor organiza- tion as a representative of our employees in the unit consisting of all truckdrivers at our Waterman, Illinois, plant. WE WILL NOT discriminate against our employees by refusing to reinstate unfair labor practice strikers who have made an unconditional offer to return to work. WE WILL bargain collectively with the above-named labor organization or any other labor organization representing our employees in a unit consisting of all truckdrivers at the Waterman terminal with regard to wages, hours, and conditions of employment or any other terms or conditions of employment and, in the event agreement is reached , we will, upon its request, sign a written agreement containing the terms and conditions thereof. WE WILL reinstate the employees of the Waterman terminal who were unfair labor practice strikers and have made unconditional offers of reinstatement and WE WILL make them whole for any pay lost by them as a result of our failure to reinstate them when they first requested reinstatement. PLASTICS TRANSPORT INC. AND STAFFORD TRUCKING INC. (Employers) Dated By (Representative) (Title) We will notify immediately the above-mentioned individu- als, if presently serving in the Armed Forces of the United PLASTICS TRANSPORT INC. 61 States, of the right to full reinstatement, upon application after discharge from the Armed Forces , in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, Savings Center Tower, 10th Floor, 411 Hamilton Boule- vard, Peoria, Illinois 61602, Telephone 309-673-9061, Extension 282.