Milo Express, Inc.

MILO EXPRESS, INC. 313 Milo Express, Inc. and Keystone Lawrence Transfer Company and General Teamsters, Chauffeurs and Helpers Local Union No. 249 a/w International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Case 6-CA-6785 June 28, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On November 30, 1973, Administrative Law Judge James M. Fitzpatrick issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief and the General Counsel filed cross-exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the entire record and the attached Decision in light of the exceptions and briefs and finds merit in certain of Respondent's exceptions. It has decided, for reasons set forth below, to dismiss the complaint in its entirety. It therefore adopts only those findings and conclusions of the Administrative Law Judge as are consistent with this Decision, and does not adopt his recommended Order. The complaint named as one Respondent two trucking companies, Milo Express, Inc. and Keystone Lawrence Transfer Company. It alleged that the two companies, operating as "a single integrated business enterprise," violated Section 8(a)(3) of the Act by closing its Milo Express terminal and terminating the truckdrivers employed by Milo Express because of these employees' union activity. It further alleged that Milo Express violated Section 8(a)(5) of the Act by its refusal to recognize the Union and by going out of business without notice to or consultation with it. The Administrative Law Judge found that the two trucking companies, named as one Respondent, were not integrated in operation. Nevertheless, he conclud- ed that "in spite of the limited amount of meshing of the two operations," Zigmund Milos' control of both corporations made the two a single employer. Re- spondent contends in its exceptions and brief that the record lacks an evidentiary showing that Keystone and Milo Express operated as one business, and that Milo Express' conduct before and after the closing was not unlawful under the Act. We find merit in these contentions. 1. Keystone Lawrence Transfer Company (Key- stone) is engaged in the interstate trucking business, including the operation of a terminal at Oakmont, Pennsylvania, pursuant to authority issued by the In- terstate Commerce Commission. Milo Express, Inc. (Milo Express) was engaged, until June 21, 1973, in intrastate hauling in and around Oakmont pursuant to authorization of the Pennsylvania Public Utility Commission. It has always operated nonunion. About 3 years ago Respondent President Milos Purchased Keystone, then located at New Castle, Pennsylvania. Keystone employed drivers who were represented by Teamsters Local No. 261. Subsequent- ly, Milos moved Keystone from New Castle to a sepa- rate terminal in Oakmont. The Keystone drivers transferred from Local 261 to Teamsters Local 249, the Charging Party, which has continued to represent them. None of Keystone's employees is an alleged discriminatee in this case and the complaint does not allege an unfair labor practice with respect to Key- stone as an employer. Keystone and Milo Express are separate corporate entities. The stock of each is owned by 'Zigmund Mi- los and his wife. Mr. Milos is president of both corpo- rations, and the board of directors of the two corporations is the same. However, the two corpora- tions used different bookeepers, filed separate tax re- turns, operated at different locations separated by a half mile, operated pursuant to different hauling per- mits, and did not share equipment except on a lease basis familiar in the trucking industry. Each corporation operated as a separate enterprise and President Milos considered them to be separate businesses. Milo Express operated under the immedi- ate supervision of Operations Manager Robert Do- man. Its staff included, in addition to Doman, a bookkeeper, a clerk, a helper in the shop, seven regu- lar drivers, and as many as three so-called lease driv- ers. President Milos was responsible for the hiring and termination of employees of the two companies, al- though there had been no occasion to discharge any- one at Milo Express. In earlier periods he had met with Milo Express employees to tell them what sort of pay raise they would receive, a decision reached to- gether with Milo Express Operations Manager Do- man and its bookkeeper. It was President Milos whom the Union approached in seeking recognition. During the 3-month period preceding the Milo Ex- press shutdown there was insufficient work to keep the Milo Express drivers busy. In order to obtain work for them, Milo Express Operations Manager Doman solicited and obtained hauling assignments from Key- stone. Such loads were handled by lease arrangements between Milo Express and Keystone. The drivers con- tinued to be paid by Milo Express and were dis- patched from the Milo Express terminal by Manager Doman. 212 NLRB No. 57 314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The principles governing the determination appli- cable in this kind of case were restated in Poole's Warehousing, Inc.,' where the Board adopted the con- clusion of the Trial Examiner that a partnership and a corporation controlled by the same interests were not to be regarded as a single employer. The Trial Examiner in that case stated, "Common ownership alone is not sufficient. There must be in addition such actual or active common control, as distinguished from merely a potential, as to denote an appreciable integration of operations and management policies." 158 NLRB at 1286.2 We do not view the evidence of common ownership and President Milos' participation in the labor rela- tions of Milo Express as warranting a finding that Milo Express and Keystone constitute a single enter- prise. The day-to-day operations of Milo Express were in the hands of Manager Doman. Despite com- mon ownership, the two businesses were not interde- pendent. As found by the Administrative Law Judge, to conclude that the two concerns were integrated operations "would be an exaggeration." Moreover, we do not view the developments of the last 3 months before the shutdown when, due to failing business, Milo Express solicited hauling assignments from Key- stone, as destroying the autonomous operation of the two companies. Accordingly, we find, contrary to the Administrative Law Judge, that Milo Express and Keystone did not constitute a single employer within the meaning of the Act.3 2. The Administrative Law Judge held that the closing of Milo Express, coincident with the advent of union organization but also prompted by economic considerations, violated Section 8(a)(3) of the Act in that seven employees were thereby terminated. As we have found that Milo Express operated autonomously as a separate employer, we find that its closing was not unlawful. The United States Supreme Court in Textile Workers Union v. Darlington Manufacturing Co., 380 U.S. 263 (1965), held that "when an employer closes its entire business, even if the liquidation is motivated by vindictiveness towards the union, such action is not an unfair labor practice." (380 U.S. at 273).4 3. We further find that Respondent did not violate Section 8(a)(5) in refusing to recognize the Union and bargain concerning the closing. On June 18, 1973, the Union requested recognition on the basis of a card showing. As found by the Administrative Law Judge, Milo Express had not engaged in independent acts of interference or coercion preceding this request. Nev- ertheless, because he viewed the shutdown of Milo Express as unlawful, the Administrative Law Judge found a violation of Section 8(a)(5) and held that a bargaining order was justified under the decision of the Supreme Court in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969). As we have found that the closing of Milo Express was not unlawful and that Respondent Milo Express has engaged in no other unfair labor practices that would have made a fair election impossible, a bar- gaining order is not justified. Steel-Fab, 212 NLRB No. 25 (1974); Gissel, supra at 600 and 614-615. Ac- cordingly, we shall dismiss the complaint. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board orders that the complaint herein be, and it hereby is, dismissed in its entirety. 'Drivers, Chauffeurs and Helpers Local No 639, IBT (Poole's Warehousing, Inc), 158 NLRB 1281 2 Accord Bachman Machine Company v N L R B, 266 F 2d 599 (C A 8, 1959), J G Roy & Sons Company v NLR B , 251 F 2d 771 (C A I, 1958), Miami Newspaper Printing Pressmen Local No 46 (Knight Newspapers, Inc ) 138 NLRB 1346 , enfd 322 F 2d 405 (C A D C, 1963) 3 Contrary to the conclusion of the Administrative Law Judge , we find that the Board's holding in Poole 's Warehousing, Inc, supra, has direct application in this case There is insufficient basis in the record from which to conclude that the 'purpose and effect' " of the Milo Express closing was to "chill unionism" among Keystone's employees Darlington, supra at 275, 276 DECISION STATEMENT OF THE CASE JAMES M. FITZPATRICK, Administrative Law Judge: This proceeding under Section 10(b) of the National Labor Rela- tions Act, as amended (the Act), was tried before me at Pittsburgh, Pennsylvania, on October 16, 1973,' upon a complaint (issued August 31) alleging, and an answer deny- ing, that the employer, Milo Express, Inc. and Keystone Lawrence Transfer Company, constituting a single employ- er within the meaning of the Act, had committed unfair labor practices in violation of Section 8(a)(3), (5), and (1) of the Act by terminating certain employees, unilaterally clos- ing down certain operations, and refusing to bargain with a union . The complaint was founded on charges filed June 19 (amended June 20 and August 21) by General Teamsters, Chauffeurs and Helpers Local Union No. 249 a/ w Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America (herein the Union). Upon the entire record, my observation of the witnesses, and consideration of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT I THE EMPLOYER INVOLVED This matter involves two corporations, Milo Express, Inc. 1 All dates herein are in 1973 unless otherwise indicated MILD EXPRESS, INC. 315 (herein Milo Express) and Keystone Lawrence Transfer Company (herein, Keystone) which the complaint alleges are a single employer within the meaning of the Act. Keystone is now, and at all times material to the events involved herein has been, engaged in the interstate trucking business, including the operation of a terminal at Oakmont, Pennsylvania, pursuant to authority issued by the Interstate Commerce Commission. Milo Express was also engaged in the trucking business in and around Oakmont until June 21 when it closed its terminal. It operated intrastate pursuant to authority issued by the Pennsylvania Public Utility Com- mission. The parties have stipulated that during the past 12 months each performed freight transport services valued at over $50,000 within Pennsylvania for companies which an- nually ship goods valued at over $50,000 directly, to points outside Pennsylvania and are themselves engaged in inter- state commerce. The parties stipulate, and I find, that at times material herein Milo Express and Keystone have been engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The complaint alleges, and the answer denies, that Key- stone and Milo Express are affiliated businesses with com- mon officers, common ownership and operators, and that they constitute a single integrated business enterprise en- gaged in the transportation of general commodities. The evidence shows that each is a separate corporation. Zigmund Milos is president of both corporations. The board of directors of each corporation consists of Milos, his wife, and Ada Simpson who is not otherwise identified in the record. There is likewise substantial identity in the own- ership of outstanding stock of both corporations. Thus Zig- mund Milos owns 51 percent of the stock of Milo Express, his wife owns 48 percent and daughter 1 percent; he owns 51 percent of the stock of Keystone and wife owns 49 per- cent. At all times material to the present matter the Milo Ex- press terminal has been located in Oakmont, Pennsylvania. Milo Express has always operated nonunion. About 3 1/2 years prior to the hearing herein Zigmund Milos bought controlling interest in Keystone, then located in New Cas- tle, Pennsylvania. Keystone employed drivers who were then represented by Teamsters Local No. 261. Subsequently Keystone moved from New Castle to a terminal in Oak- mont several blocks from the Milo Express terminal. The Keystone drivers at that time transferred from Local 261 to Local 249, the Union involved in the present matter, which has continued to represent them. Milo Express has operated under the immediate supervi- sion of Operations Manager Robert Doman. Besides him the staff included a bookkeeper, a clerk, a helper in the shop, seven regularly employed drivers (Robert Semler, Robert Kirchner, Harry Hilke, Joseph Ecsedy, David Brac- co, Daniel Taylor, and John Doman) and as many as three so-called lease drivers working pursuant to lease arrange- ments. The record does not disclose, and I make no finding with respect to, whether the drivers operating pursuant to lease arrangements were or were not employees of Milo Express. Some aspects of the evidence indicate the two companies are separate employers. Thus, in addition to the fact that they are separate and unrelated corporate entities, they used different bookkeepers, filed separate tax returns, operated at different locations separated by a half mile, operated pursuant to different hauling permits, and did not share equipment except on a lease basis familiar in the trucking industry. Zigmund Milos testified credibly that he operated each company as a separate enterprise and considered them to be separate businesses. Other evidence shows that effective management of both enterprises is centralized in the hands of Zigmund Milos. Although in some respects his management of Milo Express was indirect in that he operated through Operations Manag- er Robert Doman (the father of driver John Doman), I find his direct responsibilities were sufficient to establish that the two concerns are a single enterprise within the meaning of the Act. Thus, although Robert Doman was responsible for such matters as assignment of work to the drivers, Zigmund Milos himself was responsible for the total operation of both Milo Express and Keystone. More specifically, Zigmund Milos was responsible for the hiring and firing of employees in both terminals. With respect to Keystone it is conceded that he is in complete charge. The record shows that when he purchased the Keystone business he made the decision to assume the outstanding collective-bargaining agreement. Since that time it has been he who has met with union representatives in collective bargaining relating to the Key- stone terminal. With respect to the Milo Express operations, although prior to the events involved in this case no union has been in the picture, Zigmund Milos met annually with the employees to tell them what sort of a pay raise he could give them. And, as noted later herein, when the Union involved here requested recognition on behalf of the regu- larly employed Milo Express drivers it made that request to Zigmund Milos and it was he who declined to recognize the Union as the drivers' representative. In sum, then, it appears that Zigmund Milos individually was sufficiently involved in the labor relations of both concerns to warrant the infer- ence that they constitute a single enterprise under the Act. The General Counsel also contends that the two concerns had become operationally integrated. Although the record shows an increased amount of operational mixing during the last 3 months of Milo Express operation, the conclusion that they were integrated operations would be an exaggera- tion. Keystone has long followed a normal practice in the trucking industry of leasing equipment (with or without drivers) from outside sources when its own facilities were insufficient to serve its business needs. It obtained such extra equipment and drivers from various other trucking concerns, from individuals with equipment, and from Milo Express. Its arrangements for such equipment, with or with- out drivers, have always been on a lease basis. In recent years the business of Milo Express has dwin- dled, a development of concern both to Manager Robert Doman and,to Zigmund Milos. From time to time they conferred about the increasingly serious problems of the business with particular attention to reduced profits. Robert Doman, as the one immediately in charge, sought various ways to improve operations and to obtain more business. In the 3 months prior to June he had insufficient work to keep the seven regular drivers busy and in order to obtain work for them he solicited and obtained hauling assignments from Keystone. Each day, after determining the number of 316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drivers he needed for Milo Express customers, Doman con- tacted Keystone to see if he could obtain additional loads. Such loads as were thus obtained were handled by lease arrangements between Milo Express and Keystone. The drivers continued to be paid by Milo Express and were dispatched from the Milo Express terminal by Robert Do- man. As noted above, the quantity of work thus obtained increased during the last 3 months of operation. At least one Milo Express driver testified credibly and without contra- diction that during that period 80 percent of his work was hauling such loads provided by Keystone. Considering that such lease arrangements are normal in the trucking industry; that the control of the Milo Express drivers remained in the hands of the Milo Express manager; and that the whole purpose of the Milo Express manager was to obtain additional work to keep his drivers employed, I fail to see how the developments of the last 3 months materially alter the legal relationship of the two companies. In spite of the limited amount of meshing of the two operations, I find the degree of control of both, centralized in the hands of Zigmund Milos, was sufficient to make the two a single enterprise. See N.L.R.B. v. Gibraltar Industries, Inc, 307 F.2d 428 (C.A. 4, 1962). In making this finding I am somewhat troubled by the Board's holding in Poole's Warehousing, Inc., 158 NLRB 1281, a secondary boycott case which turned on the question of single employer. There, on facts somewhat similar to those in the present matter, the Board held the two concerns were not a single employer under the Act. However, that case is distinquisha- ble to a degree in that the warehouse manager there ap- peared to have greater labor relations authority than did Robert Doman in the present case, and the Poole brothers (the owners there) appeared less active in managing the warehouse operation than was Zigmund Milos in managing Milo Express. Recognizing that the difference is one of degree and the question a close one, nevertheless I find here that Milo Express and Keystone, in the hands of Zigmund Milos, constitute a single enterprise. II THE LABOR ORGANIZATION INVOLVED The Charging Party (the Union here) is an organization which represents employees in collective bargaining. It is a labor organization within the meaning of Section 2(5) of the Act. Among other persons it admits to membership drivers employed by various trucking concerns including drivers employed by Keystone and drivers employed by Milo Ex- press. For a number of years past Keystone and the Union have maintained collective-bargaining agreements and at the time of the hearing Keystone recognized the Union as the representative of its employees. Milo Express has never recognized the Union as the representative of its employees and has never had a contract with it. III THE ALLEGED UNFAIR LABOR PRACTICES A. The Alleged Discriminations 1. The allegations The parties agree that on June 21 the Milo Express termi- nal closed. The complaint alleges, and the answer denies, that on that date seven regular drivers of Milo Express were terminated and have since not been reinstated, and that this action was taken because of their union activity and con- certed activity and in order to discourage membership in the Union. The seven drivers were Daniel Taylor, Harry Hilke, Robert Kirchner, David Bracco, Joseph Ecsedy, Robert Semler, and John Doman. 2 Union activity at Milo Express From time to time prior to the closing unsuccessful efforts had been made to organize the drivers. In late May or early June Titus McCue, a Teamster International representative, approached Daniel Taylor on his truck and succeeded in interesting him in the Union. This led to a meeting of six Milo Express drivers on June 8 at the home of Joseph Ecse- dy at which McCue explained the advantages of union rep- resentation. The drivers in attendance included Escedy, Taylor, Bracco, Hilke, Kirchner, and one other not identi- fied. All of those named filled out cards applying for mem- bership in the Union and authorizing it to represent them and all except Taylor signed their cards. Taylor neglected to sign his but he thought he had signed it and remained under that impression until the time of the hearing herein. In any case he was sworn in as a member of the Union on June 16 along with Kirchner, Hilke, Bracco, and Escedy. 3. Company knowledge of union activity Over 3 years prior to the events involved in this case, at a time when Zigmund Milos was considering purchasing control of Keystone, he met with the drivers of Milo Express and told them he was considering purchasing the other com- pany. He indicated that over a period of 6 months or a year he would endeavor to equalize their wages with the wages of the Keystone drivers who were receiving union scale. He made it clear, however, that the Milo Express operations would be nonunion. The General Counsel urges that this incident shows a predisposition by Zigmund Milos against union representation of employees. I disagree. The incident happened too long ago and the fact was that at that time one operation was nonunion and the other was union. When the employees of Milo Express asked if they were to receive the union scale, they were promised that an effort would be made to meet the union wage. Given the fact that they were then nonunion, it might well have been an unfair labor practice for the Employer to have told them that they thenceforth would be union. On June 18, the Monday morning following the swearing in of the five Milo Express drivers, International Represen- tative McCue and Union Organizer William Reed called on Zigmund Milos at his office in the Keystone terminal. Reed advised Milos that the Union represented a majority of the drivers at Milo Express and asked for recognition as their representative. Milos replied he did not think the Union represented a majority and he would like to see the authori- zation cards. Reed, who did not at the time have them with him, promised to return with them the next day. That day a normal crew of Milo Express drivers, includ- ing Kirchner, worked. When Kirchner returned to the ter- MILO EXPRESS, INC. minal at the end of the day, Operations Manager Robert Doman told him they had had visitors that day. Kirchner assumed he meant the union representatives because he had understood they were going to present themselves to man- agement on that day. Kirchner testified further, "and at that time he (Robert Doman) said I didn't ask anyone else so I'm going to ask you, did you sign and I said yes, I did. He said, well, that's it, he said we're going to work two men tomor- row, two of the other men the next day and two of the remaining six the third day and we will operate like that until the end of the month at which time we are closing up." I find the facts were as Kirchner reported. 4. Closing of the Milo Express terminal Milo Express did close down its operations but not in exactly the way Robert Doman had predicted. According to Robert Doman, whom I credit, "Mr. Milos had been want- ing to cut down operations due to the low profit margin and he felt as I felt on the 18th that this was the final nail in the coffin." By "this" he meant the employees signing up with the Union. It was the judgment of Milos and Doman that they could no longer afford to operate the way they had been operating. Doman testified, "I felt personally that it would kill the Company." Zigmund Milos instructed him to cut down on pickups for a few days to see what would happen. In the meantime they would continue to deliver freight already on their dock. Robert Doman concluded that the Company probably would close and immediately applied elsewhere for a job. On Tuesday, June 19, he scheduled Semler, Kirchner, Hilke, and John Doman to work. At the end of the day Semler and John Doman were scheduled for work the next day, Wednesday, June 20, and the others were advised there would be no work the next day and they would be called when needed. Ecsedy was on vacation on Monday and Tuesday. When he called in on Tuesday night he was told there was no work the next day. Those who were without work contacted the Union. On Wednesday, June 20, Union Organizer Reed returned to the Keystone terminal to see Zigmund Milos. He showed Milos the five authorization cards in his possession. Milos looked at them and told him he did not have the time and he did not recognize the Union and if Reed wanted to talk to him he should make an appointment. Reed said the Union was putting Milos on strike. According to Reed he was belligerent. He ordered Reed off the property. That same day, June 20, the Union set up a picket line at the Milo Express terminal only. The signs asserted that Milo Express was being struck because of its failure to recognize and bargain with the Union . All of the Milo Ex- press drivers, including those who had not signed union authorization cards, respected the picket line. On June 29 Zigmund Milos, as President of Milo Express, sent each of the regular drivers a letter stating, "This letter is to serve as your official notice that as of June 21, 1973, Milo Express, Inc., has decided to close the entire opera- tion." From this it is clear that at least from June 21, for whatever reason, Milo Express ceased operating as a truck- ing company. 317 5. Conclusions regarding alleged discriminations The above-described sequence of events demonstrate a classic violation of Section 8(a)(3) of the Act with respect to all seven regularly employed drivers at Milo Express. It is immaterial that the record reveals no significant antiunion animus on the part of management. And whatever econom- ic factors may have threatened financial disaster, the evi- dence is clear that knowledge that the employees had signed union cards was the crucial motivating factor at the time the decision was made to cease taking any more freight and cutback on the work. In the mind of Operations Manager Robert Doman this was basically a decision to close up shop. And even on a wait and see basis, when the extent of employee support for the Union was made clear on June 20 when all drivers honored the picket line protesting failure to recognize the Union, the final decision to terminate all oper- ations was immediately made the next day. Based on the foregoing I find that the effective June 21 Taylor, Hilke, Kirchner, Bracco, Ecsedy, Semler, and John Doman were terminated from their employment with Milo Express because of employee support for the Union and that since that time they have not been reinstated. I further find that these terminations and failures to reinstate dis- couraged membership in the Union. Because Milo Express and Keystone are a single employer, they are, as such, res- ponsible for this conduct and accordingly have violated Section 8(a)(3) and (1) of the Act. B. The Alleged Refusal To Bargain 1. The issues The complaint alleges, and the answer denies, that Milo Express and Keystone, constituting a single employer, have since June 18 engaged in a general refusal to bargain with the majority representative of employees of Milo Express, thereby violating' Section 8(a)(5) and (1) of the Act. The complaint further alleges that Section 8(a)(5) and (1) were further violated on June 21 by the unilateral closing of the Milo Express terminal and the termination of the employees there. This allegation of unilateral action is denied except for the admission that no consultation with respect to the closing of the terminal or the termination of its employees was had with the Union. 2. The alleged appropriate unit The complaint alleges, and the answer denies, that all truckdrivers employed at the Milo Express terminal, exclud- ing all office clerical employees and guards, professional employees, and supervisors as defined in the Act, constitute an unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. There is very little evidence in the record as to the appro- priateness of the alleged bargaining unit. The burden of establishing the allegation is, of course, on the General Counsel. However, in the circumstances I view that burden as being a light one. The description of the alleged unit on its face appears normal for the trucking industry. No evi- dence in the record suggest that it is inappropriate. It en- 318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD compasses all regular drivers of Milo Express and I construe the allegation to be confined to regular drivers. There is some evidence in the record that Milo Express also used lease drivers, at times as many as three. From the record it is not clear whether these drivers were or were not employ- ees of Milo Express nor whether, if employees, they could appropriately be included with the regular drivers in a bar- gaining unit. In the circumstances it does not appear that a unit omitting lease drivers would be inappropriate. Consid- ering that historically the regular drivers, without benefit of outside representation, have met annually with Zigmund Milos to ask what they could expect by way of wage increas- es, it seems to me there is sufficient evidence in the record on which to base a finding that the alleged appropriate unit, limited to regular drivers, is appropriate under the Act. I so find. 3. The alleged majority status of the Union The complaint alleges, and the answer denies, that since June 18, the Union has been the majority representative of Milo Express drivers. I have found above that a unit consisting of the regular truckdrivers constitutes an appropriate unit. There were seven such drivers: Daniel Taylor, Harry Hilke, Robert Kirchner, David Bracco, Joseph Ecsedy, Robert Semler, and John Doman The evidence shows that four of these, Hilke, Kirchner, Bracco, and Ecsedy, signed cards authoriz- ing the Union to represent them on June 8. Taylor filled out such a card on that day and, although he inadvertently neglected to sign it, he intended as of then to authorize the Union to represent him. These authorizations were all out- standing on June 18, the date on which it is alleged the Union enjoyed majority status. And so far as this record shows, that same situation continues. Inasmuch as five of the seven employees in the unit indicated their desire that the Union represent them, I find that since June 18, the Union has been designated by a majority of employees in the unit as their bargaining representative. I further find that under Section 9(a) of the Act, by virtue of such designa- tion, the Union became and continues to be the exclusive representative of all employees in that bargaining unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 4. The request for recognition As noted earlier herein, the evidence shows, and I find, that on Monday, June 18 Union Organizer William Reed called on Zigmund Milos at the Keystone terminal and asked for recognition of the Union as the representative of the Milo Express drivers. He in effect repeated the request on Wednesday, June 20 when he returned to show Milos the authorization cards. And the request for recognition was given further continuing force by the picketing of the driv- ers at the Milos terminal beginning June 20 in support of the demand for recognition. Accordingly, I find that, as alleged in the complaint, the Union since June 18 has been request- ing recognition and bargaining as the reresentative of Milo Express drivers. 5. The alleged refusal to bargain The complaint alleges, and the answer denies, that since June 18 the employer has refused generally to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. Actually Zigmund Milos did not refuse to recognize or bargain with the Union when the first demand was made by Reed and McCue on Monday, June 18. At that time he merely expressed doubt that the Union represented the em- ployees and further said he would like to see the authoriza- tion cards, which Reed did not have with him at the time but said he would bring the following day. At that point the Employer had not refused to bargain. However, by the time Reed returned 2 days later, Wed- nesday, June 20, management had polled one employee as to whether he had signed a union card, and had stiffened its attitude. On June 20, when Reed displayed the authoriza- tion cards to Milos, Milos examined them and stated he did not recognize the Union. When Reed then informed him that the employees were going on strike Milos ordered him off the property. This refusal to bargain was made in the face of asserted union majority status backed up by authori- zation cards and the declaration of a strike. The strength of the Union's status as a representative was immediately thereafter further buttressed by the picket line set up at the Milo Express terminal, which was honored by all employees in the bargaining unit including those who had not signed authorization cards. Because of the substantial unfair labor practices in viola- tion of Section 8(a)(3) of the Act, which occurred on June 21 with the closing of the Milo Express terminal, I find that the June 20 and thereafter refusal to recognize and bargain with the Union violated Section 8(a)(5) and (1) of the Act. N.L R B. v. Gissel Packing Co., Inc., et al., 395 U.S. 575 (1969). Dismissal of the entire driving staff because a major- ity of them had authorized the Union to represent them constituted substantial employer misconduct which I find will preclude the holding of a fair election. Accordingly it is appropriate to rely on the Union's majority status as demonstrated by means other than a Board election. Com- mitting such unfair labor practices was not an option legally open to the Employer, and having resorted to such conduct, its refusal to recognize and bargain with the approved ma- jonty representative violated Section 8(a)(5) and (1) of the Act. 6. The closing of the terminal The complaint also alleges an unilateral violation of Sec- tion 8(a)(5) and (1) when the Milo Express terminal was closed and the driver terminated effective June 21. The complaint alleges, and the answer admits, that this was carried out without consultation with the Union. The com- plaint also alleges, but the answer denies, that no notice was given to the Union There is no evidence of any communication whatsoever between the Employer and the Union in advance of the effective date of closing. Communication to individual em- ployees cannot suffice. In any case, all any employee knew, commencing on the evening of June 18, was that work was being cut back. There was no specific notice to anyone prior MILO EXPRESS, INC. to the Employer's letter to individual employees on June 29 that the terminal was closing. Because, as of June 21, the Employer was obligated to recognize and bargain with the Union respecting drivers at the Milo Express terminal, the unilateral closing of the ter- minal and the terminating of those employees constituted a further refusal to bargain within the meaning of Section 8(a)(5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Employer set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States. Those found to be unfair labor practices tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce and are unfair labor practices within the meaning of Section 8(a)(3), (5), and (1) of the Act and Section 2(6) and (7) of the Act. CONCLUSIONS OF LAW 1. Milo Express, Inc. and Keystone Lawrence Transfer Company are a person within the meaning of Section 2(1) and an employer within the meaning of Section 2(2), en- gaged 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. The Employer, by terminating the employment of Daniel Taylor, Harry Hilke, Robert Kirchner, David Brac- co, Joseph Ecsedy, Robert Semler, and John Doman be- cause some of them authorized the Union to represent them, discriminated against each of them in regard to their hire, tenure of employment, or terms and conditions thereof thereby discouraging membership in a labor organization. The Employer thereby engaged in and is engaging in unfair labor practices proscribed by Section 8(a)(3) and (1) of the Act. 4. On June 18 the Union was, and at all times since has been, the duly designated collective-bargaining representa- tive of the Employer's employees in a unit of regular drivers employed at the Milo Express, Inc., terminal, but excluding all office clerical employees and guards, professional em- ployees and supervisors as defined in the Act. That unit is appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 5. On June 18 the Union requested, and at all times since has continued to request, that the employer recognize and bargain with it as the duly designated collective-bargaining representative of the employees in the aforesaid appropriate unit. 6. By refusing on June 20, and at all times thereafter, to recognize and bargain with the Union as the collective- bargaining representative of the employees in the aforesaid unit, the employer engaged in, and is engaging in, unfair labor practices proscribed by Section 8(a)(5) and (1) of the Act. 7. By unilaterally on June 21 closing the Milo Express, Inc., terminal and terminating the seven regular drivers em- 319 ployed there without notice to, or consultation with, the Union, the employer-engaged in, and is engaging in, unfair labor practices proscribed by Section 8(a)(5) and (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. - THE REMEDY Having found that the employer engaged in unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. I recommend that the employer be ordered to offer Daniel Taylor, Harry Hilke, Robert Kirchner, David Bracco, Joseph Ecsedy, Robert Semler, and John Doman immediate and full reinstatement to their former jobs or, if those jobs are not available, to substantially equivalent posi- tions in any of the Employer's operations, without prejudice to their seniority and other benefits and privileges, and that each be made whole for any loss of earnings suffered by reason of his termination by paying him a sum of money equal to that he would have earned in wages from the date he was terminated to the date reinstatement is offered, less net earnings during such period, such backpay to be com- puted in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, with interest thereon at 6 percent' calculated according to the formula in Isis Plumbing & Heating Co., 138 NLRB 716. I also recommend that the Employer pre- serve and to make available to Board agents upon request all pertinent records and data necessary in analyzing and determining whatever backpay may be due. Having found that the Employer violated Section 8(a)(5) and (1) of the Act by generally refusing to recognize and bargain with the Union and in particular by unilaterally terminating the drivers and closing the terminal, I further find that unless appropriate action is taken the Employer will profit from such unlawful conduct. It is appropriate, therefore, and I recommend that to remedy the unfair labor practices the Employer be ordered, upon request, to bargain with the Union as a representative of the employees in the unit herem found appropriate, and if an understanding is reached, embody the same into a written signed agreement. I further recommend that the Employer post appropriate notices. The General Counsel contends that the Employer here should be required to reopen Milo Express terminal. In view of the violations of Section 8(a)(3) and (5) found above, the Board would, in my view, have authority to order the facili- ty reopened. That, however, would be strong medicine con- sidering that the record here indicates that the Employer is something less than a giant in its industry and some eco- nomic justification for not continuing that terminal in oper- ation. Moreover, much of its equipment has been disposed of. It seems to me that substantial justice can be done if reinstatement of the discriminatees can be effected in opera- tions of the Employer which are continuing and if the Em- ployer is required to bargain with the Union. Accordingly, I do not recommend that the Employer be ordered to re- open its Milo Express terminal. [Recommended Order omitted from publication.]