Perschke Hay & Grain

60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kurt A. Perschke, a sole proprietorship d/b/a Persch- ke Hay & Grain and-Local 298, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case 25-CA-6647 January 9, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND PENELLO On April 30, 1975, Administrative Law Judge Ivar H. Peterson issued the attached Decision in this pro- ceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed cross-exceptions and a supporting brief. 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 has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order as modified below. 1. We find merit in Respondent's exceptions to the Administrative Law Judge's finding that Emil Perschke exercised supervisory authority over Respondent's truckdrivers and acted as an agent of the Respondent. The uncontradicted evidence in the record shows that Emil Perschke was not on Respondent's payroll and therefore he was not at any time material herein employed by Respondent in any capacity. Furthermore, the record contains no evi- dence that Emil Perschke was authorized to act as Respondent's agent. The fact that Emil is the father of Kurt Perschke, Respondent's owner, and leased a farm to Respondent for its business and the further fact that Emil Perschke may have made remarks of an allegedly threatening nature upon learning of the union activity of Respondent's employees is insuffi- cient to warrant a finding that he was an agent of Respondent. Accordingly, we shall dismiss that por- tion of the complaint which alleges that Respondent violated Section 8(a)(1) of the -Act based on com- ments made by Emil Perschke. 2. We find merit in the General Counsel's excep- tions to the Administrative Law Judge's failure to find and to remedy Respondent's other violations of Section 8(a)(1) as alleged in the complaint. Thus, the record shows and we find that Respondent, through Kurt Perschke, its principal officer, told employees he would sell his business if a union organized the employees, that he would lay off the employees be- cause they had signed cards for the Union, and that he would not permit the employees to drive his trucks. We find that these statements were threats in violation of Section 8(a)(1) of the Act. 3. We adopt the Administrative Law Judge's find- ings that Respondent, by announcing that it was going to go on an "owner-operator" basis to trans- port its product, and by laying off all of its truckdri- vers because they had signed union cards, violated Section 8(a)(3) and (1) of the Act. Respondent is engaged primarily in the purchase, sale, and distribution of hay and grain in La Porte, Indiana. Up to and including the time of the events herein, Respondent owned 11 trucks titled in its own name, leased 2 others from James Craft, one of its office employees, and leased 2 tractors from two other persons. On October 20, 1974,' 8 2 of Respondent's 11 truckdrivers met with a union 9 rep- resentative and signed authorization cards for the Union. On October 25, the Union filed a petition for an election, notified Respondent of its majority sta- tus, and demanded that Respondent recognize and bargain with the Union. Between October 25 and 29, Respondent's owner Kurt Perschke informed the drivers that they were laid off and that the only way in which anyone would work for him was to go "owner-operator" because he was changing to an "owner-operator" type of operation. On October 26 and 28, Respondent advertised in the La Porte Her- ald newspaper offering trucks for sale. On October 28, Kurt Perschke told Alden Reed, a truckdriver, that he was laid off because "we've got a little union trouble." Reed also inquired of Respondent why em- ployees Charles Hayter and Hahn were still driving, to which Respondent replied, "they hadn't signed union cards." Reed also discussed the matter of buy- ing or leasing a truck and Respondent told him that perhaps something could be worked out but that Re- spondent wished to wait a few days because he "wanted to make the bastards sweat." Reed also heard Respondent tell someone during a telephone conversation, that he could not haul because he had "union trouble." After November 4, the only former employees whose services were utilized by Respon- dent were Charles Hayter and Leigh Roy Hahn. Also after November 4, Respondent utilized the services of eight other persons not formerly on tthe payroll and as far as the record shows they too were not 1 All dates are 1974. 2 On October 21, another employee, Kenneth Naragon, executed a similar application for membership. Also on that date employee Leigh Roy Hahn told Emil Perschke, father of Kurt Perschke, that the employees had attend- ed a union meeting 3 Local 298, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America. 222 NLRB No. 11 PERSCHKE HAY & GRAIN members of the Union. The Administrative Law Judge implicitly rejected Respondent's entire economic defense including its assertion that it had made its decision to go on an "owner-operator" basis earlier in February, and only implemented that decision on October 21, and that it had no duty to bargain about the effects of that deci- sion.4 The Administrative Law Judge found that there "is evidence . . . casting some doubt upon the legitimacy of Respondent's purchase or lease ar- rangements with the drivers." We also find that the timing of the employees' union activity and the Respondent's announced change to an "owner-oper- ator" type of operation is clear evidence of unlawful motivation. This sudden change in Respondent's op- eration came about despite its prior assertions to em- ployees that it was dissatisfied with the "owner-oper- ator" method in the past, assertions which were made just a short time before the advent of the Union. We find, upon the entire record, that Respondent effectively still owns the trucks and effectively is still the employer of the truckdrivers who were driving them at the time of the hearing. We further find that Respondent's alleged economic difficulties were merely a pretext and that it was the employees' union activity which triggered Respondent into changing its operation and discharging its truckdrivers, and refus- ing to bargain with their lawfully designated bargain- ing agent. We agree, therefore, with the Administrative Law Judge that Respondent violated Section 8(a)(3) of the Act'by discharging its truckdrivers for engaging in union activity. Accordingly, we shall order Respon- dent to offer reinstatement to its truckdrivers. We shall also order Respondent to recognize and bargain with the Union as of October 25, the date on which the Respondent embarked on its clear course of unlawful conduct 5 by commencing to lay off the employees. As of October 20, the Union had valid authorization cards signed by 8 of Respondent's 11 employees in the appropriate unit. On October 25, the Union made a lawful demand for recognition upon Respondent which Respondent failed to ac- knowledge. Instead, its response thereto was to dis- charge all its employees. We find therefore that this conduct has made the holding of a fair election im- possible and that a bargaining order is required to best protect the rights of the employees and effectu- ate the purposes of the Act. 4 We agree with the Adrmmstrative Law Judge's implicit conclusion that the principle of Fibreboard Paper Products v NL.R.B, 379 U.S. 203 (1964), is applicable to the situation herein. 5 Trading Port, Inc., 219 NLRB No. 76(1975) CONCLUSIONS OF LAW 61 1. Respondent is 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 the Act and has been as of October 20, and now is, the exclusive collective-bargaining repre- sentative of Respondent's truckdrivers in the follow- ing appropriate unit: All over-the-road truckdrivers employed by the Employer at its premises in La Porte, Indiana, excluding all other employees, guards, profes- sional employees, technical employees, and su- pervisors as defined in the Act. 3. By telling its employees that if they ever became involved with a union Respondent would sell ev- erything, that they would not be permitted to drive Respondent's trucks because they had signed cards for the Union, that they had been laid off because they had joined and assisted the Union and had sought to bargain collectively through representa- tives of their own choosing, Respondent has violated Section 8(a)(1) of the Act. 4. By laying off and discharging its over-the-road truckdrivers because of their union activity Respon- dent has violated Section 8(a)(3) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the mean- ing of Section 2(6) and (7) of the Act. 6. Emil Perschke is not and was not at any time material herein an employee or agent of Respondent. Respondent did not violate Section 8(a)(1) by any statement uttered by him. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(1) and (3) of the Act, we shall order that it cease and desist therefrom, and take certain` affirmative action designed to effectuate the policies of the Act. We have found that the Respondent changed its operations and terminated its employees in retalia- tion to its employees' union activities, in order to dis- courage such activities. This constitutes a clear viola- tion of Section 8(a)(3) of the Act. In order to meaningfully remedy this wrong, and to effectuate the policies of the Act, we shall order the Respondent to offer to all its employees thus discriminatorily ter- minated reinstatement to their former or substantial- ly equivalent positions, without prejudice to their se- niority or other rights and privileges. We shall also order that Respondent make them whole for any loss 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of earnings or other benefits suffered because of its discrimination against them. Backpay shall be based upon the earnings which they normally would have received from the date of their discharge to the date of Respondent's offer .of reinstatement, less any net interim earnings, and shall be computed on a quar- terly basis in the manner set forth in F. W. Wool- worth Company, 90 NLRB 289 (1950), - and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). We have also found that Respondent's conduct was motivated by- a desire to avoid dealing with the lawfully designated bargaining agent of a majority of its truckdrivers. An examination of the Respondent's conduct indicates clearly that it was intended to, and did in fact, dissipate the Union's overwhelming ma- jority status among the Respondent's employees. Accordingly, we find that Respondent's unlawful conduct undermined the Union's majority status and prevented the holding of a fair election. Since the Union's lawful demand for recognition was made on October 25, and as the Respondent immediately en- gaged in its serious unfair labor practices, our bar- gaining order shall be effective as of October 25, 1974. Trading Port, Inc., supra. Although we have found that Respondent's al- leged sale of its trucks did not effectively divest it of control over them and their purchaser-drivers, we recognize that there might be obstacles to the extin- guishing, of such rights-the purchaser-drivers may have under laws not under our jurisdiction. Resolu- tion of the effects of such contingencies not being possible on the present record, we leave it to the compliance stage of this proceeding. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law' Judge as modified below and hereby orders that Respondent, Kurt A. Perschke, a^ sole proprietorship d/b/a Perschke,Hay & Grain, La Porte, Indiana, its officers, agents,-suc- cessors, and assigns, shall take the action set forth in the said recommended Order, as so modified. 1. Substitute the following for paragraph -1. "1. Cease and desist from: - "(a) Unlawfully discharging or otherwise discrimi- nating against any employee. "(b) Telling its employees that if they ever become involved with the Union Respondent will sell its business, and telling the employees that they will not be permitted to drive Respondent's trucks because they signed cards for the Union, and that the em- ployees were or will be laid off because they join or assist the Union. "(c) In any other manner interfering with, re- straining, or coercing employees in the .exercise of their rights to self-organization, to-form labor organi- zations, to join or assist the above-named Union, or any other labor organizations, 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 pro- tection, and to refrain from any and all such activi- ties, except to the extent that such right may be af- fected -by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as amend- ed." 2. Insert "or other benefits" after "earnings" in paragraph 2(b) of the recommended Order. 3. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT tell our employees that we will sell the business if they join or assist a union, or that they will not be permitted to drive our trucks and will be laid off or discharged if they join or assist the Union to obtain a collective- bargaining representative. WE WILL NOT discharge or otherwise discrimi- nate against any employee for joining or assist- ing a labor-organization or engaging in other ac- tivity- protected by the Act. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exer- cise of any right guaranteed under Section 7 of the Act, including the right to refrain from en- gaging in any or all of the activities guaranteed thereunder, except to the extent that such right may be affected by an agreement requiring membership-in a labor organization as a condi- tion of employment, as authorized in Section 8(a)(3) of the Act. WE WILL offer immediate reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, and make whole each of the following employees for any loss of earnings or other benefits he may have suffered by reason of our discrimination against him: Kenneth Naragon Ronald Gerald PERSCHKE HAY & GRAIN 63 Robert Merley Ronald Krueger Alden Reed Rex Lowe Vanis Richie Charles Hayter James Southard - Leigh Roy Hahn Patrick Fitzgerald WE WILL, upon request, bargain collectively with Local 298, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and, if an understanding is reached, embody the same in -a written agreement. The appropri ate bar- gaining unit is: All over-the-road truckdrivers employed at the Employer's premises in La Porte, Indiana, excluding all other employees, technical em- ployees, professional employees, guards, and supervisors, as defined in the Act. All our employees are free to become, remain, or refrain from becoming or remaining, members of the above-named Union or any other labor organization. KURT A. PERSCHKE, A SOLE PROPRIETORSHIP d/b/a PERSCHKE HAY & GRAIN DECISION STATEMENT OF THE CASE IVAR H. PETERSON, Administrative Law Judge: This case was tried before me in LaPorte, Indiana, on 3 days begin- ning February 10 and concluding on February 12, upon the complaint issued by the Regional Director for Region 25 on December 18, 1974, based upon a charge filed by Local 298, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, herein called the Union, on October 31. Briefly stated, the com- plaint alleged that the Respondent, a proprietorship doing business under the trade name and style of Perschke Hay & Grain, with its principal office and place of business in LaPorte, Indiana, is engaged as a broker at that location in the sale and distribution of hayand gram and related prod- ucts. Admittedly, the Respondent comes within, the juris dictional standards of the Board and, I find that it is an employer engaged in commerce within the meaning of Sec- tion 2(6) and (7) of the Act. I further find that the Union is a labor organization within the meaning of Section 2(5) of the Act, and that Kurt Perschke, the owner of the Respon- dent, and Emil Perschke, whose status is more fully dis- cussed below, is an agent of the Respondent and that both are supervisors of the Respondent within the meaning of Section 2(11) of the Act. The complaint alleged that the Respondent, by Emil Perschke, on or about October 21, at its farm in LaPorte, Indiana, warned its employees that it would close the facil- ity and not operate the trucks if , the employees did not refrain from becoming or remaining members of the Union or rendering any assistance or support to it. In addition, the complaint charged that Emil Perschke, on or about October 21, at the Respondent's farm threatened leaders of the Union with unspecified reprisals . Also, the complaint alleged that Kurt Perschke, on -or about October 29, told employees that they would not be permitted to drive the Respondent's trucks because they had signed cards for the Union and, on or about October 28, told employees that they'had been laid off because they had joined and assisted the Union and had sought to bargain collectively through representatives of their own choosing; finally, the com- plaint alleged that on or about October 25, the Respondent laid off- and discharged 1 I named employees and, at all times thereafter, failed and refused to recall or reinstate them. Such conduct, according to the complaint, was occa- sioned because the majority of the employees had formed and/or assisted the Union and sought to bargain collec- tively with the Respondent andhad engaged-in other pro- tected activity within the meaning of the Act. The com- plaint further alleged that all over-the-road truckdrivers employed by the Respondent at its LaPorte facility, ex- cluding technical employees , professional -employees, guards and all supervisors as defined in the Act, constitut- ed a unit appropriate for the purposes of collective bar- gaining within the meaning of Section 9(b) of the Act and, at all materials times, a majority of said employees had designated the Union as their exclusive collective -bargain- ing representative within the meaning of the Act. Accord- ing to the complaint, the Respondent's activities therein detailed were violative of Section 8(a)(1) and (3) of the Act. Upon the entire record in the case, and from my obser- vation of the witnesses as they testified and careful consid- eration of the briefs filed with me on April 14, by counsel for the General Counsel and the Respondent, I make the following findings of fact. 1. THE ALLEGED UNFAIR LABOR PRACTICES A. Employee Organizational Activity Marvin Mack, a business representative of the Union, on October 16 spoke with James Taylor, a ,business represen- tative of the International Association of Machinists, and as a result met with some eight employees of the Respon- dent on October 20 at the IAM union hall in LaPorte. On that occasion, the employees signed union cards. On Octo- ber 25, the Union filed a representation petition with the Board seeking to be designated as the exclusive representa- tive of the Respondent's over-the-road truckdrivers, Mack having shortly theretofore written the Respondent inform- ing it that the Union had been designated by "an over- whelming majority" of the Respondent's employees and offering to submit the authorization cards to an impartial person for examination. The Union requested that the Re- spondent recognize it as the exclusive representative of the over-the-road truckdrivers and that negotiations for a col- lective bargaining agreement commence "at the earliest possible date." The Union received no response to its let- ter. On Saturday, October 26, the Respondent advertised in the LaPorte Herald Argus offering trucks for sale, and, in the Monday issue of the same paper, placed a similar ad- vertisement.- - On October 25, Mack received a telephone call from one 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the employees, Patrick Fitzgerald, advising that he had heard a rumor that the Respondent was going to an owner- operator basis. On the evening of Saturday, October 26, Robert Merley, one of the truckdrivers, telephoned Mack and informed him that several of the employees had been laid off. Mack then arranged to meet with the employees on Monday, October 28. On that occasion, the drivers in- formed Mack that when they reported to work they were told there was no work. Mack told the employees to report for work on Tuesday morning and, if they received the same response, to file for-unemployment compensation. Kenneth Naragon, who had worked for the Respondent as a truckdriver since April, testified that on the evening of October 25 he met another driver of the Respondent, Charles Hayter, at the Respondent's place of business and that in their conversation Hayter told him that the Respon- dent "was going to owner-operator and that I was to re- move my gear from the truck." The following Monday morning, at approximately 8 o'clock, Naragon went to the downtown office of the Respondent where several other over-the-road drivers of the Respondent were present. The employees were inquiring of Perschke with regard to their pay and employment and asked when their checks would be ready. Perschke advised them that that day was a holi- day and that their checks would be ready on the following day, October 29. At that time, Perschke told Naragon that "he was going to owner-operator and we could buy one of his trucks if we wanted to go on working." Naragon testi- fied that prior to that time he had not heard either Persch- ke or any other responsible official state that the Respon- dent was going to an owner-operator operation. About October 30, Naragon saw Charles Hayter driving a vehicle which, on its side, had lettering stating that it was one of the Respondent's vehicles. At approximately the same time, Naragon saw another over-the-road driver, Leigh Roy Hahn, and he related that Hahn "was also in a truck of the same nature as the one Hayter was driving," a grain truck of the Respondent which had the Respondent's let- tering on the door. Naragon testified that the truck Hahn was driving was the one he customarily had driven. After Perschke told Naragon on the 28th that he had gone to an owner-operator operation, Naragon did not thereafter drive for the Respondent. Naragon never received any word from the Respondent that he should return to work as a driver. On cross-examination, Naragon testified that he was first approached with respect to the Union by Southard who told him about the meeting that had occurred on the 20th and that Southard told him that the employees had gotten together and had signed cards applying for member- ship in the Union and that Naragon could sign a card and that he (Southard) would turn it in, or Naragon could re- turn it to Mack or Taylor or anyone connected with the Union. The meeting was held on Sunday, October 20, since that was most convenient for the drivers. With respect to Kurt Perschke's advice on the 25th to the effect that the Respondent was going to an owner-operator type of opera- tion, Naragon's first reaction, so he testified, was to find out what the situation was inasmuch as he had been unable to contact Perschke at the office. He related that he had never heard any rumor to the effect that the Respondent was going to an owner-operated operation. In his discus- sion with Perschke on October 28, Naragon asked Persch- ke whether there was any work and why the employees had been laid off. To this, Perschke replied that there was work available but that Naragon would have to purchase a truck, but Naragon testified that he was not interested in purchasing a truck. Naragon later saw Taylor driving a truck owned by one Jim Craft. The same was true with regard to Hahn. Naragon related that following his layoff he had been working part-time driving the truck for one Don Blad, a farmer in the nearby area. According to Nara- gon, the truck he had been driving was sold by Perschke, and Craft told him that he was leasing the trucks to Kurt Perschke. Vanis Richie testified that he worked for the Respondent from August 1973 through October 29 of the following year as an over-the-road driver. He related that on the night of October 29, he called Kurt Perschke from the Emil Perschke farm to report that he was back from a trip. On that occasion, Perschke told Richie that he was out of busi- ness and that Richie should take his belongings out of the truck the following day. Richie did as he was instructed and never thereafter drove for the Respondent, nor was he called by anyone representing the Respondent to go out again. Richie related that he became aware of the October 20 meeting approximately a week earlier, having been told about the meeting by one of the drivers. According to Ri- chie, there had been discussions among the drivers con- cerning organization for approximately a month before the meeting. However, he had heard no rumor to the effect that Perschke was going to switch over to an owner-opera- tor operation. Alden Reed had worked for the Respondent from July 1974 as an over-the-road driver. He related that on Satur- day, October 26, he returned after having made a delivery on the east coast, parked his truck at the Emil Perschke farm, and called in but reached no one as it was late at night. He testified that on Monday, October 21, the day after he signed his union card, he was in the presence of driver Hahn and Emil Perschke at the latter's farm. Ac- cording to Reed, Hahn told Perschke that the employees had gone to a union meeting and that after Hahn left Perschke stated, "when Kurt hears about it . . . he will shut it down, that he will not operate under a union." He further related that Emil Perschke stated that he under- stood the employees had "voted a union in." When Hahn left, Perschke, referring to Fitzgerald, stated he was the individual that had started the trouble and that he had "tried to get Kurt to fire him before." The following Mon- day morning, as Reed went to get his truck ready, Kurt said he was going nowhere and that he was laid off. Reed asked why and Perschke replied, "Well, we've got a little union trouble." Thereafter Reed was told that any future driving he did would necessitate his purchasing a truck. When Reed was first employed he asked Perschke if he could hire on as an owner-operator but was told that Perschke was not hiring any owner-operators because he had had one in the past and that it did not work out. Reed further testified that he talked with Kurt Perschke on Octo- ber 29, and discussed the matter of buying or leasing a PERSCHKE HAY & GRAIN 65 truck. On that occasion he asked Perschke why Hahn and Hayter were driving and the rest were not. Perschke, so he testified, replied "because they hadn't signed the union cards." Perschke also told him that perhaps something could be worked out but that he wished to wait a few days because he "wanted to make the bastards sweat." Reed further testified that on October 29, he overheard Perschke tell someone on the telephone that he could not haul for that individual because "he had union trouble, that he couldn't haul." James Southard, who was hired as an over-the-road truckdriver on September 18, testified that as he was filling out his application he asked Kurt Perschke if his operation was a union shop or a nonunion shop, and that Perschke replied "I am nonunion. If I ever hear of any union being involved in this place I will sell everything." Prior to Octo- ber 28, Southard and Perschke had a conversation con- cerning Perschke going owner-operator and Southard asked Perschke if he wished to sell any particular truck and whether, if he bought the truck, he could lease it first. Perschke replied that he could not, because from his past experience owner-operators were not dependable. South- ard signed a union card on October 20, and gave one to Naragon. Southard called Perschke the morning of Octo- ber 28 about his work schedule for Monday, and requested that he be allowed to take Monday off because he had an appointment to see some people about a new house. Perschke told hun that he could have the day off but that it would be no use for him to come in later as he was being laid off. When Southard came in Tuesday morning to get his check Perschke, in the presence of some other employ- ees, showed him a letter from an attorney, dated October 24, in which, according to Southard, the attorney stated that pursuant to an earlier conversation and due to the economic situation, the high cost of labor and repairs, it would be wise for Perschke to become an owner-operator. That same morning the men discussed matters concerning unionization and Perschke stated that he would go into the other room in order that they might feel free to talk. Robert Merley, who went to work for the Respondent in November 1973, testified that he knew of no owner-opera- tors working for the Respondent until October 25, 1974. He further related that he knew Craft leased trucks to Perschke and that these vehicles were primarily driven by Naragon and one Rex Lowe. He attended the October 20 meeting. On October 25, he returned from a trip and, to- gether with some other drivers, was waiting at the Perschke farm. He testified that driver Krueger stated that he had been told that the drivers were laid off as the Respondent was going to an owner-operator basis. The following Mon- day Perschke told the drivers that they were laid off. Mer- ley further testified that during his tenure of employment he had heard no rumors concerning a union or thepossibil- ity of Perschke switching to an owner-operator operation. Perschke never spoke to him about a union or told him that if he or any other employees became members of the Union he would shut down or sell out. Merley further testified that late in the summer of 1974 while out at the Perschke farmEmil Perschke, referring to Fitzgerald, stated that Fitzgerald was a troublemaker and that he wanted a union and had talked about a union pre- viously. According to Merley, Perschke referred to Fitzger- ald as a "son of a bitch" and said that he did not want him around. Further, he testified that Perschke said that the Respondent did not want a union but that Fitzgerald had said that he would like to have a union. Ronald Krueger worked for the Respondent from the latter part of 1973. On October 24, a Thursday, he tele- phoned the plant from Mechanicsburg, Pennsylvania, to ascertain whether he would be bringing back another load or picking one up. Perschke told him to bring his rig in and further that there would be no work on Saturday as he was going to conduct his business on an owner-operator basis. Ronald Gerald, who began working for the Respondent as an over-the-road truckdriver in July 1974, stated that in October he called Kurt Perschke from the Perschke farm in the evening after he had come back from a run. Perschke told him to park the truck, that the Respondent was "clos- ing the doors", and that the only way in which anyone would work for him was to go owner-operator. Gerald was at the office along with other drivers on October 28, at which time Perschke told him that he was going owner- operator and the drivers were laid off. Rex Lowe, another over-the-road truckdriver, testified that when he returned from a trip on October 29, he called in from the farm and spoke to Kurt Perschke, who told him that some changes had been made since he had left and that the Respondent was going owner-operator. According to Lowe, the following day two trucks were leased to Perschke and were driven by Naragon and Lowe. About the first or second of November, he saw Hayter driving a Perschke truck. B. The Respondent's Change in Operations Kurt Perschke has been the sole owner of the Respon- dent for approximately 14 years. Lindbergh, a broker or trader who worked for the Respondent and was on its pay- roll during all times material, operated from both the farm and the LaPorte location. Among his duties is that of dis- patching the drivers. Perschke's cousin, Philip, works on the farm performing farm work and is on the Respondent's payroll. Craft, who owned two road tractors during 1974, also worked at the LaPorte location. During 1974, particu- larly the latter part of the year, Naragon and Lowe princi- pally drove these trucks, although on occasion other driv- ers did so. Fitzgerald also drove tractors for the Respondent that were owned by Craft but operated by the Respondent on a lease basis. Prior to October 25 Hayter and Hahn also worked for the Respondent as over-the- road drivers. The drivers were paid on a percentage basis, varying from 24 percent to 29 percent, depending upon the length of time they had driven for the Respondent. Howev- er, when they hauled oil they were paid a flat rate per trip. Following the layoff, Hahn drove for Craft for appoxi- mately a week and then the arrangement' was changed, whereby Perschke paid Craft 70 percent of the revenue and Craft in turn paid Hahn. The same arrangement was made with respect to Hayter. Perschke testified that he did not discuss with Hayter and Hahn the matter of driving for Craft, and denied that he told Naragon and Lowe that, on the occasion they were released, if they wished to drive for 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Perschke they would have to operate as owner-operators. Perschke also denied that he told the drivers who appeared in his office on Monday, October 28, that if they wished to drive further they would have to do so as owner-operators. He testified that in response to a question from Naragon about whether there was any work, he stated that "there's always work but we can't afford to do it," and that he did not remember "trying to talk them into coming on as own- er-operators." He admitted, however, stating that from Oc- tober 25 on he told the drivers that he was going on an owner-operator basis. Perschke testified that before he ad- vertised tractors for sale he had owned 11 and, in addition, had leased a number from Craft, as well as one tractor from Louis Perschke, and one from Lauren Dye. As of the end of October Fay Dunlap and Craft were owner-opera- tors. After November 4, Dunlap, Hayter, and Hahn oper- ated trucks as owner-operators, as did Gene Eaton, Wil Van Scoik, Jack Foster, Frank Moore, Louis Perschke, Leslie Hardwick, and Bob Patterson. There is evidence, adduced by counsel for the General Counsel, casting some doubt upon the legitimacy of the Respondent's purchase or lease arrangements with the drivers. Thus, drivers Hahn and Hayter, who had not signed union cards to the knowledge of the Respondent, continued to drive under a "purchase agreement" with Perschke. The documents allegedly evidencing these sale agreements were unsigned and, in response to a question by counsel for the General Counsel as to whether the "agreement" had been made up "because of the subpoena" Perschke answered in the affirmative. Furthermore, coun- sel pointed out that Perschke signed his sales agreement with Hayter on November 1, whereas, in his affidavit to the Board agent, dated November 26, he stated that neither he, nor Hayter, or Hahn executed anything in writing until at least November 26. Furthermore, Perschke testified that the sales agreement with Hahn was also executed on No- vember 1, although in his affidavit of November 26, he stated that nothing in writing was signed between these parties as of November 26. Perschke testified that Hayter probably signed the tractor purchase agreement "about a week ago,"=which-would be the week ending February 7. Counsel for the General Counsel also pointed out that Perschke holds title to all of the tractors that he sold, other than the vehicle sold to Blad. On February 12, Blad pro- duced at the hearing the registration and title to the vehicle he purchased which were in Perschke's name as of that date. Counsel for the General Counsel points out that the Indiana Driver's Manual, revised as of. February 1974, pro- vides that the title to a motor vehicle must be transferred within 10 days of the sale, and that a subsequent revision of that manual contains the same provision.' Counsel for the General Counsel, so he states in-his brief, "brings these requirements" to my attention inasmuch as Perschke final- ly testified that he holds title to 10 of his 11 tractors and, according to Blad, the vehicle he purchased "is also in Kurt Perschke's,-name-all contrary to current Indiana State law." He concludes his argument in this respect by stating that at present there are two drivers, both nonunion men, 'Counsel attached-to his brief these documents , requesting that I take official notice of them: I have done so. "who are driving under Perschke State Gram permits, State reciprocity agreements, Perschke license plates, and with Perschke's certificate of title and certificate of registra- tion." From all this, I infer that counsel for the General Counsel in effect is suggesting that the "sale" of his vehi- cles was in the nature of a camouflage and that, in fact, Perschke is still the employer of the individuals driving the trucks. In his brief, counsel for the Respondent points out that the Respondent's business records reveal "that for most of the year 1974 Respondent's business was running a deficit balance or a net operating loss with the greatest deficit reaching $117,900.16" and that for the first 10 months of 1974 "by using owned equipment the business would have sustained ,a net operating loss of $39,152.15." On the other hand, counsel asserts that Respondent's records show that, by using owner-operated equipment, "the business for the same period. of time would have had a net profit of $32,888.68" and that "a transition from owned equipment to owner-operated equipment would transfer $340,052.72 from respondent's business onto the owner-operators or lessors of leased vehicles." With regard to the contention on the part of the Govern- ment that the Respondent had a duty to bargain with the Union, counsel for the Respondent contends that the "eco- nomic evidence," demonstrates that the Respondent made its decision to change its operation in February 1974 and "made the decision to implement the necessary action on October 21, 1974." He argues that the Respondent knew that on October 29 there would be no over-the-road drivers and "knew that he was not on notice at the time of his earlier decisions that any employees were represented." Thus, he contends, it would be "harsh and unfair to charge the respondent with refusal to bargain when, acting in good faith and with common sense, the respondent could reasonably conclude that there was nothing to bargain about and no appropriate bargaining unit with which to bargain," and that a meeting on October 29 "would have been an exercise in futility" inasmuch as the Act "does not require an employer merely to sit down and talk unless there are wages, hours, or other terms and conditions of employment about which to bargain." Thus, counsel con- cludes that in his view the Respondent was acting in good faith and that "under the unique circumstances of this case, he was not required to respond to the demand letter." Counsel for the Respondent argues that the instant mat- ter is unlike that involved in Fibreboard v. N.L.R.B., 379 U.S. 203 (1964), and is much more similar to N.L.R.B. v. Adams Dairy, Inc., 350 F.2d 108 (C.A. 8, 1965). Counsel refers to the Court's language in Fibreboard (at 240) to the effect that in that proceeding, the company's "decision to contract out the maintenance work did not alter the company's basic operation" inasmuch as the "maintenance work still had to be performed in the plant no capital in- vestment was contemplated." What there occurred, he ar- gues,, was that in the language of the Court, the company "merely replaced existing employees with those of an inde- pendent contractor to do the same work under similar con- ditions of employment." On.the other hand, counsel argues that theAdams Dairy case "involved an employer who with more than two years left on, a current labor contract PERSCHKE HAY & GRAIN - 67 changed from route driver-salesmen to independent con- tractors." And counsel points out that the court of appeals, following remand by the Supreme Court, found-for the respondent Therein, pointing out that in that case there was "a change in basic operating procedure in that the dairy liquidated that part of its business handling distribution of milk products. Unlike the situation in Fibreboard, there was a change in the capital structure of Adams Dairy which resulted in a partial liquidation and a recoup of capital investment. To require Adams-to bargain about its decision to close out the distribution end of its business would sig- nificantly abridge its freedom to manage its own affairs." Thus, counsel urges that, in the instant case, "it is obvious that the change of operation changed the basic capital structure, constituted a partial liquidation of fixed assets (namely, eleven trucks each costing over $20,000.00) and resulted in a recoup of capital investment." In sum, counsel urges that it is "difficult without splitting hairs, to find much of a distinction between the Perschke case and the Adams Dairy case and respondent believes that the Board should find that he had no obligation (even if the employ- ees were represented) to bargain with regard to this major entrepreneurial decision and that to require him to do so, would be to significantly abridge his freedom to manage his own affairs." C. Discussion and Conclusions In resolving the issues in this case, it is necessary to weigh the Respondent's economic situation and the conse- quent rearrangements it made in shifting from operating its own equipment to an owner-operator or lessee set up, which reduced its capital requirements and stabilized its costs, against the steps taken by its drivers in joining the Union. The timmg of these two events may, on the one hand, be purely coincidental, as in substance urged by counsel for the Respondent in his able brief, or, on the other hand, as contended by counsel for the Government, have a cause-and-effect relationship. Insofar as possible, I have endeavored to formulate my conclusions upon the basis of the objective facts and the reasonable inferences to be drawn therefrom. Certainly I have no device at my dis- posal to enable me to determine, where conflicts in testi- mony exist, which version should be accorded the greater credence. In sum, the resolution necessitated an exercise in judgment, a fallible endeavor at best. From my observation of the witnesses, I am confident that each endeavored, to the best of his ability, to relate accurately what he heard and saw. With respect to the status of Emil Perschke, several fac- tors persuade me that he is an agent of the Respondent. In the fall of 1974, before the drivers were terminated, Fitz- gerald complained to Emil about another employee, Phil Perschke, a cousin of Kurt, asserting that Phil was engag- ing in improper conduct with Fitzgerald's wife, and that Kurt had failed to keep a promise made to Fitzgerald that he would terminate Phil for this conduct. Emil Perschke told Fitzgerald that he did not think the allegation con- cerning Phil was true, but if it were he would make "dam- ned sure" that Phil was discharged. When Fitzgerald ex- pressed doubt, that Emil could accomplish this result; Emil replied, "I can fire him any time." Emil Perschke, on Octo- ber 24, called Fitzgerald a troublemaker. The day follow- ing the October 20 union meeting, Hahn told Perschke that the drivers had attended a union meeting and-another driv- er, Reed, asked Perschke what was going on. Emil replied that the drivers had joined the Union and added that when Kurt "hears about it ..-.he will shutdown" as he "will not operate under a union." Driver Reed related that Emil stat- ed, referring to Fitzgerald having "begun trouble again," that previously he had attempted to have Kurt discharge Fitzgerald. Considering all the evidence and the family re- lationship, I am persuaded and find that Emil Perschke did in -fact exercise supervisory authority over the Respondent's drivers and acted as an agent of the Respon- dent. Upon the entire record, I find that the Respondent, by the conduct described above, engaged in unfair labor prac- tices violative of Section 8(a)(1) and (3) of the Act. Such conduct, occurring in connection with the operations of the Respondent as described above, has a close, intimate, and substantial relation to trade, traffic and commerce among the several States and tends to lead to labor disputes bur- dening and obstructing commerce and the free flow of commerce. II. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, it will be recommended that the Respondent cease and desist therefrom and take certain affirmative ac- tion designed to effectuate the policies of the Act. It will be recommended that the Respondent offer each of its 11 ter- minated drivers immediate and full reinstatement to his former position and, if not available, to an equivalent posi- tion, without prejudice to his seniority and other rights and privileges, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he would have earned from the date of his discharge to the date of the offer of reinstatement, consistent with Board policy set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), with interest on backpay to be comput- ed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). In addition, it will be recommended that the Respon- dent, upon request, bargain with the Union as the exclusive representative of its drivers. Upon the basis of the foregoing findings of fact and con- clusions of law, and upon the entire record in these pro- ceedings and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER' Respondent, Kurt A. Perschke, d/b/a Perschke Hay & Grain, LaPorte, Indiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from unlawfully discharging or otherwise discriminating against any employee or in any other manner interfering with, restraining, or coercing em- ployees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer to each of its terminated drivers immediate re- instatement to his former job or, if that job no longer ex- ists, to a substantially equivalent position, without preju- dice to his seniority and other rights and privileges. (b) Make the said employees whole for any loss of earn- ings they may have suffered by reason of Respondent's unlawful discrimination against them in the manner set forth in the section of this decision entitled "the Remedy." 2 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herem shall, as provided in Sec. 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 (c) Upon request, bargain collectively with the Union as the exclusive representative of its over-the-road drivers, ex- cluding technical employees, professional employees, guards and all supervisors as defined in the Act and, if an understanding is reached, embody the same in a written agreement. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, reports and all other records necessary to ana- lyze the amounts of backpay due under the terms of this recommended Order. (e) Post at its premises in LaPorte, Indiana, copies of the attached notice marked "Appendix." 3 Copies of said no- tice, to be furnished by the Regional Director for Region 25, after being duly signed by a representative of the Re- spondent, shall be posted by the Respondent immediately upomreceipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable 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 25, in writ- ing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 3 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."