Don Brentner Trucking Co., Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Don Brentner Trucking Co., Inc. and Jon's Leasing Co., Inc. and Donald W. Damico. Case 38-CA- 2725 September 27, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On July 6, 1977, Administrative Law Judge Platonia P. Kirkwood issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief and General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the 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, to modify her Remedy,' and to adopt her recommend- ed Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that the Respondent, Jon's Leasing Co. and Don Brentner Trucking Co., Inc. Rockford, Illinois, and its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. I In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for penods prior to August 25, 1977. in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. 2 Respondent's contentions concerning an alleged offer of reinstatement and backpay by Charles Levy Circulating Company, and refusal thereof by discriminatees Damico and Morgan. are not confirmed by the transcrpt of this proceeding and are appropriately part of compliance. (See Coast Delivery, Service, 172 NLRB 2268, 2277 (1968), and 198 NLRB 1026 (1972), reflecting the type of determination left to compliance.) We note also that Respondent has not filed exceptions to the 8(aXl) and (3) findings of the Administrative Law Judge that we are affirming herein. Accordingly, we find no merit in Respondent's exceptions. Respondent has requested oral argument. The request is hereby denied as the record, the exceptions, and the briefs adequately present the issues and the positions of the parties. DECISION STATEMENT OF THE CASE PLATONIA P. KIRKWOOD, Administrative Law Judge: This case was heard at Rockford, Illinois, on August 16 and 17, 1976. The complaint was issued on June 18, 1976. 232 NLRB No. 73 It is based on charges and amended charges filed on April 8 and May 10, 1976, respectively. The complaint alleges that Respondent discriminatorily discharged two employees in violation of Section 8(a)(1) and (3) of the National Labor Relations Act, as amended, and also committed independent violations of Section 8(a)(1). Respondent's answer admits certain of the jurisdic- tional allegations of the complaint, but denies the commis- sion of, or liability for, any of the alleged unfair labor practices. Upon the entire record in this case, including my observation of the witnesses and their demeanor, and after due consideration of the briefs filed by the General Counsel and the Respondent, I make the following: FINDINGS OF FACT I. THE INTERSTATE CHARACTER OF RESPONDENTS' OPERATIONS Respondent Don Brentner Trucking Co., Inc., (Brentner Trucking hereafter) and Respondent Jon's Leasing Co., Inc. (Jon's Leasing hereafter) are Illinois corporations. Each maintains an office and place of business at the same location in Rockford, Illinois. Brentner Trucking is engaged in the business of hauling materials, and Jon's Leasing, in the business of leasing trucks. Respondents admit and I find that they are commonly owned corpora- tions with common officers, common supervisors, and common sources of formulation and administration of labor policy, and that they operate as a single affiliated and integrated business enterprise. I shall therefore use the term "Respondent" hereafter to refer to that enterprise. Respondent's annual income is in excess of $50,000. It derives its income in part from the lease of its tractor vehicles to a Chicago-based concern, Charles Levy Circu- lating Company (Levy hereafter,) and in part from hauling contracts which Respondent negotiates directly with other business concerns. It is undisputed that Levy uses the tractors which it leases from Respondent to transport goods and materials across state lines, and that the goods Respondent hauls for other contractors are also transport- ed across state lines. Respondent concedes, and I find, that its operations affect commerce within the meaning of Section 2(6) and (7) of the Act. I further find that its annual business is of sufficient magnitude to satisfy the Board's jurisdictional standards. II1. THE LABOR ORGANIZATION INVOLVED Respondent admits and I find that Teamsters Local 325, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, (the Union hereafter) is a labor organization within the meaning of Section 2(5) of the Act. III. THE DISPUTE AS TO WHETHER RESPONDENT'S RELATIONSHIP TO THE ALLEGED DISCRIMINATEES IS THAT OF AN EMPLOYER The two alleged discriminatees-Donald Damico and Jerry Morgan-were employed, at the times here material, as drivers of the Respondent's vehicles. For about 12 hours 428 DON BRENTNER TRUCKING CO. during each of several days of each week, Damico and Morgan's regular work consisted of driving tractors which, while owned by the Respondent, were leased by it to Levy. At those times the two men performed hauling and delivery work for Levy along certain prescribed routes.' About once or twice a month, and at times when Levy did not use the Respondent's equipment, Damico and Morgan operated the equipment to do other hauling work. That work was done pursuant to contracts which the Respondent entered into with other business concerns. The complaint, as litigated, describes Levy and the Respondent as the "joint employer" of Damico and Morgan when the two men were engaged in doing Levy hauling and delivery work, and describes Respondent as the sole employer of the two men when they were engaged in doing hauling work for other enterprises. Respondent disputes the complaint's attribution of employer status to it. It claims that when Damico and Morgan did Levy work then Levy was their sole employer; and that, on the infrequent occasions when the two men did other hauling work, they were independent contractors. The question as to whether the complaint properly names Respondent with Levy as the joint employer of Damico and Morgan when the two men were doing Levy work turns on an analysis of the evidence depicting the nature of the relationship between Brentner and Levy and its administration. The relationship between Levy and the Respondent as a lessor and lessee of the Respondent's equipment goes back to the late 1960's and is formalized in a series of written leases naming Jon's Leasing as the lessor. Some of those leases, including one covering a 3-year period ending December 31, 1978, were preceded by a letter from Levy to Jon's Leasing stating, in relevant part, Levy's "understand- ing that [Jon's Leasing] is a leasing company engaged solely in the leasing of vehicles and that your company owns the tractors that we are in the process of leasing." Each of the several lease agreements in evidence provides that Respondent will make a tractor or tractors "available" to Levy for 12-hour periods (usually between 2 a.m. and 2 p.m.) on each of several days of each week beginning on Tuesday and ending on Friday. Each lease further provides that Levy will assume all the cost of operating and maintaining the tractors; that it will purchase and maintain insurance protection against property damage or personal injury resulting from the operation of the tractor; and that it will indemnify Respondent "against any claim by shippers or consignees for loss, damage or unreasonable delay caused by the operation of the tractor." I The Levy merchandise they carried was loaded on to tractors owned by Levy, but customarily parked at the Respondent's facility. 2 The facts depicting the Respondent's relationship to the Union are detailed in a later portion of this Decision. I Independently of Levy, Brentner regularly required the drivers to perform certain maintenance tasks involving the vehicles they operated. She paid them for those tasks by separate checks drawn on Respondent accounts. She deducted from such checks the amount of union dues and sent the dues in to the Union. 4 See and compare Pilot Freight Carriers, Inc., 208 NLRB 853, 858 fn. 14 (1974); Floyd Epperson and United Dairy Farmers, Inc., 202 NLRB 23 (1973). See also Teamsters Local Union No. 688, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers ofA merica (Fair Mercantile Company Inc.). 21 I1 N LR B 496 (1974). I note but find no merit in the Respondent's argument that it acts solely Although the leases thus appear to indicate that Levy alone will have the right to hire and to establish the conditions of employment of the operators of the vehicles it leases, the undisputed evidence describing what has in fact been customary practice under the leases establishes that Respondent possesses and exercises an equal, and perhaps overriding, right and power to recruit and hire all operators of its vehicles, to discharge any of them at will, to supervise the performance of some, if not all, their work tasks, and to establish most, if not all, the monetary terms of their employment and their fringe benefits or obligations. In more detail, that evidence shows that, in every case, all of the men who drove the Respondent's vehicles to do Levy or other work, including the alleged discriminatees, were first interviewed and hired by Doris Brentner, the Respon- dent's president (hereafter Brentner,), that Brentner gave each of them the assignment of doing the Levy transport work subject to one requirement-that he file with Levy an application-for-employment form, and that Levy accepted the "application" without further inquiry in every case. Brentner also told each driver that she thus selected that he could be required to become and remain a member of the Union and that he could then be paid on "union" rates and conditions-and this, despite the fact that, during times here material, Brentner told the alleged discriminatees and perhaps others, that, although Respondent was a "Union" operator, Levy was not.2 Once the drivers were employed, it was Brentner who gave the drivers the initial instructions concerning the performance of Levy work and it was Levy who imple- mented those instructions. It was Brentner who filled in the timecards of the drivers from information she received from the drivers; and it was Levy who furnished the money to pay the drivers for the time as recorded on the said timecards. The men received the "union" rate, less the customary tax deductions, and they were paid on Levy checks.3 Evaluating all of the foregoing facts, I find and conclude that the Respondent, together with Levy, was a "joint employer" of the alleged discriminatees within the meaning of Section 2(2) and (3) of the Act when the alleged discriminatees were operating the Respondent's vehicles to do the Levy hauling work.4 I turn now to Respondent's contention that the drivers were independent contractors when performing non-Levy hauling work. The record provides no support for this contention. On the contrary, it shows that Respondent alone solicited and obtained non-Levy hauling work. It alone assigned performance of that work to the individual in Levy's interest in recruiting and selecting the drivers of its leased vehicles and in supervising and directing their work performance. It is obvious. it seems to me, that Respondent's role in the hiring process serves interests of its own in having competent drivers for the expensive vehicles Respondent owns and which, as noted above, it is free to and does utilize for other of its business interests at times when the vehicles are not under lease to Levy. That is not to say that Levy has no interest in having competent drivers and that it has no control over the tenure of employment of those who do its transport work. Although there is no evidence that Levy ever rejected a driver selected for the job by Brentner or that it ever itself discharged a driver without Brentner's consent. I am persuaded that Levy did have a right to take those measures. It is for that reason that I would, if called upon to do so, attribute employer status to Levy, as well, under the "joint employer" concept. 429 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drivers involved. And, while it paid the drivers on the basis of specified percentages of its proceeds for non-Levy hauling work, it also withheld from the moneys it gave them the amount representing union dues and tax obligations. Finally, insofar as the record shows, no driver had a right to use the Respondent's vehicles for any purposes other than those which served Respondent's own business interests. I have no difficulty in finding, accord- ingly, that when performing non-Levy hauling work the alleged discriminatees were employees of the Respondent within the meaning of Section 2(3) of the Act, rather than independent contractors. I so conclude. I conclude further that, at such times, Respondent was their sole employer. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. Background Information5 Damico and Morgan, the alleged discriminatees, were both hired by Brentner in 1971. Damico was initially employed as a driver and served in that capacity through- out his employment. Morgan was initially hired as a driver- helper, but was promoted to the driver job in 1975. Both men were members of the Union at the times here relevant. Each of them acquired or renewed his membership in the Union at the request of Brentner or at her direction. Respondent, so Brentner advised the drivers she employed, operated as a "union employer"; and, once the men were in the Union, she regularly deducted dues from the pay of each of them and turned those dues over to the Union. In addition, Brentner afforded them certain monetary and fringe job benefits such as pay at "union scale" and health benefits under plans described by the Teamsters contracts applicable to the area in which Respondent operated. 6 Unbeknownst to the employees, however, Respondent made no monetary contributions to the Teamsters pension plans on the employees' behalf. The employees' discovery of the latter fact gave rise to the events placed in issue here. The alleged discriminatees discovered that the Respon- dent had not been making pension fund contributions to the Union on their behalf on or about September 15, 1975, when Brentner left the following note for Damico at the Respondent's garage: 7 Don: Because I do not have pension on you in the union the Trucking Company [i.e., Brentner Trucking] is taking I Unless otherwise noted, the facts I hereafter narrate are either uncontested or are described in uncontradicted oral and documentary evidence which I regard as plausible and credible. 6 The Teamsters contracts placed in evidence as those negotiated during periods here relevant included the National Master Freight Agreements successively negotiated by the Teamsters International for 3-year terms in 1967, 1970, and 1973, and the supplemental agreements negotiated for the same 3-year terms by the Central States Teamsters Council. The last such contract bore an expiration date of March 31, 1976, but it provided for automatic renewal of its terms absent the submission of 60-day notice of termination or modification before the expiration date. Each previous contract contained similar language with respect to automatic renewal. The only contracts of this groups which the Respondent formally executed were those negotiated in 1967. As noted below, the record reflects the existence of a substantial controversy between the Union and the Respondent at dates here relevant, as to whether or not Respondent was actually bound to honor and abide by up this option on a Mark I policy for $5,000 and will pay the premiums on same. Please sign the application as the option is up the 19th of Sept. and I will mail it to Sterling Life. Don't say anything to Jerry [Morgan] as he has not worked long enough to get this. Doris Damico did not sign the application form to which Brentner referred in the above note, He made it known to her, however, that he was "unhappy" about her failure to pay into the Teamsters pension fund; and, shortly after Christmas 1975, he went to the union offices and complained to Union Agent Howard Easton about the matter. Easton promised to check into the situation. B. The events in issue; Respondent's contacts With the Union and the Employees Between January and March 1976 In early January 1976,8 Easton conferred with Brentner on the pension question. He claimed that she "owed" the moneys she had failed to pay. Easton later reported to Damico and Morgan about the conference. He advised them that Brentner did not believe she owed the Union the moneys involved and that she no longer wanted to operate as a "union employer." On or about January 15, and following the above conference with Easton, Brentner sent Damico and Morgan, respectively, a letter stating as follows: Dear Driver: The purpose of this letter is to inform you that Jon's Leasing Company, Inc. will on behalf of Chas. Levy Circulating Company seek to enter in negotiations with you concerning your employment by Chas. Levy Circulating Company. The projected result of such negotiation will be an individualized employment contract. Heretofore, Chas. Levy Circulating Company, with the aid of Jon's Leasing Company, Inc., have extended employee benefits to you in accordance with the National Master Freight Agreement, by accomodation to you because of your union affiliation. each and every provision of the contract it did not sign, and whether, in any event, its failure to give the Union a formal notice of termination before the 1970 expiration date of the 1967 contract it did sign operated as an automatic renewal of that contract's terms for a period of indefinite duration. The merits of that controversy are not, however, before me; and nothing in this decision is to be taken as an expression of any view about the merits of that dispute. There is no 8(aX5) allegation in the complaint; and General Counsel stated on the record that his case did not rest on any claim that the Respondent was bound, as matter of law under the Act, to adhere to or to follow the provisions of Teamsters contracts in establishing or maintaining conditions of employment for its employees. 7 Brentner was in the habit of communicating with Damico and Morgan by this method, as she was not always at the premises either when the drivers returned the vehicles to the garage after they ran their routes or when they picked the vehicles up to commence their routes. I Hereafter, all dates mentioned are for the year 1976. 430 DON BRENTNER TRUCKING CO. It is my information that Chas. Levy Circulating Company is not an employer-signatory to any collec- tive bargaining agreement sponsored by your union. I know, of course, the Jon's Leasing Company, Inc. is also not a signatory to any collective bargaining agreement. Heretofore, the accommodation extended to you by Chas. Levy Circulating Company and Jon's Leasing Company, Inc. has not imperilled the existence of this enterprise. However, rising costs have compelled me to seek an alternative to the accommodation provided you. It is my wish that the individual negotiations take place on January 17, 1976 at 1:00 p.m. in the offices of my attorney, Barrick, Jackson, Switzer, Long & Balsley, Room 611, Illinois National Bank Building, 228 South Main St., Rockford, Illinois. I can assure you that my propensity toward generosity will continue with regard to these negotiations. Mr. Mike La Porta has already indicated to me that he will negotiate with you on an individual basis concerning your wages. It is my hope that some arrangement can be made so that you are able to render your excellent service to me in the future. I must advise, however, that Jon's Leasing Company, Inc. can no longer remain a viable enterprise if faced with a continuation of the accommodation described above. If you are unable to attend, or seek not to attend, please advise my attorney, John J. Newton, at 962-6611, so that other arrangements may be effected. Sincerely, Jon's Leasing Company, Inc. /s/ Doris Brentner By: Doris Brentner, President On the same day Respondent sent a letter to Local 325 which stated, inter alia: The purpose of this letter is to advise you that on behalf of Chas. Levy Circulating Company and Jon's Leasing Company, Inc., we'll seek to enter into negotiations with drivers for Chas. Levy Circulating Company regarding individual contracts of employment on January 17, 1976. Heretofore, Chas. Levy Circulating Company and Jon's Leasing Company, Inc. have, by way of accommodation, extended to its drivers employ- ee benefits consonant with the National Master Freight Agreement. However, due to increased costs, such an accommodation can no longer continue. 9 The Union. after a conference with Respondent's attorney. accepted the latter's position that this letter fulfilled any obligation by Respondent to send a formal termination notice to the Union with respect to the Teamsters contract expiring on March 31, 1976. 1' It appears from certain responses made by Danuco to questions posed to him by the Respondent's counsel on cross-examination that Damico Please be advised that Jon's Leasing Company, Inc. is not an employer-party to the National Master Freight Agreement as provided in Article 1 of said agreement. Jon's Leasing Company, Inc. is not an employer of its drivers, but has, in the past, as an accommodation to the drivers' union affiliation, participated in extending employee benefits to the drivers. Regrettably, because of increased costs, the accommodation can no longer continue and Jon's Leasing Company, Inc. seeks to negotiate on an individual basis with its drivers concerning employee benefits.9 On receipt of Brentner's January 15 letter to them, Damico and Morgan sought the advice of Easton as to what to do about the request contained in the letter. He advised them not to go to the individual bargaining meeting the Respondent had set up and they did not do so. On January 17, Damico's wife delivered the following letter to Brentner: Doris, We realize that your cost of operation has increased but the cost of our living has also increased. There is no way we can accept a cut in wages. We know you want a raise from Levy, but we can't see why we should suffer from it by having our wages cut and that is all this amounts to. All we want is 5 years of back pension pay and vacation for Don and Jerry his one year and we'll resign and you can do with the union what you please. If we stay you will still have the union and also have to pay the back pension to them. We would rather have the money ourselves. Don Damico & Jerry Morgan °I Thereafter, on or about January 20, Damico and Morgan each received another letter from Respondent. The letter read as follows: If you wish to continue to work through Jon's Leasing Company there will have to be some kind of individual contract so that there will be no misunderstanding in the future. If you don't want to negotiate as requested in my letter you will be terminated This meeting will have to be Friday afternoon Jan. 23, 1976. [Emphasis supplied.] personally expressed to Brentner the same idea in conversations which swere described as having taken place "before March 17." In another conversation with Brentner "after March 17" Damico admitted telling Brentner, in effect, that he could no longer offer to abandon the Union, that it was now "out of his hands." 431 DECISIONS OF NATIONAL LABOR RELATIONS BOARD /s/ Doris Brentner Jon's Leasing Company Again, acting on the advice of Union Representative Easton, Damico and Morgan did not attend the meeting proposed for January 23. So far as appears from the record, Respondent did not thereafter set up any further "individual bargaining" meetings with the men." Its attorney, John Newton, Esq., however, continued to meet with Union Agent Easton in an effort to settle the pension dispute. These meetings continued through early March without achieving settle- ment. Easton then advised Newton that the Union would resort to other "appropriate action" to enforce its position in the matter. On March 16, the Union mailed to Respondent, the following letter: Consider this as a seventy-two (72) hour notice under the Labor Agreement in regards to noncompliance with the Health & Welfare and Pension accounts as specified in Article 45 Section 2 of the Central States Area Over-The-Road Supplement Agreement. The Local Union will take appropriate action until such time these delinquent payments are made.' 2 [Emphasis supplied.] Brentner received the Union letter on March 17 and, so she testified, she read it as meaning that the Union would strike her at the end of the 72-hour period. After conferring with Mike LaPorta, a supervisor for Levy, and with Attorney Newton, she decided on March 18 that certain precautionary measures should be taken promptly so that the trucks would not be exposed to risk of damage and could hence be used for the regular Levy runs then being driven on Tuesdays, Wednesdays, and Thursdays. On March 18 and 19, Brentner recruited James Dow- sey-a former driver or helper for Respondent-and Mike Jackson, a newly hired driver-helper to (a) move the trucks I Brentner testified that she had talked to her attorney and that she had decided to "coast along" pending efforts by her counsel to settle the matter with the Union. In a note addressed to Damico on March 9, Brentner stated that he had put in more mileage charges than he was entitled to and was overpaid, and that she could get other employees to "pull the loads." 12 Art. 45, sec. 2. of the then current National Master Freight Agreement read as follows: Notwithstanding anything herein contained, it is agreed that in the event any Employer is delinquent at the end of a period in the payment of his contribution to the Health and Welfare or Pension Fund or Funds created under this Agreement, in accordance with the rules and regulations of the Trustees of such Funds, after the proper official of the Local Union has given seventy-two (72) hours' notice to the Employer of such delinquency in Health and Welfare or Pension payments, the Local Union or Area Conference shall have the right to take such action as they deem necessary until such delinquency payments are made and it is further agreed that in the event such action is taken, the Employer shall be responsible to the employees for losses resulting therefrom IG.C. Exh. No. 16(a)]. Art. 45, sec. 2, modifies art. 45, sec. 1, which states, inter alia: from the Respondent's premises and have them "hidden" at some location which the Union or its supporters could not easily find; and (b) pick up the trucks from the new location on March 23 and run the scheduled Levy routes (next scheduled to begin March 23.) 3 Dowsey and Jackson moved the trucks some time during the night to a private house parking area in Orfordsville, Wisconsin. They did so after Damico and Morgan finished the March 18 runs for Levy and had returned the vehicles to Respondent's premises. 14 On the morning of Friday, March 19, Damico happened to drive by Respondent's facility. He noticed that the Respondent's tractors and the Levy trailers were not there. He promptly telephoned Mike Laporta, Levy's supervisor, and asked him if Levy "had a run" that day. According to Damico's uncontradicted testimony, LaPorta replied, "No, you guys are on strike." Damico then said, "I don't know what you are talking about." LaPorta responded, "Well, Doris called and said that she had got a letter from the Union that said that they were going to take appropriate action or something, so she took the tractors and hid them. You'll have to straighten it out with her." After his telephone conversation with LaPorta, Damico entered the Respondent's garage where he found a note from Doris Brentner addressed to him. The note read: Don, because you haven't serviced the trucks this week, I have took them to be serviced. Your CB radios will be locked in the cupboard and leave the ignition key. 5s Damico took the note and went home. Later, at approximately 2 p.m., Damico and his wife returned to Respondent's facility. According to Damico's uncontradicted testimony which I credit, Damico went into the garage and got his and Morgan's CB radios. Brentner came out, gave him the CB antennas, asked Damico to give her his ignition key, and told him that Dowsey couldn't find the "route key" for the Levy route. In response, Damico gave her the ignition key and advised her that the Levy route maps were in the truck. Brentner then said to Damico: "You know you could come back to work if you got the Union off my back and these lawyers." Damico The Union and the Employers agree that there shall be no strike, lockout, tie-up or legal proceedings without first using all possible means of settlement as provided for in this agreement . . . of any controversy which might arise. 13 I base my finding about Brentner's having asked both of them to run the Levy routes on a composite of the following evidence: (a) Dowsey's uncontradicted testimonial report (as a Respondent witness) which I here credit, that, on March 18 or 19, Brentner told him, inter alia, that he would be working the Levy routes beginning on March 23; and that, in response to his question as to whether the job was to be permanent or temporary, Brentner replied that she "didn't yet know because there was a kind of a dispute there and [she i might have to hire the drivers back." (b) Brentner's admission that she had asked both men, on March 19, to drive the Levy routes; (c) The uncontested evidence that Dowse), and Jackson did, in fact, begin to run the Levy routes on March 23. 14 The March 18 Levy run was the last scheduled run for the week ending Saturday, March 20. s1 Damico and Morgan personally owned CB radios which they used while operating the vehicle. 432 DON BRENTNER TRUCKING CO. replied, "It is out of my hands." Damico then asked about his vacation check. Brentner responded, "Well, that is all the package for the pension deal, you will have to wait until that is straightened out in Court." 16 Brentner also apparently informed Damico that Dowsey and Jackson were the men she got to drive the trucks to the alleged service garage. On that same day, Damico called Dowsey to find out if he was going to work for the Respondent. Dowsey replied he "didn't know for sure." Damico then asked him where the trucks were. Dowsey gave him the answer Brentner had told him to give - that he had taken the trucks to Cummings (a garage in the area) to have them worked on.17 C. Subsequent Events Based upon the events of March 19, neither Damico nor Morgan reported for work on March 23 or thereafter, and Respondent, in turn, never called them on the matter. On Monday, March 22, Damico filed a claim for unemployment compensation with the State of Illinois. He stated thereon that he lost his job because of "strike." Morgan filed a similar application on April 4 on which he said he lost his job because "owner hired non-union drivers." On March 23, Dowsey and Jackson picked up the trucks in Orfordsville, Wisconsin and began performing the Levy distribution work on a regular basis.'8 A few days thereafter, they moved the trucks to Marengo, Illinois, and then to Loves Park, Illinois. And it was not until a few weeks before the hearing in this case that the equipment was moved back to the Respondent's facility. There is no evidence of any effort having been made at any time to picket the premises of the Respondent or to interfere with the operation of vehicles by the replacements whom Brentner had hired.'9 D. Conclusions 1. The issues The complaint's 8(a)(3) and (1) allegations and their litigation assert that Respondent first threatened to and there did discharge Damico and Morgan because of their concerted activity in grieving about Respondent's failure to 16 The statements and conduct attributed to Brentner by Damico were not denied by her. Dowsey. however, claimed in his testimony that Brentner gave him the CB antennas and that it was he who returned them to Damico. Although I am willing to credit portions of Dowsey's testimony where it is inherently plausible, uncontradicted, and consistent with other known facts, I am not willing to rely on his testimony to resolve disputed factual issues. As is obvious from even a superficial reading of his testimony, his memory of events was admittedly poor and often confused. By contrasts. Damico and Morgan were, in my view, reliable and credible witnesses overall. Brentner's testimony. I note, was frequently colored by her interest in the outcome of this case, and she did not leave me with a favorable impression as I observed her on the stand. Accordingly, in the few instances where her testimony and that of Damico or Morgan conflict, I credit the testimony of the latter. '7 Dowsey in somewhat confusing testimony reported that Damico and Morgan telephoned him a second time. According to Dowsey, the two men made reference to Dowsey's "going to work" for Brentner, and Damico said to him. "You haven't been through a Teamsters strike before or have you?" Dowsey then said, "Why. am I going to get my teeth knocked in or something?" Damico then replied that they had no intention of hurting him provide them with pension and vacation benefits and in calling upon the Union to support their grievances. The General Counsel's case is founded on the theory that Damico and Morgan's concerted activity was of a protected character under Sections 7 and 8 of the Act without regard to the legal validity of the two employees' underlying claim that the Respondent had violated a contractual obligation when it failed to provide them with pension and vacation benefits they believed were due to them as an incident of their union affiliation. Proceeding on the above statutory theory, General Counsel claims that oral threats which violate 8(aX)(l)'s interdiction of interfer- ence with, and restraint and coercion of, the employees in the exercise of their Section 7 rights, are to be found in Brentner's: (I) inclusion, in the note she addressed to Damico and Morgan on January 20, of a threat to terminate them; (2) inclusion, in a note to Damico dated March 9, of a statement that she could "get someone else to pull the loads"; and (3) oral statement to Damico on March 19 that he "could get [his] job back if t[he] got the Union and the lawyers off [her] back." General Counsel would have me construe each of these statements both as manifesting Brentner's animus to the employees because of their initiation of and engagement in protected, concerted and union activity and as threatening or warning them that their continued employment and job rights depended on their abandonment of that activity. Incontending that Respondent engaged in discriminatory conduct violative of 8(a)(3)'s prohibition of employer "discrimination in regard to hire or tenure of employment . . . to discourage membership in any labor organization," as well as of 8(aX I )'s prohibitions, General Counsel focuses on Brentner's hiring of Dowsey and Jackson on or about March 18 to take over Damico and Morgan's driver jobs and the statements Brentner made to Damico on the matter on March 19. General Counsel would have me construe this part of Brentner's actions as an effective termination of Damico's and Morgan's tenure of employ- ment and an enforcement by her of her prior alleged unlawful threats. Respondent, in defending, does not dispute the validity of General Counsel's concept of Damico and Morgan's concerted activity as protected Section 7 activity.2 0 It denies that Brentner's statements rose to the level of coercive conduct within the meaning of Section 8(a)(1) of because they (Morgan and Damico) "liked" him; but that they "wouldn't be responsible what the Teamsters did." is Brentner later replaced Jackson with a new driver 19 When on Tuesday, March 23. Dowsey or Jackson went to Orfords- ville. Wisconsin (where the trucks were then hidden). in order to begin the Levy runs they found a large roughly painted sign attached to one of the trucks which said "scabs -- see you Tuesday." "Scab Hollar." They turned that sign over to Brentner. Respondent claims there was a union connection. But the record provides no support for that claim. There were no other incidents. 20 I would, in any event. affirm the validity of General Counsel's view of Damico and Morgan's concerted activity as protected Sec. 7 activity irrespective of the merit. as a matter of contract law. of the contract claims on which the two employees' underlying grievances were pursued. In so doing. I note, inter ahia, that the employees' belief about Respondent's contractual obligations with respect to the pension and benefit matter was not unreasonable in light of: (I) the representations made by Brentner to them at the time she offered them the driver jobs and (2) her subsequent conduct in contributing to. and covering them under. the Teamsters health and welfare program. checking off and remitting monthly dues to the ((ConrinuedJ 433 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Act and/or that her displacement of Damico and Morgan amounted to discrimination with regard to their tenure within the meaning of Section 8(aX3) of the Act. It asserts affirmative defenses to the alleged 8(a)(3) violations: (I) Referring to General Counsel's theory that Damico and Morgan were discharged on or about March 19, it claims that Damico and Morgan were striking employees when Brentner hired new employees to perform their assigned work tasks and, inasmuch as neither of them has ever asked to return to his job, it cannot be found that Brentner terminated them. (2) It maintains, in any event, that Brentner's actions were not actuated by union animus but were prompted solely by Respondent's legitimate economic concern and interest in being sure that Damico and Morgan would accept continued employment under terms and conditions different from those the Union had negotiated for employees covered by union contracts and which Respondent had theretofore extended to Damico and Morgan as "an accommodation to their union affiliation." 2. Discussion and resolution of the matters in issue a. The alleged unlawful character of Brentner's statements to the employees on January 20 On January 20, as noted, Respondent demanded from Damico and Morgan, under threat of discharge, that each of them negotiate and enter into some kind of individual contract with Respondent. That demand and threat, I am convinced, was intended to compel these two employees to abandon the Union and was so understood by the two men. I base that judgment on an evaluation of the circumstances under which the demand was made, includ- ing those indicating that: (I) the Respondent's attorney, by letter dated January 15, had advised the Union that Respondent was no longer willing to extend union benefits as an "accommodation to the union affiliation of the employees" and was therefore seeking to negotiate with the drivers on an individual basis; (2) Brentner had received a written statement from or on behalf of the two employees which indicated on its face that they had interpreted her earlier summons (dated January 15) to an "individual contract" negotiation meeting as a demand that they resign from the Union; 2 and (3) Brentner admitted, on this record, that she was seeking throughout the period of time here material to establish a right to conduct her business as a nonunion contractor, and that she did not believe she Union. and in establishing a mode and rate payment to them for Levy driving tasks on the basis of "union scale." In the circumstances, the gnevance activity engaged in by the two employees falls within the body of Board law which holds such activity is protected even if it is founded on a contract-violation claim which may ultimately be proved erroneous. See, e.g.. H.C. Smith Construction Co., 174 NLRB 1173, 1174 (1969), enfd. 439 F.2d 1064 (C.A. 9, 1971): Newspaper Printing Corporation, 221 NLRB 811, 834 (1975). See also Standard Aggregate Corp., 213 NLRB 154, 167 (1974). 21 That note set out an offer by the two employees to resign from the Union if Brentner would give them the pension and vacation moneys. 22 Applicable here are a number of Board and court decisions holding that "the fact of discharge does not depend the use of formal words of discharge. It is sufficient if the words or action of the employer would logically lead a prudent person to believe his tenure has been terminated." could accomplish that objective if Damico and Morgan remained union members. Concluding, as I do, that Brentner's statements to the employees on January 20 informed them that they would be terminated if they did not abandon their union activity and adherence, it follows that I would, and I do hereby sustain, the alleged independent violation of Section 8(a)(I) of the Act predicated on those statements. b. The alleged termination of Damico and Morgan on March 19 The merits of General Counsel's claim, that Respondent terminated Damico and Morgan's status as active employ- ees, turn on the inferences fairly to be drawn from the nature of Brentner's job offers to Dowsey and Jackson on March 18, and Brentner's statements to Damico on March 19 when, after Damico had been informed by Levy's supervisor that Brentner had hidden the trucks, he went to the Respondent's facility to talk with her. I find, on the evidence supplied, in part, by Dowsey's testimony about the job offer Brentner made to him, in part, by Brentner's own description of her job offers to Dowsey and Jackson, and in part on Damico's undisputed and credited version of his meeting with Brentner on March 19, that by the time Brentner met with Damico on March 19 she had already hired Dowsey and Jackson for two purposes. One was to remove the trucks from Respondent's facility on the evening of March 18 or early morning of March 19. The other was to operate the vehicles as drivers for the Levy runs-next scheduled to begin on March 23. By so doing of course, Brentner made the driver jobs unavailable to Damico and Morgan. Brentner did not, I note, serve formal notice of discharge on either Damico or Morgan. But what she said to Damico on March 19 made it clear to him that she had given their jobs away and that she would not reemploy them unless and until the two men acted to "get the Union off [her] back and these lawyers." In sum, given her statements and the facts that Brentner also asked Damico for the ignition keys and the Levy route maps and returned to him the CB equipment which he and Morgan used while driving the Respondent's vehicles, I have no difficulty in concluding that Brentner in fact meant to inform Damico and Morgan on March 19 that they had been terminated, and that Damico reasonably and correctly so construed Brentner's actions when he so reported to Morgan later that day.2 2 N. L. R. B. v. Trumbull Asphalt Company of Delaware, 327 F.2d 841, 843 (C.A. 8, 1964); Dust-Tex Service, Inc., 214 NLRB 398, 406 (1974); Barkus Bakery Inc., 214 NLRB 478, 481 (1974). See also Davis Transport, Inc., 169 NLRB 557, 560(1968), enfd. 433 F.2d 363 (C.A. 6, 1970). In arriving at the above judgment, I am aware of Brentner's testimony that she would have allowed Damico and Morgan to drive their scheduled runs had they reported for work on March 23. But I do not credit her testimony in this regard not only because of demeanor factors but also because what it declares is in the nature of a self-serving afterthought, and because it is inconsistent with credible evidence depicting all that Brentner had done and said as of the dates material to the complaint's allegations. In any event, it is clear from what Brentner told Damico on March 19 that any willingness she might have entertained to reemploy the two men was expressed in terms of an unlawful condition: i.e., that they give up and abandon their protected union and concerted activity. As that condition was 434 DON BRENTNER TRUCKING CO. c. The alleged unlawful character of the Respondent's termination of Damico and Morgan Reviewing the evidence bearing on Respondent's motive for terminating Damico and Morgan as active employees, I find, consonant with General Counsel's position, that one or both of the following reasons, each clearly discriminato- ry within the meaning of Section 8(a)(3) of the Act, prompted Brentner's action in whole or in part: (I) Brentner wanted to rid her operations of any semblance of union ties because she had taken umbrage at Damico and Morgan for initiating the grievance, for calling on the Union to press it on their behalf, and for refusing to honor her January request that they abandon their activity or face the loss of their jobs; and (2) Brentner believed that the Union was about to strike Respondent's operations and that Damico and Morgan would participate in the strike. The statements which Brentner addressed to Damico on March 19 plainly both manifested her displeasure with Damico and Morgan's continuing pursuit of protected concerted grievance and union activity and expressed that displeasure as a reason for terminating them. Taken together with the termination threats Brentner addressed to the two employees in January, Brentner's March 19 statements, I find, could not but be regarded by the employees as a communication that the reason Brentner no longer wanted them as employees was because they had not heeded her earlier warning that they would be terminated if they did not abandon their union member- ship and their concerted grievance activity. To be sure, Brentner's statements do suggest that she was willing to rescind the termination action if assured that the employ- ees would now take the measures she had demanded of them in January. But, as I have indicated, the condition she imposed was an unlawful one and her offer of reemploy- ment on those terms does not detract from, but rather reaffirms, the merits of the General Counsel's violation case. The assertion by Brentner, in defense, that she acted as she did between March 17 and 19 because she believed, on the basis of what the Union said in its March 16 letter, that the Union meant to strike Respondent's operations, and that Damico and Morgan would participate in the strike, is no defense at all. Indeed, I find, consistent with the position of the General Counsel, that this assertion by Brentner further supports the alleged violation of Section one the employees were free to reject under the Act, their refusal to accept it cannot be viewed as a voluntary quit, but rather as a forced quit resulting from constructive discharge action. Cf. American Enterprises, Inc.. 191 NLRB 866, 868-869 (1971); Royal Crown Bottling Company, Inc., 188 NLRB 352 (1971). 23 See. e.g., Block-Southland Sportswear, Inc.. Southland Manufacturing Companv,. Inc.. 170 NLRB 936, 938 (1968); Appalachian Power Company, 204 NLRB 184 (1973), affd. 490 F.2d 1407 (C.A. 4, 1974); Barkus Bakery, Inc., 214 NLRB 478, 481 (1974), affirmed by unpublished judgment order 517 F.2d 1397 (C.A. 3, 1975). The tracking of these and similar cases is that an employer who discharges employees because he believes they are about to strike him, commits conduct clearly prescribed by Section 8(aX3) and/or (I) of the Act. 24 Respondent has not, I find, established to the contrary by proving that in a phone conversation they held with Dowsey on March 19, Damico and Morgan implied that a Teamsters strike might occur and that, on March 22, Damico inserted the word "strike" on his application for unemployment benefits in the blank which followed the printed words, "I lost my job because .... " It is clear from the record that both the said phone 8(aX3). For, on all the evidence before me, I am convinced that: (I) no strike action had been contemplated by the Union or by the two employee union members before Brentner terminated the said two employees: and (2) although Brentner may have honestly thought Respon- dent's operations might or would be struck if she did not pay up the alleged pension debt, her termination of Damico and Morgan in advance of any conduct by them manifesting that they had stopped working-i.e., struck-is prima facie proof of discriminatory conduct under well- established principles.2 3 I base my judgment that no strike action had in fact been contemplated or taken by the Union or by the two employee members of the Union before they were terminated on a combination of the following facts and considerations: 1. None of the overt acts in which Damico and Morgan had engaged up to the time of Brentner's service of termination notice on Damico on March 19 would warrant inferring that the two men had in fact embarked upon a strike in support of their pension and vacation pay grievances. Both of them had been continuously and regularly reporting for the assigned work tasks up to that date despite Respondent's clear indications, over the past several months, that the Respondent had not satisfied and was not prepared to satisfy their pension and vacation benefit demands, and had indeed threatened them with discharge if they did not abandon the demands and resign from the Union. Nor, so far as the evidence shows, had either of them engaged in any conduct on or off the job from which I could infer that they had voluntarily decided on or before they had completed their March 18 run that they would not report for work on their next scheduled workday-March 23.24 2. The only overt action by anyone concerned to which Respondent points as warrant for its alleged strike-based defenses is that the union letter of March 16 served on it notice of intent to take "appropriate action" pending receipt of the pension payments it claimed were due. However, the words contained in the union letter-i.e., "appropriate action" would be taken-are susceptible of a meaning other than that Brentner assertedly gave those words. For, plainly, the conduct of a strike was not the only conversation with Dowsey and the application for unemployment benefits took place after Brentner advised Damico, as I have found, that she had fired them and that she would not reemploy them absent their abandonment of their union membership and activity. Furthermore, and absent any conduct by Damico and Morgan of a kind ordinarily engaged in by striker employees (such as picketing the premises, for example), the mere use of the word "strike" by the two employees in the context in which it was used by them would not, in my view, warrant my attribution of striker status to them at any time here relevant. Given precedent indications-through Brentner's hiding of the trucks. La Porta's explanation of that action to Damico as a response to "strike" activity, and Brentner's disclosure to Damico that she had given away his and Morgan's jobs to Dowsey and Jackson-the two employees' use of the word "strike," as proven supra, might well have manifested a belief or a suspicion by them that, in confrontations between the union agent and Brentner to which they were not party, the Union agent may have told Brentner it might or would resort to "strike" tactics. In their testimony, I note, both Damico and Morgan reported, as did the union agent, that strike action had not been discussed or planned during any of their intraunion meetings or talks. 435 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pressure tactic available to the Union; and, as proved on this record, it never in fact resorted to that measure.2 5 In sum, I find that ample evidentiary support is provided by the above facts for General Counsel's claim that Respondent terminated Damico and Morgan on or before March 19 (the date it notified Damico on the matter), and that in doing so it violated Section 8(aX3) and (1) of the Act. For, as has been demonstrated, the complex of the facts related supra contains specific evidence of a subjective intent by Brentner to get rid of the two union-member employees either because she thought that she could not accomplish her plan to extricate herself from her past union ties and to establish Respondent as a nonunion contractor employer if the jobs she had were held by union members, and/or because she thought the two employees would engage in strike activity in support of the pension demands. And, as I have further indicated, the cause for the discharge-as represented to Damico by Brentner- was that the two employees were then union members and adherents. I am aware, of course, of the Respondent's defensive assertion, and of the evidence it adduced in support, that its actions were taken in pursuit of legitimate business objectives and not to destroy the Union or its employees' rights-i.e., it was not financially able to satisfy the Union's pension fund claim; it did not agree with the Union's position that it was obligated, as a matter of contract or other law, to yield to or to satisfy the union demand; and it could not survive as a going business as a union-contractor employer. But, as has been noted by the Supreme Court, "conduct otherwise unlawful is [not] automatically excused upon a showing that it was motiva- ted by business exigencies." Erie Resistor Corp. v. N. L. R. B., 373 U.S. 221, 230, fn. 8 (1963), and other cases there cited. See also the Court's rationale, 373 U.S. at 226-229. Based both upon the interpretation of the reach of 8(a)(3)'s interdictions as explicated by the Supreme Court in the cited case, supra, and on the Board's application of those concepts in cases I have elsewhere cited here, I find, and conclude on all the facts set out above, that Respondent's termination of Damico and Morgan on March 19 was based on inherently discriminatory consider- ations and had the necessary effect of discouraging the employees' union membership and their engagement in protected concerted activities. In sum, I hold that the Respondent's termination action was violative of Section 8(a)(3) and (1) of the Act, as alleged, notwithstanding Respondent's economic interests in resisting the pension- payment demands and in ultimately extricating itself from its past union ties. z, I note, inter alia that (1) the colloquy of counsel on this record left me with the impression that the Union instituted a civil damage suit against Respondent to collect the alleged accrued pension obligation; (2) the contract clauses to which the Union referred in its letter of March 16 bar the use of legal proceedings, as well as strike in a controversy over nonpayment of pension contribution in the absence of a 72-hour notice of delinquency in pension payments; and (3) the union agent testified-credibly, so I find- that no strike vote was ever taken and no strike preparations were ever made. 2' I have earlier noted General Counsel's additional claim that state- ments included by Brentner in a note addressed to Damico on March 9 also support the complaint's independent 8(aXI) allegations. I find it unneces- I further find and conclude that because Brentner's statement, to Damico on March 19 of the conditions under which she would reemploy him and Morgan, included a condition that the employees now abandon the Union and cease their protected concerted activities, that statement independently violated Section 8(aXl) of the Act. 26 THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, my recommended order shall include conventional provisions requiring that it cease and desist from the unfair labor practices found and from in any other manner infringing upon its employees' Section 7 rights. 2 7 Further, and in order to effectuate the policies of the Act, my recommended order will also require that the Respondent offer Donald Damico and Jerry Morgan reinstatement to their former jobs or, if such jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered by reason of the Respondent's discrimination against them. The commputation of the amount due shall be made in the manner prescribed in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I shall also recommend inclusion of the usual notice-posting provisions. Upon the foregoing finding of fact, conclusions of law, and the entire record herein, and pursuant to Section 10(c) of the Act, I hereby recommend the following: ORDER 28 The Respondent, Jon's Leasing Co. and Don Brentner Trucking Co., Inc., Rockford, Illinois, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Informing employees that they will be terminated if they do not abandon membership in and/or support of Teamsters Local 325, International Brotherhood of Team- sters, Chauffeurs and Warehousemen of America or any other labor organization. (b) Discharging employees because of their union and other protected concerted activities, and conditioning the return of their jobs upon the abandonment of union membership and protected concerted activities. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: sary to pass upon that claim and I do not do so because any finding about its merits would neither add to nor detract from the remedial order I shall frame based upon other conduct here described. 27 N. LR.B. v. Entwistle Manufacturing Conypany, 120 F.2d 532, 536 (C.A. 4, 1941). 2s 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 herein 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. 436 DON BRENTNER TRUCKING CO. (a) Offer Donald Damico and Jerry Morgan immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make Donald Damico and Jerry Morgan whole for any loss of pay each may have suffered as a result of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (d) Post at its facility in Rockford, Illinois, copies of the attached notice marked "Appendix."29 Copies of said notice, on forms provided by the Regional Director for Region 38, after being duly signed by the Respondent's representative, shall be posted by the Respondent immedi- ately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 38, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply therewith. 2 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT inform employees that they will be terminated if they do not abandon their membership in or support of Teamsters Local 325, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organiza- tion. WE WILL NOT discharge employees because of their union or other concerted activities and wE WILL NOT condition the return of their jobs upon their abandon- ment of union membership and activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights under Section 7 of the National Labor Relations Act. WE WILL offer Donald Damico and Jerry Morgan immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniori- ty or other rights and privileges, and we WILL make them whole for any loss pay they may have suffered as a result of our discrimination against them, with interest. DON BRENTNER TRUCKING Co., INC. AND JON'S LEASING Co., INC. 437