Airport Bus Service, Inc., Debtor-In-Possession

AIRPORT BUS SERVICE 561 Airport Bus Service, Inc., Debtor-in-Possession and Louis Lyons Airport Bus Service, Inc., Debtor-In-Possession, and its successors and alter egos Holland Industries d/b/a Dell Bus Co., Inc., Maintenance and Manpower, Inc., Cross County Coach Corp., Shortway Lines Inc.,' and Shortway Bus Char- ter Corp., its wholly owned subsidiaries, and Fugazy Continental Corp. of Connecticut and William Moser and Local 522, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Party to the Contract and Local 819, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Party to the Contract Airport Bus Service, Inc., Debtor-in-Possession, and its successors and alter egos Holland Industries, Inc., d/b/a Dell Bus Co., Inc., Maintenance and Manpower, Inc., Cross County Coach Corp., Shortway Lines, Inc., and Shortway Bus Char- ter Corp., its wholly owned subsidiaries, and Fugazy Continental Corp. of Connecticut and Clayton Wynn d/b/a Wynn V.I.P. Limousine Service and Holrick White. Cases 29-CA-6185, 29-CA-6251, 29-CA-7174, 29-CA-5134, and 29-CA-5148 14 December 1984 DECISION AND ORDER BY MEMBERS ZIMMERMAN, HUNTER, AND DENNIS On 23 September 1982 Administrative Law Judge Joel P. Biblowitz issued the attached deci- sion. Respondent Fugazy Continental Corporation of Connecticut (Fugazy) filed exceptions and a sup- porting brief, 2 Respondents Holland Industries, Inc. (Holland Industries) and Shortway Lines, Inc. (Shortway Lines) filed joint exceptions, and the General Counsel filed cross-exceptions, a support- ing brief, and an answering brief.3 The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has ' The name of this Respondent appears as corrected at the hearing 2 Fugazy also requested oral argument This request is hereby denied as the record, exceptions, and briefs adequately present the Issues and po- sitions of the parties 3 The General Counsel's motion to strike Respondents' exceptions and Fugazy's supporting brief for failure to comply with the provisions of the Board's Rules and Regulations is denied 4 At the hearing, the Judge granted the General Counsel's motion to consolidate the unfair labor practice proceedings in Cases 29-CA-6185, 29-CA-6251 and 29-CA-7174 with the backpay specification in Cases 29-CA-5134 and 29-CA-5148 Fugazy excepts to this ruling, arguing that the consolidation was an attempt to taint the present proceedings against Respondent Airport Bus Service, Inc, Debtor-in-Possession by reveling that Airport Bus was found to have violated the Act in Cases decided to affirm the judge's rulings, 4 findings,6 and conclusions and to adopt the recommended Orders to the extent consistent herewith. 1. The judge concluded that Respondents Hol- land Industries, Dell Bus Company, Inc. (Dell Bus), 6 Maintenance and Manpower, Inc. (Mainte- nance and Manpower), Shortway Lines, and Shortway Charter Corporation (Shortway Charter) were the alter egos of, and engaged in a single inte- grated business enterprise with, Respondent Air- port Bus Service, Inc., Debtor-in-Possession (Air- port Bus) at the time that the unfair labor practices found herein were committed. We have carefully reviewed, and hereby affirm, the judge's factual findings. We adopt, however, his alter ego and single integrated business enterprise conclusions only as clarified below. It is well established that in determining whether two or more nominally separate businesses operat- ing simultaneously are sufficiently interrelated so that they may be treated as a single integrated busi- ness enterprise, the Board looks to four principal factors: common management, centralized control of labor relations, interrelation of operations, and common ownership or financial control. No single criterion is controlling, although the first three fac- tors, which reveal the degree of operational inte- gration, are more critical than common ownership. Radio Union v. Broadcast Service, 380 U.S. 255 (1965); Bryar Constriction Co., 240 NLRB 102, 104 (1979). Similarly, in making the related, but never- theless distinct; determination of whether a.business is the alter ego or "disguised continuance" of its predecessor, the Board will find alter ego status where the record demonstrates "substantially iden- tical" management, business ' purpose, operation, equipment, supervisiOn, customers, and ownership between the two businesses. Howard Johnson Co. v. Hotel & Restaurant Employees, 417 U.S. 249, 259 fn. 5(1974); Crawford Door Sales Co., 226 NLRB 1144 (1976). 29-CA-5134 and 29-CA-5148 We find no merit in this exception It is apparent that the Judge's unfair labor practice findings herein do not rely in any way on the earlier proceeding against Airport Bus In addition, we find that consolidation was an appropriate conservation of Board, re- sources since both cases involved Respondent Fugazy's alleged responsi- bility, as i successor, to remedy unfair labor practices committed by Air- port Bus 5 Fugazy, Holland Industries, and Shortway Lines have excepted to some of tht, Judge's credibility findings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 6 The judge found, and we agree, that Respondent Cross County Coach Corporation (Cross County) was part of a single integrated busi- ness enterprise with Dell Bus 273 NLRB No. 84 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At all times material herein Holland Industries owned Shortway Lines, 7 Shortway Charter, and Dell Bus. In addition, it effectively controlled and operated Airport Bus between June 1976 and 24 January, 1978, and Maintenance and Manpower at least between October 1977 and October 1978. In October 1977, Airport Bus' operations were com- bined with those of Dell Bus and Maintenance and Manpower. 8 Although each of the three held itself out as a separate company, they were managed jointly by the -same individuals, and they used the same buses, 8 supervisors, dispatchers, drivers, and mechanics. '0 On 24 January 1978 Airport Bus was adjudicated bankrupt. Thereafter, the same individuals contin- ued the bus operations at the same location under the corporate forms of Maintenance and Manpow- er, Shortway Charter, and Dell Bus, with the same buses and many of the same employees. Based on these facts, we find that Holland Indus- tries, 'Airport Bus, Dell Bus, and Maintenance and Manpower were a single integrated business enter- prise (which, -for ease of reference, we shall refer to here as Holland New York I) between October 1977 and 24 January 1978. We also find that, subse- quent to Airport Bus' bankruptcy adjudication and continuing through the apparent cessation of oper- ations in October 1978, Holland Industries, Shortway Charter, Maintenance and Manpower, and Dell Bus ,constituted another single integrated business enterprise (denoted hereinafter as Holland New York II). We further find that Holland New York II was. the "disguised continuance" or alter ego.of Holland New York I. We do not find, how- ever, that Shortway Lines was a constituent com- pany of either Holland New York I or Holland New York II. While it was owned by Holland In- dustries and it leased buses to Holland New York I and II, Shortway Lines, so far as this record shows, operated a completely separate business in the Midwestern States with its own management and labor relations policies. Accordingly, we find that Holland New York I is responsible for the unfair labor practices committed prior to 25 Janu- ary 1978, and that Holland New York II is respon- sible for those unfair labor practices which oc- curred on or after 24 January 1978, and is responsi- 7 Shortway Lines was a bus company operating in Ohio and other midwestern States These operations included regular charter bus service sold on a trip- by-trip basis and "airline crew work," that is, transporting airline crews under contract between JFK Airport and hotels 9 Some of the buseS used were owned by Shortway Lines and appar- ently leased through Holland Industnes to Airport Bus • " It appears frail the record that another corporation, JFK Parking Lot No 7, Inc was also part of this operation We make no finding with regard to its status because it was not named as a respondent herein ble, as an alter ego, for those unfair labor practices committed by Holland New York I. 2. The judge found that Fugazy was a successor to the business operation of Airport Bus and its af- filiates (that is, Holland New York I and II). Fugazy excepts to this finding, contending, inter ,alia, that its employee complement did not reflect a majority continuation of its predecessor's work force. We find merit in this exception. An employer which takes over a business is a "successor" if there is continuity in the employing industry after the change of ownership: Although all the circumstances are considered, the key factor in making a successorship determination is whether a majority of the new employer's bargaining unit employees were members of the predecessor's unit work force at or near the time it ceased operations. NLRB v. Burns Security Services, 406 U.S. 272 (1972); Pacific Hide & Fur Depot v. NLRB, 553 F.2d 609, 612 (9th Cir. 1977); Stewart Chevrolet, 262 NLRB 362 fn. 5 (1982) (employee Woolcott). On 13 June 1978 Fugazy purchased Airport Bus' ICC authority and the "airline crew" portion of Holland New York II's business and leased a part of Holland New York II's facility. In July Fugazy began operating a bus company, at least partially in competition with Holland New York II, utilizing its own management, buses, employees, supervi- sors, and dispatchers. On 9 October 1978 Fugazy purchased the charter bus portion of the Holland New York II operation and took over Holland New York II's entire premises. Holland New York II's remaining employees began working for Fugazy. To establish successorship, the General Counsel must demonstrate that a majority of Fugazy's bar- gaining unit employees" in early July 1978 had been employed in the relevant units by Holland New York II in mid-to-late June and/or that a ma- jority of the bargaining unit employees employed by Fugazy in mid-October 1978 were employed by Holland New York II immediately before its cessa- tion of operations. We find that the General Coun- sel has not met his burden of proof. Holland New York II's payroll records were un- available, and the General Counsel, therefore, ap- propriately attempted to use secondary evidence to establish the identity of Holland-New York II's em- ployees in the relevant units. Unfortunately, much of this evidence is of little probative value. Thus, the General Counsel introduced into the record the payroll records for Airport Bus, union authoriza- tion cards signed by Holland New York I and II " The units involved herein are (1) all full-time and part-time drivers and (2) all mechanics and helpers AIRPORT„BUS SERVICE 563 employees in the winter and early spring of 1978, and the testimony of four employees. Employee Gonzales named -12 individuals who had worked for Shortway Charter in June 1978 and who subse- 9nently worked for fugazy. Employee Beckles named approximately 34 employees who- had worked for Sliorokay Charter both before , and after Fugazy began using part, of the Holland New York II facility in June and July 1978 and, in pass- ing, noted that about 10 of these individuals subse- quently worked for Fugazy. Employee Gibson tes- tified regarding approximately 18 employees who worked , for Holland New York II during the spring of 1978. Only the testimony of employee Goza, in which ' he named 16 Shortway Charter drivers who transferred directly to the Fugazy payroll in mid-October, is probative. The Fugazy payrolls for the 'periods 9-22 October 1978 'list 48 drivers and 11 mechanics or cleaners. Based on the above, we find insufficient evidence of work force continnity to establish successorship. In addition, there is no evidence that any of Fu- gazy's mechanics and helpers in mid-October 1978 had been recent Holland New York II employees. Also, the record affirmatively establishes only that 15 12 Of 48 Fugazi drivers in mid-October '1978 were carryovers from Holland New York II's 'Op- eration. Therefore, we find that Fugazy was not a successor to Holland New York II, 'and is not re- sponsible for its predecessor's unfair -labor prac- tices." 3. The judge found that the Respondents violat- ed Section 8(a)(3) and (1) of the Act by condition- ing the continued employment of unit employees upon two conditions: (1) their accepting wages and working conditions other than those provided in the then-current contract between Airport Bu g and Teamsters Local 875 and (2) their willingness to re- linquish union representation. The judge further found that the Respondents violated Section 8(a)(5) and (1) by withdrawing recognition from Local 875, abrogating the contracts, and unilaterally alter- ing terms and' conditiohs 'of employment. The Re- spondents except to these findings, asserting that the adjudication of Airport Bus 'as a- bankrupt ex- tinguished, by law, the Collective-bargaining agree- inent between Airport Bus and Local 875. We find no merit in this exception." 12 The name' of 1 of the 16 dnvers identified by Goza does not appear on Fugazy's payroll - . 13 For the reasons stated by the judge, Member Zimmerman would find that Fugazy was a successor to Holland New York II and is there- fore responsible for the latter's unfair 'labor practices Accordingly, he dissents from the reversal of the judge's findings concerning Fugazy 14 We have duly considered the issues raised by the debtor-in-posses- sion status and bankruptcy adjudication of -Airport BUs in light of NLRB r Bildisco & Badisco, 104 S Ct 1188 (1984) On 29 November 1976 Air- port Bus filed for debtor-in-possession status under Chapter 11 Subse- In light of the complete integration of the Hol- land New York I operation which we have , found supra, we find that, subsequent to October 1977, the appropriate bargaining units were one of all drivers and one of all mechanics and helpers em- ployed by Holland New York I and that Airport Bus' collective-bargaining agreements covered -these units., South Prairie Construction Co. v. Operat- ing Engineers Local 627, 425 U.S. 800 (1976); Land Equipment Inc., 248 NLRB 685, 688 (1980), Safety Electric Corp., 239 NLRB 40, 43 (1978). As the alter ego of Holland New York I, Holland New York II was obligated to continue to recognize Local 875 and to observe the collective-bargaining agreements. The judge declined to compel the General Coun- sel to-name Airport Bus' Trustee-in-Bankruptcy as a necessary party to these proceedings. In addition, it appears _that the General Counsel may not have filed timely proofs of claims against Airport Bus' banl,crupt estate The Respondents contend that these failures constitute procedural irregularities warranting dismissal of the complaint. We find no merit in these contentions. The record reveals that, on Airport Bus' bank- ruptcy adjudication, the Trustee ceased Airport Bus' participation in the Holland New York I oper- ation, proceeded to liquidate its estate, and was not involved in the commission of the unfair labor practices found herein. We also note that, under the Bankruptcy Rule, a creditor who wishes to col- lect against- a bankrupcy estate must file a timely proof of claim with the bankruptcy court. We do not see how the absence of either the Trustee as a party or of timely proofs of claims can impede our authority to adjudicate , the unfair labor practice issues herein.' 5 AMENDED REMEDY Because it appears from the record that Holland New York II 'ceased operations at least for some time period beginning in October 1978, we shall quentlY, Airport Bus; as debtor-in-possession; Was authorized to continue 'its business operations On 29 December 1976 Airport Bus. - entered Into two ,3-year collective-bargaining agreements with Local 875 covering Airport Bus drivers and mechanics Airport Bus 'was adjudicated a Chap- ter 10, bankrupti on 24 January 1978 There is no'showing that during its term as debtor-in-possession Airport Bus sought to modify or reject the terms of its 29 December contracts There is also no showing that the bankruptcy trustee or bankruptcy court disaffirmed these contracts fol- lowing Airport Bus' adjudication as a Chapter 10 bankrupt In compari- son, Bildisco involved, a company which, as a debtor-in-possession . under Chapter 11, rejected, with court approval, a collective-bargaining agree- ment signed prior to its filing as a Chapter 11 debtor-in-possession Ac- - cordingly, .we find that BrIchsco is inapplicable, to the facts of this case 15 At most, these failures may diminish the Board's remedial opportu- nities against one of these Respondents We leave to the bankruptcy court the determination of the effects of these failures, if any, under the bankruptcy laws s 564 DECISIONS OF NATIONAL TABOR RELATIONS BOARD order that the notice be mailed to the employees employed by Holland New York I and II during the time the unfair labor practices found herein oc- burred. Cerro CATV Devices, 237 NLRB 1153 (1978). CONCLUSIONS OF LAW 1. The Respondents are each employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Locals -522, 819, and 875, International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America', are each -labor organiza- tions within the • 'meaning of Section 2(5) of the Act. 3. Between October 1977 and 24 'January 1978, Holland Industries, Airport Bus, Dell Bus, and Maintenance and -Manpower constituted a single in- tegrated business enterprise, known herein as Hol- land New 'York I. 4. Between 24 January 1978 and 9 October 1978, Holland Industries, Dell Bus, Shortway Chapter, and Maintenance and Manpower constituted a single integrated business enterprise, known herein as Holland New York II. . 5. Holland New York Al was the alter ego of Holland New York I. -` 6. Shortway Lines was not a constituent compa- ny in either Holland New York I or II. 7. Fugazy was not a-successor to either Holland New York I or II. 8.'Holland New York I violated Section 8(a)(2) and (1) of the Act by: (a) Assisting Local 522 in obtaining signed au- thorization cards from its employees: (b) Executing a collective-bargaining agreement, dated 16 January 1978, with Local 522 at a time when Local 522 did not represent an uncoerced majority of its employees. -9. Holland New York II violated Section 8(a)(2) and (1) by assisting Local 522 in obtaining signed authorization cards- from its employees. - 10. Holland New York I violated Section 8(a)(3) and .(1) by executing a collective-bargaining agree- ment, - dated 16 January 1978, with Local 522 which contained, a union-security clause requiring membership in Local 522 as a condition of employ- ment. 11. Holland New York II violated Section 8(a)(3) and (1) by 'conditioning the continued, em- ployment of its , employees upon (a) their accepting wages and terms and 'conditions of employment other than those provided by the 29 December 1976 collective-bargaining agreements ,between Airport bus and Local 875, and (b) their relin- quishing their right to union representation. 12. Holland New York ' II violated Section 8(a)(5) and (1) by failing and refusing to continue to .recognize and bargain with Local 875 on and after 24 January 1978; by refusing 'to enforce the terms and conditions of eniployment contained in the, 29 December 1976 collective-bargaining agree- ments between Airport Bus and Local 875; and by Unilaterally changing the terms and conditions of employment of the employees covered by these agreements. ORDER The National Labor Relations. Board orders that, in, Cases 29-CA-6185, 29-CA-6251, and 29-CA- 7174, Respondents Holland Industries Inc., Toledo, Ohio; -Airport Bus Services, Inc., Debtor-In-Posses- sion, New York, New York; Dell Bus Company, Inc., New York, New York; Maintenance and Manpower Inc., New York, New. , York; Cross County Coach Corporation, ,, New York, New York; and Shortway Bus Cha rter Corporation, New York, New York; their officers, , agents, suc- cessors, and assigns, shall take, the following action. A. Respondents Holland Industries, Airport Bus, Dell Bus, Maintenance and Manpower, and Cross County shall cease and desist from: (a) Assisting Local 522, or any other labor orga- nization, in obtaining signed authorized cards for said labor, organizations. (b) Entering into a collective-bargaining agree- ment with Local 522, or any other , Aabor organiza- tion, at a time when said labor organization does not represent an uncoerced majority of the employ- ees in an appropriate unit. (c) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Respondents Holland Industries, Shortway .Charter, Maintenance and Manpower, and Cross County, shall cease and desist from - (a) Assisting Local 522, or any other labor orga- nization, in obtaining signed authorization cards for said labor organizations. (b) Conditioning - the continued employment of .employees' on their acceptance of wages and terms and conditions of employment other than those contained in the valid collective-bargaining agree- ment covering their bargaining unit. (c) Conditioning the continued employment- of employees on their relinquishment of the right to be represented by a labor organization. (d) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 3. Respondents Holland Industries, Dell Bus, Shortway Charter, Maintenance and Manpower, AIRPORT BUS SERVICE 565 and Cross County shall take the following affirma- tive actions to effectuate the policies of the Act. (a) Offer to all employees (as listed in the judge's Appendix A) who refused to accept employment at terms and conditions less than that provided for in the collective-bargaining agreements dated 26 De- cember 1976 between Local 875 and Airport bus and/or who refused to accept employment without representation by a labor organization, full and im- mediate reinstatement to their former jobs or, if these jobs no 'longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them in the manner set forth in the section of the judge's decision entitled "The Remedy." (b) Make whole, with interest, each of the em- ployees who, on or after 24 January 1978, accepted employment with any of the Holland New York II Respondents for the difference between- their rate of pay and other terms' and conditions of employ- ment and what their rate of pay and other terms and conditions of employment properly were, as set forth in the collective-bargaining agreements dated 29 December 1976 between,Airport Bus and Local 875. (c) Reimburse all employees for dues and other moneys deducted from their pay, or paid directly to Local 522, under, or in consequence of, the col- lective-bargaining agreement, dated 16 January 1978, between Respondent ,Maintenance and Man- power and Local 522. (d) Preserve and make available to the Board or its agents, on request, payroll and other records necessary to determine the amount due under para- graphs (a), (b), and (c), above. (e) Post at their principal offices copies, of the at- tached notice marked "Appendix B." 16 In addition, mail a copy of said notice to each employee who was on any of their payrolls during the period 10 January 1978 through 9 October 1978. The notices shall be mailed to the last known address for each employee. Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent's authorized repre- sentative, shall be posted and mailed by the Re- spondents immediately upon receipt. , The posted notices shall, be maintained by Respondents for 60 consecutive days in conspicuous places including all places where notices to employees are custom- 16 If this Order•is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read ,"Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- . al. Labor Relations Board" arily posted. Reasonable steps shall be taken by the Respondents to ensure that the posted notices are not altered, defaced, or covered by any other mate- rial: (f) Notify the Regional 'Director in writing within 20 days from the date of this Order what steps the Respondents have taken to comply. IT IS FURTHER ORDERED that the consolidated amended complaint be dismissed with respect to the allegations not specifically found herein to be violative of the Act. ORDER The National Labor Relations Board adopts, the recommended Order of the administrative law judge and orders that, in Cases 29-CA-5134 and 29-CA-5148, the Respondents, Clayton Wynn d/b/a Wynn V.I.P. Limousine Service, New York, New York, and Airbort Bus Service, Inc., New York, New York, their officers, agents, successors, and assigns, shall take the action set forth in the Order. APPENDIX B NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT assist Local 522, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America (Local 522), or any other labor organization, in obtaining signed au- thorization cards frc _I our employees. WE WILL NOT enter into a collective-bargaining agreement with Local 522, or any other labor orga- nization, at a time when said labor organization does not represent an uncoerced majority of our employees. WE WILL NOT condition the continued employ- ment of our employees on their acceptance of wages and terms and conditions of employment which are other than those contained in the valid collective-bargaining agreement covering their bar- gaining unit. WE WILL NOT condition the continued employ- ment of our employees on their relinquishment of the right to be represented by a labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exer- cise of the rights guaranteed them by Section 7 of the Act. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - WE WILL reimburse, with interest, all our em- ployees who had their union dues deducted from their pay, or paid directly to Local 522, under, or in consequence of, the collective-bargaining agree- ment , between Maintenance and Manpower, Inc. and Local 522, dated 16 January 1978. WE WILL offer to all employees, who refused to accept employment at terms and conditions other than those provided for in the collective-bargaining agreements, dated December 29, 1976, between Teamsters Local 875 and Airport Bus Service, Inc., and/or who refused to accept employment without representation by a labor organization, full and im- mediate reinstatement to their former positions or, if those jobs no longer exist, to. substantially equiv- alent' positions without prejudice to , their seniority or other rights and privileges, and make . thein whole, with interest, foi any loss of earnings they may have suffered because of our discriminatory conduct against them. WE WILL make whole with interest, each of .the employees who, on or after 24 January 1978, ac- cepted employment with any of us for the differ- ence between their rate of pay and other terms and conditions of employment and what their rate of pay and other terms and conditions of employment properly were, as set forth' in the collective-bar- gaining agreements, dated 29 December 1976, be- tween Airport Bus and Local 875.' HOLLAND INDUSTRIES, INC.; AIRPORT Bus SERVICE, INC., DEBTOR-IN-POS- SESSION; DELL Bus CO., INC.; MAIN- TENANCE AND MANPOWER, INC.; . CROSS COUNTY COACH CORP.; AND SHORTWAY Bus CHARTER CORP. • • DECISION STATEMENT OF THE CASE JOEL P. BIBLOWITZ; Administrative Law Judge: This case was tried before me in Brooklyn, New York, and New York, New York. The hearing opened on Septem- ber 2, 1980, there were 22 hearing dates and the heanng closed on June 23, 1981. „. . The Cases Involved Herein On November -1, 1977, the National Labor Relations Board (the Board) issued its Order (unpublished) in Cases 29-CA-5134 and 29-CA-5148; that Order adopted the recommended Order of the administrative law judge and directed Respondents Airport Bus Service, Inc. (Air- port), and Clayton Wynn, d/b/a Wynn V.I.P. Limousine Service (Wynn), their officers, agents, successors, and as- signs, to make Holrick White whole for any loss of earn- ings suffered by him because of their discrimination against him. On September 15, 1978, the United States Court of Appeals for the Second Circuit entered its judg- ment enforcing. in •full this Order of the Board. On July 15, 1980, the Regional , Director for Region 29 of the Board . issued an • amended backpay specification and notice of hearing in this Matter. On Januar}, 30, 1978, Louis' Lyons filed the 'charge in Case 29-CA-6185 solely . against AirpOrt; on r February 28, 1978, William Moser filed the charge in Case 29- CA-6251 against "Airport' Bus Service, Inc., Banknipt" "and' its successors and .alter egos," naming Shortway Charter. Bus Service, Inc.; Cross County ,Coach .Corp. (Cross County), Dell - Transportation Service (Dell Transportation), and Manpower and Maintenance, Inc. On May 31, 1978, an order consolidating; cases, com- plaint, and notice of hearing, was issued, _naming these employers as the Respondents, After the hearing in this matter was postponed on a number of occasions, Moser filed an additional unfair labor practice charge in Case 29-CA-7174 on May 7, 1979, against Fugazy Continental Corp. of Connecticut (Fugazy of Connecticut). On June 30, 1980, 'an order consolidating cases,' amended corn- 'plaint, and nonce of hearing was issued in the three above-mentioned cases. 'The Respondents named are Air- Tort and its successors and alter egos Shortway Bus -Lines, Inc., Cross County, Dell Transportation, Man- power and Maintenance,- Holland Industries, Inc. (Hol- land), and Fugazy of Connecticut. , This consolidated amended complaint also names Local 522, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 522), and Local 819, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helper's of America (Local 819). The consolidated amended complaint: alleges that Shortway Bus Lines, Inc. (Shortway Lilies), Cross County, Dell Transportation, Manpower .and Maintenance,. Holland, and Fugazy of. Connecticutare alter egos of, and succes- sors to, Airport, and that Fugazy'is the successor of, and .alter ego to, Airport, as well as the other named compa- nies; it further _alleges that, at , all times material since about 1976, Airport and Local 875, International Broth- ,erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Local 875), Were parties to a collec- tive-bargaining agreement covering Airport's employees, but since about January 24, 1978, the Respondents unilat- erally changed the terms and conditions of employment of these employees without notice to Local 875, bar- gained directly with unit employees„ and refused to rec- ognize or, bargain with. Local 875; and it additionally al- leges that on, January 24, 1978, the Respondents dis- charged (and , since, have failed to reinstate) numerous employees (some of whom were named in this complaint and otheis who -were named pursuant to a -demand for a bill of particulars) because the emplOyees joined and as- sisted Local 875 and engaged in other protected concert- ed actions. The consolidated amended complaint further alleges that abut January 1978 the Respondents 'urged their employees to sign cards designating Local 522_ as their collective-bargaining representative, and about Jan- uary 16, 1978, the Respondents and. Local 522 executed, and, until June 1978, maintained and enforced a collec- tive-bargaining agreement covering the Respondent em- ployees, providing, inter alia, that these employees- shall AIRPORT BUS SERVICE 567 become and remain members of Local 522 as a condition of employment; that about June 14, 1978, the Respond- ents and Local 819 executed, maintained, and enforced a collective-bargaining agreement covering the Respond- ents' employees, providing, inter aim, that these employ- ees shall become and remain members of Local 819 as a condition of employment; that the Respondents and Local 522 and Local 819 executed and maintained these agreements in effect, notwithstanding the fact that at the time of the execution of the respective agreements, nor at any time thereafter, Local 522 and Local 819 did not represent an uncoerced majority of the employees cov- ered by the agreements, and notwithstanding the fact that the Respondents were under an obligation to contin- ue to recognize and bargain with Local 875. As a con- clusion, it is alleged that by these actions the Respond- ents have violated Section 8(a)(1), (2), (3), and (5) of the Act. During the hearing, pursuant to a motion to amend the consolidated amended complaint, I issued an Order dated February 12, 1981, wherein certain of the Re- spondents' names were corrected Pursuant to that Order, the Respondents are Airport' and its Successors and Alter Egos Holland, d/b/a Dell Bus Co., Inc. (Dell Bus), Maintenance and Manpower, Inc. (Maintenance and Manpower), Cross County, Shortway - Lines, and Shortway Bus Charter Corp (Shortway Charter, its wholly owned subsidiaries), and Fugazy of Connecticut. On March 16, 1981, pursuant to a motion to consolidate by the General Counsel, Cases 29-CA-5134 and 29-CA- 5148 were consolidated with Cases 29-CA-6185, 29- CA-625l, and 29-CA-7174. FINDINGS OF FACT I. JURISDICTION Of the Respondents, only Fugazy of Connecticut, Hol- land, and Shortway Lines filed ,answers and appeared at the hearing. Summary judgment was granted as regards the other Respondents. Airport is a New York State corporation engaged in the business of providing bus transportation services and related services. Prior to October 1977, Airport's office and principal place of business was located at Building 69 at Kennedy Airport (Building 69) In October 1977, Airport moved its office and principal place of business to 114-02 New York Boulevard, in Jamaica, New York (New York Boulevard). The Board, in Cases 29-CA- 5134 and 29-CA-5148, has previously asserted jurisdic- tion over Airport In addition, Michael Margolis, during much of the period herein the president of Airport, testi- fied that Airport ,"probably" received revenues in excess of $50,000 (during 1977) for bus trips that Originated in New York State and later crossed into a different State. Dell Bus, Cross County, and Maintenance and Man- power are New York corporations engaged in providing bus transportation services and related services. At all times material herein, and until about November 1978, their principal offices and places of business were located at New York Boulevard, and they have been affiliated I Later amended to read "Airport Bus Service, Inc , Debtor-in-Posses- sion" businesses with common officers, ownership, directors, and operators and constitute a single integrated business enterprise. During 1978, Dell Bus, Cross County, and Maintenance and Manpower purchased vehicular parts, fuel, and other goods and material valued in excess of $50,000 which were delivered to their places of business directly from points outside New York State. Shortway Charter is an Ohio corporation engaged in providing bus transportation service and related services All the stock of Shortway Charter is owned by Holland. At all times material herein it has maintained offices at the New York Boulevard location and at 645 Madison Avenue in the city and State of New York (645 Madison Avenue). During 1978, Shortway Charter purchased ve- hicular parts, fuel, and other goods and materials valued in excess of $50,000 which were delivered to it directly from places outside the State of New York. Holland is a New York State Corporation with its principal 'office located in Toledo, Ohio, and, at times material herein, it has maintained an office at 126 East 35th Street in the city and State of New York Although Holland itself does not operate buses or employ employ- ees, it acts as a holding company, owning subsidiaries that provide bus transportation service and related serv- ices Holland derives revenues from charges to these sub- sidaries, and in 1978 and 1979, Holland received revenue in excess of $500,000 in this manner. Shortway Lines is a subsidiary of Holland. It is an Ohio corporation with its principal office at the same lo- cation as Holland in Toledo, Ohio. Shortway Lines is en- gaged in providing bus transportation and related serv- ices mainly in Ohio and other nearby States. During 1980, Shortway Lines received in excess of $50,000 for services performed outside the State of Ohio. Holland and Shortway Lines admit, and I find, that they are each engaged in commerce within the meaning of the Act. Fugazy of Connecticut is a Connecticut corporation which, since June 1, 1978, has maintained its principal office at 645 Madison Avenue Since about that time it has been engaged in providing bus transportation and re- lated services During the past year it purchased vehicu- lar parts, fuel, and other goods -and materials valued in excess of $50,000 which were transported and delivered to it directly from States other than the State in which it is located. Fugazy of Connecticut admits, and I find, that it is engaged in commerce within the meaning of the Act On the basis of the above, I find that Airport, Dell Bus, Maintenance and Manpower, Cross County, Shortway Charter, Shortway Lines, Holland, and Fugazy of Connecticut are employers engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. II THE LABOR ORGANIZATIONS INVOLVED The Respondents admit, and I find, that Local 875, Local 522, and Local 819 are labor organizations within the meaning of Section 2(5) of the Act. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. CREDIBILITY The individual who maintains a presence throughout this entire commentary is Michael Margolies, who, at the least, held positions of authority with Airport and Hol- land and, for a time, was employed as a consultant by Fugazy of Connecticut. He was the individual who in- volved Holland with Airport until Airport was adjudi- cated as a bankrupt in January 1978. Between that time and June 1978, he was involved, at the same location, in the operation of other Holland enterprises, and later in 1978, after Holland sold its Interstate . Commerce Com- mission rights to Fugazy of Connecticut, for a period of time he was employed by Fugazy as a consultant. After observing Margolies on the witness stand for a number of days, I have sincere doubts as to his credibil- ity. It was obvious that he and Arthur Wagner, counsel for Holland and Shortway Lines, took this proceeding less than seriously, talking back and forth and laughing while Margolies was on the witness stand. Additionally, it appeared that Margolies testified freely only where he felt it would not assist the General Counsel's case. My observation of Margolies convinces me that it is not the years that have clouded his memory, but rather a con- venient loss of memory at certain times. This may have been due to the fact that at the time of the hearing he was still associated with Holland. One example of Margolies' lack- of credibility (in addi- tion to his evasiveness) was his testimony in answer to a series of questions from the General Counsel regarding the tools and equipment in the garage at the New York Boulevard location. Q. . . . can I ask him if he was there after the move from Building 69 to New York Boulevard. Were you in the garage after— A. I was never in the garage. Less than a minute later, Margolies was asked. Q You have been in the garage? A. Certainly Q. Did you say you had never been in the garage? A. No. I never said I have never been in the garage. I didn't work in the garage, I couldn't give you an independent verification of the items on there. Whether this conflict was caused by a deliberate fabrica- tion by Margolies or is just further evidence of his flip- pant attitude toward these proceedings, it further indi- cates his overall lack of credibility. It should also be noted that at the time of the hearing Margolies was no longer employed by Fugazy of Con- necticut as a consultant, and, in fact, had sued Fugazy of Connecticut for the alleged breach of this agreement. I therefore did not find Margolies to be a credible wit- ness for these reasons and others that will appear infra. I therefore have not credited him in many situations where there is conflicting testimony from other, more credible witnesses. At other times I have not fully credited him even where his testimony is uncontradicted, where his testimony appears to be -highly unlikely. The credibility of the other witnesses, when necessary, will be discussed separately IV. AIRPORT This tile begins about June 1976 when Holland asked Margolies to investigate the possibility of its purchasing Airport. At that time, and through January 24, 1978, the drivers and mechanics at Airport had been represented by Local 875 under separate collective-bargaining agree- ments. Since at least 1976, Airport had been located at Build- ing 69 at Kennedy' Airport, which premises it leased from British Airways. During this Period, and through January 1978, Airport performed two forms of bus trans- portation: crew work, for which it contracted with a number of airlines to transport their flight crews between Kennedy Airport and hotels -in New York City, 2 and general bus passenger charter work for the public. In -ad- dition, to a lesser degree, Airport transported' airline pas- sengers between the numerous passenger terminals at Kennedy Airport and between Kennedy Airport '.and New York City, all pursuant to agreements between it and the airlines. 3 At that time, Airport had approximate- ly 30 vehicles, all buses Margolies testified that about June 1976 he was in Toledo, Ohio, performing consulting work for Holland.4 At that time either Wagner, an officer for Holland and counsel for Holland and Shortway Lines hefein, Cap- pozzi, Holland's president at the time, or Wegerbauer, an officer of Holland and, at a different time, president of Holland, asked him to investigate the situation at Browns Limousine Service, Inc. (Browns), 6 and Airport; he testi- fied that he was asked. "Could you stay an extra week in the United States? Could you go to New York and take a -look at the situation?" Margolies went to New York, spent some 'time at Building 69, and reported to Holland that, although Browns' situation appeared hopeless;Airport appeared to be viable and might serve as a starting point for a Hol- land operation in New York. 6 Later in his testimony, 2 Margolies testified that Airport did not perform this crew work when he arnved at Airport in June 1976 and "may have" performed this work in 1977 Hom,s”er I credit the testimony of employee Peter Petta, who testified that Airport performed crew work as well as charter work during this period In addition, the decision in the case involving Holrick White found that Airport performed crew work under contracts with air- lines Finally on this Issue, Margolies, in an affidavit submitted to the court on Airport's Chapter XI bankruptcy petition, dated November 29, 1976, referred v to Airport's business as "providing general charter and crew service" Additionally, Steven Goldman, Airport's vice president, testified that Airport performed airlines crew work Airport did not transport people from the airport on an individual passenger fare basis 4 He was residing, at the time, in Spain and "I was looking for some- thing more permanent to do" 5 There is some question as to the connection, if any, between Browns and Airport at the time Margolies testified that when he investigated their viability on behalf of Holland their operations were intermingled After he became president of Airport, he separated the management and payroll of the two companies 6 Margolies' answers herein were often "probably," "I certainly might have," or similar vague answers Because I found that Margolies had dif- ficulty making admissions to questions from the General Counsel, in this situation I have translated these answers to mean "yes" AIRPORT BUS SERVICE 569 Margolies testified that he reported to Holland that it was "questionable as to whether this might be a viable situation" and that Airport's operation was "so-so. I couldn't really tell, there was nobody there" Margolies testified that, at the end of his stay in New York investi- gating Airport and Browns on behalf of Holland, he in- formed Jack Feldman (a major stockholder of Airport at the time) that Holland was not interested in it at the time. Feldman asked him if he would be interested in re- maining and running Airport 7 No salary or position was discussed. Margolies answered that he might be interest- ed and returned to Europe. A couple of weeks later Margolies called Feldman or Wagner and said, "I might be interested in coming back, I'm leaving my family here, I want to come over and give it a whirl." He re- turned to, New York and went to Building 69. He testi- fied that he became president of Airport although nobody appointed him or elected him to that position: "I walked in and I sat down; because I wore a suit and tie people—I sat in the president's office, the emperor's clothes or something. There I was, I ran the company." When asked who determined what his salary would be, Margolies testified: "I called in the bookkeeper and said put me on the payroll She said how much I think it was nine hundred dollars8 a week and she said, 'Yes sir'"; "I picked a number for myself, told the girl to put me on the payroll" Margolies could not be any more specific about how his salary was determined. However, the General Counsel produced a transcript from the bank- ruptcy proceeding in which Margolies testified that, in a conversation with Cappozzi and Wegerbauer, Margolies agreed to become president of Airport, and at the same time they fixed, the salary he was to receive in that posi- tion; Margolies testified that he remembered that testimo- ny. As stated, supra, Holland does not itself operate buses, but rather owns stock in, or assets of, other transporta- tion companies. It attempts to learn of possible acquisi- tions in this industry and investigates these situations; this was how Margolies and Holland first became involved with Airport, as discussed supra. Margolies testified that, during the period of his presidency of Airport, he was informed by officers of Holland that they were negotiat- ing to purchase Airport, but that no such agreement was ever, consummated Louis Lyons was employed first by Browns as a me- chanic in 1967. He testified that the company name of his employer changed_ "quite a few times" and changed to Airport Bus about 1976. He had also been the Local 875 shop steward since 1971. He testified that sometime in 1976, when Margolies first arrived at Airport, Margolies said to him, "I just want to get acquainted with you, I'm 7 Margolies testified that his inspection of the Airport operation re- vealed "that there was ' nobody there, no officers, there were people working, but unsupervised" 8 In the affidavit to the bankruptcy court dated November 26, 1976, referred to supra, Margolies states "Prior to the filing of this petition, Mr Margolies was receiving $900 per week in the form of $400 paid di- rectly to him and $500 'Said to Holland Industries, Inc. as a return against advances which Holland paid on behalf of Margolies Mr Margo- lies is a consultant to Holland Industnes, Inc " the new president, I'm taking over, Pride Porter is the president of Browns, but I'm over the whole thing." Robert Seymour, who was originally employed by Browns in 1972 and was employed by Airport in 1976, testified that when Margolies first arrived at Airport he made a speech to about 20 or 30 of- Airport's drivers in the drivers' room. Margolies told them that Porter was his vice president and that he was the sole owner of Air- port and Shortway and "Shortway would be in there too." He also made mention of Holland in this meeting. From 1977 through January 24, 1978, Steven Goldman was vice president of Airport in charge of charter sales. Margolies appointed him to that position Joseph Bonasia was the Airport executive who represented Airport in dealings with the airport, the port authority, and certain customers. He also supervised the dispatchers About January 1978, Margolies was chairman of Holland. He testified that he could not recall how much before that time he assumed that position. The General Counsel pro- duced a transcript dated September_ 14, 1979, where, in answer to questions from a representative of the Board, Margolies testified that he assumed the position of chair- man of Holland "just about the same time" as he was ap- pointed the president of Airport. In addition to that posi- tion, he has been the secretary 8 of Holland since 1978, and has been a stockholder of Holland since about that time. In 1978, Margolies appointed Goldman a vice president of Holland; it was a position he held for a short time." Goldman, on December 29, 1976, signed the col- lective-bargaining agreement with Local 875 covering Airport's mechanics and helpers on behalf of Airport. He signed it on behalf of Airport because "I was available at the time." He did not take a major part in the negotia- tions leading to the agreement. After Airport was adjudi- cated a bankrupt on January 24, 1978, Goldman was em- ployed as vice president for Shortway Charter; Margo- lies appointed him to that position as manager of charter sales for Shortway Charter. Sometime during the latter half of 1978, he was asked by someone (whose name he does not remember) from Fugazy of Connecticut to run their charter department. He was employed by Fugazy of Connecticut for a few weeks., Airport operated out of Building 69 until October 1977, at that time they encountered difficulties with their landlord and they moved into a terminal and offiée locat- ed at 114-02 New York Boulevard, Jamaica, New York (New York Boulevard). Airport continued to operate from this location until the termination of its operation in January 1978. New York Boulevard is a large two-story "L shaped" building with a large parking area in between. The build- ing contains offices on both the first and second floor, a garage, and body shop. There is also a parking lot on the premises. Shortly prior to October 1977, Paulding Equi- ties, which is wholly owned by Holland and was created 9 Beginning about March 1977, Airport paid Wagner $250 a week as "transportation consultant" Wagner was the secretary of Holland in 1977 In December 1977, Margolies, Wagner, and Wegerbauer were the sole Holland directors '9 He testified that he did not perform any duty specifically in that capacity as compared to his capacity as an officer of Airport 570 DECISIONS OF NATIONAL LABOR .RELATIONS BOARD specifically for the purpose, purchased New York Boule- vard from Dell Bus Shortly thereafter, Airport trans- ferred its operations to New York Boulevard. On August 24, 1977, Margolies executed an agree- ment" on behalf of Holland as "President" (although he testified that he never was president of Holland), the other signatures to this agreement were those of Gordon Dern and his brother Norman Dell" (with no company name beside their signatures) The agreement identifies Dell and Dern ("Sellers") as the owners of all the shares of Dell Bus Co, Inc (Dell Bus) and the real property at 114-02 New York Boulevard in Jamaica, New York (New York Boulevard) and states that they desire to sell all the outstanding shares of Dell Bus to Holland ("Pur- chasers"). Holland agreed to pay Dern and Dell the sum of $1 for the outstanding shares of Dell Bus, and agreed to "retain the services of' Dell and Dern "to devote their full time and efforts and generally manage themper- ational affairs of Dell and other subsidiary and associated transportation companies." A specific salary is provided for, and "in addition, Sellers shall be entitled to receive 25% of the net after tax profits of the New York Oper- ation. Said compensation to continue so long as purchas- er actively maintains its New York operation." The agreement is stated to be effective October 1, 1977. During Margolies' tenure, Airport owned some of its own buses and leased 10 _buses from Bus Exchange. Sometime' between November 1976 and January 1978, Holland purchased five of the buses Airport owned" and leased them back to Airport. In addition, because Airport could not meet the insurance payments on the buses it was leasing from Bus Exchange, Holland pur- chased these 10 buses from Bus Exchange and likewise leased them back to Airport 14 The accountant's report to the Trustee-in-Bankruptcy for Airport states that by March 1977 Airport was paying to Holland $33,500 monthly for rental of buses and had a security deposit of $23,500 with Holland for the leasing of 23 buses. There were other transactions between Airport and Holland as well; some are set forth in the bankruptcy case docket The docket indicates that Airport filed its Chapter XI petition, with the supporting papers, on No- vember 29, 1976. The General Counsel's brief alleges that on December 29, 1976, Holland commenced a series of loans to Airport The docket is not entirely clear on this issue; for December 29, 1976, the docket contains the following relevant items: Order signed authorizing execution of documents to complete transfer of certain buses. - Order signed authorizing Holland Industries, Inc., to advance insurance payments for debtor. " Margolies testified that he also negotiated this agreement on behalf of Holland " Dell did not testify herein " These were the "typical Greyhound bus," with a lavatory, and were used for charter work Petta testified that about October 1977 Airport operated approxi- mately 10 Airport and Browns buses and 4 to 6 Shortway .Lines buses The Shortway name appeared on the sides of the buses in lettering about 2 feet high, in addition to being on the rear as well The registration was also in the name of Shortway Lines Order signed authorizing the granting to Central State Bank of a security interest in accounts receiv- able of debtor The docket entries for October 28 and November 3, 1977, are clearer, however. Order signed (October 25) authorizing _Holland nunc pro tunc to lend the debtor $28,370 by paying the sum directly to Barbara Rosen.' 5 Filed unsigned Order authorizing Holland Indus- tries, Inc., to lend debtor a certain sum in a revolv- ing fund. 'In addition to this direct financial assistance, Holland also obtained some charter business for Airport through its wholly owned company Shortway Charter. Shortway Charter acts solely as a broker in the bus charter busi- ness; it owns no buses of its own and earns its income from 'brokerage commission of the charters it places. Prior to 1976, Shortway Charter, as broker, obtained the Thomas Cook charter account and brokered it to a bus company in Westchester. As Margolies testified before the bankruptcy court: When -I came to Airport, Holland went back to X and said quote hey, we are now in business in New York. We have an operation in New York We are involved with this Airport. On the basis of this request from Holland, the West- chester bus company performing this charter work relin- quished the work and Airport performed the work there- after.' 6 Between October 1977 and January 1978, Airport had four dispatchers—Frank Capella, Frank Wurth, George Gaynor, and Stencil Stokes." In addition, Dern often acted as dispatcher for Airport, although he was not ac- tually employed by Airport. When the drivers reported for work in the morning, the dispatcher on duty at that time assigned him to a particular job, in addition, some of the buses had two-way radios and the dispatcher could make his assignment over the radio. As stated, supra, through January 24, 1978, Airport performed a number of different services: charter work available to the public for periods ranging from a few hours to a week or more and crew work, under contract with the individual airlines, under which Airport would transport the airlines crews from the airport to a hotel in New York City or elsewhere. In addition, Airport also transported passengers to other airlines or to hotels on behalf of the airlines, no individual fares were received iS The identity of Barbara Rosen was not explained at the hearing is Margolies' testimony at the hearing herein was that the company performing the work (whose principal Margolies knew) took the initia- tive in relinquishing the Thomas Cook account to Airport, although It received nothing in return Although on its face this appears to be ques- tionable, I find it unnecessary to make such a credibility finding as the testimony otherwise establishes that Holland took part in Airport's ob- taining this account " All except Stokes had been employed by Airport as dispatchers at Building 69 Stokes had previously been employed as a dispatcher by Dell Bus/Ominbus at the New York Boulevard location AIRPORT BUS SERVICE 571 for these trips. When Browns ceased operations approxi- mately, 6 months after Margolies' appearance at Building 69, Airport attempted to capture whatever business it could from the former Browns operation 'In addition to some charter work and crew work, Airport acquired work under Browns' contract with the Port Authority of New York and New -.'Jersey (Port Authority), for the transportation-from Parking Lot 7. Parking Lot 7 is a parking lot located at Kennedy Air- port which is used -by-individuals who are employed at Kennedy Airport to' park their cars. They then -board a bus at this parking,lot which takes them to the location at the airport where they work. Through most of 1976 this bus service was provided by Browns under a con- tract with the Port Authority. About the end of 1976; Airport began to operate this bus service (although-with-- out benefit of a Port Authority contract) with its buses,. drivers, and mechanics. In 'late 1976 or early 1977, Air-k port ceased performing this work when the Port Author- ity awarded the contract to Dell. Bus. 'Lyons testified' that in 1977 he observed that Dell Bus was using the same buses that Airport had used on the Parking Lot 7 operation, and, in fact, -with registrations under the Air-: port name.- Lyons further- testified that, after ,the contract was awarded to Dell Bus, he was often -sent to Parking' Lot 7 to work on one of the buses.' 8 Jay Strauss," who at the time of the hearing was em- ployed by Schenck Tours 2° (Schenck), .managing the Parking Lot 7 operation, was president . of -JFK Parking. Lot. No. 7, Inc. (Parking Lot No. 7, Inc.), although he testified that he neither managed the operation, nor was- he present at the location. Parking Lot - No. 7, Inc. was set up by Dell who gave it the work involved after Dell. Bus was awarded the Parking Lot 7 contract by the Port. Authority. Parking -Lot No. 7, Inc. began performing this work on April 1, 1977. Notwithstanding that Strauss- was president of the company, he testified that he did not know who owned Parking Lot _No. 7, Inc., although Dell was his boss during that period and supervised his work; his Parking Lot No. 7, Inc paychecks were signed by Susan Margolies, the then wife of Margolies. During that period, Parking Lot 7 was managed by Robert Bar- kley. 2 ' There was a collective-bargaining agreement, 12 It should be noted that at one point Margolies testified that he did not believe that Airport employees ever performed any Parking' Lot 7 work or that Lyons ever performed any work at Parking Lot 7 I would not credit this testimony Firstly, I found Lyons to be a more credible witness than Margolies he was not an evasive witness-as Margolies was and, unlike Margolies, Lyons appeared to look upon the proceeding'sen2 ously Additionally, the collective-bargaining agreement between Airport - and Local 875, dated DeCember 29, 1976, states "If the company -loses PONYA [presumably the Port Authority] contract on Employee Parking Lbt #7, Louis Lyons will be retained as a diesel helper with no cut in pay" Finally, other employees, and Goldman, testified that Airport per- formed this work 19 Strauss was an extremely hostile and evasive witness 20 About 1975, Dell and Dern sold a major portion of their crew trans- portation business to Schenck The agreement, according to Dern's testi- mony, contained a restnction on their operation within a 150-mile radius of New York City or with vehicles carrying over seven passengers, but Dern never produced this agreement 21 When asked what he did as president of the 'company, Strauss testi- fied "nothing" When asked about Dell's involvement in Parkiiig Lot No 7, Inc. he testified "He operated it,' he ran it " ' dated April 1, 1977, between Parking Lot No. 7, Inc. and LOcal 875 eovering the company's drivers. The agreement ' was executed by' Strauss on behalf' of the company Strauss testified that Dell asked how to sign the agreement, although he-did not know who negotiat- ed 'the agreement on' behalf of Parking Lot No. 7, Inc.; Strauss also did not know whether Parking Lot No. 7, Inc. was' affiliated with Holland on April 1, 1977.22 During the latter part 'of 1977, Strauss and Pete Pug- lese were the service managers for Airport; Strauss testi- fied that during this period he was paid personally by Dell, rather than by Airport or Dell Bus, although "it's possible" that he , could have been paid by an Airport check "by mistake." Airpori's payroll lists Strauss as having been paid $340 On November 6 and 13, 1977 Petta testified that during the fall of 1977 he attended a meeting with Margolies, Lyons, and (he believes) Nick Emannual, the representative of Local 875. The meeting took, place at New York Boulevard after Airport moved there. Margolies told them that he was the president of the Company. He drew a corporate diagram containing Holland Industries at the top (with the words "owns 15 companies" beside it); beneath Holland are six named companies, including Shortway Lines, Airport, and Dell Bus Margolies gave the diagram to the Local 875 repre- sentative. Margolies then said that Goldman . was in charge of the charter department at Airport; Petta asked what were the _functions of Dell. and Dern; and Margo- lies said that Dell was the chief' or general manager in charge of the dispatchers and drivers, and Dern was the head dispatcher. ,They were also informed that Jay Strauss was the maintenance manager. After Airport transferred its operations to the New York Bdulevard location, the following employees of Dell Bus or other companies owned or operated by Dell and Dern, at the least, began working for Airport: Elton Nocks, William Pearson, Selvin Gibson Jr., John Eagle, Robert Bertart, Hubert Howie, Robert Bryant, Erastus Clifton, Peter ' Gumpel, Phil Tesco, Arthur Johnson, Willie'Quick, and Stokes, the dispatcher. Leroy Andrews, who was employed by Airport and Browns as a mechanic, testified that after Airport moved to 'New York Boulevard he worked on buses marked Airport, Dell Bus, and ShortWay. 23 On numerous occa- sions' during this period Dell instfucted him to perform niaintenance work on a'Dell Bus vehicle. On-all of those occasions Andrews told Puglese what Dell had told him to do and Puglese always told 'him to work on the Dell Bus vehicle as Dell had instructed him. On those occa- sions When Dell, Dern, and Strauss all asked him to' per- form some work, when he asked Puglese which work he 22 The business account application of Citibank for Shortway Charter, under "remarks," has a handwritten notation stating "Affiliated with Holland Industries, Inc , JFK Parking Lot #7" The manager of the bank testified that this was his handwntting When asked what he meant by affiliated, he testified "Could be the same principals" As to how he came to write this on the application, he testified "Well, I wouldn't write It on my own, the question would be asked to whoever I opened the ac- count for" " This would be Shortway Lines, rather than Shortway Charter,' which was solely a bus brokerage concern, subcontracting charters but owning no buses of its own 572 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD should perform first, Puglese said: "Do what Norman [Dell] said to do." Other than those situations, Puglese never directly asked Andrews to work on a Dell Bus ve- hicle Lyons testified that during the summer of 1977 he worked on Parking Lot 7 buses (marked "Airport Shut- tle"), Airport buses, :Shortway" buses, _ and Browns buses, even though Browns was no longer in existence. After the move to New York Boulevard, he worked on those buses and on Dell Bus vehicles as well. Earl Autry, who was employed by Airport as a driver, testified that, while Airport was located at New York Boulevard, Shortway Lines also operated out of that ad- dress; Dern was "to my knowledge, the chief dispatch- er" for both companies; Dern had dispatched Autry on some jobs while Autry wig employed by Airport when the other dispatchers were not present. William Richards, who was employed as a -driver first by Browns and then by Airport, testified that' while Air- port was located at the New York Boulevard location he drove buses with the names Airport, Dell Bus, and Shortway. Robert Seymour, who was employed by Air- port until it was adjudicated a bankrupt and who mostly drove crew jobs, testified that while Airport was located at the New York Boulevard location he was dispatched by Dern in addition to the regular Airport dispatchers and "only a couple of times" drove a Dell Bus. Edward Segal, who was •employed by Airport until about De- cember 1977, testified that during the period October through December _1977 Airport had three dispatchers who each worked one shift—Frank Wurth, George Gaynor, . and Stencil Stokes; in addition, Dern's 'role "was like a dispatcher." - William Moser, who was employed by Airport as a driver between October 1977 and January 1978 (and who is a Charging •Party herein), testified that during this period he was dispatched by Wurth, Gaynor, Stokes, and Dern. and, also during this period, he drove buses marked Airport and some , .were marked Shortway Lines." Devon Wing, who was employed by Airport as a mechanic, testified that while Airport was located at New York Boulevard he worked on Airport, Dell Bus, and Shortway buses. Of all three, he spent the most time working on Dell Bus vehicles (limousines and buses). During this period, Wing observed Dell walking around the area where he worked, observing the vehicles, but he never instructed Wing on what work to perform. Strauss testified that when both Airport buses and Dell Bus buses were , in the garage Airport buses, which were newer, were used. After Airport moved to New York Boulevard, Dell and Dern operated a private limousine service with sta- tion wagons carrying up to seven passengers," in addi- 24 He testified that he observed that these buses were registered in the name of Shortway Lines, as well as having the'Shortway name on them As to whether any of the buses Airport operated were registered under the name Shortway Lines, Margolies testified "I don't think so," "I don't recall it 25 He later testified that Shortway Lines buses may have read "Shortway, Operated by Airport Bus," but he testified, "Now, that I'm not positive of" 26 Dern testified that this operation was allowed under its restnctive convenant with Schenck lion to the Parking Lot 7 operation it ran through Park- ing Lot No 7, Inc. Dern testified that during this period (October. 1977 through January 1978) he was spending his time selling Dell Bus surplus station wagons," while Strauss was operating the limousine service under Omni- bus Corp. (Omnibus). • Dern" testified that about 6 months after their agree- ment with Schenck, he and Dell created Omnibus, which also operated out of New York Boulevard, employing drivers. He testified that until about December 1977 Om- nibus had its own employees; at that time Maintenance and Manpower was created and began supplying em- ployees to Omnibus." Strauss testified that he was the president of Omnibus and Dell was the "operator," but he was not sure who the owner of Omnibus was. The most -straightforward answers the General Counsel was able to obtain from Strauss regarding Omnibus were: "Omnibus Limousine Service operated in lieu of Dell" and "Omnibus died September 30, 197.7" Robert Bertart, who was employed by Dell Bus prior to October ,1977,. testified that just prior to Airport's moving into the New York Boulevard location he 'received paychecks under the company name Omnibus. Selvin Gibson Jr., who was employed by Dell Bus prior to October 1977, testified (as did Bertart) that sometime after Airport moved into the New York &tile- yard location some of his paychecks were from Airport. As of- March 1978, the officers and directors of Dell Bus were Dell (president), Dern (secretary-treasurer), and Joseph Bonasia (executive vice - president). The stockholders- at that time were Daniel Dern (otherwise unidentified), who owned 50 percent of the shares, and Dern and Bonasia, who each owned 25 percent of the. shares.3° Strauss - became president of Maintenance and Man- power at its inception (although he testified that he did not know when that was). He became president at the request of Dell" and remained as president for only 1 27 Dern testified that, at the time of the agreement with Schenck, Dell Bus had 30 to 35 vehicles, but by January 1978 they had only 10 to 12 remaining Strauss testified that in October 1977 Dell Bus had approxi- mately 20 buses, 12 stretch cars (extra long limousines commonly seen on airport work), 3 station wagons, 6 limousines, and 2 sedans At the end of January 1978 (according to Strauss' testimony) Dell Bus had only buses, about 30 in number 28 I did not find Dern to be a credible witness Although he appeared to be ,a friendly witness (unlike Strauss), a close examination of his testi- mony establishes that he was extremely evasive on numerous occasions, and reveals numerous conflicts with other, more credible, witnesses Ad- ditionally, he often testified that he could produce documents to support his testimony, but never did , 29 He testified that when Maintenance and Manpower was created the Omnibus employees "joined" Maintenance and Manpower He also testi- fied that Omnibus had a collective-bargaining agreement with Local 522, and after Maintenance and Manpower came into existence it executed an agreement with Local 522 Dern could not produce any payroll records for either company 39 Dern testified that about 1972 the officers of Dell Bus were he (sec- retary and possibly vice president) and his brother Dell, who was the president and treasurer and the owner of all the stock of Dell Bus at that time 27 Strauss testified that Cross County was operated by Dell It had an ICC certificate to. perform charter work, Dell Bus did not have such a certificate Cross County had no employees or buses Strauss did not tes-, tify as to what position, if any, he held with Cross County . AIRPORT BUS .SERVICE . 573 week. He executed the collective-bargaining agreement with Local 522 dated January 16, 1978, on behalf of Maintenance and Manpower (as president), although, he testified, he did not participate in any negotiations, Dell asked him to sign it and he did so Louis Lyons was a mechanic first for Browns and then for Airport and the Local 05 shop steward for Airport; he testified about a grievance meeting he had with Mar- golies where Dell was present. Although he was general- ly a credible witness, his testimony on this subject was very confusing; at one point he testified that the.subject of the grievance was the poor condition of the New York Boulevard building, while shortly thereafter 'he les- tified that "one of the workers didn't get his pay check." However, it is unnecessary to resolve this conflict as the General Counsel introduced into evidence two letters (one on Airport stationery, the other on blank untitled stationery) from _M'argolies to Lyons. The first is dated OctOber 31,- 1977, has the heading "Subject: Grievances," and begins "this is in partial answer to some of the writ- ten grievances we received from you two weeks ago"; the letter sets forth improvements that would be made in the lighting of the building and the toilets. The memo (as it is entitled) states that copies of it were sent to Dell and Emannual. The second letter from Margolies to Lyons is dated November 8, 1977, and states his regrets that two of Airport's mechanics had resigned. The letter asked "the union to do whatever they, can_ to furnish us with replacements." This letter also states that copies were sent to Dell and Emannual. Willy Goza, who is presently employed by Fugazy of Connecticut as a driver, testified that about September 1977 another driver introduced him to Dell at the Inter- national, Arrivals Building at Kennedy Airport. He told Dell that he was getting ready to 'leave his job and he would like to fill out an application to work for Dell. Dell told him that when he was ready he should come by for the job. About late OCtober or early November 1977, Goza went to Building 69 -and told dispatcher Frank Wurth that he was there to speak to Dell. Wurth told him that Dell did not work at Building 69, that he worked at New 'York Boulevard. Sometime within the next, few' days Goza went' to New York Boulevard and again saw Wurth and asked to see Dell. Wurth sent him to an office behind the dispatcher's office. ,Goza told Dell that he was there to fill 'Out the application and he would be available to begin work at the beginning of 1978. Dell handed Goza a form entitled "Application for Employment." Dell wrote the, words "Airport Bus Serv- ice Building 69" at the top of the application, prior to giving it to Goza; Goza , completed the rest of, the appli- cation. 3 2 32 Counsel for Fugazy of Connecticut spent a considerable amount of time examining and cross-examining Goza on the subject of his meetings with Dell and his applications for employment In this cross-examination he established that the affidavit Goza gave to the Board stated that he first met Dell at Building 69, Goza testified that it was at the Internation- al Arrivals Building at Kennedy Airport, not at Building 69 that he first met Dell, when he gave that affidavit he had just left work and had not yet been asleep and was not thinking properly, regardless, this is an obvi- ously minor discrepancy During cross-examination, Goza also testified that he filled out six to eight applications for employment, in addition to the applications for Airport and Maintenance and Manpower he was About January 25, 1978 (approximately) a month after leaving his prior employment), Goza returned to New YOrk Boulevard, he again saw Wurth and asked to see Dell. Dell came out to see him and Goza told him, "I'm back, I'm ready to go to work." Dell went back into his office, and when he came out he handed Goza an appli- cation for employment. This one had the words "Mainte- nance and Manpower" on the top of the application. Goza asked Dell who that was and Dell said it was a. new company. Goza filled out the application and Dell asked him when he could begin working; Goza said that he could begin that, day, and he did begin his employ- ment that day with Maintenance and Manpower. Peter Petta, who was employed by Airport as a driver beginning about October 1977, and who became shop steward for Local 875 in December 1977, testified that about 3 to 4 weekS after Airport moved to New York Boulevard he attended a meeting with Emannual, Lyons, Dell, and Margolies in Dell's office at New York Boule- vard. (Margolies did not stay for the entire meeting ) Emannual informed Dell that he was the representative for Local 875 and ,that employees who supposedly were employed by Dell Bus were being used by Airport Dell denied that Dell Bus employees_ were working for Air- port or using its equipment and said that he would not discuss it any further as he had nothing to do with Air- port or Local 875 They then left Dell's office and went to speak to Margolies in his office. Petta told Margolies that certain rionumen employees were -performing work for Airport when the work should have been performed by Airport's employees. Margolies said that the employ- ees involved were performing Dell Bus work and were employed by Dell Bus, not Airport. Petta said that he had seen the men being dispatched by Airport's dispatch- ers—Gaynor and Wurth—and performing crew work similar to Airport's Emannual told Margolies he had Local 875 authorization cards signed by individuals who were allegedly employed by Dell Bus, but were paid by checks from Airport and were working at the same ad- dress as Airport, and therefore they should be represent- ed by Local 875. Margolies looked at the authorization cards, and said that as far as he knew the employees' who signed the cards were working for Dell Bus, but that he would investigate the situation, and, if the employees in- volved were employed by Airport, they would be cov- ered by the Local 875 contract. Petta showed Margolies an Airport pay stub for Bill Davis, a Dell Bus driver, and told him , that it established that Dell Bus drivers were being paid by Airport. Margolies answered that Dell Bus employees were being paid by Airport for the asked to fill out a few applications for employment for Shortway Charter and Fugazy of Connecticut On these occasions, Goza was told that this w.as the company he was now working for and he had to fill out a new application, or that he had to complete the new application because the prior applications had been misplaced Finally, during some portions of this extensive examination by counsel for Fugazy of Connecticut, Goza's testimony became confused regarding the chronology of events Regard: less, I found Goza to be an extremely credible witness, he appeared to be testifying in a truthful manner as to events that occurred 3 or 4 years earlier Although he was at times confused regarding dates, these errors appeared to be inadvertent mistakes and did not detract from what I con- ceived to be his obvious credibility 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sake of simplicity, and Dell Bus was reimbursing Airport for the amounts. As stated, supra, since prior to Margolies' appearance at Airport in 1976, its drivers and mechanics had been represented by Local 875 under separate collective-bar- gaining agreements. On December 29, 1976, Margolies executed a 3-year collective-bargaining agreement with Local 875 covering Airport's drivers. On the same day Goldman executed a 3:year collective-bargaining agree- ment with 'Local 875 covering Airport's mechanics. The record indicates that at least through the week ending January 12, 1978, Airport was still deducting Local 875 dues from the employees' salary.33 V. BANKRUPTCY ADJUDICATION On November 29,, 1976; Airport filed a petition under Chapter XI in the bankruptcy court. Airport operated in that manner until January 24, 1978 3 4 Two events oc- curred on that day. First, the bankruptcy court adjudi- cated Airport bankrupt and appointed Albert Altesman as the Trustee-in-Bankruptcy Later in the day, Margo- lies returned to New York , Boulevard where he spoke with a number of employees about the situation. Only Margolies testified to the , former, while Margolies and numerous employees testified to the latter. Margolies testified that for months prior= to the adjudi- cation he had been attempting to work out a plan accept- able to Airport's creditors, ,but that abut a week to 10 days prior to the adjudication he and' Martin Brecker, the 'attorney for Airport, as Debtor-in-Possession, decid- ed that no plan could be arranged with the creditors and they had no choice but to request that the judge adjudi- cate Airport, bankrupt; the petition Was made jointly by Margolies and Brecker After the court proceedings that day, Margolies asked Altesman and Israel Halpert, Esq., the attorney for the Trustee-in-Bankruptcy, What he was to do: They said to me, you go back and close-up I said what about all the people. There are no more people, everything is shut 'down, you just stop 'doing business, close everything Alp . . . . I was told to go back and tell everybody that the compa- 33 The General Counsel argues in his bnef that although Airport de- ducted these Local 875 dues, "as soon as Airport Bus •moved into the Dell garage, Margolies' dues payments to Local 875 ceased entirely' I find insufficient evidence with which to make such a finding, to support this allegation, the General Counsel uses Local 875 dues and initiation re- ports for August and September' 1977, and the stipulation "that they don't have records subsequent to that, September' of77 " However, this stmula- -tion does not establish that no dues were transmitted to Local 875 after this date, it could also establish that Local 875 misplaced its past Septem- ber 1977 records 34 The testimdny at the heanng generally establishes that it was on January 24, 1978, that Aiiport was adjudicated a bankrupt, and placed in Chapter X of the Bankruptcy Act, and that following this adjudication, and the -appointment of a Trustee in Bankruptcy by the Court, 'Margolies returned to the New York Boulevard location later that same day and discussed the situation with a number of Airport's executives and 'em- ployees However, the Order of Adjudication of the Court is dated and signed January 25, 1978 Although it is not particularly crucial to this matter whether these events occurred on January 24 or 25, 1978, I would find it more likely that the events occurred on January 24, 1978, while the Order of Adjudication was not signed until the next day ny Was closed and was out of business and none of 'us had jobs.33 Margolies then went to the New' York Boulevard loca- tion and called Goldman and Boridsia into his office; he- told thern what had occurred in court earlier that day and that Airport was out of business; he told Goldman to notify the employees in the charter department and the office of this and asked Bonasia to notify the people in the garage and the drivers that the Company was closed and that the employees would ,be paid through the end of the ,day. Only Margolies testified to the above occur- rences; however, as to subsequent discussions between MargolieS and employees later that day, there are Major credibility issues. First, Margolies' itersiori. Margolies testified that he returned to New,' York Bou- levard about 2.30 p m.' and went Upstairs ,to his office where he had the above-mentioned conversation with - Goldman and Bondsia. He had occasion to go downstairs to the dispatchers office about 4 or 5 'p m. While he Was there, about four to. six drivers and mechanics .ap- proached,, him and asked him what was going on. (He be- lieves it was Lyons who asked Margolies asked, "Didn't Goldman and Bonasia tell you?" The employees, said that they had, but "what does 'it mean?" Margolies , I told them that the company was bankrupt, that it was- closed, that it wasn't going to, open, that all work was ceased, finished. I said You have to call the Union to find out'What that means to you indi- vidually . . We are,out of b,usines, we are closed, - there is nothing more we can do. . . . The Court closed tiS 'up and that's' it 2, . we are out of busi- ness. We all have to worry and fend for ourselveS-. Margolies 'testified that in -this conversation he made, no reference to Dell Bus or Maintenance and Manpower, nor did he comment-on the poSsibility of their 'future ern: ploymenCat New York Boulevard. He testified that he did not suggest that the employees speak to Dell nor make reference to' work being available with , Dell at a' cut in pay The testimony of the employees involved is substantially different. _2 _ Petta testified that betw een 6 -and g p.m. on Januar* 24, 1978, _he' attended a 'meeting in which Margolies spoke to about 12 employees; the meeting took place in Dell's office, ,which wai entered from the right rear of the dispatcher's office' He testified that the' employees Who attended, whom he can remember, were Tony Rod- nite, Bill Davis, Gibson, Charles Hay, 'and Earl Autry. When Petta entered the garage Rodnite told him that the' Company was bankrupt He went to see Dell and asked him what the story was. Dell said "Airport Bus 'Service is bankrupt and you're out of a , job.", Petta asked for proof and Dell told him that Margolies Would be down to speak to the employees in a few minutes. Within a few minutes Margolies arrived and said, "AS of 3:00 ,,this afternoon Airport Bus -Service was put into kankruptcY 35 No evidence was'adduced herein that the Trustee or the bankruptcy court ever disaffirmed the Local 875 'contracts with Airport • - AIRPORT BUS SERVICE 575 by the courts." He then said that he had something else to say to them, but first Dell wished to speak to them. Dell then told the employees that he would employ them if they wished to work; they should fill out applications for employment and they could begin work the follow- ing day transporting crews to and from Kennedy Air- port; Dell said that he would be doing all the crew work, and that Margolies had nothing to do with it. Margolies said that it was true that he was no longer in- volved with crew work, and that he (or Shortway) would continue to operate a charter business. Petta asked Margolies where the buses for the operation would come from. Margolies answered that Shortway was going to lease buses to Dell and Dern for their operation. Accord- ing to Petta's testimony, Dell said that there would be no union or no benefits, and the employees would have to accept the conditions he sets, for example, a set price of $15 per crew or passenger movement rather than a guar- anteed weekly pay; that the employees would be paid by Maintenance and Manpower; and that he would bring disciplinary action against any employee who attempted to bring a union to the shop. Airport mechanic Devon Wing testified that on the day in question he attended a meeting in an area close to the dispatcher's office about 6 or 7 p.m. It was attended by Margolies, Strauss, Goldman, Dell, Dern, Airport drivers, and himself. Margolies said that he was sorry to tell them that Airport was going out of business, 38 that it was finished. He would help any of them if they needed a recommendation for another job. Margolies then said that Dell and Dern would be operating the buses under a different name, that the employees could work for them and be employed by Maintenance and Manpower, but could not be represented by Local 875 and the salary would be less (although he did not specify a salary), and would be negotiated on an individual basis; and that em- ployees who were interested should speak to Strauss, Dell, and Dern. Margolies then informed the employees that he would remain, but would do strictly charter work. Wing testified that he was "positive" that Charles GIllard (who did not testify) and his brother were present at this meeting, and that he believed that Robert Seymour, Ortiz, Creighton, Munoz (first names not stated), Victor Diaz, Charles Hay, Wurth, Ralph Cron- enburg, Don Mortis, Major Darlington, and Eddie Segal were present At the end, Dell spoke to the employees, but Wing does not remember what he said because "it wasn't to my interest." William Richards, an Airport driver, testified that on the day in question he was home on his day off and he received a telephone call from Dern about 6 or 7 p.m.: "He says that Margolies wanted to tell us something, and would I come in." He went to New York Boulevard and went into the dispatcher's office; Bob Seymour, Ben Gal- lager, and Hay were other employees who were present. He testified that he does not specifically remember who else was present at the meeting in the dispatcher's office, but Wing was not there. In addition, Dern and Dell were present. A few minutes later Margolies came downstairs 36 Wing testified that Margolies may have used the term "bankrupt" or referred to a chapter number, rather than the words "out of business" and said, "[A]s of 4:15 that 24th day of January, that the company is bankruptcy [sic], and that there was no more work for us . . He said that he was going to keep the Sliortway Line, and that's all he was going to handle be- cause he lost the rights to operate on the airport. . . . He said that Norman Dell was going to operate the airport work." Margolies finished by telling the employees that they could talk to Dell about a job with him Richards testified that he and a number of other Air- port employees (Bob Seymour, Bill Moser, Charlie Hay, Ed Segal, and Charles billard were some of those present in Dell's office in addition to Richards, although people were walking in and out) went into Dell's office with Dell and Dern. Dell told them that he had jobs for them, but they •would not be paid as much as they had been by Airport; they would be paid $6 a trip into New York City, they would receive 20 percent on charter work, and there would be no union." Dell then told them that Margolies would handle the charter work and he would handle the airport, work, and pay them under Maintenance and Manpower. 38 When Dell finished speaking Richards said that he would not accept his proposition. He was at New York Boulevard for 45 min- utes, and does not know whether Margolies, Dell, or Dern had any other meeting with Airport's employees on that day Robert Seymour, who was employed by Browns and Airport as a driver, testified that on the day in question about 7 p.m. he received a call at home (it was his day off) from one of the dispatchers, who , said the boss wanted to see him He went to New York Boulevard and Margolies called him and about 10 other employees into the drivers' room, which is next to the dispatcher's office. The employees whom Seymour remembers being present at this discussion were Richards, Moser, Petta, Ben Gallagher, and Charles Hay." Seymour testified that Margolies told them: He just said he couldn't afford to operate. The banks had—he had signed bankruptcy that after- noon, or something had happened that afternoon, where he was bankrupt for some reasons. 37 On direct examination, Richards testified that Dell said "and there'd be no union" When Richards was cross-examined about Dell's words, he testified Q What else9 A And that there would be no union Q He said the words that there wouldn't be a union') A That's right Q Well, did he say there 'wouldn't be an 8759 A He said there wouldn't be a union Q He said a union A Union Q Well, what about there wouldn't be your union" A Possibility When I asked Richards whether he remembered Dell saying there will be no union or there would be no Local 875, he testified that Dell said "there'll be no union" 38 Richards testified that he was not aware whether the dnvers whom Dell Bus employed were represented by a union 39 He testified that he does not remember whether Devon Wing was present at this meeting, although he does remember seeing Wing at a Local 875 meeting the following day 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dell then called those present into his office; Seymour testified: He asked us did we want to work for him. He said there was no union, less money, charter trips would be much less than we were getting, and so, with no union, we told him no, we didn't. Upon hearing that, Seymour left New York Boule- vard. Moser, who was employed by Airport as a driver, tes- tified that on the day in question, late in the afternoon or early in the evehing, he returned to New York Boule- vard from a trip and Dern told him to go upstairs be- cause Dell had something to say to him. Moser went up to the executive office; present were Dell, Bonasia, and Goldman; Moser -was the only employee present. Dell said that Margolies had gone bankrupt Either Dell, Bon- asia, or Goldman asked him if he would consider staying on (which he did not answer) and then asked him how many people he thought would stay on. Moser answered, "Very few, less than 40%."" Dern then asked Moser .to wait in the drivers' room because Margolies wished to see him. Moser waited for about an hour with Richards, Seymour, and Gallagher. About 5 or 6 p.m., Margolies arrived: . [H]e says, well , it's all over, we're bankrupt. The judge such and such signed an order at 4 .00 and . . . he said We could stay on if we wanted to He said he would handle the charter work and Norman Dell would handle the crew work and work out of the same building. Moser testified 'further that about an hour later there was a further. meeting Dell's office. Dell was present with 15 to 20 drivers; Moser testified that he did not re- member whether any mechanics were present, but that Dell told them that they could stay and perform the crew work for him and perform charter work for Mar- golies. Dell said he would pay a certain rate for crew work, and Margolies would pay 20 percent for the char- ter work. 4 ' Somebody then asked whom the employees would be paid by -and Dell said they would be paid by Maintenance and Manpower. Moser also testified that during either the above-mentioned meeting with Margo- lies or the following meeting with Dell an . employee asked either if there was going to be a union or "with our union?" and the answer (either from Margolies or Dell) was "definitely not." Dern testified that he attended a meeting at about 7 or 8 p.m. in the back of the dispatch room on January 24, 1978, with a number of Airport's employees, Margolies, Dell, and Strauss, although he is not aware of how the employees were informed of the meeting. Present were Stokes, O'Reilly, Hubert Howie, Gallagher, Leroy Gil- 40 Moser testified that prior to asking him if he would stay on, or how many employees he thought would stay on, he was never Informed of the future terms of employment involved 4i Moser testified that Dell did state the amount he would pay for the crew work, but he did not recall what it was Previously, the employees had been paid on an hourly basis for crew work, whereas they had previ- ously received 25 percent on charter work lard, and maybe Gibson, Wing was not there; about six to - eight drivers were present. According to Dern's testi- mony,' Margolies said that Airport went bankrupt and was out of business, and there was another company that was looking for people and if anybody was interested they should speak to Dell or Strauss and he was sure they could get a job. Somebody asked Margolies if they would continue to be members of Local 875 and Margo- lies said that the Company already had a contract with Local 522. Dern was "on the sidelines" during Conversa- tions between Dell, Strauss, and the employees; Dell and Strauss told them. . . . that Maintenance and Manpower was a compa- ny that they formed, and it was to hire people to go to work, and there was immediate employment. That they could go to work immediately. Somebc■cly then asked what the working conditions would be at Maintenance and Manpower; Dern testified: And Jay [Strauss] said that these were the prices.we were going to pay at least until we got off our feet and got ourselves started, and this is what we could afford. And he made it very clear, whoever wanted employment, he was ready to take them on. Dern testified that Dell or Strauss "volunteered," saying that "we had a contract with 522 -. I believe he said it was a two or three year contract, 42 I don't recall what, and this is the way we're going to start out." Strauss testified that he attended one meeting that day in the drivers' room behind the dispatchers office; present at this meeting were Dell, Dern, Margolies, Stokes, and six or, seven Airport drivers whose names he does not remember. He testified that Margolies said that Airport was bankrupt, but, if the employees wanted a job, -they could work for Maintenance_and Manpower;43 if they wished such a job they should speak to Dell or Strauss. Strauss testified that he did not recall either Margolies or Dell mentioning Local 875, or any union, to any of the employees during this or the latter discus- sions. Strauss further 'testified that Dell had probably asked him to speak to the maintenance employees; he did speak to some employees; although he could not testify as to what the rate of pay was that he offered them, it was less than that provided at the time in the Local 875 con= tract. Leroy Andrews, who was employed by- Browns and Airport as a mechanic, testified that on January 24 or 25, 1978, he reported to work at New York Boulevard at 6 a.m. and, as was his usual custom, went to Strauss' office 42 Dern testified that he did not remember whether he had seen this Local 522 contract by that time 43 Strauss testified that, although he was already the president of Maintenance and Manpower, he could not remember whether he was aware of Local 522 on that date and could not recall whether he (as president of Maintenance and Manpower) had already signed a collec- tive-bargaining agreement with Local 522 This collective-bargaining agreement is dated January 16, 1978, although it is clear that under the "white out" where "16" has been typed the number "5" appears, al- though neither the month or the year appears to have been altered AIRPORT BUS SERVICE 577 for his timecard. Strauss told him that he could not 'dive him his card; when Andrews asked why, Strauss said that the night before "Airport , Bus [had] gone bankrupt and they come out under a new name of Manpower something."44 Strauss then told Andrews, "you'll still have a job if you take a 'cut En pay." Andrews asked, "How much?" and Strauss 'said, 'Five dollars an hour."45 Andrews then .asked Strafiss if the Union knew of the situation and Strauss said he -did not know, he was only carrying out his instructions, but he could discuss it with Margolies. Andrews said that he would dikuss .it with Lyons, and Strauss told him that they would have a union with better benefits than Local 875 provided, and asked Andrews to see him after speaking to Lyons. Later in the day, after speaking with Lyons, Andrews saw Margolies; he testified he asked Margolies, "Mike, why should I take a cut in pay?" and Margolies said, "If you want the job that's it, take it or ,leave it," and walked away. • ,Lyons testified that he worked- on January 24, 1978, and Strauss told him that Margolies would like to speak' to him; Lyons told Strauss that his workday was over, and he was leaving for the day.- The following morning he arrived about 7 a.m. and went to Strauss' , office for his timecard. Strauss told him that it was a shame that he did not stay for Margolies' speech the night before. He then told Lyons that Airport was bankrupt, but he could work without a union for Maintenance and Manpower" at an hourly rate of $5 an hour. Lyons told Strauss that he could not work on that basis, with no union and no benefits. • Strauss47 testified that he spoke,to employees the day after Margolies spoke with the employees, although he could not name any employees he spoke with or ,the, number he spoke with. He did speak' to them about em- ployment, but does not remember whether he said any- thing about a union, although he testified he did not tell them that they could not belong to a union. VI. MAINTENANCE AND MANPOWER Dern testified that Maintenance and Manpower was in the business of providing employees to individuals and companies; these employees ranged from drivers to me- chanics to janitors, in the case of the drivers, it was the customer who supplied the. vehicle He testified that it began operating in December 1977 or January 1978; one company that Maintenance and Manpower supplied em- ployees to (beginning about December 1977) was 0mm- 44 Andrews testified that this was the first thention he heard of Mainte- nance and Manpower, the next discussion of it was at the Local 875 meeting a few days later 46 It is not entirely clear whether this was a cut to $5 an hour or a cut by $5, althugh Andrews' testimony was very precise "He did not say'I'm going to take a five dollar cut, he said, I'm going to take a cut in pay' I asked him, 'How much" and .he said, 'Five dollars an hour 46 Lyons' affidavit refers to Strauss' offer of employment as being with "Dell 47 Although I have previously 'found Strauss to be an abrupt and un- pleasant witness who constantly displayed his displeasure toward being subpoenaed to testify, I would not completely discredit his entire testimo- ny, there were times when some brief ray of frankness and openness ap- peared in his testimony, I. do not believe that this was one of those situa- tions, however, as I found Lyons and especially Andrews clearly more credible than Strauss bus. They previously had their own employees; when Maintenance and Manpower began operating, the former employees of Omnibus became employees of Mainte- nance and Manpower. Other than Omnibus, Dern could not name , any customers of Maintenance and Manpow- er." Dern further testified that neither he nor Dell owned any stock in Maintenance and Manpower, nor did he know who owned it; he was never employed by Maintenance and Manpower and never received a salary from it 'The records establish, however, that he was, at one time, the secretary of the Company and received a check, dated March , 17, 1978, from the Company in the amount of $92.03 The certificate of incorporation of Maintenance and Manpower is dated October 18, 1977, and was filed by Wagner's law firm, Wagner, McNiff & DiMaio, who are also agents for .service of process upon the corporation. In addition, received in evidence is the business account application of Maintenance and Manpower, dated Janu- ary 16, 1978, with First National City Bank. It contains the 'New York Boulevard address 'and, where the appli- cation says "Name of Parent," the words "Holland In- diistries, etc" are written in The signature card has two names: Strauss as president and David Alpert, controller. John Monfre, who was' manager of the particular bank at the time, testified that the words "Holland Industries, etc." is his handwriting; although he- cannot remember this satiation particularly, he would have questioned the applicants in person and "whoever presented this appli- cation to me, I would've asked what the affiliation was." Strauss testified that Maintenance and Manpower was set up by Dell, although he could provide little guidance on the Company's operation. Dell asked Strauss to be president of the Company and he agreed; Dell asked him to sign the collective-bargaining agreement dated Janu- ary 16,' 1978, on behalf of Maintenance and Manpower, and he did so, although he did not know whether any of the three employees who also signed the agreement ever Worked for Maintenance and Manpower He remained as president until -about January 31, 1978. Strauss testified that, although he could- not clearly state on what date Maintenance and Manpower began employing employ- ees, it Was not until January 24, 1978, that he saw payroll checks issued by Maintenance and Manpower. Margolies testified that Dell "was the man behind Maintenance and Manpower," but that Holland did not own stock in . Maintenance and Manpower. He further testified that Maintenance and Manpower was in the business of providing companies with personrfel. As will be dikussed more fully, infra, shortly after Airport was adjudicated a bankrupt,' Margolies began operating a charter bus service at New York Boulevard as Shortway Charter (also' wholly owned by Holland). From this time, at least, until the summer of 1978, Shortway Char- 48 The accountant's report to Airport's Trustee-in-Bankruptcy has a schedule for checks disbursed by Airport in excess of $1,100 between September 26„ ,1977, and January 25, 1978 It includes, inter aim, 13 checks to Maintenance and Manpower dated from October 20, 1977, through January 18, 1978 The checks aggregate approximately $27,000 During this period Holland received checks from Airport in the amount of approximately $200,000 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ter employed no drivers or mechanics; instead Mainte- nance and Manpower provided them with drivers and mechanics. Weekly, Maintenance and Manpower sent an invoice to Shortway Charter listing the number of em- ployees provided, and the number of hours each work;49 Margolies testified that he did not recall whether these invoices also set forth the names of the employees pro- vided. As stated, supra, Goza testified, regarding his applica- tions for employment at New York Boulevard. Prior to his commencing employment, the application had the name Airport on it; at the end Of January, when he was ready to begin working, the employment application to be filled out contained the name Maintenance and Man- power; on the next few occasions when he was asked to fill out new employment applications (although his ein- ployment remained the same), the applications were cap- tioned Maintenance and Manpower, Shortway, , and Fugazy of Connecticut (about October 1978). Earl Autry, who was employed by Airport as a driver,, testified that he was not paid for the last ,week he was employed by Airport (the payroll period prior to Janti- ary .24, 1978); about a month later he heard that the Company would be paying and he went to New York Boulevard and saw be, who told him to go to the of- fices upstairs, which he did. Autry introduced himself to a woman in the office, told her that he was there for his check, and she handed him a check which had the name "Maintenance and Manpower, Incorporated" on it, al- though Autry does not remember who signed the check. Moser likewise testified that on the Thursday after Janu- ary 24, 1978, he was unable to receive his paycheck from Airport. The following week, however, Dern gave him a check with the Maintenance and Manpower name and told Moser that he was paid by a Maintenance and Man- power check_ because Airport was- bankrupt and they could not pay from that account. Robert Bertart, who was employed by Dell Bus or Omnibus (he is not sure which one was his employer) prior to October 1977, testified that both before and after January 24, 1978, he continued his .employment at New York Boulevard. Prior to January 24, 1978, he was paid by checks from Omnibus, except for an occasional check from Airport; after January 24, 1978, the company name on the paychecks he received was Maintenance and Manpower, that was the first he had heard of it. Don Beckles, who was employed by Fugazy of Connecticut at the time of the hearing, was previously employed by, and received paychecks from, Shortway. (presumably Shortway Charter) and Maintenance and Manpower, al- though he testified that he could not remember which he received first. Selvin Gibson, who was employed by Dell Bus prior to October 1977, testified that sometime thereafter he re- ceived paychecks with the name Airport on them, short- ly thereafter his paychecks contained the name Mainte- " Margolies could not provide the General Counsel with any records of the employees who drove Shortway Charter buses during this period or the invoices' or records rendered by Maintenance and Manpower to Shortway Charter dunng this period nance and Manpower, and that was the first he had heard of the Company. - VII. DELL BUS, MAINTENANCE AND MANPOWER, AND LOCAL 522 As stated, supra, the collective-bargaining agreement between Maintenance and Manpower and Local 522 is dated January 16, 1978, and -signed by Strauss, as presi- dent, on behalf of Maintenance and Manpower, and a committee of employees (Samuel Riley, Selvin Gibson, and Hubert Howie) in addition- to the union representa- tive. The Genera/ Counsel alleges that the execution of this agreement, together with the maintenance and en- forcement of the agreement, violates Section 8(a)(1), (2), (3), and (5) of the Act. 5° The defense to this allegation appears to be that the employees had previously been represented by Local 522 when the company name was Omnibus or Dell Bus, and therefore the- execution of this agreement does not violate the Act. Dern testified that the Dell Bus and Omnibus employ- ees were previously covered by 'a collective-bargaining agreement with Local 522. When Maintenance and Man- power was created, these, Omnibus employees "joined" Maintenance and ManpOwer and a new collective-bar- gaining agreement was executed 'with Local 522 on Janu- ary 16, 1978. In evidence is a collective-bargaining agree- ment executed by Norman Dell as president of Dell Lim- ousine Service, a Division of Dell Maintenance, Inc., Dell Bus, Dell Airport Service, Inc., and Fun City Pri- vate Car Service, Inc. and 'Local 522 covering drivers and maintenance employees. Also in evidence are letters dated March 1974 from Dell (of Dell Bus) to the Local 522 administrator and a return letter to Dell. The con- tract specifies that it shall be effective from July 1, 1971, through June 30, 1974. No subsequent contract Was pro- duced (other than the Janury 16, 1978 agreement) and Strauss testified that, although 'Dell Bus previously had collective-bargaining agreements with Local 522, they were not parties to such an agreement in 1977. Gibson, who had been employed by Dell Bus prior to October 1977, testified that until January 1978 he never belonged to a union while at Dell Bus, and to his knowl- edge there was- no union representing its employees. Sometime in January 1978, 51 Dell called him into his office and told him, "Gibson, I-,have a contract here that—we're going to have a union" Gibson answered, "How come we're going to have a union because no one approached us, we didn't have a discussion about the union." Dell said, "Well, I have this union, it's a very good union, you have nothing to worry, about. I want you--to read the contract and I want you to sign this union and sign this contract." Gibson asked Dell if he Could read the contract before signing it and Dell said that he could. Gibson asked Dell a few questions "be- cause I was concerned about the union, I never heard of the union before." Dell told him, "This is the union, this is the contract for the union and you're going to be the 55 The complaint alleges no violations by either Local 522 or Local 819 ' 51 He 'estimated that it was 2 weeks to a month after he first received a check from Maintenance and Manpower AIRPORT BUS SERVICE 579 shop steward." Gibson told Dell that he did not knoNY how the other drivers would feel about having a union that they had never been approached by. Dell gave him the contract and Local' 522 authorization cards and told him to have the men read the contract and sign the au-, thorization cards with the name Maintenance and Man- power. Gibson signed the contract and , then gave the contract and -Local 522 authorization cards to other em- ployees.' Gibson testified that over a period of less than a month after this discussion he handed out authorization cards to the other employees, he informed them, "Here are some cards and we have a union and we want you to join." One employee whom he can remember, Johnny Boyd; complained about the fact that there was a con- tract although nobody had ever approached them about the Union. Gibson told him that he did not know about it, but it was given to him by Dell, who wanted every- one to sign and join the Union. Gibson then 'informed Dell that some of the employees informed him that they did not want to sign the Local 522 authorization cards because they did not approve of the method that was used and did not like the terms of the agreement. Dell told Gibson, "You go back and you tell the guys that if they 'don't sign it, these union cards, they can no longer work here" Received in evidence were Local 522- authorization cards received by the General Counsel pursuant to sub- poena In addition to other information provided or re- quested,_ the front of the card contains a space for ."Date Started": and "Birth Date," while the reverse side of the card contains a space for "Date" under the applicant's signature. This is somewhat confusing at times as, for ex- ample; Gibson's- authorization card lists "1/16/78" for "Date Started" (although, he testified this is not in his handyvriting) and - "1/10/78" for "Date." 5 2 As stated, supra, Gibson began his employ at New York Boulevard prior to October 1977. - Gibson testified further that on the basis of the instruc- tions from Dell he solicited, and received, signed Local 522 authorization cards from the following employees:53 Neubra Smith, Phillip Brown, Johnny Eagle, Hubert Howie, -Leroy Gillard, Charles Gillard, Robert Duggan, Johnny Boyd, Harvey Wolen, Robert Bryant, and Ralph Cronenberg. He could not remember soliciting the Local 522 authorization cards of Harry Graham and Frank Zito. After Gibson had obtained these Local 522 signed authorization cards he brought them to Dell, who in- formed, him that Local , 522, had a union meeting sched- uled. He and Dell went to this meeting and while there they gave all of these cards to an official of Local 522.5,4 58 This "1/16/78" "Date Started:' was written in for five other em- ployees as well Presumably, it was filled in by a representative of local 522 to indicate the date on which the applicant's Membership began, i e, the date of the execution of the agreement, January 16, 1978 53 All, of these cards list Maintenance and ManPower as the applicant's employer The range in which they , are dated (in the space below the sig- nature space) is from January 10 to March 31, 1978 Four ,of these au- thorization cards are dated January 10, 1978 " It should be noted that, although this testimony is uncontradicted, I found Gibson to be an extremely credible witness He appeared to be solely interested in testifying to the facts as he best remembered them, without being evasive or slanting his memory one way or the other Ooza, who is presently employed by Fugazy of Con- necticut„testified that about March 1978 Stokes, the dis- patcher, told him that in order to work in the garage the employees had to join Local 522, so he signed an author- ization card for Local 522. Bertart testified 55 that while he was employed by Omnibus and Dell he does not recall being a member of any union. However, sometime in mid-January 1978, he was given a Local 522 authori- zation card to sign, Dell" told- him that everyone would have to sign' one; Stokes and Robert Bryant were also present at the time Bertart held onto the card "for a while" and then signed it and returned the signed card to Dell; it is dated January 14, 1978. 57 Richards and Sey- mour, both of whom were employed by Airport through the bankruptcy adjudication, testified that at least through January 24, 1978, they were not aware of any union representing the Dell, Bus employees. Charles Turner, who is presently employed by Fugazy, testified that he was employed by Dell Bus from 1972 until 1974 or 1975; during that period he was a member of Local 522, which had a contract with Dell Bus which provided for, at least, their wages and health and dental benefits; Turner saw this contract and was paid pursuant to its- terms. Erastus Clifton, who is pres- ently employed by Fugazy of Connecticut, testified that he began working for Dell about 1970; he became a member of Local 522 about 1971 and was employed at Dell Bus until about 1978 or l979.- During his employ- ment at Dell Bus, he saw the contract between Dell Bus and Local 522 and he was paid the wages provided for in the contract. He testified, in addition, that he was pro- vided with hospitalization coverage through this period and during this period he observed Local 522 representa- tives on the Dell Bus premises." 55 Although Bertart was‘ a fairly credible witness, his memory was ob- viouslil quite poor, and much of his testimony was "refreshed" by the General Counsel showing him his affidavit " At the same time, Dell told him that he was being paid by Mainte- nance and Manpower 57 In all probability, this date is in error Bertart testified that he signed this card a day or two after a fellow employee informed him of Airport's bankruptcy Additionally, his affidavit states that Dell gave him the Local 522 authorization card a few days after Airport "was declared bankrupt" 58 Clifton testified that shortly thereafter he was employed by Dell Bus for 2 or 3 years after Airport moved into New York Boulevard, which would be 1979 or 1980 However, he later testified that he began working for Fugazy of Connecticut in July 1978 after Dern called him at that time and asked him if he wished to begin working for Fugazy of Connecticut, at this time, it was about a year since he had last been em- ployed by Dell Bus 'It is `reasonable to conclude, therefore, that he was last employed by Dell Bus no later than 1977 since he testified he was never employed by Shortway or Maintenance and Manpower " Clifton appeared to be a fairly credible witness, although I am not convinced that he was employed by Dell Bus, and covered by a Local 522 contract, as late as 1977, other employee witnesses deny that there was any union representation `at Dell Bus that late in time Additionally, I am bothered by Clifton's unexplained failure to list his employment with Dell Bus on his employment application for Fugazy of Connecticut, while listing a summer, job he was employed'at for the prior 7 summers It appears unusual that on his application for employment with Fugazy of Connecticut he: would list his summer 'employment 'and not list his al- leged permanent employment of 7 years, with another bus company, at the same location Another problem attendant with Clifton's testimony is how could he have been employed full time bY Dell Bus from 1970 through 1977 when his Fugazy of Connecticut employment application Continued 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Petta testified that about a week or two after January 24, 1978, Richard Stolfi, an agent of Local 875, told him that there was a dispute between Local 875 and Local 522 and, after investigating the matter, Stolfi found that Local 522 had a contract with the Dell brothers and be- cause of that Local 875 could not demand recognition. Lyons, who appeared to be somewhat less open and' frank than Petta on this issue, testified that Stolfi told him that Dell Bus had a contract with Local 522 and that he and counsel (Sanford Pollack) were working on it, but he never informed him of any final decision that Local 875 made. On August 29, 1980, Local 875 sent a telegram to the Board stating. Re Airport Bus et al 29-CA-6185 et al, confirming conversation of even date please be advised that Local 875 has no interest in representing any em- ployees of the respondents in reference to the cap- tioned matter. SHORTWAY CHARTER As stated, supra, in his speech to the assembled em- ployees on January 24, 1978, Margolies informed them that he would remain at New , York Boulevard with a charter operation. The General Counsel alleges, basical- ly, that the total operations at New York Boulevard after January 24, 1978, were the same as before, and only the names had -been ,changed; .the companies there still per- formed the same charter and crew work and were owned or controlled by Holland. Margolies testified that prior to January 1978 he had no affiliation with Shortway Charter, 6° but after Airport was adjudicated a bankrupt he became president of Shortway Charter which, as stated supra, was wholly owned by Holland. Shortly prior to the adjudication Holland purchased the Interstate Commerce Commission (ICC) rights owned by Airport. 61 According to Margo- lies' testimony, since Holland then owned these ICC rights, and Holland subsidiaries owned the buses which Airport had been leasing from it prior to the adjudica- tion, it was decided that they had the ingredients for a New York charter operation. 62 Shortway Charter was previously in existenbe and licensed to do business in New York and it therefore was the appropriate company to engage in this operation. With Margolies as the chief operating officer, and Goldman as his assistant, Shortway Charter commenced charter operations at the end of Jan- uary or beginning of February 1978 at New York Boule- vard. They began to wind down the Shortway Charter lists his former employer as Camp Bauman from "11/70 to 8/77" and his rate of pay as $160 Even if this were only summer employment as Clif- ton testified (although the application states that this employment began in November), the salary stated indicates that the work was full time 60 Margolies testified that from about June 1976 through January 1978 Shortway Charter was not operating Si This purchase will be discussed fully infra Suffice It to say, howev- er, that these ICC nghts grant to the holder of the rights the legal ability to operate from one point in the United States to another point so de- scribed in the rights The Ne w York State Department of Transportation permit is the State's equivalent to ICC rights 62 Margolies testified that, for monetary and other reasons, these nghts were never formally transferred to Shortway Charter, so certain of its subsequent charter operations were illegal under ICC rules business beginning in June 1978 until the company ceased functioning entirely in October 1978. Since it only had a limited number of buses, all leased from Holland subsidiaries, Goldman's responsibility, in addition to ob- taining customers for Sliortway Charter, was to obtain buses from other companies when they did not have a sufficient quantity of buses. Margolies was also questioned by the General Counsel as to whether Shortway Charter performed charters that had been placed with Airport prior to the adjudication. He testified that he "assumes" Shortway did obtain some of these charters, and it would conform with his tech- nique of operating a bus company. Margolies testified further that during this approximately 6-month period Shortway Charter employed only office and sales em- ployees; all drivers and maintenance employees were em- ployed by, and obtained from, Maintenance and Man- power. The bank's business account application of Shortway Charter is dated January 4, 1978, and lists Holland as "Name of Parent Company" and New York Boulevard as the address. The accompanying signature cards list Margolies as the president and Susan Margolies, his wife, as secretary. Richard Roth is listed- as controller. (He is also listed as controller on the business account applica- tion for Maintenance and Manpower.) Goldman • testified that during Shortway Charter's_ op- eration from about January until October '1978,- did.not perform the airport type of service such as Airport had performed; it performed- some of its own charters and- brokered (subcontracted) others. He • called , numerous companies to supply him with drivers, buses, or both; Maintenance and Manpower was only one of the Compa- nies- that supplied Shortway Charter with drivers. Dern testified that, during the latter part of Shortwdy Char- ter's operation, they brokered charter work to Fugazy 'of Connecticut, as well as to numerous other bus compa- nies. The 'drivers employed by Airport and Shortway Char- ter fill out a daily log which lists the vehicle number, the carrier, and the point of origin and destination. Goza's log for the period February through December 1978 es- tablishes that from February 1 through 4; 1978, Goza listed the earner" in this log as Dell Bus; between Feb: ruary 5 and October 10, 1978, he listed either Shortway Lines, Shortway Charter, or simply "Shortway" as the carrier; and from October 11; 1978, he listed Fugazy Continental as the carrier. In addition, a vast majority of Goza's Worktime from February through October 10, 1978, was spent driving the '"49 series" buses numbered 4901 through 4912, which, • prior to January 24,'- 1978, 63 The testimony of Goza regarding the factors he considered in what company name he listed as "carrier" is somewhat confusing He testified that he stopped listing Dell Bus as the carrier on February 4, 1978, be- cause he was told to do so However, he did not clearly explain why, thereafter, he sometimes listed Shortway Charter, sometimes -Shortway Lilies, and at other times simply "Shortway " He testified that it depend- ed upon what was contained on his work order or what was listed on his bus Although Goza's testimony is not crystal clear on this issue, I found that he was an extremely credible witness, It should not be surprising that he could not clearly remember why he did something as compared to what he did AIRPORT BUS SERVICE 581 were operated by Airport; after October 10, 1978, he continued to drive these buses, but with a slightly lower frequency • .. IX. TRANSFER OF RIGHTS During the period of Airport's operation, it owned ICC rights which gave it the authority to pick up passen- gers in certain portions of New York and Connecticut and take them outside New York State to virtually any place. 64 Margolies testified that about a week or two prior to January 24,.1978, Holland made the determina- tion to purchase 'Airport's assets (including the ICC rights) if it became clear that Airport would be adjudi- cated a bankrupt. Margolies also testified that approxi- mately 10 days before the adjudication it became clear to him and Brecker that there was no way that Airport could avoid the adjudication, at that point they informed Holland of the situation, and between that day and the court's approval the terms of the agreement were worked out between Holland and Margolies and Brecker. On January 23, 1978, the bankruptcy judge issued an "Order Authorizing Sale of Assets," whereby he author- ized Airport to sell its accounts receivables, _trademarks, inventory, leases, and ICC rights `subject to all liens and security interests encumbering said property" to Holland for the sum of $50,000, $14,000 upon delivery of the bill of sale and- other necessary documents by Airport and the remainder payable in 6 monthly installments of $6000 commencing 30 days after the closing. The accountants report to the Trustee apparently indi- cates that as of the date of the adjudication, Airport was indebted to Wagner's law firm in the amount of $30,000 and was indebted to Holland in an amount in excess of $147,000 This report also states that a majority of Air- port's assets (accounts receivable, inventory, property, and ICC rights) had been pledged as collateral (pursuant to ICC filings) to Wagner's law firm, Holland, and others. Between that date and June 1978, Holland never exer- cised the ICC rights, although Shortway -Charter was os-, tensibly (and illegally) operating pursuant to these - rights Margolies testified that there were a number of .reasons for this; the high cost of transferring rights from one company to another as 'well as the fact that, since Hol- land itself does not operate buses, it would have had to' transfer the rights to one of its operating companies and the legal fees, together with the ICC fees, would have been costly; in addition, by June 1978, the Trustee had not been fully paid for the rights and Holland was expe- riencing some financial difficulties generally, and specifi- cally in completing the payments for these rights, enter Fugazy of Connecticut. In early- 1978, Fugazy of Connecticut was desirous of obtaining ICC rights which would allow it to expand its charter operation, operate regular service to Atlantic 64 Margolies testified that the work performed by.Airport under these nghts comprised approximately 35 or 40 percent of Airport's,total busi- ness City, New Jersey, and operate a line service" from the airports to Connecticut. Wagner was at the time its ICC attorney, and it had asked him to ascertain if any appro- priate ICC rights were available. Sometime in early to mid-1978, Wagner informed William Fugazy Jr., execu- tive vice president of Fu-gazy of Connecticut, of the availability of the ICC rights involved herein. Between that time and June 13, 1978, the parties had numerous negotiating sessions; Fugazy Junior, together with' the Company's attorney and controller, negotiated with Wagner, who represented the seller of the rights. 66 , On June 13, 1978, William Fugazy, as president of FugazY' of Connecticut, and Margolie g, as chairman of both Holland and Dell Bus, executed an agreement pro- viding for the sale of the ICC rights to Fugazy of Con- necticut: The purchase price was $250,000 67 payable as follows: $32,000 to be paid to Holland in repayment for its payments to the Trustee-in-Bankruptcy, and $18,000 to ,the Trustee-in-Bankruptcy (the remainder of the $50,000 due to it) upon . the ICC's granting temporary au- thority to Fugazy of Connecticut; and $102,000 to the Central State Bank (which Airport was heavily indebted to) and the remaining $98,000 payable to Halajen Diver- sified. Funding,- Ltd.," (Halajen) (which Airport was heavily indebted to and which maintained security inter- ests in its assets), Wagner's law firm, and Holland, pay- able in 30 equal, noninterest bearing installments. In addition to the above, Fugazy of Connecticut agreed to pay annually to Holland 10 percent of its pre- tax profits up to $50,000, but not to exceed an aggregate of $250,000 The agreement further recites that it in- . cludes. . . . all of Holland's present airline crew business and its small car, limousine and stretch car business, as well as the business presently being operated by Holland's wholly owned subsidiary Dell Bus Co., Inc., and Dell's customer lists and contracts, if any. Fugazy of Connecticut was also given an option (or, failing the exercise of the option, a right of first refusal) to purchase Holland's intra and interstate charter bus bnsiiiess in New York, New Jersey, and Connecticut for $100,000 payable over 3 years without interest Fugazy of ,Connecticut- was also granted a 3-month option to lease a portion of New York Boulevard for an annual rent Of $3000. In the agreement, Holland represented that, with the exception of the security interests of Central State Bank, Halajen, Holland, and Wagner's law firm, the ICC rights are held free and clear, and _that: 65 With "line service" each passenger pays a fare On this case at the airport) and can disembark at any one of a number of destinations (in this case, Connecticut) At times the fares are uniform, at other times they are dependent on the length of the trip 66 Fugazy Junior testified that at the time he was not aware either that Holland had only paid $50,000 for these rights or that Wagner's law firm had a security interest in the rights 67 The agreement recites the security interest of Holland and Wagner's law firm in the ICC rights 68 There is no indication in the record whether Halajen is connected, in any way, with Holland 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Holland and Michael Margolies will execute a re-' strictive covenant covering all of the routes, au-- thorities and transportation services which are the subject of this agreement, said restrictions to extend throughout the States of New York, New Jersey, and Connecticut and extend for a period of five years. On June 13,_ 1978, Margolies (for Holland), William Denis Fugazy (for Fugazy of Connecticut), and Altes- man, the Trustee-in-Bankruptcy, entered into a stipula- tion reciting the facts of the agreement, and on June 19, 1978, Joel Lempttes, the bankruptcy judge, issued an. "Order Rescinding and Authorizing Transfers:" .Margolies testified as to the reasons Holland relin- quished these rights (in addition to the healthy profit they made on it) and why, he felt, Fugazy of Connecti- cut Was willing to pay so much for these rights. Al- though I have found Margolies generally to be a than credible witness, these answers appear to be very reasonable. First, as regards Holland: The indebtedness to the Trustee, the -potential cost of fransferring the right, the working capital necessary,. the advertising promotion competitive nature. of the business here in New York. When put all together with the pressures that were, on this Instant company that started -from, nothing, with nothing, they quickly realized you just couldn't open your doors and say there's buses. People weren't knocking on our doors looking for us. After a reasonable short period of time we realized you need a certain amount of wherewithal to keep the thing alive while you build it up. Shortway Bus Charter Corp just didn't have it; Holland was aware of it and started' looking .around for a way to get out of it. And as regards Fugazy of Connecticut: As an example, Greyhound Corporation has no rights to Atlantic City which today is a big thing They spent literally millions of dollars attemipting tö obtain rights by application to the Interstate Com- merce Commission. They weren't successful for years and Years, just couldn't get it. They probably could have gone out _ and bought it for a fraction of what the legal bill. was They wanted to do something; they anticipat- ed what was coming. Fugazy, when they bought that right' from Hol- land had an idea that they were going to run a line run, which that right entitles you to, between vari- ous places in the State of Connecticut and the air- ports, LaGuardia and Kennedy. That route for another company, COnnectiait Limousine, is the most profitable transpoi-tation route in• the United States of America. Fugazy said, "We're going to go head to head with this outfit, we want those rights." They Were willing to pay for it. They ran the route for six months and it died on them. The whole thing turned out to be a joke but at the time they desperately wanted to get into that business. Fugazy Junior testified that Fugazy of Connecticut was granted temporary authority to 'operate under these ICC rights in February 1979, and commenced these op- erations at that time. PUGAZY OF CONNECTICUT OPERATION As the General Counsel is attempting to_ establish that Fugazy of Connecticut ,is' rthe successor to and/or alter ego of the other Respondents, counsel for Fugazy of Connecticut elicited • testimony to establish that Fugazy of Connecticut was in existence and operating at the same time as.' its alleged predecessors, and, in fact, , was- competing with them. Fugazy Junior testified that prior to the summer of 1978 Fugazy Continental Corp (Fugazy Continental) had an office and place of business at 212-50 Jamaica Avenue, Queens Village, _New York (Jamaica Avenue). During this period' Fugazy Continental performed airline crew work and luxury limousine transportation. When they obtained charter work, they subcontracted the work to other charter operators unless they could perform the charter- in. one of their stretch cars. Until about the simmer of 1978, its operation was solely at Jamaica Avenue, where it.had been located since about late 1977. It was not _until Fugazy of Connecticut -leased buses and purchased buses that it needed additional space and leased approximately one half of New York Boulevard.. Fugazy Junior testified that from-July to October 1978 Fugazy Continental employed a number of busdrivers.9 Although Fugazy - of Connecticut did not transfer its entire operations to New York Boulevard until-February 1979, beginning about September 1978, it leased space at New York Boulevard for the storage and parking of the Pittsburg and Weirton (P&W) used buses it had just pur- chased and for the storage of spare parts.", Fugazy Con- tinental received a study, dated May 18, 1978, which it had commissioned, entitled "Feasibility Study of Fugazy Continental's .Expansion Into Bus Market." The study found that its entry into the bus market (as compared to airline crew work and luxury limousine work which- they were then performing) would "complement your existing transportation,services"-and be "feasible and essential for Fugazy to maintain its continuous expansion."" - "-On June 14, 1978, prior to hiring any employees, Fugazy of Con- necticut executed a colleCtive-bargaining agreement with Local .819 Except for the date of this agreement, and the effective date of a few of its provisions, this agreement is identical to the Maintenance and Man- power and Local 522 agYeement-dated January 16, 1978 .7° Fugazy Junior testified that for the period pnor to February 1979 Fugazy Continental and then Fugazy of Connecticut paid $3000 a-month rent for then- portion of the New York Boulevard premises However, when he' examthed the -Fugazy 'cash disbursement Journal and check stubs, produced pursuant fo sulipb-ena, he could not locate any record of rent payments for the period prior to February 1, 1979 He also testified that on a number of occasions he was sued for nonpayment of rent for the New York Boulevard premises -77' As regards Jamaica Avenue, the study states "that with minor modi- fications this facility can. accommodate the storage; repair and mainte- nance of approximately five to ten buses" AIRPORT BUS SERVICE 583 Dern, like Margolies, was present on the scene during a large portion of the timeframe involved herein; he was involved with Dell Bus, and remained at New York Boulevard after January 24, 1978, beginning in May 1978, he began employment with Fugazy. Dern testified then during the period between October 1977 and the time he was hired by Fugazy he did "nothing" for Main- tenance and Manpower; he did no dispatching: "My job? Using the term broadly, I was self employed. I was trying to pick up dollars selling Dell equipment 'S The employees who testified on the subject saw things differently; Lyons testified that, during the period while Airport was at New York Boulevard, speaking of Dern: "He runs the show." Autry testified that during that period Dern was the chief dispatcher and Goza testified that Dern did not leave New York Boulevard until about 1980, and in September and October 1978 "he was still the chief as far as I knew." Dern testified that about May 1978 he went to Fugazy Continental and saw Fugazy Junior. He told him that he was with Dell Bus for a number of years, and he knew limousine operations and people at their airport and he felt he could be an asset to Fugazy Continental. He was hired as "operations manager of the Fugazy Limousine Company." He testified that at that time Fugazy was only in the limousine and travel business. Approximately 2 months later after Fugazy acquired the P&W buses, he generally dispatched the Fugazy drivers, either in person or over the telephone. He remained at the Jamaica Avenue location until September 1978 when he moved to Fugazy's limousine location in Manhattan. In Novem- ber or December 1978, he returned to New York Boule- vard. Fugazy Junior testified that Dern contacted his office about May 1978, and asked if a job was available. He was hired as assistant director of operations for Fugazy Continental, with jurisdiction over limousine op- erations, crew work, and dispatching—"He was a man- aging dispatcher." Dern testified that beginning about June 1978 Fugazy Continental began hiring busdrivers and it was during June, July, or August 1978 that he hired 15 to 18 bus- dnv ers. 72 They had some ads in the newspapers which attracted some drivers and others applied after hearing of the availability from others; he interviewed and hired all these individuals at Jamaica Avenue. Dern also testified that between June and September 1978, while he was located at Jamaica Avenue, certain of the buses (in fact, probably all of them) were located at New York Boulevard The procedure for dispatching the drivers during this period was for the drivers to go to the Jamaica Avenue location, receive the dispatch order from Dern (or someone else) for that day or the follow- ing day, and go to New York Boulevard, pick up their buses, and leave. In addition, according to Dern's testi- mony, Fugazy Continental then had a "hotline" tele- phone at New York Boulevard, which when picked up would ring at Jamaica Avenue. Dern would instruct a 72 Fugazy Continental's check stubs beginning August 9, 1978, are in evidence From that date until mid-October 1978. the payroll check stubs generally indicate the job the individual was employed in, the most common description is "mech " None of these check stubs have a nota- tion that the employee was a busdnver driver to call him in the morning on the "hotline" 73 and Dern would give him his orders over the phone- in that manner. Carlos Gonzales testified that he was employed by Airport and Maintenance and Manpower, 74 and began working for "Fugazy" about June 1978. He testified that because "we lose a job" at Maintenance and Manpower he went to "the Fugazy Limousines" for a job "because always I do the jobs in the Airport, I know Fugazy." Gonzales went to Jamaica Avenue where he asked Dern for a job as a limousine driver, but Dern told him that they were purchasing buses and they needed busdnvers. Shortly thereafter he began driving a bus for Fugazy. During the period while Dern was at Jamaica Avenue and the buses were at New York Boulevard, he drove to New York Boulevard, picked up his bus, drove it to Ja- maica Avenue, received his dispatch orders, and was on his way. 7 5 Earl Autry, who was employed by Airport as a driver through January 1978, testified that in June 1978 he went to Jamaica Avenue ("Fugazy's limousine operation, as far as I know, was up there") and asked Dern if he could get a job with Fugazy as a busdriver. 73 Dern told Autry that he had a job for him, but Autry explained that he would not be ready to work immediately because of a recent death in his family. He asked Dern if Fugazy would have a busdnver's job available for him shortly when he was ready to work, and Dern assured him that they would. In August 1978, he informed Dern that he was ready to work and he began working for Fugazy77 on that same day doing charter work and crew work. On that first day he went from Jamaica Avenue to New York Boulevard where he introduced himself to someone and got his bus. On that first day of employment with Fugazy Continental he drove in his street clothes. For the next months he wore his Airport uniform, which he owned. A few months later, Fugazy of Connecticut dis- tributed uniforms to its drivers. Goza testified that about July or August 1978 Sylves- ter Green, a driver employed by Fugazy Continental, told him that Fugazy had an operation located at Jamai- ca Avenue, and that Clifton, Gonzales, Arthur Davis, and Prince Glover were working there as drivers There was a substantial quantity of testimony, princi- pally from Goza, regarding driver seniority at Fugazy of Connecticut Although there is no allegation herein of unlawful discrimination in regard to Goza's position on 73 Dern testified that only the two Fugazy Continental maintenance employees—his son, Alan Dern, and Willie Green—had access to the room at New York Boulevard where the "hotline" was 74 Gonzales application for employment with Fugazy Continental lists Browns, Airport, and Shortway as his former employers, he did not list Maintenance and Manpower there 75 Gonzales is presently second on the Fugazy of Connecticut seniori- ty list, first on the list is Clarence Fisher, who is the shop steward, but it is not clear from the record whether Fisher is first simply because he is shop steward 76 He testified that a former fellow dnver at Airport, Arthur Davis, informed him that there might be a job available at Fugazy Continental Davis at that time was driving a bus for Fugazy Continental " He testified that in August and September 1978 the corporate name on his paycheck was Fugazy Continental Corp 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this seniority list, there is some relevance (albeit minor) of these facts to the ultimate issue herein Goza testified that his starting date on the Fugazy of Connecticut seniority list is October 11, 1978, although, he testified, "there is a little discrepancy." Ahead of him on this list were Leroy and Charles Gillard, Johnny Eagle, Stokes, Fisher," Gonzales, Otis Creighton," Erastus Clifton, 80 Raymond O'Kelly, Johnny Boyd, Neubra Smith, and Robert Duggan. The reason for the "discrepancy" appears to be that, since Goza was work- ing out of New York Boulevard since January 1978, he felt that he should have had greater seniority with Fugazy of Connecticut than drivers who began working for Fugazy Continental between July and October 1978. 81 Goza testified that sometime "after Fugazy took over" in October 1978 the "old timers from Short- way,"" including himself, spoke to Fisher about all the names that were ahead of their names on the Fugazy of Connecticut seniority list; Fisher told them that these were the drivers who had previously been employed by Fugazy Continental at Jamaica Avenue and "they go to the top of the seniority list."' Received in evidence were the "Fugazy" payroll reg- isters for the pay period ending June 28 through the pay period ending October 4, 1978. The first date on which these registers list names of busdrivers who had previ- ously been employed by Airport, Dell Bus, Maintenance and Manpower, or Shortway Charter (or all or some of them) is the week ending August 2, 1978. 83 Prince Glover, Elton Nock, Stencil Stokes, and Otis Creighton appear on this payroll. Carlos Gonzales, as well as Robert Bryant, appears on the payroll the following week for the first time. Beginning the week ending July 26, 1978, and, at least, continuing through the week 78 Fisher's application for employment with "Fugazy Continental Corp" is dated on the front page November 3, 1980, and on the back page July 7, 1978 The front page lists employment with Yellow Freight Company from 1970 to 1980 This conflict is unexplained 79 Creighton's application, which contains no company name, is dated March 9, 1978 8 ° Clifton, like Goza, for some unexplained reason also filled out more than one employment application, one on August 7, 1978, and one on September 19, 1980, where he lists "Fugazy" as his employer from July 8, 1977, to the time of the application Si Illustrative of the problem is the following testimony of Goza Q Isn't it a fact that these people were working for Fugazy before you started9 A Fugazy wasn't even in existence when I started working for Maintenance and Manpower How could they be working for Fugazy9 Q Isn't It a fact that when you started to work for Fugazy on Oc- tober 11, 1978, that there were 13 people who had already begun to work for Fugazy before you9 A I don't know • 82 Goza testified that he never saw any seniority list for Shortway or Maintenance and Manpower The first time he saw the Fugazy list was about October or November 1978 It was on October 10, 1978, that he was first informed that from that date he was employed by Fugazy of Connecticut • 83 This is not surprising as this corresponds to about the time that the P&W buses were delivered to Fugazy ending October 4, 1978, 84 Dell was on this Fugazy pay- roll register at $200 per week." The first buses that Fugazy Continental purchased were the used P&W buses; Fugazy Minor testified that about June' he and Dell went to West Virginia to inspect these buses and that Dell was employed by Fugazy Con- tinental for about 6 to 8 weeks and was 'paid as a consult- ant to examine the buses and make recommendations as to whether he should purchase them. They purchased 12 of these buses together with spare bus parts; the buses were delivered to New York Boulevard about July 1978, where the Fugazy name was painted on them and they Were prepared for operation. Fugazy Junior testified fur- ther that in September 1978 Fugazy purchased 12 new buses from Motorcoach Industries; they expected deliv- ery' of these , buses in February 1979; however, they did not arrive until June '1979; during this period between February and June 1979, Fugazy of Connecticut leased some buses from "Shortway" to cover its deficiency." Margolies. testified that in October 1978 Holland leased 12 buses to Fugazy of Connecticut on a month-to-month basis; these buses were leased to assist Fugazy of Con- necticut which had previously purchased 12 new buses which'had not yet been delivered. FUGAZY AND SHORTWAY TOGETHER AT NEW YORK BOULEVARD Admittedly, between June or July and early October 1978, both Shortway Charter and Fugazy had buses lo- cated at New York Boulevard. Shortway Charter's entire operation was located there Whereas, during that period, only Fugazy's bus operation was there. There is some conflicting testimony regarding the interaction be- tween these two companies during this period. In addition to its busdrivers, Fugazy had, at least, two regular employees at New York Boulevard, Dern's son, Alan Dern, a cleaner, and Willie Green, a mechanic. The pay stubs of the checkbook of Fugazy of Connecticut es- tablish that on the first day that any checks were written from that checkbook, August 9, 1978, the employees were paid for a week's work. 87 Fugazy Junior, who tes- tified that in the period from July 1978 through Febru- ary '1979 he visited New York Boulevard "frequently,"" 84 Dell is not listed 'on the later payroll registers (Fugazy Continental) in evidence However, I would not conclude from this that October 4, 1978, was his last day as a paid consultant for Fugazy as Dern, admitted- ly-an employee of Fugazy after October 4, 1978, is not listed on these payroll registers as well 85 Fugazy Junior testified that he did not believe that Dell was ever on a Fugazy payroll 88 During other portions of his testimony, Fugazy Junior testified that about the latter part of 1978, or October 1978, he leased buses from Hol- land Dunng thii period the number of buses leased vaned from four to a greater number, and depended on the number of Fugazy buses that were nonoperational ' He testified further that during this period Margolies' buses were being transported, or being made ready for transport, back to Ohio (the pnncipal location of Shortway Lines and Holland) 87 Other maintenance employees, J Nicholas, Hubert Howie, H Graham, and others, are named in these pay stubs, but the full record establishes that Green and Alan Dern were the Fugazy of Connecticut maintenance employees who were regularly at New York Boulevard 88- When pressed on cross-examination to be more precise, he testified that he visited New York Boulevard once a week, then "once a week, Continued AIRPORT BUS SERVICE 585 testified that Fugazy employees were not authorized or permitted to work on Shortway Charter vehicles; there was strict adherence to separation and allocation of space at New York Boulevard, according to Fugazy Jun- ior's testimony Dern testified that after Fugazy moved to New York Boulevard, the area in which Fugazy employees per- formed maintenance work on the Fugazy buses was called the body shop. There was a door from the parking lot into the body shop and there was a door between the body shop and the Shortway Charter Maintenance area with a chain lock on it. During that period (July through October 1978) Fugazy had two regular employees at New York Boulevard—Dern and Green. At times other mechanics, such as Donald Beckles, helped out on their own time maintaining the Fugazy buses. Dern further testified that these Fugazy employees were only author- ized to work on Fugazy vehicles, although he could not personally testify as to whether this rule was followed, since during this 3- to 4-month period he Was present at New York Boulevard for "minutes." Margolies testified that during this period from June through October nei- ther Shortway employees nor employees leased from Maintenance and Manpower drove Fugazy buses or per- formed any work on Fugazy buses. Goza (who was employed at New York Boulevard and on October 10, 1978, became employed by Fugazy of Connecticut, infra) testified that, while he was em- ployed by Shortway between June and October 1978, he was never told to have nothing to do with the Fugazy buses. Autry testified that he was not aware that there were separate parking spaces and separate maintenance employees for Fugazy buses, as compared to Shortway Charter buses, between August 1978 (when he obtained employment at Fugazy Continental) and October 1978. He did testify, however, as did Dern and Gonzales, that during this period there were some disagreements be- tween the Fugazy employees and the Shortway Charter employees and dispatchers. The result of this was the Fugazy drivers had to use the "hotline" telephone in a separate room off the dispatcher's office to "get their in- structions directly from Jamaica Avenue. Gonzales (who appeared to be a highly credible wit- ness) testified that during the period of June through Oc- tober 1978 (while he was employed by Fugazy) he had a specific area in which to park his bus and the Shortway Charter drivers had a specific area in which to park their buses. In addition, Green worked on Fugazy buses cnly and Alan Dern cleaned and fueled his bus, but not Shortway Charter buses, during that period As regards repairs and spare bus parts, Gonzales (who had difficulty with the English language) testified,. "I know, we park it and repair in different parts, Fugazy and Shortway, that's all I know," although he never watched Green perform mechanical work on the Fugazy buses When he needed work to be performed on the bus he was driving, Gonzales -filled out a defect card and gave it to the dis- patcher at New York Boulevard, who, at that time, was maybe twice a week It varied ' S In a prior deposition to_ the Board, he testified that between October 1978 and February 1979 he visited New York Boulevard "on a few occasions 'S Stokes. He testified that on a number of occasions this was the procedure he followed between August and Oc- tober 1978; he did not bring the defect card to Jamaica Avenue or give it to Alan Dern. He was dispatched to jobs generally by Dern at Jamaica Avenue, where he turned in his receipts to be reimbursed for tolls. Donald Beckles was employed by Shortway .(although he testified that his paychecks sometimes had the name Maintenance and Manpower) and then by Fugazy as a mechanic. He testified that after the P&W buses were delivered to New York Boulevard (but prior to the time he received his first paycheck from Fugazy89) he per- formed mechanic's work for about a week on these P&W buses at the request of Dell, who paid him in cash for the work. He performed this work on his own time, after he had punched out on his Shortway timecard. Beckles also testified that during the period while he was employed at New York Boulevard, after the arrival of the P&W buses but before he received his first paycheck from Rigazy, the Fugazy buses were worked on in the body shop separate from the Shortway buses, but were washed and fueled in the same area as the Shortway buses. During this period Fugazy employed its own me- chanics—Green, Dave Foster, and "Jean," 9° who had previously been employed by Shortway Charter, "but after the Fugazy buses came in, they worked for Fugazy" and no longer worked on Shortway buses during their regular working time. During this period Alan Dern and "Michael" 9 ' cleaned and fueled the Fugazy buses only and during this period the spare parts for the Fugazy buses were kept in the rear of the body shop separate from the spare parts for the Shortway buses. Beckles also testified that "the drivers working for Fugazy and the ones working for Shortway were differ- ent They were getting different checks." He testified that at one time (during this same period prior to Beckles receiving his first regular paycheck from Fugazy) the Fugazy and Shortway drivers were dispatched out of the same office, but "a little friction" developed between the two groups of drivers over the fact that the Fugazy buses were of a better quality. Beckles testified that he knew that there was a separate telephone for the Fugazy drivers located in the office beyond the dispatcher's office. Autry testified that during the early period of his em- ployment with Fugazy, and prior to October 1978, he was being dispatched by messages through the Shortway dispatcher. At a certain point that system terminated and he had to call Jamaica Avenue in order to be dispatched. During that same period, he observed Alan Dern fueling his bus. 8 9 Beckles first appears on the Fugazy of Connecticut payroll for the week ending October 15, 1978 His name does not appear on Fugazy's check stubs for the period prior to that Willie Green and Alan Dern, whose names appear on numerous occasions on these check stubs, are not 'listed on any of the Fugazy payroll registers for the periods prior to Oc- tober 22, 1978 c't The Fugazy check stubs for the period commencing August 9, 1978, show weekly pay to Foster, Jean Nicholas (as well as Alan Dens and Willie Green) and others through October 4, 1978 ii The check stubs referred to, supra, give no hint as to the identity of "Michael' 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gibson, who worked part time for Fugazy ("sometime I would call them, sometime they would call me"), testi- fied that the Fugazy dispatchers whom he spoke to while employed there were Stokes, Gaynor, Wurth, and Cana- day. Goza testified that between June and October 10, 1978, he observed the newly painted P&W buses coming from Kennedy Airport; they were driven on these occa- sions by Green and Clifton. Between those occasions and October 10, 1978, he only saw Green at New York Bou- levard on one occasion when he brought his bus to New York Boulevard for repairs and never saw Clifton at New York Boulevard. He also testified that about the end of September 1978 (about 2 weeks prior to the date that he was informed that he was then employed by Fugazy of Connecticut) while he was still employed by Shortway Charter, he drove one of the P&W buses, as did Smith, Gonzales, Clifton, Davis, and Green, who were then Fugazy employees. Gonzales testified that during the period that P&W buses were operational in October he drove only the P&W buses, and he did not observe any Shortway drivers driving these P&W buses. Moser testified that about March 1979 he went to New York Boulevard and observed buses that were marked Shortway Lines,92 Airport, and Fugazy; all of these buses had the same ICC number written on them. , As stated supra, the June -13, 1978 agreement provid- ing for the sale of the ICC rights to Fugazy of Connecti- cut provided, inter aim, a 3-month option to lease a por- tion of Holland's premises at New York Boulevard .for 10 years at an annual rental of $3000, plus 50 percent of the cost of utilities and maintenance, and an option to purchase Holland's charter business for $100,000. On Oc- tober 6, 1978, William Denis Fugazy (as president of Fugazy of Connecticut) and Margolies (as secretary and chairman of the board of Holland) entered into an agree- ment which modified the June 13, 1979 agreement in a number of ways; it provided that "[c]ash payments pur- suant to Paragraph 1(a) 93 shall be limited to the $18,000 heretofore paid the Trustee in Bankruptcy." Additional- ly, the agreement provides, inter alia:94 92 Margolies, who is secretary and a director of Shortway Lines, testi- fied that its ICC rights provide that it can originate trips from certain areas of the midwest (Ohio, Indiana, etc ) east to Pennsylvania, but It has no ICC or local authority to pick up passengers in New York, nor is It licensed to do business in New York He testified "there is no possible way that a Shortway bus would ever be in a garage while Fugazy was there" or even while Airport was there According to his testimony, the only occasion a Shortway Line bus would be at New York Boulevard, or any other garage, was if they had a bus with mechanical difficulty, if that 'occurred, however, Shortway Lines would use the services of a garage of Greyhound with which It has contractual relations regarding the repair of each companies' buses I would discredit Margolies' testimony as numerous employees (who were substantially more credible than Mar- golies) testified to the presence of Shortway Lines buses at New York Boulevard, additionally, It is admitted that Holland leased buses to Fugazy, it is reasonable that, for this purpose, Holland used the buses of Shortway Lines—which owned 50 to 75 buses 93 Paragraph 1(a) of the June 13, 1978 agreement states that the $250,000 purchase price shall be payable "$18,000 to the Trustee in Bankruptcy and $32,000 to Holland Industries, Inc ," as well as to others 94 In addition, this agreement provides "In addition to the aforesaid modifications, Connecticut agrees to hire Michael Margolies as a Consult- ant for three months commencing October 9, 1978, at a salary-of $4,000 per month" Included in this sale is . . . Holland's infra and interstate charter bus business originating in New York State . . . Connecticut hereby leases a por- tion of Holland's premises at [New York Boulevard] at a monthly rental of $3,000, plus 50% of the cost of utilities and maintenance, commencing July 1, 1978, through October 31, 1978. Commencing No- vember 1, 1978, Connecticut leases the entire prem- ises at a monthly rental of $6,000 plus all costs of utilities and maintenance. Fugazy Junior testified that about the time he (togeth- er with Dell) purchased the 12 P&W buses, Wagner in- formed him that he might want to lease a certain part of New York Boulevard to maintain and store these buses and the accompanying parts. Fugazy Junior agreed that there was not enough space at Jamaica Avenue for all the buses and spare parts, so beginning in July 1978, with the delivery of the buses, Fugazy of Connecticut began occupying New York Boulevard. As to the nature of the lease, Fugazy Junior testified It was oral, based on how much space we really oc- cupied—you know, two or three buses didn't really make any—we could have kept those at the Jamaica Avenue property. He also testified that he was "sure we paid some rent" between June and October 1978, although, as stated supra, there is no convincing proof that Fugazy of Con- necticut paid any rent even through January 1979. Final- ly, he testified that the rent was "ultimately" $3000 a month "in Febi-uary of 1979, when we had all our buses." 95 Margolies testified that Fugazy of Connecticut began to occupy "some" of New York Boulevard after the June 13, 1978 agreement was signed. On October 5, 1978, Holland (by Margolies, secretary) and Fugazy Travel & Incentive Corp, herein called Fugazy Travel (by William Denis Fugazy, president), en- tered into an agreement whereby Holland agreed to act as a consultant to Fugazy Travel, and not to compete with it in the travel business, and Fugazy Travel agreed to pay Holland (referred to in the agreement as "consult- ant") an advance of $4000 a month with the actual amount dependent on a formula based on the net profits 95 I did not find Fugazy Junior to be a credible witness While being questioned by the General Counsel he displayed a surprising ignorance of the facts that could demonstrate either his evasiveness as a witness or his lack of knowledge of many of the facts affecting Fugazy of Connecticut In addition, his testimony contradicts itself at certain points, for example, when asked when he paid 53000 a month rent for New York Boulevard, he testified, "I believe It was in February of 1979 when we had all our buses" However, according to his testimony, Fugazy of Connecticut did not have "all" its buses until It received its Motorcoach Industry buses in June 1979 Additional conflicts appear in Fugazy Junior's testimony re- garding the occasions that Fugazy of Connecticut leased buses from Hol- land and his testimony regarding the frequency of his visits to New York Boulevard, supra Finally, at the hearing Fugazy Junior testified that, with minor exceptions, Margolies did not do any consulting for Fugazy of Connecticut regarding the bus business, yet, Fugazy Junior had previ- ously testified, during an investigative heanng, that Margolies was a con- sultant on the direction the bus company should take and he consulted with Fugazy Junior on the matter of purchase of equipment, and recom- mended the purchase of the Motorcoach Industry buses as compared to a different bus AIRPORT BUS SERVICE 587 of Fugazy Travel The agreement is for a term of 10 years beginning October 16, 1978, and states. Consultant is the sole shareholder. of Executives International Travel Agency, Ltd. ("Executives"); Consultant has also been engaged in the travel busi- ness and has acquired knowledge experience and ex- pertise concerning this business. Executives ha's this date sold substantially all of its assets to the Company [Fugazy Travel] and inci- dent to such sale Consultant has agreed to consult with and assist the Company and not to compete with the Company in the future. . . The Company desires to enter into this Agree- ment with Consultant in order to insure the per- formance by Consultant of consulting services for the Company, and to insure that Consultant will not compete with the Company. . . Consultant shall render services on such matters relating to all aspects of the travel business,, includ- ing matters relating to management, sales,-, sales management, personnel and administration and busi- ness operations, as may reasonably be requested from 'time to time by the Company The Consultant shall not be under any Obligation to spend particular amounts of time in connection with its duties here- under. The Company shall not exercise supervision over Consultant in the performance of its duties hereunder, nor shall the Company require compli- ance with detailed orders and instruCtions, it being the intention of the parties that the Consultant shall have sole discretion over the number of 'hOurs, schedule of hours, 'and n'aitire of service's i'vhich' shall render. ' • • Margolies' testified that, during his negotiations -with Fugazy Junior regarding 'these. agreements, Fugazy Junior told him that they needed someone who knew the industry and equipment and could 'assist them in those areas During the 3-month period, beginning October 1978, that Margolies was employed as a consultant for 'Fugazy Travel, he had an office at 1345 Avenue Of Americas (Executives' office) and at 126 East 35th Street (Holland's office), and "I had the use of desk and facili- ties at Fugazy office, 645 Madison Avenue," all in New York City. When he was asked-if he was at the Fugazy office on a daily basis during this 3-month period, he tes- tified, "Regularly would be a better word Not daily but certainly regularly." He also testified that during this 3- month period he spent almost his full time consulting for Fugazy of Connecticut regarding the, bus business, and, in that regard, assisted it in the purchase of the 12 buses in early 1979. , Fugazy, Junior testified that the primary purpose of re- taining Margolies was in the travel area; as stated supra, he also testified that Margolies did not do any consulting with respect to Fugazy , of Connecticut's bus business. When asked if Margolies rendered any services to any Fugazy corporation concerning bus operations, he testi- fied. Not really, I mean, his function in the travel . oper- ation did necessitate occasionally discussions about bus tours and ground transportation services for group transfers related to the sale of travel, but ,other than that,-very little. Not too long thereafter, Margolies sued Fugazy of Connecticut under these agreements; what is relevant herein is that in a demand for a bill of particulars dated October 29, 1979, the Respondents requested: "[S]pe- cifically set forth nature of the services plaintiff was to perform for defendant." The bill of particulars answered "Michael Margolies was to assist in the orderly transition of the bus business from Shortway to Fugazy. This in- volved all aspects of the business (administration, sales, management and maintenance)." XII. SHORTWAY DISAPPEARS As stated supra, Goza is an employee who began working for Maintenance and Manpower just at the time of the demise of Airport, and has been employed at New York Boulevard until the present time, having later been employed by Shortway Charter and Fugazy of Connecti- cut. He testified that about midsummer 1978 the name on his paycheck changed from Maintenance and, Manpower to Shortway Charter; at that time, as well, Stokes, the dispatcher, asked him to complete a new employment application for Shortway. His paychecks contained the Shortway Charter name until October 1978. Goza testified that on October 10, 1978, he left New York Boulevard about 7 a m, for a trip to Washington and returned the smile day about 7:45 p:m. (On his log that day he listed Shortway Charter as the carrier ) He and Neubra Smith were walking together when Larry Canaday, the dispatcher said, "Well, you no longer work for Shortway, fellows, you-work for Fugazy now." That was the extent of that conversation and beginning Octo- ber 12, 1978 (he was off the next day, October 11, 1978), he listed "Fugazy Continental" as the carrier in his log. Goza also testified about the dispatchers during the pre- and post-Fuiazy period in October 1978; however, 'this testimony is so indefinite that it will not be recited or considered. Margolies testified that the main period of Shortway Charter's operation after January 24, 1978, was until 'about July 1978; prior to that time, Margolies was at New York Boulevard "regularly"; over the following 4- month period beginning in July 1978, Shortway Charter phased out its operation at New York Boulevard (Mar- golies was there about twice a week during that period) and by October its operation had ceased entirely. Goldman and Roth 96 appear on the Fugazy of Con- necticut payroll in October 1978 (Goldman testified that he was employed by Fugazy of Connecticut in its sales department, but his employment with that company lasted•only for 3 weeks.) In January 1978, shortly before the adjudication, Goldman was paid $461 a week and 96 As stated supra, at various times Roth was listed as controller of Shortway Charter and Maintenance and Manpower, Goldman was an of- ficer of both Airport and Shortway Charter, and, for a brief time, was an officer of Holland 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Roth was paid $366 a week by Airport. 97 For the short period of his employment with Fugazy of Connecticut, Goldman was paid $460 a week; Roth was paid- $366 a week by Fugazy of Connecticut. The- General Counsel, in his attempt to establish that the numerous different employers at New York Boule- vard were really one employer (or, stated more succint- ly, that Holland, Maintenance and Manpower, Dell Bus, Shortway Charter, and Shortway Lines were the alter ego and/or successors to Airport and Fugazy was the alter ego and/or the successor of Airport, Holland, and the others) presented evidence establishing a progression of telephone numbers going from one employer to an- other. 523-1010: The first billing was to Cross County in Oc- tober 1977 at New York Boulevard, with a final bill to Cross County at that address in May 1978. In August 1978, there was a billing to Cross County, but this time at Jamaica Avenue; in September 1978, the customer's name was changed to Fugazy Continental at Jamaica Avenue. Beginning in October 1978 through April 1979, the billing was to Fugazy Continental at West 49th Street in New York City. 657-7600. The first bill, dated October 1977, through the final bill, dated January 1978, were to Airport Bus at New York Boulevard Beginning January 1978, the bill- ing is to Shortway Charter, also at New York Boule- vard. In November and December 1978, the billing is still to Shortway Charter, but the address is changed to 645 Madison Avenue in New York City,. the address of Fugazy's office. Beginning, in December 1978 through, at least, April 1979, the billing for this number is to Fugazy Continental at 645 Madison Avenue 526-2800. Beginning in July 1978, this number was ,billed to Dell Bus & Limousine Service at New York Boulevard. This billing continued unchanged until Janu- ary 1979 when the billing was to Fugazy Continental at New York Boulevard at least through April 1979. 526-5700: Beginning in October 1977, this number was billed to Omnibus Limousine Service at New York Bou- levard The next bill that the telephone company could locate (pursuant to a subpoena from the General Coun- sel) was a December 1978 final bill to the same party at the same address. There is another bill for this _number for December 1978 to Fugazy Continental at New York Boulevard. 565-4175: From the first liking in November 1977 to the final billing in September 1978, this number is billed to Dell Limousine Service at New York Boulevard. In September and October 1978, the billing for this number went to Fugazy Continental at its 645 Madison Avenue location in New York City. 291-3000: The first -bill in evidence for this number is to Airport at New York Boulevard, and is dated Novem- ber 1977. The February 1978 bill to Airport is a final bill, and there is another bill dated later in February '1978 to Shortway Charter at New York Boulevard for this 97 As there are no Shortway Charter nor Maintenance and Manpower payroll records available (they were subpoenaed by the General Counsel, but never produced) I am unable to determine what salary Goldman and Roth received at these companies number. The final bill to Shortway Charter is January 1979; on the same date there is the first billing to Fugazy of Connecticut at 645 Madison Avenue for this number. 656-5858: The earliest bill located for this number is dated October 1977, and is to Airport Bus Service, In- corporated, Debtor-in-Possession, at Building . 69. The next billing located is for January 197_8 to the same cus- tomer, but the billing address is New York Boulevard. In _February , 1978, the customer appears as Shortway Char- ter at New, York Boulevard; the final bill to Shortway Charter for this number is December 1978; beginning January 1979, the number is billed to, ,Fugazy of Con- necticut at New York Boulevard. hys OPERATIONS COMPARED One ingredient in establishing a successorship or alter ego relationship is the similarity or identity in the oper- ation of the companies. It is therefore necessary to exam- ine the operation of Airport, Shortway Charter, Mainte- nance and Manpower (between January and OCtober 1978), and Fugizy. 'Airport was prinemully engaged in two forms of trans- portatiOn: charter work and crew work for the airlines Additionally, Airport, on .occasion and pursuant to agreements with the airlines, transported passengers be- tween the airports or betv.ieen the airport and New York City; this transportation was paid for by the airlines. The testimony of the employees is that at the January 24, 1978 meeting Margolies told them that he would be 'operating charters only, but' that 'Dell would perform crew work, and Margolies' testimony at the hearing herein is that Shortway Charter, during the period Janu- ary through October 1978, did only charter work. How- ever, Dern testified that Shortway .Charter performed crew work during this period (he estimated that they did about 30 crew jobs each day) and Goza testified that most of the work of the Company.prior to October 1978 was crew work which he drove; 98 for the .reasons stated supra, I would credit Goza (and, in this case, Dern) over Margolies. Dern also testified that Shortway had op- eration, .with Yeshiva University involving 'ix coaches daily transporting children from Brooklyn and Queens to Yeshiva University. The record also establishes that Dell continued to perform the Parking Lot No' 7 'operation previously performed by Airport. From the very beginning, Fugazy also performed charter work and crew work, 99 in addition, wheriDern began his employment at Fugazy it was already bpdat- ing a limousine operation"° composed of in excess of 100 limousines Dern also testified that at the time of ins employment with Fugazy the Company was performing little, if any, passenger service work from the • .99 In this cOmpanson of company operations, I have combined Shortwdy Charter and Maintenance and Manpower The employees whom they employed who testified could not differentiate between the two, and the degree to which they have been intermingled makes it im- possible to separate the two 99 Margolies testified that for the period July through October 1978 Shortway Charter and Fugazy were competing with each other in a lim- ited way 19 9. Under a different Fugazy corporation - AIRPORT BUS SERVICE 589 ports 101 He "chased" this work for Fugazy and got the Fugazy name put on the airlines' list of bus companies to call in these situations. 102 In addition, about January or February 1979, Fugazy began transporting professional baseball and football teams, both within the New York area, and from the New York area to other cities. Dern also testified that on December 30, 1979, Fugazy commenced a bus operation to Atlantic City. This was a line run 1 ° 3 which involved making stops in the five bor- oughs of New York,' taking people to the Park Place Hotel and Casino in Atlantic City, waiting 6 hours and then returning the - passengers to the New York 'area. Dern testified that initially this operation accounted for almost half of Fugazy's buses, 13 out of 29. . Between January and November 1979, Fugazy operat- ed a Connecticut run, which was a line operation from the New York area airports to New Haven, making stops along the way and returning by the same route 104 The buses made a number of trips daily to Connecticut on this line run while it was still in operation. Of all the companies involved herein, only Fugazy had an oper- ation such as the C6nnecticut line run, the Atlantic City line run, and charter work for professional athletic teams. , XIV ,EMPLOYEES, COM PA RED The difficulty herein in comparing the employees who were employed by Airport, Dell Bus, Shortway Charter, Maintenance and Manpower, and Fugazy (of Connecti- cut or Continental) in determining successorship or alter egO status among these companies is the lack of docu- mentation of the employees employed by these compa- nies. Payroll records of Airport for the period October 1977 through January 12;1978 are in evidence, as well as payroll records for Fugazy Continental or Fugazy of Connecticut for the 'period June 28 through December 29, '1978. No other Respondent supplied any payroll records pursuant to subpoenas issued As secondary evi- dence on this issue, a- number of employees testified re- garding the employees who were employed at .certain times There are a number of Fugazy payrolls in evidence both for Fugazy Continental and for .Fugazy of Con- necticut and for different. periods of time. Listed on the payroll for "Fugazy" from August through Oc- tober 4, 1978, are a total of 28 drivers; 105 of these, nine appear on the Airport payroll registers for October 1977 through January 12, 1978. 1 0 6 Of. the 44 drivers listed on 101 This involved unscheduled delays or cancellations for the airlines caused by mechanical difficulties or poor Weather The result is often that a large number of passengers have to be transported to another airline, another city, or-to a hotel, requiring the use of a bus vAtich is paid for by the airline '° testified that this work is substantially more profitable than regularly scheduled crew work "3 The schedule liking the stops of 'each of the buses appears in Fugazy advertisements in the newspapers • 104 This was the line run referred to supra in Margolies' testimony as extremely unsuccessful 105 'These paYroll registers do not appear to list many, or all, of its maintenance employees ' 38 The last payroll supplied by Airport the Fugazy of Connecticut payroll for the week ending October 15, 1978, 17 appeared on the Airport payroll registers for October 1977 through January 12, 1978. Of the 12 maintenance employees listed on the Fugazy of Connecticut payroll for the week ending October 15, 1978, 107 none were listed on the payroll of Airport be- tween October 1977 and January 12, 1978. Of the 34 drivers listed on the Fugazy Continental payroll for the week ending October 29, 1978, 17 had been employed by Airp6rt between October 1977 and January 12, 1978. Also on the Fugazy. Continental payroll for the period ending October 29, 1978, is a listing of 14 individuals who appear to be mechanics and maintenance employ- ees. Of these, 3 had been employed by Airport between October 1977 and January 12, 1978. Finally, of the 23 drivers listed on the Fugazy Continental payroll for the period ending December 31, 1978, 11 had been employed by Airport in the period October 1977 through January 12, 1978 On that same Fugazy Continental payroll, 10 mechanics and maintenance employees are listed; 1 had been employed by Airport between October 1977 and January 12, 1978. The lack of payroll data from Shortway Charter, Maintenance and Manpower, or Holland clearly makes more difficult the General Counsel's attempt to establish a linkage between these companies, Airport, and Fugazy. In order to fill in this gap, the General Counsel used sec- ondary evidence of testimony of employees regarding which employees were employed by these Respondents, -together with Local 522 authorization cards, to establish that Fugazy employees had previously been employed by one of these Respondents at New York Boulevard. As 'previously stated, the Fugazy of Connecticut pay- roll for the week ending October 15, 1978, 108 lists 44 drivers, 17 of whom were on the previously mentioned Airport payrolls; none of the 12 maintenance employees listed on the Fugazy of Connecticut payroll for that week were on these Airport payrolls. Apparently, the General Counsel is attempting to establish that at least another 12 of these employees had been employed by either Shortway Charter, Maintenance and Manpower, or Holland and that these companies are alter egos or successors of .Airport In addition to the testimony of these 17 dnvers, 1 " the Local 522 authorization cards subpoenaed by the Gener- al Counsel establish' that 2 additional drivers on the Fugazy of Connecticut payroll of October 15, 1978, Phil- lip Brown and Leroy Gillard, were employed by Mainte- nance and Manpower at New York Boulevard; Brown signed a Local 522 authorization card on January 26, 1978, stating that he commenced his employment with 9'1 Neither Alan Dern nor Willie Green is listed on this payroll, Alan Dern had previously been employed by Airport "8 I chose this payroll week as it is the first Fugazy of Connecticut payroll, and Shortway Charter was no longer located at New York Bou- levard On the payroll for the following week, the percentage of employ- ees who previously appeared on the Airport payrolls is approximately the same "9 Johnnie Boyd, Otis Creighton; Erastus Clifton, Earl Autry, Arthur Davis, Ralph Cronenberg, Robert Duggan, Johnny Eagle, Selvin Gibson Jr , Charles Gillard, Prince Glover, Carlos Gonzales, Elton Nock, Wil- liam Pearson, William Reed, Neubra Smith, and Stencil Stokes 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Maintenance and Manpower on January 24, 1978, while Leroy Gillard signed a Local 522 authorization card on March 19, 1978, stating that he commenced his employ- ment with Maintenance and Manpower on March 19, 1978. The remaining proof of the "bridge" between 'Airport and Fugazy of Connecticut, and the employees on its payroll of October 15, 1978, is based on the'testimony of employees who were employed at New York Boulevard between February and October 1978. The clearest cases are Willie Goza and Donald Beckles. Willie Goza credi- bly testified that on separate occasions between January and October 1978 he was informed by his supervisors that he was employed by Maintenance and Manpower, Shortway, and Gugazy (on October 10, 1978) In addi- tion, Beckles testified that he worked for Maintenance and Manpower and Shortway Charter prior to the tirne his name appears on the Fugazy of Connecticut payroll of October 15, 1978. Goia and Gonzales also testified that Beckles was employed by Shortway or Maintenance and Manpower prior to his employment with Fugal)/ The "inclusion" or "exclusion" of the other employees on the October 15, 1978 Fugazy of Connecticut payroll is based on the 'testimony of Goza, Gonzales: Beckles, and Gibson Larry Canady—All four testified that Larry Canady was employed by Shortway Charter prior to the date that it ceased operating and Fugazy began operating. Goza testified that Canady was the night dispatcher who informed him on October 10, 1978, that, beginning that day, he was employed by Fugazy, I would therefore find that Canady was employed by Shortway during this period. Adam Merchant—Goza, Beckles,. and Gibson also testi- fied that Merchant was employed by Shortway before Fugazy began its operation at New York Boulevard, and I so find. Devere Foster—Goza first testified that Foster was a Maintenance and Manpower mechanic during the summer of 1978, but he later changed his testimony to the effect that Foster was not employed by Maintenance and Manpower during this period. Only Beckles also 'tes- tified regarding Foster and he testified that Foster was employed by Shortway prior to his employment with Fugazy. However, the Fugazy check stubs ,establish that from August 9 through October 4, 1978, Foster received a Fugazy check as "mechanic" for 40 hours of work at $6 an hour. Because L found Goza somewhat more credi- ble than Beckles, and, more importantly, because Fu- gazy's check stubs establish that Foster worked full time for Fugazy from August ,through October 4, 1978, I find insufficient evidence that Foster was employed by Shortway Charter or Maintenance and Man-power during this period. • • , Schlonw Benjamin—At first Goza testified that Benja- min was employed by Shortway before .Fugazy; when he -was questioned again about Benjamin's status, he testi- fied, "I pass" on the issue. Gonzales testified only that be had seen Benjamin at New York Boulevard, Beckles. tes- tified that Benjamin was•employed only by Fugazy, and Gibson did not remember him. I therefore find insuffi- cient evidence to establish . that Benjamin was employed by Shortway or Maintenance and Manpower during this period. Earl Gaston—As with Benjamin, Goza first testified that Gaston was employed by Shortway .befOre Fugazy moved to New York Boulevard, but later ,tesiified that he did not know if Gaston was employed there before or after Fugazy moved to New York Boulevard. Beckles testified that Gaston was first emploYed on the premises by •Fugazy I therefore find ,insufficient evidence to estab- lish that Gatson 'was employed by Shortway or Mainte- nance and Manpower prior to October 1978. Sylvester Green—Goza first -testified that Green was employed by Shortway before Fugazy appeared at New York Boulevard; he then changed his testimony to the effect that Green was not employed by Shortway prior to Fugazy; his final testimony was: "I don't think so." Beckles testified that Green came in with Fugazy, and Gibson testified that he did ,not remember if Green was there during the Maintenance and Manpower, period, "but -he was there for Shortway." On the , basis of the above, I find that the evidence does not support a find- ing that Green was employed ,by Shortway or Mainte- nance and Manpower prior to his-- employment with Fugazy. Clarence Drafts—Goza testified that Drafts was em- ployed by Shortway before Fugazy, and Beckles testified that Drafts was employed by Shortway before and after the Fugazy buses appeared in the summer of 1978. I therefore find that Drafts was employed by Shortway • prior to Fugazy. Raymond, O'Kelly—Both Goza and Beckles testified that O'Kelly was not employed at New .York Boulevard prior to Fugazy; Gibson testified that he did- not recall the. name. I therefore find that he was not . employed at New York Boulevard prior to Fugazy. - V .,• • _ Fred Waring—Goza first, testified that he thought _Waring was employed. by Shortway prior to Fugazy, he later testified . "I don't know" whether Waring was em- ployed by Shortway before Fugazy. Gibson and Gon- zales testified .that they could not remember Waring.. .I therefore find that he was not employed at New York Boulevard prior to his employment with Fugazy. •'' Laval Alexander and Calvin Morris—Beckles -testified that both Alexander and Morris were employed by Shortway prior to Fugazy; this testimony is imcontra- dicted, and I so find: There was also' testimony regarding ' the Maintenance employees, which includes mechanics. Everad Vassel—Goza testified that Vassel was-not em- ployed by Shortway prior to Fugazy, but' Beckles testi- fied that Vassel was employed for a short while before the Fugazy buses , arrived at New York Boulevard in the summer of 1978. Although I have generally credited Goza's testimony and memory over that of Beckles, since Vassel and the other individuals disciissed - below are maintenance employees whom Beckles worked more, closely with, I will credit him where there is 'a conflict herein, and I therefore find that Vassel Was employed by Shortway prior to Fugazy. . AIRPORT BUS SERVICE 591 Michael Wilson—Only Goza testified regarding Wilson and he testified that Wilson was -employed by Shortway prior to Fugazy, and I so find. Jimmie Huff—Both Goza and Beckles testified that Huff was employed by Shortway prior to Fugazy, and I so find Horance Briggs and E. J. Vann—Beckles testified that both Briggs and Vann were employed by Shortway prior to their employment with Fugazy, and I so find -Jean Nicholas—Beckles 'testified that Nicholas worked for Shortway before and after the Fugazy buses arrived at New York Boulevard. The Fugazy check stubs for August 1978 through October 1978 show weekly stubs for Nicholas for August 9 through October 4, 1978, stat- ing "P/R Mechanic" The hourly pay rate was $4.50 an .hour 'and the number of hours worked ranged from 9-1/2 'to 27, averaging .about 18. hours per week. Counsel for Ftigazy might argue that this establishes that Nicholas was actually employed by Fligazy during this period and that Beckles incorrectly assurned that he' was employed by Shortway simply because he saw him at New York Boulevard. However, Beckles testified that Nicholas was employed by Shortway priOr to as well as after the ar- rival of the buses at New York Boulevard. Therefore, even if the check stubs indicate that he was employed by Fugazy beginning in August 1978, he could' well have been employed by Sliortway prior to that time when Fugazy did not own any of its own buses. Additionally, the check stubs indicate that Nicholas was only a part- time mechanic, he may have continued to work full time for ,Shortway during this period and this would corre- spond with Dern's testimony that during this period Green and Alan Dern were the only ones working on the Fugazy buses at New York Boulevard. I therefore find that Nicholas was employed by Shortway prior to his employment with Fugaiy Curtis Jordan=Beckles testified that Jordan Was not employed bY ShortwaY prior to ,Fugazy, and I so find. . In summary, there are 56 drivers, mechanics, and maintenance employees on the Fugazy of Connecticut payroll for the week ending October 15, 1978,. of this number, 17 were listed on the Airport payrolls from Oc- tober 1977 through January -12, 1978, 2 (Goza and Beckles) testified that they were employed by Mainte- nance and Manpower, 'Shortivay, or both; 2 (Phillip Brown and LeroYGillard) signed adthorization cards for Local 522 stating that they were employed ,by Mainte- nance and Manpower diking the period in question, and, finally, the testimony of Goza, Gonzales, Beckles, and Gibson establishes that 11 'additional- employees (Candy, Merchant, Drafts, Alexander, , Morrii,' yassel, Wilson, Huff, Briggs, Vann, and Nicholas) were employed by Maintenance and Manpower or Shoi-tway Charter prior to their employment with Fugazy. of Connectiêut. There- fore, a total of 32 of the 56 employees on the Fugazy of Connecticut payroll for the period ending October 15, 1978, were previously employed by Airport, Mainte- nance and Manpower, or Shortway Charter Finally, if Fugazy of Connecticut is found to be a suc- cessor' (rather than an alter ego) herein, it must be deter- mined whether it had knowledie , of the unfair labor Practices committed by its pedecessor employe?. Perma Vinyl Corp., 164 NLRB 958 (1967); Golden State Bottling Co. v. NLRB, 414 U.S. 168 (1973). Admittedly, Region 29 Of the Board did not file a proof of claim in the bank- ruptcy court with regard to .Airport'g unfair labor prac- tices untillune 1979. Additionally;counsel for Fugazy of Connecticut, in its brief, set forth that Fugazy Junior, in his testimony, denied _acquiring any knowledge of these unfair labor practices during negotiations for the ICC rights or otherwise. Although,-, as stated supra, I did not find Fugazy to be a credible or convincing witness, his testimony that he would have demanded of Holland a specific indemnification agreement in the purchase agree- ment of the ICC rights if he Were aware of the prior unfair labor practices-does ring true. The General Counsel, for his part, sets forth a number of factors that he alleges establishes knowledge (either actual' Or constructive) by Fugazy in June 1978 of the unfair labor practices committed by Airport. The bank- ruptcy court's docket for Airport contains the following relevant transactions prior to June 13; 1978; "5/9/78 Field -S/C • by attorney for Nationl Labor Relations Board re: for an order vacating the automatic stay. Ret: 6/20/78 at 10:30. Filing fee paid": "5/16/78 Filed affida- vit of 'service by attorney for Nat'l labor relations Board re: Si6 filed 5/9/78 Ret. 6/20 at .10:30"; "6/8/78 Filed Memorandum in support of complaint by attys for Na- tional Labor Relations Board re: 'S/C' filed 5/9/78. Ret: 6/20 at 10:30." Fugaiy Junior testified that he caused a .search to be made of the bankruptcy court's documents to determine Whether or not there Were Claims against any of the other Respondents involved herein and that the attorneys, Who '"I'm sure Used due diligence [report- ed to Fugazy Junior thatr.' ... there were no claims against' Holland [or Airport] at that time." • Additionally, the General Counsel points to Fugazy's employment in May 1978 of Dern in a managerial posi- tion, its early retention of Wagner to locate ICC rights that it could purchase, and its later and brief_ retention of Margolies, Dell, Roth. and Goldman as proof that it knew,-or should have known,' of the unfair labor prac- tices-committed by Airport One further matter that was never fully clarified is that Fugazy's cash disbursement book establishes two consec- utive checks having been issued by Fugazy on February 28, 1979, each in the amount of $15,000. The name in this bOok next to each of these checks is ."Shortway" fol- loWed by a question mark 110 In addition, the same cash disbursement book contains an' entry dated March 19, 1979, of another check payable to "Shortway" in the amount of $19,800. These three checks are carried for- ward to Fugazy's general ledger._Fugazy Junior testified that he .did not know 'What these, checks were for, but he knew that .Fiigazy did not purchase any buses from Shortway. He testified: "I have no' definite confirmation of what the checks are. My suspicion is that they might hak,e been the lease of some buses that we used." He tes- tified further that after they purchased the 12 P&W buses in 'July or August 1978 they -ordered 12 new buses 110 Another check listed in the cash disbursement book, $300 to a driver for ,Fugazy Continental, also,. has a cfuestion mark following the _ „ driver's name 592 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD from Motorcoach Industries in September. 1978, they an- ticipated that these buses would be delivered in February 1979, but they were not delivered until June 1979: "So, I would say that we leased buses during that interim period from Shortway." The price Fugazy paid for these buses was about $300 a day. XV. ANALYSIS A. Airport and Holland, Shortway Charter, Shortway Lines, Dell Bus, and Maintenance and Manpower as Alter Egos -' I Are Maintenance and Manpower, Shortway Charter, Shortway Lines, Dell Bus, and Holland separate corpo- rate entities from Airport or "merely a disguised continu- ance of the old employer?", Southport Petroleum Co. v. NLRB, 315 U.S. 100, 106 (1942). In Howard Johnson Co. v. Hotel & Restaurant Employees, 417 U.S. 249, '259 fn. 5 (1974), the Supreme Court referred to alter ego ,cases as involving "a mere technical change in the structure or identity of the employing entity, frequently to avoid the effect of the labor laws„ without any substantial change in its ownership or management." , The General Counsel, while alleging that Holland and the others are alter egos of Airport, admits that Holland never actually purchased , the stock of Airport. This makes an alter ego finding more elusive" 1 as the Board generally requires some identical ownership interests. These common ownership interests are usually, present, as the "typical" alter ego situation involves a unionized employer closing his operation and reopening as a non- union employer elsewhere or a unionized employer sell- ing his operation in a spurious transaction simply to re- lieve itself of its obligations under a union contract. Big Bear Supermarkets #3, 239 NLRB 179 (1978): 'NLRB v. Scott Printing Corp., 612 F.2d 783 (3d Cir. 1979); Denzil S. Alkire, 259 NLRB 1323 (1982). In the situation herein there is neither common ownership nor evidence that Airport operated under Chapter XI, and was adjudicated a bankrupt, simply to avoid its obligation to Local 875, although both Maintenance and Manpower and Fugazy of Connecticut happily took advantage of the situation in order to discard the Local 875 contract. The two principal Board cases on the issue of common ownership are Crawford Door Sales Co., 226 NLRB 1144 (1976), and Morton's I.G.A. ,Foodliner, 240 NLRB 1246 (1979). In Crawford Door, supra, the Board reversed the administrative law judge, who found no alter ego status: . . . because in his view identical corporate owner- ship is the sine qua non of alter ego status. We dis- agree. Clearly each case must turn on its own facts, but generally we have found alter- ego status where the two enterprises have "substantially identical" '" A very recent case, American Pacific Concrete Pipe Co, 262 NLRB 1223 (1982), found alter ego status absent commOn ownership and common management or supervision, stating (at 1226) "In point of fact, however, Ampac exercised a degree of control over Dean so as to oblit- erate any separation between them" In J M Tanaka Construction v NLRB, 675 F 2d 1029 (9th Cu- 1982), affg 249 NLRB 238 (1980), an alter ego finding was made where the common ownership was only 8 percent, although the remaining stock was owned by close relatives , management, business purpose, operation, equip- ment, , customers, and supervision, as well as owner- ship. Although the common ownership interest in Crawford Door, supra, was not a major one (one-half of a 33-per- cent interest) the Board made an alter ego finding be- cause the family involved controlled major interests in the company. In Morton's, supra, the Board affirmed the administra- tive law judge's finding of no alter ego status, stating (at fn. 1): A finding of alter ego status requires, among other factors, the presence of "substantially identical" ownership between two enterprises. Here, neither Blackburn Foods, Inc., which owned 82 percent of the outstanding stock in Respondent Clinton, nor any of the five individual owners of Blackburn is an investor in Respondent Sam & Ed's or is in any way involved in its ,operation. The only stockholder present in both enterprises is Sam Morton, who owned 18 percent of the outstanding stock in Re- spondent Clinton and who has a 30 percent interest in Respondent Sam & Ed's. His interests in both en- terprises, standing alone, are insufficient to establish "substantially identical" ownership. The Board then distinguishes Crawford Door, , supra, and stated (id.): Our dissenting colleague, however, would appar- ently require only that there be some ownership link between the two enterprises. But this would constitute an unjustifiable broadening of the alter ego doctrine and lead to a holding that enterprises with only limited similarities in ownership would be treated as alter egos, without other evidence that the new entity is but a disguised continuation of the former company. . . Such an extension would have the unwarranted effect of precluding the bona fide sale of a business to any new enterprise whose stockholders included one who formerly held a minor interest in the closed enterprise (here, Re- spondent Clinton), since in all those situations there would be some continuity of direction and control. 'Although Holland never purchased the Airport stock, it had no need to do so, as it appears that from June 1976 through January 24, 1978, Airport was run by, and for the' benefit of, Holland. Admittedly, Holland asked Mar- golies to investigate Airport on its behalf, which he did. Although I do' not credit Margolies' testimony that he simply walked into Building 69 and annomted himself with the title of president, it is clear that during the fol- lowing 19 months he ran Airport. During this same period, Margolies was, at times, secretary and president of Holland, the chairman of Holland's board of directors, and a shareholder of Holland. In addition, Margolies , agreed to assume the post at Airport at the urging of Ca- pozzi and Wegerbauer, who fixed his salary as president of Airport at $900 a week. To further encourage Margo- AIRPORT BUS SERVICE 593 lies to take the job, Holland gave him a large advance of money which was repaid directly to Holland by Airport at the rate of $500 a week out of Margolies' $900-a-week salary. Neither Holland nor Margolies made a secret of its control of Airport; Margolies testified before the bankruptcy court that Holland approached a bus compa- ny it had previously given charter business to, and said, "[H]ey, we are now in business in New York." Addition- ally, Margolies, in the summer of 1976, told a large number of Airport's drivers that he was the sole owner of Airport and Shortway, mentioning Holland as well. Furthermore, in a meeting in the fall of 1977, Margolies gave the representatives and shop steward of Local 875 a diagram showing Airport, Dell Bus, Shortway Lines, and others as subsidiaries of Holland and told the Local 875 representatives that Dell was the general manager in charge of Airport's dispatchers and drivers and Dern was the head dispatcher. In addition, there was substantial amount of business dealings between Holland and its subsidiaries and Air- port during this period. Holland purchased 15 of the buses Airport was operating and leased them back to Airport; by March 1977, Airport was paying Holland $33,500 monthly for the rental of blges From October 20, 1977, through January 18, 1978, Airport made pay- ments to Holland for bus rentals and other items in excess of $200,000, and, beginning in March 1977, Air- port paid Wagner, then Holland's secretary, $250 a week as "transportation consultant." In 1976, Holland obtained charter work for Airport and in late 1977 Holland lent $28,000 to Airport and, a week later, lent Airport money in a "revolving fund." When Airport was experiencing difficulty with its landlord and was in need of a new garage, Holland (and Paulding) purchased Dell Bus and New York Boulevard; the agreement was signed on Holland's behalf by Margo- lies as president; Airport occupied New York Boulevard from October 1977 through January 24, 1978, although it was never established at the hearing that Airport paid any rent for the use of the premises. Once Airport moved to New York Boulevard all operations merged into one; this is not surprising since at that point Holland owned Dell Bus and Dell and Dern were salaried em- ployees of Holland who were entitled to a percentage of the profits of Holland's New York operation. Vehicles marked "Airport," "Shortway," 1 12 "Dell Bus," and "Browns" were all being operated by Airport's drivers, and many of the Dell Bus drivers found that they were employed by Airport after October 1977. When Dell Bus was awarded the Parking Lot 7 work by the Port Au- thority, they continued to use the buses that Airport had previously used on that work, and Lyons, an Airport employee, continued to service these vehicles. Lyons, Wing, and Andrews, Airport mechanics, worked, on Air- port, Dell Bus, and Shortway buses during this period. An example of the commingling of the different oper- ations at New York Boulevard is illustrated by Goza, 112 I find that these were buses owned by Shortway Lines, Petta testi- fied that the registration on these buses was in the name of Shortway Lines This is reasonable, as the other company with a similar name Shortway Charter, was a broker and owned no buses of its own Appar- ently, these were the buses Holland leased to Airport who filled out employment applications for Airport, Maintenance and Manpower, Shortway Charter, and Fugazy of Connecticut. Further, after Airport was adju- dicated a bankrupt, a number of Airport employees were initially unable to obtain their paychecks for their time worked. Shortly thereafter, a number of these Airport employees were paid with Maintenance and Manpower checks. Between October 1977 and January 24, 1978, all the drivers at New York Boulevard were dispatched by Wurth and Gaynor, Airport's supervisors from Building 69, Stokes, from Dell Bus, and Dern. The extent of the mixture of the operations and labor relations of these companies is illustrated by the two letters sent by Mar- golies to Lyons late in October and early in November 1977. These letters are in answer to grievances filed by Local 875, and, on both, copies were sent to Dell. The period prior to the adjudication is illustrative of the control Holland exerted over Airport and the fact that Airport was really being operated for the benefit of Holland. Shortly before the adjudication, Holland in- formed Margolies that it wished to purchase Airport's assets (actually the ICC rights were, in all probability, the only assets of any value that Airport owned) if Air- port was about to be adjudicated a bankrupt. When it became clear that Airport had no choice and would be adjudicated a bankrupt, Margolies informed Holland of this approximately 10 days prior to the adjudication. Holland then purchased, with the court's approval (the day before the adjudication), Airport's assets for $50,000; 5 months later Holland sold the ICC rights to Fugazy for $250,000, clearly illustrating how valuable an "inside track" can be. In addition, Shortway Charter opened a bank account on January 4, 1978, 3 weeks prior to the adjudication, apparently in preparation for the death of Airport. . After the adjudication, Margolies, together with his management people from Airport, operated a bus charter service and crew operations at New York Boulevard under the name Shortway Charter, using Shortway Lines buses. Both companies are wholly owned subsidiaries of Holland. Margolies alleges that Shortway Charter em- ployed no employees of its own during this period, but rather was provided with drivers and mechanics by Maintenance and Manpower; it is difficult to ascertain the truth of this allegation as neither Shortway Charter or Maintenance and Manpower was able to produce any records to substantiate this claim At the same time, Dell was running a crew operation and operating Mainte- nance and Manpower out of New York Boulevard Dern testified that neither he nor Dell owned any stock in Maintenance and Manpower, although he did not know who did own its stock. Margolies testified that Holland owned no stock in Maintenance and Manpower, and Strauss (who became its president at the request of Dell) also provided little assistance in determining the owner- ship of Maintenance and Manpower. However, Margo- lies and Strauss did testify that Dell set up Maintenance and Manpower and was the man behind it, and the busi- ness account application for the bank refers to Holland as its parent; also it paid the last paychecks to some of 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Airport's employees. In addition, it had the same control- ler as Shortway Charter (Roth), and was registered by Wagner's law firm, its agent for the service of process. Finally, Dell was in charge of Maintenance and Man- power while being employed by Holland pursuant to the August 24, 1977 agreement. On the basis of the above, I find that Maintenance and Manpower was in all proba- bility owned by Holland, but was certainly operated by, and on behalf of, Holland. From January . 24 through at least June 1978, the com- bined operations at New York Boulevard were the same as the period prior to January 24, 1978, except that some of the company names had been changed. The employ- ees who remained, and the new employees who were hired, performed charter work and crew work using ve- hicles marked "Airport," "Shortway," and "Dell Bus," as they had been doing since October 1977, and were dispatched by the same individuals who had dispatched . for Airport and Dell Bus both before and after October 1977 The interchange of employees that began in Octo- ber 1977 continued. The degree of interchange is illus- trated by Goza's log, during his first 4 days he listed Dell Bus, as the carrier, between February 5 and October 10, 1978 (the day he was informed that Fugazy was his employer) he listed "Shortway," "Shortway Lines," and "Shortway Charter" as the carriers. On the basis of all of 'the- above, I find that Holland, Shortway Charter, Shortway Lines, Maintenance and Manpower, and Dell Bus were alter egos of Airport; al- though there was never ownership of Airport by Hol- land, the degree of control Holland exercised over Air- port by having its chairman of the board secretary, and/or president as the president of Airport made the actual Ownership of Airport unnecessary. Since Airport was being operated for Holland's benefit there was no need for Holland to expend a large sum of money in order to purchase its stock. Shortway Charter and Dell Bus are alter egos, because, in addition to being subsidiar- ies of Holland, together they assumed Airport's ' 'Oper- ation after January 24, 1978, with some of Airport's em- ployees and the buses that Airport used. Shortway Lines , is an alter 'ego because, in addition to being a subsidiary of Holland, its buses were constantly intermingled with Airport's buses in Airport's operation from the summer of 1976 through January 24, 1978, and the period there- after through about June 1978 The General Counsel also alleges in 'the alternative l'that these cOmpanies constitute a single integrated busi- ness enterprise The Supreme Court in Radio Union v. Broadcast Service, 380 U.S. 255 (1965), set forth the mite- ' ria for determining whether , several nominally separate business entities constitute a single integrated business en- terprise: interrelation of operations, common manage- ment, centralized control of labor relations, and common ownership.' In Operating Engineers Local 627 v. NLRB, 518 F 2d 1040 (D.C. Cir. 1975), the court stated. [W]e conclude that "single employer" status, for purposes of the National Labor Relations Act, de- pends upon all the circumstances of the case, that not all of the "controlling' criteria" specified by the Supreme Court need be present In NLRB v. Triumph Curing Center, 571 F.2d 462, 468 (9th Cir: 1978), the court stated: "The Board has deter- mined that no single criterion is controlling, although it considers the first three, which evidence operational inte- gration, more critical than the feurth, common owner- ship." See Iliyar Construction Co ., 240 NLRB 102, 104 (1979). In Gerace Construction, 193 NLRB 645 (1971), the Board stated that the degree of common control of labor relations is a critical factor in this determination, and "such common control must be actual or 'active, as dis- tinguished from potential control:" There was a large degree of common control of labor relations among 'all these companies, except Holland, which has no employees. Theie was a large amount of interchange of employees among these companies (ex- cluding Shortway Lines, which' 'itself appeared to have only buses, not employees, regularly in the New York area) and Margolies and Dell were in charge of the labor relations policies of these companies; further evidence of this was that Margolies sent ,Dell copies of his letters to Local 875 -regarding certain grievances in October and November 1977 even through Dell held no formal posi- tion with Airport. Interrelation of operations and common management are clearly present herein, as dis- cussed supra. All that is missing is common ownership, but all the 'other factors being present, I find Airport, Holland, Shortway Lines, Shortway Charter, Mainte- nance and Manpower, and Dell Bus to be single integrat- ed business enterprises. Having found these companies to be alter , egos, and, in the alternative, single integrated business enterprises, I find it unnecessary to determine whether Holland, Main- tenance and Manpower, Dell. Bus, Shortway Charter, and Shortway Lines are also successors to Airport. • On the basis of all the testimony on the subject, I find that the following was said to the employees in the early evening on January 24, 1978: Margolies told them that the court had that afternoon declared Airport bankrupt, so that it was out of business, and either Dell or Margo- lies then said that any employees who wished to work could' drive crews for him under Maintenance and Man- power, while Margolies would only operate charter • work under the name Shortway. Dell (rather than Mar- golies) then informed the employees of the rates they would be paid (less than they had been paid under the Local 875 agreement) and that there would be no union representing them. Some of the employees accepted' this proposition and began working for Maintenance and Manpower; others refused to accept, and left. • • In making the above finding, I have generally credited the testimony of the employees over that of Margolies, Dern, and Strauss. The most difficult' pointin that regard was the finding that Dell told the employees that there would be no union in their future 'employment at Mainte- nance and Manpower. Maintenance and 'Manpower might arglie that Dell could not have said that because of the existence of the collective-bargaining agreement dated January 16, 1978, between Maintenance and Man- power and Local 522, which was a continuation of the : longstanding collective-bargaining relationship between Dell Bus and Local 522 going back to, at least, 1971, as AIRPORT BUS SERVICE 595 testified to by Dern. However, I do not credit Dern and, based on the testimony of the employees (but not Clif- ton), I would find that Dell Bus did not have any collec- tive-bargaining relationship with Local 522 between the expiration of the 1971 through 1974 agreement and the agreement dated January 16, 1978. I would discredit Clifton's testimony as it relates to Local 522 being his collective-bargaining representative after 1974; there were conflicts in this testimony .and it was unsupported by the testimony of any other employee A more difficult problem inherent . in this .finding that a number of the Local 522 authorization cards are dated , prior to January 24, '1978; therefore, it might be argued, if the General Counsel is alleging that Dell' di- rected Gibson to solicit these cards," 3 and some of the cards (as well as the Local 522 agreement) are dated prior to January 24, 1978, how can the General' Counsel also allege that Dell said at the January 24, 1978 meeting that there would be no union to represent the Mainte- nance and 'Manpower employees? Timing is the impor- tant factor here, and Gibson testified that it was some- time in January 1978, about 2 weeks to a month after he received his first check from Maintenance and Manpow- er, that Dell asked him to solicit the cards on behalf of Local 522. He also testified that over the next month he gave the Local 522 cards to his fellow employees. Based on Gibson's testimony, it is still not clear' whether , Dell approached Gibson before or after January 24, 1978, as it is not clear when Maintenance and Manpower issued its first paycheck, although Bertart testified that he did not receive his first Maintenance and Manpower' Check until January 24, 1978. However, six of the Local $22 authori- zation cards contain dates prior to January 24, 1978; these are the cards signed by Gibson, Neubra Smith, Hubert Howie, Johnny Eagle, Johnny Boyd, and Samuel Reilly. The dates on the cards of Gibson and . Smith are clearly in the same handwriting, and that handwriting is different from the handwriting . throughout Gibson's and Smith's authorization cards The handwriting on the other cards, as well, does not appear' to match the writ- ing where the card is dated, although the difference is not as clear as oh the cards of Gibson and Smith. De- spite these cards, I would maintain my prior credibility determination that Dell told the employees on' January 24, 1978, that there would be no union representation for them at Maintenance and Manpower. By thus condition- ing the employees' continued employment on their ac- ceptance of wages lower than those provided in the Local 875 agreement, and working without union repre- sentation, these Respondents violated Section 8(a)(1) and (3) of the Act Finger Lakes Plumbing Co., 253 NLRB 406 (1980) . - • On January 24, 1978, and thereafter, Airport, Shortway Charter, Shortway Lines, Maintenance and Manpower, and Dell Bus withdrew' recognition from Clearly, Dell's direction to Gibson to obtain signed Local 522'au- thonzation cards from the employees,'and his execution of the•collective- bargaining agreement with Local 522 (whether it took place before or after the cards were signed), constitutes assistance to Local 522 in viola- tion of Sec 8(a)(2) of the Act Say-on Drugs, 227 NLRB 1638 (1977) As this agreement contains a union-security clause it likewise violates Sec 8(a)(3) of the Act Local 875, refused to enforce the collective-bargaining agreement between Airport and Local 875," 4 unilateral- ly changed its terms and conditions, and refused to rec- ognize or bargain with Local 875 At the hearing herein, these Respondents did not allege any good-faith doubt of Local 875's majority status among its drivers and me- chanics; they therefore have violated Section 8(a)(1) and (5) of the Act.".3 B. Fugazy of,Connecticut as Alter -Ego I have made the 'findings, supra, that Holland, Mainte- nance and Manpower, Dell Bus, Shortway Lines, and Shortway Charter are alter egos of Airport despite 'the fact that there was no common ownership interest be- tween Airport and the others. As stated, I make this finding because, in my view, the degree of the control that these companies exercised over Airport made the actual purchase of Airport's stock unnecessary. The situ- ation with Fugazy of Connecticut is somewhat similar in' that there was no common ownership between Fugazy of Connecticut and of these other companies; however, because the degree- of control present with AirpOrt and the other Respondents is not present with Fugai.T . of Connecticut and Airport, I do not make such a finding herein. To be sure, there are many factors herein that satisfy the requirements set forth in Crawford Door and Morton's, supra; Fugazy paid no rent for its occupancy of New York Boulevard from about June 1978 through Jan- uary 1979, and made some unexplained payments to Shortway in the amount of almost $50,000; it employed Dern from May 1978 to the present time and Margolies and Dell for a shorter period as consultants on their entry into the bus business.. During the period from about June until about October 1978, there was some mixture of buses between Fugazy and Shortway Charter, and, during this period and continuing through part of 1979, Fugazy was leasing buses from Holland (Shortway Lines). In the June 13 and October 6, 1978 agreements, Fugazy of Connecticut purchased Holland's ICC rights and appears to have purchased all of Holland's New York operations, but there is no evidence that these agreements were anything other than arm's-length trans- actions; Holland, after all, made $200,000 profit on the ICC rights after holding them for less than 5 months. Fi- nally, there is the progression of telephone numbers often beginning with Airport, being changed to Shortway Charter, and then later being' changed to Fugazy of Con- necticut. However, this is not necessarily proof of alter ego status; rather, it appears more as a business decision "4 As this agreement was never disaffirmed by the 'bankruptcy court, the bankruptcy cannot be used as a defense herein In re Handy Andy, Inc , 109 LRRM 3298, 97 LC 10,265 (Bankr W D Tex Mar 15, 1982) " 5 Although I find that these Respondents violated Sec 8(5) of the Act by refusing to recognize and bargain with Local 875, I will not issue an order requiring them to do so Shortly after January 24, 1978, Stolfi informed Petta that because another Teamsters Local was involvedLocal ,875 would not demand recognition of Maintenance and Manpower-Dell Bus-Shortway Charter-Shortway Lines, and in August 1980 Local 875 in- formed the Board that it had no interest in representing these employees I will therefore not engage in the futile act of ordering these employers to recognize and bargain with Local 875 due to its unwillingness to par- ticipate- in such actions, and the General Counsel is in agreement with this 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD •to continue the telephone number being used by another bus company • in the hope of acquiring some business from customers calling that company, unaware that' they were no longer is existence. On the other hand, there is substantial evidence that Fugazy was a company separate and distinct 'from the others; prior to June or July 1978, Fugazy had its oper- ation at Jamaica Avenue, rather than New York Boule- vard, and between that time and October 1978, they were each engaged in bus' charter operations, competing on a minor scale (as Shortway Charter was then winding down its operation). In addition, while Flugazy and Shortway Charter were both located at New York Bou- levard there was a substantial separation of their oper- ations, both maintenance and driving, and one interesting result of that separation was the friction that developed between the Shortway Charter drivers and the Fugazy _ drivers over the superior condition of the Fugazy buses. Finally, Fugazy of Connecticut operated the , line run to Connecticut, the Atlantic City run (which accounts for a „substantial amount of its total business), and charter work . for professional athletic teams—work that neither Air- port nor the others ever performed. I therefore find that Fugazy of Connecticut is not an alter ego of Airport, Holland, Maintenance and Manpower, Dell Bus, Shortway Charter, or Short-way Lines. C. Fugazy of Connecticut as Successor In NLRB v. Burns Security Services, 406 U.S 272, 281 (1972), the Supreme Court stated. • But where the bargaining unit remains unchanged and a majority of the employees hired by the new employer are represented by a recently certified agent there is little basis for faulting the Board's im- plementation of the express mandates of § 8(a)(5) and § 9(a) by ordering the employer to bargain with the incumbent union. Since Burns, the Board and courts have attempted to de- termine whether the ,"employing industry" remained sub- stantially the same. Border Steel Rolling Mills, 204 NLRB 814 -(1973). ‘Clearly, the most important factor in this regard is whether a majority of the alleged successor's work- force had previously• been employed by the predcessor. Stewart Chevrolet, 262 NLRB 362 (1982). In Pacific Hide & Fur Depot v. NLRB, 553 F.2d 609 (9th Cir. 1977), the court, although refusing to enforce a Board Order, stated: - . The decisions require that, in such a case [allega- tion of successorship], and absent a refusal to hire because of_ union animus, a majority of the work force' of the purchasing employer in the unit be - former' employees of the seller in that unit. If that is the case, there is a duty to bargain, it being assumed that the holdover majority continues to. desire rep- resentation by the union. Additional, factors to be considered are whether the business itself has remained substantially the same and at the same location, basically, with the same supervisors, machinery, and product. Blazer Industries, 236 NLRB 103 (1978); Stewart Chevrolet, supra. ' The General Counsel has initially sustained his burden by establishing that- a majority of the employees of ' Fugazy of Connecticut on its October '15, 1978 payroll (which is reasonably representative of its payrolls in that period) had previously been employed by Airport or its alter ego Maintenance and Manpower and Shortway 'Charter. The remaining additional issue, therefore, is whether the employing industry remained substantially the same between Airport and Fugazy of Connecticut. In Woodrich Industries, 246 NLRB 43 (1979), the al- leged successor reopened the plant after a 3-week hiatus with 59 employees, 40 of whom had been employed by the predecessor when it ceased operations. At the time the alleged successor reached its full complement of em- ployees, 3 weeks later, 95 employees were employed; either 43 or 53 of them had been employed by the prede- cessor when it ceased operating. Neither the administra- tive law judge nor the Board reached the issue of wheth- er a majority of the successor's employees had previous- ly been employed by the predecessor; rather, they found that there was no successor obligation, reasoning: "Based on the foregoing factors, we conclude that, on balance, the nature and character of the employing industry has been sufficiently altered so that Respondent is not a suc- cessor to Murcel " The "foregoing factors" the Board considered were whether there was substantial continuity in operations, location, work force, working conditions, supervision, machinery, equipment, methods of produc- tion, product, and services. On Airport's last payroll, the dispatchers are listed as Wurth and Gaynor, in addition, there was testimony that Stokes (who is listed on this payroll with the drivers) and Dern ,.also dispatched for Airport. Neither Wurth nor Gaynor is listed on the Fugazy of Connecticut pay- roll for the week ending October 15, 1978; Stokes and Dern were dispatching for Fugazy of Connecticut at that time, as was Canady. Fugazy of Connecticut is operating out of New York Boulevard, the same location as Airport; when Fugazy of Connecticut commenced operations, it operated with some of its own buses (the P&W buses) and some of the buses previously used by Shortway Charter and Airport, which it leased from Holland. It was not until the deliv- ery .of ,the Motorcoach Industry buses in mid-1979 that Fugazy of Connecticut operated entirely with buses that had never been used by Airport. The testimony of a number of employees regarding the friction between the Shortway Charter and Fugazy drivers due to the better quality buses the Fugazy drivers were operating indi- cates that the working conditions at Fugazy of Connecti- cut may have been somewhat better than the conditions at Airport. ,Finally, a comparison of- the operations of the two reveals that Airport performed charter work, crew :work, and work for the airlines transporting passengers to hotels or other locations at the Airport Fugazy of Connecticut also performs this type of work, but, unlike Airport, this doe's not constitute its entire operation. Most importantly, it operates the Atlantic City line run, which Airport never operated; for 10 months in 1979 it AIRPORT BUS SERVICE 597 operated a Connecticut line run from the airports, which Airport never operated; and it performs charter work for professional athletic teams, which Airport never per- formed On the basis of all of the above factors, most especially the tact that a majority of the Fugazy • of Connecticut employees on October 15, 1978, had previously been em- ployed by Airport or its alter egos I find that the nature and character of the employing industry has not been sufficiently altered for Fugazy of Connecticut to evade its successorship obligation. Woodrich Industries, supra. Although there are differences between the operation of Fugazy of Connecticut and Airport, these differences are not substantial enough. Although Fugazy of Connecticut at one time, operated the line run to Connecticut, now operates the line run to Atlantic City, and since mid-1979 has operated a fleet of buses completely different from Airport, the employment responsibilities of its drivers and mechanics is substantially similar to what it was when they were last employed by Airport on January 24, 1978: I therefore find that Fugazy of Connecticut is a successor to Airport 116 Having found that Fugazy of Connecticut is a succes- sor to Airport, it was bound to recognize and bargain in good faith with Local 875. Burns, supra. It did not do so and therefore violated Section 8(a)(5) of the Act, al- though no remedy will be ordered to remedy this as Local 875 has disclaimed any interest in these employees, supra. Being a successor, rather than an alter ego, of Air- port, Fugazy did not violate the Act by its refusal to comply with the terms of the -Airport-Local 875 collec- tive-bargaining agreement. Burns, supra. Fugazy of Connecticut's Responsibility for Unfair - Labor Practices Committed by Airport Having found that Fugazy of Connecticut is a succes- sor to Airport, it must next be determined if it is obligat- ed to remedy the unfair labor practices found herein.'" In Perma Vinyl Corp, 164 NLRB 968 (1967), enfd. sub nom. United States Pipe & Foundry Co. -v. NLRB, 398 F.2d 544 (5th Cir. 1968), the Board stated (164 NLRB 968). [W]e are persuaded ihat one who acquires and op- erates, a business of an employer found guilty of unfair labor practices in basically unchanged form under circumstances which charge him with notice of unfair labor practice charges against his prede- 116 The collective-bargaining agreement between Fugazy of Connecti- cut and Local 819 was executed on June 14, 1978, at a time when It had no employees Although this would ordinarily be a clear violation of Sec 8(a)(2) of the Act, no unfair labor practice charge was filed against Fugazy of Connecticut until May 7, 1979, almost 11 months later In ad- dition, no evidence was adduced by the General Counsel that the exist- ence of this collective-bargaining agreement was concealed by the par- ties Hot Bagels & Donuts, 227 NLRB 1597 (1977) Nor is there a continu- ing violation herein, such as an allegation of a members-only contract Schorr Stern Food Corp, 227 NLRB 1650 (1977) This allegation is there- fore barred by Sec 10(b) of the Act- and is dismissed Machinists Local 1424 v NLRB, 362 U S 411 (1960) ' 117 Having found that Holland, Maintenance and Manpower, Dell Bus, Shortway Lines, and Shortway Charter are alter egos of Airport, they are liable to remedy its unfair labor practices cessor should be held responsible for .remedying his predecessor's unlawful conduct. . • This was followed by Golden State Bottling Co. v. NLRB, supra, where the Supreme Court affirmed the court of appeals decision _which affirmed the Board. Order (at 187 NLRB 1017 .(1971)) which held that a suc- cessor employer, 'which purchased the predecessor's op- erations with knowledge of its unfair labor practices, was bound to remedy those unfair labor practices.. In Am--Del-Co., Inc.,' 234 NLRB 1040, 1041 (1978), the Board stated. "It is' well settled that the responsibility of establishing that a new employer was without knowledge of its predecessor's unfair labor practices at the time it took over - the latter's operation rests. with the alleged successor:".. On the basis of the above, the burden is on Fugazy of Connecticut to establish lack of knowledge; as Perma Vinyl, supra, refers to "under circumstances which charge him with notice," this need not be actual knowl- edge; it is enough if the successor knew or should shave known . The strongest evidence of knowledge by Fugazy of Connecticut- are the three notations in 'the .bankruptcy docket, dated May 9 and 16 and June 8,4978, referring to actions by the Board in the proceeding. Fugazy Jr. testified that he had his attorneys search the, bankruptcy court's documents prior to June 13,4978, for-any claims against Airport, and he was sure they used due diligence, but did not advise him' of any such claim As stated, supra, I did not find Fugazy Junicir to be a credible wit- ness and would find that, even if his attorneys did not catch them, these pre-June 13, 1978 notations were ade- quate to put Fugazy of Connecticut on notice of the unfair läbor practices committed by Airport In 'addition, a month prior to its purchase of the ICC rights, Fugazy hired 'Dern, who was present at New York Boulevard during the period when the unfair labor' practices oc- curred, and, in faCt, 'was present at a 'number of the meet- ings conducted on January 24, 1978. Although I do not impute knOwledge to •Fugáiy simply by its employment of Dern in a managerial .position, it is not unreasonable to assume- that, - in the month Dern Was emploYed by Fugazy prior to the June 13 agreement, he discussed the earlier events that occurred at New York Boulevard with representatives of Fugazy, I do not consider herein Fugazy's subsequent' employment of Dell, Margolies, or others previously associated With Airport as imputing knowledge to Fugazy as these events oCcurred subse- quent to the purchase of Airport's ICC rights. I therefore find that Fugazy of 'Connecticut has .riot met its burden ,herein, and is therefore liable' for remedy- ing the unfair labor practices Committed by its predeces- sor, Airport. XVI. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth above in sections IV through XV, occurring in connection with the.Respondents'. operations described above in section I, have a close, intimate, and substantial relationship to trade, traffic, and conimefce among- the several States and tend to lead to labor disputes burdening and ob- structing commerce and the free flow thereof. • CONCLUSIONS ;OE LAW 1, • • • . . 1. The Respondents are each einployerrs'" engaged in commerce within the meaning of Section 2_(2),' (6); and (7) of the Act. ." 2. Local 875, Local 522, and Local 819 are - each labor organizations within the 'meaning of Sectioti 2(5)" Of the 'Act. 3. Holland, Shortway Charter, ShortwaY- Lines;' Dell Bus, and Maintenance and Manpower are alter egos of Airport. . • 4. Airport, Holland, ShOrtway ;Charier, Shortwdy Lines, Dell Bus, and Maintenance and Manpower consti- tute a single integrated business enterprise.,-",- ' 5. Fugazy'of Connecticut is a successor te the 'business operation of' Airport. 6.- Respondents Airport, Holland, Shortway Liries, Shortway Charter, Dell Bus, Maintenance and- Manpow- er, and Cross County violated Section 8(a)(2) of the Act ''by: , (a) Assisting Local 522 in obtaining signed Authoriza- tion cards from its employees. • (b) The execution of the collective-bargaining agree- ment dated January 16, 1978, with Local 522, at :a time when Local 522 did not represent an uncoerced majority of the employees. , . . 7 Respondents Airport, Holland, Sliortway: Lines, Shortway Charter, Dell Bus, Maintenance and Manpow- er, and Cross County violated Section 8(a)(3) of the,Act by: - , , , (a) The execution of the collective-bargaining agree- ment dated January _16, 1978, with Local- 522, saidagree- ment containing_ a union-security clause requiring mem- bership in Local 522 as,a condition of employment. (b) Conditioning employment of Airport's . employees upon the employees' accepting wages, arid other terms and conditions .of employment, lower, than those provid- ed by the Airport-Local 875 collective-ba-rgaining agree- -merits dated December 29, 1976, and by the,,employees' relinquishing their right to union representation: 8. Respondents AirpOrt, Holland, ,Shortway—IlLines, Shortway ,Charter., Dell Bus, Maintenanee,and Maripow- . er, and Cross County have violated Section 8(a)(5) of the Act by failing t6 recognize and bargain with Local 875 , on 'January. 24, ..1978, • and ,thereafter, bY _refustng, to en- force 'the terms and conditions -of employment as speCi- fled in the collective-bargaining agreements dated De- cember 29, 1976, between Airport and LoCal , 875, and by unilaterally changing the terins and" COnditions of em- ployment of the employees in the bargaining unit co y- . ered by these agreements 9. Respondent Fugazy of Connecticut viOlated-Section 8(a)(5) of , the Act by fading and refusing to recognize and bargain with LOcar 875. , THE REMEDY T • `_ 'Ha'ving found that the Respondents . have engaged in certain unfair labor praCtices, I shall 'recommend that they be required 'to Cease and desist therefrom and to ,598 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD ; take certain affirmative action designed -to effectuate the policies of the Act. - , I have found that Respondents Airport, Holland, Shortway Lines, Shortway Charter, Dell Bus, Mainte- nance and Manpower, and Cross County have, inter alia, violated Section 8(a)(3) of the Act by failing to' employ Certain of Airport's employees on or after January 24, 1978, becauSe they refused to accept terms and condi- tions of employment less than those provided in the Air- Port-Local 875 collective-bargaining agreements dated • Decerhber 29, 1976 : I have also found that these Re- spondents conditioned continued employment on the em- ployees' relinquishing the right to union representation; employees who refused to accept employment on this • basis are also 8(a)(3) discriminatees., As regards these two classifications of employees, I shall_ recommend that the .Respondents each be, ordered to offer , them immediate and .full reinstatement to their former positions or, those positions no longer exist, to substantially equivalent . jobs, without prejudice to their .seniority or other rights and privileges, and to make them whole for any loss of earnings suffered as a result of the discrimination by pay- _ ment of a sum equal to that which they would have earned, absent the discrimination, with backpay and in- terest computed _in accordance with F. -W Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977).118 As to those employees 'who accepted the employment offer of January 24, 1978, 119 shall recommend that all of the Respondents reimburse them for the difference be- tween what they received in their employinent with Maintenance and Manpower or _Shortway Charter and what they lawfully should have .been paid pursuant to the collective-bargaining agreements 'dated December 29, 1976, between Airport and Local 875, also with interest computed as stated supra. As discussed supra, although I ' 'have' found* that these Respondents unlawfully, refused to recognize or bargain with- Local 875, no -order .will- be 'entered in that regard as Local 875 disclaimed any inter- est in these employees I have found that the execution, maintenance, and en- forcement of the collective-bargaining agreement dated January 16, 1978, bet,Xeen Maintenance and Manpower • and Local 522 violated Section 8(a)(2) and (3) of the Act. As the employees paid dues to Local 522 pursuant . to the union-security clause of this agreement (the 8(a)(3) violatiOn), I will recommend that all the Respondents be ordered to reimburse the employees for the dues paid to , Local 522. [Recommended Order and fns. 120 through 123 omit- ted from publication.] • • " 8, The names of these individuals are attached hereto as "Appendix A" The list was compiled from the General Counsel's further response to the Respondents' demand for a bill of particulars, as "the names of em- ployees discharged by Respondents on January 24, 1978" 'Due to the absence of Maintenance and Manpower and Shortway Clirter at the heanng, the parties were unable to determine the names of these individuals, this will be left for a supplemental proceeding AIRPORT BUS SERVICE 599 SUPPLEMENTAL DECISION IN BACKPAY SPECIFICATION Consolidated with the above matter was the backpay specification to determine the amount of backpay due to Hokick White which would make him whole for his losses resulting from his discharge on August 13, 1976. This discharge Was found to be unlawful in a decision of Administrative Law Judge Karl H. Buschmann dated September 20, 1977, 124 which decision was affirmed by the Board (no statement of exceptions having been filed) by Order dated November 1, 1977. The Board's Order was enforced by the court on September 19, 1978 125 I. BACKGROUND White had been employed as a bus mechanic for Air- port from 1969 through July 2, 1972, when he was laid off by Airport. During that period Airport subcontracted a number of its smaller crew jobs to Clayton Wynn, d/b/a Wynn V.I.P., herein called Wynn, among others; during this period Wynn also performed repair work, ex- clusively for Airport, utilizing Airport's facilities at Building 69. On August 1, 1976, Wynn employed White as a mechanic. On August 9, 1976, White filed an unfair labor prac- tice charge with the Board alleging his discharge by Air- port as unlawful. The administrative law judge found that Wynn discharged White on August 13, 1976, at the demand of Margolies, in retaliation for White's filing the charge with the Board in violation of Section 8(a)(1, and (4) of the Act. II FACTS AND ANALYSIS White was the only witness testifying in this portion of the proceedings, and he testified credibly, often support- ed by forms, pay stubs, or letters provided by his em- ployer or former employers While employed by Wynn he performed mechanical work for 40 to 50 hours weekly and was paid approximately $180 for this work. During the same period he performed crew work for Wynn as well; the hours worked varied depending upon the flight schedules, but White averaged about $125 a week in earnings for this work. From the date of discharge (August 13, 1976) through early 1977 White was unemployed. White testified that except for a 1-month period in about September 1976, when he was unavailable for work due to his mother's illness, he made a diligent search to obtain employment during this period. He testified regarding visits (once or more than once) to approximately 17 employers in an effort to obtain employment. He obtained employment at Chad Operating Corp. (Chad) during the first quarter of 1977 and he continued his employ at Chad until early in the fourth quarter of 1977, at which time he was dis- charged. Approximately a week or two later 126 White 129 Wagner was counsel for Airport in the matter 125 The court's Order is addressed to "Respondents, Airport Bus Serv- ice, Inc , and Clayton Wynn d/b/a Wynn V I P Limousine Service, their officers agents, successors, and assigns 126 his employ with Chad, this is the only period during which White has been unemployed obtained employment at Mala Industries, Inc. (Mala). Sometime about the end of December 1977, Mala ceased its business operations and within a few- days White ob- tained full-time employment with Salem Transportation Co. (Salem). About January 1978 White obtained addi- tional employment at Servair Maintenance, Inc (Servair) where he was employed for approximately 32 hours a week 127 At that time, and throughout the period that White was employed by both Salem and Servair, his hourly rate of pay at Salem was approximately 20 per- cent higher than that of Servair. When White began this period of employment at both Servair and Salem his hours at ,Servair were 7 a.m. to 3 .30 p.m., while his hours at Salem were from 4 p.m. to midnight. Thereafter,, about June 1979 Salem changed White's working hours to midnight through 8 a.m. When this conflict arose White chose to remain at Servair because they "had more to offer to me. It had better benefits . . . coverage and everything "128 About a week later (the week ending June 17, J979) White obtained additional employ- ment at Schenck/Universal Bus Corp. (Schenck); he was employed there through the week ending September 16, 1979, working from 10 to 22 hours a week. From the fourth quarter of 1979 through the fourth quarter of 1980, White was employed only by Servair. Respondent Fugazy of Connecticut in its brief here did not cite any specific defenses to this backpay specifica- tion; however, from its cross-examination of White during the hearing it appears that its defenses are that White did not ,make a reasonable effort to obtain work between the time of his 'discharge and his employment at Chad, and that he was not sufficiently diligent in at- tempting to locate a high-paying job. The applicable legal principles, as stated in Aircraft & Helicopter Leasing, 227 NLRB 644, 646 (1976), are as fol- lows: An employer may mitigate his backpay liability by showing that a discnminatee "wilfully incurred" loss by a "clearly unjustifiable refusal to take desira- ble new employment." (Phelps-Dodge Corporation v. IV.L.R.B., 313 U S. 177; 199-200 (1941)), but this is an affirmative defense and the burden is upon the employer to prove the necessary facts NL.R.B. v. Mooney Aircraft,- Inc., 366 F.2d 809, 813 (CA. 5, 1966). The employer does not meet that burden by presenting evidence of lack of employee success in obtaining interim employment or of low interim earnings; rather, the employer must affirmatively demonstrate that the employee "neglected to make reasonable efforts to find interim work." 1V.L.R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569, 575-576 (C.A. 5, 1966). Moreover, although a dB- . 127 The compliance officer for the Region testified that because White worked 20 to 25 hours overtime for Wynn they established a 5/8 ratio and determined that Wynn and the other Respondents were entitled to a credit of 5/8 of White's earnings at Servair while he was also employed at Salem Therefore, during the period of the first quarter of 1978 through the second quarter of 1979, 5/8 of White's earnings at Servair are credited to the Respondents as interim income 1 " At the time of the hearing White's salary at Servair was $606 an hour, and he was paid time and a half for ov ertime and holidays 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD criminatee must make " reasonable efforts to miti- gate [his] loss of income . . [he] is held . . . only to reasonable exertions in this regard, not the high- est standards of diligence." 1V.L.R.B. v. Arduini Manufacturing Co., 394 -F.2d 420, 422-423 (C.A. 1, 1968). Success is not the measure of the sufficiency of the discriminatee's search for interim employ- ment; the law "only requires an honest good faith effort." NL.R.B. v. Cashman Auto Company, 223 F.2d 832, 836 (C.A. 1, 1955) And in determining the reasonableness of this effort, the employee's skill and qualifications, his age, and the labor conditions in the area are factors to be considered. Mastro Plas- tics Corp., 136 NLRB 1342, 1359 (1962). Fugazy of Connecticut has not met this burden; White credibly testified to visiting numerous employers in his attempts to obtain employment from the date of his dis- charge to his employment at Chad. These attempts clear- represent, at the least, a reasonable effort to obtain employment. Fugazy of Connecticut also appears to defend on the ground that White is working fewer total hours than he did at Wynn and that since he commenced full-time em- ployment at Servair he has not looked for higher paid employment elsewhere, nor has he looked for additional employment to supplement his earnings at Servair. Fugazy might defend that since White, while employed by Wynn, had worked approximately 70 hours a week, and that is the amount of hours worked that his gross backpay is computed on, he is obligated to obtain em- ployment working a comparable number of hours in order to mitigate backpay; i.e., that since- he was credited with this amount of hours he should be required to obtain employment involving the same number of hours worked. I find it unnecessaryto decide this question; for a period of almost a year and a half White did work at two jobs simultaneously—Salem and ,Servair—one full time and one almost full time, and the Respondents were given credit for a portion of these overtime hours. It was only after Salem changed his working hours, so that they conflicted with his hours at Servair, that he terminated his employment at Salem. In what I find is an illustration of White's good faith, at that time, June 1979, he ob- tained part-time employment for the next 3 months with Schenck. Since that time he has been employed solely by Servair full time, working overtime when available. An employee is held only to "reasonable exertions" in his duty to mitigate backpay and is not held to the "highest standards of diligence." NLRB v. Arduini Mfg. Corp., supra; McCann Steel Co, 224 NLRB 607 (1976). Clearly, White satisfied that standard and should not be penalized because he was not able to locate an additional regular job. I find that Respondents have not shown that White in- curred a willful loss of interim earnings. CONCLUSIONS OF LAW The backpay formula as propounded by the General Counsel is appropriate in determining the moneys due White 129 to make him whole for losses incurred by him as a result of the discrimination practiced against him on August 13, 1976, until the final period covered by the amended backpay specification, the , fourth quaner of 1980. On these findings of fact and conclusions of law and on the entire, record, I issue the following recommend- ed13° ORDER The Respondents, Clayton Wynn d/b/a Wynn V.I.P. Limousine Service, and' Airport Bus Service, Inc., New York, New York, their officers, agents, successors, and assigns, 13 ' shall make whole Holnck White by paying him the sum of $16,238 132 for the period August 13, 1976, through the fourth quarter, of 1980, plus interest thereon in the manner heretofore prescribed in this case. • 129 Because White testified that he was unavailable for work for a month about September 1976, I would alter the gross backpay figure for the third quarter of 1976 from $1,224 for 4 weeks to $612 for 2 weeks 130 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102'48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 131 alter egos, as discussed and decided above 132 net quarterly amounts are 1976 3d Qtr 612 4th Qtr 3,978 1977 1st Qtr 3,210 2d Qtr 1.185 3d Qtr 1,282 4th Qtr 1,752 1978 21st Qtr 328 2d Qtr 328 3d Qtr 328 4th Qtr 328 1979 1st Qtr -0- 2d Qtr -0- 3d Qtr 250 4th Qtr 884 1980 1st Qtr 738 2d Qtr 305 3d Qtr -0- 4th Qtr 730 Total $16,238 APPENDIX A James Ebron William Reed Arthur Davis Richard Rivera Miguel Munoz Charles Williams Otis Creighton Mayonsaki Giovanni Alan Dern Walter Lynch Helen Harly Charles GiHard Robert Duggan Ralph Cronenberg Ted Pritchett Heriberto Gurterrez Carlos Gonzales Herminzul Ayala Major Darlington Sherlock Ridley Louis Lyons Leroy Andrews Ditza Linero Eddie Segal Willie Quick Elton Lee Nock Charles Palmer William Pearson AIRPORT BUS SERVICE 601 Frank Cavanaugh Jose Morale , Earl Autry . Donald Mortis Gennes Council, Jr. -. William Moser Devon Wing Arthur Johnson Joseph Polermo Peter Mallo Arcadio Larrotta . Lavon McLean Ada Tucker George Deangelico Jeff Turner Peter Cumpel Louis Fasano Carlos .Barragan, . Billy Davis Victor Diaz Will Tonco Lennox Skeete Anthony Rodnite Mark Perlmutter Roy Seller George Gaynor Robert Seymour ' Denise Boudria Peter Petta Charles Hay