B & P Trucking, Inc.

B& P TRUCKING B & P Trucking, Inc. and Gary R. Donahue F. Strassburger, Inc. and B & P Trucking, Inc. and General Drivers and Helpers, Local Union No. 544, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Cases 18-CA-8925 and 18-CA-9080 30 April 1986 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS DENNIS AND BABSON On 27 August 1985 Administrative Law Judge Michael O. Miller issued the attached decision. The Respondents filed exceptions and a supporting brief. 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 brief and has decided to affirm the judge's rulings, findings,' and conclusions as modified2 and to adopt the recom- mended Order as modified.3 We agree with the judge that a bargaining order is warranted to remedy the Respondent's extensive and pervasive unfair labor practices. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The Re- spondent committed highly coercive violations of the Act by threatening to close B & P Trucking because of the employees' protected concerted ac- i The Respondent has excepted to some of the judge's credibility find- ings 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 2 In adopting the judge's conclusion that the Respondent violated Sec 8(a)(1) of the Act by discharging employee Gary Donahue, we disavow the judge's discussion in fn 9 of his decision to the extent that he sug- gests that in 8(a)(1) discharge cases a showing that the employer knew of the concerted nature of the employee's activity is unnecessary We con- clude, based on the circumstances found by the j udge, that the Respond- ent was aware of the concerted nature of Donahue's activities See Center Ridge Co, 276 NLRB 105 (1985) The judge found that the Respondent's plant superintendent, Michael Colaprate, violated Sec 8(axl) by threatening employee Arthur Gosnell that the Respondent would close down B & P Trucking, Inc, if he "pushed" the Respondent to provide its drivers health insurance In adopting the finding of violation, we note that Gosnell did not speak with Colaprate by himself, but rather he and fellow driver Lloyd Rogers jointly went to Colaprate to discuss health insurance for the drivers, and Colaprate addressed his threat to both of them s We shall amend the judge's description of the appropriate unit to ex- clude mechanics because the unit description set forth in the Union's rep- resentation petition and its separate demand for recognition specifically excludes mechanics from the requested unit of truckdnvers In adopting the judge's remedial order requiring Respondent to rees- tablish the business operations of B & P Trucking, Inc we note that Re- spondent failed to submit any evidence showing that reestablishment would be unduly burdensome 693 tivities, by unlawfully discharging the employees' appointed spokesperson, and by unlawfully closing B & P and discharging all its employees. Such highly coercive unfair labor practices are likely to have a lasting effect on election conditions, particu- larly because the violations directly affected all unit employees and they emanated from high-level management officials. In light of the violations found, we conclude that the possibility of erasing the effects of the Re- spondent's unfair labor practices and of conducting a fair election by use of traditional remedies is slight. Requiring the Respondent simply to refrain from such conduct will not eradicate the lingering effects of the violations. Correspondingly, an elec- tion would not reliably reflect genuine, uncoerced employee sentiment. Thus, we conclude that the employees' representation desires expressed here through authorization cards would, on balance, be protected better by our issuance of a bargaining order than by traditional remedies. Furthermore, we cannot discern any circumstances which would mitigate the seriousness of the misconduct here. Accordingly, we adopt the judge's recommended Order as modified, and shall require the Respond- ent to bargain with the Union as the duly designat- ed representative of the employees in the unit found appropriate effective 18 October 1984, the date the Union requested recognition after acquir- ing authorization cards from a majority of the em- ployees in the unit and after the Respondent had embarked on a clear course of unlawful conduct.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and orders that the Respondent, F. Strassburger, Inc. and B & P Trucking, Inc., New York, New York, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(d). "(d) On request, recognize and bargain in good faith with General Drivers and Helpers, Local Union No. 554, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive represent- ative of all employees in the appropriate unit set forth below with respect to rates of pay, wages, 4 Member Dennis agrees with the judge that Respondent's hallmark violations of pervasive effect, particularly the discharge of the entire bar- gaining unit, are "outrageous" within the meaning of the first category of NLRB Y. Gissel Packing Co, 395 U S 575 (1969), and warrant a remedial bargaining order See her concurring opinion in Regency Manor Nursing Home, 275 NLRB 1261 (1985) As she explained in her Regency Manor concurrence, Member Dennis does not believe it appropnate to consider mitigating developments in cases falling within the first Gissel category 279 NLRB No. 92 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and other terms and conditions of employment and, if an understanding is reached , embody such under- standing in a written , signed document . The appro- priate unit is: All over-the-road truckdrivers employed by Respondent at its Sioux City, Iowa location, excluding city shag drivers, mechanics, office clerical employees , guards and supervisors as defined in the Act." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT threaten that the business will be closed or that you will be discharged or suffer other reprisals if you engage in union or other pro- tected concerted activities. WE WILL NOT interfere with , restrain, or coerce you in the exercise of your rights to engage in pro- tected concerted activity or union activity and WE WILL NOT discourage membership in or support for General Drivers and Helpers, Local Union No. 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America by terminating employees or closing our business because they engage in protected con- certed activities and/or select or support a union as their representative, or otherwise discriminate against them in any manner with respect to their tenure, or terms and conditions of employment. WE WILL NOT fail or refuse to bargain collec- tively with General Drivers and Helpers, Local Union No. 554, affiliated with International Broth- erhood of Teamsters, Chauffeurs , Warehousemen and Helpers of America as the exclusive bargaining representative of our over-the-road truckdrivers at our Sioux City, Iowa facility, over the terms and conditions of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL reestablish the business operations of B & P Trucking, Inc. in Sioux City, Iowa, and re- store the work formerly performed there by the terminated unit employees. WE WILL offer to Gary Donahue and all the unit employees who were terminated as a result of our closure of B & P Trucking, Inc. immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings , plus interest. WE WILL, on request, recognize and bargain with General Drivers and Helpers, Local Union No. 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of the over-the-road truckdrivers employed by B & P Trucking, Inc., in Sioux City, Iowa and, if an understanding is reached, embody such understanding in a signed agreement. F. STRASSBURGER , INC., AND B & P TRUCKING, INC. Robert V. Johnson, Esq., for the General Counsel. Robert L. Sikma, Esq., of Sioux City, Iowa, for the Re- spondent. Harry H. Smith, Esq. and Dennis McElwain, Esq., of Sioux City, Iowa, for the Charging Party. DECISION STATEMENT OF THE CASE MICHAEL O. MILLER, Administrative Law Judge. This case was heard on 14 and 15 May 1985 in Sioux City, Iowa, based on duly served unfair labor practice charges and amended charges filed by Gary R. Donahue , an indi- vidual, on 26 September and 26 November 1984 (Case 18-CA-9825) and by General Drivers and Helpers, Local Union No. 554, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union) on 28 January 1985 and a complaint issued by the Regional Director for Region 18 of the National Labor Relations Board , on 8 March 1985, as amended at hearing. The amended complaint al- leges that B & P Trucking , Inc. and F. Strassburger Inc. constitute a single integrated business enterprise and a single employer (the Respondent). The complaint further alleges that the Respondent violated Section 8(a)(1), (3), B& P TRUCKING and (5) of the National Labor Relations Act by interro- gating employees and threatening them with plant clo- sure if they sought union representation, discharging one employee because of his protected concerted activities, discontinuing a portion of its business, discharging all re- maining employees because those employees had en- gaged in union and other concerted activities , and refus- ing to bargain with the Union as the representative of its employees. Respondent's timely filed answers deny that B & P and F. Strassburger constitute a single integrated business enterprise and single employer and further deny the commission of any unfair labor practices. All parties were afforded full opportunity to appear, to examine and to cross-examine witnesses, and to argue orally. Briefs, which have been carefully considered, were filed on behalf of the General Counsel and the Re- spondent. Based on the entire record, including my observation of the witnesses and their demeanor, I make the follow- ing FINDINGS OF FACT 1. RESPONDENT'S BUSINESS AND THE UNION'S LABOR ORGANIZATION STATUS-PRELIMINARY CONCLUSIONS OF LAW A. Labor Organization Status The complaint alleges, Respondent admits, and I find and conclude that the Union is a labor organization within the meaning of Section 2(5) of the Act. B. Jurisdiction At all times material, at least through 16 November 1984, B & P was a New York corporation with an office and place of business in Sioux City, Iowa, where it was engaged in the interstate transportation of freight and commodities. Jurisdiction is not in dispute. The com- plaint alleges and Respondent admits that at all times ma- terial herein B & P has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. At all times material, F. Strassburger has been a New York corporation with an office and place of business in New York, New York, where it has been engaged in the processing and wholesale distribution of fresh meat. Ju- risdiction is not in dispute. The complaint alleges and Respondent admits that at all times material herein, F. Strassburger has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. C. Single Employer Status 1. The facts As previously noted, F. Strassburger is a New York- based meat wholesaler. Its only stockholders and princi- pal officers are Peter Strassburger and Bernard Jacobson, brothers-in-law. Although some of the meat they sell is "fabricated," i.e., cut up from the carcass, in its New York facility, the bulk of F. Strassburger's meat is fabri- cated in a plant in Sioux City, Iowa, Siouxland Quality, 695 Inc., a corporation wholly separate from either F. Strass- burger or B & P. Siouxland Quality arranges the ship- ping of Respondent's meat from its Sioux City plant to F. Strassburger's New York facility or to F. Strass- burger's customers. Prior to mid-1983, all the meat fabricated by Siouxland Quality was shipped from that plant via independently owned common carriers. Strassburger maintained some smaller trucks and employed several drivers in the Sioux City area solely for local pickups and deliveries to as far away as Chicago, Illinois, known in the trade as shag runs. They do not involve use of sleeper-equipped trac- tors. F. Strassburger still maintains three shag trucks in Sioux City, Iowa, and employs their drivers. F. Strass- burger also currently employs drivers at its New York facility for deliveries to be made within the New York metropolitan area, that is, New York, Connecticut, and New Jersey. Sometime in 1983, F. Strassburger decided that in order to gain greater control over the delivery of its product from Sioux City to New York, it would employ some of its own drivers and operate some of its own tractors and trailers. It began to do so around late summer 1983, employing at least six over-the-road dnv- ers who operated tractors leased from Ryder. The leased tractors pulled trailers owned by F. Strassburger. F. Strassburger continued to utilize common carriers for a portion of its Sioux City to the east coast trucking needs. According to Bernard Jacobson, although the trucking operation was initially owned by F. Strassburger, it was intended from the first to form a separate corporation. On 1 January 19841 B & P was formed. Its sole stock- holders and officers were Peter Strassburger and Bernard Jacobson. The tractors which F. Strassburger had leased from Ryder, and on which F. Strassburger remained the guarantor, were transferred to B & P and B & P leased F. Strassburger's trailers. The employees of F. Strass- burger who had been driving this equipment became em- ployees of B & P and other over-the-road drivers were added. B & P drivers did the same hauling which the F. Strassburger drivers had done, that is, hauling meat from Siouxland Quality to the east coast. In addition, the driv- ers picked up goods to be hauled back from the east coast, backhauls. F. Strassburger continued to utilize common carriers in addition to B & P even after B & P was formed. F. Strassburger had three employees in the Siouxland Quality plant: William Fox and John DeBryan, who were in charge of quality control, and James Levich, sales. B & P's only employee in Sioux City, other than its drivers and one mechanic, was Jean Fox, the bookkeep- er. The drivers coming out of Sioux City, those em- ployed by B & P, as well as those employed by other common carriers, were dispatched by Lena Stansbury, an employee of Siouxland Quality, who arranged the shipments pursuant to F. Strassburger 's instructions. B & P's "trucking company policy" required its drivers to call in daily to Dan Waligovski, F. Strassburger's New York-based transportation manager. Additionally, they I All dates hereinafter are 1984 unless otherwise specified 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were to report any thefts, shortages, or overages to either Waligovski or Stansbury. Any other problems were to be reported to either Michael Colaprate, F. Strassburger's New York-based plant superintendent or Waligovski. In emergencies, they were to call Peter Strassburger. Drivers for other common carriers, it ap- pears, were also required to call in daily to Waligovski to report their progress on the highway and their arrival times. B & P's sole mechanic, Steven Olson, employed in Sioux City and working at the Siouxland Quality plant, reported to Michael Colaprate in New York by tele- phone. B & P lost approximately $60,000 during its first 6 months. In order to improve B & P's financial condition, Jacobson testified, "[W]e raised the freight rates to our- selves." 2. Discussion and conclusion In Truck & Dock Services, 272 NLRB 592 fn. 2 (1984), Board and court law with respect to single-employer status was concisely summarized, as follows: To determine whether two entities are sufficient- ly integrated so that they may fairly be treated as a single employer, the Board and the courts examine four principal factors: (1) common management; (2) centralized control of labor relations; (3) interrela- tion of operations; and (4) common ownership. Radio Union v. Broadcast Service of Mobile, 380 U.S. 255, 256 (1965); NLRB v. Browning-Ferris Industries, 691 F.2d 1117 1122 (3d Cir. 1982); Shellmaker, Inc., 265 NLRB 749, 754 (1982). While none of these fac- tors, viewed separately, has been held controlling, the Board has stressed the first three factors, par- ticularly centralized control of labor relations. Park- lane Hosiery Co., 203 NLRB 597, 612 (1973). Single employer status depends on all of the circumstances and has been characterized as an absence of an "arm's length relationship . .. among unintegrated companies." Blumenfeld Theaters Circuit, 240 NLRB 206, 215 (1979), enfd. 626 F.2d 865 (9th Cir. 1980). The General Counsel contends, and I agree, that appli- cation of these standards requires a conclusion that F. Strassburger and B & P constitute a single employer. F. Strassburger and B & P were commonly owned. Peter Strassburger and Bernard Jacobson jointly owned all of the stock of each corporation. In this regard, the two corporations are more closely held than were the corporations in Truck & Dock Services, supra, where the two corporations were owned by a father and son, re- spectively. Similarly, B & P and F . Strassburger shared common management and supervision. Thus, Strassburger and Ja- cobson were the directors and officers of both. To the extent that B & P's unit employees were supervised at all, that supervision came entirely from the managerial employees of F. Strassburger. Similarly, to the extent that it can be said that there were labor relations at B & P, those labor relations were under the same control as labor relations of F. Strassburger. No one, apart from those involved in F. Strassburger' s management, existed to control B & P's labor relations. The rates of pay (based on mileage), allowances for overnight lodging and unloading, and the operating rules and procedures came from the same persons who managed Strassburger. Re- spondent, on brief, conceded that the B & P employees were under the "control of its common owners and man- agement employees." Finally, it is clear that the operations of F. Strass- burger and B & P were throughly intertwined. B & P was created to give F. Strassburger greater control over the timing of critical shipments. On east-bound ship- ments, F. Strassburger was B & P's only customer and it was, by far, B & P's major account.2 B & P operated with tractors leased by F. Strassburger from Ryder and, during B & P's existence, F. Strassburger remained the guarantor of those leases. The trailers drawn by the leased tractors driven by B & P's employees were owned by F. Strassburger and were leased to B & P. Finally, it is clear that even Respondent's management viewed B & P as an arm of F. Strassburger. Thus, when B & P expe- rienced losses, it raised the shipping rates charged to F. Strassburger and this transaction was characterized by Jacobson as raising the rates "to ourselves." Thus, I must conclude that nothing happening between the two cor- porations could be said to be indicative of an "arm's length relationship." See Angelus Block Co., 250 NLRB 868 (1980), and Land Equipment, 248 NLRB 685 (1980). Given the common ownership, common management, centralized control over labor relations, and interrelation- ship of their operations, I find and conclude that F. Strassburger and B & P are a "single employer." II. THE UNFAIR LABOR PRACTICES A. The Discharge of Gary Donahue 1. The facts Gary Donahue, an over-the-road truckdriver for 18 years, was employed by Respondent, both F. Strass- burger and then B & P, since August 1983. As might be anticipated in any work setting, Respond- ent's drivers had certain complaints concerning the con- ditions under which they were employed. In particular, Respondent's over-the-road drivers were concerned about problems arising out of backhauls,3 layovers, and unloading pay. The drivers, including Donahue, dis- cussed these concerns, and others, among themselves. On occasion, the drivers, sometimes Donahue, would at- tempt to speak with Peter Strassburger or some other member of Respondent's managerial hierarchy concern- ing these problems. Each employee to do so testified that he received promises but no action with respect to his complaints.' In late April, Donahue, together with his 2 Of B & P's four largest accounts, totaling $927 ,800, F Strassburger accounted for $799,173 3 There is no question but that backhauls are essential to the economic viability of a common carrier * Lena Stansbury corroborated the testimony of Donahue and the other drivers concerning the facts of complaints being voiced B & P TRUCKING driving partner, J. R. Pulfer, approached Peter Strass- burger and sought to discuss problems with regard to layovers. Peter Strassburger told Donahue that his was not the only truck being laid over and when Donahue sought to pursue this conversation, Peter Strassburger put him off, stating that he did not have time to talk about it at that point. He referred Donahue to Wali- govski. Donahue repeated his concerns to Waligovski and told Waligovski that if the Company did not straighten the problem out, he was "going to lose a bunch of good drivers" because the layovers were caus- ing the drivers to lose one and a half trips per month, a loss the drivers could not afford. Donahue similarly told Peter Strassburger that Respondent stood to lose some good drivers because of their unhappiness with the working conditions. In late May, a group of about seven of Respondent's drivers met outside Respondent's plant in New York City. They discussed the problems as they perceived them and designated Donahue as their spokesman to relate their concerns to Peter Strassburger in an effort to improve their conditions. Specifically, they asked Dona- hue to speak to Peter Strassburger concerning the prob- lems of layovers, drop pay, unloading pay, and deliveries in the New York City area. Donahue agreed to speak on their behalf and to attempt to reach some agreement with Peter Strassburger. Donahue subsequently observed Peter Strassburger on the dock in New York and approached him, stating, "Peter, we better talk about some of this. We have a lot of problems." Peter Strassburger responded, "Everybody has problems, Gary," and retreated to the office. Dona- hue followed him. Waligovski was in the office and Donahue told Waligovski of his unsuccessful effort to speak with Strassburger. Waligovski suggested that this was not an opportune day for Donahue to attempt a dis- cussion with Strassburger and offered to talk to Strass- burger for him. Donahue then "explained the situation" to Waligovski, stating that this was the second time he had talked with Waligovski. "You know we have prob- lems. If we don't get it straight, I'm telling you again you're going to lose some good drivers," Donahue told Waligovski. Waligovski repeated that he would bring these problems to Strassburger's attention. When Donahue next returned to New York, about 17 or 18 June, he again approached Waligovski and reiterat- ed the drivers' problems. He told Waligovski that the drivers were getting upset, that he had been trying to talk to both Strassburger and Waligovski for 2 months in an effort to straighten out the problems and to improve the attitude of the drivers toward the Company. Wali- govski again assured Donahue that he would talk to Strassburger. Donahue stated, "You're going to have to make him talk . . we're going to have to do something else if he just won't settle down and talk with us .. . one of these days you're going to have five trucks sitting back there in Sioux City loaded, with no drivers." On Wednesday, 27 June, Donahue returned to the New York plant with his driving partner, Jerry Cook. Again he endeavored to speak to Waligovski and Strass- burger concerning the drivers' problems. He told Wali- govski, "[T]he way that Peter is coming over, we better 697 have a talk . . . because we got five drivers right now who are going to quit . . . it's the same old problems. Can't get nothing done." He told Waligovski that he felt the Company was patronizing him and that the problems which he had been trying to discuss for 2 months were continuing. Waligovski promised to talk to Peter Strass- burger and suggested that Donahue take a break and get something to eat while he cooled down. He assured Donahue that when Donahue returned they would get things straight. However, when Donahue returned from his break, Peter Strassburger had left the premises. Don- ahue stated, "I understand what's happening here . . . he's putting me off . . . you're putting off . . . there's no sense in trying to talk to you any more . . . we'll just take care of this other ways."5 Donahue and Cook had been on the road since 5 o'clock on the morning of 27 June. Following his deliv- ery in New York, Waligovski asked them to wait for a driver who was coming in so that they could switch loads and take that driver's load to Brooklyn. Donahue and Cook agreed, waited for the load, delivered it, and left Brooklyn, New York, for Hartford, Connecticut, at 12:30 a.m. on 28 June. They stopped at a motel in Water- bury, Connecticut, at 2 a.m.6 That morning, after arising, Donahue attempted on three occasions to call Wali- govski. Each time he was put on hold. After the first such call, he gave up waiting and Cook and he went to Hartford where they picked up a load of paper products to be delivered in Sioux Falls, South Dakota. They tried, again unsuccessfully, to call and did not reach Wali- govski until a third attempt about 1 or 2 p.m. Wali- govski, at that time, informed him that Peter Strass- burger was upset because they had not loaded up at 7 o'clock that morning. Donahue told Waligovski that they had arrived at the motel at 2 a.m. and slept until 9, not even taking their legally required 8-hour break. Don- ahue and Waligovski argued about the trip and whether or not Donahue could or would make the delivery in time. In the course of their argument, Donahue told Wa- ligovski that when he got back to Sioux City, they were "definitely going to get things straight." They had, he said "too many problems . . . you're not going to help us out . . Peter ain't going to help us out . . . I can call in different people on this ... I've got the Interstate Commerce Commission . . . none of these trailers will pass DOT test . . . when I get back to Sioux City, I'm going to talk to a friend of mine . . . Bailey of the Union . . . we are going to get things straight once and for all." Waligovski told Gary not to get carried away and not to try to make the delivery; they would talk to him when he got back to Sioux City. Donahue reiterated, "We're going to get this stuff straightened out .. . I'm going to get the drivers together and I think we are 5 Donahue's testimony concerning these conversations was credibly of- fered and stands uncontradicted Neither Waligovski nor Peter Strass- burger testified 6 Although the tractors were equipped with sleepers, those sleepers were intended for one individual to sleep while the other drove There- fore, it would not appear to be out of order for Donahue and Cook to have stopped in a motel near their next pickup point The record indi- cates that driving teams regularly checked into motels while awaiting a backhaul 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD going to get it settled once and for all . . it's been going on for two and a half months . . . we got nothing accomplished . . . we'll take care of it when I get back." Waligovski told him to go to Sioux City and Donahue hung up. However, rather than going to Sioux City, he delivered the load to Sioux Falls within the required time. En route, he called Stansbury and told her that he would make the delivery and bring back the empty trail- er which Waligovski had said they needed . He returned to Sioux City, Iowa, on time, about 9 p.m. on Friday, 29 June. Meanwhile, according to Bernard Jacobson, the cus- tomer from whom Donahue and Cook were supposed to make the pickup in Hartford, Connecticut, had called and complained about the delay. Allegedly, that custom- er threatened to take his backhaul business away from Respondent. Jacobson and Peter Strassburger then dis- cussed Donahue. According to Jacobson, "(W]e felt that he wasn't very happy working for us, and we were no longer happy with him, and we decided to terminate his employment." Peter Strassburger called Lena Stansbury and told her to let Donahue go. Strassburger explained that if Donahue was so unhappy working for Strass- burger, they would get rid of him. When Donahue and Cook returned to the Siouxland Quality plant on 29 June, James Kuecker, Siouxland Quality's general manager, told them that Cook was being terminated for failing to pass the Ryder driving test.? However, it was not until the following day, when Donahue called Stansbury to determine when he would next depart on a trip, that he learned of his own termina- tion. Stansbury told him that the truck he expected to take had already departed and that Peter Strassburger had ordered his termination from New York. 2. Discussion and conclusion Respondent contends that Donahue was discharged for "failing to pick up a backhaul at the time he was or- dered to do, and for constant personal complaining about his job and the work he was required to do." The Gen- eral Counsel, on the other hand, contends that Donahue was discharged for engaging in the concerted protected activity of attempting to present the complaints of his fellow employees to Respondent as their chosen dele- gate. In Myers Industries, 268 NLRB 493, 497 (1984),8 the Board stated, "In general, to find an employee's ac- tivity to be `concerted,' we shall require that it be en- gaged in with or on the authority of other employees, and not solely by and on behalf of the employee him- self." The Board went on to say that once the activity was found to be concerted, a discharge motivated by that activity would be found violative of Section 8(a)(1) if the employer knew of the concerted nature of the em- ployee's activity and that concerted activity was protect- ed by the Act. Here, I have found that all the foregoing conditions are satisfied. Donahue was, in fact, acting as the spokesman for his fellow employees on their express ' Kuecker testified as a witness for Respondent He did not contradict this testimony a Reversed and remanded sub nom Prill v NLRB, 755 F 2d 941 (D C Cir 1985) delegation of that authority and responsibility. The com- plaints that Donahue was voicing on behalf of his fellow employees were clearly of a protected nature; they dealt with such conditions of employment as pay (for lay- overs, backhauls, and loading) and work assignments. Moreover, Donahue's statements to Waligovski and Peter Strassburger made clear the concerted nature of his activity. He repeatedly stressed that it was not merely himself who was dissatisfied ; rather, it was a number of drivers who were dissatisfied and likely to quit in the event that Respondent failed to correct what these drivers perceived as problems in their working conditions. Such statements are adequate to put Re- spondent on notice that concerted activity preceded the voicing of the grievances by the employees' chosen rep- resentative.9 Additionally, I note that in his final conversation with Waligovskt, Donahue threatened to get the drivers to- gether and go to the Union to secure assistance in resolv- ing the employees' complaints. A threat to bring in a union is, of itself, concerted union activity. Charles H. McCauley Associates, 248 NLRB 346 (1980), enfd. in rele- vant part 657 F.2d 685 (5th Cir. 1981). "To protect con- certed activities in full bloom, protection must necessari- ly be extended to intended, contemplated or even re- ferred to group action, Mushroom Transportation Co. v. NLRB, 330 F.2d 683, 685 (3rd. Cir. 1984) . . . lest em- ployer retaliation destroy the bud of employee initiative aimed at bettering terms of employment and working conditions." Hugh Wilson Corp., 171 NLRB 1040 at 1047 (1968), enfd. 414 F.2d 1345 (3d Cir. 1969). Finally I must conclude that Respondent was motivat- ed in discharging Donahue not by any derelictions in his final trip but solely by his involvement in the concerted activity. Thus, I note that there was no reference to the delayed pickup in Hartford when either Cook or Dona- hue were discharged. Their conduct on that trip was rea- sonable and consistent with both prior practice and ap- plicable regulations. They made the delivery on time. Cook was discharged for a completely unrelated reason 9 It would be grossly inequitable to require an employee , unschooled in the fine intricacies of labor law, to proclaim in more specific terms his or her representative role Such a requirement would totally undercut the employees' statutory rights to voice their complaints concertedly but without a formal collective-bargaining representative Similarly, such a requirement would run counter to the longstanding principle "that the test of interference, restraint, and coercion under Section 8(a)(1) of the Act does not turn on the employer 's motive or whether the coercion suc- ceeded or failed The test is whether the employer engaged in conduct which, it may reasonably be said , tends to interfere with the free exercise of employee rights under the Act " American Freightways Co, 124 NLRB 146 (1959), cited with approval by the Board in Armstrong Rubber Co, 273 NLRB 233 (1985 ) See also Textile Workers Y, Darlington Mfg Co, 380 U S 263, 269 (1965), in which the Supreme Court stated "A viola- tion of Section 8(a)(1) alone therefore presupposes an act which is unlaw- ful even absent a discriminatory motive " The discharge of an employee for engaging in conduct of a protected character (wages, hours, and working conditions) which is, in fact, concerted, reasonably tends to interfere with the employee's free exercise of statutory rights whether or not the employer knew of its concerted nature, particularly when the em- ployee's statements give the employer reason to believe that the employ- ee is speaking on behalf of himself and others When an employer dis- charges an employee for engaging in activity of a protected character, the risk that the activity was in fact concerted must fall upon the employ- er B & P TRUCKING and both the testimony of Jacobson and the statement of Peter Strassburger to Stansbury establish Respondent's unlawful motivation Both Jacobson and Strassburger were heard to say, in essence, that if Donahue was so unhappy, they would terminate him. Such a statement has meaning only when considered in conjunction with Donahue's protected concerted activity. For all the foregoing reasons, I conclude that Gary Donahue was engaged in concerted protected activity in voicing the employees' complaints to Respondent's man- agement and that he was discharged for engaging in that activity, in violation of Section 8(a)(1) of the Act. B. Union Activity In September, subsequent to his unlawfully motivated termination, Gary Donahue contacted the Union's busi- ness agent, Kenneth Bailey. He secured union authoriza- tion cards from Bailey and distributed them among Re- spondent's drivers. Of the 14 drivers and 1 mechanic whom the parties stipulated to be in the admittedly ap- propriate collective-bargaining miit,'O 11 (including Donahue) signed valid and unambiguous applications for membership in the Union, designating that Union as the employees' representative for the purposes of collective bargaining. The cards were all signed in Donahue's pres- ence between 23 September and 9 October. On 16 October Bailey wrote Respondent, at its Sioux City, Iowa address, claiming majority representation, re- questing recognition and collective bargaining, offering to submit the authorization cards for an impartial third- party verification, and advising that a representation peti- tion had been filed in the event that Respondent declined the Union's offer of a card check. The letter was ad- dressed to William Fox in Sioux City, Iowa, and was for- warded by him to Respondent in New York. Jacobson received the Union's demand about 18 October. Bailey received no response. C. Evidence of Animus and 8(a)(1) Violations In mid-September, William Fox, Respondent's quality control supervisor in Sioux City, Iowa, i i spoke with Steven Olson, the B & P mechanic, at the Siouxland Quality plant during worktime. Fox asked Olson whether he had heard about the drivers "talking about organizing a union." Olson said that he had not and Fox told him "that if any of the drivers were thinking about making a union that Peter Strassburger won't tolerate it They'll be discharged . . that they'd shut the operation down." About a month later, Fox again broached this subject with Olson. At that time, Fox stated "that there's no way B & P Trucking could operate with a union repre- 10 Respondent admitted that the following unit was appropriate for the purposes of collective bargaining within the meaning of Sec 9(b) of the Act All over-the-road truckdrivers and maintenance mechanics employed by Respondent at its Sioux City, Iowa location, excluding all office clerical employees , guards and supervisors as defined in the Act 11 Fox's actions and statements, I find, are attributable to Respondent inasmuch as he is admitted to be a supervisor on behalf of F Strass- burger, F Strassburger and B & P have been found herein to constitute a single employer, and Fox was used by Respondent as a conduit of infor- mation from the New York office to the B & P drivers 699 senting the drivers . . . he didn't think things were going to work out. "i 2 In mid-November, driver Arthur Gosnell tried to dis- cuss fringe benefits with Respondent's plant superintend- ent, Michael Colaprate. He asked Colaprate about the possibility of getting health insurance for the drivers. Co- laprate told him "riot to push it because the company was starting to show profit." If the issue was pushed, Colaprate stated, "[TJhey'Il probably close it down."13 On 16 November, after he learned that B & P was being closed down (discussed, infra) Steven Olson called Colaprate in New York to ask what to do with the sup- plies in his shop. In the course of their conversation, Co- laprate told Olson "that the drivers had evidently orga- nized the union, and there's no way that a company their size could handle it, paying union wages to drive to the coast and back." The foregoing statements by Fox and Colaprate consti- tute interrogation and threats of discharge and plant clos- ing in the event of unionization. As such, they violate Section 8(a)(1) of the Act. Fox's threats, in particular, are not conditioned on anything other than the presence of a union. He made no reference to increased costs or the loss of competitiveness. Similarly, Colaprate's threat was of a shutdown if the employees merely sought better benefits. These threats are therefore distinguishable from those found nonobjectionable in Tri-Cast, Inc., 274 377 (1985). Moreover, the threats are specific: shutdown and discharge in the event of unionization They are thus dis- tinguishable from the statements found permissible in Daniel Construction, Co., 264 NLRB 569 (1982) (then member Jenkins, dissenting). The interrogation occurred in the context of threats, in a conversation initiated by the supervisor, at work and during working time and was directed at an employee who was not a known union supporter. Under these circumstances, it clearly tended to interfere with and restrain employees in the ex- ercise of their statutory rights. Daniel Construction Co., supra. Cf. Rossmore House, 269 NLRB 1176 (1984). Respondent's F. Strassburger employees in New York are represented by a union. From this, Respondent's seeks to establish that it had no antiunion animus. In light of the discharge of Donahue, the statements attributed to both Fox and Colaprate, and Respondent's admitted reason for shutting B & P down, as discussed, infra, this contention must fail. Whatever the nature of Respond- ent's union relationships in New York, it is clear that Re- spondent was strenuously opposed to either union or protected concerted activity among its Sioux City, Iowa- based employees. 12 Fox denied interrogating Olson concerning union activity among the drivers and claimed that Olson had volunteered that there was union activity Fox, however, did not deny or contradict Olson's testimony concerning the two threats related above Between the two witnesses, I deem Olson to be the more credible Noting that credibility resolution, the fact that there was no union activity until after the third week in Sep- tember, thus making unlikely Fox's scenario, and Fox's failure to deny the threats attributed to him, I find that Olson 's version of his conversa- tions with Fox accurately reflect what took place 13 Gosnell's credibly offered testimony stands uncontradicted 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The Shutdown of B & P 1. The facts Bailey filed a representation petition, Case 18-RC- 13687, on 18 October and a hearing on that petition was scheduled for 8 November. On 2 November counsel for B & P requested a postponement due to the press of other business. Respondent's request was granted, and the hearing was postponed until 19 November. On 16 November, 3 days prior to the scheduled hear- ing, Respondent's counsel advised the Regional Director that B & P Trucking had terminated its business effective that date and would be both dissolving the corporation and selling the corporate assets, i.e., the trucks. On the same date, a certification of corporate dissolution was ex- ecuted pursuant to a unanimous vote of the shareholders, Peter Strassburger and Bernard Jacobson. The closing of B & P came as a complete surprise to the employees as well as to Lena Stansbury, Siouxland Quality's dispatcher. When, prior to 16 November, she had dispatched the drivers on what turned out to be their last run to the east coast, she was unaware that the business was being closed. She learned of it on 16 No- vember when Peter Strassburger called to tell her to find other carriers to cover the loads commencing on Friday. He told her the Company was "not making any money." The drivers learned of the shutdown and their own ter- minations as they returned to Sioux City, Iowa, on No- vember 16 and 17. Jacobson testified that in its first 6 months of oper- ation, B & P had lost approximately $60,000. B & P then raised the freight rates it was charging F. Strassburger (i.e., itself) and the new rates, Jacobson acknowledged, brought them close to the break even point. However, as early as May or June, according to Jacobson, he and Peter Strassburger had begun to consider closing that business; they sought to find someone who would assume their leases on the tractors and purchase the trailers which Respondent had purchased.14 In early June, Peter Strassburger and Jacobson held discussions with John Goldsmith, president of Goldsmith Truck Line, one of the common carriers which had been hauling for F. Strassburger both before the creation of B & P and during the period of B & P's operation. Goldsmith was seeking to take over the B & P operation; his testimony indicates that he, not Respondent, was the moving party in these negotiations. Further discussions were held with Goldsmith in October15 and resulted in Goldsmith taking over the tractors and trailers through a new sepa- rate corporation, Blitzen. However, Goldsmith's agree- ment with Respondent was contingent on being able to reach a more favorable lease for the tractors from Ryder. Their agreement included leases of the trailers from Respondent to Blitzen, terminable at will. 14 Respondent had arranged the purchase of five trailers in April and received them in July or August 11 When asked when these discussions took place , Jacobson testified as follows- "We discussed the sale after they-after-1 would say it was in October " His cautious phraseology , particularly when considered in light of his subsequent testimony , impels the inference that these discus- sions occurred after receipt of the Union's demand Blitzen hired a number of Respondent's drivers and commenced to haul as a common carrier for F . Strass- burger using the same tractors and trailers as had B & P. Blitzen continued to operate the tractors and trailers until approximately April 1985. At that time, having been unable to reach a more favorable leasing agreement with Ryder, Blitzen went out of business. Then, River City Express, a newly created corporation owned by Jim Uhlenhopp, another common carrier, took over the leases (with more favorable terms than either B & P or Blitzen had been able to negotiate) and purchased Re- spondent's six trailers . Respondent remains obligated as a guarantor on the tractor leases, which run for 3 years from March 1984. River City Express has continued to haul for F. Strassburger, with first right to haul Re- spondent's east-bound freight, as well as for other cus- tomers since that time. River City does not do all of the F. Strassburger's hauling; at all times, other common car- riers have done portions of this work. Jacobson, explaining its reason for terminating the B & P operation, testified as follows: Well, obviously we weren't doing very well. We had to raise our freight rates in order to break even, and then when the drivers decided to have union representation, we felt that we were fighting an uphill battle. We couldn't afford the present labor situation so it certainly wasn't going to get any better for us to have a union contract. It didn't make any economic sense to stay in the trucking business. Jacobson acknowledged that although they had received the Union's bargaining demand and election petition at the time the decision was made, no election had as yet been held; the Union had presented no proposed contract and had made no contract demands. 2. Discussion and conclusion In light of the evidence set forth above, there can be no doubt but that Respondent dissolved B & P and ter- minated its employees in order to avoid the possibility of having to recognize and bargain with the Union on behalf of those employees. Jacobson admitted as much, Colaprate intimated the same in conversations with the employees, and the timing of Respondent's actions fur- ther supports this conclusion. An impressively strong prima facie case of discriminatory motivation has been established. Respondent, on brief, alludes to economic factors which might have warranted cessation of the B & P business operations, but does not really appear to dis- pute its antiunion motivation and clearly does not sustain its burden of proof that it would have terminated the B & P operations even in the absence of union activity.16 Respondent claimed to have lost $60,000 in its first 6 months of operation. Even assuming that this self-serving testimony is accurate, it would not warrant a conclusion that the business would have closed absent the union ac- tivity. Many new businesses lose money during their 16 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), NLRB v Transportation Management, 462 U S 363 (1983) B & P TRUCKING startup phrase. Indeed, B & P was approaching profit- ability, and may have crossed that threshold by Novem- ber, if Colaprate's statement to Gosnell and Young are accurate. Further, B & P was established to meet busi- ness objectives other than profit; Respondent had sought greater control of deliveries by operating its own truck- ing concern. There is no evidence that B & P failed to meet this objective. Moreover, while Respondent may have discussed a possible sale of B & P's assets to Gold- smith in June, that contact had been initiated by Gold- smith and did not result in any sale at that time even though that was when B & P was losing money. It is noteworthy, too, that Respondent's actions in ordering trailers in April and taking delivery of them during the summer is inconsistent with any intention to go out of business at that time. Additionally, it cannot be argued that Respondent's decision to terminate the B & P operations out of fear that unionization would result in higher costs converts the discriminatory motivation to economic. As noted above, the Union had not yet become the employees' elected representative; no contract had been proposed, let alone reached; neither had any financial or other de- mands been placed on the Employer. Under these cir- cumstances, and particularly considering the labor rela- tions climate of concession bargaining and give backs prevalent in 1984 and 1985, Respondent's assumption of intolerably increased costs was entirely premature. i 7 Concluding that the dissolution of B & P and the re- sultant discharges were discriminatorily motivated does not, however, necessarily resolve the question of wheth- er or not such conduct may be found violative of Section 8(a)(3) and (5) of the Act. Respondent argues that whether B & P is viewed as a business entity totally sep- arate from F. Strassburger (a contention I have rejected) or as a separate business under the aegis of a single em- ployer (as I have found), its total cessation of business operations cannot be found violative of Section 8(a)(3) under Textile Workers Y. Darlington Mfg. Co., 380 U S. 263 (1965), and First National Corp. v. NLRB, 452 U.S 666 (1981). Respondent's contention must fail. The issue in First National Corp.. was whether an employer is obligated to bargain with the union which represents its employees over an economically based decision to close a portion of its business enterprise. The Court was not faced with the question of whether an employer violated Section 8(a)(3) by a partial closing motivated by a desire to avoid col- lective bargaining . With respect to such a possibility, the Court referred back to its Darlington decision, stating that "the union's legitimate interest in fair dealing is pro- tected in Section 8(a)(3), which prohibits partial closings motivated by antiunion animus, when done to gain an unfair advantage." In Darlington itself, the Court held that a single employer may go completely out of business without violating Section 8(a)(3) even if its action was 17 See Wausau Steel Corp, 160 NLRB 635 (1966), enfd 377 F 2d 369 (7th Cir 1967) (8(a)(1) threats found based on statements of what might happen in the event the union , not yet the employees' representative, de- manded unreasonable wage increases) 701 prompted by a desire to avoid unionization.' 8 The Court, however, specifically excepted from the reach of its decision "runaway shops" 19 and situations analogous to the runaway shop "where a department is closed for antiunion reasons but the work is continued by independ- ent contractors." (fn. 16 at 273). As Board cases follow- ing Darlington clearly establish, the facts of the instant case fit precisely within this exception to the Darlington rule. In Monongahela Steel Co., 265 NLRB 262 (1982) (then Chairman Van De Water, dissenting in part on the issue of remedy) there were two separate corporations which constituted a single integrated enterprise. One, Mononga- hela, acted as a supplier for the other, Youngstown. Re- spondent closed Monongahela for discriminatory reasons and Youngstown continued in business, acquiring its raw materials from another source. The Board, adopting Judge Arline Pacht's decision, rejected the employer's Darlington-based defense, holding that the closing of Monongahela and the resultant acquisition of raw materi- als from outside sources was akin to the departmental closure and subcontracting referred by the Supreme Court in the language quoted above. The judge and the Board pointed out that if Monongahela had been permit- ted to survive, it would have continued functioning as an arm or department of Youngstown and Youngstown would not have been purchasing its stock from the inde- pendent supplier Darlington was therefore held inappli- cable to the closing of Monongahela and that closing was found violative of Section 8(a)(3) of the Act Even more directly on point is Hood Industries, 248 NLRB 597 (1980). Hood, a manufacturing company, had initially been subcontracting the trucking work involved in the distribution of its product. Hood also maintained its own trucks and employees for certain other hauling duties. Hood decided to take over the subcontractor's trucking business and purchased all the subcontractor's equipment, trucks, and permits. A separate corporation, B & K, was formed for the sole purpose of transporting and distributing Hood's products; it was a wholly owned subsidiary of Hood and they were, as here, a single inte- grated enterprise and a single employer. When a union successfully organized the B & K employees, B & K was dissolved, the trucks were sold, the employees were dis- charged, and Hood went back to its earlier practice of subcontracting the trucking work. Hood's discriminatori- ly motivated cessation of the B & K operations and its subcontracting of the work which B & K had done were held to distinguish that closing from Darlington. The em- ployer's conduct in closing B & K and terminating B & K's employees was found violative of Section 8(a)(3).2° 18 The Court, of course, went on to further hold at 275 "that a partial closing is an unfair labor practice under Section 8 (a)(3) if motivated by a purpose to chill unionism in any of the remaining plants of the single em- ployer and if the employer may reasonably have foreseen that such clos- ing would likely have that effect " Respondent argues here, and I agree, that there is no evidence of an intent by this Respondent to chill union- ism at any other facility is The Court defines a "runaway shop" as one where an employer transfers work to another plant or opens a new plant to replace the closed facility 20 See also Jays Foods v NLRB, 573 F 2d 438 (7th Cir 1978), and cases cited therein at 445, enfg 228 NLRB 423 (1977) 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hood Industries is, for all intents and purposes , indistin- guishable from the instant case ; in both, the employers had initially subcontracted the trucking work ; in both, the employers created new corporations to take over the trucking work from the subcontractors ; and in both, the employers dissolved the newly created corporations in order to avoid dealing with unions and returned to their earlier practices of subcontracting . The Board's decisions in Hood Industries and Monongahela Steel mandate a find- ing that Respondent's discriminatorily closing of B & P and the resultant discharge of all of its employees vio- lates Section 8(a)(3) and (1) of the Act. E. The Refusal to Bargain-Bargaining Order Remedy As previously noted in section B, above, a majority of Respondent's employees (11 out of 15) in a unit appropri- ate for collective-bargaining purposes executed valid union authorization cards. The Union demanded recogni- tion based on those cards and its demand was ignored. Based on these facts and the unfair labor practices de- scribed in sections C and D, above , the General Counsel seeks a bargaining order remedy on the authority of NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). It would be difficult to envision any case which more clearly warrants imposition of a Gissel bargaining order than the instant case. In Gissel, the Court held that the Board could require an employer to bargain with a union based on a card ma- jority (without an election) in two types of cases. The first category, Gissel I, were those "exceptional" cases in which the employer committed "outrageous" and "per- vasive" unfair labor practices of "such a nature that their coercive effects cannot be eliminated by the application of traditional remedies with the result that a fair and reli- able election cannot be had." Gissel II encompasses those "less extraordinary cases" in which the employer has committed "less pervasive" unfair labor practices which still have the tendency to undermine majority strength and impede the election processes . In the latter situation, the court stated, a bargaining order should issue when the Board finds that "the possibility of erasing the effects of past practices and of insuring a fair election (or a fair rerun) by the use of traditional remedies , though present, is slight and that employee sentiment once expressed through cards would , on balance, be better protected by a bargaining order." (395 U.S. at 613-615). In the instant case, the unfair labor practices consisted of interrogation, threats that the business would close if the Union were to be selected, and the ultimate unfair labor practice, the discriminatory closing of a portion of the business with the resultant termination of all of the unit employees while their work was subcontracted to other employers. Every employee in this small unit was vitality effected by these unfair labor practices . These unfair labor prac- tices, I believe , place this case within Gissel I ; unques- tionably this conduct comes within at least the second category of Gissel and requires a bargaining order remedy. In Horizon Air Services , 272 NLRB 243 (1984), enfd. 761 F.2d 22 ( 1st Cir. 1985), the Board reviewed those Second Court of Appeals in NLRB v. Jamaica Towing, 632 F.2d 208 ( 1980), as "hallmark" violations. The Board, adopting the language of Jamaica Towing, stated: These "hallmark" violations "include such employ- er misbehavior as the closing of [the] plant or threats of plant closure or loss of employment, the grant of benefits to employees, or the reassignment, demotion or discharge of union adherents in viola- tion of § 8(a)(3) of the Act . In such cases the seri- ousness of the conduct , coupled with the fact that it often represents complete action as distinguished from mere statements, interrogations or promises, justifies a finding without extensive explication that it is likely to have a lasting inhibitive effect on a substantial percentage of the work force. In Horizon Air, the Board agreed with the administrative law judge that the employer had committed "hallmark" violations . The violations found therein to warrant the Gissel bargaining order did not approach the magnitude of Respondent's violations here . In Horizon , only 1 of the small 12-man unit was terminated and only 6 of the 12 unit employees were direct targets of the unfair labor practices . As noted, Respondent here reached every em- ployee by its discriminatory discharges. Here, as in Horizon Air, the unfair labor practices were nearly all the "hallmark" nature . The seriousness of that conduct is underscored and made more difficult to elimi- nate by the fact that there were only 15 employees in the unit, all whom suffered from the unfair labor practices, and the fact that unfair labor practices were , in the main, committed or directed by high-level supervision includ- ing Respondent's president. I note, too, that the Employ- er's adamant opposition to its employees ' collective-bar- gaining rights, and the likelihood that it would commit further violations to forestall their free participation in an election, is demonstrated by the fact that it closed B & P and terminated all the employees on the mere receipt of a demand for bargaining . Respondent did not even await the results of an election to determine whether or not it would have to bargain with the Union Moreover, here, as in Horizon Air, no circumstances appear which would mitigate the seriousness of the misconduct . Therefore, in view of the hallmark nature of the unfair labor practices committed, the lingering effects the Board and the courts have always found attached to such severe coercion, and the context in which these violations occurred, I find that Respondent's misconduct was so serious and final to compel a finding that the possibility of erasing its effects and ensuring a fair election by the traditional remedies is, at best, slight. Accordingly, I find that by failing and refusing to rec- ognize and bargain with the Union , on and after 18 Oc- tober, the date on which Respondent received the Union's demand and commenced its unlawful scheme to avoid having to recognize the Union ' 21 the Respondent has violated Section 8(a)(5) and ( 1) of the Act, and that the policies of the Act will best be effectuated by imposi- tion of a bargaining order to remedy those violations. unfair labor practices which were described by the 2 I Swan Coal Co , 271 NLRB 862 (1984) B & P TRUCKING 703 III. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As the unfair labor practices committed by Respond- ent are serious and go to the very heart of the Act, I shall recommend that it cease and desist therefrom and from in any other manner interfering with, coercing, and restraining its employees in the exercise of the rights guaranteed them by Section 7 of the Act.22 Having found that Respondent discriminatorily closed B & P and terminated all of its employees, I shall recom- mend that Respondent be required to resume the oper- ations of B & P and reestablish the status quo ante Such a remedy, the Board has repeatedly held, is appropriate "unless the wrongdoer can demonstrate that the normal remedy would endanger its continued viability." The burden of so establishing is on the Respondent. The Board holds "that the wrongdoer, rather than the inno- cent victim, should bear the hardships of the unlawful action " Monongahela Steel, supra. In the instant case, Respondent has not made any demonstration which would indicate that resumption of the trucking oper- ations would endanger its economic viability. The record reflects that while B & P had lost approximately $60,000 in the first 6 months of its operation, it was at least ap- proaching profitability and perhaps had crossed that threshold at the time of the shutdown. Additionally, there was no evidence indicating that B & P had not achieved the objective for which it was created, provid- ing Respondent with greater control over the timing of critical deliveries. Moreover, restoration of the status quo ante would require relatively little immediate cash investment; Respondent had leased its tractors before and could do so again And there is no indication that Re- spondent's financial situation is in any way precarious such that the burdens of this order might be undue and create a risk to its continued, viability. 23 Having found that Respondent discharged Gary Dona- hue in violation of Section 8(a)(1) of the Act and discri- minatorily discharged all of B & P's employees on 16 and 17 November, I shall direct that Respondent offer Vary Donahue and all of the former B & P employees who were terminated on 16 and 17 November24 immedi- ate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. I shall further direct that Respondent make Gary Donahue and each of the em- ployees who were terminated on 16 and 17 November whole for any loss of earnings they may have suffered by reason of the discrimination practiced against them, such earnings to be computed in accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 298 22 Horizon Air Services, supra, H,ckmott Foods, 242 NLRB 1357 (1979) 2a The facts of the instant case are distinguishable from the facts as found in the Board's Supplemental Decision and Order in Hood' Indus- tries, 273 NLRB 1587 (1985), or those existing in Purolator Armored, 268 NLRB 1268 (1984), enfd 764 F 2d 1423 (11th Cir 1985) 24 It is appropriate that the determination of which employees are enti- tled to reinstatement and backpay be made at the compliance stage of this proceeding Monongahela Steel, supra, fn 2 (1950), with interest thereon to be computed in the manner prescribed in Florida Steel Co., 231 NLRB 651 (1977). See generally Isis Plumbing Co., 138 NLRB 716 (1962). Further, having found that Respondent committed ex- tensive and pervasive unfair labor practices which were calculated to destroy, and may well have destroyed, the Union's previous majority status, and because I am per- suaded that the application of traditional remedies in- cluding the direction of a Board-conducted election cannot eliminate the lingering and restraining effects thereof, I shall recommend the issuance of a bargaining order effective as of the date that Respondent received the Union's demand for recognition and bargaining and commenced its course of unfair labor practices. Finally, in this regard, inasmuch as Respondent has terminated all the employees and closed the B & P facilities, I shall direct that a copy of the notice in this case be mailed to each member of the bargaining unit as of 16 November. CONCLUSIONS OF LAW 1. F. Strassburger Inc. and B & P Trucking Inc. com- prised a single integrated business enterprise and a single employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. By interrogating employees concerning their union activities, by threatening employees with closure of the business or other reprisals if they selected the Union as their collective-bargaining representative or sought im- proved benefits, and by discharging Gary Donahue be- cause of his protected concerted activity, Respondent has violated Section 8(a)(1) of the Act. 3. By discriminatorily terminating employees by clos- ing B & P Trucking, Inc. on 16 and 17 November 1985 because the employees had engaged in union activities, Respondent has violated Section 8(a)(3) and (1) of the Act. 4. The following collective-bargaining unit is appropri- ate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All over-the-road truckdrivers and maintenance me- chanics employed by Respondent at its Sioux City, Iowa location, excluding all office clerical employ- ees, guards and supervisors as defined in the Act. 5. Since 9 October 1984 the Union has been and is the exclusive collective-bargaining representative of all em- ployees employed in the above-described appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 6. By refusing on and after 18 October 1984 to recog- nize and bargain with the Union as the collective-bar- gaining representative of the employees in the above-de- scribed appropriate unit, Respondent has violated Sec- tion 8(a)(5) and (1) of the Act. 7 The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed25 ORDER The Respondent, F. Strassburger Inc. and B & P Trucking Inc., Sioux City, Iowa, its officers , agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Interrogating employees concerning their union ac- tivities or threatening them with the closing of the busi- ness, discharge, or other reprisals if they engage in union or other protected concerted activities. (b) Discharging employees because they engage in union or other protected concerted activities. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Gary Donahue and all B & P employees who were terminated on 16 and 17 November 1984 immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges and make them whole for any loss of earnings they may suffered by reason of the discrimination against in the manner set forth in the remedy section of this de- cision. (b) Remove from the files of Gary Donahue any refer- ence to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against him in any way. 25 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 (c) Reestablish the business operations of B & P Trucking, Inc. in Sioux City, Iowa, and restore the work formerly performed there by the terminated unit employ- ees. (d) On request, recognize and bargain in good faith with General Drivers and Helpers, Local Union No. 554, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive representative of all employees in the ap- propriate unit set forth below with respect to rates of pay, wages, and other terms and conditions of employ- ment and, if an understanding is reached, embody such understanding in a written, signed, document. The ap- propriate unit is. All over-the-road truckdrivers and maintenance me- chanics employed by Respondent at its Sioux City, Iowa location, excluding all office clerical employ- ees, guards and supervisors as defined in the Act. (e) Mail a copy of the attached notice marked "Ap- pendix" to each of the bargaining unit employees, includ- ing all those who were on its payroll immediately prior to 17 November 1984. Such notice shall be mailed to the last known address of each employee.26 Copies of the notice, on forms provided by the Regional Director for Region 18, after being duly signed by Respondent's au- thorized representative, shall be mailed immediately on receipt, as directed above (I) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 2e 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 0