Memphis Truck & Trailer, Inc., Memphis White Leasing, Inc., And Memphis Freightliner, Inc.

900 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Memphis Truck & Trailer, Inc., Memphis White Leasing, Inc., and Memphis Freightliner, Inc. and Highway and Local Motor Freight Employ- ees, Local Union No. 667, affiliated with the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America Memphis Freightliner Corporation and James R. Lovett. Cases 26-CA-8460, 26-CA-8722-2, and 26-CA-8783 10 July 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 26 August 1982 Administrative Law Judge Richard L. Denison issued the attached decision. Respondent Memphis Freightliner, Inc. (MF) filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the judge's deci- sion. 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 1 and has decided to affirm the judge's rulings, fmdings,2 and conclusions as modified and to adopt the rec- ommended Order as modified. 1. In examining the alleged successorship status of MF to Respondents Memphis Truck & Trailer (MTT) and Memphis White Leasing (MWL), the judge found evidence showing continuity of busi- ness enterprise and work force which, in view of all the circumstances, supported a finding of successorship under NLRB v. Burns International Security Services, 406 U.S. 272 (1972). Thus, he found that MF was obligated to bargain with the Union from the date in August 1980 when it opened for business. Noting that the Supreme Court has recently reaffirmed the principles set forth in Burns in its decision in Fall River Dyeing Corp., 107 S.Ct. 2225 (1987), we adopt the judge's findings here. MF's request for oral argument is denied as the record adequately presents the issues and the parties' positions 2 MF has excepted to some of the Judge's credibility findings The Board's established policy is not to overrule an administrative law Judge's credibihty resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Prod- ucts, 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 find- ings In connection with MF's refusal to hire James Lovett, we rely in part on Lynn Smith's statement that the refusal was "because he will bring the Teamsters" Member Stephens agrees, being persuaded that Smith was speaking for management, but he finds it unnecessary to decide whether she was a statutory supervisor 284 NLRB No. 99 In addition to the evidence set forth by the judge, the record shows that when MF began op- erating, all six of its hourly paid employees had previously been employed at comparable positions at MTT-MWL. Also, at least eight of the next nine hourly paid employees that MF hired had been in the MTT bargaining unit when it closed. The infer- ence is clearly warranted that MF intended to re- cruit its employees from the ranks of MTT-MWL employees, and the inference is reinforced by testi- mony that members of MF's management told MTT employees that they would have jobs at MF when it opened. We reject MF's contention that there was no substantial continuity of employment between its work force and that of MTT-MWL because many employees held interim jobs between working for MTT-MWL and being hired by MF. On the facts of the case we agree with the judge that these em- ployees held interim jobs to avoid the conse- quences of unemployment and were waiting to obtain employment at MF. We need not decide, therefore, how, under other circumstances, the holding of interim jobs affects the question of the continuity of the work force. 2. We also adopt the judge's finding that MF, as successor, is liable to remedy the unfair labor prac- tices of MTT-MWL, because management repre- sentatives Fordyce, Morris, and Archibald moved from MTT-MWL to MF with full knowledge of MTT-MWL's unfair labor practices. 3 We do not adopt, however, that part of the judge's recom- mended remedy which requires MF to offer em- ployment to those employees that MTT-MWL un- lawfully laid off contrary to seniority provisions of the collective-bargaining contract and to give them backpay until the date it offers them employment. If MTT-MWL had observed the seniority terms of the contract, it would have given the most senior employees jobs at MWL only until sometime in August 1980 when MWL ceased operating. MF would not have been obligated to hire those indi- viduals and, consequently, the recommended remedy would provide a windfall for the affected employees. Accordingly, we will not order MF to reinstate those employees and will terminate their backpay at the date MWL ceased operating, with interest to be computed in the manner prescribed in New Horizons for the Retarded.4 3 No exceptions were filed to the Judge's findings of unfair labor prac- tices by MTT-MWL 4 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), mterest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U S C. § 6621 We leave to the compliance stage of this proceeding determination of which senior employees are entitled to backpay and the date their em- ployment at MWL would have ended. MEMPHIS TRUCK & TRAILER 901 3. We find, as did the judge, that Memphis Freightliner Employee Advisory Committee is a labor organization as defmed in Section 2(5) of the Act, and that MF violated Section 8(a)(2) of the Act by instituting and dominating the Committee.6 According to MF's president, Fordyce, he sug- gested formation of the Committee as a means of communication between management and employ- ees, and testified that "it was there for [the employ- ees] to express whatever they wish to." He further testified that the Committee represented a majority of MF's employees, and that the employees have been satisfied with the representation. Fordyce participated in drafting committee rules and arranged for the election of committee mem- bers. The Committee was composed of three em- ployees who were elected by fellow employees for a 1-year period and could not succeed themselves. They met with Fordyce once a month on company time, and after the meetings Fordyce prepared min- utes that were signed by the committee members and posted for the information of employees. Sometimes committee members discussed matters with employees at lunch or breaktime. At the monthly meetings Fordyce and the Committee dis- cussed various aspects of employment: e.g., retire- ment, parking problems, uniforms, the service truck, tool storage, plans for a new building, and employee sentiment concerning the Union. Shortly before the hearing in this case, the Committee con- ducted a survey, with ballots and an eligibility list furnished by Fordyce, to determine whether em- ployees wanted to be represented by the Union. Because the Committee represented MF's em- ployees in discussions with management that in- volved employee benefits and working conditions, 5 Members Babson and Stephens consider it necessary to resolve the 2(5) and 8(a)(2) issues because the permissible scope of the Order is de- pendent on determination of those questions If a group is a labor organi- zation within the meaning of Sec 2(5) of the Act, then the Board is not free to order disestablishment of the group without making a finding that it is "dominated" within the meaning of Sec. 8(a)(2) of the Act. NLRB v. Mine Workers District 50, 355 U.S 453,458-459 (1958). The Order in this case includes a disestablishment provision, and in their view District 50 precludes giving that remedy so long as the Board leaves open the possi- bility (by declining to decide the issues) that a labor organization would be thereby disestablished in the absence of a finding of domination. Member Johansen finds it unnecessary to decide the 2(5) and 8(a)(2) issues. He would find that by creating the Committee and using it to un- dermine the Union, MF violated Sec 8(a)(1) of the Act and should remedy the unfair labor practice and return conditions to the status quo ante by abolishing the Committee. Middletown Hospital Assn., 282 NLRB 541 (1986). Because the Committee is "employer dominated," its status as a "labor organization" vel non is irrelevant for remedial purposes Member Babson notes that in Middletown Hospital Assn., supra, it was unnecessary to find whether the professional relations conference group was a labor organization within the meaning of Sec 2(5) as the complaint in that case did not allege that the formation of the group violated Sec. 8(a)(2) He further notes that in ordering the respondent to discontinue the group, the Board did so on the basis, that the committee was estab- lished pursuant to an unlawfully promised benefit which violated Sec. 8(a)(1) we conclude that it possesses all the elements of a labor organization within the statutory defmition. See NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959); Lawson Co. v. NLRB, 753 F.2d 471 (6th Cir. 1985). 6 For the reasons stated by the judge, there is little doubt that MF assisted and dominated the Committee in violation of Section 8(a)(2) and (1). ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondents, Memphis Truck & Trailer, Inc., Mem- phis White Leasing, Inc., and Memphis Freight- liner, Inc., Memphis, Tennessee, their officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph A, 2(b). "(b) Make whole those employees of Memphis Truck & Trailer, Inc. who were unlawfully laid off contrary to contract seniority provisions, beginning about 15 May 1980, for any loss of pay they suf- fered as a result of the unlawful layoff, from the date of their layoff until the date that Memphis White Leasing, Inc. ceased operating, and make whole all the Memphis Truck & Trailer, Inc. bar- gaining unit employees for any pay they lost due to unlawful unilateral changes in their employment conditions, in the manner set forth in the remedy section of the decision." 2. Substitute the following for paragraph B,2(b). "(b) Offer James R. Lovett immediate employ- ment to the job at which he would have been em- ployed had he not been discriminated against or, if that job no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or any other rights or privileges he might have previ- ously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the decision." 3. Substitute the attached notices for those of the administrative law judge. 6 We consider the case distinguishable on the facts from NLRB v Scott & Fetzer Co, 691 F 2d 288 (6th Cir 1982) Here the Committee was rep- resentational in nature and not merely a vehicle for individual employees to communicate with management; and the employer, MF, which had ex- pressed an intention to operate nonunion, used the Committee to discuss employees' umon concerns and to determine the amount of employee support for the Union 902 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX A 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 refuse to bargain with Highway and Local Motor Freight Employees, Local Union No. 667, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive collective-bar- gaining agent of our employees concerning rates of pay, wages, hours of employment, and other terms and conditions of employment. The appropriate unit is: All mechanics, mechanics' helpers, servicemen, parts department employees, porters, and steam cleaners employed at our Memphis, Tennessee facilities, excluding all office cleri- cal employees, service representatives, sales department employees, guards and supervisors as defined in the Act. WE WILL NOT unilaterally change the wages, rates of pay, hours of employment, and other terms and conditions of employment of our employees without notice to or bargaining with the Union by laying off employees out of seniority and by failing and refusing to pay them vacation pay and 3 days' penalty pay for layoff without notice, contrary to the provisions of an existing collective-bargaining agreement. WE WILL NOT unilaterally discontinue payments to the Central States, Southeast and Southwest Area Health and Welfare Fund and the Central States, Southeast and Southwest Area Pension Fund specified by the terms of the then existing collective-bargaining agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL make whole those employees of Mem- phis Truck & Trailer, Inc. who were laid off con- trary to contract seniority provisions, beginning about 15 May 1980, for any loss of pay they suf- fered as a result of the layoff, from the date of their layoff until the date that Memphis White Leasing, Inc. ceased operating, and WE WILL make whole all the Memphis Truck & Trailer, Inc. bar- gaining unit employees for any pay they lost due to unlawful unilateral changes in their employment conditions, plus interest. WE WILL pay to the Central States, Southeast and Southwest Area Health and Welfare Fund and the Central States, Southeast and Southwest Area Pension Fund all delinquent contributions to these funds by Memphis Truck & Trailer, Inc. and Mem- phis White Leasing, Inc., in accordance with arti- cles 20 and 21 of the 1 June 1978-1 June 1980 col- lective-bargaining agreement. WE WILL, on request, bargain in good faith with Highway and Local Motor Freight Employees, Local Union No. 667, affiliated with the Interna- tional Brotherhood of Teamsters, Chauffeurs, War- ehousemen and Helpers of America as the exclu- sive collective-bargaining agent for our employees in the above specified unit and, if an understanding is reached, embody that understanding in a signed collective-bargaining agreement. MEMPHIS TRUCK & TRAILER, INC.; MEMPHIS WHITE LEASING, INC. 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. 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 engage in any of these pro- tected concerted activities. WE WILL NOT refuse to recognize and bargain with Highway and Local Motor Freight Employ- ees, Local Union No. 667, affiliated with the Inter- MEMPHIS TRUCK & TRAILER 903 national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the ex- clusive collective-bargaining agent of our employ- ees concerning rates of pay, wages, hours of em- ployment, and other terms and conditions of em- ployment. The appropriate unit is: All mechanics, mechanics' helpers, servicemen, parts department employees, porters, and steam cleaners employed at our Memphis, Tennessee facilities, excluding all office cleri- cal employees, service representatives, sales department employees, guards and supervisors as defined in the Act. WE WILL NOT recognize the Memphis Freight- liner, Inc. Employee Advisory Committee, or any successor, as the representative of our employees concerning grievances, wages, rates of pay, hours of employment, or other terms and conditions of employment. WE WILL NOT discriminate against James R. Lovett, or any other employee, because of union or protected concerted activities or because of charges filed with the National Labor Relations Board, nor will we discriminate against them be- cause we believe they engaged in these activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guarenteed you by Section 7 of the Act. WE WILL recognize and, on request, bargain in good faith with the Union as the exclusive collec- tive-bargaining agent for our employees in the above specified unit and, if an understanding is reached, embody that understanding in a signed collective-bargaining agreement. WE WILL offer James R. Lovett immediate em- ployment to the job at which he would have been employed had he not been discriminated against or, if that job no longer exists, to a substantially equiv- alent position, without prejudice to his seniority or any other rights or privileges he might have previ- ously enjoyed, and WE WILL make him whole for any loss of earnings and other benefits resulting from the discrimination against him, less any net in- terim earnings, plus interest. WE WILL withdraw recognition from and will completely disestablish the Memphis Freightliner Employee Advisory Committee, or any successor, as the representative 9f our employees concerning wages, rates of pay, hours of employment, or any other terms and conditions of employment. MEMPHIS FREIGHTLINER, INC. Ronald E. Gilman, Esq. (Farris, Hancock, Gilman, Branan, Lanier & Hellen) and James T Fordyce, presi- dent, of Memphis, Tennessee, for the Respondent. C. R. Boyd, Jr., agent, Duria Jones, Jr., agent, and John L. Koelz Esq. (also appearing on behalf of Central States, Southeast and Southwest Areas Health and Welfare and Pension Funds, a Party in Interest), for the Charging Parties. DECISION STATEMENT OF THE CASE RICHARD L. DENISON, Administrative Law Judge. This consolidated proceeding was heard at Memphis, Tennessee, on August 3, 4, and 5, 1981, based on original charges in Cases 26-CA-8460 and 26-CA-8722-2 filed by the Union on May 30 and November 6, 1980, respec- tively, and subsequently amended, and on an original charge in Case 26-CA-8783 filed on December 16, 1980, by James Lovett, an individual, and amended on August 5, 1981. 1 The consolidated complaint, as amended, al- leges violations of Section 8(a)(1) and (5) of the Act by Memphis Truck & Trailer, Inc. and its subsidiary Mem- phis White Leasing, Inc. for which its alleged successor Memphis Freightliner, Inc. is alleged to be responsible. These allegations include the alleged improper layoff of Memphis Truck & Trailer, Inc. employees out of seniori- ty and without payment of vacation pay and 3 days' pen- alty pay for layoff without notice, in contravention of the existing collective-bargaining agreement. It is also al- leged that Memphis Truck & Trailer, Inc. and Memphis White Leasing, Inc. refused to bargain in good faith with the Union by refusing to sign a negotiated contract after it had been reduced to writing and by failing and refus- ing to honor its contractual obligations to the Union and the Central States, Southeast and Southwest Areas Health and Welfare and Pension Funds. It is further al- leged that Memphis Freightliner, Inc. violated Section 8(a)(1), (3), and (4) of the Act by refusing to hire James R. Lovett and violated Section 8(a)(2) of the Act by dominating and interfering with the formation and ad- ministration of the Employee Advisory Committee, a labor organization to which it contributed financial and other support. Finally, it is alleged that Memphis Freightliner, Inc., as succesor, violated Section 8(a)(1) and (5) by refusing to recognize and bargain with the Union. The Respondent's answers deny the allegations of unfair labor practices alleged in the complaint. On the entire record in the case, including my consid- eration of the briefs and observation of the witnesses, I make the following FINDINGS OF FACT L JURISDICTION At all times material herein, Respondent Memphis Truck & Trailer, Inc., a corporation with an office and place of business in Memphis, Tennessee, has been en- gaged in the business of selling and repairing trucks and Timothy J. O'Leaty, Esq., for the General Counsel. 1 All dates are in 1980 unless otherwise specified. 904 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD trailers. 2 MIT annually, in the course and conduct of its business operations, sold and shipped from its Memphis, Tennessee facility products, goods, and materials valued in excess of $50,000 directly to points outside the State of Tennessee. During the same period, in the course and conduct of its business operations, MTT purchased and received at its Memphis, Tennessee facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Tennessee. At all times material herein, Respondent Memphis White Leasing, Inc. has been a wholly owned subsidiary of MTT engaged in the business of leasing trucks and trailers and repairing those leased vehicles. 8 MWL annu- ally, in the course and conduct of its business operations, sold and shipped from its Memphis, Tennessee facility products, goods, and materials valued in excess of $50,000 directly to points outside the State of Tennessee. During the same period, MWL likewise purchased and received at its Memphis, Tennessee facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Tennessee.4 Respondent Memphis Freightliner, Inc. is a corpora- tion with an office and place of business in Memphis, Tennessee, where it is engaged in the retail sale and serv- ice of trucks. 5 At all times material herein, since com- mencing operations about August 1, 1980, in the course and conduct of its operations, MF has sold and shipped from its Memphis, Tennessee facility products, goods, and materials valued in excess of $50,000 directly to points outside the State of Tennessee. During the same period of time, MF likewise, in the course and conduct of its operations, purchased and received at its Memphis, Tennessee facility products, goods, and materials valued in excess of $50,000 directly from points outside the State of Tennessee. Therefore, based on the allegations in the consolidated complaints, as amended, and the admissions in the Re- spondent's answers, I find that the Respondents, each of them, has been, at all times material herein, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.8 III. THE UNFAIR LABOR PRACTICES A. MTT and MWL Are a Single Integrated Enterprise The facts concerning the Respondents' businesses and the events which gave rise to this proceeding are, for the most part, undisputed. 2 Referred to at times in this decision as MIT "Referred to at times in this decision as MTT 4 These findings concerning MWL are based on the complaint allega- tions and an amalgam of the admissions in the answers of all Respond- ents. 5 Referred to at times in this decisions as MF 6 The record shows that proper service was made and effected on McDonald Yawn, Esq , the attorney representing MIT and MWL, of all charges and complaints naming those corporations as Respondents. The record also shows that about July 11, 1980, McDonald Yawn, as attorney for MIT and MWL, filed an answer to the complaint in Case 26-CA- 8460, issued June 27, 1980. Thereafter, no representative of MTT and MWL filed any further pleadings nor, despite proper service of the nonce of hearing, appeared nor participated in the hearing in this matter. MIT and its wholly owned subsidiary MWL were chartered by the State of Tennessee on May 18, 1971. Until it closed on May 15, 1980, MTT operated a truck and trailer dealership at 949-970 Channel Avenue in an industrial park area of President's Island, in Memphis, Tennessee. MTT possessed separate franchises to sell Freightliner, White, Mercedes, and Volvo trucks and Hobbs and Strick trailers. Parts, servicing, and repairs were also available at this facility utilizing a work force of approximately 87 individuals. 7 Included in this total complement were those individuals who worked for MTT's wholly owned subsidiary MWL, which was, until its closure in August, located at 1055 Harbor Avenue, across the street from the MIT property. On the MWL premises were facilities for maintaining and repairing the trucks it leased and the MTT-MWL corporate offices. As of October 1979 the stockholders of MTT, their re- spective positions, and their interests were: Howard Bon- nett, formerly president and chairman of the board of both MIT and MWL, 77.1 percent; James T. Fordyce, president of MIT after April 1979, 6.7 percent; Early Morris, secretary and treasurer of MIT and vice presi- dent of MWL, 11.6 percent; V. K. Gressel, 4.6 percent. MTT and Local 667 were parties to a single collective- bargaining agreement, executed by Charles R. Boyd for the Union and Howard Bonnett for the Company, recog- nizing the Union as exclusive bargaining agent for a single unit of MTT-MWL employees. The term of the contract was June 1, 1978, to June 1, 1980. 8 Under the provisions of this contract MIT and MWL employees had common benefits and terms and conditions of em- ployment, including a single integrated seniority list. Un- disputed testimony by former long service MTT me- chanics Thomas Parham and James R. Lovett established the existence of a common bidding procedure regularly exercised by bargaining unit employees for job assign- ments at each of the respective facilities. It was further established through their testimony that before May 15 it was not uncommon for them to be sent to perform work at MWL for which they were paid by means of an MTT check after having recorded the job number on their MTT timecard. According to Parham, while working at MWL he was supervised by MWL Service Manager Clayton Steven Archibald instead of his regular supervi- sor, MTT Service Manager Bill Thompson. Archibald did not dispute this testimony, but added that it was Thompson who hired employees for MWL after consid- ering Archibald's recommendations. The Board has long held that assessing whether a series of business organizations constitutes a single em- ployer is dependent on an evaluation of four indicators: interrelation of operations, common management, 7 Based on the uncontradicted testimony of James T. Fordyce as illus- trated by R Exh. 6. 8 The unit description in that contract is All mechanics, mechanics' helpers, servicemen, parts department em- ployees, porter and steam cleaner employed at Memphis, Tennessee, in accordance with the certification of representative issued by the National Labor Relations Board in Case No. 26-RC-2558, dated Jan- uary 27, 1966; but excludes all office clerical employees, service rep- resentatives, sales department employees, guards and supervisors as defined in the Act. MEMPHIS TRUCK & TRAILER 905 common ownership or financial control, and centralized control of labor relations. The Board has further expli- cated "that a critical factor in determining whether sepa- rate legal entities operate as a single employing enter- prise is the common control of labor relations policies and that common ownership is not determinative where such requisite common control is not shown." Western Union Corp., 224 NLRB 274, 276 (1976). Applying this test to the undisputed evidence summarized above, it is readily apparent, and I find, that MTT and MWL were at all times material herein a single integrated enterprise and, thus, a single employer. The employees of both enti- ties were represented under a single collective-bargaining agreement by Local 667. The MWL employees were hired by MIT supervision and shared common benefits and working conditions. Under these circumstances, it cannot be disputed that the two Companies had a common labor relations policy. They were also function- ally integrated and had a common ownership and super- vision as illustrated by the testimony described above. Thus, when MIT ceased operations on May 15, as de- scribed in succeeding portions of this decision, MWL re- mained for a significant period of time as the surviving arm of the corporation. B. The Alleged Violations of Section 8(a)(5) and (1) of the Act by Memphis Truck & Trailer, Inc. and Memphis White Leasing, Inc. Howard Bonnett died on October 29, 1979, and thus the majority interest in MTT-MWL passed to his estate. As executrix, Mrs. Bonnett employed Attorney Ed Rus- sell, who, together with James T. Fordyce, testified, without any substantial contradiction, concerning the subsequent efforts to negotiate the sale of the Bonnett in- terest under the terms of a restrictive stock agreement requiring a deceased stockholder's stock to be sold to the corporation. These negotiations began in December 1979, and were unsuccessfully concluded in March. The reasons for the failure are evident from the following. Fordyce testified that he learned, shortly after having as- sumed the presidency of MIT in April 1979, that the Company was out of trust with the National Bank of Commerce concerning money advanced the corporation for the purchase of trucks but never repaid. Fordyce blamed this fmancial condition on expenses incurred by Howard Bonnett. When Russell learned early in the ne- gotiations that MIT was out of trust to NBC to the alarming extent of $500,000 to $700,000, he reported the situation to the bank, which then began to closely follow the course of the negotiations. Under these circum- stances, Fordyce took the position that MTT was in no position to purchase the Bonnett interest. At a meeting held on March 10, Fordyce revealed that he was at- tempting to negotiate the sale of MIT to prospective pu- chasers he was unwilling to identify. 9 However, For- 9 The prospective purchasers later were revealed to be two of MT'T's franchisers, truck manufacturers White Motor Company and Freightliner Corporation. Fordyce asserted that the need for secrecy stemmed from the fact that these two corporations were direct competitors Shortly thereafter, however, White Motor Company ceased to be a potential buyer because of its own financial difficulties. dyce's efforts to sell MTT' concluded in failure on or about May 13. On May 15 NBC seized MIT's assets for being in default of the trust agreement. MIT ceased op- erating and laid off most of its employees, but, as dis- cussed in subsequent portions of this decision, MWL continued in business until sometime in August. On May 15 the collective-bargaining agreement be- tween MIT and the Union was still in effect. However, as required by law, on March 12 the Union notified the Company of its intention to negotiate changes or revi- sions in the agreement beginning June 1, and informed the Federal Mediation and Conciliation Service of the existence of a dispute between the parties as of that date. Negotiating meetings were held on May 1 and 2. The participants were the Union's business agent, Charles R. Boyd, Jr., employee job steward Curtis Owens, General Manager Bill Thompson, and, for a portion of one meet- ing, James T. Fordyce. A tentative agreement was reached on contract language and the parties adjourned to permit Fordyce to prepare the Company's economic proposal, which he presented to the Union about May 5, accompanied by an explanation of the Company's eco- nomic condition. Boyd agreed to present the proposed contract to the membership and did so, but ratification was rejected. On the evening following the union meet- ing Boyd called Thompson, relayed the result, and ex- plained that the Company's proposed elimination of the sift differential seemed to be the biggest problem. In the following days the Company submitted a revised propos- al which was agreed to and ratified on May 13. Fordyce conceded that by May 13 the parties had reached on oral agreement. On the morning of May 14 Boyd notified Thompson by telephone that he would have the ratified contract typed for signature. Later that day Fordyce sent a letter to Boyd thanking him for is tremendous coopera- tion during the recent negotiations. Later in the day, however, when Boyd called to tell Thompson that the contract was ready for signature, Thompson stated that Boyd should put it on hold, to hold it, that the officers of the Company were meeting, and he did not know what the outcome of the meeting was going to be. On May 15 the bank seized MTT's assets and Thomp- son announced the closing of the Company to the assem- bled employees. James Lovett, Thomas Parham, M. F. Fanning, L. L. Beard, W. J. Rogers, W. Beloate, H. Gupton, L. Dillard, and E. W. Todd were retained to work for Steve Archibald at MWL. The other eniploy- ees were laid off, including J. E. Smith and A. Ellis, who ranked numbers 1 and 2, respectively, on the senior- ity roster, and C. E. Owens, who had more seniority than did E. W. Todd. R. V. Tapp, who outranked Gupton, Parham, Dillard, Owens, and Todd, was in the hospital at this time and was also bypassed. Later that day Boyd first learned of the layoffs and retentions in a phone conversation with Job Steward Owens, one of the bypassed employees. Boyd then phoned Thompson and questioned him about the selections. The conversation ended with Boyd and Thompson in agreement that the Company had acted properly based on Thompson's as- surances that only 7 to 10 days' work remained, that Tapp was in the hospital, and that Smith, Ellis, and 906 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Owens desired to begin looking for other work immedi- ately rather than remain." On May 22 Boyd talked by phone with Early Morris, vice president of MWL. By this time Boyd had learned that MWL intended to remain in business longer than the period specified by Thompson. He had attempted to reach Fordyce by phone, but was told he was not avail- able. Boyd protested that if the employees were going to continue working, the Company should offer work to the men according to seniority because they were still operating under a contract with the Union. Morris re- plied that the matter was out of his hands. In addition, Boyd wrote to Morris on May 22 and 23 promising "fur- ther action" if the ratified contract was not signed. Also on May 22 Boyd filed grievance under articles 2, 12, 13, and 24 of the collective-bargaining agreement over the Respondent's failure to sign the contract, layoff of em- ployees out of seniority, refusal to pay the employees 3 days' pay in lieu of notice of layoff, and failure to pay the workers accrued vacation. Furthermore, in talks with Morris on a number of occasions during the following days, he also learned that MTT-MWL was refusing to make payments for the Central States, Southeast and Southwest Areas Health and Welfare Fund as required by the collective-bargaining agreement. On May 28 Morris wrote to Boyd stating that MIT was going out of business, but that MWL was maintain- ing a shop for "an indefinite period of time." He stated that the Company could not pay the employees for their vacation or for 3 days in lieu of layoff notice because there was no money available and concluded that he did not see the necessity of signing the contract. The Union then filed charges in Case 26-CA-8460 al- leging 8(a)(1), (3), and (5) violations by MTT. By letter dated June 10, Boyd renewed his request that MTT and MWL sign the ratified contract. A response was written on June 16 by Company Attorney McDonald Yawn, stating that, because MTT was no longer in existence, it would not be necessary to sign the contract. Yawn con- cluded by stating that MWL was still in business, that they were hopeful of selling that Company intact, and that MWL was willing to sign an agreement, However, MWL ceased business in August without ever having signed a contract with the Union. The Respondent contends that it was not obligated to sign the proposed collective-bargaining agreement be- cause it was never delivered and because M'TT went out of business on May 15. I fmd these arguments to be with- out merit. The undisputed evidence shows that the con- tract was ratified on May 13, and Respondent was ad- vised of this fact on May 14, at which time Boyd noti- fied Fordyce that the contract was typed and ready for signature. Thereafter, Boyd made a number of efforts to arrange for the formal signing of the agreement, each of which was unsuccessful. The Company did not request Boyd to engage in further negotiations or renegotiation of their agreement in the light of altered circumstances. Although MIT went out of business on May 15, MWL remained in business until August Nevertheless, no con- 10 These findings are made on the basis of Boyd's undisputed testimo- ny. Thompson did not testify tract was ever signed. It is a basic tenet of labor relations law that the parties to collective-bargaining negotiations are obligated to promptly sign a contract once it has been reduced to writing. That this was not done in the instant case could not be more clear. Futhermore, the circumstances reveal an intent to mislead Boyd in that he was told that MWL would remain in business only a few days and that it was willing to sign an agreement with the Union. MWL remained in business until late August without any agreement being signed. Under all these cir- cumstances, in my view, Respondents MIT and MWL fell far short of the standard of good-faith bargaining which the Act requires. I fmd that Respondents MIT and MWL violated Seetion 8(a)(1) and (5) of the act by refusing to sign the collective-bargaining agreement rati- fied by the Union's membership on May 13. Both the labor contract which expired on June 1, 1980, and the collective-bargaining agreement ratified by the Union on May 13 contained provisions governing layoffs by seniority, vacation pay, 3 days' pay in lieu of notice of layoff, and payments to the Union's health and welfare and pension funds. It is undisputed that after May 15 both MIT and MWL failed to honor these pro- visions. Moreover, in each of these instances Boyd was presented with a fait accompli with no opportunity to bargain effectively with either Respondent over the ef- fects on the employees of the decision to close. Although it is true that Boyd initially acquiesced to Morris' tele- phonic assurances that the out-of-seniority retentions at MWL would last only a few days, this agreement was based on erroneous information designed to conceal the fact that MWL would remain in business for some time. Thus, those employees who elected to leave might have decided to stay with MWL had they been informed truthfully. I fmd that the Respondent further violated Section 8(a)(1) and (5) of the Act by its failure to honor the provisions of the collective-bargaining agreements governing layoffs, vacation pay, pay in lieu of notice, and payments to the union funds. C. The Issue of Whether Memphis Freightliner, Inc. Is the Successor to Memphis Truck & Trailer, Inc. and Memphis White Leasing, Inc. After MTT closed on May 15, MWL remained in business while in the process of disposing of trucks and some of the other assets. Meanwhile, Memphis Peterbilt, Inc. d/b/a Memphis Truck Center (MTC), a competitor located on an adjacent premise, acquired and occupied the MIT shop building, truck lot, and switchboard. MTC also obtained MTT's White Truck franchise, and bought, at a substantial discount, some of MIT's inven- tory. During the months May through September, MTC hired 15 former MIT employees. MIT's remaining building, the bodyshop, was acquired by Pinkston Weld- ing Company for use as a repair shop. Two former MIT employees were hired by Pinkston. James T. Fordyce testified that one of several possibili- ties which existed when he ceased his employment with MIT on May 15 was opening a Freightliner dealership, aided by Freightliner Marketing Development Corpora- tion. Fordyce realized the availability of this alternative MEMPHIS TRUCK & TRAILER 907 during discussions with Sal Galluzzo of Freightliner when they discussed the possibility of Freightliner's pur- chasing MTT before it closed. According to Fordyce, about a week after May 15 he began negotiating with Galluzzo to become Freightliner's dealer in Memphis. His efforts were successful, and the negotiations were concluded in late June. Fordyce became only a minority stockholder in the new corporation because of a lack of sufficient investment capital. On July 7 MF was incorpo- rated in the State of Delaware. It applied for a license to transact business in Tennessee on August 6 and was li- censed on August 29. Among the corporate officers are President James T. Fordyce, Secretary-Treasurer Charles E. Burgeon, and Vice President Early Morris. On the board of directors, together with Fordyce and Burgeron, is Gary W. Masner and Sal R. Galluzzo. While 10 percent of the stock is owned by Fordyce, the remainder belongs to Freightliner Marketing Develop- ment Corporation of Portland, Oregon. According to Fordyce, MF was franchised, received its dealer identifi- cation number, and consummated its first truck sale in mid-August. Although the record does not precisely reveal whether MF began operations shortly before or shortly after MWL closed, it is clear that the interval or overlap, if any, between the two events was short. MF's facility is situated at 1368 Riverside Drive, about 2 miles from MTT's former premises. According to Fordyce, he searched for these premises through an industrial realtor. As of August 18, counting President Fordyce, Service Manager Archibald, and Assistant Secretary and Comp- troller Morris, MF had a total complement of 16 persons, all of whom had been previously employed on May 15 by either MIT or MWL. Also in the spring of 1980, as the circumstances sur- rounding MIT's financial problems were reaching crisis proportions and Fordyce began to consider his alterna- tives in the event of the corporation's demise, he and other company supervision began laying the groundwork which resulted in a considerable resemblance between the work force at MIT and the new operation at MF. Lynn Smith, former parts department supervisor at Afrr, became MF's data processing supervisor-parts and service administrator on August 4• 1 One of Smith's sub- ordinates at MTT was Alfred Smith Payne. Prior to the closing of MTT, Payne told Smith that he thought some- thing was wrong because there were rumors going around that MTT was going to fold. Smith replied that "Fordyce was trying to get a hold of the Freightliner dealership and we would be opening up, or he would keep it going. Smith said that she would go to work for Fordyce and that Payne would probably be able to get a job with him also. Later, Payne called Fordyce at his home. He stated that he had heard that Fordyce was opening a Freightliner business and asked if he was going to need any help. Fordyce answered that he had Payne's phone number and would call him if he needed someone. Thereafter, Fordyce called Payne and em- ployed him at MF in a cleanup capacity with the prom- ise that Payne would shortly be working on the parts " Smith's alleged supervisory status at MF, which is contested, is dis- cussed later in this decision counter as MF expanded. Only after Payne began work- ing at MF was he required to fill out an employment ap- plication in late November. Mechanic James R. Lovett talked with Service Man- ager Steve Archibald about future employment while he and Archibald were still winding up business at MWL. Archibald said Fordyce had obtained the Freightliner franchise and that he was going to work at the new deal- ership with Fordyce and Early Morris. Lovett asked if there was going to be a place for him at the new oper- ation, and Archibald assured Lovett that he was on the list. 12 Lovett then called Fordyce at his home and asked about the new dealership and the prospect of employ- ment. Fordyce stated that he had not yet obtained the dealership, but would call Lovett if he did. Fred Whitman, a former MIT transmission mechanic laid off on May 15, testified that Archibald discussed future employment at MF with him in August. Archi- bald stated he was supposed to be service manager at the new operation, and would be in charge of hiring. Whit- man asked to be called when Archibald was ready to hire a mechanic. Archibald answered that the new oper- ation would be nonunion, and they did not want or need a union because they were planning to take care of their employees in a manner in which a union would not be needed. Archibald did not deny making this statement to Whit- man, nor did he dispute Lovett's testimony that he and Lovett discussed Lovett's future employment while both men were still working at MWL. He agreed that he and Early Morris discussed the prospect of another Freight- liner franchise opening while they were working at MWL and that they knew Fordyce was actively seeking such a franchise. Therefore, I credit Whitman's testimo- ny concerning this incident. The Union filed charges with the Memphis Regional Office of the Board claiming that MF was the successor of mrr and therefore in violation of Section 8(aX1) and (5) of the Act by failing to recognize it as the bargaining agent of its employees. On December 8, C. R. Boyd wrote to James T. Fordyce, as president of MF, demand- ing recognition as bargaining agent on the basis of its certification by the Board in the MIT bargaining unit. Fordyce acknowledged receipt of this letter on Decem- ber 12. His only additional comment was that it had been furnished to the Company's attorneys for consideration. After charges had been filed alleging that MF was the successor to MTT, Archibald raised the subject of those filed against the Company with MF employees during "small talk" coffeebreak conversations in the shop. Be- cause the Union's charge originally alleged that MF was the successor to MTT's union contract, some of the em- ployees expressed concern for the future of their jobs, stating that they did not want or need a union. Archibald denied having ever asked employees concerning their feelings about the Union, but agreed that he sought to reassure them stating, "I don't see how the union can connect our company to that company." These conver- 12 Lovett's testimony on this point is undisputed. MF's subsequent re- fusal to hire Lovett is an issue discussed elsewhere in this decision. 908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD sations with employees gave rise to a discussion between Archibald and Fordyce in November about the employ- ees' concern over the Labor Board charges. Thereafter Fordyce held a meeting with the employees in which he told them that through the NLRB the Union was con- tending that MF was a successor to MTT and its union contract and that as successor they were responsible for back wages and had to recognize the Union. He said that the Company's position was this was not so; it had been turned over to their lawyer, and there would be a hear- ing. However, he stated that he could neither deny nor confirm making a statement to the employees that if the Union came in MTT employees with more seniority would be coming to MF and they might lose their jobs, although he agreed that was a possibility. At another point in his testimony Fordyce conceded that loss of jobs would be an "obvious" result of those circumstances. Fordyce was unable to relate the precise sequence of the events which occurred at the meeting." Thus, he stated, he could not deny counsel for the General Counsel's as- sertion that it was after his statement about losing jobs that employees voiced their opinion to him that they did not want a union at MF." Counsel for the General Counsel notes that under the United States Supreme Court's decision in NLRB v. Burns Security Services, 406 U.S. 272 (1972), the Respond- ent here may not be compelled to accede to the MTT/MWL contract. However, the General Counsel contends that the Respondent is the successor to MTT/MWL, and as such is jointly and severally liable to remedy the unfair labor practices of these corpora- tions, and should be required to recognize and bargain with the Union. Respondent MF strenuously argues that it is not the successor of MTT/MWL under the applica- ble precedents. It denies responsibility for MTT's and MWL's unfair labor practices, if any occurred. MF ad- vances three basic contentions concerning the successor- ship issue. It asserts that there is a substantial absence of continuity between MF and MTT. In pressing this con- tention it argues that, following the closure of M'IT, its facilities became fragmented and dispersed to other em- ployers and the identity of the work force disintegrated and was "scattered to the winds." Second, MF asserts that the evidence demonstrates a complete lack of union support among MF's employees. Third, MF denies the appropriateness of the alleged appropriate unit. 13 This meeting and the informal conversation were later revealed to be part of MF's activities associated with the Memphis Freightliner Fin- ployee Advisory Committee, discussed elsewhere in this decision in con- nection with the alleged violations of Sec 8(a)(1) and (2) of the Act 14 Lynn Smith attended the November meeting. Smith remembered that Fordyce raised the subject "that there had been another suit filed against Os." She did remember Fordyce's talking about what would happen to the employees currently working at MF if the union suit were to be successful, but agreed that he mentioned something about having to bargain to establish a contract with the Teamsters: No other employee testified concerning this particular meeting Considenng Fordyce's equiv- ocal testimony in the light of all the circumstances presented, including the evidence concerning the origin and activities of the employee Advi- sory Committee, discussed at a later point in this demskin, I am persuad- ed and find that Fordyce did in fact raise the topic of the possible conse- quences of being forced to recognize the Union before the assembled MF employees. I disagree with Respondent MF's conclusion. In Burns the Court held that the Board could not order a succes- sor employer to honor the predecessor's collective-bar- gaining agreement to which the successor had never agreed to be bound. However, the Court also held that "where the bargaining unit remains unchanged and a ma- jority of the employees hired by the new employer are represented by a recently certified bargaining agent there is little basis for faulting the Board's implementation of the expressed mandates of § 8(a)(5) and § 9(a) by order- ing the employer to bargain with the incumbent union." 406 U.S. at 281. The Burns ruling has been made applica- ble to bargaining units which are not based on a Board certification but arise from lawful recognition. In consid- ering whether an employer is a successor, the Board ex- amines the total circumstances in each case with special scrutiny given to four tnajor considerations. The chief among these is the continuity of the work force, i.e., the majority question. The other factors are the degree of continuity in the employing industry, continuity with re- spect to the appropriate bargaining unit, and the impact of any hiatus in operations which may have occurred. Applying these principles to the instant case, the fol- lowing becomes readily apparent. First, because MTT's wholly owned subsidiary MWL closed and MF opened in August, there was, for all practical purposes, no hiatus. Second, the employing enterprises are substantial- ly similar. Although MF is not as large an enterprise as MTT/MWL in terms of the number of franchises and the scope of its services, it is, nevertheless, a truck sales, service, and leasing dealership, having the same Freight- liner and Volvo franchises for the same area and the same customers as were formerly held by MTT. MF does not have the franchise from the financially troubled White Motor Company, which, according to testimony from Mike Stucky, general manager of Memphis Peter- bilt, represents a line of trucks inferior to those offered by MF. In any event, the Board has held that a diminu- tion in size does not necessarily preclude a finding of successorship. Band-Age, Inc., 217 NLRB 449, 453 (1975). Concerning other aspects of the question of the conti- nuity of the employing enterprise, Respondent MF points out that it did not acquire any portion of MTT's prem- ises, nor, with the exception of MTT's "Volvo" sign, did it purchase any of its assets. MF's facilities are located in the President's Island area, not far from MTT's former location. Thus, these relevant considerations, often dis- cussed as indicators in other cases, are satisfied only to the limited extent that MF's premises have a degree of proximity to MTT's former site. However, the requisite industrial continuity is revealed by an examination of the expressed intentions and actions of Fordyce and those in MTT's management, which con- stituted the developing embryo MF while MWL was still in business. There is no evidence that MF to any great extent sought employees by the customary means of newspaper ads or employment agencies. Instead as Archibald revealed to Lovett in their conversation at MWL, a "list" was compiled of qualified MTT-MWL employees to be recruited by MF immediately or when MEMPHIS TRUCK & TRAILER 909 needed. Thus, in its final days MWL in effect was uti- lized as an employment agency, where interested em- ployees were recruited by Archibals and Fordyce through interviews and phone calls. Accordingly, pro- spective MF employees were told that the submission of an employment application was unnecessary. Although it is true that, in the interim between employment at MTT- MWL and their being hired by MF, some of the employ- ees worked elsewhere to avoid the consequences of un- employment, it is clear that a number of these employees were simply biding their time until they could join the new Fordyce organization. Therefore, it is not surprising that MF, the final product of Fordyce's efforts in the waning days of MTT, bears such a remarkable resem- blance to the old organization as to deny any suggestion that the result was circumstantial. Although the controlling interest in MF is owned by Freightliner Development Corporation, MF's work force is almost exclusively from the greater Memphis area. Its entire day-to-day operations are supervised by a hierar- chy originally employed by MTT-MWL. Fordyce is a minority stockholder and president of MF. Early Morris has served or is serving as secretary, vice president, and comptroller. MF's rank-and-file employees are almost all former MTT-MWL workers employed in job classifica- tions identical or very similar to those they previously occupied. Moreover, the wages, hours, and working con- ditions of MF employees are comparable to those of its predecessor. According to Fordyce, employees at MF have a uniform allowance, shift differential, insurance, and holiday and vacation benefits as they did at MTT- MWL, but to a different extent. Based on all these con- siderations I am persuaded that a substantial continuity exists between the former work force at MTT-MWL and that at MF. Third, although the Respondent has denied in its answer that the description of the collective-bargaining unit at MTT-MWL would be an appropriate unit at MF, this position is untenable. Respondent's Exhibit 9 reveals that the voting eligibility list for the July 31, 1981 elec- tion survey promoted by MF, concerning its employees' desires for union representation, was based on the respec- tive inclusions and exclusions of the same basic job clas- sifications as contained in the MTT-MWL bargaining unit. Therefore, I find that continuity exists with respect to the appropriate unit as well. Finally, an analysis of the documentary evidence clear- ly shows that both a majority of MF's total personnel complement and a majority of its employees within the appropriate unit came either directly or, after a relatively short interval, indirectly from MTT-MWL. MF hired 43 individuals between August 1 and July 6, 1981, of whom 29 had been working at MTT-MWL when it closed on May 15. Of the 24 hourly paid employees hired by MF between August 1 and the reopening of the hearing in this matter on August 3, 1981, a minimum of 16 employ- ees were dues-paying members of the MIT-MWL bar- gaining unit. For all the above reasons, under all the circumstances presented, I am convinced that the General Counsel has proved by a preponderance of the evidence that MF is a successor to MTT-MWL, and, because it admittedly did not recognize the Union, refused in violation of Section 8(a)(5) and (1) to bargain with it. Furthermore, because Fordyce, Morris, and Archibald came to MF with full knowledge of MTT-MWL's unfair labor practices, MF, as successor, is also liable to remedy the unfair labor practices of its predecessor. There remains for consideration only the related ques- tions of when Respondent MF's bargaining obligation commenced Although the time at which the successor achieves full operation is the most frequently utilized date, the Board has held that a successor's bargaining ob- ligation may attach when it manifests a clear intention to hire a majority of the predecessor's work force. This may be the case even where, as here, the Union did not demand recognition until a later time. Cf. C.M.E., Inc., 225 NLRB 514 (1976). In my view, those principles are applicable here, and I find that the statements and activi- ties of Fordyce and Achibald, which created the nucleus of MF's operation in MTT/MWL's fmal days, are clear- ly indicative of an intent to reconstruct the MTT organi- zation to the extent possible from the outset. Shortly thereafter, this reconstrucion did in fact occur. Also, ex- pressions of company officials, described earlier, show that Fordyce also planned to make use of the closing of MTT-MWL and the opening of MF as a windfall device to eliminate the Union. I therefore fmd that MF's bar- gaining obligation arose on the day in August when it opened for business. D. The Unfair Labor Practices Allegedly Committed by Memphis Freightliner, Inc. 1. The refusal to hire James R. Lovett Based on the assurance given him by Archibald that he was on the "list" to be hired at MF, and the encour- agement of Fordyce, as described earlier in this decision, once James Lovett learned that MF had opened he went to MF to see Archibald in early September. Lovett asked for an application and, after insisting, received it, despite Archibald's statement that it was unnecessary for a good employee like Lovett to submit one. Lovett re- turned the completed application on September 10, when Archibald commented that although business was slow he should return the following week. Basically, Lovett's and Archibald's testimonies agree concerning the follow- ing events. Thereafter, Lovett visited Archibald at MF on at least two other occasions. In response to his ques- tion, "When are you planning on hiring me?" he was told, "Just as soon as business picks up." He was also told there were no openings, but between September 10 and November 24 MF hired service mechanics and a utility and parts man, Alfred Payne. Payne testified about a conversation he had with MF's data processing supervisor-parts and service administrator, Lynn Smith, in which Smith mentioned Lovett. Smith had been parts supervisor at MTT-MWL. When Payne remarked that he had seen Lovett in the MF shop, Smith said she liked Lovett, but "we are not going to hire James because he 910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD will bring the Teamsters." 15 Payne testified he began work at MF on October 25 and that this conversation was about 2 weeks later, which places Smith's remark shortly after the Union filed the "successor" charge against MF on November 6. The filing of charges by the Union against MF imme- diately resulted in the conference between Archibald and Fordyce and Fordyce's meeting with MF employees, as described in section C of this decision. According to Service Manager Archibald, 3 or 4 days before Decem- ber 10 an undisclosed caller at Memphis Peterbilt told him Lovett "had filed a suit against me or the company with the Labor Relations Board." On December 10, during Lovett's next job-seeking visit to MF, and 2 days after the Union's demand for recognition, Archibald asked Lovett about the charge. When Lovett arrived at Archibald's office, he insisted on knowing if Archibald was going to hire him. Archibald admitted he was not 15 Smith denied making this statement to Payne, but testified to having expressed her dislike of unions to Payne in another conversation in April 1981. Smith further testified that Steve Archibald told her he could not hire Lovett because of a "conflict of interest" m that Lovett repaired trucks in his own shop. Payne was discharged from MF in 1981 for rea- sons unrelated to this proceeding. Because he apparently suspected Smith played a major part in that discharge, Payne had a reason to possibly wish to retaliate against Smith and MF. Thus, an admittedly close ques- tion of credibility is presented by these circumstances, the resolution of which is of considerable Importance to the allegation that Lovett has been denied employment in violation of the Act. Smith's admitted antiun- ion animus evaluated together with Fordyces extensive antiunion activi- ties, described at various points in this decision, leads me to believe that Payne told the truth about tins conversation while Smith did not. Payne is credited. As a further defense against this damaging testimony, Respondent MF contends that Data Processing Supervisor-Parts and Service Administra- tor Smith is not a supervisor within the meaning of Sec. 2(11) of the Act, therefore her statements do not bind the Company. Because the Board has long held that titles are only one factor in considering the nature of an employee's status and are not controlling, an examination of Smith's duties and responsibilities is required. Fordyce testified, "We consider her a supervisor in the extent That she supervised . . . ." He described that function as "sort of an administrative office." He agreed that Smith had a responsible position in the corporation, but also volunteered his conclu- sion that she was not a supervisor "in the context of your [Board] regula- tions." Smith attends supervisors' meetings every week, together with Fordyce, Morris, Archibald, and Sales Manager Chunn, where sales and the problems of the week are discussed. For example, it was through this forum that Smith first learned Lovett had filed a charge against the Com- pany, and that the employees were to be told they would receive a wage increase. Smith approves employees' overtime, purchases the parts and maintains control over company inventory, prices parts for use in repairs or for direct sale, oversees the processing of purchase orders and in- voices, and will be responsible for the functioning of the computer MF acquiring. According to Payne, he worked for Smith. She also prepares the daily report about the labor tickets. Payne testified she told him what to do. Smith conceded that she told parts department employees to move items and that she gave Payne orders about pickups and deliveries. She testified that she had independently granted employees time off. She agreed with Payne that she had criticized his work and showed him how to correct his mistakes. When in her view, he did not improve, she re- ported this to her superior, which resulted m Payne's being reprimanded by Parts Manager Moore in the office in Smith's presence Ultimately, Payne was fired. Thus, although Smith does not herself have absolute au- thority to hire, fire, discipline, lay off, or promote it is undisputed that her community of interests is far more closely aligned with management and that she exercises some of the important indicia listed in Sec. 2(11) of th Act as conferring supervisory status. Accordingly, I find her to be a supervisor within the meaning of the statute and, as such, an agent under Sec. 2(13). Therefore, her statement to Payne about the reason MF would not hire Lovett is important evidence concermng MFs motiva- tion. going to employ Lovett because he had a garage at his home and was performing what is known in the trade as "shade tree" work. It was at this point that Archibald observed that Lovett had filed a complaint against the Company at the union hall and with the Board. Lovett denied the accusation, but stated he would do so. Archi- bald ended the conversation by saying Lovett could do as he pleased, and Lovett left." On December 23 Lovett returned to MF to talk with James Fordyce about why he had not been hired. For- dyce refused to comment on the reason, stating that his "hands were tied." Fordyce added the observation that he had a lawyer and that Lovett had filed a charge (dis- playing a document which he extracted from the desk drawer). Fordyce said that, if Lovett had not made the charge, he would "reconsider" and examine Lovett's ap- plication.' Archibald testified he made the decision in October not to hire Lovett because he did "shade tree" work, pursuant to an "oral policy promulgated 2 months after he came to MF, but postponed telling him to spare his feelings. According to Archibald, he told all MF em- ployees when they hired were about this rule, except for Eddie Morris, who he knew had performed "shade tree" work while working at MTT. Archibald stated he told Morris about the policy a few days after he was hired. Fordyce testified that he originated the policy against employees operating their own shops when MF first opened and that Lovett was refused employment because he was in direct competition with the Company. He con- tradicted Archibald by insisting that he decided not to hire James Lovett. Lovett readily admitted that he performed shade tree work, even while at MTT, a fact, known to others, which he had made no attempt to conceal. I am persuaded that Respondent MF's contention that James Lovett was rejected for employment because he operated a "shade tree" garage is a pretext and that the only reasons for MF's conduct toward him was the belief that Lovett would sponsor a Teamsters drive and had been responsible for the charges filed against the Company. A number of factors point to the correctness of this conclusion. MF concedes that Lovett had been a skilled MTT employee. Thus, when Lovett first sought employment with MF he was told by Archibald that he was "on the list" to be hired and by Fordyce that he would be called. Despite these assurances Lovett was not contacted, and others were hired while he was told there were no openings. It was about this time that Su- pervisor Smith told Payne Lovett would not be hired be- cause he would bring in the Union. The interview in which Archibald finally told Lovett he would not be hired, and raised for the first time his "shade tree" oper- 16 Archibald's and Lovett's versions of this discussion are m substantial agreement. 17 Fordyce's version of this interview agrees with Lovett's to a consid- erable degree, except he added that Lovett denied filing the charge against the Company Fordyce admitted saying the NLRB charge placed him in an awkward position, be had made his decision, and as to whether he Would reconsider he 'could not say at that tune. In his testimony, For- dyce observed he had never had someone file a claim against him and then come before him. MEMPHIS TRUCK & TRAILER 911 ation as justification, occurred immediately after Archi- bald was erroneously informed that Lovett had filed NLRB charges against MF. During the course of the interview Archibald accused Lovett of taking this action against the Company. In the subsequent interview with James Fordyce, Lovett was told that Fordyce would have reconsidered the decision not to employ Lovett if Lovett had not filed the charge. Finally, while other em- ployees known to have engaged in shade tree operations were hired and later, according to Fordyce and Archi- bald, admonished to cease their activities pursuant to Re- spondent's "oral policy," Lovett was not afforded this choice." The inconsistencies in MF's actions as between Lovett and other employees considered in the light of the extremely pointed statements of Archibald, Smith, and Fordyce leads to the inescapable conclusion that MF's asserted reason was pretextual and that the real and only reasons for refusing to hire Lovett were the be- liefs that he would sponsor a Teamsters organizing drive and that he was behind the charges filed with the Board against the Company. Thus, Respondent MF violated Section 8(a)(1), (3), and (4) of the Act in refusing to hire James Lovett. 2. The alleged violation of Section 8(a)(2) of the Act involving the Memphis Freightliner Employee Advisory Committee This issue arose unexpectedly near the end of James T. Fordyce's testimony, when, on recross-examination, he volunteered information revealing the existence of an "Employee Advsiory Committee" at MF. As described below, Fordyce thereafter testified in considerable detail concerning the Committee's activities and its relationship with MF. The conclusion of Fordyce's testimony coin- cided with the end of the afternoon session of the trial on August 4, 1981. On the morning of August 5 counsel for the General Counsel served on Respondent MF and its counsel a copy of an amended charge in Case 26-CA- 8783 alleging inter alia that since about June 1, 1981, MF has violated Section 8(a)(2) and (1) of the Act by its rela- tionship and activities concerning the Employee Adviso- ry Committee. At the outset of the morning session counsel for the General Counsel filed a written motion to amend the complaint to allege that since June 1, 1981, Respondent MF, through Fordyce, engaged in specified 8(a)(2) violations. Counsel for Respondent moved for a continuance to answer and prepare a defense to these new and unexpected allegations. The motion was granted and, at the conclusion of MF's case and the General Counsel's rebuttal on the original issues, the hearing was adjourned to resume September 9, 1981. Thereafter, I re- ceived by mail an answer from Respondent MF and a joint motion by counsel for the General Counsel and counsel for Respondent MF waiving further proceedings and moving to close the record. The motion was grant- ed. Thus, the record evidence concerning the relation- ' a Edward Morris testified that he first learned of the policy when he read MF's pohcy book. The parties stipulated that the policy book was first issued on June I, 1981. It is unnecessary to resolve this conflict be- cause either resolution demonstrates that Lovett was treated discriminate- ly ship between MF and the Employee Advisory Commit- tee comes almost exclusively from the testimony of wit- nesses called by Respondent MF. It was also revealed that a close connection existed betwween the Commit- tee's activities in taking a poll of employee sentiment toward the Union and the Company's efforts to persuade employees that it would not benefit them to desire repre- sentation by Teamsters Local 667. According to uncontradicted testimony by MF Presi- dent James Fordyce, the Employee Advisory Committee was his idea, sparked by "reading quite a bit in manage- ment circles about Q.C.'s quality control centers" For- dyce explained that "what really we were trying to ac- complish was a vehicle of communication between man- agement and the employees about how we can do our job better." Thus, the Employee Advisory Committee began about June 1, 1981, with Fordyce participating di- rectly in drafting the Committee's rule and arranging for the election of committee officers, utilizing ballots pre- pared and paid for by the Company. In Fordyce's words, "That was the only way we could start it." Committee busines is transacted on MF premises during worktime in Fordyce's office, during which time committee members continue to be paid. All equipment, supplies, and materi- als utilized by the Committee are paid for by the Compa- ny. The three elected committee members are MF em- ployees Dewey House, Eddie Mauls, and Chuck Little- field. In addition to Fordyce, House, a diesel mechanic, also testified about the Committee's activities and its rela- tionship to the Company. According to Fordyce, MF employees are encouraged by the Company to take part in committee-related activities. Committee meetings are held regularly each month in Fordyce's office with For- dyce participating and taking the official minutes, which are then typed at company expense, signed by the em- ployee members, and posted on company bulletin boards. Fordyce described the Committee as a vehicle for em- ployee expression. The testimony of Fordyce and House reveals that topics of discussion have included the im- provement to employee parking, the storage of tools, em- ployee retirement, problems relating to the building and the service truck, and various other problems related to employees' working conditions. In addition to their regu- lar meetings with Fordyce m the office, the elected com- mittee members meet at lunch or at break to answer questions from the rank and file in MF's parts and serv- ice departments. During the course of Fordyce's and House's testimony concerning committee related activities, it was revealed that the Committee had been utilized as a vehicle for as- sessing employees' desires concerning representation by Local 667, the results of which MF has offered as part of its defense in this case. Thus, on July 30, 1981, during the course of their regular monthly meeting, the commit- tee members and Fordyce discussed employee feelings about the Union. Committeemen expressed the fear of being forced to assume the old MIT contract and se- niority list which would result in loss of jobs. Following this meeting the three committeemen canvassed employ- ee sentiment and reported back at a meeting called by Fordyce on July 31, 1981. The committeemen then re- 912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ceived instructions from Fordyce at this meeting to con- duct an employee poll utilizing the ballots and an eligibil- ity list which Fordyce furnished to them. Following the meeting an election poll was conducted on company time and premises by the committeemen. The ballot, dated July 31, 1981, states, "This is not an election. This is a survey to determine your present feelings about union representation." Thereafter, vertically spaced, appear two boxes. Opposite the top box is printed the words "YES, I would prefer to be represented by Team- sters Local 667." Opposite the bottom box appear the words "NO, I do not want union representation." The only other printing on the ballot is a single instruction to check one box and fold and place the ballot in the ballot box. Following the election poll House and the other committeemen took the ballot box to Fordyce's office where the ballots were counted. Because 1 employee was on vacation, 17 employees voted. All 17 voted against union representation. In a letter, posted on the company bulletin board the following Monday, Fordyce thanked the employees for the favorable result." Section 2(5) of the Act defines a labor organization as "any organization of any kind, or any agency or employ- ee representation committee or plan, in which employees participate and which exists for the purpose, in whole or in part, of dealing with employers concerning griev- ances, labor disputes, wages, rates of pay, hours of em- ployment, or conditions of work." Because it is clear from the undisputed testimony of employee committee member House and the admissions of MF President James T. Fordyce that the Employee Advisory Commi- tee, during the course of its activities, handled problems related to working conditions, retirement, other work-re- lated problems, and especially employee concerns in labor relations matters, I find that the Memphis Freight- liner Employee Advisory Committee is a labor organiza- tion within the meaning of Section 2(5) of the Act. Section 8(aX2) of the Act makes it an unfair labor practice for an employer "to dominate or interfere with the formation or administration of any labor organization or contribute fmancial or other support to it: Provided, That subject to rules and regulations made and published by the Board pursuant to section 6, an employer shall not be prohibited from permitting employees to confer with him during working hours without loss of time or pay." The undisputed evidence shows that the activities of Fordyce and the Committee far exceeded permissible consultation. Instead, the Committee was initiated and dominated by Fordyce. It operated on company time and used company funds, supplies, and equipment. Every phase of its activities required and bore the stamp of company approval. The Board has long held that such a relationship violates Section 8(a)(1) and (2) of the Act, and I so find. 19 Under all these circumstances Respondent MF's contention that the results of the election poll contributes significantly to its defense with re- spect to the issue of its bargaining obligation vis-a-vis Local 667 is clearly without merit. CONCLUSIONS OF LAW 1. Memphis Truck & Trailer, Inc., Memphis White Leasing, Inc., and Memphis Freightliner, Inc., each is, and has been at all times material herein, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act and by virtue of their interrelated business activities constitute a single integrated enterprise or single employer. 2. Highway and Local Motor Freight Employees, Local Union No. 667, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. All mechanics, mechanics' helpers, servicemen, parts department employees, porters, and steam cleaners em- ployed at the Respondents' Memphis, Tennessee facili- ties, excluding all office clerical employees, service rep- resentatives, sales department employees, guards and su- pervisors as defined in the Act, constitute a unit appro- priate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material herein the Union was the ex- clusive collective-bargaining representative of the em- ployees, in the unit described above in paragraph 3, of Memphis Truck & Trailer, Inc. and Memphis White Leasing, Inc. and by virtue of Memphis Freightliner, Inc.'s status as the successor employer to Memphis Truck & Trailer, Inc. and Memphis White Leasing, Inc. has been, at all times material herein continued to be, the exclusive collective-bargaining representative of the em- ployees in that unit at Memphis Freightliner, Inc. 5. By failing and refusing since about May 14, 1980, to sign the completed collective-bargaining agreement it ne- gotiated with the Union and by unilaterally, since about May 15, laying off employees out of seniority, failing and refusing to pay employees vacation pay, failing and re- fusing to pay employees the 3-day penalty for layoff without notice, and failing and refusing to make pay- ments to the Central States, Southeast and Southwest Area Health and Welfare and Pension Funds, in viola- tion of the existing labor contract and without notice and bargaining with the Union over the effects of such action, Respondents Memphis Truck & Trailer, Inc. and Memphis White Leasing, Inc. violated Section 8(a)(1) and (5) of the Act. 6. As the successor employer, Memphis Freightliner, Inc. is jointly and severally liable with the other Re- spondents for the unfair labor practices of Memphis Truck & Trailer, Inc. and Memphis White Leasing, Inc. described above in paragraph 5. 7. By refusing to recognize and bargain with the Union at its request, Respondent Memphis Freightliner, Inc. has engaged in and is engaging in unfair labor prac- tices in violation of Section 8(a)(1) and (5) of the Act. 8. By refusing to hire James R. Lovett, Respondent Memphis Freightliner, Inc. violated Section 8(a)(1), (3), and (4) of the Act. 9. By instituting, dominating, participating in, and giving fmancial and other support to the Memphis Freightliner Employee Advisory Committee, a labor or- ganization within the meaning of Section 2(5) of the Act, MEMPHIS TRUCK & TRAILER 913 Respondent Memphis Freightliner, Inc. violated Section 8(a)(1) and (2) of the Act. 10. The unfair labor practices described above are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondents violated the Act as specified in the Conclusions of Law, I shall recommend that they cease and desist and take certain affirmative action designed to effectuate the policies of the Act. Although it was stipulated at the hearing that Mem- phis Truck & Trailer, Inc. has not been actively in busi- ness since May 15, 1980, and although certain assets of that corporation and its subsidiary Memphis White Leas- ing, Inc. have been liquidated, the record fails to show that any official action has been taken in the State of Tennessee to end the corporation's existence. Thus, the Respondents will be held jointly and severally liable for the unfair labor practices of Memphis Truck & Trailer, Inc. and Memphis White Leasing, Inc. Having found that Respondent Memphis Truck & Trailer, Inc. and Memphis White Leasing, Inc. refused to bargain collectively in good faith by refusing to sign the negotiated contract, and by making unilateral changes contrary to the terms of the existing contract without notice to or bargaining with the Union, as listed in the Conclusions of Law, I shall order the Respondents, in- cluding Memphis Freightliner, Inc., as successor, to rec- ognize and, on request, bargain with the Union as the ex- clusive representative of the employees in the appropri- ate unit. I shall also order the Respondents to offer the employees of Memphis Truck & Trailer, Inc. who were unlawfully laid off as a result of the unfair labor prac- tices of the Respondents immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and to make whole all these employees for any loss of pay they may have suffered as a result of the discrimination against them, by paying them backpay computed on a quarterly basis, plus interest, as pre- scribed in F. W, Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 651 (1977). 20 I shall also order the Respondents to pay to the Union the money owed to the Central States, Southeast and South- west Area Health and Welfare Fund and the Central States, Southeast and Southwest Area Pension Fund ac- cording to the terms of the collective-bargaining agree- ment in effect between the Union and Memphis White Leasing, Inc. at the time of their unfair labor practices. Having found that Memphis Freightliner, Inc. engaged in additional unfair labor practices, as listed in the Con- clusions of Law, I shall order this Respondent to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Because that Re- spondent Memphis Truck & Trailer, Inc. refused to hire James R. Lovett in violation of Section 8(a)(1), (3), and (4) of the Act, I shall order this Respondent to offer him immediate employment to the position to which he would have been entitled had he not been discriminated 20 See generally Isis Plumbing Co., 138 NLRB 716 (1962). against, or a substantially equivalent position, without prejudice to seniority or other rights and privileges, and make him whole for any loss of earnings he may have suffered as a result of the discrimination against him in accordance with the F. W. Woolworth Co. formula de- scribed in the preceding paragraph of this section of this decision. I have found that Respondent Memphis Freightliner, Inc. interfered with the formation, organiza- tion, operation, and administration of the Memphis Freightliner, Inc Employee Advisory Committee, which it dominated and supported, financially and otherwise, in violation of Section 8(a)(2) of the Act. Therefore, I will recommend that Respondent Memphis Freightliner, Inc. withdraw and withhold all recognition from the Mem- phis Freightliner, Inc. Employee Advisory Committee and disestablish that committee or any successor thereto. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2' ORDER A. Respondents Memphis Truck & Trailer, Inc. and Memphis White Leasing, Inc., Memphis, Tennessee, their officers, agents, successors, and assigns, shall I. Cease and desist from (a) Refusing to bargain with Highway and Local Motor Freight Employees, Local Union No. 667, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive collective-bargaining representative of em- ployees in the appropriate unit with respect to wages, rates of pay, hours of employment and other terms and conditions of employment. 2 2 (b) Unilaterally changing the wages, rates of pay, hours of employment, and other terms and conditions of employment of bargaining unit employees at Memphis Truck & Trailer, Inc. and Memphis White Leasing, Inc., without notice to or bargaining with the Union, by laying off employees out of seniority and by failing and refusing to pay them vacation pay and 3 days' penalty pay for layoff without notice, in violation of the then ex- isting collective-bargaining agreement. (c) Unilaterally discontinuing payments to the Central States, Southeast and Southwest Area Health and Wel- fare Fund and the Central States, Southeast and South- west Area Pension Fund specified by the terms of the then existing collective-bargaining agreement. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 21 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. 22 The appropriate collective-bargammg unit is: All mechanics, mechanics' helpers, servicemen, parts department em- ployees, porters, and steam cleaners employed at the Respondents' Memphis, Tennessee facilities, excluding all office clerical employ- ees, service representatives, sales department employees, guards and supervisors as defined in the Act 914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, bargain with Highway and Local Motor Freight Employees, Local Union No. 667, affili- ated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive collective-bargaining agent of the employ- ees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and condi- tions of employment, and, if an agreement is reached, embody that agreement in a signed collective-bargaining agreement. (b) Offer the bargaining unit employees of Memphis Truck & Trailer, Inc. who were unlawfully laid off be- ginning on or about May 15, 1980, immediate and full re- instatement to ,their former or substantially equivalent positions, without prejudice to their seniority rights or other rights and privileges, and make all the Memphis Truck & Trailer bargaining unit employees whole for any loss of pay due to the discrimination against them in the manner set forth in the remedy section of this deci- sion. (c) Pay to the Central States, Southeast and Southwest Area Health and Welfare Fund and the Central States, Southeast and Southwest Area Pension Fund all delin- quent contributions to these funds by Memphis Truck & Trailer, Inc. and Memphis White Leasing, Inc. in accord- ance with articles 20 and 21 of the June 1, 1980 collec- tive-bargaining agreement. (d) Preserve and, on request, make available to the Board and its agents for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at the Respondents' Memphis, Tennessee fa- cilities, where such facilities still exist, copies of the at- tached notice marked "Appendix A."23 Copies of the notice, on forms provided by the Regional Director for Region 26, after being signed by Respondents' authorized representative, shall be posted by the Respondents imme- diately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. B. The Respondent, Memphis Freightliner, Inc., Mem- phis, Tennessee, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusmg to recognize and bargain with Highway and Local Motor Freight Employees, Local Union No. 667, affiliated with the International Brotherhood of 23 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" Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive collective-bargaining-represent- ative of the employees in the appropriate unit with re- spect to wages, rates of pay, hours of employment, and other terms and conditions of employment. (b) Refusing to hire or otherwise discriminating against James R. Lovett or any other employees because they engaged in, or because Respondent Memphis Freight- liner, Inc. believed they engaged in, union or concerted activities or because they filed charges, or were believed to have filed charges, with the National Labor Relations Board. (c) Recognizing the Memphis Freightliner, Inc. Em- ployee Advisory Committee, or any successor thereto, as the representative of any of its employees for the pur- pose of dealing with the Respondent concerning griev- ances, wages, rates of pay, hours of employment, or other terms or conditions of employment. (d) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain with Highway and Local Motor Freight Employees, Local Union No. 667, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as the exclusive collective-bargaining agent of the employees in the appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an agree- ment is reached embody that agreement in a signed col- lective-bargaining agreement. (b) Offer James R. Lovett and the bargaining unit em- ployees of Memphis Truck & Trailer, Inc unlawfully laid off beginning about May 15, 1980, immediate em- ployment to positions at which they would have been employed had they not been discriminated against or, if such positions no longer exist, to substantially equivalent positions, without prejudice to seniority or other rights, and make Memphis Truck & Trailer bargaining unit em- ployees whole for any loss of pay due to the discrimina- tion against them in the manner set forth in the Remedy section of this decision. (c) Withdraw and withhold recognition from and com- pletely disestablish the Memphis Freightliner Employee Advisory Committee or any successor thereto as a repre- sentative of its employes for the purpose of collective bargaining. (d) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. (e) Post at its Memphis, Tennessee, facility copies of the attached notices marked "Appendix A" and Appen- dix B."24 Copies of the notices, on forms provided by 24 See fn 23. MEMPHIS TRUCK & TRAILER 915 the Regional Director for Region 26, after being signed by an authorized representative of the respective Re- spondents, shall be posted by Respondent Memphis Freightliner immediately upon receipt and maintained for 60 consecutive days in consipicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material. (0 Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply.