The A. G. Boone Co.

1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The A. G. Boone Company and Teamsters Local Union No. 171, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America . Cases 5- CA-18060, 5-CA-18186, and 5-CA-18374 24 September 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 31 December 19861 Administrative Law Judge Walter H. Maloney Jr. issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel and the Charging Party filed briefs in response. 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 briefs2 and has decided to affirm the judge's rulings, findings,3 and conclusions, to modify the remedy,4 and to adopt the recommended Order as modified.5 1. The Respondent is a contract carrier in the Southeastern United States specializing in the trans- portation of groceries and related items. At the time of the events at issue, the Respondent operat- ed three terminals, one in Charlotte, North Caroli- na, one in Anderson, 'South Carolina, and one in Montvale, Virginia. On 3 May the Respondent laid off the two most junior drivers at its Montvale fa- cility, Roger Mullins and Jerry Lee Holland. The Respondent asserted that because of the transfer of i All dates are in 1986 unless otherwise indicated. 2 The Respondent has requested oral argument. This request is denied as the record, exceptions, and briefs adequately present the issues and po- sitions of the parties 3 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We also find no merit in the Respondent's allegations of bias and prejudice on the part of the judge. Thus, we perceive no evidence that the judge prejudged the case, made prejudicial rulings, or demon- strated a bias against the Respondent in his analysis or discussion of the evidence 4 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 US C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 5 In his decision, the judge granted the General Counsel's request for a visitatorial provision, and included such a provision in the recommended Order We conclude that such a provision is unnecessary, and we shall modify the recommended Order accordingly In addition, par 2(a) of the recommended Order and the corresponding paragraph in the notice appear as amended by the judge's grant of the General Counsel's 9 Janu- ary 1987 motion to include the name of Carl R Sparks therein the Kroger flower runs and Savannah ,milk runs from the Montvale terminal to the Respondent's Anderson and Charlotte terminals, respectively, there was an insufficient amount of work at Mont- vale for these two drivers. The judge found that these layoffs took place against a background of in- tense union animus, and that they occurred just 3 weeks after the Union won a representation elec- tion on 13 April at Montvale. He further found that the discontinuance of the flower runs in mid- April left the Respondent with the same amount of revenue and the same ,number of drivers at Mont- vale as it had in February, before the flower runs began. The judge also concluded that other Mont- vale business, notably that of the Kroger Westover dairy in Lynchburg, brought in slightly more reve- nue in May than it did in February, notwithstand- ing the transfer of the 2700 Savannah milk-run miles from Montvale to Charlotte in mid-April. Based on these findings, he concluded that the Re- spondent's asserted reason for the 3 May layoffs were pretextual and were unlawful. The Respondent excepts to these findings on two grounds. First, it argues that mileage, not revenue, is the proper measure for what work was available for drivers and whether it was justified in laying off Mullins and Holland. In addition, the Respond- ent maintains that the exhibit on which the judge relied as an indication of Montvale's revenue from the Lynchburg dairy actually 'reflects revenue re- ceived by the Charlotte facility from the Savannah milk runs as well. The Respondent further argues that its Exhibit 7, showing the gross revenue re- ceived from Kroger by Montvale-Madison Heights drivers indicates that there was a decline in reve- nue from March through August. In assessing the Respondent's argument that the 3 May layoffs were economically motivated, we agree with the judge that the flower runs that Montvale handled for a 6-week period in March and early April are not significant, in that Mont- vale had the same amount of work and the same number of drivers both before and after the flower runs were assigned there. With respect to the trans- fer of the Savannah milk runs, the mileage hauled by Montvale from the Lynchburg dairy did decline from April to May and this loss of miles was not entirely offset by an' increase in the Roanoke bakery mileage. However, the transfer of these runs from Montvale to Charlotte, although not al- leged as an 8(a)(3) violation, must be viewed in the context of the Respondent's numerous preelection statements threatening the employees with the clos- ing of the Montvale terminal and a loss of jobs if the Union won. In addition, the Respondent's own Exhibits 7 and 8, although showing a decrease in 285 NLRB No. 133 A. G. BOONE CO. revenue from March through May , also show an increase in net profit for the same period ,of time. Thus, in light of the Respondent's preelection threats, the timing of the transfer of the Savannah milk runs and the layoffs of the employees , and the fact that net profit increased during this time period, we agree with the judge that the 3 May layoffs of Mullins and Holland were discriminatori- ly motivated , and violated Section 8(a)(3) of the Act. 2. On 13 June Kroger announced its decision to close its Roanoke bakery, which accounted for ap- proximately one-seventh of Montvale 's total busi- ness, measured in mileage. On 14 June the Re- spondent laid off four drivers in order of seniority and one utility man, on 17 June it informed the re- maining employees that it was going to close its Montvale facility . The Respondent indicated that about five or six employees would be offered trans- fers to a new location near Lynchburg, about four would be offered transfers to Charlotte, and the rest of the employees would be laid off. Three weeks later, the Respondent recalled two of the drivers, evidently because it had made too drastic a cut from its work force on 14 June. The judge , found that these layoffs on 14 June were a further step in the Respondent's plan to ful- fill its preelection threats and close the Montvale terminal. Specifically, the judge noted that the Re- spondent had resorted to "overkill " when it laid off more drivers than it could afford to do without (approximately 24 percent of its work force in re- sponse to an approximately 14-percent reduction in its work). The judge further noted the immediacy of the announced layoffs and closing , which oc- curred without any effort on the part of the Re- spondent to see if it could obtain additional work as it had in the past. In addition, the judge noted that the Montvale milk runs in late August brought in some $13,000 more revenue' than they did in May, thus displacing any loss of business occa- sioned by the loss of bakery work. He then con- cluded that the Respondent's asserted economic de- fense was a pretext, and determined that the 14 June layoff violated Section 8(a)(3) and (1). The Respondent excepts to_ the judge's finding of a violation for the June layoffs, arguing that the Roanoke bakery closing was an independent action that represented a significant loss of business for the Montvale terminal. The Respondent further contends that the judge again erroneously inter- preted documents as representing the Montvale portion of the the Lynchburg dairy runs when they actually show the total revenues from those runs, including that portion attributable to the Charlotte facility. 1071 We agree with the judge that- the layoffs repre- sented a further attempt by the Respondent to ful- fill its preelection threats and to close the Montvale facility. Although the Respondent correctly states that the judge erroneously interpreted certain doc- uments with respect to revenues and urges us to rely on its Exhibit 7, which indicates a significant loss of revenue at Montvale from May to June, we note that there is only a slight loss of net profit during this time. Thus, we find that the economic data provided by the Respondent is not sufficient to overcome the strong prima facie case established by the General Counsel by the preelection threats and the developing pattern of the fulfillment of those threats. 3. On 17 August the Montvale employees en- gaged in a strike. On 19 August they abandoned the strike and requested immediate reinstatement. On 24 August the Respondent closed its Montvale facility and began operating a scaled-down facility with only eight drivers in Madison Heights, a suburb of Lynchburg. The judge found that this relocation of work was discriminatorily motivated and was the culmination of the Respondent's established pattern to fulfill its preelection threats. The judge apparently relied in part on the fact that "M&M" milk- runs out of Lynchburg, which the Respondent acquired in early August, were immediately assigned to its Charlotte facility rather than to Montvale, despite the fact that Montvale had handled all the Lynch- burg runs up to that time, with the exception of the Savannah runs transferred in April to Charlotte. In addition, the judge noted that the Respondent mis- represented part of its motivation for the move by claiming that Kroger had wanted it to move to a location closer to Kroger's Lynchburg dairy. Kroger's traffic analyst, called as a witness by the Respondent, testified that Kroger made no such re- quest for a terminal relocation. The Respondent excepts to this finding, main- taining that the closing of the Montvale terminal was an economic decision motivated solely by the closing of the Roanoke bakery. We find no merit in this defense. After the Roanoke bakery closed on 13 June, the Respondent continued to operate its facility at Montvale with 15 drivers, and continued to have enough work for all of them. In fact, two of the four drivers laid off on 14 June were re- called to work on 6 July. The total mileage hauled from Montvale did not significantly decrease from mid-June through August. Thus, unlike the judge, we find it unnecessary to rely on the assignment of the M&M runs to the Charlotte terminal instead of the Montvale facility as evidence of unlawful moti- vation, because the decision to relocate the Mont- 1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD vale terminal was made in June, prior to the acqui- sition of the M&M runs. Rather, we rely on the fact that the Respondent has failed to demonstrate a legitimate reason why it decided to operate a scaled-down facility of 8 drivers in Madison Heights, when it was able to continue to operate its Montvale terminal with enough work for 15 driv- ers after the Roanoke bakery closing. The fact that the Madison Heights terminal is 37 miles closer to Lynchburg than the Montvale facility had been does not establish an economic motivation for the Respondent to close its Montvale facility and reopen a new terminal with only half the work force. It did not suffer a 50-percent reduction in work when the Roanoke bakery closed. One of the the Respondent's witnesses testified that the actual reduction was approximately 4400 miles per week out of a total of about 33,700 miles per week, or about one-seventh of the overall mileage. The clear alternative explanation for the move is that the Re- spondent wished to rid itself of the Union at the Montvale location by opening a significantly small- er facility elsewhere, when it employed only two of the employees who had participated in the strike. This conclusion is further supported by the Respondent's action, less than a month after ` the move, in circulating a petition among the employ- ees disavowing support for or interest in the Union. Accordingly, we conclude the judge was correct in his finding of an 8(a)(3) violation. 4. In addition, the judge found that the Respond- ent violated Section 8(a)(5) and (1) of the Act by unilaterally implementing' a wage increase on 28 September 1986. This violation was not alleged in the consolidated complaint prior to the hearing, ap- parently because neither the Charging Party nor the General Counsel was aware of it until it was raised in testimony.6 Although the increase was mentioned by the Respondent's dispatcher, Thomas Dickenson, no mention was made at the hearing or thereafter to include lit in the consolidated com- plaint. Despite its absence from the consolidated complaint, the judge found that the matter had been fully litigated, inasmuch as Dickenson admit- ted under oath the facts that constitute a violation. The Respondent excepts to this 'finding. We find merit in the Respondent's exception. Contrary to the judge, we do' not believe that the testimony in the record establishes a violation of the Act. Dickenson's testimony regarding the wage increase indicated that on 28 September 1986, the Respondent instituted a raise of one-half cent on the mile, 15 cents on the hour, and 25 cents on "dropping the hook" (returning an empty trailer 6 The hearing was held on 7 and 8 October 1986 and picking up -a load). There is no mention of whether bargaining was requested or engaged in. Neither the counsel for the General Counsel nor the counsel for the Charging Party pursued this line of questioning. Although the judge states that the Respondent "made no pretense of notifying the Union or bargaining with it concerning these in- creases," we do not find that this conclusion is sup- ported by record evidence. The evidence estab- lishes only that the wage increase was granted, and is silent as to whether the Union was afforded an opportunity to bargain. Thus, we cannot conclude that a violation has occurred, and we reverse the judge's finding that the Respondent violated Sec- tion 8(a)(5) and (1) by instituting a wage increase on 28 September 1986. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, A. G. Boone Company, Charlotte, North Carolina, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 1(b). "(b) Unilaterally changing dispatch procedures, unilaterally laying off or discharging employees, and unilaterally closing its truck terminals and opening other terminals to replace them, without first notifying the Union and bargaining collective- ly in good faith with it, on request, until an agree- ment or an impasse is reached." 2. Substitute the following for paragraph 2(a). "(a) Offer full and immediate reinstatement to Jerry Lee Holland, Roger Mullins, Jerry Durham, Albert Conner, Randolph Custer, Malcolm Bonho- tel, Carl R. Sparks, Ricky Mullins, Brian Noakes, Johnny Johnson, and Harold Lynch to their former or substantially equivalent' employment, without prejudice to their seniority, or other rights they may have previously enjoyed, and make them whole for any loss of pay or other benefits which they have suffered by reason of the discriminations found herein, in the manner described in the remedy section." 3. Substitute the following for paragraph 2(e). "(e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply." 4. Substitute the attached notice for that of the administrative law judge. CHAIRMAN DOTSON, dissenting in part. I agree with my colleagues' adoption of the vari- ous 8(a)(1) violations found by the judge, his find- A. G. BOONE CO. ings that the Respondent violated Section 8(a)(5) by its refusal to bargain over the effects of the May and June 1986 layoffs, and his findings that the Re- spondent violated Section 8(a)(3) by unlawfully closing the Montvale terminal and relocating to Madison Heights. I also join in their reversal of the judge's conclusion that the Respondent violated Section 8(a)(5) by implementing a wage increase in September 1986. I disagree, however, with their adoption of the judge's findings that the Respond- ent violated Section 8(a)(3) by laying off employees in May and June, and his finding of an 8(a)(5)' vio- lation for the Respondent's failure to bargain over its decision to lay off those employees.' As the majority recognizes, the economic date presented by the Respondent does not establish a decline in the Respondent's business at the Mont- vale terminal just prior to both the May and June layoffs. In April the Kroger Company requested that its flower runs be handled exclusively by the Anderson-based drivers. In addition, the Respond- ent transferred the Savannah milk runs from its Montvale facility to its Charlotte facility. The un- disputed evidence indicated that this action was taken in order to combine the Savannah milk runs with the new "A&P" runs it acquired at that time and which were being handled out of its Charlotte facility. The A&P runs were hauled from Charlotte to Greensboro. After the load was dropped off in Greensboro, the Charlotte trucks would continue on to Lynchburg, pick up the Savannah milk load, and take that load to Savannah on their way back to Charlotte. According to the unrefuted testimony of Respondent's witness Bud Boone, this reassign- ment of work from Montvale to Charlotte saved the Respondent $200 a trip. There is nothing in the record, other than the 8(a)(1) threats to close the Montvale facility, that would suggest that the Respondent's actions were anything but a valid exercise of its business judg- ment. Without more, I cannot join my colleagues in concluding that the mere fact that the threats were made necessarily establish an unlawful motive for the layoffs that followed this loss of business at Montvale, particularly in light of the two inde- pendent factors that intervened: the request by Kroger concerning the flower runs and the acquisi- tion of the new A&P runs. Once this business was transferred away from the Montvale terminal, the Respondent no longer had a sufficient amount of work to support the number of drivers it em- ployed. The validity of this conclusion is supported i Because I agree with the fudge's finding that the relocation of the Montvale terminal was discriminatorily motivated, I find it unnecessary to pass on the judge's conclusion that the Respondent violated Sec. 8(a)(5) by its failure to bargain over the decision to relocate 1073 by the fact that, after the May layoffs, the Re- spondent was able to successfully handle the amount of work at Montvale without transferring other work away or hiring additional drivers. Ac- cordingly, I dissent from the majority's adoption of the judge's finding of an 8(a)(3) violation for the May layoffs, On 13 June the Respondent was informed that the Roanoke bakery was closing. The following day, it laid off, by seniority, four of its Montvale drivers. Within 3 weeks, two of those drivers were recalled and continued to work until the Montvale facility closed in August. The judge found, and the majority agrees, that these layoffs were discrimina- torily motivated. Again, I must disagree. The loss of some 4400 driver miles per week was caused, not by any action on the part of the Respondent, but by the independent decision of Kroger to close its Roanoke bakery. Although the judge and the majority find it significant that the Respondent im- mediately laid off four drivers and then later had to recall two of them, I find no evidence in the record that would lead me to conclude that the Respondent had acted in a manner inconsistent with the legitimate exercise of its business judg- ment. Accordingly, I would not find a violation for the June layoffs. The judge also concluded, and the majority agrees, that the Respondent's failure to bargain about its decision to lay off these employees in May and June violated Section 8(a)(5) of the Act. I disagree. Although it is well settled that an em- ployer must bargain over the effects of its decision to lay off employees, I believe that the decision itself is one that has "as its focus only the econom- ic profitability [of the action and thus is] wholly,' apart from the employment relationship."2 In these circumstances, no bargaining obligation would be incurred, because "[m]anagement must be free from the constraints of the bargaining process to the extent essential for the running of a profitable busi- ness."3 Accordingly, I dissent. 2 First National Maintenance Corp v NLRB, 452 U.S 666, 677 (1981) 8 Id at 678-679 (fn omitted) APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. 1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT refuse to bargain in good faith with Teamsters Local Union No. 171, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, as the exclusive representative of the drivers, hostlers, and service utility employees employed at the Montvale, Virginia plant and any relocations thereof. WE WILL NOT unilaterally change dispatch,pro- cedures, and WE WILL NOT unilaterally lay off or discharge employees or close truck terminals and open other terminals to replace them without first notifying the Union and bargaining collectively in good faith with it, on request, until an agreement or impasse is reached. WE WILL NOT discourage membership in, or ac- tivities on behalf of, Teamsters Local Union No. 171, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organiza- tion, by transferring bargaining unit work from our Montvale, Virginia terminal, or any other terminal, to any other location, by laying off or discharging employees, by closing truck terminals and opening other truck terminals to replace them, or otherwise discriminating against employees in their hire or tenure. - WE WILL NOT coercively interrogate employees concerning their union or protected, concerted ac- tivities, or the union or protected, concerted activi- ties of other employees. WE WILL NOT threaten employees with loss of job opportunities, discharge, plant closure, or plant relocation in reprisal for engaging in union or pro- tected, concerted activities. WE WILL NOT threaten to discharge union adher- ents when their identities become known. WE WILL NOT threaten to refrain from bargain- ing in good faith with the Union if it is selected as bargaining agent. - WE WILL NOT inform employees that bargaining unit work has been transferred to other locations because employees had selected the Union as their bargaining agent. WE WILL NOT threaten to drag out negotiations if the Union is selected as bargaining agent. WE WILL NOT condition the recall of strikers on their agreement to refrain from striking without giving advance notice. WE WILL NOT circulate among employees a peti- tion aimed at undermining the status of the Union as bargaining agent. 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, on request, bargain collectively in good faith with Teamsters Local Union No. 171, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as' the exclusive collective-bargaining representative of the drivers, hostlers, and service utility employees employed at our Montvale, Vir- ginia terminal, and any relocations thereof, and, if agreement is reached, embody that agreement in a signed, written contract. WE WILL reestablish the business operations at the Montvale, Virginia terminal, and restore the work formerly performed there by terminated unit employees. WE WILL offer full and immediate reinstatement to Jerry Lee Holland, Roger Mullins, Jerry Durham, Albert Conner, Randolph Custer, Mal- colm Bonhotel, Carl R. Sparks, Ricky Mullins, Brian Noakes, Johnny Johnson, and Harold Lynch to their former or substantially equivalent employ- merit, and WE WILL make them whole for any loss of pay or benefits which they may have suffered by reason of the discriminations found in this case, plus interest. THE A. G. BOONE COMPANY James P. Lewis, Esq. and Albert W. Palewicz, Esq., for the General Counsel. Lloyd C. Caudle, Esq., of Charlotte, North Carolina, for the Respondent. Jonathan G. Axelrod, Esq., of Washington, D.C., for the Charging Party. DECISION STATEMENT OF THE CASE WALTER H. MALONEY JR., Administrative Law Judge. This case came on for hearing before me at Roanoke, Virginia, on a consolidated , unfair labor practice com- plaint, ' issued by the Regional Director for Region 5 1 The principal docket entries in this case are as follows. Charge filed by Teamsters Local Union No 171, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America (the Union) against Respondent on May 5, 1986;- first amended charge therein filed on June 9, 1986, complaint issued by Re- gional Director, Region 5 , against Respondent in Case 5-CA-18060 on June 16, 1986, Respondent's answer filed on June 27, 1986, charge filed in Case 5-CA-18186 by the Union against Respondent on June 30, 1986, first amended charge filed therein on August 14, 1986 , consolidated com- plaint issued by Regional Director, Region 5, in Cases 5 -CA-18060 and 5-CA-18186 against Respondent on August 20, 1986, Respondent's answer filed on August 28, 1986 , amendment to consolidated complaint filed on September 29, 1986, charge filed against Respondent by the Union in Case 5-CA-18374 on September 25, 1986 , amendment to con- solidated complaint resulting from , that charge made by the General Counsel at the hearing, hearing held in Roanoke , Virginia, on October 7 and 8, 1986; briefs filed herein by the General Counsel, the Charging Party, and the Respondent on or before November 12, 1986 A. G. BOONE CO. 1075 and amended at trial, which alleges that Respondent A. G. Boone Company2 violated Section 8(a)(1), (3), and (5) of the Act. More particularly, the consolidated com- plaint, as amended, alleges that the Respondent repeated- ly threatened to close the Montvale terminal if the driv- ers at that terminal became unionized, threatened to transfer work away from the Montvale terminal if it became unionized, threatened to drag out any negotia- tions that might follow a union victory at the April 13 representation election, refused to bargain with the Union concerning the closing of the Montvale terminal and the effect of closing on unit employees, relocated its Montvale terminal to Madison Heights for discriminatory reasons, laid off employees without bargaining concern- ing the layoff, and unilaterally changed its dispatch pro- cedures. Respondent denies all these allegations and states that it relocated its Montvale terminal for business reasons. On these contentions the issues herein were joined.3 FINDINGS OF FACT 1. THE UNFAIR LABOR PRACTICES ALLEGED For many years the Respondent has been a contract carrier in the Southeastern United States specializing in the transport of groceries and related items. It is essen- tially a family business and is now owned and operated by A. G. "Bud" Boone. Its headquarters and principal terminal is at Charlotte, North Carolina. At issue in this case are events that took place at a branch terminal that it maintained at Montvale , Virginia, beginning in 1979 and that it relocated in August 1986, to Madison Heights, Virginia, some 37 miles away. As a contract carrier, the Respondent hauls for a limited number of customers, including the Kroger food chain (and Kroger's subsidiaries), A & P, Winn-Dixie, White House Foods, and Chandler Foods. At one time it hauled for Keystone, a supplier of McDonald's Restaurants. The 70 or so drivers and mechanics employed by the Respondent at its Charlotte "flagship" terminal have long been unionized . At one time or another, the Re- spondent has operated four other unionized terminals- Atlanta, Greenville, Raleigh, and High Point, North Carolina. Most of these terminals were unionized when they were acquired. All of them are now closed. In the past 10 years, Respondent has opened two terminals, one at Anderson, South Carolina, and the terminal here in issue at Montvale, Virginia. Until the spring of 1986, both of these terminals were nonunion. On April 13, the 2 The Respondent admits, and I find, that it is a Delaware corporation, which operated an' office and place of business at Montvale, Virginia, and now operates an office and place of business at Madison Heights, Virgin- ia, where it has been, and is, engaged in the interstate and intrastate trans- portation of freight and commodities by motor truck During the preced- ing 12 months, a representative period, Respondent has performed truck- ing services from its Virginia terminals in excess of $50,000 in States other than Virginia Accordingly, the Respondent is an employer en- gaged in commerce within the meaning of Sec. 2(2), (6)„ and (7) of the Act. The Union is a labor organization within the meaning of Sec 2(5) of the Act 3 The General Counsel's motion to amend the transcript is granted. In addition to the revisions contained in the General Counsel's motion, addi- tional errors in the transcript have been noted and corrected drivers and maintenance men at the Montvale terminal voted 16 to 6 to be represented by the Charging Party in this case (Case 5-RC-12610). The Charging Party was certified on April 28. Respondent owns the premises that were occupied until recently by the Montvale terminal. They are locat- ed on U.S Route 460, just east of Roanoke in the direc- tion of Lynchburg. At the time of the election it em- ployed about 20 drivers and 3 maintenance men at this terminal, Respondent opened this terminal in 1979, and soon thereafter transferred James R. "Red" McGalliard from Charlotte to act as terminal manager. It also trans- ferred a few drivers from its other terminals but, for the most part, Respondent hired its employee complement locally. In 1979, Kroger opened a dairy at Lynchburg, operating it as a subsidiary under the name of Westover. It was the opening of the Kroger dairy that prompted the Respondent to open the Montvale terminal. At first Kroger's Lynchburg dairy was serviced by Respondent's drivers domiciled in Charlotte, but eventually many of the Kroger-Westover milk runs from Lynchburg came to be handled by Montvale drivers. Some of these runs were, and still are, handled by Kroger by utilizing its own fleet of trucks and its own drivers. At the time Respondent opened the Montvale terminal it was hoping to obtain more work from Kroger. Even- tually it got that work. Until June 1986, Kroger operated a large bakery at Roanoke from which it supplied its retail outlets throughout Southeastern United States. It also maintains a warehouse at Salem, Virginia, a suburb of Roanoke. Montvale drivers began to haul bakery products from the Roanoke bakery to South Carolina and elsewhere, and hauled fruit juice and other items on back hauls to the Salem warehouse. Two Montvale drivers testified credibly that, when they were hired, they were told of the Respondent's un- yielding intention to operate the Montvale terminal as a nonunion facility. Assistant Terminal Manager and Dis- patcher Thomas J. "Jack" Dickenson told driver Cecil Stultz in 1981 when Stultz was being hired that, if a union ever came into the Montvale terminal, it would be closed. Dickenson also told driver Malcolm Bonhotel the same thing when Bonhotel was hired in 1982. Early in 1986, the Union began its organizing drive at Montvale. On February 20, Jim H. Guynn, the Union's secretary-treasurer, sent a letter to Boone at his Char- lotte office demanding recognition. Boone replied on February 24. He declined to recognize the Union and in- sisted on an election. A representation' petition was promptly filed and an election was held on April 13. The Union won 16 to 6. About the same time that the election campaign was in progress, Kroger hired the Respondent to replace its pre- vious contract carrier in making certain flower delivery runs emanating from the Kroger warehouse at Simpson- ville, South Carolina. This contract amounted to about 20,000 miles of hauling per week. At the outset, about two-thirds of the flower (or floral) runs were assigned to Respondent's drivers domiciled at its Anderson, South Carolina terminal. This terminal is located some 30 miles from Simpsonville. About one-third of the work, 1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD amounting to six runs per week and some extra runs just before holiday weekends, were assigned to Montvale drivers. The Montvale runs included deliveries directly to Kroger stores in Virginia and West Virginia from Kroger's Simpsonville facility. Montvale drivers were scheduled to begin the flower runs on March 2. A week or so in anticipation of this event, McGalliard and drivers Richard L. Mullins and Jerry Durham, to whom these runs were going to be as- signed, drove to the destinations in West Virginia to which flowers were scheduled to be delivered. They were driven to these locations by McGalliard in his pri- vate vehicle. Although they were driving back to Roa- noke, Durham asked McGalliard what he would do about the flower, runs if the Montvale drivers voted the Union in. McGalliard replied, "You go ahead and do what you want, but if you vote it in, the flowers would be the first to go." McGalliard added that Boone -had al- ready told him that he was not going to give Local 171 "one red cent." Sometime just before the election, drivers Johnny Johnson and Mike Mallow were discussing the organiz- ing drive with Dickenson. I credit Johnson's- testimony that Dickenson told them to "try to talk the union down because if the union [was] voted in, Mr. Boone would lock the gate." About this same point in time, McGal- hard told driver Shurwood Spicer that if the Union came in, they would close the terminal and he would go back to Charlotte. On another occasion just before the elec- tion, McGalhard was overheard by Holland, as the latter was returning to the terminal at the end of a run, telling another employee that, if the Union came in, the drivers would probably be out of a job. During the preelection period, Dickenson told driver Cecil Stultz that the Com- pany would close the terminal if the Union came in. On another occasion shortly thereafter, Dickenson told Stultz in the lobby of the terminal that five drivers "were in on this union deal" and that there was a sixth, "and as soon as [I] find out who the sixth s.o.b. [is], [I] am going to fire the s.o.b." On another occasion, just before the election, McGal- liard followed Bonhotel to the latter's car as Bonhotel was getting ready to go home. -McGalliard asked Bonho- tel if he knew anything about the union business. Bonho- tel replied that he could not tell McGalliard anything. McGalliard went on to say that Boone always "seemed fair to us and we seemed like we were treating you fel- lows fair," but added, "if the union comes in, I got the lock." Flower runs from Simpsonville began on March 2, as scheduled. On some occasions, Montvale drivers would meet a truck from Simpsonville at a designated relay point, normally Princeton, West Virginia, and transfer a portion of the load into a second truck, thereby accom- modating West Virginia and Virginia deliveries without the necessity of sending two trucks all the way to South Carolina. This procedure ultimately did not meet with the approval of Kroger management in Cincinnati, not- withstanding the fact that it was slated to save an esti- mated $50,000 annually in hauling expenses . Kroger en- countered late deliveries, sometimes occasioned by its own delays in loading the relay truck in South Carolina, as well as damage to merchandise in transit. Kroger told the Respondent that it would have to service the flower runs with Anderson-based drivers. About April 15, the Respondent began to haul flowers from Simpsonville ex- clusively with drivers domiciled at its Anderson, South Carolina facility, although records in evidence indicate a small amount of flower deliveries being handled by Montvale drivers in late April. In anticipation of busy holiday weekends, extra floral runs were made by Char- lotte-based drivers as well as by extra driving assign- ments both at Anderson and at Montvale. A few days after the election, driver Harold E. Lynch was on a flower run to Simpsonville from Montvale. During this run he called the Montvale terminal and spoke with Dickenson. Dickenson told Lynch during the course of this phone call that Montvale drivers would not be handling anymore flower runs because the Union had come in and they did not want any union drivers coming into Simpsonville. Lynch replied that this sound- ed like a big joke, but Dickenson replied, "You can call it a joke if you want to, but I think it's pretty serious." About this same point in time, Dickenson told driver Johnny R. Johnson at the Montvale terminal, on John- son's return from a run, that he would no longer have any flower runs because Boone had transferred the work to the Anderson terminal because the Montvale drivers had voted to organize. Dickenson told him that, since drivers from a unionized terminal could not deliver flow- ers, this work would be given to the Anderson terminal because it was nonunion. During the approximately 6 weeks that flower runs were being handled by Montvale drivers, this business accounted for about 2$ or 29 Montvale runs per week, except for a temporary peak during the week before Easter. However, no additional drivers were hired to perform this work. The gross revenue derived from flower deliveries amounted to above $18,000 and $20,000 per week, with the exception of the week before Easter. The balance of the Montvale business during this period of time was accounted for by regular milk runs from Lynchburg and bakery runs from the Kroger bakery at Roanoke, as was the case both before and after the tem- porary use of Montvale drivers for floral runs. For the week ending March 1, 1986, the last full week before flower runs began, the Montvale terminal aggregated gross revenues of $33,066. During the week ending April 26-the first week for which there was no Montvale flower business-the Montvale terminal derived gross revenues of $33,431 from its milk and bakery deliveries. On April 21, the Respondent reassigned six milk runs per week, going from the Kroger-Westover dairy at Lynch- burg- to Savannah, Georgia, from Montvale drivers to Charlotte-based drivers in order to tie in with some Charlotte-based runs that were being started up for A & P in and about Greensboro. The loss of this work re- duced the amount of work available for Montvale driv- ers by some 2700 miles per week. On May 3, 1986, Boone sent identical letters to Mul- lins and Jerry Lee Holland, the two Montvale drivers with the least seniority, notifying them that they were being laid off for lack of work- According to Respond- A. G. BOONE ent, the lack of work in question was the loss of flower runs by Montvale drivers and the decrease in milk runs from Lynchburg by Montvale drivers. Evidence in the record showing gross revenue derived by the Respond- ent from its Montvale operation during late April and May indicates that, between the week ending April 26 and the week ending May 31 , weekly revenues remained about the same with minor upward and downward fluc- tuations. These revenues were either the same or slightly in excess of the weekly gross revenues for Montvale in February 1986, notwithstanding the loss of six milk runs per week by the Montvale terminal to Charlotte driv- ers.4 Early in May Dickenson and Johnson engaged in a conversation at Dickenson's office. On this occasion Dickenson told Johnson that Boone was not going to ne- gotiate a contract with Local 171. He observed that what was going to take place would resemble the events at a nearby Pepsi Cola plant where the drivers voted to unionize, but the Company had dragged out negotiations for 5 years without agreeing to a contract. Dickerson then cut himself short, stated that perhaps he had said too much, and walked away. About June 13, Kroger decided to close its Roanoke bakery. This bakery employed about 150 people and sup- plied baked goods for all Kroger's stores in the Southeast United States. Instead of supplying these stores from Ro- anoke, Kroger decided to ship baked goods from its bakery in Columbus, Ohio, to. its Salem, Virginia ware- house (near Roanoke), and then transfer these items di- rectly from Salem to the retail outlets formerly supplied from Roanoke. Kroger gave the Respondent only a few days notice of this change in operations. Boone bid on transporting baked goods from the Co- lumbus bakery to Roanoke for Kroger, despite his asser- tion that he did not have the equipment to perform the job had he won the bid. He did not win the bid and Kroger decided to perform the work with its own fleet and with company drivers. On June 13 the Respondent laid off 'four drivers-Malcolm Bonhotel, Randolph Custer, Albert Conner, and Jerry Durham. It also laid off utilityman James Meador, Boone sent each of these men a letter, dated June 13, which read: Because of a permanent loss of ' a portion of our business at the Montvale facility, it is necessary to reduce our work force accordingly. It is with deep regrets [sic] because of the above we find it necessary to terminate your employment effective June 14, 1986. The layoffs were made in accordance with seniority. On July 6, Bonhotel and Custer were recalled and continued to work until August 22. 4 Since Respondent bills its customers and pays its drivers on a mileage basis, gross revenues and mileage are parallel measures of work available 5 A utilityman works in the terminal yard jockeying trucks about, changing tires, and doing similar work Occasionally utilitymen were as- signed to take over-the-road runs Such assignments have been a matter of dispute between the Union and the Respondent , especially if made when regular drivers are in layoff status 1077 Roanoke bakery deliveries amounted to about one-sev- enth of the work that was handled by the Montvale ter- minal in June 1986, whether measured in mileage per week or in gross revenues. Approximately 35-40 percent of the Kroger bakery delivery work from Roanoke was handled by Anderson drivers and an occasional run was made by a Charlotte-based driver. There is no evidence in the record that the closing of the Kroger bakery caused layoffs at either of these locations . In fact, during the following 2 months, the Charlotte terminal hired seven additional drivers. Evidence placed in the record by the Respondent shows that Montvale gross revenues in June-the month in which Kroger terminated its bakery runs-was $118,932, while Montvale gross reve- nues in July, which included no Kroger bakery runs, was $120,705. Other data supplied by the General Counsel showing weekly earnings at Montvale indicated an in- crease in weekly revenue from Kroger-Westover Lynch- burg milk runs beginning in mid-June . In the 4 weeks preceding the Kroger bakery shutdown, Lynchburg milk runs brought in $115,745. In the 4 weeks following the bakery shutdown, milk runs brought in $ 120,337, an in- crease of $4632. While these events were taking place at the terminal, efforts were being made by the newly certified union to begin collective-bargaining negotiations . On May 2, Jim H. Guynn, the Union's secretary-treasurer, wrote Boone a letter in which he stated that "you are requested to contact me immediately so we can agrge on dates for contract negotiations."6 On May 6, Boone acknowledged receipt of the letter, telling Guynn that he would be out of town for the next couple of weeks and would be in contact with him in late May. The first of five negotiating sessions between the par- ties took place at the Cresta Motel in Roanoke on June 17, just 4 days after the above-mentioned shutdown of the Kroger bakery and layoff of five Montvale employ- ees. The Charging Party herein also represented the laid- off Kroger bakery employees, so Guynn and other union officials were well aware of the closing of the Kroger bakery when the Boone negotiations began. Boone opened the meeting by presenting Ouynn with a notice that had been posted at the terminal the same day. The notice stated: To all Montvale personnel: We, along with all of you, were greatly surprised to learn that the Kroger Roanoke Bakery was closed down permanently this past Friday, June 13, 1986. It has become apparent that the remaining busi- ness will not support the Montvale terminal oper- ation and consequently the Montvale operation will be closed in the near future. 6 Guynn and Boone have known each other for a long time Guynn sits from time to time on the Teamsters Piedmont Joint Council, which includes various locals in Virginia , North Carolina, and elsewhere As an employer covered by a Teamsters contract at his Charlotte terminal, Boone has had occasion to serve as a management ' representative to this council 1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A part of the business will be moved into our Charlotte operation and, we will also open a new drastically reduced "skeleton" facility in the vicinity of Lynchburg. If anyone would like to be consid- ered for a transfer to Charlotte or for a position at the new operation in Lynchburg, please indicate so by signing below. You must indicate your interest by the end of business on June 24, 1986 as this notice will be removed from the Board at that time. Places were left at the bottom of the notice so that driv- ers could sign indicating whether they wished to be con- sidered for a Charlotte transfer or for a job at Lynch- burg. Guynn asked Boone how many employees he pro- posed to transfer to Lynchburg. Boone replied, "Five or six." Boone also indicated that he would offer transfers to Charlotte for four drivers and the balance would be terminated. He told negotiators that he had not as yet found a new location in the Lynchburg area but insisted that the closing of the bakery required him to move. Guynn replied that he did not. see how the closing of the bakery, affecting as it did only a few of the Respondent's drivers, could justify the closing of the terminal, adding that he had been told before that the terminal would be closed if the Union came in. 'He warned Boone that it would not do him any good to move to Lynchburg be- cause that area was still within his Union's territorial ju- risdiction. The parties went on to talk about contract terms. Guynn told Boone that he was not out to get something better than what union drivers were enjoying at Char- lotte, and said that he was ready to accept the Charlotte contract for Montvale drivers. Boone replied that he was not happy about certain things -in the Charlotte contract and that he was not ready to agree to it at Montvale. Sometime in April or May the Union filed unfair labor practice charges against the Respondent that were ulti- mately dismissed. Boone told Guynn during this meeting that he had been in business for a long time and this was the first time that charges had ever been filed against him. Guynn's reply was that possibly Boone had never treated another union the same way that he was treating Local 171. Guynn insisted that his union would not see its work being transferred to Charlotte and roll over and play dead. The reference was to the use of Charlotte- based drivers to handle milk runs from Lynchburg, which ,had previously been driven by Montvale drivers. Boone's only reply was that he was going to relocate the terminal regardless of anything that Guynn might do, and indicated that the move would take place in about 60 days. Bonhotel, a driver who was part of the Union's negoti- ating committee, brought up a statement ascribed to Boone by McGalliard to the effect that Boone had a lock on the gate and could close it any time he wanted. Boone replied that he had been around for 30 years and knew better than to say something like that. With refer- ence to the language in the notice that Boone had posted and handed to union representatives, Guynn took excep- tion to the use of the word "terminated," insisting that "layoff' was the proper term, and that laid-off employ- ees should be returned to work if there was sufficient work to warrant recall. Guynn asked Boone if he had given employees an opportunity to convert their health insurance. Boone replied he had not done so but that he would. Guynn also asked 'Boone if he had any severance pay for laid-off or terminated employees. Boone replied that he had a retirement plan and that employees could withdraw their contributions from this plan when they retired. Boone then asked Guynn if he intended to file new 'unfair labor practice charges. Guynn replied in the affirmative. The 'parties then reviewed the Charlotte contract item by item. When they reached the question of seniority, Guynn objected that a utilityman was being used to make deliveries while regular Montvale drivers were in layoff status. He told Boone that he wanted contract lan- guage that would eliminate this practice. As the discus- sion wore on, Boone told Guynn that milk runs were the only work that Lynchburg drivers would be doing so he did not need as many people as before. He stated that de- liveries would be made from Lynchburg to Myrtle Beach, Fayetteville, Greensboro, and elsewhere, and that these runs would be driven either by Lynchburg (i.e., Montvale) drivers or by Charlotte drivers as the Compa- ny saw fit. When the meeting broke up, Guynn told Boone that he would like the Company to present him with a final offer at its next meeting. Boone said that he would do so,' but would like to have some time to formu- late such an offer. , About the same time that the Respondent was an- nouncing the five layoffs and holding its first negotiating session with the Union, it was also changing its dispatch procedure. Until mid-June, the Respondent had long fol- lowed the practice at the Montvale terminal of posting runs and allowing drivers to bid on those runs in order of their seniority. Because the Respondent's weekly, busi- ness was stable and repetitive, the runs in question were fairly well fixed and quite repetitive. (For instance, Monday-Wednesday-Friday milk runs from Lynchburg to Charleston, South Carolina, or Tuesday-Thursday-Sat- urday from Roanoke to Landover, Maryland). Respond- ent also had an extra board to accommodate any addi- tional business that might arise. Drivers were asked to bid about every 6 months or so on their choices of runs. In mid-June, at the time of the closing of the Kroger bakery, the Respondent posted the following notice, dated June 17, and signed by McGalliard: To all drivers: In view of our losing the bakery part' of our work, we are going to have to change our work dispatch in order to cover all loads from the dairy. Starting Sunday, June 22, 1986, we will place all drivers on the Board. We will start at the top on this date and work down the list each week as we do the Board now. After the first trip is made we will then dispatch by money earned. The least amount of money earned will get the biggest paying, load out. You will have to check the line up each day be- tween 1:00 and 1:30 pm to get your next working assignment. If you are placed in the first and second A G. BooNE, CO. call position be sure you are available to work in case some one gets sick. On Saturday you can check the line up any time after 9:00 am. We believe this will be the best way to give the excellent service that you have given Kroger and to be able to spread the work among the drivers we have left. The net effect of this change was to abolish the sets of regular runs to which drivers had previously been as- signed each week and place most runs on an individual rotation basis to be assigned without regard to seniority. Boone presented a copy of this notice to union nego- tiators at a meeting that took place on June 18. He de- scribed how he thought the new plan would work and referred to it as a "rolling" assignment procedure. Boone said it was designed to provide equal earnings for all re- maining drivers in that the driver making the lowest earnings 'in any given week would be the first to be as- signed a run the following week.7 After discussing the new procedure for a while, the parties went on to dis- cuss the Charlotte contract item by item and its possible applicability to Montvale, but no agreements were reached on any provisions. Union negotiators noted during the course of this session that the Company was now using 12 drivers to ' operate 33 regular runs, plus warehouse runs, and argued that there was more work currently available at Montvale than there were drivers to do the work . Company negotiators _made no immedi- ate response to this contention, but, as found above, on July 6 the Respondent recalled drivers Bonhotel and Custer from layoff. The parties to these negotiations met again on July 1. Before this meeting occurred, a number of laid-off driv- ers were called by McGalliard or other supervisors and told that; if they wanted to work in Charlotte, they should report to that terminal in a few days ready to go to work.8 On June 27, Guynn sent a telegram to Boone protesting instructions given to certain drivers to report by June 30, claiming that this was insufficient 'notice and in violation of an understanding that Boone had reached with the Union at their previous meeting. This issue was raised again at the beginning of the July 1 meeting. Boone told Guynn that it was not his intention to require Montvale drivers to relocate to Charlotte so abruptly since the Montvale terminal would be operating for an- 7 Sometime during the summer of 1986, McGalliard told driver Shur- wood Spicer that the new dispatch procedure would be in place only until the Montvale terminal moved to Madison Heights In fact, the old bid procedure was reinstituted at Madison Heights in September after the relocation was completed. a Laid-off drivers Mullins and Holland each received letters from McGalliard, dated June 30, offering them work in Charlotte beginning on July 6. Neither accepted Stultz, a senior driver, wrote on the bulletin board a notice soliciting transfer applications that he preferred Lynch- burg but would go to Charlotte On a 'Wednesday he was called by McGalliard and told that Boone wanted him to be in Charlotte the fol- lowing Sunday to go to work . Stultz objected that this was rather short notice and inquired if the Montvale terminal had been closed. McGalliard replied that it was not yet closed and asked Stultz if he wanted to go to Charlotte Stultz replied that he would go to Charlotte if that was all that was left. Later he informed Dickenson that he did not want to go to Charlotte "right now " Eventually Stultz ended up with an assignment to the Respondent's relocated terminal ' in Madison Heights. 1079 other 60 days. Guynn said that he would never agree to permitting the relocation of Montvale drivers to Char- lotte while the Company was sending Charlotte drivers to Roanoke to perform work that Montvale drivers had previously done. He had in his possession a list of the runs in question and gave them to Boone to support the argument that the Montvale terminal could not operate with only five or six drivers. Reference was made to Kroger stores in Myrtle Beach, Fayetteville, and else- where, which were receiving deliveries of milk from the Kroger-Westover plant in Lynchburg, and certain runs from Lynchburg to Savannah, which had been per- formed by Montvale drivers but which had been discon- tinued just after the election. Neither Boone nor McGalliard made any response to Guynn's allegation nor did they challenge the accuracy of his information . Boone simply said that he would put up a notice asking drivers if they were interested in transfers to Charlotte or elsewhere within 60 days and stated that the Company was going to go forward with this change in its operations regardless of any objections the Union might have. Guynn said that he objected to seeing 5 or 6 drivers perform work which 23 drivers and maintenance men had done at the time' of the election, adding that he would call a meeting and take a strike vote over this action by the Company. The parties went on to discuss various contract items but no agreements were reached. Union health and welfare proposals, pen- sion plan proposals, and checkoff were the major stick- ing points. Guynn also objected to the new dispatch pro- cedure that had been inaugurated on June 17. Boone told him to make a proposal for a dispatch procedure that the Union felt would be equitable but expressed the opinion that dispatch procedures normally should not be dis- cussed until a contract had been agreed on , as was his practice at other terminals. Guynn's reply was that there was no sense in worrying about ' a dispatch procedure until the parties got something , agreed on in the contract. The meeting broke up with Guynn again asking Boone to submit to the Union a final offer. 'Boone said he would do so in a couple of weeks, On the following day Guynn sent Boone a letter con- firming a bargaining session on July 15. The letter also stated that "it is . . . our understanding that you will present your final contract offer on July 16, 1986." By letter of July 8, Boone replied, confirming the July 15 meeting date, but stating "since you will respond to our proposal of July 1, 1986 at our meeting on ,. . . July 15, 1986, we cannot , be prepared to make ' a final offer on Wednesday, July' 16, 1986, and at this time we are unsure as to when we will be in a position to make a final offer." To date no such offer has been made. The parties met again on July 15, as agreed. The Union advanced a seniority proposal that included a pro- vision prohibiting utility workers from handling over- the-road runs if regular drivers were on layoff status. It pressed again for acceptance by the Respondent of the Charlotte contract for Montvale drivers. No agreement was reached. Boone said that he had no proposals to make because his secretary was on vacation so he did not have an opportunity to put such an offer together. I 1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD He did make it clear to union negotiators that he would never agree to' checkoff demands or to the Union's pro- posals for a pension plan and health and welfare benefits. In early July, the Respondent listed the Montvale ter- minal with a real estate broker. As of the -date of the hearing in this case it had not yet been sold.9 It did not obtain alternative premises in the Lynchburg area until late July or early August, when it leased part of a shop- ping center in Madison Heights, some 37 miles away, for a reduced scale terminal . On July 24, the Respondent posted the following notice, signed by Boone, at its ,Montvale terminal: Very shortly we will be moving a portion of our remaining terminal operation to our new location in Madison Heights, Virginia. There will be an oppor- tunity for six (6) drivers, by seniority, to relocate at this facility. The projected date of the relocation is estimated to be August 10, 1986. Since it is imperative that we return the Char- lotte related milk runs back to the Charlotte oper- ation, it will be necessary to increase the number of Charlotte drivers by four (4). If anyone, who is qualified, wishes to relocate in Charlotte please indi- cate so by signing below. Please do not sign unless you are sure you will be willing to relocate as we must have a commitment that we can depend upon. Due to reduction in the size of the operation at the Madison Heights location , it is with regret that we will find it necessary to place all other employ- ees in permanent lay-off. At the bottom of the notice were spaces for signature under headings that stated "Will agree to relocate in Charlotte" and "Will report for duty in Charlotte by the below date." On August 3, the Union called a meeting at its hall on Melrose Avenue in Roanoke for the purpose of taking a strike vote. The employees who attended voted unani- mously to strike, but the beginning of the strike was postponed about 2 weeks. Meanwhile, the Montvale ter- minal continued to operate beyond the projected August 10 relocation date, which was contained in the Respond-' ent's July 24 notice. The Montvale terminal was still in operation on Sunday evening, August 17, when the Union began its strike. The Union picketed the Montvale terminal and sent pickets to Charlotte to picket the Charlotte terminal. The strike lasted only 2 days and was terminated on Tuesday morning, August 19. Guynn caused to be deliv- ered to the Montvale terminal manager a letter on August 19 that stated "On behalf of all striking employ- ees we hereby request immediate and unconditional rein- statement." On the same day Boone replied to Guynn in writing as follows: 9 In addition to issuing a complaint in this case, the General Counsel has also sought temporary relief in the United States district court under Sec 10(j) of the Act, asking the court to restrain the Respondent from selling the Montvale terminal until the Board can act in- the instant com- plaint case This will acknowledge receipt of the letter dated August 19, 1986, that was hand delivered to our Montvale Terminal Manager by Mr. Sherwood this date. We have a need for three (3) additional drivers at our Madison Heights location beginning Sunday, August 24, 1986. Those three (3) drivers by seniori- ty, will be: Shurwood K. Spicer Wilbur G. Gobble Cecil M. Stultz These three drivers MUST call in by noon on Friday, August 22, 1986, for their job assignments beginning Sunday, August 24 , 1986. The Madison Heights telephone number is 804-847-7802. If they do not call in they will be considered as_"quit" and we will continue down the seniority list until we ac- quire the three drivers needed. We are recalling three drivers on condition that there will be no future work stoppages without proper notification. A copy of this letter is being sent to each of the above drivers at their homes so they will know ex- actly what is expected. We still have need for some drivers at our Char- lotte location should anyone wish to reconsider and apply for a driver position at that operation. Regrettably, all other personnel will be placed in permanent layoff. On the following day, Boone sent Guynn another- letter, acknowledging receipt of Guynn's August 14 letter, which asked for a date for future negotiations. Boone stated that he had several conflicts during the month of September, but would work toward a meeting, "at the convenience of both of us." On August 21, Boone sent layoff notices to seven Montvale employees . These notices stated that , "due to the reduction in business and the ensuing realign [sic] of work we are forced to reduce our work force . Regretta- bly, this is your notice of lay-off effective Friday, August 22, 1986." The notice was sent to, Bonhotel, Custer, Mul- lins, Johnson, Lynch, Brian Noakes, and Sparks. Re- spondent admits that its action in opening the Madison Heights operation on August 24 was accelerated by the August 17-19 strike at Montvale. Its personnel roster at Madison Heights, as of October 1, included eight drivers and one utilityman,1 ° all operating under the immediate supervision of T. J. (Jack) Dickenson . McGalliard was transferred back to Charlotte and is now employed as a dispatcher at that location. With the exception of Stultz and Spicer, no drivers who participated in the August strike are employed at Madison Heights, notwithstanding Boone's assertion that offers of employment at that loca- tion would be made in order of seniority . Johnson and Lynch, who participated in the strike, were given perma- nent layoff notices while Hawkins, a junior employee to ro The eight drivers in question are Spicer, Tanner, Gobble, Mallow, Stultz, William Dickenson , Hawkins, and Burton The utiiityman is An- drews A. G. BOONE CO. Lynch, was hired, and Burton, who was junior to John- son and worked during the strike, was promoted from utilityman and assigned to work as a driver. Johnson went out on strike, as did Brian Noakes, who was also senior to Burton. 'Lynch asked McGalliard sometime late in August after the strike was over why he was laid off. McGalhard's only reply was that Lynch would have to ask Boone. No explanation for this departure from se- niority is to be found in the record. The parties were scheduled to meet again in Roanoke for negotiations late in September but, on the morning of the scheduled meeting, Boone phoned the Union from Charlotte and told them that he could not attend because of an illness in his family. No meetings have taken place since that time. Late in September, driver Mike Mallow asked Dickenson to type a written draft of a proposed petition to be circulated among Madison Heights drivers seeking the ouster of the Union. Dickenson did so. The letter, addressed to Boone and dated September 22, read: We, the undersigned, are expressing our position on the negotiations with any union. Being a majori- ty at the Madison Heights Truck Terminal, we want to end any and all negotiations with the Union Local 171 or any other union leadership. We the employees of the A. G. Boone Co. do not wish to be represented by anyone other than ourself [ sic]. It will be the benefit and concern of all if this situation of a union is brought to an end of discussion [sic]. The document introduced into evidence contained the signatures of six drivers. Dickenson kept the letter in his office at the Madison Heights terminal and solicited signatures from employees as they returned from their respective runs: On one such occasion, Stoltz came into the office to report damage to a truck. Dickenson exhibited the letter to him but Stultz returned it. Dickenson asked, "Aren't you going to sign it?" Stultz replied that he would rather think about it. Shortly thereafter Stultz reported this conversation to the Union and an unfair labor practice charge was filed concerning the incident. About a week later, Stultz had occasion again to be in Dickenson's office. Dickenson pointed to the letter and. insisted that it was not his but Mallow's letter. Stultz disputed Dickenson's statement, saying that if he had known it was Mallow's letter he would have ignored it. Dickenson then mentioned that someone had reported their earlier conversation to the union hall and Stultz admitted that he had done so. Dickenson asked why and Stultz replied that he felt that he had been under pressure so he wanted to protect him- self. Dickenson repeated that he had told Stultz that the letter was not his but Mallow's, but Stultz again disputed that statement. They then went 10 look at a trailer that was reported damaged. Dickenson asked Stultz if he had broken it on something. Stultz' immediate reply was, "Don't go trying to make nothing out of it. I picked it up at the dairy like that." Dickenson told him that he had better go back to the union hall and change his story because the disputed letter was Mallow's letter, not his. Stultz refused, saying that he had already signed an affi- davit. Dickenson also presented the petition to Spicer on 1081 three occasions and asked Spicer to sign it, but Spicer re- fused. Late in September, the Respondent gave its Madison Heights employees an increase in their rates: Mileage rates were raised from 23-3/4 cents a mile to 24-1/4 cents a mile. "Dropping the hook" (i.e., leaving an empty truck at the dairy to be loaded), was raised from $4.50 to $4.75. The hourly rate for waiting time during loading and unloading was raised from $9.15 an hour to $9.30 an hour. None of these raises were negotiated with the Union or agreed to by the Union. II. ANALYSIS AND CONCLUSIONS A. Statements in Violation of Section 8(a)(1) of the Act On more than one occasion over the years, Dickenson had told job applicants at Montvale that the terminal was going to be run on a nonunion basis and would be closed if it ever became unionized . On one occasion he told Bonhotel that Boone had said that the Respondent had closed its Atlanta terminal because, it had become union- ized. Boone partially confirmed this statement in his own testimony at the hearing. While pleading lack of union animus, the Respondent has compiled a track record of closing four unionized satellite terminals and opening two nonunion satellite terminals in addition to its union- ized operation at Charlotte. The statements herein are barred from prosecution by Section 10(b) of the Act, but taken together with the Respondent's conduct elsewhere they demonstrate a strong and determined hostility to the unionization of the Montvale terminal or, for that matter, any terminal other than the principal one. (1) When in February 1986 McGalliard told Mullins and Durham that if employees voted the union in the flowers would be the first to go, the Respondent threat- ened to transfer or discontinue work from the Montvale terminal in reprisal for union activities of Montvale em- ployees and, in so doing, violated Section 8(a)(1) of the Act. (2) When McGalliard told Mullins and Durham that Boone had already informed him that he was not going to- give Local 171 "one red cent," the Respondent was threatening to refuse to honor its obligation to bargain with the Union in good faith in violation of Section 8(a)(l) of the Act. (3) When Dickenson asked Johnson and Mallow to try to talk the Union down because Boone would lock the gate if the Union was voted in, the Respondent - was threatening employees with reprisal for supporting the Union and, in so doing, violated Section 8(a)(1) of the Act. (4) When McGalliard told Spicer that, if the Union came in the Respondent would close the Montvale termi- nal and he (McGalliard) would go back to Charlotte, the Respondent made an illegal threat that violated Section 8(a)(1) of the Act. (5) When McGalliard told an unidentified driver in the presence of Holland that, if the Union came in, the driv- ers would probably be out of a job, the Respondent 1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD made another illegal threat that violated Section 8(a)(1) of the Act. (6) When Dickenson uttered a threat to Stultz that the Company would close the terminal if the Union came in, the Respondent violated Section 8(a)(1) of the Act. (7) When, on another occasion , Dickenson told Stultz that, when he found out who the sixth "s.o.b." was who was "in on this union deal, he would fire him," the Re- spondent was guilty of a threat that violated Section 8(a)(1) of the Act. (8) When McGalliard asked Bonhotel if he knew any- thing about the union business and stated thereafter, "if the Union comes in, I got the lock," the Respondent was guilty of coercive interrogation and a threat to close the plant that violated Section 8(a)(1) of the Act. (9) When, after the election, Dickenson told Lynch that flowers runs between Simpsonville and Montvale were being discontinued because the Montvale drivers had voted to unionize, the Respondent was guilty of threatening reprisal for union activities in violation of Section 8(a)(1) of the Act. (10) When Dickenson uttered the same statement rela- tive to the transfer of flower runs from Montvale drivers to Anderson drivers, the Respondent herein was guilty , of a violation of Section 8(a)(1) of the Act. (11) When Dickenson told Johnson that Boone was not going to bargain in good faith with the Union, the Respondent again violated Section 8(a)(1) of the Act. (12) Dickenson's assistance to Mallow in mid -Septem- ber in preparing and circulating a petition aimed at un- dermining the status of the certified bargaining agent amounted to much more than giving a casual or inciden- tal piece of advice or information. Dickenson made much of the fact that the antiunion petition was Mal- low's idea, not his own. This fact-if it is a fact-is quite beside the point. What is important is that Dickenson ac- tively aided and abetted the preparation of the document by typing it himself and then systematically presenting it for signature to all the Madison Heights drivers in his office at the company terminal , thereby lending the Re- spondent's seal of approval and its active assistance to this effort. Regardless of who conceived the idea, the circulation of the document was more of Dickenson's work than of Mallow's. Moreover, as far as Stultz was concerned, Dickenson did not merely make the petition available. He engaged in a hard sell effort to get Stultz' signature-tendering the letter to Stultz on several occa- sions, interrogating Stultz about reporting his activity to the Union, and impliedly threatening Stoltz with a write- up for damaging A company truck because Stultz had re- sisted overtures to sign. By circulating among employees a petition aimed at undermining the Union's status as the certified bargaining agent of its 'employees , the Respond- ent violated Section 8(a)(1) of the Act. B. The Layoffs of Mullins and Holland On May 3, 1986, the Respondent laid off Montvale drivers Roger Mullins and Jerry Lee - Holland. They were laid off in order of seniority . The Respondent's as- serted reason for the layoffs was that there was no work available at Montvale for them to do. Like all the Re- spondent's decisions that were made during the spring and summer of 1986, these layoffs were accomplished against a background of intense antiunion animus, includ- ing animus directed at both Holland and Mullins. The timing of the layoffs was also suspicious , in that they oc- curred within 3 weeks of the Union 's victory in the rep- resentation election. Boone testified that the decline in work at that time was occasioned by the discontinuance of using Montvale drivers to haul flowers from Simpsonville, South Caroli- na, for the Kroger Company, and the transfer to Char- lotte drivers of certain milk runs originating at Kroger's Lynchburg dairy to Savannah, Georgia. As noted above, the discontinuance of the flower runs in mid-April left the Respondent with the same amount of business at Montvale and the same number of drivers that it had, in February before the flower runs began. In this regard, I agree with Respondent's counsel that the discontinuance of flower runs was something of a "wash" in assessing the Respondent's overall business activity in early May because, as far as flower deliveries were concerned, the Montvale terminal was in the same position in May that it was before this work was first undertaken in March. However, credited testimony in the record discloses repeated threats and statements by company supervisors, both before and after the April 13 election, to the effect that a union victory would mean loss of flower runs at Montvale. These statements of company intentions cannot be ignored. More to the point, the Board cannot ignore the fact that other Montvale business , notably milk runs from Lynchburg dairy, brought in slightly more revenue in May than they did in February, not- withstanding the transfer of certain Savannah-bound runs to Charlotte drivers in mid-April. In light of these fac- tors, I conclude that the overall loss of business at Mont- vale,-relied on by Boone in his testimony to justify these layoffs, is, unsupported by the Respondent's own records and is in fact contradicted by those records . Thus, the Respondent's asserted reason for laying off Mullins and Holland is unfounded and necessarily pretextual . Accord- ingly, I conclude that by laying off Jerry Lee Holland and Roger Mullins in reprisal for union activities under- taken by members of the Montvale bargaining unit the Respondent herein violated Section 8(a)(1) and (3).11 C. Discontinuing Flower Deliveries with Montvale Drivers For a period of 6 weeks , Montvale drivers handled a portion of the flower deliveries emanating from the Kroger warehouse at Simpsonville, South Carolina., These runs were discontinued within days after the Union's victory at the representation election and in the face of repeated threats that a union victory at the polls would carry in its wake the loss of the flower runs in question . However, I credit the testimony of Kroger's manager of traffic operations analysis, Donna Folberth, I' The fact that Holland and Mullins were not leading union adherents or conspicuous in the union effort at Montvale is irrelevant They were the victims of antiunion reprisals aimed at the whole bargaining unit and were selected for such treatment because their positions at the bottom of the seniority list provided the Respondent the best available cover story for its unlawful conduct A. G. BOONE CO. that it was Kroger who directed Boone to discontinue using Montvale drivers for flower deliveries and to con- centrate these deliveries exclusively in the hands of An- derson drivers, some of whom she described as "dedicat- ed" or specialized drivers (i.e., personnel who handle flower delivery work and nothing else). Unless I were to conclude that Kroger was somehow in cahoots with Boone in defeating the organizing drive at Montvale, I would have to find that the decision to transfer the flower runs was Kroger's, not Boone's, and thus absolve Boone of any responsibility for the decision. There is no record evidence to suggest such collusion on the part of Kroger. Accordingly, I dismiss so much of the consoli- dated amended complaint that alleges that the Respond- ent discontinued making flower runs with its Montvale drivers in order to take reprisal against them for select- ing the Union as a bargaining agent. This finding in no way detracts from the validity or seriousness of other findings, made above, that McGalliard and Dickenson re- peatedly threatened drivers with loss of flower runs if the Union won the election. Respondent's basic tactic was that any stick was good enough to use against the Union, and the fact that some of its actions might have had a nondiscriminatory foundation did not prevent the Respondent from using an adverse economic circum- stance as just another context in which to communicate to its drivers the dire effects of unionization. D. The June Layoffs 1. The 8(a)(3) violation On June 14, the Respondent laid off the next four Montvale drivers in order of seniority, bringing to six the total number of drivers in layoff status. The justification for this action was a notice, received the previous week, that Kroger had abruptly decided to close its Roanoke bakery and to supply its stores in the Southeastern United States with bakery products originating from Co- lumbus, Ohio, and delivered by its own drivers. Three weeks later, Respondent recalled two of the five laid-off drivers, ostensibly because work was available for them and because it had made too drastic a'cut in its employee complement on June '14. This sequence of events illus- trated another feature of the Respondent's overall per- sonnel policy following the union victory in April, a tactic known in the bureaucracy as "sore -thumbing" (i.e., making the worst of an adverse circumstance or making the least of a favorable one in order to defeat or embar- rass a policy or practice that the decision-maker wishes to oppose). Assuming that the loss of one-seventh of the Montvale business brought about by the loss of bakery runs could justify some kind of curtailment in the operation, why did the Respondent in this instance resort to overkill and do additional and unnecessary damage to the work force at the Montvale operation by laying off more drivers than it could afford to do without? In light of the strong animus exhibited in various statements of its supervisors, including several statements that unionization would bring about the complete closing of the terminal, it is clear that the discharge of so many employees on June 14 was prompted, at least in part, by discriminatory mo- 1083 tives. Additional evidence, including nuances found in written company statements made at different intervals, suggests clearly that the entire layoff was part of its widely trumpeted ongoing scheme to close down the ter- minal completely, a fact that it accomplished within 2 months thereafter . Respondent's long-term commercial strategy at Montvale was an understandable effort to avoid putting all of its eggs in one basket by relying too heavily on any one customer or any single source of business to support the terminal . Customers came and went, and there is no record evidence that the Respond- ent engaged in earlier layoffs when this happened at Montvale. It opened the terminal in 1979 when Kroger opened its Lynchburg dairy with the hope and expecta- tion that other business would follow, and it did. In Sep- tember 1985, before the Charging Party had come on the horizon, McGalliard put out a memo to drivers outlining a new dispatch procedure in which he made this distinct- ly upbeat statement: We anticipate some additional business and we need to have more flexibility than we have now in order to better serve our customers and utilize our equipment and personnel. As discussed before, Respondent acquired a great deal of new business in March when it replaced a competitor, Ryder, in the hauling of flowers for Kroger. During the same period of time, Kroger enlarged its grocery oper- ation to include a newly purchased chain of stores called M & M. This acquisition brought in more work for Re- spondent's drivers. However, when the Roanoke bakery was closed by Kroger, Boone immediately announced in his layoff letter that the loss of a portion of the business at Montvale was permanent and that employees were not only going to be laid off but terminated (i.e., permanent- ly separated). There was no basis for the Respondent's sudden change in economic forecasting. As discussed above, this gloomy expectation was not even borne out by its own figures, which showed Montvale milk runs in late August bringing in some $13,000 more in revenue than they did in May, thus displacing entirely any loss of business occasioned by the discontinuance of bakery runs. Moreover, there is no suggestion that the loss of bakery runs prompted any layoffs at the Respondent's nonunion facility in Anderson, despite the fact that 35-40 percent of that work was handled by drivers operating out of the Anderson terminal. i a 12 Boone testified that he had told supervisors and drivers alike long ago that the Montvale terminal would in fact close if the Respondent ever lost the Kroger bakery account The possibility anticipated at that time was not that Kroger would close the Roanoke bakery, but that it might give the delivery business from this bakery to another carrier or perform the work itself when its contract with the Respondent expired Boone was a most unbelievable witness and his assertion , as set forth above, was not corroborated Stultz testified that he had heard Boone say that there was a "possibility" that the terminal would close if the Re- spondent lost the Roanoke bakery work Another employee reported that Boone had once said that the terminal would close if Respondent lost the Roanoke bakery work and no other business could be found to take its place. However, those statements are a far cry from any certain and im- mediate effect on the Montvale terminal from the loss of bakery work about which Boone says he warned employees in 1985 and earlier The Continued 1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD All these facts make it clear that the Respondent was "sore-thumbing" when it laid off five drivers on June 14, and that its asserted economic justification was a pretext to conceal its true motive, namely, to take further repris- al against Montvale drivers for selecting the Union as their bargaining agent and to lay additional ground work for closing the terminal entirely. Accordingly, by laying off Bonhotel, Conner, Custer, and Durham on June 14, the Respondent herein violated Section 8(a)(1) and (3) of the Act. 2. The 8(a)(5) violation The General Counsel has alleged that the layoff of five employees on June 14 on the occasion of the elimination of Kroger's bakery delivery business constituted an un- lawful refusal to bargain. By June 1986, the Union had been certified as the exclusive collective-bargaining rep- resentative of all the Respondent's Montvale driver and maintenance employees. As such it was entitled to bar- gain collectively with the Respondent concerning any aspect of wages, hours, and terms and conditions of all employees in that unit. The correlative responsibility which that right imposed on the Respondent was the duty to notify the Union in advance of taking personnel actions concerning these matters and to afford the Union an opportunity, on request, to bargain collectively with respect to them. In this case, the first notice that the Union formally received from the Respondent that Boone was laying off five Montvale employees was given to it during its first bargaining session with Boone, which took place 3 days after the layoffs occurred. Frequently, collective-bargaining agreements are struc- tured to confer on employers the complete right to lay off, transfer, or take other personnel actions that affect the status of employees without advance consultation or agreement by the bargaining agent. When such clauses appear in a contract, they are a collectively bargained waiver of a statutory right. However, no such contract existed, or now exists, between these parties that address- es either this or any other topic, so no waiver of this basic statutory right by the Union has ever taken place. Accordingly, before taking any adverse action respecting any of its unit employees, the Respondent was and re- mains obligated to notify the Union and, on request, to bargain collectively in good faith concerning its pro- posed action or actions. This the Respondent made no pretense of doing. Accordingly, by laying off five em- ployees without bargaining in good faith with the Union concerning the layoffs, the Respondent herein violated Section 8(a)(1) and (5) of the Act. E. Respondent's Refusal to Bargain about Relocating the Terminal The question of laying off employees is closely inter- twined with the decision to relocate the Montvale termi- nal, but the two matters involve essentially two separate actions. In May, Boone laid off two employees. In June, he laid off five more, and in late August he laid off an- one day that elapsed between the closing of the bakery and the termina- tion of four drivers is hardly enough time to cast about for additional business, if one is really interested in securing additional business other seven, two of whom were June, layoffs who had been temporarily recalled. In short, within a 4-month period, a total of 12 employees had been laid, off out of a bargaining unit of 23. About August 24, he closed the Montvale terminal and opened the Madison Heights ter- minal. Theoretically, the Respondent could have kept its terminal open at Montvale with a reduced staff. Con- versely, it could have relocated to Madison Heights and taken along its full original complement of drivers and maintenance men. Accordingly, the two matters should be examined separately, even though they are different sides of the same coin. The General Counsel alleges that the factor that unites these two efforts by the Respondent-layoffs and reloca- tion-is the Respondent's deep and abiding animus and discriminatory intent. 'The Respondent repeatedly told employees at the time of the election that if the Union won the election, the Montvale terminal would be closed. The Union won and 4 months later the Montvale terminal was closed. It won the election by a vote of 16 to 6. Eleven of the employees who voted- in that election have been terminated, most of whom were necessarily union supporters. Shortly after relocating the balance of the terminal in Madison Heights, the Respondent circu- lated a petition asking its remaining employees to repudi- ate the action that they took in April regarding union representation. On importuning by the Respondent, six of its remaining employees did so by signing the Mallow- Dickenson petition, thereby leaving the Respondent with a terminal in southwest Virginia having only one or two committed union adherents, whereas, a scant 6 months before, it had a terminal full of union drivers and a bar- gaining agent eager to conclude a contract containing many of the 'same terms and conditions as another con- tract in Charlotte for which Boone had voiced strong distaste. The General Counsel says that the transfer of the ter- minal from Montvale to Madison Heights is illegal on two counts-it was discriminatorily motivated and the Respondent refused to bargain in good faith concerning both the decision to transfer and the effects of the trans- fer. The Respondent's defense is that the relocation was economically motivated and that, under recent Board and court precedents, it was free to relocate its business without bargaining collectively over the decision. A de- termination as to the first of the General Counsel's con- tentions disposes of the Respondent's defense to the re- fusal-to-bargain allegation. Boone testified that the Respondent's initial decision to open a terminal at Montvale, about 40 miles from. the Kroger-Westover Lynchburg dairy, was prompted by Kroger's decision to open a dairy at that location in 1979 and the Respondent's desire to haul Kroger's dairy prod- ucts from that location. At that time, the Respondent had no other business in the Roanoke area to support the Montvale terminal. It acquired the Kroger bakery busi- ness in Roanoke at a later point in time Respondent's an- nounced justification in 1986 for moving the terminal from Montvale, so it could be some 37 miles closer to Lynchburg, was that it no longer had any Roanoke busi- ness and it made economic sense to be closer to its only A. G. BOONE CO. customer in the area . Boone also testified that the reloca- tion would mean a savings of $80,000 a year in hauling costs for Kroger's Lynchburg dairy products, and that Kroger wanted the relocation to take place so that it could enjoy the benefit of that saving. Neither the figure mentioned by Boone nor any figure has any support in any of the Respondent's records, nor do they have any other , corroboration. At the time Boone gave this testi- mony, the relocation had been in effect only 6, weeks, and the Respondent admitted, in other parts of its testi- mony, that it had not yet compiled enough data to come up with any cost-per-mile figures for hauling goods at Madison Heights . Accordingly, its assertion of an $80,000 annual savings was a complete fabrication. Moreover, Kroger's traffic analyst, whom the Re- spondent proffered as a witness, contradicted Boone, saying that Kroger had made no request for a terminal relocation. It should also be noted that Respondent's nonunion terminal at Anderson is almost the same dis- tance from Kroger's facility at Simpsonville as Montvale is from Lynchburg. This fact has not prompted the Re- spondent to make any corresponding move at that loca- tion to reduce Kroger's transportation costs. Moreover, the record indicates that, in order to open the Madison Heights facility, Respondent has had to lay out an addi- tional $600 per month in rent while still bearing the basic cost of owning and maintaining the terminal at Mont- vale. After discounting Boone's unsupported assertions, it is clear from this record that Respondent moved its ter- minal ' from Montvale to Madison Heights in August to follow through on the threat its supervisors made in March and April, namely that the Montvale terminal would be closed if the Union won the representation election. Accordingly, the relocation is a violation of Section 8(a)(1) and (3) of the Act. Respondent contends that the Supreme Court decision in First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981), and the Board 's subsequent decision in Otis Elevator Co., 269 NLRB 891 (1984), absolve it from any obligation under the Act to bargain with the Union con- cerning its decision to relocate . These decisions have no bearing on this case, inasmuch as the principles an- nounced therein are confined to situations in which the decision to relocate is untainted by any animus or dis- criminatory intent. Strawsine Mfg. Co., 280 NLRB 553 (1986). Because the Respondent's basic motive in making the decision was illegal , it cannot be spared the conse- quences of its duty to bargain over that decision. More- over, none of the decisions cited by the Respondent ab- solve ' an employer from bargaining over the effects of a decision to relocate, as distinguished from the basic deci- sion itself. In this latter regard, the Respondent herein was also remiss . Part of the decision and its effects in- cluded the opening of the Madison Heights terminal. Ac- cordingly, by failing to and refusing to bargain collec- tively in good faith with the Charging Party concerning both its decision to relocate from Montvale and the ef- fects of such a move, including the opening of the Madi- son Heights terminal, the Respondent herein violated Section 8(a)(1) and (5) of the Act. 1085 F. The Discharge of Seven Employees on August 21 Throughout the spring and summer of 1986, the Re- spondent was continually transferring work from Mont- vale to Charlotte or Anderson to the detriment of em- ployees in the Montvale bargaining unit. This was part of the "sore-thumbing" tactic aimed ultimately at remov- ing union activists from its payroll and redeeming its promise to lock the gate at Montvale. Taken by itself, the decision to transfer 2700 miles of milk delivery work in April from Montvale to Charlotte drivers may not seem discriminatory in character. However, Respondent admittedly transferred that and other Lynchburg milk delivery work formerly performed by Montvale drivers to its Charlotte drivers and then added drivers to the Charlotte unit, soliciting Montvale drivers to work in Charlotte if they wished to do so. 13 At one of the nego- tiating sessions with the Union, Boone insisted on this right and announced that the Company would switch runs from Montvale or Madison Heights to Charlotte, and possibly even back again, whenever it chose to do so. The nature of the trucking business makes such relo- cations of work comparatively easy to do and to undo. All that is required is a minor change in dispatching from one terminal to another. The fact that the Respond- ent engaged in such activity repeatedly and on a broad scale totally undermines any economic defense that it might assert to justify laying off employees at Montvale. The fact that seven drivers were permanently separated the day after the August 17-19 strike ended, 14 and the fact that the Respondent admitted that the strike had ac- celerated its planned move to Madison Heights clearly indicates that, by discharging Lynch, Johnson, Brian Noakes, Ricky Mullins, Sparks, Bonhotel, and Custer on August 21, the Respondent herein violated Section 8(a)(3) of the Act. By failing to negotiate these dis- charges with the Union, the Respondent herein also vio- lated Section 8(a)(5) of the Act. G. Unilaterally Changing the Dispatch Procedure As described in detail above, the Respondent had long followed a practice at its Montvale terminal of assigning runs on a seniority bid basis, opening up the bid board periodically to accommodate changes in personnel or changes in available runs. The most senior driver bid on whatever set of runs were posted, and, because of the regularity of the Respondent's business, could count on those assignments from week to week until bidding was opened up again. Then less senior drivers followed suit. Those at the bottom of the list bid on extra runs that were frequently posted on the extra board. With the loss is When new work arose, such as deliveries to Kroger's newly ac- quired M & M chain , Respondent elected to assign this delivery work either to its Charlotte or Anderson drivers, thereby taking its "sore- thumbing" policy vis-a-vis Montvale drivers even further 14 in deference perhaps to Guynn's criticism in June that a separation notice should use the term "lay off" rather than "terminate," the August 21 letters to drivers used the word "layoff" However, the letters also offered drivers assistance in helping them find other jobs This language, as well as the phrase "permanent layoff" in the Respondent' s posted notice of July 24, made it clear that the drivers in question were being fired, not temporarily denied employment. 1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of the Kroger bakery delivery business, the Respondent abolished this practice and instituted a rotating or "roll- ing" dispatch procedure in which seniority counted for little or nothing. Its excuse for doing so was that it wanted, so far as possible, to equalize the earnings of all drivers in the face of reduced business. Interestingly enough, after the Respondent opened the Madison Heights terminal in late August, it reinstituted the same practice of bidding on standard runs by seniority that it had followed at Montvale before June 17. In bringing about this change in June, the Respondent simply confronted the Union with a fait accompli. A notice outlining the new procedure was posted on the bulletin board and the Union was told about it-the fol- lowing day at the June 18 bargaining session . The Re- spondent went about implementing the new procedure the following week. It made no pretense of negotiating the change. Because its dispatch procedure involved a term or condition of employment, the Respondent was not free to change it unilaterally and was under an obli- gation to notify the Union of its desire to make the change, extend to the Union an opportunity to bargain over a proposed change and, on demand, bargain collec- tively concerning the change until either agreement or impasse was reached. When it failed to observe this legal requirement in June 1986, concerning dispatching drivers at Montvale, the Respondent herein violated Section 8(a)(1) and (5) of the Act. H. Unilaterally Changing Wages at Madison Heights Dickenson admitted in his testimony that on Septem- ber 28 the' Respondent raised its wage rates at Madison Heights in three particulars-the mileage rate, the wait- ing time hourly rate, and the fee payable to a driver for "dropping the hook." Although the Respondent states that it still recognizes the Union as the bargaining agent for the members of its relocated unit, it made no pretense of notifying the Union or bargaining with it concerning these increases. By failing to do so, it violated Section 8(a)(1) and (5) of the Act. Although this violation was not alleged in the consolidated complaint, it ,was fully litigated at the hearing, inasmuch as the Respondent's terminal manager admitted under oath the facts that con- stituted the violation that occurred. 1. Conditioning Reinstatement on Giving Strike Notice In its letter of August 9 to the Union, a copy of which was sent to drivers Spicer, Gobble, and Stultz, the Re- spondent offered these drivers recall following the con- clusion of the abortive strike and a place at its Madison Heights terminal, provided they called in by noon on the following Friday to accept. It also conditioned reinstate- ment "on condition that there will be no future work stoppages without proper notification." Neither the Union nor its members is under any legal or contractual obligation to give this Respondent any advance notice of a work stoppage, and both are free under the Act to strike this Employer at Montvale and Madison Heights abruptly and without previous warning. Conditioning the reinstatement of employees on their willingness, or the willingness of other employees, to forgo the exercise of this statutorily protected right is a violation of Section 8(a)(1) of the Act. I so find and conclude. On the foregoing findings of fact , and on the entire record herein considered as a whole, I make the follow- ing _CONCLUSIONS OF LAW 1. The A. G. Boone Company is now and at all times material herein has been an' employer engaged in com- merce within the meaning of Section 2(2) of the Act. 2. Teamsters Local Union No. 171, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen-and Helpers of America is a labor orga- nization within the meaning of Section 2(5) of the Act. 3. All drivers, hostlers, and service utility employees employed by the Respondent at its Montvale, Virginia plant, and any relocations thereof, excluding mechanics, office clerical employees, guards, and supervisors as de- fined in the Act constitute a unit appropriate for collec- tive bargaining within the meaning of Section 9(b) of the Act. , 4. At all times material, the Union has been the exclu- sive bargaining representative of all the employees in the unit found' appropriate in Conclusion of Law 3 for the purpose of collective bargaining within the meaning of Section 9(a) of the Act. 5. By unilaterally changing its driver dispatch proce- dure, by unilaterally changing certain rates paid to driv- ers at its relocated terminal, by unilaterally laying off and discharging employees without first bargaining about their layoffs and discharges with the Union, and by uni- laterally closing its truck terminal at Montvale, Virginia, and opening up a truck terminal at Madison Heights, Virginia, to replace it, the Respondent violated Section 8(a)(5) of the Act. 6. By transferring bargaining unit work from its Mont- vale and Madison Heights terminals to other, terminals, by laying off and discharging employees and hostlers at its Montvale, Virginia terminal, and by closing its termi- nal at Montvale, Virginia, and opening a terminal to re- place it at Madison Heights, Virginia, in order to take re- prisal against employees for engaging in union activities, the Respondent violated Section 8(a)(3) of the Act. The employees in question are Jerry Lee Holland, Roger Mullins, Jerry Durham, Albert Conner, Randolph Custer, Malcolm Bonhotel, Carl ' R. Sparks, Sr., Ricky Mullins, Brian Noakes, Johnny Johnson, and Harold Lynch. 7. By the acts and conduct set forth above in Conclu- sions of Law 5 and 6; by coercively interrogating em- ployees concerning their union activities and the union activities of other employees; by threatening employees with loss of job opportunities, discharge, and plant clo- sure or relocation if they engaged in union 'activities; by threatening to discharge union adherents when their identities became known; by threatening not to bargain in good faith with the Union if it was selected by em- ployees as their bargaining agent; by informing employ- ees that bargaining unit work had been transferred to other locations because they had, selected the Union as their bargaining agent; by conditioning the reinstatement A. G. BOONE CO. of strikers on their agreement to refrain from striking without giving the Respondent advance notice; by threatening to drag out negotiations if the Union was se- lected as bargaining agent; and by circulating among em- ployees a petition aimed at undermining the status of the Union as bargaining agent, the Respondent violated Sec- tion 8(a)(1) of the Act. 8. The aforesaid unfair labor practices have a close, in- timate, and substantial effect on the free flow of com- merce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has committed vari- ous unfair labor practices, I will recommend that it be required to cease and desist therefrom and to take other affirmative actions designed to effectuate the purposes and policies of the Act. Because the violations of the Act found evidence an attitude on the part of this Respond- ent to behave in total disregard for the rights of its em- ployees and the obligations imposed on it by Congress, I will recommend to the Board a so-called broad 8(a)(1) remedy designed to suppress any and all violations of that section of the Act. Hickmott Foods, 242 NLRB 1357 (1979). I will recommend that the Respondent be re- quired to offer full and immediate reinstatement to the 11 employees found to have been illegally discharged, and will further recommend that they be'made whole for any loss of pay or benefits that they may have suffered by reason of the discriminations found, in accordance with the Woolworth case,15 with interest thereon computed at the adjusted prime rate used by the Internal Revenue Service for the computation of tax payments. Olympic Medical Corp., 250 NLRB 146 (1980); Isis Plumbing Co., 138 NLRB 716 (1962). I will also recommend that the Respondent be required to post the usual notice advising its employees of their rights and of the results in this case. Respondent argues that, even if a violation is found in this case, the remedy to be applied should be limited to backpay. I disagree. This is an old-fashioned "run away shop" case and in such cases the Board, with court ap- proval, has gone far beyond just letting a respondent off by paying a 'sum of money to its wronged employees. To restore the status quo, it will be necessary to require the Respondent to reopen the Montvale terminal and to transfer back to Montvale all of the work that was un- lawfully transferred to Madison Heights, Roanoke, and elsewhere. NLRB v. Preston Feed Corp., 309 F.2d 346 (4th Cir. 1962); NLRB v. North Carolina Coastal Motor Lines, 542 F.2d 637 (4th Cir. 1976); Service Merchandise Co., 278 NLRB 185 (1986); B & P Trucking, 279 NLRB 693, 698 (1986). The General Counsel also seeks a visita- torial clause permitting discovery under the Federal Rules of Civil Procedure in the event that the Board's order must be enforced by a contempt proceeding in a court, of appeals. Because of the flagrant and continuing nature of the Respondent's conduct, I will recommend such an order. 15 F W. Woolworth Co., 90 NLRB 289 (1950) 1087 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed'6 ORDER The Respondent, The A. G. Boone Company, Char- lotte, North Carolina, its officers, agents, successors, and assigns, shall L Cease and desist from (a) Refusing to bargain in good faith with Teamsters Local Union No. 171, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive collective-bar- gaining representative of the drivers, hostlers, and serv- ice utility employees employed by the Respondent at its Montvale, Virginia plant and any relocations thereof. (b) Unilaterally changing dispatch procedures and wage rates, unilaterally laying off or discharging employ- ees, and unilaterally closing its truck terminals and open- ing other terminals to replace them, without first notify- ing the Union and bargaining collectively in good faith with it, on request, until an agreement or an impasse is reached; provided that nothing herein shall be construed to require the Respondent to rescind any increases in wages or benefits that it has previously granted. (c) Discouraging membership in or activities on behalf of Teamsters Local Union No. 171, affiliated with Inter- national Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, or any other labor organization, by transferring bargaining unit work from its Montvale, Virginia terminal or any other terminal to any other location, by laying off or discharging employ- ees, by closing its truck terminals and opening other truck terminals to replace them, or by otherwise dis- criminating against employees in their hire or,tenure. (d) Coercively interrogating employees concerning their union or protected concerted activities or the union or protected concerted activities of other employees. (e) Threatening employees' with loss of job opportuni- ties, discharge, plant closure, or plant relocation in re- prisal for engaging in union or protected concerted ac- tivities. - (f) Threatening to discharge union sympathizers when their identities become known. (g) Threatening to refrain from bargaining in good faith with the Union if it is selected as bargaining agent. (h) Informing employees that bargaining unit work had been transferred to other locations because employ- ees had selected the Union as their bargaining agent. (i) Threatening to drag out negotiations if the Union is selected as bargaining agent. (j) Conditioning the recall of strikers on their agree- ment to 'refrain from striking without giving the Re- spondent advance notice. (k) Circulating among employees a petition aimed at undermining the status of the Union as bargaining agent. 16 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. 1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (1) By;any other means or in any other manner inter- fering with, restraining, or coercing employees in the ex- ercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer full and immediate reinstatement to Jerry Lee Holland, Roger Mullins, Jerry Durham, Albert Conner, Randolph Custer, Malcolm Bonhotel, Ricky Mullins, Brian Noakes, Johnny Johnson, and Harold Lynch to their former or substantially equivalent employment, without prejudice to their seniority or other rights they may have previously' enjoyed, and make them whole for any loss of pay or other benefits that they have suffered by reason of the discriminations found herein, in the manner described above in the remedy section of this de- cision. (b) On request, bargain collectively in good faith' with Teamsters Local Union No. 171, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehou- semen, and Helpers of America, as the exclusive collec- tive-bargaining representative of the drivers, hostlers, and service utility employees employed by the Respond- ent at its Montvale, Virginia terminal, and any reloca- tions thereof, and if agreement is reached, embody the same in a signed, written contract. (c) Reestablish the business operations of the Respond- ent at Montvale, Virginia, and restore the work formerly performed there by terminated unit employees. (d) Post at the, Respondent's Madison Heights, Virgin- ia terminal copies of the attached notice marked "Appen- dix."17 Copies of the notice, on forms provided by the x ° 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 Regional Director for Region 5, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, de- faced, or covered by any other material. Respondent shall also mail a signed copy of the attached notice to each bargaining unit employee , including all those who were on its payroll at the time of the April 13, 1986 elec- tion." Such notices shall be mailed to the last known ad- dress of each employee. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. For the purpose of deter- mining or securing compliance with this Order, the Board, or any of its authorized representatives, may obtain discovery from the Respondent, its officers, agents, successors, or assigns, or any other person having knowledge concerning , any compliance matter, in the manner provided by the Federal Rules of Civil Proce- dure. Such discovery shall be conducted under the su- pervision of the United States court of appeals enforcing this Order and may be had on any matter reasonably re- lated to compliance with this Order, as enforced by the Court. IT IS FURTHER RECOMMENDED that insofar as the con- solidated complaint, as amended, alleges matters that have not been found to be violations of the Act, the complaint is dismissed. the United States Court of Appeals Enforcing an Order of the National Labor Relations Board "