Shortway Suburban Lines, Inc.

SHORTWAY SUBURBAN LINES 323 Shortway Suburban Lines, Inc. and/or Holland In- dustries, Inc. and/or Shortway Airport Limou- sines, Inc. and Amalgamated Transit Union, Local 1543, AFL-CIO and General Drivers, Warehousemen, Helpers and Gas Station At- tendants Local No. 614 a/w International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America , Party in In- terest. Case 6-CA-159171 30 September 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 22 December 1983 Administrative Law Judge James T. Youngblood issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Respondents, Shortway Suburban Lines, Inc., Holland Industries, Inc., and Shortway Airport Limousines, Inc. filed cross-ex- ceptions and a brief in response to the General Counsel's exceptions and in support of their cross- exceptions. The General Counsel then filed an an- swering brief in opposition to the Respondents' cross-exceptions. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions3 only to the extent consistent with this Decision and Order. i This case was previously consolidated with Case 6-CA-15916, be- tween the Respondent, Suburban Lines and the above Charging Party On 5 November 1986, by direction of the Board, the deputy executive secretary issued an order granting the General Counsel's motion to sever cases and dismiss all complaint allegations against Suburban Lines Ac- cordingly, Case 6-CA-15916 was severed from Case 6-CA-15917 and the complaint issued in Case 6-CA-15916 was dismissed The name of the instant case is therefore amended to read Shortway Suburban Lines and/or Holland Industries, and/or Shortway Airport Limousines 2 The General Counsel and the Respondents have excepted to some of the judge's credibility findings The Board' s established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings. s We adopt the judge's dismissal of the allegations that the Respond- ents, Shortway Suburban Lines, Holland Industries, and Shortway Air- port Limousines, violated Sec 8(aX5), (4 ), (3), (2), and (1) by engaging in a joint venture with Suburban Lines to eliminate the Union as the repre- sentative of the unit employees In dismissing the pertinent allegations, the judge relied in part on the absence of union animus by the Respond- ents. As we have found below that the Respondents violated the Act in various ways, we do not adopt that finding However, the remainder of his findings are sufficient to establish there was no joint venture with an unlawful motive Furthermore, we grant the General Counsel's request that administra- tive notice be taken of the order of the Pennsylvania Utility Commission entered on 19 July 1983 However, we do not find that this order in any way affects our findings. 1. The judge recommended the dismissal of the allegations that the Respondents, Shortway Subur- ban Lines, Holland Industries, and Shortway Air- port Limousines,4 violated Section 8(a)(3) and (1) of the Act by failing to hire the former Suburban Lines employees. 5 In considering these allegations, the judge correctly acknowledged the well-settled principle that a purchasing employer is not obligat- ed to hire the selling company's work force and that only the refusal to hire for a discriminatory motive is unlawful.6 However, he rejected the General Counsel's contention that Respondent Shortway unlawfully refused to hire the Suburban employees because of their affiliation with the Amalgamated Transit Union, Local 1543, AFL- CIO (the Union) and to avoid successorship status and found, instead, that other nondiscriminatory motives prompted Shortway not to hire the Subur- ban employees. On this basis, he dismissed the alle- gations. We disagree. According to the credited and admitted testimo- ny, the pertinent facts are as follows. Suburban Lines (Suburban) had operated a commuter bus service between Washington, Pennsylvania, and Pittsburgh, Pennsylvania, since 1962. On 26 Febru- ary 1969 the Union was certified to represent a unit of Suburban's drivers and mechanics, and since that time Suburban and the Union have been parties to a series of collective-bargaining agreements. The most recent expired 31 December 1979, but was re- newed in July 1982 to remain in effect until 31 De- cember 1982. On 15 July 1982 Suburban's board of directors first discussed a purchase proposal from Respond- 4 At the hearing, Respondent Shortway Suburban Lines stipulated that it and Shortway Airport Limousines are a single employer In its excep- tions, the General Counsel contends that Holland Industries (Holland), too, is part of this single employer because all three share common own- ership, integration of operations, common control of labor relations, and common management. We agree. The Respondents admit that Holland Industries, Inc owns 100 percent of Shortway Suburban Lines and Shortway Airport Limousines and that they all share the same officers and directors Furthermore, according to the testimony of Holland's offi- cers Carl Wegerbauer and Michael Margolies , respectively, one person, Wegerbauer, is responsible for the labor negotiations of all the Holland subsidiaries and for their day-to-day operations, and another, Supervisor of Operations Richard Hall, for seeing that Holland's operational proce- dures and policies are followed at its subsidiaries. These factors are ample to establish that these three Respondents constitute a single employer. Radio Union Local 1264 v. Broadcast Service, 380 U S 255 (1965). We, therefore, further agree with the General Counsel that the Respondents are jointly and severally liable for any unfair labor practice committed by any one of them. As Shortway Suburban Lines (Shortway) was the entity established to take over the Suburban operations, at issue here, for the purposes of brevity we refer only to it in the following discussions of the allegations relating to the three Respondents. 5 The complaint also alleged that this conduct violated Sec. 8(aX4). However, in the absence of any evidence linking any action of these Re- spondents to the filing of charges, we adopt the judge's dismissal of this allegation. 6 Howard Johnson Ca v. Detroit Local Joint Board , 417 U.S. 249 (1974) 286 NLRB No. 30 324 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ent Holland . Holland proceeded to create a new subsidiary, Respondent Shortway Suburban Lines, to assume the Suburban operations. Following ap- proval by Suburban's shareholders and its board of directors, Suburban and Shortway signed the sales agreement on 14 September. Prior to this date Shortway was aware of the collective- bargaining relationship between Suburban and the Union. However, also prior to this date, it decided not to hire the Suburban employees. Accordingly, in a letter dated 16 September, Suburban notified the Union and its employees that the sale had taken place, that Shortway would cease operations on 1 November, and that the employees' services would not be needed as of that date. On 15 October, after a couple of earlier attempts by the Union to contact the purchasing employer, the Union's vice president, Warren George, spoke with Shortway's attorney, Sanford Pollack, about the employment of the Suburban employees. Ac- cording to George's uncontradicted testimony, Pol- lack told him that Shortway was then training em- ployees hired from the Detroit and Toledo areas to run the former Suburban operations and expected to have a full complement. He also told George that he would send applications for the Suburban employees. Wegerbauer mailed these on 19 Octo- ber with a cover letter repeating Pollack's com- ments and stating that there was no urgency in re- turning the applications. In the meantime, Shortway discovered that it would not have as many employees from other subsidiaries of Holland willing to transfer as it had originally anticipated. It, therefore, began to hire employees from the Detroit and Toledo areas. Be- tween approximately 14 September and 30 Octo- ber, Shortway hired 22 drivers and mechanics "off the street." About four of these employees already had applications on file; the rest applied during that time. Six of these employees were hired after George's 15 October conversation with Pollack. During this time Shortway did not advertise at all in the Washington or Pittsburgh area. Between 24 and 30 September, it ran an advertisement for an "experienced mechanic" in the Macomb Daily Newspaper, a newspaper from a northeast section of Detroit. The advertisement, which described the work as being in the Pittsburgh area, did not pro- vide the name of the employer. Most of the em- ployees hired in this manner were not experienced busdrivers or mechanics. They included a book- keeper, a mill worker, a gas welder, a taxicab driver, an ice cream truck driver, a forklift driver, and a machine operator. In addition, nine employ- ees agreed to be transferred from the Shortway Airport facility,' another of Holland's subsidiaries located in Detroit, to the Washington, Pennsylva- nia facility. This completed the 31-employee com- plement necessary to run the former Suburban op- eration. These employees were apparently assigned for 30- to 60-day periods at the Washington facility and were given the option of returning to the Shortway Airport facility after that time.8 The employees were trained in Detroit beginning the last week in September with on-the-road route training continuing in Washington on 25 October.9 They were housed at Shortway's expense at a nearby Howard Johnson Motel for the initial 2-1/2 months of their employment. Shortway took over the Suburban operations on 30 October. On that same day, Shortway recognized the Teamsters as the bargaining representative of the employees and extended the coverage of the collective-bargaining agreement it had with this union at another loca- tion to the unit employees. It experienced a high turnover rate and 15 to 18 Suburban employees were hired when vacancies occurred.1 ° At the time of the hearing, 6 months later, only 5 of the original 31 employees remained. At the hearing, Shortway's reasons for not hiring the Suburban employees in the first instance were explained by Holland's president, Carl Wegerbauer. He testified that he had decided early in Septem- ber, before the sales agreement was signed on 14 September, that no Suburban employees would be hired for the new operations. He stated that he thought there would be employees available from anticipated layoffs at its Shortway Airport facility and the closing of the Shortway, Inc. facility, both in Detroit. According to Wegerbauer, not only did Holland want to reduce unemployment costs by transferring employees made available because of these events, but it preferred its own employees, who had been trained in its own operations. We- gerbauer added that Shortway wanted to transfer its own employees because it wanted to have an in- tegrated work force both in racial and sexual com- position, such as it had in Detroit. He explained that when he had visited the Suburban facility for 6 to 7 hours in August all the employees he had observed were caucasian men. He also testified that he was not sure whether he had inquired about the 7 These employees, who had been employees of Shortway Airport's predecessor, had worked for Shortway Airport for approximately 3 months prior to their transfer. 8 Thus, Wegerbauer admitted that all the assignments of the trans- ferred employees were temporary Further, according to unrebutted testi- mony, the temporary status of the assignments was not limited to the transferred employees 9 This training consisted essentially of the basics of busdnving, Inter- state Commerce Commission regulations , and the company policies '° On 8 December Shortway advertised for "experienced" diesel me- chanics and drivers in the Washington, Pennsylvania area SHORTWAY SUBURBAN LINES 325 composition of the work force, acknowledged that an integrated work force could have been obtained locally, and stated that he did not refuse to hire the Suburban employees because they were Cauca- sian.' 1 He admitted that the lack of applications from the Suburban employees had nothing to do with his initial decision early in September not to hire them, acknowledged their experience, and stated that he had no reservations about their com- petency. However, Wegerbauer further testified that he knew by the end of August that transfers would not supply enough employees to run the Suburban operation, that he knew as of that date that the an- ticipated layoffs at the Shortway Airport would not occur. He acknowledged that Holland had been hiring employees continuously for Shortway Airport since it purchased the company in July and that the business there not only held its own but started to increase. In fact, following the closing of the Shortway, Inc. facility on 31 August, the number of buses in operation at Shortway Airport immediately increased from 13 to 25. In addition, he testified that the closing of the Shortway, Inc. facility had not resulted in the transfers he expect- ed. He was not even sure if he had presented this option to the Shortway, Inc. employees' represent- ative, and no employee from Shortway, Inc. trans- ferred to Pennsylvania. In any event, Wegerbauer admitted that he knew by the end of August that he would have to hire some employees who were not already employed by the Holland subsidiaries, i.e., "off the street," to run the Suburban oper- ations. Wegerbauer explained that when Shortway learned it would have to hire employees "off the street," it did not consider the Suburban employees because it had already begun its training program in Detroit. Therefore, to avoid the expense of a second training location, Shortway decided to hire all necessary employees from the Detroit area. However, according to Wegerbauer and Shortway's vice president and manager, Hilty, the experienced Suburban employees would have re- quired little training.12 He later added that the 11 According to Wegerbauer , at an earlier hearing before the Pennsyl- vania Public Utility Commission , held 16 November, he testified that Shortway did not seek employees locally because of the availability of employees from the Shortway Airport facility and because it preferred employees trained by Shortway . Wegerbauer also stated that at the earli- er proceeding he did not refer to the Shortway facility or Shortway's desire for a racially integrated work force as pertinent to his decision. 12 Hilty testified that Suburban's training was "basically" the same and that the Suburban drivers would have been ready to drive when the Re- spondent took over the operations. Wegerbauer testified that experienced drivers generally required less training, for instance, 1-day on-the-road training to check their driving habits, and instructions concerning paper- work, courtesy, and tariffs. training program had been started, despite the pool of experienced drivers from Suburban, because Shortway had received applications at its Detroit facility but not from the Suburban employees. t a Wegerbauer finally stated that Shortway hired "off the street" in Detroit rather than locally because of the many applications resulting from the high un- employment in Detroit.14 The judge noted that it was the General Coun- sel's burden to prove that Shortway refused to hire the former. Suburban employees because of their union membership and to avoid a duty to bargain with the Union as Suburban's successor. He found that the General Counsel failed to meet that burden and that Shortway established that it did not hire the former employees because of the lack of appli- cations, its, desire to transfer employees from its other locations, and its belief that the former em- ployees would not be interested in working at the substantially lower wage it was offering. He dis- missed the allegations that Shortway's failure to hire the employees violated Section 8(a)(3) and (1) of the Act. The record does not support this con- clusion. We find that the evidence establishes a prima facie case that Shortway avoided hiring former Suburban employees because of their union affiliation and the bargaining obligation which would be imposed on Shortway. We further find that Shortway has failed to demonstrate that it would have taken the same action in the absence of the union activity. 1 s With respect to the prima facie case of unlawful conduct, a review of the above facts demonstrates that many of the factors present here are those that the Board has previously relied on to infer that an employer failed to hire employees because of their union affiliation and to unlawfully avoid successor- ship status. First, Shortway, by its own admission, decided not to hire the Suburban employees before it signed the sales agreement with Suburban, when it knew of the union affiliation of the Suburban em- ployees and that Suburban was signatory to a col- lective-bargaining agreement with the Union.16 13 Hilty also testified that after 15 September he told seven Suburban employees that Shortway had decided not to hire any of them and that it would have been futile for the Suburban employees to have applied after that date. 14 In its brief to the judge, Shortway provided yet another reason for not hiring the Suburban employees : because of the difference in wages between what it offered and what Suburban had paid , it did not believe that the Suburban employees would be interested in working for it. It also contended that by a January 1983 letter the Union impermissibly conditioned the hire of its members on the execution of a collective-bar- gaining agreement. 15 See Wright Line, 251 NLRB 1083, 1089 (1980), enfd . 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 19 See Kimbell Foods, 201 NLRB 933, 937 (1973), enfd. 496 F.2d 117 (5th Cir. 1974). 326 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Shortway further admitted that it decided not to hire the Suburban employees even though it knew they were experienced, I7 had no reservations about their competency, and, according to Supervi- sor of Operations Hall, had a past practice of pre- ferring experienced employees.18 Instead it hired the majority of its initial work force "off the street," which consisted of employees who did not have experience at the jobs for which they were hired-19 Shortway also deviated from its past prac- tice by not hiring the employees of its predecessor and by requiring the Suburban employees to fill out applications . Thus, in at least five other recent instances, including the Shortway Airport facility, which it had purchased only a month earlier, it hired most of the predecessor's employees. In fact, the employees at the Shortway Airport facility were not required to fill out applications. Shortway's attempt to conceal its initial hiring also supports the General Counsel's case.20 The judge's conclusion to the contrary is belied by Shortway's long-distance hiring and blind adver- tisement. Other supporting evidence includes Shortway's preference for employees it had reason to believe would be temporary over the the highly stable Suburban employees21 and Shortway's will- ingness to hire Suburban President Hilty as its manager. This latter fact demonstrates that Shortway had no objections to affiliation with Sub- urban, per se, as does Shortway's hiring of the Sub- urban employees after the operations were begun and recognition was extended to the Teamsters. That Shortway provided different reasons for its action at the hearing before the Public Utilities Commission, at the hearing in the instant case, and, again, in its brief to the judge, also indicates that its motive was discriminatory. 22 In sum, by all the above factors, the General Counsel has made a prima facie case that Shortway did not hire the Suburban employees because of their union affili- ation. Respondent Shortway, however, failed to dem- onstrate that it would not have hired the Suburban employees even if the Union had not been present. The judge found that Shortway's action was prompted by three of the reasons it advanced: the 37 Of Suburban's drivers and mechanics, all 38 had at least 2 years ex- perience, 22 had more than 10 years is See Mason City Dressed Beef, 231 NLRB 735, 747 (1977), enfd. 590 F.2d 688 (8th Cir. 1978); Kimbell Foods, above. Cf Industrial Catering Co., 224 NLRB 972, 978 (1976). 1 9 In fact, Shortway did not have a mechanic qualified to perform Pennsylvania inspections, as had been done in the past, until December 1982, when it hired a former Suburban employee. 20 See Love's Barbeque Restaurant No. 62, 245 NLRB 78, 79-80 (1979), enfd in relevant part 640 F.2d 1094 (9th Cir. 1981) 21 Kimbell Foods, above. 22 E g., State County Employees AFSCME Louisiana Council No. 17, 250 NLRB 880, 886 fn 38 (1980) lack of applications from Suburban employees, its desire to transfer employees, and its belief that the Suburban employees would not be interested in working at the lower rate of pay it was offering. However, our review of each of Shortway's pur- ported reasons, including these, discloses that Shortway did not rely on any of them for not hiring the Suburban employees. This compels the conclusion that Shortway made its decision not to hire these employees for the unlawful motive of the Union's presence.23 Although the judge first found merit in Shortway's contention that it did not hire the Sub- urban employees because of lack of applications, the testimony of Shortway's own witnesses reveals that it did not rely on this reason. Wegerbauer ad- mitted he decided not to hire Suburban employees in early September and that the absence of their applications had nothing to do with this decision. Hilty further testified that it would have been futile for the Suburban employees to file applications after 15 September when he informed several of them that no Suburban employees would be hired. No evidence was presented that this statement was ever rescinded. These admissions demonstrate that it would have been futile for the Suburban employ- ees to file applications, 24 at least until 30 October when Shortway extended recognition to the Team- sters and ceased exhibiting reluctance to hire the Suburban employees.25 Thus, the decision not to hire the Suburban employees was made before the sales agreement was signed and no evidence was presented that Shortway varied from the decision not to hire them for its initial complement of em- ployees. When it is futile for employees to file ap- plications, an employer is barred from asserting that it lawfully failed to hire them because of the absence of applications. 2 e The judge also found merit in Shortway's pur- ported reason that it did not hire the Suburban em- ployees because it believed they would not be will- ing to work at the lower wages it was offering, re- 23 Shattuck Denn Mining Corp. Y. NLRB, 362 F 2d 466, 470 (9th Or 1966). 24 The judge's finding that the employees believed that the Union would act on their behalf and that it was, therefore, unnecessary for them to file applications is accordingly irrelevant In any event, the judge erro- neously stated that all employees testified to that effect Only three did The judge also incorrectly stated that the employees were only interested in being hired as a group There is no record support for that finding. 25 This finding is buttressed by Shortway's responses to the Union's inquiries about applications. Thus, on 15 and 19 October, Shortway in- formed the Union that it expected to start its operations with a full com- plement from Detroit and Toledo, and also on 19 October told the Union there was no "urgency" in returning the requested applications, despite the fact that as of 15 October it still had not hired 6 of its initial comple- ment of 31 employees 26 See Love's Barbeque Restaurant, above, 245 NLRB at 81-82 fn 10, Mason City Dressed Beef, above, 231 NLRB at 478 SHORTWAY SUBURBAN LINES 327 ferring to the fact that it paid $4.80 per hour com- pared to the Suburban wages starting at $8 per hour. It also referred to the testimony of two Sub- urban employees that they would be reluctant to work for these wages.27 However, Shortway also fails to show that it relied on this reason for its de- cision not to hire the Suburban employees. The first time that it even advanced this reason was in its brief to the judge. As noted above, an employ- er's advancing of a totally new reason despite earli- er opportunities to present all its reasons suggests that the new reason was not in fact relied on.28 Further, Shortway's position here can be more ac- curately described as a self-fulfilling prophecy. It contends that it did not hire the Suburban employ- ees because they would not have been willing to work for the wages it was offering. However, had Shortway acted nondiscriminatorily and hired the Suburban employees, it would have been bound to recognize their collective-bargaining representative and wages would at least have been subject to ne- gotiation. In sum, Shortway has failed to meet its burden of showing that it chose not to hire the Suburban employees because of this factor.29 Further, the record does not support the judge's finding that Shortway failed to hire the Suburban employees because it wanted to transfer employees from its other locations. According to Weger- bauer's testimony, described above, he knew by the. end of August that transfers would not be sufficient to supply the former Suburban operation. He testi- fied that instead of the anticipated layoffs at the Shortway Airport location, there had been continu- ous hirings at the location since its purchase in July, and the business had not only held its own, but started to increase. He similarly testified that the expected transfers had not resulted from the 31 August closing of the Shortway facility. Weger- bauer thereby admitted he knew before early Sep- tember when he made his decision not to hire the Suburban employees that Shortway's other facili- ties would not supply him with the necessary per- sonnel to run the Suburban operation. Further, he did not indicate that he had any expectation that this situation would change in the near future. In fact, he testified that he realized by this time that at 27 Shortway acknowledged that it subsequently hired at least 15 of the former Suburban employees while paying the lower wages. 2e Shattuck Denn Mining Corp., above. 2° Shortway similarly failed to show that it refused to hire the Subur- ban employees because the Union, in a January 1983 letter, advised that its members would be available for hire after a collective -bargaining agreement had been negotiated . This letter, which postdated by 4 months Shortway's action of not hiring the Suburban employees, obviously could not have been a factor in that action . Moreover, by the time the Union made this statement, Shortway would have been the successor of Subur- ban except for its unlawful action of not hiring the Suburban employees. Shortway, therefore, was indeed under an obligation to bargain with the Union at that point. least some of the employees would have to be hired "off the street," and, as more time passed, the number of employees needed to be hired in this manner increased . Still, he did not consider the Suburban employees. Accordingly, Shortway's as- sertion that it did not hire the Suburban employees because it had employees available from its other locations is not borne out by the record. For these reasons, we reject the judge's conclu- sion that Shortway refused to hire Suburban em- ployees because of the lack of applications, its belief that, they would not be willing to work at the lower wages it was offering, and its desire to transfer employees from its other locations. The two additional reasons, advanced by the Respond- ent at different times in this proceeding, are equally unpersuasive. Thus, Shortway's purported desire to transfer employees in order to obtain a racially and sexually integrated work force is not supported by the record. Shortway contended that because Weger- bauer noticed only male caucasians in his 6- to 7- hour visit to the Suburban operations, it decided it would have to hire other employees to meet its goal of obtaining an integrated work force. How- ever, the validity of Shortway's motive is suspect on at least three counts. First, Wegerbauer could not remember if he even inquired about the compo- sition of the Suburban work force; second, he ad- mitted that hiring in the locale of the operation would have achieved the same result; and third, he testified that he did not refuse to hire the Suburban employees because they were caucasian. The Re- spondent, therefore, has failed to show that Shortway's purported balanced work force goal was an actual basis for its decision not to hire the Suburban employees.30 Finally, the record belies Shortway's contention that by the time it knew that employees would have to be hired "off the street," the training had already started at the Detroit location. According to Wegerbbauer, Shortway did not want the unnec- essary expense of operating more than one training location and for that reason did not consider the Suburban employees. However, Wegerbauer later testified that the training did not start until the end of September, fully 1 month, according to his own testimony, after he learned he would have to hire off the street. Further, only the preliminary train- ing, essentially the basics of busdriving, Interstate Commerce Commission rules, and company poli- cies was conducted at the Detroit location; the on- the-road route training necessarily was done on lo- so Indeed, Shortway does not make this contention, which was raised for the first time at the hearing, in its briefs to the judge or to the Board. 328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cation in Washington, Pennsylvania. Shortway's vice president and manager, Hilty, testified that Shortway's training was basically the same as Sub- urban had provided and Wegerbauer's testimony similarly shows that the Suburban employees would not have required much training. From these facts, it is clear that the decision not to hire the Suburban employees was not based on Shortway's claimed interest in having only one training location. In conclusion, Shortway has failed to show that it relied on any of its purported reasons for its deci- sion not to hire the Suburban employees. We are left with the inescapable conclusion that its true motive was discriminatory-that it failed to hire the Suburban employees because of their union af- filiation and in order to avoid a duty to bargain with the Union as their collective-bargaining repre- sentative. Accordingly, we reverse the judge's dis- missal and find that by refusing to hire its predeces- sor's employees, Shortway, as well as Holland In- dustries and Shortway Airport Industries with which it is a single employer, violated Section 8(a)(3) and (1) of the Act. 2. Having found that the Respondent unlawfully refused to hire Suburban's employees, it follows that Shortway unlawfully refused to recognize and bargain with the Union and unilaterally changed the terms and conditions of employment of the unit employees. On 30 October Shortway continued the oper- ation of the commuter bus business it had pur- chased from Suburban as it existed under Suburban with the exception of its hiring of a totally new complement of employees. The judge found that, except for this differentiating factor, Shortway would have been the successor of Suburban. How- ever, we have concluded that Shortway, which re- fused to hire Suburban employees in violation of Section 8(a)(3), would have retained all the em- ployees had it not engaged in this unlawful con- duct. This would have supplied the one missing factor necessary to establish Shortway's status as the successor to Suburban. We, therefore, conclude that Shortway is the successor of Suburban as of 30 October 1982. A successor is obligated to bargain with the rep- resentative of the employees of its predecessor. $1 It is uncontested that Shortway did not recognize or bargain with the Union and unilaterally lowered the wages and eliminated the pension program and other benefits provided by the collective-bargain- ing agreement between Suburban and the Union. We find that by this conduct Shortway, and the al NLRB v. Burns Security Services, 406 U.S. 272, 274-275 (1972). other employers with which it constitutes a single employer, violated Section 8(a)(5) and (1) of the Act.32 In making this finding, we acknowledge that a successor employer is ordinarily free to set initial terms on which it will hire the predecessor's employees. This rule does not apply, however, when the successor has unlawfully failed to hire these employees because of their union affiliation. Shortway, therefore, was not entitled to set the ini- tial terms of employment without first consulting the Union. 33 3. The complaint also alleged that Respondent Shortway and the other Respondents, with which it constitutes a single employer, violated Section 8(a)(2) and (1) on 30 October 1982 by extending recognition to Teamsters Local 182 and by apply- ing the collective-bargaining agreement it had with that union at another location to the employees at its Washington, Pennsylvania facility, while it was still under an obligation to bargain with the Union as the representative of the Suburban employees. It is undisputed that Shortway engaged in this con- duct. However, because the judge found that Shortway was not the successor of Suburban, he found that it was under no obligation to bargain with the Union on 30 October. Based on this and the absence of evidence that the Teamsters did not enjoy majority support on that date, he dismissed the allegation. This finding cannot stand in light of our reversal of the judge's fmding on successor- ship. As we have found above, on 30 October, Shortway became the successor to Suburban and, had it acted lawfully, would have retained all the Suburban employees. In the absence of evidence that these employees no longer supported the Union, it was accordingly obligated to continue to recognize the Union. 34 No such evidence was pre- sented. Therefore, when Shortway took over the control of Suburban's operations on 30 October, it was under an obligation to bargain with the Union and not at liberty to recognize another union.35 We, therefore, find that by recognizing the Team- sters and extending the coverage of the collective- bargaining agreement it had with that union at an- other of its locations, Respondent Shortway and the other Respondents, with which it constitutes a 92 See Love 's Barbeque Restaurant, above, 245 NLRB at 81-82 33 Ibid. at 82 94 See NLRB Y. Burns Security Services, above as Further, not only has Shortway failed to show that the majority of its employees supported the Teamsters on 30 October but any claim of majority support would have been based on the composition of its work force obtained by its unlawful action of failing to hire the Suburban em- ployees. Shortway, therefore, had no lawful basis on which to extend recognition to the Teamsters. SHORTWAY SUBURBAN LINES 329 single employer, violated Section 8(a)(2) and (1) of the Act. CONCLUSIONS OF LAW 1. The Respondents, Shortway Suburban Lines, Holland Industries, and Shortway Airport Limou- sines are jointly and severally employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Amalgamated Transit Union, Local 1453, AFL-CIO, and Party in Interest, General Drivers, Warehousemen, Helpers, and Gas Station Attend- ants Local 614 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are, respectively, labor organizations within the meaning of Section 2(5) of the Act. 3. All the employees employed by the Respond- ents, Shortway Suburban Lines, Holland Industries, and Shortway Airport Limousines, at their Wash- ington, Pennsylvania facility, formerly owned and operated by Suburban Lines excluding office cleri- cal employees, guards, professional employees, and supervisors as defined in the Act, constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act. 4. At all times material, Amalgamated Transit Union, Local 1543, AFL-CIO has been the exclu- sive representative of all the employees in the aforesaid unit for the purposes of collective bar- gaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment within the meaning of Section 9(a) of the Act. 5. By their refusal on 16 September 1982 and thereafter to hire the employees of Suburban Lines, following the purchase of this company, because of the union affiliation of these employees and to avoid an obligation to bargain with the Amalga- mated Transit Union, Local 1543, AFL-CIO, the Respondents, Shortway Suburban Lines, Holland Industries, and Shortway Airport Limousines, vio- lated Section 8(a)(3) and (1) of the Act. 6. The Respondents are the successor employer to Suburban Lines, and by failing to recognize and bargain with the Union since 30 October 1982 as the exclusive collective-bargaining representative of the employees in the above unit, and by depart- ing from preexisting rates of pay and benefits with- out prior notification to and consultation with the Union, they violated Section 8(a)(5) and (1) of the Act. 7. By recognizing and executing a collective-bar- gaining agreement with General Drivers, Warehou- semen, Helpers and Gas Station Attendants Local 614 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, when Amalgamated Transit Union, Local 1543, AFL-CIO, was the exclusive representative of em- ployees in the bargaining unit covered by the agreement, the Respondents, Shortway Suburban Lines, Holland Industries, and Shortway Airport Limousines, Inc., violated Section 8(a)(2) and (1) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 9. The Respondents, Shortway Suburban Lines, Holland Industries, and Shortway Airport Limou- sines, have not violated the Act in any other manner. THE REMEDY Having found that the Respondents, Shortway Suburban Lines, Holland Industries, and Shortway Airport Limousines discriminatorily refused em- ployment to the former employees of Suburban Lines, we shall order that their employment status be restored to what it would have been, but for the discrimination against them, and that the Respond- ents offer them immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights or privileges previously enjoyed, discharging, if necessary, em- ployees hired from other sources to make room for them and make them whole for any loss of earn- ings that they may have suffered due to the dis- crimination practiced against them, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Retarded.36 ]Further;, we shall order the Respondents to with- draw and withhold recognition from General Driv- ers, Warehousemen, Helpers and Gas Station At- tendants Local No. 614 a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and to cease giving effect to the collective-bargaining agreement that these par- ties have executed. Further, because the collective- bargaining agreement contains a union-security clause, we shall order reimbursement of the dues 36 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 U.S.C. § 6621) shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). Backpay is to be based on either rate structure prevailing under Subur- ban Lines, or the new rate structure established by the Respondents, whichever results in the higher backpay to the individual employees. Love's Barbeque Restaurant, above, 245 NLRB at 82 fn. 15, enf. denied in relevant part 640 F.2d 1094 (9th Cit . 1981); State Distributing Co., 282 NLRB 1084 (1987). 330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD paid to this Union, with interest as prescribed above, to all employees who were not members prior to 30 October 1982.97 We shall also order the Respondents to bargain with the Amalgamated Transit Union, Local 1543, AFL-CIO, concerning any terms and conditions of employment on which they would have been required to bargain had the Union's lawful status been acknowledged on 30 October 1982, the date they took over the oper- ation of the Washington, Pennsylvania facility. In addition, we shall order the Respondents to cancel, on request by the Union, changes in rates of pay and benefits or other terms and conditions of em- ployment unilaterally effectuated and make the em- ployees whole by remitting all wages and benefits that would have been paid absent their unlawful conduct from 30 October 1982 until the Respond- ents negotiate in good faith with the Union to agreement or to impasse.38 ORDER The National Labor Relations Board orders that the Respondents, Shortway Suburban Lines, Inc., Holland Industries, Inc., and Shortway Airport Limousines, Inc., Washington, Pennsylvania, their officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to hire employees because of :heir union affiliation and to avoid an obligation to bar- gain with Amalgamated Transit Union, Local 1543, AFL-CIO. (b) Failing to recognize and bargain with Amal- gamated Transit Union , Local 1543, AFL-CIO, as the exclusive collective-bargaining representative of its employees in the following unit, including by making changes in the rates of pay and benefits of the employees in this unit without notice to and consultation with the Union: All employees employed at the Washington, Pennsylvania location, excluding office clerical employees, guards, professional employees and supervisors as defined in the Act. (c) Recognizing and executing a collective-bar- gaining agreement with General Drivers, Warehou- semen, Helpers and Gas Station Attendants Local No. 614 a/w International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. 94 E.g , Herald-News, 222 NLRB 1162 fn. 1 (1976). se The remission of wages is to be applied consistently with the make- whole remedy set forth above with respect to the discriminatees Also, applying the standard for broad cease -and-desist orders estab- lished in Hrckmott Foods, 242 NLRB 1357 (1979), we find that the Re- spondents' misconduct was sufficiently egregious and widespread to dem- onstrate a general disregard for the employees' fundamental statutory rights We, accordingly, shall include a broad cease-and-desist order (d) In any other manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act (a) Offer to the employees formerly employed by Suburban Lines, Inc., at the Washington, Pennsyl- vania facility, full and immediate reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions, without prejudice to seniority or other rights which they have formerly enjoyed, discharging if necessary other employees who have been hired in their places. (b) Make whole the employees formerly em- ployed by Suburban Lines, Inc., for any loss of earnings they may have suffered due to the dis- crimination practiced against them, in the manner described in the remedy section of the decision. (c) On request, bargain with the Union as the ex- clusive representative of the employees in the fol- lowing appropriate unit concerning terms and con- ditions of employment and, if an understanding is reached, embody the understanding in a signed agreement. (d) On request of the above Union, cancel any changes from the rates of pay and benefits or other terms and conditions of employment that existed immediately before their takeover of the Suburban Lines, operations, and make the employees whole by remitting all wages and benefits that would have been paid absent such changes from 3G Octo- ber 1982 until it negotiates in good faith with the Union to agreement or to impasse in the manner described in the remedy section. (e) Withdraw and withhold recognition from General Drivers, Warehousemen, Helpers and Gas Station Attendants Local No. 614 a/w Internation- al Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as the collec- tive-bargaining representative of the employees at the Washington, Pennsylvania facility, unless it be- comes certified as the representative by the Nation- al Labor Relations Board, and remit all dues with- held for this Union to those employees who became members on or after 30 October 1982, with interest. (f) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (g) Post at their Washington, Pennsylvania facili- ty copies of the attached notice marked "Appen- SHORTWAY SUBURBAN LINES dix."39 Copies of the notice, on forms provided by the Regional Director for Region 6, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. IT IS FURTHER ORDERED that in all other re- spects the complaint is dismissed. 89 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPEND] X NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to hire employees previous- ly employed by Suburban Lines because of their union affiliation or to avoid an obligation to bar- gain with the Amalgamated Transit Union, Local 1543, AFL-CIO. WE WILL NOT fail to recognize and bargain with this Union, as the exclusive collective-bargaining representative of the employees in the following unit, including by making changes in the rates of pay and benefits or other terms and conditions of employment of the employees in this unit without notice to and consultation with the Union: All employees employed at our Washington, Pennsylvania location, excluding office clerical employees, guards, professional employees, and supervisors as defined in the Act. WE WILL NOT recognize General Drivers, Ware- housemen, Helpers and Gas Station Attendants Local No. 614 a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the collective-bargaining representa- tive of the employees in the above unit unless it is certified as the representative by the National Labor Relations Board. 331 WE WILL NOT give effect to the collective-bar- gaining agreement we signed with General Driv- ers, Warehousemen, Helpers and Gas Station At- tendants Local No. 614 a/w International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Alherica, or to any extension or modifi- cation of that contract. WE WILL NOT in any other manner interfere with, restrain, or coerce you or any other employ- ees in the exercise of the rights guaranteed by Sec- tion 7 of the Act. WE WILL, on the request of the Amalgamated Transit Union, bargain with this Union as the ex- clusive representative of all the employees in the above unit concerning their terms and conditions of employment and, if an understanding is reached, embody it in a signed contract if asked to do so. WE WILL, on request of the above Union, cancel any changes from the rates of pay and benefits or other terms and conditions of employment that ex- isted immediately before our takeover of the Sub- urban Lines operations and make the employees whole by remitting all wages and benefits that would have been paid absent such changes from 30 October 1982 until we negotiate in good faith with the Union to agreement or impasse. WE WILL withdraw and withhold recognition from General Drivers, Warehousemen, Helpers and Gas Station Attendants Local No. 614 a/w Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the col- lective-bargaining representative of our employees at our Washington, Pennsylvania facility, unless it becomes certified as the representative by the Na- tional Labor Relations Board, and remit all dues withheld for this Union for those employees who became members on or after 30 October 1982, with interest. WE WILL offer to employees formerly employed by Suburban Lines at the Washington, Pennsylva- nia facility immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privi- leges previously enjoyed and discharging if neces- sary other employees who have been hired in their place, and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus inter- est. SHORTWAY SUBURBAN LINES, INC., HOLLAND INDUSTRIES, INC., SHORTWAY AIRPORT LIMOUSINES, INC. 332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Charles H. Saul Esq., for the General Counsel. Allen L. Fluke, Esq., of Pittsburgh, Pennsylvania, for the Respondent Suburban Lines, Inc. Sanford E. Pollack, Esq. and Martin Gringer, Esq., of Hewlett, New York, for Respondents Shortway Sub- urban Lines, Holland Industries, and Shortway Airport Limousines. Larry A. Housholder, Esq., of Washington, Pennsylvania, for Amalgamated Transit Union, Local 1543, AFL- CIO. DECISION STATEMENT OF THE CASE JAMES T. YOUNGBLOOD, Administrative Law Judge. The consolidated amended complaint, which issued on March 3, 19831 and amended at the hearing alleges, inter alia, that Respondents, Suburban Lines, Inc. (Suburban), Shortway Suburban Lines, Inc. (Shortway), Holland In- dustries, Inc. (Holland), and Shortway Airport Limou- sines (Shortway Airport), engaged in unfair labor prac- tices within the meaning of Section 8(a)(1), (2 ), (3), (4), and (5) of the Act. The principal allegation of the con- solidated amended complaint is that Shortway, Holland, and Shortway Airport refused to employ the former em- ployees of Suburban to avoid having to bargain with the Amalgamated Transit Union, Local 1543, AFL-CIO (Union), and that these Respondents hired individuals who are not members of the Union and granted recogni- tion to Teamsters Local 614 in violation of Section 8(a)(2) of the Act. The complaint also alleges other inde- pendent violations of Section 8(a)(1) against Suburban. Additionally, the complaint alleges that Shortway, Hol- land, and Shortway Airport are a single employer and that this single employer is engaged in a joint venture with Suburban to commit certain of the alleged viola- tions of the consolidated complaint, as amended. The Re- spondents filed answers denying the commission of any unfair labor practices. This matter was tried before me on May 4, 5, and 6, 1983 and on June 28, 29, and 30, 1983, at Pittsburgh, Pennsylvania. All parties were repre- sented at the hearing and the General Counsel and the Respondents filed posttrial briefs that have been consid- ered. On the entire record and from my observations and demeanor of each witness while testifying, and the briefs filed, I make the following FINDINGS AND CONCLUSION2 1. THE BUSINESS OF THE COMPANIES INVOLVED Since 1962 Suburban has operated a commuter bus service between Washington, Pennsylvania and Pitts- 3 The charges in Cases 6-CA-15916 and 6-CA-15917 were filed on November 9, 1982. 2 The facts found are a compilation of the credited testimony, the ex- hibits, and stipulations of fact viewed in light of logical consistency and inherent probability. Although these findings may not contain or refer to all the evidence, all has been weighed and considered . To the extent that any testimony or other evidence not mentioned in this decision may appear to contradict my findings of fact, I have not disregarded that evi- dence, but have rejected it as incredible, lacking in probative weight sur- burgh, Pennsylvania, and a charter bus service. J. C. Hilty, at all times material, was president and general manager of Suburban and the charge of the day-to-day management of that operation. Holland is a holding company that wholly owns ap- proximately 12 to 14 subsidiaries in the bus transporta- tion business, including Shortway and Shortway Airport. Shortway Airport was formed and began operating on July 24, 1982, after Holland purchased the assets of an- other Michigan bus company and the Shortway Airport continued the predecessors bus operation with the same employees and assumed the collective- bargaining agree- ment with Teamsters Local 614. This company operates the bus service between the Detroit metropolitan airport and downtown Detroit and other metropolitan areas. It appears that Shortway Airport also operates a bus serv- ice in the Southfield, Michigan area. Shortway was formed in August 1982 to take over the operation of Suburban as soon as an agreement on the sale of that corporation could be worked out. The Respondents admit and I find that they are em- ployers within the meaning of Section 2(2), (6), and (7) of the Act, and that the Board has jurisdiction in this matter. II. THE ALLEGED UNFAIR LABOR PRACTICES Suburban was formed in June 1962 by a group of indi- viduals who owned all the stock and who also were the drivers and mechanics for the operation. The Company provided a commuter bus service between Washington, Pennsylvania, and Pittsburgh. One of the drivers, J. C. Hilly, became president of Suburban in 1968. On Febru- ary 26, 1969, the Union was certified as the collective- bargaining representative of all the Suburban employees excluding office clerical employees, guards, professional employees, and supervisors. Since 1969, there have been successive collective -bargaining agreements, the last of which has an expiration date of December 31, 1982.3 Under the terms of the aforementioned collective-bar- gaining agreement, drivers received wages of $8.74 per hour, mechanics $9.11 per hour, mechanics-helpers $8.90 per hour, and fuelers $8 per hour. As of October 29, 1982, Suburban employed approximately 27 drivers and 8 mechanics. All of the employees were members of the Union, except two drivers, Frank Liberati and Carl Wilson, who also owned stock in the corporation and were members of the board of directors. It appears that the Union's office was located in the home of its president, Lou Kepler, and the official ad- dress of the Union as listed on its letterhead was the per- mises of the Company. This apparently lasted at least until May 10, 1982. It also appears from the record that the relationship between the Company and the Union plusage, or irrelevant. Credibility resolutions have been made on the basis of the whole record, including the inherent probabilities of the testimony and the demeanor of the witnesses Then it may be required I will set forth specific credibility findings. s The contract, which expired on December 31, 1979, was renewed in July 1982 . Unless otherwise indicated all dates refer to 1982 . The Re- spondent admits and I find that the Union is a labor organization within the meaning of Sec. 2(5) of the Act. SHORTWAY SUBURBAN LINES 333 was one of informality. It was common practice for Hilty to call meetings of all the employees to discuss matters with the employees pertaining to union prob- lems. The only requirement was that the Union be noti- fied. This particular procedure was in existence for the 2 to 3 years and it changed in 1982, whereby Hilty did not have to ask permission of the Union, but merely put up a joint notice indicating that a meeting was to be held at a specific time. This had been the practice for approxi- mately 1 year before May 10, 1982. Beginning with the opening of the World's Fair in Knoxville, Tennessee, in 1982, Suburban began operating charter buses to Knoxville. In early 1982, a controversy arose between Suburban and the Union over the number of hours to be paid to the charter bus drivers going to the World's Fair. As a result of the controversy over the amount of money to be paid to the bus drivers, the Union filed a grievance on May 5, 1982. On May 7, 1982, Hilty posted a notice on the bulletin board addressed to all employees stating: POSTED ABOVE IS A PHOTO COPY OF A GRIEV- ANCE FILED WITH MANAGEMENT BY THE OFFICERS OF LOCAL DIVISION #11543 A.T.U. THE CONTENTS AND INTENT OF THE GRIEVANCE, IF ENFORCED, IS THE DIRECT OPPOSITE OF WHAT MANAGEMENT ASKED YOU TO CONSIDER IN THE COURSE OF A DRIVERS MEETING HELD MARCH 14TH. ENFORCEMENT OF THE CONTENTS OF THIS GRIEV- ANCE WILL RULE OUT ANY POSSIBLE PROFITS FROM OUR WORLD'S FAIR TOURS AND PREVENT OUR PLANNED EXPANSION TO THE TOUR BUSINESS. ANOTHER YEAR OF OPERATION IN THE red MEANS THE END OF all THE BUSINESS. A MEETING WILL BE HELD IN THE COMPANY GARAGE MONDAY, MAY 10TH AT 7:30 P.M. THIS MATTER WILL BE DISCUSSED. ALL EMPLOYEES ARE URGED TO ATTEND, KEEPING IN MIND THAT THE FUTURE OF THE COMPANY AND THEREFORE ALL OF OUR JOBS ARE VERY MUCH AT STAKE."4 The May 10, 1982 meeting of the Suburban employees was attended by most of the employees, as well as Union President Lou Kepler and other officials of the Union. There were. minutes taken of this meeting by employee Blaine Raber, recording secretary of the Union, that were introduced into evidence as Joint Exhibit 2. As I decipher these minutes, Hilty informed the assembled employees that another company wanted to buy the Company (Suburban), but he did not know if he could survive the contract that we have with the Union. I cannot tell whether this meant that Suburban could not survive with the union contract or whether the new pur- chaser had indicated that he could not survive with the contract that Suburban had with the Union.5 The min- utes go on to indicate that Hilty informed the employees that Lincoln Coach drivers took a 70-cent-an-hour cut and also did away with some holiday pay. This comment would indicate that Hilty's earlier statement related to Suburban's not surviving with the union contract and wanted some concessions from the Union. At this point, which also suggests that Hilty was refer- ring to his survival under the contract, Kepler gave Hilty a list of concessions, such as freezing wages after April 1 for 1 year and changing the starting wage to the minimum wage . The minutes indicate that they discussed the World Fair trips and Hilty was asking for relief on the long trips and instead of paying straight-through time, he wanted to pay 8 hours per day on the World Fair trips. As indicated Hilty had received a grievance from Kepler about the World Fair trips. The minutes in- dicate that Hilty had tried to bring this up at other meet- ings and no one would let him do it or pay any attention to him. Hilty asked the men if they wanted to make some concessions or not, and told the men that they were afraid of Kepler. Hilty made it clear that he wanted to pay only the 8 hours rather than 16 and indicated that this was all that it would take to keep the Company in business. Hilty indicated that the stockholders had put a deadline on the Company and if it did not show a profit the Company was lost. He said that from this point on, it was up to the men. Hilty stated that he did not know right then what the Company was going to do and that he was looking for a job, and if someone offered him one tomorrow he would take it.6 Hilty said he hated to see the Company go down the drain. Kepler told the em- ployees that if they thought they were making too much money they could give the money back to the Company. At this point Kepler told Hilty they would take a $1 cut if the Company gives up a share of stock. Both Hilty and Kepler left the meetin and a vote was taken on the Knoxville charters. Frank Liberati indicated that the stockholders wanted to liquidate the Company and he told the employees that they better do something now, or next year they may not even have a job. It appears that the employees voted to go along with Hilty on the grievance. Nevertheless, the Union, as the exclusive col- lective-bargaining representative of the Employees, de- cided it was in the Union's and employee's best interest to pursue the grievance. On June 16, 1982, the Union filed a charge in Case 6-CA-15566 alleging that Subur- ban had bargained in bad faith by holding the May 10, 1982 meeting. Apparently in early June the Union wrote Suburban in reference to the grievance that had been filed on May 5, 1982. On June 11, Suburban replied stating its under- standing that the grievance had been settled. In this regard the letter noted that there was an employee's meeting on May 10, that was attended by Union officials 4 On May 5, 1982, Lou Kepler , the president of the Union filed a grievance alleging that the Company refused[ to pay for the time involved in touring the World's Fair in Knoxville, Tennessee The grievance al- leged the driver is involved in excess of 16 hours and that the Company wants to pay for only 8 hours. For a complete text of the grievance, see G.C Exh. 33 It appears that the contract between Suburban and the Union con- taming an effective date until December 31, 1982, had not been renewed, that the parties had never reached an agreement on a new contract and had been bargaining in excess of 2 years, but apparently had continued the terms and conditions of the old contract. A new agreement was not executed until July 1982. 6 It appears that in April, Hilty answered an ad and was interviewed in Toledo by Holland After Hilty was interviewed , Holland learned , appar- ently through Hilty, that Suburban was for sale and negotiations com- menced for the sale of Suburban's assets 334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and that the subject matter contained in the grievance was throughly discussed. It was Suburban's understand- ing that the grievance had been resolved and that a ma- jority of the employees had agreed with the Company's position on the number of hours to be paid the drivers at the World's Fair in Knoxville, Tennessee. On July 29, 1982, Suburban and the Union executed an agreement continuing the terms and conditions of the contract that was to expire on December 31, 1979, until December 31, 1982, with the exception of new wage rates that are set forth in the agreement of July 29, 1982.7 Also on July 29, 1982, Suburban and the Union issued a notice to all employees that in order to settle the griev- ance filed earlier involving the layover days in Knox- ville, it was mutually agreed between Suburban and the Union that "ALL DRIVERS WHO HAVE DRIVEN TRIPS TO WORLD'S FAIRS, AND WERE PAID EIGHT ( 8) HOURS FOR THE "LAYOVER DAYS" WHICH INCLUDED DRIV- ING FROM THE MOTELS TO THE FAIR GROUNDS IN THE AM AND A RETURN TRIP FROM THE FAIR GROUNDS TO THE MOTEL IN THE PM ARE INSTRUCT- ED TO TURN IN THE TIME SLIPS FOR THE DRIVING TIME UNDERLINED THAT WAS INVOLVED IN EACH OF THOSE LAYOVER DAYS. IF YOU HAVE ANY QUESTIONS SEE MR. KEPLER, OR MR. HITLY, OR MR. SYPHERS." On August 23, the Union's withdrawal of the charge filed with the Board over the May 10, meeting was ap- proved. On July 15, at a meeting of the board of directors of Suburban, a proposal for the purchase of Suburban from Shortway was discussed.8 It was agreed by the directors that a counteroffer should be made to Shortway con- cerning the purchase of Suburban. On August 5, Shortway filed its articles of incorpora- tion with the Commonwealth of Pennsylvania. On August 9, the board of directors of Suburban passed a resolution to place before the Suburban share- holders a plan of complete liquidation for Suburban. On that same date a meeting of the shareholders of Suburban was held at the Ramada Inn, 1170 West Chestnut Street, Washington, Pennsylvania. At this meeting Hilty in- formed the shareholders that the board of directors rec- ommended that the shareholders adopt a resolution to authorize liquidation of the corporation, either by the sale of assets at auction or a possible sale to Holland and/or Shortway. Hilly introduced Wick, an attorney, to explain in detail the proposal of Holland and/or Shortway. A vote was taken among the stockholders 701 shares were cast for acceptance of the resolutions and 30 shares voted against the resolutions.9 Drivers Liberati, 7 This agreement was entered into evidence as G.C. Exh 4(b) ' At this time Shortway had not been incorporated in the State of Pennsylvania There are approximately 737 outstanding shares of stock and each share gets one vote Kirschner and Olczak were in attendance at this meeting as shareholders. This record reflects that he following this shareholder's meeting, Kepler, the president of the Union, and other drivers were immediately informed of the outcome of this shareholder's meeting. On September 8, at a meeting of the board of directors of Suburban, it was unanimously agreed by the directors present that suburban would enter into an agreement with Shortway and/or Holland for the sale of all assets of Suburban for a purchase price of $1,060,850. On September 16, Suburban posted a notice and sent a letter to Union President Kepler10 advising the employ- ees and the Union that Suburban was going out of the transportation business; that it had signed an agreement to sell its assets, and that the closing on the sale is sched- uled to take place November 1, at which time all the Su- burban's operations will cease. The notice ended by ad- vising that Suburban would no longer need the services of the employees and that it regretted this action. In the letter Suburban informed the Union that it stands ready to discuss the effects on the employees on the Union re- quests of going out of business. Union President Kepler testified that he has been the president of the Union since it was organized in 1965 and that the Union represents only employees at Suburban. He testified that on October 29 there were approximately 27 drivers at Suburban and that all but 2 were members of the Union. Kepler himself was a driver for Suburban. The two drivers who were not members of the Union, as indicated earlier, were Frank Liberati and Carl Wilson. In addition to the 27 drivers there were approximately 8 shop employees. Kepler testified that at the May 10 meeting Hilty in- formed the union membership that he had a buyer for the Company but the buyer would not live with the union contract and that they had to take a cut. Kepler testified that he and Hilty had a disagreement that cen- tered around the grievance that had been filed and that he told the membership that this was not a union meet- ing and that there could not ba a legal vote taken, after which he said he left the meeting. i i Kepler testified that he had never received any notification that Suburban had gone out of business prior to the September 16 letter. He admitted, however, that he had heard a lot of rumors that indicated that Suburban was going out of business. Kepler also admitted that he had heard in May that Suburban was going to sell its assets that the Shortway was to be the potential purchaser. Again he testified that this was nothing but a rumor. The August 27 minutes of the Union of show that Kepler informed the assembled members that, at the sub- urban shareholder's meeting on August 9, 700 votes were cast to sell the Company and 30 votes were cast not to sell; these 30 votes were the shares of stock owned by driver Kirschner. Kepler informed the mem- bership that if the Company were sold, the new owner would have to deal with the Union, and that was the only way they could do it without liquidating the Com- 10 G.C Exhs. 21 and 36, respectively " Apparently this meeting was held on one of the Suburban buses. SHORTWAY SUBURBAN LINES 335 pany, in which case the drivers would be able to draw unemployment. At the September 25 meeting of the union, Kepler in- formed the assembled membership that both Greyhound and the Port Authority had something to say about who buys out Suburban. At this meeting, Kepler offered the members the opportunity to try to go into bus business with Miller and himself. This was apparently in reference to obtaining the operating rights of Suburban. Kepler further testified that, following the receipt of the notification of September 16, Subarban was selling its assets and going out of the business. He contacted Hilty to see if he could meet with the new buyer and if he could meet with Suburban to discuss the effects of the sale. He stated that Hilty informed him that the new owners would be in touch with him. A meeting to dis- cuss the effects of the sale was set up with Hilty for Oc- tober 6. At this meeting Hilty told the Union that Shortway was purchasing Suburban and, according to Kepler, Hilty informed him that he did not know if the new Company was going to run the routes or whether the new Company would be hiring the Suburban em- ployees. Warren George, international vice president of the Amalgamated Transit Union, testified that he was present at the October 6 meeting with Hilty and that Hilty informed those present that he did not know if Shortway was going to operate in the Washington area or "whether even he had a job." Re stated that Hilty in- formed him that he would get back to him and give him the name of someone with Shortway that he could con- tact. Around October 9, Hilty called George and left a message with George's answering service. George finally contacted Hilty on October 12 and Hilty gave him the name of Tom Wegerbauer and his phone number. George called Wegerbauer on October 12 and asked him about the employment future of the members of the Union. Wegerbauer referred hire to his attorney, Pol- lock. George reached Pollock on October 15 and Pol- lock informed him that Shortway was at the present time training people who had been hired from the Toledo and Detroit area to operate the Suburban facilities. Pollock informed George that past practices had shown that some of the transferred people would not stay in the area of employment and that if that happened the former Sub- urban employees would be given preference in hire. There was a discussion about applications and Pollock advised him that he would send applications to him. George stated that applications were mailed to him on October 19 and that he received them shortly after that; that on November 2 he delivered these applications to Kepler. George testified that it was not until October 15 that he was aware that his members were not goint to be driving the Shortway buses. George testified that at the meeting of October 6 he was not aware of the September 16 letter indicating that Suburban was no longer going to be running the buses. On October 29, Suburban and Shortway and/or Hol- land reached agreement for the leasing of the Suburban assets pending approval by the Public Utilities Commis- sion of the Commonwealth of Pennsylvania for the trans- fer of the PUC rights. Also on October 29, the PUC di- rected that, "Suburban Lines, Inc., maintained its present service and not abandon service pending approval of the transfer application." On October 30, Shortway commenced operations in the Washington, Pennsylvania area with 31 employees. None of these employees had previously been employed by Suburban and none of the employees of Suburban had been hired by Shortway. Hilty continued in his position as general manager and vice president of Shortway. Also on October 30, the day of the commencement of oper- ations, Shortway granted recognition to Teamsters Local 614 for its employees at the Washington, Pennsylvania facility and applied the collective-bargaining agreement between Teamsters Local 614 and Shortway Airport to the Washington, Pennsylvania facility. Prior to October 30, none of the former Suburban employees were con- tacted in any way by Shortway. It is also clear in this record that none of the former Suburban employees in any way applied to Shortway and/or Holland for posi- tions or even filed applications for employment with Shortway and/or Holland. There is no question that when Shortway commenced its operations on November 1 it did so with employees who had not previously been employed by Suburban. That is, it commenced its operations with a totally new complement of employees. In all other respects, it ap- pears that Shortway continued the operation as it existed under Suburban, and were it not for the fact that Shortway did not hire any of the former employees of Suburban, it would be a true and legal successor to Sub- urban and bound to recognize the Union as the collec- tive-bargaining representative. However, as Shortway did not hire any of the employees of Suburban, it would appear that the Union cannot be the collective-bargain- ing representative of the employees employed by Shortway and/or Holland. The General Counsel argues that Shortway and Hol- land constitute a single employer, and that they are a true and legal successor to Suburban because they failed to hire the former Suburban employees because they were members of the Union, in order to avoid a bargain- ing relationship with the Union, in violation of Section 8(a)(3) and (5) of the Act. In support of its position the General Counsel issued a 20-page complaint alleging sep- arate violations of the Act by Suburban and other viola- tions of the Act by Suburban in connection with the other Respondents as a single employer and a joint ven- ture. Thus, the crux of the case is whether or not Shortway and/or Holland is a successor to Suburban and therefore, bound to recognize the Union as the collec- tive-bargaining representative of the employees. A. Discussion and Conclusions In NLRB v. Burns Security Services, 406 U.S. 272 (1972), the Supreme Court held that an employer that hires a sufficient number of the predecessor employer's employees so as to constitute a majority of the new em- ployer's work force and that conducts essentially the same business as the predecessor employer , is a successor to the predecessor's bargaining obligation with the bar- gaining representative of the predecessor's employees 336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and is, therefore, obligated to bargain with the bargain- ing representative . The Supreme Court also held that a new employer is free to select its own work force and is not required to hire the predecessor's employees. How- ever, the Court pointed out that an employer cannot de- cline to hire the predecessor's employees for discrimina- tory reasons or to avoid recognizing the predecessor's union and if that employer declines to hire the predeces- sor's employees solely because they are members of the Union, it commits an 8(a)(3) unfair labor practice. In Howard Johnson Co. v. Detroit Local Joint Board, 417 U.S. 249 (1974), the Supreme Court was again con- fronted with the question of whether an employer had an obligation to hire the former employees of its predeces- sors. In that case, involving a somewhat similar factual situation, the purchaser hired a few of the former em- ployees, but did not hire a majority of the former em- ployees and advised the Union that it would not recog- nize it or assume any obligations under the existing col- lective-bargaining agreement . In that case the Union sought to compel the purchaser to arbitrate under the provisions of the collective-bargaining agreement, the extent of its obligation under that agreement to hire the predecessor's employees. In Howard Johnson the Supreme Court stated at 261: What the Union seeks here is completely at odds with the basic principles this Court elaborated in Burns. We found there that nothing in the federal labor laws "requires that an employer . . . who purchases the assets of a business be obligated to hire all of the employees of the predecessor though it is possible that such an obligation might be as- sumed by the employer." 406 U.S., at 280 n. 5. See also Golden State Bottling Co. v. NLRB 414 U.S., at 184 n. 6. Burns emphasized that "[a] potential em- ployer may be willing to take over a moribund busi- ness only if he can make changes in corporate struc- ture, composition of the labor force . . . and nature of supervision." 406 U.S. at 287-288. We rejected the Board's position in part because "[i]t would seemingly follow that employees of the predecessor would be deemed employees of the successor, dis- chargeable only in accordance with provisions of the contract and subject to the grievance and arbi- tration provisions thereof. Burns would not have been free to replace Wackenhut's guards with its own except as the contract permitted." Id., at 288. Clearly, Burns establishes that Howard Johnson had the right not to hire any of the former Grissom em- ployees, if it so desired. Notwithstanding these decisions the General Counsel argues that Shortway refused to hire the employees of Suburban in order to avoid a successorship finding would require Shortway to bargain with the Union. In support of this proposition the General Counsel relies on the case of Mason City Dressed Beef, 231 NLRB 735 (1977). In that case the facts are quite different from those presented here. In fact it was found by the admin- istrative law judge that when several former employees of the predecessor who were union officials went to the plant during their interim period to discuss the status of the predecessor's employees with the new employer, they were abruptly thrown off the premises and told to stay away. As the Respondent's representative stated in his testimony, they were going to try to make us eat the contract and we were not going to eat it. The adminis- trative law judge found that to avoid eating the contract the Respondent determined not to hire any former pred- ecessor employees until a different complement of em- ployees had been established in the plant under terms and conditions set by the Respondent. In fact, the administrative law judge found, "Respond- ent's witnesses effectively concede that the decision not to hire IBP employees was taken because the presence on their payroll of union adherents formerly covered by the IBP contract would serve to support a successorship claim being pressed by the Union." Under those circum- stances, it is no wonder that the administrative law judge and the Board concluded that the Respondent in that case attempted to avoid a successorship finding by discri- minatorily refusing to employ any former employees of the predecessor employer. Additionally, the General Counsel cites Love's Barbe- que Restaurant, 245 NLRB 78 (1979), in which the ad- ministrative law judge reasoned that the Respondent had no need to avoid the union sympathies of the former em- ployees because the Respondent truly believed that the choice regarding unionization was his alone to make and that the employees' desire did not enter into it. The Board stated that this is one of the objective consider- ations that the administrative law judge asserted refutes a conclusion of illegal motivation . The Board disagreed. The Board stated that Kallmann's conceded intention not to allow the employees to be unionized itself supports a conclusion of illegal motive. The Board also found that Kallmann's intention was expressed in action by his un- lawful statement to an employee. Additionally, the Board found that the Respondent photographed employees after they were leaving the picket line and concluded, "It is inconceivable that an employer whose anti-union attitude led to these unlawful acts would have no interest in the union sympathies of job applicants." It is my con- clusion that neither of these cases have application to the present situation. It is the burden of the General Counsel to come for- ward with evidence to substantiate its claim that Shortway and/or Holland refused to hire the former em- ployees of Suburban to avoid a successorship. In this regard the General Counsel states in the cir- cumstances here that a purchaser with no discriminatory motive would have hired most, if not all, of Suburban's employees. It is clear that none of the former employees of Subur- ban applied to Shortway and/or Holland for jobs prior to November 1. None of them made an attempt to obtain an application. None of them appeared to be interested in being employed by Shortway and/or Holland unless they were employed as a group. As stated by the former Suburban employees, they were under the impression that the purchaser, Shortway, had to deal with the Union before it could begin its operations and that they SHORTWAY SUBURBAN LINES looked to their union for protection and therefore did not file applications. The purchasing employer has no obligation to seek out the predecessor's employees and offer them jobs. It merely owes them the duty that if they apply for jobs that it not discriminates against them because of their union affiliation. Also the purchaser should not avoid the predecessor's employees to prevent a successor relation- ship, thus avoiding bargaining with the incumbent union. The General Counsel argues that, notwithstanding the fact that none of the former employees made applications for work, purchaser Shortway should be held to be a successor because it deliberately set out to avoid the predecessor's employees by: (1) Not letting the Union or the predecessor's employees knew the identity of the purchaser, (2) hiring a full complement of employees before it actually took over the operations, (3) giving preference to the Teamsters Union in its hiring, and, (4) entering into an illegal agreement with the Teamsters Union after it had hired its complement of employees for the Washington, Pennsylvania facility. There is not doubt from a reading of this record that as early as July the name of Shortway was being men- tioned as a possible purchaser of Suburban. In July, when the board of directors of Suburban decided to liq- uidate its assets, the name of Shortway was mentioned. This board of directors meeting was attended by employ- ees of Suburban who were members of the Union. Kepler, the president of the Union, testified that he heard the name of Shortway mentioned very early in these proceedings. Suburban notified the Union and the employees of its intention to sell its business on Septem- ber 15, a month and a half before Shortway began oper- ations. There was plenty of time for the Union to inquire and learn the name of the purchaser and where it could be found. The Union did not contact Shortway until Oc- tober 15, at a time when Shortway had already hired a complement of employees and at a time when the Union and the former Suburban employees had determined that the purchasing employer, Shortway, had to deal with them before it could open its operations. As indicated, Shortway need not seek out the prede- cessor's employees and offer them jobs. Moreover, Shortway could reasonably assume that these employees would not be interested in working for the wages that it had established.12 The record establishes that Shortway had decided to pay the same rate of pay that it was paying the employees at its other locations. i s It could reasonably assume that employees who were making almost $9 an hour would not work for those wages. This record clearly reflects that until October 6 there was no attempt on the part of the Union or any of the Suburban employees to contact the pure; .3er. This record clearly reflects that, at least by August 9, the Union, as well as 12 Shortway Airport began its operations on July 24, after it purchased the assets of another bus company from a Michigan bank . Shortway Air- port continued the predecessor's bus operations with the same employees and assumed the collective -bargaining agreement that had been in exist- ence and that provided for wages of approximately $4.80 per hour. This contract is with Teamsters Local 614 13 The Respondent concedes that Shortway and Shortway Airport constitute a single employer 337 the employees of Suburban, were aware that Shortway was to be the purchaser. It is obvious that they were not interested in applying for jobs because, as testified to by all the employees, they were under the impression that the purchaser had to go through their union. Wegerbauer, the president of Holland Industries, Shortway, and Shortway Airport, testified that by a de- cision made in early September the initial complement of employees to begin working on the opening of Shortway would not include any employees of Suburban. He testi- fied that Holland was closing another facility called Shortway, Inc., and that it was its belief that it would transfer certain of the employees from that facility to the Washington, Pennsylvania facility. He also testified that in the bus charter business the volume of business drops off quite drastically in the late fall and winter months and usually involves the layoff of drivers. He anticipated that this would happen with Shortway Airport. He ex- pected a drop in business and a layoff of personnel. The Company that was closing had 12 to 14 drivers and a labor contract with the Teamsters. He stated that as part of closing negotiations he offered those people jobs at other Holland facilities. He anticipated that he would probably have a certain number of those people come to Washington, but they were not happy with that solution, as they wanted preferential hiring in Detroit. Because they wanted work in Detroit he anticipated an even greater number of people being laid off by Shortway Airport. He expected to have 20 to 25 drivers that were all basically trained in Holland's method of operation and he certainly felt that he would prefer to have his own employees operating the new company rather than strangers. Wegerbauer testified that, as it turned out, none of the Shortway employees ended up at Washington, Pennsyl- vania. He stated that when he closed the other company in August he transferred a number of buses to Shortway Airport, increasing its charter fleet to 24 or 25 buses. Be- cause of an increase in business Shortway Airport was able to transfer only 10 of its employees to the Washing- ton, Pennsylvania facility. The remainder of the employ- ees were hired from the Detriot and Toledo area and were not previous employees of Holland. Wegerbauer testified that early in the spring or summer of 1982 he had an opportunity to look at the union contract at Suburban. He had an opportunity to compare the labor cost and he could see that the wage scale was higher than what he was paying his employees. He was also aware of the fact that there was a pension plan and that he wanted to start Suburban with labor costs similar to the labor costs at Shortway Airport and his other subsidiaries. The General Counsel argues that the merger of the terminated business and the business of Shortway Air- port could readily have been foreseen by Wegerbauer, and therefore he knew that there would be an increase in business, and therefore his testimony that he anticipated a decrease in business because of the slack season in charger buses shows that his reasons for not hiring the predecessor's employees were merely pretextual. I cannot and do not draw such a conclusion. 338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The General Counsel also points to the fact that many of the employees hired to work in the Washington, Pennsylvania facility by Shortway were inexperienced and some had no experience. The General Counsel called several witnesses to testify in this regard. But again, the fact that Respondent hired inexperienced personnel does not establish the fact that it was attempting to avoid dealing with the Union or to discriminate against the former employees of Suburban because of their union af- filiation. As I indicated earlier, the Respondent was well aware of the difference in the wages that it was willing to pay to the employees and the wages that were paid to the former Suburban employees. This fact alone was suf- ficient to cause Shortway not to offer positions to the former employees knowing that they would not accept such an offer. The General Counsel also argues that when an em- ployer conceals the fact that it is accepting applications for employment the former employees cannot be faulted or penalized for failing to apply. There is nothing in this record that I can find that would indicate that anyone was attempting to conceal from the Suburban employees that Shortway was accepting applications. The employ- ees of Suburban knew as early as July that there was a possibility that Suburban would be sold and that the pur- chaser might be Shortway or Holland Industries. None of the employees made an inquiry about obtaining em- ployment with the new employer. In fact, those that tes- tified stated that they would not have filed applications in any event because they were under the impression that anyone purchasing the Company had to hire them because of their affiliation with the Union and the Union's contract with Suburban. The simple fact remains that Shortway was aware of the labor costs of the predecessor employer. In an at- tempt to buy a company and make it profitable it chose to hire its own employees at its own rate of pay. It had reason to believe that the former employees would not accept $4.50 an hour so it did not make them an offer. Moreover, it had no obligation to make them an offer. It hired its own complement of employees and began oper- ations on November 1. It was not until late in January 1983 that the Union, on behalf of the former Suburban employees filed applications for employment, although it had these applications as early as October 19. Under these circumstances, I cannot conclude that Respondents refused to hire the former Suburban employees in order to avoid a bargaining relationship with the Union, or be- cause of their union affiliation. Accordingly, I shall recommend that the 8(a)(3), (4), and (5) allegations of the complaint predicated on the successorship of Shortway, Shortway Airport, and/or Holland be dismissed in their entirety. Additionally, as I have found that Shortway, Shortway Airport, and/or Holland did not refuse to hire the former Suburban em- ployess and did not otherwise discriminate against them, I shall recommend that all the other 8(a)(3) and (4) alle- gations of the complaint against these Respondents be dismissed in their entirety. The General Counsel also contends that Suburban is engaged in a joint venture with the other Respondents, or in the alternative, is engaged in an arrangement or un- derstanding making the several Respondents agents for each other to evade the Act. In support of this proposition, the General Counsel points to the fact that the Public Utility Commission for the Commonwealth of Pennsylvania directed that Subur- ban continue in business subsequent to October, pending approval of Shortway's application for the transfer of Suburban's operating rights; that they made joint applica- tions for the transfer of the operating rights; and that Shortway leased Suburban's equipment pending the Public Utility commission's approval of the application. As I find that the sale of Suburban to Shortway and/or Holland was an arm 's length transaction, as did Judge Cohill in the 10(j) proceeding, I conclude that the intention of Suburban was, and is, to totally cease its op- erations once approval by the Public Utility Commission of the Commonwealth of Pennsylvania is granted. Subur- ban continues in business only to the extent that it is complying with the laws of Pennsylvania and to transact the necessary business in order for it to cease its oper- ations. I see nothing in this that will in any way make it a joint venture with the other Respondents. In addition the General Counsel alleges an elaborate scheme whereby the presence of the Union presented a stumbling block to the sale of Suburban's assets because Shortway and/or Holland dealt only with the Teamsters Union. Thus, the essential element in negotiating the sale was to achieve the elimination of the Union by a cam- paign to get the Suburban employees to transfer their allegiance to the Teamsters. The argument continues that Hilty tried this and when his efforts failed Shortway and/or Holland began to hire and train an entirely new inexperienced unit of employees in Detroit. This argu- ment assumes that Shortway and Holland wanted to avoid dealings with the Union. There is absolutely no evidence in this record to indicate that Shortway or Hol- land ever expressed any animus towards the Union or its members. In support of this proposition, the General Counsel points to the testimony of Olczak who stated that he was a former driver for Suburban and that he was a share- holder owning 10 shares of stock in Suburban. He was not a member of the board of directors, nor did he hold any office with Suburban. Olczak testified that he is a member of the Union and that he was present at the shareholder's meeting on August 9 and heard Hilty state that Shortway had agreed to take over Suburban, that he was going to be the manager, and, as far as he knew, no one else was going to be hired. He testified that around August 13 he had a conversation with Hilty in the driver's room and that Hilty told him that the new company, Shortway, would not deal with the Union, it would deal only with the Teamsters. Hilty asked Olczak if he would be willing to check with the Suburban employees to see if they would be willing to switch from the Union to the Team- sters. Hilty said that if they switched to the Teamsters there was a possibility that they could be hired. Olczak testified that he went to the other drivers and told them what Hilty had said and that he reported back to Hilty around August 22 and told Hilty that he had spoken to SHORTWAY SUBURBAN LINES 339 15 drivers and, with one exception, they refused to switch to the Teamsters. He said that Hilty asked him later, around November 21, in a telephone conversation if anyone had changed their mind and he advised Hilty that they had not. He denied that Hilty ever told him that he might want to go to Toledo and seek employ- ment with the new company. On cross-examination Olczak was aksed if he told any of the drivers that there was a vote to sell the assets in Suburban to Holland Industries and/or Shortway. He testified that he did not recall, nor did he recall whether he told Kepler, the president of the Union. He did not recall if he told Clyde Fenton or Blaine Rader. He was asked if he remembered telling any of the drivers and he testified "No." He was asked specifically if he recalled telling the drivers about the August 9 shareholder's meeting. He testified not specifically, "No sir." Olczak was shown his affidavit dated November 29 and he testi- fied that there was nothing in that affidavit stating that at the August 9 shareholder's meeting Hilty had stated the drivers would not be hired by the new company. Former employee Philips testified that he heard from Olczak that Hilty had asked him to contact the employ- ees about joining the Teamsters and he told Olczak that he would not. Phillips also testified that he had discus- sions with Hilty about the Teamsters and Hilty had indi- cated to him that he could be president of the Union. In Phillips' affidavit he stated that, in July and August, Kepler told me that the new company would deal only with the Teamsters and would not deal with the Union. Phillips testified that Kepler's name was put in by mis- take and that it should have been Hilty. Thus, it is his testimony from which Phillips first learned about the Teamsters Union and the fact that Shortway and/or Hol- land would not deal with the Union through Hilty. His affidavit indicates to the contrary. I have carefully evaluated the testimony of Olczak and Phillips in this regard. These statements were denied by Hilty. I am not persuaded that Hilty requested Olczak to poll the other drivers to see if they were willing to switch to the Teamsters. Certainly his testimony is not bolstered by Phillips' testimony, which can be interpret- ed as meaning that he first learned of the Teamsters through Kepler, the president of the Union. The Team- sters issue was discussed at many of the union meetings and particularly at the union meeting of August 27. At that meeting Kepler informed the assembled employees that the Company could do nothing without going through the Union. I have carefully evaluated the testi- mony of the other drivers who testified at these proceed- ings and I find nothing in their testimony to indicate that they were polled by Olczak to see if they would favor joining the Teamsters rather than sticking with the Union. Therefore, it is my conclusion that Hilty in no way sought out Olczak to have him poll the employeees. To the extent that Olczak's testimony and the testimony of Phillips indicates to the contrary, I do not credit the portion of their testimony.14 14 In any event there is nothing in this record to indicate that Hilty at this time was on the payroll of Shortway As a matter of fact the testimo- ny of both Margolies and Wegerbauer would indicate that Hilty was not Former Suburban employee Fenton testified that when he saw the notice of September 16 posted on the bulletin board indicating that Suburban was going out of busi- ness, he read it over and then went in and talked to Frank Liberati, his uncle and vice president of Suburban, and asked Liberati to explain it to him. He said that Li- berati told him that it was nothing to really worry about, that there would be jobs for everyone, and that the only stipulation was that they would have to change over to the Teamsters. Fenton also testified that he had a similar conversation with Kepler, the union president. He testi- fied that he never discussed this problem with Hilty or Olczak. Fenton testified that he did not tell anybody about his conversation with Liberati until January 1983. Fenton testified that the Teamsters problem was dis- cussed in their union meetings and they were wondering how the Teamsters were going to get in with the Union already in the picture. Fenton testified that he assumed that the purchaser of the assets of the Company would have to take all the employees and bargain with the Union and that was the reason that applications were not filed with Shortway and/or Holland for employment. He stated that this was discussed at union meetings. Liberati was not called to testify, so the testimony of Fenton stands uncontradicted on the record. At most, however, this is the statement by an official of Suburban that the employees might have to join the Teamsters Union if they wanted jobs with the new company. while this may constitute a violation of Section 8(a)(1) of the Act on the part of Suburban, I cannot find that Liberati was in any way an agent of Shortway and/or Holland and certainly this statement is in no way binding on the other Respondents and does not establish that there is a joint venture or an arrangement between Suburban and the other Respondents to compel the employees to join the Teamsters Union. Under the circumstances, I cannot find that there is a joint venture between the various Respondents and, to the extent that the complaint alleges such a theory, I shall dismiss that portion of the complaint. B. The 8(a)(2) Allegations On October 30, Shortway took over Suburban oper- ations with an entirely new complement of employees and on that day agreed to apply the terms and conditions of its collective-bargaining agreement with Local 614 of the Teamsters to the new employee at the Suburban fa- cility. Thus, Shortway applied the agreement that Shortway Airport had with Local 614. The General Counsel argues that by recognizing the Teamsters and applying the Teamsters agreement to Shortway Subur- ban operations at a time when it was obligatd to recog- nize the Union to the exclusion of all others, Shortway rendered unlawful assistance to the Teamsters in viola- tion of Section 8(a)(2) of the Act. In addition to this alle- employed by Shortway until September 14. the fact that Hilty testified on August 9 that he would be the new manager does not make him an em- ployee at the time, and certainly does not make him an agent of the other Respondents. Therefore, even assuming Hilty requested Olczak to poll their employees, there is nothing to indicate that he was working as an agent of the other Respondents 340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gation, the General Counsel argues that Shortway ren- dered unlawful assistance to the Teamsters in that it so- licited authorization cards, on behalf of the Teamsters re- garding certain employees. While this latter allegation deals with employees who were hired after October 30, it has no relationship to the initial granting of recognition to Teamsters on October 30, and Shortway accorded recognition to the Teamsters. The General Counsel of- fered no evidence to indicate whether or not any of these employees had executed authorization cards on behalf od the Teamsters. The General Counsel has as- sumed that, because recognition should have been ac- corded to the Union, the recognition of any other person is illegal, in violation of Section 8(a)(2). As I have found that Shortway and/or Holland was not a successor to Suburban and therefore had no bar- gaining obligation to the Union, its failure to recognize the Union was not a violation of Section 8(a)(1) and (5). Therefore, its recognition of the Teamsters was not a violation of Section 8(a)(2) for that reason. As the record reflects that Shortway began its oper- ations on October 30 with approximately 10 employees who had previously worked for Shortway Airport, which had collective-bargaining agreement with Team- sters 614, these employees may have been members of Teamsters 614. Additionally, there were approximately 21 other employees who were hired in the Detroit area. This record is silent as to whether these employees were or were not members of the Union. The General Counsel has offered no evidence to indicate that the Teamsters did not represent a majority of these employees on Octo- ber 30, and, therefore, I cannot find that the Teamsters did not represent a majority of these employees at the time recognition was accorded. Therefore, I shall dismiss this 8(a)(2) allegation of the complaint. Additionally, the complaint alleges that Shortway and/or Holland assisted the Teamsters in violation of Section 8(a)(2) by soliciting authorization cards on behalf of the Teamsters. In this respect Daniel Thomas Howard testified that he was employed by Shortway from October 25 to De- cember 23 and that on October 29, he bagan working in Washington, Pennsylvania. He testified that after he was in Washington for approximately 2 weeks he was told to report to the office where he met Shortway supervisors Richard Hall and Mike Bane. He stated that these indi- viduals asked him if he signed a union membership card in Southfield, and when he told them no, they told him to sign one and gave him a Teamsters union membership card. It appears that the witness first related this incident to Board agents approximately 1 week prior to the hear- ing on Wednesday, June 29, 1983. Joseph D. Howard, the brother of Daniel Howard, testified that he worked for Shortway from October 5 to March 22, 1983. He learned about his job through the Daily MaComb, a local daily newspaper in a small town on the northeast side of Detroit. He applied for work and filled out an application on September 28. The ad specified experienced diesel mechanic for relocation to Pittsburgh, Pennsylvania. It gave a telephone number, but did not list any employer. He testified that he was hired on October 5 and began working in Southfield, Michigan, for Shortway Airport. He further stated that he informed the people that he would not relocate, that he would go to Pittsburgh temporarily, and he was told that there may be a position in one of the other garages afterwards. He went to Pittsburgh on November 1. He said that after he was in Pittsburgh about 10 days, he ob- served his brother, Mike Bane, Richard Hall, and at least one other person talking in the garage. He later testified that there were approximately seven people in this con- gregation. He said Mike Bane asked the employees if they had signed cards back in Southfield, and the em- ployees said no. At this point Mike Bane told the em- ployees that he wished they would fill out cards. At some later point he obtained and signed a Teamsters union authorization card. As is readily apparent from the testimony of these two brothers, there is quite an inconsistency in their testimo- ny. The first witness testified that he was alone with Hall and Bane when they asked him to sign an authorization card. According to his brother, when he overheard the employees being asked to sign authorization cards there were approximately seven individuals in the group. Ob- viously someone is lying or mistaken. These two individ- uals no longer work for Shortway. Both were terminat- ed. The owe no allegiance nor do they hold any love for Shortway. Additionally, their testimony, coming one week prior to this hearing appears to me to be very for- tuitous. Hall denied ever asking any employee to execute an authorization card. Under the circumstances, I credit the testimony of Hal and do not credit the testimony of the Howard brothers. Accordingly, I find no merit to this 8(a)(2) allegation of the amended complaint and will recommend that it, too, be dismissed. C. The 8(a)(1) and (5) Allegations Relating to Suburban The complaint alleges that on May 10, when Hilty met with former Suburban employees, and discussed with them their grievance, and informed them that Suburban had a buyer, and asked them to go along with Suburban on the grievance, Suburban violated Section 8(a)(1) and 8(a)(5) in that Suburban was bypassing the Union, the collective-bargaining representative of the Suburban em- ployees. This record clearly reflects that Hilty called the meeting involved and that the meeting was attended by a majority of the employees who were members of the Union, as well as by Kepler, the president of the Union, Raber, the recording secretary of the Union. This record also clearly reflects that in the past Hilty had called meetings of the employees in this manner, particularly when he wanted to discuss a matter with the Union. So far as this record reflects there did not appear to be any- thing unusual about Hilty's calling a meeting of the membership of the Union. As I indicated, the Union was well represented, and so far as I can ascertain from this record, there was no attempt on Hilty's part to bypass the Union. He did request of the employees that they try to see things the Company's way, and to resolve the issue of pay on the Worlds Fair charters in favor of the Company. All of this was done in the presence of, and with the knowledge of, the Union. Kepler talked to the SHORTWAY SUBURBAN LINES 341 employees and stated his views. The employees took a vote and voted in favor of the Company, which vote was later overruled by the Union, and the Union insisted that the Company pay the wages on the charger run to the World's Fair in accordance with the expired con- tract. It must be remembered that at this point there was no contract in existence, but the parties were abiding by the contract, which had a termination date: in December 1979. Later on in July the Company settled this griev- ance by going along with the Union and in fact executing a new collective-bargaining agreement. Under these cir- cumstances, certainly in my view, there was no 8(a)(5) violation by this conduct. I must conclude, however, that Suburban did in fact violate Section 8(a)(1) in this interference with its employees' rights guaranteed under Section 7. As this grievance was ultimately resolved by the Company in the Union's favor and the original charge was withdrawn, and Suburban is about to cease functioning as a viable entity. I see no reason why a re- medial order is necessary or could be necessary in this case. Therefore, it is my conclusion that although Subur- ban violated Section 8(a)(1) of the Act in this manner, a remedial order is not warranted. The General Counsel also contends that Suburban vio- lated Section 8(a)(1) in its several conversations between Hilty and Olczak, and Hilty and Phillips, relating to the switch to the Teamsters, and, soliciting Olczak to poll the employees, and concerning the alleged conversations between Hilty and Phillips relating to the grievance and the various straws that broke the camel's back. As I have discredited both Olczak and Phillips in this regard, I do not find any 8(a)(1) violations in this area. Additionally, the General Counsel alleges that Suburban violated Sec- tion 8(a)(1) when Hilty told employee Robert Durbin that things would not be this way if it had not been for the grievance filed in the Knoxville trips and that was the straw that broke the camel's back. Although I find that this conversation did in fact occur and is violative of Section 8(a)(1), I also find that a remedial order is not necessary in this matter, particularly in view of the fact that the grievance was resolved and, Suburban is out of business by now, or will be out of business shortly. As I have concluded that there was no joint venture relationship with Suburban and the other Respondents, certainly any 8(a)(1) violation on the part of Suburban would not carry over to the other Respondents. CONCLUSIONS OF LAW 1. The several Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Amalgamated Transit Union Local 1543, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. General Drivers, Warehousemen, Helpers and Gas Station Attendants, Local 614, a/w International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act. 4. Shortway Suburban Lines Holland Industries, and Shortway Airport Limousines, have not violated Section 8(a)(1), (2), (3), (4), or (5) of the Act. 5. Suburban Lines has not violated Section 8(a)(1), (2), (3), (4), or (5) of the Act. 6. Suburban Lines, Inc., has violated Section 8(a)(1) of the Act by its interference with the employees as set forth in this Decision, but a remedial order is not appro- priate. On the foregoing findings of fact and conclusions, I make the following recommended" s ORDER 'The complaint is dismissed in its entirety. 15 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