Capitol Transit, Inc., And Transcontinental Leasing, Inc.

CAPITOL TRANSIT 777 Capitol Transit, Inc., and Transcontinental Leasing, Inc. and Local 124, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO' and United Labor Associates International, Party in Inter- est. Case 7-CA-26211 June 30, 1988 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS BABSON AND CRACRAFT On May 14 and November 18, 1987, Administra- tive Law Judge James L. Rose issued the attached decision and supplemental decision,2 respectively. The Respondents filed exceptions and supporting briefs, and the General Counsel filed an answering brief and cross-exceptions3 with a supporting brief. Respondent Capitol Transit filed an answering brief to the General Counsel's cross-exceptions. Following the issuance of the judge's supplemental decision, Respondent Capitol Transit filed a reaffir- mation of its exceptions to the judge's initial deci- sion and exceptions to the supplemental decision. The General Counsel filed an answering brief and a motion to strike a portion of Respondent Capitol Transit's 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, the sup- plemental decision, and the record in light of the exceptions4 and briefs and has decided to affirm the judge's rulings, findings,5 and conclusions as ' On November 2, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 By unpublished Order dated September 18, 1987, the Board remand- ed the case to the judge to make a credibility resolution regarding testi- mony related to the issue whether Respondent Capitol Transit had knowledge of union activity pnor to its decision to enter into a leasing agreement and terminate its bargaining unit employees S The General Counsel seeks, inter alia, a visitatonal clause authorizing the Board, for compliance purposes, to obtain discovery from the Re- spondents under the Federal Rules of Civil Procedure subject to the su- pervision of the United States court of appeals enforcing this Order Under the circumstances of this case , we find it unnecessary to include such an order See Cherokee Marine Terminal, 287 NLRB 1080 (1988) 4 The General Counsel's motion to strike a portion of Respondent Capitol Transit's exceptions is denied G Respondent Capitol Transit has 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 prepon- derance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We have also reviewed the record and find no merit in Respondent Capitol Transit's argument that the judge demonstrated antiemployer bias We agree with the judge's conclusion that Cusmano's and Vitello's in- terrogation of employees regarding whether they signed union authoriza- tion cards violated Sec 8 (a)(1) of the Act Those interrogations were ini- modified and to adopt the recommended Order as modified and set forth in full below.6 1. We agree with the judge that Respondent Transcontinental Leasing violated Section 8(a)(2) of the Act when it applied its collective-bargaining agreement with the United Labor Associates Inter- national to former Capitol Transit drivers and re- quired them to sign applications for membership in ULAI and dues-checkoff authorizations. We find merit in the General Counsel's cross-exception and find that Transcontinental Leasing's conduct also violated Section 8(a)(3) because the collective-bar- gaining agreement contained a union-security clause. Safeway Stores, 276 NLRB 944 (1985). Fur- ther, by telling the Capitol Transit drivers that they must sign the membership application and dues-checkoff authorizations if they wanted to con- tinue to work, we find that Transcontinental Leas- ing violated Section 8(a)(1). 2. The General Counsel cross-excepts to the judge's failure to find that Respondent Capitol Transit created the impression of surveillance of employees' union activity. The General Counsel al- leges that Respondent Capitol Transit violated Sec- tion 8(a)(1) of the Act by stating that it was aware tiated by Cusmano and Vitello (the owners of Capitol Transit) dung the organizing campaign, were directed at employees who had not declared their union sentiments, and were accompanied, on at least two occasions, by the threat that employees would "all be walking" if they pursued the "matter " The General Counsel cross-excepts to the judge's failure to find that Vitello also interrogated employee Earl Cathey on two occasions about his union activities Because we find this allegation cumulative , we find it unnecessary to reach the issue whether Vitello unlawfully interrogated Cathey 6 In par 1(d) of the recommended Order against Respondent Capitol Transit, the judge used the broad cease-and -desist language "in any other manner " We have considered this case in light of the standards set forth in Hickmott Foods, 242 NLRB 1357 (1979), however, and have concluded that a broad remedial order is inappropriate inasmuch as it has not been shown that Respondent Capitol Transit has a proclivity to violate the Act or has engaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees ' fundamental statutory rights. The judge also found that unfair labor practices committed by Re- spondent Capitol Transit were sufficiently egregious to support a bargain- ing order In light of our reversal of the judge 's finding that Respondent Capitol Transit violated Sec 8(a)(3) of the Act when it executed a leasing agreement and thereby terminated the bargaining unit employees, we find that a bargaining order is inappropriate We will issue an order in lieu of the judge's recommended Order eliminating both the broad cease-and- desist language and the bargaining order In par. 2(a) of his recommended Order against Respondent Transconti- nental Leasing the judge ordered the deletion of certain portions of Re- spondent Transcontinental Leasing's collective-bargaining agreement with United Labor Associates International Under the circumstances of this case we find a deletion of any language in the collective -bargaining agreement unnecessary, and shall modify the Order accordingly In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after January 1, 1987, shall be com- puted 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 January 1, 1987 (the effective date of the 1986 amend- ment to 26 U S C § 6621), shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 289 NLRB No. 98 778 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD who was passing out authorization cards. We find merit in the General Counsel's cross-exception. Employee Brad Burton testified that when he met with Vitello to discuss a problem with Vitello's son, Vitello told Burton that Burton's brother was passing out union cards and that if they kept pursu- ing the matter of signing authorization cards "you'll all be walking." The judge credited Bur- ton's testimony that Vitello told him "you'll all be walking" and found that Vitello had made a clear threat that employees would be terminated for en- gaging in protected activity. However, the judge did not mention Burton's testimony regarding Vi- tello's statement during the same conversation that Burton's brother was passing out authorization cards. We find that the judge overlooked Burton's testimony regarding the passing out of authoriza- tion cards when he stated that the record offered no factual support for the surveillance allegation of the complaint. We further note that, while denying that he made any threats to Burton, Vitello testi- fied that he asked Burton if his brother ever gave him a union card to sign. Relying on Burton's credited and uncontroverted testimony, we find that Respondent Capitol Transit created the im- pression of surveillance in violation of Section 8(a)(1) of the Act when Vitello advised Burton that Burton's brother was passing out union cards. Al- though the complaint alleged that this incident con- stituted unlawful surveillance, rather than impres- sion of surveillance, it is well settled that "[a] vari- ance between complaint and findings will not defeat a Board determination where the issue on which the findings were based was fully litigated." REA Trucking Co. v. NLRB, 439 F.2d 1065, 1066 (9th Cir. 1971). 3. We disagree with the judge's finding that Re- spondent Capitol Transit violated Section 8(a)(3) and (1) of the Act by changing its operation from one utilizing employee-drivers to one leasing driv- ers from another company in response to its em- ployees' union campaign. A union organizational campaign among Capitol Transit's approximately 46 truckdrivers began in mid-August 1986.7 On September 2 Capitol Transit executed a leasing agreement with Transcontinental Leasing, to become effective September 15, that provided for Transcontinental Leasing to furnish employees to do the hauling of freight and commodities for Cap- itol Transit. The effect of the leasing agreement was the termination of the entire bargaining unit at Capitol Transit. Charles Garavaglia, Respondent Transcontinen- tal Leasing's labor consultant, testified that on July 7 All dates are m 1986 17 he met with Joseph Vitello, co-owner of Capitol Transit, at Vitello's office to discuss labor consult- ant work. In response to Vitello's major complaint that he could no longer devote time to trucking be- cause he was spending all his time in administrative work, Garavaglia stated that he proposed the possi- bility of personnel leasing. According to Garavag- lia, after Vitello expressed interest, Garavaglia set up a meeting on July 25 with a representative of Transcontinental Leasing, Vitello, and himself. Garavaglia further testified that following an in- depth discussion with the Transcontinental Leasing representative at the July 25 meeting, Vitello said that "he would go with" the program subject to working out comparable insurance coverage and employment protection for Respondent Capitol Transit's present employees. The parties met again on August 29. Garavaglia testified that at the August 29 meeting the parties agreed that Transcontinental's insurance policy provided more coverage than Vitello's coverage and did so at a less expensive rate. Garavaglia in- formed the parties that agreement had been reached with the Union representing Transcontin- ental's employees to permit Capitol Transit em- ployees to work for Transcontinental. Garavaglia stated, "With those two agreements, Mr. Vitello agreed to sign an agreement with Transcontinen- tal." The leasing agreement was signed on Septem- ber 2, to be effective September 15. Pursuant to our remand instructing the judge to make a credibility resolution concerning Garavag- lia's testimony, the judge credited Garavaglia's tes- timony concerning what was said at his meeting with Vitello and concerning the dates of their meetings. Although crediting Garavaglia, the judge nevertheless concluded that Vitello did not reach a decision to change his operation until August 29, i.e., after he learned of the organizational campaign on August 13. The judge found that while testimo- ny regarding the July 25 meeting seemed to indi- cate that Vitello was seriously considering chang- ing the method of his operation, the testimony was insufficient to conclude that, in fact, Vitello had made up his mind or had determined at that time to enter into an employee leasing arrangement. Rather, the judge concluded that as of July 25 those talks were still in a preliminary stage subject to resolution of issues Vitello raised and that agree- ment was not imminent. Noting that Vitello did not testify that he had made up his mind or that he had told Garavaglia that he had made up his mind at the July 25 meeting, the judge found the words "he would go with a progam" could reasonably merely convey interest although the judge stated CAPITOL TRANSIT 779 that "it is possible" to conclude from those words that Vitello had made up his mind." Contrary to the judge, we find that the credited evidence, when viewed in its entirety, warrants the conclusion that on July 25 Vitello accepted Trans- continental's employee leasing arrangement , subject to certain conditions that were subsequently satis- fied. We cannot agree with the judge that Gara- vaglia's testimony that Vitello said that "he would go with a program like that" conveys nothing more than Vitello's mere interest in a leasing agree- ment.9 Rather, we interpret Garavaglia's testimony to mean that on July 25, well before the union or- ganizing campaign began, Vitello made an initial decision to change to an employee leasing oper- ation, subject to the satisfactory resolution of cer- tain specific concerns. The issue is not, as the judge phrased it, whether Vitello "had made up his mind" on July 25 to enter into the employee leas- ing arrangement. The issue is whether Vitello's ini- tial decision, which was not tainted by any motive proscribed by the statute, was thereafter influenced by the organizational campaign that commenced among Capitol Transit's employees. We find that it was not. After July 25 events fol- lowed a logical progression with the parties meet- ing again on August 29 and Vitello agreeing to sign a leasing agreement on learning that his con- cerns about insurance coverage and employment protection for his employees had been satisfied. On September 2 the agreement was executed and thereafter put into effect. By mid-August, of course, the union campaign at Capitol Transit was underway, but there is no showing that it affected in any way the events that had their genesis in the meeting held the month before. Where, as here, an employer's initial decision to change its mode of operations is lawful, the Act does not prohibit the employer from carrying out that decision simply because the employer's employees choose to engage in union activities. Our finding with respect to the date on which the decision concerning the leasing arrangement was effectively made weakens the General Coun- sel's prima facie case; but even assuming that the prima facie case was established simply by virtue of evidence of union animus and the occurrence of union activity prior to the 'signing of the lease agreement, we conclude that Respondent Capitol Transit has carried its burden by establishing that it would have signed the agreement even in the ab- sence of union activity. Accordingly, we reverse the judge's finding that Respondent Capitol Transit violated Section 8(a)(3) of the Act by executing the leasing agreement with Transcontinental Leasing and thereby terminating all the bargaining unit em- ployees. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set out in full below and orders that A. Respondent Capitol Transit, Inc., Detroit, Michigan, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Interrogating employees concerning their union or other activity protected by Section 7 of the Act. (b) Threatening employees with discharge or other retribution for their having engaged in union or other activity protected by Section 7 of the Act. (c) Creating the impression that employees' union activities are under surveillance. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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) Post at its facility in Detroit, Michigan, copies of the attached notice marked "Appendix A."10 Copies of the notice, on forms provided by the Regional Director for Region 7, 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. (b) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. B. Respondent Transcontinental Leasing, Inc., Cleveland, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Applying to former Capitol Transit employ- ees who have not freely designated United Labor 6 The judge further found that those were Garavaglia 's words and did not purport to be a quote from Vitello. e Contrary to the judge, we place no significance on the fact that Gar- avaglia did not purport to quote Vitello's exact words. It is clear from Garavaglia's testimony , which the judge credited, that Garavaglia was giving his account of what Vitello said at the July 25 meeting. 10 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." 780 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Associates International as their collective-bargain- ing representative its collective-bargaining agree- ment with United Labor Associates International; provided, however, that nothing contained herein shall be construed as requiring the Respondent to abandon or vary any wage, hour, seniority, or other substantive terms of employment that it may have established pursuant to the performance of the contract. (b) Deducting dues from employees' wages based on checkoff authorizations of former Capitol Tran- sit employees who have not freely designated United Labor Associates International as their col- lective-bargaining representative and who have not freely signed dues-checkoff authorizations. (c) Telling former employees of Capitol Transit that they must sign the membership applications and dues-checkoff authorization cards for United Labor Associates International if they want to con- tinue to work. (d) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise 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) Withdraw and withhold all recognition from United Labor Associates International as the col- lective-bargaining representative of the former Capitol Transit employees unless and until that labor organization has been certified by the Nation- al Labor Relations Board as the exclusive repre- sentative of such employees. (b) Remit to all former Capitol Transit employ- ees from whom it deducted dues pursuant to dues- checkoff authorizations all moneys so deducted, with interest as provided for in New Horizons, supra. (c) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all records necessary to analyze the amount of funds to be remitted under the terms of this Order. (d) Post at its facility in Cleveland, Ohio, copies of the attached notice marked "Appendix B."11 Copies of the notice, on forms provided by the Re- gional Director for Region 7, after being signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. 11 See fn 10 (e) 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 those allegations of the complaint not found herein to have been sus- tained are dismissed. APPENDIX A NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT interrogate our employees con- cerning their interest in or activity on behalf of Local 124, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO or any other labor organization. WE WILL NOT threaten our employees with dis- charge because they engage in any activity on behalf of the above-named or any other labor orga- nization. WE WILL NOT create the impression that our em- ployees' union activities are under surveillance. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. CAPITOL TRANSIT, INC. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT apply our collective-bargaining agreement with United Labor Associates Interna- tional to former Capitol Transit, Inc. employees who have not freely designated United Labor As- sociates International as their exclusive bargaining representative; provided, however, that nothing herein shall be construed as requiring us to aban- don or vary any wage, hour, seniority, or other substantive terms of employment that we may have established pursuant to the performance of the con- tract. CAPITOL TRANSIT 781 WE WILL NOT deduct dues from employees' wages based on checkoff authorizations of former Capitol Transit, Inc. employees who have not freely designated United Labor Associates Interna- tional as their collective-bargaining representative and who have not freely signed dues-checkoff au- thorizations. WE WILL NOT tell former employees of Capitol Transit, Inc. that they must sign the membership applications and dues-checkoff authorizations cards for United Labor Associates International if they want to continue to work. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL withdraw and withhold all recognition from United Labor Associates International as the collective-bargaining representative of the former Capitol Transit, Inc. employees unless and until that labor organization has been certified by the National Labor Relations Board as the exclusive representative of such employees. WE WILL remit to all former employees of Cap- itol Transit, Inc. any moneys that we deducted from their wages and remitted to United Labor As- sociates International as dues pursuant to unlawful checkoff authorizations, with interest. - TRANSCONTINENTAL LEASING, INC. Richard M Whiteman, Esq., for the General Counsel. David E. Jerome, Esq., of Northville, Michigan, for Re- spondent Capitol Transit, Inc. Charles Garavaglia, of Milford, Michigan, for Respond- ent Transcontinental Leasing, Inc. James Ball, of Dearborn Heights, Michigan, for the Charging Party. Lawrence McHenry, of Melvindale, Michigan, for the .Party in Interest. DECISION STATEMENT OF THE CASE JAMES L. ROSE, Administrative Law Judge. This matter was tried before me on 28 and 29 January 1987 at Detroit, Michigan, on the General Counsel's complaint,' which alleged that the Respondents are joint employers of certain employees and that they engaged in violations of Section 8(a)(1) and (3) of the National Labor Rela- tions Act. The Respondents each generally denied that it en- gaged in any unfair labor practices and each contends that they are not joint employers of any employees. I The original charge was filed on 15 September and amended on I October 1986. The complaint issued on 31 October 1986. All dates are in 1986 unless otherwise indicated. Each Respondent appeared by a representative at the hearing. On the record as a whole, including my observation of the witnesses, briefs, and arguments of counsel, I issue the following FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. JURISDICTION Capitol Transit, Inc. is one of several companies owned and operated by Clarence Cusmano and Joseph Vitello, engaged in the interstate hauling of various goods, products, and materials. Specifically, Capitol Transit is a Michigan corporation with offices in Detroit, which annually derives gross revenues in excess of $50,000 from the interstate transportation of freight and commodities as an essential link in interstate commerce pursuant to agreements with , among other employers, the Ford Motor Company, some of whom, including Ford Motor Company, ship directly from Michigan to points outside the State goods valued in excess of $50,000. The parties agree, and I find, that Capitol Transit is an employer engaged in interstate commerce within the meaning of Section 2(2), (6), and (7) of the Act. Transcontinental Leasing, Inc. is an Ohio company with its principal office and place of business in Cleve- land. It is engaged in the business of providing employ- ees to other employers for the performance of work. About 2 September 1986, Capitol entered into an agreement with Transcontinental, in which Transconti- nental was to provide employees to drive trucks for Cap- itol and has done so. The value of services to Capitol provided by Transcontinental during 1986 and to other employers directly engaged in interstate commerce or who serve as an essential link in the interstate transporta- tion of freight and commodities exceeded $50,000. The parties agree that Transcontinental is and at all times material has been an employer engaged in inter- state commerce within the meaning of Section 2(2), (6), and (7) of the Act. Prior to Capitol entering into the 2 September agree- ment with Transcontinental, Capitol employed approxi- mately 46 truckdrivers in connection with its business of hauling freight and commodities. After preliminary dis- cussions with representatives of Transcontinental, specifi- cally its labor consultant Charles Garavaglia, Capitol en- tered into the agreement with Transcontinental in which Transcontinental would furnish employees to perform the duties theretofore performed by Capitol employees. Provisions were made to ensure that Capitol employees would have the first opportunity to work as employees for Transcontinental beginning 15 September, the effec- tive date of the lease agreement. Terminating the entire bargaining unit, which Capitol did, and entering into the lease agreement with Trans- continental is the gravamen of the unfair labor practices alleged in this matter. Preliminarily, however, there is a question of whether on these facts it can be concluded that the two Respondents are joint employers. 782 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Transcontinental, in addition to the 46 former employ- ees of Capitol, has about 250 or so other employees working for various companies as leased employees, principally in Ohio and Michigan. There is no indication in the record , other than the facts outlined above, suggesting that Capitol and Trans- continental are joint employers under Board law. There is no evidence that they jointly control the wages, hours, or other terms and conditions of employment of employ- ees. Their relationship appears to be a bona fide arrange- ment for the leasing of employees. Indeed, the General Counsel does not allege that Transcontinental is a dis- guised continuance of Capitol or that the two companies are alter egos of each other. It is only alleged that they are joint employers, and on the facts of this record, I conclude they are not . Evidence that Capitol continued to exercise control over significant terms and conditions of employment is lacking. There is no evidence that any supervision by Capitol was more than routine. Nor is there evidence that Capitol hired , fired, or disciplined employees. TLI, Inc., 271 NLRB 798 (1984). II. THE LABOR ORGANIZATIONS INVOLVED All parties agree that Local 124, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Local 124), and United Labor Associates International (ULAI) are both labor organizations within the meaning of Section 2 (5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts The material facts in this matter are largely undisputed and may be summarized. Local 124 is a relatively small Teamsters local normally employing one full-time busi- ness agent who is also the president. Local 124 repre- sents employees of sister companies of Capitol Transit but has never represented the Capitol Transit drivers. Periodically, however, and particularly in the few months prior to the events in this matter, Local 124's then president (William Klann) asked one of the owners of Capitol Transit (Joseph Vitello) to recognize Local 124 as the bargaining agent for the drivers. Vitello's stated objection to signing such a recognition agreement had to do with the Teamsters' pension plan to which he would have to become a party, and the un- funded liability exposure attendant to signing on with that plan. In discussions with Klann, Vitello asked if they could negotiate a pension plan different from the basic Teamsters Central States Pension Plan and Klann stated they could not, and even if they did, such would not be approved by the International. In any event, Klann asked that Vitello recognize Local 124 and Vitello refused. During this period, however, there is no indication that any Capitol employees were members of Local 124 or had ever authorized Local 124 to represent them for purposes of collective bargaining. But sometime in the late summer Capitol employees, in fact, began to sign authorization cards designating Local 124 as their collective-bargaining representative. During the latter part of August and through September, ap- proximately 30 such authorizations were signed. The number of cards actually signed is not a matter of record inasmuch as it appears that not all of them were offered into evidence. Why this is so is unknown; how- ever, it is noted that some of the cards in evidence have what appears to be altered dates. In addition, two cards that were purportedly signed in August were not date- stamped received by the Board's Regional Office until 14 January 1987. All the other cards offered into evidence by the General Counsel were datestamped received on 24 September, the week following the filing of the charge. Notwithstanding that the date on some of these cards is questionable, there is no question that employees of Capitol were engaged in an organizational campaign in late August and early September, and that cards were signed by the employees giving an unambiguous authori- zation to Local 124 to represent them. There is no indi- cation or argument concerning the authenticity or unam- biguity of the cards. Nor is there any real dispute that during this period Cusmano and Vitello, the principal officers and managers of Capitol, interrogated employees concerning whether they had in fact signed authorization cards. Thus, Mark Benedict testified that about a week before 14 September, at Capitol's dispatch room, Cusmano "asked me if I'd signed a card for the Teamsters or not." Benedict testified he told Cusmano that he had not. Bradley Burton testified that during a discussion with Vitello, Vitello asked if he had signed a union card and then said "that it wouldn't do me no good at Hawk Trucking [a sister company of Capitol] because Hawk is non-union." Burton told Vitello that he had not signed a card. Burton further testified that during this conversa- tion Vitello said, "Well, it's none of my business, but if you keep pursuing the matter, you'll all be walking." Sometime later in another conversation with Vitello, Burton testified: He asked me if I'd told any Union people that he said, if we didn't stop pursuing this matter, we'd all be walking. And I told him, "No, I never said no such thing." He said he had some witnesses stating that, you know, I had said this. And I said, "Joe, I don't know what you're talking about. I don't know where you got your witnesses from." Finally, Burton testified: [Vitello] asked me the same thing, if I had said any- thing to any Union people or officials of him saying that, if we didn't stop pursuing the matter, he would-we'd all be walking. And, finally, I told him, I said, "Yes, Joe, I did say that; and yes, you did say that." He said, "Why are you telling me this now? You told me "no before?" And I said, "Joe, I was afraid for my job." He said, "Well, you ain't got nothing to be afraid of for your job." While Vitello admitted to the interrogation of Burton and other employees, he denied the threats testified to by Burton. CAPITOL TRANSIT 783 William Johnson testified that Vitello talked to him about Local 124 and the Company and "tried to show me where it was better that I stay with the company like the company was rather than switch over to the Union. In other words, if it came down to a vote like where I would have to vote for the company or vote for the Union, that I should vote for the company instead the Union." During this conversation, Vitello asked Johnson if he knew about the cards that were being passed around and if he had signed one. Johnson told him no. Similarly, Stephen Dudash testified that on two occa- sions Vitello asked him if he had signed a card and he told Vitello yes. Victor Burton, an employee of Capitol Trucking (a sister company of the Respondent) and a Local 124 member, testified that he had passed out cards to Capitol drivers. Vitello "asked me what I was trying to do to his company." As noted above, Capitol and Transcontinental signed the lease agreement on 2 September to be effective 15 September, and on Sunday, 14 September, representa- tives of Capitol and Transcontinental met with the em- ployees to advise them of the change in operations. Drivers were told they could become employees of Transcontinental if they chose, although such was not re- quired; but, if they wanted to work beginning the next day, they would have to do so. At this meeting, employees were also told that Trans- continental had a collective-bargaining agreement with ULAI covering all its. employees and, pursuant to the terms of that agreement, they would have to become members of ULAI. Thus, in addition to W-4 forms, rep- resentatives of Transcontinental also gave employees ap- plications for membership in ULAI and for dues-check- off authorizations. To that point, there had been no effort on the part of ULAI to organize these employees, nor had ULAI obtained any authorizations for represen- tation from any of them. Representatives of ULAI had met with representatives of Transcontinental, specifically Labor Consultant Gara- vaglia, and had negotiated a collective-bargaining agree- ment covering all of Transcontinental's employees effec- tive 1 July. It provided, inter alia: The terms of this Agreement shall apply to all em- ployees in the classifications of work set forth herein and shall cover all accretions to or reloca- tions of bargaining unit operations, including newly established or acquired warehousing, transportation or processing operations of the Employer. Beginning 15 September all (or substantially all) of Capitol's former driver employees began working as em- ployees of Transcontinental, but doing the same work under essentially the same conditions as they had previ- ously. Although unclear from the record, it appears that all the employees who began working for Transcontinen- tal on 15 September signed applications for membership in ULAI and dues-checkoff authorizations, pursuant to which Transcontinental has made dues deductions from their wages and has remitted those amounts to ULAI. B. Analysis and Concluding Findings 1. Interrogation As noted above, there is no real dispute that on several occasions the owners of Capitol Transit interrogated em- ployees concerning whether they had signed authoriza- tion cards on behalf of Local 124. Vitello admitted that he had asked employees whether they had signed author- ization cards. The allegation concerning interrogation by Cusmano was added as an amendment to the complaint at the outset of the hearing over objection by counsel for Cap- itol Transit. The amendment was received with leave for counsel to move for a recess following the close of the General Counsel's case if time was deemed necessary to prepare a defense to the allegation. No such motion was made. Cusmano did not testify. Accordingly, the testimony concerning interrogation by him stands undenied on the record and I find that it occurred substantially as testi- fied to. There is therefore no question on this record that the Respondent's two principal officers in fact interrogated bargaining unit employees concerning their union activi- ty. I conclude that this interrogation, occurring as it did in the context of the organizational campaign, and subse- quent decision by Capitol Transit to terminate the entire bargaining unit, was unlawful and was violative of Sec- tion 8(a)(1). The type of interrogation engaged in by Vitello and Cusmano was not the benign questioning found permissi- ble by the Board in such cases as Rossmore House, 269 NLRB 1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). The interrogation here, I conclude, was part of Capitol's effort to thwart employees in the exercise of their Section 7 rights. 2. The threats Although Vitello denied in general terms that he "threatened" employees, I find more believable the testi- mony of Bradley Burton that Vitello told him if they kept pursuing the matter of signing authorization cards, "you'll all be walking." Under these circumstances, such is a clear threat that employees would be terminated for engaging in protected activity. In making such a state- ment to Burton, which he did on two occasions, Vitello violated Section 8(a)(1) of the Act. 3. Other allegations of 8(a)(1) violations The complaint also alleges that Respondents violated Section 8(a)(1) by stating it would be futile to engage in activity on behalf of Local 124, and that Respondents were engaged in surveillance of employees' union activi- ty. The record does not offer factual support for these allegations. Accordingly, I shall recommend that para- graphs 12(a) and (d) be dismissed. 784 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 4. Termination of the bargaining unit Although Klann had asked Vitello to recognize Local 124 as the bargaining agent for the Capitol Transit driv- ers in the spring and summer of 1986, there is no indica- tion that Local 124 represented any of those employees then, nor was there any organizational activity on their behalf. However, by August, authorization cards were being distributed among the Capitol Transit drivers and they were being signed. This fact Vitello knew, as dem- onstrated by his interrogation of his employees in late August and September. Nor did Vitello deny knowledge that employees were signing authorizations for Local 124. It is in the context of this organizational campaign, which included Vitello's interrogation and threats to em- ployees that on 2 September he signed a lease agreement with Transcontinental, the effect of which was to termi- nate the entire bargaining unit. While the leasing of driv- ers, and the attendant dissolution of the bargaining unit as employees of Capitol Transit, may very well have been legitimate between Capitol Transit and Transconti- nental, the conclusion is inescapable that it was precipi- tated by the employees' organizational activity. At least, the General Counsel made out a prima facie case that Vitello determined to change from employee- drivers to leased drivers as a result of the employees' union campaign. Therefore, Capitol Transit has the burden to establish that even in the absence of the union activity it nevertheless would have entered into this ar- rangement and terminated the bargaining unit employees. See Wright Line, 251 NLRB 1083 (1980). Capitol Transit brought forth no persuasive evidence tending to support a conclusion that it would have negotiated such a leasing arrangement with Transcontinental in the absence of the employees' union activity. Indeed, the only evidence tending to support Capitol's position are the self-serving declarations of Vitello, which I discredit. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466 (9th Cir. 1966). Ac- cordingly, I conclude that by executing the lease agree- ment with Transcontinental and thereby terminating all of the bargaining unit employees, Capitol Transit violat- ed Section 8(a)(3) of the Act. 5. The Transcontinental violations Although not free from doubt, it is assumed for pur- poses of this decision that the recognition by Transconti- nental of ULAI was lawful, there being no allegation of illegality in this relationship. The collective-bargaining agreement between Trans- continental and ULAI purports to cover "all accretions to or relocations of bargaining unit operations, including newly established or acquired warehousing, transporta- tion or processing operations of the Employer." There is no proviso that the agreement will be applicable only in the event that ULAI establishes that it represents a ma- jority of the new employees. There is no evidence that ULAI was ever designated the bargaining representative of any Capitol employee. To the contrary, at the materi- al time it was Local 124 that was obtaining authorization cards from these employees. It is clear and long established that a collective-bar- gaining agreement is unlawful if it purports to apply to a newly acquired facility without the employees of that fa- cility having had an opportunity to determine whether they in fact want to be represented by the labor organi- zation. See, e.g., Safeway Stores, 276 NLRB 944 (1985). Nor are there sufficient facts here to support the con- tention that a unit of drivers working exclusively for Capitol Transit would be an accretion to any other bar- gaining unit of Transcontinental employees. Though there is testimony of some interchange of employees as a general theory, there was no evidence of any specific interchange between employees working for Capitol Transit and any other operation for which Transconti- nental supplies employees. There is no commonality of supervision between these employees and any other groups of Transcontinental employees. The employees at Capitol Transit were clearly a definitive bargaining unit prior to the time that Transcontinental and Capitol Tran- sit entered into their arrangement. In effect, Transcontinental and ULAI argue that the lease agreement between Transcontinental and Capitol Transit lawfully denied bargaining unit employees their right to self-organization. Such is clearly erroneous. See, e.g., Towne Ford Sales, 270 NLRB 311 (1984). I conclude that ULAI, Transcontinental, and Capitol Transit could not legitimately deny the Capitol Transit drivers their right to self-organization. By enforcing the collective-bargaining agreement as to the former Capitol Transit drivers, requiring them to sign applications for membership in ULAI and dues- checkoff authorizations and implementing those authori- zations by withholding dues from the employees' wages and remitting them to ULAI, Transcontinental violated Section 8(a)(2) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The unfair labor practices found above, occurring in connection with Capitol Transit's and Transcontinental's respective businesses, have a close, intimate, and substan- tial relationship to trade, traffic, and commerce among the several States, and tend to lead to labor disputes bur- dening and obstructing commerce and the free flow thereof within the meaning of Section 2(6) and (7) of the Act. V. THE REMEDY Having concluded that Capitol Transit violated Sec- tion 8(a)(1) and (3), I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act, including ter- minating its lease agreement with Transcontinental Leas- ing, Inc., and rehiring all its truckdriver employees and making them whole for any wages or other loss of bene- fits that they may have suffered as a result of their termi- nation effective 15 September 1986, in accordance, if ap- plicable, with F. W. Woolworth Co., 90 NLRB 289 CAPITOL TRANSIT 785 (1950), with interest as provided for in Florida Steel Corp., 231 NLRB 651 (1977).2 In addition, inasmuch as I conclude that Local 124 in fact represented an uncoerced majority of the employees in the appropriate bargaining unit, Capitol Transit should be ordered to recognize and bargain with Local 124 as the exclusive representative of those employees. Although it is questionable when some of the authori- zation cards offered into evidence were signed, it is clear that at least 26 of them were signed by bargaining unit employees prior to 24 September, the date those 26 were received at the Board's Regional Office in Detroit. The fact that some of these cards may have been undated or the date altered does not affect the authenticity of the card, the signature of the employee or the unambiguous nature of the card as designating Local 124 to be the ex- clusive bargaining agent for that employee. The precise date when these cards were executed is not particularly critical in this matter, although it is noted that most of them in fact were signed, according to the testimony of the cardsigner, on the date indicated on the card and this occurred in late August or early September. The date a card is signed is important to establish when majority status is reached and to ensure a contem- poraneous designation of representation. Where those factors can be independently established, as here, then whether each card is signed or a date is altered is not significant. While altering dates on authorization cards or any other document is not to be condoned, the mere fact that some of the dates appear to have been is not of material importance. The point is, there is no argument that the individuals who purportedly signed the authorization cards in fact did so and did in fact understand that they were signing an authorization for exclusive representa- tion by Local 124. Who altered the date or under what circumstances is not known. It would therefore be inap- propriate to deny an employee his designation of the Union based on the fact of such alteration-especially if the date is not particularly material. I therefore conclude that by at least 24 September a majority of the 45 or 46 employees in the appropriate bargaining unit had designated Local 124 as their bar- gaining agent. Finally, the unfair labor practices here are sufficiently egregious to support a bargaining order. Not only did Vitello engage in interrogation and threats at the outset of the organizational campaign, he undertook to rid him- self of the entire bargaining unit. I therefore conclude that a bargaining Order is appropriate. NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). The Order should be retroactive to 24 September, the first date it is clear that Local 124 had majority status. Trading Port, 219 NLRB 298 (1975). [Recommended Order omitted from publication.] 2 See generally Isis Plumbing Co., 138 NLRB 716 (1962). Richard M Whiteman, Esq., for the General Counsel. David E. Jerome, Esq., of Northville, Michigan, for Re- spondent Capitol Transit, Inc. Charles Garavaglia, of Milford, Michigan, for Respond- ent Transcontinental Leasing, Inc. James Ball, of Dearborn Heights, Michigan, for the Charging Party. Lawrence McHenry, of Melvindale, Michigan, for the Party in Interest. SUPPLEMENTAL DECISION. Preliminary Statement JAMES L. ROSE, Administrative Law Judge. On 18 September 1987, the Board remanded the subject case to me for the purpose of making a credibility resolution concerning the testimony of Charles Garavaglia, a labor consultant who represents Respondent Transcontinental Leasing, Inc. (Transcontinental). The Board concluded that: (A) determination regarding the credibility of this testimony is necessary to resolving the issue of whether Respondent Capitol's decision to change from employee drivers to lease drivers occurred before the organizational drive began. Upon remand, the Judge is to make a credibility fording regarding Garavaglia's testimony. A. Brief Summary of the Facts and Analysis As more fully detailed in my initial decision, for a number of years Teamsters Local 124 (the Union) through then-president William Klann had attempted to get Respondent Capitol Transit, Inc. (Capitol) to sign a recognition agreement. To this end, occasionally Klann would meet with the president of Capitol, Joseph Vitel- lo, who would refuse to grant recognition for a number of reasons, which are immaterial to the issues in this case. The most recent such attempt before the events in this matter occurred in early 1986. Charles Garavaglia testified that beginning in July 1986 he had three meetings with Vitello, the ultimate purpose of which was to convince Vitello that he should use the services of Respondent Transcontinental, a com- pany engaged in the business of furnishing employees to employers such as Capitol. According to Garavaglia, the first meeting was 17 July and involved the subject of Garavaglia becoming a labor relations consultant for Capitol. The second was 25 July and focused on the at- tempt by representatives of Transcontinental to convince Vitello to change his method of operations and use their service. The third was 29 August when an agreement be- tween them was reached. It was executed on 2 Septem- ber. According to Garavaglia, on July 25 Vitello indicated that he was interested but did have four areas of con- cern, one of which involved insurance and another plac- ing his current employees with Transcontinental so that they could continue to do his work. Garavaglia testified that he said he would look into these matters and specifi- cally would contact the Union that represented the em- ployees at Transcontinental (United Labor Associates International) to determine whether or not it would be permissible, in the event that Capitol and Transcontinen- 786 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tal signed an agreement, for the then employees of Cap- itol to be offered employment with Transcontinental to work at Capitol. Vitello testified to four meetings with Garavaglia. The first was in early July. The second was in late July at which Rogers of Transcontinental was also present and explained how Transcontinental worked . Then, accord- ing to Vitello, there was a third meeting, also with Rogers and Garavaglia, in early August at which time Vitello told Rogers "that I would be interested in going with his company on a couple of conditions." In late August Vitello met again with Garavaglia and was told those conditions (insurance and hiring of his drivers) could be met and on 2 September the contract was signed. Garavaglia testified to three meetings, omitting the one in early August. The substance of the late July and early August meetings testified to by Vitello occurred in one late July meeting according to Garavaglia . Though there is a conflict between the Respondent's principal wit- nesses concerning how many times they met, their testi- mony about what they discussed is similar. In essence, Vitello said he would be interested if two conditions were met. He was not informed that those conditions could be satisfied until late August . Neither he nor Garavaglia testified that they had a meeting of the minds prior to the time the lease was signed. At best, both Vitello and Garavaglia testified that Vitello was conditionally interested. There is nothing in Garavaglia's testimony nor in the testimony of Vitello that would indicate that in late July Transcontinental and Capitol had any kind of under- standing that Capitol would use the services of Trans- continental. There is no indication in Garavaglia's testi- mony, or that of Vitello, that Vitello had made a deci- sion then, even tentatively, to change his method of op- erations. William Klann testified that he met with Vitello on 13 August and presented him with recognition agreement which Vitello stated he would submit to his lawyer. Ac- cording to Mann's testimony, on cross-examination: Q. Did he [Vitello] ask you whether you had au- thorization cards? A. Yes. Q. What did you tell him? A. I said that that's in the process. I then-the people have been talking to each other and there is cards out yes. Vitello testified about this meeting . He did not deny that he asked Klann about cards and Klann had stated that the Union was in the process of getting authoriza- tion cards signed. Garavaglia and Vitello then met on 29 August and reached an agreement in which Capitol would use Trans- continental , and they signed a lease on 2 September to be effective 15 September. Based on the generally undisputed and credible evi- dence of record, and crediting Garavaglia, I conclude that Vitello did not make a decision to change his method of operations until at least 29 August 1986. There is nothing in Vitello's testimony, or other credi- ble evidence, to suggest that he had made a decision prior to that date. While it appears to be the case that Vitello was contemplating a change in operations prior to 29 August, he had not yet made a decision. It is also undisputed that by at least 13 August Vitello knew that his employees were engaged in an organiza- tional campaign on behalf of the Union. Klann so testi- fied Vitello did not refute this testimony. Further, had Vitello in fact decided to change his method of operations before 13 August, it seems reasona- ble he would have told Klann . But at a minimum, he would probably not have engaged in the 8(a)(1) conduct. Although the dates of Vitello 's interrogation of em- ployees are not precisely set, the credible evidence shows that there were interrogations and other acts vio- lative of Section 8(a)(1), which began occurring in late August. I do not find it particularly unreasonable that the employees' memory of when particular acts of inter- rogation took place lack mathematic precision. The gen- eral timeframe of late August is sufficient and is corrobo- rative of the undenied testimony of Klann that he had a meeting with Vitello on 13 August at which he stated that the employees were engaged in organizational activ- ity. I therefore reaffirm my conclusion, based on all the credible evidence of record, that in fact Vitello knew of the organizational campaign among his employees prior to the time that he made the decision to change his method of operation by terminating the entire bargaining unit and executing an employee lease agreement with Transcontinental. B. The Credibility of Garavaglia On reviewing the record and my trial notes, I find no basis to discredit Garavaglia. His testimony appears in- ternally consistent and not at material variance with others whom I do credit. While his demeanor was not particularly positive, neither did it show untrustworthi- ness. Absent a basis for discrediting one who has taken an oath, I conclude that his testimony should be cred- ited, at least where unrefuted. I generally credit his fac- tual version of the meetings to which he testified. How- ever, his interpretation of those facts I consider argument by an interested representative of one of the parties. In short, his testimony of what was said at his meetings with Vitello and when they met is credited. His opinion that Vitello decided in July to use Transcontinental is not. Garavaglia's opinion is not supported by the facts to which he or Vitello testified. Thus, though I credit Garavaglia's testimony, I never- theless conclude that Vitello did not reach a decision to change his operation until after he learned of the organi- zational campaign. That he and Garavaglia may have had discussions along these lines prior to the time he learned of the organizational activity does not make lawful his otherwise unlawful activities. The only testimony suggesting a contrary fording is in Garavaglia's version of the 25 July meeting. Present were Garavaglia, Vitello, Rogers, and Vitello's son. After discussion of how the personnel leasing process CAPITOL TRANSIT 787 would work, its value and Roger's experience in the trucking industry , Garavaglia testified: And Mr. Rogers gave him [Vitello] the information. He accepted that information and said he would go with a program like that, subject to-I think it re- solved [sic] around four issues . One was, there was an issue over his insurance. Something about he was a self-insured insurant, or something that he had to pay the total amount of the insurance . I don't know the exact details. And something about Mr. Rogers had a premium policy with Firemans Fund, and that they matched the benefits . They looked-Fire- mans Fund looked better and cheaper . He wanted to make sure, so he wanted some proof from either an actuary, or somebody from Firemans Fund, or something to say that the insurance is better. There was an issue over the people that he had presently employed with him. Would they be given protec- tion to work, I think he said at Capitol Transit? There was an issue over if the insurance-if he went along with the program would it pick it up immediately? If his stopped today would theirs pick up immediately? Did he-in the final one did he have the ability to have enough extra people if he needed a surge of people? And that was the basis. While this testimony of Garavaglia seems to indicate that Vitello was seriously considering changing the method of his operation, it is insufficient to conclude that in fact Vitello had made up his mind or had determined at that time to enter into an employee leasing arrange- ment. I conclude rather that as of 25 July those talks were still in a preliminary stage subject to resolution of the issues Vitello raised and that agreement was not immi- nent. This is established by the fact that after the 25 July meeting, Transcontinental and Capitol had no further contact until 29 August . I credit Garavaglia over Vitello and conclude there was no early August meeting . It does not seem to have been in Garavaglia's interest to ignore such a meeting, had it in fact occurred. However, it would seem to be in Vitello's interest to have had yet one more meeting prior to any proved union activity. While the number of meetings is not so important as what was said, that these two principal actors have such different memories of how often they met, suggests that the meetings themselves were not considered too impor- tant. This in turn implies that nothing of great substance occurred-certainly not something so important as reaching an agreement. Although it is possible to conclude from the words "he would go with a program like that" that Vitello had made up his mind, such words just as reasonably merely convey interest. Further, it is clear that these are Gara- vaglia's words and do not purport to be a quote from Vi- tello. Vitello did not testify that he had made up his mind or told Garavaglia that he had. To interpret Gara- vaglia's testimony in such a way as to conclude that Vi- tello had agreed about 25 July to enter into the employee lease arrangement would be to give determinative signifi- cance to Garavaglia's choice of words as a witness- words that do not even purport to be those he remem- bered Vitello having uttered at the time. I do not believe that the Section 7 rights of 45 employees can be set on such a questionable foundation. Counsel for the General Counsel argues that Vitello and Garavaglia should be discredited and I should find there were no meetings between them until late August-after the organizational campaign became known. Though somewhat vague their testimony of a late July meeting tends to be corroborated by Lawrence McHenry, a representative for United Labor Associates International. McHenry testified to an early August dis- cussion with the president of ULAI, the subject of which was their earlier meeting with Garavaglia about giving former Capitol employees preference to be hired by Transcontinental. Such supports Garavaglia's testimony that he met with them on 31 July. Other witnesses to this discussion between McHenry and Donald Deters fixed no date. Klann, who McHenry testified was present, denied the substance of McHenry's testimony. Though crediting Klann could serve to discredit McHenry and therefore Garavaglia, Klann's testimony is not sufficient- ly definitive for such a conclusion. I credit McHenry. While I do not discredit Garavaglia, neither do I con- clude that he even attempted to testify factually that Vi- tello had decided to enter into the leasing agreement as of 25 July. From a totality of the record, I conclude that Vitello did not decide to enter into the employee leasing ar- rangement until after he had and learned of the employ- ees' organizational campaign. Further, given the substan- tial 8(a)(1) activity engaged in by Vitello after this, I conclude that his ultimate decision to change his oper- ation was motivated by the employees' union activity; and the Respondent brought forth insufficient evidence that he would have changed even absent the union activ- ity. I therefore reaffirm my conclusion that by executing the lease agreement with Transcontinental and terminat- ing all the bargaining unit employees, Capitol Transit violated Section 8(a)(3) of the Act. I further reaffirm and adopt the other findings and conclusions and recommend entry of the Order set forth in my initial decision.