D & S Leasing, Inc.; Central Transport, Inc. And Central Cartage Co.

658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD D & S Leasing, Inc.; Central Transport, Inc. and Central Cartage Company and Archer Bailey, III and Teamsters Local Union No. 964, affili- ated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, AFL-CI0. 1 Cases 8-CA-19212 and 8-CA-19282 August 31, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND DEVANEY On August 31, 1987, Administrative Law Judge Donald R Holley issued the attached decision The Respondent Central2 filed exceptions and a sup- porting bnef The General Counsel filed cross-ex- ceptions, a brief in support of cross-exceptions, and an answering brief Local 964 also filed an answer- mg bnef to the Respondent's exceptions, and the Respondent filed an answering bnef to the General Counsel's cross-exceptions 3 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, cross-exceptions, and bnefs and has decided to affirm the judge's rul- ings, findings, and conclusions as modified, and to adopt the recommended Order, as modified and set forth in full below 4 The complaint alleges 8(a)(1), (3), and (5) viola- tions stemming from the Respondent's cancellation of its contract with D & S Leasing, Inc (D & S), a personnel leasing firm, and the subsequent layoff and refusal to recall employees jointly employed by the Respondent and D & S at the Respondent's Cleveland terminal At all relevant times prior to and including the events at issue, Cartage and Transport were wholly owned subsidiaries of Centra and all three Corporations were headquar- tered in the same building in Sterling Heights, On November 1, 1987, the Teamsters International Umon was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change 2 "Central" denotes Central Transport, Central Cartage, and Centra, Inc collectively "Transport" and "Cartage" denote Central Transport and Central Cartage respectively The "Respondent" refers collectively to the named Respondents found to be a smgle employer 3 The Respondent has requested oral argument The request is denied as the record, exceptions, and bnefs adequately present the issues and the positions of the parties 4 The General Counsel excepts to the judge's failure to grant a visita- tonal clause authonzing the Board, for compliance purposes, to obtain discovery from the Respondent under the Federal Rules of Civil Proce- dure under the supervision of the United States court of appeals enforc- ing this Order Under the circumstances of this case we find that such a clause is unwarranted Accordingly, we deny the General Counsel's re- quest that a visitatonal clause be Included in the Order See Cherokee Marine Terminal, 287 NLRB 1080 (1988) Michigan T S Maroun and his four children owned all the Centra stock The composition of the board of directors of each Corporation was essen- tially the same, except that Robert Goodheart, the president of Transport, sat only on that board of directors and Larry Thomas, the president of Cart- age, sat only on its board of directors Ron Leach was executive vice president of both Transport and Cartage and Charles Garavaglia was vice president for labor relations for both Transport and Cartage before his dismissal in Apnl 1986 At some point not specified m the record, Garavaglia hired Rich- ard Silverwood and Hank Bichard to handle labor relations for Cartage and Transport, respectively We agree with the judge's conclusion that at all times relevant Centra, Transport, and Cartage con- stituted a single employer (Central) Transport was an over-the-road hauler, and Cart- age performed local breakdown and delivery work at its Cleveland terminal, the only Cartage facility at issue here Transport's dnvers delivered goods to Cartage's Cleveland facility, where Cartage's dockworkers broke down the shipments and con- solidated them for local delivery The Cartage dockworkers at the Cleveland facility were repre- sented by Truck Dnvers Union Local 407, affili- ated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, AFL-CIO (Teamsters Local 407, Party in In- terest) under the Teamsters National Master Freight Agreement (NMFA) In mid-1982, Transport won an automotive con- solidation contract from General Motors Corpora- tion The consolidation work was to be done in Cleveland Central decided that Transport should perform the consolidation work and arranged for Transport to lease a dock at Cartage's facility for that purpose Although Cartage employees usually performed the breakdown and consolidation work at Cartage's docks, Central decided to hire person- nel through D & S to perform Transport's work In early 1982, George Rogers, the president of D & S, signed a contract to supply drivers to Trans- port The drivers were represented by Teamsters Local 507 The D & S contract with Local 507 was not under the NMFA but was a "white paper" or "paperback" agreement Under the terms of the contract, D & S employees were paid at a lower rate than they would have been under the NMFA When Transport won the contract for the General Motors work and Central contracted with D & S to supply the personnel to perform the dock work, an addendum was added to the "white paper" 299 NLRB No 97 D & S LEASING 659 agreement between D & S and Local 507 to in- clude the dockworkers under its coverage 5 Although D & S supplied the personnel to work at the Transport dock, it is clear from the record that Cartage supervisors directed the D & S per- sonnel in their day-to-day activities Bruce Morri- son, Cartage's terminal manager, Jim Berquist, Car- tage's operations manager, and Cartage's Dock Foremen Wayne Gentry and John Smith gave D & S employees their work assignments, scheduled their working hours, approved requests for time off, and assigned men to train newly hired employ- ees In addition, Mornson testified that his approv- al was necessary before D & S could hire individ- uals to work at the dock and that he sometimes hired employees and placed them on the D & S payroll without consulting Rogers Morrison, Ber- quist, Gentry, and Smith, whom the judge found to be supervisors and agents of Transport and Cart- age, also had the authonty to discipline and termi- nate D & S personnel Hence, we agree with the judge that at all times relevant Central personnel controlled the day-to-day activities of the D & S employees, and that at all times relevant Central and D & S were the joint employers of the dock- men who performed consolidation work for Trans- port at the Cleveland facility and who were repre- sented by Local 964 In early 1986, Central decided to terminate its relationship with D & S and to have its own em- ployees perform the consolidation work Pursuant to this decision, Joe Goryl, a Central official, in- structed Morrison to make up a list of D & S per- sonnel whom Central should hire when it took over the Cleveland dock Morrison testified that on the basis of ins own judgment, and without con- sulting the supervisors involved in the daily oper- ations at the dock, he made up a list of 17 "super- stars" and submitted it to Goryl In a memo dated May 8, 1986, Goryl informed Thomas, Cartage's president, that Central would keep approximately 15 D & S personnel 6 and would hire 30 new em- ployees "anonymously" Following Goryl's instructions, Morrison placed an ad for new employees in a local newspaper on May 15, 1986 The ad specified only that new em- 5 In late 1982, Local 964 replaced Local 507 as the representative of these employees The D & S agreement with Local 964 ran from 1982 to 1985 and incorporated the same terms as D & S's agreement with Local 507 In 1985, D & S and Teamsters Local 964 executed a new agreement effective June 1, 1985, through March 31, 1988 Unhke the prior agree- ment, the new contract also covered D & S employees working in juris- dictions other than that of Local 964 The employees represented by those other locals are not at Issue here 6 When Berquist returned from vacation the following week, he added five names to Momson's list Central officials added an additional four Consequently, when Central terminated its contract with D & S on May 31,1986, Central retained 26 of the D & S personnel ployees would work for Cartage When the presi- dent of Local 964, Oswald Kelm, called Morrison to find out what was going on, Morrison told him that he did not know about the ad and had nothing to do with it On May 16, 1986, Kelm sent Mom- son a registered letter requesting clarification of the ad This letter was never answered Central treated all the employees hired as of June 2, regardless of whether they had previously worked for D & S, as new employees who came under the NMFA contract between Cartage and Local 407, mcludmg its wage terms 7 Under the terms of that agreement, the pay of newly hired employees was prorated to that of employees making the full amount of wages established under the NMFA contract Thus, new employees were paid 70 percent of the contract wage their first year, 80 percent their second year, etc Conse- quently, former D & S personnel, who had worked for Transport under the "white paper" agreement with Local 964 on May 31, were paid approximate- ly $2 less an hour when they returned to work on June 2 as "new" Cartage employees working under the NMFA contract with Local 407 In addition, these former D & S employees lost their seniority and the health and welfare benefits that they had accrued under the "white paper" agreement We agree with the judge that Central terminated its contract with D & S, thereby causing D & S to lay off 33 employees, and that Central refused to hire these employees as part of a plan to escape from its obligations under the collective-bargaining agreement We also agree with the judge that by these actions Central engaged in conduct that was inherently destructive of these employees' rights guaranteed under Section 7 of the Act In addition, for the reasons explained below, we also find that Central's actions m this regard were motivated by antiunion animus under the analysis set out in Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cif 1981), cert denied 455 U S 989 (1982) Because we fmd that Central's decision to terminate the unit employees was motivated by an- tiunion animus, we conclude that Central was obit- 7 Several former D & S employees testified that they first learned that Cartage was hiring dockmen by reading Cartage's newspaper advertise- ment Although there were "rumours flying around," these former D & S employees testified further that although they were requested by Central officials in late May to file applications and were given interviews of ap- proximately 3-5 minutes' duration, they did not learn until May 31 at the earliest that D & S's contract had been canceled and that they would be terminated For example, former D & S employee Towson testified with- out contradiction that Koubeck, D & S's vice president, Informed him on Saturday, May 31, that he no longer worked for D & S and that he should not report to work on Monday unless Central notified him to do so On Sunday, June 1, Berquist called Towson and told him to report to work on Monday, June 2 Only after he reported on Monday did Towson learn that Central Intended to treat hun as a new employee and that he had lost his seniority 660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD gated to bargain with the Umon over its decision to terminate its contract with D & S and the effects of that decision 8 Thus, we find that Central, as the Joint employer of the D & S employees, violated Section 8(a)(5) and (1) of the Act by failing to bar- gain with Local 964 over its decision to terminate its contract with D & S and the effects of that de- cision 9 In addition, we agree with the judge that Central violated Section 8(a)(5) and (1) by failing to provide Local 964 with notice of its decision and to provide information requested by Kelm, Local 964's president 10 We also agree with the judge that, in the circum- stances of this case, the Respondent has an obliga- tion to recognize and bargain with Local 964 and to embody the results of that bargaining in a con- tract if agreement is reached In this regard, we have found that Central in the form of its single employer Transport was the joint employer of the D & S employees When Transport terminated its contract with D & S, these employees were termi- nated but a majonty of them were then "hired" 2 days later by Cartage which we have found is also a smgle employer with Central 11 Indeed, there was no bona fide cessation of operations at the Cartage termmal and no real break in the bargain- ing relationship between Central and Local 964 See First National Maintenance Corp v NLRB, 452 U S 666, 682, 687-688 (1981), Strawsine Mfg Co, 280 NLRB 553, 553 (1986), and Hydro Logistics, Inc. 287 NLRB 602, 602 (1987) 9 We agree with the judge that the Respondent, as the joint employer of the D & S personnel, "exposed Itself to the normal joint-employer bar- gaining obligations" We also agree with the judge that the Board has "uniformly held" that a joint employer Is obligated to bargain with the union over the decision and effects of displacing unit employees See Sun-Maid Growers of California, 239 NLRB 346 (1978), enfd 618 F 2d 56 (9th Cir 1980), and W W Grainger Inc 286 NLRB 94 (1987), enf denied on other grounds 860 F 2d 244 (7th Or 1988) Inexplicably, how- ever, the judge failed to find that the Respondent violated Sec 8(aX5) and (1) of the Act through its failure to bargain with Local 964 over its decision to terminate its contract with D & S Consequently, the judge limited his recommended Order to a provision that the Respondent bar- gain with Local 964 only over the effects of its decision to terminate its contract with D & S The judge has, however, made all of the factual findings that would establish the legal conclusion concerning a decision bargaining violation, and his reasoning concerning the Respondent's bar- gaining obligation makes It appear that the omission of that formal con- clusion was inadvertent We shall therefore include in our Order a provi- sion that the Respondent bargain with Local 964 over its decision to ter- minate its contract with D & S In the absence of exceptions, Member Cracraft would not find this ad- ditional 8(aX5) violation iO In its exceptions, the Respondent asserts that Local 964 waived its nght to bargain about the transition from D & S to a Cartage-employed work force by its failure timely to request negotiations We agree with the judge that the Respondent ignored Local 964's timely requests for in- formation and that the Respondent failed to give Local 964 adequate notice of its decision Particularly because Local 964 was presented with a fait accompli, we find that it did not waive its bargaining rights " In this regard, the judge stated "that at or about the same time" that Cartage employed the 26 former D & S personnel, It hired 32 new non-D & S employees G C Exh 39, however, makes clear that Cartage had lured only 24 non-D & S employees as of June 2, the date it took over the Transport/D & S work Consequently, the record clearly establishes that Cartage commenced work on June 2 with a majority of former D & S employees in the new unit Hence, although D & S was removed from the scene, Central remained the Employer of a majon- ty of the unit employees who were essentially doing the same job in the same location under the same supervision and ultimately for the same cor- porate entity Accordingly, Central was not free to set new terms and conditions of employment with- out bargaining with Local 964 but had a duty to maintain the status quo until it either reached agreement with Local 964 or bargained to im- passe 12 The complaint further alleges that Central violat- ed Section 8(a)(3) and (1) of the Act by laying off and/or discharging 33 named employees and by failing and refusing to employ and/or recall those employees because Central believed that they had or would support Local 964 Although finding no evidence of antiunion animus, the judge found that Central caused D & S to terminate the Local 964- represented employees and transferred the unit work to Cartage as part of a plan to avoid its obli- gations under the 1985-1988 D & S collective-bar- gaining agreement that it incurred by virtue of Central's status as D & S's joint employer of the Local 964-represented employees The judge con- cluded that Central's actions m this regard, its ter- mination of the Local 964-represented employees and its refusal to rehire some of them, were "inher- ently destructive" of the employees' Section 7 nghts within the meamng of NLRB v Great Dane Trailers, 388 U S 26, 33-34 (1967), and thus violat- ed Section 8(a)(3) and (1) of the Act We agree In Great Dane Trailers, the Supreme Court stated that some conduct is so "inherently destructive of employee interests" that it may be deemed proscnbed without need for proof of an underlying im- proper motive [Such conduct] carries with it "unavoidable consequences which the employer not only foresaw but which he must have intended" and thus bears "its own mdicia of intent" The Court further stated that 12 See Sterling Processing Corp. 291 NLRB 208 (1988), and Morton De- velopment Corp. 299 NLRB 649 Inasmuch as Central was not a signatory to D & S's contract with Local 964 and the record does not otherwise establish that Central should be bound to that agreement, in the circum- stances of this case we find that Central is not bound to the contract as such As stated above, however, it is bound to maintain the status quo as reflected, Inter aha, in the contract with Local 964 until it bargains to agreement or impasse The Respondent excepts to the portion of the judge's recommended Order prohibiting the Respondent from altering the terms and conditions of employment without express agreement of the Union In this regard, the recommended Order is inconsistent with our conclusion that the Re- spondent must maintain the status quo only until It bargains to agreement or Impasse We shall Include an appropriate provision in our Order D & S LEASING 661 if it can reasonably be concluded that the employer's discriminatory conduct was "inher- ently destructive" of important employee rights, no proof of antmmon motivation is needed and the Board can find an unfair labor practice even if the employer introduces evi- dence that the conduct was motivated by busi- ness considerations With regard to what conduct may be characterized as "inherently destructive," we have described such conduct as the type "which would inevitably hinder future bargaining or create visible and con- tinuing obstacles to the future exercise of employee rights" Swift Independent Corp, 289 NLRB 423, 427 (1988), remanded sub nom Esmark, Inc. v NLRB, 887 F 2d 739 (7th Cir 1989) Here, in furtherance of its plan to reduce labor costs, Central not only caused D & S to terminate these employees but at the same time caused Trans- port, D & S's Joint employer, to terminate these same employees as part of its plan to transfer the work to Cartage in order to bring the unit work under the NMFA administered by Local 407 As noted, supra, new hires received only 70 percent of the full wage rate under the NMFA Thus, under the guise of hiring as new Cartage employees those terminated by Transport, Central was able to pay those employees $2 less an hour on Monday, June 2, than they earned on the previous Saturday, May 31 In this regard, we find that Central's conduct in these circumstances is analogous to that of an em- ployer that carries out a sham closing of a facility in order to reopen under new terms and conditions of employment more favorable to itself By "clos- ing" (with respect to unit work) Transport on Sat- urday, May 31, and "opening" Cartage on Monday, June 2, Central was able to employ as "new hires" the former Local 964-represented em- ployees at approximately $2 less an hour than they were making on May 31 when they were repre- sented by Local 964 Within the context of sham closings, we have stated that the closing of the plants, the termination of the employees, and the rehiring of those employees "as new employees of the corporation" under new terms and conditions of employment must be considered conduct that would naturally hinder collective bargain- ing and as conduct inherently destructive of employee rights [Swift Independent Corp, supra at 428] We find this language no less applicable in the present context where a single employer, Central, transferred work from one of its companies to an- other with the sole purpose of ridding itself of one bargaining agent, Local 964, and replacing it with another, Local 407, which represented employees under a contract whose terms were more favorable to Central Accordingly, we conclude that by such action Central engaged in conduct "inherently de- structive" of employees' rights in violation of Sec- tion 8(a)(3) and (1) of the Act 13 We further find, contrary to the judge, that there is sufficient evidence in the record to support a conclusion that Central's actions in laying off and refusing to recall unit employees were motivated by antiunion animus in fact and were thus violative of Section 8(a)(3) and (1) under a Wright Line anal- ysis 14 In Wright Line, supra, 251 NLRB 1083, the Board established a two-part causation test in cases alleging violations of Section 8(a)(3) turning on em- ployer motivation Under the Wright Line analysis, the General Counsel has the initial burden of estab- lishing a prima facie showing that protected activi- ty was a "motivating factor" in the employer's de- cision Once the General Counsel has met this burden, the burden shifts to the employer to dem- onstrate that it would have taken the same action even in the absence of the protected activity Applying the Wright Line analysis to the facts of the present case, we find that the General Counsel has met the burden of establishing a prima facie showing that Central laid off the Local 964-repre- sented employees and refused to recall some of them as part of an attempt to evade its obligations under the more costly collective-bargaining agree- ment between D & S and Local 964, freeing itself from its bargaining obligation with Local 964, and replacing Local 964 with Local 407 as the repre- sentative of the employees performing the unit work formerly done by Local 964-represented em- ployees In this regard, the inference is inescapable that the Respondent proceeded with its plan under the apprehension that its failure to retain all the 13 Having found that the Respondent engaged in conduct Inherently destructive of employees' Sec 7 rights, under Great Dane the burden shifts to the Respondent to establish that It was motivated by "legitimate objectives" 388 US at 34 We find that the Respondent has faded to satisfy its burden See the discussion in the last two paragraphs of text, infra Because, as explained below, the record supports a finding of actual an- tiunion motive in the termination of the D & S employees and their sub- sequent treatment by Central (refusing to rehire some of them and hiring others as "new" employees), Chairman Stephens finds It unnecessary to make an "Inherently destructive" finding pursuant to the analysis set out in Great Dane, supra at 33-34 See his separate position in Swift Independ- ent Corp , supra, 431 fn 19 14 "It is, of course, well established that a discharge may be for a good cause or bad cause, or no cause at all except that a discharge is unlawful when the real motivating purpose is contrary to the prohibitions of Sec- tion 8(a)(1) or (3) of the Act" W W Grainger, Inc , supra at 116 662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD unit employees and its rehiring of some of the unit employees by a different entity, somehow entitled it to abandon its relationship with Local 964 in favor of Local 407 In reaching this determination we note that Silverwood, the labor representative for Cartage, sought out Teamsters officials in May 1986, only 2 weeks before the transfer and layoff were to take effect, and sought assurances from them that Cartage was not obligated to take the laid-off employees when it terminated its relation- ship with D & S In addition, Central attempted to circumvent the bargaining process through its ef- forts to keep its plans secret from Local 964 and its refusal to supply the information requested pertain- mg to the transfer 15 Further, and perhaps most significantly, the Respondent has failed to provide specific reasons for its selection of any of the par- ticular 33 Local 964-represented employees who were laid off '6 Finally, with regard to the General Counsel's pnma facie case, although we agree with the judge that Central violated Section 8(a)(1) through state- ments made by Supervisors Wayne Gentry and Joe Imondi to employee Meyers," we also find, con- trary to the judge, that these statements provide further evidence of the Respondent's motive for laying off former D & S employees Although the judge emphasized the fact that neither Gentry nor Imondi participated in the decision to lay off the unit employees, we note that both Gentry and Imondi had worked for Cartage for some time and were in a position to know the reasons for Cen- tral's action although they did not participate in the hiring process itself 18 Consequently, although Gentry and Imondi may not have been involved in the decision, they were in a position, at the least, to note the lack of a legitimate reason for the Re- spondent's hinng practices In these circumstances, lb Cedar Falls Health Care Center, 276 NLRB 1300, 1302 (1985) le Terminal Manager Morrison testified that he evaluated each em- ployee "In his head" He did not consult the supervisors who had daily contact with the men and could not articulate any definite standard by which employees were evaluated for selection He stated only that he wanted to keep the "superstars" Further, the record shows no difference between the employees retained and those laid off with regard to repn- mands or disciplinary actions The inability to articulate a definite stand- ard by which employees were evaluated permits the Inference that C.en- tral's true motive in the hiring process was discriminatory See Wright Line, supra at fn 12 See also Lemay Caring Center, 280 NLRB 60, 70 (1986) 17 According to Operations Bulk Manager Gentry's credited testimo- ny, on June 1, 1986, he told Union Committeeman Meyers that he had always been satisfied with his work and could not understand why he was not coming back and that the only reason he could think of was Meyers' association with the Union On the same day, according to Meyers' credited testimony, Dock Foreman Imonch told Meyers that he and Union Steward Archer Bailey were not coming back because they were with the Union ' 8 Gentry has been operations bulk manager for Central since 1985 !monde commenced work for Central on June 25, 1985 He performed "clerical duties" pnor to his promotion to dock foreman when Central took over the dock on June 2, 1986 we conclude that these statements, although not dispositive, have some relevance and are entitled to some weight in assessing Central's state of mind with respect to the discharge of employees Meyers and Bailey 15 Central argues in rebuttal to the pnma facie case that its decision to lay off the employees was a part of its plan to terminate its contract with D & S pn- manly because of its dissatisfaction with D & S's performance and because of what it contends was the International's insistence that Central not con- tract with leasing companies As evidence of the former, Central mtroduced into evidence the letter of January 20, 1986, from Cartage's president, Thomas, to D & S's president, Rogers, which out- lined Central's dissatisfaction with D & S's per- formance and threatened termination of the con- tract unless D & S's performance improved With regard to the International's views on leasing, union official Brown testified that in a spring 1986 meeting with Central representatives in Washing- ton, D C, officials of the Teamsters International expressed their dissatisfaction with leasing compa- nies We find, however, that these proffered reasons are not sufficient to overcome the evidence pre- sented by the General Counsel We note that Rogers, D & S's president, testified without contra- diction that after receiving Central's letter of Janu- ary 20, Koubeck, D & S's vice president, took steps to remedy the problems outlmed by Central and there is no evidence that Central was further dissatisfied with D & S Second, Garavagha testi- fied that at a meeting of Central management offi- cials in February or March 1986, labor costs was the sole issue discussed in making the decision to terminate the D & S contract As to the Interna- tional's dissatisfaction with employee leasing com- panies, we note first that the International officials expressed their dissatisfaction in general terms They did not specifically urge Central to terminate its contract with D & S but spoke generally of companies that used leasing companies as a way to get around union standards In this regard, we note that Silverwood testified that the Teamsters did not have a problem with Central's use of D & S be- cause D & S, unlike most employee leasing compa- nies, was unionized We also note that Central con- tinued to contract with employee leasing compa- nies after it terminated its contract with D & S Thus, we find that Central has failed to rebut the General Counsel's prima facie case and that Cen- tral's actions in laying off and refusing to recall 19 Thnjovay Supermarket, 276 NLRB 1450, 1463 (1985) See also Burger King Corp, 279 NLRB 227, 239 (1986) -:- D & S LEASING 663 Local 964-represented employees were motivated by antiunion animus We, therefore, conclude that the Respondent violated Section 8(a)(3) and (1) of the Act ORDER The National Labor Relations Board orders that the Respondents, Centra, Inc , Central Transport, Inc , and Central Cartage Company, a single em- ployer, Sterling Heights, Michigan, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Refusing to bargain collectively in good faith with Teamsters Local Union No 964, International Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, AFL—CIO by refus- ing to recognize and bargain with the Union in the appropriate unit and by refusing to bargain with the Union concerning its decision to cancel its con- tract with D & S Leasing, Inc , and concerning the effects of the transfer of automotive consolidation work at its Cleveland, Ohio terminal from D & S Leasing, Inc to Central Cartage Company (b) Altering the wages, hours, or other condi- tions of employment of employees in the appropri- ate bargaining unit without bargaining with the above-named Union (c) Refusing to supply Teamsters Local Union No 964 requested information, which is necessary for and relevant to its performance as the exclusive bargaining representative of the unit employees (d) Discouraging membership in Teamsters Local Union No 964 by laying off and refusing to recall employees pursuant to a plan to avoid the obligations of a subsisting collective-bargaining agreement (e) Coercing employees by informing them they were not hired because they held positions with Teamsters Local Union No 964 (f) In any like or related manner interfering with, restraining, 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) Recognize and, on request, bargain collec- tively with the above-named Union as the exclusive representative of the employees in the following appropriate unit and, if agreement is reached, embody it in a signed written agreement All dockmen and yardmen performing auto- motive consolidation work at 5400 West 137th Street, Cleveland, Ohio, excluding all clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees (b) Bargain collectively, on request, with the Union concerning its decision to cancel its contract with D & S Leasing, Inc and concerning the ef- fects of the transfer of automotive consolidation work at its Cleveland, Ohio terminal from D & S Leasing, Inc to Central Cartage Company (c) Furnish the Union with any and all informa- tion requested by it that is necessary for and rele- vant to its performance as the exclusive bargaining representative of the unit employees (d) Offer the employees named below, who were refused hire by Central Cartage Company as a result of its unlawful action, immediate and full re- instatement to their former jobs or, if such jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or others rights and pnvileges, previously enjoyed, dismissing, if necessary, any employee hired to replace them, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against them in the manner set forth in the remedy section of the judge's decision John Hennessey Donald Gruszezynski Robert Murphy Roger Yeaman Robert Jolluck Kenneth Meyers Greg Henry Nick Kaunch Clark Kinney James Kelly Barry Peters Kenneth Glenn Archer Bailey III Kenneth Ford Daniel Kenyon James Fargo Joseph Starlovic Larry Gardner Robert Poczontek Tom Christine Ron Nougsel James Brewster Robert Grabmski Douglas Turchank Ben Pepera Joe Prince Richard Miller Jack Mullroy Mick Ochal Doug Jedlmsky Bob Banta Bob Elsworth Charles Craig (e) Rescind any departures from terms and con- ditions of employment that existed immediately before the Respondent's transfer of work from Central Transport and D & S Leasing to Central Cartage, retroactively restoring preexisting terms and conditions of employment, including wage rates and benefit plans, and make the employees whole by remitting all wages and benefits that would have been paid absent such unilateral changes from June 2, 1986, until it negotiates in good faith with the Union to agreement or to im- passe, provided, however, that nothing in the order shall authorize or require the withdrawal or elimi- nation of any wage increase unlawfully granted to employees without a request from the Union The remission of wages and benefits shall be computed 664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in the manner prescribed in Ogle Protection Service, 183 NLRB 682 (1970), enfd 444 F 2d 502 (6th Cir 1971), plus interest as prescribed in New Horizons for the Retarded 20 (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 its Cleveland, Ohio facility copies of the attached notice marked "Appendix "21 Copies of the notice, on forms provided by the Regional Director for Region 8, after bemg 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 (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 20283 NLRB 1173 (1987) 21 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" APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the Umted 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 bargain collectively in good faith with Teamsters Local Union No 964, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, AFL-CIO by refusing to recognize and bargain with Teamsters Local 964 in the appropriate unit and by refusing to bargain with Teamsters Local 964 concerning our decision to cancel our contract with D & S Leasing, Inc and concerning the ef- fects of transfer of automotive consolidation work at our Cleveland, Ohio terminal from D & S Leas- ing, Inc to Central Cartage Company WE WILL NOT alter the wages, hours, or other conditions of employment of employees in the ap- propriate bargaining unit, without bargaining with the above-mentioned Union WE WILL NOT refuse to supply Teamsters Local 964 requested information, which is necessary for and relevant to its performance as the exclusive bargaining agent of the bargaining unit employees WE WILL NOT discourage membership in Team- sters Local 964 by laying off and refusing to recall employees pursuant to a plan to avoid the obliga- tions of a subsisting collective-bargaining agree- ment WE WILL NOT coerce employees by informing them they were not hired because they held posi- tions with Teamsters Local 964 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 recogmze and, on request, bargain col- lectively with the above-named Union as the exclu- sive representative of our employees in the appro- pnate unit described below and, if agreement is reached, embody it in a signed written agreement All docicmen and yardmen performing auto- motive consolidation work at 5400 West 137th Street, Cleveland, Ohio, excluding all clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees WE WILL bargain, on request, with Teamsters Local 964 concerning our decision to cancel our contract with D & S Leasing, Inc and concerning the effects of the transfer of automotive consolida- tion work at our Cleveland, Ohio termmal from D & S Leasing, Inc to Central Cartage Company WE WILL furnish the Union with any and all in- formation requested by it and reasonably related to its function as collective-bargaining representative WE WILL offer the employees named below, who were refused hire by Central Cartage Compa- ny as a result of our unlawful action, immediate and full remstatement to their former jobs or, if such jobs no longer exist, to substantially equiva- lent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, dismissing, if necessary, any employee hired to re- place them, and WE WILL make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, plus inter- est John Hennessey Donald Gruszezynski Robert Murphy Roger Yeaman Kenneth Meyers Nick Kaunch James Kelly Kenneth Glenn Kenneth Ford James Fargo Larry Gardner Tom Chnstme James Brewster Douglas Turchank Joe Pnnce Jack Mullroy Doug Jedlmsky Bob Elsworth Inc , Central Transport, Inc , and Central Cartage Com- pany, as joint employers of described employees, had violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act (the Act) Central Transport, Inc (Respondent Transport) and Central Cartage Company (Respondent Cartage) filed timely answer to complaint denying they had engaged m the unfair labor practices alleged in the complaint D & S Leasing, Inc (Respond- ent D & S) chose not to file an answer to the com- plaint 2 This case was heard in Cleveland, Ohio, during the period 23 through 27 March 1987 All parties appeared and were afforded full opportunity to participate Upon the entire record, mcludmg briefs filed by the parties, and from my observation of the demeanor of witnesses who appeared to give testimony, I make the followmg Robert JoHuck Greg Henry Clark Kinney Barry Peters Archer Bailey III Daniel Kenyon Joseph Starlovic Robert Poczontek Ron Nougsel Robert Grabmski Ben Pepera Richard Miller Mick Ochal Bob Banta Charles Craig D & S LEASING 665 WE WILL rescind any departures from terms and conditions of employment that existed immediately before our transfer of work from Central Transport and D & S Leasing to Central Cartage, and WE WILL retroactively restore preexisting terms and conditions of employment, including wages rates and benefit plans, and WE WILL make employees whole by remitting all wages and benefits that would have been paid absent such unilateral changes from June 2, 1986, until we negotiate in good faith with the Union to agreement or impasse, provided, however, that we will not withdraw or eliminate any wage increase unlawfully granted to employees, without a request from the Union CENTRA, INC , CENTRAL TRANSPORT, INC , AND CENTRAL CARTAGE COM- PANY, A SINGLE EMPLOYER Paul C Lund, Esq , for the General Counsel Timothy K Carroll, Esq and Robert L Duty, Esq (Dykema, Gossett, Spencer, Goodnow & Trigg), of De- troit, Michigan, for the Respondent Sorrell Logothetis, Esq (Logothetis & Pence), of Dayton, Ohio, for Local 964 Peter A Joy, Esq , of Cleveland, Ohio, for Local 407 DECISION STATEMENT OF THE CASE DONALD R HOLLEY, Administrative Law Judge Upon an original charge filed in Case 8-CA-19212 on 3 June 1986, 1 by Archer Bailey III, an individual, and an original charge filed in Case 8-CA-19282 on 27 June by Teamsters Local Union No 964, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America (Local 964), the Re- gional Director for Region 8 of the National Labor Rela- tions Board issued order consolidating cases, consolidat- ed complaint, and notice of consolidation hearing on 29 August which alleged, inter aim that D & S Leasing, FINDINGS OF FACT I JURISDICTION Respondent D & S, a Michigan corporation, maintains an office and place of business at 2218 Main Street, Mil- ford, Michigan It is engaged in providing leased em- ployees to trucking industry enterprises, and, in the course and conduct of such business, it annually derives gross revenues m excess of $50,000 from other enter- prises located within the State of Ohio, which are en- gaged m commerce other than on an indirect basis Respondent Transport, a Michigan corporation with its principal place of business located at 34200 Mound Road, Sterling Heights, Michigan, is a common carrier in the interstate and intrastate transportation of freight and commodities It annually derives gross revenues in excess of $500,000 from the transportation of freight and com- modities from the State of Ohio directly to points locat- ed outside the State of Ohio Respondent Cartage, a Michigan corporation with its principal office and place of business at 34200 Mound Road, Sterling Heights, Michigan, maintains other places of business in Ohio, Michigan, and Indiana, including a terminal located at 5400 West 137th Street, Cleveland, Ohio Annually, in the course and conduct of its busi- ness, it provides services valued in excess of $50,000 to other enterprises located within the State of Ohio, in- cluding General Motors Corporation and the Ford Motor Corporation, which are engaged in commerce on other than an indirect basis It is adnutted, and I find, that Respondent D & S, Re- spondent Transport, and Respondent Cartage are em- ployers engaged m commerce within the meaning of Section 2(6) and (7) of the Act II STATUS OF LABOR ORGANIZATIONS It is admitted, and I find, that the following Local Utuons, all affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, are labor organizations within the meaning of Section 2(5) of the Act Teamsters Local Union No 20 2 A11 allegations of the complaint are deemed to be admitted by Re- spondent D & S All dates are 1986 unless otherwise indicated 666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (Local 20), Teamsters Local Union No 118 (Local 118), Teamsters Local Union No 449 (Local 449), Truck Drivers Local Union No 407 (Local 407), and Local 964 III THE ALLEGED UNFAIR LABOR PRACTICES Facts Transport and Cartage are wholly owned subsidiaries of Centra, Inc All three corporations are headquartered at 34200 Mound Road, Sterling Heights, Michigan The Maroun family, specifically T S Maroun, who is the pa- triarch, and his four children, Matty and Matty's three sisters, own all the stock of Centra The board of direc- tors of each corporation is essentially the same, except Robert Goodheart, the president of Transport, sits on only that corporation's board of directors, and Larry Thomas, the president of Cartage, sits on only that cor- poration's board of directors Ron Leach, a nonfamily member, is executive vice president of Transport and Cartage The record further reveals that the foregoing officers of all three corporations have offices in the head- quarters building in Sterling Heights, Michigan 3 Transport is a common carrier which utilizes owner- operators who pull company owned trailers It transports freight and commodities to and from 48 States Cartage operates terminals throughout the Umted States and is engaged primarily in the pickup and delivery within city zones of freight transported over the road by Transport The Central terminal located at 5400 West 137th Street, in Cleveland, Ohio (the Cleveland terminal and/or the Bookpark facility), is the only terminal involved in this proceeding In mid-1982, Transport successfully bid some automo- tive consolidation work with General Motors Corpora- tion The consolidation work was to be performed in Cleveland At the time, Cartage held a lease on property in Cleveland where it maintained a terminal Its terminal employees were represented by Local 407, and it was signatory to the Teamsters National Master Freight Agreement To enable it to perform the consolidation work required by its contract with General Motors, Transport subleased certain facilities at the Cleveland terminal from Cartage 4 Although Cartage normally per- formed dock work and trailer switching such as that needed to accomplish the above-described consolidation work for Transport, Central management decided to obtain employees to accomplish the consolidation work at the Cleveland terminal from D & S, a personnel leas- ing company To that end, Charles Garavaglia, vice president of labor relations for both Transport and Cart- age, and Goodheart met with George Rogers, D & S president and sole owner, to ascertain whether D & S would lease Transport employees for a stated package 3 The complaint was amended during the hearing to allege that Centra, Transport, and Cartage constitute a single employer Counsel for the named Respondents concedes in Br 2 that they may be treated as a single employer in this proceeding Accordingly, I find Centra, Trans- port, and Cartage (Central) is a single employer within the meaning of the Act * Cartage leased the property from GLS Leasco, another wholly owned subsidiary of Central price 5 Garavaglia testified Rogers was informed the em- ployees furnished at the Cleveland facility would have to be represented by a union D & S agreed to furnish the employees In mid-1982, D & S became signatory to a so-called white paper agreement with Teamsters Local 507 6 The agreement covered the employees performing automo- tive consolidation work for Transport at the Cleveland terminal 7 Garavaglia testified he attended the first nego- tiation session leading to consumation of the agreement to explain the economic parameters acceptable to trans- port, and to stress the need for provision for flexible working hours for covered employees because the con- solidation work was to be performed pursuant to Gener- al Motors' "just in time" concept Thereafter, Rogers and Local 507 reached agreement It contained wage rates which were more favorable than those contained in the National Master Freight Agreement, and it contained provisions which afforded D & S flexibility in hours em- ployees worked Garavagha testified a copy of the agree- ment was given to him for review before it was signed After it was executed, Rogers supplied Garavagha, Goodheart, and Transport's payroll office with copies Rogers testified he sought to staff the Cleveland facili- ty by placing ads in Cleveland newspapers and leaving D & S employment applications with Cartage's terminal manager, Bruce Morrison While Rogers would inter- view applicants if he was in Cleveland when they re- sponded to the ads he had placed, he uniformly sent them to Morrison after he talked to them Mornson's ap- proval was necessary before they were hired In many, if not most, instances Morrison interviewed applicants in Rogers' absence, hired them, and caused them to com- plete a D & S employment application which was then sent to D & S's headquarters in Milford, Michigan, so they could be put on the D & S payroll Neither Transport nor D & S had any personnel at the Cleveland terminal who could provide supervision of the D & S employees performing the consolidation work at the inception of the arrangement It is uncontradicted that Cartage employees, including Morrison, Jim Ber- glint (operations manager) and Dock Foremen Wayne Gentry and John Smith, provided the rewured supervi- sion of D & S employees Thus, the record reveals those individuals gave D & S employees their work assign- ments, scheduled their working hours, caused the em- ployees to punch timecards, approved or disapproved re- quests for time off or vacation, assigned employees to train new hires, and documented on Central's computer work deficiencies or rules violations Newly hired em- D & S was to carry the employees on its payroll and It was to pay all amounts required by Federal and state law as well as amounts which were to be remitted in accordance with any union contract Transport was to reimburse D & S for its expenditures and pay it a percentage which fluctuated with the size of the payroll ° White paper agreements are agreements which contain terms or con- ditions of employment which are different from those contained in the National Master Freight Agreement which normally controls wages, hours, and conditions of employment in Cartage operations which main- tain contractual relations with the Teamsters 7 The consolidation work involved the handling of automotive parts on a dock and switching or spotting of traders which were to be loaded or unloaded D & S LEASING 667 ployees were required to satisfactorily complete a 30-day probationary period and the named individuals decided whether they would be retained during the period Rogers testified that he obtained a payroll runoff and a computer listing of employee infractions from Cartage each week The payroll information indicated the number of hours worked by each employee and his straight time and overtime eammgs Utilizing his D & S computer, he processed the information provided by Cartage to prepare checks for the Cleveland employees which were delivered by Transport to the Cleveland ter- minal where the Cartage dispatcher distributed them to employees Similarly, he processed the listings of em- ployee mfactions by causing repnmands to be issued to employees along with their paychecks He testified he rarely became involved in reprimands which did not in- volve discharge or time off Instead, one of the three D & S clerical employees employed in the Milford office would prepare the reprimands and issue them over Rogers' signature Rogers stated that prior to November 1984 he visited the Cleveland terminal approximately once every other month During those visits, he would discuss grievances with Morrison and employees If grievances progressed beyond the local level (State or Joint Area Conference in Chicago), Rogers represented D & S at the hearings In this regard, he indicated he usually discussed the ap- proach he should take with Garavaglia to ascertain, among other things, whether he had a case, and he relied on Morrison for documentation related to the grievances Rogers had no authority to withdraw a grievance with- out Momson's approval, and he had no authority to agree to backpay or reinstatement of an employee with- out Mornson's approval At some point in late 1982, Local 964 replaced Local 507 as the bargaining representative for D & S employ- ees working at the Cleveland facility Local 964 and D & S executed a collective-bargaining agreement containing the same provisions which were set forth in the D & 5- Local 507 agreement During the term of the above-described agreement (1982-1985), Rogers and subsequently Lawrence Kou- beck were the only persons who represented D & S grievance matters which proceeded to the State or Joint Area Conference (Chicago) level However, on the local level Central personnel, principally Garavaglia and Mor- rison, were frequently involved in administration of the contract as well as the processing of grievances With re- 8 Respondents Transport and Cartage denied that Garavagha, Morri- son, Jim Berquist, and dock foremen (John Smith, Wayne Gentry, Jim Bowen, and Joe Imondi) were, at times material, supervisors and agents of such Respondents within the meaning of the Act Significantly, no ar- gument concerning such issues is set forth in Respondent's postheanng brief Uncontradicted record evidence reveals Garavagha determined the labor policy of Transport and Cartage until April 1986, that Morrison and Berquist supervised the dock foremen and possessed numerous Indi- c's of supervisory authority, including the authonty to lure and fire D & S employees, and that dock foremen who were salaried at $500 to 8700 per week, in addition to exercising the authority over D & S employees set forth above, fired employees, and refrained from calling in employees who did not follow their orders It is clear, and I find, that the individ- uals named above were, at all times material, supervisors and agents of Respondents Transport and Cartage within the meaning of Sec 2(11) and (13) of the Act spect to administration of the contract's provisions, Cart- age posted bids which permitted employees to select their working hours in accordance with the seniority provisions of the contract, called in extra employees it needed from time to time in seniority order, maintained in its computer contract violations of breaches of rules committed by employees, provided employees safety and related equipment required by the contract, 9 interpreted the holiday provisions of the contract to determine when holiday pay was due employees, and generally sought to effectuate and comply with other contract provisions di- rectly related to the wages, hours, and working condi- tions of employees which were contained in the agree- ment With respect to local level grievance proceedings, the record reveals Garavagha and Morrison met with Local 964 representatives on a number of occasions to discuss the hours employees were expected to work, ter- minations, and safety and related matters Garavaglia ad- mitted during his testimony that he met with Local 964 officials to discuss safety complaints voiced by D 8c S employees, and he testified he attended a number of local meetings with Local 964 to discuss grievances which were filed because Morrison had fired D & S employ- ees 10 Employee Gruszezynslu, a Local 964 steward, tes- tified, without contradiction, that Garavaglia also attend- ed a meeting shortly after the D & S operation com- menced at which he agreed the workday would be re- duced from 20 to 10 hours It is undisputed that Morri- son attended a number of the local grievance meetings where grievances concerning discharges he had effectu- ated were discussed With respect to safety and related matters, the record reveals Garavaglia acknowledged Cartage was responsible for assuring safety at the termi- nal and it was obligated to supply protective items such as gloves, ram gear, and gas masks to employees In ad- dition to the fact that Garavaglia acknowledged he met with Local 964 representatives to resolve complaints concerning safety, the record clearly reveals that as late as March 1986 Garavagha apologized by letter because he had been unable to attend a scheduled 9 March meet- mg at which safety and security grievances involving the terminal were to be discussed In the letter under discus- sion Garavaglia set forth measures taken by Central to rectify the complaints 11 From mid-1982 until some unstated time in 1983, the only D & S person who exercised any control over D & S employees working at the Cleveland facility was Rogers For about a year during the 1983-1984 period, D & S utilized two leadmen and/or working foremen at B Momson claimed during his testimony that he purchased ram gear employees were contractually entitled to receive to simply stop employee complaints The record reveals, however, that Garavaglia treated D & S employee safety as a Central obligation "1 Two specific incidents were described by Oswald Kelm, Local 964's president and business agent, i e, Mornson's termination of a D & S em- ployee for fighting on the premises, and his termination of another em- ployee accused of theft Kelm's uncontested testimony reveals Morrison and/or Garavaglia agreed to return both employees to work Significant- ly, Rogers testified 18-20 D & S employees were fired during the time he supphed employees to the Cleveland facility, but he could not recall a single incident in which he or Koubeck had fired an employee ii See G C Exhs 11 (agenda for 9 March meeting) and 17 (Garavag- ha's letter to Kelm) 668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the facility The first, Tommy Hughes, stayed about a month The second, Joe Mechath, stayed about a year A description of the position is set forth in an addendum to the 1982-1985 contract between D & S and Local 964 It is as follows 12 The Working Foreman shall be an employee who has a separate classification which shall pay him 150 an hour above the dockman's classification His classification and job description shall be that he can do all work in the classification of dockman, but additionally direct, assign, supervise, designate and the number of employees on assignment of a specific job He cannot hire, or fire, or discipline employees and will also be under the supervision of the cus- tomer while working The Working Foreman must be approved by the customer as well as the employer In November 1984, Rogers lured Lawrence Koubeck, a resident of Cleveland, and made him vice president of D & S Koubeck testified he spent approximately two- thirds of his working time with D & S in Cleveland and the remaining one-third recruiting dnvers for Central out-of-town When he was in Cleveland, he recruited employees for the Cleveland facility, took their applica- tions, interviewed them, and sent them to Morrison if he felt they were qualified Morrison decided whether they should be hired Additionally, Koubeck handled griev- ance matters at the facility by issuing reprimand letters after receiving notice of employee infractions from Cart- age, and he took disciplinary action against employees when it was warranted He represented D & S at local, state, and regional grievance hearings Cartage personnel continued from November 1984 until February 1986 to provide day-to-day supervision of D & S employees, and it continued to schedule their working hours, handle their requests for time off, and call in extra employees from the seniority list as needed In 1985, D & S and Teamsters Locals 964, 20, 118, and 449 executed a new collective-bargaining agreement which was to be effective from 1 June 1985 through 31 March 1988 13 Steven Bridge, an employee of a multiem- ployer association named Motor Carrier Labor Advisory Council (MCLAC), and Rogers represented D & S the negotiations Andrew Suckart and Chuck Gauguin represented Local 964 Rogers testified no Transport of- ficial participated in the negotiations, but he got the wage parameters from Central The umon negotiators sought during the negotiations to place a work-preserva- tion clause in the contract to assure that D & S employ- ees would follow their work Rogers refused to agree to such a clause, indicating his customer (Transport) would not tolerate it The executed contract contained so-called 12 See G C nth 3 13 Unlike the 1982-1985 agreement, which was between only D & S and Local 507 (subsequently Local 964), the 1985-1988 agreement cov- ered D & S employees working within the Jurisdiction of Locals 20,118, and 449 The record reveals the employees covered by the agreement were engaged III dock/yardman or road operations work at, Inter aim, a boiler firm in Buffalo, New York, an AMC-Jeep consolidation operation in Toledo, Ohio, and at the Central terminal in Cleveland house account language that applied from one D & S lo- cation to another Copies of the contract were given to Momson and Central's payroll department By letter dated 20 January 1986, Cartage President Thomas advised D & S, inter aim, that while Cartage would schedule the terminal, D & S was responsible to call the people necessary to staff the schedules, that Rogers and Koubeck had failed to meet that responsibil- ity, and that continued failure by D & S to supply dock- men at the Cleveland terminal would result in termina- tion of D & S as the supplier of docicmen to the Cleve- land terminal 14 On 23 January 1986, Koubeck issued a memo to the D & S employees working at the Cleveland terminal which informed them, inter aim that employees calling out of service were required to call his home tele- phone number 1 hour prior to starting time, that employ- ees calling back into service were to telephone his number 2 hours prior to his starting time, that D & S was to be directly responsible for setting up replacements and/or additional personnel required by Central Trans- port, and that Central Transport would call employees directly between midmght and 6 a m in case of emergen- cy or for replacement for absenteeism 15 Garavaglia testified, without contradiction, that m February or March 1986, he met with Maroun, Good- heart, Thomas, Richard Silverwood, and Hank Bi- chard" and it was decided that Cartage could hire new employees to perform the Cleveland dock work cheaper than D & S was performing it Garavaglia asserted he advised against taking such action indicating he thought they would be obligated to take the D & S employees and litigation would result During the spring of 1986, Central and union repre- sentatives met in Washington, D C, to discuss ongoing litigation Sherman Brown, who was then acting on behalf of the Teamsters National Freight Industry Nego- tiating Committee, indicated the participants discussed leasing companies durmg the meeting The International tuuon representatives voiced their opinion that leasing companies were used as a way to get around union standards While Brown recalls Central representatives attending the meeting indicated they would see what they could do about leasing companies, he testified noth- ing was agreed on during the meeting At some unspecified time in early May 1986, Joe Goryl, a Central official, telephoned Morrison and in- structed him to prepare a list of names of D & S employ- ees he felt should be hired by Cartage when it took over the dock operation in Cleveland Morrison testified he reflected on his personal knowledge of the work per- formed by individual employees and gave Gory! the 17 typewritten names set forth on General Counsel's Exhibit 37 about mid-May Morrison denied that the union ac- tivities of employees influenced his selection, and he claimed he chose employees he considered to be "super stars" without looking at their personnel files 14 See R Exh 4 R Exh 3 10 Garavagha testified he hired Silverwood to handle labor relations for Cartage and Bichard to handle labor relations for Transport D & S LEASING 669 By memo dated 8 May 1986, Joe Goryl sent a memo to Thomas, Cartage's president, which states SUBJECT proposed dock conversion in cleveland It has been determined that we will employ ap- proximately 15 D&S Cleveland dock employees to the 45 man Central Cartage seniority list A background check on all of the 15 candidates should begin immediately provided each man meets our minimum requirements The conversion should take place over a 4 week period Week 1 will con- sist of hiring 5 (D8cS) doclanen in an established se- niority order Week 2 we will hire an addition 5 (D&S) dockmen and in week 3 we will lure the final 5 During the 3 week period we will be actively pursuing new applicants (anonymously) so that we will have at least 30 good candidates by the start of the 4th week At the start of week 4 we will begin to phase in some of the new dockmen At the end of week 4 we should be in a position to terminate the use of D&S leasing entirely At this time we will phase in the additional new dockmen and con- tinue to use a number of prior D&S casuals tempo- rarily until all of the new dockmen are in place and trained Although Morrison failed to fully describe his early May conversation with Goryl, he indicated the plan out- lined in the above-quoted memo was discussed during the conversation Apparently, Morrison was also in- structed by Goryl to commence an effort to obtain new hires for the Cleveland dock operation by advertising in Cleveland newspapers as he admittedly placed an ad for dockworkers in the 15 May 1986 issue of a local newspa- per named the Plain Dealer 17 When Oswald Kelm, the president of Local 964, learned of the ad which had been placed in the Plain Dealer, he telephoned Momson and asked him what was going on Kelm testified, without contradiction, that Morrison told hun he did not know anything about it and had nothing to do with it Kelm thereafter sent Mor- rison a registered letter dated 16 May, the body of which states 's YOUR AD WAS IN THE CLEVELAND PLAIN DEALER TO HIRE DOCKMEN FOR CENTRAL CARTAGE CO TO SUPPORT THE LOCAL OPERATION ALSO, YOU WOULD BE PAYING UNION SCALE AND BENEFITS LOCAL 964 NOW HAS A CONTRACT WITH D & S LEASING TO COVER THE DOCK WORK TEAMSTERS LOCAL NO 964 MEMBERS HAVE BEEN DOING THE DOCK WORK FOR THE PAST FOUR YEARS ON THE CENTRAL TRANSPORT DOCK WE WOULD LIKE TO KNOW WHAT EFFECT THE HIRING OF DOCKMEN, UNDER CENTRAL CARTAGE CO, TO SUPPORT THE LOCAL OPERATION, WOULD HAVE ON OUR BARGAIN- ING PEOPLE'S WORK " See G C Exh 18 " See G C Exh 19 THE AD ALSO STATES, UNION SCALE AND BENE- FITS WILL BE PAID WE ARE ASKING, "UNDER WHAT CONTRACT WOULD THIS BE PAID?" LOCAL NO 964 IS VERY DEEPLY CONCERNED AS TO WHY CENTRAL CARTAGE CO WOULD HIRE DOCKMEN TO SUPPORT A LOCAL OPERATION "WHAT OPERATION?" MAY WE RECEIVE YOUR REPLY AS SOON AS POSSI- BLE THANK YOU While the record clearly reveals Kelm's 16 May letter was never answered in writing by D & S, Transport, or Cartage, the testimony describing what occurred be- tween 16 May and 2 June is conflicting Kelm testified he attempted to telephone Thomas, Cartage's president, and Sdverwood and neither would return his calls He claims he spoke with Morrison several times at the termi- nal, and Morrison continued to tell him he knew noth- ing Kelm's recollection was that Silverwood finally re- turned his call after the. 2 June changeover and, when Kelm told him cancellation of the contract with D & S had no bearing on the people working on that dock, Sil- verwood responded that International Union Officials Sherman Brown and Jack Yager had instructed Thomas to get rid of leasing companies earlier in the year in Washington, D C, and the people go with the Company The Teamsters convention was held in Las Vegas, Nevada, during the week of 19 May 1986 Silverwood attended and discussed Central's intention to perform the work at the Cleveland facility with Andy Suckart, busi- ness representative of the Teamsters Ohio Conference and Teamsters Joint Council 41, Steven Bridge, and Robert Cassidy 19 During his discussions with the named Sdverwood sought to ascertain whether they were of the view that the 1985-1988 D & S contract with various Teamsters Local Umons obligated Central to hire all the D & S employees working in Cleveland when it assumed control of that operation Each of the named individuals agreed there was no "mechanism" in the contract which would impose such a requirement However, Suckart urged Silverwood to take all the D & S employees Silverwood indicated Central intended, in- stead, to pick and choose employees Silverwood testified he had three or four telephone conversations with Kelm in May before Cartage com- menced to perform the dock work at the Cleveland facil- ity on 2 June He recalled Kelm called him around the second week in May to ask if they were doing away with D & S in Cleveland He claims he said he had no idea what was going on down there, he was not aware anything was going to change According to Silver- wood, Thomas filled hun in on the situation several days later, and Kelm telephoned him again several days later He recalled Kelm again asked if they were going to do away with D & S Leasing, and he claims he replied they had been informed by the International they were to do away with lease companies and they would be hiring " Suckart and Bridge participated in negotiations leading to the 1985- 1988 collective-bargaining agreement between D & S and Teamsters Locals 964, 20, 118, and 449 Cassidy and Bridge are the union and man- agement chairman, respectively, of the Ohio Grievance Committee 670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Cartage employees to perform the work in Cleveland Silverwood claims Kelm then asked if they were going to be hiring Local 964 employees, and testified his reply was that Cartage had a contract with Local 407 and none with Local 964 for local cartage Silverwood claimed he said they would deal with either local but they did not want a jurisdictional dispute He recalled Kelm again asked if they were going to hire D & S people, and that he replied Cartage would hire their own, but they would make sure applications were taken from and interviews were extended to all D & S employ- ees that wanted to be interviewed Silverwood testified Kelm telephoned him two more times within a week or so of 2 June In both conversations he asserts Kelm asked if he was going to hire the D & S people, whether they would be hired in seniority order, and whether Local 964 would be permitted to represent them He claims he responded by saying they were not going to hire all the D & S people, but would provide anyone who applied with applications and interviews Addition- ally, he claims he told Kelm they would live with who- ever shook out of the deal, that they did not want to get involved in a jurisdictional dispute Finally, Silverwood testified about a week prior to 2 June, Larry Thomas told him Kelm was at the Cleveland dock telling every- one he had been assured everybody would be hired in seniority order, and that caused him to place a call to Kelm's office He testified Kelm was not in and he told Compo, a union official who was m, that he had not at any time told Kelm they were going to hire the people in semonty order Silverwood testified Compo informed him Kelm would be in the office at 1 p m and he should call back then He claims he did call back and conversed further with Compo, telling him again he never told Kelm they were going to hire D & S employees in se- niority order, and telling him they would mterview all D & S employees who filed applications During the second conversation, Silverwood claims he heard Compo say "Ozzie, make sure you know what you are talking about before you relay it to the people because we don't want to give them bad information" He indicated, however, that he did not actually know whether Kelm was m the office or on the phone at the time Compo was not called by the General Counsel or Charging Party to refute Sil- verwood's versions of the conversations under discus- sion 25 As noted above, Morrison recommended in mid-May that 17 persons employed by D & S be hired when Cart- age commenced to operate the Cleveland facility When Cleveland Terminal Operations Manager Berquist re- turned from vacation m the latter part of May, he rec- 25 While I do not credit Kelm's claim that Silverwood refused to dis- cuss Cartage's intentions with respect to the Cleveland operation with him pnor to 2 June, I do not credit Silvenvood's claim that he was com- pletely open with Kelm and Informed /um prior to the time Thomas told Silverwood that Kelm was telling D & S employees they would all be lured by Cartage in semonty order, that Cartage was not going to hire all the D & S employees The Coryl memo indicated Cartage was to pro- ceed "anonymously" with respect to the lure of persons other than D & S employees and the record clearly reveals Morrison withheld details concermng Cartage's intentions from Kelm I am not convinced Silver- wood was as open as he claims and gamed the impression when he was giving testimony that he was embellishing to a considerable extent ommended that five additional D & S employees be hired by Cartage, and individuals in Central's headquar- ters decided an additional four employees should be hired General Counsel's Exhibit 41 contains a listing of the 26 D & S employees hired by Cartage on or about 2 June 21 At or about the same time, Cartage hired 32 per- sons who had not formerly been employed by D & S 22 All employees hired by Cartage were treated as new hires, and were paid and accorded the benefits set forth in the National Master Freight Agreement 23 The record reveals Koubeck appeared at the Central terminal on 31 May to inform D & S employees they had no job after that date unless they were called by Central Employee Donald Gruszezynslu, former union steward, testified Koubeck's announcement caused him to ask Dock Foreman Jim Bowen what was going on He testified Bowen told him they were trymg to get rid of Kenny Glenn, Archer Bailey, Kenneth Meyers, Gra- bmslu, and Peters 24 Similarly, employee Kenneth Meyers, then a union committeeman, testified that after Koubeck notified him by phone that D & S was no longer on the dock he called Dock Foreman Wayne Gentry and asked if he was going to be called back He testified Gentry told him he was a committeeman and Morrison did not like union people so his chances were slim Meyers claims Gentry told him the next day he was not coming back because he was a union committeeman Additionally, he testified a second dock foreman, Joe Imondi, told him while he was cleaning out his locker, that he and Bailey were not coming back because they were with the Union Dock Foremen Bowen, Gentry, and Imondi uniformly testified they played no part in the selection of D & S employees who were to be hired by Central Each =h- eated he had no knowledge of who was to be hired until a meeting was held at the Cleveland Airport Sheraton on 1 June Bowen categorically denied that he had any con- versation with Gruszezynslu which concerned the selec- tion process He testified he was asked by employees Grabmslu and Ochsl why they had not been hired and claims he told both of them that he had no idea, they they should ask Bruce Morrison 25 Gentry testified he Si GC Exit 40 is a hat of D & S employees who completed applica- tions and were interviewed but were not lured The record reveals all D & S employees, including those who were hired, were granted two per- functory interviews of short duration It is clear Cartage officials had de- cided which D & S employees were to be hired before interviews were conducted 22 See G C Exh 39 23 See C P Exh 2, art 51 (Vacation-1 week after 1 year), art 54 (Health and Welfare Benefits—coverage after 30-day probationary period with employer contribution of $66 70 per week per regular employee), and art 60 (Wages—b percent of classification rate for first year of em- ployment, 80 percent second year, and 90 percent third year) Applica- tion of the National Master Freight Agreement caused former D & S em- ployees wages to drop about $2 per hour, altered their vacation entitle- ment, and deprived them of health and welfare coverage for 30 days 24 Bailey was the union steward at the Cleveland terminal at the time 25 GruszezynsIn was the more impressive witness and I credit him In doing so, I have taken Into account a breakfast conversation Sherman Brown, a business agent for Teamsters Joint Council 41 and the Ohio Conference, had with Silverwood the first week of June During that conversation, Brown claims Silverwood told him they were not going to take the D & S employees by seniority because they wanted to get rid of Continued ,- D & S LEASING 671 spoke with Meyers on 31 May and again on 1 June after the Sheraton meeting He claims he merely told the em- ployees on 31 May that he had no idea whether he would be hired With respect to the 1 June conversation, he indicated he told Meyers he could not understand why he had not been hired as he had always been satis- fied with his work, that the only thing he could think of was his association with the Union 26 Imondi testified he was made a dock foreman when D & S left He admitted conversmg with Meyers concerning the reasons several employees may not have been hired He admitted he told Meyers he felt he had run the city operations well and that maybe he was not called back because he was with the Union Imondi testified he could not recall whether he and Meyers discussed the possible reason Bailey was not hired 27 On 2 June, former employees of D & S not hired by Central started to file gnevances protesting Central's fail- ure to hire them On 3 June, Local 964 Union Steward Archer Bailey filed the first charge m this case On 4 June, Local 964 sent Central a letter requesting a re- sponse to its 16 May letter, and on 27 June, Local 964 filed a grievance which alleged that D & S, Transport, and Central, as jomt employers, terminated 33 named employees on 31 May 1986 "as part and parcel of a scheme to avoid its wage and benefit obligations estab- lished pursuant to a collective bargaining agreement "28 On the same date, it filed the charge in Case 8-CA- 19282 Since 2 June 1986, Respondent Central has recognized Local 407 as the bargaining representative of the em- ployees performing dock and trailer switching work at the Cleveland terminal 29 Former D & S employees working at the facility work on withdrawal cards and pay Local 407 a fee for representing them Newly hired employees who were not members of Local 964, pay Local 407 the normal dues and initiation fees On 20 August 1986, Local 407 filed a gnevance on behalf of the former D & S employees then working at the Cleve- land facility protesting the alteration in their wages, ben- efits, and semonty when they were employed by Central Cartage as new employees All grievances filed by em- ployees, Local 964, and Local 407 are being held in abeyance pending the outcome of the instant litigation four to five of them that had high semonty Brown claims Silvenvood asked him if there was anyway they could get nd of five guys and testi- fied he told him he must be crazy Sdverwood denied making the de- scnbed remarks, claiming he knew nothing about the Cleveland person- nel at the time His version of the conversation was not convincing and I credit Brown completely 28 Meyers exhibited slight confusion when descnbmg the two inci- dents Gentry was more impressive and I credit his versions of the con- versations 27 I gained the impression Imondi did not want to remember I credit Meyers 28 See G C Exh 21 29 By letter dated 28 May, Local 407 indicated its understanding that the D & S employees were to be lured by Cartage, it observed it was the representative of Cartage employees in Cleveland, and it indicated it ex- pected Cartage to comply with the National Master Freight Agreement See R Central Exh 5 IV ANALYSIS AND CONCLUSIONS A The Joint Employer Issue A threshold issue in this case is whether D & S and Central are joint employers Counsel recognized in their bnefs that the test utilized by the Board is set forth in NLRB v Browning-Ferris Industries, 691 F 2d 1117 (3d Cir 1982), where the court describes it, stating (at 1124) [W]here two or more employers exert significant control over the same employees—where from the evidence it can be shown that they share or co-de- termine those matters governing essential terms and conditions of employment—they constitute "joint employers" within the meaning of the NLRA Applying the described test to the facts in this case, I conclude D & S and Central are clearly joint employers While the employees performing consolidation work at the Cleveland terminal were employees of D & S on paper, the facts in this case reveal they had minimal con- tact with the principals of D & S Starting with the hiring process, the record clearly reveals that D & S' pri- mary function was to place ads for employees in the local newspapers Cartage had been shown to be the Employer which actually hired many of the employees in the complete absence of D & S personnel, and the record reveals that even though D & S personnel, in the form of Rogers or Koubeck, may have screened some aphcants by interviewing them, Cartage uniformly had and exercised final authority with respect to the hire of employees at the Cleveland terminal During his testimony, Rogers accurately described the contact D & S experienced with employees who were hired and thereafter filed no grievances when he admit- ted that, other then sending them a paycheck each week, D & S had no contact with the employees Indeed, the record reveals that once employees were hired Central alone assumed control of their working conditions and their tenure of employment at the facility Thus, Central scheduled their hours of work, its personnel accom- plished the day-to-day supervision of the employees, it decided whether they would be retained or released, it determined whether they had violated the contract or work rules, it determined when they were to be permit- ted to take vacations or time off, and it determined the pay they would receive by exercismg control over the number of hours they worked and by documentation of hours worked In sum, it was Central rather than D & S which exer- cised dominate control over the hire and termination of employees, and it was Central which controlled almost completely the day-to-day incidents of the consolidation employees' employment relationship Standing alone, the degree of control of the employees indicated would war- rant a finding that D & S and Central were joint employ- ers See American Air Filter Co, 258 NLRB 49 (1981), United Dairy Farmers, 202 NLRB 23 (1973), and Syufir Enterprises, 201 NLRB 738 (1975) Here, however, a finding of joint employer relationship need not rest solely on the dominance of Central with respect to the day-to-day control it exerted over the employment rela- 672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ■ tionship Perhaps the two most important terms or condi- tions of employment from the employees' viewpoint were wages and hours of employment Here it is undis- puted that Central dictated what wage employees would receive While Rogers, significantly with Garavaglia's as- sistance, represented D & S in negotiations with the Union, Transport controlled completely the economic package contained in both collective-bargaining agree- ments which D & S executed Similarly, it, through Gar- avaglia's participation in the very first negotiation ses- sion, caused D & S to obtain a variance in the normal working hours of Teamsters-represented Cartage em- ployees to enable it to perform in accordance with Gen- eral Motors' "just in time" concept 3° In a very real sense, Central, rather then D & S, determined the wages the consolidation employees received and the number of hours they worked While the above-mentioned factors would appear to compel a conclusion that D & S and Central were joint employers during the entire period extending from mid- 1982 through 31 May 1986, Respondent contends the re- lationship changed in time, and that by 31 May 1986 Central and D & S could not be deemed to be joint em- ployers Respondent first observes that during the 1983-1984 period D & S had a working foreman at the Cleveland facility The lumts of the working foreman authorities are set forth, supra It is clear the incumbents of the posi- tion merely directed employees in the performance of routine work tasks They were in turn supervised by Cartage management and Cartage's dock supervisors I conclude the record fails to reveal that they were super- visors within the meaning of Section 2(11) of the Act The second matter raised by Respondent is the hire by D & S of Lawrence Koubeck In its bnef, Central claims Koubeck was hired to supervise the Cleveland operation and his job was "to hire, fire, and discipline emplolyees and to adjust their grievances" (Br p 15) The difficulty with the contention is simply the fact that the record • fails to reveal that Koubeck's employment caused any significant change in the hiring procedure, and the record contains no support whatsoever for the conten- tion that Koubeck supervised the consolidation employ- ees in any way prior to the time that he commenced to exercise very limited control over them in January 1986, by requiring that subsequent to that time they report out of service and into service through him In all other re- spects, save situations involving Koubeck's obligation to call in extra employees in accordance with Central's needs, Central retained dominant control over the em- ployees While the addition of Koubeck altered the manner in which grievances were handled in that D & S had someone at the Cleveland facility to discuss griev- ances with Cartage personnel and D & S employees, Central continued to initiate grievances by determining when infractions had been committed, and it retained final authority in disciplinary situations In sum, I find Central dominated the employment rela- tionship of the consolidation employees employed at the 30 As noted, supra, at some point Central reduced its 20-hour-workday requirement to 10 hours Cleveland terminal at all times relevant here According- ly, I find, as alleged, that D & S and Central were joint employers of such employees B Appropriateness of Unit and Local 964's Representative Status Respondent Central's answer to complaint places ap- propriateness of the unit and the Union's representative status in issue Paragraphs 6 and 7 of the complaint reveal the unit alleged to be appropriate is All docicmen and yardmen employed by D & S at 5400 West 137th Street, Cleveland, Ohio, excluding all clerical employees, professional employees, guards and supervisors as defined in the Act, and all other employees Uncontested record evidence reveals the D & S em- ployees covered by the 1982-1985 collective-bargaining agreement with Locals 507 and 964 were those doclunen and yardmen performing automotive consolidation work at Respondent CentraPs Cleveland terminal The record fails to reveal that the scope of the unit represented by Local 964 was altered by the 1985-1988 agreement Noting the record reveals that employees in the de- scribed unit worked at that same location, performed es- sentially the same job functions, received essentially the same pay and benefits, and experienced common supervi- sion, I find the unit to be appropriate During the hearing, Respondent Central sought to dis- pute Local 964's representative status by adducing evi- dence to show that Local 507 did not represent a majon- ty of the D & S employees when recognition was first extended to that Union in 1982 Objection to that line of mquiry was sustained I reaffirm the ruling noting that the Board held in Cauthorn Trucking, 256 NLRB 720, 722 (1981) "It is well settled that Section 10(b) is appli- cable to a refusal-to-bargain defense that the bargaining relationship was unlawfully established" Here, the record reveals D & S and Local 964 are signatory to a subsisting collective-bargaining agreement, lawful on its face, which defines the wages, hours, and conditions of employment of employees in the Cleveland bargaining unit Such facts raise an irrebuttable presumption that the Union's majority status continues through the end of the contract Rtsh Equipment Go, 173 NLRB 943 (1968), enfd 407 F 2d 1098 (4th Cu 1969) C The Bargaining Obligation The next issue to be resolved is whether Central was obligated to bargain with Local 964 in the circumstances presented here The Board had uniformly held that joint employer status gives rise to an obligation to bargain with the representative of involved employees over the decision and effects of displacing unit employees Sun Maid Growers of California, 239 NLRB 346 (1978), and American Air Filter Go, 258 NLRB 49 (1981) Respond- ent Central contends no bargaining obligation exists in the instant case because the Teamsters were fully aware of the relationship between D & S and Central, and the Union's failure to seek to make Central a party to the D & S LEASING 673 1985-1988 D & S contract with the four local unions named, supra, should cause me to conclude Local 964 is estopped from seeking bargaining now Alaska Rough- necks & Drillers Assn v NLRB, 555 F 2d 732 (9th Or 1977), is cited to support the contention Respondent Central's reliance upon Alaska Roughnecks is misplaced In that case, the court refused to enforce a Board order against Mobile Oil Corporation, which the Board had found to be a joint employer with a personnel leasing company (Santa Fe), because during a proximate repre- sentation proceeding Mobile had not been named as an employer and had not participated in the representation hearing Pointing to the Board's Rules and Regulations, the court found Mobile had not been afforded its right of due process In the instant case, there have been no representation proceedings and Alaska Roughnecks is clearly mapplica- ble While the record does reveal that neither Local 964 nor the International Union demanded at any time that Central become a party to the agreement applicable to the D & S employees working at the Cleveland terminal, it similarly fails to reveal the named labor organizations were fully cognizant of the joint-employer relationship which existed between D & S and Central Having exer- cised significant control over the terms and conditions of employment of employees performing consolidation work at its Cleveland terminal, Respondent exposed itself to the normal joint employer bargaining obligation 31 D The Waiver and Information Issues The next issue to be resolved is whether Local 964 waived its right to bargain about the transition from D & S to a Central employed work force Respondent Central contends the record reveals Local 964 was supplied with information it sought in its letter of 16 May well before 2 June and its failure to demand bargaining concerning the transition until it had been ef- fectuated reveals it waived its right to bargaining con- cerning the matter In the alternative, Respondent Cen- tral contends that by supplying the Union with mforma- non prior to 2 June it satisfied any bargaining obligation which existed The General Counsel and Charging Party anticipated Central's waiver argument They contend in their briefs that Central concealed its intention not to retain the D & S employees working at the Cleveland terminal and, instead, presented Local 964 with a fait ac- comph at the time the transition was effectuated It is well settled that where a proposed change in an employer's business operation constitutes a mandatory subject of bargaining the employer is obligated to give the representative of its employees notice of the intended change and an opportunity to bargain concerning it 32 " The General Counsel and Charging Party contend Central is bound by the most recent collective-bargaining agreement executed by D & S I find the contention to be without merit As noted, supra, the contract covered employees working for D & S at other locations which were within the Jurisdiction of other local unions No evidence was offered with respect to employees who worked at other than Central's Cleveland terminal In the circumstances described, I am unwilling to find that a nonsignatory employer is bound by the agreement 32j find, mfra, that Centrars primary reason for effectuating the transi- tion was its desire to reduce labor costs Under the rationale expressed in Royal Typewriter Co, 209 NLRB 1006 (1974), enfd 533 F 2d 1030 (8th Cir 1976), Westinghouse Electric Corp, 150 NLRB 1574 (1965) Waiver of bargaining rights must be expressed clearly and unmistakably Rockwell Interna- tional Corp, 260 NLRB 1346 (1982), and N L Industries, 220 NLRB 41, 43 (1975), enfd 536 F 2d 786 (8th Cir 1976) As observed by the General Counsel in his brief (at 18), the Board does not require a request for bargain- ing by a union where such a request would be futile," or where the union was presented with a fait accompli 34 However, if a umon is given adequate notice of an em- ployer's intended actions, but fails to request bargaining, a waiver of its right to bargammg will be found US Lingerie Corp, 170 NLRB 750 (1968) Respondent Central urges me to resolve the issue raised by its contention that Local 964 wavied its rights to bargaining concerning the transition and/or the issue raised by its contention that it satisfied its obligation to give the Union notice of the intended transition by view- ing in isolation the testimony given by Silverwood In my view, the entire chronology of events during the period extending from January through 31 May 1986 must be examined to resolve the issues raised As noted, supra, the record clearly reveals Central was not satisfied with the manner in which D & S was per- forming in early 1986 In an attempt to remedy the situa- tion, it, inter alia, informed D & S it would be required to take action to assure that it had an adequate number of employees at the Cleveland facility Shortly thereaf- ter, Central management met and decided Cartage could accomplish the work at the Cleveland terminal at lesser cost than was being incurred by using D & S In early May, the decision to replace D S with Cartage em- ployees was implemented Coryl's 8 May memo to Cart- age President Thomas outlined the plan At the outset, that plan was to keep 15 of the best D & S employees and hire 30 employees off the street anonymously 32 While Central, as a joint employer with D & S, had an obligation to give Local 964 timely notice of its intention to effectuate the transition it had decided on, and which it had commenced to implement, it gave no such notice Instead on 15 May, it placed an ad in a Cleveland news- paper which indicated it was seeking to employ dock- workers at union rate at the Cleveland facility When Lcoal 964 Business Agent Kelm became aware of the ad, he immediately sent Central and D & S a letter dated 16 May which, inter aim, inquired what effect the hiring of Central Cartage employees to support the Cleveland op- eration would have on Local 964 bargaining unit em- ployees working at the facility, what contract employees hired would be paid under, and what would constitute the local operation referred to in the newspaper ad Ad- ditionally, Kelm immediately visited the terminal and asked Cartage Temunal Manager Morrison what was Otis Elevator Ca, 269 NLRB 891 (1984), bargaining with Local 964 was legally required 33 Richard Chemical Ca, 222 NLRB 5, 6 (1976) 34 National Car Rental Systems, 252 NLRB 159 (1970), J-B Enterprises, 237 NLRB 383 (1978) 35 Respondent Central's failure to explain why it desired the employee complement described warrants an Inference that It wanted to avoid the bargaining obligations imposed on a successor employer 674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD going on Morrison, who had admittedly been briefed by Coryl early in May with respect to the intended manner in which Central was to effectuate the transition, and had already selected 17 D & S employees who were to be hired by Cartage, falsely told Kelm he knew nothing and the matter was being handled by Thomas When Kelm thereafter sought to contact Thomas to ascertain the situation, Thomas refused to talk to him At the dis- cnbed juncture, it is clear that Respondent had clearly failed to give Local 964 timely notice of its intention to effectuate a transition at the Cleveland terminal, and it is clear that it was unlawfully withholding information concerning the intended transition from Local 964 When Kelm was unable to ascertain what Cartage m- tended to do at the Cleveland terminal by discussmg the matter with Morrison and attempting to contact Thomas, he contacted Silverwood 36 While Silverwood was ap- parently unaware of the transition plans when Kelm ini- tially contacted him, he was briefed on the matter by Thomas within the next 2 or 3 days He admittedly failed to contact Local 964 after he learned what was to occur Instead, he waited for Kelm to contact him again When Kelm called a few days later, Silverwood simply told him Cartage was going to hire its own employees and all D & S employees interested m employment would be given applications and would receive interviews Signifi- cantly, at that time, Momson had already decided he would hire only 17 of the then-current D & S employ- ees Additionally, at or near that time, Berquist had added five D & S employees to the hire list Morrison and Berquist conducted no interviews before they made their decisions On 20 May, Central management officials interviewed D & S employees employed at the Clevelad terminal who had filed applications While the record reveals Centra officials decided at some undisclosed time that 4 D & S employees in addition to the 22 chosen by Morri- son and Berquist should be hired, no Centra official was called during the hearing to establish that the 20 May interviews led to the selection of the 4 employees who were hired by Cartage Similarly, on 28 May, Cartage management interviewed all D & S employees who had filed applications with Cartage The record reveals the interviews were conducted in summary fashion, and it fails to reveal that the interviews resulted in the hire of D & S employees who had not previously been selected It was in the above-described context that Silverwood made inquiries of Cassidy, Bridge, and Suckart concern- ing Central's contractual obligations immediately before and during the Teamsters' convention in Las Vegas For the first time, he indicated durmg those conversations that Cartage intended to pick and choose the D & S em- ployees it intended to hire, and it intended to consider them new hires whose terms and conditions of employ- ment would be determined by the National Master Freight Agreement Significantly, the record fails to reveal that any of the individuals named were authorized at the time to represent Local 964, and the record fails to Se I do not credit Silverwood's unsubstantiated testimony that Kelm called him to check out a rumor that D & S was being replaced prior to the call which was prompted by the 15 May newspaper ad reveal that Suc'cart or Cassidy, Teamsters officials, m- formed any Local 964 representative they had met with Silverwood Silverwood stayed at the Teamsters convention from 19 through 22 May He testified Kelm telephoned him on Friday, 23 May, or Monday, 26 May to again inquire whether Cartage was going to hire all the D & S em- ployees and whether Local 964 would represent the dockworkers who were to be hired by Cartage at the Cleveland terminal Silverwood claims he told Kelm at that time that Central did not mtend to hire all the D & S employees, but all who filed applications would be interviewed He claims he repeated that while Cartage had a contract with Local 407 and none with Local 964, it would deal with whichever local shook out of the deal Careful review of the record causes me to doubt the reliability of Silverwood's claim that he told Kelm as early as 23 or 26 May that Cartage was not going to hire all the D & S employees With exception of the alleged 23 or 26 May conversation, Silverwood supplied no dates for his alleged conversations with Kelm He simply recalled his first "briefing" conversation with Kelm oc- curred about a week after Kelm called him about the newspaper ad, and the second "bnefmg" conversation occurred 3 or 4 days later If his recollection of the time interval between the first two conversations is accurate, the 23 or 26 May date is clearly incorrect 37 A second evidentiary matter which suggest Local 964 did not become aware that Cartage was not going to take all the D & S employees at the time indicated by Silverwood that testimony and evidence which reveals the circum- stances under which Local 407 prepared a letter protest- ing the proposed transition on 28 May In his letter to Silverwood dated 28 May, Theodus, the Local 964 busi- ness agent, stated, mter aim "It is our further under- standing that former employees of D & S will now become employees of Central Cartage" Significantly, Theodus testified he obtained the information which led him to prepare the 28 May letter from Local 964 Busi- ness Representative Kelm If so, it would appear Kelm thought, as last as 28 May, that Cartage intended to hire all the D & S employees 38 Finally, Silverwood's own testimony casts doubt on his assertion that he told Kelm as early as 26 May that Cartage was not going to hire all of the D & S employees Thus, Silverwood testified that he was prompted to place his fmal call to Local 964, prior to final effectuation of the transition plans, when Thomas, the Cartage president, contacted him to com- plain that Kelm was at the facility assuring employees that they would be hired by Cartage It would seem im- probable that Kelm would have been engaging in such conduct if Silverwood had previously informed him Cartage did not intend to hire all of the D & S employ- " The The ad appeared on 15 May Kelm clid not call Silverwood about it until at least 16 May Add a week to 16 May and you get 23 May An addition of 3 or 4 days places the second briefing conversation as occur- ring on 26 or 27 May "Significantly, on 28 May Central officials interviewed all D & S em- ployees who had filed applications for the second time The record clear- ly reveals the interviews were conducted for "show" purposes only D & S LEASING 675 ees The record causes me to conclude Local 964 did not learn Cartage was not going to hire all the D & S em- ployees until 28 May or thereafter In sum, the record in this case reveals that Respondent Central was motivated, primarily by economic consider- ation, to decide at some point between February and early May 1986 to terminate its relationship with D & S and perform the dock work and switchmg at the Cleve- land terminal with Cartage employees It thereafter de- vised a plan which would assure that it could not be claimed to be a successor employer, and it implemented portions of the plan secretly until 15 May Thereafter, it carefully concealed details concerning its planned transi- tion from Local 964 by talung applications from all D & S employees working at the facility and assuring Local 964 that all would be mterviewed, even though it had al- ready decided which D & S employees were to be hired by Cartage Simultaneously, although it had decided that all employees hired by Cartage would be treated as new hires under the terms of the National Master Freight Agreement, it led Local 964 to believe that it would be willing to deal with either Local 964 or 407, that repre- sentation of the employees would be a jurisdictional matter to be solved by the Umons Fmally, at a time when its transition plan had been all but fully implement- ed, it notified Local 964 it did not intend to take all the D & S employees, and it notified Local 407 that it would recognize it as the representative of the dockworkers and switchers employed by Cartage at the Cleveland termi- nal and it would abide by the National Master Freight Agreement In agreement with counsel for the General Counsel and Charging Party, I find Respondent Central failed to give Local 964 adequate notice of its intention to effectuate the transition at issue herem I further find that Local 964 was never fully informed regarding the manner in which the transition was to be effectuated, and that it was faced with a fait accomph on 2 July 1986 Any Local 964 request for bargaining in the circum- stances described would have been futile Accordingly, I find, as alleged, that by failing to give Local 964 notice of its decision to effectuate the transition, by failing to afford it an opportunity to bargain about the effect of the decision on D & S employees, and by unilaterally alter- ing the wages, hours, and other terms and conditions of employment of former D & S employees hired by Re- spondent Cartage on or about 2 June 1986, Respondent Central violated Section 8(a)(1) and (5) of the Act as al- leged I further find that the information requested by Local 964 in its letter dated 16 May was information which was necessary for and relevant to the performance of its function as the bargaining agent of the D & S em- ployees working at the Cleveland terminal Patently, Re- spondent Central failed to supply Local 964 with infor- mation which would reveal the effect that hiring dock- workers would have on D & S employees and it failed to answer Local 964's inquiry regarding which contract would be followed By failmg to furnish the described information, I find Respondent Central violated Section 8(a)(1) and (5) as alleged E The Alleged Discruninatzon Paragraph 9 of the complaint alleges that Respondent Central laid off or discharged 33 named employees on 31 May 1986 because it believed they would support, assist, or favor Local 964, because Respondent Central believed they would engage in other union and/or protected ac- tivities As noted, supra, the General Counsel adduced limited evidence in an attempt to show that employees Archer Bailey, the union steward, and Kenneth Meyers, a union committeeman, were not hired by Respondent Central because they held union positions As noted, supra, that evidence consisted of testimony given by employee Gruszezynslu and Meyers, which was to the effect that Dock Foremen Bowen, Gentry, and Imondi told the named employees Meyers and Bailey were not hired by Respondent Central because they held positions with the Union While I find, as alleged, that Respondent Central violated Section 8(a)(1) through the statements made by Gentry and Imondi, I, in agreement with Respondent Central, agree the evidence offered fails to prove that Meyers and Bailey were not hired by Respondent Cen- tral because they held union positions, because the record clearly reveals that Respondent Central's dock foreman did not participate in the selection of the D & S employees who were to be hired by Respondent Central Recognizing the fact that the record contains no testi- mony which reveals that the Central individuals who se- lected the D & S employees who were to be hired by Central possessed union animus, the General Counsel contends Respondent Central's failure to hire the 33 em- ployees named in the complaint should be found to con- stitute a violation of Section 8(a)(3) because the record reveals the employees were laid off and refused hire by Cartage pursuant to a plan to avoid the obligations im- posed by the 1985-1988 D & S collective-bargaining agreement I agree While Respondent Central claims it decided to effectu- ate the transition because the International Union told it to get rid of leasing companies, and, in any event, it was dissatisfied with D & S' performance, the record causes me to conclude its primary reason for deciding to effec- tuate the transition was a desire to escape the obligation imposed on it and D & S by the then subsisting collec- Ove-bargaming agreement with, inter aim, Local 964 While the record does reveal that International union officials urged Central to sever its connection with leas- ing companies, I note the record fails to contain any evi- dence which would reveal any Teamsters officials re- quested that Central sever its relationship with D & S at the Cleveland terminal To the contrary, the record re- veals the employees working at that terminal were cov- ered by a Teamsters contract which had expressly been approved by Jackie Presser, chairman of the Teamsters National Freight Industry Negotiating Committee 39 In the circumstances, Respondent Central's claim that it was motivated to effectuate the transition from D & S Cartage by an International union request that it get rid of leasing companies is not convmcmg " See C P Exh I 676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Although the record does reveal Central was not satis- fied with the manner m which D & S was performing m the January 1986, I attach significant weight to Garavag- ha's testimony which reveals D & S' performance was not discussed in February or March when Central offi- cials met and decided the work at the Cleveland terminal could be accomplished at lesser costs if Cartage did it Noting the record clearly reveals the 2 June transition permitted Central to pay many of the same employees $2 less per hour for doing the same work they had per- formed as D & S employees a few days earlier and that other economic advantages flowed from application of the National Master Freight Agreement rather than the D & S paper contract, it is clear, and I find, a major reason for Respondent Central's decision to effectuate the transition was its desire to avoid the obligations im- posed on it as a joint employer by the 1985-1988 D & S collective-bargaining agreement In agreement with the General Counsel, I find the in- stant situation to be analogous to the situation which ex- isted in Borg-Warner Corp, 245 NLRB 513 (1979) Here, as there, work was transferred from one company to an- other to achieve lower labor costs As noted by Judge Cohn in Borg-Warner, the U S Supreme Court held in NLRB v Great Dane Traders," that "if it can reasonably be concluded that the employer's discriminatory conduct was 'inherently destructive' of important employee rights, no proof of antiunion motivation is needed and the Board can find an unfair labor practice even if an employer introduces evidence that the conduct was moti- vated by business considerations" Clearly, by, in effect, causing D & S to terminate the employment of the 33 employees named in the complaint, and refusing to hire them when their work was transferred from D & S to Cartage pursuant to a plan to avoid the obligations im- posed on it by the collective-bargaimng agreement appli- cable to those employees, Respondent Central engaged in conduct which was "inherently destructive" of impor- tant employee rights Patently, such conduct discouraged membership in Local 964 Thus, it violated Section 8(a)(1) and (3) of the Act Borg-Warner Corp, supra Los Angeles Marine Hardware Co, 253 NLRB 720 (1978) 41 CONCLUSIONS OF LAW 1 D & S Leasing, Inc , Central Transport, Inc , and Central Cartage Company are each employers engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 Centra, Inc , Central Transport, Inc , and Central Cartage Company constitute a single employer within the meaning of the Act 3 Teamsters Local Unions 964, 20, 118, 449, and 407, all affiliated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of Amer- ica, are labor organizations within the meaning of Sec- tion 2(5) of the Act 40 388 U S 26 (1967) "In my view, the facts in this case also support a finding of violation of Sec 8(a)(3) under the rationale expressed in Mason City Dressed Beef, 231 NLRB 731, 747 (1977), and cases cited therm at fn 18 4 Respondent D & S and Respondent Central are joint employers of the doclunen and yardmen who per- formed automotive consolidation work at Respondent Central's Cleveland, Ohio terminal at times material here 5 All dockmen and yardmen performing automotive consolidation work at 5400 West 137th Street, Cleveland, Ohio, excluding all clerical employees, professional em- ployees, guards and supervisors as defined in the Act, and all other employees constitute an appropriate unit for bargaining within the meaning of Section 9(a) of the Act 42 6 At all times material here, Teamsters Local Union 964 has been the exclusive collective-bargaining agent of the employees m the aforesaid unit for the purposes of collective bargaining 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 7 By discnminatmg with respect to the hire or tenure of employment of the employees named below to dis- courage membership in Local 964, Respondent Central has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act 8 By failing to give Local 964 notice of its decision to transfer work from Respondent D & S to Respondent Cartage, failing to afford it an opportunity to bargain about the effects of the decision on D & S employees, by unilaterally altenng the wages, hours, and other terms and conditions of employment of former D & S employ- ees hired by Respondent Cartage, and by failing to fur- msh Local 964 with requested information regarding the transition which was relevant to its function as the bar- gaming representative of unit employees, Respondent Central engaged m, and is engaging in, conduct which violates Section 8(a)(5) and (1) of the Act 9 By informing employees they were not hired by Re- spondent Cartage because they held positions with Local 964, Respondent engaged in, and is engaging in, conduct which violates Section 8(a)(1) of the Act 10 The aforesaid unfair labor practices have a close, intimate, and substantial effect on the free flow of com- merce within the meaning of Section 2(6) and (7) of the Act THE REMEDY43 Having found that Respondent Central has engaged in unfair labor practices within the meaning of Section 8(a)(5), (3), and (1) of the Act, I shall recommend that it be required to cease and desist therefrom and that it take certain affirmative action necessary to effectuate the poli- cies of the Act, including on request, to bargain with the Union as the exclusive bargaining representative of unit employees 42 Description of unit revised to reflect cancellation of D & S Leasing contract and assumption of automotive consolidation work by Central Cartage Company " As the General Counsel indicated at the outset of the hearing that no monetary remedy was sought against Respondent D & S, and the record reveals that D & S is now a defunct corporation, the remedy and order will apply to Respondent Central only D & S LEASING 677 I recommend that Respondent Central be ordered to recognize and, on request, bargain with Teamsters Local Union 964, as the exclusive collective-bargaining repre- sentative of the dockmen and yardmen performing auto- motive consolidation work at 5400 West 137th Street, Cleveland, Ohio, excluding office clerical employees, professional employees, guards and supervisors as de- fined in the Act, and all other employees, and, if an agreement is reached, embody such agreement in a signed contract I further recommend that Respondent Central be ordered to offer the 33 employees named in the complaint immediate reinstatement to their former or substantially eqinvalent positions of employment, without prejudice to their seniority or other rights and privileges, discharging, if necessary, employees hired to perform the work such employees previously performed Fmally, I recommend that Respondent Central be ordered to make whole the 33 employees named in the complaint for any loss of wages and benefits they have suffered as a result of the discrimination practiced against them, with inter- est, and to make whole those former D & S employees hired by Respondent Central on or about 2 June 1986, for any loss of wages and benefits, with mterest which they experienced as a result of Respondent Central's urn- lateral alteration of their wages, hours, and terms and conditions of employment Backpay shall be calculated in accordance with the formula set forth in F W Wool- worth Co, 90 NLRB 289 (1950), with interest thereon to be computed in the manner prescribed m New Honzons for the Retarded, 283 NLRB 1173 (1987) 44 Finally, while the General Counsel requests that a visi- tatonal clause be included in any order issued in this case, I note the Board had declined to include such clauses in cases which do not appear to pose complicated compliance problems See, for example, Cherokee Heanng Co, 280 NLRB 399 (1986) In my view, the Order in this case will pose no significant compliance problems, and provisions set forth in the Order which require the Re- spondents to preserve and make available to the Board described records necessary to analyze the amount of backpay will suffice [Recommended Order omitted from publication ] 44 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 m Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses