Central Mack Sales, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1268 (N.L.R.B. 1984)

1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central Mack Sales, Inc., Central Truck Leasing
Corporation, North Carolina Coastal Motor
Lines, Inc., and D. Thomas Bailey Sr. and
International Union of Operating Engineers,
Local 465, AFL-CIO, affiliated with Interna-
tional Union of Operating Engineers, AFL-
CIO. Cases 11-CA-9325, 11-CA-9385, and
11-CA-9638
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 19 March 1982 Administrative Law Judge
Robert M. Schwarzbart issued the attached deci-
sion. The Respondent and the General Counsel
filed exceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions, 2 as modified herein, and to adopt the
recommended Order.
The judge found that the Respondent violated
Section 8(a)(3) and (1) of the Act by refusing to re-
instate unfair labor practice striker Andrew Blalock
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are Incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cm 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 In its exceptions the Respondent contends that the judge had three
private conferences with the General Counsel some time during the hear-
ing which prejudiced the Respondent The Respondent did not, however,
raise this claim of impropriety until after the judge Issued his decision In
so doing, the Respondent did not comply with the requirements of Sec
102 37 of the Board's Rules and Regulations Accordingly, we find that
the claim was not timely raised NLRB v. Sanford Homes for Adults, 669
F 2d 35 (2d Cir 1981)
Chairman Dotson finds that the private conferences raised in the Re-
spondent's exceptions were not prohibited ex parte communications
under Secs 102 127(b), 102 129(b), and 102 130(c) of the Board's Rules
and Regulations The Respondent admits it received prior notice of the
meetings and consented to them To the extent the Respondent contends
that It unwillingly permitted the third conference between the judge and
counsel for the General Counsel, Chairman Dotson finds the claim to be
untimely Chairman Dotson deems the Respondent's contention to be
similar to that of a request for disqualification and that the Respondent
was obligated to promptly raise its objection by filing an affidavit with
the judge prior to his decision
In sec III,A,7,e, of his decision and in the section entitled "The
Remedy," the judge inadvertently failed to include Ernest Bonifield's
name in the list of employees that the Respondent unlawfully laid off We
correct this error
We agree with the judge's finding that the Respondent unlawfully re-
fused to bargain over the effects of the sale of part of its business We do
not rely, however, on his entire rationale, but rely on his finding that
Thomas Bailey Sr and his attorney gave Union Representative Ellis the
runaround and disclaimed any responsibility for bargaining with the
Union
even though he engaged in picket line misconduct.
For the reasons stated in our respective opinions in
Clear Pine Mouldings, 268 NLRB 1044 (1984), we
do not agree.
Briefly, the judge found the facts to be as fol-
lows. At approximately the 5 p.m. quitting time,
Blalock, who had been picketing with other em-
ployees near the Respondent's property, came
though a double gate onto the Respondent's prop-
erty and began cursing loudly and making gestures
at employees as they left the building to reach their
cars. He was observed to be holding either a stick
or an iron bar. Employee Wayne Lewis came onto
the premises and led Blalock back to the gate.
Then Blalock "beat on" employee C. W. Pittman's
car as it exited the gate and did $200 worth of
damage.
The judge, applying then-current Board law,
found that Blalock's conduct was not sufficiently
egregious to warrant the Respondent's failure to re-
instate him. In Clear Pine Mouldings, we held that
henceforth we would apply the test the United
States Court of Appeals for the Third Circuit set
forth in NLRB v. W. C. McQuaide, Inc., 3 and find
that an employer is justified in not reinstating a
striker whose "misconduct is such that, under the
circumstances existing, it may reasonably tend to
coerce or intimidate employees in the exercise of
rights protected under the Act."4
We find that Blalock's conduct clearly meets this
test. Blalock intentionally took a club and used it to
inflict $200 damage to nonstriking employee Pitt-
man's automobile. This conduct clearly tended to
coerce or intimidate employees in the exercise of
their protected right to refrain from striking. The
fact that the strike was an unfair labor practice
strike does not warrant a different result. In our
view the Act should not protect such obviously in-
timidating conduct as using a weapon to damage a
fellow employee's vehicle. 5 Accordingly, we
modify the judge's remedy to provide that Andrew
Blalock is not entitled to be made whole for any
loss of earnings resulting from the Respondent's
failure to reinstate him.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Central
3 525 F 2d 519 (3d Or 1977), denying enf in part to 220 NLRB 593
(1975)
4 Id at 528 (quoting Operating Engineers Local 542 v NLRB, 328 F 2d
850, 852-853 (3d Or 1964), cert denied 379 U S 826)
5 In Clear Pine Mouldings we found almost identical conduct by an
unfair labor practice striker to be unprotected 268 NLRB 1044 at 1047-
48 and 1049 (employee Anderson)
273 NLRB No. 159
CENTRAL MACK SALES 1269
Mack Sales, Inc., Central Truck Leasing Corpora-
tion, North Carolina Coastal Motor Lines, Inc.,
and D. Thomas Bailey, Sr., Raleigh, North Caroli-
na, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART, Administrative Law
Judge. These consolidated cases were heard on Septem-
ber 21 through 24, 1981, in Raleigh, North Carolina, pur-
suant to charges filed by International Union of Operat-
ing Engineers, Local 465, AFL-CIO, affiliated with
International Union of Operating Engineers, AFL-CIO
(Union), and a consolidated complaint.' The complaint
alleges that Central Mack Sales, Inc. (Sales, Central
Truck Leasing Corporation) (Leasing, North Carolina
Coastal Motor Lines, Inc.) (Coastal) and D. Thomas
Bailey Sr., an individual, are alter egos, and, as a single
integrated employer, have violated Section 8(a)(1), (3),
and (5) of the National Labor Relations Act (the Act).
The Respondents, in answering the successive com-
plaints, denied commission of unfair labor practices.
Issues
1. Whether the Respondents are a single employer
within the meaning of the Act.
2. If so, whether Sales and the other Respondents, as
alter egos, violated Section 8(a)(5) and (1) of the Act by
unilaterally making the following changes in employees'
terms and conditions of employment without prior notice
to and bargaining with the Union as certified bargaining
representative of such employees:
(a) Requiring that employees present physicians' ex-
cuses in order to receive sick leave benefits.
(b) Requiring employees to present physicians' notes in
order to receive holiday pay when the employees were
absent the day before and/or after the holiday.
(c) Modifying the attendance policy to provide for the
discharge of any employee who is absent for 5 consecu-
tive days without notifying the employer.
(d) Discontinuing the prior practice of providing em-
ployees with free .coffee.
(e) Increasing the amount of continuous service an em-
ployee must have to become eligible for paid vacation.
1 The docket entries are as follows: In Case 11-CA-9325, the charge,
first and second amended charges were filed on August 11 and 29, 1980,
and April 28, 1981, respectively. The charge, first and second amended
charges in Case 11-CA-9385 were filed on September 3, October 10,
1980, and April 28, 1981, respectively. The charge, first and second
amended charges in Case 11-CA-9638 were filed on January 13, April 28
and May 15, 1981. The complaint in Case 11-CA-9325 issued September
18, 1980. The order consolidating Cases 11-CA-9325 and 11-CA-9385
and first consolidated complaint issued October 16, 1980. The second
order consolidating Cases 11-CA-9325, 11-CA-9385, and 11-CA-9638
and amendment to pnor consolidated complaint issued February 27, 1981.
The amended consolidated complaint in all three matters issued in final
form on May 18, 1981.
(f) Laying off four employees when work was slack,
rather than continuing the former policy on those occa-
sions of having such employees do clean-up and mainte-
nance work.
3. Whether the Respondents further violated Section
8(a)(5) and (1) of the Act by:
(a) Refusing to discuse with union representatives the
above-described unilateral change i during negotiating
sessions for a first contract.
(b) Failing to notify the Union of its decision to sell
the assets of Sales before completion of that sale.
(c) Not bargaining with the Union concerning the ef-
fects on employees of its decision to sell Sales' assets.
(d) Telling employee-bargaining representatives during
contract negotiations that it would not give the Union a
contract.
(e) Declining to continue with contract negotiations
because of the pendency of unfair labor practice charges
filed against the Respondents by the Union.
4. Whether the strike that commenced on August 11,
1980, 2 was a unfair labor practice strike.
5. Whether the Respondents, in reprisal for the union
sympathies of employees, violated Section 8(a)(3) and (1)
of the Act by discriminatorily:
(a) Reducing the number of hours worked weekly by
employees.
(b) Imposing more onerous working conditions by fail-
ing to operatively maintain and purchase soap concen-
trate for the steam jenny, a mechanical cleaning device.
(c) If the strike referred to in item 4, above, was an
unfair labor practice strike, refusing to reinstate one
unfair labor practice striker and delaying the reinstate-
ment of eight others following an unconditional offer to
return to work.
6. Whether the Respondents violated Section 8(a)(1) of
the Act by threatening employees with unspecified re-
prisals because of their union and protected concerted
activities.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, and to file briefs. Briefs, submitted by
the General Counsel and the Respondents, have been
carefully considered.
On the entire record s of this case and by observation
of the witnesses and their demeanor, I make the follow-
ing
2 All dates hereinafter are 1980 unless otherwise specified.
3 The General Counsel, by motion attached to his brief, objects to re-
ceipt of the Respondents' posthearing offer to five court records concern-
ing offenses by Andrew Blalock, the unreinstated striker, other than File
No. 80 CR 47840, the only such record the Respondents had been grant-
ed leave to .obtain and introduce as their Exh. 15 after the close of the
hearing. Noting that the proferred court records, beyond the one de-
scribed, had not been contemplated or explained during the hearing, do
not relate to the present proceeding, and exceed the ruling as to what
might be submitted postheanng, no foundation has been established for
their receipt. Accordingly, the General Counsel's motion is granted and
only File No. 80 CR 47840 is received in evidence. The additional court
records attached thereto remain only as rejected exhibits. ,
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION: THE RESPONDENTS' STATUS AS A
SINGLE EMPLOYER
The parties agree that Sales 4 and Leasing 5 both North
Carolina corporations, during the 12 months prior to is-
suance of the second amended consolidated complaint
herein, a representative period, operated facilities in Ra-
leigh, North Carolina. In addition, Leasing had other lo-
cations in North and South Carolina. During the above
period, Sales and Leasing each derived gross revenues in
excess of $500,000, and each received products valued in
excess of $50,000 at their Raleigh facilities from points
directly outside the State of North Carolina.
On the foregoing facts I find that, during the times
material herein, Sales and Leasing are employers en-
gaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
Although the Board asserted junsdiction over Coastal
in a 1975 case, 8 the Respondents deny that the jurisdic-
tional findings are still valid at this time as Coastal, al-
though still existing as a corporate shell, has not been
operational since about September 1, 1977.7
The General Counsel, contrary to the Respondents,
has alleged that Sales, Leasing, Coastal, and D. Thomas
Bailey Sr. 8 constitute a single integrated enterprise en-
gaged in the businesses described above from common
facilities in Raleigh, North Carolina, and that they are a
single employer within the meaning of Section 2(2) of
the Act.
Bailey Sr. has been president of Sales since 1964 when
that company was organized as a franchise retail dealer
of Mack trucks. He became president of Leasing in late
1967 or early 1968, when it was organized to lease trac-
tors and trailers to selected accounts. From their incep-
tion, continuing until the early 1970s, Bailey Sr. was the
sole stockholder of both corporations.
About 1966 or 1967, Bailey and First Citizens Bank
and Trust Company established Coastal as a joint ven-
ture, each owning 50 percent of the stock. Earlier, the
bank had repossessed the equipment of a poultry-hauling
operation following that company's default, 8 and the
venture had been undertaken to keep the bank from
losing money on the repossession. Coastal, however, was
beset early by financial difficulties and, following a 1978
lawsuit against Bailey, his wife, Sales, Leasing, and
Coastal brought by the bank on a note of indebtedness
for which all were liable, Bailey became and remained
4 Until January 7, 1981, when its assets were sold, Sales was engaged
in the retail sale and repair of Mack trucks
5 Leasing is in the business of leasing trucks to selected customers
6 See NC Coastal Motor Lines, 219 NLRB 1009 (1975) There It was
found that Coastal, a North Carolina corporation, was engaged in the op-
eration of freight terminals in several States and in the interstate transpor-
tation of freight by motor carrier, and that, during a representative 12-
month penod, Coastal had derived gross revenues in excess of $50,000
from the interstate transportation of freight
7 Coastal has been continued only to wind up its affairs and for possi-
ble sale as a tax loss
8 D Thomas Bailey Sr will most frequently be referred to herein as
Bailey Sr to distinguish him from his son D Thomas Bailey Jr, also
active in the above companies
9 At the time, Bailey was a member of the bank's board of directors
the sole stockholder of Coastal. As noted, Coastal
stopped operating in 1977
In 1972, while all three corporation were still active,
Bailey gave half of his shares in Sales and in Leasing to
his four children, equally divided. These recipients were
his sons, D. Thomas Jr., Samuel T, and James E.," and
a daughter, Nan Bailey Crawford. During the following
year, 1973, Bailey gave the remainder of his stock in
Sales and Leasing to his above-named children, again
about equally divided, except that he retained a 1-percent
interest in each corporation. From the time of these di-
vestitures to the present, Bailey Sr. has continued to
serve as president and board chairman of both corpora-
tions although personally owning but a small minority of
their stock. He also has remained president, board chair-
man, and sole stockholder of Coastal."
Since 1973, the officers of Sales have included Bailey
Sr., as president, Sam T. Bailey, as vice president and
either assistant treasurer or assistant secretary, and Gwen
M. Jones, as secretary-treasurer." The Sales board of di-
rectors since 1973 has included Bailey Sr., as chairman,
and Bailey Jr., Samuel T. Bailey, and Gwen Jones.
The same persons also served in like capacities as offi-
cers and directors of Coastal between 1975 and 1977, and
of Leasing since 1973, except that Bailey Sr. described
Bailey Jr. as a director but not an officer of Leasing 13
In addition to the above, Bailey's daughter, Nan Bailey
Crawford, presently serves as principal bookkeeper and
as an officer for Sales and for Leasing," and William H.
Hatton, during the times material herein, was vice presi-
dent and operations manager of Sales. Hatton, who is not
related to the Baileys, never served as a director of any
of the corporations.
Bailey Sr testified that he is in charge of labor rela-
tions for the three corporations" and controls their day-
to-day operations. At the hearing of this matter, Bailey
Sr. reaffirmed as still true certain testimony given by him
in a November 1979 deposition. There, Bailey, after trac-
ing the history of his involvement with the three corpo-
rations and the stock conveyances to his children,
avowed that, although he owned but 1-percent of Coast-
'° James E Bailey worked as parts manager
" Bailey's children have never owned stock in Coastal
72 Bailey Sr, on whose testimony much of the discussion concerning
the issue of single employer is based, identified Jones as the office book-
keeper who, prior to her departure at an unrecalled date, had held vari-
ous offices in the corporations, as described
The same persons also served in like capacities as officers and direc-
tors of Coastal's dispatchers and, from the record of the present case, it is
apparent that for some time he was active in Coastal's operations Since
1977, Bailey Jr apparently derives his principal livelihood from sources
unrelated to the family enterprises However, he has retained his posi-
tions as officer and director, returning to assist, as required
74 Bailey Sr is not certain whether his daughter has ever been a direc-
tor of any of the corporations
15 The Respondents, in their brief, argues that, in spite of this testimo-
ny, there was no common labor relations policy as dnvers employed by
Coastal before 1977 were subject to different terms and conditions of em-
ployment than mechanics and parts employees at Sales, while Leasing, at
that time, had had no nonmanagenal employees This assertion, however,
is inapposite as the over-the-road drivers employed at Coastal had been
subject to ICC regulations and as common control of labor relations at
two or more corporations does not require that terms and conditions of
employment at each be uniform With central control, uniform terms can
be negotiated where desired
CENTRAL MACK SALES 1271
al and Leasing, he controlled all the stock in those cor-
porations." When asked in the deposition how he could
control the stock, in view of I he much larger holdings in
these corporations by his progeny, Bailey Sr replied, "I
controlled it because it was my children and I controlled
the stock and they would have gone along with me."
Still later in the deposition, Bailey asserted that he
"could have" disposed of all the stock, and reiterated his
control of all the stock of Leasing and Sales. As noted,
at the time of the hearing, Bailey Sr. personally owned
all of Coastal's stock.
Although Coastal, in 1977, employed several mechan-
ics, Leasing, until early 1981, had no employees Basical-
ly, between the three corporations, all employees, includ-
ing mechanics, were carried on Sales payroll. Accord-
ingly, Sales' mechanics serviced and provided parts for
trucks owned by Leasing and Coastal. Sales also sold
trucks to Coastal
In addition to its headquarters facility in Raleigh,
Leasing also had two other locations in South Carolina,
one in Georgia, and various additional facilities in North
Carolina. Certain Sales-employed mechanics were regu-
larly assigned to service and provide parts for Leasing's
trucks in Raleigh and at these outlying locations as well.
Leasing also received truck servicing and parts from out-
side concerns In addition to working on Leasing's
trucks, Sales' mechanics provided truck maintenance
services for the general public and only approximately 10
to 20 percent of Sales' repair services were performed
for Leasing Although Sales provided services and parts
to trucks owned by Leasing and Coastal and, as noted,
sold trucks to Coastal, Sales made no purchases from
those companies.
Sales billed Leasing and Coastal for labor, services,
and parts, but Coastal, in financial difficulty, only paid
some of those bills, as determined by Bailey Sr., the chief
executive officer of each corporation. Bailey Sr. testified
that in January 1981 Sales was compelled to sell its assets
because Coastal's continued and mounting indebtedness
to Sales deprived Sales of the ability to continue to meet
its obligations. As of about 1975, Coastal owed Sales ap-
proximately $300,000 for parts and services. Between
1975 and 1977, this indebtedness increased to $900,000.
Nonetheless, Sales continued to perform services and to
provide parts for Coastal. From 1975 to 1979, both
Bailey Sr., and Leasing made loans to Sales. Bailey's per-
sonal loans to Sales totaled at least $175,000, documented
by interest-bearing notes. 17 By October 1, 1979, Sales
had accumulated a total indebtedness to Leasing in
excess of $387,600, which sum increased to almost
$392,000 by the end of the year In spite of the continued
existence of these obligations by Sales 1 o himself and to
Leasing, Bailey Sr. did not include either Leasing or
himself in the affidavit listing Sales' creditors, prepared
in accordance with state law in connection with the sale
of Sales' assets in 1981.
16 In that deposition, Bailey even listed the value of the shares of
Sales, Leasing, and Coastal among his personal assets, years after having
given them to his children
17 There is no showing that this indebtedness was ever repaid
Although Coastal stopped operating in 1977, it none-
theless continued to accumulate debt. A demand note ex-
ecuted by Bailey Sr., as Coastal's president, to Leasing,
dated October 1, 1979, reflected an obligation decently in
excess of $337,000, an amount that increased to well over
$582,700, evidenced by a like note executed Just 1 year
later.' 8
When Coastal stopped operating, it was indebted to a
bank in the amount of about $400,000, evidenced by a
note secured by the senior Bailey's real estate, including
his home. As part of this transaction, the Baileys also
mortgaged assets of Leasing to the bank. Accordingly,
with the approval of Leasing's directors, Bailey Sr. and
three of his children, Leasing has been making significant
monthly payments on this note to the bank to avoid fore-
closure.
Bailey explained that as principal officer and sole
shareholder of Coastal it had been his decision to seek
loans for Coastal in excess of $500,000 from Leasing,
rather than from Sales, as the latter corporation had no
money.
Over a period of 7 years, rather than issuing monthly
notes of indebtedness, the Baileys had followed a prac-
tice of merely recording their inter sese loans in the
books of the various corporations. These were summa-
rized by the accountant, who usually audited the books
around October 1 of each year, at which time notes were
consolidated as of that date.
When, in 1981, Sales' assets were sold, its mechanics
and parts employees, after a brief delay, were transferred
to Leasing's payroll." For mechanics who had been reg-
ularly assigned by Sales to service Leasing's trucks, this
move did not entail a change in duties.
At the time of the hearing, Leasing and the remnants
of Sales and Coastal were headquartered in the same Ra-
leigh offices, using a telephone listed to Leasing. It is
there that the books and records for the three companies
are kept and the officers and directors meet and conduct
business. 20
In Bryar Construction Co.," another case where a
father had transferred legal ownership of a company to
his children while continuing in operative control, Ad-
ministrative Law Judge Ries, in his Board-approved de-
cision, restated the rule as follows.
In determining whether two or more businesses
are sufficiently integrated so that they may be fairly
treated, for Jurisdictional and other purposes, as a
single enterprise, the Board looks to four principal
factors: (1) common management; (2) centralized
control of labor relations; (3) interrelation of oper-
18 Bailey explained that the continuing increases in Coastal's indebted-
ness level after 1977 was required to centralize Coastal's widely scattered
equipment and to service the same before It could be sold
15 As Leasing had not, until then, had its own employees, a delay was
required to enable printing of paychecks in Leasmg's name By the time
of the heanng, Leasing had three employes on its payroll who previously
had worked for Sales
20 Earlier, and in 1977, the three companies had been located in facili-
ties in a different part of the Raleigh area There, Sales and Leasing had
shared offices in one building, and Coastal had operated from another
across the street, under the day-to-day administration of Bailey Jr
21 240 NLRB 102, 103-104 (1979)
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ations; and (4) common ownership or financial con-
trol. Radio and Television Broadcast Technicians
Local Union 1264 v. Broadcast Service of Mobile,
Inc., 380 U.S. 255, 256 (1965); Sakrete of Northern
California, Inc. v. 1V.L.R.B., 332 F.2d 902, 905, fn. 4
(9th Cir. 1964). "The Board has determined that no
single criterion is controlling, although it considers
the first three, which evidence operational intergra-
tion, more critical than the fourth, common owner-
ship." N.L R.B. v. Triumph Curing Center and M E
Lee d/b/a Lee's Sewing Company, Inc., 571 F.2d
462, 468 (9th Cir. 1978), enfg 222 NLRB 627
(1976).
In the present matter, as in Bryar Construction Co.,
supra, it is clear that Bailey Sr., as chief executive officer
and board chairman of the three corporate Respondents,
was actively in charge of operations, including labor re-
lations. It was he who had invested in these companies
and continued to operate and refinance them according
to his own judgment. Although the Respondents in their
brief point out that since 1973 Bailey's children have
been the majority shareholders and directors of Sales and
Leasing and, under the bylaws of each corporation, the
president is subordinate to and serves at the directors'
pleasure and authorization, as noted in Bryar, the vesting
by Bailey Sr. of legal ownership of Sales and Leasing in
his offspring after having obtained all the shares of those
corporations "seems of scant significance in light of the
plainly dominant role he played in the affairs" of the
Bailey family and the corporations in question. 22 Bailey
Sr. himself described his status in his 1978 deposition,
years after conveyance of his shares in Leasing and
Sales. There he attested to his continued control over
those companies and his right to dispose of their stock.
Significantly, too, in that deposition, Bailey Sr. continued
to list the value of those shares among his personal
assets. The financial dealings between Bailey Sr., Leas-
ing, and Sales can hardly be considered to have been
conducted at arm's length when the major obligations of
Sales to Leasing and to Bailey Sr., personally, were not
recorded in the statutorily required list of Sales' creditors
when its assets were sold. As noted, Bailey had never re-
leased to his children ownership of his shares in Coastal.
The three corporations could not have been more
interrelated financially and functionally. They dealt with
each other when operative and, by virtue of their
common control, extended to each other vast aggregat-
ing unsecured credit. As a result of these continuing
inbred obligations, Sales could no longer continue in
business, even with the extensive financial support from
Leasing and Bailey Sr. Although Leasing is still operat-
ing, its assets, too, have been pledged because of the bur-
dens placed on it by the interrelated financial difficulties
of Sales, Coastal, and the Baileys. The resources of
22 While the record does show that certain notes were reissued annual-
ly by vote of the directors who, as close family members, had ready
access to each other, key actions by Batley Sr proceeded without formal
authorization Accordingly, corporate minutes show no written authori-
zation for Bailey's personal loans to Sales, for the sale of Sales' assets,
and for the consolidation of Sales' Indebtedness to Leasing Into a single
note
Bailey Sr. and those of the corporation are completely
entwined. Even if the three concerns were not to be
judged a single enterpnse, during the period encom-
passed by the complaint, Leasing, through the agency of
Bailey Sr., would be at least a joint employer of the
Sales employees, and jurisdiction would attach in that
manner. 2 3
It also is appropriate to assert jurisdiction over Bailey
Sr. as an individual alter ego to the corporate Respond-
ents. Bailey, in effect, was the employer of the Sales em-
ployees and, when the assets of that Company were sold,
he moved certain employees to Leasing's payroll. As
will be shown, he is the responsible force behind the
unfair labor practices to be found hereafter. From the
record herein, it clearly is appropriate that the order to
be issued attach to a respondent who is responsible for
the infractions found to the extent that he may be capa-
ble of remedying them.24
Accordingly, I find that Sales, Leasing, Coastal, and
Bailey Sr. constitute a single integrated employer, herein-
after referred to as the Respondent, and that this employ-
er is an employer engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.25
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Refusals to Bargain and Related
Discriminatory Conduct—Facts and Conclusions
1. The appropriate unit; majority status
The pleadings establish that on April 8, following a
representation election conducted on March 31 in Case
11-RC-4835, the Union was certified as the exclusive
bargaining representative of employees in the following
unit:
All parts department employees, mechanics, body
and paint shop employees, cleanup steam room em-
ployees at Central Mack Sales' Raleigh, North
Carolina, facility, excluding all office clerical em-
ployees, professional employees, sclesmen, guards
and supervisors as defined in the Act.
The parties are in agreement that on the date of the
election there were approximately 19 employees in the
bargaining unit. All events herein occurred during the
certification year. As it has been found above that at all
times material herein Sales, Coastal, Leasing, and Bailey
Sr. were a singnle integrated employer, it hereby is con-
cluded that the duty to bargain with the Union on behalf
23 Bryar Construction Go, supra at 104, Quality Motels, 194 NLRB
1035, 1037 (1972)
24 See Ski Craft Sales Corp, 237 NLRB 122 (1978), Spiegel Trucking
Go, 257 NLRB 230 (1981)
25 None of the corporate Respondents has yet been dissolved and no
Respondent has been placed in bankruptcy
CENTRAL MACK SALES 1273
of employees in the above-described unit devolved upon
each of them
2. The negotiating sessions"
Claiborne P. Ellis, the Union's business manager, testi-
fied that before the first contract negotiating session with
the Respondent following certification, he was advised
by several employees that the Respondent had changed
certain preexisting working conditions Ellis was in-
formed that the Respondent had discontinued its practice
of providing free coffee for the employees, had stopped
making change for employees to facilitate use of in-plant
vending machines, had shortened the regularly assigned
workweek, and had increased the period of continuous
service required for employees to qualify for paid vaca-
tions. While Ellis did not separately communicate with
the Respondent concerning these reported changes, he
prepared contract proposals addressed to these modifica-
tions.27
The first contract negotiating session took place at the
Respondent's office on June 24. The Union was repre-
sented by Ellis and employees Douglas Critcher and Jess
Martindale Present for the Respondent were Bailey Sr.,
his son, Vice President Sam T. Bailey, and Sales Vice
President and Operations Manager William H. Hatton 28
Ellis began the meeting by presenting the Union's total
contract proposal to Bailey Sr. Ellis declared his prefer-
ence that negotiations be conducted in a professional,
businesslike way Bailey agreed, but stated that the
Union could not make him do a "damn" thing and he
did not know if the Union would have a contract.
In response to the Union's written proposal that the
Company should continue the practice of providing free
coffee to employees, Bailey Sr. replied that there would
be no more free coffee; it cost too much." No progress
26 On the matter of initial animus, employee Hem y Shields Jr testified
that in March a group of about seven employees, including Shields and
Troy Bullard, informed Bailey Sr that they had de c Wed to vote a union
into the shop Bailey had replied that that was fine If they wanted to
vote for the Union, they should do so However, later that day, during
another break taken by Shields and employee Jerry RIgsbee in the office,
Bailey Sr, also present, told the men that he hoped they all knew what
they were doing It could get them in serious trouble if they did not
know what they were doing Bailey continued that the employees all
could Join women's lib, it did not make any difference to him The Gen-
eral Counsel contends that Bailey's statement that the Union could, in
effect, get the employees in serious trouble if they did not know what
they were doing constituted a threat of unspecified reprisals in violation
of Sec 8(a)(1) of the Act However, in Krone°, hoc, 228 NLRB 319, 321
(1977), it was found that similar statements to emplcyees by a supervisor
did not contravene the Act's provisions but merely were permissible
statements of permissible opinion Unlike here, in Aranco, supra, the su-
pervisor's remarks were phrased "crudely and profanely" and, according-
ly, afforded greater potential for intimidation Accordingly, I do not find
that the statement by Bailey Sr on that occasion was in violation of Sec
8(a)(1) of the Act
" All matters referred to above as alleged unlawful unilateral changes
will be considered in separate detail below
28 The Respondent concedes that Hatton was a supervisor and agent
of Sales within the meaning of Sec 2(11) of the Act, but denies his au-
thority with regard to the other Respondent corporations Having found
above that Sales, Leasing, and Coastal are alter egos it is concluded that
Hatton also was a supervisor within the meaning of the Act of the other
corporations
28 The Union's proposal during the first session that change be made
available to employees for use in the vending machines was agreed to by
was made during the first session, or thereafter, concern-
ing the Union's proposal that there be no change in the
Company's sick leave procedures, 3 ° or to the Union's
proposal for continuation of the policy whereby vacation
leave eligibility had required less initial continuous serv-
ice by the employees. The Respondent rejected the vaca-
tion proposal also on the ground that it would be too
costly.
During the first session, Ellis asked Bailey Sr. to fill in
blanks left in the first, second, and third steps of the pro-
posed grievance procedure with the names of the Re-
spondent's representatives to be involved in those
stages." Bailey Sr. retorted that there was no use to put
anyone's name in those spaces at that point because the
Union might not have a contract.
The General Counsel contends that statements by
Bailey Sr. at the outset of the June 24 meeting, that the
Union could not make him do a "damn" thing and he
did not know if the Union would have a contract, and
his later refusal during that session to fill in the names of
company grievance-processing representatives on the
ground that to do so served no purpose as the Union
might not have a contract, were both violative of Sec-
tion 8(a)(1) of the Act. As it is clear that the Act does
not compel an employer to agree to any specific propos-
als made by a bargaining agent," Bailey's initial phrase
to the effect that the Union could not make him do a
"damn" thing was an accurate statement of fact and is
not unlawful. However, his two expressions of doubt
that the Union would have a contraar•and his refusal for
that reason to name company representatives to partici-
pate in the grievance procedure, all were violative of
Section 8(a)(1) of the Act. The Board long has recog-
nized that statements of that kind amount to an anticipa-
tory refusal to bargain and inculcates in employees a
sense of futility about the exercise of free choice in se-
lecting a representative for collective bargaining. Hence,
the Board has held that such statements constitute un-
lawful interference with the exercise of Section 7
nghts. 3 3
On June 30, the same individuals met for the second
negotiating session. On that occasion, the parties did not
again discuss the asserted discontinuation of free coffee,
or the Union's proposals concerning sick leave or vaca-
tion eligibility, which had been rejected by the Company
during the first session. Rather, the parties continued to
review the Union's complete contract proposal presented
at the first meeting. On June 30, the parties discussed
wages, checkoff of union dues, and seniority. However,
the grievance procedure, discussed at the June 24 meet-
Hatton during the second negotiating session and is not an issue in this
proceeding
3 ° The General Counsel contends that under the invoked change, em-
ployees still were allowed five paid sick days per year but that physi-
cians' certificates were required for any day that the employees were out
They previously had not been required The Union proposed that such
certificates be submitted only after three consecutives days of absence
Si The grievance procedure had not been settled
32 See El Rancho Market, 235 NLRB 468, 472 (1978)
33 East Belden Corp, 239 NLRB 776, 794 (1978), El Rancho Market,
supra While these remarks were not separately alleged as violations in
the complaint, they are closely related to matters actually alleged and
were not disputed at the hearing
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, again was considered at the second session and
Bailey then announced that he, as company president,
would hear the first step of the grievance procedure.
The parties met again for a third session on July 30. In
addition to those who had been present at the earlier ses-
sions, the July 30 meeting also was attended by Leonard
Duggins of the Federal Mediation and Conciliation Serv-
ice and Gary Cupp, an insurance consultant retained by
the Union."' The mediator asked the parties to go over
the contract again so that he could assess their positions.
As before, no company proposals were presented.
Toward the end of that session, Cupp, the Union's insur-
ance consultant, presented and explained the Union's
proposals concerning health and life insurance. This part
of the discussion continued for about 15 minutes toward
the end of the meeting. Just before adjournment, Bailey
Sr. asked Cupp, "If this union mess doesn't come
through, can I buy that insurance?"36
3. The Respondent's refusal to continue negotiations
during the pendency of unfair labor practice
charges.
A fourth negotiating session was scheduled for Friday,
August 8. However, on July 30, after that day's negotiat-
ing session, Ellis, acting for the Union, filed unfair labor
practice charges against the Respondent in Case 11-CA-
9301.36
Subsequently, Ellis received from the Respondent a
carbon copy of the following letter, dated August 4, to
mediator Duggins from Bailey Sr.:
We are surprised to receive in the mail today
from the National Labor Relations Board a charge
of unfair labor practices instituted by Mr. Ellis of
the International Union of Operating Engineers.
Under the circumstances, we feel the meeting to
be held on Friday, August 8, should be postponed
until this matter had been settled.
On August 5, Ellis sent the following mailgram to
Bailey Sr.:
In reply to your letter dated August 4, 1980, we do
not agree to postpone meeting scheduled for
Friday. Negotiations should continue until charges
have been investigated.
In reply, Ellis received the following letter, dated
August 6, from Bailey Sr.:
34 The Conciliation commissioner, Duggms, had come to the meeting
at Ellis' request, and with Bailey's consent Ellis explained that after no
progress was made at the June 24 bargaining session, he had met with
unit employees to report on the negotiations The employees had wanted
to strike at that time, but Ellis had rejected the Idea before a mediator
could assist in negotiations
35 Contrary to the General Counsel, I find that while Bailey's question
as to whether he could buy that Insurance if this union mess does not
come through reflects a negative attitude toward the Union, unlike cer-
tain of Bailey's earlier remarks found violative herein, this comment was
framed too speculatively to constitute an unlawful anticipatory refusal to
bargain within the meaning of Sec 8(a)(1) of the Act
36 Case 11-CA-9301, which later was withdrawn, is relevant here only
with respect to the Respondent's reaction to that charge having been
filed
Our letter of August 4 is very clear, and under
no circumstances will we negotiate while unfair
labor practice charges are outstanding.
The Respondent's refusal to continue to meet with the
Union while unfair labor practice charges were pending
before the Board, a position documented by its letters of
August 4 and 6, is patently unlawful." Accordingly, I
find that by such conduct the Respondent refused to bar-
gain within the meaning of Section 8(a)(5) and (1) of the
Act.
4. The strike and the refusal to promptly reinstate
certain strikers after the unconditional offer to
return to work
Ellis, following receipt of Bailey's August 6 letter,
asked the bargaining unit employees to meet with him at
his office. Sixteen employees attended Ellis told the em-
ployees that Bailey had completely refused to meet. In
response to their questions as to what could be done,
Ellis told them that unfair labor practice charges had
been filed and recommended that they wait while the
Board forced Bailey back to the bargaining table. Re-
sponding to questions as to how long that process could
take, Ellis told the group that it could take the Board up
to a year. When employees asked what they could do to
compel Bailey to return to the table, Ellis declared that
their only other alternative was to take strike action.
Ellis, however, stated his opposition to a strike. Nonethe-
less, at the urging of employee Clinton Jackson, who
told the group that Bailey had much work in the shop to
get out and a strike would be a good way to get him to
negotiate, the 16 employees voted to stop work.
The strike began on August 11. All 18 of the employ-
ees then in the unit were on the picket line during the
first day. The men carried picket signs prepared by Ellis
which read "Mack truck employees/on strike/unfair/
Mr. Bailey refused to meet." The various signs bore dif-
ferent legends, but all referred to unfair conduct by the
Respondent.
About August 25, while the strike was still in progress,
the Respondent's vice president Hatton told employees
on the picket line that their insurance would be canceled
and that they would have to turn in their uniforms or
have the costs deducted from their last paychecks. While
Hatton was still at the line, he agreed to give Bailey
Ellis' message that the Union was ready to resume nego-
tiations at any time. However, Ellis did not receive a re-
sponse.
On August 28, Ellis requested that Hatton ask Bailey
Si. to come out. When Bailey did so around 9:30 a.m.,
Ellis handed him the following letter:
On behalf of all employees presently on strike,
we are hereby making an official unconditional re-
quest to return to work Tuesday, September 2nd at
8:00 a.m.
37 See Pine Manor Nursing Home, 230 NLRB 320, 326 (1977), Zenith
Radio Corp, 187 NLRB 785 (1971)
CENTRAL MACK SALES 1275
The Respondent's reply was by letter dated August 28,
signed by Bailey Sr. as president of Sales:
In answer to your hand-delivered letter today, I
have called our attorney and he Is in court all day
August 28, 1980.
He and I will get together tomorrow and give an
answer just as soon as possible.
By letter dated August 29, addressed to Ellis, Bailey
Sr. wrote the following:
We are denying your request as represented in
your hand-delivered letter of August 28 until fur-
ther consultation with our attorney.
In the meantime work in the shop has dropped
off so we do not have enough work for all the strik-
ers since some have been replaced, but we can use
Jack Eatmon and Kevin Cieciorka Tuesday, Sep-
tember 2 if they are interested.
For the others we will employ as needed on a
Seniority Basis.
Subsequently, however, all striking employees who de-
sired to return to work were reinstated by the Respond-
ent, except Andrew Blalock.38
Noting that the strike that began on August 11 had
been precipitated by the Respondent's unlawful refusal to
meet with the Union to engage in further contract nego-
tiations while the Union's unfair labor practice charges
were still pending, in the con text of the Respondent's
other conduct found unlawful herein," in agreement
with the General Counsel, I find that the strike was an
unfair labor practice strike from its inception and that
the strikers are unfair labor practice strikers entitled to
immediate reinstatement as of September 2, the effective
date of the offer to return. 40 However, offers of rein-
statement were not made to the affected employees until
they were separately contacted by the Respondent at
later dates. Allowing 1 additional day for return from
the date that the Respondent telephoned each employee
with its offer to reinstate,'" I find that backpay for the
38 Respondent has based its refusal to put Blalock back to work on his
conduct during the strike This will be considered separately
38 Additional violations of the Act occurring before the start of the
stnke will be discussed below
40 The Union's unconditional offer on August 28 to return the employ-
ees to work as of September 2, rather than immediately, may have been
influenced by Drug Package Co, 228 NLRB 108, (1977), enfd as modi-
fied 570 F 2d 1340 (8th Cir 1978), where the Board found that a 5-day
grace penod was a reasonable accommodation between the interest of the
employees in returning to work as quickly as possible and the employer's
need to effectuate that return in an ordei ly manner However, in Interna-
tional Business Systems, 258 NLRB 181 fn 4 (1981), It was found that the
5-day grace period served no useful purpose where the offer to return to
work had been rejected, and the backpay period in that case was held to
commence as of the date of the offer to return Although here the offer
to return also was initially rejected, the present matter is distinguishable
in that the offer, by its terms, did not become effeci ively until a specified
later date Therefore, while no grace period would have been necessary
here, from the offer made I find that the backpay period for all unfair
labor practice strikers began on September 2
41 Although the Respondent sent employee Robert Liertz his offer of
reinstatement by letter dated October 1, the mailing and an intervening
weekend served to extend Liertz' response period until Monday, October
following stnkers runs from September 2 to the dates
shown below next to their respective names.
James Bech

Sept. 9 (reinstated)
Troy Bullard

Nov. 11 (reinstated)
Ernest Hollifield

Oct. 2 (reinstated)
Curtis Jones Oct. 2 (reinstated)
Wayne Lewis Sept. 9 (reinstated)
Robert Liertz Oct. 7 (reinstated)
Troy Lindsey Sept. 11 (reinstated)"
Henry Shields Jr. Nov. 17 (declined
reinstatement)
Accordingly, the Respondent violated Section 8(a)(3)
and (1) of the Act by refusing to promptly reinstate the
above unfair labor practice strikers in response to the
Union's unconditional offer on their behalf, delivered on
August 28.
5. The Respondent's refusal to reinstate Andrew
Blalock
Although all others who participated in the unfair
labor practice strike that began on August 11 subsequent-
ly were offered reinstatement by the Respondent at the
various times shown, Bailey Sr. has refused to take back
Andrew Blalock because of his picket line conduct.
Bailey Sr. testified that during the week of August 11
around the 5 p.m. quitting time, he saw Blalock, then
picketing, come through the double gate onto the Re-
spondent's property to a distance of 30 to 40 feet. Al-
though Bailey Sr. observed the scene from a distant
window, he related that he could hear Blalock cursing
loudly and see him making signs at employees as they
left the building to go to their cars at the end of the day.
He noticed that Blalock was holding either a stick or an
iron bar. As Bailey Sr. watched, he saw another
employee/picket, mechanic Wayne Lewis, come onto
the premises and lead Blalock back to the gate. Bailey
Sr. then saw Blalock "beat on" employee C. W. Pitt-
man's car as it exited through the gate. Pittman contin-
ued through the gate, turned around, drove back in, and
went to the office where he announced that he was
going to swear out a warrant against Blalock. Bailey Sr.
told Pittman that if he thought it justified, he should do
SO.
At Blalock's May 15, 1981 trial on charges brought by
Pittman, he pleaded guilty to damaging personal proper-
ty, paid court costs of $60, and received a 60-day sus-
pended sentence with 3 years probation. It also was
agreed that Blalock would repair the damage to Pitt-
man's car, estimated at approximately $200, in his
shop. 4 3
Citing Blalock's unauthorized encroachment on com-
pany property while serving as a picket, his cursing of
nonstriking employees, and the damaging attack on Pitt-
man's automoble and his subsequent guilty plea to crimi-
nal charges based on that attack, the Respondent con-
6 Liertz' backpay period ended on October 7, the day he returned to
work
43 Although there is no showing in the record as to when Lindsey was
offered reinstatement, the Respondent has not disputed the shown cutoff
date asserted by the General Counsel
43 Apparently, Blalock had the facilities to do auto body repair work
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tends that Blalock has rendered himself ineligible for re-
instatement.
Blalock, in turn, denied having entered company prop-
erty during the strike and that it was he who had struck
Pittman's car. 4 4
Blalock related that while picketmg outside the gate, 2
or 3 days after the start of the strike, he saw Bailey Jr
accompany Pittman to his car Pittman did not slow
down as he drove through the gate and caused striker
Wayne Lewis to jump out of the way to avoid being hit.
Pittman declared that his car had been hit with the
stick,45 so he made a U-turn and drove back through the
gate, causing Blalock to scramble out of the way. Bailey
Jr. came out and met Pittman. At the time of the inci-
dent, Lewis was about 6 to 8 feet outside the gate.
Blalock explained that he had pleaded guilty because
he did not have the money for an attorney and had not
been told of his right to have a court-appointed lawyer.
In addition, he originally had expected that Lewis would
keep his promise and testify that it had been he, not Bla-
lock, who had had the stick. Lewis had accompanied
him to court on April 17, 1981, when Pittman's charges
were first set for hearing. However, the trial was post-
poned to May 15, by which date Blalock had learned
from friends that Lewis had moved to Alabama. Accord-
ingly, as Blalock did not have counsel, as he could pay
the $60 in court costs to "get out from under the
matter," and was able to repair Pittman's car himself for
less than it might otherwise cost, Blalock pleaded
guilty." Blalock admitted having cursed nonstriking em-
ployees as they left work.47
Noting that, as found above, Lewis was among the
strikers reinstated by the Respondent, Bailey Sr.'s ac-
count of Blalock's picket line activities leading to the de-
cision not to reinstate him is credited. Unlike Blalock,
who rather inconsistently has pleaded guilty to criminal
liability for damaging Pittman's car, while asserting inno-
cence and seeking to blame someone else who was not
there, Bailey Sr. had continuously recognized Blalock's
responsibility. In determining why Blalock alone among
the unfair labor practice strikers was not ultimately rein-
stated, there is no evidence that he had been more active
than other employees either in organizing for the Union
or in urging the strike. Apart from the Pittman event,
there is no demonstrated reason as to why the Respond-
ent should be more reluctant to return Blalock to work
than had been the case with the others, including Lewis.
Nevertheless, having accepted the Respondent's ac-
count that Blalock, during the strike, ventured on com-
pany property, cursed at departing nonstriking employ-
ees, and struck Pittman's car, it still does not appear, in
balancing the Respondent's conduct that provoked the
unfair labor practice strike, in the context of the numer-
44 Blalock described Pittman as a striker replacement who had been
one of the first to apply for work in response to the Respondent's news-
paper advertisement for mechanics
44 Blalock asserted that it had been Lewis who had been holding the
stick, which he described as either a sawed-off pick handle about 1-1/2
inches in diameter or a large tobacco stick
46 Pittman, however, never took his car to Blalock's shop
47 Samuel T Bailey, the Respondent's vice president, testified, con-
trary to Blalock, that he frequently had seen Blalock inside the fence
during the picketing
ous earlier company violations to be considered herein,
against Blalock's picket line misconduct, that it can be
concluded that Blalock's picket line activity was of such
serious nature as to disqualify him from reinstatement
While Blalock's conduct can in no way be condoned, the
Board has held that absent "brutal violence" a picket is
not disqualified from reinstatement in spite of participa-
tion in various incidents of misconduct, which may in-
clude using obscene language, making abusive threats
against nonstrikers, engaging in minor scuffles and disor-
derly arguments, momentarily blocking cars by mass
picketing, and engaging in other incidents of minor mis-
conduct." Consistent with these cases, the Board and
the courts long have held that minor active misconduct
must have been contemplated by Congress when it pro-
vided for the right to strike and that this right would be
unduly jeopardized if any misconduct, without regard to
seriousness, would deprive the employees of the Act's
protective mantle.
Accordingly, it is concluded that neither Blalock's ac-
tions nor his language were sufficient to warrant denying
him reinstatement to his job as of September 2, consistent
with the Union's unconditional offer to return." The
Respondent's failure to so reinstate Blalock is violative of
Section 8(a)(3) and (1) of the Act.
6. The alleged failure to notify and negotiate with
the Union concerning the sale of Sales' assets
Union Business Manager Ellis testified that in mid-No-
vember he telephoned Bailey Sr. 5 ° During the conversa-
tion, Bailey agreed to Ellis' suggestion that a mediator be
present at their next meeting as at the last one on July
30. Ellis also told Bailey Sr. that he had heard through
the grapevine that Bailey had been planning to sell his
business. Bailey Sr. answered that he had no intention of
selling, but that he knew some people who were interest-
ed in buying the business.
Thereafter, on January 8, 1981, Bailey Sr. sent the
Union the following letter.
Central Mack Sales, Inc., on January 7, 1981 en-
tered into a contract to sell its physical assets to
Carolina Mack Sales, Inc. This transaction is effec-
tive January 19, 1981. Central Mack Sales will re-
lease the Mack Truck Franchise and will terminate
its operation.
48 Coronet Casuals, 207 NLRB 304, 305 (1973), and cases cited at 305
fns 6-10
46 Mark Twain Marine Industries, 254 NLRB 1095, 1108-09 (1981)
Blalock's entitlement to reinstatment as an unfair labor practice striker as
of September 2 was not erased by his subsequent guilty plea to charges
based on related picket line misconduct The seriousness of Blalock's
picket line misconduct must be evaluated on the basis of what actually
was done by him His obligation to answer for such conduct in another
forum, while germane in helping to establish Blalock's responsibility, does
not serve to exacerbate its seriousness so as to deprive him of the strong
protections afforded unfair labor practice strikers under the Act which,
otherwise, would be his The penalty imposed did not affect Blalock's
availability for assignment by the Respondent
5 ° Earlier, Ellis had written to Bailey Sr requesting that the parties
resume negotiations, to which Bailey had agreed Accordingly, Ellis' call
to Bailey, descnbed herein, was to work out certain details concerning
resumption
CENTRAL MACK SALES 1277
On behalf of Central Mack Sales, Inc., I repeat
my offer to you to discuss all matters of mutual in-
terest at any convenient time. I do not think it nec-
essary to wait until a mediator becomes available as
you have suggested.
Ellis forwarded the following letter, dated January 15,
to Carolina Mack Sales 51 at its Raleigh office:
The International Union of Operating Engineers
Local 465 is ready, willing and prepared to bargain
concernng wages and other terms and conditions of
employment, including how the sale by Central
Mack Sales to Carolina Mack Sales affects the em-
ployees.
To date both Central Mack Sales and Carolina
Mack Sales have refused to bargain at all.
Please contact me as soon possible for bargaining.
Subsequently, Ellis received the following letter, dated
January 19, from Bailey Sr.:
In reply to your letter dated January 15, 1981,
we take exception to the second paragraph which
states "To date both Central Mack Sales and Caroli-
na Mack Sales have refused to bargain at all."
Your statement is completely false, and the
record will show that you have repeatedly put off
every offer on our part to bargain and not once
have we refused to do so.
We are and have been willing to meet at any rea-
sonable time
Ellis testified that Bailey's letter of January 8, written
1 day after the sale of Sales' assets, was the first notice to
the Union that such a sale had been intended and that it
had been issued approximately 24 hours after the transac-
tion had taken place. He related that within a day of re-
ceipt of the January 8 letter, he had telephoned Bailey
and asked if the latter would be willing to negotiate with
him concerning the future of these employees. Bailey re-
plied that Ellis would have to call his attorney, William
Joslin. However, when Ellis telephoned Joslin, he was
told that the Respondent had no responsibility for the
employees; they no longer were the Respondent's em-
ployees and the responsibility lay with the new compa-
ny.
After receiving notification that Sales' assets had been
sold, Ellis did not thereafter present claims for backpay,
vacation pay, or other monetary compensation, nor did
he ever propose to the Respondent a time and place to
meet to negotiate the effects on employees of the sale. In
explanation, Ellis related that he did not feel he could ef-
fectively present demands or proposals to an employer
who already had sold the assets of his business, but that
he would have proceeded differently had he learned of
the sale in advance.
Bailey Sr. testified that he first had begun to speak to
the purchaser in October 1980 As negotiations pro-
gressed, it was expected that the deal for the sale of the
5 ' Carolina Mack Sales is not named as a respondent in this proceed-
ing
assets could be completed on December 31, but certain
discrepancies delayed in finalization until late in the
afternoon of January 7, 1981. On that date, the parties
signed an agreement whereby the purchaser would buy
Sales' assets effective January 19.
On January 8, the day after execution of the sales
agreement, Bailey told the employees of the sale and sent
the Union written notification. During the week of Janu-
ary 12, Sales was shut down for inventory-taking. Cer-
tain bargaining unit mechanics were assigned to assist in
this, others were laid off. The regular work of the shop
did not continue that week.
Accordingly, the facts as to what occurred in connec-
tion with the sale of Sales' assets in relation to notice to
the Union of the sale and subsequent bargaining are not
in dispute.
Since the U.S. Supreme Court's decision in First Na-
tional Maintenance Corp. v. NLRB, 52 an employer, to
bargain in good faith, need not negotiate with its em-
ployees' bargaining representative over the decision to
close a part of its business However, an employer con-
templating partial closure is required to give the union
timely notice and to bargain concerning the effects of
partial closure on the bargaining unit employees. The
practical effect of the First National Maintenance Corp.
decision is to equate the bargaining obligations of an em-
ployer who would partially close his business with those
of employers contemplating total closure. Accordingly,
while it is now settled that an employer may close his
business, either partially or completely, without bargain-
ing about the decision to do so, the Act requires that the
employer afford the union the opportunity to discuss the
effects of such closure on bargaining unit employees. In
Climate Control Corp., 53 a case involving complete clo-
sure, it was found that the respondent had failed to bar-
gain in good faith with the union about the effects on
employees of the termination of operations. There, as
here, the decision to terminate was a fait accompli, and
the business closed as contemplated by the time the
Union received the respondent's letter of notification.
When, here, Ellis attempted to secure negotiations on
behalf of the affected employees, he was referred by
Bailey to the Respondent's attorney, who, in turn, dis-
claimed the Respondent's responsibility for those em-
ployees and referred him to the purchaser of Sales'
assets, Carolina Mack Sales. Ellis then wrote to that
company to request bargaining, also without success.
While it is conceivable that Ellis might have been more
agressive in seeking negotiations, particularly in view of
the later response from Bailey Sr. protesting interest in
same, I find that after the runaround Ellis had received
from Bailey Sr. and the Respondent's attorney Joslin,
after first having been presented with an accomplished
sale, Bailey's offer to bargain in his letters of January 8
and 19 was not in good faith Contrary to the Respond-
ent, I conclude that the Union has not slept on its rights.
The Respondent's bad faith here concerning the Union is
spotlighted by the mid-November conversation where
52 452 U S 666 (1981)
53 257 NLRB 173 (1981)
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bailey Sr, when asked by Ellis whether the Respondent
planned to sell its business, had denied same, although
discussions concerning such a sale actually had been in
progress since October. The Respondent's conduct
herein, as indicated by the General Counsel, is consistent
with the Respondent's earlier violation in N C. Coastal
Motor Lines, 54 where Coastal, one of the Respondent
alter egos found herein, was held to have breached Sec-
tion 8(a)(5) and (1) of the Act by unilaterally terminating
the bargaining unit operation without notice to the union
and without offering to bargain over the effects
Under these circumstances, I find that the Respondent
has failed to bargain in good faith with the Union about
the effects of the partial termnination of its operations on
the bargaining unit employees, in violation of Section
8(a)(5) and (1) of the Act.
7. The alleged unilateral change in terms and
conditions of employment
The General Counsel contends that the Respondent
contravened its bargaining obligation by bringing about
certain unilateral changes in terms and conditions of em-
ployment of bargaining unit employees after the March
31 election without notice to or consultation with the
Union. Except where indicated, these contentions have
not been challenged by the Respondent.
The Board in Master Slack 5 5 again stated the general
principles of law applicable to the General Counsel's
contention:
Unilateral changes of "wages, hours and terms and
conditions of employment," as defined in Section
8(d), at a time when an employer its obligated to
bargain with the duly designated representative of
the employees in an appropriate unit, violates Sec-
tion 8(a)(5) of the Act. 3 This applies even absent an
independent showing of overall subjective bad
faith 4 and is not excused by "economic expediency,
even in good faith."5
3 See NL R B v Bernie Katz, etc. d/b/a Williamsburg Steel
Products Co, 369 US 736, 747 (1962); NLRB v Cci C Plywood
Corporation, 385 U S 421 (1967), reversing 351 F 2d 224 (C A 9,
1965), NLRB v Acme Industrial Co, 385 US 432 (1967)
These principles also are applicable where an employer changes
terms and conditions of employment during the pendency of objec-
tions to an election which eventually results in certification
(Mike O'Connor Cheverolet-Buick-GMC Co, Inc , etc, 209 NLRB
701, 704 (1974), reversed on other grounds 512 F 2d 684 (C A 8,
i975))
4 Id
6 Fleming Manufacturing Company, Inc , 119 NLRB 452, 465
(1957)
In the context of the above general principles, the
General Counsel alleges that the following occurred:
54 219 NLRB 1009 (1975)
66 230 NLRB 1054 (1977), enfd 618 F 2d 6 (6th Or 1980)
a. The alleged more stringent policy for calling in
when absent
The Respondent by posted notice, dated April 15, 56 to
all Sales shop personnel on the subject "Absent from
work" announced the following.
Any employee absent from work without proper
notification to the company for a period of five (5)
working days, will be automatically terminated.
Although Clinton Jackson 57 testified that while he
personally had followed a practice of telephoning Shop
Foreman Bob Jacklet, 55 he had not known of the prior
existence of the rule set forth in the April 15 bulletin
providing for discharge of employees who have not
called in after 5 days of absence.
The reasonability of the policy posted on April 15 is
not the issue here. The General Counsel's evidence that
this rule did not exist before the Union's certification is
unrebutted, and the posting of the rule at the time indi-
cated is undisputed As the rule created a different policy
affecting the obligations and discipline of employees and
the terms and conditions of their employment, the Re-
spondent clearly was bound to bargain with the Union
concerning this matter prior to implementation. The Re-
spondent's failure to do so was violative of Section
8(a)(5) and (1) of the Act.
b. More stringent requirements of physician's receipts
to receive sick benefits
Also on April 15, the Respondent posted the following
bulletin to Sales shop personnel on the subject of vaca-
tions and sick leave:
It is and has always been the Company policy,
rules and regulations, that the vacation and sick
leave" and the amount of each is based on the
length of continued service.
Also, in order to receive sick leave benefits, em-
ployee will have to have a doctor's receipt of his
visit.
John Curtis Jones" testified that before the represen-
tation election the Respondent had followed a policy of
providing 5 paid sick days per year. Sick employees
could call Shop Foreman Jacklet, but no doctor's note
ever had been required. This changed a week after the
Union was certified as bargaining representative, when
the April 15 bulletin was posted requiring, as applied,
that employees who were out even for but 1 day submit
a doctor's receipt stating the reasons for absence.
66 The Union was certified on April 8
57 Jackson first left the Respondent's employ about 1975, but returned
there in 1976 continuing to work as a mechanic until the strike of August
11 After the strike, he again worked for 2 more months before leaving
the Respondent's employ
58 In accordance with the stipulation of the parties at the hearing, I
find Jacklet to be a supervisor within the meaning of Sec 2(11) of the
Act
69 The Respondent provides 5 paid sick days a year
6 ° Jones was employed by the Respondent as a diesel mechanic from
July 1974 until January 8, 1981, when Sales' assets were sold
CENTRAL MACK SALES 1279
Jones related that this new policy was utilized after
the representation election, but even before the notice
was posted, to deprive him of paid holiday. Prior to the
election, an employee, in order to receive holiday pay,
was required to work both the day before and day after
the holdiday The record shows that the Respondent ob-
served Easter Monday, April 7, as a paid holiday. Jones,
however, had called in sick on April 8, the day after this
holiday. On his return on Wednesday, April 9, he was
told by Jacklet that he would not receive holiday pay for
April 7. When Jones asked why, reminding Jacklet that
he had called, Jacklet told him that he now would have
to have a doctor's excuse. Jones' protests were unavail-
ing and he was not paid for that holiday Jones testified
without contradiction that before the representation elec-
tion, he had been absent on days immediately preceding
or following holidays, but always had been paid without
the requirement of a physician's note.
Having first learned of this rule from employees,
Union Representative Ellis attempted to redress the situ-
ation by proposing, during the June 24 negotiating ses-
sion, that employees be allowed 7, rather than 5, paid
sick leave days per year and that physicians' certificates
be required only after 3 consecutive sick days This was
rejected without a counterproposal.
Accordingly, it is concluded that by requiring, for the
first time, immediately following the Union's selection as
bargaining representative that employees submit physi-
cians' "receipts" in order to receive sick leave benefits,
without prior negotiation with the Union, the Respond-
ent unilaterally created a more stringent prerequisite to
eligibility Also, as applied to Jones on April 8, the new
rule also served to unilaterally change eligibility for holi-
day pay. As both matters affect terms and conditions of
employment, the Respondent's unilateral conduct in both
instances was in violation of Section 8(a)(5) and (1)of the
Act. 6 1
c The change in providing coffee for employees
Henry Shields Jr., Curtis Jones, and Leamon Alford,
all employed at the time by the Respondent, 62 testified
that before the representation election, employees had
been able to obtain coffee from an open pot on a table in
the shop office. Although there was a box with "10
cents" written on it, these witnesses related that hardly
anyone put money into the box to pay for their coffee.
When Shields first began to work for the Respondent, he
did contribute to the box, but discontinued when he no-
ticed that in doing so he was virtually alone. Jones, too,
described nonpayment as the general practice and related
that he "could" take coffee 1 or 2 weeks at a time with-
out contributing. Then, feeling guilty, he might put in a
dollar. These witnesses understood that the coffee, the
cups, and the accompaniments were paid for from pro-
61 Although the Respondent did show that by April 8 Jones had used
all 5 days of his sick leave, his claim on that occasion was not for sick
leave but for holiday pay His stated reason for not having received same
is not rebutted
62 Alford, one of the employees who moved to Leasing after sales'
assets were sold, is still with the Respondent He testified as a witness for
the Respondent
ceeds from various soft drink vending machines on the
premises63 or by Bailey Sr.
However, on a Monday morning, about 1 week after
the election, employees found that the coffeepot was
gone from the office, replaced for the first time by a
coffee vending machine at 25 cents a cup.
The Respondent contests the above facts only in as-
serting that the coffee provided before installation of the
vending machine had not been free, as indicated by the
10-cent sign on the coffee box.
In the present matter, I find that under the longstand-
ing practice before arrival of the coffee vending ma-
chine, coffee had been provided by the Respondent for
employees at no required cost to them. While 10-cent
contributions were encouraged by placement of the
money box, such donations rarely were made. This con-
trasts with the involuntary 25-cent payments required by
the vending machine.
No notice was given to the Union in advance of the
machine's installation and, when the Union raised this
matter, among others, during the June 24 negotiating ses-
sions, the Respondent summarily rejected the proposed
resumption of its former coffee policy as too costly.
In Ford Motor Co. v. NLRB, 64 the U.S. Supreme
Court affirmed the Board's consistently applied rule that
in-plant food prices are among those terms and condi-
tions of employment about which the employer and the
union must bargain under Section 8(a)(5) and 8(b)(3) of
the Act, and observed that in-plant food prices and serv-
ices are matters not too trivial to qualify as mandatory
subjects of bargaining.
Accordingly, the Respondent clearly was required to
notify and bargain with the Union concerning installation
of the coffee vending machine before its installation.
Even, assuming, arguendo, as in Ladish Co.," that once
the vending machine was installed, the Respondent, by
reason of its contract with the machine supplier, could
not control the price per cup, 66 it very much was within
the Respondent's discretion to determine, in the first in-
stance, whether the machine was to be installed. The Re-
spondent's unilateral action and its later rejection of
meaningful bargaining with the Union on this fait accom-
ph during the June 24 negotiating session stand as viola-
tions of Section 8(a)(5) and (1) of the Act.
d. Alleged change in vacation policy
Jones, Shields, and Jackson, then employees, also testi-
fied that following the representation election, but before
the first negotiating session, the Respondent changed its
policy concerning vacation eligibility by requiring that
employees be continuously employed for 1 year as of
January 1 of the year in which they became vacation eli-
gible. Before this, employees became eligible for vaca-
tions after 12 months of continuous service computed
from the employee's date of hire.
63 Jones had received this information from shop clerk Glen Alford in
1979
64 441 Us 488 (1979)
65 219 NLRB 354 (1975), enf denied 538 F 2d 1267 (7th Or 1976)
66 The Respondent did not offer to prove that it could not control the
coffee vending machine price
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, under the preexisting system, an employ-
ee hired on February 1 of a given year, if continuously
employed, would become eligible for a vacation as of
February 1 of the following year, his anniversary date.
Under the system allegedly put into effect after the elec-
tion, a continuosly employed employee with a February
1 starting date would not become eligible on his anniver-
sary date because he had not been employed for 12
months by his first January 1 with the Employer, but
would have to continue to work until after January 1 of
the following year.
It is not clear exactly when in 1980 this asserted
change in vacation policy was put into effect. Inferential-
ly, it is tied to the above-quoted bulletin posted on April
15, which concerned the requirement for doctors' re-
ceipts in order to receive sick leave benefits. That bulle-
tin also provided, somewhat ambiguously, that the
amounts of vacation and sick leave are based on length
of continuing service. This notice, however, did not
detail the alleged changes in vacation policy. Shields,
however, testified that he had learned of the change
when, "after the union started," Shop Foreman Jacklet
announced to employees in the plant that they no longer
would get a vacation after 12-months but that they
would have to wait 2 years.
Union Respresentative Ellis testified that his first
knowledge of this more stringent vacation eligibility re-
quirement also came from employee complaints. He
thereafter sought to meet this issue at the June 24 bar-
gaining session by proposing a progressive vacation
schedule based on length of service, with initial eligibil-
ity vesting as of the employees' first anniversary dates.
This, however, was rejected as too costly. On this
matter, as with others, there was no company counter-
proposal.
The Respondent sought to show through the testimo-
ny of Donna Hester 67 and Sandra Nunn68 that the vaca-
tion policy had not changed, but, rather, that eligibility
always had been computed as of January 1.
Hester testified that at the bottom of an identified
schedule of vacation and sick days, dated April 10, 1978,
prepared by her for parts department personnel, she had
written, "All vacation and sick leave are based from Jan-
uary 1 of the following year from the date the employee
was hired." She testified that that notation was made
after she had had separate conversations with Bailey Sr.
and Hatton to the effect that employees, after April
1978, no longer were entitled to vacations after only 1
year of employment, calculated from the date of hire.
When she made the notation, Hester also called a meet-
ing of parts personnel and announced this new vacation
scheduling policy to them."
Although Nunn, too, testified that the January 1 com-
putation date for vacation eligibility was put into effect
before 1980, she contradicted Hester's account that it
had been promulgated in 1978, relating that it had been
67 Hester had been Sales' parts manager for 9 months when she left the
Respondent's employ in mid-August 1978 after nearly 4 years of service
68 Nunn was employed by Sales from September 1969 until May 1979,
the last 4 years as bookkeeper
68 Although parts personnel are also within the bargaining unit, no me-
chanics were on the schedule prepared by Hester
put into effect in March 1977. Then, the policy had been
typed at the bottom of a posted notice by Bailey's
daughter, Crawford, explicating the weeks of available
vacation to qualifying years of service. The relevant no-
tation at the bottom of this notice was as follows: "Vaca-
tion contingent on continuous service and based on be-
ginning date of January 1 of each year." Nunn iterated
that this policy went into effect for all employees, in-
cluding parts department personnel, in March 1977 while
Nunn was bookkeeper, and did not thereafter change. As
noted, by 1980, neither Hester nor Nunn was still em-
ployed by the Respondent.
In view of the pattern of unlawful conduct found
herein calculated to undermine the bargaining process,
including the several violations relating to unilateral
changes in terms and conditions of employment, I credit
the General Counsel's witnesses and find that the vaca-
tion policy was unilaterally changed, as described, after
the 1980 representation election so as to precondition va-
cation eligibility on longer periods of continuous service
than had been previously required. Although evidence
given by Hester and Nunn tends to show that the assert-
ed change had been in effect before 1980, Nunn, by testi-
fying to a March 1977 promulgation, as noted, directly
contradicted Hester's testimony that this same policy was
first implemented in April 1978. Neither was still with
the Respondent in 1980, when the events herein oc-
curred, and their information is not current.
Accordingly, it is concluded that the Respondent vio-
lated Section 8(a)(5) and (1) of the act by unilaterally
changing its policy concerning vacation eligibility in the
period following the representation election and further
violated those sections of the Act by refusing to mean-
ingfully negotiate that change in policy with the Union
during the June 24 bargaining session.
e. The unilaterally imposed policy of laying off
employees during slack work periods
It is undisputed that on Thursday, July 24, Shop Fore-
man Jacklet summoned employees Curtis Jones, Henry
Shields Jr., Clinton Jackson, Joe Williford, and Ernest
Hollifield and informed them that Bailey had told him to
send home anyone who did not have anything to do.
The men then were told that they were being sent home
and directed to call the shop before returning to work."
The four employees then asked Vice President Hatton
to speak to Bailey Sr. to see if the men could be sent
home by seniority as they believed that certain employ-
ees who were continuing to work had not been with the
Respondent as long as themselves." They also asked for
their paychecks for that week. Hatton went to the office
and returned with their paychecks, but reported to the
men that Bailey had said that he did not have a contract
with anybody and did not give a damn about seniority.
78 Jackson testified that on the day in question work had not been
slack He had been road-testing a truck that afternoon and had returned
to the plant about 4 30 p m Soon thereafter, he received the news of his
layoff
77 There is no evidence that senionty previously had been observed in
the plant
CENTRAL MACK SALES 1281
The General Counsel, from testimony by Jones,
Shields, and Jackson, contends that before July 24, when
work had been slack in the shop, the employees were not
sent home but were assigned to clean the premises and
equipment and to do general repair work. Accordingly,
the July 24 layoff was a departure from past practice.
The layoff continued through the next day, Friday,
July 25. On the following Monday, July 27, when the
men returned to the shop requesting either their jobs or
layoff slips, they were returned to work. Although the
Union then was engaged in contract negotiations with
the Respondent, it did not receive advance notification
of these layoffs.72
The Board, in Clements Wire ci: Mfg. CO., 73 noted:
Although an employer may properly decide that an
economic layoff is required, 8 once such a decision is
made the employer must nevertheless notify the
Union, and, upon request, bargain with it concern-
ing the layoffs, including the manner in which the
layoffs and any recalls are to be effected. 8 By fail-
ing to so notify the Union while its objections to
the election were pending, Respondent acted at its
peril and, since the Union was thereafter certified as
the collective-bargaining representative of its em-
ployees, Respondent thereby violated Section
8(a)(5) and (1) of the Act.74
5 See, e g, Southern Coach & Body Company Inc , 141 NLRB
80 (1963), enforcement denied 336 F 2d 214 (5th Or 1964)
6 See, e g, Keystone Casing Supply, Sac, 196 NLRB 920 (1972),
see also The Lange Company, a Division of Garcia Corporation, 222
NLRB 558 (1976)
Accordingly, the Respondent's failure to notify and
bargain with the Union concerning the unilateral layoff
of Jones, Shields, Williford, and Jackson violated Section
8(a)(5) and (1) of the Act.
B. Additional Discriminatory Treatment of
Employees—Facts and Conclusions
1. Reduction in the workweek
The General Counsel contends that on March 24 the
Respondent, by posted bulletin, signed by Bailey Sr., no-
tified employees of its intent to reduce the weekly work
hours of unit personnel from 42.5 hours per week to 40
as of March 26. 78 This, assertectly, was done in retalia-
tion for employee support for the Union. The new work
schedule, as posted, altered the existing 5-day workweek
to establish one with hours from 8 a.m. to 5 p.m. and
lunch from 12 to 1 p.m. This allegedly replaced the
72 As noted, in response to news of these layoffs, the Union, on July
30, filed the subsequently withdrawn unfair labor practice charges in
Case 11-CA-930, whereafter the Respondent refused to continue negotia-
tions, which in turn led to the strike
" 257 NLRB 1058, 1059 (1981)
74 In the present matter, the Respondent's obligation to bargain with
the Union as the duly certified bargaining representative of its employees
is even more pronounced than in Clements Wire & Mfg Corp., supra, as
there the Union, although successful in a representation election, had not
yet been certified at the time of the unilateral layoff pending determina-
tion of objections to the election
75 As noted, the representation election was set for March 31, 3 work-
days after the effective date of this notice
hours established in an earlier notice to employees,
posted August 10, 1979, also signed by Bailey Sr., which
had set the 5-day week at 42.5 hours. Under the first
such schedule, employees worked from 7:30 a.m. to 5
p.m., with lunch also from noon to 1 p.m. Hours worked
in excess of 40 per week were overtime paid at time and
a half.
Clinton Jackson" testified that after March 26 he no
longer received overtime as in the past.
The parties agreed to restrict the evidence on this alle-
gation to General Counsel's Exhibit 19. 77 Without be-
coming overly involved, records forming part of that ex-
hibit show that during the fourth quarter of 1979 all unit
employees were paid a total of 372 hours of overtime out
of a total of 8120.8 compensated hours. In the first quar-
ter of 1980, overtime for the unit totaled 315 4 hours of a
total of 7805. 78 However, for the second quarter of
1980, the Respondent's record show that while 7721.8
hours were worked by unit employees, only 32 hours
fewer than during the preceding quarter, only 144 hours
were paid in total overtime. Expressed in percentages,
during the fourth quarter of 1979 and the first quarter of
1980, overtime comprised 4.87 and 4.3 percent, respec-
tively, of the net total number of hours worked. In the
second quarter of 1980, total overtime hours were only
1.98 percent of the net total number of hours worked.
The General Counsel contends that it therefore is reason-
able to project the average of the 4 87 and 4.3 percent-
ages of the two quarters preceding the asserted change
to conclude that overtime during the second quarter of
1980 should have continued to run at 4.59 percent of the
7721.8 net hours compensated during that quarter. This
would provide for a total of 334.4 hours of due overtime
in the second quarter of 1980 as compared to the 144
overtime hours reflected by the Respondent's records."
The General Counsel also would project that average
into the third quarter of 1980 until the start of the strike
on August 11.
The Respondent has not offered justification for the
reduction in work hours shown, but argues that this
matter was improperly litigated as paragraph 10(a) of the
consolidated complaint, which contains this allegaton,
did not specifically refer to a reduction in available over-
time hours. 8 ° The Respondent's argument is without
merit. It is established that although premium pay may
be required for work beyond 40 hours per week, em-
ployees can be required to work overtime as a condition
of employment and have been terminated lawfully for re-
fusing." Employees are not free to set their own work
76 Jackson was then employed by the Respondent as a mechanic
77 G C Exhs 19(b) and (c) are summaries of the Respondent's business
records showing the number of hours worked by individual unit employ-
ees during the fourth quarter of 1979 and the first two quarters of 1980
79 The work schedule change was posted at the end of the first quarter
of 1980
79 As the unfair labor practice strike found herein occurred in the
third quarter of 1980, the Respondent's records after August 11, when
the strike began, would not be representative
69 Complaint paragraph 10(a) alleges that
On or about March 26, 1980, Respondent instituted a reduction in
the number of hours worked weekly by its employees
81 See Popp,' Fresh Pies, 256 NLRB 233 (1981)
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hours and, similarly, may be disciplined for engaging in
partial strikes to protest mandatory overtime. 82 As regu-
lar overtime work can be a required part of an employ-
ee's assigned work schedule and as the record shows that
between August 10, 1979, and March 26, 1980, the Re-
spondent's employees were officially bound by a 42.5
hour workweek, contrary to the Respondent, I find that
the relevant complaint allegation was sufficiently specific
for purposes of this proceeding.
Noting the Respondent's antiunion conduct found
herein, the timing of the scheduling change, effective but
3 workdays before the representation election, and the
absence of justification therefor, either to the employees
affected or at the hearing, 83 I find that the reduction in
the workweek was intended as a discriminatory reprisal
for the employees' activities on behalf of and sympathies
for the Union, and is in violation of Section 8(a)(3) and
(1) of the Act.
2. Refusal to repair the steam jenny
The General Counsel contends that in mid-July the
Respondent refused to repair the steam jenny 84 with the
purpose of making the employees' work more difficult in
reprisal for their having supported the Union. The Gen-
eral Counsel notes that although the Respondent had fol-
lowed a practice of purchasing soap concentrate for the
steam jenny once or twice each month, no shipments of
concentrate were received in 1980 between May 23 and
August 6, 85 and argues that this hiatus was deliberate.
Without the steam jenny, employees are required to
clean the greasy parts by hand.
The steam jenny that had been used in the Respond-
ent's shop until mid-summer 1980 was an older machine
with a history of frequent breakdowns.
In mid-July, the steam jenny again became inoperative
when that mechanism's pump blew up. Clinton Jackson
then informed Shop Foreman Jacklet of the steam jenny
breakdown. Announcing that he had to clean some parts,
he asked if Jacklet was going to get it fixed. Jacklet re-
plied that he would check with Bailey Sr. When Jacklet
did not get back to him in about 30 minutes, Jackson re-
turned to Jacklet's office and was told by Jacklet that
Bailey had stated that he was not going to fix the steam
jenny. Jackson testified that he had had the use of the
steam jenny for all the years he had worked for the
Company and that when it had broken down in the past,
it usually had been fixed by an outside repairman within
2 days. He conceded that the blown pump of the steam
engine in July 1980 necessitated more than routine serv-
icing.
Curtis Jones testified that on July 31, after the steam
jenny had broken down, he, too, had asked Jacklet if the
82 Valley City Furniture Co, 110 NLRB 1589, 1594-1595 (1954)
83 From the evidence presented It is reasonable to presume continu-
ation of the number of work hours previously available until the August
11 strike as Sales' difficulties were caused by default of Coastal's mount-
ing obligations rather than by a reduction in the volume of Sales' busi-
ness.
84 The steam jenny is a machine which Jets a mixture of steam, hot
water, and soap It is used to clean truck, engines, parts, and all types of
metal
85 The respective shipping dates for these purchases were May 20 and
July 31, respectively
Company was going to repair the steam jenny or was
going to get another one. He pointed out that it was
hard for men to do their work without it. Jacklet told
him that Bailey had said that he did not give a damn
about the steam jenny and was not going to repair it
The steam jenny was still inoperative when, on August
11, the men went on strike. However, on their return,
they found that a new, smaller steam jenny had been in-
stalled.
Bailey Sr. testified that the old, larger steam jenny that
had been in use had become worn out by mid-summer of
1980. However, with periodic servicing when necessary,
the machine remained operational until August 25, when
the new machine was installed. As the problems with it
became cumulative, it was decided that it would be ad-
vantageous to get a replacement.
Bailey, citing the Respondent's financial difficulties,
denied a discriminatory purpose in not fixing the jenny.
He explained the delay in soap concentrate purchases be-
tween shipments of May 20 and July 31 by relating that
additional soap had not been needed in that interval as
the Respondent earlier had doubled its purchases, having
received four barrels in March, two barrels on March 6
and 31, respectively. Because of the surplus of soap con-
centrate on hand, additional purchases before July 31
were not necessary.
From the record herein, it does not appear that the
delay in fixing or replacing the steam jenny was in re-
prisal for the union activities and sympathies of its em-
ployees, but, rather, was caused by the Respondent's
poor financial condition. The jenny apparently was
beyond routine repair, earlier servicing had not proved
effective, and the replacement cost on August 25 was in
excess of $1000. Rebutting the General Counsel's conten-
tion that the failure to buy new soap concentrate was to
further an attempt at unlawful retaliation, the Respond-
ent had ordered new soap for the machine in July at a
time when Jackson and Jones were complaining to Jack-
let about the condition of the machine. It also appears
from invoices submitted that, consistent with Bailey's tes-
timony, additional soap had been purchased in March
and May. Soap concentrate was uniformly received in
two barrel shipments. Only one such shipment per month
was received in January, February, and April, while
there were two shipments received in both March and
May. Bailey's testimony that the hiatus in purchases be-
tween May and July was based on a surplus is not rebut-
ted and, as noted, the receipt of a shipment sent July 31
is inconsistent with the General Counsel's theory. Even
assuming that Bailey had made the impatient remark
concerning the steam jenny attributed to him by Jacklet,
the weight of the evidence does not show that the steam
jenny was allowed to continue in disuse for a purpose of
harassing employees for having selected the Union. Ac-
cordingly, I do not find that the Respondent violated
Section 8(a)(3) and (1) in this regard.
Summarizing, it has been found that the Respondent
has refused to bargain in violation of Section 8(0(5) and
(1) of the Act by:
(a) Refusing to pursue scheduled contract negotiations
with the Union because of the pendency of unresolved
CENTRAL MACK SALES 1283
unfair labor practice charges filed by the Union against
the Respondent in Case 11-CA-9301, subsequently with-
drawn.
(b) Refusing to bargain meaningfully with the Union
during earlier contract negotiations concerning unilater-
ally imposed policy changes affecting vacation eligibility,
the need for phsyicians' excuses as affecting eligibility for
sick leave benefits and/or holiday pay, the duty to call in
when absent, and on the terms under which coffee is
provided to employees during the workday.
(c) Unilaterally making the following changes in its
employees' terms and conditions of employment without
prior notice to and bargaining with the Union
1. As applied to Curtis Jones, requiring for the first
time that employees present physicians' receipts in order
to receive sick leave benefits and/or holiday pay, when
the employee's absence for illness occurred on the day
before and/or after the holiday.8"
2. Increasing the amount of continuous service em-
ployees must have to become eligible for paid vacations.
3. Installing a vending machine dispensing coffee at a
greater cost to employees than the previously available
free or lesser priced coffee.
4. Modifying the attendance policy to provide for the
discharge of employees who are absent for 5 working
days without notifying the Respondent
5 Laying off employees Curt is Jones, Henry Shields
Jr., Clinton Jackson, and Joe 'Williford on July 24-25
when work was slack, rather than continuing the former
policy on such occasions of having them perform clean-
up and maintenance work
(d) Failing to timely notify the Union of its intention
to sell the assets of Sales and to bargain concerning the
effects of the sale on employees.
The Respondent violated Section 8(a)(3) and (1) of the
Act by:
(a) Reducing the number of hours worked weekly by
its employees from 42.5 to 40 because of the employess'
union activities and sympathies.
(b) Refusing to reinstate Andrew Blalock and delaying
reinstatement of the following other unfair labor practice
strikers after September 2, 1980, although an uncondi-
tional offer to return to work had been made on their
behalf.
James Beach

Wayne Lewis
Troy Bullard

Robert Liertz
Ernest Hollifield

Troy Lindsey
Curtis Jones Henry Shields Jr.
The Respondent violated Section 8(a)(1) of the Act by
Bailey's statements to employees during the June 24 ne-
gotiating session to the effect that it was unlikely that the
Union would get a collective-bargaining agreement and
his initial refusal, for that reason, to name company
grievance-processing representatives.
8 6 As found here, the Respondent violated Sec 8(a)(5) and (1) of the
Act both by implementing the unilateral changes in working conditions
found herein, and, again, by refusing to bargain in good faith with the
Union when these matters were raised during later contract negotiations
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with the Respond-
ent's operations described in section I, above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
CONCLUSIONS OF LAW
1. Central Mack Sales, Inc. and its alter egos, Central
Truck Leasing Corporation, North Carolina Coastal
Motor Lines, Inc., and D. Thomas Bailey Sr, constitute
a single employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. International Union of Operating Engineers, Local
465, AFL-CIO, affiliated with International Union of
Operating Engineers, AFL-CIO is a labor organization
within the meaning of Section 2(5) of the Act.
3. The following unit is appropriate for purposes of
collective bargaining within the meaning of Section 9(b)
of the Act:
All parts department employees, mechanics, body
and paint shop employees, cleanup steam room em-
ployees at the Respondent's Raleigh, North Caroli-
na facility, excluding all office clerical employees,
professional employees, salesmen, guards and super-
visors, as defined in the Act.
4. About March 31, 1980, and at all times material
thereafter, the Union herein represented a majority of
the employees in the above-described appropriate unit,
and has been the exclusive representative of all these em-
ployees for purposes of collective bargaining within the
meaning of Section 9(a) of the Act
5. The strike which commenced on August 11, 1980,
was an unfair labor practice strike from its inception.
6. The Respondent violated Section 8(a)(5) of the Act
by:
(a) Refusing to pursue contract negotiations with the
Union because of the pendency of unfair labor practice
charges filed by the Union against the Respondent
(b) Refusing to bargain in good faith with the Union
during contract negotiations with respect to unilaterally
imposed policy changes affecting terms and conditions of
employment of bargaining unit employees, although duly
requested by the Union.
(c) Unilaterally making the following changes in the
terms and conditions of employment of its employees
without prior notice to and bargaining with the Union
1. Requiring that employees present physicians' re-
ceipts in order to receive sick leave benefits and/or holi-
day pay, when the employees' absences occurred on the
day before and/or after the holiday.
2. Increasing the amount of continuous service em-
ployees must have to become eligible for paid vacations.
3. Installing vending machines dispensing coffee at
greater cost to employees.
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Modifying the attendance policy to provide for the
discharge of employees who have been absent for 5
workdays without notifying the Respondent.
5. Laying off employees Curtis Jones, Henry Shields
Jr., Clinton Jackson, and Joe Williford when work was
slow, rather than assign them to maintamce and cleanup
work as had been the practice.
(d) Failing to timely notify the Union of its intention
to sell the assets of Sales and to bargain concerning the
effects on employees of that sale.
7. Respondent violated Section 8(a)(3) and (1) of the
Act by:
(a) Reducing the number of weekly work hours for
employees because of their union activities and sympa-
thies.
(b) Refusing to reinstate unfair labor practice striker
Andrew Blalock and delaying the reinstatement of the
other unfair labor practice strikers named below al-
though unconditional offers to return to work had been
made on their behalf:
James Beach

Wayne Lewis
Troy Bullard
Robert Liertz
Ernest Hollifield

Troy Lindsey
Curtis Jones Henry Shields Jr.
8. The Respondent violated Section 8(a)(1) of the Act
by statements made to employees during contract negoti-
ations that it was unlikely that the Union would get a
collective-bargaining agreement and by initially refusing,
for that reason, to name company grievance-processing
representatives.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
10. The Respondent did not violate the Act by any
conduct not found herein to constitute an unfair labor
practice.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it be
required to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that the Respondent violated Section
8(a)(1) and (3) of the Act, inter alia, by unlawfully refus-
ing to recall Andrew Blalock and by delaying the recall
of the unfair labor practice strikers after September 2,
1980, 87 I recommend that the Respondent be ordered to
87 The backpay period for all unfair labor practice strikers began on
September 2 and, as found above, continued to the dates shown next to
their respective names
Henry Shields Jr Nov 17, 1980
James Beach Sept 9, 1980
Troy Bullard Nov 11, 1980
Ernest HoRifled Oct 2, 1980
Curtis Jones Oct 2, 1980
Wayne Lewis Sept 9, 1980
Robert Liertz Oct 7, 1980
Troy Lindsey Sept 11, 1980
Andrew Blalock Jan 8, 1981
make whole Blalock and those other unfair labor prac-
tice strikers affected by the failure to receive prompt re-
instatement for any loss of earnings the employees may
have suffered as a result of the Respondent's unlawful
actions. Backpay shall be computed with interest as pre-
scribed in F. W. Woolworth Co., 88 and Florida Steel
Corp. 9 9
Having found that the Respondent has further violated
Section 8(a)(3) and (1) of the Act by reducing the length
of the workweek from 42.5 to 40 hours during the
second quarter of 1980, continuing into the third quarter
of that year until the strike that began on August 11, in
agreement with the General Counsel, I recommend that
overtime pay at time and a half should be computed on
behalf of affected employees for the above-indicated
period at a projected 4.59 percent of the total net hours
compensated, less overtime previously paid. This project-
ed 4.59 percentage is based on the average of the 4.87
and 4.3 overtime percentages paid during the two quar-
ters immediately preceding the unlawful change in the
workweek. Overtime pay, with interest, shall be comput-
ed in accordance with the formula set forth above.
Because the Respondent failed to afford the Union an
adequate opportunity to bargain about the effects of the
sale of Sales' assets on bargaining unit employees in vio-
lation of Section 8(a)(5) an (1) of the Act, I shall recom-
mend that the Respondent be ordered to bargain with
the Union concerning the effects of this sale on all bar-
gaining unit employees. However, as in Climate Control
Corp., 9° and Merryweather Optical Co.," a bargaining
order alone is an inadequate remedy because, now that
the Respondent has sold part of its business without
notice, the employees' bargaining power has been materi-
ally compromised. In order to create an atmosphere in
which meaningful bargaining can be assured, some meas-
ure of economic strength must be restored to the Union.
Accordingly, the Respondent should be required to
pay its bargaining unit employees amounts at the rates of
their normal wages when last in the Respondent's
employ from 5 days after the date of this decision until
occurrence of the earliest of the following events: (1) the
date the Respondent bargains to agreement with the
Union on those subjects pertaining to the effects of the
closing on bargaining unit employees; (2) a bona fide im-
passe on bargaining; (3) the failure of the Union to re-
quest bargaining within 5 days of this decision, or to
commence negotiations within 5 days of the Respond-
ent's notice of its desire to bargain with the Union; or (4)
the subsequent failure of the Union to bargain in good
faith. In no event shall the sum paid to any of these em-
As, in agreement with the General Counsel, I find that Blalock's back-
pay period ended when Sales' employees were laid off following the sale
of that Company's assets, no reinstatement order would be appropriate as
to the remaining alter ego Respondents However, Blalock's recoupment
and those of other employees may be enhanced by the remedy afforded
below concerning the Respondent's failure to bargain with the Union
concerning the effects on employees of the sale of Sales' assets
88 90 NLRB 289 (1950)
89 231 NLRB 651 (1977) See generally Isis Plumbing Go, 138 NLRB
716 (1962)
99 257 NLRB 173 (1981)
Si 240 NLRB 1213, 1216-17 (1979)
CENTRAL MACK SALES 1285
ployees exceed the amount the employees would have
earned as wages from January 8, 1981, the date on which
the Respondent sold Sales' assets, to the time such em-
ployees secured employment elsewhere, or the date on
which the Respondent shall have made a bona fide offer
to bargain, whichever occurred sooner, provided, how-
ever, that in no event shall the sum be less than these
employees would have earned for a 2-week period at the
rates of their normal wages when last in the Respond-
ent's employ. Such earnings shall be computed based on
a 42.5-hour workweek with interest in accordance with
the formula set forth above.
Having found that the Respondent further violated
Section 8(a)(5) and (1) of the Act by laying off employ-
ees Curtis Jones, Henry Shields Jr., Clinton Jackson, and
Joe Williford from July 24, 1980, at 5 p.m. until the
morning of July 28, 1980, without notice to and bargain-
ing with the Union, as part of the remedy herein, the Re-
spondent should be required to make those employees
whole for any loss of pay suffered by reason of the Re-
spondent's unlawful conduct. Elackpay with interest shall
be computed in accordance with the formula set forth
above. 9 3
I also shall recommend that a broad cease-and-desist
order be entered. 9 4
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 9 5
ORDER
The Respondents, Central Mack Sales, Inc., Central
Truck Leasing Corporation, North Carolina Coastal
Motor Lines, Inc., and D. Thomas Bailey, Sr, Raleigh,
North Carolina, their officers, agents, successors, and as-
signs, shall
1 Cease and desist from
(a) Failing and refusing to bargain with International
Union of Operating Engineers, Local 465, AFL-CIO, af-
filiated with International Union of Operating Engineers,
AFL-CIO with respect to the effects of the sale of the
assests of Central Mack Sales, Inc. on its employees in
the following unit:
All parts department employees, mechanics, body
and paint shop employees, cleanup steam room em-
ployees at the Respondeni s' Raleigh, North Caroli-
na facility, excluding all office clerical employees,
93 It also is appropriate that employees adversely affected by other
unilateral changes found herein also be made whole as indicated For ex-
ample, Curtis Jones should be compensated for Easter Monday, April 7,
1980, holiday pay denied him because of the change in the policy requir-
ing physicians' receipts
94 As the unfair labor practices committed by the Respondent are seri-
ous, numerous, and include unlawful discharge, layoffs, and refusal to
grant proper reinstatement, I shall recommend that it cease and desist
therefrom and refrain in any other manner from interfering with the
rights of employees guaranteed in Sec 7 of the Act Climate Control
Corp, supra, Magnesium Casting Co, 250 NLRB 692 fn 3, 713 (1980),
Cf Htckmott Foods, 242 NLRB 1357 (1979)
95 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
professional employees, salesmen, guards and super-
visors, as defined in the Act.
(b) Refusing to bargain or pursue contract negotiations
with the above-named Union because of the pendency of
unfair labor practice charges filed against the Respond-
ent by the Union.
(c) Refusing, on request, to bargain in good faith with
the Union with respect to unilaterally imposed policy
changes affecting terms and conditions of employment of
employees in the above-described bargaining unit.
(d) Unilaterally making the following changes in the
terms and conditions of employment of its unit employ-
ees without prior notice to and bargaining with the
Union:
(1) Requiring that employees present physicians' re-
ceipts in order to receive sick-leave benefits and/or holi-
day pay, when the employees' absences occurred on the
day before and/or after the holiday.
(2) Increasing the amount of continuous service em-
ployee must have to become eligible for paid vacations.
(3) Installing a vending machine dispensing coffee at a
greater cost to employees.
(4) Modifying the attendance policy to provide for the
discharge of employees who are absent for 5 working
days without calling in to the Respondent.
(5) Laying off employees without notice to and bar-
gaining with the Union.
(e) Reducing the number of hours worked weekly by
its employees in retaliation for their union activities and
sympathies.
(0 Delaying reinstatement and/or refusing to reinstate
unfair labor practice strikers where an unconditional
offer to return to work has been made on their behalf.
(g) Creating an impression of the futility of the bar-
gaining process by informing employees during contract
negotiations, or at other times, that it is unlikely that the
Union will succeed in obtaining a collective-bargaining
agreement.
(h) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the above-named Union
with respect to the effects on its employees of the sale of
the assets of Central Mack Sales, Inc., and reduce to
writing any agreement reached.
(b) Make whole its employees by paying those em-
ployees who were laid off on or after January 8, 1981,
when the Respondent sold the assets of Central Mack
Sales, Inc. normal wages, plus interest, for a period spec-
ified by the National Labor Relations Board, in the
manner set forth in the section of this decision entitled
"The Remedy."
(c) Make whole Andrew Blalock and the individuals
named below for any loss of earnings they may have suf-
fered by reason of the Respondents' discrimination
against them and/or because of its refusals to bargain
with the above-named Union with respect to the layoffs
which commenced on July 24, 1980, and other unlawful-
ly imposed unilateral changes in the terms and conditions
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of its employees' employment, in the manner set forth
hereinabove in the section of this decision entitled "The
Remedy".
James Beach

Wayne Lewis
Troy Bullard

Robert Liertz
Ernest Hollifield

Troy Lindsey
Curtis Jones Henry Shields Jr.
Clinton Jackson Joe Williford
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Raleigh, North Carolina location, copies
of the attached notice marked "Appendix." 96 Copies of
the notice, on forms provided by the Regional Director
for Region 11, after being signed by the Respondent's
authorized representative, shallbe posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material. Also, immediately upon
receipt and signing by the Respondent's authorized rep-
resentative, copies of the attached notice will be mailed
by the Respondent by certified mail, return receipt re-
quested, to all former employees employed within the
above bargaining unit since March 1, 1980, at their last
known address.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT Is ORDERED that the consolidated complaint herein
be dismissed insofar as it alleges violations of the Act not
specifically found herein.
96 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT fail and refuse to bargain with Interna-
tional Union of Operating Engineers, Local 465, AFL-
CIO, affiliated with International Union of Operating
Engineers, AFL-CIO with respect to the effects of the
sale of the assets of Central Mack Sales, Inc., on our em-
ployees in the following appropriate unit:
All parts department employees, mechanics, body
and paint shop employees, cleanup steam room em-
ployees at our Raleigh, North Carolina facility, ex-
cluding all office clerical employees, professional
employees, salesmen, guards, and supervisors as de-
fined in the Act.
WE WILL NOT refuse to pursue contract negotiations
with the above-named Union because it has filed unfair
labor practice charges against us with the National
Labor Relations Board.
WE WILL NOT refuse to pursue contract negotiations
or otherwise bargain with the above-named Union with
respect to our unilaterally imposed policy changes affect-
ing terms and conditions of your employment.
WE WILL NOT unilaterally make the following changes
or other modifications in the terms and conditions of
your employment without prior notice to and bargaining
with the Union:
Require that you present physicians' receipts in
order to receive sick leave benefits and/or holiday
pay, when you are absent from work on the day
before and and/or after the holiday.
Increase the amount of continuous service you must
have to become eligible for paid vacations.
Install a vending machine selling coffee at greater
cost to you than before
Modify the attendance policy to provide for the dis-
charge of employees who are absent for 5 workdays
without calling the plant.
Lay you off when work is slack, or for other rea-
sons, without notice to and bargaining with the
Union.
WE WILL NOT reduce the number of hours worked
weekly by you in retaliation for your union activities and
sympathies.
WE WILL NOT delay reinstatement and/or refuse to
promptly reinstate unfair labor practice strikers where an
unconditional offer to return to work has been made on
their behalf.
WE WILL NOT impress you with the futility of bargain-
ing by telling you during contract negotiations, or other-
wise, that it is unlikely that the Union will suceed in ob-
taining a collective-bargaining agreement.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make whole our employees who were laid
off on or after January 8, 1981, when we sold the assets
of Central Mack Sales, Inc., by paying them normal
wages, plus interest, for a period specified by the Nation-
al Labor Relations Board
WE WILL, on request, bargain with the above-named
Union with respect to the effects on our employees of
the sale of the assets of Central Mack Sales, Inc., and
reduce to writing any agreement reached
WE WILL make whole Andrew Blalock and the other
individuals named below, with interest, for any loss of
CENTRAL MACK SALES 1287
earnings they may have suffered by reason of our dis-
crimination against them or because of our refusal to bar-
gain with the above-named Union with respect to the
layoffs which commenced on July 24, 1980, and other
unlawfully imposed unilateral changes in the terms and
conditions of employment:
James Beach

Wayne Lewis
Troy Bullard

Robei t Liertz
Ernest Hollifield

Troy Lindsey
Curtis Jones
Henry Shields Jr.
Clinton Jackson Joe Williford
CENTRAL MACK SALES, INC., CENTRAL
TRUCK LEASING CORPORATION, NORTH
CAROLINA COASTAL MOTOR LINES, INC.,
AND D. THOMAS BAILEY SR