Hugh Major Truck Service

National Labor Relations Board - Board Decisions

Oct 10, 1960

129 N.L.R.B. 322 (N.L.R.B. 1960)

322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contain clauses in violation of Section 8(a) (3), is not a bar, and
further held that it would not recognize a savings clause of the type
here involved as curing the contract-bar defect.' Moreover, the Board
has also ruled that clauses such as the one herein constitute "hot cargo"
clauses 2 As the "hot cargo" clause in the contract asserted as a bar is
violative of Section 8 (e), we find that the contract does not bar an
election. Accordingly, we conclude that a question affecting commerce
exists concerning the representation of certain employees of the Em-
ployer within the meaning of Sections 9(c) (1) and 2(6) and (7) of
the Act.
4. We find, in agreement with the parties, that the following unit is
appropriate for the purposes of collective bargaining within the mean-
ing of Section 9 (b) of the Act :
All production and maintenance employees at the Employer's plant
in the Bronx, New York, excluding office clerical employees, guards,
watchmen, and all supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
x See Pilgrim Furn iture Company, Inc., 128 NLRB 910 (Chairman Leedom and Member
Fanning dissenting ), Although Chairman Leedom dissented in Pilgrim and would have
found the contract a bar because the "hot cargo" clause therein was executed at a time
when Section 8(e) was not in effect, he reserved decision on the issue here presented,
i.e,, whether "hot cargo" clauses executed after the effective date of the section destroy
the effectiveness of contracts as bars. Chairman Leedom now joins the majority in
Pilgrim on this issue.
2 See The Ilumko Co., Inc., 121 NLRB 1414.
Hugh Major , d/b/a Hugh Major Truck Service and Floyd David
Catterson, Elfred Alson Elledge, and Elwood M . Goble. Cases
Nos. 14-CA-2230-1, 14-CA-2230-2, and 14-CA-2230-4. October
10, 1960
DECISION AND ORDER
On April 20, 1960, Trial Examiner Arnold Ordman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that he cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board' has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and brief, and the entire record in
I Pursuant to the provisions of Section 3(b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [Chairman Leedom and
Members Jenkins and Fanning].
129 NLRB No. 40.
HUGH MAJOR TRUCK SERVICE 323
the case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations, except as herein modified.
1. We find, as did the Trial Examiner, that the Respondent violated
Section 8(a) (1) of the Act by threatening his employees with re-
prisals in the event of unionization, as more fully set forth in the
Intermediate Report.
2. For the reasons indicated in the Intermediate Report, we are
also in agreement with the Trial Examiner that the Respondent dis-
charged all his drivers to defeat employee rights guaranteed by the
Act, in violation of Section 8 (a) (3) and (1) of the Act. Relying
on the Board's decision in Bonnie Lass,2 the Trial Examiner recom-
mended that the Respondent be directed to establish a preferential
hiring list and, in the event that he resumes his trucking operations,
offer reinstatement to all employees who were discriminatorily dis-
charged. We do not agree with this proposed remedy. In our opin-
ion, Bonnie Lass is inapplicable here. There, the employer involved
discontinued manufacturing operations, albeit continuing jobbing
operations, and unlawfully discharged all but a handful of employees,
and disposed of its machinery and equipment. Here, the Respondent
is still in the trucking business, although he uses motor vehicles and
drivers of alleged independent contractors, and he has possession of
certain motor vehicles, which he allegedly sold to a newly formed
corporation, by virtue of a lease with that corporation. Thus, here, as
in R. C. Mahon,' the operation is still required and being performed,
having only been let out on contract. Under these circumstances, we
shall order the normal remedy of reinstatement with backpay.
As it has been found that the Respondent discontinued the opera-
tion of his trucking service with his own employees, and terminated
the employment of his driver employees, in violation of Section
8(a) (3) and (1) of the Act, it will be ordered, in accordance with
our usual policy in such cases, that the Respondent resume operation
of his trucking service with his own employees, and offer to all six
employees who were unlawfully discharged immediate and full rein-
statement to their former or substantially equivalent positions without
prejudice to their seniority or other rights and privileges. See The
Chase National Bank of the City of New York, San Juan, Puerto
Rico, Branch, 65 NLRB 827. It will be further ordered that the
Respondent make the aforesaid six employees whole for any loss of
pay suffered by reason of the discrimination against them. Loss of
pay shall be based upon earnings which they normally would have
earned from the respective dates of the discrimination against them
to the dates of offer of reinstatement, less net earnings, computed
2 Bonnie Lass Knitting Mills, Inc, 126 NLRB 1396
8 The R. 0. Mahon Company, 118 NLRB 1537, enforcement denied on other grounds,
269 F 2d 44 (CA. 6).
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on a quarterly basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289; N.L .R.B. v. Seven - Up Bottling
Company of Miami, inc., 344 U.S. 344.
ORDER
Upon the entire record in the case , and pursuant to Section 10(c)
of the National Labor Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent , Hugh Major,
doing business as Hugh Major Truck Service, South Roxanna, Illinois,
his agents , successors , and assigns shall :
1. Cease and desist from :
(a) Threatening employees to discourage union membership or
activities.
(b) Discouraging membership in, and activities on behalf of, Local
525, International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America, or any other labor organization, by
discharging employees , except as authorized in Section 8(a) (3) of
the Act, as modified by the Labor-Management Reporting and Dis-
closure Act of 1959.
(c) In any other nwmier inter fering with, restraining , or coercing
employees in the exercise of their right to self -organization , to form
labor organizations , to join or assist the above -named or any other
labor organization , to bargain collectively through representatives,
of their own choosing and to engage in other concerted activities for-
the purpose of collective bargaining or other mutual aid or protection,,
or to refrain from any and all such activities , except to the extent that
such right may be affected by an agreement requiring membership in
a labor organization as a condition of employment as authorized by-
Section 8(a) (3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Resume trucking operations with his own employee drivers
and offer to the employees listed in the appendix attached hereto
immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of pay suffered
by them in the manner set forth in the Decision above.
(b) Preserve and, upon request , make available to the Board or
its agents , for examination and copying , all payroll records , social
security payment records , timecards , personnel records and reports,
and all other records necessary to analyze and determine the amount
of backpay due, and the rights of the employees under the terms of
this Order.
HUGH MAJOR TRUCK SERVICE 325
(c) Post at its place of business in South Rosanna, Illinois, copies
of the notice attached hereto, marked "Appendix." 4 Copies of the
notice, to be furnished by the Regional Director for the Fourteenth
Region, shall, after being duly signed by the Respondent, or his
authorized representative, be posted by the Respondent immediately
upon receipt thereof and maintained by him for a period of 60 con-
secutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Mail exact copies of the notice attached hereto to Local 525,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America and to each of the named discriminatees.
(e) Notify the Regional Director for the Fourteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, I hereby notify you that :
I WILL NOT threaten any of my employees to discourage union
membership or activities.
I WILL NOT discourage membership in or activities in behalf of
Local 525, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other labor or-
ganization, by discharging any of my employees except as au-
thorized in Section 8 (a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
I WILL resume trucking service with my own employee drivers.
I WILL offer the following employees immediate and full rein-
statement to their former or substantially equivalent positions
without prejudice to their seniority or other rights enjoyed by
them, and make them whole for the discrimination practiced
against them by their discharge :
Floyd David Catterson Boyce Kirkpatrick
Elfred Alson Elledge Roy Richardson
Elwood M. Goble Hobart Steele
I WILL NOT in any manner interfere with, restrain, or coerce
employees in the exercise of the right to self-organization, to form
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in any other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any or all such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
All my employees are free to become, remain or refrain from be-
coming or remaining, members of the above-named Union or any other
labor organization, except to the extent that this right may be affected
by an agreement in conformity with Section 8(a) (3) of the Act as
modified by the Labor-Management Reporting and Disclosure Act of
1959.
HUGH MAJOR, D/B/A HUGH MAJOR TRUCK SERVICE,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all parties represented , was heard before the duly designated
Trial Examiner on February 18, 1960, in St. Louis, Missouri , on a consolidated com-
plaint issued by General Counsel and on answer of Hugh Major, dJb/a Hugh Major
Truck Service, herein called Respondent . The complaint alleged , and the answer
denied, that Respondent violated Section 8 ( a)(1) and ( 3) of the National Labor
Relations Act, as amended, by threats of layoff or discharge and by laying off or dis-
charging his six truckdrivers including the Charging Parties named in the caption.
Oral argument was presented at the close of the hearing and General Counsel and
counsel for Respondent submitted briefs which have been considered.
Upon the entire record and upon my observation of the witnesses , I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent is an individual doing business as Hugh Major Truck Service with his
main office and place of business in the city of South Roxanna, Illinois. In the
course of his business Respondent annually performs trucking services valued in
excess of $50,000 outside the State of Illinois , and his annual gross revenue is in
excess of $ 500,000. Respondent admits, and I find, that he is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
If. THE LABOR ORGANIZATION INVOLVED
Local 525, international Brotherhood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America, herein called the Union , is a labor organization within the
meaning of Section 2(5) of the Act.
HUGH MAJOR TRUCK SERVICE
III. THE UNFAIR LABOR PRACTICES
327
Prior to the discharges here in issue Respondent used two methods for carrying
on his business. He leased trucks from independent operators and also operated his
own trucks. For the latter operation Respondent employed his own drivers. In
June of 1959, the Union filed with the Board a petition for representation of these
drivers and in due course, on October 27, 1959, the Board issued a Decision and
Direction of Election (124 NLRB 1387) to enable Respondent's employees to vote
whether or not they desired the Union as their bargaining representative. The
election was conducted on Saturday, November 21, 1959, and the employees desig-
nated the Union as their collective-bargaining representative. The Board so certi-
fied the Union on December 2, 1959. In the meantime, starting Monday, November,
23, 1959, 2 days after the election, and during the next 10 days, Respondent
admittedly laid off or discharged all six of the drivers then in his employ.'
General Counsel contends that Respondent took this action because of his hos-
tility to union representation of his employees. Respondent insists that he was
merely carrying out a plan, long contemplated, to eliminate his own driving oper-
ations and to conduct his business solely through leased operators.
A. The threats and discharges
It is undisputed that the discharges or layoffs of Respondent's six truckdrivers
occurred on the heels of the election in which the drivers had designated the Union
as their collective-bargaining representative and on the eve of the certification. In
addition, the evidence establishes that on or about November 10, 1959, 10 days
before the election, Respondent told one of his drivers, Elfred Alson Elledge, that
there was a lot of talking going on about a union that if the plant "goes union" Re-
spondent would sell his trucks? Respondent made a statement to the same general
effect several days later to John Worthy in the presence of another of Respondent's
drivers, Floyd David Catterson. John Worthy, an independent contractor who
during the period here relevant had four tractors under lease to Respondent, had
come to see Respondent at the latter's office 3 or 4 days before the election to ask
what impact the election would have on the operation of the Worthy tractors. Re-
spondent reassured Worthy and then pointed out to Worthy in the presence of
Catterson that "if worse came to worse" and the election went against him and for
the Union there would not be any company equipment or drivers. Respondent
added that he had for some time been considering trading his trucks to Harris
Trailer Sales for trailers. When Catterson left, Respondent identified him to John
Worthy as one of the main "pushers" for the Union.3
On Saturday morning, November 21, the day of the election, Respondent's driver,
Elledge, picked up a load of concrete at East St. Louis for delivery to a construction
site. Because the delivery could not be made on a Saturday morning, Elledge pur-
suant to settled practice brought the load to Respondent's lot and left it there.
Before going home, Elledge voted in the Board-conducted election which was held
in Respondent 's garage. On Monday morning, November 23, at about 4 a m.,
Elledge picked up the load of concrete to complete delivery to the construction site
about 180 miles away. On completion of the delivery Elledge called back for
further instructions and was directed by Respondent's son to return to the terminal.
Upon his return at about 4 p.m. that same day, Elledge reported to the office. Re-
spondent, who was alone in the office and whom Elledge had not seen since the elec-
tion 2 days earlier, told Elledge to get his personal belongings out of the truck and
informed Elledge that he had no job. Respondent explained that he was negotiating
1 Floyd David Catterson, Elfred Alson Elledge, and Elwood Al. Goble, the Charging
Parties herein ; also Boyce Kirkpatrick, Roy Richardson, and Hobart Steele.
2 Respondent, who testified in his own behalf, denied making this threat For reasons
more fully discussed below, I find Respondent's testimony lacking in complete candor
and forthrightness. The finding as to the November 10 conversation is predicated upon
Elledge's credible testimony.
8 The findings concerning the conversation between Worthy and Respondent derive
from Worthy's testimony which I credit Respondent acknowledges that he talked to
John Worthy a few days before the election and generally corroborates the latter's
account of that conversation. However, Respondent testified that Catterson was not
present. As to Respondent's remark that he would get rid of his equipment if the elec-
tion went against him and for the Union, Respondent's testimony was confused and he
both denied and admitted making the statement.
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the sale of his equipment because he did not want the Union there. He also added
the cryptic comment that Elledge had done him a favor and that he did not need
Elledge anyway.
This account of the discharge interview is based on Elledge's testimony which I
credit. Respondent's account of the interview differs sharply. Thus, Respondent
testified at the outset that he did not discharge Elledge at all but that the latter quit
voluntarily. According to Respondent, Elledge walked into the office on November
23, asked whether he was fired and when told that he was not fired announced that
he was quitting, that he had voted for the Union and did not care who knew it.
Respondent nowhere proffers any explanation for such unusual behavior on Elledge's
part and the record suggests none. Moreover, Respondent's testimony is itself self-
contradictory inasmuch as he acknowledged in the pleadings and throughout the
.hearing that he had discharged or laid off all of his drivers including Elledge and
claimed that he took this action pursuant to his prior determination to discontinue
the use of his own trucks in the operation of his trucking business. Under the cir-
cumstances I am inclined to believe that Respondent's testimony was, at the very
least, colored by excessive partisanship in his own behalf. I find therefore that the
discharge interview took place as described by Elledge.
B. Respondent's defenses; conclusionary findings
As already noted, Respondent told driver Elledge 10 days before the election that
if the Union prevailed , Respondent would sell his trucks . Several days later Re-
spondent made a virtually identical statement to John Worthy in the presence of
another of the drivers, Floyd David Catterson . On the occasion of Elledge's dis-
charge, Respondent stated that he was negotiating the sale of his equipment because
he did not want the Union . To the extent Respondent denies making these state-
-ments, I have for reasons already stated rejected his denials . Respondent offers no
other defense in this regard . I find , therefore , that the foregoing statements were
plainly designed to impress upon the employees the detriments which they would
suffer if they supported the Union . Such threats constitute interference , restraint,
and coercion of employees within the meaning of Section 8(a)(1) of the Act. See
Hudson Pulp & Paper Corporation , 121 NLRB 1446, 1453-1454, enfd in relevant
part, 273 F. 2d 660 (C.A. 5).
The situation relating to the legality of the discharges is somewhat more com-
plex. The fact that Respondent made the statements already discussed to the effect
that he would get rid of his equipment and drivers if the Union prevailed in the
forthcoming election and the fact that this is precisely what occurred when the
Union did prevail in the election cogently supports the allegation of discriminatory
discharge . Respondent , however, takes issue with this conclusion.
Preliminarily , Respondent seeks to establish that he was free of antiunion animus.
Thus, Respondent points to driver Elledge 's admissions that the working relationship
between Respondent and Elledge had been amicable, that they had parted on amic-
able terms , and that he had offered to help Elledge get another job and furnish a
recommendation . Elledge also testified that when he told Respondent at the time he
was hired of his union membership , Respondent said he was happy to have employees
who held union cards. The record , however, plainly suggests that it was to Respond-
'ent's advantage to employ drivers who held union cards, especially insofar as their
'duties entailed loading and unloading trucks at unionized sites or enterprises. More-
over, conceding that Respondent may have entertained no personal grievance against
Elledge or any other driver who held a union card , it is equally clear that Respond-
ent was hostile to a union victory in the election which would entail an obligation on
his part to deal with the Union as the collective-bargaining representative of his
drivers.
Respondent also argues that his business was poor in November and that the out-
look for December was likewise poor . This circumstance does not , however, explain
the abrupt termination of employment of all his drivers. Such fluctuations in busi-
ness had occurred before and no such drastic action was taken . Nor does the decline
in business explain the striking coincidence that the wholesale terminations occurred
just after the union victory in the election-a result which Respondent 's earlier state-
ments had forecast .4 Here, as in Missouri Transit Company, 116 NLRB 587, 589-
41n this connection Respondent points to the fact that Elledge and Catterson had
signed sworn statements on December 17, 1959, to the effect that their November termina-
tions were due to a business slowdown with a resultant changeover in Respondent's
method of operation Respondent argues that these sworn statements contradicted the
employees ' claim that they had been discriminatorily discharged and also entailed a viola-
HUGH MAJOR TRUCK SERVICE 329
590, enfd. 250 F. 2d 261 (C.A. 8), "even if we accept [Respondent's] contention that
the [trucking] operation was unprofitable, the record would still require us to find
that opposition to the Union was at least one of the motivating causes for the dis-
continuance of that operation and the discharge of the drivers."
Respondent, however, principally relies for his defense on the claim that the dis-
charges flowed from a preexisting plan, uninfluenced by union considerations, to
terminate the use of his own trucks and drivers and to rely solely on leased equipment
for the conduct of its business. In support of this claim Respondent adduced evi-
dence that 21/2 years before the hearing in the instant case he had consulted an
attorney, Hamilton C. Jones, a specialist in corporate and tax practice, for advice as
to his operations from a tax and corporate point of view. Jones recommended that
Respondent cease to own his rolling equipment, i.e., trailers and trucks. He further
recommended that Respondent set up one corporation to own the equipment and one
or more corporations to operate the trucking business itself. No action was taken at
that time. The next consultation of any consequence did not take place until about a
year and a half later. At that time Respondent asked Jones to proceed with setting
up matters according to the latter's original recommendations. Jones asked Respond-
ent to provide him with certain necessary financial data for this purpose. Respond-
ent did not provide adequate data. However, about September 1959 or just prior
thereto, he acceded to Jones' suggestion that he retain a certified public accountant
to make a complete audit of his business.5 The audit was undertaken but it was
December 1959 before sufficient information was furnished Jones to enable the latter
to set up the first of the proposed corporations, namely, a corporation to take over
ownership of the rolling stock. On December 8, 1959, articles of incorporation were
issued to Work Well, Incorporated, for that purpose. Because Respondent had made
it clear from the outset that he wanted no part of the ownership of the rolling stock,
but wished to confine himself to operation only, the stock ownership of Work
Well, Incorporated, was vested primarily in Respondent's wife and his son, who were
actively associated with him in the operation of his business, and also in the son's wife
as a necessary third party. Respondent sold his rolling stock to the newly formed
corporation. Though the basic reason for incorporating Work Well, Incorporated,
was to own the rolling stock, it also had broad authority under its charter to operate
that equipment. The other corporation or corporations proposed in the original
recommendations had not been formed at the time of the hearing in the instant case.
Respondent continued to own the operating end of the business although he had no
rolling stock of his own and worked only through leased equipment.6
At the outset, it should be noted that an employer may, with impunity so far as
the National Labor Relations Act is concerned, change his business methods or sus-
pend his operations so long as his actions are not motivated by the objective of
defeating employee rights guaranteed by that Act. The validity or invalidity of the
employer's business reasons for such a changeover is not the issue; the issue is,
rather, whether the change was prompted by business considerations, or whether and
to what extent, if any, the change was illegally motivated. See N.L.R.B v. The
Houston Chronicle Publishing Company, 211 F. 2d 848, 851 (C.A. 5); Missouri
Transit Company, supra.
Applying that test to the instant case, no suggestion is made that Respondent's
initial consultation with Attorney Jones 21/2 years before the hearing was prompted
tion of a "moral code" which should deny them relief. It appears, however, that Elledge
and Catterson had solicited such statements from Respondent in order to substantiate
their claim for unemployment compensation and to prove that they had not voluntarily
quit without good cause. Respondent prepared the statements in question and affixed his
signature, likewise under 'oath. Had Elledge and Catterson refused to affix their signa-
tures, the result would undoubtedly have been to put their rightful claim for unemploy-
ment compensation in controversy. As the Board held, adopting the reasoning of the
Trial Examiner in Sears, Roebuck and Co., 123 NLRB 1236, and rejecting a similar
defense-
Reduction in force was, after all, the reason given them by the employer, and it was
to the latter that the applications [for unemployment compensation] would be re-
ferred back for accuracy. One could, hardly expect that in these circumstances they
gratuitously introduce an element of controversy with their employer which would
jeopardize the benefits coming to them on the strength of the employer's own reason
for severance.
r As previously noted, a petition for representation of Respondent's drivers had been
filed in June 1959
"The findings in the foregoing paragraph are based on the testimony of Hamilton C.
Jones which I credit.
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by antiunion considerations . Moreover, it is likewise apparent that Jones' recom-
mendations were based solely on considerations of corporate and tax law; Jones
credibly testified that he was unaware of any labor dispute at Respondent 's plant until
December 1959. The fact remains however, that for 11/z years Jones' recommenda-
tions were not adopted . Indeed, Respondent told Jones during this period that he
still had not completely made up his mind whether to follow the recommendations.
In the spring of 1959 Respondent authorized Jones to proceed to implement his
recommendations but even then Respondent lagged in furnishing the information
prerequisite to any effective action . It was only on or about the beginning of
September 1959, more than 2 months after the Union filed its representation peti-
tion, that Respondent acceded to Jones' suggestion that he retain a certified public
accountant to do the necessary preliminary work.
Moreover , Respondent 's contemporaneous conduct during this period reinforces
the inference that Respondent was, throughout the entire period here relevant, un-
decided as to whether he should change the scheme of his operations, and reinforces
also the inference that the onset of the Union triggered his determination to make
that change . Even after retaining a certified public accountant in September, Re-
spondent obviously had not cast the die in favor of adopting Jones' recommendations.
His statements to driver Elledge and to Worthy in the presence of driver Catterson
shortly before the November 21 election plainly conveyed that if the Union did not
prevail in the election , he would not find it necessary to dispose of his equipment.
Finally, Respondent's motivation is further revealed by the fact that he did not await
the December 8 consummation of the changeover to get rid of his drivers but effected
their discharges in November on the heels of the election which the Union had won
and before he had disposed of his equipment.
I conclude , therefore , that while Respondent had for a long time and without
regard to union considerations entertained the idea of changing his method of opera-
tion , the impetus for making that change was his hostility to dealing with the Union
as the collective-bargaining representative of his drivers? Whether Respondent
would have made the change ultimately for business reasons only, and if so when,
is on this record completely speculative . But the precipitate nature of the discharges
on the heels of the election , the results of which Respondent had openly declared
would determine his future conduct , and the further fact that Respondent did not
even await the imminent changeover before effecting the discharges impels me to
conclude that those discharges were discriminatorily motivated . I so find. See
Brown-Dunkin Company, Inc., 125 NLRB 1379 , involving a comparable situation.
It follows that the discharges were violative of Section 8(a)(3) and ( 1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The unfair labor practices of Respondent set forth in section III , above , occurring
in connection with the operations of Respondent described in section I, above, have
a close, intimate , and substantial relation to trade , traffic, and commerce among the
several States , and tend to lead to labor disputes affecting commerce and the free
flow of commerce.
V. THE REMEDY
Pursuant to the mandate of Section 10(c) of the Act, I shall recommend that
Respondent cease and desist from engaging in the specific unfair labor practices
here found. In addition, since these unfair labor practices are related to other
violations proscribed by the Act and the commission of such other violations in
the future may reasonably be anticipated from his past conduct, the preventive
purposes of the Act may be frustrated unless the remedy is coextensive with the
threat, N.L.R.B. v. Express Publishing Company, 312 U.S. 426, 437. To effectuate
the policies of the Act, therefore , I shall recommend that Respondent cease and
desist from infringing in any manner upon the basic rights guaranteed employees
by Section 7.
Section 10(c) also authorizes the framing of affirmative relief . To that end I
shall recommend appropriate notice provisions . The question of appropriate affirma-
tive relief for the discriminatorily discharged employees presents a more difficult
problem, however. The usual remedy adopted to meet this situation is to direct
that the employees be reinstated forthwith and made whole for earnings lost as a
7 Once the Union was certified as the bargaining representative of the drivers, Respond-
ent would have been obliged to bargain with it concerning his projected changeover in
operations inasmuch as such a change would obviously affect the tenure and, other terms
and conditions of employment of the drivers. See Brown -Dunkin Company, Inc, 125
NLRB 1379.
HUGH MAJOR TRUCK SERVICE 331
result of the discrimination. But where, as here, the employer has abolished the
operation in which the employees were employed and has disposed, by sale or
otherwise, of the equipment used in the operation, the usual remedy gives rise to
readily discernible difficulties. The Board and the courts of appeals have dealt with
this and cognate problems frequently and exhaustively, and not always with a
unanimity of view. A number of such cases is appended in a footnote.8 Under
these circumstances recapitulation of views already ably expressed would be
supererogatory.
Very recently, however, the Board issued its decision and order in Bonnie Lass
Knitting Mills, Inc., 126 NLRB 1396, a case virtually on all fours with the instant
case. In that case the Board, one Member dissenting, found that the employer had
discriminatorily terminated its manufacturing operation with a resultant discharge
of approximately 50 employees, leaving itself only with a minor jobbing operation
requiring a mere handful of employees. The question presented as to remedy was
whether to require the employer to reopen its manufacturing operation in order
to effect full reinstatement for the discharged employees or to devise another remedy
to effectuate the polices of the Act with respect to the victims of the discrimination.
The Board after due consideration of the problem framed its remedy in the alterna-
tive in language which, subject to necessary changes, I deem fully appropriate here.
The Board said:
On the basis of the Board's decision in the Mahon case,' the Trial Examiner
recommended, inter alia, that the Respondent be required to reopen its customary
departments in order to effect full reinstatement for the 49 discriminatees. We
believe the instant case presents a situation which is distinguishable from that
presented in Mahon, where the Board ordered the employer to resume an opera-
tion with its own discriminatorily discharged employees since the operation was
still required and being performed, having only been let out on contract. Thus,
in the latter case, resumption of the discontinued operation involved no more
than administrative alterations in the company's organizational structure and
compliance did not burden it with an unwanted operation not essential to the
conduct of its business. In the case at bar compliance with a similar require-
ment cannot be effected at this juncture by mere administrative action because
the Respondent has disposed of its machinery and equipment and withdrawn
from the manufacture of sweaters.
We have found, however, that the Respondent has engaged in serious viola-
tions of the Act and is continuing, albeit on a substantially reduced scale, its
business operations. In view of the fact that the Respondent has a presently
functioning business and may resume full-scale operation, we deem it appro-
priate, therefore, to provide for the following alternative methods by which
the Respondent may remedy its unfair labor practices .2
We shall order the Respondent, in the event it resumes its manufacturing
operations, in addition to its present jobbing operation, to offer to all employees
who were discriminatorily denied reinstatement . immediate and full re-
instatement to their former or substantially equivalent positions and make them
whole for any loss of pay suffered by reason of the discrimination against them
We shall order the Respondent to create a preferential hiring list, notify its
employees of said list, and, in the event it resumes its manufacturing operations,
to offer the discriminatees immediate reinstatement to their former or sub-
stantially equivalent positions without prejudice to their seniority and other
rights and privileges previously enjoyed.
i The R C. Mahon Company, 118 NLRB 1537
2 Cf Rudy Barber, et at., d/b/a Barbers Iron Foundry, 126 NLRB 30 Chairman
Leedom joins in this remedy although it differs from the one he held applicable in
the Barbers case because there, unlike here, there was no presently functioning
business even on a substantially reduced basis.
8 See, for example, _N.L R B. v. Missouri Transit Company, et al , 250 F 2d 261
(C.A. 8), enfg. 116 NLRB 587; The Houston Chronicle Publishing Company, 101 NLRB
1208, enforcement denied on other grounds, 211 F. 2d 848 (CA. 5) ; The R C. Mahon
Company, 118 NLRB 1537, enforcement denied on other grounds, 269 F. 2d 44 (C.A 6) ,
Brown-Dunkin Company, Inc, supra; Adkins Transfer Company, Inc, 109 NLRB 956,
enforcement denied on other grounds, 226 F 2d 324 (CA 6) ; Rudy Barber, et at, d/b/a
Barbers Iron Foundry, 126 NLRB 30 See, also, NLRB. v Deena Artware, Inc., 361
U S. 398; N.L.R.B v Hopwood Retinninq Co., Inc, 98 F 2d 97 (C.A 2), and the same
case on proceedings in contempt, 104 F. 2d 302 (CA. 2)
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We shall also order Respondent , in the event it does not reopen its manufac-
turing facilities , to make whole the employees discriminatorily denied reinstate-
ment . . . for any loss of pay suffered by reason of the discrimination against
them by paying to each of them a sum of money equal to the amount he or she
would normally have earned as wages from [the date of discharge ] until such
time as each secures, or did secure, substantially equivalent employment with
other employers.
We also expressly reserve the right to modify the backpay and reinstatement
provisions of this Decision and Order if made necessary by a change of condi-
tions in the future, and to make such supplements thereto as may hereafter
become necessary in order to define or clarify their application to a specific set
of circumstances not now apparent.
I believe the situation presented in the Bonnie Lass Knitting Mills case is analogous
to the situation here except that here trucking operations , rather than manufacturing
operations , are involved . I believe further that the remedy prescribed in that case,
with necessary adaptation of language , is appropriate in the instant case and will
effectuate the policies of the Act. I will therefore frame the recommended order
in the instant case accordingly.9
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2 (5) of the Act.
3. By threatening his employees with economic reprisals in the event of unioniza-
tion , Respondent has engaged in and is engaging in an unfair labor practice within:
the meaning of Section 8(a)(1) of the Act.
4. By discriminatorily discharging Floyd David Catterson , Elfred Alson Elledge,
Elwood M. Goble, Boyce Kirkpatrick, Roy Richardson , and Hobart Steele, Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
9It should be noted that Respondent in the instant case disposed of his equipment to
Work Well, incorporated, the stock ownership of which was vested principally in Re-
spondents wife and son. Work Well, Incorporated , was not named as a respondent in
this proceeding and no order can be issued against it . On the other hand , it may appear
in subsequent compliance negotiations or proceedings that for purposes of the Act and
without regard to the validity of the incorporation of Work Well, Incorporated , for tax
or related purposes , the latter entity is an alter ego of Respondent , or a successor or
assign within the contemplation of the Board ' s remedial order. See Regal Knitwear
Company v . N.L R.B., 324 U. S. 9; N.L.R.B. v. Deena Artware, Inc , 361 U.S. 398.
Miele Iron Works and United Steelworkers of America, AFL-
CIO. Case No. 22-CA-497. October 11, 1960
DECISION AND ORDER
On April 18, 1960, Trial Examiner John P. von Rohr issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner also found that the Respond-
ent had not engaged in certain other unfair labor practices and rec-
129 NLRB No. 34.