American Trailer & Equipment Corp.

National Labor Relations Board - Board Decisions

Mar 22, 1965

151 N.L.R.B. 867 (N.L.R.B. 1965)

AMERICAN TRAILER & EQUIPMENT CORP ., ETC . 867
American Trailer & Equipment Corp . and its Brunswick Body
Works Division and District No. 47, International Association
of Machinists, AFL-CIO. Case No. 22-CA-1815. March 02,
1965
DECISION AND ORDER
On December 7, 1964, Trial Examiner Rosanna A. Blake issued
her Decision in the above-entitled 'proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exami-
ner's Decision. Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision and a supporting brief. Norman Schwartz t/a
Brunswick Trailer Service filed a motion for leave to file exceptions
and brief in support thereof, which was granted, and said exceptions
and a supporting brief were received.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner 's Decision and the entire record in the case, including the
exceptions and briefs, and hereby adopts the Trial Examiner's find-
ings,' conclusions , and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Recommended Order of the Trial Examiner and orders
that Respondent, American Trailer & Equipment Corp. and its
Brunswick Body Works Division, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial l xaminer's
Recommended Order.
1 We do not adopt the Trial Examiner 's finding that the notes given by Norman
Schwartz to American Trailer and Equipment Corp . were noninterest bearing, as the
record does not adequately support such a finding.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on December 31, 1963 , and an amended charge filed on
April 6, 1964, by District No 47, International Association of Machinists , AFL-CIO,
herein referred to as the Union, the General Counsel , acting through the Regional
Director for Region 22, issued a complaint on April 10 , 1964 , alleging that Respond-
151 NLRB No. 100.
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent had engaged in conduct which violated Section 8(a)(1), (3), and (5) of the
Act. In its answer, Respondent admitted certain allegations of the complaint, such
as the commerce allegations, but denied having committed any unfair labor practices.
Thereafter, pursuant to due notice, a hearing was held before Trial Examiner
Rosanna A. Blake in New Brunswick, New Jersey, on May 11 and 12 and Septem-
ber 2, 1963.1 All parties were represented and were given full opportunity to present
evidence, to examine and cross-examine witnesses, and to present oral argument
The parties waived oral argument. Subsequently, counsel for the General Counsel
filed a brief as did counsel for Respondent.2
Having considered the entire record in the case, the briefs, and from my observa-
tion of the witnesses while testifying, I make the following: 3
FINDINGS OF FACT
1. JURISDICTIONAL FACTS AND CONCLUSIONS; THE LABOR ORGANIZATION INVOLVED
Prior to December 20, 1963, Respondent , a New Jersey corporation , had its
principal office and place of business in or near Edison , New Jersey , where it was
engaged in the purchase , sale, distribution , and repair of freight trailers and related
products . During the last year of its operations , Respondent purchased , transferred,
and delivered to its place of business freight trailers and other goods and mate-
rials valued in excess of $50 ,000, of which goods and materials valued in excess
of $50 ,000 were transported to the plant in interstate commerce directly from
States other than New Jersey. Upon the foregoing facts, Respondent admits and I
find that it was engaged in commerce within the meaning of Section 2 ( 6) and (7)
of the Act.
Respondent also admits and I find that District No. 47, International Association
of Machinists , AFL-CIO, is a labor organization within the meaning of Section
2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Respondent, herein referred to frequently as Brunswick Body or the Company,
was incorporated in 1947. Maurice Bronfman is president of the corporation and
his brother, Seymour Bronfman, is secretary-treasurer. Each brother owns 50 per-
cent of the stock. A nephew, Norman Schwartz, was the plant manager and his
job was to "run the business." A man named Shipkin was the accountant, Merle
L. Fox was shop foreman, and Charlotte Molnar was employed in the office as a
secretary .4
Seymour Bronfman also owns and operates a trucking company known as New
York-New Brunswick, herein referred to as NY-NB, which has its place of business
less than a mile away from Respondent's plant. Norman Schwartz also has his
own business-American Truck Rental-which he operated from his office at Bruns-
wick Body.
B. The union activity and the bargaining request
In the fall of 1963 the shop employees began discussing the possibility of obtain-
ing union representation but it was "just idle talk" until November. In November
some of the employees "sort of decided [they] needed a union" and on December i l
employees Charles Swiatocha and James Hefferty went to a union meeting. After
the meeting, Swiatocha and Hefferty told Union Business Representative William
Heffernan that the employees were interested in a union and Heffernan gave Swiatocha
some union cards.
i The motions to correct the record filed by counsel for the General Counsel and counsel
for the Respondent were unopposed and are hereby granted
2A motion by the General Counsel to reopen the record to take testimony concerning
events occurring after May 12, which, it was alleged, were relevant to the issues raised
by the complaint and answer , was granted over Respondent's objection. At the reopened
hearing the General Counsel was represented by John T. Cooleen, Esq., only. Respond-
ent was again represented by Alfred J Hill, Esq. The Charging Party was unrepresented
Thereafter, counsel for Respondent filed a second brief.
8 All credibility determinations made herein are based in part on my observation of
the witnesses while testifying
* Shipkin's first name does not appear In the record. It was stipulated that Fox, who
is referred to throughout the record as Larry Fox, was a supervisor within the meaning
of Section 2(11) of the Act.
AMERICAN TRAILER & EQUIPMENT CORP., ETC . 869
The next day, December 12, Swiatocha arranged for some of the employees to
meet after work and six of them met at a local bar.5 Swiatocha passed out the cards
and the following employees signed them: Swiatocha, Hefferty, Clarence Michaels,
John McGhee, John Pobicki, and Jack Killinger.C After the meeting, Swiatocha
called Heffernan and the latter picked up the cards at Swiatocha's home.
In a letter dated December 13, 1964, with the salutation "Brunswick Body Works,
U S. Highway No. 1, New Brunswick, New Jersey, Attention: Mr. Norman
Schwartz," Heffernan wrote:
This is to advise that the International Association of Machinists has been
authorized by a majority of the employees employed by the Brunswick Body
Works to represent and bargain for them regarding wages, hours, and conditions
of employment.
Will you please communicate with the undersigned at your earliest convenience
to arrange an appointment for the negotiation of an agreement covering these
employees.
The envelope, postmarked Union, New Jersey, December 18, 1963, was addressed:
Mr. Norman Schwartz
Brunswick Body Works
U.S. Highway No. 1
New Brunswick, N.J.
A line in ink has been drawn through the last three lines and a notation added, also
in ink, "Box-Edison." The envelope is also stamped "Forwarded." 7
The certified mail receipt shows that the letter was signed for by Ann Rockwerk,
an office employee at NY-NB, and is dated December 20.8 The other side contains
the name and address of the sender; i.e., the Union, and an Edison postmark: "Decem-
ber 20-12.30 p.m." It also has a stamped date of December 23, 1963, which was
identified by Union Representative Heffernan as the stamp the Union uses to date
incoming mail.
On the way to work each morning, Rockwerk picked up the mail at the post office
at which time she signed for and received any certified or registered mail. She
arrived at NY-NB a few minutes before 9 a in. and placed the mail on the desk of
the switchboard operator. She testified that she occasionally picked up mail during
her noon lunch hour but she could not recall picking up certified or registered mail
at noon and her testimony that such mail is picked up only in the morning was
corroborated by NY-NB Comptroller Leonard Wergeles.9
The foregoing facts, including the December 20, 12:30 p.m. outgoing postmark,
convince me and I find that Rockwerk picked up the Union's letter shortly before 9
a.m. on December 20 and delivered it to the switchboard operator a few minutes
later. The letter was never answered.
5 Two other employees, Matthew Gondera and George Casey, had taken part in the
earlier discussions about union representation but did not attend the meeting on
December 12.
e
Hefferty testified that he saw McGhee sign his card and Pobicki testified that he
saw Killinger and Michaels sign their cards. Although the cards were in fact signed on
December 12, they are all dated December 11. Business Representative Heffernan testi-
fied that when he received the cards on December 12, only one was dated and the date
was December 11. He then put the same date on the others . Heffernan ' s letter to his
superior concerning the cards is dated December 13, 1963 The explanation, I am sure,
is that the one employee who dated his card made a mistake about the date and I credit
the testimony of Swiatocha, Hefferty. and Pobicki that the employees signed the cards
on December 12 Cf Irving Ta7tel, et al, d/b/a I Taitel and Son, a partnership, 119
NLRB 910, 911, footnote 3, enfd 261 F. 2d 1, 4 (CA. 7), cert. denied 359 U.S. 944.
4 The envelope has the Union 's name and address in the upper left-hand corner and it
is possible that it was delivered to the Brunswick Body plant and was not accepted The
"Box-Edison" in ink has more the appearance of an entry by a private individual than
of an official post office notation. The "Forwarded," on the other hand, has more the
appearance of a post office stamp. There is no evidence that the New Brunswick Post
Office automatically forwards mail to Edison without first attempting to deliver it.
8 NY-NB is Seymour, Bronfman's company which has its office and place of business
about a mile from Brunswick Body.
6 Seymour Bronfman testified that he was "sure" certified or registered mail was picked
up "many times" at noon However, in view of Wergeles' testimony, I am convinced that
Bronfman was either mistaken or was testifying without sufficient knowledge of the facts.
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's contention that no management representative saw the letter until
Monday, December 23, is discussed infra.
C. The events of December 20
Five employees reported for work at 8 a.m. on December 20.10 Supervisor Fox
instructed driver George Casey to go to Trenton for two trailers. When he brought
the first one back about 10:30 or 10:45 a.m., Manager Schwartz told him to start
moving trailers from Brunswick Body to NY-NB and he continued on that assignment
until about 3 o'clock. Matthew Gondera also spent part of the day moving trailers
to NY-NB.
Fox assigned employees Hefferty and Killinger to "do a complete maintenance job
on a trailer." About 10 a.m., the two men had the wheels off and were cleaning the
bearings. At this point, Fox told them to put the wheels back on and send it out.
Killinger mentioned that there was a broken spring and asked if Fox wanted it
replaced. Fox answered in the negative."
Pobicki had a paint job left over from the previous day. At 10 o'clock he had
about an hour or an hour and a half more work to do on the trailer but Fox directed
him to take the masking tape off, "we're sending it out."
After about 10:30 a.m., employees Killinger, Hefferty, and Pobicki were assigned
to cleaning up, a chore which they normally did just before closing time in the
afternoon.
About 3:30 p.m. Fox told the employees to pick up their checks. When they did
so, at least some of them were given notices which stated that they were laid off
because of lack of work. Killinger asked Fox, in the presence of Hefferty and
Pobicki, if he had heard what was going on and Fox replied that be "did not know
anything, he knew the same as [the employees] and he didn't know what was
happening." About the same time, Casey asked Fox what was going on and Fox
told him, "I don't know. I am in the dark like you," or "something to that effect."
Casey testified that he thought that he received two checks.
The above findings are based on the credited testimony of Hefferty, Pobicki, and
Casey, the latter being one of the two employees who did not sign a union card 12
Respondent's version of the events on December 20, especially in the morning of that
day, is substantially different. The testimony of Respondent's witnesses and my
reasons for discrediting it are set forth below.
According to Supervisor Fox and Seymour Bronfman, Bronfman called Fox
between 8:30 and 8:45 a.m. to say the plant was closing. Bronfman further testified
that he arrived at the plant a few minutes later and repeated his statement in the
presence of Manager Schwartz, Accountant Shipkin, and the secretary, Charlotte
Molnar. On direct examination, Fox did not refer to Bronfman's presence at the
plant but on cross-examination be stated that "later [Bronfman] came over " Fox
also testified that he told the employees "before 9 o'clock" that December 20 would
be their last day.
Fox's testimony concerning his statement to the employees was not corroborated by
a single witness and the same is true of Bronfman's testimony that he arrived at the
plant about 8:45 a.m.
More importantly, in Fox's case, significant portions of his testimony differ mate-
rially from statements in an affidavit he gave counsel for the General Counsel on
January 10, 1964; i.e., 3 weeks after December 20. In his affidavit, Fox did not refer
to any conversation with Bronfman but stated instead:
On December 20, 1963, Norman Schwartz told me in the morning that we
were closing up.13 I had [employees] George Casey and Matt Gondera take
the trailers over to N. Y.-New Brunswick Express Co. The other men cleaned
up the [shop?]
io Swiatocha had broken his finger the day before, Michaels was no longer emploved,
and McGhee was absent because hip wife was sick
"For the reasons set forth infra, I am unable to credit any of Fox's testimony which is
contradicted by other witnesses, including his denial that the trailer had a broken spring.
12 Maurice Bronfman testified that he left for Florida about December 1, 1963, and
did not return until shortly before the May 1964 hearing. I am assuming, therefore,
that Hetl`erty and Casey were mistaken when they testified that both Bronfmans were at
the plant on December 20. However, their mistake about what is, at best, a minor
matter does not cause me to discredit their testimony generally.
is On cross-examination , Fox first testified that no one other than Bronfman told him
that the plant was closing Later, he recalled that Schwartz "came over" and told him
but he "couldn 't remember" the time of day
AMERICAN TRAILER & EQUIPMENT CORP., ETC. 871
During the day, several of the men asked me what was happening. I said I did
not know. I said that we probably were closing down for lack of work. I
reminded them that I had been trying to get some work for them as were
running out of work. [Emphasis supplied.] 14
In view of the substantial conflicts between Fox's testimony and his affidavit,
particularly his failure to mention in the latter any conversation with Bronfman on
December 20 or his alleged statement to the employees "before 9 o'clock," I am
unable to credit any of his testimony concerning the events on December 20. This
leaves Bronfman's testimony concerning his telephone call and his conversation with
Fox at the plant a few minutes later uncorroborated although Schwartz, Shipkin,
and Molnar were allegedly present when he talked to Fox at the plant.15 Further-
more, as set forth infra, the testimony of Bronfman and Fox on another matter is so
contrary to that of all of Respondent's other witnesses that Respondent itself does not
rely on their testimony in its brief.
Having observed the demeanor of Fox and Seymour Bronfman while testifying
and having considered the conflicts in the testimony referred to above, I cannot and
do not credit any of their testimony concerning their actions on December 20.
D. The testimony at the reopened hearing
1. The events of July 9, 1964
On the afternoon of July 9, 1964, Union Representative Heffernan and another
union official visited the Brunswick Body plant. Heffernan first spoke to Norman
Schwartz and said that he had come to ask if Schwartz would recognize the Union
as the bargaining agent of the mechanics at Brunswick Body. Schwartz replied that
he did not feel that he had to recognize the Union because Brunswick Body had gone
out of business, that it was now his business, that he leased it from the owners.
As Heffernan turned to leave, Maurice Bronfman came up and asked, "Did you
come down here to start paying me?" Heffernan wanted to know "For what?" to
which Bronfman replied, "For my business. You put us out on December 20th."
Bronfman then asked why Heffernan did not go inside the shop and try to organize
14 Fox, who testified that he interviewed and hired employees , was asked the following
questions on cross-examination and gave the following answers:
Q Now, at the time you interviewed and hired these employees , did you mention
anything about a union to them?
A No
Q. Nothing at all'i Did the conversation come up, anybody ask you if there is a
union in the place . . . 7
A. Yes, they asked me. I told them no.
Q Did anybody ask if there was any objection [ by] the Company , at least to
your knowledge , of having a union there?
A. No objection Only mine.
: r a • • s s
Q. Your objection . What did you tell the employees , Mr Fox, about your objec-
tion to a union coming into the shop
A. Well, I don't particularly care for the union
Q. . . . Any of these employees state or ask what would happen if a union came
into the shop's
A. No.
Q. They never did?
A. No
Q. And you never told them?
A. No.
In his affidavit , Fox stated:
Although neither Maurice Bronfman nor Seymour Bronfman nor Norman Schwartz
ever spoke to me about the Unions , I made it a point that when hiring new people
I would tell them that if they wanted a Union, they had better forget about working
here because the Company could not afford a union and would close down if a
Union came in. I told this to all new employees including the ones who were laid
off on December 20, 1963. The reason for telling the men this is that the Bronfmans
could not afford a Union , and the place would logically have to close down I know
this because of my thirty -five years in this business.
ss Schwartz and Molnar were witnesses for Respondent but did not testify about the
events of December 20. Shipkin was not a witness although he was still employed by
one of the other companies.
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the "people." Heffernan explained that the Union organizes only mechanics. Bronf-
man's answer was, "They are all my relatives." Heffernan then asked, "How can you
tell me to go inside and organize [the employees] if you don't own this place?"
Bronfman gave no answer but turned to Schwartz and said, "Don't let anybody in
the building, keep them all out."
The above findings are based on the undenied and credited testimony of Heffernan) 6
2. The business operating at the Brunswick Body plant after July 1
As stated supra, Schwartz, who is the nephew of the Bronfmans, was the manager
of Brunswick Body and Seymour Bronfman described his "everyday function" to be
"to run the business." At the same time, he had his own business, American Truck
Rental, which he operated at the Brunswick Body plant. After December 20,
Schwartz transferred his business to NY-NB. He employed one man, Matthew
Gondera, to do repair work on the trailers
On July 1, 1964, Schwartz began repairing and servicing trailers using the name
Brunswick Trailer Service. He leased the Brunswick Body plant from the old corpora-
tion for $1,000 a month, subject to cancellation on 30 days' written notice, the first
month's rent being due on August 1.17 He also bought the inventory, which was
virtually intact, for $32,000. Payment was in the form of three, noninterest bearing
notes. The first one is due on July 1, 1965, the second on July 18, 1966, and the
third on July 1, 1967. Although Seymour Bronfman testified that-Schwartz had made
the payments required by the lease; i.e., the rent due on August 1 and September 1,
there is no documentary evidence of any payment. According to Schwartz, he
financed the business by withdrawing $2,000 from his back account in early July.
He later explained that he withdrew the money to "pay the payroll."
Schwartz testified that he tried to and did obtain Brunswick Body's old telephone
number which he "thought" had been "discontinued" for a short time.18 Many of the
customers of Brunswick Trailer Service were also customers of Brunswick Body and
Seymour Bronfman testified that Schwartz felt that he "had a good customer relation-
ship and he didn't want to see it die out."
After July, Schwartz transferred his truck rental company back to the old plant
and Shipkin, who was the accountant for Brunswick Body, is office manager of the
new company although he is on the payroll of the rental company. There were seven
men on the July 10 payroll of Brunswick Trailer Service, including Matthew Gondera
and Larry Fox.19
The building was apparently maintained at all times in usable condition for Seymour
Bronfman testified that inventory was not "moving" and "It would cost us money to
keep the building open and keep air conditioning or heating, whatever it would
require, and the lights, so we-we know there was a tax item there and [Schwartz]
was anxious to make a living, so we sort of put it all together and decided that perhaps
it would be all right for him to try it." Bronfman asserted that he tried to discourage
Schwartz, that neither he nor his brother had any interest in Brunswick Trailer Serv-
ice, but that he stops in now and then to ask Schwartz how he is doing and to talk
about family matters.
E. Analysis and conclusions
1. The unit and the Union's majority status
a. The unit
On December 20, Respondent had seven nonclerical , nonsupervisory employees on
its payroll: Charles Swiatocha, John Pobicki, Jack Killinger , James Hefferty,
Matthew Gondera, George Casey, and John McGhee.20 Swiatocha, Pobicki, Kil-
10 At the time of the reopened hearing, Heffernan was no longer employed by the Union.
17 The sign on the building says only "Brunswick " the "Body Works" portion having
been removed . The lease requires Schwartz to pay all utility and heating bills. The
building is still for sale and has a Kislak real estate agency sign on it
ie Cf. Schwartz ' testimony at the May hearing that he "adopted the number of
Brunswick Body" for his own company and that it was still in operation. The Respond-
ent corporation has never been dissolved.
19 Schwartz testified that Fox was hired as a rank-and-file employee but worked only
4 or 5 days.
20 McGhee worked only on December 12 and 13. According to Supervisor Fox, he called
on the following Monday, December 16, and said that his wife was sick and that he
would come back to work as soon as he could get somebody to take care of her. Fox
added that he did not see McGhee again "until I think it was after New Years when
he came back." It was stipulated that Michaels was no longer employed by the Com-
pany on December 20
AMERICAN TRAILER & EQUIPMENT CORP., ETC. 873
linger, Hefferty, and McGhee did mechanical work only. Gondera also was a
mechanic although he did some driving. According to Fox, Casey did "mostly ...
driving."
All seven men were supervised by Fox and apparently worked the same hours.
There thus appears to be a sufficient community of interest between the mechanics
and the diiver to warrant including all the nonclerical, nonsupervisory employees in
the same unit. Cf. United Aircraft Corporation (Hamilton Standard Division) v.
N.L R.B., 333 F. 2d 819, 822 (C.A. 2).
In its letter requesting bargaining, the Union claimed to represent "a majority of
the employees employed by Brunswick Body Works" and the General Counsel con-
tends in his brief that the mechanics, together with the driver, constitute a unit appro-
priate for bargaining. Respondent took no position with respect to the unit either
at the hearing or in its brief.
The Board's position is that a plantwide unit is presumptively appropriate. Marks
Oxygen Company of Alabama, 147 NLRB 228. Moreover, the Board will include
drivers in a unit of production and maintenance employees where as heie• (1) there
is no history of bargaining and therefore no preexisting unit; (2) the Union is willing
to represent the drivers and no other union is seeking to represent them; (3) the
drivers are supervised by the same foreman and work the same hours as the other
employees; and (4) the Employer has raised no objection to their inclusion. Cf.
Marks Oxygen Company of Alabama, supia
Accordingly, I conclude that the following employees constitute a unit appropriate
for collective bargaining within the meaning of Section 9(b) of the Act: All produc-
tion and maintenance employees, including all automotive mechanics, helpers, and
apprentices, and drivers employed by Respondent at the Brunswick Body plant,
excluding all office clerical employees, professional employees, watchmen, guards, and
supervisors as defined by the Act.
Although Casey's job classification is not specifically mentioned in the unit alleged
to be appropriate in the complaint, his inclusion can in no way prejudice Respondent
since it has never contended that its failure to bargain with the Union was due to a
belief that the unit for which the Union sought to bargain was inappropriate. More-
over, since Casey did not sign a union card, his inclusion does not create a majority
which would not exist if he were excluded. Cf. Galloway Manufacturing Corpora-
tion, 136 NLRB 405, 408-409.
b. The Union's majority
Five of the seven employees on the payroll on December 20-Swiatocha, Kil-
linger, Hefferty, Pobicki, and McGhee-signed union cards 21 Respondent argues,
however, that the Union's majority was not a genuine or uncoerced majority because
the employees sought representation only as "protection" if the plant closed for
economic reasons and because the union representative promised to help them get
other jobs if their fears were realized.22
Swiatocha testified without denial that when be was hired in August, Fox told him
that "you have no worry about layoff ... this is steady work" and Hefferty, who was
hired in November, was told by Fox that "there will always be work." Although
there had been a "For Sale or Lease" sign on the building off and on (see infra), and
Seymour Bronfman had announced from time to time that he was going to close the
plant, Supervisor Fox admittedly paid little attention to Bronfman's remarks and had
no idea that the plant was about to close.23 More important is the fact that the
Company hired two new employees during the very week the men signed union cards.
'i Even if McGhee were excluded, the Union had cards for four of six employees.
2' Swiatocha testified that he remarked to Union Representative Heffernan that there
was not too much business and speculated about what would happen if the plant closed.
He also raised the question of whether the Union could "protect" him if the plant did
close. Swiatocha explained that he "figured if we tried to get a union in there, they
might close the doors." Hefferty and Pobicki testified similarly ; as Hefferty put it, the
"men were afraid of trying to get representation " Heffernan told the men that if the
plant was closed because of the Union, the latter would file a charge, adding that it had
never happened to him but that "it wasn't entirely impossible" and that "if the shutdown
did occur [he] would find jobs for them " After the plant closed, Heffernan got jobs
for Swiatocha and Pobicki.
23 Respondent concedes in its brief that the employees did not take Bronfman's state-
ments any more seriously than did Fox and points out that employers frequently make
such remarks "in moments of excitement, anger or disgust . . . Seymour Bronfman
admitted that Fox was a "little bit surprised" at the news.
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under these circumstances , I am convinced that the employees feared that the plant
might close not because of lack of work , but, as Swiatocha put it, because they
"figured if we tried to get a union in there, they might close the doors."
Nor is there any greater merit in Respondent 's contention that the employees
joined the Union because of Heffernan 's promise that he would help them find jobs
if the plant closed because of the Union . The men were interested in the Union
before any of them talked to Heffernan and it was only natural that they would tell
him of their fears and ask what protection they would have. Heffernan 's promise
undoubtedly lessened their apprehension about the future if their efforts to obtain
union representation cost them their jobs . Nonetheless , a promise of other jobs,
which is speculative at best, is not likely to cause employees to seek union representa-
tion if they do not want it, especially where, as here , they believe that by doing so
they are risking their current jobs which provide them with regular paychecks.
For the foregoing reasons, I conclude that the employees signed union cards
because they decided they needed union representation . It follows, therefore, and I
find that the Union was at all times material heiein the statutory bargaining representa-
tive of the employees in the unit appropriate for bargaining set forth above.
2. The decision to close the plant
a. The Company 's financial situation
As stated supra, Maurice and Seymour Bronfman own Brunswick Body. Maurice
Bronfman testified that the Company experienced the following losses in 1960-1963
1960 -------------------- $49,669 1962______________ ______ $34,256
1961 -------------------- 29,952 1963__ _________________ 16,699
The Company also owes Maurice Bronfman $ 101,473 ; it owes Seymour Bronfman
$64,267; and it owes a family company $123 ,747. Maurice Bronfman was paid
no salary after 1960.24
b. The efforts to sell the plant
Although the Company had made money before 1960 , there was some friction
between the brothers in 1957 and the plant was listed for a time with one or more
real estate agencies . It was again listed in 1962 and has been "on the market" in a
general way since that time It does not appear, however , that there have been
many interested purchasers although it has been shown a few times 25
Much testimony was adduced concerning a "For Sale or Lease" sign which, it is
generally agreed , was on the building in the summer of 1963. The witnesses for the
General Counsel denied having seen the sign on the building on or about Decem-
ber 20. Although Respondent's witnesses insist that the sign was on the building on
December 20, they do not agree on how long it had been there
Supervisor Larry Fox testified that the sign was up in the summer of 1962 and that
he took it down in August or September 1962. He then went on to say, "I put it
back up there in the week of December 20th, '63 " He explained that he and a
NY-NB employee put it up after 4:30 p.m. one afternoon during the week of
December 16 to 20.26
According to Seymour Bronfman , the sign was on the building "all the time" from
about June or July 1963. He insisted that it was up "continuously" from June or
July 1963 until the Kislak real estate agency put up its own sign; i.e., after Febru-
ary 5, 1964
Respondent 's witness Molnar testified that the sign was on the building during the
summer of 1963, was taken down in August , and was put back up "the end of
October , sometime in November , the beginning of November"; i.e., "before the very
cold weather set in." She stated that a NY-NB employee named Teddy put it back
up and that Fox may have been present.
Schwartz , like Molnar, stated that the sign was up in July, was taken down, and
put back in November 1963.
Theodore Shegoski , a NY-NB employee and presumably the employee referred to
by the other witnesses , testified that he put the sign up in June or July 1963, took it
24 The above findings are based on Maurice Bronfman ' s undenied and credited testimony.
75 Some of the surrounding property was sold during 1963.
24 In his affidavit , Fox stated that the sign was up for "about 7 months" about
"18-24 months ago." He also referred to taking it down but did not refer to putting
it up again.
AMERICAN TRAILER & EQUIPMENT CORP., ETC. 875
down in August or September, and put it up again one day "before noon" sometime
"in November. It wasn't December." 27 This is the version referred to in Respond-
ent's brief.
I do not think that the facts concerning the sign are particularly significant. It was
on the building in the summer; it was taken down; and it may have been put back in
November. If so, the employees were so used to seeing it that it is easy to believe
that they might not have noticed it the last week they worked. I also believe that
the property was for sale in a general way and would have been sold if a buyer
had made a good offer. However, there is no evidence that the Bronfmans were
making any special effort to sell the property in the fall of 1963. In fact, it does not
appear that they increased their efforts materially even after December 20 although
they did give the Kislak real estate agency an exclusive listing on February 5, 1964.
In my opinion, the absence of any marked increase in company efforts to sell the
property is inconsistent with the Bronfmans' claim that they made a firm decision
weeks, if not months, before December 20 to cease operating on that date. (See
infra.)
Even more significantly, the testimony concerning the sign casts doubt upon the
credibility of two of Respondent's chief witnesses, Seymour Bronfman and Larry
Fox. As set forth supra, Bronfman testified that the sign was up continuously after
July 1963 and Fox testified tha the put it up during the week of December 20. As
indicated supra, Respondent itself does not rely on the testimony of either Bronfman
or Fox but cites instead the testimony of NY-NB employee Shegoski.
Although it is possible that Bronfman and Fox were mistaken, I am convinced
that Bronfman knew that the sign was down for a substantial period and that Fox
knew that he did not put it up during the week of December 20. I think the true
explanation is that Bronfman realized that the absence of the sign was inconsistent
with Respondent's claim that it was firmly decided in the early fall to go out of
business at the end of the year and that Fox, too, was seeking to support Respondent's
contention that the decision was made prior to December 20. Their testimony, in my
view, discloses a willingness to give testimony consistent with Respondent's claims
even though the facts were otherwise.
c. The date on which the decision to close was made
Maurice Bronfman testified that he decided "during the mid-year of 1963" that the
Company would cease to operate by the end of the year. He further testified that
when he left for Florida about the first of December, he instructed Seymour Bronfman
and Norman Schwartz to close the last payday before Christmas because that would
avoid Christmas bonuses for the employees and Christmas gifts to customers which
would amount to several thousand dollars.28
Seymour Bronfman testified at one point that the decision to close on December 20
was made "around October." At another point he stated, "I can't remember. I
really wouldn't know"; i.e., the date on which the decision was made. When asked
if it could have been in July, he answered, "I don't know ...." Still later, he testi-
fied, "I would say [the decision was made] around August or September, around
that time, I think it was. I can't recall exactly." 29
Respondent concedes that only the Bronfmans and Schwartz knew about the deci-
sion. Fox was not notified because, according to Seymour Bronfman, Fox had told
him that he had bought a home in Florida and was retiring at the end of the year.30
In addition, Bronfman asserted that he "didn't want to create any problem with
customer relationship ......
Schwartz, according to the Bronfmans, was instructed to start liquidating the busi-
ness, to refuse further orders, and to try to use up the inventory. Schwartz did not
testify concerning the date on which he learned of the decision, or about any instruc-
27 Unlike Molnar , Shegoski testified , "It was cold , I remember I put my earlaps down.
It was windy."
Bronfman then explained that no employee had worked long enough to qualify for
a bonus.
29 In July 1963 the Company was notified that it was violating a local ordinance by
parking trailers on the property around the plant. As Respondent puts It In his brief,
It kept "stalling" the township and Indicated that the property might be sold. There is
no claim , however, that Respondent ever advised the township that, In any event, the
business would be closed by the end of the year.
10 Bronfman 's testimony was not corroborated by Fox who did not retire but obtained
new employment after he was terminated by Respondent on or about January 2.
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions received from the Bronfmans , or about the steps he took as a result.31
Schwartz likewise did not testify about where he was, or what he did, or what anyone
else did on December 20.32
Neither of the Bronfmans testified about any particular problem which caused them
to decide to close the plant. Although the Company had been losing money since
1960, its losses in 1963 were $16,699 as compared with $34,256 the year before.
Indeed , 1963 was the best year since 1960 when the Company lost $49,669. More-
over, Respondent did not explain why, if business was so bad, it was decided to
wait until the end of the year to close.
Likewise, there is no explanation of why the announcement was postponed until
the last day of operations which meant that the employees received no notice and
were almost certain to be unemployed for at least a short period.33 It is under-
standable, of course, that the Company would not want it known in the summer that
it was going out of business in December but it would surely have done the Company
no substantial harm to announce the closing on December 9 or 16, particularly since
Respondent claims that there was very little work to be done. If that were so, it
would cause the Company little inconvenience if one or more of the employees
found other jobs during the week of December 16.
If the decision to close was made at least by December 1, it is also strange that
the date selected was Friday, December 20, rather than Thursday, Decembei 19.
Although December 20 was the last payday, the employees testified without denial
that the pay week ended on Thursday. By closing on the 20th, the employees had to
be paid for I day in the new week, which involved additional bookkeeping, and
employee Casey believed that he got two checks.34
I also note that, according to Seymour Bronfman, there were accounts and ship-
ments and collections to be discussed on December 20 which required his presence
at Brunswick Body throughout the day. If, as Respondent claims, 13ronfman and
Manager Schwartz had known for weeks that the plant was closing on December 20,
and if, as Fox claims, there was virtually no work in the shop, it would seem that
there would be few urgent matters which had to be decided that day by Bronfman in
person. On the other hand, if the decision to close was made that day, it is under-
standable that Bronfman, Manager Schwartz, and Accountant Shipkin would have
many things to discuss and decide on December 20.35
Most significant of all, however, is the inconsistency between Respondent's sub-
stantive testimony and its actions ; i e , its hiring of new employees throughout the fall
and even in December. Swiatocha was hired on August 25, Hefferty on Novem-
ber 16, and Michaels and McGhee were hired during the week of December 9.36
Michaels and McGhee were hired by Fox who admitted that he "thought there was a
need to hire them." 37 Schwartz, who ran the daily operations and must have known
that Michaels and McGhee had been hired, did not overrule Fox's action and did not
testify on the subject. Seymour Bronfman's explanation was that he could not
"control" the hiring done by Schwartz.
81 For example, there is no evidence that orders for parts and supplies were canceled
or even reduced in the fall of 1963 and no evidence that any orders were refused
311 do not believe that counsel's failure to question Schwartz about such matters and
the absence of documentary evidence was due to oversight. I assume that it was be-
cause Schwartz' testimony and the documentary evidence would have been adverse to
Respondent. Cf. Interstate Circuit, Inc. v. US, 306 US 208. 226.
The only employee who was not affected was Matthew Gondera, one of the two
who did not sign a card Gondera was employed by Schwartz to do repairs in connec-
tion with his truck rental business.
8* Schwartz testified that it was "possible" that he paid Casey that day for some work
he did for American Truck Rental but he admittedly did not know whether or not this
was the case No documentary evidence was introduced on the subject
In my opinion , Bronfman 's claim that he had no contact with NY-NB on Decem-
ber 20 is incredible on its face. Even if it is assumed that he would cut himself off
completely from NY-NB, his own business, he, Schwartz, and Shipkin would surely have
wanted to know if any Brunswick Body mail had arrived at NY-NB which they needed
to know about.
ii Both Michaels and McGhee were at the employee meeting on Thursday, Decem-
ber 12 Fox testified that Michaels worked "about three days" and it was stipulated that
McGhee worked on December 12 and 13 It is clear from Fox's testimony that McGhee
was expected to return to work the following Monday.
'T Cf. Fox's testimony and his affidavit in which he stated that there was very little
work to be done. Fox testified at one point that both Schwartz and Bronfman authorized
him to hire McGhee and Michaels but he may have meant only that they gave him
authority to hire in general.
AMERICAN TRAILER & EQUIPMENT CORP., ETC. 877
In view of all of the foregoing facts, as well as other facts set forth infra, I do not
credit the testimony of Respondent's witnesses that Respondent decided on or about
December 1, of earlier, to close the plant on December 20. On the contrary, I am
convinced and find that decision was made on December 20.
In reaching this conclusion, I am aware that Seymour Bronfman had stated on a
number of occasions that he was going to close the plant.38 It is clear, however,
that no one took him seriously, including Supervisor Fox. Indeed, Bronfman him-
self admitted, at least tacitly, that he did not really mean what he said on those
occasions.
Rockwerk, the office employee at NY-NB, heard "just office talk" about Brunswick
Body closing and thought she heard it during the week prior to December 20. She
identified Schwartz as one of those she heard "pass a remark" to that effect and talked
to Schwartz, probably during the week of the 20th, about whether Secretary Molnar
would be coming to NY-NB 39 Schwartz told Rockwerk that Molnar would be
coming over "sometime in the future" but said that there would be plenty of work
for both Molnar and Rockwerk. When asked by Respondent's counsel, "Isn't it a
fact that [Molnar] did move over earlier than you anticipated?" Rockwerk replied,
"Yes, she did."
If there was considerable talk during the week of December 20, or earlier, that
Brunswick Body would close, Rockwerk would surely have expected Molnar to
transfer to NY-NB before very long. On the other hand, if Rockwerk heard the
"talk" on December 20, the very day the plant closed, she would expect that some
time would be required to effectuate the decision; l.e , to give the employees time
in which to look for other jobs and customers time to make other arrangements to
have their work done. Respondent itself claims that it was making every effort to
keep the decision secret until December 20, which makes it unlikely that there was
general office talk at NY-NB until the date the decision was made-or as Respondent
would have it-the date on which the decision was announced. Since Rockwerk
was not an employee of Brunswick Body and had no reason to remember the exact
day she heard the news, I believe that she heard it for the first time on December 20.
Respondent's argument that a business cannot be closed in one day would be more
persuasive if Respondent had been a large company doing production work. There
were only five employees at work on December 20 and Fox continued working until
January 2.40 Matthew Gondera was employed, probably immediately after Decem-
ber 20, by American Truck Rental to do repair work and the trailers which were
moved to NY-NB could well have been worked on by employees of one of the other
family companies. Most important of all, however, is the nature of Respondent's
business. For practical purposes, it was a garage with seven employees. Although
its customers would be inconvenienced by the closing, the work could be completed
by another garage. In short, Respondent's business was the kind which could be
closed-and reopened-on short notice.
d. The contention that the Union's letter was not
responsible for the decision to close
Even if it is assumed, arguendo, that a preponderance of the evidence on the
record as it stood at the close of the hearing in May did not support the General
Counsel's contention that the plant was closed because of the Union, the undisputed
testimony adduced at the reopened hearing would cause me to conclude that the
required quantum of evidence is present.
Thus, Union Representative Heffernan testified without denial that when he went to
the plant on July 9, Maurice Bronfman asked him, "Did you come down here to start
paying me?" Heffernan naturally asked "For what?" to which Bronfman replied,
"For my business. You put us out on December 20th."
In my opinion, Bronfman's question and answer disclose both knowledge of the
Union's claim and the reason why the Company closed the plant on December 20 41
Fox estimated that Bronfman made such a statement five or six times in 1963 and
it may be that the Bronfmans had discussed closing the plant. However, I do not credit
Maurice Bronfman's testimony that it was firmly decided in mid-1963 to go out of
business just before Christmas.
39 Schwartz testified that the conversation occurred "a week, ten days prior to the
closing "
40 Although Fox testified that he was taking inventory, in view of his general lack of
credibility, I do not think it follows that he did nothing else.
a Bronfman's statements also provide further evidence that the decision to close was
made on December 20.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In short, Bronfman's remarks constitute a direct admission that the plant was closed
because of the Union. If Bronfman did not have the conversation with Heffernan
set forth above, he would have denied it; if he meant something other than what he
appeared to mean, he would have so testified. Having chosen to do neither, I can
only conclude that Bronfman made the statements attributed to him by Heffernan
and that he meant just what he said, i.e., that it was the Union which put the Com-
pany out of business on December 20.
It has been found that the Union's letter arrived at NY-NB about 9 am on
December 20 and that the decision to close the plant was made that day.42
If, as Respondent contends, no management representative saw the letter on Decem-
ber 20, it is immaterial whether the announcement that the plant was closing was
made before or after 9 a.m. Nonetheless, Respondent clearly felt that it was necessary
to establish that the decision was announced before 9 o'clock As set forth supra,
both Seymour Bronfman and Larry Fox claimed that Bronfman told Fox between
8.30 and 8:45 a.m. that the plant was closing that day and Fox added that he told the
employees "before nine o'clock." For the reasons stated supra, I have discredited
their testimony. However, Bronfman's testimony suggests that he knew in fact that
it was essential to Respondent's case to establish that the announcement was made
before the Union's letter could have reached NY-NB . In other words, if no one saw
the letter at any time on December 20, Bronfman would have known that the exact
time of the announcement was immaterial as long as it was made sometime on
December 20.
On the other hand, if the announcement was made before 9 a in , the fact that
Bronfman saw the letter later that day would be immaterial. Nonetheless, Bronfman
clearly felt that he must also establish that he could not have seen or learned about
the letter until December 23.
According to Bronfman, he not only went to Brunswick Body directly from his
home but he remained there all day because it was necessary "To discuss the receiv-
ables, the shipments with Mr. Shipkin, Charlotte Molnar, had business to be handled,
collection items " He further testified that he received no telephone calls and no
mail from NY-NB and at least implied that no one at NY-NB knew where he was.
Having found that Bronfman did not arrive at the plant about 8:45 a.m. and that
Fox did not tell the employees "before nine o'clock" that the plant was closing,
I find that Bronfman went directly to NY-NB, as usual When the mail was distrib-
uted, shortly after 9 a.m , Bronfman either received the Union's letter directly or
learned about it from Schwartz to whom it was addressed.4 i Bronfman thereupon
decided to close the plant and, about 10 a.m , went to Brunswick Body and told Fox
the news. Shortly thereafter, Fox took the employees off the jobs they were working
on and assigned some of them to cleaning up and others to moving trailers to NY-NB
The above findings are based in part upon the testimony of employees Hefferty,
Pobicki, and Casey, and in part upon my conclusion that Bronfman and Fox were
not telling the truth when they asserted that the decision was announced before
9 o'clock and that Bronfman was not telling the truth when he denied having seen
the Union's letter on December 20. I can only conclude that Bronfman and Fox
did not tell the truth because they were aware that the truth would have supported,
rather than negated, the contention of the General Counsel that the plant was closed
because of the Union's letter.
Finally, I note that Respondent never replied to the Union's letter requesting it to
bargain. As set forth supra, the employees were given notices which stated that they
were being laid off because of lack of work. Such a notice suggests, at the very
least, that the layoffs were temporary and the plant did reopen the following July.
But even if it is assumed that Respondent did not expect to reopen. this did not
relieve it of its obligation to reply to the Union's letter, to explain the reason for the
closing, and to express a willingness to discuss the matter with the Union Its failure
to do so is indicative of Respondent's attitude toward the Union and constitutes fur-
ther evidence that Respondent closed the plant in order to avoid its duty to bargain
with the majority representative of its employees.
42I think it probable that Respondent was aware of the union activity prior to receipt
of the Union's letter. As set forth supra, although Matthew Gondeia did not sign a
card, he was present at the lunchtime conversation when the employees "sort of decided
[they] needed a union." I also note that Gondera was not affected by the closing,
having been employed by American Truck Rental and then by Brunswick Trailer Service
The evidence establishes that after the mail reaches the plant, it is opened by the
switchboard operator and is distributed to the various offices and departments within
a short period. It is possible, of course, that Schwartz saw the letter first, since it was
addressed to him, and that he immediately showed it to Bronfman
AMERICAN TRAILER & EQUIPMENT CORP., ETC. 879
Having found that Bronfman saw the Union's letter at NY-NB at or about 9 a.m.,
it is unnecessary to discuss at length Respondent 's contention that Bronfman had
issued strict instructions that no one was to see Brunswick Body mail until after he
had seen it.
It will be recalled that Schwartz operated his own, entirely separate company-
American Truck Rental-from his office at Brunswick Body. Since there is no claim
that Bronfman's order applied to American Truck Rental mail and since a letter
addressed to Schwartz at Brunswick Body, as the Union's letter was, might well have
concerned Schwartz' own company, it may be that Schwartz saw the letter first.44 The
switchboard operator who sorted and routed the mail was not a witness.
Moreover, Schwartz conceded that Bronfman's order did not apply when Bronfinan
was on vacation At such times , according to Schwartz , Shipkin went over to Bruns-
wick Body for the mail. However, it seems probable that the mail would be given
to Schwartz, if he was at NY-NB, thus making it unnecessary for Shipkin to make
a special trip . Under these circumstances , I credit Rockwerk 's testimony that she
had seen Schwartz pick up unopened mail for Brunswick Body 4 5
The operations after July 1, 1964
The owners of Brunswick Body were the two Bronfmans. Their nephew, Norman
Schwartz, was the manager and ran the day-to-day business. Shipkin was the account-
ant and Molnar was the office secretary. On December 20 there were seven non-
clerical, nonsupervisory employees on the payroll. Only two of them, Gondera and
Casey, did not sign cards.
Although the Company had a substantial inventory on December 20, the record
does not show that any real attempt was made thereafter to dispose of it and, as
previously noted, there was no marked increase in the Company 's efforts to sell the
plant.
After the plant was closed, Schwartz moved his own business-American Truck
Rental-which he had operated from his office at Brunswick Body to NY-NB and
hired Gondera to do repair work. Shipkin and Molnar likewise transferred to NY-NB
although the record does not show for which company they worked.
On July 1, 1964, Brunswick Trailer Service began operations. It was registered as
Schwartz' company and was engaged in the same business as Brunswick Body and
at the same location. It also had many of the same customers and had the same
telephone number.46 As before, Schwartz ran the day-to-day operation and Shipkin
was the office manager.
There were seven men on the July 10 payroll ; i e., the same number that was on
Brunswick Body's payroll on Decembei 20 One of the seven was Gondera, who
had not signed a union card and who had worked in the inteival for American Truck
Rental Significantly, there is no claim that any effort was made to rehire any of
the other Brunswick Body employees . If a plant closes for economic reasons and
the manager later starts up exactly the same business, at the same location, with the
same equipment, and with many of the same customers, it would seem that he would
be interested in hiring former employees . It is true that most of the men had not
worked for Respondent very long, nonetheless, they were familiar with the work and
setup in the plant.47 On the other hand, if the plant was closed because a maloiity
of the employees signed union cards, it would be self -defeating to rehire the same
men when it reopened.
4' Cf . Fox's testimony that Schwartz "came over " and told him the news sometime on
December 20
45Rockwerk did not claim that this was the regular practice and did not claim to have
seen Schwartz at NY-NB on December 20. Although she felt that she was treated un-
fairly by NY-NB and quit when a pay raise was canceled , she appeared to be a truthful
witness If she had wished to do so, she could have fabricated testimony concerning
the events on December 20 which would have been really damaging to Respondent This
she did not do Moreover , her account of the circumstances which caused her to quit
is corroborated by documentary evidence which , at the same time, casts doubt on the
testimony of Seymour Bronfman concerning the events leading up to Rockwerk ' s resigna-
tion. Finally , much of her testimony on this subject is undenied although Comptroller
Wergeles , who was directly involv ed, testified for Respondent on other matters.
4o The only change in the sign was that the last portion was removed.
4T Casey, the only employee other than Gondera who did not sign a card , worked for
Respondent for approximately 6 months However , he had testified for the General
Counsel in May. Fox, who admittedly did not like unions, worked for a few days as
a rank -and-file employee
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the foregoing observation indicates, I am convinced that, as a practical matter,
Brunswick Trailer Service was just Brunswick Body in a different form. To put it
otherwise, in my opinion the lease of the building and sale of the inventory were
only paper transactions designed to make it appear that Brunswick Trailer Service
was a new and wholly unrelated company. For example, there is no documentary
evidence that Schwartz had paid the rent due under the lease on August 1 and Sep-
tember 1. He "paid" for the inventory by means of three nomnterest bearing notes,
the first of which is not due until July 1965. This is surely not the usual method by
which one stranger company buys a substantial business from another stranger com-
pany.48 In Schwartz' words, "I didn't need any money to open a business. I opened
the door and I went out and solicited business." The fact that he withdrew $2,000
from the bank during the first week in July does not prove that he used it to meet the
payroll as he claimed. But even assuming that he did use it for that purpose, there
is no evidence that he was able to pay the employees thereafter and meet the other
financial obligations out of his own pocket or from income from Brunswick Trailer
Service.
As the Supreme Court said in N.L.R.B v Deena Artware, Inc, 361 U.S. 398, 403,
"corporate forms" may be "largely paper arrangements that do not reflect the busi-
ness realities. One company may in fact be operated as a division of another, one
may be only a shell, inadequately financed; the affairs of the group may be so inter-
mingled that no distinct corporate lines are maintained." 49
That the lease of the building and the purchase of the inventory were "largely
paper arrangements" which left the Bronfmans in real control, while Schwartz ran
the day-to-day business as before, was disclosed by Maurice Bronfman's "invitation"
to Union Representative Heffernan on July 9 to organize the employees, who he said
were his relatives, and his order to Schwartz, "Don't let anybody in the building,
keep them all out."
On the basis of the foregoing facts, I conclude and find that the lease of the prop-
erty and the purchase of the inventory by Brunswick Trailer Service were not bona
fide business transactions which resulted in a new and independent company. On
the contrary, I conclude that Brunswick Trailer Service was "merely a disguised
continuance" of Brunswick Body. Cf. Southport Petroleum Company v. N.L.R B.,
3 15 U.S. 100, 106; Regal Knitwear Company v. N.L.R.B., 324 U.S. 9, 14. See also
N L R.B v. Ozark Hardwood Company, 282 F. 2d 1, 5 (C.A. 8), in which the court
said, "Where unfair labor practices have been committed, the creation of another
structure by the owners of the business, for the purpose of continuing its operations
but of frustrating the remedial responsibility for the wrongs committed, will gener-
ally amount to a disguised continuance of the old employer." 50
Moreover, the resumption of the same business at the same location by the same
company, although under a different name, casts doubt upon the claim that the plant
closed on December 20 for economic reasons only. Although the doors were closed,
the building was there, the inventory was there, and the customers were there. Indeed,
as Schwartz testified, no money was needed to reopen; all that was needed was to
open the doors and to go out and solicit business.
f. Summary
It is true that Respondent had been losing money for several years ; however, 1963
was its best year since 1959. It is also true that the plant had been on the market
in a general way since 1962; however , there was no marked increase , in the fall of
1963, in the efforts to sell the plant . The question , of course , is not whether Respond-
ent could have decided to go out of business for economic reasons but whether it
did decide to close for such reasons alone . In short, the question to be decided is
whether a preponderance of the evidence warrants the conclusion that the plant
would not have closed on December 20 but for the Union 's letter.
40I also note in this connection that Schwartz was charged no rent for July I am
aware that Schwartz is a nephew of the Bronfmans but I doubt that bona fide business
transactions , even between members of the same family , involve no payment of any
kind.
10 Footnotes omitted.
60 Cf . N.L.R.B. v. E. C. Brown Co ., and Production Line Manufacturers, Inc., 184
F. 2d 829 (C.A. 2) ; NL.R.B. v. Jack Lewis and Joe Levitan, d/b/a California Footwear
Company, et at., 246 F. 2d 886 (C.A. 9).
AMERICAN TRAILER & EQUIPMENT CORP., ETC. 881
As one court said recently in a similar case •
We are not saying that the economic reasons offered by an employer must meet
the approval of a governmental agency before he may go out of business, or
even that these economic justifications must be economically sound. Rather,
we are saying that these economic considerations must be honestly invoked, and
that an employer may not attempt to disguise an anti-union motive by speaking
the language of economic necessity.51
Having considered the record as a whole, I am convinced and find that the plant
would not have been closed but for the Union's letter and that Respondent sought
to "disguise" its "anti-union motive by speaking the language of economic necessity."
In reaching this conclusion I have considered, inter alia:
(1) The numerous conflicts in the testimony of Respondent's witnesses, particu-
larly Seymour Bronfman and Supervisor Fox, and the absence of corrobative evi-
dence although, if the facts were as stated, Respondent was in a position to produce
such evidence. Conflicts of the type set forth above are not likely to be present if
witnesses are testifying about events which actually happened.
(2) The timing of the closing; i.e., on the day the Union's letter was received,
and the suddenness of the decision. Particularly significant is the inconsistency
between Respondent's testimony and its actions such as its hiring of two new employ-
ees during the week of December 9. Respondent offered no evidence of any specific
act consistent with its claim that the decision to close was made by at least Decem-
ber 1, nor did it explain why the decision was not announced until the last day of
operations.
(3) Respondent's unexplained failure to reply to the Union's letter. An employer
who was willing to bargain with the representative of his employees would have
answered the letter, explained what had happened and why, and would have assured
the Union, at the very least, that the employees would be recalled if and when the
plant reopened.
(4) Maurice Bronfman's statement to Union Representative Heffernan that "You
put us out [of business] on December 20th." This, in my opinion is a clear admission
that the Company went out of business because of the Union.
(5) The resumption of operations shortly after the hearing in May 1964, with all
new employees except for Gondera and Fox.
It is possible that Respondent's business situation was a factor in its decision to
close although its reopening without any apparent change in conditions makes it
doubtful. However, even if it is assumed that Respondent's economic situation was
one of the reasons for the decision, it does not follow that Respondent did not
violate the Act. In the words of one court,
In order to supply a basis for inferring discrimination , it is necessary to show
that one reason for the discharge is that the employee was engaging in union
activity. It need not be the only reason but it is sufficient if it is a substantial
or motivating reason, despite the fact that other reasons may exist.52
The record as a whole, including the matters referred to above, cause me to con-
clude that Respondent closed the plant on December 20 because of the Union's letter
requesting Respondent to bargain with it and in order to avoid its statutory duty to
bargain. It follows, therefore, and I find that Respondent thereby violated Section
8(a)(3), (5), and (1) of the Act Ethel Hinz, etc., d/b/a Myers Ceramic Products
Co., 140 NLRB 232. Cf. Ox-Wall Products Manufacturing Co., Inc., et al., 137
NLRB 933, enfd. 301 F. 2d 878 (C.A. 2) 53
If Respondent had decided, for economic reasons, to close the plant on Decem-
ber 20, I do not believe that it was required, because of the Union's letter, to continue
operating beyond that date; i.e., until after it had bargained with the Union. This
51 N.L R.B. v. Savoy Laundry, Inc., 327 F 2d 370, 372 (C A. 2).
52 N L R.B. v. Whit,n Machine Works, 204 F. 2d 883, 885 (C A. 1). See also N.L.R.B.
v. Jamestown Sterling Corporation, 211 F. 2d 725, 726 (C A. 2)
e3 In reaching the above conclusion, I have not overlooked the fact that NY-NB em-
ployees are represented by a union. However, Seymour Bronfman's testimony that
NY-NB had a union "before [his] time" indicates that he had no choice if he wanted
to acquire the business. It does not follow that he and/or his brother would accept
a union at Brunswick Body which they had established and operated for a number of
years without union representation
783-133-66-vol. 151-57
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not mean, however, that it could validly ignore the Union 's letter. On the con-
trary, under Board precedent , it was under a duty to notify the Union of its decision,
the reason for it, and to meet with the Union , on request , so that the latter could
seek to persuade the Company to reverse the decision . This is not to say, of course,
that if the decision to close was economically motivated , the Company was required
to agree with any suggestion made by the Union but only that it was required to
listen to the Union's arguments and proposals with an open mind. This is particu-
larly true where , as here, the notice to the employees implied, at the very least, that
the "lay-offs" were temporary 54
It has been found that the Union represented a majority of the employees in a unit
appropriate for bargaining and it is undisputed that Respondent never questioned
either the unit or the Union 's majority. It is also undisputed that Respondent did not
reply to the Union's letter and never gave the Union an opportunity to discuss the
decision to close and its effect upon the employees . Under Board law, such a deci-
sion, even if motivated by economic reasons, is a subject concerning which an
employer is required to bargain .5 5 It follows , therefore , that in the instant case, in
which the Company's motive was to avoid its obligation to bargain , Respondent
further violated Section 8 ( a)(5) and (1) of the Act by failing to answer the Union's
letter, by failing to notify the Union of its decision , and by failing to give it an oppor-
tunity to bargain concerning that decision . Esti Neidernian and Gizela Eisner,
co-partners doing business as Star Baby Co, 140 NLRB 678, 681, enfd . in part 334
F 2d 601 (C A. 2). Cf. N L.R.B. v. Brown-Dunkin Company, Inc., 287 F. 2d 17, 20
(C.A. 10), enfg. 125 NLRB 1379, 1386. See also Town & Country Manufacturing
Company, Inc, et al., 136 NLRB 1022, 1027- 1028, enfd . 316 F. 2d 846 , 847 (C.A. 5).
III THE RFMEDY
Having found that Respondent has engaged in unfair labor practices, I shall recom-
mend the customary cease-and-desist order and the affirmative relief which is cus-
tomarily ordered in cases of this nature. Having also found that Brunswick Trailer
Service is but a disguised continuance of Respondent, my Recommended Order shall
apply equally to Brunswick Trailer Service, including the duty to reinstate the employ-
ees, to make them whole, and to bargain with the Union on request.
The purpose of an order in cases such as this is to restore, as nearly as possible,
the situation that would have existed but for the employer's unfair labor practices.
An order which did not run against Brunswick Trailer Service would or might mean
that American Trailer & Equipment Corp and its Brunswick Body Works Division
had succeeded in depriving its employees of their rights under the Act by entering
into paper transactions designed to frustrate the remedial power of the Board.
N L R B v Deena Attware, Inc, 361 U.S. 398, 403; N L.R B. v Ozark Hardwood
Company, 282 F. 2d 1, 5 (C.A. 8). In the instant case, in which the Union's loss
of majority was due entirely to the discriminatory discharges, that loss does not
relieve the Company, either in its old or new form, of its duty to bargain upon
request. Cf Franks Bros Company v. N.L R B., 321 U S. 702, 704-705.
Although John McGhee was not at work on December 20, 1963, it is clear that
he expected to and the Company expected him to return to work as soon as he could
leave his wife, who was ill. Moreover, the record shows that McGhee did return to
work sometime after Christmas. Needless to say, Respondent is not liable for any
backpay in McGhee's case until the date on which he reported to work; i.e., follow-
ing the closing of the plant
Any backpay found to be due to Swiatocha, Hefferty, Casey, Killinger, McGhee,
Pobicki, and Gondera shall be computed in accordance with the formula set forth
in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co.,
138 NLRB 716.
Discrimination against employees for choosing to be represented by a union and
in order to avoid the statutory duty to bargain go to the very heart of the Act and
demonstrate such an opposition to its policies that it is reasonable to assume that
Respondent, under similar circumstances in the future, will interfere with its employ-
ees' statutory rights. Accordingly, I shall include a provision directing Respondent
not to interfere with, restrain, or coerce its employees in any manner in the exercise
of their statutory rights.
54 As set forth supra, the notice to the employees stated that they were "laid off
due to lack of work" and the plant did reopen the following July
ss Fibreboard Paper Products Corporation, 138 NLRB 550, 551, enfd. sub nom East
Bay Union of Machinists, Local 1304, United Steelworkers of America, AFL-CIO, etc.
v. N.L R.B., 322 F. 2d 411, 414 (C.A D C ), cert. granted 375 U S. 963
AMERICAN TRAILER & EQUIPMENT CORP., ETC. 883
CONCLUSIONS OF LAW
1. American Trailer & Equipment Corp. and its Brunswick Body Works Division
is an employer engaged in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
2. Brunswick Trailer Service is "merely a disguised continuance" of American
Trailer & Equipment Corp. and its Brunswick Body Works Division
3. District No. 47, International Association of Machinists, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act
4. Since December 12, 1963, the Union has been and now is the statutory bargain-
ing representative of Respondent's employees at the Brunswick Body plant in the
following unit appropriate for collective bargaining. all production and maintenance
employees, including all automotive mechanics, helpers, and apprentices, and drivers,
excluding all office clerical employees, professional employees, watchmen, guards,
and supervisors as defined by the Act.
5. By closing the plant on December 20 and by discharging the employees because
a majority of them chose to be represented by a union and in order to avoid its
statutory duty to bargain, Respondent engaged in unfair labor practices within the
meaning of Section 8(a)(3), (5), and (1) of the Act.
6. By failing to answer the Union's letter requesting bargaining, by failing to
notify the Union about its decision, and by failing to give the Union an opportunity
to bargain about the decision, Respondent engaged in unfair labor practices within
the meaning of Section 8 (a) (5) and (1) of the Act.
7. The unfair labor practices set forth in paragraphs 5 and 6 are unfair labor prac-
tices affecting commerce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and the entire record,
and pursuant to Section 10(c) of the Act, I hereby recommend that the Respondent,
American Trailer & Equipment Corp. and its Brunswick Body Works Division, both
as a corporation and in its continued existence as Brunswick Trailer Service, its offi-
cers, agents , successors , and assigns, shall:
1. Cease and desist from.
(a) Discouraging membership in District No. 47, International Association of
Machinists, AFL-CIO, or in any other labor organization, by closing its Brunswick
Body plant, by discharging its employees, or by otherwise discriminating against
them because they seek to be represented by a union and in order to avoid its obliga-
tion to bargain with the statutory bargaining representative of its employees.
(b) Refusing to bargain, on request, with District No. 47, International Associa-
tion of Machinists, AFL-CIO, the statutory representative of its employees at the
Brunswick Body Works plant in the following appropriate unit for collective bargain-
ing: All production and maintenance employees, including all automotive mechanics,
helpers, and apprentices, and diivers, excluding all office clerical employees, profes-
sional employees, watchmen, guards, and supervisors as defined by the Act.
(c) In any other manner interfering 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 Union or any other labor organization, to bargain collec-
tively through representatives of their own choosing, to engage in 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 agreement requiring membership in a labor organization as a condition
of employment, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action which is necessary to effectuate the policies
of the Act
(a) Offer Charles Swiatocha, James Hefferty, Jack Killinger, George Casey, John
McGhee, John Pobicki, and Matthew Gondera 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 losses they may have
suffered by reason of the discrimination against them as provided in the section of
the Trial Examiner's Decision entitled "The Remedy." Notify the above-named
employees, if they are serving in the Armed Forces of the United State-,, of fieir
right to full reinstatement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948, as amended, after
discharge from the Armed Forces
(b) Upon request, bargain collectively with the above-named Union as the exclu-
sive representative of all the employees in the unit described above, concerning rates
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of pay, wages, hours of employment, and other conditions of employment, and, if
an understanding is reached, embody such understanding in a signed agreement.
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amount of backpay due and the right to reinstatement under the terms of this Recom-
mended Order.
(d) Post at its offices at the Brunswick Body Works in or near Edison, New Jersey,
copies of the attached notice marked "Appendix." 56 Copies of said notice, to be
furnished by the Regional Director for Region 22, shall, after being duly signed by
the Respondent's representative, be posted by the Respondent immediately upon
receipt thereof, and be maintained by it for a period of 60 consecutive days there-
after, in conspicuous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 22, in writing, within 20 days from
the receipt of the Trial Examiner's Decision, what steps Respondent has taken to
comply herewith 57
se In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "a
Decision and Order."
57 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in District No. 47, International Asso-
ciation of Machinists, AFL-CIO, or in any other labor organization, by closing
our plant, by discharging, or by otherwise discriminating against, our employees
because they seek to be represented by a union and in order to avoid our statu-
tory obligation to bargain.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist the above-named Union or any other labor organi-
zation, to bargain collectively through representatives of their own choosing, to
engage in 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 agreement requiring membership
in a labor organization as a condition of employment, as authorized by Section
8(a)(3) of the Act.
WE WILL bargain collectively, upon request, with District No. 47, Interna-
tional Association of Machinists, AFL-CIO, as the exclusive representative of
all our employees at the Brunswick Body Works plant in the unit described below
with respect to rates of pay, wages, hours of employment, and other conditions
of employment, and, if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is:
All production and maintenance employees, including all automotive
mechanics, helpers, and apprentices, and drivers, excluding all office cleri-
cal employees, professional employees, watchmen, guards, and supervisors
as defined by the Act.
WE WILL offer Charles Swiatocha, James Hefferty, John Pobicki, George
Casey, John McGhee, Jack Killinger, and Matthew Gondera, if not presently
employed by us, immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or other rights
and privileges, and will make them whole for any losses they may have suffered
by reason of the discrimination against them.
METROPOLITAN LIFE INSURANCE COMPANY 885
All our employees are free to become or remain , or refrain from becoming or
remaining , members of the above-named Union , except to the extent that such right
may be affected by an agreement requiring union membership in a labor organization
as a condition of employment as authorized by Section 8 (a) (3) of the Act.
AMERICAN TRAILER & EQUIPMENT CORP. AND ITS BRUNSWICK
BODY WORKS DIVISION AND BRUNSWICK TRAILER SERVICE,
Employer.
Dated------ ------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify Charles Swiatocha, James Hefferty, John Pobicki, George
Casey, John McGhee, Jack Killinger, and Matthew Gondera, if presently serving in
the Armed Forces of the United States, of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948, as amended , after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 614
National Newark Building, 744 Broad Street , Newark, New Jersey, Telephone No.
Market 4-6151 , if they have any questions concerning this notice or compliance with
its provisions.
Metropolitan Life Insurance Company and Insurance Work-
ers International Union , AFL-CIO. Case No. 1-CA-48932.
March 22, 1965
DECISION AND ORDER
On February 16, 1965, Trial Examnier Paul Bisgyer issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision. Thereafter,
Respondent filed exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, and the entire record
in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended , the National Labor Relations Board hereby adopts
as its Order the Order recommended by the Trial Examiner and
151 NLRB No. 108.