Bonded Draying Service

National Labor Relations Board - Board Decisions

Oct 2, 1975

220 N.L.R.B. 1015 (N.L.R.B. 1975)

BONDED DRAYING SERVICE 1015
Bonded Draying Service ; Bonded Freight Systems,
Inc.; Transportation Service Company and Aldo
Scoffone and Mark - Fowler and Freight, Construc-
tion, General Helpers and Warehousemen Local
287, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Cases 20-CA-9865 and 20-CA-9984
October 2, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND PENELLO
On June 30, 1975, Administrative Law Judge Stan-
ley Gilbert issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief,
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
We agree with the Administrative Law Judge's
finding that the Respondents violated Section 8(a)(5)
and (1) of the Act by discussing directly with driver
employees of Bonded Freight a proposal that they
change their status from employees to owner-opera-
tors, and by failing to consult with the Union with
respect to the effects upon driver employees of the
loss of Bonded Freight's equipment and said employ-
ees' resultant terminations. With regard to the latter
violation, however, the Administrative Law Judge
found that the Union, by demanding that the termi-
nated driver employees be put back to work without
making a specific request for bargaining, waived its
right to bargain over the effects of that violation. We
disagree with this conclusion and do not find such a
waiver herein.
Briefly stated, the pertinent facts indicate that
Bonded Freight terminated all of its drivers on Janu-
ary 10, 1975, without prior notification to, or consul-
tation with, the Union. Shortly after the termina-
tions, Oran Bond, a union representative, met with
Morgado, Bonded Freight's president, to protest the
terminations, and to insist that the drivers be put
back to work. Morgado's response to Bond's demand
was that he could not do so because there was no
equipment available. It was noted by the Administra-
tive Law Judge that, during the course of this conver-
sation , no specific request was made by Bond upon
Morgado for bargaining over the effects on these em-
ployeees of the loss of equipment.
The law is well settled that "a purported waiver
will not be lightly inferred in the absence of `clear
and unequivocal' language." 1 In the instant case,
there is no evidence indicating that the Union con-
sciously yielded its statutory right to bargaining. Un-
der these circumstances, we, unlike the Administra-
tive Law Judge, are unable to find a waiver herein on
the part of the, Union. Accordingly, we shall order
Respondents, upon request, to bargain with the
Union with respect to the effects upon driver em-
ployees of the loss of Bonded Freight's equipment
and said employees' resultant terminations, and, if an
understanding is reached, to embody it in a signed
agreement.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Re-
lations Board hereby orders that the Respondents,
Bonded Draying Service , San Jose , California, Bond-
ed Freight Systems , Inc., Hayward , California, and
Aldo Scoffone, San Jose , California, their officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Bargaining directly with employees who are
represented by the Freight , Construction , General
Helpers, and Warehousemen Local 287, Internation-
al Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, or any other la-
bor organization.
(b) Changing any terms or conditions of employ-
ment of employees represented by said Union, or any
other labor organization which represents them,
without prior consultation with said representatives
of said employees.
(c) In any like or related manner interfering with,
restraining , or coercing employees in the exercise
of the rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action necessary
to effectuate the policies of the Act:
(a) Place Robert Ward, Carl Shelton, Mark Fowl-
er, Milton Harvey, Larry Bartholomew , Leroy Kem-
per, and David McDonald upon a preferential hiring
list and before hiring any new driver first offer em-
ployment to the aforesaid individuals.
(b) Upon request , bargain with Freight, Construc-
tion, General Helpers, and Warehousemen Local
287, International Brotherhood of Teamsters, Chauf-
feurs , Warehousemen and Helpers of America, as the
exclusive bargaining representative of all employees
1 See Perkins Machine Company, 141 NLRB 98, 102 (1963).
220 NLRB No. 136
1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the appropriate unit, with respect to the effects
upon driver employees of the loss of Bonded
Freight's equipment and said employees' resultant
terminations , and, if an understanding is reached,
embody it in a signed agreement . The appropriate
unit is : All truckdrivers employed by Respondent
Bonded Draying Service and/or Respondent Bonded
Freight Systems, Inc., excluding all other employees,
guards and supervisors as defined in the Act.
(c) Post at their places of business, if any, copies
of the attached notice marked "Appendix." 2 Copies
of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondents' authorized representative , shall be
posted by Respondents immediately upon receipt
thereof, and be maintained by them for 60 consecu-
tive days thereafter, in conspicuous places, including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dents to insure that said notices are not altered, de-
faced, or covered by any other material. In addition,
copies of said notice shall be mailed to Robert Ward,
Carl Shelton, Mark Fowler, Milton Harvey, Larry
Bartholomew, Leroy Kemper, and David McDon-
ald.
(d) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondents have taken to comply
herewith.
All allegations of unfair labor practices in the com-
plaint other than those which have been found here-
inabove to be proved should be, and hereby are, dis-
missed including the allegations of violations of
Section 8(a)(3) and (1) of the Act, and the allegations
relating to Transportation Service Company's re-
sponsibility for the unfair labor practices alleged.
2 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT bargain directly with employees
who are represented by the Freight, Construc-
tion, General Helpers, and Warehousemen Lo-
cal 287, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization.
WE WILL NOT change any terms or conditions
of employment of employees represented by
said Union, or any other labor organization
which represents them, without prior consulta-
tion with said representatives of said employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights under Section 7 of
the Act.
WE WILL place Robert Ward, Carl Shelton,
Mark Fowler, Milton Harvey, Larry Bartholo-
mew, Leroy Kemper, and David McDonald
upon a preferential hiring list and before hiring
any new driver shall first offer employment to
the aforesaid individuals.
WE WILL, upon request, bargain with Freight,
Construction, General Helpers, and Warehouse-
men Local 287, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining
representative of all employees in the appropri-
ate unit, with respect to the effects upon driver
employees of the loss of Bonded Freight's equip-
ment and said employees' resultant termina-
tions, and, if an understanding is reached, em-
body it in a signed agreement. The appropriate
unit is: All truckdrivers employed by Respon-
dent Bonded Draying Service and/or Respon-
dent Bonded Freight Systems, Inc., excluding all
other employees, guards and supervisors as de-
fined in the Act.
BONDED DRAYING SERVICE, BONDED
FREIGHT SYSTEMS , INC. AND ALDO SCOFFONE
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge : Based on a
charge filed by Mark Fowler, an individual, in Case
20-CA-9865, on January 15, 1975, as amended on March
3, 1975, and a charge filed by Freight, Construction, Gen-
eral Helpers , and Warehousemen Local 287 , International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (hereinafter referred to as the
Union) in Case 20-CA-9984 on February 21, 1975, as
amended on March 12, 1975; the complaint herein was
issued on March 26, 1975.
The complaint alleges that Respondents violated Section
8(a)(1), (3), and (5) of the Act. Scoffone filed an answer on
behalf of Bonded Draying Service, Transportation Service
Company, and himself denying the unfair labor practices
alleged in the complaint as well as many of the other alle-
gations therein. No answer was filed on behalf of Respon-
dent Bonded Freight Systems, Inc.
Pursuant to notice, a hearing was held in San Francisco,
BONDED DRAYING SERVICE
California, on May 1 and 2, 1975. An appearance was en-
tered on behalf of the General Counsel but no appearance
was entered on behalf of Respondents . A brief was timely
filed by the General Counsel.
Based on the entire record in this proceeding and my
observation of the witnesses as they testified , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Respondent Bonded Draying is a California corporation
which at times material herein has engaged in the trucking
business as a common carrier . In the last year of its opera-
tions through February 1974, it received revenues in excess
of $100 ,000 from the U. S. Government.
Respondent Transportation Service Company is a Cali-
fornia corporation which at times material herein has en-
gaged in the trucking business as a common carrier. Dur-
ing the last year of its operation , Respondent
Transportation Service received revenues in excess of
$50,000 for transporting freight in interstate commerce.
Respondent Bonded Freight Systems is a California cor-
poration which at all times material herein has engaged in
the trucking business as a common carrier . During the cal-
endar year preceding the issuance of this complaint, it had
gross revenues in excess of $50,000 for transporting freight
for agencies of the U.S. Department of Defense and/or for
transporting freight in interstate commerce.
At all times material herein , Respondent Scoffone has
been the president and sole stockholder of Bonded bray-
ing and Transportation Service . It is alleged that at all
times material herein , the three Respondent corporations
and Respondent Scoffone "have constituted individually
and/or collectively an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(6) and (7) of the Act" which allegation was de-
nied by the aforesaid answer filed by Scoffone .l The inter-
relationship between the Respondents and the conclusions
with respect thereto are set forth hereinbelow.
II. THE LABOR ORGANIZATION INVOLVED
Although it is denied in the aforementioned answer filed
herein, the record supports the allegation that the Union is
now, and at all times material has been , a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
It is alleged that at all times material herein , all the
truckdrivers employed by Bonded Draying "and/or"
Bonded Freight excluding all other employees constitute a
unit appropriate for collective bargaining, that the Union
represented a majority of the employees in the unit above
1 This allegation was overlooked by me when I asserted and the General
Counsel agreed that Scoffone , as an individual, was not alerted by the com-
plaint to the possibility that he might be held personally liable to remedy
any unfair labor practices found herein.
1017
described and by virtue of Section 9 of the Act, the Union
has constituted the exclusive collective-bargaining repre-
sentative of said employees . These allegations were denied.
It is further alleged that since on or about March 8, 1974,
Bonded Draying became a party to a collective-bargaining
agreement with the Union covering the employees in the
above-described unit effective on its face through March
31, 1976. This allegation was denied. However, the record
clearly supports a finding that John Morgado, as terminal
manager of Bonded Draying , did enter into a collective-
bargaining contract with the Union on the aforesaid date.
It further appears that the record supports a finding that
the Union at the times material herein did represent a ma-
jority of the employees in the aforesaid bargaining unit.
The unfair labor practices alleged in the complaint are
that Respondents on or about December 22, 23, and 24,
1974, and January 17, 1975, attempted to bargain directly
with employees concerning wages, hours, and working con-
ditions to the exclusion of the Union; that they attempted
to modify the status of "its employees" under the terms of
the collective-bargaining agreement in effect by changing
the employees' status to that of independent contractors
without complying with the procedural and substantive re-
quirements of Section 8(d) of the Act, all in violation of
Section 8(a)(5) and (1) of the Act; that on or about January
10, 1975, Respondents closed their terminal in San Jose
without prior notice to or bargaining with the Union con-
cerning the decision of closing said terminal and/or effects
of said closure; and that on or about January 13, 1975,
Respondents discriminatorily terminated its employees
(naming seven of them) in violation of Section 8(a)(3) and
(1) of the Act.
Since no appearance was entered on behalf of Respon-
dents, the only witnesses to testify were called by the Gen-
eral Counsel. Among witnesses called were Aldo Scoffone,
John Morgado, John Liclican, and John Bulazo to testify
with respect to the operations of Respondents. Scoffone, as
indicated above, during the time material herein, was presi-
dent and sole stockholder of Respondent Bonded Draying
and Respondent Transportation Service. Morgado, during
the time material herein, was president of Respondent
Bonded Freight. Liclican apparently was the bookkeeper
for all the corporate Respondents as well as other corpora-
tions, and secretary-treasurer of Bonded Freight. Bulazo
was a "rate clerk and chief office clerk" for Bonded bray-
ing and Bonded Freight. Their testimony presented an ex-
tremely confused picture of loosely operated corporations
which were apparently unmindful of rules and regulations
prescribed for the operations of common carriers and
whose affairs are muddled by seizures by the Internal Rev-
enue Service. Following is an attempt to summarize from
the confused and incomplete record the operations of Re-
spondents, facts relevant to their interrelationship and the
conduct which is alleged to have been unlawful.
It is not clear when Bonded Draymg commenced its op-
erations, but it is clear that it did operate in 1973 and into
1974. It appears that in February 1974, its rights to operate
under authority from the ICC and PUC were seized by the
2 The witnesses exhibited a lack of knowledge of aspects of the operations
of Respondents which did not appear to be because of lack of candor but
because of either lack of information or confusion as to what the facts are.
1018 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Internal Revenue Service. However, it also appears that,
nevertheless, said Company continued to operate after the
seizure by the Internal Revenue Service, at least until April
1974. Morgado offered $75,000 at an auction by the IRS
for the aforesaid rights to operate Bonded Draying and on
April 18, 1974, was awarded the rights as the highest bid-
der. He paid $15,000 as a down payment upon his bid. It
appears that the sum of $15,000 was advanced by an Ath-
ens Finance Company apparently through arrangements
effected by Scoffone, who had other dealings with said fi-
nance company . Sometime thereafter , Morgado executed a
document which was described as a "release" to the fi-
nance company of his interest in the $15,000 which had
been paid to the IRS. Thus, the record clearly indicates
that Morgado had no financial interest in the rights ac-
quired. It further appears from the record that Scoffone
arranged to have his attorney set up a corporation known
as Bonded Freight Systems, Inc., which took over whatever
rights were acquired by Morgado. However, the record is
devoid of any clue as to who owned the corporation, since
no stock was ever issued and the minute book is devoid of
any entry.' There was apparently never any meeting of a
board of directors or of stockholders. Morgado testified
that Scoffone merely informed him that he (Morgado) was
the president of the Company. It appears that immediately
after Morgado was informed on April 18 that he was the
successful bidder, he took over the drivers, the equipment,
and the customers of Bonded Draying Services and its op-
erations were continued by the Bonded Freight which ap-
parently assumed whatever assets Morgado acquired from
Bonded Draying.
As noted above, Bonded Draying entered the aforemen-
tioned collective-bargaining agreement with the Union af-
ter its authority to operate had been seized by the IRS and
it is inferred from the record that there was no cessation of
operations by Bonded Draying until Morgado and then
Bonded Freight assumed the operations of Bonded bray-
ing, servicing the same customers and using the same
equipment and drivers. It appears that Bonded Freight
used Bonded Draying invoices during its operations. Be-
sides taking over the drivers, equipment, and trucks of
Bonded Draying, Morgado testified that he added two
drivers (who were members of the Union). It is inferred
that all of the drivers employed by Bonded Freight were
members of the Union. Morgado testified Bonded Freight
continued to pay the same wages and fringe benefits which
were paid by Bonded Draying. It appears from the credited
testimony of Carl Shelton, one of the employees who had
been working for Bonded Draying and who subsequently
worked for Morgado and then Bonded Freight, that in
April 1974 Morgado had a meeting with the employees
who were taken over and informed them that he would
continue to pay union wages and pensions. Morgado testi-
fied that after he took over the operations, he told the driv-
ers that he would continue to pay union benefits and union
wages, although he believed he was not obligated to honor
Bonded Draying's labor agreement. Shortly after Morgado
started operations, he had a visit from a representative of
the Union who insisted that Bonded Freight was obligated
to honor the aforesaid contract with the Union. There is no
indication in the record of what Morgado's response was to
this assertion. It is concluded from the circumstances that
Bonded Freight should be considered an alter ego of Bond-
ed Draying and therefore was bound by Bonded Draying's
contract with the Union.
It appears that shortly before Christmas 1974, Scoffone
informed Morgado that Alsco Equipment Company, an-
other corporation of which Scoffone was president and
sole stockholder, was going to have to cancel its lease of
the trucks used by Bonded Freight because said equipment
was being repossessed. It also appears that Scoffone told
Morgado to discuss with the drivers a proposal that they
purchase the equipment they operate and continue to ser-
vice the customers of Bonded Freight as owner-operators.
It further appears that Morgado discussed said proposals
at meetings with two of the drivers, Robert Ward and Shel-
ton, on two occasions in the latter part of December. There
is no dispute in the testimony that Morgado informed the
two drivers that Bonded Freight was losing its equipment
and asked them if they wanted to buy their trucks and
work on a percentage basis as owner-operators. Further-
more, he told them to talk to Scoffone about arrangements
for the purchase of the trucks.
Morgado testified that he did not consult the Union with
respect to his proposal to the drivers or inform the Union
of the pending loss of his equipment. It does not appear
that any of the drivers was willing to become an owner-
operator. Apparently in accordance with instructions from
Scoffone, Morgado terminated all the drivers employed by
Bonded Freight on January 10, 1975,° without prior notifi-
cation to, or consultation with, the Union. On that date, he
had a meeting with the drivers and he told them he was
losing the equipment and had to stop operating.
Bonded Freight did not stop servicing its customers,
however, because arrangements were made by Scoffone to
have Transportation Service Company furnish drivers and
equipment to handle the hauling for Bonded Freight.
Transportation Service was another company wholly
owned by Scoffone. Scoffone purchased the Company in
1954 and at the time material herein it was apparently op-
erated wholly or almost wholly with owner-operators as
drivers. During the operation of Bonded Freight, its re-
ceipts were turned over to John Liclican, who was a book-
keeper for all of the entities involved in this proceeding,
and apparently Transportation Service was supposed to re-
ceive a percentage of the revenues for its furnishing Bond-
ed Freight with the drivers and equipment and Transporta-
tion Service was supposed to compensate them. Apparently
this arrangement continued for approximately only 3
weeks. It is not clear why this arrangement was terminated.
There are several possible reasons and one or all have been
the cause of the termination of the arrangement. It appears
that Transportation Service operated all through 1974 and
into 1975, at which time it was notified by the ICC that its
right to operate was terminated in 1973 because of failure
to file a certificate of insurance and that it had no authority
There is some testimony that the terminations were on January 13, 1975,
Scoffone testified that he was trying to keep the rights "close" to him so but it appears from Morgado 's and other credited testimony that they oc-
t h ld itha e cou reacqu re them in the future. curred on January 10, 1975.
BONDED DRAYING SERVICE
to operate. Also, there is testimony that in September or
October 1974, whatever rights Transportation Service had
were seized by IRS. As for Bonded Freight, it appears that
the balance of $60,000 which Morgado owed on his bid for
the rights of Bonded Draying was never paid to the IRS
and Bonded Freight never received the certificates of au-
thority. Furthermore, it appears that the IRS repossessed
whatever rights Morgado and subsequently Bonded
Freight acquired by Morgado's successful bid and down
payment of $15,000, but the record does not disclose when
this occurred.
In any event, it appears that, as of approximately some-
time in February 1975, and also as of the time of the hear-
ing, all three corporate Respondents , although still in exis-
tence as corporate entities , were not operating.
It is inferred that Bonded Freight was a paper corpora-
tion set up by Scoffone as a device to continue the opera-
tions of Bonded Draying and keep control of its rights to
operate, and that, as an individual, he controlled the two
corporations for his personal benefit.5 Therefore, it is con-
cluded that Scoffone , as an individual , Bonded Draying,
and Bonded Freight should be considered as a single em-
ployer within the meaning of Section 2(6) and (7) of the
Act.
Consequently, it is concluded that said three Respon-
dents violated Section 8(a)(5) and (1) of the Act by
Morgado's discussing directly with employees of Bonded
Freight changes in the operations of Bonded Freight be-
cause of the loss of its equipment and proposing that they
become owner-operators .6 Furthermore, it is concluded
that said Respondents violated Section 8(a)(5) and (1) of
the Act by Bonded Freight's failure to notify and bargain
with the Union with respect to the effect upon its employ-
ees of the loss of its equipment and their resultant termina-
tion. It is noted, however, that shortly after the termina-
tions, a representative of the Union , Oran Bond, met with
Morgado and protested the termination of the employees.
Bond insisted that Morgado put the drivers back to work
and Morgado explained that he could not do so, since he
had no equipment available for them to drive. Bond appar-
ently made no request upon Morgado to bargain with the
Union with respect to the effect on the employees of the
loss of the equipment . Consequently , it appears that the
Union waived the right to require said three Respondents
to bargain with it as to that matter.
It is alleged that Respondents violated Section 8(a)(3)
and (1) of the Act by the termination of Bonded Freight's
employees and the closing of its San Jose terminal . There is
no probative evidence in the record to indicate that there
was any antiunion motivation in the action taken by Bond-
ed Freight with respect to the termination of its drivers or
any other action it took as a result of the loss of its leased
5 It does not appear that Transportation Service entered into any relation-
ship with Bonded Freight until after the unfair labor practices found herein
were committed , and, therefore , it cannot be held responsible for them. The
fact that it furnished owner-operators to Bonded Freight after the termina-
tions is not sufficient to conclude that its operations were integrated with
Bonded Freight at the time of the commission of the unfair labor practices
found herein and to find that it is an appropriate respondent herein.
6It having been found hereinabove that the Union was the exclusive
bargaining representative of Bonded Freight's drivers.
1019
equipment including the closing of a terminal. There is no
showing of union animus or that Bonded Freight was at-
tempting to rid itself of the Union. On the contrary, it is
inferred that it was forced to terminate its employees for
economic reasons; i.e., the loss of its equipment leased
from Alsco. As aforementioned, Alsco Equipment Compa-
ny apparently had to cancel the lease of equipment to
Bonded Freight because said equipment was being repos-
sessed. It appears that the loss of the leased equipment was
not a pretext for the terminations, since there is credited
testimony that, by the time of the hearing, Alsco had be-
come an inactive corporation. This would tend to corrobo-
rate the reason given for Alsco's cancellation of the lease of
equipment to Bonded Freight.
Thus, in the circumstances, it appears that the General
Counsel has failed to prove by a preponderance of the evi-
dence that the termination of Bonded Freight's employees
was discriminatorily motivated. As to the allegation with
respect to Respondents closing "their terminal in San
Jose," it is not clear from the record that said terminal was
closed, but, in any event, the closing of the terminal, if it
did occur, and the discharge of the employees must have
been so closely related that the finding with respect to the
terminations would be applicable to the closing of the ter-
minal. If it did close said terminal, it apparently was as a
consequence of loss of its equipment and for the same rea-
son as the terminations, and was therefore not violative of
Section 8(a)(3) and (1) of the Act. If it did occur without
consultation with the Union, as alleged, it might very well
have been a violation of Section 8(a)(5) and (1) of the Act,
but as indicated hereinabove, a union representative met
with Morgado after the terminations and alleged closing of
the terminal and made no request to bargain about the
effect on the employees of the loss of equipment or the
closing of the terminal and, therefore, it appears that the
Union also waived any right to require Bonded Freight to
bargain about the alleged closing of its San Jose terminal.
It appears that Scoffone is presently operating a trucking
company as an individual doing business as Al J. Scoffone
Trucking Company. There is no showing in the record that
his operations under that name were in any way integrated
with the corporate Respondents herein. However, since he
is operating that company under his individual ownership,
any remedy which is recommended against Scoffone as an
individual would necessarily affect his operations under
the aforesaid business name.
As to the allegation that Respondents violated Section
8(a)(1) of the Act by Scoffone's dealing directly with an
employee of Bonded Freight on January 17, 1975, this alle-
gation appears to be without merit. The employee at the
time was already terminated and Scoffone's proposal that
he became a driver-operator was not in derogation of the
Union's representative status, since he was no longer an
employee of Bonded Freight.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON
COMMERCE
The unfair labor practice of Respondents set forth in
section III, above, occurring in connection with its opera-
tions set forth in section I, above, have a close, intimate,
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and substantial relation to trade , traffic, and commerce
among the several States , and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
Although it has been found that Respondents violated
Section 8(a)(5) and (1) of the Act by failing to consult with
the Union as to the effect upon its employees of the loss of
the equipment necessary for their employment and their
resultant terminations, it appears , as indicated herein-
above, that the Union subsequently waived its right to bar-
gain about said matters. Therefore, no remedy will be rec-
ommended with respect to said violation except to require
that the drivers who were discharged by Bonded Freight be
put on a preferential hiring list and that should either of
respondent corporations , Bonded Draying and Bonded
Freight, or Scoffone, as an individual, hire any drivers, it
will be recommended that they must hire the aforesaid
drivers discharged by Bonded Freight before hiring any
new employees . Since neither of the abovementioned two
respondent corporations is presently operating , it does not
appear that there is any place where they can post the no-
tice which would be required, but it will be recommended
that they mail copies of said notice to each of the drivers
discharged by Bonded Freight and that Scoffone post said
notice at his place of business where he is operating a
trucking company under the name of Al J. Scoffone Truck-
ing Service.
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding , I make the fol-
lowing:
CONCLUSIONS OF LAW
1. Respondents Bonded Draying Service, Bonded
Freight Systems, Inc., and Aldo Scoffone, an individual,
are a single employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Freight, Construction, General Helpers, and Ware-
housemen Local 287, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
is a labor organization within the meaning of Section 2(5)
of the Act.
3. Said Union was the exclusive bargaining representa-
tive of the drivers employed by Bonded Draying and sub-
sequently by Bonded Freight.
4. Said Respondents, through the conduct of Morgado,
violated Section 8(a)(5) and (1) of the Act by discussing
directly with driver employees of Bonded Freight a propos-
al that they change their status from employees to owner-
operators.
5. Said Respondents, through the conduct of Morgado,
violated Section 8(aX5) and (1) of the Act by failing to
consult with the Union with respect to the effect upon driv-
er employees of Bonded Freight , its loss of its equipment,
and said employees ' resultant terminations.
6. General Counsel has failed to prove by a preponder-
ance of the evidence the allegations of the complaint that
Respondents violated Section 8(a)(3) and (1) of the Act by
the closing of a San Jose terminal and discharge of Bonded
Freight's driver employees because of their union activity
or other concerted protected activity, as alleged in the com-
plaint.
7. The General Counsel has failed to prove by a prepon-
derance of the evidence the allegations in the complaint
relating to the responsibility of Transportation Service for
the unfair labor practices found to have been committed.
8. The allegation of a violation of Section 8(a)(1) by the
conduct of Scoffone on January 17, 1975, is without merit.
[Recommended Order omitted from publication.]