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

National Labor Relations Board - Board Decisions

Aug 31, 1990

299 N.L.R.B. 658 (N.L.R.B. 1990)

658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
D & S Leasing, Inc.; Central Transport, Inc. and
Central Cartage Company and Archer Bailey,
III and Teamsters Local Union No. 964, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, AFL-CI0. 1 Cases 8-CA-19212
and 8-CA-19282
August 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 31, 1987, Administrative Law Judge
Donald R Holley issued the attached decision The
Respondent Central 2 filed exceptions and a sup-
porting bnef The General Counsel filed cross-ex-
ceptions, a brief in support of cross-exceptions, and
an answering brief Local 964 also filed an answer-
mg bnef to the Respondent's exceptions, and the
Respondent filed an answering bnef to the General
Counsel's cross-exceptions 3
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions,
and bnefs and has decided to affirm the judge's rul-
ings, findings, and conclusions as modified, and to
adopt the recommended Order, as modified and set
forth in full below 4
The complaint alleges 8(a)(1), (3), and (5) viola-
tions stemming from the Respondent's cancellation
of its contract with D & S Leasing, Inc (D & S), a
personnel leasing firm, and the subsequent layoff
and refusal to recall employees jointly employed
by the Respondent and D & S at the Respondent's
Cleveland terminal At all relevant times prior to
and including the events at issue, Cartage and
Transport were wholly owned subsidiaries of
Centra and all three Corporations were headquar-
tered in the same building in Sterling Heights,
On November 1, 1987, the Teamsters International Umon was read-
mitted to the AFL-CIO Accordingly, the caption has been amended to
reflect that change
2 "Central" denotes Central Transport, Central Cartage, and Centra,
Inc collectively "Transport" and "Cartage" denote Central Transport
and Central Cartage respectively The "Respondent" refers collectively
to the named Respondents found to be a smgle employer
3 The Respondent has requested oral argument The request is denied
as the record, exceptions, and bnefs adequately present the issues and the
positions of the parties
4 The General Counsel excepts to the judge's failure to grant a visita-
tonal clause authonzing the Board, for compliance purposes, to obtain
discovery from the Respondent under the Federal Rules of Civil Proce-
dure under the supervision of the United States court of appeals enforc-
ing this Order Under the circumstances of this case we find that such a
clause is unwarranted Accordingly, we deny the General Counsel's re-
quest that a visitatonal clause be Included in the Order See Cherokee
Marine Terminal, 287 NLRB 1080 (1988)
Michigan T S Maroun and his four children
owned all the Centra stock The composition of the
board of directors of each Corporation was essen-
tially the same, except that Robert Goodheart, the
president of Transport, sat only on that board of
directors and Larry Thomas, the president of Cart-
age, sat only on its board of directors Ron Leach
was executive vice president of both Transport and
Cartage and Charles Garavaglia was vice president
for labor relations for both Transport and Cartage
before his dismissal in Apnl 1986 At some point
not specified m the record, Garavaglia hired Rich-
ard Silverwood and Hank Bichard to handle labor
relations for Cartage and Transport, respectively
We agree with the judge's conclusion that at all
times relevant Centra, Transport, and Cartage con-
stituted a single employer (Central)
Transport was an over-the-road hauler, and Cart-
age performed local breakdown and delivery work
at its Cleveland terminal, the only Cartage facility
at issue here Transport's dnvers delivered goods
to Cartage's Cleveland facility, where Cartage's
dockworkers broke down the shipments and con-
solidated them for local delivery The Cartage
dockworkers at the Cleveland facility were repre-
sented by Truck Dnvers Union Local 407, affili-
ated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, AFL-CIO (Teamsters Local 407, Party in In-
terest) under the Teamsters National Master
Freight Agreement (NMFA)
In mid-1982, Transport won an automotive con-
solidation contract from General Motors Corpora-
tion The consolidation work was to be done in
Cleveland Central decided that Transport should
perform the consolidation work and arranged for
Transport to lease a dock at Cartage's facility for
that purpose Although Cartage employees usually
performed the breakdown and consolidation work
at Cartage's docks, Central decided to hire person-
nel through D & S to perform Transport's work
In early 1982, George Rogers, the president of D
& S, signed a contract to supply drivers to Trans-
port The drivers were represented by Teamsters
Local 507 The D & S contract with Local 507
was not under the NMFA but was a "white paper"
or "paperback" agreement Under the terms of the
contract, D & S employees were paid at a lower
rate than they would have been under the NMFA
When Transport won the contract for the General
Motors work and Central contracted with D & S
to supply the personnel to perform the dock work,
an addendum was added to the "white paper"
299 NLRB No 97
D & S LEASING 659
agreement between D & S and Local 507 to in-
clude the dockworkers under its coverage 5
Although D & S supplied the personnel to work
at the Transport dock, it is clear from the record
that Cartage supervisors directed the D & S per-
sonnel in their day-to-day activities Bruce Morri-
son, Cartage's terminal manager, Jim Berquist, Car-
tage's operations manager, and Cartage's Dock
Foremen Wayne Gentry and John Smith gave D &
S employees their work assignments, scheduled
their working hours, approved requests for time
off, and assigned men to train newly hired employ-
ees In addition, Mornson testified that his approv-
al was necessary before D & S could hire individ-
uals to work at the dock and that he sometimes
hired employees and placed them on the D & S
payroll without consulting Rogers Morrison, Ber-
quist, Gentry, and Smith, whom the judge found to
be supervisors and agents of Transport and Cart-
age, also had the authonty to discipline and termi-
nate D & S personnel Hence, we agree with the
judge that at all times relevant Central personnel
controlled the day-to-day activities of the D & S
employees, and that at all times relevant Central
and D & S were the joint employers of the dock-
men who performed consolidation work for Trans-
port at the Cleveland facility and who were repre-
sented by Local 964
In early 1986, Central decided to terminate its
relationship with D & S and to have its own em-
ployees perform the consolidation work Pursuant
to this decision, Joe Goryl, a Central official, in-
structed Morrison to make up a list of D & S per-
sonnel whom Central should hire when it took
over the Cleveland dock Morrison testified that on
the basis of ins own judgment, and without con-
sulting the supervisors involved in the daily oper-
ations at the dock, he made up a list of 17 "super-
stars" and submitted it to Goryl In a memo dated
May 8, 1986, Goryl informed Thomas, Cartage's
president, that Central would keep approximately
15 D & S personnel 6 and would hire 30 new em-
ployees "anonymously"
Following Goryl's instructions, Morrison placed
an ad for new employees in a local newspaper on
May 15, 1986 The ad specified only that new em-
5 In late 1982, Local 964 replaced Local 507 as the representative of
these employees The D & S agreement with Local 964 ran from 1982 to
1985 and incorporated the same terms as D & S's agreement with Local
507 In 1985, D & S and Teamsters Local 964 executed a new agreement
effective June 1, 1985, through March 31, 1988 Unhke the prior agree-
ment, the new contract also covered D & S employees working in juris-
dictions other than that of Local 964 The employees represented by
those other locals are not at Issue here
6 When Berquist returned from vacation the following week, he added
five names to Momson's list Central officials added an additional four
Consequently, when Central terminated its contract with D & S on May
31,1986, Central retained 26 of the D & S personnel
ployees would work for Cartage When the presi-
dent of Local 964, Oswald Kelm, called Morrison
to find out what was going on, Morrison told him
that he did not know about the ad and had nothing
to do with it On May 16, 1986, Kelm sent Mom-
son a registered letter requesting clarification of the
ad This letter was never answered
Central treated all the employees hired as of
June 2, regardless of whether they had previously
worked for D & S, as new employees who came
under the NMFA contract between Cartage and
Local 407, mcludmg its wage terms 7 Under the
terms of that agreement, the pay of newly hired
employees was prorated to that of employees
making the full amount of wages established under
the NMFA contract Thus, new employees were
paid 70 percent of the contract wage their first
year, 80 percent their second year, etc Conse-
quently, former D & S personnel, who had worked
for Transport under the "white paper" agreement
with Local 964 on May 31, were paid approximate-
ly $2 less an hour when they returned to work on
June 2 as "new" Cartage employees working under
the NMFA contract with Local 407 In addition,
these former D & S employees lost their seniority
and the health and welfare benefits that they had
accrued under the "white paper" agreement
We agree with the judge that Central terminated
its contract with D & S, thereby causing D & S to
lay off 33 employees, and that Central refused to
hire these employees as part of a plan to escape
from its obligations under the collective-bargaining
agreement We also agree with the judge that by
these actions Central engaged in conduct that was
inherently destructive of these employees' rights
guaranteed under Section 7 of the Act In addition,
for the reasons explained below, we also find that
Central's actions m this regard were motivated by
antiunion animus under the analysis set out in
Wright Line, 251 NLRB 1083 (1980), enfd 662
F 2d 899 (1st Cif 1981), cert denied 455 U S 989
(1982) Because we fmd that Central's decision to
terminate the unit employees was motivated by an-
tiunion animus, we conclude that Central was obit-
7 Several former D & S employees testified that they first learned that
Cartage was hiring dockmen by reading Cartage's newspaper advertise-
ment Although there were "rumours flying around," these former D & S
employees testified further that although they were requested by Central
officials in late May to file applications and were given interviews of ap-
proximately 3-5 minutes' duration, they did not learn until May 31 at the
earliest that D & S's contract had been canceled and that they would be
terminated For example, former D & S employee Towson testified with-
out contradiction that Koubeck, D & S's vice president, Informed him on
Saturday, May 31, that he no longer worked for D & S and that he
should not report to work on Monday unless Central notified him to do
so On Sunday, June 1, Berquist called Towson and told him to report to
work on Monday, June 2 Only after he reported on Monday did
Towson learn that Central Intended to treat hun as a new employee and
that he had lost his seniority
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
gated to bargain with the Umon over its decision
to terminate its contract with D & S and the effects
of that decision 8 Thus, we find that Central, as the
Joint employer of the D & S employees, violated
Section 8(a)(5) and (1) of the Act by failing to bar-
gain with Local 964 over its decision to terminate
its contract with D & S and the effects of that de-
cision 9 In addition, we agree with the judge that
Central violated Section 8(a)(5) and (1) by failing
to provide Local 964 with notice of its decision
and to provide information requested by Kelm,
Local 964's president 10
We also agree with the judge that, in the circum-
stances of this case, the Respondent has an obliga-
tion to recognize and bargain with Local 964 and
to embody the results of that bargaining in a con-
tract if agreement is reached In this regard, we
have found that Central in the form of its single
employer Transport was the joint employer of the
D & S employees When Transport terminated its
contract with D & S, these employees were termi-
nated but a majonty of them were then "hired" 2
days later by Cartage which we have found is also
a smgle employer with Central 11 Indeed, there
was no bona fide cessation of operations at the
Cartage termmal and no real break in the bargain-
ing relationship between Central and Local 964
See First National Maintenance Corp v NLRB, 452 U S 666, 682,
687-688 (1981), Strawsine Mfg Co, 280 NLRB 553, 553 (1986), and
Hydro Logistics, Inc. 287 NLRB 602, 602 (1987)
9 We agree with the judge that the Respondent, as the joint employer
of the D & S personnel, "exposed Itself to the normal joint-employer bar-
gaining obligations" We also agree with the judge that the Board has
"uniformly held" that a joint employer Is obligated to bargain with the
union over the decision and effects of displacing unit employees See
Sun-Maid Growers of California, 239 NLRB 346 (1978), enfd 618 F 2d 56
(9th Cir 1980), and W W Grainger Inc 286 NLRB 94 (1987), enf
denied on other grounds 860 F 2d 244 (7th Or 1988) Inexplicably, how-
ever, the judge failed to find that the Respondent violated Sec 8(aX5)
and (1) of the Act through its failure to bargain with Local 964 over its
decision to terminate its contract with D & S Consequently, the judge
limited his recommended Order to a provision that the Respondent bar-
gain with Local 964 only over the effects of its decision to terminate its
contract with D & S The judge has, however, made all of the factual
findings that would establish the legal conclusion concerning a decision
bargaining violation, and his reasoning concerning the Respondent's bar-
gaining obligation makes It appear that the omission of that formal con-
clusion was inadvertent We shall therefore include in our Order a provi-
sion that the Respondent bargain with Local 964 over its decision to ter-
minate its contract with D & S
In the absence of exceptions, Member Cracraft would not find this ad-
ditional 8(aX5) violation
iO In its exceptions, the Respondent asserts that Local 964 waived its
nght to bargain about the transition from D & S to a Cartage-employed
work force by its failure timely to request negotiations We agree with
the judge that the Respondent ignored Local 964's timely requests for in-
formation and that the Respondent failed to give Local 964 adequate
notice of its decision Particularly because Local 964 was presented with
a fait accompli, we find that it did not waive its bargaining rights
" In this regard, the judge stated "that at or about the same time" that
Cartage employed the 26 former D & S personnel, It hired 32 new non-D
& S employees G C Exh 39, however, makes clear that Cartage had
lured only 24 non-D & S employees as of June 2, the date it took over
the Transport/D & S work Consequently, the record clearly establishes
that Cartage commenced work on June 2 with a majority of former D &
S employees in the new unit
Hence, although D & S was removed from the
scene, Central remained the Employer of a majon-
ty of the unit employees who were essentially
doing the same job in the same location under the
same supervision and ultimately for the same cor-
porate entity Accordingly, Central was not free to
set new terms and conditions of employment with-
out bargaining with Local 964 but had a duty to
maintain the status quo until it either reached
agreement with Local 964 or bargained to im-
passe 12
The complaint further alleges that Central violat-
ed Section 8(a)(3) and (1) of the Act by laying off
and/or discharging 33 named employees and by
failing and refusing to employ and/or recall those
employees because Central believed that they had
or would support Local 964 Although finding no
evidence of antiunion animus, the judge found that
Central caused D & S to terminate the Local 964-
represented employees and transferred the unit
work to Cartage as part of a plan to avoid its obli-
gations under the 1985-1988 D & S collective-bar-
gaining agreement that it incurred by virtue of
Central's status as D & S's joint employer of the
Local 964-represented employees The judge con-
cluded that Central's actions m this regard, its ter-
mination of the Local 964-represented employees
and its refusal to rehire some of them, were "inher-
ently destructive" of the employees' Section 7
nghts within the meamng of NLRB v Great Dane
Trailers, 388 U S 26, 33-34 (1967), and thus violat-
ed Section 8(a)(3) and (1) of the Act We agree
In Great Dane Trailers, the Supreme Court stated
that some conduct
is so "inherently destructive of employee
interests" that it may be deemed proscnbed
without need for proof of an underlying im-
proper motive [Such conduct] carries
with it "unavoidable consequences which the
employer not only foresaw but which he must
have intended" and thus bears "its own mdicia
of intent"
The Court further stated that
12 See Sterling Processing Corp. 291 NLRB 208 (1988), and Morton De-
velopment Corp. 299 NLRB 649 Inasmuch as Central was not a signatory
to D & S's contract with Local 964 and the record does not otherwise
establish that Central should be bound to that agreement, in the circum-
stances of this case we find that Central is not bound to the contract as
such As stated above, however, it is bound to maintain the status quo as
reflected, Inter aha, in the contract with Local 964 until it bargains to
agreement or impasse
The Respondent excepts to the portion of the judge's recommended
Order prohibiting the Respondent from altering the terms and conditions
of employment without express agreement of the Union In this regard,
the recommended Order is inconsistent with our conclusion that the Re-
spondent must maintain the status quo only until It bargains to agreement
or Impasse We shall Include an appropriate provision in our Order
D & S LEASING 661
if it can reasonably be concluded that the
employer's discriminatory conduct was "inher-
ently destructive" of important employee
rights, no proof of antmmon motivation is
needed and the Board can find an unfair labor
practice even if the employer introduces evi-
dence that the conduct was motivated by busi-
ness considerations
With regard to what conduct may be characterized
as "inherently destructive," we have described
such conduct as the type "which would inevitably
hinder future bargaining or create visible and con-
tinuing obstacles to the future exercise of employee
rights" Swift Independent Corp, 289 NLRB 423,
427 (1988), remanded sub nom Esmark, Inc. v
NLRB, 887 F 2d 739 (7th Cir 1989)
Here, in furtherance of its plan to reduce labor
costs, Central not only caused D & S to terminate
these employees but at the same time caused Trans-
port, D & S's Joint employer, to terminate these
same employees as part of its plan to transfer the
work to Cartage in order to bring the unit work
under the NMFA administered by Local 407 As
noted, supra, new hires received only 70 percent of
the full wage rate under the NMFA Thus, under
the guise of hiring as new Cartage employees those
terminated by Transport, Central was able to pay
those employees $2 less an hour on Monday, June
2, than they earned on the previous Saturday, May
31
In this regard, we find that Central's conduct in
these circumstances is analogous to that of an em-
ployer that carries out a sham closing of a facility
in order to reopen under new terms and conditions
of employment more favorable to itself By "clos-
ing" (with respect to unit work) Transport on Sat-
urday, May 31, and "opening" Cartage on
Monday, June 2, Central was able to employ as
"new hires" the former Local 964-represented em-
ployees at approximately $2 less an hour than they
were making on May 31 when they were repre-
sented by Local 964 Within the context of sham
closings, we have stated that
the closing of the plants, the termination
of the employees, and the rehiring of
those employees "as new employees of the
corporation" under new terms and conditions
of employment must be considered conduct
that would naturally hinder collective bargain-
ing and as conduct inherently destructive of
employee rights [Swift Independent Corp,
supra at 428]
We find this language no less applicable in the
present context where a single employer, Central,
transferred work from one of its companies to an-
other with the sole purpose of ridding itself of one
bargaining agent, Local 964, and replacing it with
another, Local 407, which represented employees
under a contract whose terms were more favorable
to Central Accordingly, we conclude that by such
action Central engaged in conduct "inherently de-
structive" of employees' rights in violation of Sec-
tion 8(a)(3) and (1) of the Act 13
We further find, contrary to the judge, that there
is sufficient evidence in the record to support a
conclusion that Central's actions in laying off and
refusing to recall unit employees were motivated
by antiunion animus in fact and were thus violative
of Section 8(a)(3) and (1) under a Wright Line anal-
ysis 14
In Wright Line, supra, 251 NLRB 1083, the
Board established a two-part causation test in cases
alleging violations of Section 8(a)(3) turning on em-
ployer motivation Under the Wright Line analysis,
the General Counsel has the initial burden of estab-
lishing a prima facie showing that protected activi-
ty was a "motivating factor" in the employer's de-
cision Once the General Counsel has met this
burden, the burden shifts to the employer to dem-
onstrate that it would have taken the same action
even in the absence of the protected activity
Applying the Wright Line analysis to the facts of
the present case, we find that the General Counsel
has met the burden of establishing a prima facie
showing that Central laid off the Local 964-repre-
sented employees and refused to recall some of
them as part of an attempt to evade its obligations
under the more costly collective-bargaining agree-
ment between D & S and Local 964, freeing itself
from its bargaining obligation with Local 964, and
replacing Local 964 with Local 407 as the repre-
sentative of the employees performing the unit
work formerly done by Local 964-represented em-
ployees In this regard, the inference is inescapable
that the Respondent proceeded with its plan under
the apprehension that its failure to retain all the
13 Having found that the Respondent engaged in conduct Inherently
destructive of employees' Sec 7 rights, under Great Dane the burden
shifts to the Respondent to establish that It was motivated by "legitimate
objectives" 388 US at 34 We find that the Respondent has faded to
satisfy its burden See the discussion in the last two paragraphs of text,
infra
Because, as explained below, the record supports a finding of actual an-
tiunion motive in the termination of the D & S employees and their sub-
sequent treatment by Central (refusing to rehire some of them and hiring
others as "new" employees), Chairman Stephens finds It unnecessary to
make an "Inherently destructive" finding pursuant to the analysis set out
in Great Dane, supra at 33-34 See his separate position in Swift Independ-
ent Corp , supra, 431 fn 19
14 "It is, of course, well established that a discharge may be for a good
cause or bad cause, or no cause at all except that a discharge is unlawful
when the real motivating purpose is contrary to the prohibitions of Sec-
tion 8(a)(1) or (3) of the Act" W W Grainger, Inc , supra at 116
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unit employees and its rehiring of some of the unit
employees by a different entity, somehow entitled
it to abandon its relationship with Local 964 in
favor of Local 407 In reaching this determination
we note that Silverwood, the labor representative
for Cartage, sought out Teamsters officials in May
1986, only 2 weeks before the transfer and layoff
were to take effect, and sought assurances from
them that Cartage was not obligated to take the
laid-off employees when it terminated its relation-
ship with D & S In addition, Central attempted to
circumvent the bargaining process through its ef-
forts to keep its plans secret from Local 964 and its
refusal to supply the information requested pertain-
mg to the transfer 15 Further, and perhaps most
significantly, the Respondent has failed to provide
specific reasons for its selection of any of the par-
ticular 33 Local 964-represented employees who
were laid off '6
Finally, with regard to the General Counsel's
pnma facie case, although we agree with the judge
that Central violated Section 8(a)(1) through state-
ments made by Supervisors Wayne Gentry and Joe
Imondi to employee Meyers," we also find, con-
trary to the judge, that these statements provide
further evidence of the Respondent's motive for
laying off former D & S employees Although the
judge emphasized the fact that neither Gentry nor
Imondi participated in the decision to lay off the
unit employees, we note that both Gentry and
Imondi had worked for Cartage for some time and
were in a position to know the reasons for Cen-
tral's action although they did not participate in the
hiring process itself 18 Consequently, although
Gentry and Imondi may not have been involved in
the decision, they were in a position, at the least, to
note the lack of a legitimate reason for the Re-
spondent's hinng practices In these circumstances,
lb Cedar Falls Health Care Center, 276 NLRB 1300, 1302 (1985)
le Terminal Manager Morrison testified that he evaluated each em-
ployee "In his head" He did not consult the supervisors who had daily
contact with the men and could not articulate any definite standard by
which employees were evaluated for selection He stated only that he
wanted to keep the "superstars" Further, the record shows no difference
between the employees retained and those laid off with regard to repn-
mands or disciplinary actions The inability to articulate a definite stand-
ard by which employees were evaluated permits the Inference that C.en-
tral's true motive in the hiring process was discriminatory See Wright
Line, supra at fn 12 See also Lemay Caring Center, 280 NLRB 60, 70
(1986)
17 According to Operations Bulk Manager Gentry's credited testimo-
ny, on June 1, 1986, he told Union Committeeman Meyers that he had
always been satisfied with his work and could not understand why he
was not coming back and that the only reason he could think of was
Meyers' association with the Union On the same day, according to
Meyers' credited testimony, Dock Foreman Imonch told Meyers that he
and Union Steward Archer Bailey were not coming back because they
were with the Union
' 8 Gentry has been operations bulk manager for Central since 1985
!monde commenced work for Central on June 25, 1985 He performed
"clerical duties" pnor to his promotion to dock foreman when Central
took over the dock on June 2, 1986
we conclude that these statements, although not
dispositive, have some relevance and are entitled to
some weight in assessing Central's state of mind
with respect to the discharge of employees Meyers
and Bailey 15
Central argues in rebuttal to the pnma facie case
that its decision to lay off the employees was a part
of its plan to terminate its contract with D & S pn-
manly because of its dissatisfaction with D & S's
performance and because of what it contends was
the International's insistence that Central not con-
tract with leasing companies As evidence of the
former, Central mtroduced into evidence the letter
of January 20, 1986, from Cartage's president,
Thomas, to D & S's president, Rogers, which out-
lined Central's dissatisfaction with D & S's per-
formance and threatened termination of the con-
tract unless D & S's performance improved With
regard to the International's views on leasing,
union official Brown testified that in a spring 1986
meeting with Central representatives in Washing-
ton, D C, officials of the Teamsters International
expressed their dissatisfaction with leasing compa-
nies
We find, however, that these proffered reasons
are not sufficient to overcome the evidence pre-
sented by the General Counsel We note that
Rogers, D & S's president, testified without contra-
diction that after receiving Central's letter of Janu-
ary 20, Koubeck, D & S's vice president, took
steps to remedy the problems outlmed by Central
and there is no evidence that Central was further
dissatisfied with D & S Second, Garavagha testi-
fied that at a meeting of Central management offi-
cials in February or March 1986, labor costs was
the sole issue discussed in making the decision to
terminate the D & S contract As to the Interna-
tional's dissatisfaction with employee leasing com-
panies, we note first that the International officials
expressed their dissatisfaction in general terms
They did not specifically urge Central to terminate
its contract with D & S but spoke generally of
companies that used leasing companies as a way to
get around union standards In this regard, we note
that Silverwood testified that the Teamsters did not
have a problem with Central's use of D & S be-
cause D & S, unlike most employee leasing compa-
nies, was unionized We also note that Central con-
tinued to contract with employee leasing compa-
nies after it terminated its contract with D & S
Thus, we find that Central has failed to rebut the
General Counsel's prima facie case and that Cen-
tral's actions in laying off and refusing to recall
19 Thnjovay Supermarket, 276 NLRB 1450, 1463 (1985) See also
Burger King Corp, 279 NLRB 227, 239 (1986)
-:-
D & S LEASING 663
Local 964-represented employees were motivated
by antiunion animus We, therefore, conclude that
the Respondent violated Section 8(a)(3) and (1) of
the Act
ORDER
The National Labor Relations Board orders that
the Respondents, Centra, Inc , Central Transport,
Inc , and Central Cartage Company, a single em-
ployer, Sterling Heights, Michigan, its officers,
agents, successors, and assigns, shall
1 Cease and desist from
(a) Refusing to bargain collectively in good faith
with Teamsters Local Union No 964, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL—CIO by refus-
ing to recognize and bargain with the Union in the
appropriate unit and by refusing to bargain with
the Union concerning its decision to cancel its con-
tract with D & S Leasing, Inc , and concerning the
effects of the transfer of automotive consolidation
work at its Cleveland, Ohio terminal from D & S
Leasing, Inc to Central Cartage Company
(b) Altering the wages, hours, or other condi-
tions of employment of employees in the appropri-
ate bargaining unit without bargaining with the
above-named Union
(c) Refusing to supply Teamsters Local Union
No 964 requested information, which is necessary
for and relevant to its performance as the exclusive
bargaining representative of the unit employees
(d) Discouraging membership in Teamsters
Local Union No 964 by laying off and refusing to
recall employees pursuant to a plan to avoid the
obligations of a subsisting collective-bargaining
agreement
(e) Coercing employees by informing them they
were not hired because they held positions with
Teamsters Local Union No 964
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the
Act
2 Take the following affirmative action neces-
sary to effectuate the policies of the Act
(a) Recognize and, on request, bargain collec-
tively with the above-named Union as the exclusive
representative of the employees in the following
appropriate unit and, if agreement is reached,
embody it in a signed written agreement
All dockmen and yardmen performing auto-
motive consolidation work at 5400 West 137th
Street, Cleveland, Ohio, excluding all clerical
employees, professional employees, guards and
supervisors as defined in the Act, and all other
employees
(b) Bargain collectively, on request, with the
Union concerning its decision to cancel its contract
with D & S Leasing, Inc and concerning the ef-
fects of the transfer of automotive consolidation
work at its Cleveland, Ohio terminal from D & S
Leasing, Inc to Central Cartage Company
(c) Furnish the Union with any and all informa-
tion requested by it that is necessary for and rele-
vant to its performance as the exclusive bargaining
representative of the unit employees
(d) Offer the employees named below, who were
refused hire by Central Cartage Company as a
result of its unlawful action, immediate and full re-
instatement to their former jobs or, if such jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or others rights
and pnvileges, previously enjoyed, dismissing, if
necessary, any employee hired to replace them, and
make them whole for any loss of earnings and
other benefits suffered as a result of the discrimina-
tion against them in the manner set forth in the
remedy section of the judge's decision
John Hennessey Donald Gruszezynski
Robert Murphy Roger Yeaman
Robert Jolluck

Kenneth Meyers
Greg Henry Nick Kaunch
Clark Kinney James Kelly
Barry Peters Kenneth Glenn
Archer Bailey III Kenneth Ford
Daniel Kenyon James Fargo
Joseph Starlovic Larry Gardner
Robert Poczontek Tom Christine
Ron Nougsel

James Brewster
Robert Grabmski Douglas Turchank
Ben Pepera Joe Prince
Richard Miller Jack Mullroy
Mick Ochal

Doug Jedlmsky
Bob Banta Bob Elsworth
Charles Craig
(e) Rescind any departures from terms and con-
ditions of employment that existed immediately
before the Respondent's transfer of work from
Central Transport and D & S Leasing to Central
Cartage, retroactively restoring preexisting terms
and conditions of employment, including wage
rates and benefit plans, and make the employees
whole by remitting all wages and benefits that
would have been paid absent such unilateral
changes from June 2, 1986, until it negotiates in
good faith with the Union to agreement or to im-
passe, provided, however, that nothing in the order
shall authorize or require the withdrawal or elimi-
nation of any wage increase unlawfully granted to
employees without a request from the Union The
remission of wages and benefits shall be computed
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the manner prescribed in Ogle Protection Service,
183 NLRB 682 (1970), enfd 444 F 2d 502 (6th Cir
1971), plus interest as prescribed in New Horizons
for the Retarded 20
(f) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order
(g) Post at its Cleveland, Ohio facility copies of
the attached notice marked "Appendix "21 Copies
of the notice, on forms provided by the Regional
Director for Region 8, after bemg signed by the
Respondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material
(h) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
20283 NLRB 1173 (1987)
21 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the Umted States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice
WE WILL NOT refuse to bargain collectively in
good faith with Teamsters Local Union No 964,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
AFL-CIO by refusing to recognize and bargain
with Teamsters Local 964 in the appropriate unit
and by refusing to bargain with Teamsters Local
964 concerning our decision to cancel our contract
with D & S Leasing, Inc and concerning the ef-
fects of transfer of automotive consolidation work
at our Cleveland, Ohio terminal from D & S Leas-
ing, Inc to Central Cartage Company
WE WILL NOT alter the wages, hours, or other
conditions of employment of employees in the ap-
propriate bargaining unit, without bargaining with
the above-mentioned Union
WE WILL NOT refuse to supply Teamsters Local
964 requested information, which is necessary for
and relevant to its performance as the exclusive
bargaining agent of the bargaining unit employees
WE WILL NOT discourage membership in Team-
sters Local 964 by laying off and refusing to recall
employees pursuant to a plan to avoid the obliga-
tions of a subsisting collective-bargaining agree-
ment
WE WILL NOT coerce employees by informing
them they were not hired because they held posi-
tions with Teamsters Local 964
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act
WE WILL recogmze and, on request, bargain col-
lectively with the above-named Union as the exclu-
sive representative of our employees in the appro-
pnate unit described below and, if agreement is
reached, embody it in a signed written agreement
All docicmen and yardmen performing auto-
motive consolidation work at 5400 West 137th
Street, Cleveland, Ohio, excluding all clerical
employees, professional employees, guards and
supervisors as defined in the Act, and all other
employees
WE WILL bargain, on request, with Teamsters
Local 964 concerning our decision to cancel our
contract with D & S Leasing, Inc and concerning
the effects of the transfer of automotive consolida-
tion work at our Cleveland, Ohio termmal from D
& S Leasing, Inc to Central Cartage Company
WE WILL furnish the Union with any and all in-
formation requested by it and reasonably related to
its function as collective-bargaining representative
WE WILL offer the employees named below,
who were refused hire by Central Cartage Compa-
ny as a result of our unlawful action, immediate
and full remstatement to their former jobs or, if
such jobs no longer exist, to substantially equiva-
lent positions, without prejudice to their seniority
or other rights and privileges previously enjoyed,
dismissing, if necessary, any employee hired to re-
place them, and WE WILL make them whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against them, plus inter-
est
John Hennessey Donald Gruszezynski
Robert Murphy Roger Yeaman
Kenneth Meyers
Nick Kaunch
James Kelly
Kenneth Glenn
Kenneth Ford
James Fargo
Larry Gardner
Tom Chnstme
James Brewster
Douglas Turchank
Joe Pnnce
Jack Mullroy
Doug Jedlmsky
Bob Elsworth
Inc , Central Transport, Inc , and Central Cartage Com-
pany, as joint employers of described employees, had
violated Section 8(a)(1), (3), and (5) of the National
Labor Relations Act (the Act) Central Transport, Inc
(Respondent Transport) and Central Cartage Company
(Respondent Cartage) filed timely answer to complaint
denying they had engaged m the unfair labor practices
alleged in the complaint D & S Leasing, Inc (Respond-
ent D & S) chose not to file an answer to the com-
plaint 2
This case was heard in Cleveland, Ohio, during the
period 23 through 27 March 1987 All parties appeared
and were afforded full opportunity to participate Upon
the entire record, mcludmg briefs filed by the parties,
and from my observation of the demeanor of witnesses
who appeared to give testimony, I make the followmg
Robert JoHuck
Greg Henry
Clark Kinney
Barry Peters
Archer Bailey III
Daniel Kenyon
Joseph Starlovic
Robert Poczontek
Ron Nougsel
Robert Grabmski
Ben Pepera
Richard Miller
Mick Ochal
Bob Banta
Charles Craig
D & S LEASING 665
WE WILL rescind any departures from terms and
conditions of employment that existed immediately
before our transfer of work from Central Transport
and D & S Leasing to Central Cartage, and WE
WILL retroactively restore preexisting terms and
conditions of employment, including wages rates
and benefit plans, and WE WILL make employees
whole by remitting all wages and benefits that
would have been paid absent such unilateral
changes from June 2, 1986, until we negotiate in
good faith with the Union to agreement or impasse,
provided, however, that we will not withdraw or
eliminate any wage increase unlawfully granted to
employees, without a request from the Union
CENTRA, INC , CENTRAL TRANSPORT,
INC , AND CENTRAL CARTAGE COM-
PANY, A SINGLE EMPLOYER
Paul C Lund, Esq , for the General Counsel
Timothy K Carroll, Esq and Robert L Duty, Esq
(Dykema, Gossett, Spencer, Goodnow & Trigg), of De-
troit, Michigan, for the Respondent
Sorrell Logothetis, Esq (Logothetis & Pence), of Dayton,
Ohio, for Local 964
Peter A Joy, Esq , of Cleveland, Ohio, for Local 407
DECISION
STATEMENT OF THE CASE
DONALD R HOLLEY, Administrative Law Judge
Upon an original charge filed in Case 8-CA-19212 on 3
June 1986, 1 by Archer Bailey III, an individual, and an
original charge filed in Case 8-CA-19282 on 27 June by
Teamsters Local Union No 964, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Local 964), the Re-
gional Director for Region 8 of the National Labor Rela-
tions Board issued order consolidating cases, consolidat-
ed complaint, and notice of consolidation hearing on 29
August which alleged, inter aim that D & S Leasing,
FINDINGS OF FACT
I JURISDICTION
Respondent D & S, a Michigan corporation, maintains
an office and place of business at 2218 Main Street, Mil-
ford, Michigan It is engaged in providing leased em-
ployees to trucking industry enterprises, and, in the
course and conduct of such business, it annually derives
gross revenues m excess of $50,000 from other enter-
prises located within the State of Ohio, which are en-
gaged m commerce other than on an indirect basis
Respondent Transport, a Michigan corporation with
its principal place of business located at 34200 Mound
Road, Sterling Heights, Michigan, is a common carrier in
the interstate and intrastate transportation of freight and
commodities It annually derives gross revenues in excess
of $500,000 from the transportation of freight and com-
modities from the State of Ohio directly to points locat-
ed outside the State of Ohio
Respondent Cartage, a Michigan corporation with its
principal office and place of business at 34200 Mound
Road, Sterling Heights, Michigan, maintains other places
of business in Ohio, Michigan, and Indiana, including a
terminal located at 5400 West 137th Street, Cleveland,
Ohio Annually, in the course and conduct of its busi-
ness, it provides services valued in excess of $50,000 to
other enterprises located within the State of Ohio, in-
cluding General Motors Corporation and the Ford
Motor Corporation, which are engaged in commerce on
other than an indirect basis
It is adnutted, and I find, that Respondent D & S, Re-
spondent Transport, and Respondent Cartage are em-
ployers engaged m commerce within the meaning of
Section 2(6) and (7) of the Act
II STATUS OF LABOR ORGANIZATIONS
It is admitted, and I find, that the following Local
Utuons, all affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, are labor organizations within the meaning of
Section 2(5) of the Act Teamsters Local Union No 20
2 A11 allegations of the complaint are deemed to be admitted by Re-
spondent D & SAll dates are 1986 unless otherwise indicated
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(Local 20), Teamsters Local Union No 118 (Local 118),
Teamsters Local Union No 449 (Local 449), Truck
Drivers Local Union No 407 (Local 407), and Local
964
III THE ALLEGED UNFAIR LABOR PRACTICES
Facts
Transport and Cartage are wholly owned subsidiaries
of Centra, Inc All three corporations are headquartered
at 34200 Mound Road, Sterling Heights, Michigan The
Maroun family, specifically T S Maroun, who is the pa-
triarch, and his four children, Matty and Matty's three
sisters, own all the stock of Centra The board of direc-
tors of each corporation is essentially the same, except
Robert Goodheart, the president of Transport, sits on
only that corporation's board of directors, and Larry
Thomas, the president of Cartage, sits on only that cor-
poration's board of directors Ron Leach, a nonfamily
member, is executive vice president of Transport and
Cartage The record further reveals that the foregoing
officers of all three corporations have offices in the head-
quarters building in Sterling Heights, Michigan 3
Transport is a common carrier which utilizes owner-
operators who pull company owned trailers It transports
freight and commodities to and from 48 States Cartage
operates terminals throughout the Umted States and is
engaged primarily in the pickup and delivery within city
zones of freight transported over the road by Transport
The Central terminal located at 5400 West 137th Street,
in Cleveland, Ohio (the Cleveland terminal and/or the
Bookpark facility), is the only terminal involved in this
proceeding
In mid-1982, Transport successfully bid some automo-
tive consolidation work with General Motors Corpora-
tion The consolidation work was to be performed in
Cleveland At the time, Cartage held a lease on property
in Cleveland where it maintained a terminal Its terminal
employees were represented by Local 407, and it was
signatory to the Teamsters National Master Freight
Agreement To enable it to perform the consolidation
work required by its contract with General Motors,
Transport subleased certain facilities at the Cleveland
terminal from Cartage 4 Although Cartage normally per-
formed dock work and trailer switching such as that
needed to accomplish the above-described consolidation
work for Transport, Central management decided to
obtain employees to accomplish the consolidation work
at the Cleveland terminal from D & S, a personnel leas-
ing company To that end, Charles Garavaglia, vice
president of labor relations for both Transport and Cart-
age, and Goodheart met with George Rogers, D & S
president and sole owner, to ascertain whether D & S
would lease Transport employees for a stated package
3 The complaint was amended during the hearing to allege that Centra,
Transport, and Cartage constitute a single employer Counsel for the
named Respondents concedes in Br 2 that they may be treated as a
single employer in this proceeding Accordingly, I find Centra, Trans-
port, and Cartage (Central) is a single employer within the meaning of
the Act
* Cartage leased the property from GLS Leasco, another wholly
owned subsidiary of Central
price 5 Garavaglia testified Rogers was informed the em-
ployees furnished at the Cleveland facility would have to
be represented by a union D & S agreed to furnish the
employees
In mid-1982, D & S became signatory to a so-called
white paper agreement with Teamsters Local 507 6 The
agreement covered the employees performing automo-
tive consolidation work for Transport at the Cleveland
terminal 7 Garavaglia testified he attended the first nego-
tiation session leading to consumation of the agreement
to explain the economic parameters acceptable to trans-
port, and to stress the need for provision for flexible
working hours for covered employees because the con-
solidation work was to be performed pursuant to Gener-
al Motors' "just in time" concept Thereafter, Rogers
and Local 507 reached agreement It contained wage
rates which were more favorable than those contained in
the National Master Freight Agreement, and it contained
provisions which afforded D & S flexibility in hours em-
ployees worked Garavagha testified a copy of the agree-
ment was given to him for review before it was signed
After it was executed, Rogers supplied Garavagha,
Goodheart, and Transport's payroll office with copies
Rogers testified he sought to staff the Cleveland facili-
ty by placing ads in Cleveland newspapers and leaving
D & S employment applications with Cartage's terminal
manager, Bruce Morrison While Rogers would inter-
view applicants if he was in Cleveland when they re-
sponded to the ads he had placed, he uniformly sent
them to Morrison after he talked to them Mornson's ap-
proval was necessary before they were hired In many, if
not most, instances Morrison interviewed applicants in
Rogers' absence, hired them, and caused them to com-
plete a D & S employment application which was then
sent to D & S's headquarters in Milford, Michigan, so
they could be put on the D & S payroll
Neither Transport nor D & S had any personnel at the
Cleveland terminal who could provide supervision of the
D & S employees performing the consolidation work at
the inception of the arrangement It is uncontradicted
that Cartage employees, including Morrison, Jim Ber-
glint (operations manager) and Dock Foremen Wayne
Gentry and John Smith, provided the rewured supervi-
sion of D & S employees Thus, the record reveals those
individuals gave D & S employees their work assign-
ments, scheduled their working hours, caused the em-
ployees to punch timecards, approved or disapproved re-
quests for time off or vacation, assigned employees to
train new hires, and documented on Central's computer
work deficiencies or rules violations Newly hired em-
D & S was to carry the employees on its payroll and It was to pay all
amounts required by Federal and state law as well as amounts which
were to be remitted in accordance with any union contract Transport
was to reimburse D & S for its expenditures and pay it a percentage
which fluctuated with the size of the payroll
° White paper agreements are agreements which contain terms or con-
ditions of employment which are different from those contained in the
National Master Freight Agreement which normally controls wages,
hours, and conditions of employment in Cartage operations which main-
tain contractual relations with the Teamsters
7 The consolidation work involved the handling of automotive parts on
a dock and switching or spotting of traders which were to be loaded or
unloaded
D & S LEASING 667
ployees were required to satisfactorily complete a 30-day
probationary period and the named individuals decided
whether they would be retained during the period
Rogers testified that he obtained a payroll runoff and a
computer listing of employee infractions from Cartage
each week The payroll information indicated the
number of hours worked by each employee and his
straight time and overtime eammgs Utilizing his D & S
computer, he processed the information provided by
Cartage to prepare checks for the Cleveland employees
which were delivered by Transport to the Cleveland ter-
minal where the Cartage dispatcher distributed them to
employees Similarly, he processed the listings of em-
ployee mfactions by causing repnmands to be issued to
employees along with their paychecks He testified he
rarely became involved in reprimands which did not in-
volve discharge or time off Instead, one of the three D
& S clerical employees employed in the Milford office
would prepare the reprimands and issue them over
Rogers' signature
Rogers stated that prior to November 1984 he visited
the Cleveland terminal approximately once every other
month During those visits, he would discuss grievances
with Morrison and employees If grievances progressed
beyond the local level (State or Joint Area Conference in
Chicago), Rogers represented D & S at the hearings In
this regard, he indicated he usually discussed the ap-
proach he should take with Garavaglia to ascertain,
among other things, whether he had a case, and he relied
on Morrison for documentation related to the grievances
Rogers had no authority to withdraw a grievance with-
out Momson's approval, and he had no authority to
agree to backpay or reinstatement of an employee with-
out Mornson's approval
At some point in late 1982, Local 964 replaced Local
507 as the bargaining representative for D & S employ-
ees working at the Cleveland facility Local 964 and D &
S executed a collective-bargaining agreement containing
the same provisions which were set forth in the D & 5-
Local 507 agreement
During the term of the above-described agreement
(1982-1985), Rogers and subsequently Lawrence Kou-
beck were the only persons who represented D & S
grievance matters which proceeded to the State or Joint
Area Conference (Chicago) level However, on the local
level Central personnel, principally Garavaglia and Mor-
rison, were frequently involved in administration of the
contract as well as the processing of grievances With re-
8 Respondents Transport and Cartage denied that Garavagha, Morri-
son, Jim Berquist, and dock foremen (John Smith, Wayne Gentry, Jim
Bowen, and Joe Imondi) were, at times material, supervisors and agents
of such Respondents within the meaning of the Act Significantly, no ar-
gument concerning such issues is set forth in Respondent's postheanng
brief Uncontradicted record evidence reveals Garavagha determined the
labor policy of Transport and Cartage until April 1986, that Morrison
and Berquist supervised the dock foremen and possessed numerous Indi-
c's of supervisory authority, including the authonty to lure and fire D &
S employees, and that dock foremen who were salaried at $500 to 8700
per week, in addition to exercising the authority over D & S employees
set forth above, fired employees, and refrained from calling in employees
who did not follow their orders It is clear, and I find, that the individ-
uals named above were, at all times material, supervisors and agents of
Respondents Transport and Cartage within the meaning of Sec 2(11) and
(13) of the Act
spect to administration of the contract's provisions, Cart-
age posted bids which permitted employees to select
their working hours in accordance with the seniority
provisions of the contract, called in extra employees it
needed from time to time in seniority order, maintained
in its computer contract violations of breaches of rules
committed by employees, provided employees safety and
related equipment required by the contract, 9 interpreted
the holiday provisions of the contract to determine when
holiday pay was due employees, and generally sought to
effectuate and comply with other contract provisions di-
rectly related to the wages, hours, and working condi-
tions of employees which were contained in the agree-
ment With respect to local level grievance proceedings,
the record reveals Garavagha and Morrison met with
Local 964 representatives on a number of occasions to
discuss the hours employees were expected to work, ter-
minations, and safety and related matters Garavaglia ad-
mitted during his testimony that he met with Local 964
officials to discuss safety complaints voiced by D 8c S
employees, and he testified he attended a number of local
meetings with Local 964 to discuss grievances which
were filed because Morrison had fired D & S employ-
ees 10 Employee Gruszezynslu, a Local 964 steward, tes-
tified, without contradiction, that Garavaglia also attend-
ed a meeting shortly after the D & S operation com-
menced at which he agreed the workday would be re-
duced from 20 to 10 hours It is undisputed that Morri-
son attended a number of the local grievance meetings
where grievances concerning discharges he had effectu-
ated were discussed With respect to safety and related
matters, the record reveals Garavaglia acknowledged
Cartage was responsible for assuring safety at the termi-
nal and it was obligated to supply protective items such
as gloves, ram gear, and gas masks to employees In ad-
dition to the fact that Garavaglia acknowledged he met
with Local 964 representatives to resolve complaints
concerning safety, the record clearly reveals that as late
as March 1986 Garavagha apologized by letter because
he had been unable to attend a scheduled 9 March meet-
mg at which safety and security grievances involving the
terminal were to be discussed In the letter under discus-
sion Garavaglia set forth measures taken by Central to
rectify the complaints 11
From mid-1982 until some unstated time in 1983, the
only D & S person who exercised any control over D &
S employees working at the Cleveland facility was
Rogers For about a year during the 1983-1984 period,
D & S utilized two leadmen and/or working foremen at
B Momson claimed during his testimony that he purchased ram gear
employees were contractually entitled to receive to simply stop employee
complaints The record reveals, however, that Garavaglia treated D & S
employee safety as a Central obligation
"1 Two specific incidents were described by Oswald Kelm, Local 964's
president and business agent, i e, Mornson's termination of a D & S em-
ployee for fighting on the premises, and his termination of another em-
ployee accused of theft Kelm's uncontested testimony reveals Morrison
and/or Garavaglia agreed to return both employees to work Significant-
ly, Rogers testified 18-20 D & S employees were fired during the time he
supphed employees to the Cleveland facility, but he could not recall a
single incident in which he or Koubeck had fired an employee
ii See G C Exhs 11 (agenda for 9 March meeting) and 17 (Garavag-
ha's letter to Kelm)
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the facility The first, Tommy Hughes, stayed about a
month The second, Joe Mechath, stayed about a year A
description of the position is set forth in an addendum to
the 1982-1985 contract between D & S and Local 964 It
is as follows 12
The Working Foreman shall be an employee who
has a separate classification which shall pay him 150
an hour above the dockman's classification His
classification and job description shall be that he
can do all work in the classification of dockman,
but additionally direct, assign, supervise, designate
and the number of employees on assignment
of a specific job
He cannot hire, or fire, or discipline employees
and will also be under the supervision of the cus-
tomer while working
The Working Foreman must be approved by the
customer as well as the employer
In November 1984, Rogers lured Lawrence Koubeck,
a resident of Cleveland, and made him vice president of
D & S Koubeck testified he spent approximately two-
thirds of his working time with D & S in Cleveland and
the remaining one-third recruiting dnvers for Central
out-of-town When he was in Cleveland, he recruited
employees for the Cleveland facility, took their applica-
tions, interviewed them, and sent them to Morrison if he
felt they were qualified Morrison decided whether they
should be hired Additionally, Koubeck handled griev-
ance matters at the facility by issuing reprimand letters
after receiving notice of employee infractions from Cart-
age, and he took disciplinary action against employees
when it was warranted He represented D & S at local,
state, and regional grievance hearings Cartage personnel
continued from November 1984 until February 1986 to
provide day-to-day supervision of D & S employees, and
it continued to schedule their working hours, handle
their requests for time off, and call in extra employees
from the seniority list as needed
In 1985, D & S and Teamsters Locals 964, 20, 118, and
449 executed a new collective-bargaining agreement
which was to be effective from 1 June 1985 through 31
March 1988 13 Steven Bridge, an employee of a multiem-
ployer association named Motor Carrier Labor Advisory
Council (MCLAC), and Rogers represented D & S
the negotiations Andrew Suckart and Chuck Gauguin
represented Local 964 Rogers testified no Transport of-
ficial participated in the negotiations, but he got the
wage parameters from Central The umon negotiators
sought during the negotiations to place a work-preserva-
tion clause in the contract to assure that D & S employ-
ees would follow their work Rogers refused to agree to
such a clause, indicating his customer (Transport) would
not tolerate it The executed contract contained so-called
12 See G C nth 3
13 Unlike the 1982-1985 agreement, which was between only D & S
and Local 507 (subsequently Local 964), the 1985-1988 agreement cov-
ered D & S employees working within the Jurisdiction of Locals 20,118,
and 449 The record reveals the employees covered by the agreement
were engaged III dock/yardman or road operations work at, Inter aim, a
boiler firm in Buffalo, New York, an AMC-Jeep consolidation operation
in Toledo, Ohio, and at the Central terminal in Cleveland
house account language that applied from one D & S lo-
cation to another Copies of the contract were given to
Momson and Central's payroll department
By letter dated 20 January 1986, Cartage President
Thomas advised D & S, inter aim, that while Cartage
would schedule the terminal, D & S was responsible to
call the people necessary to staff the schedules, that
Rogers and Koubeck had failed to meet that responsibil-
ity, and that continued failure by D & S to supply dock-
men at the Cleveland terminal would result in termina-
tion of D & S as the supplier of docicmen to the Cleve-
land terminal 14 On 23 January 1986, Koubeck issued a
memo to the D & S employees working at the Cleveland
terminal which informed them, inter aim that employees
calling out of service were required to call his home tele-
phone number 1 hour prior to starting time, that employ-
ees calling back into service were to telephone his
number 2 hours prior to his starting time, that D & S
was to be directly responsible for setting up replacements
and/or additional personnel required by Central Trans-
port, and that Central Transport would call employees
directly between midmght and 6 a m in case of emergen-
cy or for replacement for absenteeism 15
Garavaglia testified, without contradiction, that m
February or March 1986, he met with Maroun, Good-
heart, Thomas, Richard Silverwood, and Hank Bi-
chard" and it was decided that Cartage could hire new
employees to perform the Cleveland dock work cheaper
than D & S was performing it Garavaglia asserted he
advised against taking such action indicating he thought
they would be obligated to take the D & S employees
and litigation would result
During the spring of 1986, Central and union repre-
sentatives met in Washington, D C, to discuss ongoing
litigation Sherman Brown, who was then acting on
behalf of the Teamsters National Freight Industry Nego-
tiating Committee, indicated the participants discussed
leasing companies durmg the meeting The International
tuuon representatives voiced their opinion that leasing
companies were used as a way to get around union
standards While Brown recalls Central representatives
attending the meeting indicated they would see what
they could do about leasing companies, he testified noth-
ing was agreed on during the meeting
At some unspecified time in early May 1986, Joe
Goryl, a Central official, telephoned Morrison and in-
structed him to prepare a list of names of D & S employ-
ees he felt should be hired by Cartage when it took over
the dock operation in Cleveland Morrison testified he
reflected on his personal knowledge of the work per-
formed by individual employees and gave Gory! the 17
typewritten names set forth on General Counsel's Exhibit
37 about mid-May Morrison denied that the union ac-
tivities of employees influenced his selection, and he
claimed he chose employees he considered to be "super
stars" without looking at their personnel files
14 See R Exh 4
R Exh 3
10 Garavagha testified he hired Silverwood to handle labor relations
for Cartage and Bichard to handle labor relations for Transport
D & S LEASING 669
By memo dated 8 May 1986, Joe Goryl sent a memo
to Thomas, Cartage's president, which states
SUBJECT proposed dock conversion in cleveland
It has been determined that we will employ ap-
proximately 15 D&S Cleveland dock employees to
the 45 man Central Cartage seniority list
A background check on all of the 15 candidates
should begin immediately provided each man meets
our minimum requirements The conversion should
take place over a 4 week period Week 1 will con-
sist of hiring 5 (D8cS) doclanen in an established se-
niority order Week 2 we will hire an addition 5
(D&S) dockmen and in week 3 we will lure the
final 5
During the 3 week period we will be actively
pursuing new applicants (anonymously) so that we
will have at least 30 good candidates by the start of
the 4th week At the start of week 4 we will begin
to phase in some of the new dockmen At the end
of week 4 we should be in a position to terminate
the use of D&S leasing entirely At this time we
will phase in the additional new dockmen and con-
tinue to use a number of prior D&S casuals tempo-
rarily until all of the new dockmen are in place and
trained
Although Morrison failed to fully describe his early
May conversation with Goryl, he indicated the plan out-
lined in the above-quoted memo was discussed during
the conversation Apparently, Morrison was also in-
structed by Goryl to commence an effort to obtain new
hires for the Cleveland dock operation by advertising in
Cleveland newspapers as he admittedly placed an ad for
dockworkers in the 15 May 1986 issue of a local newspa-
per named the Plain Dealer 17
When Oswald Kelm, the president of Local 964,
learned of the ad which had been placed in the Plain
Dealer, he telephoned Momson and asked him what was
going on Kelm testified, without contradiction, that
Morrison told hun he did not know anything about it
and had nothing to do with it Kelm thereafter sent Mor-
rison a registered letter dated 16 May, the body of which
states 's
YOUR AD WAS IN THE CLEVELAND PLAIN DEALER
TO HIRE DOCKMEN FOR CENTRAL CARTAGE CO TO
SUPPORT THE LOCAL OPERATION ALSO, YOU WOULD
BE PAYING UNION SCALE AND BENEFITS
LOCAL 964 NOW HAS A CONTRACT WITH D & S
LEASING TO COVER THE DOCK WORK TEAMSTERS
LOCAL NO 964 MEMBERS HAVE BEEN DOING THE
DOCK WORK FOR THE PAST FOUR YEARS ON THE
CENTRAL TRANSPORT DOCK WE WOULD LIKE TO
KNOW WHAT EFFECT THE HIRING OF DOCKMEN,
UNDER CENTRAL CARTAGE CO, TO SUPPORT THE
LOCAL OPERATION, WOULD HAVE ON OUR BARGAIN-
ING PEOPLE'S WORK
" See G C Exh 18
" See G C Exh 19
THE AD ALSO STATES, UNION SCALE AND BENE-
FITS WILL BE PAID WE ARE ASKING, "UNDER WHAT
CONTRACT WOULD THIS BE PAID?"
LOCAL NO 964 IS VERY DEEPLY CONCERNED AS
TO WHY CENTRAL CARTAGE CO WOULD HIRE
DOCKMEN TO SUPPORT A LOCAL OPERATION "WHAT
OPERATION?"
MAY WE RECEIVE YOUR REPLY AS SOON AS POSSI-
BLE THANK YOU
While the record clearly reveals Kelm's 16 May letter
was never answered in writing by D & S, Transport, or
Cartage, the testimony describing what occurred be-
tween 16 May and 2 June is conflicting Kelm testified
he attempted to telephone Thomas, Cartage's president,
and Sdverwood and neither would return his calls He
claims he spoke with Morrison several times at the termi-
nal, and Morrison continued to tell him he knew noth-
ing Kelm's recollection was that Silverwood finally re-
turned his call after the. 2 June changeover and, when
Kelm told him cancellation of the contract with D & S
had no bearing on the people working on that dock, Sil-
verwood responded that International Union Officials
Sherman Brown and Jack Yager had instructed Thomas
to get rid of leasing companies earlier in the year in
Washington, D C, and the people go with the Company
The Teamsters convention was held in Las Vegas,
Nevada, during the week of 19 May 1986 Silverwood
attended and discussed Central's intention to perform the
work at the Cleveland facility with Andy Suckart, busi-
ness representative of the Teamsters Ohio Conference
and Teamsters Joint Council 41, Steven Bridge, and
Robert Cassidy 19 During his discussions with the named
Sdverwood sought to ascertain whether they
were of the view that the 1985-1988 D & S contract
with various Teamsters Local Umons obligated Central
to hire all the D & S employees working in Cleveland
when it assumed control of that operation Each of the
named individuals agreed there was no "mechanism" in
the contract which would impose such a requirement
However, Suckart urged Silverwood to take all the D &
S employees Silverwood indicated Central intended, in-
stead, to pick and choose employees
Silverwood testified he had three or four telephone
conversations with Kelm in May before Cartage com-
menced to perform the dock work at the Cleveland facil-
ity on 2 June He recalled Kelm called him around the
second week in May to ask if they were doing away
with D & S in Cleveland He claims he said he had no
idea what was going on down there, he was not aware
anything was going to change According to Silver-
wood, Thomas filled hun in on the situation several days
later, and Kelm telephoned him again several days later
He recalled Kelm again asked if they were going to do
away with D & S Leasing, and he claims he replied they
had been informed by the International they were to do
away with lease companies and they would be hiring
" Suckart and Bridge participated in negotiations leading to the 1985-
1988 collective-bargaining agreement between D & S and Teamsters
Locals 964, 20, 118, and 449 Cassidy and Bridge are the union and man-
agement chairman, respectively, of the Ohio Grievance Committee
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Cartage employees to perform the work in Cleveland
Silverwood claims Kelm then asked if they were going
to be hiring Local 964 employees, and testified his reply
was that Cartage had a contract with Local 407 and
none with Local 964 for local cartage Silverwood
claimed he said they would deal with either local but
they did not want a jurisdictional dispute He recalled
Kelm again asked if they were going to hire D & S
people, and that he replied Cartage would hire their
own, but they would make sure applications were taken
from and interviews were extended to all D & S employ-
ees that wanted to be interviewed Silverwood testified
Kelm telephoned him two more times within a week or
so of 2 June In both conversations he asserts Kelm
asked if he was going to hire the D & S people, whether
they would be hired in seniority order, and whether
Local 964 would be permitted to represent them He
claims he responded by saying they were not going to
hire all the D & S people, but would provide anyone
who applied with applications and interviews Addition-
ally, he claims he told Kelm they would live with who-
ever shook out of the deal, that they did not want to get
involved in a jurisdictional dispute Finally, Silverwood
testified about a week prior to 2 June, Larry Thomas
told him Kelm was at the Cleveland dock telling every-
one he had been assured everybody would be hired in
seniority order, and that caused him to place a call to
Kelm's office He testified Kelm was not in and he told
Compo, a union official who was m, that he had not at
any time told Kelm they were going to hire the people
in semonty order Silverwood testified Compo informed
him Kelm would be in the office at 1 p m and he should
call back then He claims he did call back and conversed
further with Compo, telling him again he never told
Kelm they were going to hire D & S employees in se-
niority order, and telling him they would mterview all D
& S employees who filed applications During the second
conversation, Silverwood claims he heard Compo say
"Ozzie, make sure you know what you are talking about
before you relay it to the people because we don't want
to give them bad information" He indicated, however,
that he did not actually know whether Kelm was m the
office or on the phone at the time Compo was not called
by the General Counsel or Charging Party to refute Sil-
verwood's versions of the conversations under discus-
sion 25
As noted above, Morrison recommended in mid-May
that 17 persons employed by D & S be hired when Cart-
age commenced to operate the Cleveland facility When
Cleveland Terminal Operations Manager Berquist re-
turned from vacation m the latter part of May, he rec-
25 While I do not credit Kelm's claim that Silverwood refused to dis-
cuss Cartage's intentions with respect to the Cleveland operation with
him pnor to 2 June, I do not credit Silvenvood's claim that he was com-
pletely open with Kelm and Informed /um prior to the time Thomas told
Silverwood that Kelm was telling D & S employees they would all be
lured by Cartage in semonty order, that Cartage was not going to hire all
the D & S employees The Coryl memo indicated Cartage was to pro-
ceed "anonymously" with respect to the lure of persons other than D &
S employees and the record clearly reveals Morrison withheld details
concermng Cartage's intentions from Kelm I am not convinced Silver-
wood was as open as he claims and gamed the impression when he was
giving testimony that he was embellishing to a considerable extent
ommended that five additional D & S employees be
hired by Cartage, and individuals in Central's headquar-
ters decided an additional four employees should be
hired General Counsel's Exhibit 41 contains a listing of
the 26 D & S employees hired by Cartage on or about 2
June 21 At or about the same time, Cartage hired 32 per-
sons who had not formerly been employed by D & S 22
All employees hired by Cartage were treated as new
hires, and were paid and accorded the benefits set forth
in the National Master Freight Agreement 23
The record reveals Koubeck appeared at the Central
terminal on 31 May to inform D & S employees they
had no job after that date unless they were called by
Central Employee Donald Gruszezynslu, former union
steward, testified Koubeck's announcement caused him
to ask Dock Foreman Jim Bowen what was going on
He testified Bowen told him they were trymg to get rid
of Kenny Glenn, Archer Bailey, Kenneth Meyers, Gra-
bmslu, and Peters 24 Similarly, employee Kenneth
Meyers, then a union committeeman, testified that after
Koubeck notified him by phone that D & S was no
longer on the dock he called Dock Foreman Wayne
Gentry and asked if he was going to be called back He
testified Gentry told him he was a committeeman and
Morrison did not like union people so his chances were
slim Meyers claims Gentry told him the next day he was
not coming back because he was a union committeeman
Additionally, he testified a second dock foreman, Joe
Imondi, told him while he was cleaning out his locker,
that he and Bailey were not coming back because they
were with the Union
Dock Foremen Bowen, Gentry, and Imondi uniformly
testified they played no part in the selection of D & S
employees who were to be hired by Central Each =h-
eated he had no knowledge of who was to be hired until
a meeting was held at the Cleveland Airport Sheraton on
1 June Bowen categorically denied that he had any con-
versation with Gruszezynslu which concerned the selec-
tion process He testified he was asked by employees
Grabmslu and Ochsl why they had not been hired and
claims he told both of them that he had no idea, they
they should ask Bruce Morrison 25 Gentry testified he
Si GC Exit 40 is a hat of D & S employees who completed applica-
tions and were interviewed but were not lured The record reveals all D
& S employees, including those who were hired, were granted two per-
functory interviews of short duration It is clear Cartage officials had de-
cided which D & S employees were to be hired before interviews were
conducted
22 See G C Exh 39
23 See C P Exh 2, art 51 (Vacation-1 week after 1 year), art 54
(Health and Welfare Benefits—coverage after 30-day probationary period
with employer contribution of $66 70 per week per regular employee),
and art 60 (Wages—b percent of classification rate for first year of em-
ployment, 80 percent second year, and 90 percent third year) Applica-
tion of the National Master Freight Agreement caused former D & S em-
ployees wages to drop about $2 per hour, altered their vacation entitle-
ment, and deprived them of health and welfare coverage for 30 days
24 Bailey was the union steward at the Cleveland terminal at the time
25 GruszezynsIn was the more impressive witness and I credit him In
doing so, I have taken Into account a breakfast conversation Sherman
Brown, a business agent for Teamsters Joint Council 41 and the Ohio
Conference, had with Silverwood the first week of June During that
conversation, Brown claims Silverwood told him they were not going to
take the D & S employees by seniority because they wanted to get rid of
Continued
,-
D & S LEASING 671
spoke with Meyers on 31 May and again on 1 June after
the Sheraton meeting He claims he merely told the em-
ployees on 31 May that he had no idea whether he
would be hired With respect to the 1 June conversation,
he indicated he told Meyers he could not understand
why he had not been hired as he had always been satis-
fied with his work, that the only thing he could think of
was his association with the Union 26 Imondi testified he
was made a dock foreman when D & S left He admitted
conversmg with Meyers concerning the reasons several
employees may not have been hired He admitted he told
Meyers he felt he had run the city operations well and
that maybe he was not called back because he was with
the Union Imondi testified he could not recall whether
he and Meyers discussed the possible reason Bailey was
not hired 27
On 2 June, former employees of D & S not hired by
Central started to file gnevances protesting Central's fail-
ure to hire them On 3 June, Local 964 Union Steward
Archer Bailey filed the first charge m this case On 4
June, Local 964 sent Central a letter requesting a re-
sponse to its 16 May letter, and on 27 June, Local 964
filed a grievance which alleged that D & S, Transport,
and Central, as jomt employers, terminated 33 named
employees on 31 May 1986 "as part and parcel of a
scheme to avoid its wage and benefit obligations estab-
lished pursuant to a collective bargaining agreement "28
On the same date, it filed the charge in Case 8-CA-
19282
Since 2 June 1986, Respondent Central has recognized
Local 407 as the bargaining representative of the em-
ployees performing dock and trailer switching work at
the Cleveland terminal 29 Former D & S employees
working at the facility work on withdrawal cards and
pay Local 407 a fee for representing them Newly hired
employees who were not members of Local 964, pay
Local 407 the normal dues and initiation fees On 20
August 1986, Local 407 filed a gnevance on behalf of
the former D & S employees then working at the Cleve-
land facility protesting the alteration in their wages, ben-
efits, and semonty when they were employed by Central
Cartage as new employees All grievances filed by em-
ployees, Local 964, and Local 407 are being held in
abeyance pending the outcome of the instant litigation
four to five of them that had high semonty Brown claims Silvenvood
asked him if there was anyway they could get nd of five guys and testi-
fied he told him he must be crazy Sdverwood denied making the de-
scnbed remarks, claiming he knew nothing about the Cleveland person-
nel at the time His version of the conversation was not convincing and I
credit Brown completely
28 Meyers exhibited slight confusion when descnbmg the two inci-
dents Gentry was more impressive and I credit his versions of the con-
versations
27 I gained the impression Imondi did not want to remember I credit
Meyers
28 See G C Exh 21
29 By letter dated 28 May, Local 407 indicated its understanding that
the D & S employees were to be lured by Cartage, it observed it was the
representative of Cartage employees in Cleveland, and it indicated it ex-
pected Cartage to comply with the National Master Freight Agreement
See R Central Exh 5
IV ANALYSIS AND CONCLUSIONS
A The Joint Employer Issue
A threshold issue in this case is whether D & S and
Central are joint employers Counsel recognized in their
bnefs that the test utilized by the Board is set forth in
NLRB v Browning-Ferris Industries, 691 F 2d 1117 (3d
Cir 1982), where the court describes it, stating (at 1124)
[W]here two or more employers exert significant
control over the same employees—where from the
evidence it can be shown that they share or co-de-
termine those matters governing essential terms and
conditions of employment—they constitute "joint
employers" within the meaning of the NLRA
Applying the described test to the facts in this case, I
conclude D & S and Central are clearly joint employers
While the employees performing consolidation work at
the Cleveland terminal were employees of D & S on
paper, the facts in this case reveal they had minimal con-
tact with the principals of D & S Starting with the
hiring process, the record clearly reveals that D & S' pri-
mary function was to place ads for employees in the
local newspapers Cartage had been shown to be the
Employer which actually hired many of the employees
in the complete absence of D & S personnel, and the
record reveals that even though D & S personnel, in the
form of Rogers or Koubeck, may have screened some
aphcants by interviewing them, Cartage uniformly had
and exercised final authority with respect to the hire of
employees at the Cleveland terminal
During his testimony, Rogers accurately described the
contact D & S experienced with employees who were
hired and thereafter filed no grievances when he admit-
ted that, other then sending them a paycheck each week,
D & S had no contact with the employees Indeed, the
record reveals that once employees were hired Central
alone assumed control of their working conditions and
their tenure of employment at the facility Thus, Central
scheduled their hours of work, its personnel accom-
plished the day-to-day supervision of the employees, it
decided whether they would be retained or released, it
determined whether they had violated the contract or
work rules, it determined when they were to be permit-
ted to take vacations or time off, and it determined the
pay they would receive by exercismg control over the
number of hours they worked and by documentation of
hours worked
In sum, it was Central rather than D & S which exer-
cised dominate control over the hire and termination of
employees, and it was Central which controlled almost
completely the day-to-day incidents of the consolidation
employees' employment relationship Standing alone, the
degree of control of the employees indicated would war-
rant a finding that D & S and Central were joint employ-
ers See American Air Filter Co, 258 NLRB 49 (1981),
United Dairy Farmers, 202 NLRB 23 (1973), and Syufir
Enterprises, 201 NLRB 738 (1975) Here, however, a
finding of joint employer relationship need not rest
solely on the dominance of Central with respect to the
day-to-day control it exerted over the employment rela-
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
■
tionship Perhaps the two most important terms or condi-
tions of employment from the employees' viewpoint
were wages and hours of employment Here it is undis-
puted that Central dictated what wage employees would
receive While Rogers, significantly with Garavaglia's as-
sistance, represented D & S in negotiations with the
Union, Transport controlled completely the economic
package contained in both collective-bargaining agree-
ments which D & S executed Similarly, it, through Gar-
avaglia's participation in the very first negotiation ses-
sion, caused D & S to obtain a variance in the normal
working hours of Teamsters-represented Cartage em-
ployees to enable it to perform in accordance with Gen-
eral Motors' "just in time" concept 3° In a very real
sense, Central, rather then D & S, determined the wages
the consolidation employees received and the number of
hours they worked
While the above-mentioned factors would appear to
compel a conclusion that D & S and Central were joint
employers during the entire period extending from mid-
1982 through 31 May 1986, Respondent contends the re-
lationship changed in time, and that by 31 May 1986
Central and D & S could not be deemed to be joint em-
ployers
Respondent first observes that during the 1983-1984
period D & S had a working foreman at the Cleveland
facility The lumts of the working foreman authorities
are set forth, supra It is clear the incumbents of the posi-
tion merely directed employees in the performance of
routine work tasks They were in turn supervised by
Cartage management and Cartage's dock supervisors I
conclude the record fails to reveal that they were super-
visors within the meaning of Section 2(11) of the Act
The second matter raised by Respondent is the hire by D
& S of Lawrence Koubeck In its bnef, Central claims
Koubeck was hired to supervise the Cleveland operation
and his job was "to hire, fire, and discipline emplolyees
and to adjust their grievances" (Br p 15) The difficulty
with the contention is simply the fact that the record •
fails to reveal that Koubeck's employment caused any
significant change in the hiring procedure, and the
record contains no support whatsoever for the conten-
tion that Koubeck supervised the consolidation employ-
ees in any way prior to the time that he commenced to
exercise very limited control over them in January 1986,
by requiring that subsequent to that time they report out
of service and into service through him In all other re-
spects, save situations involving Koubeck's obligation to
call in extra employees in accordance with Central's
needs, Central retained dominant control over the em-
ployees While the addition of Koubeck altered the
manner in which grievances were handled in that D & S
had someone at the Cleveland facility to discuss griev-
ances with Cartage personnel and D & S employees,
Central continued to initiate grievances by determining
when infractions had been committed, and it retained
final authority in disciplinary situations
In sum, I find Central dominated the employment rela-
tionship of the consolidation employees employed at the
30 As noted, supra, at some point Central reduced its 20-hour-workday
requirement to 10 hours
Cleveland terminal at all times relevant here According-
ly, I find, as alleged, that D & S and Central were joint
employers of such employees
B Appropriateness of Unit and Local 964's
Representative Status
Respondent Central's answer to complaint places ap-
propriateness of the unit and the Union's representative
status in issue Paragraphs 6 and 7 of the complaint
reveal the unit alleged to be appropriate is
All docicmen and yardmen employed by D & S at
5400 West 137th Street, Cleveland, Ohio, excluding
all clerical employees, professional employees,
guards and supervisors as defined in the Act, and all
other employees
Uncontested record evidence reveals the D & S em-
ployees covered by the 1982-1985 collective-bargaining
agreement with Locals 507 and 964 were those doclunen
and yardmen performing automotive consolidation work
at Respondent CentraPs Cleveland terminal The record
fails to reveal that the scope of the unit represented by
Local 964 was altered by the 1985-1988 agreement
Noting the record reveals that employees in the de-
scribed unit worked at that same location, performed es-
sentially the same job functions, received essentially the
same pay and benefits, and experienced common supervi-
sion, I find the unit to be appropriate
During the hearing, Respondent Central sought to dis-
pute Local 964's representative status by adducing evi-
dence to show that Local 507 did not represent a majon-
ty of the D & S employees when recognition was first
extended to that Union in 1982 Objection to that line of
mquiry was sustained I reaffirm the ruling noting that
the Board held in Cauthorn Trucking, 256 NLRB 720,
722 (1981) "It is well settled that Section 10(b) is appli-
cable to a refusal-to-bargain defense that the bargaining
relationship was unlawfully established" Here, the
record reveals D & S and Local 964 are signatory to a
subsisting collective-bargaining agreement, lawful on its
face, which defines the wages, hours, and conditions of
employment of employees in the Cleveland bargaining
unit Such facts raise an irrebuttable presumption that the
Union's majority status continues through the end of the
contract Rtsh Equipment Go, 173 NLRB 943 (1968),
enfd 407 F 2d 1098 (4th Cu 1969)
C The Bargaining Obligation
The next issue to be resolved is whether Central was
obligated to bargain with Local 964 in the circumstances
presented here The Board had uniformly held that joint
employer status gives rise to an obligation to bargain
with the representative of involved employees over the
decision and effects of displacing unit employees Sun
Maid Growers of California, 239 NLRB 346 (1978), and
American Air Filter Go, 258 NLRB 49 (1981) Respond-
ent Central contends no bargaining obligation exists in
the instant case because the Teamsters were fully aware
of the relationship between D & S and Central, and the
Union's failure to seek to make Central a party to the
D & S LEASING 673
1985-1988 D & S contract with the four local unions
named, supra, should cause me to conclude Local 964 is
estopped from seeking bargaining now Alaska Rough-
necks & Drillers Assn v NLRB, 555 F 2d 732 (9th Or
1977), is cited to support the contention Respondent
Central's reliance upon Alaska Roughnecks is misplaced
In that case, the court refused to enforce a Board order
against Mobile Oil Corporation, which the Board had
found to be a joint employer with a personnel leasing
company (Santa Fe), because during a proximate repre-
sentation proceeding Mobile had not been named as an
employer and had not participated in the representation
hearing Pointing to the Board's Rules and Regulations,
the court found Mobile had not been afforded its right of
due process
In the instant case, there have been no representation
proceedings and Alaska Roughnecks is clearly mapplica-
ble While the record does reveal that neither Local 964
nor the International Union demanded at any time that
Central become a party to the agreement applicable to
the D & S employees working at the Cleveland terminal,
it similarly fails to reveal the named labor organizations
were fully cognizant of the joint-employer relationship
which existed between D & S and Central Having exer-
cised significant control over the terms and conditions of
employment of employees performing consolidation
work at its Cleveland terminal, Respondent exposed itself
to the normal joint employer bargaining obligation 31
D The Waiver and Information Issues
The next issue to be resolved is whether Local 964
waived its right to bargain about the transition from D &
S to a Central employed work force
Respondent Central contends the record reveals Local
964 was supplied with information it sought in its letter
of 16 May well before 2 June and its failure to demand
bargaining concerning the transition until it had been ef-
fectuated reveals it waived its right to bargaining con-
cerning the matter In the alternative, Respondent Cen-
tral contends that by supplying the Union with mforma-
non prior to 2 June it satisfied any bargaining obligation
which existed The General Counsel and Charging Party
anticipated Central's waiver argument They contend in
their briefs that Central concealed its intention not to
retain the D & S employees working at the Cleveland
terminal and, instead, presented Local 964 with a fait ac-
comph at the time the transition was effectuated
It is well settled that where a proposed change in an
employer's business operation constitutes a mandatory
subject of bargaining the employer is obligated to give
the representative of its employees notice of the intended
change and an opportunity to bargain concerning it 32
" The General Counsel and Charging Party contend Central is bound
by the most recent collective-bargaining agreement executed by D & S I
find the contention to be without merit As noted, supra, the contract
covered employees working for D & S at other locations which were
within the Jurisdiction of other local unions No evidence was offered
with respect to employees who worked at other than Central's Cleveland
terminal In the circumstances described, I am unwilling to find that a
nonsignatory employer is bound by the agreement
32j find, mfra, that Centrars primary reason for effectuating the transi-
tion was its desire to reduce labor costs Under the rationale expressed in
Royal Typewriter Co, 209 NLRB 1006 (1974), enfd 533
F 2d 1030 (8th Cir 1976), Westinghouse Electric Corp,
150 NLRB 1574 (1965) Waiver of bargaining rights must
be expressed clearly and unmistakably Rockwell Interna-
tional Corp, 260 NLRB 1346 (1982), and N L Industries,
220 NLRB 41, 43 (1975), enfd 536 F 2d 786 (8th Cir
1976) As observed by the General Counsel in his brief
(at 18), the Board does not require a request for bargain-
ing by a union where such a request would be futile,"
or where the union was presented with a fait accompli 34
However, if a umon is given adequate notice of an em-
ployer's intended actions, but fails to request bargaining,
a waiver of its right to bargammg will be found US
Lingerie Corp, 170 NLRB 750 (1968)
Respondent Central urges me to resolve the issue
raised by its contention that Local 964 wavied its rights
to bargaining concerning the transition and/or the issue
raised by its contention that it satisfied its obligation to
give the Union notice of the intended transition by view-
ing in isolation the testimony given by Silverwood In
my view, the entire chronology of events during the
period extending from January through 31 May 1986
must be examined to resolve the issues raised
As noted, supra, the record clearly reveals Central was
not satisfied with the manner in which D & S was per-
forming in early 1986 In an attempt to remedy the situa-
tion, it, inter alia, informed D & S it would be required
to take action to assure that it had an adequate number
of employees at the Cleveland facility Shortly thereaf-
ter, Central management met and decided Cartage could
accomplish the work at the Cleveland terminal at lesser
cost than was being incurred by using D & S In early
May, the decision to replace D S with Cartage em-
ployees was implemented Coryl's 8 May memo to Cart-
age President Thomas outlined the plan At the outset,
that plan was to keep 15 of the best D & S employees
and hire 30 employees off the street anonymously 32
While Central, as a joint employer with D & S, had an
obligation to give Local 964 timely notice of its intention
to effectuate the transition it had decided on, and which
it had commenced to implement, it gave no such notice
Instead on 15 May, it placed an ad in a Cleveland news-
paper which indicated it was seeking to employ dock-
workers at union rate at the Cleveland facility When
Lcoal 964 Business Agent Kelm became aware of the ad,
he immediately sent Central and D & S a letter dated 16
May which, inter aim, inquired what effect the hiring of
Central Cartage employees to support the Cleveland op-
eration would have on Local 964 bargaining unit em-
ployees working at the facility, what contract employees
hired would be paid under, and what would constitute
the local operation referred to in the newspaper ad Ad-
ditionally, Kelm immediately visited the terminal and
asked Cartage Temunal Manager Morrison what was
Otis Elevator Ca, 269 NLRB 891 (1984), bargaining with Local 964 was
legally required
33 Richard Chemical Ca, 222 NLRB 5, 6 (1976)
34 National Car Rental Systems, 252 NLRB 159 (1970), J-B Enterprises,
237 NLRB 383 (1978)
35 Respondent Central's failure to explain why it desired the employee
complement described warrants an Inference that It wanted to avoid the
bargaining obligations imposed on a successor employer
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
going on Morrison, who had admittedly been briefed by
Coryl early in May with respect to the intended manner
in which Central was to effectuate the transition, and
had already selected 17 D & S employees who were to
be hired by Cartage, falsely told Kelm he knew nothing
and the matter was being handled by Thomas When
Kelm thereafter sought to contact Thomas to ascertain
the situation, Thomas refused to talk to him At the dis-
cnbed juncture, it is clear that Respondent had clearly
failed to give Local 964 timely notice of its intention to
effectuate a transition at the Cleveland terminal, and it is
clear that it was unlawfully withholding information
concerning the intended transition from Local 964
When Kelm was unable to ascertain what Cartage m-
tended to do at the Cleveland terminal by discussmg the
matter with Morrison and attempting to contact Thomas,
he contacted Silverwood 36 While Silverwood was ap-
parently unaware of the transition plans when Kelm ini-
tially contacted him, he was briefed on the matter by
Thomas within the next 2 or 3 days He admittedly failed
to contact Local 964 after he learned what was to occur
Instead, he waited for Kelm to contact him again When
Kelm called a few days later, Silverwood simply told
him Cartage was going to hire its own employees and all
D & S employees interested m employment would be
given applications and would receive interviews Signifi-
cantly, at that time, Momson had already decided he
would hire only 17 of the then-current D & S employ-
ees Additionally, at or near that time, Berquist had
added five D & S employees to the hire list Morrison
and Berquist conducted no interviews before they made
their decisions
On 20 May, Central management officials interviewed
D & S employees employed at the Clevelad terminal
who had filed applications While the record reveals
Centra officials decided at some undisclosed time that 4
D & S employees in addition to the 22 chosen by Morri-
son and Berquist should be hired, no Centra official was
called during the hearing to establish that the 20 May
interviews led to the selection of the 4 employees who
were hired by Cartage Similarly, on 28 May, Cartage
management interviewed all D & S employees who had
filed applications with Cartage The record reveals the
interviews were conducted in summary fashion, and it
fails to reveal that the interviews resulted in the hire of
D & S employees who had not previously been selected
It was in the above-described context that Silverwood
made inquiries of Cassidy, Bridge, and Suckart concern-
ing Central's contractual obligations immediately before
and during the Teamsters' convention in Las Vegas For
the first time, he indicated durmg those conversations
that Cartage intended to pick and choose the D & S em-
ployees it intended to hire, and it intended to consider
them new hires whose terms and conditions of employ-
ment would be determined by the National Master
Freight Agreement Significantly, the record fails to
reveal that any of the individuals named were authorized
at the time to represent Local 964, and the record fails to
Se I do not credit Silverwood's unsubstantiated testimony that Kelm
called him to check out a rumor that D & S was being replaced prior to
the call which was prompted by the 15 May newspaper ad
reveal that Suc'cart or Cassidy, Teamsters officials, m-
formed any Local 964 representative they had met with
Silverwood
Silverwood stayed at the Teamsters convention from
19 through 22 May He testified Kelm telephoned him
on Friday, 23 May, or Monday, 26 May to again inquire
whether Cartage was going to hire all the D & S em-
ployees and whether Local 964 would represent the
dockworkers who were to be hired by Cartage at the
Cleveland terminal Silverwood claims he told Kelm at
that time that Central did not mtend to hire all the D &
S employees, but all who filed applications would be
interviewed He claims he repeated that while Cartage
had a contract with Local 407 and none with Local 964,
it would deal with whichever local shook out of the
deal
Careful review of the record causes me to doubt the
reliability of Silverwood's claim that he told Kelm as
early as 23 or 26 May that Cartage was not going to hire
all the D & S employees With exception of the alleged
23 or 26 May conversation, Silverwood supplied no
dates for his alleged conversations with Kelm He simply
recalled his first "briefing" conversation with Kelm oc-
curred about a week after Kelm called him about the
newspaper ad, and the second "bnefmg" conversation
occurred 3 or 4 days later If his recollection of the time
interval between the first two conversations is accurate,
the 23 or 26 May date is clearly incorrect 37 A second
evidentiary matter which suggest Local 964 did not
become aware that Cartage was not going to take all the
D & S employees at the time indicated by Silverwood
that testimony and evidence which reveals the circum-
stances under which Local 407 prepared a letter protest-
ing the proposed transition on 28 May In his letter to
Silverwood dated 28 May, Theodus, the Local 964 busi-
ness agent, stated, mter aim "It is our further under-
standing that former employees of D & S will now
become employees of Central Cartage" Significantly,
Theodus testified he obtained the information which led
him to prepare the 28 May letter from Local 964 Busi-
ness Representative Kelm If so, it would appear Kelm
thought, as last as 28 May, that Cartage intended to hire
all the D & S employees 38 Finally, Silverwood's own
testimony casts doubt on his assertion that he told Kelm
as early as 26 May that Cartage was not going to hire all
of the D & S employees Thus, Silverwood testified that
he was prompted to place his fmal call to Local 964,
prior to final effectuation of the transition plans, when
Thomas, the Cartage president, contacted him to com-
plain that Kelm was at the facility assuring employees
that they would be hired by Cartage It would seem im-
probable that Kelm would have been engaging in such
conduct if Silverwood had previously informed him
Cartage did not intend to hire all of the D & S employ-
" The ad appeared on 15 May Kelm clid not call Silverwood about it
until at least 16 May Add a week to 16 May and you get 23 May An
addition of 3 or 4 days places the second briefing conversation as occur-
ring on 26 or 27 May
"Significantly, on 28 May Central officials interviewed all D & S em-
ployees who had filed applications for the second time The record clear-
ly reveals the interviews were conducted for "show" purposes only
D & S LEASING 675
ees The record causes me to conclude Local 964 did not
learn Cartage was not going to hire all the D & S em-
ployees until 28 May or thereafter
In sum, the record in this case reveals that Respondent
Central was motivated, primarily by economic consider-
ation, to decide at some point between February and
early May 1986 to terminate its relationship with D & S
and perform the dock work and switchmg at the Cleve-
land terminal with Cartage employees It thereafter de-
vised a plan which would assure that it could not be
claimed to be a successor employer, and it implemented
portions of the plan secretly until 15 May Thereafter, it
carefully concealed details concerning its planned transi-
tion from Local 964 by talung applications from all D &
S employees working at the facility and assuring Local
964 that all would be mterviewed, even though it had al-
ready decided which D & S employees were to be hired
by Cartage Simultaneously, although it had decided that
all employees hired by Cartage would be treated as new
hires under the terms of the National Master Freight
Agreement, it led Local 964 to believe that it would be
willing to deal with either Local 964 or 407, that repre-
sentation of the employees would be a jurisdictional
matter to be solved by the Umons Fmally, at a time
when its transition plan had been all but fully implement-
ed, it notified Local 964 it did not intend to take all the
D & S employees, and it notified Local 407 that it would
recognize it as the representative of the dockworkers and
switchers employed by Cartage at the Cleveland termi-
nal and it would abide by the National Master Freight
Agreement In agreement with counsel for the General
Counsel and Charging Party, I find Respondent Central
failed to give Local 964 adequate notice of its intention
to effectuate the transition at issue herem I further find
that Local 964 was never fully informed regarding the
manner in which the transition was to be effectuated,
and that it was faced with a fait accomph on 2 July 1986
Any Local 964 request for bargaining in the circum-
stances described would have been futile Accordingly, I
find, as alleged, that by failing to give Local 964 notice
of its decision to effectuate the transition, by failing to
afford it an opportunity to bargain about the effect of the
decision on D & S employees, and by unilaterally alter-
ing the wages, hours, and other terms and conditions of
employment of former D & S employees hired by Re-
spondent Cartage on or about 2 June 1986, Respondent
Central violated Section 8(a)(1) and (5) of the Act as al-
leged I further find that the information requested by
Local 964 in its letter dated 16 May was information
which was necessary for and relevant to the performance
of its function as the bargaining agent of the D & S em-
ployees working at the Cleveland terminal Patently, Re-
spondent Central failed to supply Local 964 with infor-
mation which would reveal the effect that hiring dock-
workers would have on D & S employees and it failed to
answer Local 964's inquiry regarding which contract
would be followed By failmg to furnish the described
information, I find Respondent Central violated Section
8(a)(1) and (5) as alleged
E The Alleged Discruninatzon
Paragraph 9 of the complaint alleges that Respondent
Central laid off or discharged 33 named employees on 31
May 1986 because it believed they would support, assist,
or favor Local 964, because Respondent Central believed
they would engage in other union and/or protected ac-
tivities
As noted, supra, the General Counsel adduced limited
evidence in an attempt to show that employees Archer
Bailey, the union steward, and Kenneth Meyers, a union
committeeman, were not hired by Respondent Central
because they held union positions As noted, supra, that
evidence consisted of testimony given by employee
Gruszezynslu and Meyers, which was to the effect that
Dock Foremen Bowen, Gentry, and Imondi told the
named employees Meyers and Bailey were not hired by
Respondent Central because they held positions with the
Union While I find, as alleged, that Respondent Central
violated Section 8(a)(1) through the statements made by
Gentry and Imondi, I, in agreement with Respondent
Central, agree the evidence offered fails to prove that
Meyers and Bailey were not hired by Respondent Cen-
tral because they held union positions, because the
record clearly reveals that Respondent Central's dock
foreman did not participate in the selection of the D & S
employees who were to be hired by Respondent Central
Recognizing the fact that the record contains no testi-
mony which reveals that the Central individuals who se-
lected the D & S employees who were to be hired by
Central possessed union animus, the General Counsel
contends Respondent Central's failure to hire the 33 em-
ployees named in the complaint should be found to con-
stitute a violation of Section 8(a)(3) because the record
reveals the employees were laid off and refused hire by
Cartage pursuant to a plan to avoid the obligations im-
posed by the 1985-1988 D & S collective-bargaining
agreement I agree
While Respondent Central claims it decided to effectu-
ate the transition because the International Union told it
to get rid of leasing companies, and, in any event, it was
dissatisfied with D & S' performance, the record causes
me to conclude its primary reason for deciding to effec-
tuate the transition was a desire to escape the obligation
imposed on it and D & S by the then subsisting collec-
Ove-bargaming agreement with, inter aim, Local 964
While the record does reveal that International union
officials urged Central to sever its connection with leas-
ing companies, I note the record fails to contain any evi-
dence which would reveal any Teamsters officials re-
quested that Central sever its relationship with D & S at
the Cleveland terminal To the contrary, the record re-
veals the employees working at that terminal were cov-
ered by a Teamsters contract which had expressly been
approved by Jackie Presser, chairman of the Teamsters
National Freight Industry Negotiating Committee 39 In
the circumstances, Respondent Central's claim that it
was motivated to effectuate the transition from D & S
Cartage by an International union request that it get rid
of leasing companies is not convmcmg
" See C P Exh I
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Although the record does reveal Central was not satis-
fied with the manner m which D & S was performing m
the January 1986, I attach significant weight to Garavag-
ha's testimony which reveals D & S' performance was
not discussed in February or March when Central offi-
cials met and decided the work at the Cleveland terminal
could be accomplished at lesser costs if Cartage did it
Noting the record clearly reveals the 2 June transition
permitted Central to pay many of the same employees $2
less per hour for doing the same work they had per-
formed as D & S employees a few days earlier and that
other economic advantages flowed from application of
the National Master Freight Agreement rather than the
D & S paper contract, it is clear, and I find, a major
reason for Respondent Central's decision to effectuate
the transition was its desire to avoid the obligations im-
posed on it as a joint employer by the 1985-1988 D & S
collective-bargaining agreement
In agreement with the General Counsel, I find the in-
stant situation to be analogous to the situation which ex-
isted in Borg-Warner Corp, 245 NLRB 513 (1979) Here,
as there, work was transferred from one company to an-
other to achieve lower labor costs As noted by Judge
Cohn in Borg-Warner, the U S Supreme Court held in
NLRB v Great Dane Traders," that "if it can reasonably
be concluded that the employer's discriminatory conduct
was 'inherently destructive' of important employee
rights, no proof of antiunion motivation is needed and
the Board can find an unfair labor practice even if an
employer introduces evidence that the conduct was moti-
vated by business considerations" Clearly, by, in effect,
causing D & S to terminate the employment of the 33
employees named in the complaint, and refusing to hire
them when their work was transferred from D & S to
Cartage pursuant to a plan to avoid the obligations im-
posed on it by the collective-bargaimng agreement appli-
cable to those employees, Respondent Central engaged
in conduct which was "inherently destructive" of impor-
tant employee rights Patently, such conduct discouraged
membership in Local 964 Thus, it violated Section
8(a)(1) and (3) of the Act Borg-Warner Corp, supra Los
Angeles Marine Hardware Co, 253 NLRB 720 (1978) 41
CONCLUSIONS OF LAW
1 D & S Leasing, Inc , Central Transport, Inc , and
Central Cartage Company are each employers engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act
2 Centra, Inc , Central Transport, Inc , and Central
Cartage Company constitute a single employer within
the meaning of the Act
3 Teamsters Local Unions 964, 20, 118, 449, and 407,
all affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, are labor organizations within the meaning of Sec-
tion 2(5) of the Act
40 388 U S 26 (1967)
"In my view, the facts in this case also support a finding of violation
of Sec 8(a)(3) under the rationale expressed in Mason City Dressed Beef,
231 NLRB 731, 747 (1977), and cases cited therm at fn 18
4 Respondent D & S and Respondent Central are
joint employers of the doclunen and yardmen who per-
formed automotive consolidation work at Respondent
Central's Cleveland, Ohio terminal at times material
here
5 All dockmen and yardmen performing automotive
consolidation work at 5400 West 137th Street, Cleveland,
Ohio, excluding all clerical employees, professional em-
ployees, guards and supervisors as defined in the Act,
and all other employees constitute an appropriate unit
for bargaining within the meaning of Section 9(a) of the
Act 42
6 At all times material here, Teamsters Local Union
964 has been the exclusive collective-bargaining agent of
the employees m the aforesaid unit for the purposes of
collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment, within the meaning of Section 9(a) of the
Act
7 By discnminatmg with respect to the hire or tenure
of employment of the employees named below to dis-
courage membership in Local 964, Respondent Central
has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act
8 By failing to give Local 964 notice of its decision to
transfer work from Respondent D & S to Respondent
Cartage, failing to afford it an opportunity to bargain
about the effects of the decision on D & S employees, by
unilaterally altenng the wages, hours, and other terms
and conditions of employment of former D & S employ-
ees hired by Respondent Cartage, and by failing to fur-
msh Local 964 with requested information regarding the
transition which was relevant to its function as the bar-
gaming representative of unit employees, Respondent
Central engaged m, and is engaging in, conduct which
violates Section 8(a)(5) and (1) of the Act
9 By informing employees they were not hired by Re-
spondent Cartage because they held positions with Local
964, Respondent engaged in, and is engaging in, conduct
which violates Section 8(a)(1) of the Act
10 The aforesaid unfair labor practices have a close,
intimate, and substantial effect on the free flow of com-
merce within the meaning of Section 2(6) and (7) of the
Act
THE REMEDY43
Having found that Respondent Central has engaged in
unfair labor practices within the meaning of Section
8(a)(5), (3), and (1) of the Act, I shall recommend that it
be required to cease and desist therefrom and that it take
certain affirmative action necessary to effectuate the poli-
cies of the Act, including on request, to bargain with the
Union as the exclusive bargaining representative of unit
employees
42 Description of unit revised to reflect cancellation of D & S Leasing
contract and assumption of automotive consolidation work by Central
Cartage Company
" As the General Counsel indicated at the outset of the hearing that
no monetary remedy was sought against Respondent D & S, and the
record reveals that D & S is now a defunct corporation, the remedy and
order will apply to Respondent Central only
D & S LEASING 677
I recommend that Respondent Central be ordered to
recognize and, on request, bargain with Teamsters Local
Union 964, as the exclusive collective-bargaining repre-
sentative of the dockmen and yardmen performing auto-
motive consolidation work at 5400 West 137th Street,
Cleveland, Ohio, excluding office clerical employees,
professional employees, guards and supervisors as de-
fined in the Act, and all other employees, and, if an
agreement is reached, embody such agreement in a
signed contract I further recommend that Respondent
Central be ordered to offer the 33 employees named in
the complaint immediate reinstatement to their former or
substantially eqinvalent positions of employment, without
prejudice to their seniority or other rights and privileges,
discharging, if necessary, employees hired to perform the
work such employees previously performed Fmally, I
recommend that Respondent Central be ordered to make
whole the 33 employees named in the complaint for any
loss of wages and benefits they have suffered as a result
of the discrimination practiced against them, with inter-
est, and to make whole those former D & S employees
hired by Respondent Central on or about 2 June 1986,
for any loss of wages and benefits, with mterest which
they experienced as a result of Respondent Central's urn-
lateral alteration of their wages, hours, and terms and
conditions of employment Backpay shall be calculated in
accordance with the formula set forth in F W Wool-
worth Co, 90 NLRB 289 (1950), with interest thereon to
be computed in the manner prescribed m New Honzons
for the Retarded, 283 NLRB 1173 (1987) 44
Finally, while the General Counsel requests that a visi-
tatonal clause be included in any order issued in this
case, I note the Board had declined to include such
clauses in cases which do not appear to pose complicated
compliance problems See, for example, Cherokee Heanng
Co, 280 NLRB 399 (1986) In my view, the Order in this
case will pose no significant compliance problems, and
provisions set forth in the Order which require the Re-
spondents to preserve and make available to the Board
described records necessary to analyze the amount of
backpay will suffice
[Recommended Order omitted from publication ]
44 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided m Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses