Edward J. Bell

National Labor Relations Board - Board Decisions

Mar 19, 1969

174 N.L.R.B. 1267 (N.L.R.B. 1969)

BELL STORAGE AND WAREHOUSE
Edward J. Bell t/a Edward J. Bell and /or Bell
Storage and Warehouse , and Edward R. Bell t/a
Edward R . Bell and /or Bell Storage and
Warehouse and Highway Truck Drivers and
Helpers Local 107, affiliated with International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America. Case
4-CA-4637
March 19, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On November 27, 1968, Trial Examiner Robert
Cohn issued his Decision in the above-entitled
proceeding, finding that Respondents had engaged in
and were engaging in certain unfair labor practices
and recommending that they cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondents filed exceptions to the Trial
Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reveiwed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and
the entire record in the case,' and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that Respondents, Edward J . Bell t/a
Edward J . Bell and / or Bell Storage and Warehouse,
and Edward R Bell t/a Edward R. Bell and/or Bell
Storage and Warehouse, Philadelphia, Pennsylvania,
their officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order.
'Respondents ' request for oral argument is hereby denied, as the record,
including the exceptions and briefs, adequately presents the issues and
positions of the parties
'We find in agreement with the Trial Examiner that in discharging the
employees on June 25 , Respondents were retaliating against the employees'
assertion of their rights under the collective - bargaining agreement , and, as
well, were attempting to avoid their (Respondents') obligations under the
contract
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
1267
ROBERT COHN, Trial Examiner Upon an original
charge filed July 2, 1968' (amended September 4), by
Highway Truck Drivers and Helpers Local 107, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (herein called the
Union), the General Counsel of the National Labor
Relations Board, through the Regional Director for
Region 4, on September 4, issued a complaint and notice
of hearing against Edward J. Bell, trading as Edward J.
Bell, and/ or Bell Storage and Warehouse, and Edward R.
Bell. trading as Edward R. Bell and/or Bell Storage and
Warehouse (herein collectively called the Company or
Employer or Respondents) The complaint alleges, in
essence, that the Respondents violated Section 8(a)(1), (3),
and (5) of the National Labor Relations Act, as amended
(herein the Act), when on or about June 25, the
Respondents ceased business operations, terminated the
employment of their employees, reopened their business
operations on or about July 1, and altered terms and
conditions of employment without notice to or discussions
with the Union as the collective-bargaining representative
of such employees.
In due course, and within the prescribed time limits of
the National Labor Relations Board Rules and
Regulations, Series 8, as amended, a written answer to the
complaint was filed by one Gregory J Dean, Esq , who
signed such answer as "Attorney for Respondent, Edward
R. Bell, t/a Bell Storage and Warehouse " No such
written answer was filed on behalf of Respondent Edward
J. Bell (who, the record discloses, is the father of Edward
R Bell) Indeed, the record further shows that the said
Edward J. Bell refused service of the amended charge, and
complaint and notice of hearing when such was attempted
upon him by registered mail on September Il.
Whereupon, personal service of the aforesaid papers was
effected upon the said Edward J Bell by an attorney from
the Regional Office of the Board on September 20
At the commencement of the hearing, the said Edward
J. Bell appeared in the back of the hearing room and
remained there throughout the course of the hearing
without participating therein except that during the
preliminaries thereof he authorized the said Gregory
Dean, counsel for Edward R Bell, to file on his behalf an
oral answer denying as to him the charges contained in
the complaint Without objection, the Trial Examiner
accepted such oral answer in lieu of a written answer on
behalf of the Respondent, Edward J. Bell
On the basis of the foregoing, I find that the said
Edward J Bell was duly served with process, and that at
all times material he was a party participant in these
proceedings
At the hearing, all parties were afforded full
opportunity to be heard, to introduce evidence, to examine
and cross-examine witnesses, to present oral argument and
to file briefs Oral argument was waived by all parties
Posthearing briefs were filed by counsel for the General
Counsel and by counsel for the Respondent, Edward R.
Bell, which have been carefully considered.
Upon the entire record in the case, and from my
observation of the witnesses and their demeanor while
testifying, I make the following
'All dates hereinafter refer to the calendar year 1968 unless otherwise
specified
174 NLRB No. 188
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS
1. JURISDICTION
Bell Storage and Warehouse is a business organization,
operated by Edward J. Bell and Edward R. Bell (the exact
nature of which will be discussed more fully anon ), which
was engaged at all times material herein in the hauling
and storage of household goods and appliances Its sole
place of business is located at the corner of Emerald and
York Streets, Philadelphia, Pennsylvania
The complaint alleges, and the answer of Edward R
Bell admits, that during the past year the business derived
revenues in excess of $50,000 from sales to firms over
each of whose business operations the Board would assert
jurisdiction on a standard other than that of indirect
inflow or indirect outflow S
Based upon the foregoing facts, I conclude and find
that at all times material herein that the business
organization involved herein is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer of Respondent
Edward R. Bell admits, and I find that the Union is a
labor organization within the meaning of Section 2(5) of
the Act
III. THE ALLEGED UNFAIR LABOR PRAACTICES
A. Background
The record herein reflects that in January 1941, the
Interstate Commerce Commission issued a certificate of
public convenience and necessity to Edward J Bell, doing
business as Bell Storage and Warehouse, Philadelphia,
Pennsylvania, to engage in the business of transporting
household goods and new furniture over irregular routes
between Philadelphia and points in surrounding States
The record further reflects that on March 9, 1955, the
Pennsylvania Public Utility Commission issued a
certificate of public convenience to Edward J Bell, trading
and doing business as Bell Storage and Warehouse
Edward R Bell, the son of Edward J Bell (hereinafter
sometimes referred to as the son and the father,
respectively) testified that he joined his father in the
business in January 1963, and at that time, the business
was a very small operation Thereafter the operation grew
to the extent that at an undetermined time prior to the
advent of the Union in January 1968, the father and son
jointly executed a lease on a warehouse on the corner of
Emerald and York Streets, Philadelphia, from which they
operated, primarily, the business of storage and
transportation of new household goods and appliances for
department stores and other such enterprises in the
Philadelphia area The son testified and maintained that
at all times material the father operated a separate
business of storage and hauling of used household goods
from a separate part of the warehouse proper However, it
appears from the son's own testimony that such business
'The record discloses that these business organizations include such
well-known firms as Hotpoint Appliances and John Wanamaker's
Department Store The record further shows that, at all times material,
Bell Storage and Warehouse operated pursuant to authority granted by the
Interstate Commerce Commission
was quite infinitesimal, and that the father maintained no
permanent payroll of regular employees but that at such
times as were necessary he would utilize the employees
hired and substantially directed by the son to move such
household goods Indeed, the son further testified that on
such occasions he, rather than the father, would pay the
employees for such services
Thus the record shows that at the time immediately
prior to the advent of the Union in January 1968, the
storing and hauling business of Bell Storage and
Warehouse was substantially directed by the son. He
hired, fired, disciplined, directed, and paid the
approximately eight employees (drivers and helpers) of the
firm He directed them in their work, adjusted their
grievances, and was looked upon by them as their
principal employer However, the business was operated at
all times under and pursuant to the certificates of public
convenience and necessity of the Federal and State
governments hereinabove referred to, and such certificates
were never amended nor certificates secured in the name
of the son Moreover, all trucks utilized by the firm in its
operations were, at all times, owned by the father, and the
son concededly made no direct payments to the father for
the use of this equipment
Although, as previously noted, the employees normally
looked primarily to the son for their directions, they
would also take such directions from the father in the
absence of the son This would occur more frequently
when they were calling in from the field and especially
when their concern related to a breakdown or malfunction
in the truck which they were driving'
The record is clear that the father was present at the
warehouse on substantially every working day although he
did not normally appear until late in the morning, after
the drivers had departed with their trucks on their daily
runs. The record is not altogether clear as to the exact
nature of the functions the father performed while at work
although there is testimony from witnesses for both the
General Counsel and the Respondent that he participated
in both warehouse and office functions, as well as
directing employees in their work in the absence of the
son
B The Advent of the Union and Subsequent Events
In December 1967, a majority of the Employer's drivers
and helpers designated the Union as their
collective-bargaining representative, and there were
discussions among the employees and Edward R Bell
concerning recognition The latter did not appear adverse
to the suggestion since, as he testified, he realized that
some of the employees, particularly the older ones, would
benefit from the Union's welfare and pension program.
On the other hand, he was also aware of "the amount of
money my business makes . [and] . how much
money I can pay" Accordingly, Edward R Bell
approached the employees with the proposition of his
signing a contract with the Union to enable them to
receive the fringe benefits which such a contract would
provide for them, while, at the same time, securing from
the employees an agreement or commitment that they
'The son testified that his father insisted that he (the father) take care of
mechanical difficulties and repairs relating to the trucks which he owned
'The foregoing findings refer to the material time period prior to June
25, as discussed more fully, infra
BELL STORAGE AND WAREHOUSE
would 'work for less than the full union scale provided in
the contract '
On January 26, Edward R. Bell met with Harry
Penrose, president and business agent of the Union, at the
latter's office in Philadelphia for the purpose of discussing
the Union's proposed contract After some discussion, Bell
signed the contract' having confidence - as he put it -
that the men would "work along these patterns which we
had agreed to " Bell simply signed the contract by writing
his own name in the appropriate places However, Penrose
requested that he write over the name the legend "Bell
Storage and Warehouse," which request Edward R. Bell
complied with.'
The first incident which arose under the
collective-bargaining agreement occurred in latter
February or early March. The record is not altogether
clear as to whether the incident arose as a result of the
failure of the Company to pay the union scale generally or
simply the failure to pay premium or overtime rates for
Saturday work.' In any event, one morning during this
period Bell fired four employees, including Rounds, citing
various reasons such as "cheating on time."' Union
Representative Penrose was called, and came to the
warehouse within a short time Penrose had a
conversation with Edward R Bell in which, according to
Penrose's testimony, Bell stated that he was going to close
the doors and go out of business Penrose advised that the
Union could not stop him from doing that but that as
long as he continued in business he was required to abide
by the contract, and that this meant maintenance of the
union scale as well as notification to the Union prior to
the discharge of the employees."
Following the discussion with Penrose, Bell agreed to
- and did - reemploy the fired employees, however,
'At that time Bell was paying the employees $2 70 per hour with no
premium paid for working on Saturday In addition , Bell allowed the
employees to keep the $5 charge which was assessed for moving an
appliance to some other location in the home , plus any moneys they
received if they sold a junked appliance The contract rate at that time was
$3 66 per hour for city drivers and $3 24 per hour for helpers during the
regular workweek of 5 days consisting of 8 hours each day, Monday
through Friday Time and a half was provided for hours in excess of
regular hours (G C Exh 4, p 86)
'Although Bell testified that he met with Penrose on January 26 and
signed the contract at that time , the record discloses a stipulation (TR 22)
that the agreement was signed on January 27, 1968, by John J Greeley on
behalf of the Union, and Edward R Bell
'Penrose testified that during the conversation Bell advised that the
business had been turned over to him by his father and that he was running
it Although Bell denied making such a statement , I am inclined to credit
Penrose who impressed me generally as an honest witness and, in any
event, such statement rather accurately reflected the state of affairs in the
enterprise at the time
'According to the testimony of Union Steward Rounds, there was a
meeting among Bell and the employees in February respecting wage rates
and that Bell proposed paying everyone $3 25 per hour and straight time
for Saturday work In effect, this amounted to paying all employees,
whether drivers or helpers, the helpers ' rate which was at that time $3 24
per hour, while the drivers' rate was $3 66 per hour
'There being no timeclock, the practice of the Company was that each
week each employee turned in on a slip of paper the number of hours he
worked that week , and the payroll was computed on this basis
"Bell first testified that there was no discussion regarding wage scale in
his conversation with Penrose However, later in his testimony he
acknowledged that "there was, probably ," stating that Penrose demanded
that Bell pay the employees the union scale
"Penrose testified that during his conversation with the son, the father
came in "ranting and raving" and made a statement of this nature -
"There goes your $30,000 home I told you to stay away from the
Union This is my goddamn business, not yours You had no right to sign
the contract " This was not denied by either of the Respondents, and I
1269
apparently the wage rate of $3.25 per hour for all
employees remained in effect until June 25 "
On several occasions during the spring of 1968, the
father expressed his antagonism toward the Union to
several of the employees Thus, Donald Forrest testified
that on one occasion in March, in the warehouse, the
father stated that he did not like the idea of a union being
there because he did not like "anybody running his
business " He also stated that there were a couple of
employees that he "wanted to get rid of (Fred Rounds and
Charles Lewitt)" because he felt that they had started the
Union. Finally, according to Forrest, the father stated
that he was going to take over the business on July 1 and
"everybody was going to be out anyway. He was going to
run it his own way, and that would be it." Charles Lewitt
testified that in May, the father told him that by July 1,
he was going to take over the business and get rid of
everyone, including his son.'2
On June 25, several of the employees approached Job
Steward Rounds while at work in the morning and
claimed that they were short in their paychecks Rounds
passed the complaints on to Edward R Bell who then
called a meeting in the warehouse of all employees He
told them that he could no longer pay unioh wages and
was going out of business, and requested that the
employees turn in the keys to their trucks and to please
leave the warehouse.' 3
The employees left the warehouse premises and called
Penrose, who arrived at the warehouse within a short
time. Penrose had a short conversation with Bell in which
the latter told him that he was going out of business.
Penrose expressed his sympathy, but advised Bell that he
was still going to have to pay to the employees their
vacation money. Bell told Penrose that he (Bell) had also
been discharged by his father, and Penrose offered to
attempt to secure for Bell a job as a dispatcher with a
glass company.
Penrose advised the employees who. had gathered
together outside the warehouse that they should remain
available for work in the event that the business reopened,
and the employees did come to the warehouse on each
working day thereafter for a period of approximately 2
weeks following June 25 and, through Rounds, the job
steward, advised Edward R. Bell that they were available
for work However, he did not respond to Rounds
The above-described meeting between Penrose and
Edward R. Bell was, as far as the record shows, the last
contact had between either of the Respondents and a
union representative. However, several of the employees
testified that they were contacted by the father almost
immediately, as individuals, to return to work. Thus,
Donald Forrest testified that shortly after Edward R. Bell
credit the testimony
"The foregoing findings are based on the undenied testimony of Forrest
and Lewitt The General Counsel argues in his brief that the threats
implicit in the foregoing statements of the father constitute a clear
violation of Sec 8(a)(l) of the Act Assuming the validity of such an
argument , the fact remains that such threats were not alleged as violative
of the Act in the complaint , nor did the General Counsel seek at the
hearing to amend the complaint , thereby placing the Respondents on
notice of his claim Accordingly, I find that the issue was not sufficiently
litigated to warrant making a finding of violation, however, I have taken
such testimony into consideration on the issue of motivation and good faith
involved in the 8 (aX3) and (5) allegations Southern Desk Company, 116
NLRB 1168, 1177, enfd 246 F 2d 53 (C A 4).
"The foregoing findings are based upon the testimony of Rounds, as
corroborated by Forrest and Bendig Bell acknowledged talking to the
employees and telling them that he could not possibly afford to meet the
union scale and if that is what they wanted , they "might as well go home "
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had invited the employees to leave the premises, as set
forth above, the father called Forrest and spoke with him
inside the doorway to the warehouse He told Forrest that
he had fired his son and that the latter was completely out
of the business, and asked Forrest if he wanted to work
for him (the father). Forrest replied in the negative '
Approximately 2 weeks later, Edward R Bell telephoned
Forrest and asked whether he would like to come back to
work as an owner-operator. The latter replied that he did
not think he would be interested, but met with Bell in the
latter's office at which time Bell explained that under the
owner-operator system, Forrest would buy the truck and
they would operate on a 60-40 basis (60 percent of the
gross proceeds would inure to the owner-operator and 40
percent would go to the Company) Forrest declined.
However, some of the other employees were similarly
contacted by the son and accepted the offer Thus,
Thomas Reilly commenced working for the Respondents
in August as an owner-operator, with his brother, Phillip
Reilly They are now being paid on the 60-40 basis (the
father now signs the checks rather than the son) and are
performing delivery services utilizing the same truck as
had been used prior to June 25, although they do not own
the truck 11 The Reillys continue to serve two of the larger
customers they served previously, to wit, John
Wanamaker's and Hotpoint.
Robert Tasker is another employee who was terminated
on June 25 and was subsequently employed on an
owner-operator basis. Tasker testified that around the first
of July, he received a telephone call from Edward R Bell
who asked if he would be interested in an owner-operator
deal Tasker said he would like to think it over and would
come in the following day The next day Tasker went to
the warehouse and met with Edward R Bell, Juliano, a
mechanic, and Jack Weimer, a truckdriver's helper
Shortly thereafter, the father joined the group. The son set
forth the proposition of a 60-40 arrangement, as
previously described, wherein Tasker would have an
option to buy * the truck or lease it, and would be
responsible for the payment of gasoline and insurance.
Tasker stated that he would like to think it over and talk
with his friend Weimer A few days later he accepted the
proposition and has worked with the Company since that
time.
As in the case of the Reilly brothers, Tasker and
Weimer operate the same trucks as were operated prior to
June 25 and they service substantially the same customers
such as Wanamaker's, Hotpoint, and B.Lit Tasker is paid
by check signed by the father, the trucks are still insured
under the name of the father, and the latter pays the
insurance.16
ANALYSIS AND CONCLUDING FINDINGS
As summarized in his brief, the Respondent, Edward R.
Bell, defends this case essentially upon the following
"According to the testimony of Forrest , this same offer was repeated a
short while later by the father to Forrest in the presence of employees,
Thomas Reilly and Eddie Novak However, Reilly was not interrogated on
this point and Novak was not called as a witness Nevertheless, Forrest
impressed me as a honest witness, his testimony is uncontradicted, and I
credit it
"Phillip Reilly testified that he did not want the truck until it was
mechanically fit and that he would own the truck when it was put "in
perfectly good shape "
"Tasker stated that this was a 6-month arrangment signed with the
father, and that he did not know whether or not, after that time , the trucks
would be in his name
theory That prior to January 26, he and his father
operated separate businesses at the same location, i.e , the
son operated a business of delivering new household
appliances and furniture from department stores and other
retail outlets to the ultimate consumers, whereas the
father operated a household moving business and was
engaged in the transportation of used furniture, that on
January 27, Edward R. Bell entered into a
collective-bargaining agreement with the Union with the
understanding that his employees would accept less than
the wage payments called for under such agreement, and
that this action of the son was in his own behalf and that
he did not act on behalf of his father, that on June 25, the
employees, in violation not only of the
collective-bargaining agreement but also in violation of
their agreement with Edward R. Bell, walked off their
jobs and forfeited their rights to employment; and, finally,
that on June 28, the Respondent, Edward R. Bell,
completely terminated his business and thereafter accepted
employment from Respondent, Edward J Bell, in a
salaried position working "in a general capacity "
The principal difficulty with this theory is that it does
not accord with the facts. Thus, the overwhelming
evidence in the record shows that, at all times material up
to June 25, the father actively and directly participated in
the operations of the appliance hauling business, that he
owned and controlled the basic capital equipment
connected therewith, and, to some extent, directed the
employees' work Contrariwise, the son concededly
assisted the father in conducting the "very small business
of household moving" by utilizing therein employees and
moving equipment which he (the son) "had complete
control of."" In short, whether this relationship be legally
categorized as a partnership wherein the father
contributed the operating rights and capital equipment
while the son contributed the executive direction and
administration, or as an agency where the father held out
his son to the business and commercial world as his agent
for carrying on the business, the result is the same. In
either case, under the Act, both are responsible for the
unfair labor practices committed with the knowledge of
the other.1i
The record reflects, in the judgment of the Trial
Examiner, a rather heroic effort made by the son to carry
on this marginal business in the face of the employees'
desire for union representation and better working
conditions. As the facts indicate, the son attempted to
accomodate these opposing forces by recognizing the
"The son testified that even with respect to the two employees (Welsh
and Eyre ) whom the father would hire on a temporary basis to do the
moving for him, the son would pay these men so that the father "wouldn't
have to "
"See Sec 2(2) of the Act See also Herman Brothers Pet Supp ly, Inc.
et at , 138 NLRB 1087, 1096, enfd 325 F 2d 68 (C A 6) The son testified
that his father first learned of the union contract on February 12, that the
father subsequently notified the Union's Health and Welfare Fund (to
which the Employer was obligated to make certain payments under the
contract) that the latter should remove the title "Bell Storage and
Warehouse" from the bills they sent the Company, and that the father
struck the name "Bell Storage and Warehouse " from the checks which the
son sent in payment of the obligations due the Fund However, the father
made no effort to otherwise rescind or cancel the contract , and the record
shows, as hereinabove set forth, that on at least two occasions ( in March
and June ), grievances arose under the agreement in which union
representatives participated and one of which (March) was adjusted
pursuant to union demands Clearly this adjustment came to the knowledge
of the father, and was - no doubt reluctantly - condoned Accordingly,
find that at all times since January 27 , the union contract has been in full
force and effect
BELL STORAGE AND WAREHOUSE 1271
Union while, at the same time, securing an agreement
with the employees to accept less than the union scale
When, within a period of a few months, this arrangment
reached its inevitable destiny of failure, the son abruptly
attempted to abrogate the collective-bargaining agreement
and dismiss the employees." Almost immediately the
father, not wishing to see "his business" go down the
drain, reasserted himself as its most active executive
officer, and sought ways and means of continuing the
operation. Thus he, either individually or through his son,
approached several of the employees, who apparently
appeared less militant on behalf of the Union than the
others,20 about continuing to work for the Company Also,
apparently in the belief that such employees would not
accept the hourly rate at which they were previously
employed, he altered the arrangement somewhat by
offering the owner-operator deal, which is well known in
the trucking industry. However, as the evidence shows,
any difference appears more illusory than real. Thus, the
actual arrangement between the father and the Reilly
brothers is vague and ambiguous and has not been
reduced to writing, the agreement between the father and
Tasker, although written, was not introduced into the
record, and the provisions thereof remain, as a result,
quite unclear In sum, it seems that the
employer-employee relationship which existed prior to
June 25 has not changed substantially with the
"re-opening" of the business except that it is now the
father rather than the son who gives the orders, and the
employees are, of course, without the protection of the
collective-bargaining agreement Accordingly, I find, in
substantial agreement with the General Counsel, that the
business of the Employer as now constituted is a mere
continuation or alter ego of the business which existed
prior to June 25, and that there was no effective
permanent ceasing of operations or "going out of
business" as that term is normally understood 21
Based upon all of the foregoing, and upon all of the
evidence in the record considered as a whole, I find and
conclude that by closing the business and terminating the
employees on June 25 in retaliation for their asserting
rights under the collective-bargaining agreement, the
Respondent violated Section 8(a)(1) and (3) of the Act, as
alleged,22 and I shall recommend an appropriate remedy."
I also find and conclude that by "reopening" the business
shortly after June 25 without recognizing the Union, and
by repudiating and refusing to honor the contract with the
Union, the Respondents violated Section 8(a)(5) of the
Act 24 Finally, I find and conclude that Respondents, on
and after June 25, additonally violated Section 8(a)(5) by
"Clearly, the evidence does not substantiate Edward R Bell's contention
that the employees "walked off their jobs and thus forfeited their rights to
employment " They left only after being told that the Respondent could
not meet their demands that the Respondent live up to the wage scale in
the contract , and that ( in the language of Edward R Bell) "if that is what
you want , then you might as well go home " That their action did not
constitute a voluntary quitting or forfeiture of rights is confirmed by their
conduct in seeking the assistance of the union representative in adjusting
their grievance , and in further remaining available for work for a period of
approximately 2 weeks following June 25
lilt is to be recalled that testimony of some employees indicated that the
father believed Rounds and Lewitt to be the principal union leaders
Edward R Bell testified , with respect to employee Tasker, "[he] could not
believe Bob went along with the men when they walked out "
"Under these circumstances , I do not consider whether a decision to go
out of business completely is a mandatory subject of bargaining under Sec
8(aX5) of the Act, or determine the impact on that question of the
Supreme Court' s decision in N L R B v Darlington Manufacturing Co
380 U S 263 See Ozark Trailers , Incorporated, 161 NLRB 561, 564
;dealing with unit employees individually concerning terms
and conditions of employment, and by unilaterally
changing the terms and conditions of employment of such
employees, and I will recommend an appropriate remedy.
TV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Employer as set forth in section
III, above, occurring in connection with the Employer's
interstate operations described in section I, above, have a
close, intimate, and substantial relationship to trade,
traffic, and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow thereof
THE REMEDY
Having found that the Respondents have engaged in
unfair labor practices, I shall recommend that they cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
Having found that the Respondents discriminated with
regard to the hire and tenure of employment of Charles
Lewitt, Robert Bendig, Fred Rounds, Edward Novak,
Donald Forrest, Anthony Malopolski, Robert Tasker,
Thomas Reilly, and Phillip Reilly, I shall recommend that
the Respondents offer each of them immediate and full
reinstatement to his former or substantially equivalent
position without prejudice to his seniority or other rights
and privileges, and make each of them whole for any loss
of pay suffered as a result of the discrimination against
him, by paying to him a sum of money equal to the
amount he would have earned from the date of the
discrimination to the date of offer of reinstatement, less
net earnings to be computed on a quarterly basis in the
manner established by the Board in F W Woolworth
Company, 90 NLRB 289; N L R.B v. Seven-up Bottling
Company of Miami, Inc, 344 U S. 344 with interest
thereon at the rate of 6 percent per annum to be
computed in the manner set forth in Isis Plumbing &
Heating Co, 138 NLRB 716 25
"See, e g , New York Trap Rock Corporation. 148 NLRB 374, Bunney
Bros Construction Company, 139 NLRB 1516
"In his brief, General Counsel argues that the events of June 25 "were
no more than the culmination of a well conceived and thought out plan by
the Respondent to discourage their employees from enforcing their rights
under the union contract , and to further discourage them from membership
in the Union " While there is some evidence in the record , as set forth
hereinabove , to the effect that the father made certain statements in the
spring that he intended to take over the business in July, I find that the
record taken as a whole does not preponderate in favor of the General
Counsel's contention I am convinced that the Respondents were agreeable
to operating the business as it did operate from March until June 25 so
long as the employees were willing to work at less than the union scale
There is no evidence that Rounds or any of the other employees were
provoked into making the complaint on that particular day, and, absent
the complaints , I remain convinced that the Respondents would not have
initiated the action In any event , whether the business after June 25 be
characterized as an alter ego or successor to the business that existed prior
to June 25, the remedy would be the same See, e g , Morgan Products,
Inc , successor and alter ego to Hargrett 's Machine Products , Inc , 172
NLRB No 15, In 19 (TXD)
"See, e g , Hyde's Super Market , 145 NLRB 1252, 1253
"As hereinabove set forth, the record shows that, upon resumption of
operations , the father "reemployed" some of the employees named above
as owner-operator it would appear from the record herein that such offers
would not constitute " full reinstatement" within the customary meaning of
that term in remedial orders However , it would seem that that issue
should more appropriately be left to the compliance stage of this
proceeding
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As the unfair labor practices committed by the
Respondents are of a character striking at the root of the
employees' rights safeguarded by the Act, it will be
recommended that Respondents cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following
CONCLUSIONS OF LAW
I The Respondents are engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act
3 At all times material herein, all truck drivers and
helpers employed at Respondents' Philadelphia,
Pennsylvania, terminal , excluding office clerical
employees, guards, and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act
4. At all times since on or about January 3, 1968, the
Union has been the exclusive collective- bargaining
representative of the employees in the aforesaid unit
within the meaning of Section 9(a) of the Act
5 Since on or about June 25, 1968, the Respondents
have engaged in and are engaging in unfair labor practices
within the meaning of Section 8(a)(5) of the Act, by
repudiating their contract with the Union, and refusing to
honor it
6 By bargaining directly and individually with the
employees in the above-described unit concerning rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and by unilaterally changing
existing wage rates and other terms and conditions of
employment, notwithstanding that the Union was and has
been the duly designated exclusive bargaining
representative of the employees in the above-described
unit, Respondents since on or about June 25, have
engaged in and are engaging in unfair labor practices
wihm the meaning of Section 8(a)(5) of the Act
7 On or about June 25, 1968, the Respondents, by
discriminating with respect to the hire and tenure of
employment of their employees named below, in order to
discourage membership in the above-named Union, have
violated Section 8(a)(3) of the Act
Charles Lewitt Donald Forrest
Robert Bendig Anthony Malopolski
Fred Rounds Robert Tasker
Edward Novak Thomas Reilly
Phillip Reilly
8 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
Respondents Edward R Bell and/or Edward J. Bell,
trading as Bell Storage and Warehouse, jointly and
severally, and their agents, successors, and assigns, shall
I Cease and desist from.
(a) Discouraging membership in Highway Truck
Drivers and Helpers Local 107, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization of their employees, by engaging in
discrimination in regard to hire or tenure of employment
of employees or any term or condition of employment
(b) Repudiating and refusing to honor the written
agreement executed with the Union on January 27, 1968,
or from engaging in any like or related conduct in
derogation of their statutory duty to bargain
(c) Unilaterally changing existing wage rates, hours of
employment, or other terms and conditions of
employment of its employees without bargaining with the
above-named Union as the duly designated exclusive
bargaining representative of the employees in the
above-described unit
(d) In any other manner interfering with, restraining, or
coercing their employees in the exercise of their right to
self-organization, to form labor organizations, to join or
assist the above-named Union or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any or all of such activities, except to the extent that
such rights may be affected by an agreement requiring
union membership as a condition of employment, as
authorized in Section 8(a)(3) of the National Labor
Relations Act, as amended, by the Labor-Management
Reporting and Disclosure Act of 1959
2. Take the following affirmative action which I find
will effectuate the policies of the Act.
(a) Offer Charles Lewitt, Robert Bendig , Fred Rounds,
Edward Novak, Donald Forrest, Anthony Malopolski,
Robert Tasker, Thomas Reilly, and Phillip Reilly
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to
their seniority and other rights and privileges, and make
them whole for any loss of pay they may have suffered by
reason of discrimination against them, in the manner set
forth in the section of this decision entitled "The
Remedy."
(b) Notify each of the above-named employees if
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon application
in accordance with the Selective Service Act and the
Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces.
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records,
timecards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
and compliance with the rights of reinstatement under the
terms of this Recommended Order.
(d) Recognize the Union as the exclusive bargaining
representative of their employees and honor the
collective-bargaining agreement executed with the Union
on January 27, 1968
(e) Post at its terminal in Philadelphia, Pennsylvania,
copies of the attached notice marked "Appendix "26
Copies of said notice, on forms provided by the Regional
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner " in the notice In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
BELL STORAGE AND WAREHOUSE 1273
Director for Region 4, shall be posted by the
Respondents, after being signed by each of them,
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted Reasonable steps shall be taken by
Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(f) Notify the Regional Director for Region 4, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.27
" in the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 4, in writing, within 10 days from the date of this Order, what
steps Respondents have taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that
WE WILL NOT discourage membership in Highway
Truck Drivers and Helpers Local 107, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other
labor organization, by discriminating in regard to the
hire or tenure of employment of employees, or any
term or condition of employment.
WE WILL NOT repudiate or refuse to honor the
collective-bargaining agreement executed with Highway
Truck Drivers and Helpers Local 107, affiliated with
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, on January
27, 1968
WE WILL NOT deal directly or individually with the
employees in the unit described below with respect to
wages, hours, or other terms and conditions of
employment, or unilaterally change wage rates, hours
of employment, or other terms or conditions of
employment without bargaining with the above-named
Union as the exclusive bargaining representative. The
bargaining unit is
All truck drivers and helpers employed at the
Philadelphia, Pennsylvania, terminal of Bell Storage
and Warehouse, excluding office clerical employees,
guards, and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with,
restrain, or coerce employees in the exercise of their
right to self-organization, to form labor organizations,
to join or assist the above-named Union, or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or to
refrain from any or all such activities, except to the
extent that such right may be affected by an agreement
requiring union membership as a condition of
employment, as authorized in Section 8(a)(3) of the
National Labor Relations Act, as amended, by the
Labor-Management Reporting and Disclosure Act of
1959
WE WILL offer Charles Lewitt, Robert Bendig, Fred
Rounds, Edward Novak, Donald Forrest, Anthony
Malopolski, Robert Tasker, Thomas Reilly, and Phillip
Reilly immediate and full reinstatement to their former
or substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and
make each of them whole for any losses they may have
suffered by reason of our discrimination against them
WE WILL notify each of the above-named employees
presently serving in the Armed Forces of the United
States of his right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
WE WILL recognize Highway Truck Drivers and
Helpers Local 107, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive bargaining
representative of our employees in the above-described
unit, and honor the collective-bargaining agreement
executed with the Union on January 27, 1968
Dated By
BELL WAREHOUSE AND
STORAGE
(Employer)
Edward J. Bell (Title)
Dated By
Edward R. Bell (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office, 1700 Bankers
Securities Building, Walnut & Juniper Streets,
Philadelphia, Pennsylvania 19107, Telephone
215-597-7601