Ferragon Corp.

National Labor Relations Board - Board Decisions

Aug 16, 1995

318 N.L.R.B. 359 (N.L.R.B. 1995)

359
318 NLRB No. 37
FERRAGON CORP.
1 The General Counsel has excepted to the judge’s failure to mod-
ify the case caption to delete reference to Case 8–CA–25238 which
was severed from the instant proceeding prior to hearing. We find
merit in this exception and amend the case caption accordingly.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The judge incorrectly spelled the name of the Respondent’s presi-
dent, Eduardo Gonzalez, throughout his decision. This error will be
corrected before printing in the bound volume.
3 The General Counsel excepts, inter alia, to the judge’s inadvert-
ent failure to include in his conclusions of law and recommended
Order his findings, to which the Respondent did not except, that the
Respondent violated Sec. 8(a)(1) on two occasions through Ferrous
Metal Transfer Manager David Koenig’s seeking to cause employees
to urge or convince their fellow employees to vote ‘‘no’’ at the elec-
tion. We find merit in this exception and amend the judge’s conclu-
sions of law accordingly. We shall also modify the recommended
Order to include this violation. Although the judge included in his
conclusions of law his findings that the Respondent violated Sec.
8(a)(3) by subcontracting unit work and laying off employees and
Sec. 8(a)(5) by failing to notify and bargain with the Union over its
decision to sublease its trucks, he inadvertently failed to include
these findings in his recommended Order. We shall further modify
the judge’s recommended Order to include these violations.
4 The General Counsel filed an opposition to the Respondent’s mo-
tion to reopen the record.
Ferragon Corporation, Ferrous Metal Processing,
Inc., Ferrous Metal Transfer, Inc., a Single In-
tegrated Enterprise and Truck Drivers Union
Local 407, International Brotherhood of Team-
sters, AFL–CIO.1 Case 8–CA–25034
August 16, 1995
DECISION AND ORDER
BY MEMBERS STEPHENS, COHEN, AND
TRUESDALE
On November 23, 1994, Administrative Law Judge
Donald R. Holley issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed cross-exceptions and an
answering brief. Thereafter, the Respondent filed a
reply brief to the General Counsel’s answering brief
and an answering brief to the General Counsel’s cross-
exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions as modified3 and set forth in full below.
1. The Respondent filed a motion to reopen the
record to introduce a service order dated August 13,
1992, from a wrecker service for the retrieval of steel
coils that had fallen off one of the Respondent’s trail-
ers.4 The Respondent contends that the bill proves that
steel coils had, in fact, fallen off its trucks in the past
and therefore substantiates the Respondent’s assertion
that safety concerns was one of the motivating factors
in its decision to close its trucking operation. The Re-
spondent also contends that the service order shows
that the judge erred by finding, in effect, that coils had
never fallen off the Respondent’s trailers and that the
Respondent’s safety concerns were pretextual. The Re-
spondent contends that if the judge had credited
Eduardo Gonzalez’ testimony that coils had fallen off
trailers in the past, he would have found that the Re-
spondent’s safety concerns were real and provided a
lawful reason for the Respondent’s subcontracting of
its delivery work. Finally, the Respondent contends
that its failure to introduce the service order at the
hearing should be excused by surprise because the Re-
spondent did not think that the judge would discredit
Gonzalez’ testimony. For the following reasons, we
deny the Respondent’s motion to reopen the record.
Section 102.48(d)(1) of the Board’s Rules and Regu-
lations states, inter alia, that:
A motion to reopen the record shall state briefly
the additional evidence sought to be adduced, why
it was not presented previously, and that, if ad-
duced and credited, it would require a different
result. Only newly discovered evidence, evidence
which has become available only since the close
of the hearing, or evidence which the Board be-
lieves should have been taken at the hearing will
be taken at any further hearing.
The Respondent here has not shown that the service
order was either ‘‘newly discovered’’ or ‘‘previously
unavailable.’’ Indeed, the Respondent had the docu-
ment in its possession for over a year prior to the hear-
ing in this case and chose not to introduce it into evi-
dence. Further, we do not find that the service order,
if it were introduced into evidence, would require a
different result from that reached by the judge. In this
regard, we note that the judge did not find that coils
had not fallen off trailers in the past. Rather, noting
that Gonzalez was concerned that coils ‘‘might fall off
of trailers and expose Respondent to liability,’’ the
judge observed that Union Representative Davis had
suggested to the Respondent that it could purchase
chains with enough strength to prevent the coils from
falling off the trailers. The judge also observed that the
Respondent had purchased insurance on the trucks per-
forming the delivery work. On these bases, the judge
found that the Respondent did not have ‘‘the safety
concerns it professed to have.’’ Thus, in finding that
the Respondent’s safety concerns were pretextual, the
judge did not find that coils had never fallen off the
360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The Respondent contends that the judge erred in finding that its
purchase of insurance from Ryder in effect insulated it from liability
for damages resulting from coils falling off the trailers. Contrary to
the Respondent’s assertion, we find that the judge set out two sepa-
rate reasons why he was unconvinced that the Respondent’s safety
concerns were valid, the first that the coils’ problem could be cor-
rected, and the second that the Respondent’s liability for damage oc-
curring in the course of its trucking operation was limited by its in-
surance agreement with Ryder. Accordingly, we find this exception
without merit.
6 All dates are in 1992 unless otherwise stated.
7 The General Counsel excepts to the judge’s inadvertent failure to
include in his recommended Order a provision corresponding to this
violation. We shall modify the judge’s recommended Order to in-
clude such a provision.
Member Stephens, considering the totality of the circumstances,
would not find that Gonzalez’ question violated Sec. 8(a)(1) of the
Act.
trailers, but emphasized that the problem could be cor-
rected and that the Respondent’s exposure to liability
was limited by its purchase of insurance from Ryder.5
In these circumstances, the submission of a service
order indicating that coils had actually fallen off trail-
ers in the past would not affect the judge’s analysis or
the result. For all these reasons, we deny the Respond-
ent’s motion to reopen the record.
2. The judge found, inter alia, that the Respondent
violated Section 8(a)(1) by soliciting employee griev-
ances and promising to remedy them. The Respondent
excepts on the ground that the changes it made did no
more than bring the Respondent’s operations into com-
pliance with certain regulations and that it is not a vio-
lation of the Act to remedy noncompliance with the
law. We find this exception without merit.
After Gonzalez, the Respondent’s president, received
the Union’s May 27, 1992 letter requesting recogni-
tion,6 he held two meetings with the drivers whom the
Union sought to represent. At the first meeting, held
on June 2, Gonzalez told the employees that he had
just received a letter from the Teamsters to the effect
that they were organizing the Respondent’s employees.
Gonzalez said that he thought this might be a hoax and
asked the drivers if they knew anything about it. The
judge found, and we agree, that Gonzalez’ questioning
of the drivers constituted an unlawful interrogation in
violation of Section 8(a)(1) of the Act.7
At the second meeting, held some 2 weeks later,
Gonzalez asked why the drivers had gone to the Union
instead of coming to him with their problems. Carl
Dargocey complained that drivers had to work extra
long hours and were required to pull heavy loads.
Gonzalez responded that he had already issued a letter
about heavy loads and that hauling heavy loads would
cease immediately. According to the credited testimony
of employee Tommie Smith, Gonzalez told Koenig,
the manager of the Ferrous Metal Transfer operation,
that the drivers would no longer haul heavy loads and
that drivers ‘‘won’t be working all those hours.’’
Although the judge found merit in the Respondent’s
contention that no violation should be found to the ex-
tent that it applied to the Respondent’s promise to stop
overloading trailers, he also found that the Respond-
ent’s lawful compliance theory failed to offer a jus-
tification ‘‘for Gonzalez’ promise to eliminate waiting
time at the mill which caused the drivers to work long
hours.’’ On this basis, the judge found that the Re-
spondent violated Section 8(a)(1) by soliciting em-
ployee grievances and promising to remedy them.
The Respondent excepts on the ground that Smith’s
testimony to the effect that the Respondent promised
that the employees would not be working all those
hours signified only that the Respondent was going to
reduce the number of working hours to comply with
the law. Accordingly, the Respondent contends that the
judge erred by equating the promise to reduce the
number of hours with reduction of waiting time at the
mill. We find this argument without merit. In this re-
gard, according to Smith’s uncontroverted testimony,
after the drivers made these complaints, the loads were
cut back ‘‘[a]nd as far as a lot of guys standing in the
mill so many hours, that was cut down. They started
sending other drivers in there.’’ Thus, it is clear that
when the employees complained of working ‘‘extra
hours’’ or ‘‘a lot of hours,’’ they were not complaining
about driving more hours than they were legally per-
mitted to drive, but were complaining about the time
that they spent at the mill waiting for loads. It is also
clear that the Respondent understood that these com-
plaints concerned waiting time at the mill, not actual
driving time, because the Respondent in fact acted on
these complaints by reducing waiting time at the mill.
Further, the Respondent introduced no evidence that it
reduced the drivers’ driving time or, indeed, evidence
that the drivers actually drove more hours than legally
permissible. In these circumstances, we agree with the
judge that the Respondent’s promise to reduce hours
was a response to the drivers’ expression of dis-
satisfaction with excessive standing time at the mill,
not an effort to bring the Respondent into compliance
with the law. Accordingly, we adopt his finding of this
violation.
3. The Respondent excepts to the judge’s finding
that it violated Section 8(a)(3) by subcontracting out
its Ferrous Metal Transfer (FMT) delivery work and
by laying off unit employees on the ground that the
General Counsel failed to establish a prima facie case
that the Respondent’s conduct was unlawful. The Re-
spondent also contends that, even assuming that the
General Counsel established such a prima facie case,
the judge erred in finding that the Respondent’s
avowed reasons for closing its delivery operation did
not satisfy its burden on rebuttal. We disagree.
361FERRAGON CORP.
8 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
9 Id. at 1089.
10 Id.
11 The General Counsel excepts to the judge’s failure to find that
the Respondent also violated Sec. 8(a)(3) by unlawfully discharging
employees Larry Hill, John Casto, and Eli Pounds. We find merit
in this exception. The judge apparently concluded that because Hill,
Casto, and Pounds were hired on August 24, a month after the elec-
tion, that they had not participated in union activity and were, there-
fore, not discriminatees entitled to reinstatement and backpay. We
disagree. It is well settled that when an employer unlawfully closes
its operation and discharges or lays off unit employees, the Board
requires the employer to reinstate and make whole all employees af-
fected by the employer’s unlawful course of conduct. See Coronet
Foods, 305 NLRB 79, 92 (1991), enfd. 981 F.2d 1284 (D.C. Cir.
1993); Masland Industries, 311 NLRB 184, 202 (1993). Since Hill,
Casto, and Pounds were included in the bargaining unit at the time
the Respondent closed its trucking operation in furtherance of its un-
lawful plan to get rid of the Union and because the Respondent laid
them off as part of that unlawful plan, we find that the Respondent
violated Sec. 8(a)(3) by unlawfully discharging Hill, Casto, and
Pounds. We amend the judge’s conclusions of law and remedy to
conform to our finding. In addition, we shall modify the judge’s rec-
ommended Order to include this violation and to provide that the
Respondent reinstate and make these employees whole.
12 The Respondent excepts to the judge’s finding that the Respond-
ent continued to employ Brooks, the third employee whom the judge
found to be anitunion, after it laid off the 11 unit employees whom
we have found were unlawfully terminated. In support, the Respond-
ent observes that the judge himself stated that the record failed to
indicate when Brooks was laid off and that an exhibit listing the Re-
spondent’s unit employees as of November 30 includes only
McClain and Devic. We find merit in this exception to the extent
that we agree with the Respondent that the record does not support
a finding that Brooks continued to work for the Respondent after
November 30. We find, however, without merit the Respondent’s
further argument to the effect that the fact that Brooks, an antiunion
employee, was laid off before some of the employees whom the Re-
spondent knew were prounion establishes that the Respondent’s lay-
off of the unit employees was not motivated by antiunion animus.
We decline to draw that inference here where the Respondent has
introduced no evidence to indicate when Brooks left the Respond-
ent’s employ or why he did so. Arguably, Brooks might have volun-
tarily quit and therefore the date of his departure would be irrelevant
to the issue of whether the Respondent’s order of layoff evidenced
antiunion animus. As Brooks’ employer, the Respondent was in the
best position to introduce evidence as to when Brooks left and why.
In the absence of such evidence, we decline the Respondent’s invita-
tion to view Brooks’ departure as support for the Respondent’s con-
tention that the layoffs were legitimate. In this regard, we also reject
the Respondent’s argument that the layoffs occurring in order of se-
niority is evidence that the layoffs were not unlawfully motivated.
While the fact that the Respondent’s most senior employees were
also the most antiunion may have made it easier for the Respondent
to achieve its unlawful purpose, the fact remains that immediately
after the Union was certified as the bargaining representative of the
unit employees, the Respondent subcontracted out its delivery work
and laid off all but those few employees whom it knew to be
antiunion. The fact that these employees also happened to have the
most seniority does not establish that the Respondent’s conduct was
not discriminatorily motivated.
In ‘‘dual motive’’ cases the Board applies a Wright
Line analysis.8 Under this analysis the General Counsel
must carry the initial burden of showing ‘‘that the pro-
tected conduct was a ’motivating factor’ in the em-
ployer’s decision.’’9 Once the General Counsel has sat-
isfied this burden, the burden shifts to the employer
‘‘to demonstrate that the same action would have taken
place even in the absence of the protected conduct.’’10
Applying this analysis here, the judge found that the
General Counsel met its initial burden of establishing
that the Respondent’s closure of its delivery operation
and its layoff of unit employees was unlawfully moti-
vated and that the Respondent failed to rebut this
prima facie case. Accordingly, the judge found that the
Respondent violated Section 8(a)(3) by subcontracting
the FMT delivery work to Steel Transport and by lay-
ing off eight unit employees.11 For the following rea-
sons, we agree with the judge’s finding of these viola-
tions.
As explained in W. R. Case & Sons Cutlery Co.,
307 NLRB 1457, 1463 (1992), ‘‘a prima facie case [of
discriminatory motivation] is made out by proof of em-
ployee union activity, along with employer knowledge
of, and employer animus toward, it.’’ The judge found,
and we agree, that these elements are present here. In
this regard, the judge found that the Respondent was
well aware of the union activities of certain employees
by Koenig’s statement to unit employee Jackie Rucker
that drivers Dargocey, Rafael Ramos, and Mark Bristor
were the three drivers who ‘‘probably started this stuff
and we’re going to get rid of them the best way that
we know how.’’ During this same conversation,
Koenig identified drivers Donald McClain, Branko
Devic, and John Brooks as employees who would vote
‘‘no’’ in the election. Thus, the record supports the
judge’s finding that the Respondent knew of its em-
ployees’ union activities and, indeed, knew which em-
ployees were the most ardent union supporters and
which employees opposed the Union. That the record
also supports a finding that the Respondent harbored
‘‘marked anti-union animus,’’ as the judge found, is
clearly evidenced from the judge’s findings, with
which we agree, that the Respondent committed nu-
merous 8(a)(1) violations including several threats to
terminate its delivery operation and lay off the unit
employees if the employees selected the Union as their
bargaining representative. Finally, as the judge ob-
served, little more than a month after the Union was
certified as the bargaining representative of the unit
employees, the Respondent carried through on its
threats by subcontracting the FMT delivery work to
Steel Transport and by laying off 11 unit employees.
The only unit employees who continued to work for
FMT were McClain and Devic, two of the three em-
ployees whom the Respondent considered antiunion.12
In these circumstances, we agree with the judge that
the General Counsel established a prima facie case that
the Respondent’s subcontracting of its delivery work
and its layoff of the unit employees were unlawfully
362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Member Stephens agrees that the General Counsel has presented
evidence from which we may reasonably infer that animus against
the Union was a motivating factor in the Respondent’s decision, an-
nounced not long after the Union’s certification, to subcontract the
work of its newly unionized delivery employees and lay them off.
He also agrees, for the reasons stated by the judge and in the discus-
sion infra, that the Respondent failed to show that it would have
taken those actions even in the absence of the employees’ selection
of union representation.
14 452 U.S. 666 (1981).
15 Member Cohen does not pass on the contention that a
discriminatorily motivated decision under Sec. 8(a)(3) is necessarily
a mandatory subject of bargaining under Sec. 8(a)(5). In light of the
8(a)(3) violation and the remedy therefor, the finding of an 8(a)(5)
violation would not add substantively to the remedy.
16 The Respondent contends that it would be unduly burdensome
to reestablish its FMT operation because it has no expertise in man-
aging such an operation and its reestablishment would threaten the
financial stability of the Respondent itself. We found these reasons
pretextual when the Respondent offered them as reasons for its clo-
sure of the FMT operation and we reject them now for the same rea-
sons. The Respondent also contends that it would be unduly burden-
some to restore the FMT operation because it would have to hire
a new manager and support staff, renew longterm leases, and rede-
posit $30,000 with Ryder. We reject these reasons because the Re-
spondent has introduced no evidence to support its contention. On
the contrary, the Respondent took these steps when it started up its
FMT operation and, but for its unlawful conduct, would not be re-
quired to repeat them now. Finally, the Respondent contends that it
would be unduly burdensome because the Respondent would lose in-
motivated and therefore violated Section 8(a)(3) of the
Act.13
We also agree with the judge that the Respondent’s
asserted reasons for closing FMT and laying off the
unit employees are ‘‘unconvincing’’ and fail to rebut
the General Counsel’s prima facie case. In this regard,
we agree with the judge, for the reasons stated by him,
that the Respondent’s avowed reasons for terminating
its FMT operation, (1) that there was lack of manage-
ment time for FMT; (2) that the Respondent had safety
concerns about the delivery operation; and (3) that
there was a financial crisis that threatened the exist-
ence of Ferrous Metal Processing (FMT), are without
merit. We also observe, however, that the Respondent
asserted a fourth reason, that FMT ‘‘didn’t have oper-
ating management that knew what they were doing,’’
in support of its contention that its decision to close
FMT was lawful. Because the Respondent set out this
reason with less clarity than the three reasons set out
above, the judge inadvertently failed to address it. The
Respondent excepts to the judge’s failure in this re-
gard.
While we find merit in this exception to the extent
that we agree that the judge inadvertently failed to ad-
dress this fourth reason, we find that that failure does
not require a different result from that reached by the
judge. In this regard, the Respondent contends that
Koenig, FMT’s manager who was responsible for its
day-to-day operation, did a poor job in managing the
FMT operation and that, in effect, because of this fail-
ure overall management of FMT became increasingly
burdensome for the Respondent and was a motivating
factor in the Respondent’s decision to close the FMT
operation. For the following reasons, we find that this
fourth reason also lacks merit.
The record establishes that the Respondent selected
Koenig to manage FMT when the Respondent first
began that delivery operation in 1989 and that Koenig
managed that operation from its inception to its clo-
sure. Despite the Respondent’s contention of poor
management, the fact remains that Koeing did manage
FMT for 3 years without being demoted or losing his
job. Further, the fact that the Respondent closed the
operation shortly after the Union won the election sug-
gests, as discussed above, that by closing its FMT op-
eration the Respondent was carrying out its threat, as
expressed on numerous occasions by Koenig himself,
to close if the Union came in. For all these reasons,
we agree with the judge that the Respondent’s closure
of its FMT operation and its layoff of the unit employ-
ees was implemented for unlawful discriminatory rea-
sons and therefore violated Section 8(a)(3) and (1) of
the Act.
Finally, since we agree with the judge that the Re-
spondent’s conduct in subcontracting the FMT delivery
work and laying off the unit employees was unlawful,
we adopt his further finding that the Respondent was
not exempt from its obligation to bargain with the
Union over its decision to subcontract the work under
First National Maintenance Corp.14 As the Board stat-
ed in Central Transport, 306 NLRB 166, 167 (1992),
enfd. in part 997 F.2d 1180 (7th Cir. 1993),
‘‘[d]iscrimination on the basis of antiunion animus
cannot serve as a lawful entrepreneurial decision.’’ Ac-
cordingly, we adopt the judge’s finding that the Re-
spondent violated Section 8(a)(5) by failing and refus-
ing to bargain with the Union over its decision to sub-
lease its trucks to Steel Transport.15
4. As part of his recommended remedy, the judge
recommended that the Respondent be required to rees-
tablish and restore its FMT operation as it existed prior
to the layoff of unit employees. In making this rec-
ommendation, the judge found that the restoration of
the status quo ante would not be unduly burdensome.
The Respondent excepts on the ground that the judge
erred in finding that it would not be unduly burden-
some for it to reestablish its FMT operation. The Re-
spondent also requests that the Board modify the
judge’s recommended Order ‘‘to provide explicitly that
restoration and reinstatement will not be required if
Respondent can establish at the compliance stage of
the proceeding that those remedies are inappropriate.’’
We agree with the judge that the Respondent has failed
to show that restoration of the FMT operation would
be unduly burdensome and we, therefore, adopt his
recommended remedy in this regard.16 We agree, how-
363FERRAGON CORP.
come from rent currently paid by the subcontractor and income from
referrals. The Respondent, however, has introduced no evidence as
to the amounts of such income that it would lose if the FMT oper-
ation were restored and whether those amounts would be significant.
Accordingly, we agree with the judge that the Respondent has not
shown that the reestablishment of its FMT operation would be un-
duly burdensome.
17 Lear Siegler, Inc., 295 NLRB 857, 860–862 (1989); Compu-Net
Communications, 315 NLRB 216, 216 fn. 3 (1994); We Can, Inc.,
315 NLRB 170, 174–177 (1994).
18 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ever, with the Respondent that it should have the op-
portunity at the compliance stage of this proceeding to
present previously unavailable evidence, if any, to
demonstrate that the reinstitution of the FMT operation
would be unduly burdensome.17 We shall modify the
judge’s recommended Order accordingly.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Ferragon Corporation, Ferrous Metal
Processing, Inc., and Ferrous Metal Transfer, Inc., a
Single Integrated Enterprise, Brooklyn, Ohio, its offi-
cers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Soliciting the assistance of employees to discour-
age or stop the Union’s organizing drive by asking em-
ployees to convince other employees to vote against
the Union.
(b) Interrogating employees concerning their knowl-
edge of the Union’s organizing campaign or of other
employees’ union activities.
(c) Unlawfully threatening employees regarding their
participation in union activities.
(d) Soliciting employees’ grievances and promising
to remedy them during a union organization campaign.
(e) Threatening to take away employee benefits and
start bargaining from ‘‘rock bottom’’ if they vote for
the Union.
(f) Threatening that drivers will lose their jobs if
they vote for a union.
(g) Threatening plant closure if employees obtain
union representation.
(h) Telling employees that their jobs will be in jeop-
ardy if they vote for the Union.
(i) Telling employees the Company intended to get
rid of named employees because they started the union
‘‘stuff.’’
(j) Telling employees they would be laid off and
their trucks would be turned in if they voted for the
Union.
(k) Seeking to create the impression that the union
activities of its employees are under surveillance.
(l) Interrogating an employee regarding the crossing
of a picket line and threatening discharge if he failed
to cross a picket line.
(m) Telling an employee drivers were not invited to
attend a company picnic because they are union trou-
blemakers.
(n) Subcontracting unit work and laying off employ-
ees because they chose the Union to represent them.
(o) Refusing to bargain with the Union over its deci-
sion to sublease its trucks to another company.
(p) 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 necessary to
effectuate the policies of the Act.
(a) Unless it is shown that it is unduly burdensome
to reinstitute the transportation activities at its FMT fa-
cility, reestablish and resume those operations in a
manner consistent with the level and manner of oper-
ations which existed before the operation was down-
sized commencing September 18, 1992, and offer em-
ployees Tommie Smith, Louis Davis, Alonzo Hender-
son, Mark Bristor, Rafael Ramos, Karl Hoffman, Carl
Dargocey, Jackie Rucker, Eli Pounds, John Casto, and
Larry Hill immediate and full reinstatement to their
former positions of employment.
(b) Make whole employees Tommie Smith, Louis
Davis, Alonzo Henderson, Mark Bristor, Rafael
Ramos, Karl Hoffman, Carl Dargocey, Jackie Rucker,
Eli Pounds, John Casto, and Larry Hill for any losses
they incurred as a result of the discrimination against
them, in the manner specified in the remedy section of
the judge’s decision.
(c) Remove from its files any reference to the un-
lawful layoffs of the above-named employees and no-
tify them in writing that this has been done and that
their terminations will not be used against them in any
way.
(d) On request, recognize and bargain with the
Union as the exclusive collective-bargaining agent of
its employees in the bargaining unit and sign any
agreement reached on terms and conditions of employ-
ment of employees in the unit.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(f) Post at its Brooklyn, Ohio facility copies of the
attached notice marked ‘‘Appendix.’’18 Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT solicit the assistance of employees to
discourage or stop the Union’s organizing drive by
asking employees to convince other employees to vote
against the Union.
WE WILL NOT interrogate employees concerning
their knowledge of the Union’s organizing campaign
or of other employees’ union activities.
WE WILL NOT unlawfully threaten employees regard-
ing their participation in union activities.
WE WILL NOT solicit employees’ grievances and
promise to remedy them during a union organization
campaign.
WE WILL NOT threaten to take away employee bene-
fits and start bargaining from ‘‘rock bottom’’ if they
vote for the Union.
WE WILL NOT threaten that drivers will lose their
jobs if they vote for a union.
WE WILL NOT threaten plant closure if employees
obtain union representation.
WE WILL NOT tell employees that their jobs will be
in jeopardy if they vote for the Union.
WE WILL NOT tell employees the Company intended
to get rid of named employees because they started the
union ‘‘stuff.’’
WE WILL NOT tell employees they would be laid off
and their trucks would be turned in if they voted for
the Union.
WE WILL NOT seek to create the impression that the
union activities of our employees are under surveil-
lance.
WE WILL NOT interrogate an employee regarding the
crossing of a picket line and threaten discharge if he
failed to cross a picket line.
WE WILL NOT tell an employee drivers were not in-
vited to attend a company picnic because they are
union troublemakers.
WE WILL NOT subcontract unit work and lay off em-
ployees because they chose the Union to represent
them.
WE WILL NOT refuse to bargain with the Union over
our decision to sublease our trucks to another com-
pany.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
Unless it is shown that it is unduly burdensome to
reinstitute the transportation activities at our FMT fa-
cility, WE WILL reestablish and resume those operations
in a manner consistent with the level and manner of
operations which existed before the operation was
down-sized commencing September 18, 1992, and WE
WILL offer employees Tommie Smith, Louis Davis,
Alonzo Henderson, Mark Bristor, Rafael Ramos, Karl
Hoffman, Carl Dargocey, Jackie Rucker, Eli Pounds,
John Casto, and Larry Hill immediate and full rein-
statement to their former positions of employment.
WE WILL make whole employees Tommie Smith,
Louis Davis, Alonzo Henderson, Mark Bristor, Rafael
Ramos, Karl Hoffman, Carl Dargocey, Jackie Rucker,
Eli Pounds, John Casto, and Larry Hill for any losses
they incurred as a result of the discrimination against
them.
WE WILL remove from our files any reference to the
unlawful layoffs of the above-named employees and
WE WILL notify them in writing that this has been done
and that their terminations will not be used against
them in any way.
WE WILL, on request, recognize and bargain with the
Union as the exclusive collective-bargaining agent of
our employees in the bargaining unit and sign any
agreement reached on terms and conditions of employ-
ment of employees in the unit.
FERRAGON CORPORATION, FERROUS
METAL PROCESSING, INC., FERROUS
METAL TRANSFER, INC., A SINGLE INTE-
GRATED ENTERPRISE
365FERRAGON CORP.
1 During the hearing, the General Counsel amended par. 16 of the
complaint by substituting ‘‘August ’’ for ‘‘June’’ and amended par.
24(a) by indicating Louis Davis was laid off on November 13, 1992,
rather than September 18, 1992.
Thomas M. Randazzo, Esq., for the General Counsel.
Alan G. Ross, Esq. and Debra G. Simms, Esq. (Ross, Brittain
& Schonberg Co., L.P.A.), of Cleveland, Ohio, for the Re-
spondent.
Sorrell Logothetis, Esq. (Logothetis & Pence), of Dayton,
Ohio, for the Charging Party.
DECISION
STATEMENT OF THE CASE
DONALD R. HOLLEY, Administrative Law Judge. On an
original charge filed by the above-named Union in Case 8–
CA–25034 on November 24, 1992 (amended first on January
21, 1993, and second on March 8, 1993), the Regional Direc-
tor for Region 8 of the National Labor Relations Board (the
Board) issued a complaint on March 24, 1993, which alleged
that since June 1992, Ferragon Corporation, Ferrous Metal
Processing, Inc., and Ferrous Metal Transfer, Inc., a Single
Integrated Enterprise (the Respondent collectively and
Ferragon, FMP, and FMT individually) has engaged in con-
duct which violates Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act (the Act). On February 24, 1993,
Barbara Marlowe, an individual, filed the charge in Case 8–
CA–25238, and on April 30, 1993, her case was consolidated
with Case 8–CA–25034 for trial. Simultaneously, the Re-
gional Director issued an amended consolidated complaint
which realleged the matter set forth in the March 24, 1993
complaint, and additionally alleged that Respondent violated
Section 8(a)(1) of the Act when it ‘‘attempted to dissuade
another employer from hiring an employee because of her
union sympathies and beliefs.’’ Respondent filed a timely an-
swer denying that it had engaged in the unlawful conduct set
forth in the amended consolidated complaint.
The record in the instant case was opened in Cleveland,
Ohio, on June 23, 1993. The case was recessed after the par-
ties reached tentative agreement on the terms for settlement
of the case. Pursuant to counsel for the General Counsel’s
motion, an order severing Case 8–CA–25238 and ordering
resumption of the hearing in Case 8–CA–25034 on October
19, 1993, was issued on September 14, 1993. Thereafter, fur-
ther hearing was held in Cleveland, Ohio, during the period
extending from October 19 to 22, 1993.1
On the entire record, including careful consideration of
posthearing briefs filed by Respondent and the General
Counsel, and from my observation of the demeanor of wit-
nesses who appeared to give testimony, I make the following
FINDINGS OF FACT
I. JURISDICTION
Jurisdiction is not disputed. It is admitted that Respondent,
an Ohio corporation, is engaged in the processing and trans-
fer of steel products and that it annually, at its Brooklyn,
Ohio facility, provides services valued in excess of $50,000
to LTV Steel, WCI Steel, Mid-West Material, Olympic Steel,
Standard Steel, and other enterprises within the State of
Ohio, which are directly engaged in interstate commerce. It
is admitted, and I find, that Respondent is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted, and I find, that Truck Drivers Union Local
No. 407, International Brotherhood of Teamsters, AFL–CIO
(the Union) is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview
Ferrous Metal Processing, Inc. (FMP), was incorporated on
February 17, 1983. It was created to process hot rolled steel
for various customers. Hot rolled steel is used for tire rims,
auto frames, pipes, and tanks. FMP does not own the steel
it processes. Instead, the steel is picked up at the customer’s
business location, transported to FMP, processed, and re-
turned to the customer. The processing includes pickling,
slitting, shearing, temple rolling, and leveling. Pickling in-
volves placing coils of steel in acid to remove rust. Slitting,
shearing, and leveling are processes whereby the steel is cut
into specified lengths and widths. Temple rolling involves re-
ducing the thickness of steel sheets to improve the physical
properties of the product.
Eduardo (Ed) Gonzalez is the president and sole stock-
holder of FMP. In 1990, he created Ferragon Corporation
which functions as a holding company. Simultaneously, he
converted FMP into an operating division of Ferragon, and
he subsequently organized other operating divisions of
Ferragon such as Spectrolux Co. and Republic Metals Co.
Spectrolux specializes in cold rolled steel which is subjected
to various tests so defects can be discovered if present, and
while it existed, Republic Metals purchased steel, improved
the basic product, and sold it to FMP customers.
Prior to 1989, the coil steel coming into the FMP facility
and subsequently leaving it in altered form was transported
primarily by common carriers chosen by the customer. Gon-
zalez formed an opinion that FMP’s customers might appre-
ciate a situation wherein FMP picked up the steel, processed
it, delivered it back to the customer, and submitted one bill
for the entire procedure. In an attempt to sell his pickup,
process, and deliver (PPD) idea to his customers, he caused
Ferrous Metal Transfer, Inc. (FMT) to be incorporated on
January 9, 1989. As was the case with FMP, Ferragon,
Spectrolux, and Republic, Eduardo Gonzalez is the CEO and
sole shareholder of FMT.
FMT entered the trucking business by leasing trucks from
Ryder Truck and Leasing Rental Company. The lease agree-
ments were executed between FMT and Ryder, with
Ferragon as the guarantor. By July 1992, FMT had 11 trucks
and 11 drivers. At that time, those trucks and drivers handled
20 to 30 percent of the steel arriving at FMP’s facilities for
processing. Gonzalez testified that those customers using Re-
spondent’s pickup, process, and delivery services appreciated
the fact that FMP arranged for pickup and delivery of their
steel and sent them one bill for all services provided.
At the time, FMT was created, Gonzalez transferred one
David Koenig, formerly the shipper at FMP, to the position
of manager at FMT. The record reveals that drivers were dis-
satisfied with the fact that they had to wait for product at
366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Admitted by Respondent’s answer to be an appropriate unit for
bargaining.
the FMP mill, and dissatisfied with Koenig’s requirement
that they haul loads that were heavier than the legal limit,
and they sought Teamsters representation in April 1992. The
Union subsequently mailed FMT a letter demanding recogni-
tion as the drivers’ representative on May 27, 1992, and
Teamsters, thereafter, filed a petition for an election in Case
8–RC–14732 on June 1, 1992. An election was held in the
following unit on July 17, 1992.
All truck drivers at the Employer’s 11103 Memphis
Avenue, Brooklyn, Ohio facility but excluding all office
clerical employees and all professional employees,
guards and supervisors as defined in the Act.2
The Union was certified as the exclusive collective-bar-
gaining representative of employees in the described unit on
July 28, 1992. Thereafter, bargaining sessions were held on
September 2 and 10, 1992. At the outset of bargaining, Re-
spondent indicated it intended to close FMT’s operations ab-
sent union input which would cause Gonzalez to change his
mind. Notice was, thereafter, given by Respondent that it
would close FMT on September 16, 1992.
Summarized, the complaint alleges that Ferragon, FMP,
and FMT constitute a single integrated business enterprise
and single employer within the meaning of the Act; that Re-
spondent engaged in some 23 individual 8(a)(1) violations;
that Respondent laid off 11 named employees during Sep-
tember and November 1992 for discriminatory reasons; and
that Respondent violated Section 8(a)(5) of the Act by trans-
ferring or subcontracting the work of FMT employees to oth-
ers without adequate notice to the Teamsters and without af-
fording the Union an opportunity to bargain concerning such
action. The issues and facts offered to prove and/or disprove
them are discussed individually below.
B. The Single Employer Issue
The Board will consider nominally separate business enti-
ties to be a single employer when they comprise an inte-
grated enterprise. Radio Union v. Broadcast Services of Mo-
bile, 380 U.S. 255, 256 (1965). Some of the principal factors
which have been considered relevant in determining the ex-
tent of integration are: (1) interrelations of operations; (2)
centralized control of labor relations; (3) common manage-
ment; and (4) common ownership or financial control.
Sakrete of Northern California, 137 NLRB 1220, 1222
(1962). As stated in Emsing’s Supermarket, 284 NLRB 302
(1987):
None of these factors, alone, is controlling, nor need all
of them be present. Single-employer status ultimately
depends on ‘‘all the circumstances of the case’’ and is
characterized by the absence of the ‘‘arm’s length rela-
tionship found among unintegrated companies.’’ Stated
otherwise, the fundamental inquiry is whether there ex-
ists overall control of critical matters at the policy level.
[Citations omitted.]
The facts in the instant record clearly reveal that Ferragon,
FMP, and FMT constitute a single employer within the
meaning of the Act.
As revealed, supra, Eduardo Gonzalez is the sole owner of
the stock of each of the entities under discussion. The record
reveals he personally exerts financial control over the entities
as he personally supplied the capital used to create the enti-
ties, he determines the wages and benefits which are received
by employees of the entities, and he determines the size, but
not the composition, of the work force of the entities. More-
over, the record reveals Anthony Potelicki, the chief financial
officer of Ferragon/FMP, controls the finances, banking ac-
tivities, and accounting functions of FMT as well as those
of Ferragon/FMP.
With respect to the management criteria, Gonzalez
credibly testified his brother, Luis, accomplishes the day-to-
day management of FMP while Koenig accomplishes that
task at FMT. At the top level, Ed Gonzalez serves as presi-
dent of Ferragon/FMP, Hopes Miles serves as its vice presi-
dent, and such individuals occupy the same positions at
FMT. While Luis Gonzalez does the hiring at FMP and
Koenig does the hiring at FMT, Ed Gonzalez testified that
he retains the final say as to employees hired, and he deter-
mines the size of the work force. Significantly, FMT’s finan-
cial statements for the years 1989 through 1992 reveal that
Ferragon/FMP charged FMT $40,000, $200,475, 180,000,
and $210,000 for management/administrative services during
1989–1992, respectively (G.C. Exh. 24).
The actions of Ferragon/FMP management during the
Teamsters organizational campaign clearly reveal that labor
relations of Ferragon/FMP and FMT are centrally controlled.
Thus, as discussed in greater detail, infra, the record reveals
that Ed Gonzalez met with FMT drivers on two occasions
shortly after the Union demanded recognition and filed its
petition for an election. Similarly, it reveals, as discussed
more fully, infra, that Frank Frostino, Ferragon’s vice presi-
dent of operations, and Hope Miles, Ferragon/FMP vice
president of sales, accompanied Ed Gonzalez to meetings
held with FMT drivers and assisted Gonzalez by urging the
drivers to vote against union representation. Finally, the
record reveals that Miles and Luis Gonzalez represented
FMT at the September 10, 1992 bargaining session.
Turning to the integration of operations criteria, the record
reveals the operations of Ferragon/FMP and FMT were inte-
grated to a marked extent during the period under discussion.
As indicated, supra, Ed Gonzalez created FMT to enable
FMP to better serve its customers by providing for the pick-
up of steel coils at the customers’ premises, the processing
of the coils at the FMP mill, and the return of the processed
steel to the customer’s premises in response to one call by
the customer. Ferragon/FMP was FMT’s only customer and
its business actions dictated FMT’s workload. Significantly,
Potelicki testified that he makes all financial decisions in-
volving Ferragon/FMP, as well as FMT, and he indicated
that he and his staff at Ferragon/FMP perform all accounting,
payroll, and banking transactions for the entities under dis-
cussion. Included in those financial transactions is the billing
of the FMP customers for the processing of steel as well as
the transportation of the product to and from the customers’
premises. Finally, the record reveals that Ferragon/FMP and
FMT use the same address and, while located in separate
buildings, occupy the same property which is leased by Ed
Gonzalez.
In sum, the record reveals that FMT’s trucking operation
is functionally and financially dependent on Ferragon/FMP,
367FERRAGON CORP.
3 Respondent failed to call Koenig as a witness so comments at-
tributed to him by employee witnesses are unrebutted.
and, to an extent, the reverse is true. Noting, in particular
that Ferragon/FMP extracts significant sums of money from
FMT for the executive, administrative, and financial services
it provides FMT, I find that Ferragon/FMP and FMT con-
stitute a single integrated enterprise and a single employer
within the meaning of the Act.
C. The Alleged Independent 8(a)(1) Violations
1. Conduct attributed to Eduardo Gonzalez
Two drivers, Carl Dargocey and Tommie Smith, testified
that on June 2, 1992, at approximately 5 p.m., they and other
drivers were summoned to the office where Ed Gonzalez
spoke with them. A composite of their testimony reveals that
Gonzalez indicated he had just received a communication
which indicated that the Teamsters were organizing the driv-
ers, and he told employees he thought it might be a trick or
a hoax and he asked if the drivers knew anything about it.
One driver, Branko Devic, responded by stating he did not
need a union, but the remaining drivers remained silent. Gon-
zalez concluded the meeting by stating he would investigate
the matter and get back to then.
According to Dargocey, Ed Gonzalez met a second time
with the drivers about 2 weeks after the above-described
meeting. Also attending for management were FMP officers
Frank Frostino and Hope Miles. Dargocey recalled that Ed
Gonzalez made a major thing about why the drivers had
gone to the Union before coming to him about their prob-
lems. During the meeting Dargocey expressed his dissatisfac-
tion with the fact that drivers had to work extra long hours
and were required to pull heavy loads. He recalls that Gon-
zalez responded that he had already issued a letter about
heavy loads and hauling heavy loads would cease imme-
diately. Employee Smith, who also described the meeting, re-
called that Ed Gonzalez told Koenig in the drivers’ presence
that ‘‘these guys won’t haul no more heavy loads’’ and he
said they won’t be working all those hours. Dargocey testi-
fied, without contradiction, that Frank Frostino told the driv-
ers during the meeting that business was expanding and they
may be running 48 States and Canada in the future, and he
asked if the drivers would be receptive to that.
Eduardo Gonzalez admitted he discussed heavy loads and
long working hours with the drivers at some time, but he did
not expressly acknowledge meeting with the drivers before
he read to them speeches prepared by his attorneys. Miles
and Frostino were not called to give testimony during the
hearing. I credit employees Dargocey and Smith and find
that Gonzalez met with employees twice in June as they
claim.
In agreement with the General Counsel, I find that Ed
Gonzalez unlawfully interrogated the drivers at the June 2
meeting as his inquiry was designed to, and did, evoke re-
plies which would reveal the union sentiments of the em-
ployees attending the meeting. Patently, Gonzalez sought
during the second meeting to cause employees to voice their
problems and he clearly indicated Respondent would remedy
them. While such conduct would normally amount to a viola-
tion of Section 8(a)(1) of the Act as alleged, Respondent
contends no violation should be found because a business
must be free at any time to make changes which bring it into
compliance with the law, i.e., stop overloading trailers. Obvi-
ously, the contention fails to offer justification for Gonzalez’
promise to eliminate waiting time at the mill which caused
the drivers to work long hours. In the circumstances de-
scribed, I find that by soliciting employees’ grievances and
promising to remedy them, Respondent violated Section
8(a)(1) of the Act as alleged.
2. Conduct attributed to David Koenig3
a. By employee Carl Dargocey
Dargocey testified that in mid-June 1992, Koenig told him
and driver John Brooks that ‘‘we would be losing all of our
benefits and everything is negotiable in contracts and that we
should vote no for this union.’’
Employee Dargocey testified that at 3:40 p.m. on June 18,
1992, Koenig told him he had ‘‘better go out and tell all the
drivers that we would not have jobs at Ferrous Metal Trans-
fer if we voted the union in.’’
Employees hearing Koenig’s mid-June negotiation related
remarks could logically conclude Respondent would take
away their benefits if they voted for the Union. Accordingly,
I find, as alleged, that by making the comment Koenig en-
gaged in conduct which violates Section 8(a)(1) of the Act.
Patently, by threatening that drivers would lose their jobs if
they voted the Union in, Respondent, though Koenig, vio-
lated Section 8(a)(1) of the Act.
b. By employee Rafael (Nicky) Ramos
Employee Ramos testified that on July 15, 1992, 2 days
before the election, Koenig asked him if he and the other
drivers had made up their minds about the union issue; said
that they had better make up their minds because they were
jeopardizing what they had right now—$400 guarantee and
22 percent they were giving them; and said if they got the
Union in there, Eduardo Gonzalez might shut the place down
or close down.
I find that by indicating that drivers were placing their cur-
rent remuneration scale in jeopardy by voting for union rep-
resentation, and by threatening plant closure if the Union was
voted in, Respondent, through Koenig’s conduct, violated
Section 8(a)(1) of the Act as alleged. While the General
Counsel contends in brief (Br. 17) that Koenig unlawfully in-
terrogated employee Ramos during the July 15 conversation,
I refrain from finding the violation as the supervisor did not
specifically ask the employee to reveal his union sentiments.
c. By employee Carl Hoffman
Employee Hoffman testified on direct examination that, in
late June or in early July, Koenig told him that paid holidays
and vacations, Thanksgiving turkeys, Christmas hams, the
$400-a-week guarantee, and work uniforms would all be
taken away if he voted the Union in. On cross-examination,
Hoffman agreed Koenig indicated during the conversation
that the benefits were not guaranteed and they would be ne-
gotiable in event the Union got in. He added, however, that
Koenig indicated ‘‘we would start at rock bottom.’’
Several days after the above-described event, Hoffman in-
dicated Koenig told him if the employees voted for the
Union and it got in, their jobs would be in jeopardy.
368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Board treated the subject of starting negotiations
‘‘from scratch,’’ ‘‘ground zero,’’ or from ‘‘rock bottom’’ in
S. E. Nichols, Inc., 284 NLRB 556, 577 (1987), stating, inter
alia:
‘‘bargaining from ground zero’’ or ‘‘bargaining from
scratch’’ statements by employer representatives violate
Section 8(a)(1) of the Act if, in context, they reasonably
could be understood by employees as a threat of loss
of existing benefits and leave employees with the im-
pression that what they may ultimately receive depends
upon what the union can induce the employer to re-
store. On the other hand, such statements are not viola-
tive of the Act when other communications make it
clear that any reduction in wages or benefits will occur
only as a result of the normal give and take of negotia-
tions. See also Telex Communications, Inc., 294 NLRB
1136 (1989).
Viewing Koenig’s benefit bargaining related comments in
the context described, I find Hoffman could have reasonably
concluded Koenig was telling him that if they voted the
Union in, they would receive only those wages and benefits
the Union could induce their employer to restore. I find, as
alleged, that by threatening to eliminate benefits and to bar-
gain from scratch if the Union was voted in, Respondent,
through Koenig’s conduct, violated Section 8(a)(1) as al-
leged.
Patently, by threatening that employees’ job would be in
jeopardy if they voted for the Union, Respondent, through
Koenig’s conduct, violated Section 8(a)(1) of the Act.
d. By employee Alonzo Henderson
Employee Henderson testified that on July 6 or 7, 1992,
Koenig told him, Carl Hoffman, and employee Mark Bristor
they should not vote for the Union because it would be bad
for everyone—Ed Gonzalez hated the Union so bad that he
would close the doors before he would allow a union to be
in there.
Henderson claimed that a few days after the above-de-
scribed event, Koenig told him and employee Dargocey they
should not vote for the Union because it was bad for every-
body, that if the employees wanted to continue to work there,
they should not vote for the Union.
Patently, by threatening that employees would lose their
jobs if they voted for the Union, and by threatening plant
closure if employees voted for union representation, Re-
spondent, through Koenig’s conduct, violated Section 8(a)(1)
of the Act.
e. By employee Jackie Rucker
Employee Rucker testified that he had several conversa-
tions with Koenig concerning the Union. He recalled the first
conversation occurred in Koenig’s office around the first
week of June 1992. During the conversation, Koenig told
Rucker he needed to talk to the other employees about the
Union because if they voted the Union in, it would affect
them. When he asked how, Koenig said he would get laid
off.
Around the end of June 1992, Koenig urged Rucker to talk
to his coworkers about the Union. Koenig explained they
were a small shop and he informed the employee that if the
Union was voted in, they would just turn in the trucks and
there was nothing the employees could do about it.
In a third conversation which occurred near the time of the
above-described conversation, Koenig again urged Rucker to
talk to his fellow employees and convince them they should
vote no. He told the employee he knew he had three employ-
ees who would vote no, identifying them as Don McClain,
Branko Devic, and John Brooks. Koenig then said he knew
the three people who ‘‘probably started this stuff and we’re
going to get rid of them the best way that we know how.’’
Rucker asked who the three people were and Koenig told
him they were Carl Dargocey, Rafael Ramos, and Mark
Bristor.
I find that by seeking to cause employee Rucker to con-
vince his coworkers that they should vote no in the election
by telling the employee that if the Union got in, they would
be laid off, and/or that Respondent would just turn the trucks
in, Respondent, through Koenig’s conduct, violated Section
8(a)(1) of the Act. Moreover, by threatening, in Rucker’s
presence, to terminate three named employees who Respond-
ent suspected of ‘‘starting this stuff,’’ Respondent, through
Koenig, coerced Rucker in the exercise of his Section 7
rights. Finally, by identifying employees who were for and
against the Union, and who were responsible for the union
activity, Respondent, through Koenig, sought to create the
impression that Respondent had the union activities of em-
ployees under surveillance in violation of Section 8(a)(1) of
the Act.
f. By employee Tommie Smith
Employee Smith testified that he had two union-related
conversations with Koenig in mid-July 1992.
During the first conversation, which occurred as Smith and
Koenig were walking across a field on Respondent’s prem-
ises, Koenig told Smith (who is black) to ‘‘talk to the black
guys to convince them to vote no’’ (the black guys were
John Brooks and Jackie Rucker). Koenig indicated Smith
should take that action because ‘‘Ed didn’t want a union and
that he would just close the doors.’’
The second conversation occurred in Koenig’s office
shortly before the election. On that occasion, Koenig stated
he thought ‘‘all this . . . union organization was come about
by the baldheaded mother fucker [Dargocey].’’ Koenig ended
their conversation by stating, ‘‘after this union shit is over
with, there [are] going to be some tremendous changes which
. . . should have been made a long time ago.’’
By seeking to cause employee Smith to urge his fellow
employees to vote no at the election by threatening plant clo-
sure if employees selected the Union as their representative,
Respondent, through Koenig’s conduct, violated Section
8(a)(1) of the Act. By identifying employee Dargocey as the
employee who had instigated the union organizational drive,
I find Koenig implied that Respondent had the union activi-
ties of employees under surveillance, and it thereby violated
Section 8(a)(1) of the Act.
g. By employee John Casto
Employee Casto was hired by FMT on August 24, 1992.
When he was interviewed by Koenig, he claims he was told
the employees were trying to get a union in the trucking op-
eration and a vote on it had passed. He testified Koenig told
369FERRAGON CORP.
4 Respondent failed to call Nugent as a witness and conduct attrib-
uted to him is unrebutted.
him, ‘‘But I’m still hiring people because I want to bust the
Union.’’ He claims Koenig went on to tell him that if a pick-
et line went up, Casto would be expected to cross it because
he had to serve a 90-day probationary period. After making
the above statements, Koenig asked Casto if he still wanted
the job and he said he did. Casto indicated that Koenig stated
during the interview that if the Union got in, they would
close the doors, and not to worry about it.
I find that by interrogating employee Casto about whether
he would cross a picket line if one appeared, and by threat-
ening indirectly to terminate him pursuant to a probationary
policy, Respondent, through Koenig’s conduct, violated Sec-
tion 8(a)(1) of the Act. Noting that the election had already
been conducted by the time Casto was interviewed, I con-
clude his testimony concerning closing the doors if the
Union got in is incomplete and ambiguous, and I refrain
from finding further threat of plant closure based on his testi-
mony.
3. Conduct attributed to FMP Foreman Jim Nugent4
Employee Hoffman described a conversation that he had
with admitted FMP Foreman Jim Nugent in August 1992.
Hoffman indicated that prior to 1992, the FMT drivers had
been invited to attend company picnics, but in August after
the election, Nugent told him the truck drivers were ‘‘union
troublemakers’’ and were not invited to the picnic because
of their union activity.
I find that by telling an employee that FMT drivers were
not invited to attend Respondent’s 1992 picnic because they
had engaged in union activity, Respondent, through Nugent’s
conduct, violated Section 8(a)(1) of the Act.
D. The Alleged 8(a)(1) and (3) Violations
1. The General Counsel’s case
When the union organization campaign at Respondent’s
operation began, it employed 11 drivers. Their names and
date of hire are as follows:
Donald McClain 7/5/89
John Brooks 5/30/89
Branko Devic 6/9/89
Tommie Smith 11/8/89
Louis Davis 11/8/89
Alonzo Henderson 1/31/90
Mark Bristor 3/28/90
Rafael Ramos 5/14/90
Karl Hoffman 8/28/90
Carl Dargocey 1/27/92
Jackie Rucker 4/13/92
[G.C. Exh. 17.]
Driver Mark Bristor testified that he and four other drivers
contacted Teamsters Local 407 regarding representation in
April 1992. As indicated, supra, the Union filed the petition
in Case 8–RC–14732 on June 1, 1992, and an election was
held among Respondent’s drivers on July 17, 1992. Eight
votes were cast for the Union, three were cast against it, and
there were no challenged ballots. As indicated, supra, Re-
spondent was aware of the identity of the three employees
who voted against the Union as Koenig identified McClain,
Brooks, and Devic as being antiunion in discussion with
driver Rucker.
The Union was certified as the exclusive bargaining agent
of FMT’s drivers on July 28, 1992. On August 24, 1992,
FMT hired three new drivers (John Casto, Larry Hill, and Eli
Pounds). Employee Casto testified, without contradiction,
that when Koenig hired him he told him he was still hiring
people because he wanted to bust the Union. The supervisor
further indicated Casto was to serve a 90-day probationary
period and if the Union engaged in picketing, he would be
expected to cross the picket line if he wanted to keep his job.
The first bargaining session was held on September 2,
1992. Jim Davis and driver Dargocey represented the Union
and Ed Gonzalez, Attorney Alan Ross, and Attorney Marco
Graves represented FMT. Davis, Dargocey, and Gonzalez de-
scribed what occurred at the meeting. A composite of their
testimony reveals that Gonzalez indicated during the meeting
that the trucking operation was getting too big and he did not
want the hassle of continuing to put time and money into it.
Indicating that common carriers were already hauling all but
about 30 percent of the product, and he indicated that, absent
union proposals which would cause him to change his mind,
he intended to go out of the trucking business on September
16, 1992. While the parties discussed ways the trucking oper-
ation could be improved, no agreement was reached on the
terms of a collective-bargaining agreement.
A second bargaining session was held on September 10,
1992. Davis, Dargocey, and Local 407 President Sam
Theodus represented the Union and Ross, Graves, Luis Gon-
zalez, and Hope Miles represented FMT. During the meeting,
the Union proposed that the parties agree to a complete con-
tract which was placed in the record as Respondent’s Exhibit
7. No meaningful discussion of the contract occurred. Davis
indicated the Union felt the timing of the closing of the oper-
ation was highly suspect and to gain a better understanding
of what Respondent was doing, the Union presented the
management negotiators with a list of questions placed in the
record as Respondent’s Exhibit 6. As the session ended, the
Union was asked to submit any proposals it had to make re-
garding the closure issue by September 16, 1992.
On September 16, 1992, Respondent’s attorney Alan Ross
sent Union Business Representative Davis a letter placed in
the record as the General Counsel’s Exhibit 1(k), the body
of which is as follows:
As requested at our last meeting, I attempted to
reach you via telephone several times at the Ramada
Inn at O’Hare Airport in Chicago. I left messages with
a woman who was taking messages for whatever Team-
ster function you were attending. She said she did not
know which of the several meetings in progress you
were attending. I asked her to specifically advise you
of the closure of the Ferrous Metal Transfer Co., effec-
tive September 16, 1992. In the hope that this cor-
respondence will reach you as soon as possible, I am
having it sent via telefacsimile to your office.
The purpose of this letter is to advise Local 407 that
on September 16, 1992, Ferrous Metal Transfer Co.
(‘‘the Company’’) made the irrevocable decision to
cease direct involvement in the steel hauling business.
370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As we told you, that decision was brought about by two
factors. The first factor is that steel hauling is not part
of the company’s primary enterprise—the processing of
steel. The second factor is that now that the concept of
single billing for pickup, process and delivery has prov-
en successful, companies with much more expertise in
the trucking industry are willing to perform those serv-
ices.
Mr. Gonzalez and the Company are no longer will-
ing to devote the managerial attention and capital in-
vestment necessary to operate the trucking operation.
He also no longer wishes the potential liabilities that go
along with involvement in the steel hauling business
and mass of regulatory requirements imposed by truck-
ing law. Nothing contained in your proposals addressed
these concerns. The Company has decided to direct its
managerial energy to the area of business it knows
best—the steel processing business.
As we told you on September 10, 1992, we are very
interested in providing for a smooth transition for our
employees. We have asked you to engage in bargaining
over the effects of our decision to go out of the truck-
ing business. You have not availed yourself of that op-
portunity. In view of the company’s concern for its em-
ployees, the Company has asked the carrier which is as-
suming the portion of work formerly performed by Fer-
rous Metal Transfer to offer employment to as many of
the former employees as possible. We continue to invite
you to negotiate concerning the effects of the closing
of this business.
Thanking you in advance for you attention to these
matters, I remain,
On September 18, 1992, Respondent laid off employees
Mark Bristor, John Casto, Carl Dargocey, Larry Hill, Karl
Hoffman, Eli Pounds, Rafael Ramos, and Jackie Rucker.
Subsequently, by letters dated September 23, 1992, Respond-
ent advised each of the above-named drivers to apply for em-
ployment with a company named Steel Transport which
‘‘will be picking up most, if not all, of the work you have
been performing.’’ (G.C. Exhs. 1(k), (d).)
Drivers Rucker and Casto indicated during their testimony
that at the time of their layoff, Koenig informed them that
he had recommended them to Steel Transport and they were
to go to work there Monday. Rucker testified that Koenig
told him he was making the same arrangement for drivers
Tom Smith, Karl Hoffman, and Casto. The record reveals
that FMT sent the leased Ryder trucks driven by the employ-
ees laid off on September 18 to Steel Transport. Casto testi-
fied he drove one of the trucks so transferred and hauled the
same loads he had hauled while employed by FMT. Rucker
testified he drove the same truck at Steel Transport that he
had driven at FMT, and he hauled to and from the same lo-
cations he had hauled to and from while employed at FMT.
The drivers testified they were paid 24 percent of the load
by Steel Transport, while they had been paid 22 percent of
the load by FMT.
By letter dated October 19, 1992, Attorney Ross informed
the Union, inter alia:
I have been advised by my client that the transfer of
all of Ferrous Metal Transfer’s (FMT) business is tak-
ing longer than anticipated. While it is still the intention
of FMT to have a common carrier or carriers assume
all of the business, due to the indeterminate length of
time that this phaseout may take, if you wish to meet
and confer further, please contact me so that a mutually
convenient time and place for a meeting may be ar-
ranged. There are currently five employees remaining
on the payroll of FMT. As this number decreases, we
will periodically advise you if you so request.
Union Representative Davis testified the Union did not re-
spond to the described Ross letter because it was of the view
that FMT was going out of business for discriminatory rea-
sons.
From September 18 to November 13, 1992, Respondent
continued to operate Ryder-leased trucks driven by employ-
ees McClain, Brooks, Devic, Louis Davis, Alonzo Hender-
son, and Tommie Smith. Davis, Henderson, and Smith were
laid off on November 13. At the time he was laid off,
Koenig told Smith he had recommended him to Jim Bostic
at Steel Transport and Bostic would hire him. Smith indi-
cated he started to work on Monday, November 16, 1992, at
Steel Transport driving the same truck and making the same
runs he had made at FMT.
Employee Rucker testified that he and others drove for
Steel Transport until March 1993. He recalled that one Fri-
day the signs on the trucks were changed from Steel Trans-
port to Ohio Transport. In June 1993, he indicated the Ohio
Transport signs were replaced with MHM signs and MHM
took over the offices at the Ferragon, FMP premises pre-
viously occupied by Koenig and FMT.
The record reveals that drivers McClain and Devic contin-
ued to drive for FMT until it eventually ceased operation in
May 1993. The record fails to reveal when Brooks was laid
off.
Although FMT eventually ceased operations, the corpora-
tion remains active because it remains bound by the truck
leases it entered with Ryder, and, as Ed Gonzalez explained,
the litigation expense in the instant case is charged to FMT.
To enable FMT to make the lease payments due Ryder, mon-
eys collected by FMP pursuant to its PPD concept are trans-
ferred to FMT.
2. Respondent’s defense
Respondent presented its defense through testimony given
by Ed Gonzalez and Anthony Potelicki, and by placing cer-
tain documentary evidence in the record.
Gonzalez sought during his testimony to distance himself
from the union situation by claiming he did not meet with
the drivers until he met with them after July 1, 1992, and
read prepared speeches to them. Although Respondent elect-
ed to not place Koenig on the witness stand, it, through Gon-
zalez, placed in evidence a document entitled ‘‘Union Orga-
nization Advice to Management’’ (R. Exh. 13) which con-
tains a number of ‘‘do’s’’ and ‘‘don’ts’’ management figures
are to observe during a union organizational campaign. Gon-
zalez testified he instructed Koenig to conduct himself in ac-
cordance with the described document and he was of the
opinion that Koenig had followed his directions and said
nothing unlawful to the drivers during the campaign.
371FERRAGON CORP.
When he was asked if he provided the Union with any
reasons for wanting to get out of the trucking business, Gon-
zalez stated (Tr. 198–199):
A. Basically, they’ve been advised of four reasons.
One, we have limited management time. I told them
that we—because of the limited management time of
our entire staff, we have to concentrate all our re-
sources on the main animal, which is Ferragon. If we
didn’t—it’s like the example I said yesterday. If you
got a garage burning and a house burning, you’re going
to sacrifice the garage to save the house. That’s what
we did. We notified them of that, that that was one of
the reasons.
Number two, we had the safety concerns. They
admit it, it’s in their files. Some of the drivers dumped
some loads, and we had by the skin of our teeth barely
survived any tremendous casualties out there on the
street, so we had the safety concerns which they didn’t
know. They were blaming us for buying the wrong
chains, if that’s a reason. Regardless, that was a fact
that we had to consider, and we didn’t want to deal
with that.
Fourthly, there were financial losses—thirdly, there
were financial losses that we had to deal with both for
Ferragon and Ferrous Metal Transfer and Republic and
everything else we were doing. If you have limited time
and limited money and you have to preserve, all we
were going to preserve was the limited financial re-
sources we had and concentrate them on Ferragon.
. . . .
A. There was a fourth one. I’m going to think about
it in just a second. I can’t think of it right now. There
was four reasons. There’s always been four reasons.
Q. What—
A. Oh, management time—from an executive stand-
point, we didn’t have the financial resources to deal
with it, we had the safety concerns, and we didn’t have
operating management that knew what they were doing.
Gonzalez testified that when FMT was created, he elected
to incorporate it separately because of liability concerns and
due to the fact that it was an entirely different type of busi-
ness than steel processing. He indicted he entered lease
agreements with Ryder so he could get in the trucking busi-
ness fast and perhaps get out fast also.
According to both Gonzalez and Potelicki, Respondent’s
business operations, including Republic Metals, FMP, and
FMT, suffered severe losses in calendar year 1991. In sup-
port of that assertion, Respondent placed in evidence as Re-
spondent’s Exhibit 8, ‘‘Ferragon Corporation’s Balance Sheet
and Statement of Operations’’ covering the years 1989
through 1992. The statement of operations document reveals
that in 1991, Republic Metals lost $393,642 and
Ferragon/FMP lost $1,099,486. Gonzalez indicated the loss
sustained by Republic caused him to close that division of
Ferragon. While Gonzalez claimed he talked about the possi-
bility of closing the trucking operation as early as January
1992, he admitted he had not discussed that possibility with
Koenig.
Gonzalez and Potelicki indicated that by early 1992,
Ferragon’s 1991 losses and lack of support by its banking in-
stitution placed Ferragon in a position wherein it was unable
to pay its creditors in timely fashion. Through Potelicki, Re-
spondent placed in evidence several documents reflecting its
situation. Thus Respondent’s Exhibit 9, a letter from Ryder
dated June 8, 1992, reveals that invoices for the period
March 1 through June 1, 1992, in the amount of $133,531.81
were unpaid. Respondent’s Exhibit 10 reveals that various
collection agencies, attorneys, etc., were seeking payment of
$593,067.35; and Respondent’s Exhibits 11(a) and (b) reveal
amounts sought in some 40 lawsuits filed against Ferragon
as well as the disposition of such lawsuits.
In early 1992, Respondent hired a firm called the Packland
Group in an effort to solve its financial problems. Through
the efforts of that group, Ferragon successfully caused a
number of its major creditors to agree to accept full payment
of amounts Ferragon owed them in payments which were to
be spread out over 5 years and/or 60 months. Potelicki indi-
cated Ferragon achieved such agreements in late 1992.
Although Respondent admittedly did not tell the Union it
had decided to close FMT for economic reasons, it claims
in its brief that Ferragon’s economic condition in 1992 was
the major reason for the decision to close the trucking oper-
ation. In support of that contention, it points to General
Counsel’s Exhibit 24, the ‘‘Balance Sheet/Statement of Oper-
ations for FMT’’ for the years 1989 through 1992. The state-
ment of operations portion of that document shows, inter
alia, that while FMT had operating profits in the range of
$37,000 to $199,000 during the years covered, they ended up
with losses ranging from $40,000 to $200,475 during years
1989–1991, and net income of $20,651 in 1992 after ‘‘Facil-
ity Fee Expense’’ ranging from $40,000 in 1989 to $210,000
in 1992 had been paid to Ferragon. Significantly, while Gon-
zalez claimed he took no salary from FMT during the years
in question, Potelicki indicated the ‘‘Facility Fee Expense’’
covered such things as salaries and benefits of executive per-
sonnel (of Ferragon), office supplies, rent, security, and par-
tial salaries of three employees in FMP’s accounting depart-
ment. With respect to the ‘‘Cost of Sales’’ portion of the
statement of operations, Potelicki testified it documented
wages paid by FMT to drivers and Koenig, payroll taxes re-
lated to wages, benefits such as insurance, lease cost of
trucks, fuel, repairs and maintenance, and chains and other
items purchased.
With respect to the bargaining sessions, Gonzalez admitted
he told the union negotiators at the September 2 session that
he was not necessarily interested in proposals for a collec-
tive-bargaining agreement. He indicated that instead, he
wanted proposals that might cause him to change his mind
about closing FMT. Without indicating he told the Union
what he specifically desired, he testified that to change his
mind about closing FMT, the Union would have had to offer
something like a million dollar loan from their pension fund.
Analysis and conclusions
With respect to the alleged 8(a)(3) violations, the evi-
dentiary burden of the parties is set forth in Wright Line, 251
NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982), where the Board stated (at
1089):
First, we shall require that the General Counsel make
a prima facie showing sufficient to support the infer-
ence that protected conduct was a ‘‘motivating factor’’
372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the employer’s decision. Once this is established, the
burden will shift to the employer to demonstrate that
the same action would have taken place even in the ab-
sence of protected conduct.
I have found, supra, that the instant Respondent sought to
cause its drivers to refrain from obtaining union representa-
tion by engaging in numerous violations of Section 8(a)(1)
of the Act. Such conduct compels a conclusion that Respond-
ent possessed marked antiunion animus. As found, during the
union organization campaign, the drivers were repeatedly
threatened with plant closure if they selected the Union as
their bargaining representative, and their manager, Koenig,
pointedly predicted that union instigators, Dargocey, Ramos,
and Bristor would be fired if the Union was voted in. Within
a short time after the Union won the election and was cer-
tified as s the exclusive representative of Respondent’s driv-
ers, Dargocey, Ramos, Bristor, and five other drivers (Casto,
Hill, Hoffman, Pounds, and Rucker) were terminated and
their work was subcontracted out. A short time later, three
additional drivers were terminated under similar cir-
cumstances (Davis, Henderson, and Smith). Finally, the
record reveals that three drivers known by Respondent to
have cast no votes during the election (McClain, Brooks, and
Devic) were retained in the employ of Respondent long after
it had informed the Union it was going out of business. In
my view, the foregoing sufficiently supports an inference that
the protected conduct of its employees was a ‘‘motivating
factor’’ in Respondent’s decision to contract out the work
performed by employees Dargocey, Ramos, Bristor, Casto,
Hill, Hoffman, Pounds, and Rucker on September 18, 1992,
and that performed by employees Henderson, Smith, and
Davis on November 13, 1992.
Respondent sought to show that it subleased the Ryder
trucks to Steel Transport, thereby necessitating the termi-
nation of the drivers released on September 18 and Novem-
ber 13, 1992, for valid business reasons. As indicated, supra,
the assigned reasons were: Lack of management time for
FMT, safety concerns, and the existing of a financial crisis
which threatened the continued existence of FMP. I find the
evidence offered by Respondent in support of its reasons for
subleasing the Ryder trucks and causing Steel Transport to
accomplish its PPD work to be unconvincing.
With respect to alleged safety concerns, the only concern
described by Ed Gonzalez was a concern that coils might fall
off of trailers and expose Respondent to liability. Union Rep-
resentative Davis testified that the coil situation was dis-
cussed at the September 2, 1992 bargaining session and he
suggested that Respondent purchase chains with the nec-
essary strength if it wished to assure that coils not fall off
of trailers. Further, Ed Gonzalez indicated during his testi-
mony that Respondent purchased insurance on the trucks per-
forming the PPD service through an arrangement with Ryder.
The record fails to convince me that Respondent had the
safety concerns it professed to have.
Turning to ‘‘management time,’’ Gonzalez explained that
he was not talking about the day-to-day management deci-
sions made at FMT as Koenig made those decisions. Instead,
he indicated his FMT management time was spent as follows
(Tr. 239):
Well, it’s mainly conceptual and commercial think-
ing and where it’s going to a head and how to organize
its financials and whether I want to expand it or con-
tract it, those kinds of considerations. It isn’t like I go
there and say, ‘‘Those loads go there, and those drivers
go there.’’
While General Counsel’s Exhibit 24 reveals that Ferra-
gon/FMP did, in fact, receive extremely large sums of money
from FMT for, inter alia, the management time of Gonzalez,
Miles, and Potelicki, the record fails completely to describe
with any degree of specificity the nature of the FMT related
management services provided by Gonzalez and Miles. I am
not persuaded by the instant record that Gonzalez devoted
extensive time to management matters involving FMT during
the spring, summer, and fall of 1992.
Respondent indicates in its brief that the financial condi-
tion of Gonzalez’ operations during late 1992 was the prin-
cipal reason for the decision to cause an unrelated company
to assume responsibility for the Ryder leases and the trans-
portation functions necessitated by the PPD service that Re-
spondent had successfully initiated. The record does, in fact,
reveal that the FMP division of Ferragon, which employs ap-
proximately 100 employees, was in financial difficulty by
mid-1992 and was unable to pay its suppliers in timely fash-
ion. The record also reveals that the Spectrolux operation
was part of the problem as machinery valued at some $1.5
million had been delivered to it but the bank had reneged on
a promise to finance the acquisition and Ferragon did not
have the operating capital to pay for the machinery. Simi-
larly, the record reveals that the Republic Metals division
had incurred losses slightly in excess of $393,000 before a
decision to close that operation was made. Indeed, it appears
Respondent was certainly in need of the services of the
Packland Group in 1992 if it was to avoid a bankruptcy situ-
ation.
During his testimony, Potelicki explained that portion of
General Counsel’s Exhibit 24 entitled ‘‘Ferrous Metal Trans-
fer Co. Statement of Operations.’’ While the exhibit reveals
that FMT had significant gross profits in each year ($37,043
in 1989; $199,060 in 1990; $48,983 in 1991; and $195,651
in 1992), it indicates that ‘‘Facility Fee Expense’’ paid to
Ferragon in each of those years ($40,000 in 1989; $200,475
in 1990; $180,000 in 1991; and $210,000 in 1992) caused
FMT to experience losses in all years but 1992. As revealed,
supra, when he was asked to indicate what Ferragon pro-
vided to FMT to earn the facility fees it levied on the truck-
ing company, Potelicki replied the services included salaries
and benefits of executive personnel of Ferragon, office sup-
plies, rent, security, and partial salary expense of the three
employees in FMP’s accounting office. Significantly, no
breakdown of the fee allotted to each was provided.
In the circumstances described, it would appear that
Ferragon was extracting significant sums of money from the
FMT operation each year in the form of ‘‘facility fees.’’
While it would appear that Ferragon/FMP could no longer
charge FMT a significant facility fee once the Ryder trucks
were subleased to Steel Transport, General Counsel Exhibit
24 reveals that during the period September 18 to December
31, 1992, Steel Transport, after paying its drivers 24 percent
of the load rather than 22 percent of the load FMT had paid
them, remitted ‘‘Agency Freight Commission Income’’ in the
373FERRAGON CORP.
4 Respondent suggests that under Textile Workers Union v. Dar-
lington Mfg., Co., 380 U.S. 263 (1965), plant closure is permissible
absent a showing that the purpose and effect of the closure was to
chill unionism at any of the employer’s remaining plants. The Su-
preme Court, however, excepted from the reach of its decision, situa-
tions analogous to the instant case ‘‘where a department is closed
for antiunion reasons, but the work is continued by independent con-
tractors.’’ Id. at 272–273 fn. 16.
amount of $35,000 to Ferragon/FMP. Viewing the facts out-
lined, it appears to me that the entity which accomplished the
transportation of steel pursuant to Respondent’s PPD concept
earned significant profits. I find Respondent’s claim that it
decided to close FMT because it operated at a loss in all
years but 1992 to be unconvincing due to the fact that
Ferragon/FMP was receiving substantial ‘‘facility fees’’ from
FMT during the years indicated.
Briefly recapitulated, the record reveals that eight employ-
ees voted for union representation during the July 17, 1992
election. Facts set forth, supra, warrant an inference that Re-
spondent knew the identity of the eight as well as the three
employees who voted against the Union. During the entire
organization campaign, Respondent’s manager Koenig told
the drivers their jobs would be abolished if they voted for
the Union. Koenig expressly indicated that the instigators,
Dargocey, Ramos, and Bristor were going to be fired because
they spearheaded the organization drive. Shortly after the
Union was certified as the exclusive representative of Re-
spondent’s drivers, the Ryder trucks driven by those employ-
ees who had voted for the Union were subleased to Steel
Transport and all of the drivers except McClain, Brooks, and
Devic, the three drivers Koenig had identified as ‘‘no’’ votes,
were terminated. Having carefully considered the reasons
given by Respondent for its decision to sublease only those
trucks driven by prounion employees, I find those stated rea-
sons for its action to be mere pretexts advanced to cover the
real reason for its actions—the fact that the drivers obtained
union representation. Similarly, I do not credit Gonzalez’ un-
substantiated claim that he originally considered closing
FMT as early as January 1992. The record facts discussed
above convince me the decision to alter the FMT operation
was made when Respondent lost the election.
In sum, I find that the record warrants a conclusion that
Respondent subleased the trucks driven by all its drivers ex-
cept McClain, Brooks, and Devic in retaliation for its driv-
ers’ selection of the Union as their bargaining agent. I find
that Respondent has failed to demonstrate that it would have
subleased those trucks in the absence of its drivers’ participa-
tion in union activities.4 Accordingly, I find, as alleged, that
by discharging drivers Dargocey, Ramos, Bristor, Smith,
Davis, Henderson, Hoffman, and Rucker, Respondent vio-
lated Section 8(a)(1) and (3) of the Act.
E. The Alleged 8(a)(5) Violation
As indicted supra, Respondent and the Union held negotia-
tion sessions on September 2 and 10, 1992. While certain
terms and conditions of employment were briefly discussed
and the Union presented Respondent with a proposed con-
tract, Respondent indicated it was interested only in propos-
als which might cause Ed Gonzalez to change his mind about
closing the FMT operation. Respondent did not suggest what
types of proposals might cause Gonzalez to change his mind,
and the Union failed to make any proposals which were felt
by Respondent to be significant.
Respondent contends the Supreme Court’s decision in
First National Maintenance v. NLRB, 452 U.S. 666 (1981),
is controlling and it cannot be found to have refused to bar-
gain with the Union in violation of Section 8(a)(5) of the
Act. Specifically, it contends the facts warrant a conclusion
that its decision to sublease the Ryder trucks was made for
economic reasons other than the cost of labor and the deci-
sion resulted in a fundamental change in the nature and
scope of Respondent’s business. The General Counsel con-
tends First National Maintenance is not applicable because
Respondent’s actions constituted ‘‘Fibreboard subcontract-
ing’’ and the decision to close was unlawfully motivated.
In agreement with the General Counsel, I find that where,
as here, a decision to subcontract is motivated by antiunion
reasons, the employer is not exempt from a bargaining obli-
gation under First National Maintenance. As observed in
Continental Winding Co., 305 NLRB 122, 125 (1991), dis-
crimination on the basis of union animus cannot serve as a
lawful entrepreneurial decision.
Pointing to the events which occurred during the Septem-
ber 2 and 10 bargaining sessions which are described supra,
Respondent contends it satisfied its bargaining obligation if
it had one. I disagree as the record clearly suggests that Re-
spondent had decided before it ever met with the Union that
it was going to sublease the trucks driven by those drivers
who voted for union representation. In my view, Respondent
was merely going through the motions at the bargaining ses-
sions and the Union was all but faced with a ‘‘fait
accompli’’ at the outset of negotiations.
In sum, I find that by deciding to sublease trucks which
it used to accomplish pickup and delivery service for FMP
to Steel Transport for unlawful reasons, Respondent pre-
cluded the Union from engaging in meaningful bargaining
concerning the decision to sublease the trucks and it thereby
violated Section 8(a)(1) and (5) of the Act.
CONCLUSIONS OF LAW
1. Ferragon Corporation, Ferrous Metal Processing, Inc.,
and Ferrous Metal Transfer, Inc. constitute a single-inte-
grated business and a single employer engaged in commerce
within the meaning of Section 2(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, the Union has been the exclusive
collective-bargaining agent of the employees in the appro-
priate unit set forth below for the purpose of collective bar-
gaining within the meaning of Section 9(a) of the Act.
All truck drivers at the Employer’s 11103 Memphis
Avenue, Brooklyn, Ohio facility but excluding all office
clerical employees and all professional employees,
guards and supervisors as defined in the Act.
4. By unlawfully interrogating employees regarding their
participation in union activities, soliciting employees’ griev-
ances, and promising to remedy them during a union organi-
zation campaign, threatening to take away employee benefits
and start bargaining at ‘‘rock bottom’’ if they vote for the
Union, threatening that drivers will lose their jobs if they
vote for a union, threatening plant closure if employees ob-
374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 See Lear Sigler, Inc., 295 NLRB 857 (1989).
tain union representation, threatening that employees’ job
would be in jeopardy if they vote for the Union, telling em-
ployees Respondent intended to get rid of named employees
because they started the union stuff, telling employees they
would be laid off and their trucks would be turned in if they
voted for the Union, seeking to create the impression that the
union activities of its employees are under surveillance, by
interrogating an employee regarding whether he would cross
a picket line and by threatening him with discharge if he did
not cross it, and by telling an employee that drivers were not
invited to attend a company picnic because they were union
troublemakers, Respondent violated Section 8(a)(1) of the
Act.
5. By contracting out the work previously performed by
employees Tommie Smith, Louis Davis, Alonzo Henderson,
Mark Bristor, Rafael Ramos, Karl Hoffman, Carl Dargocey,
and Jackie Rucker, and by discharging the named employees,
with an object of retaliating against employees because they
selected the Union as their bargaining agent, Respondent vio-
lated Section 8(a)(1) and (3) of the Act.
6. By deciding unilaterally to sublease trucks which it used
to accomplish pickup and delivery service for FMP to Steel
Transport for unlawful reasons, Respondent precluded the
Union from engaging in meaningful bargaining concerning
the decision to sublease the trucks and it thereby violated
Section 8(a)(1) and (5) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain un-
fair labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that Respondent unlawfully subleased its
trucks as part of a plan to punish certain of its employees
for selecting the Union as their bargaining agent, and, in the
absence of evidence which would demonstrate that a require-
ment that restoration of the status quo ante would be unduly
burdensome on it, I shall recommend that Respondent be re-
quired to reopen and reestablish its FMT operation in order
to restore the status quo ante existing prior to its commission
of unfair labor practices.5 After having done so, it will be
required to offer Tommie Smith, Louis Davis, Alonzo Hen-
derson, Mark Bristor, Rafael Ramos, Karl Hoffman, Carl
Dargocey, and Jackie Rucker immediate and full reinstate-
ment to their former positions of employment, without preju-
dice to their seniority or other rights and privileges, and
make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from the date of their termi-
nation to the date of proper offer of reinstatement, less any
net interim earnings, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), plus interest as computed in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
[Recommended Order omitted from publication.]