George C. Shearer Exhibitors

National Labor Relations Board - Board Decisions

Nov 9, 1979

246 N.L.R.B. 416 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert G. Shearer d/b/a George C. Shearer Exhibi-
tors Delivery Service and General Teamsters,
Chauffeurs and Helpers Local 249, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America. Case 6-CA- 11279
November 9, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENELLO
AND TRUESDALE
On March 2, 1979, Administrative Law Judge Joel
A. Harmatz issued the attached Decision in this pro-
ceeding. Thereafter, Respondent filed exceptions and
a supporting brief, and the General Counsel filed a
brief in answer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge, to the
extent consistent herewith, and to adopt his recom-
mended Order, as modified herein.3
' Respondent has requested oral argument. This request is hereby denied
as the record, exceptions, and bnefs adequately present the issues and the
positions of the parties.
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
an administrative law judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
Additionally, we are satisfied that Respondent's contention that the Ad-
ministrative Law Judge was biased is without merit. In our opinion, there is
nothing in the record to suggest that his conduct at the hearing, his resolu-
tions of credibility, or the inferences he drew were based on either bias or
prejudice.
3 Contrary to the Administrative Law Judge, we do not at this time find
Air Parcel Delivery Service, Inc., to be derivatively liable as Respondent's
alter ego for the remedying of Respondent's unfair labor practices. Air Parcel
was not named as a party in this unfair labor practice proceeding, nor was it
afforded fair notice and an opportunity to litigate fully the question of its
alter ego status. Although Air Parcel's principal testified at the hearing, they
did so only in their capacity as representatives of Respondent, without notice
that they would be held to answer for Air Parcel. Under the circumstances,
we cannot say that Air Parcel has had its "day in court" to defend against
express charges that it is Respondent's alter ego and liable as such to remedy
the unfair labor practices found herein. Accordingly, we shall delete refer-
ences to Air Parcel in the recommended Order and notice. We note, how-
ever, that the General Counsel may yet plead and litigate the question of Air
Parcel's derivative liability during the compliance stage of this proceeding.
See Southeastern Envelope Co., Inc. & Southeastern Expandvelope, Inc. (Diver-
sifiedAssembly, Inc.), 246 NLRB 423 (1979): Coast Delivery Service, Inc., 198
NLRB 1026 (1972). We agree with our dissenting colleague that the prec-
edent cited clearly does not preclude full and fair litigation of derivative
liability issues before compliance, but in this case no such litigation has yet
taken place.
Although Chairman Fanning concurs in Southeastern Envelope Co., supra,
he would affirm the Administrative Law Judge here because he thinks, as did
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Robert
G. Shearer d/b/a George C. Shearer Exhibitors De-
livery Service, Monroeville and Coraopolis, Pennsyl-
vania, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order, as so modified:
1. Substitute the following for paragraph 2(c):
"(c) Post at its places of business in the greater
Pittsburgh, Pennsylvania, metropolitan area copies of
the attached notice marked 'Appendix.' 2 0 Copies of
said notice on forms provided by the Regional Direc-
tor for Region 6, after being duly signed by Respon-
dent's representatives, shall be posted by Respondent
immediately upon receipt thereof and be maintained
by it for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps
shall be taken by Respondent to ensure that said no-
tices are not altered, defaced, or covered by any other
material."
2. Substitute the attached notice for that of the
Administrative Law Judge.
the Administrative Law Judge, that the alter ego issue has been sufficiently
litigated and due process has been satisfied. Chairman Fanning does not
understand Southeastern Envelope to preclude litigation of derivatlive liability
before compliance.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with
going out of business and the loss of their jobs if
they designate a labor organization as their rep-
resentative.
WE WILL NOT offer benefits to our employees
to dissuade them from designating a union as
their representative.
WE WILL NOT discourage employees from en-
gaging in activity on behalf of General Team-
sters, Chauffeurs and Helpers Local 249, a/w In-
ternational Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by dis-
charging and refusing to reinstate, or by in any
manner discriminating against employees with
regard to their hire, tenure, or any other term or
condition of employment.
246 NLRB No. 62
416
(;EOR(;E C. SHEARER EXHIBITORS
WE Wll.L NOT refuse to bargain in good faith
with General Teamsters, Chauffeurs and Helpers
Local 249. a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. as exclusive collective-hbar-
gaining representative of our employees de-
scribed below, by unilaterally changing their
terms or conditions of work, without affording
said Union prior notification, and an opportuni-
ty to consult and negotiate with respect to such a
decision. The appropriate bargaining unit is:
All full-time and regular part-time truckdriv-
ers and dock workers employed b Robert G.
Shealer d/b/a George C. Shearer Exhibitors
Delivery Service at its Coraopolis. Pennsylva-
nia, facility excluding office clerical employ-
ees and guards. professional employees and
supervisors as defined in the Act.
WEi WlLt. NOt in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of their right to self-organization, to form,
join, or assist General Teamsters, Chauffeurs and
Helpers Local 249. a/w International Brother-
hood of Teamsters, Chauffeurs. Warehousemen
and Helpers of America. or an3 other labor or-
ganization, to bargain collectively through repre-
sentatives of their own choosing, to engage in
concerted activities for the purpose of collective
bargaining or other mutual aid or protection as
guaranteed in Section 7 of the Act, or to relrain
from any and all such activities.
WE wi.L offer immediate reinstatement to
John Smay, Albert Altman. and James Grasin-
ger, and any other employee terminated on April
24, 1978, as part of the layoff found by the Na-
tional Labor Relations Board to have been un-
lawful, and WE WILL make them whole for any
loss of pay they may have suffered by reason of
our discrimination against them, with interest.
ROBERT G. SHEARER D/B/A GEORGE C.
SHEARER EXHIBITORS DEIIVERY SERVICE
DECISION
STATEMENT OF THE CASE
JOEL A. HARMAZ, Administrative Law Judge: This case
was heard on November 13, 1978, in Pittsburgh, Pennsylva-
nia, upon an unfair labor practice charge filed on May 26.
1978, and a complaint issued on August 1. 1978, alleging
that Respondent engaged in independent violations of Sec-
tion 8(a)(1) of the National Labor Relations Act, as
amended, and violated Section 8(a)(3) by discharging eight
drivers, all to discourage union activity. Finally, the com-
plaint alleges that Respondent violated Section 8(a)(5) and
(1) of the Act by unilaterally effecting changes in working
conditions without notifying or bargaining with the Union
as the certified representative of its employees. In its duly
filed answer. Respondent denied that any unfair labor prac-
tices were committed. After close of the hearing. brief's were
filed on behalf of the General Counsel and the Respondent.
Upon the entire record, including my opportunity to ob-
serve directly the witnesses while testifying and their de-
meanor. and upon due consideration of the post-hearing
briefs. I make the following:
I:IND)INGS 01- A('CI
I. Jt'RIS)I(CTION
Respondent is a sole proprietorship with a place of busi-
ness located in Monroeville. Pennsylvania. from which. at
tinmes material to this proceeding. it was engaged in the
business of providing trucking services to various concerns.
During the 12-month period preceding issuance of the com-
plaint. a representative period, Respondent grossed in ex-
cess of $50.000 from services performed for firms directly
engaged in interstate commerce.
The complaint alleges, the answer admits, and I find that
at all times material herein. Respondent has been an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
11. I111 I. ABOR O)R(i& NIZA I ION INVOI VED
The complaint alleges, the answer admits, and I find that
General Teamsters. Chauffeurs and Helpers Local 249, a/w
International Brotherhood of Teamsters. Chauffeurs, Ware-
housemen and Helpers of America. is, and has been at all
times material herein. a labor organization within the
meaning of Section 2(5) of the Act.
111. 1111i Al.l.L:(l.I) LNAIR LABOR PRA(cTIcES
A. Preliminan, Statement
On March 8, 1978, an election by secret ballot was con-
ducted by the National Labor Relations Board among Re-
spondent's previously unrepresented truckdrivers and dock-
workers. The employees, by a majority vote, designated the
Union as their representative and, pursuant thereto, on
March 15. 1978. the Union was certified as exclusive statu-
tory representative of said employees. At that time. Re-
spondent's trucking services consisted of two distinct lines.
One involved the delivery of movie film between theaters
and central film repositories, and the second involved a lo-
cal air freight delivery service.
Respondent was operated as a sole proprietorship owned
entirely by Robert G. Shearer, but managed by his son,
George C. Shearer, the individual whose name appears in
the title of the firm. As shall be seen infra, Respondent as of
April 24, 1978, terminated all air freight operations. Exist-
ing air freight accounts and certain equipment was passed
on to a newly formed corporation, "Air Parcel Delivery,
Incorporated." Robert G. Shearer and George C. Shearer
each owned one-half of the outstanding stock of the new
corporation, which apparently engaged exclusively in air
freight delivery ser'ice.
417
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint in this proceeding raises three major areas
of concern. The first relates to the preelection period and
alleged independent violations of Section 8(a)( I), through
which Respondent allegedly sought to induce employees to
refrain from supporting the Union. The second relates to
the postelection period, with the focal point being the claim
that Respondent violated Section 8(a)(3) and ( I ) of the Act
by terminating all of its drivers on April 24, 1978, in repri-
sal for union activity, as well as further allegation that Re-
spondent refused to bargain in good faith with the statutory
representative by unilaterally effecting operational changes
which resulted in those layoffs and other adjustments in
conditions of' work. The final area of inquiry is primarily of
remedial significance. pertaining as it does to whether Air
Parcel Delivery, Incorporated, should be deemed liable
jointly with Respondent for purposes of redressing any un-
fair labor practices, either as a successor or alter ego.
The credited facts show that for some time prior to the
advent of union activity, Respondent was considering the
possibility of converting certain drivers to the status of'
owner-operators. In accordance therewith, in either No-
vember or December 1977, drivers were instructed to keep
records of their daily routes in order that they might receive
some measure of information as to whether or not such
conversion would prove economically rewarding. George
Shearer testified credibly that in late January 1978' he
spoke to drivers John Smay, Albert Altrian, James Grasin-
ger, and Thomas DelVecchio, informing them of his inten-
tion to meet with them and their wives concerning the
owner-operator issue as soon as he could find a free eve-
ning. He went on to testify credibly that on either Friday,
February 3, or Saturday, February 4, he informed these
four drivers, whom he described as the best in Respondent's
employ, that said meeting would be held on Tuesday, Feb-
ruary 72
On Saturday, February 4, the four drivers went to the
union hall, where each signed an authorization card. On
Monday, February 6, the Union filed a representation peti-
tion in Case 6-RC-8083. A copy of that petition was admit-
tedly received by George Shearer on February 7.
The meeting with the four drivers and their wives took
place as scheduled on the evening of' February 7. It opened
with George Shearer informing them of his notification that
the men were seeking union representation. Shearer went
on to admonish the men that they were "killing the goose
that laid the golden egg," further stating that he could not
afford to work under a union contract and that if the driv-
ers persisted in seeking union representation, it would put
him out of business. As an alternative, Shearer suggested
that the men divert sums to be expended for union initi-
I Unless otherwise indicated all dates refer to 1978.
2To the extent that the testimony of Smay, Altman, and Grasinger is
inconsistent with that of Shearer in this regard I discredit them. A percepti-
ble sensitivity existed among them as to the background of discussions with
the Shearers concerning the owner-operator issue. The testimony of Smay
seemed hedged and lacking in candor, with the progressively more revealing
testimony of Grasinger and Altman suggesting a calculated retreat from an
initial interest in mitigating the true facts in this regard. The testimony of the
drivers that they were invited to the February 7 meeting only after they had
been to the union hall was considered unreliable. Indeed, the uncertainty
reflected in their testimony as to why they went to the Union in the first
place, and the timing of critical events, convinces me that they went to the
Union out of concern for the Shearers' previously expressed interest in alter-
ing their employment status.
ation fees to the hire of a lawyer who could draw up a
contract, which they could submit to him for his approval)
Following discussion of the upstart organization effort,
George Shearer proceeded to explain the nature of the
owner-operator concept and how it would be beneficial to
the men. Having considered this proposal, the drivers in
attendance decided against the owner-operator concept:
their position in this regard was not at the time communi-
cated to the Shearers.
On Wednesday, February 8, Robert Shearer told Alt-
man, Smay, and Grasinger "that he was upset that . . .
[theyl ... did what ... [they] ... did and he would stay in
business as long as he could, but knew this was going to put
him out of business eventually."4
Thereafter, about 2 weeks prior to the election, Robert
Shearer drafted individual employment contract with an
effective date of March 1, 1978. 5 The agreements listed
work rules and benefits, which included a wage increase of
$1 per hour. Signature spaces were provided for employees
Smay, Altman, Grasinger, Kenny Wagner, Thomas Del-
Vecchio, Kevin Jeswald, and Denny Collins. At least Gra-
singer, Smay. and Altman were afforded the opportunity to
execute such contracts, but none signed. George Shearer
admittedly drafted this document for the purposes of af-
fording employees an alternative to union representation.
In discussing the contract terms with Altman, Shearer indi-
cated that "there was no way that he could afford a union,
and if . . . [they] . . . persist[edl in the union thing that it
would probably put him out of business, therefore ... [the
employees] . . . would be hurting [them]selves and that's
why . . . the contract would be more beneficial . . . rather
than persist with union affiliation."'
As indicated, the election was held on March 7, 1978,
and according to the testimony of George Shearer, all em-
ployees voted in favor of union representation. The next
day, March 9, Shearer admittedly telephoned Smay, Gra-
singer, and Altman. His own testimony as to what
prompted him to make these calls is as follows:
[T]he day after the election . . . I was very depressed
.... I thought I had three friends working for me ....
I had nine people working for me, and I thought I had
three friends.
I was very upset with what they did to me.
As to what was said, Smay relates that George Shearer
repeated that the Union would run him out of business,
The contract contemplated by the suggestion obviously was an individ-
ual employment contract. George Shearer admitted to knowledge at the time
of this meeting that the drivers had been dissatisfied with their benefits.
' The statements concerning the possibility of a closedown made by
George Shearer on February 7 and Robert Shearer on February 8 are based
upon the credited testimony of Smay, Grasinger, and Altman. To the extent
that their testimony conflicts with that of the Shearers, in this instance, I
believed the drivers. Robert Shearer admitted to telling the drivers "several
times, that the way things were working out, that if we got the union in there,
we just couldn't make ends meet, that's all." George Shearer admittedly was
"upset" prior to the February 7 meeting, because he received the letter about
the Union, and concededly discussed the issue with the men on that occa-
sion. He did not testify as to the words used in that connection, but did deny
that he "ever threatened these men that ... [hel ... would fire them or they
would lose their job if they voted for the union." This conclusory testimony
does not squarely contradict that of the drivers as set forth above.
See G.C. Exh. 4.
6 Based upon the credited. uncontradicted testimony of Albert Altman.
418
(i;OR(il C. SHEARER XIIIBI O()RS
that he did not expect Smay to do w hat Sma had done to
him. and that if it took the rest f his life. Shearer would get
even. In like ashion. Altman testified that during his tele-
phone conversation, George Shearer accuLsed Altiman; of
screwing him up and stated he would get even i it was the
last thing he did. going on to indicate that he would cut ol
communication between their wives, who had been
schoolmates, with all social relationships severed. Similarly.
Grasinger testified that during his telephone conversation.
George Shearer informed him that he was unhappy that
Grasinger had signed up with the nion. swore at him,. and
stated that he would get even.'
On April 24, Smay. Grasinger. and Ahitlan were told to
report to Robert Shearer's residence in Monroeville. On
that occasion. Robert Shearer inlormed the men that the'
were no longer needed. They were given letters which
stated as follows:
As of April 21, 1978 George C. Shearer's lIxhibitors
Deliver) Service has changed policS of delic ering our
freight. We are not using our rucks and therefore do
not need truck drivers. We thank ouL for \our past
services.
RespectfIull 5 Yours
s,/ Robert (i. Shearerf
B. ('o'ncludlig 'mlhdie
1. Interference restraint. ad coercion
The credible evidence establishes that on repeated occa-
sions Robert Shearer and George C. Shearer threatened
employees with possible closure in consequence of their
union activity. As the General Counsel correctl1 observes.
such statements are deemed unlawful unless "carefullI
phrased on the basis of objective fact to convey an employ-
er's belief as to demonstrably probable consequences be-
yond his control . ... L. R. B v. (,issel Packing (Co,. I,,.,
395 U.S. 575, 618 (1969). The coercive statements made by
the Shearers fail to comply with this requirement. Since
they were little more than self-serving expressions of fear
which were devoid of confirmation through objective facts.
the statements were pregnant with threatening implications.
and are not to be lightly regarded as legitimate argumenta-
tion of a type that employees could evaluate. I find that
with respect to each of these incidents. Respondent in-
dependently violated Section 8(a)(1) of the Act. It is further
concluded that Respondent again violated Section 8(a)(1)
by offering a formal contract to employees, during the pre-
election period, which included a wage increase and which
was admittedly offered as an alternative to union represen-
tation.9
' The testimony of Smay. Grasinger, and Altman is preferred over that of
George Shearer in this instance. The latter confessed to a lack of indepen-
dent recollection of what was said during the three telephone conversations.
Accordingly, this denial that any threatening remarks were made is regarded
as unreliable The testimony of the drivers, on the other hand, considered in
the light of George Shearer's admitted state of mind on thai .casion. is
supported by the probabilities
See, e.g., G.C Exh. 6.
See the testimony of George C. Shearer
2. he alleged discrimination
On April 24. Respondent ceascd its air freight operations.
All drivers on its pasroll al that time werc terminated. in-
cluding Sma, Altman. and Grasinger.
l his action hby Robert Shearer did not mark an end t the
Shearers' inolvemenl in the air freieht business. On March
30). Air Parcel Delivery Inc., was incorporated. O()nership
of that corporation was eenls divided between (iGeorge and
Rohert Shearer. It was managed exclusivel b (George. Al-
though two trucks previousls owned bh Respondent were
transferred for use of the new firm," Robert Shearer appar-
ently received no compensation for those vehicles. Air ser-
vice operated out of the same locations previously utilized
hb Respondent in eflecting its air freight operations. T he air
freight accounts formerly held by Respondent ere picked
up and serviced by Air Service.
The precise reason fior this change in structure and Roh-
ert Shearer's gratuitous translfer of goodwill, equipmlent.
and other aspects ol' his business to the ne, corporationi
onl_ aguelv emerged frolm the testimony of Robert Shear-
er. George Shearer, who acknowledged that he formerl,
ma;naged Respondent flr his tather, and was paid a weekly
salar-. testified that the air freight business floAing from
Burlington-Northern Air reight. one of Respondenit's cus-
tomers. had been handled or some time through the use of
owner-operators. He testified that because of this experi-
ence with the Burlington-Northern account, it was decided
that the owner-operator concept was a good one and that
the air freight business would be converted to thalt form of
operation. Furthermore. as his father was 62 years old and
wanted to get out oft the business. he simply took oer the
accounts. Hovever, the reliance of Air Parcel upon oner-
operators had not been consumlmated tor all air freight otp-
erations as of November 13 1978. the date of the hearing
herein, for at that time. Air Parcel continued to directlS
emplov two drivers w ho were not ovner-operators. The tes-
ntimon of George Shearer makes clear that Air Parcel did
not oiler those jobs to Smay. Grasinger. or Altman. whom
he described as his best drivers, because as is obvious from
his testimony, their support of the Union "hurt. so had"
that he did not care to have anything more to do with them.
Upon analysis, apart from the results of the election con-
ducted in March. and Respondent's overt hostility to the
choice made by employees on that occasion, the record
does not disclose a logically cohesive and persuasive justifi-
cation for the events of April 24. George Shearer had en-
gaged in management of the Respondent, a firm which bore
his name, and neither Robert Shearer's age nor his lack of
interest in continued involvement with air freight served as
a persuasive justification for a departure from the preexist-
ing business structure. Equally unpersuasive was that as-
pect of the defense derived from extensive testimony) elic-
ited concerning the owner-operator concept.
In this latter connection, according to the testimony of
'° Rsbert Shearer testified that n 977 Respondent operated eight trucks.
One of those trucks was involved in a wreck, another broke down and was
sold fiorjunk. A third truck was sold and another rented to an osner-opera-
,tor An international truck and a pickup were given to Air Parcel, and Rob-
ert Shearer operates a pickup and an in connection with his film hauling.
i Respondent continues to operate the film transfer business. Robert
Shearer handles this alone. without support fronm any employees.
419
DECISIONS OF NATIONAL IABOR RELATIONS BOARD
the Shearers, Burlington-Northern in late November 1977
was responsible for between 40 to 50 percent of Respon-
dent's air freight business volume. They claim that at that
time representatives of that firm insisted that their account
be handled exclusively through owner-operators a service
which would require dedication of three to four vehicles.
While I believe that Respondent began consideration of the
possibility of converting to owner-operators in late 1977,
do not believe the testimony that this concept was imposed
upon them as a condition of continued maintenance of the
Burlington-Northern account. First of all, I hold a basic
mistrust of the Shearers; their testimony was vague and
contradictory, and it reflected a tendency to shift as neces-
sary to facilitate self-interest. Furthermore, it is difficult to
reconcile the existence of' such an ultimatum by so large a
customer with Robert Shearer's testimony that thereafter in
late 1977, Respondent purchased two trucks at a cost of
$24,000 and that Robert Shearer paved the area adjacent to
his home in Monroeville to accommodate his vehicles. In
addition to these capital expenditures which would appear
inconsistent with any enforced reliance upon owner-opera-
tors, George Shearer's own account of the February 7 meet-
ing hardly suggests that Burlington-Northern had issued
Respondent an ultimatum in this regard. That meeting was
held to convince four drivers to accept the owner-operator
program. George Shearer, on examination by Respondent's
counsel. was given the opportunity to testify as to what the
men were told at that time in connection with this effort.
Nowhere in that dialogue does it appear that his effort to
persuade included reference to possible loss of the Burling-
ton-Northern account. At the same time, the uncontra-
dicted testimony of the three drivers indicates George
Shearer suggested that they seek legal counsel in the inter-
est of proposing an individual employment contract, a fact
inconsistent with the existence of any sense of urgency con-
cerning the owner-operator program. Furthermore, the di-
rect offer to the drivers of individual employment contracts
some 2 or 3 weeks later reinforces that conclusion.
In sum, I am convinced that the Shearers were under no
compulsion to convert to an owner-operator program, but
that they endeavored to do so subject to the will of the
drivers, discarding that approach only after that concept
gained appeal following designation of the Union on March
712
In sum, it is concluded that Respondent terminated its air
freight business on April 21, transferring, without any re-
ciprocal consideration, assets, accounts, and goodwill to the
newly extant corporation in which Robert Shearer contin-
ued to maintain a proprietary interest, for the purpose of
frustrating the results of the election and the organization
efforts of its employees. Accordingly, the resultant dis-
1 As expressed, the offer of individual employment contracts was obvi-
ously inconsistent with a need for immediate change to an owner-operator
program. Although, in this respect, George Shearer testified that he invoked
this device in the interest of gaining time which ultimately would be of use in
persuading the drivers to convert, this testimony concedes that any responses
received from the drivers previously were not regarded as final rejection of
the owner-operator concept. I did not believe Shearer's testimony that in the
interim between the offer of individual employment contracts and the elec-
tion an effort was made to again raise the owner-operator issue with the men.
It is clear that after the election, Shearer had not interest in the four drivers
and did not offer them owner-operator positions thereafter.
charge of the drivers violated Section 8(a)(3) and ( I ) of the
Act.
C. The Rei.sal To Bargain
The Union was certified as exclusive representative of
employees in the appropriate unit on March 15. It is alleged
that thereafter Respondent violated Section 8(a)(5) and (1)
of the Act by unilaterally changing working practices with
respect to pickup and delivery of trucks and by converting
its business to owner-operator and terminating its employ-
ees, all without any prior notification to or consultation
with the Union. Although there is merit in the allegation
that Respondent violated its duty to bargain with respect to
the unilateral layoff of the drivers on April 24. the balance
thereof is unsubstantiated. As for the shift in delivery op-
eration and the conversion of drivers to owner-operators,
the record does not clearly disclose precisely when such
measures were effected. This vagary allows the possibility
that the changes in question were exclusively effected dur-
ing the period preceding the election." Accordingly, the
General Counsel has not established by a preponderance of
the evidence that said changes were made during the period
in which Respondent had a duty to bargain.
It is a fact that Respondent effected changes resulting in
elimination of the drivers on April 24. That layoff-produc-
ing decisions affect mandatory subjects of bargaining and,
thus, may not be implemented without affording the exclu-
sive representative a meaningful opportunity to discuss and
negotiate is a matter of established Board policy.' 4 As Re-
spondent failed to fulfill statutory obligations in this regard,
it thereby violated Section 8(a)(5) and (I) of the Act.
CON( .USIONS OF LAW
I. Robert G. Shearer d/b/a George C. Shearer Exhibi-
tors Delivery Service is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. General Teamsters, Chauffeurs and Helpers Local
249, a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent independently violated Section 8(a)(l) by
threatening its employees with reprisals and by attempting
to dissuade them from engaging in union activity by prom-
ising wage increases.
4. Respondent violated Section 8(a)(3) of the Act by ter-
minating its drivers on April 24, 1978, and refusing to rein-
state them thereafter in reprisal for their union activities.
5. All full-time and regular part-time truckdrivers and
dock workers employed by Robert G. Shearer d/b/a
1 I believe the testimony of Smay and Altman that at no time after the
February 7 meeting were they given an opportunity to discuss the owner-
operator issue with any of the Shearers. I also credit the testimony of Grasin-
ger that, while he did discuss the owner-operator offer with the Shearers on
several occasions after February 7, he was not afforded the opportunity to
give a final answer, and his further testimony that he was never told that the
Company was definitely going to go owner-operator.
'4 See, e.g., Eagle Material Handling. Inc.. a Subsidiary of Somerset Tire
Servicer. Inc., and Somerset Tire Service. Inc.. 227 NLRB 174, 176, fn. 16
(1976).
420
(;EORGE C. SHEARER EXHIBITORS
George C. Shearer Exhibitors Deliver)y Service at its Cora-
opolis, Pennsylvania. facility: excluding office clerical em-
ployees and guards, professional employees and supervisors
as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
6. At all times since March 7, 1978. the Union has been
the exclusive collective-bargaining agent of employees in
the unit described above with respect to rates of pay. wages,
hours of employment, and other terms and conditions of
employment.
7. Respondent violated Section 8(a)(5) and (I) of the Act
on April 24, 1978, by unilaterally and without prior notice
to or consultation with the exclusive representative of its
employees in the aforesaid unit, terminating the employ-
ment of its truckdrivers.
8. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
TIlE REMEDY
In his brief, counsel for the General Counsel urges that
Air Parcel Delivery Service, Inc. is an alter ego or successor
to the Respondent and, accordingly, should be deemed re-
sponsible for redress of unfair labor practices of the latter.
The record and findings heretofore made amply attest to
the fact that Air Parcel Delivery Service. Inc., emerged
from a flagrant and pervasive effort to thwart employees'
exercise of their statutory rights. Ownership of Air Parcel
was divided between Robert Shearer and George Shearer,
his son, with the latter managing Air Parcel as he had man-
aged Respondent's operation. These individuals. particu-
larly George Shearer, were the perpetrators of the unfair
labor practices found herein. Air Parcel took over Respon-
dent's trucks, accounts, and goodwill without reimburse-
ment or incurring any future enforceable obligation to Re-
spondent. Indeed, the sole capital financing of Air Parcel
appears to have been a $500 legal fee paid for the incorpo-
ration thereof, and the sum of $250 allegedly expended for
two typewriters. There is merit in the General Counsel's
claim that Air Parcel is merely a "disguised continuance" of
Respondent and is its alter ego. See, e.g., Edward E. Schult
d/h/a Shult: Printing and Decorating Co.. 202 NLRB I I111
(1973). Although Air Parcel was not named as a party and
there was no allegation as to the alter ego status thereof in
the complaint, the issue was fully litigated, and based upon
the facts developed, the due process rights afforded that
firm were fully satisfied through the notification and com-
plaint issued against Respondent specifically naming the
principals of Air Parcel as the perpetrators of unfair labor
practices. Accordingly, I find merit in the General Coun-
sel's claim that Air Service was an instrumentality of the
unlawful pattern of conduct in this case,'' and that it should
be deemed liable, without necessity for any further collat-
i~ There is no merit in the General Counsel's claim that an affirmative
bargaining order be issued against either Respondent or Air Parcel. Such a
remedy would not be warranted under any allegation of the complaint, and
in any event there is no evidence whatsoever that the Union has made a
request for bargaining upon either firm.
eral proceeding as to the basic unfair labor practices found
herein.'"
Having fbund that Respondent has engaged in certain
unfair labor practices. I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. As certain of
these unfair labor practices, particularly the unlawful dis-
charges, strike at the heart of the Act, a broad order shall
be recommended, requiring Respondent to cease and desist
from "in any other manner" interfering with, restraining, or
coercing employees in the exercise of their Section 7 rights.
Having found that Respondent violated Section 8(a)(3)
and (I) of the Act by the discharge of its drivers" on April
24. 1978, 1 shall recommend that Respondent offer them
immediate reinstatement to their former position, or if not
available, to a substantially equivalent position. discharging
if necessary any employees or owner-operators hired after
the date of their discharges, and make them whole for any
loss of earnings they may have suffered by reason of the
discrimination against them by payment of a sum of money
equal to the amount they normally would have earned as
wages from the date of their discharges to the date of a
bona fide offer of reinstatement, less net interim earnings
during that period. Backpay shall be computed on a quar-
terly basis in the manner prescribed in F. W. Woolworth
Compan., 90 NLRB 289 (1950), and shall include interest
as specified in Florida Seel Corporation, 231 NLRB 651
(1977).'" No affirmative relief with respect to the unilateral
elimination of jobs and layoff of April 24 is deemed neces-
sary in that the aforedescribed remedy affords appropriate
redress in that respect as well.
On the basis of the foregoing findings of fact, conclusions
of law. and upon the entire record in this proceeding. and
pursuant to Section l()(c) of the Act. I hereby issue the
following recommended:
OR[)ER'"
The Respondent. Robert G. Shearer d/b/a George C.
Shearer Exhibitors Delivery Service, Monroeville and
it See, e.g . N.L.R.B. Deena Arr.are. Inc. 310 F.2d 470. 473 474 (6th
Cir. 1962) Perma Vinsl ('orporation, Dade Plastics Co. and United States
Pipe and Foundrn Companv. 164 NLRB 968 (1967). enfd. sub nomr United
Stares Pipe and Foundr', Companv . V. L R. B. 398 F.2d 544 (5th Cir 1968).
1 The complaint named five individuals in addition to Smay. Grasinger.
and Altman who were allegedly victimized by terminations at that time
There is no evidence in the record hearing on the status of this latter group
Although it s possible to construe Respondent's answer to paragraph 7 of
the complaint as an admission that those employees were also terminated,
the entire matter is rendered ambiguous by an admission in the General
Counsel's brief that at least two of said individuals. Thomas DelVecchio and
Robert L. Dorning, were not in Respondent's employ as of the date of the
alleged discrimination. In the circumstances. to construe the answer as an
admission would deem Respondent's counsel to have admitted facts which.
though erroneous. were potentially prejudicial to his client. While it is my
conclusion that the record in its present status is ambiguous to this extent.
that fact is not necessarily fatal to the General Counsel's case. for the den-
tily of employees other than Smas. Altman. and Grasinger who were ille-
gall) terminated on that date is a matter appropriate for resolution suhse-
quently in a compliance proceeding.
' See. generally. Isis Plumhing & Hleuing (o. 138 NL.RB 716 (1962)
' In the event no exceptions are filed as provided by Sec. 102.46 ot the
Rules and Regulations iof the National Labor Relations Board the findings.
conclusions. and recommended Order herein shall. as proslded In Sec. 102.48
of the Rules and Regulalions be adopted by the Board and become its
findings. conclusions. and Order. and all objections thereto shall he deemed
waived for al purposes.
421
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coraopolis, Pennsylvania, its representatives, successors.
and assigns, including Air Parcel Delivery Service. Inc., its
officers, agents, successors, and assigns, shall:
I. Cease and desist from:
(a) Threatening employees with closure and elimination
of their jobs should they designate a labor organization as
their representative.
(b) Promising benefits to employees in the form of in-
creased wages to influence them to reject the Union.
(c) Discouraging membership in a labor organization by
discharging, laying off, refusing to reinstate, or in any other
manner discriminating against employees with respect to
their hire, tenure of employment, or any other term or con-
dition of work.
(d) Refusing to bargain in good faith by unilaterally lay-
ing off its employees in the appropriate bargaining unit
without affording prior consultation and an opportunity to
negotiate with the Union as their exclusive statutory repre-
sentative. The appropriate unit is:
All full-time and regular part-time truckdrivers and
dock workers employed by Robert G. Shearer d/b/a
George C. Shearer Exhibitors Delivery Service at its
Coraopolis, Pennsylvania, facility: excluding office
clerical employees and guards, professional employees
and supervisors as defined in the Act.
(e) In any other manner interfering with, coercing. or
restraining employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action found necessary
to effectuate the policies of the Act:
(a) Offer immediate reinstatement to John Smay, Albert
Altman, James Grasinger, and any other similarly situated
employee terminated on April 24. 1978, to their former po-
sition or, if not available, to a substantially equivalent posi-
tion, discharging if necessary any employee or owner-op-
erator hired subsequent to the discrimination against them,
and make them whole for any loss of earnings resulting
from the discrimination against them in the manner set
forth in the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze the amount of backpay due.
(c) Post at its various places of business in the greater
Pittsburgh, Pennsylvania. metropolitan area copies of the
attached notice marked "Appendix."20 ('opies of said no-
tice, on forms provided by the Regional Director for Re-
gion 6, after being duly signed by Respondent's representa-
tives, shall be posted by it immediately upon receipt
thereof; and be maintained for a period of 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent and Air Parcel
Delivery, Incorporated, to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 6, within 20
days from the date of this Order, what steps have been
taken to comply herewith.
2 In the event that this Order is enforced b) 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 Judg-
ment of the United States Court of Appeals Enlorcing an Order of the Na-
tional Labor Relations Board."
422