Georjan, Inc. And/Or Fort Mason Enterprises, Inc. And/Or Latrobe Speedway

National Labor Relations Board - Board Decisions

Sep 30, 1986

281 N.L.R.B. 952 (N.L.R.B. 1986)

952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Georjan, Inc. and/or Fort Mason Enterprises, Inc.
and/or Latrobe Speedway and Chauffeurs,
Teamsters and Helpers Local Union 491 a/w
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America.
Cases 6-CA-16975 and 6-CA-17348
30 September 1986
DECISION AND ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 24 April 1985 Administrative Law Judge
Benjamin Schlesinger issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Georjan,
Inc. and/or Fort Mason Enterprises, Inc. and/or
Latrobe Speedway, Uniontown and Latrobe, Penn-
sylvania, its officers, agents, successors , and assigns,
shall take the action set forth in the Order.
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. 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 Respondent has requested oral argument The request is denied as
the record, exceptions , and briefs adequately present the issues and the
positions of the parties.
At fn 17 of his decision, the judge inadvertently referred to the testi-
mony of James Russel as being the same as that given by driver John
Todak, although Russell 's testimony was to the contrary This minor
error does not affect the result Similarly, "Georjan" at fn. 14 of the
judge's decision should read "Gagnon "
Thomas A. Davies, Esq., for the General Counsel.
John M. O'Connell, Jr., Esq., and Bradley E. Smith, Esq.
(O'Connell & Silvis), of Greensburg, Pennsylvania, for
Respondents.
L. Amos Courtney, of Uniontown, Pennnsylvania, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
BENJAMIN SCHLESINGER, Administrative Law Judge.
The principal issues in this unfair labor practice proceed-
ing involve the liability, if any, of one or more of Re-
spondents Georjan, Inc. (Georjan), Fort Mason Enter-
prises, Inc. (Fort Mason), and Latrobe Speedway (La-
trobe) for failing to reinstate strikers, assuming that they
made an unconditional offer to return to work to any or
all of Respondents, and whether Respondents agreed to
the terms of a collective-bargaining agreement, which
they later unlawfully failed to execute, all in violation of
Section 8(a)(5), (3), and (1) of the National Labor Rela-
tions Act, 29 U.S.C. § 151 et seq. Respondents deny that
that they constitute a single employer, deny that the
agreement that they were asked to sign represented the
entire agreement they made, deny that the employees of-
fered to return to work, and deny that they did not offer
reinstatement to all their employees.'
FINDINGS OF FACT
1. PRELIMINARY STATEMENT
The factual disputes in this proceeding cover the entire
gamut of the complaint's allegations . My recital of the
facts is based on my finding that Georjan's and Latrobe's
principal officer George M. Teslovich Jr. (Teslovich)
lacked candor and was utterly untrustworthy, and I have
discredited his testimony entirely, except when corrobo-
rated by others not aligned with Respondents' defense.
That is somewhat a harsh judgment, but not only was I
singularly unimpressed with his demeanor -snide , crafty,
argumentative , and evasive-but also was I unimpressed
by what he had to say.2 I have also, over Respondents'
objection, considered Teslovich's conviction for income
tax evasion in assessing his credibility;3 but, even without
that, my judgment of Teslovich would not change one
iota.
This is not to say that I was utterly pleased with the
General Counsel's witnesses . Although it may have been
i The relevant docket entries are as follows The unfair labor practice
charge in Case 6-CA-16975 was filed against Georian on December 9,
1983, by Chauffeurs, Teamsters and Helpers, Local Union 491, affiliated
with International Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America (Union), the charge was amended on January 12,
1984, to include Fort Mason as a charged party; a complaint issued in
Case 6-CA-16975 against Georjan , Inc and/or Fort Mason on January
23, 1984, the charge in Case 6-CA-17348 was filed by the Union on May
14, 1984, which included Latrobe as a charged party, and on June 21,
1984, a consolidated amended complaint issued against all Respondents,
which complaint was further amended on August 30, 1984 A hearing
was held in Uniontown, Pennsylvania , on September 12 and 13 and Octo-
ber 10, 1984
2 My assessment of Teslovich's credibility is supported here by specific
references to his testimony , but I have considered , in addition , and find
false ( 1) his denial of recognition of "GMT/MK" on a letter sent by
Georjan to the Acting Regional attorney , enclosing Georjan's Excelsior
list, despite the fact that "GMT" was his. own initials and "MK" was
Georjan's secretary and receptionist, Mary Kunkel, whom Respondents
called as one of their witnesses, and (2) his description of certain checks
made out to six drivers (in amounts totaling over $1000 ) as bonuses, stat-
ing that "hundreds of thousands of dollars" are owed to him by his em-
ployees-these are just "petty cash."
2 Teslovich was convicted of a violation of 26 U S C § 7201, which is
punishable by imprisonment of in excess of 1 year and involves dishones-
ty or false statements He was sentenced to 3 years ' imprisonment, but 2-
1/2 years of the sentence was suspended Under Federal Rules of Evi-
dence, Sec 609(a), evidence of his conviction was clearly admissible
US v Gellman, 677 F2d 65 (11th Cir 1982), Zukowski v Dunton, 650
F 2d 30 (4th Cir 1981)
281 NLRB No. 129
GEORJAN , INC. 953
that, early in negotiations, the parties agreed that all pro-
visions agreed on would be initialed , that practice was
certainly not continued throughout the negotiations, and
the mere fact that the disputed three clauses relied on by
Respondents and omitted from the final draft were not
initialed does not constitute a basis for my findings. I
have also considered carefully the testimony of Charles
Gagnon, a representative of the Eastern Conference of
Teamsters and a party to the discussions of one of the
three disputed clauses . His testimony was not the epito-
me of consistency , but it was far more candid and proba-
ble than Teslovich 's, and I am more inclined to believe
him than other witnesses called by Respondents.
II. JURISDICTION
A. The Parties
In Respondents' answer , Georjan admitted that it is a
Pennsylvania corporation with an office and place of
business in Uniontown , Pennsylvania, where it has been
engaged in the hauling of coal , stone, gravel , and other
materials . Fort Mason admitted that it is a Pennsylvania
corporation with an office and place of business in Un-
iontown, Pennsylvania , where it has been engaged in the
hauling of coal, stone, gravel , and other materials. La-
trobe admitted that it is a Pennsylvania corporation with
an office and place of business in Uniontown, Pennsylva-
nia, where it has been engaged in the operation of an
auto speedway and in owning construction and hauling
equipment.
Respondents admitted the complaint's allegation that
Georjan and Fort Mason are affiliated business enter-
prises and constituted a single integrated business enter-
prise and single employer . But Latrobe denied the allega-
tion that it is under common ownership , management, or
supervision ; has administered a common labor policy; has
shared common premises and facilities ; and has provided
significant amounts of services or significant interchanges
of personnel, although it admitted providing some serv-
ices for Georjan . However, Respondents admitted, and I
find , that during the 12-month period ending July 31,
1983 , Respondents, in the course of their business oper-
ations, performed services in excess of $50 ,000 for other
persons, including U.S. Steel Corporation , Bethlehem
Mines Corporation , and J&L Steel Corporation , . which
are directly engaged in interstate commerce . I, therefore,
conclude, as Respondents admit, that Respondents are
now and have been at all times material herein employ-
ers engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act. I also conclude, as Respond-
ents admit , that the Union is now and has been at all
times material herein a labor organization within the
meaning of Section 2(5) of the Act.
1981, it acquired its trucks .' Fayette Trucking, Inc.
(Fayette), another corporation whose stock is equally
owned by Teslovich and Kitka, also occupies space in
the same building . Both Fayette and Georjan pay rent to
S&T pursuant to an oral lease.
Georjan is operated solely by Teslovich and hauls coal
and dirt using triaxles with dump beds or tractors pulling
dump beds, for which it has Interstate Commerce Com-
mission (ICC) and Pennsylvania Public Utility Commis-
sion (PUC) rights to haul dirt. Fayette, on the other
hand , is managed by Kitka and hauls mining equipment
on low boys and flat trailers and has ICC and PUC
rights to haul equipment only. Georjan, S&T, and Fay-
ette share the overhead of their offices and the services
of Kunkel , the receptionist and secretary to all of them,
who is paid by S&T, which in turn is reimbursed by
Fayette and Georjan. Each , however, has a different
telephone number, but the trunk lines all end at Kunkel's
desk, and she answers the telephones for all of them.
Fort Mason appears to have no office space . Althouglf
it was incorporated in 1970 by Solomon, although it has
never been dissolved , and although Respondents admit-
ted in the answer that Fort Mason and Georjan consti-
tuted a single employer , Teslovich professed a complete
lack of knowledge of who or what Fort Mason was and
stated that he had never used it . John O'Connell Jr., Re-
spondents' attorney, represented that Fort Mason main-
tained no corporate records and filed no corporate tax
returns and that it was originally used by S&T as a pay-
roll account . The use of Fort Mason as a payroll account
was continued by Georjan, according to Mary Lacona,5
a payroll clerk formerly employed by S&T and em-
ployed by Georjan and Fayette when both started in
business in 1981.
Lacona contradicted Teslovich's denial of knowledge
of Fort Mason. Georjan appears to have succeeded to
S&T's contract with the United Mine Workers , and from
late 1981 to June 1982 the drivers covered under that
contract were , at Teslovich's direction, paid from Geor-
jan's bank account . All other employees, again at Teslo-
vich's direction , were paid from Fort Mason's bank ac-
count . After June 1982 the Fort Mason account contin-
ued to be used to pay Georjan's employees (Elias Deeb,
William Morris Jr.) up to October 1983. Although Teslo-
vich was the individual who gave instructions to and
sometimes dispatched the drivers of Georjan's trucks
who were subsequently paid by Fort Mason for perform-
ing Georjan 's work 's and was the individual who gave
instructions to Lacona designating which account pay-
ment of wages to employees should - be made, ? Solomon
signed Fort Mason 's withholding tax reports.
B. The Single Employer Issue
Georjan was formed in 1981 by Teslovich and Jan
Kitka, each of whom owns 50 percent of its stock and
operates in the same building as Solomon & Teslovich
(S&T), a partnership of George Solomon and George
Teslovich , Sr. (Teslovich Sr.), Teslovich 's father, from
whom , when Georjan commenced doing business in
* As of the time of the hearing , S&T, because of some tax problems,
had sold out to Atlas Services.
5 Lacona, like Kunkel , was paid by S&T, which in turn was reim-
bursed by Georjan and Fayette . Georlan also paid L.acona $25 directly
each week.
s Wally Marinelli , Georjan's dispatcher , and Teslovich Sr. also dis-
patched Georjan's drivers to jobs that were paid for by Fort Mason.
7 Morris testified that he was paid less by Fort Mason than by Georjan
for similar jobs.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Latrobe commenced doing business in 1976 or 1977,
and is wholly owned and solely managed by Teslovich,
its president and sole director . It has an office in La-
trobe, Pennsylvania , and for several years it operated an
auto speedway from about May 1 to September 1 each
year. The interrelationship among Respondents , howev-
er, involves not sports , Teslovich having leased the oper-
ation of the track to others since 1979, but trucks-Tes-
lovich purchased trucks in Latrobe' s name to take advan-
tage of Latrobe's tax loss and then operated them, under
leases with Georjan permitting use of Georjan 's ICC and
PUC rights, because Latrobe had no similar rights to op-
erate the trucks in its own name . The trucks, which did
not bear Latrobe's name, were picked up in the morning
at Georjan's premises and returned there at night. They
were serviced at Georjan's premises. Because Teslovich
preferred that each driver be assigned to one truck (one
driver would keep better care of it), drivers operated the
same trucks day after day, under Teslovich' s direction
and supervision , more often than not assigned by Marin-
elli or Teslovich Sr. and paid their wages by Georjan
and Latrobe. Teslovich testified, "[M]y drivers don't
know . . . who they're working for."
A single employer status may be found when there is
common ownership and financial control, common man-
agement, interrelation of operations , and centralized con-
trol of labor relations . Television Broadcast Technicians
Local 1294 v. Broadcast Service, 380 U.S. 255 (1965); Bur-
gess Construction , 227 NLRB 765 (1977), enfd . 596 F.2d
378 (9th Cir. 1979), cert. denied 444 U.S. 940 (1979);
Western Union Corp., 224 NLRB 274 (1976), enfd. sub
nom. Telegraph Workers v. NLRB, 571 F.2d 665 (D.C.
Cir. 1978). Common ownership is not a determinative
factor unless actual, as distinguished from potential,
common control is exercised by the common owner.
United Constructors , 233 NLRB 904, 912 (1977); Gerace
Construction , 193 NLRB 645 (1971). Not all of these fac-
tors must be satisfied to support such a finding . Blumen-
feld Theatres Circuit, 240 NLRB 206, 214-215 (1979),
enfd . 626 F.2d 865 (9th Cir . 1980); Malcolm Boring Co.,
259 NLRB 597, 600-601 (1981 ); Consolidated Dress Carri-
ers, 259 NLRB 627, 633 (1981), enfd. in relevant part 693
F.2d 277 (2d Cir. 1982). What is especially looked for is
the lack of an "arm's length relationship found among
unintegrated companies." Operating Engineers Local 627
v. NLRB, 518 F.2d 1040, 1045-1046 (D.C. Cir. 1975),
aft in relevant part sub nom. South Prairie Construction
v. Operating Engineers Local 627, 425 U.S. 800 (1976).
There is no question that all these indicia are present
among the three Respondents , who admit the single em-
ployer status of Georjan and Fort Mason , from whose
funds Teslovich paid Georjan 's drivers. Teslovich admit-
ted being in control of at least Georjan and Latrobe. He
owned 50 percent of the former and all of the latter. He
managed Georjan , without the participation of Kitka,
and Latrobe, exclusively . A & T Glass Co., 231 NLRB
998 (1977); Consolidated Dress Carriers, supra . His denial
of the existence of Fort Mason was belied by the testi-
mony of Lacona.
Furthermore , the operations of the three were entirely
interrelated . Latrobe bought certain trucks that could not
be used by it because it had no license to operate them.
Thus, Teslovich, on behalf of Latrobe, negotiated leases
with himself, on behalf of Georjan . He decided in those
leases what amounts should be paid by Georjan to La-
trobe so that Latrobe could absorb its tax loss and how
those amounts should be based-either on a net lease,
whereby Georjan paid Latrobe a sum of money ($3000),
with Georjan assuming all expenses of the trucks, such as
fuel or tires , or a percentage of the amount of tonnage
carried and mileage operated by the truck. Latrobe's
trucks are leased to Georjan "so long as I want them to
do it." Similarly, Teslovich canceled the leases whenever
it pleased him. He hired the drivers , sometimes paying
them with Latrobe checks, sometimes with Georjan
checks.8 He leased out Georjan 's trucks and drivers (all
of whom voted in the August 1983 representation elec-
tion without challenge) to S&T for a job in Waynesburg,
Pennsylvania, from October 1982 to August 1983, but
visited and supervised the job weekly.
The lack of arm 's-length dealings and the presence of
self-dealings was amply demonstrated throughout the
record, although sometimes by Teslovich's utterances,
which were absurd attempts by him to differentiate be-
tween the two entities , and sometimes by his errors in
too closely identifying the business with himself . Teslo-
vich leased the trucks from Latrobe (sometimes referred
to by him as "I") because of the "mere fact that I needed
them under Georjan," and Teslovich testified that "La-
trobe leased the trucks and suggested that Georjan take
these drivers." Testified Teslovich:
"If I mislead you it might have been because of the
'I', I'm using 'I' freely because it's Latrobe and
Georjan . You know, 'I' Latrobe , when the net lease
with 'I' Georjan broke, they went to seek employ-
ment elsewhere . When the Union struck, Georjan
was no longer able to pay me, me Latrobe Speed-
way for the trucks and they had to break their lease
.... You know , I had my payments to meet, so, I
took my trucks out of there, and put them to
work." In January 1984 , I took a net lease.
His confusion extended also to S&T, even though,
when asked who S&T was , he feigned a deliberate disin-
terest by answering "That's two individuals , Mr. Solo-
mon and Mr . Teslovich," only acknowledging in answer
to a further question that "Mr. Teslovich" was indeed
his father . And "Mr. Solomon" was the incorporator of
Fort Mason and the individual who attended most of the
collective-bargaining negotiations . Teslovich testified as
a "mediator," never giving in to the suggestion, which I
find as fact, that Solomon represented Respondents and
initialed on their behalf their agreement to various nego-
tiated provisions . And, about S&T, from whom Georjan
bought its trucks when it started in business in 1981 and
8 Among the employees, each of whom drove the same truck at all
times and who were paid by both companies, were- Elias Deeb, James
DiMatteo, Daniel Stefan, James Russell, Robert Brady, Robert
McCluckie, Rolly Thorpe, Eugene Manchas, Enn Spade, and Larry
Spade. In addition, a mechanic, Robert Yonish, was paid by both compa-
nies . The trucks were always picked up and returned to Georjan's prem-
ises, where they were gassed and serviced. There is no reason to believe
that Yonish was ever employed at any place but Georjan
GEORJAN, INC.
whose employees, with their seniority , he assumed, Tes-
lovich's confusion was evident:
Q. (By Mr . Davies) How much time would you
spend during a normal week?
A. (Teslovich) I usually went to their office. I
would stop in on the job where the trucks were
working . And, we had a foreman on the job, he
was a working foreman . And, I would go over to
the office and try to negotiate different contracts.
Q. Okay. You had a foreman on the job?
A. That's correct.
Q. Who was the foreman?
A. Frank Spinetti . I didn't have a foreman on the
job, I don't mean to tell you-Solomon and Teslo-
vich had the foreman on the job.
JUDGE SCHLESINGER : Why did you say we?
THE WITNESS : Well, you know, Solomon and
Teslovich is my father's company . I mean, I use
that quite frequently.
Teslovich could not straighten out his story about the
rental arrangement between Latrobe and Georjan. Seem-
ingly, contracts that required payment of a percentage
were paid on a net lease amount, and vice versa. On how
to identify Latrobe's trucks, he testified that Latrobe's
name did not appear on the trucks , but slipped a bit:
"Doesn't have Georjan-they have Soloman [sic] and
Testlovitch [sic] and Georjan's name on it ." And, if there
were any question of how Teslovich perceived of his dif-
ferent companies , he testified:
[N]ow that Latrobe gave their trucks or leased their
trucks or whatever word we want to use , to Geor-
jan, Georjan became more versatile and just opened
up the realm of what they can do . Now I can basi-
cally do all the work within one company.
I fmd that Latrobe constitutes with Georjan and Fort
Mason a single employer. Merely because Latrobe per-
forms some different functions from those performed by
the others does not alter this result . Tricor Products, 239
NLRB 65 (1978), enfd. 636 F.2d 266 (10th Cir. 1980);
Numrich Arms Corp., 237 NLRB 313 (1978). Teslovich
was in charge of all operations , shifted the trucks as he
deemed necessary , employed the drivers on the trucks,
paid the drivers (albeit from different bank accounts),
and supervised their work . In other words , it was Teslo-
vich who established on behalf of all Respondents which
employees should be working , where, and under what
conditions.9
See Royal Typewriter Ca Y. NLRB, 533 F.2d 1030 , 1043 (8th Cir.
1976) ("A more critical test is whether the controlling company pos-
sessed the present and apparent means to exercise its clout in matters of
labor negotiations by its divisions or subsidiaries ."); Sakrete of Northern
California v. NLRB, 332 F.2d 902, 907 (9th Cit. 1964) ("If there is overall
control of critical matters at the policy level, the fact that there are var-
iances in local management decisions will not defeat application of the
'single employer' principle."), cert. denied 379 U.S. 961 (1965); both cited
with approval in Soule Glass Ca v. NLRB, 652 F.2d 1055 (1st Cit. 1981).
III. THE UNFAIR LABOR PRACTICES
955
A. The Failure of Georjan and Fort Mason to Sign
the Collective-Bargaining Agreement
On August 17, 1983 , the Union was certified as the
collective-bargaining representative for the following ap-
propriate unit:
All full-time and regular part-time drivers employed
by Georjan, Inc. and/or Fort Mason Enterprises,
Inc. at its Uniontown, Pennsylvania, location; ex-
cluding all office clerical employees, managerial em-
ployees, confidential employees and guards, profes-
sional employees and supervisors as defined in the
Act.
Negotiations commenced on August 23, 1983 , and con-
cluded after 12 negotiating sessions, according to the
General Counsel , with a tentative agreement on Novem-
ber 22, 1983 . The day after O'Connell, who had attended
only the last three negotiating sessions , met with Union
Secretary-Treasurer Whitman Evans to prepare the writ-
ten agreement , a draft of which was sent to O 'Connell
on November 29. There is no disagreement that the draft
is accurate insofar as it contains agreements between the
parties ; but Respondents contend that O'Connell then
forwarded the draft to Teslovich, who questioned the
omission of three additional provisions that he said had
been agreed on. O'Connell advised the Union of these
omissions, but the Union declined to revise the draft; and
it is that draft Respondents have refused to execute, al-
legedly in violation of Section 8(aX5) of the Act.
I find that the Union rejected and that there was never
any agreement or consensus regarding contractual provi-
sions giving Teslovich the right to drive a truck and per-
mitting Teslovich the right to reassign drivers to other
trucks after their regular trucks had broken down for 30
days . Evans testified that Teslovich proposed several
times that he be given the right to drive a truck ahead of
all other employees . Whenever the issue was raised, the
Union countered that Teslovich would never be given
the contractual right to drive a truck; but Evans was
willing to compromise to the extent that the Union
would not grieve if all drivers were employed , and Tes-
lovich needed to drive an additional truck to avoid
losing business.
Teslovich testified, to the contrary, that the Union
agreed in late October that he could drive and that his
name would be placed last on one of four seniority lists
after all currently employed drivers for the four different
categories of trucks operated by Georjan. He stated that,
to perfect this understanding , the drivers had prepared a
seniority list, but he agreed that no agreement had been
made regarding which list his name would be put on. I
fmd that although the Union may have been willing to
compromise the issue, Teslovich never agreed to that
compromise. By his own admission , no final agreement
had been reached because the Union never agreed to the
placement of his name on any of the four seniority lists.
Furthermore , his failure to produce the seniority list that
he said had been given to him indicates that no such list
was prepared and that his testimony was fabricated. Ac-
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cordingly, I credit Evans' testimony and find that Teslo-
vich's proposal was rejected.
The second alleged agreement , what the parties re-
ferred to as "seat-swapping ," was, according to Teslo-
vich, reached by mid-October, after discussion at six
meetings . Union Business Representative L. Amos Court-
ney testified that the issue had been raised only at one
meeting , in late September, when Teslovich proposed
that a senior driver could drive another truck only 30
days after his truck broke down. Courtney and Evans
countered with 3 days, but Teslovich and Solomon
wanted 30 days. According to Courtney the issue was
then dropped. Evans, however, testified that the issue
had been raised throughout the negotiations, including
the last session on November 22, but agreed that the dis-
pute was between Teslovich's proposal of 30 days and
the Union's counterproposal of 3 days. Teslovich testi-
fied that his original proposal was 60 or 90 days and that
the Union countered with 7 days, even though all mem-
bers of the negotiating committee , except one, objected
to the entire concept of seat-swapping . The Union finally
revised its counterproposal to 30 days, but Teslovich
qualified this by stating an additional agreement that the
period would be limited to 7 days after the parts were
received necessary to repair the equipment that was out
of use.
Relying on my assessment of Teslovich's credibility, I
find that no agreement was reached. The blatant fallacy
of Teslovich's testimony is demonstrated by the fact that
even he conceded that there was no final agreement. As
he testified regarding the operation of the seat-swapping
provision: "I guess everything kind of stemmed from se-
niority. I don't think it was specifically ironed out." Just
as important is his insistence that the Union proposed a
seat-swapping provision and that neither he nor the driv-
ers wanted such a provision. His present posture is that
he will not execute the proposed agreement because it
omits the very provision that he never wanted in the first
place . His position at trial is incomprehensible and
unreal.
The third omission that Teslovich complains about
concerned driver discipline for underloading or over-
loading a truck and the responsibility for fines, the driv-
er's or Respondent's, when a driver drove an overloaded
truck. Teslovich proposed that the driver pay all fines;
the Union, that Respondents should pay the fines because
Respondents made more money for carrying heavier
loads. The parties discussed specific weights: Respond-
ents , a maximum of 75,000 pounds; the Union, a maxi-
mum of 80,000 pounds. At the negotiating session of No-
vember 10, Gagnon, who had become the principal
union negotiator, met privately with O'Connell, who
proposed "for [the Union's] consideration" a scale of
72,000 to 78,000 pounds, to which Gagnon suggested
three levels of discipline for the underloading or over-
loading of trucks, and that a driver's warning would be
erased after 30 days. Gagnon said that the proposal was
"not unreasonable" and one that the Union "could live
with." Based on Gagnon's response, Respondents con-
tend that there was an agreement.
The General Counsel, however, argues that there was
no agreement because the discussion between Gagnon
and O'Connell was merely an attempt to reach a com-
promise that Courtney and Evans, on the one hand, and
Teslovich, on the other, who were then bitterly antago-
nistic , could agree to . Furthermore, the General Counsel
contends that the Union never considered the proposal
and that later events showed that Respondents did not
rely on Gagnon's response , to wit, that the parties' draft
agreement did not contain this provision and that on De-
cember 17 when employee Lonnie Celli and his wife
asked Teslovich why he did not sign the agreement, Tes-
lovich replied that he did not like it and did not like
what was in it and that he could not afford the wage
rates and benefits.
O'Connell blamed his failure to insist on the provi-
sion 's insertion on oversight and explained that, after he
forwarded the draft to his client, Teslovich complained
about the omission of the three disputed provisions.
O'Connell had been party to the discussion with Gagnon
about the disciplinary provision, and the issue, in part, in-
volves whether O'Connell merely erred or whether he
actually knew that no agreement had been reached.
I find it difficult to understand how O'Connell could
have missed what was, according to Teslovich, such an
important provision. O'Connell and Evans met only 13
days after the negotiating session at which the discipline
issue was allegedly agreed on and his notes of the "set-
tlement" was starred in the margin of the page. In order
to credit his testimony, I must assume that he reviewed
ohis notes of only two of the three sessions he attended"
or that he did not have with him the notes of the No-
vember 10 session, i t or that he had those notes and
overlooked a starred item, and that, in any event, he did
not recall what was a matter of vital importance to Tes-
lovich and which O'Connell fully negotiated only 13
days before. I find it most difficult to credit O'Connell's
precise recollections at the hearing of the events of No-
vember 10, which he had already forgotten by Novem-
ber 23.
As a result, I do not credit his testimony. I find instead
that Respondents' proposal (according to the Union) or
the Union's counterproposal (according to O'Connell), i 2
although discussed and debated, was never formally ac-
cepted, if indeed the parties in their negotiations nar-
rowed the issues and formalized their discussions to one
specific proposal. Rather, no one witness could quite
decide what it was that was agreed on. t 3 Respondents'
10 O'Connell believed he attended three or four sessions, but testified
that he entered negotiations when Gagnon did Gagnon testified that he
attended only three sessions
11 There is no indication that these findings would be based on fact
O'Connell testified that only two open issues (including driver discipline)
were agreed to on November 10, and one is included in the parties' draft
However, I note that O'Connell's notes of that session (which was dated
November 9) appear to be incomplete, at least in comparison to the notes
of Courtney and Evans, that reflect that Respondents made a lengthy
proposal, which is not reflected in O'Connell's notes
12 The second page of O'Connell's notes contains almost a duplication
of what is reflected as the Union's counterproposal on the first page I
cannot explain why that is so, unless O'Connell contributed to the pro-
posal as Gagnon testified
13 The notes of the negotiators also reflect different proposals
GEORJAN, INC. 957
two principals , Teslovich and O'Connell, were far apart
in their recollections . Teslovich, who testified that his
notes would clarify what was agreed on, but never pro-
duced his notes, stated that if the truckload was within
certain limits Respondents would pay the fine. If it were
above those limits , the driver would pay the fine. Not
one witness corroborated this part of the agreement.
Most others agreed that, if the outer limits were exceed-
ed, then a three -step system of discipline would be im-
posed : A warning for the first violation, a 1-day suspen-
sion for the second (at least according to O'Connell, who
stood alone; Teslovich testifying "I believe the first two
were merely warnings or a couple days' suspension, I
don't remember what the number was"); and the possi-
bility of discharge for the third (all agreed). It was also
the understanding of all parties that a driver's record
would be wiped clean after 30 days, but it seems that no
one contemplated (or, at least, testified) from what point
the 30 days would be calculated.
In addition, there is the complete variance of the par-
ties of what poundage limits had been agreed on by the
negotiators . Teslovich and O'Connell, who were com-
plaining that the Union did not include what had been
agreed on, could not agree on what was agreed . First,
Teslovich said that the agreement was made between
Gagnon and O'Connell ("I think it was really him and
you that came to that agreement"), indicating that Teslo-
vich never agreed to it. In any event , when asked what
Respondents had proposed to the Union, Teslovich re-
plied : "I believe it was eighty-thousand pounds . Or ours
was-I think ours was between seventy and seventy-five
thousand . I think the final ended up between sixty-eight
and seventy-eight . But it is just a matter of record."
When asked what record he was referring to, Teslovich
replied , "It is in my notes," which, as stated above, were
not produced. After some prodding, Teslovich reaf-
firmed that the protected weight was 68 ,000 to 78,000
pounds; but then he said , "Anybody who drives . . . the
same truck every day can tell within ten thousand pounds
or eight thousands pounds, I don't remember what the
number was ." (Emphasis added.) Of course, O'Connell
stated that the weights were from 72,000 to 78,000
pounds, which would make Teslovich's reasoning inac-
curate.
My recitation of the other witnesses' testimony, as dif-
fering as that is, will not be helpful to the resolution of
this issue. If the two proponents of the provision cannot
decide between themselves what they agreed on, it does
little good to make an agreement for them through the
recollections of others. t 4 I am convinced that the issue
was in the talking stages and there had been no resolu-
tion at all. At the final negotiating session of November
22, Gagnon presented seven proposals that he stated had
not been resolved. Those were the Union's proposals
that benefited its membership . Respondents , which I find
14 DiMatteo , a member of the Union 's negotiating committee , testified
that an agreement had been reached that there would be no seat-swap-
ping, but that Georjan had agreed that he could "live with" Respondents'
proposal on the discipline issue . Omitted from his testimony was, first,
the concurrence of the Union's committee and, second, a definitive agree-
ment. Rather , DiMatteo stated that Gagnon left the guidelines open to
"vary the way he wanted them."
knew that the overweight discipline issue had not been
agreed to , should have presented that for discussion.
They did not do so, treating their proposal , as many pro-
posals at collective-bargaining negotiations are treated, as
dropped , being of relatively little significance against
those issues that were still on the table . I am persuaded
that O'Connell did not insist on the inclusion of the al-
leged agreement on discipline because there was no
agreement . I am persuaded , too, that Teslovich raised
the three alleged agreements, not because there was a
bona fide misunderstanding of what had been agreed on,
but as impediments to a contract that he decided to
renege on because he felt that the wage package was too
high, as he stated to the Cellis in December.
I conclude that Respondents have violated Section
8(a)(5) and (1) of the Act by breaching their duty to bar-
gain in good faith , which includes the duty to execute
the written agreement that is the product of collective
bargaining . Consumat Systems, 273 NLRB 410 (1984);
East Bronx Comprehensive Health Center , 271 NLRB 898
(1984).
B. Respondents' Failure to Reinstate the Strikers
On September 23, 1983, the Union struck Respondents
and established a picket line, which was removed on No-
vember 22, 1983. The Union ratified the contract on No-
vember 25 and Evans called Respondents and asked to
speak with "Mr. Teslovich." Teslovich Sr. answered the
phone and Evans asked if Teslovich was there. Teslo-
vich Sr. said that he was not and asked Evans what he
wanted. Evans replied that he wanted Teslovich Sr. to
"carry the message to him [Teslovich] that we had a
ratification of the contract. The contract has been rati-
fied and, of course, our picket line has been removed and
our people were ready to go to work." Teslovich Sr.
said that his son would get that notice.' s
On November 29, Union Steward Eugene Ozanich,
visited Respondents' office but Teslovich was not in.
Ozanich asked Teslovich•Sr. and Solomon when the em-
ployees were to report to work. That night, Teslovich
telephoned Ozanich, who told him that the strike was
over and asked when the employees were going to be
put back to work. Teslovich insisted that the strike had
not ended until he saw the contract "in black and white"
and demanded a letter from Ozanich agreeing to report
to work at the prestrike wage rates as a condition of his
return to work. t 6 On December 17, Lonnie Celli asked
Teslovich when he was going back to work, but re-
ceived no reply.
Since November, 22, a few of the former strikers have
been recalled,'7 but most have not. Since January 1,
15 Teslovich did not deny receiving notice of Evans' message.
16 I credit Ozanich's testimony , notwithstanding Stefan's contrary testi-
mony. Ozanich's seems probable in light of Teslovich's repeated testimo-
ny that the strike had never ended.
17 Driver John Todak was called to work by Teslovich on Tuesday,
December 14, 1983 , who told him that he was going to be paid the same
as before the strike. Driver James D. Russell Jr . was told the same thing.
He and Todak worked 4 hours for another company , B & W Leasing.
Todak was recalled again in February 1984 and has driven the same
truck as he drove for Georjan before the strike and was assigned by
Continued
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1984, at least two new employees (Richard Jenkins and
Charles Crossland) have been hired to perform bargain-
ing unit work.
Respondents contend that they offered reinstatement
to the employees. Introduced in evidence were letters
sent by registered mail on October 27 and November 7
and 16, 1983, prior to the end of the strike.18 Those
offers are legally meaningless , especially because it is the
Union 's and employees ' action in offering unconditional-
ly to return to work that triggers Respondents' obliga-
tion to offer reinstatement to the employees . Respond-
ents cite no legal authority to support the conclusion that
offers of reinstatement prior to the termination of a strike
release an employer from any further responsibility.
Furthermore, the reason for sending the registered let-
ters was to ensure the Pennsylvania Office of Employ-
ment Security that the employees were not working be-
cause of a strike, which resulted in the ineligibility of the
employees for unemployment benefits . There was no
similar reason or need thereafter for Teslovich to offer
reinstatement to all of Respondents' employees , especial-
ly in light of his belief that the strike was still continuing
and had never ended. Therefore, I conclude that Teslo-
vich did not direct Kunkel to telephone the employees'9
and discredit Kunkel's testimony that she made such
calls on or after November 22, 1983 . Her testimony was
vague ; she admitted that she kept no list of the employ-
ees she called or the dates she called them . Not only was
Kunkel unable to recall any telephone call with precision
but also she could not state positively that all employees
were called or which were called. She also admitted that
she left messages with "wives or children, mothers or fa-
thers." This is totally insufficient proof of offers of rein-
statement.
Finally, Respondents contend that no offer of the un-
conditional return of the strikers was made to them be-
cause neither Solomon nor Teslovich Sr. were agents of
Respondents . As sole incorporator of Fort Mason , the in-
dividual who signed Fort Mason 's withholding tax re-
turns, and the representative of Respondents at the bar-
gaining table, where he was entrusted by Respondents
with signing individually agreed -upon provisions, there is
no doubt that Solomon was a proper recipient of Ozan-
ich's offer of November 29. The interrelationship among
the named Respondents and S&T, both past and present,
is also sufficient to find that Solomon was an agent of
Respondents, and Teslovich Sr. was too. Furthermore,
Teslovich Sr. dispatched Georjan employees to their
jobs; and clearly both Teslovich Sr. and Solomon were
aligned with Respondents. Accordingly, I find that they
were agents of Respondents , and their receipt, commenc-
ing with November 25, 1983, of the Union's offers put
Respondents on notice of their obligations.20 Maumee
Georjan employee Larry Spade. Todak was paid mainly by Georjan but
also received Latrobe and B & W checks. Russell worked a few days in
January and has worked steadily since March 1984. He too received his
wages from Georjan and Latrobe.
is Contrary to Teslovich, I find that the strike ended when the picket
line was removed.
19 Teslovich never testified that he directed Kunkel to offer reinstate-
ment to the striking employees after the "last letter in November."
20 I repeat what I found earlier Teslovich never denied receiving
notice of Evans' telephone call to his father Although he denied the sub-
Stone Co., 259 NLRB 1168, 1171 (1982); Aircraft Plating
Co., 213 NLRB 664 (1974); Indian Head Lubricants, 261
NLRB 12, 18 (1982).
CONCLUSION OF LAW
Accordingly , I conclude that Respondents violated
Section 8(a)(3) and (1) of the Act by failing to reinstate
their striking employees . Laidlaw Corp., 171 NLRB 1366
(1968), enfd. 414 F.2d 99 (7th Cir. 1969). These activities
occurring in connection with Respondents ' operations
have a close , intimate , and substantial relationship to
trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
THE REMEDY
I will, accordingly, recommend that Respondents be
ordered to cease and desist from their illegal activities
and take certain affirmative action necessary to effectuate
the policies of the Act. In particular, I shall recommend
that Respondents be ordered to execute the agreement
that they negotiated, on request of the Union, comply
with all the provisions thereof retroactive to November
25, 1983, the date the agreement was to be effective, and
make all employees whole for any losses they may have
suffered by Respondents' failure to sign the agreement.
Backpay, if any, shall be computed in accordance with
Ogle Protection Service, 183 NLRB 682 (1970), with inter-
est computed in accordance with Florida Steel Corp., 231
NLRB 651 (1977).21
In addition, having found that Respondents unlawfully
refused to reinstate their employees , I shall recommend
that Respondents reinstate all their former employees to
their former positions or, if such positions no longer
exist, to substantially equivalent positions (dismissing per-
sons hired on or after November 25, 1983, if that be-
comes necessary), without prejudice to their seniority
and other rights and privileges , and to make them whole
for any loss of wages and other benefits of employment
they may have suffered 22 by reason of the discrimina-
tion practiced against them , by paying them a sum of
money equal to that which they normally would have
earned absent the discrimination, less earnings during
such period, to be computed in the manner prescribed in
F. W. Woolworth Co., 90 NLRB 289 (1950), with interest
as computed above.23
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed24
stance of the conversation with Ozamch , I have discredited his testimo-
ny.
21 See generally Isis Plumbing Co ., 139 NLRB 716 (1962).
82 Tlus will include coverage of the employees and applicable pay-
ments for premiums under Respondents' Blue Cross and Blue Shield hos-
pitalization and major medical 365 Days Family Plan
23 The backpay period of Lonme Celli terminated on June 6, 1984.
Other questions of who is entitled to backpay , and in what amounts, shall
be left open for the compliance stage of this proceeding.
94 If no exceptions are fled as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
GEORJAN, INC.
ORDER
The Respondents Georjan, Inc., Fort Mason Enter-
prises, Inc., and Latrobe Speedway, Latrobe, Pennsylva-
nia, their officers, agents, successors , and assigns, shall
1. Cease and desist from
(a) Failing or refusing , on request , to execute and give
effect, retroactive to November 25, 1983, to a written
agreement incorporating the agreement reached with
Chauffeurs, Teamsters and Helpers , Local Union 491, af-
filiated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America.
(b) Failing or refusing to recognize and bargain with
the Union concerning issues that have arisen, or may
arise , during the term of the aforesaid agreement , for the
following appropriate unit:
All full-time and regular part-time drivers employed
by Georjan , Inc. and/or Fort Mason Enterprises,
Inc. at its Uniontown , Pennsylvania, location
and/or Latrobe Speedway at its Latrobe, Pennsyl-
vania, location ; excluding all office clerical employ-
ees, managerial employees, confidential employees
and guards, professional employees and supervisors
as defined in the Act.
(c) Discouraging membership in or activities on behalf
of the Union , or any other labor organization, or refusing
to reinstate their employees upon their unconditional
offer to return to work, to existing vacancies, with full
rights and benefits under the then subsisting collective-
bargaining agreement, or by discriminating against them
in any other manner with respect to their hire , tenure, or
any terms or conditions of employment.
(d) In any like or related manner interfering with, re-
straining , 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) Forthwith implement the above-described agree-
ment and give it retroactive effect from November 25,
1983.
(b) Bargain with the Union as the exclusive bargaining
representative of their employees in the above appropri-
ate unit.
(c) Make whole their employees for any loss of pay or
other employment benefits that they may have suffered
by reason of their refusal to implement the aforesaid
agreement from November 25, 1983, in the manner and
with interest thereon to be computed as described in the
remedy section of this decision.
(d) Offer all strikers immediate and full reinstatement
to their former positions or, if those positions no longer
exist, to substantially equivalent positions , without preju-
dice to their seniority and any other rights or privileges,
dismissing , if necessary , replacement employees hired on
or after November 25, 1983, and make them whole for
any loss of earnings they may have suffered by reason of
the discrimination against them , in the manner and with
interest thereon to be computed as described in the
remedy section of this decision. If at the compliance
stage of this proceeding , it is determined that Respond-
ents had insufficient job openings available to be filled by
959
all the strikers, then Respondents shall place the names
of those strikers who may not be employed immediately
on a preferential hiring list.
(e) Preserve and , on 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 nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at their Uniontown and Latrobe , Pennsylvania
facilities , copies of the attached notice marked "Appen-
dix."25 Copies of the notice , on forms provided by the
Regional Director for Region 8, after being signed by
the Respondent 's authorized representative , shall be
posted by the Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted . Reasonable steps shall be taken by the
Respondent 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.
25 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the 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.
WE WILL NOT fail or refuse, on request , to execute and
give effect, retroactive to November 25, 1983 , to a writ-
ten agreement incorporating the agreement reached with
Chauffeurs, Teamsters and Helpers , Local Union 491, af-
filiated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America.
WE WILL NOT fail or refuse to recognize and bargain
with the Union concerning issues that have arisen, or
may arise , during the term of the aforesaid agreement,
for the following appropriate unit:
All full-time and regular part -time drivers employed
by Georjan , Inc. and/or Fort Mason Enterprises,
Inc. at its Uniontown, Pennsylvania, location
and/or Latrobe Speedway at its Latrobe, Pennsyl-
vania, location ; excluding all office clerical employ-
ees, managerial employees , confidential employees
and guards, professional employees and supervisors
as defined in the Act.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in or activities
on behalf of the Union, or any other labor organization,
or refuse to reinstate our employees upon their uncondi-
tional offer to return to work, to existing vacancies, with
full rights and benefits under the then subsisting collec-
tive-bargaining agreement , or by discriminating against
them in any other manner with respect to their hire,
tenure, or any terms or conditions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL forthwith implement the above-described
agreement and give it retroactive effect from November
25, 1983.
WE WILL bargain with the Union as the exclusive bar-
gaining representative of our employees in the above ap-
propriate unit.
WE WILL make whole our employees for any loss of
pay or other employment benefits that they may have
suffered by reason of our refusal to implement the afore-
said agreement from November 25, 1983, with interest.
WE WILL offer all strikers immediate and full reinstate-
ment to their former positions or, if those positions no
longer exist , to substantially equivalent positions , without
prejudice to their seniority and any other rights or privi-
leges, dismissing , if necessary, replacement employees
hired on or after November 25, 1983, and make them
whole for any loss of earnings they may have suffered
by reason of the discrimination against them , with inter-
est. If at the compliance stage of this proceeding, it is de-
termined that we had insufficient job openings available
to be filled by all the strikers, then we shall place the
names of those strikers who may not be employed imme-
diately on a preferential hiring list.
GEORJAN, INC.
FORT MASON ENTERPRISES, INC.
LATROBE SPEEDWAY