224 N.L.R.B. 56 (N.L.R.B. 1976)

Laramee's Transit, Inc.

National Labor Relations Board - Board DecisionsMay 24, 1976

224 N.L.R.B. 56 (N.L.R.B. 1976)

56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Laramee's Transit , Inc and Gringeri Bros Transpor- tation Co., Inc , and Teamsters Local 251 , a/w In- ternational Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America. Case 1- CA-10348 May 24, 1976 DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS FANNING AND JENKINS On December 29, 1975, Administrative Law Judge Bernard Ness issued the attached Decision in this proceeding Thereafter, General Counsel and Re- spondent filed exceptions and supporting briefs 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, and conclusions of the Administrative Law Judge and to adopt his recommended Order' as modified herein ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge as modified herein and hereby orders that Respondents, Laramee's Transit, Inc, and Gringeri Brothers Transportation Co, Inc, Woonsocket, Rhode Island, their officers, agents, successors, and assigns, shall take the action set forth in said Order, modified as follows Add the following to the end of paragraph 2(c) "with interest at 6 percent per annum " i We agree with the General Counsel's contention that the payment of 6 percent interest should have been included in the Administrative Law Judge s recommended reimbursement remedy and Order as is the usual practice in cases where reimbursement of monetary losses has been ordered and shall amend the Order herein accordingly DECISION STATEMENT OF THE CASE BERNARD NESS, Administrative Law Judge Upon a charge filed by the above-named Union on January 2, 1975, as subsequently amended, a complaint dated March 6, 1975, was issued against Laramee's Transit, Inc, and Gringeri Bros Transportation Co, Inc, hereinafter re- ferred to individually as Laramee and Gringeri Bros, and referred to collectively as the Respondents The complaint, as amended both before and at the hearing, alleged that Grmgeri Bros is an alter ego of Laramee or a successor thereto, and further alleged the Respondents violated Sec- tion 8(a)(1), (3), (4), and (5) of the Act The Respondents denied any unfair labor practice violations Hearing was held before me on June 3-6 and July 7-9, 1975 Upon the entire record,' including my observation of the witnesses, and after due consideration of the briefs filed by the Gen- eral Counsel and the Respondents, I make the following FINDINGS OF FACT I JURISDICTION Laramee's Transit, Inc, a Rhode Island corporation, had maintained its principal office and place of business at 299 First Avenue, Woonsocket, Rhode Island, until the lat- ter part of December 1974 It was engaged in the business of transportation of freight and providing trucking services as a common carrier licensed by the Interstate Commerce Commission In the course and conduct of its transporta- tion operations from and through the States other than the State of Rhode Island, it transported freight and provided trucking services valued in excess of $50,000 annually Grmgeri Bros Transportation Co , Inc, a Massachusetts corporation, at all times material herein, has maintained its principal office and place of business at 70 Phillips Street, Watertown, Massachusetts, and has been engaged in the business of transportation of freight and providing truck- ing services In the course and conduct of its transportation operations from and through the State of Rhode Island and the Commonwealth of Massachusetts, it transported freight and provided trucking services valued in excess of $50,000 annually Based on the foregoing, and as agreed to by the parties, I find that Laramee and Gringeri Bros are engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act II THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer admits, and I find that Teamsters Local 251, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Introduction A central figure involved in this proceeding is Joseph Gringeri To properly understand and evaluate the issues, particularly the alter ego or successorship issue, a brief in- troduction of Joseph Gringeri is appropriate at this point i As requested by the General Counsel in his unopposed motion the transcript is hereby corrected in certain particulars 224 NLRB No 13 LARAMEE'S TRANSIT, INC Joseph Gringeri is and has been for a number of years the sole stockholder and owner of Gringeri Bros He has also been the sole stockholder and owner of Wellesley Trucking Inc and Valley Trucking Inc, hereinafter called Wellesley and Valley, respectively At all times material herein, Wellesley and Valley operated out of the same ter- minal as Gringeri Bros at 70 Phillips St in Watertown, Massachusetts Wellesley has been providing trucking serv- ices of heavy commodities requiring special equipment and rigging Valley has been a furniture carrier Gringeri Bros also operated from a terminal in Harvard, Massachusetts Joseph Gringeri also is and has been the sole stockholder of Newton Truck Rental, Inc, which is engaged in the business of renting trailers and tractors The principal issue involved in this case is the relation- ship between Laramee and Grmgeri Bros The General Counsel contends Grmgeri Bros is the alter ego or succes- sor of Laramee In December 1974, the Laramee terminal was closed down and the total operation including the equipment was moved to 550 Pond St, a terminal then in the hands of Gringeri Bros This resulted in a unilateral termination of a bargaining relationship that existed be- tween Laramee and the Union Only a segment of the Lar- amee work force went on the payroll of Gringeri Bros at reduced wages and changes in other working conditions and benefits It is the General Counsel's contention that Laramee violated Section 8(a)(1) and (3) of the Act when it discharged its work force, then being represented by the Union, because of their union support and that Gringeri Bros violated Section 8(a)(1) and (3) of the Act when it refused to employ certain Laramee employees because of their refusal to obtain withdrawal cards from the Union The General Counsel also alleges that Gringen Bros vio- lated Section 8(a)(1), (3), and (4) of the Act in its refusal to employ Raymond Brissette because of his union support and because he gave testimony and/or cooperated with the Board during a Board investigation of an unfair labor practice charge The General Counsel also alleges Laramee violated Section 8(a)(1) and (5) of the Act by bargaining individually with its employees and by closing down and transferring its operations to Grmgeri Bros without notice to the Union and failing to honor the existing contract The General Counsel also alleges Gringeri Bros violated Sec- tion 8(a)(1) and (5) of the Act by refusing to recognize and bargain with the Union and by making unilateral changes in the terms and conditions of employment of its employ- ees Finally, the complaint alleges independent violations of Section 8(a)(1) of the Act B The Laramee Operation Until the latter part of December 1974, Laramee had operated from its terminal on First Avenue in Woonsocket, Rhode Island, as a common carrier The Union had repre- sented the employees in a unit of drivers, helpers, mechan- ics, warehousemen, excluding office clerical employees, salesmen, guards, and all supervisors as defined in Section 2(11) of the Act Although Respondents' counsel argued the mechanics were represented in a separate bargaining unit, the record does not support such contention The Union had for many years represented all the employees in 57 the above-described unit but for the mechanics Although not clearly disclosed in the record, it appears that some- tune prior to 1970, the mechanics were added to the unit There was only one steward-one of the drivers who repre- sented all the employees, including the mechanics The most recent contract applicable to Laramee and the Union was the National Master Freight Agreement and the New England Supplemental Agreement covering the period July 1, 1973, to March 31, 1976 Laramee and the Union en- tered into a supplemental agreement covering additional terms and conditions applicable to the mechanics I find that during the material period herein, the appropriate bar- gaining unit was as described above and the Union was the exclusive bargaining representative of the employees in said unit In 1970, Joseph Gringeri was intent on purchasing Lara- mee and its operating rights Because Gringeri Bros was a contract carrier and Laramee a common carrier, ICC ap- proval for the purchase would have been required Pro- cessing of the application would have taken months Jo- seph Grmgeri testified that because Laramee's owner, Gaspar Amato, was anxious to sell immediately, Joseph's brother Sam purchased Laramee Sam Gringeri did not op- erate as a carrier so there was no delay in completing the transaction Joseph loaned Sam the money for a deposit and then Joseph and his wife guaranteed payment of a note to a finance company that advanced the funds for Sam to purchase Laramee Prior to Sam's purchase of Lar- amee for $125,000, he was a truckdriver for Gringeri Bros 2 In February 1973, the U S district court found Joseph Gringeri had acquired and maintained unauthorized con- trol of Laramee and he was fined He pleaded nolo contend- ere 3 By this time the note had been paid When the sale was consummated in 1970, Amato assembled the employ- ees in the terminal and announced that Joseph Gringeri who was standing next to him was the new owner Both Sam and Joseph Gringeri testified in this proceeding Both attempted to show that Stephen Bartlett as general manag- er of Laramee ran the business and when decisions had to be made by the owner it was Sam who made the decisions Bartlett had been employed by Laramee since 1952 and was general manager Bartlett ran the day-to-day opera- tions at the terminal and signed the payroll checks He was the top operating official at the terminal However, the rec- ord disclosed that Sam Grmgeri was for all practical pur- poses a nonentity as far as Laramee was concerned During the more than 4 years that Sam supposedly owned Lara- mee he was at the terminal no more than twice When he testified, he could not even recall the address of the termi- nal The Laramee terminal was a leased property, but Sam did not know from whom it was leased Sam also testified he had instructed Bartlett to notify the Union of the clos- ing of the terminal and Bartlett later told him he sent such notice Sam also testified Bartlett was Laramee's terminal manager at the time of the closing in December 1974 This testimony was completely at odds with the facts Bartlett 2 At the time of the hearing Sam Gringeri was manager of a company not otherwise involved in this proceeding That company is also owned by Jo- seph Gringeri G C Exh 5, p 2 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had severed his employment with Laramee on August 14, 1974 Bartlett never sent any notice to the Union about the closing, for his employment with Laramee ended 3 months before any announcement was made of the contemplated closing It is undisputed no notice was given to the Union On the other hand, Joseph Gringeri's hand is dominant herein When the Laramee facility was purchased in 1970 it was Joseph Gringeri who asked Bartlett to stay on as gen- eral manager Prior to the 1970 purchase, Laramee did not rent any equipment from Newton Rental, wholly owned by Joseph Grmgeri Bartlett credibly testified that after the 1970 purchase he communicated with Joseph Grmgeri whenever replacement equipment was needed Joseph told him where to pick up the tractor or trailer This equipment came from Newton Rental Although Bartlett was sup- posed to be running the business he did not know anything about the rental arrangements or how payment was made for the use of the equipment 4 Bartlett testified he spoke to Joseph Grmgeri in Watertown in 1972 and asked him for a raise and Joseph Gringeri approved it I do not credit Joseph's testimony that the raise was granted after he ob- tained approval from his brother Sam, for Bartlett testified Joseph approved the raise on the spot In July 1974, before going on vacation, Bartlett told Joseph that when he re- turned from vacation he wanted an assistant or else he would revert to a job as a rate clerk When he returned from vacation, Joseph told him he was no longer terminal manager and that he was then a rate clerk Jack Santana, who until then had been a salesman for Laramee, was ap- pointed by Joseph as the new terminal manager I do not credit Joseph Gringeri's testimony that he recommended Santana for the job to his brother Sam, and it was only after Sam's approval that he asked Santana to take the job I find Sam was never consulted and that it was Joseph Grmgeri who appointed Santana without any direction from or consultation with Sam For as Sam himself testi- fied he stated Bartlett was the terminal manager until the terminal was closed in December He stated Santana was only the solicitor or salesman at Laramee A notice on the bulletin board to employees over Joseph Gringeri's name announced Santana's appointment as general manager During the 1970-74 period, several other notices to em- ployees pertaining to their conduct at the terminal were posted on the bulletin board with Joseph Gringeri's name He denied signing any of the notices but admitted seeing them on the wall He testified he "didn't think too much about it " No notices ever appeared with Sam's name On March 6, 1974, an application was filed with the ICC whereby Gringeri Bros sought to purchase all the operat- ing rights of Laramee, Wellesley, and Valley under section 5 of the Interstate Commerce Act In this same application Joseph Grmgeri, through ownership of the capital stock of Gringeri Bros, Wellesley, and Valley, sought authority to acquire control of the operating rights through the pur- chase The consideration for the purchase was in shares of 4 Joseph Grmgen testified he rented equipment to his other wholly owned companies as well as to Laramee through Newton Rental He testified equipment was leased to Laramee on written long-term leases He signed the instruments as an officer of Newton but did not recall who signed on behalf of Laramee common stock of Grmgeri Bros Simultaneously, Joseph Grmgen, acting through Gringeri Bros, filed an applica- tion with the ICC seeking authority for the purchase of the operating rights of Theroux Brothers, Inc, a common car- rier with its office and terminal located at 550 Pond St, Woonsocket, Rhode Island With this application Joseph Gringeri sought to acquire control of the operating rights through purchase Cash was the consideration The Pond St terminal was located about 1 mile from the Laramee terminal Gringeri Bros was granted temporary authority to operate the Theroux operation pending processing of the application because of Theroux's financial distress The Theroux terminal employees had been represented by the Union and for reasons not material to the issues involved herein, Grmgeri Bros operated the terminal for only a few days and then ceased operations at the Pond St terminal in early May 1974 Shortly after Gringeri Bros received ICC permission to operate Theroux, a letter was sent to Laramee's and Theroux's customers under Laramee's letterhead and at the bottom of the letter, appearing as signatories were, "Mr Joseph Gringeri, Owner and Operator Theroux Bros and Laramee's Trans," "Mr E Chicome, Manager Theroux Bros, Inc," and "Mr S Bartlett, Manager Laramee's Trans " 5 In part the letter read as follows Please accept our most humble apologies for not writ- ing to you sooner and for not contacting you on a personal basis to explain the purchase of Theroux Bros and the transition that followed this purchase The union turmoil and confusion that followed this purchase did not allow immediate contact, but we felt confident that our valued customers with whom we have been in business for many a decade would `stay with' Theroux Bros and Laramee's Trans while the transition was completed Theroux Bros was put up for sale in early 1974, and many parties, including Mr Joseph Grmgeri, were in- terested in this purchase, with the final result being that it was sold to Laramee's Trans, owned and oper- ated by Mr Joseph Grmgeri Now you have two trucking companies with almost similar rights and routes and with almost the same amount of personnel, both in management and in truck drivers Your payroll has now gone up almost 100% but your income went DOWN What do you dog You have to make changes like any businessman to balance the balance sheet or go BROKE Please dear valued customer, understand the cir- cumstances before you contemplate any change We, LARAMEE S TRANS and THEROUX BROS, will continue to give you good service and in fact, we will give you 5 G C Exh 7 This letter was introduced through testimony of Bartlett He testified the letter was mailed by the girls in the Laramee terminal office He had nothing to do with the preparation nor did he know of its origin He did not authenticate the initialing of Joseph Gringeri's name on the letter However Joseph Gringeri was present in the hearing room as Bartlett test[ fied He was not questioned about this letter I find that Joseph Gringeri was responsible for the origin of this letter LARAMEE'S TRANSIT, INC better service than you have had in previous years STAY WITH US[ The ICC issued orders on October 15, 1974, approving and authorizing the purchase and acquisition by Gringeri Bros of the operating rights of Laramee, Wellesley, Valley, and Theroux and the acquisition by Joseph Gringeri of control of the operating rights By the terms of the orders, the authority granted was to be exercised within 180 days, otherwise the authorization would be of no force and ef- fect By notice dated March 1, 1975, the ICC was notified by the parties concerned that the transaction involving Gringeri Bros, Laramee, Wellesley, and Valley was con- summated as of that date The ICC was also notified at a later date the transaction involving Gringeri Bros and Theroux was consummated retroactive to March 1 Frank J Weiner, an attorney specializing in practice before the ICC and who represented the Respondents in processing the applications testified that Gringeri Bros had no au- thority to operate Laramee until March 1, 1975 But yet the record clearly shows that it was Joseph Gringeri who was the dominant hand in the Laramee operation from the time of the 1970 purchase And it was Joseph Gringeri who made the decision to close the Laramee terminal in De- cember 1974 C The Supervisory Status of Philip Masse Philip Masse had been the dispatcher at Laramee's First Avenue terminal since 1950 When the operation was moved to Pond St in December 1974, he became the dis- patcher there The parties disagree as to his supervisory status, the General Counsel contending Masse is a supervi- sor The dispatcher was not included in the bargaining unit which had long been represented by the Union Prior to the close of the Laramee terminal about 20 drivers were regu- larly used each day Masse worked from 3 30 a in to 4 45 p in He prepared the dispatch schedules and assigned runs to the drivers The drivers had standard instructions to call Masse while out on their runs for further instructions and Masse would assign them to make additional pickups If a scheduled driver failed to report for his assignment, Masse would call another man from the seniority list He would leave instructions for drivers to call him upon their return to the terminal from a run to find out whether they should report the following day for an assignment 6 The record discloses that Masse hired employees on occasion on a day-to-day basis without clearance with the terminal man- ager Masse testified that for the last 2 years prior to the closing, no new men were hired on a permanent basis since the company drew a complement from the seniority list Before then, as he testified, he would sometimes hire em- ployees without prior consultation with the terminal man- ager Before the expiration of the employee's probationary period he would consult with the manager whether the em- ployee should be retained His recommendations were nev- er overruled During the period Santana was terminal man- ager, Santana was out soliciting or on other business away 6 Masse would have left the terminal before the drivers returned from their runs Michael Lalh was a combination rating clerk and night dispatch- er whose salary was considerably less than that of Masse He was not in the bargaining unit and no contention was made that he was a supervisor 59 from the terminal for about 5 hours a day, 5 days a week, beginning about 8 or 9 a in Masse was present at the ter- minal during Santana's absence Thus , no admitted super- visor would have been at the terminal during a substantial part of the day's operation Contrary to the Respondents' contention, I do not agree that the terminal manager was the sole supervisor at the terminal I find unconvincing Santana's testimony that the terminal "functioned by it- self" during his absence every day for about 5 hours a day Based on the foregoing , I find Masse exercised significant authority over the terminal employees and hired employ- ees, and effectively recommended the retention or dis- charge of employees His move to the Pond St terminal as dispatcher gave Masse expanded responsibilities according to Santana I find that Masse at all times material herein was a supervisor within the meaning of Section 2 ( 11) of the Act D The Laramee Closing and the Move to Pond St On November 8, Joseph Gringeri held a series of meet- ings with the Laramee employees in small groups as the drivers returned to the terminal in the late afternoon and evening As they came in to the terminal they were ushered into the terminal office by Jack Santana 5 Both Joseph Gringeri and his insurance agent Larry Monroe spoke to the employees Santana was present at some of the meet- ings Substantially the same statements were made at all the meetings The drivers were told that the Laramee oper- ation would be phased out and closed at the end of Decem- ber and the operation would be moved to the Pond St terminal as Gringeri Bros The employees were told it would be run nonunion-that a union was too costly The employees were invited to come to work at Pond St They were told they would receive $5 50 an hour (they had been getting $6 67), they would get 2 weeks vacation (they had been receiving up to 5 weeks based on their length of ser- vice), they would have a different insurance plan, and they were guaranteed a 45-hour workweek They were told they would have a pension plan in the future when the opera- tion became profitable The employees were told if they did not come to Pond St they would be out of a job when the Laramee terminal closed They were told to discuss the situation amongst themselves and another meeting would be held Nothing was said about the necessity of getting union withdrawal cards Oscar L Theriault had been employed at Laramee since 1940 as a truckdriver 8 He was the union steward at the terminal He notified James Mariano, the Union's business agent, of the November 8 meetings at the terminal A union meeting was held on November 10 and Mariano told the employees he would file unfair labor practice charges with the Board A charge was filed by Mariano on Novem- ber 19, 1974 (Case 1-CA-10,256), charging Laramee with 8(a)(5) violations in meeting with the employees and asking them to work at a lower wage rate and without union rep- resentation 9 7 Santana succeeded Bartlett as terminal manager in July $ His son Oscar N also was employed at Laramee as a driver Mariano died on November 29 and his responsibilities were taken over by another of the Union's business agents James Boyajtan The charge was Continued 60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the week ending December 21, Joseph Grmgeri appointed Jerry Morris temporarily to be terminal manag- er at Pond St, the former Theroux terminal which had been closed down since early May Masse shifted his dis- patcher duties to Pond St on December 18 Santana suc- ceeded Morris as terminal manager at Pond St on January 1 Beginning in midweek of the week ending December 21, the Respondents' supervisors asked the Laramee employ- ees if they were coming over to Pond St and either directly or indirectly told them withdrawal cards from the Union would be required to work at the Pond St terminal 10 1 Laramee employees on the seniority list who went to Pond St without a break in service The parties stipulated that 10 employees went to work at Pond St without a break in service from Laramee 11 They had been actively employed at the Laramee terminal until the closing In substance they were told they had to get withdrawal cards to work at Pond St When Desrochers reported at the Laramee terminal on the morning of December 17, he was asked by Masse if he had made up his mind about getting a withdrawal card- that most of the men were getting them Desrochers said he would get it while out on his run Desrochers called the terminal later in the day regarding any pickups to be made Masse asked if he got the withdrawal card When Desroch- ers said he did, Masse told him to return to Pond St Since then Desrochers has worked out of the Pond St terminal Drivers McAssey and Oscar N Theriault both testified they were told by Masse at the Laramee terminal on De- cember 17 to pick up their union withdrawal cards and then return to the terminal to work They obtained their withdrawal cards at the union hall They returned to the Laramee terminal and, in Santana's presence, told Masse they had their withdrawal cards Masse then assigned them runs and they were instructed to return to Pond St upon completion of their runs Driver Robert Mercure was told by Masse if he wanted to work at Pond St he had to get a withdrawal card He agreed to get the card and then when he called in from his run on December 17 he was told by Masse to return to Pond St Rene Peloquin, who was not assigned to a regular route, called the Laramee terminal On December 16 and 17 he was asked by Masse if he intended to get a withdrawal card Masse said, "Work is still hard to come by" and told Peloquin to get a withdrawal card if he wanted to keep working Masse told him to bring the withdrawal card to the Pond St terminal Peloquin obtained the withdrawal withdrawn on December 18 and the original charge in this proceeding was filed on January 2, 1975 10 It will be recalled that at the November 8 meeting Joseph Gringeri told the employees when the operation moved to Pond St it would be nonunion Although the employees had been told the move would take place at the end of December, the date awas moved up about 2 weeks 11 G C Exh 11, sec I Drivers Leo Desrochers, James McAssey, Robert Mercure Rene Peloquin, Gerard Rouleau Charles St George Oscar N Theriault and William Vanasse, platform man Stanley Kurowski and night platform man and working foreman Marcel Joyal card which he showed to Morris Peloquin then received a call from Masse to come to work He began on December 18 at Pond St Gerard Rouleau received a call from Masse early in the morning on December 18 Masse said he needed him to work that morning Masse told him to stop at the union hall and pick up a withdrawal card en route to the Laramee terminal Rouleau protested that it would be out of his way to first stop at the union hall, some 25 miles away Masse then instructed him to report directly to the terminal that morning and then pick up the withdrawal card while on his route Rouleau agreed Rouleau got the withdrawal card during the day Charles St George testified he was told by Masse on December 17 that if he wanted to work at Pond St he would have to get a withdrawal card St George agreed to get the withdrawal card and arranged for Desrochers to pick it up for him When St George returned to the termi- nal that evening, the night dispatcher gave him his with- drawal card which had been left there for him William Vanasse was told by Masse on December 18 he had to get a withdrawal card to work at Pond St He was told to pick up his withdrawal card while on his run that day Vanasse did and at the completion of his run he re- ported to Pond St Stanley Kurowski, a platform man, who worked from 8 p in to 4 30 a in, testified he went to Pond St with Work- ing Foreman Joyal to unload trucks on December 17 after first punching in at Laramee Joyal told him to get a with- drawal card which Kurowski did the morning of December 18 He asked Joyal if he wanted to see it Joyal said no and turned to Santana who was standing there and asked San- tana if he wanted to see Kurowski's card Santana replied, "No, as long as he has it " 12 Each of the above-named signed a "To Whom It May Concern" letter dated December 17 prepared by Business Agent Boyajian which stated, in effect, they were request- ing union withdrawal cards under protest-that they were compelled to obtain withdrawal cards in order to work at Pond St 13 All but Rouleau then turned around and signed union application cards Boyalian explained he wanted to keep the group intact and preserve the bargaining rights He explained to the Laramee employees that the only way to get to work at Pond St was by obtaining withdrawal cards, and if they did desire to work there they would not jeopardize their union standing by taking such action But obviously to show they still supported the Union, he re- quested they sign union application cards which they did at the home of Oscar L Theriault, the Union's steward 14 2 Laramee employees on the seniority list who did not go to Pond St The parties stipulated that 12 named Laramee employ- ees did not go to the Pond St terminal when the operation was moved there on December 18 11 Oscar L Theriault, the 12 Joyal was not called as a witness 13 G C Exh 8 Joyal's name does not appear thereon 14 No union application card was presented for Rouleau 15 G C Exh 11, sec IV Drivers Ernest Aubin Robert Auger, Henry Beaudoin Leo Dubois Rene Forand, Aldor Gilbert, Robert King, Germain LARAMEE'S TRANSIT, INC 61 union steward, also refused to work at the Pond St termi- nal His name appears to have been inadvertently omitted from this group and is hereby included, raising the number to 13 All in this group but for Pelletier and Turcotte are al- leged in the complaint as discrimmatees Auger had been employed by Laramee since 1938 as a truckdriver Auger testified that at the November 8 meet- ing he told Joseph Gringeri that he would lose his pension if he went to work for Gringeri Bros at Pond St Joseph Gringeri responded that Auger would still be able to collect his pension Auger also testified that when he returned to the Laramee terminal after his run on December 18 he asked Santana what his status was Santana said, "You're laid off" and Auger left Auger applied for retirement about 1 week later but was employed elsewhere at the time of the hearing 16 Dubois had been employed by Laramee as a driver since 1953 He testified that when he returned from his run on December 18 he noticed there was no timeclock He asked Santana what his status was and Santana replied he was laid off if he did not go to Pond St Dubois received his paycheck and left 17 He testified he did not go to Pond St because if he had gone to Gringeri Bros at Pond St as a nonunion shop, he would be ineligible to collect his Team- sters pension He applied for retirement under the Team- ster pension plan on December 1 to take effect in February 1975 He filed his application then because he knew after the November 8 meeting he would be out of ajob when the operation moved to Pond St Forand had been employed by Laramee for 39 years as a truckdriver When he came in from his run on December 18, the timeclock was gone and only the two office girls and Santana were present Santana gave him his paycheck and asked Forand whether he was going to retire or collect unemployment compensation Is Forand did not respond and left He did not apply for retirement He testified he did not apply for employment at Pond St because he be- lieved he would have lost his pension rights Henault, a mechanic at Laramee since 1956 testified that at the end of the workday on December 20 he was told by Santana he was laid off 9 In January he visited the Pond St terminal and told Santana he was ready to go to work When Santana asked whether he had obtained a withdraw- al card, he replied he didn't get it yet He then saw Masse who told him Santana would contact him He was not called In early March he again visited the Pond St termi- nal after noticing a Gringeri Bros ad in the paper for a diesel and gas mechanic 20 Santana asked if he wanted to go to work When he answered in the affirmative, Santana said he would have to get a withdrawal card He told San- tana he had already obtained the card and added that San- tana should check to see whether the company really want- ed him since he had only limited experience with diesel engines Santana replied he would talk to Joseph Gringeri and let him know About a week later, Santana told him he couldn't use him because Joseph Gringeri wanted an expe- rienced diesel mechanic Robert King had worked as a truckdriver for Laramee since 1944 When he returned to the Laramee terminal on December 18, he was told by Santana the terminal was closing and said he understood King was retiring and didn't want to go to Pond St King acquiesced and said he wouldn't go to Pond St because he did not want to lose his pension opportunities 21 Pouliot had worked as a truckdriver for Laramee since 1940 When he returned to the Laramee terminal after his run on December 18, Santana told him they knew he was close to retirement and he was terminated Pouliot had filed his application for retirement under the Teamster pension fund in the summer of 1974 but had intended working at Laramee until the end of January 1975 Robert had worked as a truckdriver for Laramee since 1955 On December 16 he was asked by Santana if he in- tended to go to Pond St Robert replied he would not work there for less money and as a nonunion shop On Decem- ber 18 he called the Laramee terminal in the mormng to find out if he was to work that day Masse told him there was no work for him and he was "all done " Robert ap- plied for his retirement pension on January 15 Oscar L Theriault had worked for Laramee as a truck- driver since 1940 At the time the Laramee terminal closed down he was the union steward When he met with Joseph Gringeri on November 8, he mentioned to Joseph Gringeri he had a pension coming up and did not want to jeopardize it by going to a nonunion shop at Ponci St Joseph said the Union could not take the pension away, he could get a withdrawal card On December 18, when he returned to the Laramee terminal, Santana asked if he had decided whether to go over to Pond St Theriault replied he could not go, thereupon Santana said he was terminated Ther- iault applied for his pension in January The remaining Laramee employees in this group did not testify in this proceeding 22 3 Laramee employees on the seniority list with a break in service who went to work at Pond St Pelletier Auguste Pouliot and Marcel Robert, mechanic Richard Henault and platform man Edward Turcotte Pelletier had been on sick leave as of November 2, 1974 16 Initially Respondents contended some individuals were retirees and not employees I permitted testimony concerning retirement action taken by employees but I expressly stated to the parties I was limiting this testimony only insofar as it concerned their status as employees and was not being considered insofar as any willful loss became any issue i7 Payday normally was on Friday December 18 was a Wednesday is At the November 8 meeting Forand remarked to Joseph Gringeri he would lose his pension rights if he went to Pond St as a nonunion shop 19 The complaint was amended at the hearing to include him as one of the Laramee employees refused employment by Gringeri Bros for discrimina- tory reasons The parties stipulated that four named employees who appeared on the seniority list but were not actively working at Laramee at the time of the closing went to work at Pond St after the operation was moved there 23 They are not named as discrimmatees in the complaint, apparently be- 2')In the meantime he had obtained a withdrawal card 21 He explained that had he gone to Pond St he would not be credited towards his pension time since Gringeri Bros would be operating nonunion 22 Aubm, Beaudoin Gilbert Pelletier, and Turcotte 23 Driver Thomas Carey platform man Rino Grassi, mechanic Raymond Houde and yardman John Lariviere 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause they were not working at Laramee at the time of the closing but were in a laid -off status Carey had been laid off from Laramee the first week in December and then went to work at Pond St the week ending December 21 Grassi had last worked for Laramee in the latter part of September and then went to work at Pond St the week ending January 11, 1975 Lariviere had last worked at Laramee the week ending November 2 He began at Pond St the week ending December 21 None of the three testified in this proceeding Houde had been laid off in September at Laramee He returned for a few days in the first week in December to fill in for a sick employee Houde testified Santana called him during the week ending December 21 and asked whether Houde was available for work When Houde said he was, Santana told him to re- port for work at Pond St Houde began at Pond St during the week ending December 21 Sometime the following week, at the Pond St terminal , Santana told him he would have to get a withdrawal card to continue working Within the next day or two, Houde secured the withdrawal card On Friday, December 27, as he was punching out, Masse told him that if he did not have his withdrawal card he need not report for work the following Monday Houde told Masse he already had the card Houde then continued working through March 31, 1975 Carey and Grassi were among those who signed the December 17 "To Whom It May Concern" letter dated December 17, referred to supra Carey and Houde then also signed union application cards dated December 23 4 Former Laramee employees not on seniority list who went to work at Pond St By stipulation , the parties agreed the five named individ- uals, all drivers, who at one time worked for Laramee but were not on the seniority list, went to work at Pond St during the week ending December 21 24 The parties agreed these individuals should be included in the bargaining unit in determining the Union's majority All but Brissette are still employed at Pond St While at Laramee they worked as spares filling in for other employees Brissette is the only one of the group named in the complaint as a discrimina- tee 5 The alleged discrimination against Raymond Brissette The General Counsel alleged in his complaint that Re- spondent Grmgeri Bros refused to employ Brissette be- cause of his interest in the Union and/or because he gave testimony and/or cooperated with the Board during a Board investigation Brissette had worked at Laramee during the 1966-70 pe- riod He then worked for Theroux until it closed at the beginning of May 1974 He then worked as a spare at Lara- mee during the summer of 1974 , filling in while men were on vacation During the week beginning December 9, he visited the Pond St terminal looking for a job and spoke to 24 Raymond Brissette , Albert Brien, Albert Lantagne Donald Pincince and Joseph H E Robin Morris 25 Morris told him the Laramee men were being given preference and in the meantime they were just taking names Morris asked whether Brissette was a union driver When Brissette said he was , Morris told him he would need a withdrawal card to work because "Joe Gringeri would be operating nonunion " Brissette responded he would look into it On December 18 Masse telephoned Brissette and told him to come to work at the Pond St terminal Masse told Brissette he would need a withdrawal card Brissette started on December 18 and continued until the week end- ing January 25 Brissette worked as a spare and during this period of employment , he never worked a full week Bris- sette credibly testified that on January 7, Santana asked him how he would vote if the Union "became involved " Brissette responded he did not know Santana then replied he did not want to pressure Brissette but wanted an answer as soon as possible Masse was present but did not partici- pate in the conversation The next day when Brissette tele- phoned about availability of work, Masse told him there wasn't any and told Brissette to come to the terminal be- cause Santana wanted to talk to him When Brissette first came to the terminal Santana was not in the vicinity Masse asked him if he had made up his mind about sup- porting the Union Brissette replied he had not Masse then showed Brissette a note reading in substance that Brissette should not be given any work until he decided he would no longer support the Union 26 Masse said he was not sup- posed to show this note to Brissette Brissette then showed Masse the withdrawal card he had obtained on an earlier date When Santana walked in, Masse showed him the withdrawal card 27 On Thursday, January 23, Brissette telephoned to in- quire if there was any work available Masse told him there was not but said Santana wanted to talk to him about his union activities Masse said they had heard Brissette had been at a meeting with a Board agent at the union hall 28 Brissette came to the terminal that evening Santana told him he found out about his meeting at the union headquar- ters Santana said he did not want any prounion employees on his payroll Santana also said if Joe Gringeri ever dis- covered anyone was trying to bring in a union , he (Santa- na) would lose his job Santana admitted talking to Bris- sette about his visit to the union hall Santana said he received this information from Masse According to Santa- na, he told Brissette he had learned Brissette had been at the union hall and that Brissette at first denied it and then said he had gone along with one of the Theriaults Santana then told Brissette that his visit to the union hall could jeopardize his (Santana 's) job Santana also testified he told Brissette "that if he had intentions of working for a union shop, there were other union barns around he could go to He knew when he came to work for us that he had to 25 Brissette said he had heard from former Theroux drivers that there would be hiring at the terminal 26 This note was not otherwise identified in the record Masse was not questioned about this note 27 1 do not credit Santana's denial that he ever asked any employee how he would vote on a question of union representation Masse admitted asking employees this question Brissette testified he met with a Board agent at the union hall on Janu- ary 13 in connection with his conversations with Santana and Masse on January 7 and 9 referred to supra LARAMEE'S TRANSIT, INC get a withdrawal card and he was going to work along as a driver but not as a union driver " Brissette has not been called for work since 29 Santana testified business at the terminal dropped off and there was no work available for Brissette But this reason does not comport with the facts Santana testified no new drivers were hired but yet the stipulation entered into by the parties shows that one Paul Robin, a driver, was hired the week ending February 1-he was still employed at the time of the hearing Robin had not previously worked at Laramee 30 Moreover, Brien and Pincince, both employed together with Brissette at Pond St the first week in operation, have been continuously em- ployed as casuals according to Santana 31 E The Respondents' Testimony Regarding the Requirement of Withdrawal Cards Masse testified that on Monday, December 16, Oscar L Theriault told him a union meeting had been held the pre- vious weekend, that he himself was going on retirement, and that he had told the Laramee employees to get with- drawal cards to work at Pond St 32 He testified this was the first he had heard about withdrawal cards Masse testified he had been a member of the Union until he became a dispatcher and was no longer in the bargaining unit He was told at that time to get a union withdrawal card, which he did Masse testified he never "pointblank" told the men they had to get the withdrawal cards He admitted he talked to just about all the Laramee employees and asked them if they were coming to work at Pond St and if they were going to get withdrawal cards Masse said he under- stood it was a union requirement that a member get a with- drawal card when he goes to work at a nonunion shop" On December 16, after Masse's conversation with Ther- iault, Masse reported this conversation to Santana Masse testified Santana replied as follows "He told me the driv- ers would have to get their withdrawal cards " Santana testified the first he heard of withdrawal cards was when Masse reported the conversation with Theriault Santana said he instructed Masse to look into whether the employees got their withdrawal cards Although Santana initially testified his only concern about employees getting withdrawal cards was "for their own protection," that is the employees', his other testimony convinced me his para- mount concern was that the Pond St terminal should be nonunion Excerpts of his testimony follow Q All right So, you were interested, I assume from your testimony, that the reason you wanted Mr Masse to see if they got their withdrawal cards was merely for their own protection A Yes, sir 29 Driver Desrochers testified he had just returned from his run and heard Santana and Brissette in the midst of their conversation He corroborated Brissette s version except he didn't hear the first part referring to the union meeting 30 G C Exh 11, sec III (a) 31 The transcript on pp 872 and 873 incorrectly refers to Al Brien as "Hal Ryan ' 32 Theriault's testimony is in substantial accord in this respect 33 He was incorrect and admitted he had never read the bylaws He also testified that he asked the employees about the withdrawal cards `because we were going nonunion' and it was only "for his own information 63 Q And you weren't concerned otherwise, were you, whether they got withdrawal cards, other than for their own protection A Right, sir Q That was your only reason A That was my only reason Q Tell me, then, when you spoke with Mr Bris- sette, about going to work there, were you concerned merely for his own protection that he get the with- drawal card" A At that time, I was vague as to what would hap- pen if this man maintained his Union card and, again, I was not looking for any problems and that's the rea- son I wanted him to go along with the other men and get his- Q What do you mean, "any problems"9 A Well, I did not know what could have happened if a man maintained his book while working for a non- Union company Q You mean what would happen to who, to him? A To him and also to the Company Q What do you mean to the Company? A As I say, I don't know what could have hap- pened, I hadn't the least idea what type of problems that I could foresee Q You mean that the Union may want representa- tion again if they didn't have withdrawal cards9 A No, because the man had his card, I didn't know exactly what problems could arise with his card while working for a non-Union company Q Problems for the employee or for the Company9 A Both employee and Company A What problems were you thinking of for the Company9 A I don't know One thing, as I mentioned before, sir, as far as cost was concerned, we could not absorbe (sic) any additional cost to the Company If the boys had any intention of joining the Union, as I men- tioned before, the (sic) could look for another job be- cause of the fact we could not afford the additional cost Q If the boys wanted the Union, then you were afraid there would be an additional cost A If the Union got in, yes, sir Q Would that be true, if the employees didn't get their withdrawal card, you would have assumed from that they wanted the Union A Again, please, sir9 Q If employees didn't get their withdrawal card, were you assuming from that that they still wanted the Union A I assumed that they wanted to work for a Union company And his testimony about his conversation with Brissette concerning the withdrawal cards makes clear his interest was not to protect Brissette A Well, I asked him if he had gotten his withdraw- al card and he answered in the negative, he hadn't gotten it And, I told him that-I reminded him that he had said he was going after it and he said-I forgot 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what his reason was, he didn't go after the withdrawal card and I told him that he had promised he was going to come in with it and he didn't show up with it Santana admitted telling employees that other employees were getting withdrawal cards and coming to work and asking them what their intentions were I am convinced that Santana was fearful of the Union being the bargaining representative at the Pond St termi- nal and it was for this reason he instructed Masse to tell the employees they had to have withdrawal cards to work at Pond St And even if Masse were found not to be a super- visor, he clearly was Respondents' agent in conveying Santana's conditions to the employees Based on the foregoing, I find that Santana, Morris, and Masse made clear to the employees that if they wanted to work at Pond St they would have to obtam union with- drawal cards, in effect they would have to agree to re- nounce any support for the Union to be the bargaining representative Even though some employees who went to work at Pond St did not obtain their withdrawal cards until after they began working, this does not detract from the imposition of the condition The employees clearly un- derstood, based upon the statements made to them by Re- spondents' supervisors, they could not work at Pond St without withdrawal cards F Conclusions 1 Grmgeri Bros is the alter ego of Laramee I have found above that, even prior to Joseph Gringeri's application to the ICC to acquire the operating rights of Laramee, he had been the top level individual running Lar- amee and his brother, Sam, purporting to be the owner, was, for all practical purposes, sitting on the sidelines and only the nominal owner Joseph Gringeri was the control- ling influence in the operation of Laramee and made the major decisions expected to be made by the owners of a business enterprise From 1970 on, Joseph Gringeri had been held out to be the owner of Laramee And when Joseph Gringeri told the employees on November 8 the First Ave terminal was to be shut down and moved to Pond St, he was wearing two hats As the Laramee spokesman, he announced the shut- down and as the Gringeri Bros spokesman, he imposed the conditions under which the employees could continue their employment at Pond St Grmgeri Bros was not authorized to operate Laramee until March 1, 1975, but it was still Joseph Gringeri who was the one responsible for the move in December 1974 The control of both corporations-Lar- amee and Gringeri Bros was in the hands of one individu- al-Joseph Gringeri The employer-employee relationship changed to the extent that the name of the corporate em- ployer was changed and the employees no longer had the protection of the collective-bargaining agreement and their representative The management and control remained the same Gringeri Bros itself had not operated out of Pond St except for about 2 days in late April or early May 1974 The terminal lay inactive until after the ICC approved the acquisition by Joseph Gringeri of the Laramee operating rights in October 1974 And it was after that Joseph Gring- en put the wheels in motion to move the operation to Pond St Accordingly, I find that this business of the Respon- dents as now constituted is a mere continuation or alter ego of the business which existed prior to the move to Pond St 34 2 The discharges and the refusal to bargain It is undisputed that the Respondents never notified the Union of the contemplated move to Pond St nor did it give the Union an opportunity to discuss the effects of the move Instead the Respondents unlawfully bypassed the Union and went directly to the employees And when the transfer was effected, the Respondents repudiated the ex- isting contract, the bargaining relationship with the Union, and changed the working conditions of the unit employees It has earlier been found the appropriate bargaining unit at the Laramee terminal at First Ave, in Woonsocket, Rhode Island, was drivers, helpers, mechanics, warehouse- men, excluding office clerical employees, salesmen, guards, and all supervisors as defined in Section 2(11) of the Act 35 The Respondents contend that after Joseph Gringeri ac- quired the operating rights of Laramee and the operation was transferred to Pond St , the preexisting unit became inappropriate and the appropriate unit to be found is one unit, consisting of all three Gringeri Bros terminals, i e , Pond St in Woonsocket, together with the Harvard and Watertown, Massachusetts, terminals 36 Although the Respondents argue there were operational changes after the move, the evidence shows such changes were minimal There was testimony that some routes were changed and less trucks were being utilized But the record clearly shows that such changes in routes were made not long after the move to Pond St because of a loss of ton- nage hauled And Santana himself stated if the business picked up again to what it was before the move, the opera- tion would revert to what it was before It should be noted in this connection that all drivers actively working at the Laramee terminal immediately prior to the closing who had assigned routes and who thereafter went to Pond St were assigned to the same routes, and, in most cases, with the same equipment 37 In attempting to show the three terminals are interrelat- ed, Santana first testified repair work of Pond St terminal equipment is sometimes done at either the Harvard or Wa- tertown terminals and vice versa But this is done as a mat- ter of convenience depending on the location of the disa- bled equipment and the comparable distances of the respective terminals from the disabled vehicle And, more- over, the repair of equipment was handled in the same 34 Melrose Bindery, Inc and Graphic Arts Finishing Inc 204 NLRB 499 (1973) Loren Service Inc Draper Press Inc Bernard Dramen and Harold Berman 208 NLRB 763 (1974) 35 Although not specifically described dispatchers were also excluded from the bargaining unit 36 Distances between the respective terminals are as follows Between Watertown and Harvard-21 miles between Harvard and Pond-33 miles between Watertown and Pond-33 miles 37 Desrochers McAssey, Mercure Rouleau St George and Oscar N Theriault LARAMEE'S TRANSIT, INC 65 manner even while the terminal was at the First Ave loca- tion, only 1 mile away from Pond St There was no inter- change of personnel between the respective terminals either before or after the move None of the Harvard or Watertown personnel transferred to Pond St Respondents point out that prior to the Laramee acquisition Gringeri Bros was a contract carrier and after the ICC approval Gringeri Bros became a contract carrier Laramee itself had been a common carrier But the fact remains that Gringeri Bros did not operate at the Pond St terminal either as a common or contract carrier prior to the acquisi- tion All that was changed was moving the existing opera- tion I mile away from one building to another with its equipment, its supervisory personnel, and the employees willing to remain at work The Respondents also point out in this brief that there is one labor policy applying to the employees of all three terminals, wages, insurance, etc But this presupposes there was no obligation to bargain and no further obligation to honor the existing collective-bargaining contract when the move was made For if the Respondents violated the Act in unilaterally changing the working conditions of the em- ployees, contrary to the contract terms, it cannot later ar- gue that the changes destroyed the appropriateness of the existing bargaining unit With respect to the integration of operations, the Respondents argue in their brief that Jo- seph Gringen intends to combine all the terminals "under one roof" at Harvard Be that as it may, this is something contemplated at a future unknown date and is of no sig- nificance insofar as a present determination of a bargain- ing unit is concerned Based on the foregoing, I find that the unit appropriate for purposes of collective bargaining is as described above The only change is that now the operation itself is located at Pond St rather than at First Ave, in Woonsocket The Respondents contend that even if it is found that Pond St itself constituted an appropriate bargaining unit, the Union did not represent a majority of the employees in the unit Having found that the Respondents imposed un- lawful conditions to working at Pond St , i e , insistence on renunciation of the Union by the individual employees, a declaration it would not continue the bargaining relation- ship or honor the contract, and a unilateral reduction of benefits enjoyed by the employees under the existing con- tract, I find the Respondents discharged those employees who refused to accept such conditions 38 Such conduct vio- lated Section 8(a)(1) and (3) of the Act Since these em- ployees were discriminatorily discharged, they are still con- sidered employees by operation of law and hence to be considered in determining the Union's majority The Respondents, in their brief, argue that only 10 Lara- mee employees moved over to Pond St, without a break in service and should be the only ones to be considered in determining the Union's majority at Pond St The Respon- 38 Aubm, Auger, Beaudoin, Dubois, Forand, Gilbert, King, Pouliot Rob ert, and Oscar L Theriault I do not find that Henault was discriminatorily discharged He was replaced by Houde, a mechanic who had been laid off at an earlier date The record also shows the refusal by the Respondents to employ him in March 1975 was because of his inexperience with diesel engines dents contend that altogether there were 21 employees in the unit classifications after the move However , the parties stipulated there were 18 employees working at Pond St shortly after the move 39 The Union nevertheless repre- sented a majority For, all the 18 listed on General Counsel's Exhibit 11 had worked for Laramee either up until the time of the closing or had been laid off no earlier than May 1974 Apart from involuntary withdrawals from union membership , there is no evidence to support a con- tention they no longer wanted the Union as their collec- tive-bargaining representative Be that as it may, Gringeri Bros, I have found , is the alter ego of Laramee and thus a continuing obligation existed to recognize and deal with the Union and to honor the existing collective -bargaining contract Accordingly, I find that Respondents violated Section 8 (a)(5) and ( 1) of the Act by dealing with employ- ees individually concerning terms and conditions of em- ployment and by unilaterally changing the terms and con- ditions of employment of such employees I further find and conclude that by repudiating and refusing to honor the contract and to accord the Union continued recognition, the Respondents violated Section 8 (a)(5) and (1) of the Act 3 The discrimination against Raymond Brissette Brissette had last worked for Laramee in the summer of 1974, as a spare filling in for drivers on vacation Brissette began working at Pond St on December 18 after being told he would need a withdrawal card He last worked dur- ing the week of January 19, but prior to January 23 Dur- ing this last period of employment he worked as a spare and never a full week He had met with a Board agent at the Union hall in connection with the investigation of the unfair labor practice charge filed by the Union and was questioned about his conversations with Santana and Masse on January 7 and 8 I am convinced and find that Santana on January 23 terminated Brissette's employment because of his meeting with the Board agent and because such action by Brissette convinced Santana that Brissette still supported the Union Accordingly, I find such conduct violated Section 8(a)(1), (3), and (4) of the Act I further find that the Respondents violated Section 8(a)(1) of the Act by the unlawful interrogation of Brissette on January 7 and 8 by Santana and Masse CONCLUSIONS OF LAW 1 The Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 The Union is a labor organization within the meaning of Section 2(5) of the Act 3 At all times material herein, all drivers, helpers, me- chanics, warehousemen, excluding office clerical employ- ees, salesmen, guards, and all supervisors as defined in Sec- tion 2(11) of the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 4 At all times material herein, the Union has been the 39 See G C Exh 11 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exclusive collective-bargaining representative of the em- ployees in the aforesaid unit within the meaning of Section 9(a) of the Act. 5. By bargaining directly and individually with the em- ployees in the above-described unit concerning rates of pay, wages, hours of employment, and other terms and conditions of employment, by unilaterally changing the ex- isting wage rates and other terms and conditions of em- ployment, and by refusing to afford continued recognition to the Union, and to observe and honor the existing collec- tive-bargaining contract with the Union, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 6. By terminating Ernest Aubin, Robert Auger, Henry Beaudoin, Leo Dubois, Rene Forand, Aldor Gilbert, Rob- ert King, Auguste Pouliot, Marcel Robert, and Oscar L. Theriault because of their membership and support of the Union, the Respondents have thereby discouraged mem- bership in a labor organization and engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 7. By terminating Raymond Brissette because of his membership and support of the Union and because he gave testimony under the Act, the Respondents have there- by discouraged membership in a labor organization and engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and (4) of the Act. 8. By unlawfully interrogating employees concerning their union sympathies and by imposing unlawful condi- tions upon their continued employment, the Respondents have interfered with, restrained, and coerced employees in the exercise of their rights guaranteed by Section 7 of the Act and thereby violated Section 8(a)(1) of the Act. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 10. Except for the foregoing, Respondents have commit- ted no unfair labor practices. THE REMEDY Having found that the Respondents have engaged in cer- tain unfair labor practices, I will recommend that they be ordered to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondents, in derogation of their statutory obligations, withdrew recognition from the Union, refused to honor the existing collective-bargaining agreement with the Union, and unilaterally made changes in wages, rates of pay, and other terms and conditions of employment of the employees, and deeming it appropriate that the employees be reinstated to their employment sta- tus they enjoyed prior to the Respondents' unilateral ac- tion, I shall recommend that the Respondents be ordered to recognize the Union's representative status, to observe and honor the existing collective-bargaining contract, to restore retroactively the wages, rates of pay, and all other terms and conditions of employment in effect prior to such unilateral action, and, accordingly, to reimburse those bar- gaining unit employees employed after the move. As the Respondents unlawfully discharged Ernest Au- bin, Robert Auger, Henry Beaudoin, Raymond Brissette, Leo Dubois, Rene Forand, Aldor Gilbert, Robert King, Auguste Pouliot, Marcel Robert, and Oscar L. Theriault, I shall recommend that the Respondents be ordered to offer each of them, except for Pouliot, full and immediate rein- statement, without prejudice to their seniority or other rights and privileges, and to reimburse them for any loss of pay and other employee benefits they may have suffered. Backpay shall be computed on a quarterly basis, plus inter- est at 6 percent per annum, as prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), from the date of dis- charge to the date reinstatement is offered. Auguste Pouli- ot had filed his retirement papers in the summer of 1974 and intended to retire at the end of January 1975. It ap- pears he had no intention of continuing his employment even absent the Respondents' unfair labor practices. Un- der these circumstances, I shall recommend that Pouliot only be reimbursed for any loss of pay suffered until Janu- ary 31, 1975, without any offer of reinstatement. As the unfair labor practices committed by the Respon- dents are of a character striking at the root of the employ- ees' rights safeguarded by the Act, it will be recommended that the Respondents cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the foregoing findings of fact and conclusions of law, and upon the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommend- ed: ORDER 40 Respondents, Laramee's Transit, Inc., and Gringeri Bros. Transportation Co., Inc., Woonsocket, Rhode Island, their officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain with Teamsters Local 251, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of the employees in the unit described below, concerning rates of pay, wages, hours of employment, and other terms and conditions of employ- ment: All drivers, helpers, mechanics, warehousemen, ex- cluding office clerical employees, salesmen, guards, and all supervisors as defined in Section 2(11) of the Act. (b) Making changes in wages, rates of pay, and other terms and conditions of employment in the above-de- scribed unit without first consulting with and bargaining with the Union concerning such contemplated changes. (c) Discouraging membership in the Union, or any other labor organization, by discriminatorily discharging its em- 40 In the event no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes LARAMEE'S TRANSIT, INC 67 ployees or by discriminating in any other manner with re- spect to their hire or tenure of employment or any term or condition of employment (d) Discharging or otherwise discriminating against em- ployees for giving testimony under the Act. (e) Interrogating employees concerning union activities or sympathies. (f) Imposing unlawful conditions to continued employ- ment upon our employees. (g) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Upon request, bargain with Teamsters Local 251, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of the employees in the aforesaid appropriate bargaining unit, with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and embody in a signed agreement any under- standing reached. (b) Restore retroactively to the unit employees the rates of pay, wages, hours, and other terms and conditions of employment which were in effect immediately prior to the move to the Pond St. terminal in December 1974 and ob- serve and honor the collective-bargaining agreement with the Union. (c) Make whole the unit employees in the manner set forth in "The Remedy" for any losses in pay or other bene- fits they may have suffered by reason of the changes made upon moving to the Pond St. terminal. (d) Offer the following named employees immediate and full reinstatement to their former positions or, if their jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and priv- ileges and make them whole for any loss of earnings and other benefits they may have suffered in the manner set forth in the section of this Decision entitled "The Reme- dy. 11 Ernest Aubin Rene Forand Robert Auger Aldor Gilbert Henry Beaudoin Robert King Raymond Brissette Marcel Robert Leo Dubois Oscar L. Theriault (e) Make whole Auguste Pouliot for any loss of earnings he may have suffered in the manner set forth in the section of this Decision entitled "The Remedy." (f) 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 under the terms of this Order. (g) Post at their place of business in Woonsocket, Rhode Island, copies of the attached notice marked "Appen- dix." 41 Copies of said notice, on forms to be provided by 41 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order the Regional Director for Region 1, shall, after being duly signed by Respondents' representative, be posted by Re- spondents immediately upon receipt thereof and main- tained by them for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondents to insure that such notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 1, in writ- ing, within 20 days of the date of this Order what steps the Respondents have taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recognize and bargain with Teamsters Local 251, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive bargaining representative of the employees in the unit described below, concern- ing rates of pay, wages, hours of employment, and other terms and conditions of employment. All drivers, helpers, mechanics, warehousemen, ex- cluding office clerical employees, salesmen, guards, and all supervisors as defined in Section 2(11) of the Act. WE WILL NOT make changes in wages, rates of pay, and other terms and conditions of employment in the above-described unit without first consulting with and bargaining with the Unioi. concerning such contem- plated changes. WE WILL NOT discharge employees or otherwise dis- criminate against them because of their membership in, or activities on behalf of, the above-named Union, or any other labor organization or because they gave testimony to agents of the National Labor Relations Board. WE WILL NOT unlawfully interrogate employees con- cerning their union activities or sympathies. WE WILL NOT impose unlawful conditions to contin- ued employment upon our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organiza- tions, to join or assist the above-named Union or any other labor organization, to bargain collectively through representatives of their own choosing, to en- gage in concerted activities for the purposes of collec- tive bargaining or other mutual aid or protection, or to refrain from any and all such activities. WE WILL bargain in good faith, upon request, with 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union as the exclusive representative of the em- ployees in the aforesaid appropriate unit, concerning rates of pay, wages, hours, and other terms and condi- tions of employment, and embody in a signed agree- ment any understanding reached. WE WILL restore retroactively to the unit employees the rates of pay, wages, hours, and other terms and conditions of employment which were in effect imme- diately prior to the move to the Pond St. terminal in December 1974 and WE WILL observe and honor the collective-bargaining agreement with the Union. WE WILL make whole the unit employees for any losses in pay or other benefits they may have suffered by reason of the changes made on moving to the Pond St. terminal. WE WILL offer to the following named employees immediate and full reinstatement to their former fobs or, if theirjobs no longer exist, to substantially equiva- lent positions without prejudice to their seniority or other rights and privileges previously enjoyed, and WE WILL make them whole for any loss of earnings or other benefits they may have suffered as a result of their discriminatory discharges with interest at 6 per- cent per annum. Ernest Aubin Rene Forand Robert Auger Aldor Gilbert Henry Beaudoin Robert King Raymond Brissette Marcel Robert Leo Dubois Oscar L. Theriault WE WILL make whole Auguste Pouliot for any loss of earnings he may have suffered as a result of his dis- criminatory discharge with interest at 6 percent per annum. LARAMEE'S TRANSIT, INC. GRINGERI BROS. TRANSPORTATION CO., INC.