Manley Transfer Co.

National Labor Relations Board - Board Decisions

Apr 28, 1967

164 N.L.R.B. 174 (N.L.R.B. 1967)

174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Manley Transfer Company, Incorporated,
Kansas Delivery Service , Inc. and Raymond
Brooks d/b/a Brooks Transfer and Storage'
and Local Union No . 41, International
Brotherhood of Teamsters . Case 17-CA-2887.
April 28, 1967
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On January 6, 1967, Trial Examiner Jerry B. Stone
issued his Decision in the above-entitled proceeding,
finding that Respondents have engaged in certain
unfair labor practices and recommending that they
cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, Respondents filed
exceptions to the Trial Examiner's Decision _and a
supporting brief, and the General Counsel filed
cross-exceptions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, cross-
exceptions, brief, and the entire record in the case,
and hereby adopts the findings,2 conclusions, and
recommendations of the Trial Examiner, as modified
herein.
The Trial Examiner found, and we agree, that
Respondent Manley's control of Respondent Kansas
was such as to constitute Kansas a subordinate
instrumentality of Manley, and Kansas' supervision
and employees were in effect a part of Manley's
supervision and work force. We also agree with the
following findings of the Trial Examiner:
Manley and Kansas, through the actions of
Manager George E. Harris on March 10, 1966,
violated Section 8(a)(1) and (3) of the Act by
interrogating employees Melvin Beerbower, Gerald
L. Cobb, Dean Howard, and John Darrell Foster
about their union activities, threatening them with
discharge if they did not abandon their union
activities, offering a wage increase if they would
forget about the Union, and discharging Foster
because of his union activity. Manley and Kansas
further violated Section 8(a)(1) of the Act on
March 16, 1966, when Harris threatened Foster that
I Herein called Manley, Kansas, and Brooks.
I Respondents' exceptions are in considerable part directed to
the credibility resolutions of the Trial Examiner. On the basis of a
careful review of the record, we conclude that the Trial
Examiner's credibility findings are not contrary to the clear
preponderance of all the relevant evidence. Accordingly, we find
the terminal in Lawrence, Kansas, would be closed
to prevent unionization and promised Foster a job in
Kansas City, Missouri, if he would forget about the
Union. Manley and Kansas, by their failure to
recognize the Union, the cessation of business by
Kansas on March 26, 1966, and the pretextuous
substitution of Brooks for the operation of the
Lawrence, Kansas, terminal, engaged in a course of
conduct whereby they clearly refused to bargain in
good faith with the Union in violation of Section
8(a)(5) and (1) of the Act. Manley and Kansas also
violated Section 8(a)(3) and (1) of the Act by
discriminatorily terminating Cobb, Howard, and
Beerbower on March 26, 1966.
In addition, the Trial Examiner found that Brooks
was chargeable with the foregoing unfair labor
practices because he knowingly participated in the
plan of Manley and Kansas to avoid unionization of
the employees at the Lawrence terminal and was
aware of but did not disavow their other unlawful
actions to that end. We find merit in Respondents'
contention that there is insufficient support in the
record for the Trial Examiner's finding that Brooks
had knowledge of the unlawful purposes that
motivated the actions of Manley and Kansas.
The Trial Examiner stated that he "was convinced
from all the facts" that Lawrence Manley and
Harris, the representatives of Manley and Kansas,3
fully and frankly discussed with Brooks the entire
problem of unionization and their proposals for
dealing therewith. Although the Trial Examiner
stated that he relied "upon a composite evaluation of
the credited aspects of the testimony of Lawrence
Manley and Brooks and the logical consistency of all
the evidence," he did not, however, specify or set
forth the basis for his conviction. Accordingly, as the
record does not contain any evidence that Brooks
was in fact informed by Manley and Kansas of their
unlawful purpose in taking various steps to defeat
the Union, we conclude, contrary to the Trial
Examiner, that the General Counsel has not proved
by a preponderance of the evidence that Brooks
knowingly participated in and was aware of the
various unfair labor practices of Manley and Kansas.
We shall therefore dismiss the complaint insofar as
it alleges that Brooks committed any unfair labor
practices in the course of his dealings with Manley,
Kansas, the employees, or the Union.
Having found that Respondents Manley and
Kansas unlawfully ceased operation of business at
Lawrence, Kansas, terminated their employees, and
transferred the operation thereof to Brooks, we shall
order Manley and Kansas to restore the status quo
ante by terminating their contract and lease
no reason for disturbing those findings . Standard Dry Wall
Products , Inc., 91 NLRB 544, enfd. 188 F . 2d 362 (C.A. 3).
J Lawrence Manley managed Manley Transfer Company, a
family -owned corporation , and together with his wife had a 90-
percent interest in Kansas Delivery Service , while Harris had the
remaining 10 percent.
- 164 NLRB No. 21
MANLEY TRANSFER COMPANY
agreement with Brooks, taking over the operation of
the Lawrence, Kansas, business, offering
reinstatement and backpay to Foster, Beerbower,
Cobb, and Howard, and bargaining collectively with
the Union.4
Finally, we find in agreement with the General
Counsel that the policies of the Act will best be
effectuated by his proposed Appendix which utilize
simple and readily understandable language to
inform the employees of their rights, how these
rights were violated, and by what process they have
been upheld.5 Accordingly, we shall adopt said
notice except for two changes, namely, (1) insertion
of a paragraph stating that Manley and Kansas will
cancel their contracts with Brooks and take over
from him the operation of the business at Lawrence,
Kansas, and (2) deletion of Brooks as one of the
Respondents found to have violated the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner, as
modified below, and hereby orders that Respondents,
Manley Transfer Company, Incorporated, and
Kansas Delivery Service, Inc., their officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in or activities on
behalf of Local Union No. 41, International
Brotherhood of Teamsters, or any other labor
organization of their employees, by discharging or
otherwise discriminating in regard to the hire or
tenure of employment or any term or condition of
employment of any of the employees employed by
Manley Transfer Company, Incorporated, and
Kansas Delivery Service, Inc.
(b) Refusing to bargain collectively concerning
rates of pay, wages, hours of employment, and other
conditions of employment with Local Union No. 41,
International Brotherhood of Teamsters, as the
exclusive representative of the truckdrivers and
laborers of Manley Transfer Company,
Incorporated, and Kansas Delivery Service, Inc., at
Lawrence, Kansas, excluding office and clerical
workers, professional employees, guards, and
supervisors as defined in the Act.
(c) Interrogating employees of said Respondents
concerning their or other employees' union
affiliation or activities or protected concerted
activities in a manner constituting interference,
restraint, or coercion in violation of Section 8(a)(1) of
the Act.
(d) Threatening employees of said Respondents
with discharge, the closing of the terminal, or other
' Town & Country Manufacturing Co., Inc., 136 NLRB 1022,
1028.
s Macy's Missouri-Kansas Division, 162 NLRB 754.
6 In the event that this Order is enforced by a decree of a
175
reprisals because of their activity on behalf of Local
Union No. 41, International Brotherhood of
Teamsters.
(e) Offering employees of said Respondents wage
increases to induce them to cease activity on behalf
of said Union.
(f) Promising employees of said Respondents
benefits to induce them to cease their activity in
behalf of said Union.
(g) In any other manner interfering with,
restraining, or coercing employees of said
Respondents in the exercise of their right to self-
organization, to form, join, or assist labor
organizations, to bargain collectively through
representatives of their own choosing, and to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection as
guaranteed by Section 7 of the Act, and to refrain
from any and all such activities.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Terminate said Respondents' contract and
lease agreements with Raymond Brooks d/b/a
Brooks Transfer and Storage, and take over the
operation of the Lawrence, Kansas, business.
(b) Offer to John Darrell Foster, Gerald L. Cobb,
Melvin Beerbower, and Dean Howard immediate
and full reinstatement to their former or
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, and
make them whole for any loss of pay suffered as a
result of the discrimination against them.
(c) Notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
(d) Upon request, bargain collectively with said
Union as the exclusive representative of all
employees in the above-described appropriate
bargaining unit concerning rates of pay, wages,
hours of employment, and other conditions of
employment, and embody such agreement reached
in a signed contract.
(e) Post at the premises at Lawrence, Kansas,
copies of the attached notice marked "Appendix."6
Copies of said notice, on forms provided by the
Regional Director for Region 17, shall be posted by
Respondents' representatives, after being duly
signed by Respondents representative, immediately
upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order."
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 17, in
writing, within 10 days from the receipt of this
Decision, what steps have been taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint herein
be, and it hereby is, dismissed insofar as it alleges
that Raymond Brooks d/b/a Brooks Transfer and
Storage engaged in any unfair labor practices.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
After a trial in which both sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that we violated
the law and has ordered us to post this notice and to
keep the promises that we make in this notice.
Therefore, WE WILL cancel our agreements
with Raymond Brooks d/b/a Brooks Transfer
and Storage and take over from him the
operation of the business at Lawrence, Kansas.
WE WILL NOT discharge or otherwise
discriminate against you in order to discourage
membership in or support for Local Union
No. 41, International Brotherhood of
Teamsters, or any other labor organization.
Since it has been found that we did
discriminate against John Darrell Foster, Gerald
L. Cobb, Melvin Beerbower, and Dean Howard
when we discharged them, WE WILL offer them
their former jobs together with all the rights and
privileges they enjoyed at the time we
discharged them, and WE WILL pay them for
any wages they may have lost as a result of our
discrimination against them. Additionally, we
will notify any of the above-named employees
presently serving in the Armed Forces of the
United States of their right to their former jobs
after discharge from the Armed Forces.
WE WILL, upon request, bargain collectively
with Local Union No. 41, International
Brotherhood of Teamsters, as the exclusive
representative of our employees in the below-
described appropriate bargaining unit
concerning rates of pay, wages, hours of
employment, and other conditions of
employment, and embody any agreement
reached in a signed contract. The appropriate
bargaining unit is:
All truckdrivers and laborers of the Manley
Transfer Company, Incorporated, and
Kansas Delivery Service at Lawrence,
Kansas, excluding office clerical workers,
professional employees, guards, and
supervisors as defined in the Act.
WE WILL NOT refuse to bargain collectively
concerning rates of pay, wages, hours of
employment, and other conditions of
employment with Local Union No. 41,
International Brotherhood of Teamsters, as the
exclusive representative of our employees in the
above-described appropriate bargaining unit.
WE WILL NOT interrogate or question you
concerning your or other employees' union
affiliation or activities or protected concerted
activities.
WE WILL NOT threaten you with discharge,
the closing of the terminal, or other reprisals
because of your activity on behalf of Local
Union No. 41, International Brotherhood of
Teamsters.
WE WILL NOT offer you wage increases to get
you to stop supporting Local Union No. 41,
International Bortherhood of Teamsters.
WE WILL NOT promise you benefits to get you
to stop supporting Local Union No. 41,
International Brotherhood of Teamsters.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of
your right to self-organization, to form, join, or
assist labor organizations, to bargain
collectively through representatives of your own
choosing, and to engage in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection as guaranteed by
Section 7 of the Act.
You are free to become or remain, or refrain from
becoming or remaining, members of Local Union
No. 41, International Brotherhood of Teamsters, or
any other labor organization.
MANLEY TRANSFER
COMPANY,
INCORPORATED
(Employer)
Dated By
(Representative ) (Title)
KANSAS DELIVERY
SERVICE, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting , and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions , they may
communicate directly with the Board 's Regional
Office, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106, Telephone FR 4-5282.
MANLEY TRANSFER COMPANY 177
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Trial Examiner: Upon a charge and an
amended charge filed (on March 31, 1966, and July 26,
1966, respectively) by Local Union No. 41, International
Brotherhood of Teamsters (herein sometimes called the
Union or Charging Party), the General Counsel of the
National Labor Realtions Board, by the Regional Director
of Region 17 (Kansas City, Missouri), issued his complaint
dated July 29, 1966, against Manley Transfer Company,
Incorporated, Kansas Delivery Service, Inc., and
Raymond Brooks d/b/a Brooks Transfer and Storage
(herein sometimes called Respondent Manley,
Respondent Kansas, and Respondent Brooks respectively
or jointly as Respondents). The aforesaid complaint
alleged violations of Section 8(a)(1), (3), and (5) of the Act
by the Respondents. Respondents' duly filed answer
admitted some of the facts, denied other facts, and denied
the commission of unfair labor practices.
Pursuant to appropriate notice, a hearing in this matter
was held on August 31, 1966, before me. All parties were
represented at and participated in the hearing and were
afforded the right to present evidence, to examine and
cross-examine witnesses, to offer oral arguments, and to
file briefs. Briefs were filed by the General Counsel and
the Respondents and have been considered.
The issues involved in this proceeding are whether the
Respondents jointly or whether Respondent Kansas
Delivery Service, Inc. (a) did or did not engage in illegal
acts (of interrogation, threats of discharge, offer of wage
increases, threats of closing a terminal, promise of
benefits) in violation of Section 8(a)(1) of the Act, (b) did or
did not discriminatorily terminate an operation by Kansas
Delivery Service, Inc., and the employment of certain
employees in violation of Section 8(a)(1), (3), and (5) of the
Act, (c) did or did not terminate the employment of or
refuse to recall or rehire an employee (Foster) in violation
of Section 8(a)(1) and (3) of the Act, and (d) did or did not
refuse to bargain with the Union in violation of Section
8(a)(5) of the Act.
Upon the entire record in this case and from my
observation of the witnesses, the following findings of fact,
conclusions of law, and recommendations are made.'
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER(S) INVOLVED
The facts pertaining to the business of the Employer(s)
are based upon the pleadings, admissions thereto,
stipulations of the parties, and statements of counsel
narrowing the issues at the hearing.
Manley Transfer Company, Incorporated, is now, and at
all times material herein has been, a Kansas corporation,
engaged as a common carrier operating in, but not limited
to, the States of Kansas and Missouri.
In the course and conduct of its business operations,
' All credibility resolutions made herein are based on a
composite evalution of the demeanor of the witnesses, a logical
consistency of all the facts, and the probabilities of the evidence as
a whole . Without going into detail it may be said that witnesses
Nabor, Foster, Kappelman, Beerbower, Cobbs, and Howard
testified fully, frankly, and with forthright and truthful
appearances. Neither Lawrence Manley, Harris, nor Brooks
impressed me as reliable witnesses . In their testimony and
appearance they presented facts in fragmented detail and with an
Manley Transfer Company, Incorporated, during a 1-year
representative period derives gross income in excess of
$50,000 from the interstate transporation of commodities.
Lawrence D. Manley is now, and at all times material
herein has been, a stockholder and director of Manley
Transfer Company, Incorporated, and the president and
majority stockholder of Kansas Delivery Service, Inc.
Kansas Delivery Service, Inc., is now, and at all times
material herein has been, a Kansas corporation. Prior to
March 26, 1966, it engaged in the trucking business at its
Lawrence, Kansas, terminal. However, Kansas Delivery
Service, Inc., has never held any authority from any
authority of any State or Federal government regulatory
authority to engage in the trucking business. Prior to
March 26, 1966, Kansas Delivery acted as an agent for
Manley Transfer Company, Incorporated, in the
Lawrence, Kansas, area.
In the course and conduct of its business operations,
Kansas Delivery Service, Inc., during a 1-year
representative period, derives gross income in excess of
$50,000 from the interstate transportation of commodities.
Raymond Brooks d/b/a Brooks Transfer and Storage is
now, and at all times material herein has been, a sole
proprietorship operating in the trucking business
principally within the State of Kansas. Raymond Brooks
d/b/a Brooks Transfer and Storage has never held any
authority from any State or Federal government regulatory
authority to engage in the trucking business. Since on or
about March 26, 1966, Raymond Brooks d/b/a Brooks
Transfer and Storage has acted as an agent for Manley
Transfer Company, Incorporated, in the Lawrence,
Kansas, area.
In the course and conduct of its business operations,
Raymond Brooks d/b/a Brooks Transfer and Storage,
during a 1-year representative period, derives gross income
in excess of $50,000 from the interstate transporation of
commodities.
Based upon the foregoing, and as conceded by the
Respondents, it is concluded and found that the
Respondents are, and at all times material herein have
been, employers engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Based upon the pleadings and admissions therein, it is
found and concluded that Local Union No. 41,
International Brotherhood of Teamsters, is and at all times
material herein has been, a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent Kansas an Instrumentality of
Respondent Manley 2
Respondent Manley is a Kansas corporation operating a
avoidance of specifics in general. Their testimony in general did
not appear consistent with undisputed events. Testimony of
Manley , Harris, and Brooks in many ways was inconsistent with
each other's testimony and with events as ultimately revealed by
their own testimony . The testimony of any witness inconsistent
with the facts found hereinafter is discredited.
2 The facts are based upon a composite evaluation of
stipulations by the parties and of the credited aspects of the
testimony of Lawrence Manley and George Harris.
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trucking business (as a common carrier) in interstate
commerce. Respondent Manley is a family owned
corporation with ownership being equally divided between
three brothers and one sister (Robert F. Manley, Ruth M.
Caldwell, Lawrence D. Manley, and Charles E. Manley).
The officers and principal agents of the corporation are as
follows: President Robert F. Manley; Secretary and
Treasurer Ruth M. Caldwell; Vice President and Director
Charles E. Manley; and General Manager and Director
Lawrence Manley.
As part of its operations, Respondent Manley maintains
terminals in towns serviced by Manley. In small towns,
Respondent Manley, as a matter of policy, tries to have
agents rather than company-owned stations.3 Pursuant to
such policy Respondent Manley has contracts with some
eight or nine agents. The contracts between Respondent
Manley and the agents, as described by L. D. Manley, are
standard contracts with only minor variations as to the
percentage of commission. The contract between
Respondent Kansas Delivery and Respondent Manley
dated April 22, 1964, is herein set out:4
This agreement , made and entered into this 22 day of
April 1964 , by and between THE MANLEY
TRANSFER COMPANY, INC., CHANUTE
KANSAS, and or its successors and assigns , partly of
the first part , hereinafter called "Company," and
Kansas Delivery Service Inc. of .... Street , City of
Lawrence , State of Kansas, party of the second part,
hereinafter called "Agent."
WITNESSETH:
Whereas: That for and in consideration of the
facilities to be furnished and the service to be
rendered by Agent, and the compensation paid
therefor by Company,, as hereinafter set forth, the
parties hereto convenant and agrees as follows:
AGENT AGREES:
1. To Perfom pickup and delivery service, where
legally authorized at the station of Lawrence, Ks. for
all freight shipments which can be handled by the
Company at lawfully published tariff rates and to
furnish to the public any information contained in
freight tarrifs and circulars (such information to be
secured from station files or from Freight Traffic
Department of the Company), insofar as the same is
applicable to the transportation of the freight.
2. To furnish, at above address for the transaction of
Company business and the accommodation of its
patrons, suitable and adequate dock space for the
proper handling of freight shipments and to maintain
said dock, approaches, and premises attached thereto
in a clean and safe condition at all times, and to
reimburse and hold harmless Company from any and
all expenses incurred and/or claims arising directly or
3 The evidence is not clear as to whether in some of the small
towns the terminals are company owned. In those places where
Respondent Manley has such agents the agents receive a
commission from revenues collected.
4 The contract between Respondent Manley and Respondent
Brooks, dated April 18, 1958, and relating to the Ottawa, Kansas',
station is substantially similar to the contract between
Respondent Kansas and Respondent Manley dated April 22, 1964.
Respondent Brooks' April 18, 1958, contract differed in that as to
paragraph 8-reports of company business had to be rendered on
indirectly from or on account of any neglect or failure
to so maintain the said dock, approaches or
appurtenant premises.
3. Agent covenants and agrees to protect, indemnify
and hold harmless Company from and against any and
all loss, damage, cost and expense, including
attorneys' fee, that may be suffered or incurred by
Company, or by any person or persons, firm,
association, or corporation resulting from:
(a) Injury to or death of persons, loss or destruction
of, or damage or delay to property, including the
conversation thereof, caused by, or resulting in any
manner from any acts or omissions negligent or
otherwise, of Agent, or any of the employees in
performing, or failing to perform any of the services or
duties on the part of Agent to be performed
hereunder.
(b) The issuance of any false or fraudulent bills of
lading for freight charges by Agent or any of the
Agents' employees.
(c) Theft, embezzlement or defalcation on the part
of Agent, or any of the Agent employees.
4. To be liable for and protect at all times any and all
money and/or property of the Company in the care or
under the supervision of the Agent; and to indemnify
and save the Company harmless from any loss of or
damage to such money and/or property, however
occurring and whether or not such loss be due to the
fault of or within the control of the Agent. The title to
all freight and proceeds thereof shall be at all times in
the Company, it being the intention of this agreement
that the agent shall at all times be in the position of
trustee of said freight and the proceeds thereof for the
Company.
5. In the performance of the Work hereunder, Agent
shall comply with all applicable federal and state
enactments with reference to Employer's Liability,
Workmen's Compensation and Workman' s Insurance
(and when requested by Company shall furnish proof
of such compliance) and shall indemnify and hold
harmless Company from and against any and all loss,
liability, damages, claims, demands, costs and
expenses of whatsoever nature due to the existance of
such enactments or resulting from any claim of
subrogation provided in such enactments or
otherwise.
6. Agent shall also comply strictly at all times with all
other laws, rules, regulations and ordinances, state,
federal or municipal, applicable to operations and
service to be performed by Agent hereunder, and
Agent expressly, agrees to indemnify Company and
save it harmless from all liability for any failure or
default on the part of Agent or in his behalf.
a weekly basis instead of a daily basis and as to paragraph
15-Respondent Brooks' commission was at the rate of 50
percent. It is noted also that the contract between Respondent
Brooks and Respondent Manley, dated March 22, 1966, and
relating to the Lawrence, Kansas, station, was similar to
Respondent Kansas and Respondent Manley's contract of"
April 22, 1964, excepting Respondent Brooks' rate of commission
(paragraph 15) was set at 30 percent of Manley's net revenue per
bill that agent handles.
MANLEY TRANSFER COMPANY
7. Agent agrees to procure and keep in full force and
effect during the life of this agreement, and to assume
the expense of adequate insurance covering the
operations provided for in this agreement, including
Cargo, Public Liability and Property Damage and
Workmen's Compensation Insurance, and to furnish
to Company copies of policies or certificates of such
insurance coverage. Such policies or certificates shall
be issued by companies and on forms and for
Amounts approved by Company.
8. To render reports of Company business on the
Daily days of each month; and also to remit to
Company or deposit to account of Company at such
times, or as may hereafter be prescribed by the
Treasurer of Company, all moneys belonging to
Company or collected for the account of the
Company.
9. To permit authorized representatives of Company,
during business hours, to inspect and check all
property of Company, and inspect and audit all
records and accounts pertaining to the business of
Company kept or supervised by Agent, and to permit
such authorized representatives, at their discretion, to
collect all moneys belonging to the Company in the
possession of the Agent.
10. To render reports of Over, Short, and Damages
within twenty-four hours after they occur to 0 S & D
Clerk.
11. To place and maintain suitable sign or signs
dsignating aforesaid premises as the Freight station of
the Company.
12. That the title to all station equipment , signs, et
cetera, furnished to the Agent shall be in the
Company at all times and Agent will return said
property or pay for its value upon the termination of
this agreement. Upon the termination of this
agreement the Agent will permit a representative of
the Company to remove all signs, decalcomanlas and
any and all other evidence which might lead the
public to believe that Agent is still the Agent for the
Company.
13. Immediately upon the termination of this
agreement, to remove from the telephone directory, or
any other advertising media, any item listing or
reference indicating that Agent is acting in any
capacity for the Company.
14. Agent specifically authorizes Company to deduct
from any money that may be due Agent hereunder
any sums representing an expense incurred by the
Company by reason of loss or damage to freight
shipments due to negligence on part of Agent or its
employees.
15. To Pay Agent commission at the rate of:
40% of Manley Transfer Co. Inc. Net Revenue
per bill that agent handles.
Agent will furnish all power equipment and office
equipment , handling equipment and dock.
for pickup and delivery and other work incidental to
the proper handling of records and maintenance of
the station.
179
16. To permit Agent to deduct commission to which
he is entitled under paragraph fifteen from Company
funds in his possession when making remittances as
provided in paragraph eight.
IT IS MUTUALLY AGREED:
17. That payment as aforesaid shall constitute full
and complete compensation to Agent for all facilities
furnished and services rendered by Agent.
18. Agent shall employ and direct all persons
performing any service hereunder and such persons
shall be and remain the sole employee of and subject
to the control and direction of Agent and not the
employees or subject to the direction and control of
Company, it being the intention of the parties hereto
that Agent shall be and remain an independent
Contractor and that nothing herein contained shall be
construed as inconsistent with that status.
19. This agreement shall take effect on the date first
herein written and shall continue in full force and
effect until terminated by written notice given by
either party hereto to the other party, on any date in
such notice stated, not less however, than fifteen (15)
days subsequent to the date on which such notice
shall be given. However Carrier may terminate the
agreement at any time immediately upon written
notice to Contractor in the event Contractor fails to
comply with any of the terms of this agreement.
20. The waiver of a breach of any of the terms or
conditions hereof shall be limited to the act or acts
constituting such breach and shall never be construed
as being a continuing or permanent waiver of such
terms or conditions, all of which shall be and remain
in full force and effect as to future acts or happenings,
not with-standing any such waiver.
THIS AGREEMENT cancels any and all previous
contracts and agreements pertaining to the subject of
commission agency between Agent and Company
and/or its predecessors in interest except as to
unfulfilled obligations heretofore incurred, and this
agreement constitutes the entire contract between the
parties, and any additional or subsequent agreement
shall be in writing and signed by both parties hereto.
IN WITNESS WHEREOF the parties hereto have
caused this agreement to be executed the day and
year first hereinabove written.
Kansas Del. Serv.
/s/ George Harris
AGENT
/s/ Ed J. Copenhaven
WITNESS TO AGENT'S SIGNATURE
MANLEY TRANSFER COMPANY, INC.
(COMPANY)
/s/ Robert F. Manley
PRESIDENT
/s/ Ruth M. Caldwell
WITNESS TO PRESIDENT SIGNATURE
298-668 0-69-13
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From 1959 to 1964 George Harris operated a business
known as George Harris Delivery Service in Lawrence,
Kansas. During this period of time, pursuant to the
standard type of contract utilized by Respondent Manley
with its agents, the George Harris Delivery Service
operated a terminal for Respondent Manley at Lawrence,
Kansas. The George Harris Delivery Service handled some
contract work for other customers also during this time.
In early 1964 George Harris found himself in financial
difficulties and approached Lawrence D. Manley with his
problem. Harris told Lawrence D. Manley that he could
not come up with the money he needed and that he did not
know what to do.
Lawrence D. Manley credibly testified to the effect that
since Respondent Manley had always taken the position
that it would prefer to have agents rather than company-
owned stations in small towns that he told Harris that he
would like for Harris to continue on. Lawrence D. Manley
and Harris discussed arrangements whereby there would
be a continuation of the enterprise. As a result of their
discussions and agreements a corporation was formed
called Kansas Delivery Service, Inc., and Lawrence D.
Manley signed certain notes and advanced certain moneys.
The owners of the new corpo ration were Lawrence D.
Manley, Manley's wife, and _Harris. Harris owned 10
percent interest in the corporation, Lawrence D. Manley
owned 80 percent, and Manley's wife owned 10 percent
interest. Harris was the operating manager of the new
corporation-Kansas Delivery Service, Inc. Respondent
Kansas and Respondent Manley on April 22, 1964, entered
into a contract (set forth previously herein) and continued
to operate as had George Harris Delivery Service,
employing the same persons, at the same location, using
substantially the same equipment, with the same
supervision, and within the meaning of the Board
successorship law being the same employing enterprise.5
Essentially the operations of the terminal by
Respondent Kansas at Lawrence, Kansas, was in
accordance with the terms of its contract with Respondent
Manley (dated April 22, 1964). The facts reveal that
Lawrence Manley in major effect left the supervision and
day-to-day operations of Respondent Kansas in Harris'
hands. Harris credibly testified that if he needed to that he
did consult with Lawrence Manley as to decisions.
Employees of Respondent Kansas were paid with checks
drawn on Respondent Kansas' checking account.
Respondent Kansas made the necessary income tax and
social security deductions from employee wages. The facts
reveal that Lawrence Manley left the problems, excepting
the case of Foster on March 10, 1966, as to hiring and
firing in Harris' hands. The facts reveal that Harris set the
wages for Respondent Kansas' employees. It is noted
however that the limits within which he could do so would
be governed by his knowledge of income from the
commission set for Respondent Kansas by his contract
with Respondent Manley. The facts also reveal that when
Respondent Kansas succeeded the George Harris Delivery
Service as on enterprise , that Harris told the employees
that they had a new boss-Larry Manley. The facts reveal
that Respondent Harris regularly used "Manley" freight
bills for all work but on occasion utilized plain statements.
s See Witham Buick, Inc., 139 NLRB 1209; Chemrock
Corporation, 151 NLRB 1074, and cases cited therein.
6 Apparently this was because Respondent Kansas had to use
Respondent Manley's ICC permit for over-the-road work.
As I have indicated, the facts reveal that the parties operated
in accordance with their contract. Such specific facts of
Beerbower credibly testified to the effect that Harris had
instructed him in filling out his log book to write in the
name of carrier as "Manley Transfer. `6 Respondent
Kansas had title to its trucks but also had to have a
nonnegotiable title in Respondent Manley's name to
comply with ICC requirements. Respondent Kansas' wage
checks were transmitted (in mail pouches picked up at
Respondent Manley's terminal) to the terminal at
Lawrence, Kansas. Lawrence Manley did the bookkeeping
for and the making of various governmental reports for
Respondent Kansas from his home. The facts do not reveal
that there has ever been any transfer of employees
between Respondent Manley and Kansas.'
The facts are overwhelming that the substantial bulk of
Respondent Kansas' business was done for Respondent
Manley and in connection with the hauling of "Hallmark"
cards. The facts are also overwhelming that the public and
the employees of Respondent Kansas knew that
Respondent Kansas' principal business and existence was
as an agent enterprise of Respondent Manley. Thus (1) the
signs at the Lawrence, Kansas, terminal of Respondent
Kansas identified the terminal as a Manley terminal and
not as a Kansas Delivery Service, Inc., terminal;
(2) employees of Respondent Kansas were instructed to
answer the telephone by saying "Manley Transfer
Company;" (3) Respondent Kansas' trucks were painted
with colors identified as Manley Transfer Company colors
and had Manley's name on them; (4) Respondent Kansas'
trucks pulled Manley trailers; (5) Respondent Kansas used
Manley's ICC permits and kept log books under the name
of Manley, and (6) Respondent Manley paid the cost of
cargo insurance for Respondent Kansas.
It is also highly significant that the bulk of the work
performed by Respondent Kansas required transportation
under authority of the ICC and that Respondent Kansas
had no such authority but by virtue of delegation of
Respondent Manley's ICC permit was able to perform
such transportation. It is also significant that the contract
between Respondent Kansas and Respondent Manley
provided, inter alia, that either party could terminate the
contract within 15 days of appropriate notice of intention
to do so.
Respondents Kansas and Manley were thus operating in
February and March 1966 when the union engaged in
organizational efforts at the Lawrence terminal.
As indicated in the facts found hereinafter Respondents
Manley, Kansas, and Brooks engaged in a conspiracy to
destroy the unionization of employees at the Lawrence
terminal (operated by Kansas for Respondent Manley).
The facts hereinafter found also reveal (1) that on
March 10, 1966, Lawrence Manley told Kappelman of
the Union that he would close the Lawrence terminal
before he would recognize the union; (2) that on March 15,
1966, Lawrence Manley, although professing that he
had nothing to do with Respondent Kansas' operation, did
question Nabors as to whether an exception to the
standard contract could not be made such as Respondent
Manley had elsewhere with the Union; (3) that the events
of March 22, 1966, wherein Respondent Manley signed a
contract with Respondent Brooks to be effective on
March 26, 1966, prior to canceling (with 15 days' notice as
operations as to who made what reports, etc., are revealed by the
contract set out in detail previously. I do not find that the
conclusionary statement of intention of the parties as to an
independent contractor relationship 4o be supported by the record
as a whole.
MANLEY TRANSFER COMPANY 181
required by contract) or receiving request for cancellation
of its current contract with Respondent Kansas, clearly
reveal that Respondent Manley and Respondent Kansas
considered Respondent Manley to be the superior
employer and not an "arms-length" business associate;
and (4) that Brooks' credited testimony reveals that his
negotiations as to lease of equipment from Respondent
Kansas was done with Respondent Manley's agent.
Considering the foregoing and all the facts in this case,
including those set out hereinafter, the evidence reveals
that Respondent Manley's control of Respondent Kansas
was and is such as to constitute Respondent Kansas a
subordinate instrumentality of Respondent Manley. Thus
the facts reveal that in real effect Respondent Kansas'
supervision constituted a part of Respondent Manley's
supervision and the employees of Respondent Kansas
were and are employees of Respondent Manley.8
B. Commencement of Union Activity9
In early February 1966, John Darrell Foster, an
employee of Respondent Kansas, contacted Lawrence
Kappelman , vice president of Local 41 (the Union). Foster
asked Kappelman for information about getting a union.
Kappelman told Foster that he would send him some union
cards to get signed and to send them back in. Foster
received some union cards on February 13, 1966, and by
February 16, 1966, had secured the signatures of
employees (of Respondent Kansas) Howard, Cobb, and
Beerbower. Foster also signed a union card on
February 16, 1966. The card that was signed by Foster is
typical of the cards signed by Beerbower, Cobb, and
Howard and is herewith set out:
AUTHORIZATION FOR REPRESENTATION
1, the undersigned , employee Kansas Deliv-Manley
Transfer
315 North Third Lawrence, Kansas
Address City State
Employed as Truck Driver-Labor
Home Address 739 Lake St.
/s/ John Darrell Foster
At Rate
Per flour $ 2.00
Tel No. UI-3-5948
hereby authorize the Local Union No. 41 International
Brotherhood of Teamster- to represent me and, in my
behalf, to negotiate and conclude all agreements as
9 Allen Milk Company, 158 NLRB 285, Chemrock Corporation,
151 NLRB 1074.
'The facts are based upon a composite of the credited
testimony of Foster, Beerbower, Cobb, Howard, Nabors, and
Kappelman.
10 The facts are based upon the credited testimony of Foster
and Nabors and a fair inference from all of the evidence.
11 The facts are based upon a composite evaluation of
Kappelman's credited testimony, a fair inference from all of the
evidence, and a logical consistency of all the evidence Lawrence
Manley in his testimony in effect denied the incident as testified
to by Kappelman and referred to a diary as reflecting that he was
out of town on March 10, 1966 Manley's testimony revealed that
his diary did not refresh his mind but merely that he relied on the
accuracy of his diary I am convinced from the overall evidence
that he did return to the Manley Transfer Company site in Kansas
City sometime between 2.45 and 4 p in , on March 10, 1966, and
that this was when Kappelman saw Lawrence Manley and the
incident set out occurred I am convinced that Foster was a most
truthful and forthright witness and that he related what Harris
said to him about a call from "Larry." Lawrence Manley impressed
to hours of labor, wages and other employment
conditions.
The full power and authority to act for the undersigned
as described herein supersedes any power of authority
heretofore given to any person or organization to
represent me.
Date _2- 16-66 /s/ John Darrell Foster
Dean Howard /s/ John Darrell Foster
Witness PLEASE PRINT NAME
Foster thereupon sent the signed union card to Local 41.
C. Events of March 10, 1966
Foster Telephones Kappelman 10
Several weeks later on March 10, 1966, around 2:45
p.m., Foster called the union hall (Local 41) and spoke to
Local 41's Vice President Kappelman. Foster told
Kappelman that the employees were "more or less getting
tired of waiting" and wanted to know what the union was
going to do if anything. Kappelman told Foster that he
would check into the matter.
Kappelman, apparently, forthwith caused the union
cards (Beerbower, Howard, Cobb, and Foster's) to be
referred to D. L. Nabors (general organizer with the
Teamsters, Joint Council 56) for appropriate handling
concerning representation rights.
D. Events of March 10, 1966
Kappelman's Talk with Manley 11
On March 10, 1966, between 2:45 and 4 p.m., Local 41's
Vice President Kappelman had just parked his car at the
Manley Transport Company's location when Lawrence
Manley drove up. Kappelman and Manley engaged in a
conversation at this point. Kappelman told Manley that
there were men at the Lawrence, Kansas, location who
desired union representation and that Manley should get
ready to sign a Teamsters contract. Lawrence Manley told
Kappelman that before this transpired that he would close
the operation.
E. Events of March 10, 1966
Foster's Discharge 12
Around 4:45 p.m. Foster was unloading mail at the post
me as a witness who was reluctant to testify . I discredit his denial
that the Kappelman conversation occurred and I find his
testimony unreliable to establish that he was not in Kansas City
on March 10, 1966 I also discredit his testimony that he first
learned of union activity on March 14 , 1966, from a conversation
with Harris
12 The facts are based upon the credited testimony of Foster.
Foster was a forthright , frank , and truthful appearing witness I
discredit Hams' testimony to the effect that at the post office
Foster was belligerent and told him he was not going to do the
work assigned , and that only after Foster was discharged did the
question or knowledge of union arise. I discredit Harris' testimony
to the effect that he discharged Foster because of his failure to do
what he was told to do and because of complaints Harris'
testimony as a whole did not appear to be frank or forthright.
Harris' testimony as a whole convinces me that his testimony was
contrived and presented to support pretextuous reasons for his
actions. Harris seemed to become confused in his attempt to
present his contrived testimony . I discredit Harris' version of the
discharge incident
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office. Respondent Kansas' Manager George Harris came
to where Foster was and spoke to him. Harris told Foster
that he had to talk to him, that he did not care whether this
went farther than between them . Harris told Foster that
Larry had just called him from Kansas City and said that
four of the employees had signed union cards and he
wanted instigators fired . Harris asked Foster if he had had
anything to do with it. Foster told Harris that he had.
Harris told Foster that he had to fire him. Foster told
Harris that he could not fire him over the Union. Harris
told Foster that he was fired and that-anyway he had
had complaints about Foster from Hallmark cards13 and
could fire him for that.
Conclusion
Considering the foregoing I conclude and find that
Respondents Manley and Kansas by the conduct of
Manager Harris of March 10, 1966 , (1) interrogated
employee Foster about his union activities in a manner
constituting interference , restraint , and coercion within
the meaning of Section 8(a)(1) of the Act and (2) threatened
employees with discharge if they did not abandon their
union efforts. Such conduct of Respondents Manley and
Kansas is conduct violative of Section 8(a)(1) of the Act.
The General Counsel alleges and contends that the
March 10 , 1966 , discharge was violative of Section 8(a)(3)
of the Act. The Respondent contends that Foster was
discharged for cause. Considering all of the foregoing and
the facts set out hereinafter, I am convinced that the facts
reveal that Foster was discharged because of his union
activity. Basically the issue is one of credibility and I
found Foster a much more credible witness than I found
Harris. I am convinced that Harris did not tell Foster that
he was being discharged for failure to do what he was told.
I am also convinced from the overall evidence that Harris
tried to justify the discharge to the employees on the
ground of complaint from Hallmark and that he has added
as an afterthought a contention that Foster failed to do
what he was told . I am also convinced that Harris is not
credible as a witness as regards his contention of
complaints , of Foster's failure to do his work as ordered, or
as to the reason for discharge . I thus conclude and find
that Respondents ' Manley and Kansas discharged Foster
on March 10, 1966, in violation of Section 8(a)(3) and (1) of
the Act.14
F. Harris' Talk with Employees
March 10,1966-6 p.m. 15
On March 10, 1966, at 6 p.m. George Harris told
employees Beerbower, Cobb, and Howard that he wanted
to talk to them . Harris told the employees that he had had
13 Foster's work for Respondent Kansas involved
transportation of Hallmark cards.
" Although as indicated the facts reveal that Respondent
Manley is the superior employer and Respondent Kansas is
Respondent Manley's agent instrumentality , it should be noted
that responsibility would also be at Respondent Manley's
doorsteps under the rationale of Austin Company, 101 NLRB 1257,
and West Texas Utilities Company, 108 NLRB 407
15 The facts are based upon a composite of the credited aspects
of the testimony of Hams, Howard , Beerbower , and Cobb. Harris
in his testimony indicated that he did not agree to a raise I found
the testimony of Howard , Beerbower , and Cobb more persuasive
on this point I especially found Howard to be a persuasive and
truthful appearing witness I credit the testimony of Howard,
Beerbower , and Cobb to the effect that Harris told them that they
to terminate Foster . Harris told the employees he was
disappointed that they had gone behind his back to the
Union. Harris asked the employees why they had not come
to him. Howard told Harris that if they had that they would
have lost their jobs and nothing would have been done.
Harris told the employees that they had to get this settled,
that there was not going to be a union , and that he would
not run as a union shop . Harris told the employees that if
they did not stop trying to get a union that they might as
well look for another job. Harris asked the employees what
they were griping about. The employees told Harris that
they would like to be paid for the hours worked and that
they would like raises. Harris told the employees that he
had just given them raises within the past several months.
Harris told the employees to tell him what the score was,
that they should tell him what they were thinking about,
and that he would see what he could do. The employees
thereupon told Harris the specifics of their wage raise
desires. Harris told the employees that he would tell the
secretary about the raises. Howard asked Harris if he had
fired Foster because of the Union. Harris told Howard that
he had not fired Foster because of the Union but because
of complaints from Hallmark . Howard told Harris that if
Harris had fired Foster over the union deal that he
(Howard) would quit. Harris replied that if the employees
did not like their jobs, that if they were not satisfied, that
they should just find another job.
Conclusion
Considering the foregoing, I conclude and find that
Respondents Manley and Kansas by the conduct of
Manager Harris on March 10 , 1966 , ( 1) interrogated
employees about their union activities in a manner
constituting interference , restraint , and coercion within
the meaning of Section 8(a)(1) of the Act, (2) threatened
employees with discharge if they did not abandon their
union activities , and (3) offered employees a wage increase
if they would forget about the union. Such conduct of
Respondents Manley and Kansas is conduct violative of
Section 8(a)(1) of the Act.
G. Events of March 10, 1966
Foster telephones the union hall about his discharge 16
On March 10, 1966 , Foster called Local 41 's union hall
to relate the incident of his discharge . Apparently Foster
was told by some one at the Union's office" that D. L.
Nabors, general organizer with the Teamsters, Joint
Council 56, would handle the matter. Apparently Foster
was also told that Nabors was out at the time but that he
(Foster) should call back later.
would get a raise I discredit Harris ' testimony to the effect that
he only told them he would think about a raise Harris also
testified to the effect that he told the employees that Foster was
fired because he would not do what he was told. Howard, who was
a forthright and truthful appearing witness, testified that Harris
told them that he fired Foster because of complaints from
Hallmark . I credit Howard 's testimony to this point and discredit
Harris' version . Harris was not as truthful or forthright appearing
a witness as were the employees regarding these incidents.
Is The facts are based upon a composite evaluation of the
credited testimony of Foster and Nabors and a fair inference from
all the evidence
IT There is no evidence to reveal exactly who Foster talked to
on this occasion
MANLEY TRANSFER COMPANY 183
The matter of Foster's telephone call concerning his
discharge was referred by Local4l to D. L. Nabors for
appropriate handling.
H. Events of March 11, 1966
Nabors appraised of events 18
D. L. Nabors became aware of the aforesaid union cards
and of Foster's telephone call (re discharge) on March 11,
1966. Nabors told his secretary that when Foster called
back to inform him to come to Nabors' office on Monday,
March 14,1966.
1. Events of March 11, 1966
Harris reports to Manley is
On March 11, 1966, Harris reported to Lawrence
Manley that he had fired Foster and about his conversation
with the other employees.
J. Events of March 14,1966
Foster talks to Nabors; Nabors talks to Manley; Quinn
talks to Nabors 20
On March 14 , 1966, Foster went to Nabors ' office and
the two discussed the facts concerning Foster 's discharge
on March 10, 1966.
Nabors, thereafter , telephoned Lawrence Manley at
Manley's Transfer Company, Nabors told Lawrence
Manley that the Union represented a majority of the
employees at the Lawrence station. Nabors told Manley
that Foster had been discharged and that the Union
wanted Foster returned to work with no loss of time (pay).
Nabors told Manley that the Union would then proceed
through the Board (NLRB ) with a representation election.
Lawrence Manley told Nabors that he would talk to Harris
and then call Nabors back.
What transpired next is best revealed by the following
excerpts of the credited testimony of Nabors.
Q. Did he call you back?
A. He had Mr. Quinn call me.
Q. Mr. Quinn , are you referring to one of the
counsel for respondent?
A. Yes, this Mr. Quinn , one of these gentlemen
(indicating).
Q. When did Mr. Quinn call you?
A. The same day, it was later in the day, after I
talked to Manley.
19 The facts are based upon Nabors' credited testimony.
10 The facts are based upon a fair inference from all of the
evidence Lawrence Manley and George Harris testified to the
effect that Manley first learned of the labor problems on or around
March 14, 1966 I found Manley and Harris' testimony to the
events following March 10 , 1966, to appear contrived and I do not
credit or believe it as to this factfinding or as to later events as
indicated I am convinced that under the circumstances of this
case, Harris would have immediately been in contact with
Lawrence Manley to report what had happened
20 The facts are based upon a composite of the credited aspects
of the testimony of Foster, Nabors, and Lawrence Manley.
Lawrence Manley's testimony as to his talks with Nabors was
generalized and not specific as to times or details Manley
testified to the effect however that he always told Nabors that he
had nothing to do with Respondent Kansas' operations and that
Nabors would have to negotiate with Harris Considering the more
completeness of Nabors ' testimony , the logical consistency of the
evidence, the limited nature, and the general appearance of
Q. What was said on this occasion by you and Mr.
Quinn?
A. Mr. Quinn, of course, he told me this was
separate from Manley Transfer and Larry Manley
didn't have anything to do with it. He was just in the
middle, so to speak, and I told him that all the
equipment, that this had come from the boys, I didn't
know this first-hand, but from the information I had
received, that the only way that you would know this
is Kansas Delivery Service would be if you looked at
one of their paychecks and it had Kansas Delivery
Service signed by Larry Manley. The dock had
Manley Transfer on it.
*
A. I told him they were hauling Manley freight,
they had the colors of Manley, which is yellow and
black letters, Manley wrote on the side, the telephone
number in the book was Manley Transfer, you call up
on the phone, they answered the phone as Manley
Transfer, and I told him I represented these people
and if I didn't get someting, Mr. Foster was put back
to work, I was contemplating striking the job. And
through this conversation or conversation a little later,
Mr. Quinn asked me if I would wait until Mr.
Dannevik got back in town. He was out of the city.
K. Nabors' Talks With Manley and His Attorneys and
With Harris 21
During the period of time between March 14, 1966, and
March 26, 1966, Lawrence Manley and his attorneys had a
number of conversations with Nabors about the problems
of recognition, about contract terms, and about
reinstatement of Foster. Nabors during this time had
several conversations with Harris about the same matters.
L. Events of March 15, 1966, Lawrence Manley-Nabors
Conversation22
On the morning of March 15, 1966, Lawrence Manley
telephoned Union Organizer Nabors and suggested a
meeting. A short time later Nabors and Lawrence Manley
on the morning of March 15, 1966, met at Local 41's
offices. At this meeting Nabors continued to press his
demands for recognition, that Manley Transfer Company
was the employer of the (Kansas Delivery Service, Inc.)
Lawrence employees, and that Foster should be
reinstated. Nabors pointed out the various reasons that he
contended the Manley Transfer Company was the said
employer. Lawrence Manley insisted that he was "in the
contrivance of Manley's testimony , I found Nabors ' version more
credible and discredit Manley's testimony as inconsistent with
the facts found.,
2i The facts are based upon a composite of the credited aspects
of the testimony of Nabors , Manley, and Harris.
22 The facts are based upon a composite of the credited
testimony of Lawrence Manley and Nabors The testimony and
evidence reveal that there were a number of conversations
between Nabors and Manley and between Nabors and Harris
Considering all the testimony and evidence , I am convinced that
Nabors confused the dates when he testified that the events set
forth herein occurred on March 22, 1966 I believe his testimony
to be reliable-that it occurred Tuesday in the a in I believe
Lawrence Manley's testimony to the effect that his conversations
with Nabors occurred during the week of March 14, 1966.
Considering the events that I have found that occurred on
March 14, 1966, and the probabilities of expected follow through
and the foregoing , I am convinced that the events set out herein
occurred on March 15, 1966, and so fix the date.
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
middle" and had nothing to do with Kansas Delivery
Service, and that negotiations would have to be with
George Harris. Nabors and Manley discussed possible
contract terms. Lawrence Manley talked to Nabor about
lesser rates than the "standard" teamster contract called
for. Lawrence Manley referred to a Manley Transfer
Company union contract that deviated from the standard
rates. Nabors told Manley that he could not agree to a
deviation without talking to Roy Williams (Nabors'
immediate superior) as to certain deviations but told
Manley that he would agree to try to work out something
concerning road delivery rates.
M. Manley's Talk with Harris March 15, 1966 23
During the afternoon of March 15, 1966, Lawrence
Manley drove to Lawrence, Kansas, and discussed with
Manager George Harris the questions relating to the
Union's demand for recognition, the demand that Foster
be reinstated, and the threat of strike action that Nabors
had previously made in the conversation Nabors had with
Attorney Quinn.
N. Events of March 16,1966
Harris' conversation with Foster 24
On March 16, 1966, Manager Harris telephoned Foster's
home and left word that he had Foster's coats at the
terminal and that Foster could come and get them. When
Foster returned home that day, he received the foregoing
message and went to the Manley Transfer Company
Terminal at Lawrence, Kansas.
What transpired at the time that Foster went to the
terminal is revealed by the following excerpts from
Foster's credited testimony.
Q. What was said on this occasion by Mr. Harris
and by you if anything?
A. Well, I just walked in and got my coats, and I
was walking out, and he asked me, "Foster, are you
going to keep pushing the union?" I said, "I went out
after it and I am going to get it." Well, he said, "I will
tell you one thing, before I have a union, I will lock the
doors." I went on outside and then he said if I wanted
a job in Kansas City, "just tell me where" and he'd get
it for me, and I told him I wanted the union, I still
wanted the union, and I told him I would think about
it. I got in the car and left.
THE WITNESS: He said if it's a job in Kansas City
you want, you just tell me where and I will get it for
you.
* * * * *
THE WITNESS: He said that before he had a union
shop he'd lock the doors.
* * * * *
THE WITNESS: Just like I stated, about him asking
if I was going to keep pushing the union. I said yes, I
went out after it and I was going to get it. Then he said
that about the union shop, before we get a union shop
he was going to lock the doors. Then I went outside
and he said, "If it's a job in Kansas City you want, tell
me where and I'll get it."
Conclusion
Considering the foregoing , I conclude and find that
Respondent Manley and Kansas by the conduct of
Manager Harris on March 16 , 1966 , (1) threatened an
employee25 that Respondents would close the terminal in
order to prevent unionization and (2) promised an
employee benefits (a job in Kansas City) if he would forget
about the Union . Such conduct of Respondents Many
and Kansas is conduct violative of Section 8(a)(1) of the
Act.
0. Events of March 17,1966
Lawrence Manley contacts Brooks 26
In the past Raymond Brooks (d/b/a Brooks Transfer and
Storage Company) had talked to Lawrence Manley about
the possibility of Brooks' handling Manley's Ottawa and
Lawrence, Kansas, commission agent positions.
On March 17, 1966, Lawrence Manley went to Ottawa,
Kansas, and spoke to Raymond Brooks about the
possibility of Brooks taking over the Manley Transfer
Company Terminal in Lawrence, Kansas, and operating it
in conjunction with Brooks' Ottawa business. Lawrence
Manley told Brooks of the problems that he and Harris
23 The facts are based upon a composite of the credited
testimony of Manley and a fair inference from all of the evidence
24 The facts are based upon a composite evaluation of Foster's
credited testimony and the logical consistency of all of the
evidence . Foster testified to the effect that this event occurred on
March 16 or 17, 1966. Considering all of the evidence and the
probabilities thereof, I am convinced that Lawrence Manley and
Hams would have been concerned over the threatened strike
action and the March 15 meeting between Nabors and
Lawrence Manley I am thus convinced that Harris ' contact with
Foster would have occurred at the earliest reasonable moment so
as to stop union support Therefore I am convinced that this event
occurred on March 16, 1966, and so fix the date Such precise
fitting of dates is not absolutely necessary and a finding that this
event occurred on March 17, 1966, would not affect the ultimate
results The logical consistency of all the evidence and the
probabilities thereof reveal that the following events occurred in
chronological order--(1) Harris spoke to Foster concerning his
uniforms and another job, (2) Lawrence Manley contacted Brooks
as to the possible taking over ol the operation, (3) Brooks and
Hams got together as to the job problems, (4) Nabors and Foster
saw Harris, and (5 ) Nabors had another telephone call with
Lawrence Manley . The evidence reveals that all of these events
occurred during the same week.
2s Foster, the employee threatened , having been
discriminatonly discharged (in' violation of Section 8(a)(3) of
the Act) clearly was an employee within the meaning of Section
8(a)(1) of the Act on March 16, 1966
2s The facts are based upon a composite evaluation of the
credited aspects of the testimony of Lawrence Manley and Brooks
and the logical consistency of all of the evidence. Brooks testified
that Manley contacted him on March 16 or 17, 1966 I am
convinced that Manley contacted Brooks 'after learning that
Harris had been unsuccessful in talking Foster out of future union
activity. As indicated previously, the exact chronology of events is
not really in question As indicated previously, a precise date
finding herein is not essential so long as the other date findings
would be in chronological order Since I am convinced that these
events all occurred during the same week , I am persuaded that
this event occurred on March 17, 1966, and so find the events as
occurring on that date . Both Lawrence Manley and Raymond
Brooks impressed me as witnesses who were reluctant to testify
to the full and complete details of events. Considering their
demeanor and the logical consistency of all the evidence, I do not
believe their testimony to the effect that Manley merely inquired
as to the possibility of Brooks' handling the Lawrence operation.
On the contrary I am convinced that they fully and frankly
discussed the facts as set forth in the fact found herein.
MANLEY TRANSFER COMPANY 185
were having with the Union, that the Union was
demanding recognition, that the Union was demanding
that Foster be reinstated, that the Union was threatening
strike action, and that he did not intend to operate the
Lawrence terminal under contract with the Union.
P. Events of March 17 or 18, 1966
Brooks visits Lawrence, Kansas 27
Later on, either on March 17, 1966, or March 18, 1966,
Raymond Brooks went to Lawrence, Kansas, and saw
George Harris. Brooks and Harris discussed the business
operations, the problems of the operations, the union
problem and Harris' actions thereto, the status of Foster,
and the employment of Harris by Brooks. Brooks and
Harris went out to the Hallmark plant to survey that part of
the Lawrence operation. Brooks and Harris also checked
into the possibility of a new terminal site capable of
handling Brooks' equipment.
Q. Events of March 17 or 18, 1966
Nabors and Foster see Harris 28
Around the end of the day on March 17 or 18, 1966,29
Nabors and Foster went to the Manley Transfer Company
terminal at Lawrence, Kansas. What transpired at this
time is revealed by the following excerpts from Nabors'
credited testimony.
Q. What was said by you and what was said by Mr.
Harris on this occasion, if anything, sir?
A. Well, of course, this was a long time ago and I
don't remember all of the conversation verbatim, but
the crux of the conversation, I was still trying to get
him to put Foster back to work, no loss of time, give us
a letter of recognition, and we would sit down and
work out the difficulty. He told me that under what
Manley allotted him he couldn't pay union wages, and
I told him if we went there, got Foster back to work I
would sit down with him and Larry Manley and work
out something where he could live under the contract.
He was going to sleep on it and call me the next
morning and let me know. I was supposed to send him
a copy of the contract to figure out how many pennies
it would cost.
Q. When you refer to the copy of the contract, are
you referring to Respondent's Exhibit 2?
A. Yes.
Q. Did you send him a copy?
A. I did.
Q. Did you call him the next day?
A. I don't know if I called him or he called me, I
think I missed his call and I called him back. He said,
"I couldn't go along with it." He couldn't put Foster
back to work.
Q. Did you discuss with Harris the circumstances
surrounding the termination of Mr. Foster?
A. I sure did.
Q. What did Harris tell you as to the reason he had
fired Foster?
A. Well, he gave me an altogether different reason
from what I received from Foster.
Q. That's understandable. What did he tell you?
A. He told me he fired him, the man wasn't doing
his job.
Q. Did he go into details in what respect he wasn't
doing his job?
A. Of course, he said the man down at Hallmark
had called several times on him.
R. Events of March 18 or 19,1966
Nabors talks with Manley 30
Following Nabors' conversation with Harris on
March 17 or 18, 1966, and Harris' reply that he could not
put Foster back to work, Nabors got in touch with
Lawrence Manley on the telephone on either March 18 or
19, 1966, with reference to the problem. Lawrence Manley
told Nabors in effect that he could not put Foster back to
work because if he did so Harris might quit and he did not
want Harris to quit. Nabors told Lawrence Manley that the
employees had told him that Brooks and Harris had been
attempting to rent another terminal facility. Lawrence
Manley in effect denied to Nabors that this was being
done.
Apparently during the next week Nabors had
conversations with Manley's attorneys of a similar vein to
the ones previously held with Lawrence Manley and
Attorney Quinn.
21 The facts are based upon a composite evaluation of the
credited testimony of Howard , a fair inference from all of the
evidence , and the logical consistency of all of the evidence Since
the evidence reveals that the qestion of Brooks ' availability to
take over the Lawrence operation was one of importance, I am
convinced that Brooks immediately after talking to Lawrence
Manley went to Lawrence, Kansas, to check out the problems
with Hams . Neither Brooks nor Hams appeared frank or
forthright as witnesses . I discredit their testimony to the effect
that Brooks and Harris first saw_ each other around March 26,
1966, in regards to the situation . I am convinced from all of the
evidence that they saw each other on March 17 or 18 and fully and
frankly discussed all of the problems , including union problems,
checked out terminal sites , and checked the routine of the
operation , and discussed the employment of Hams by Brooks
2s The facts are based upon a composite evaluation of the
credited testimony of Nabors, Foster, and Harris Nabors testified
that the event occurred around March 17 or 18, 1966 Harris
indicated the event occurred several days before March 22, 1966.
The questioning of and the answers by Foster to the timing of this
event were ambiguous I am convinced that the indication in his
testimony that the event may have happened on March 21 or 22
was caused by such ambiguousness and is not reliable I find
Nabors' and Harris' timing of the event reliable and in connection
with the other facts place the event as set forth in the facts found
21 The event followed in time the visit to Lawrence , Kansas, by
Brooks as set out previously
31 The facts are based upon a composite evaluation of Nabors'
and Manley 's credited testimony , a fair inference from all of the
evidence, and the logical consistency of all the evidence Nabors
on direct examination placed the acquisition of reports from
employees about Brooks' and Harris' checking another terminal
site for rental as being 2 weeks before Brooks took over (on
March 29, 1966 ) On cross -examination the question and Nabors'
answers thereto are ambiguous as to whether he had "official" or
"unofficial" notice of when Brooks rented the other site . Manley
credibly testified that he was out of town during the week of
March 21-26, 1966. I am thus convinced that the conversation did
not occur during this week Since the event of Brooks ' taking over
had occurred by March 29, 1966, and since Manley thus would not
have expressed concern over Harris' quitting at that time, I am
convinced that the overall evidence reveals this incident to have
occurred on March 18 or 19, 1966
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
S. Events of March 22, 196631
Events of March 24,1966
On March 22, 1966, Manley Transfer Company reduced
to writing a new contract with Raymond Brooks d/b/a
Brooks Transfer and Storage Company concerning the
operation of Manley Transfer Company's terminal in
Lawrence, Kansas. The contract was to become effective
as of March 26,1966.
The aforesaid contract is herewith set out:
This agreement, made and entered into this 22 day of
March 1966, by and between THE MANLEY TRANSFER
COMPANY, INC., CHANUTE, KANSAS, and or its
successors and assigns, party of the first part,
hereinafter called "Company," and Raymond Brooks
of .... Street, City of Ottawa State of Kansas, party
of the second part, hereinafter called "Agent."
WITNESSETH:
Whereas: that for and in consideration of the facilities
to be furnished and the service to be rendered by
Agent, and the compensation paid therefor by
Company, as hereinafter set forth, the parties hereto
convenant and agrees as follows:
AGENT AGREES:
1. To Perform pickup and delivery service, where
legally authorized at the station of Lawrence, Ks. for
all freights shipments which can be handled by the
Company at lawfully published tarrif rates and to
furnish to the public any information contained in
freight tarrifs and circulars (such information to be
secured from station files or from Freight Traffic
Department of the Company), insofar as the same is
applicable to the transporation of the freight.
2. To furnish, at above address for the transaction of
Company business and accomodation of its patrons,
suitable and adequate dock space for the proper
handling of freight shipments and to maintain said
dock, approaches, and premises attached thereto in a
clean and safe condition at all times , and to reimburse
and hold harmless Company from any and all
expenses incurred and/or claims arising directly or
indirectly from or on account of any neglect or failure
to so maintain the said dock, approaches or
appurtenant premises.
3. Agent convenants and agrees to protect, indemnify
and hold harmless Company from and against any and
all loss, damage, cost and expense, including
attorneys' fees, that may be suffered or incurred by
Company, or by any person or persons, firm,
association , or corporation resulting from:
(a) Injury to or death of persons, loss or destruction
of, or damage or delay to property, including the
conversion thereof, caused by, or resulting in any
manner from any acts or omissions negligent or
otherwise, of Agent, or any of the employees in
performing, or failing to perform any of the service or
duties on the part of Agent to be performed
hereunder.
"The facts are based upon stipulations of the parties , upon the
credited aspects of the testimony of Brooks and Harris, and upon
a fair inference from all of the evidence As indicated previously it
is hard to believe, and I do not believe, Lawrence Manley's
testimony that he did not know of the events of March 22, 1966,
(b) The issuance of any false or fraudulent bills of
lading for freight charges by Agent or any of the
Agent's employees.
(c) Theft, embezzlement or defalcation on the part
of Agent, or any of the Agent employees.
4. To be liable for and protect at all times any and all
money and/or property of the Company in the care or
under the supervision of the Agent; and to indemnify
and save the Company harmless from any loss of or
damage to such money and/or property, however
occurring and whether or not such loss be due to the
fault of or within the control of the Agent. The title to
all freight and proceeds thereof shall be at all times in
the Company, it being the intention of this agreement
that the agent shall at all times be in the position of
trustee of said freight and the proceeds thereof for the
Company.
5. In the performance of the Work hereunder, agent
shall comply with all applicable federal and state
enactments with reference to Employer's Liability,
Workmen's Compensation and Workman's Insurance
(and when requested by Company shall furnish proof
of such compliance) and shall indemnify and hold
harmless Company from and against any and all loss,
liability, damages, claims, demands, costs and
expenses of whatsoever nature due to the existance of
such enactments or resulting from any claim of
subrogation provided in such enactments or
otherwise.
6. Agent shall also comply strictly at all times with all
others laws, rules, regulations and ordinances, state,
federal or municipal applicable to operations and
service to be performed by Agent hereunder, and
Agent expressly agrees to indemnify Company and
save it harmless from all liability for any failure or
default on the part of Agent or in his behalf.
7. Agent agrees to procure and keep in full force and
effect during the life of this agreement, and to assume
the expense of adequate insurance covering the
operations provided for in this agreement, including
Cargo, Public Liability and Property Damage, and
Workmen's Compensation Insurance, and to furnish
to Company copies of policies or certificates of such
insurance coverage. Such policies or certificates shall
be issued by companies and on forms and for
Amounts approved by Company.
8. To render reports of Company business on the
Daily days of each month; and also to remit to
Company or deposit to account of Company at such
times, or as may hereafter be prescribed by the
Treasurer of Company, all moneys belonging to
Company or collected for the account of the
Company.
9. To permit authorized representatives of Company,
during business hours, to inspect and check all
property of Company, and inspect and audit all
records and accounts pertaining to the business of
Company kept or supervised by Agent, and to permit
until after they happened As Lawrence Manley was an 80 percent
owner of Respondent Kansas, I am convinced that George Harris
would not "cancel" his contract without a specific understanding
with Lawrence Manley.
MANLEY TRANSFER COMPANY
such authorized representatives, at their discretion, to
collect all moneys belonging to the Company in the
possession of the Agent.
10. To render reports of Over, Short, and Damages
within twenty-four hours after they occurr to 0 S & D
Clerk.
11. To place and maintain suitable sign or signs
designating aforesaid premises as the Freight station
of the Company.
12. That the title to all station equipment, signs, et
cetera, furnished to the Agent shall be in the
Company at all times and Agent will return said
property or pay for its value upon the termination of
this agreement. Upon the termination of this
agreement the Agent will permit a representative of
the Company to remove all signs, decalcomanias and
any and all other evidence which might lead the
public to believe that Agent is still the Agent for the
Company.
13. Immediately upon the termination of this
agreement , to remove from the telephone directory, or
any other advertising media, any item listing or
reference indicating that Agent is acting in any
capacity for the Company.
14. Agent specifically authorizes Company to deduct
from any money that may be due Agent hereunder
any sums representing an expense incurred by the
Company by reason of loss or damage to freight
shipments due to negligence on part of Agent or its
employees.
15. To Pay Agent commission at the rate of:
30% of Manley Transfer Co. Inc. Net Revenue
per bill that agent handles.
Agent will furnish all power equipment and will
transport all trailers between Lawrence, Ks. and
K.C., Mo.
for pickup and delivery and other work incidental to
the proper handling of records and maintenance of
the station.
16. To permit Agent to deduct commission to which
he is entitled under paragraph fifteen from Company
funds in his possession when making remittances as
provided in paragraph eight.
IT IS MUTUALLY AGREED:
17. That payment as aforesaid shall constitute full
and complete compensation to Agent for all facilities
furnished and services rendered by Agent.
18. Agent shall employ and direct all persons
performing any service hereunder and such persons
shall be and remain the sole employees of and subject
to the control and direction of Agent and not the
employees or subject to the direction and control of
Company, it being the intention of the parties hereto
that Agent shall be and remain an independent
Contractor and that nothing herein contained shall be
construed as inconsistent with that status.
32 Harris testified that he submitted a written resignation to
Lawrence Manley when he told the boys on March 26, 1966, that
he was closing down Later when questioned about the March 22,
187
19. This agreement shall take effect on the date first
herein written and shall continue in full force and
effect until terminated by written notice given by
either party hereto to the other party on any date in
such notice stated, not less however, than fifteen (15)
days subsequent to the date on which such notice
shall be given. However, Carrier may terminate the
agreement at any time immediately upon written
notice to Contractor in the event Contractor fails to
comply with any of the terms of this agreement.
20. The waiver of a breach of any of the terms or
conditions hereof shall be limited to the act or acts
constituting such breach and shall never be contrued
as being a continuing or permanent waiver of any
such terms or conditions, all of which shall be and
remain in full force and effect as to future acts or
happenings, not with-standing any such waiver.
THIS AGREEMENT cancels any and all previous
contracts and agreements pertaining to the subject of
commission agency between Agent and Company
and/or its predecessors in interest except as to
unfulfilled obligations heretofore incurred, and this
agreement constitutes the entire contract between the
parties, and any additional or subsequent agreement
shall be in writing and signed by both parties hereto.
IN WITNESS WHEREOF the parties hereto have
caused this agreement to be executed the day and
year first hereinabove written.
/s/ Raymond Brooks
AGENT
/s/ Robert Lee
WITNESS TO AGENT'S SIGNATURE
MANLEY TRANSFER COMPANY, INC.
(COMPANY)
/s/ Glen T. Robbin
GENERAL MANAGER
/s/ Robert Lee
WITNESS TO GENERAL MANAGER SIGNATURE
Either shortly before or after the execution of the
foregoing instrument some official of Manley Transfer
Company notified George Harris of what was being done
and told him to send in a letter requesting cancellation of
the agreement between Manley Transfer Company and
the Kansas Delivery Service, Inc., covering the Lawrence
peration. George Harris thereupon did so on the same
date.32 Harris appeared to be a very confused witness
attempting to tell a pretextuous and prefabricated story. I
am convinced that in the haste to prepare a pretextuous
defense that Harris overlooked a formal resignation as
manager of Kansas Delivery Service, Inc. In fact I am
convinced that Harris did not consider that he was
resigning but was merely participating in a necessary
change to defeat unionization.
1966, letter requesting cancellation he placed the date of his letter
of resignation as being on March 22, 1966 I do not believe Harris'
testimony on this point
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On March 24, 1966, Respondent Manley transmitted a
letter to Harris as follows:
March 24,1966
317 N. Santa Fe.
Chanute, Kansas
George E. Harris
Kansas Delivery Service
315 N. 3rd
Lawrence, Kansas
Dear George;
It was with regret that we received your
cancellation letter, but this is to advise we will cancel
your contract with Manley Transfer Co., Inc. effective
March 26,1966.
Very truly yours,
R. F. Manley
President
Manley Transfer Co., Inc.
T. Events of March 26,1966
Respondent Kansas Terminates its Employees 33
On March 26, 1966, George Harris told employees
Beerbower, Howard, and Cobb that he was tired of staying
up all night worrying about the union deal, that he had
talked to Larry (Manley) the night before and that Larry
had said to use his best judgment, that he was going to
close the doors. Beerbower asked Harris how Lawrence
Manley could afford to quit hauling the Hallmark load.
Harris told Beerbower that he did not know, that it didn't
make any difference because he was out of a job like the
rest of the M.34
Conclusions
A consideration of all the facts clearly reveal that
Respondents Manley and Kansas terminated the
employment of Cobb, Howard, and Beerbower, because
they had engaged in union activity. Harris' interrogation
and threats to employees as to the closing of the operation
if they engaged in union activity coupled with the facts of
requested bargaining by the Union clearly reveal that
Respondent Manley and Kansas were discriminatorily
motivated in their termination of the employees on
March 26, 1966. The subterfuge between Respondent
Manley, Kansas, and Brooks clearly support a further
inference that Respondents considered themselves to
benefit by not having unionization of employees at the
"commission agent" sites.35 I have considered the fact
that Respondent Manley as to its basic organization has
contracts with the Union. I am persuaded however that
Respondents considered it to be beneficial to keep down
unionization at the small town "commission agent" sites.
13 The facts are based upon a composite of the ciedited aspects
of the testimony of Beerbower , Cobb, Howard , and Hams.
34 If Respondents Manley's andKansas ' actions had been on the
up and up , it is hard to understand why Harris did not tell his
employees on March 22, 1966, of his action and why on March 26,
I, thus, conclude and find from all the facts that
Respondents Manley and Kansas discriminatorily
discharged Cobb, Howard, and Beerbower because they
had engaged in union activities. Such conduct is violative
of Section 8(a)(3) and (1) of the Act.
U. The Appropriate Bargaining Unit
The parties stipulated to the effect and I find as a fact
that "all truck drivers and laborers of Kansas Delivery
Service, Inc., at its Lawrence, Kansas, terminal , excluding
office-clerical workers, professional employees, guards,
and supervisors defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act." The parties
stipulated to the effect and I find as a fact that "all
truckdrivers and laborers of Raymond Brooks d/b/a
Brooks Transfer and Storage, at its Lawrence, Kansas,
terminal , excluding office-clerical workers, professional
employees, guards and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act."
The total evidence in this case reveals that the
appropriate bargaining unit involved herein could best be
described as, and I so find the described unit to be as
follows: "All truckdrivers and laborers of the enterprise
doing business at Lawrence, Kansas, as agent for Manley
Transfer Company, Inc., and operating a terminal thereat
for Manley Transfer Company, Inc., excluding office-
clerical workers, professional employees, guards and
supervisors defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act."
V. Majority Status of Union
There is no dispute and I find as a fact that the
employees who constituted the appropriate bargaining
unit on March 10, 1966, were Foster, Beerbower, Cobb,
and Howard. The facts also reveal that each of the above-
named employees had around February 16, 1966, signed
an appropriate authorization card designating the Union as
their bargaining agent . I conclude and find as a fact that
the Union (Local 41) was on March 10, 1966, the duly
designated collective-bargaining representative of the
employees in the described appropriate bargaining unit.
W. Demands for Recognition and Bargaining
The facts are clear that Kappelman on March 10, 1966,
in his conversation with Lawrence Manley, and that
Nabors, during the week of March 14-19, 1966, in his
conversations with Lawrence Manley, with George Harris,
and with Manley's attorneys made demands for
recognition and bargaining upon Respondent Manley and
Respondent Kansas. The facts are also clear that.
Respondent Manley and Respondent Kansas by the
actions taken on March 10, 1966, with respect to the
discharge of Foster, with respect to Harris' talk to the
1966, he told the employees he had talked to Lawrence Manley
the night before and was going to close the doors.
3s See the decision of the Supreme Court of the United States
in Textile Workers Union v Darlington Manufacturing Co., 380
U S. 263, 273, in. 18.
MANLEY TRANSFER COMPANY 189
other employees, with respect to Harris' attempt to
dissuade Foster from union activity on March 16, with
respect to the pretextuous cessation of business by
Respondent Kansas and the pretextuous substitution of
Respondent Brooks for the Lawrence, Kansas, operation,
engaged in a course of conduct whereby both Respondent
Manley and Respondent Kansas clearly refused to bargain
in good faith with the Union. Such conduct of Respondent
Manley and Respondent Kansas clearly violated Section
8(a)(5) and (1) of the Act. I so conclude and find.36
X. Events of March 26,1966, and Thereafter
Respondent Brooks operations 31
As indicated previously Respondent Manley and
Respondent Brooks executed a contract on March 22,
1966, with effective date as of March 26, 1966, for
Respondent Brooks to act as Respondent's agent in its
Lawrence, Kansas, operation.
On March 26, 1966, at 3:30 p.m. Raymond Brooks
signed a lease for a new terminal site for the Lawrence
operation. On Monday, March 28, 1966, Raymond Brooks
d/b/a Brooks Transfer and Storage commenced operations
as Manley Transfer Company's Lawrence, Kansas, agent.
Brooks Transfer and Storage commenced its operations in
Lawrence, Kansas, using substantially the same type
equipment and doing the same work as had formerly been
done by Kansas Delivery Service, Inc. Some of Brooks'
trucks had Manley Transfer Company's name on them and
some did not. None had the name of Brooks Transfer and
Storage on them. Brooks, similar to Kansas Delivery
Service, Inc., had a contract with Manley Transfer
Company to be Manley's agent in Lawrence, Kansas.
Similar to Kansas Delivery Service, Inc., Brooks uses
Manley's ICC licenses when required. Brooks has at the
Lawrence, Kansas, site some office equipment which he
has purchased. Brooks also has at the Lawrence office
some Kansas Delivery Service, Inc., office equipment
which he has not paid for or signed notes for. Brooks has
the same telephone number that Kansas Delivery Service,
Inc., had and also instructs the employees to answer the
telephone as "Manley Transfer."
Brooks Transfer and Storage commenced operations at
Lawrence, Kansas, with the following personnel . George
Harris commenced work as a driver. Several employees
were transferred from Brooks' Ottawa location and two
new employees were hired from Ottawa. Mrs. Harris, who
had worked for Kansas Delivery Service, Inc., was
employed for office work a few days later . None of the
other Kansas Delivery Service, Inc., employees, including
Foster, was hired.
Events of March 28,1966
On March 28, 1966, Raymond Brooks negotiated a lease
with George Harris and Glenn Robbins (of Respondent
Manley) for certain equipment of Respondent Kansas.
Conclusion
Considering the foregoing and all the facts in this case
(including those set forth relating to the operation by
Kansas Delivery Service, Inc., and the involvement
therein of Manley Transfer Company, Inc.,38 the facts that
the bulk of the work performed by Brooks at Lawrence,
Kansas, required transportation under authority of the
ICC and that Respondent Brooks had no such authority
but by virtue of delegation of Respondent Manley's ICC
permit was able to perform such transportation, and that
the contract between Respondent Manley and Respondent
Brooks provided, inter alia, that either party could
terminate the contract within 15 days of appropriate notice
to do so), the evidence reveals that Respondent Manley's
control of Respondent Brooks was and is such to
constitute Respondent Brooks a subordinate
instrumentality of Respondent Manley. Thus the facts
reveal that in real effect that Respondent Brooks'
supervision constituted a part of Respondent Manley's
supervision and that the employees of Respondent Brooks
were and are employees of Respondent Manley.39
As indicated herein the appropriate bargaining unit at
Respondent Brooks' Lawrence enterprise was the same
described appropriate unit as in Respondent Kansas'
enterprise. Considering all of the foregoing facts relating
to Respondent Kansas, Respondent Manley, and
Respondent Brooks, the evidence is overwhelming that
Respondent Brooks, within the meaning of Board's
successorship law, is a successor to Respondent Kansas.40
Y. Respondents Manley's, Kansas', and Brooks'
Conspiracy
Without reiterating all of the facts previously found, I
find the preponderance of the evidence to reveal that
Respondents Manley, Kansas, and Brooks jointly and
knowingly participated in a plan to thwart the unionization
of the employees at the Lawrence terminal of the
commissioned agent for Respondent Manley. Thus, I am
convinced from all the facts that after Lawrence Manley
had learned that Manager Harris had been unable to
dissuade Foster from union activity on March 16, 1966,
that Lawrence Manley decided he had to get Respondent
Brooks for the Lawrence operation as a counter to union or
strike action. I am convinced that the facts reveal that
39 Note is taken of fn . 15 in the decision of the Supreme Court
in Textile Workers v. Darlington Mfg. Co ., supra at 272.
Respondent Manley apparently contends that since the contract
between Respondent Manley and the Teamsters includes a
recognition clause and procedures for determining contract
violations that this is a factor to be considered . I find no merit to
this contention . See Sucesion Mario Mercado E Hijos d/b/a
Central Ruftna , 161 NLRB 696, 712.
31 The facts are based upon a composite evaluation of the
credited aspects of Brooks' and Harris' testimony, upon
stipulations, and upon a fair inference from all of the evidence.
Brooks' and Harris' testimony as to their contacts with each other
was very unpersuasive and to the extent not set forth herein is
discredited.
3e The facts reveal that all of Respondent Manley's commission
agents operated under similar contracts and conditions. It is
noted however that Respondent Manley and Respondent Kansas
had a more involved relationship because of Lawrence Manley's
investment and duties as regards writing checks and
bookkeeping , and the arrangement between Respondent Manley
and Respondent Kansas for the fueling of trucks and the billing
therefore. I do not find such differences to affect the ultimate
determination of the relationship between Respondent Manley
and Respondent Brooks.
39 Allen Milk Company, 158 NLRB 258.
40 Witham Buick, Inc. 139 NLRB 1209; Chemrock Corporation,
151 NLRB 1074, and cases cited therein.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lawrence Manley fully and frankly discussed with
Raymond Brooks on March 17, 1966, the entire problem of
unionization, of threatened strike action, and of the steps
he and Harris had undertaken, and of a desire to have
Brooks take over the Lawrence operation so as to defeat
the Union. I am convinced also that when Harris and
Brooks talked to each other on March 17 or 18, 1966, that
they thoroughly understood the foregoing, and that Harris
frankly and fully told Brooks of the actions he had
undertaken. I am also convinced that Brooks, on
March 22, 1966, knew that Respondent Manley was
executing the arrangements to substitute his outfit for
Respondent Kansas. Additionally I note that testimony of
Manley, Brooks, and Harris revealed that such testimony
was confused and contryed and was a deliberate
avoidance of the true story. From all of this I am
persuaded that the true facts reveal that Respondents
Manley, Brooks; and Kansas jointly and knowingly
participated in a plan to destroy unionization among the
employees in the bargaining unit at the Lawrence terminal
of the commission agent of Respondent Manley.
Since the evidence, as set out previously, reveals that
Respondent Kansas had the obligation to bargain with the
Union as regards the appropriate bargaining unit, and
especially since the facts reveal that Respondent Brooks
participated in a plan to destroy the Union's majority in the
bargaining unit , Respondent Brooks commenced
operations with a fixed obligation to recognize and bargain
with the Union as to such appropriate unit. Since
Respondent Brooks participated in a pretextuous plan to
destroy the Union's majority in the bargaining unit and to
avoid bargaining with the Union as exclusive bargaining
representative of its employees, I conclude and find from
the fact that Respondent Brooks has not recognized and
bargained with the Union that Respondent Brooks violated
Section 8(a)(5) and (1) of the Act from the moment that it
took over the operation at Lawrence, Kansas, on
March 26,1966.4'
Since the facts reveal that Respondent Brooks
participated with Respondent Manley and Respondent
Kansas in a plan to destroy the Union's majority and with
knowledge of the unfair labor practices committed by
Respondent Kansas and Respondent Manley, Respondent
Brooks also commenced operations with a fixed duty to
disavow or eliminate such unfair labor practices at least to
the extent of employing the former employees, including
Foster, of Respondent Kansas, and to disavow all other
acts of known interference within the meaning of Section
8(a)(1) of the Act. Respondent Brooks' failure to employ
Foster, Cobb, Howard, and Beerbower, under the
circumstances of this case, reveals that its conduct as of
March 26, 1966, and thereafter was conduct violative of
Section 8(a)(3) and (1) of the Act. I so conclude and find.
Since the facts reveal that Respondent Brooks
participated in a plan with Respondent Manley and
Respondent Kansas to avoid unionization of the employees
at the Lawrence terminal (commission agent of
Respondent Manley), and since the facts reveal that
Respondent Brooks was on notice of the unfair labor
practices committed by Respondents Manley and Kansas,
Respondent Brooks' failure to disavow such unfair labor
practices42 constituted in effect a continuation of such
41 Chemrock Corporation , 151 NLRB 1074
42 Set forth elsewhere as being violative of Section 8(a)(1), (3),
and (5)
43 1 find that the facts in Intergraphic Corporation of America,
unfair labor practices. In addition to the previous findings
of Respondent Brooks' conduct violative of Section 8(a)(5)
and (1), I hereby conclude and find that Respondent
Brooks has violated Section 8(a)(1) by failure to disavow
the conduct of Manager Harris on March 10 and 16, 1966,
previously found violative of Section 8(a)(1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have violated
Section 8(a)(3), (5), and (1) of the Act, I will recommend
that Respondents cease and desist from such violative
conduct and take certain affirmative action designed to
effectuate the policies of the Act.
Having found that Respondents Manley, Kansas, and
Brooks have refused to bargain collectively with the Union
as the exclsuive representative of the employees in the
appropriate unit , it will be recommended that the
Respondents, upon request, bargain collectively with the
Union as such representative, and in the event that an
understanding is reached, embody such understanding in
a signed agreement. Compliance with the foregoing will be
deemed to have been effectuated by such bargaining by
Respondent Manley and such instrumentality as it utilizes
in its employing structure as the enterprise it Lawrence,
Kansas.
Having found that Respondents Manley and Kansas
discriminatorily terminated the employment of Foster on
March 10, 1966, and having found that Respondents
Manley and Kansas discriminatorily terminated the
employment of Cobb, Howard, and Beerboweer on
March 26, 1966, and having found that Respondent Brooks
has discriminated with regard to the failure to employ
Foster, Cobb, Howard, and Beerbower at all times after
March 26, 1966, it will be recommended that the
Respondents offer to the following named employees, full
and immediate reinstatement to their former, or
substantially equivalent positions, without prejudice to
their seniority and other rights and privileges. The
employees are John Darrell Foster, Gerald L. Cobb,
Melvin Beerbower, and Dean Howard. Compliance with
the foregoing will be deemed to have been effectuated by
such reinstatement offers being made by Respondent
Manley and such instrumentality as it utilizes in its
employing structure as the enterprise at Lawrence,
Kansas.
It will also be recommended that Respondents Manley
and Kansas jointly and severally make Foster whole for
any loss of earnings he may have suffered by reason of the
discrimination against him from March 10, 1966, until
March 26, 1966,43 and that Respondents Manley, Kansas,
and Brooks, jointly and severally make whole Foster,
160 NLRB 1284, and New Madrid Manufacturing Company, 104
NLRB 117, are slightly different from those in this case . I do not
make Respondent Brooks responsible for backpay to Foster
before Brooks commenced operations.
MANLEY TRANSFER COMPANY 191
Cobb, Howard, and Beerbower for any loss of earnings
suffered by them from March 26, 1966, until the date of
said offer of reinstatement at the employing enterprise of
Manley Transfer Company, Inc., at Lawrence, Kansas.
Such loss of earnings shall be computed by determining
the wages each would have earned from the date of
termination to date of offer of reinstatement, less their net
earnings during such period, with backpay computed on a
quarterly basis in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289, 294, and with
interest thereon as prescribed by the Board in Isis
Plumbing & Heating Co., 138 NLRB 716.
As the unfair labor practices committed by the
Respondents were of a character which go to the very
heart of the Act, it is recommended that the Respondents
cease and desist therefrom and cease and desist from
infringing in any other manner upon the rights of
employees guaranteed by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Local Union No. 41, International Brotherhood of
Teamsters, is now, and has been at all times material
herein, a labor organization within the meaning of Section
2(5) of the Act.
2. The Respondents, at all times material herein, have
been and are engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed in
Section 7 of the Act, the Respondents have engaged in and
are engaging in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. By discriminating in regard to the hire and tenure of
employment , thereby discouraging membership in or
activities on behalf of a labor organization, the
Respondents have engaged in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
5. All truckdrivers and laborers of the Manley Transfer
Company, Incorporated 's employing structure at
Lawrence , Kansas, excluding office-clerical workers,
professional employees , guards and supervisors as defined
in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of
the Act.
6. Local Union No. 41, International Brotherhood of
Teamsters , at all times since February 16, 1966 , has been
the exclusive representative of all employees in the
aforesaid appropriate unit for the purpose of collective
bargaining within the meaning of the Act.
7. Respondent Manley by its actions on March 10, 1966,
and thereafter , Respondent Kansas by its actions on
March 10 , 1966 , and thereafter , and Respondent Brooks
by its actions on March 22, 1966 , and thereafter, in
refusing to bargain with the Union as to the terms and
conditions of employment of employees in the appropriate
bargaining unit , have engaged in unfair labor practices
within the meaning of Section 8 (a)(5) of the Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of the
Act.
[Recommended Order omitted from publication. ]