Marsal Transport, Inc.

National Labor Relations Board - Board Decisions

Oct 12, 1972

199 N.L.R.B. 689 (N.L.R.B. 1972)

MARSAL TRANSPORT, INC. 689
Marsal Transport , Inc.; and Salvador Sisneros, d/b/a
International Transportation Co. and Van Storage
Drivers, Packers, Warehousemen & Helpers, Local
No. 389, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca. Case 21-CA-10430
October 12, 1972
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING AND
PENELLO
On June 1, 1972, Administrative Law Judge' Leo
F. Lightner issued the attached Decision in this pro-
ceeding. Thereafter, Respondents filed exceptions
and a supporting brief, and the General Counsel filed
cross-exceptions to the Decision and an answering
brief to Respondents' exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings 2 and
conclusions 3 of the Administrative Law Judge, except
as noted herein, and to adopt his recommended Or-
der, as modified below 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondents, Marsal Transport, Inc.;
and Salvador Sisneros , d/b/a International Transpor-
tation Co., Santa Fe Springs, California, their officers,
agents , successors , and assigns , shall take the action
set forth in the said recommended Order, as modified
below:
1. Delete paragraph 2(d) of the Administrative
Law Judge's recommended Order and reletter the suc-
ceeding paragraph.
2. Substitute the attached notice for the Adminis-
trative Law Judge' s notice.
i The title of "Trial Examiner" was changed to "Administrative Law
Judge" effective August 19, 1972.
Z The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F.2d 362 (C. A. 3). We have carefully examined the record and find
no basis for reversing his findings.
We note and correct the Administrative Law Judge's inadvertent error
in referring to the petition for election filed by the Union on November 9,
1971, as Case 21-RC-1424. The correct case number is 21-RC-12424.
As the Administrative Law Judge inadvertently omitted a specific Con-
clusion of Law, we shall revise the Conclusions of Law by adding the follow-
mg:
"10. By failing and refusing to reinstate the above employees because
of their having filed, and refusing to withdraw, unfair labor practice charges,
Respondents have engaged in and are engaging in unfair labor practices
within the meaning of Section 8 (a)(4) and (1) of the Act"
3 While Chairman Miller agrees that a bargaining order is appropriate
herein, he would , for reasons stated in his separate concurrence in United
Packing Company of Iowa, Inc, 187 NLRB No 132, predicate this remedy
solely on the extensive 8(a)(1), (3), and (4) violations found herein In doing
so, Chairman Miller also finds that as the duty to bargain imposed by our
Order is based exclusively on remedial considerations, he would dismiss the
8(a)(5) allegations based on unilateral implementation of the lease arrange-
ment, and would not consider such conduct as relevant to the issue of
whether the strike was in protest of unfair labor practices from its inception
° The Administrative Law Judge included in his recommended Order a
provision that Respondents be ordered to pay to the Board and the Union
the costs and expenses incurred by each in the investigation , preparation,
presentation , and conduct of this case We do not find sufficient evidence to
support the Administrative Law Judge's finding that Respondents' defenses
constitute frivolous litigation within the meaning of Tudee Products, Inc, 194
NLRB No. 198 and 196 NLRB No. 27. Accordingly, we shall revise the
recommended Order by deleting paragraph 2(d) thereof. Cf. John Singer,
Inc, 197 NLRB No. 7.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL, upon request, recognize and bar-
gain with Van Storage Drivers, Packers, Ware-
housemen & Helpers, Local No. 389, In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
as the exclusive representative of all the employ-
ees in the bargaining unit described below, with
respect to rates of pay, wages , hours of employ-
ment, and other terms and conditions of employ-
ment and, if an understanding is reached, upon
request, embody such understanding in a signed
agreement. The bargaining unit is:
All truck drivers employed by Respondent
Marsal, excluding all other employees, office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
WE WILL NOT fail or refuse to recognize the
Union, or to bargain in good faith with the Un-
ion, by discontinuing petroleum hauling opera-
tions, without prior notification to or bargaining
with the Union regarding either the decision to
take such action or the effects of such decision
upon our employees.
WE WILL NOT discourage membership in Van
Storage Drivers, Packers, Warehousemen &
Helpers, Local No. 389, International Brother-
199 NLRB No. 89
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other union, or
discourage the free exercise of rights guaranteed
by Section 7 of the Act, by discriminating against
any employee in regard to his hire or tenure of
employment or any term or condition of employ-
ment, or by refusing to reinstate unfair labor
practice strikers upon their unconditional appli-
cation for reinstatement.
WE WILL NOT interrogate employees in a
manner violative of the provisions of Section
8(a)(1) of the Act.
WE WILL NOT threaten employees with dis-
charge because they engage in union activities,
threaten to sell the trucks unless the employees
desist from union activities, or alternatively, un-
less they withdraw unfair labor practice charges
previously filed, or threaten employees with loss
of their jobs unless they withdraw their union
membership, or desist from engaging in union
activities, or, alternatively, unless they withdraw
unfair labor practice charges filed with the
Board.
WE WILL NOT solicit employees to prevail
upon other employees to withdraw unfair labor
practice charges, as an essential condition pre-
cedent to reinstatement of employees.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the right to self-organization, to form
labor organizations, to join or assist the above-
named Union, or any other labor organization,
to bargain collectively through representatives of
their own choosing, and to engage in any other
concerted activity for the purpose of collective
bargaining or other mutual aid or protection, or
to refrain from any and all such activities, except
to the extent that such rights may be affected by
an agreement requiring membership in a labor
organization, as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as mod-
ified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL offer to Jesus Acevedo, Alphonso
Camacho, Richard Carmelo, Francisco Contrer-
as, Robert Cortez, Edward Gomez, La Vant
Fisher, John Guest, Alejandro Lomas, Roberto
Lozano, Enrique Martinez, Enrique Medina,
Hubert Mercer, Daniel Reyes, Edgar Swanguen,
Felix Tena, and Raymond Woodcock immediate
and full reinstatement to his former position or,
if that position no longer exists, to a substantially
equivalent position, without prejudice to seniori-
ty or other rights and privileges previously en-
joyed by each, and WE WILL make each whole for
any loss of pay he has suffered by reason of our
discrimination against him.
All of our employees are free to become and remain
members of the above-named Union, or to refrain
from becoming or remaining members of said Union.
MARSAL TRANSPORT, INC.; AND
SALVADOR SISNEROS, d/b/a
INTERNATIONAL TRANSPORTATION
Co.
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individ-
uals, if presently serving in the Armed Forces of the
United States, of the right to full reinstatement, upon
application after discharge from the Armed Forces, in
accordance with the Selective Service Act and the
Universal Military Training and Service Act.
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Eastern Columbia Building, Room
600, 849 South Broadway, Los Angeles, California
90014, Telephone 213-688-5200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceeding was
heard before me in Los Angeles, California, on March 7, 8,
and 9, 1972, on the complaint of General Counsel, as
amended, and the answers, as amended, of Marsal Trans-
port, Inc., and Salvador Sisneros d/b/a International
Transportation Co., herein called the Respondents, Re-
spondent Marsal, or Respondent International.' The com-
plaint alleges violations of Section 8(a)(5), (4), (3), and (1)
and Section 2(6) and (7) of the Labor Management Rela-
tions Act, 1947, as amended (61 Stat. 136; 65 Stat. 601; 73
Stat. 519; 29 U.S.C. Sec. 151, et seq.), herein called the Act.
The parties waived closing argument, and briefs filed by the
General Counsel and Respondent have been carefully con-
sidered.
Upon the entire record,2 and from my observation of
the witnesses, I make the following:
1 A charge was filed against Marsal Transport , Inc., on November 22, and
amended charge was filed against both Respondents on November 23, and
a second amended charge was filed against both Respondents on January 14,
1972 A complaint was issued on January 21, 1972, and amended at the outset
of the hearing herein to correctly reflect the name of one Respondent as
Salvador Sisneros d/b/a International Transportation Co.
All dates herein are 1971, except where otherwise indicated.
2 General Counsel has filed a motion to correct the transcript. Respondent
joined in the motion The motion is granted.
FINDINGS AND CONCLUSIONS
MARSAL TRANSPORT, INC.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
1. THE BUSINESSES OF THE RESPONDENTS
The complaint, as amended, alleges, the answer admits,
and I find that Respondent Marsal, at all times material, has
been a California corporation engaged in business as a com-
mon carrier hauling petroleum products, and has main-
tained a facility located at 12540 East Los Nietos Road,
Santa Fe Springs, California. It is undisputed that Salvador
Sisneros, at all times material, has been president and sole
shareholder of Respondent Marsal.
Salvador Sisneros, at all times material, has been an
individual doing business under the trade name of Respon-
dent International , and has been engaged , inter alia, in leas-
ing trucks at the facility located at 12540 East Los Nietos
Road, Santa Fe Springs, California.3 Salvador Sisneros is
the sole owner of Respondent International.
The complaint alleges, the answer admits, and I find
that Salvador Sisneros, at all times material, has exercised
control over the labor relations policies and management of
both Respondent Marsal and Respondent International.
The complaint alleges, and I find, that at all times
material herein, Respondent Marsal and Respondent Inter-
national have been affiliated business enterprises having
common ownership, have been operating under a common-
ly formulated and administered labor relations policy af-
fecting their employees and constitute a single integrated
business enterprise, and are a single employer within the
meaning of Section 2(2) of the Act.'
The complaint alleges, the answer admits, and I find
that Respondent Marsal, annually, a representative period,
derives gross revenue in excess of $50,000 for hauling petro-
leum products from points within the State of California to
points located in the country of Mexico.
The complaint alleges, the answer, as amended, admits,
and I find that Respondents are, and at all times material
have been, an employer engaged in commerce and in a
business affecting commerce within the meaning of Section
2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Van Storage Drivers, Packers, Warehousemen & Help-
ers, Local No. 389, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein
called the Union, is a labor organization within the meaning
of Section 2(5) of the Act.
i The allegation that Respondent International has existed solely for the
purpose of leasing trucks to Respondent Marsal is erroneous , as explicated
infra.
Similarly, Respondents ' contention that Respondent International had
no employees , thus Salvador Sisneros was not an employer, is erroneous, as
further explicated infra
4 I find , for reasons explicated infra, Respondents' denial that Respondent
Marsal and Respondent International are affiliated business enterprises, that
they are a single integrated business enterprise , and that they are a single
employer, without merit.
691
The principal issues raised by the complaint and an-
swer, as amended, and litigated at the hearing, are whether:
(1) the Respondents since on or about November 11, and
at all times thereafter, refused to recognize and bargain
collectively in good faith with the Union, as the exclusive
collective-bargaining representative of the employees of Re-
spondent Marsal, in a unit appropriate for purposes of col-
lective bargaining, with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employ-
ment, and have thus engaged in conduct in derogation of
the provisions of Section 8(a)(5) and (1) of the Act; or (2)
the Respondents, on or about November 15 or 16, dis-
charged all of the employees in the unit described, changed
their method of petroleum hauling operations by subcon-
tracting the petroleum hauling operations and by leasing the
trucks to subcontractors, or by discharging the employees
and discontinuing the petroleum hauling operations with-
out notification to or bargaining with the Union, regarding
either the decision to take such action, or the effects of such
decision upon the employees, and have thus engaged in
conduct in derogation of the provisions of Section 8(a)(5),
(3), and (1) of the Act; or (3) a strike, which commenced on
November 15 was caused and prolonged by the acts of
Respondent Marsal, and is an unfair labor practice strike;
or (4) the Union made an unconditional offer, on behalf of
the employees, for the employees to return to work on No-
vember 23 and other dates thereafter, and Respondents'
failure and refusal to reinstate said employees constituted
conduct violative of the provisions of Section 8(a)(4), (3)
and (1) of the Act; or (5) the Respondents engaged in con-
duct constituting interference, restraint, and coercion, viola-
tive of the provisions of Section 8(a)(1) of the Act, by (a)
Lino Sisneros interrogating employees in November, or (b)
Lino Sisneros, in November, threatening discharge or other
reprisals against employees, or (c) Salvador Sisneros, in No-
vember, threatening that Respondents would discontinue
their petroleum hauling operations and would go out of
business, unless the employees desisted from supporting the
Union.
Respondents deny the commission of any unfair labor
practice.
B. Supervisory Personnel
The complaint alleges, the answer admits, and I find
that Salvador Sisneros, herein referred to as Sisneros, presi-
dent of Respondent Marsal, and sole owner of its stock, and
sole owner of Respondent International, at all times mate-
rial, has been and is a supervisor within the meaning of
Section 2(11), and an agent of Respondents within the
meaning of Section 2(2) and (13) of the Act.
The complaint alleges, the answer admits, and I find
that Richard Sisneros, is vice president of Respondent Mar-
sal, and at all times material herein has been an agent of
Respondents within the meaning of Section 2(2) and (13) of
the Act.5
5 Sisneros identified Richard Sisneros as his son. I find it unnecessary to
Continued
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleges that Lino Sisneros, herein refer-
red to as Lino, dispatcher of Respondent Marsal, is a super-
visor within the meaning of Section 2(11), and an agent of
Respondents within the meaning of Section 2(2) and (13) of
the Act. The answer admits that Lino is a dispatcher, but
denies that he is a supervisor or an agent , allegedly based
on a lack of knowledge.
The facts relative to Lino's duties are next set forth.
Sisneros identified Lino as his brother, and as the dispatcher
for Respondent Marsal for the past 2 years. Sisneros denied
that Lino had authority to hire, fire, or resolve grievances,
asserting that when prospective employees asked him for a
job, he always advised them to see Lino. Sisneros asserted
that Lino screened the applicants, obtained an application,
which he then reviewed, and advised Lino whether to hire.
The testimony of General Counsel's witnesses stands in
sharp conflict and is credited.
Hubert Mercer was employed by Respondent Marsal
as a truckdriver, in mid-October. Mercer talked to Lmo by
telephone and was advised to come in and fill out an appli-
cation . The following day he was interviewed by Lmo rela-
tive to his experience. At the end of the interview, after
filling out an application, Lino advised him to report the
following morning at 8 o'clock, which he did.
Robert Cortez was hired by Respondent Marsal in Jan-
uary. He inquired of Sisneros relative to his need for drivers.
Sisneros advised that he did not know, that Cortez should
check with Lino, asserting , "Lino is the dispatcher and I
don't know anything about it." Lino advised Cortez to leave
his address and phone number, that Lino would call when
a driver was needed. After checking Cortez' qualifications,
Lino advised him, "Well, we need people like you who know
how to make all the papers at the border to cross the load
to Mexico, because we don't like to have to travel over there
to unload those trucks." Lino called him the following week
and advised him to report to take a load to Tijuana, which
he did.
Felix Tena was employed by Respondent in January as
a spreader truck operator and a truckdriver, having worked
for Respondent previously. Tena related that he called
Sisneros by telephone to ascertain if there were any open-
ings . Sisneros advised he did not know and instructed Tena
to talk to Lino, advising that "Lino did the hiring." He saw
Lino in Lino's office about an hour later. Lino advised that
things were slow, but that he would call Tena. A week later,
Lino advised that he had a job, that Tena should come to
the office immediately, and that he would assign Tena to a
truck, which he did. He was assigned to truck 581, and
drove it until the strike. Tena related that it was Lino who
assigned the drivers. Tena received new dispatch orders
from him, by telephone, when returning from a trip. Lino
had prepared a route sheet reflecting: truck assignments,
the commodity, the destination, the number of the truck,
and the driver's name.
Jesus Acevedo was employed by Respondent Marsal in
November 1970. He initially talked to Lino, in Lino's office,
and inquired if there were any vacancies. Lino responded he
would call him when there was an opening. A week later
determine if Richard Sisneros was also a supervisor as alleged in the com-
plaint and denied in the answer.
Lino called and gave him a trip to Tijuana. He was steadily
employed until the strike. He was initially assigned to truck
23, and was advised by Lino that that was his truck.
Robert Lozano was initially employed by Respondent
Marsal on June 1. He talked to Lino in Lino's office. Lino
advised him to fill out an application, that Lino could prob-
ably use him. A week later Lino called and advised him to
report for work. When he reported, Lino assigned him to the
equipment he was to drive.
Enrique Martinez was initially employed by Respon-
dent Marsal in May 1969 to drive an asphalt spreader.
Martinez first talked to Sisneros who advised he would have
to wait until Lino returned from Oregon, "because he was
the dispatcher, and he had to assign the trucks." This was
on Friday. He saw Lino, the following Monday, and was
sent out on a trip. Lino assigned the truck.
Richard Carmelo has been employed by Respondent
Marsal for 5 years driving a spreader truck. Carmelo credi-
bly related that, in the spring of 1971, a driver named Ourm
quit and Carmelo was second in seniority. Lino advised that
he would drive truck 57 commencing the following Mon-
day. He remained on that truck until the time of the strike,
infra. Carmelo credibly related that Lino received the orders
for deliveries and assigned the particular truck and driver
for each.
Mercer credibly related that he returned from Tijuana
on November 12, at which time Lino threatened him be-
cause of some union stickers Mercer had in his car, explicat-
ed infra. The following day he called Lino to ascertain if he
had an assignment. Lino responded that his truck was sit-
ting in the yard, and that he had no work for him.6
Carlos Alvarez Garcia has been manager for Petroleum
Mexicano, hereinafter Pemex, for 46 years, and is located
in San Pedro. Garcia related that Pemex is owned by the
Mexican government, handles the petroleum industry in
Mexico, and is responsible for importing petroleum prod-
ucts into Mexico. Garcia asserted that he decides the meth-
od of obtaining merchandise and delivering it, and that
Lino assigned the trucks which were to do the hauling, and,
inferentially, the drivers. Garcia asserted that Lino did
nothing different after the strike from what he had done
prior to the strike, explicated infra.?
On the basis of the credible evidence, I find that Lino
did hire and did assign drivers to specific trucks, and as-
signed the load and destination, each day, and thus was a
supervisor within the meaning of Section 2(11) of the Act.
The complaint , as amended, alleges that Clyde Yan-
dell, labor consultant, was an agent of Respondents from
November 12 to January 8, 1972. Respondents, by amended
answer, acknowledged Yandell's capacity as a labor rela-
tions consultant, but denied that he was an agent . I find, for
reasons explicated infra, that Yandell, during the period
specified, was an agent of Respondents within the meaning
of Section 2(2) and (13) of the Act. Automotive Distributors,
Inc., 171 NLRB No. 101 (TXD).
6 I find it unnecessary to resolve a conflict on whether or not a new driver
had been hired and was driving the truck formerly assigned to Mercer.
7 Lino did not appear as a witness Respondent advanced no explanation
for its failure to call Lino.
Sisneros did not deny these recitations of the named employees.
MARSAL TRANSPORT, INC.
C. Background
1. Respondents' prestrike operations
Sisneros asserted that International went into business
in 1960 when he purchased two tankers. Sisneros related
that he bought Webster Tank Truck Service on November
1, 1966, and a year later changed the name to Marsal Trans-
ports
Sisneros' recitation of his precise operation on Novem-
ber 11 and 15 is somewhat garbled and confused. Sisneros
asserted he acquired five trucks when he bought Webster,
which are now owned by Marsal. Sisneros asserted that
International owns 15 trucks . Sisneros related that on No-
vember 15 there was a total of 11 asphalt trucks, 7 petroleum
trucks, and 14 vans. This cannot be reconciled with 20
trucks, total. The asphalt trucks have a capacity of 6,500
gallons of asphalt, the petroleum trucks have a capacity of
8,500 gallons , and the vans are used to haul motor oil and
case goods . However, Sisneros asserted there were 20 power
units, some of which would pull double tractors, for hauling
either asphalt or petroleum. Sisneros then asserted that
Marsal owned four spreader trucks, used to spread asphalt,
and that the fifth Marsal truck was a transport.
Sisneros then asserted they do not haul motor oil in
bulk to Mexico, but haul it in case goods and in barrels in
the vans.
Sisneros asserted, at the time of the strike, International
had 3 trucks which were leased to Arizona Tank Lines, and
the other 12 were leased to Marsal. The leases were on a
30-day basis, and compensation was on the basis of 12 cents
a mile . Sisneros signed the written leases, as lessor , for Inter-
national . Sisneros also signed the leases, as lessee , for Mar-
sal. Sisneros said no other signatures appear on the lease
agreements.
Sisneros asserted that Marsal has an ICC authorization
to engage in transportation to Baja, California. Sisneros
described International as engaged in the business of leasing
equipment, but acknowledged that it has a California PUC
authority to haul petroleum products.9
Sisneros described the operation of Marsal, in terms of
operating revenue, as 90 percent hauling for Pemex, 5 per-
cent for Compame Industriale De Mexicali, and 5 percent
for Union Oil. The destinations, in Baja, California, were in
various places for asphalt; however, the balance of the prod-
ucts were delivered either to Tijuana or Mexicali.
2. International-a joint-employer
Francisco Contreras credibly related that he drove for
8 Garcia was obviously maccurate in relating that he had an agreement
with Marsal to do transporting, described infra, commencing 1960, which
had previously been done by American Oil Company for the previous 10
years.
Garcia identified Sisneros as having previously been the Webster Tank
Truck dispatcher . This assertion is undisputed . This may be the reason for
Garcia's inaccuracy.
9 My ruling rejecting Resp . Exhs. 3 and 4 is modified , and they are re-
ceived . Both are notices from the California PUC of suspension of operative
authority, for failure to maintain on deposit adequate liability insurance
Both notices are dated January 20, 1972 The first is addressed to Sisneros
[d/b/a] International Transportation Company, the other to Marsal Trans-
port, Inc.
693
International for approximately 4 months in 1970.
Edward C. Gomex credibly related that he hauled for
International "on and off-all the time. I had different trips
that I would make [for] International." He acknowledged
that he was paid for these trips by Marsal.
Robert Cortez credibly related that he made hauls for
International from Santa Fe Springs, California, to Prescott,
Arizona, hauling what he described as a "wet oil" on 20
different occasions in August and September 1971. Lino
advised him that he was hauling for International.
Sisneros acknowledged the account for hauling motor
oil from Santa Fe Springs, from the Union Oil Co. to the
Valvoline Oil Co., was on the account of International. He
ackowledged the accuracy of the testimony of Cortez and
Gomez. Sisneros acknowledged that a tank truck was used
for this hauling, and that tank trucks were not used to haul
petroleum products to Mexico. Sisneros asserted that Mar-
sal did the subhauling for International, and was reim-
bursed for the salary of the employee who made the
delivery. However, on cross-examination, Sisneros, at vari-
ance, related it was an International truck which made the
deliveries from Union Oil to Santa Fe Springs during a
2-month period in 1971. It was International, according to
Sisneros, who billed the refinery for the cost of the haul. It
is patent that International, in 1971, was maintaining a PUC
license as a petroleum hauler. Respondents' effort to engage
in subterfuge thus becomes transparent.
It follows, and I find, that International was an em-
ployer. The single-employer issue is explicated infra.
D. Refusal To Bargain
1. Appropriate unit and the Union's majority status
It is undisputed that Respondent Marsal's payroll cov-
ered the period from November 8 to 14. At that time there
were 17 drivers on the payroll.10 On November 8, the Union
had 11 valid authorization cards.
The complaint alleges, the answer admits, and I find
that on November 8 a majority of the employees of Respon-
dent Marsal, in a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act, had selected the Union as their representative for the
purposes of collective bargaining with Respondent Marsal,
and that at all times since that date, the Union has been the
representative of said employees for the purposes of collec-
tive bargaining with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employ-
ment, within the meaning of Section 9(a) of the Act. The
unit is:
All truck drivers employed by Respondent Mar-
sal, excluding all other employees, office clerical em-
ployees, professional employees, guards, and
supervisors as defined in the Act.
10 Incorrectly stated as 16, initially. The employees are identified as. Jesus
Acevedo, Alphonso Camacho, Richard Carmelo , Francisco Contreras, Rob-
ert Cortez, La Vant Fisher, Edward Gomez, John Guest , Alejandro Lomas,
Roberto Lozano, Enrique Martinez, Enrique Medina , Hubert Mercer, Dan-
iel Reyes, Edgar Swanguen, Felix Tena, and Raymond Woodcock.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD.
2. Union requests for recognition
- and bargaining-
Respondents' failures and refusals-strike
Under date of November 8, Julius Reich, attorney for
the Union, by letter to Respondent Marsal, advised that the
Union represented a majority of the employees in the unit
described supra and requested recognition and bargaining.
The letter asserted, in case of doubt regarding the Union's
majority, a card check by state conciliation service or any
other responsible disinterested third party would be ar-
ranged. It is undisputed that this letter, subsequently turned
over to Labor Relations Consultant Yandell, resulted in no
affirmative action by Respondent. On November 9, the Un-
ion filed a petition for election, Case 21-RC-1424.
Edward T. Dietrich, union organizer, credibly related
that he had a meeting with Sisneros, at Respondent's place
of business , on November 11, in which Edward Sandouk,
union business agent, and Roberto Lozano, an employee,
participated.I I Dietrich credibly related that he had request-
ed Sisneros to grant recognition, asserting they could nego-
tiate a contract at a later date. According to Dietrich,
Sisneros responded that he was going to meet his attorney
the following day, after which he would call Dietrich. There-
upon, Dietrich provided Sisneros with a business card. San-
douk and Lozano corroborated this recitation of Dietrich. 12
Dietrich related that he explained to Sisneros that the Union
was not in the business of putting a company out of busi-
ness, but of representing employees, that if he would grant
recognition they could negotiate a contract at a later date
that both parties could live with. Sisneros did not call Diet-
rich on November 12 or thereafter.
On Sunday, November 14, Lozano called Dietnch to
ascertain if the Union had heard from Sisneros, and was
advised it had not. Lozano then advised Dietrich that the
men desired to meet at Respondent's facility at midnight,
and were talking about going on strike. Dietnch responded
that he would have to talk to the Employer before putting
up a picket line, but agreed to meet the employees, at the
yard, at midnight. It is undisputed that a number of the
employees were advised of the meeting, while others were
out of town.
Late Sunday night, or early Monday morning, when a
majority of the drivers had appeared, Dietrich canvassed
the situation with them, and advised that he would call
Sisneros. Edgar Swanguen credibly related that he accom-
panied Dietnch to a telephone booth and placed the call to
11 The threat uttered by Sisneros to Lozano on this occasion is explicated
infra
12 Sisneros acknowledged having the meeting on November I I with Diet-
nch, Sandouk , and Lozano , but asserted that Dietnch stated he wanted to
discuss a union contract "because it appears that most of the men want me
[Dietrich] to discuss a union contract with them " Sisneros acknowledged
responding that he had to talk to his attorney first Sisneros acknowledged
also stating, " I don't know whether we are going to be able to do anything
about this , because I am about to go broke anyway." Sisneros acknowledged
advising Dietnch that he would be in touch with his attorney the following
day, that Dietnch provided a business card , and requested Sisneros to call
him, after his consultation with the attorney . To the extent the testimony of
Sisneros is at variance with that of Dietrich , I credit Dietnch.
In their opening statement , Respondents denied any knowledge of union
representation prior to November 15 at 3 a.m.
Sisneros at approximately 1 a.m., November 15. Swanguen
advised Sisneros that the union man was there and wanted
to talk to him.
Dietrich credibly related that he advised Sisneros that
a majority of the drivers were at the facility and wanted him
to come down and "sign recognition." Dietrich related that
Sisneros responded that he could not do anything because
his attorney was out of town. 13 Dietrich related that Sisneros
suggested that Dietrich let the drivers go to work, and they
would discuss the matter later the same morning. Dietrich
responded that the drivers did not want that, that they
wanted an answer right then. Dietrich asserted that Sisneros
then stated that if they did not want to go to work, why not
have them go home. Dietrich responded the drivers did not
want that either, that they wanted Sisneros to come down
and acknowledge recognition. Dietrich advised Sisneros
that they had a majority there and he was merely relaying
the message. Sisneros then responded that if Dietrich put
pickets up, he was going to close up the yard. Dietrich
advised that all he had to do was sign recognition and they
could negotiate a contract at a later date, and this would
solve the problem. Sisneros refused to appear.14
Dietrich returned to Respondent's facility and advised
the employees that Sisneros had refused to grant the Union
recognition, that he had explained to Sisneros that a majori-
ty of the drivers were there, and that Sisneros responded
that his attorney was out of town, and that he could not do
anything until his attorney returned. La Vant Fisher, an
employee, credibly related that 12 to 15 of the employees
were present, and that he took a tally of each, and all fa-
vored a strike, without dissent. 15 Dietrich went to his car and
obtained two picket signs. The legend on the picket signs
read, "Marsal Transport on Strike, Local 389, for Recogni-
tion." It is undisputed that the picketing continued, 24 hours
a day, for 3 days, November 15, 16, and 17.
On November 17, about 7 p.m., Respondent's trucks
were removed from Respondent's yard by Mexican drivers.
Each truck had a placard, attached with masking tape, cov-
ering the Marsal sign, on which was imprinted, in crayon,
the initials, "T.I.B.S.C.A." identified as the initials of Trans-
portes Internationales De Baja California, further explicat-
ed infra.16 Shortly thereafter, the picketing ceased.
Dietnch credibly related a conversation he had with
Yandell, labor relations consultant for Respondents, on
Wednesday, November 24. Yandell, initially, advised Diet-
rich of his being retained as labor consultant. Yandell ad-
13 However , Yandell, Respondents ' labor relations consultant , related that
he had talked by telephone with Sisneros on Friday, November 12. Sisneros
ackowledged he talked to Yandell, inferentially, on November 12, who ad-
vised Sisneros to mail the union attorney's request for recognition to Yandell.
14 Sisneros asserted that Dietrich insisted that Sisneros come down and
sign a union contract, and that he replied that he could not go to the plant
at that time of the morning and sign or negotiate a union contract . Sisneros
asserted that Dietrich then advised that all the men were there and, if Sisneros
did not appear, they were going to have a strike. Sisneros acknowledged
requesting that Dietnch delay one day to give him an opportunity to talk to
his consultant , who "has been out of town." Sisneros asserted that Dietnch
responded that he could not wait any longer. To the extent the testimony of
Sisneros, relative to this telephone call, is at variance with that of Dietnch,
I credit Dietnch.
15 It is undisputed that all of the employees, except John Guest and Daniel
Reyes, then or later the same day, went on strike However, there is no
evidence that the two named performed any work thereafter
16 The balance of the trucks were removed, either earlier that afternoon or
the following day
MARSAL TRANSPORT, INC.
vised Dietrich that if the Union would withdraw the unfair
labor practice charges, and drop the petition for election,
that Sisneros would attempt to reemploy the drivers "as he
got the work back." Yandell then related that he had been
secretary-treasurer of Local 224 (from 1962 until 1968), that
he had made attempts at organizing the same Company,
"and that he had to walk away because of the problems with
the Mexican government, and the rules and regulations of
the United States involving the particular people." Dietrich
was advised by Yandell that "they", unidentified, did not
fall under the ICC regulations, and this was the reason for
his having to walk away. Yandell also advised that the Com-
pany did not have any money, and that the Union could
check the books. Dietrich responded that he would have to
discuss the matter with his attorney.' Dietrich also related
that Yandell advised him that Pemex could use Mexican
drivers, and thus replace Respondent's operation.
Subsequently, in late November or early December,
there was a meeting in the office of the Union's attorney,
attended by Reich, Dietrich, and Yandell, which was incon-
clusive. Yandell was noncommittal as to whether Respon-
dents would agree to an election.
3. Failure and refusal to reinstate strikers
It is undisputed that, under date of November 23, the
17 Yandell related that he was retained on the afternoon of November 12,
and at that time was given the letter of the union attorney, supra, requesting
recognition Yandell asserted that he was absent from the city on November
15, 16 and 17. However, he was advised of the strike by his secretary on
Monday, November 15.
Yandell , inaccurately , asserted that he had a telephone conversation
with Dietrich on Thursday , November 18, at which time he asked Dietrich
why he was striking for recognition. Yandell asserted that Dietrich responded
he was not striking for recognition but for "some malpractices " without
specifying their nature . Yandell asserted that Dietrich stated that he wanted
the California-Arizona Transport Tank Agreement , identified as an agree-
ment between the California Trucking Association and Local 224, signed.
This is not the Union involved herein.
Yandell asserted that he responded that health and welfare and pension
plans alone averaged approximately $ 110 a month, under the identified
agreement , and that he did not think Respondent Marsal actually made that
much profit He inquired if Dietrich was aware of the fact that there was a
different rate structure for the hauling done by Marsal , as compared to other
common carriers . Yandell asserted that he advised Dietrich that it would be
necessary for Respondents to negotiate something with the Mexican-govern-
ment, who solely controlled the revenues derived from the rates Yandell then
outlined his prior effort to organize Respondent Marsal , and advised Diet-
rich that Dietrich "is going to knock a company out of a box , and also a
bunch of employees out of jobs ," to which Dietrich responded that he would
be willing to negotiate something short of the standard agreement Yandell
was unable initially to recall asking Dietrich to withdraw the petition for
election and the charges and let the men go back to work , then admitted
making such a request.
Yandell asserted he had a second telephone conversation with Dietrich,
on November 22, at which time he asked Dietrich if he would be willing to
drop the charges and go to an election , at which Dietrich responded he would
have to talk to his attorney. Yandell acknowledged that Dietrich inquired
whether Respondents would grant recognition to the Union , to which he
responded he would take it up with his client.
Dietrich credibly related he had only one telephone conversation with
Yandell , during which he advised that the strike was for recognition Dietrich
denied asking Yandell to sign an agreement during that conversation Gener-
al Counsel, in his brief , correctly calls attention to the fact that the unfair
practice charge was not in fact , filed until November 22. It follows that
Yandell could not have requested the withdrawal of charges , which had not
been filed, as he related on November 18. To the extent that Yandell's
testimony is at variance with that of Dietrich , I credit Dietrich.
695
Union, by letter, made an unconditional offer, on behalf of
all of the employees, to return to work. It is undisputed that
Sisneros received this offer.
It is undisputed that, under date of December 13, the
Union attorney, Reich, by letter to Yandell, made a similar
unconditional offer, on behalf of the employees, to return
to work.
It is undisputed that none of the employees were ever
reinstated. The conditions under which reinstatement
would be granted, which Sisneros sought to impose, are
considered infra under the section entitled "Interference,
Restraint, and Coercion" as is Respondent's asserted defense
that there was no work available.
4. Other events of November 15, 16, and 17-
subleasing of trucks to TIBSCA-related matters
Sisneros related that he arrived at Respondent's fa-
cility at 9 a.m. on November 15, and observed the pickets.
He thereupon called Garcia to advise that Respondents'
employees were on strike and Respondents could not make
any deliveries.18
Sisneros asserted that Garcia requested that Sisneros
advise Mendez, manager of the Rosarito facility, of the fact
that he could not make any deliveries, which he did. Sisne-
ros asserted that about an hour later Hector Margain, gener-
al manager of TIBSCA, called to advise that he had been
given instructions, inferentially by Garcia, to acquire equip-
ment to fill the petroleum requirements, and he was calling
to ascertain if he could lease Respondents' equipment.
Margain related that he had a conference with Sisneros on
November 16 at Respondent's facility, and finalized the
details, which were oral, and that on November 17 Mexican
drivers picked up the equipment. Margain and Sisneros
both related that the leases provide for a rate of 12 cents per
mile, with Respondent International performing whatever
major repairs were necessary. Sisneros related that the leas-
es are terminable at will.2 Sisneros initially asserted 12
trucks were so leased, he later asserted it was 15 trucks.
Sisneros was then unable to relate how many Marsal trucks
were so leased?' There is no evidence relative to Sisneros
cancelling the existing leases from International to Marsal,
to permit it to execute new leases to TIBSCA.
18 The recitation of Garcia, that Sisneros made this phone call on Novem-
ber 16, in the light of other events, appears inaccurate as to time.
However, I credit Garcia's assertion that he stated that he was "very
so and could not recall saying anything further relative to the strike.
The recitation of Garcia, that he called Margain 2 days after the strike
started, appears inaccurate
20 Sisneros related that the trucks owned by Marsal were leased by Marsal,
who received the proceeds from the lease , while the trucks owned by Respon-
dent International were leased by International, who received the proceeds.
While Sisneros asserted that Margam called him, then admitted that, in
a pretrial statement, he had asserted that he called Margam , I do not consider
this confusion of any consequence
21 Sisneros testified:
Q. How many trucks were leased to TIBSCA?
A. How many trucks-1 believe there are 15.
Q. And which trucks were those, the Marsal trucks or the Interna-
tional?
A They are International Transportation Company' s trucks and I
think there are a couple of Marsal trucks leased to them also.
Q. Two of Marsal's trucks were leased to International?
A I believe so. They might-I don' t recall right now, but I believe
Continued
696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It appears undisputed that TIBSCA, since November
17, has been doing whatever hauling, to Mexico, that was
formerly performed by Respondent Marsal, for Pemex.
While the name under which Sisneros operated, Interna-
tional Transport, appears to be identical to the Spanish
Transportes Internationales, Sisneros and Margain asserted
that Sisneros had no financial interest in TIBSCA other
than the proceeds of the leases.
Sisneros asserted that the mechanics, who had been on
the payroll of Respondent Marsal prior to the strike, as well
as the Marsal bookkeeper, were transferred to the payroll of
Respondent International to make the repairs essential un-
der the terms of the leases . He was then unable to relate,
with accuracy, on whose payroll the mechanics were car-
ried, on December 20, when he made his pretrial state-
ment zz It must be inferred that the mechanics repaired both
International and Marsal trucks, no matter which payroll
they were on.
Sisneros asserted that Margain hired Lino, as dispatch-
er, commencing November 17, "because Lino knows what
products are picked up at what refinery." It is undisputed
that Lino continued to use Respondent's facility for the
purpose of receiving and placing orders, and dispatching
TIBSCA's trucks, using Respondent's office and telephone
for that purpose. Sisneros acknowledged that no arrange-
ment was made for compensation by TIBSCA for this use
of Respondent's office and telephone.
Garcia asserted that prior to the strike, TIBSCA oper-
ated four, five, or six trucks, and Marsal operated the re-
mainder. It was Garcia who decided whether a particular
order would be given to TIBSCA or Marsal. After the strike,
Garcia placed the orders, for TIBSCA, with Lino. Sisneros
described the products hauled by TIBSCA, before the
strike, as jet fuel and kerosene, thus distinguished from
asphalt and petroleum (different forms of oil) hauled by
Marsal.
E. Interference, Restraint, and Coercion
Lozano credibly related that, around November 1,
Lino asked him if he was involved with union activities,
which Lozano denied. About a week later, in Lino's office,
Lino advised Lozano that he understood that Lozano was
passing out pledge (union authorization) cards, which Loza-
no denied. Lino then advised Lozano that if he wanted to
keep his job, he should cease passing out pledge cards.
Lozano responded that it was a rumor 23
On the evening of November 11, Lozano had a tele-
phone call from Lino in which Lino advised Lozano that he
was a "dirty bastard." When Lozano inquired as to what the
trouble was, Lino asserted, "The trouble is that you're trying
to get the Union in." Lozano denied the charge.24
there was a total of 15 trucks.
Q. And what happened to Marsal 's other three trucks?
A. They could be in that bunch also, I don't recall Because we have
some trucks that are sitting in the yard.22
The pretrial statement recites that the mechanics were still on the payroll
of Respondent Marsal at that time
xi Lozano testified that he had, in fact, been passing union authorization
cards.
24 Lino did not appear as a witness . Lozano's recitation relative to each of
the above events stands undisputed , and is credited
Dietrich credibly related that, at the opening of his
conference with Sisneros, on November 11, Sisneros ad-
vised Lozano that, "This was all his fault, and that he was
only putting people out of work." Sisneros also stated that
they were going to lose their jobs as a result of this (the
union activities of the employees). Sisneros further stated
that the only reason he kept the business open was for the
people that were working there, that he was not making any
money, and that he had not paid any income tax in 5 years.
Sisneros also asserted that he had an offer of a job paying
$30,000 a year and, if the Union came in, he was going to
close down the place and get that job. Sisneros then asked
Lozano, "If you do not like it here, why don't you quit?"
Sandouk and Lozano corroborated this recitation of Diet-
rich, which I credit 25
Mercer credibly related that, approximately 3 days be-
fore the strike, he returned from Tijuana and Lino saw some
union stickers in the back of his automobile. Lino advised
Mercer that Lino had no use for unions, that he had a
withdrawal card from a union, and that "I have no more use
for you."z6
Edward A. Barton is a brother of Lozano, employed by
Crescent Truck Lines. Barton credibly related that on the
evening of November 16, about 9 p.m., he was at
Respondent's plant, and approximately 10 employees were
present, engaged in picketing. Several of the employees were
standing near, or sitting, on the tailgate of Camacho's truck,
when Sisneros approached, from a local bar, carrying one
or two sixpacks of beer which he offered to the strikers.
Sisneros inquired, "Do you fellows mind if I join the wake?"
Sisneros explained that the business was dead, that he had
to fold up, and that he was out of business. Sisneros then
asserted that he was glad the whole thing was over, that it
took a load off his mind. Barton related that Sisneros assert-
ed that he could not give them a raise or any benefits.
Barton advised that they were asking for reprensentation.
Barton asserted that Sisneros then stated "that it was not too
late for the fellows to come back to work, providing that
they dropped all union activities-and that they could go
back to work just like they were before, a big happy family."
Sisneros then stated that he would sell his equipment to a
Mexican firm. Others present, who corroborated Barton,
include Lozano, Tena, Martinez, Acevedo, Fisher, and Ca-
macho.
Acevedo related that Sisneros advised, "The trucks are
there if you want them. But first go to the Union-we
should desist from [union activities] to get our jobs back."
Acevedo related that Sisneros also stated that if they did not
wish to do this, he had already arranged with Margain for
him to take the trucks out the next day to Mexico. Tena
25 Sisneros acknowledged having a conversation with Dietrich on Novem-
ber 11, during which Lozano and Sandouk were present According to Sisne-
ros, Lozano introduced the other two as union representatives . Sisneros
asserted that Dietrich advised they wanted to discuss a union contract, be-
cause most of the men wanted him to discuss "a union contract with them."
Sisneros mentioned that he wanted to talk to his attorney . Sisneros related
he then advised Lozano there was "no animosity, as far as I am concerned,
towards him for what he was doing-trying to negotiate . And that he could
come back to work any time he wanted to." To the extent Sisneros' recitation
is at variance with that of Dietrich , I do not credit Sisneros.
26 While Mercer asserted that he was not again dispatched, prior to the
strike, there is no allegation he was discharged prior thereto.
MARSAL TRANSPORT, INC.
quoted Sisneros as stating, "However, if you boys are will-
ing to get your pledge cards back and drop this union deal,
why, we can all go back to work and be one happy family
again."27
Martinez related that, about 8:30 p.m., on Tuesday,
November 16, he was with Cortez, when Lino came out of
a bar, a little inebriated, and approached Martinez who was
directly opposite the Respondent's yard. Lino advised that
he was still working and the others were not. He then called
Martinez a "dirty bastard," and struck him. He addressed
Cortez, calling him an "s.o.b." Lino then went to his car and
left. Cortez' version was that Lino advised that they were
not going to work for Respondents any more. I am unable
to find that this incident constitutes anything more than
what the Board has frequently described as "animal exu-
berance."
Carmelo credibly related that, after the trucks were
removed from Respondent's premises , on approximately
November 18 or 19 , pursuant to telephone advice that
Sisneros wanted to talk to the spreader drivers, as soon as
possible, he and Tena had a conversation with Sisneros in
Sisneros' office. Sisneros advised that he thought he could
put the three spreader truck drivers back to work, but had
to talk to his legal consultant. Thereafter, on Saturday, No-
vember 20, there was a further conversation with Sisneros
in Sisneros' office, at which Tena, Contreras, Camacho, and
Acevedo, as well as Carmelo, were present. Sisneros advised
that his consultant had advised him not to put them back
to work, because he had already leased his trucks out to the
Mexican truck company, that if he did hire the spreader
truck drivers, he would have to hire all of the drivers, as
otherwise he would be charged with some kind of discrim-
ination . Sisneros then advised, "That if you are willing to get
your pledge cards back and sign an affidavit, we might be
able to work something like that." Sisneros explained that
the affidavit was for the purpose of presenting it to Pemex,
to reassure them that the drivers would not strike, or there
would not be any kind of labor dispute. Tena, who corrobo-
rated Carmelo, related that Sisneros advised that the em-
ployees should go to the union hall to pick up their pledge
cards, and sign an affidavit that they would withdraw from
the Union, and he could then put them back to work. Con-
treras, Comacho, and Acevedo corroborated the recitations
of Carmelo and Tena.28
27 Sisneros ' version was that he inquired if the employees would like tojoin
him in a beer, "because if you don 't mind, I will join you in the wake." When
he was asked what he meant , Sisneros asserted he responded , "Well, we have
a company that is dying right now." Sisneros then added , "Well, normally
when someone dies , you always have a wake for him the night before you
bury him . This company is dying, and is going to have to be buried because
it just can't continue operating ." Asked if he had explained why he thought
the business was dead , Sisneros then stated , "Well, because I previously felt
that I should liquidate or try to sell Marsal Transport because it wasn't
making any money . And the reason that I haven't done it before-I didn't
want to make this decision-because these men meant quite a lot to me, and
I didn't want to put them out of work . But by them sinking , why, it sort of
relieved my pressure of having to tell them , 'I am sorry, fellows, you are going
to have to find another job ."' Sisneros acknowledged he then stated , "I said
if they would drop the charges [unfair labor practice[ so that I could go back
to Pemex, and prove to them that they had dropped the charges , then Pemex
would give me the work back and I could give them the work back." Sisneros
denied asking the employees to withdraw their union membership. To the
extent Sisneros ' version vanes from that of the employees , I credit the latter.
28 Sisneros acknowledged having conversations with employees, after the
697
Martinez credibly related that, on Monday, December
6, he and Gomez went to Respondent's office. At that time,
Martinez related, Sisneros inquired how the union things
were going, and advised that the Union was not going to be
able to do anything, and that they could see how much time
had gone by, and nothing was cleared up. Gomez inquired
in regard to the letter the Union had sent to Sisneros and
Sisneros responded he had not received any letter from the
Umon.29 Sisneros then said, "Why don't we all try to come
together; come to the Labor Commission and withdraw the
charges, and they could then begin to work." Gomez re-
sponded that it might be impossible, because many of the
drivers were working. Sisneros then advised it would not be
necessary to get all the drivers together, but some four or
five. Gomez advised that he did not have the drivers' tele-
phone numbers. Sisneros then instructed Lino to provide
Gomez with the telephone number of each driver, which
Lino did. Gomez corroborated Martinez . Gomez credibly
related that Sisneros asserted the only way all the employees
could go back to work was to get the drivers together, and
sign a paper releasing the charges that the Board had against
him. Gomez confirmed the fact that it was Lino who provid-
ed him with the telephone numbers of the drivers, so Gomez
could call them. Gomez related that none of the drivers
would agree to a dropping of the unfair labor charges 30
Acevedo credibly related that he had a conversation
with Lino, by telephone, in early December. Acevedo ex-
plained that he had heard that the strike had been settled,
and thought perhaps he could go back to work. Lino ad-
vised that Sisneros wanted the drivers to withdraw from the
union activities and sign a letter so indicating.
Cortez related that he had a conversation with Lino, at
the office, on December 10 or 11. Cortez inquired as to
when Lino was going to put the strikers back to work. Lino
responded, "I don't know, unless you guys go to the Labor
Board and release all the charges you guys have got against
the company. And maybe we are going to put you back to
work again."
F. Respondent's Purported Defenses
Respondents would assert that Pemex took its portion
of Respondents' business, purportedly 90 percent, away
from Respondents by reason of the strike and that Respon-
dents were uncertain if they could recapture it. Respon-
dents' evidence relative to this contention is next set forth.
Sisneros asserted that when he called Garcia and Men-
dez on November 15, they advised him that they would have
to get another carrier immediately. Garcia related that, on
November 15, when Sisneros advised him of the strike, Gar-
cia responded that he was "very sorry." Garcia related that
he advised TIBSCA to assume the deliveries, "because Mar-
strike, on two or three occasions . Sisneros asserted that the employees would
come by and inquire as to what was going to happen and when they were
going to return to work. Sisneros asserted he advised them, "My hands are
tied until someone drops the charges , so that I can go back to Pemex and
see if I can get my work back." To the extent the testimony of Sisneros is
at variance with that of the named employees, I credit the latter.
29 It is obscure if this relates to the union letter requesting recognition, or
the union letter advising of the unconditional offer, on behalf of the employ-
ees, requesting reinstatement.
30 Sisneros did not deny these assertions of Martinez and Gomez, whom
I credit.
698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sal cannot haul any more because it is on strike." Sisneros
related that, in this conversation, Garcia advised him, "Let
me know when you finish your strike, and then we will see
if we can resume operations again ." Sisneros asserted he
then called Mendez, informed him that the men had gone
on strike, and therefore he could not deliver any products.
Sisneros asserted that Mendez responded, "Well, I am sorry
that you are on strike. Let me know when your problems are
over, and then we will see if we can put you back to work."31
Sisneros asserted that he then received a telephone call
from Margain, who advised that he had been advised by
Garcia and Mendez to make arrangements to get equipment
to take over the duties of Marsal Transport. Sisneros assert-
ed that Margain inquired as to what Sisneros was going to
do. Sisneros asserted that he responded, "I don't know. The
men are on strike, and we will just have to wait and see what
is going to develop."
Sisneros described the term of the truck leases, to TIB-
SCA, as "until we resolve the labor dispute." Sisneros relat-
ed, "If we can resolve our labor problems and we could get
our work back from [Pemex] we would go back to work."
Sisneros acknowledged the leases were oral and terminable
at will.
Sisneros related that Garcia and Mendez advised him
that Pemex would not give him any business "until your
labor problems are resolved." Sisneros then acknowledged
that if he had met with the Union and signed a contract the
men could have returned to work.
During the hearing, Respondents' counsel asserted that
Respondents had not gone out of business. In their brief,
Respondents assert that, upon Sisneros' advice of the strike,
"Pemex replied by expressing their sorrow at the problem
but stating they would have to arrange with a Mexican
carrier to haul the product until such time as Respondent
Marsal's labor problems were over." Sisneros' assertion that
Pemex had discontinued doing business with Respondents
is lacking in substance and merit.
Sisneros asserted that he had obtained a deviation from
the regular ICC rate, for the Pemex hauling, asserting that
the normal ICC rate for asphalt deliveries to Mexicali, is
$14.40 a ton, while the rate for the Pemex deliveries is $10
a ton, that the ICC rate for deliveries of asphalt to Tijuana
is $8 a ton, while the rate for Pemex deliveries is $7 a ton.
Sisneros asserted there was also a differential in the hauling
of gasoline, and refined products, the ICC rate to Tijuana
being .01612 cents per gallon, while the Pemex rate was a
penny and two-tenths. Respondent would assert that it
sought, unsuccessfully, to obtain an increase in its hauling
rate, from Pemex, inferentially, to permit it to negotiate with
the Union. I find this recitation neither relevant nor mate-
rial.
G. Concluding Findings
trucks, most of which, prior to the strike, were leased to
Respondent Marsal.32 I have also found that Sisneros, un-
der the trade name of Respondent International , has ob-
tained and maintained a PUC license, under which it hauled
motor oil from the Union Oil Company to the Valvoline Oil
Company, using drivers who were on the payroll of Respon-
dent Marsal. Sisneros asserted that Respondent Interna-
tional reimbursed Respondent Marsal.
I have found, supra, that Respondent Marsal, while a
corporation, is solely owned by Sisneros, who is president,
whose son is vice president, and whose brother is dispatch-
er.33
It is undisputed that both Respondents are located at
12540 East Los Nietos Road, Santa Fe Springs, California,
and have a common office. It is undisputed that Sisneros,
alone, has exercised control over the labor relations policies
and management of both Respondents.
Sisneros related that, after the strike, as part of the
consideration of the truck leases with TIBSCA, Internation-
al undertook to make the major repairs, which might be-
come essential, at Respondent's facility and, for that
purpose, transferred the several mechanics on the payroll of
Respondent Marsal to the payroll of Respondent Interna-
tional, as well as the bookkeeper, who had been on Respon-
dent Marsal's payroll prior thereto. Sisneros offered no
explanation of any differentiation, if any, between the re-
pair of the trucks leased by Respondent International and
the repair of trucks leased by Respondent Marsal.
General Counsel, in his brief, urges that Sisneros has
exercised total control over the management of both com-
panies and, in fact, except for Lino, neither company had
any other supervisors. General Counsel correctly urges that
Sisneros operated both Respondents as a single integrated
business enterprise, and that the two Respondents are, and
have been, at all times material, a single employer within the
meaning of the Act.
Respondent asserts the single-employer doctrine of the
Board has no application because Respondent Internation-
al had no employees. Respondent, in its brief, asserts that
Respondent International had "no control whatever over
Respondent Marsal's drivers." I have found to the contrary,
on both contentions. If Sisneros, the owner of International,
did not control the drivers of Marsal, no one did.
Accordingly, for the reasons set forth, I find that the
individual proprietorship and the corporation constitute a
single integrated business enterprise, that they are affiliated
businesses, with common ownership, and that Sisneros for-
mulates and administers a common labor policy, there is
common management and supervision, and an interrelation
of operations. I further find the corporation is the alter ego
of the individual proprietorship. P-M Garages, Inc., 139
NLRB, 987; Fistere d/b/a Arthur Murray Dance Studio, 100
NLRB 1303; Freda Redmond and Sir James, Inc., 147 NLRB
1025; Glendora Plumbing, 165 NLRB 101.
1. The single-employer issue
I have found, supra, from undisputed evidence, that
Sisneros as an individual operating under the trade name of
Respondent International, has been the sole owner of
31 Mendez did not appear as a witness.
2. Refusal to bargain
I have found, supra, from undisputed evidence, that in
32 The fact that some trucks , on occasion, were leased to other haulers, is
of no consequence
33 The identity of any other officers , if any, is obscure.
MARSAL TRANSPORT, INC. 699
the payroll period of November 8 to 14, Respondent Marsal
had 17 drivers on its payroll; that on November 8 the Union
had obtained valid authorization, cards from 11 of these
drivers; that the drivers were in a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act and had selected the Union as their
representative for the purposes of collective bargaining with
Respondent Marsal within the meaning of Section 9(a) of
the Act; and that the Union has been the representative of
said employees at all times since that date.
It is also undisputed that the Union, by letter dated
November 8 to Respondent Marsal, requested recognition
and bargaining. It appears that Sisneros submitted this re-
quest to his labor relations consultant, Yandell, on Novem-
ber 12; I have found that Yandell, on November 24, advised
Dietrich that the Union should withdraw its unfair labor
practice charges, drop the petition for election, and that
then Sisneros would attempt to reemploy the drivers.
Yandell's asserted reason for this recommendation was that
Yandell had been unsuccessful in several prior attempts to
organize Respondent Marsal. Yandell also advised Dietrich
that the Union would knock a company out of a box and
a bunch of employees out of jobs. When Dietrich suggested
that he would be willing to negotiate something short of a
standard agreement, and requested recognition, Yandell re-
sponded that he would take it up with his client. Yandell
never advised Dietrich whether Respondent Marsal would
or would not accord the Union recognition.
I have found, supra, from undisputed evidence, that on
November 11, Dietrich, accompanied by Sandouk and Lo-
zano, at a meeting with Sisneros, at Respondent's place of
business, requested recognition. Sisneros responded that he
would talk to his attorney the following day and advise
Dietrich of the results, which Sisneros failed to do.
I have found that, on the morning of November 15, at
approximately 1 o'clock, by telephone, Dietrich advised
Sisneros that a majority of the drivers were at Respondent's
facility and wanted Sisneros to come down and "sign recog-
nition." Sisneros responded that he could not do anything
because his attorney was out of town.
I have found that, about 3 a.m., on November 15,
Fisher, a driver, canvassed some 12 to 15 drivers who were
present, and found that all, without exception, favored a
strike, which then ensued, and continued for 3 days, until
the removal of Respondents' trucks from the premises.
About 9 a.m., on November 15, when Sisneros arrived
at Respondent' s premises, he observed the picketing. There-
upon, without making any effort to contact the Union,
Sisneros advised Garcia, San Pedro manager for Pemex, of
the existence of a strike, and his inability to make any
deliveries. Sisneros similarly advised Mendez, manager of
the Rosarito facility. As a result of these two phone calls,
by Sisneros, Sisneros was advised by Margain, general man-
ager of TIBSCA, of his desire to acquire Respondents'
equipment to fill the petroleum requirements. On Novem-
ber 16, oral leases were entered into between Sisneros, on
behalf of Respondents, and Margain. The leases are termin-
able at will.
I have found, supra, that, on November 11, at the time
Dietrich requested recognition, Sisneros advised Lozano
that by reason of Lozano's efforts, relative to union activi-
ties, "they [the employees] were going to lose their jobs as
a result." I have also found that, on November 16, about 9
p.m., Sisneros advised a number of employees that the busi-
ness was dead, that he had to fold up, and that he was out
of business. At that time, Sisneros also advised the employ-
ees that it was not too late for the employees to come back
to work, provided they dropped all union activities. Sisneros
acknowledged advising the employees to drop the unfair
labor practice charges, which are the subject of this litiga-
tion. I have also found that on November 20, Sisneros ad-
vised five named employees that he would put them back
to work if they would obtain their pledge cards from the
Union, and sign an affidavit that they would withdraw from
the Union.
I have found that, on December 6, in the presence of
Martinez, Sisneros advised Gomez, in answer to a query
from Gomez, that Gomez could see that the Union was not
going to be able to do anything, and Sisneros suggested that
Gomez call the drivers, to obtain their cooperation, in an
effort to withdraw charges pending before the Board.
It is difficult to envisage a more flagrant rejection of the
collective-bargaining principle. Respondent's union animus
is manifest, not only in its effort to seek time in which it
could, hopefully, undermine the union sentiments of the
employees, by insistence upon their withdrawal of union
representation, the unfair labor practice charges, and the
petition for election, but also by its coercive conduct, enu-
merated supra, and its stubborn refusal to reemploy the
employees, when such requests were made on behalf of the
employees by the Union. In addition, there can be no ques-
tion that Respondents leased their trucks and discontinued
the petroleum hauling operations without notification to or
bargaining with the Union, regarding either the decision to
take such action or the effects of such decision upon the
employees.
Respondents' assertion, in their brief, that they have
not refused to recognize the Union, inferentially by reason
of the fact that they merely asked for sufficient time to
consult with their attorney, in the light of this record, is
ludicrous. The same observation applies to Respondents'
contention that they did not refuse to bargain with the
Union, relying solely upon Sisneros' conclusion to that ef-
fect.
General Counsel, in his brief, correctly urges that if an
employer fails to respond to a union's request for recogni-
tion, within a reasonable time, such failure can be character-
ized as a refusal.31
General Counsel, in his brief, urges that the question is
whether Marsal acted lawfully in refusing to recognize the
Union. General Counsel correctly notes that an employer
can, in normal circumstances , reject a demand for recogni-
tion and insist on a Board election to resolve the issue of
majority status. This right is forfeited, however, if the em-
ployer interferes with the election process by committing
unfair labor practices serious enough to create a situation
in which it is doubtful that a fair election can be held.
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575.
74 Citing - Retail Clerks' Union Local No. 1179, Retail Clerks International
Association, AFL-CIO v N L.R.B., 376 F.2d 186 (C.A 9); Noll Motors, Inc.,
168 NLRB 1029, 180 NLRB 428, enfd . 433 F 2d 853 (C.A. 8).
700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the light of the Supreme Court's decision in Gissel,
it is now established that an employer's good- or bad-faith
doubt that a union represents a majority of the employees
at the time of its request for recognition, is largely irrelevant,
the criteria instead being whether or not the Union, in fact,
represented a majority of the employees, and the employer
engaged in substantial unfair labor practices, making a
holding of a fair election impossible or unlikely.
Here, the record establishes beyond doubt that the Un-
ion, at all times, at and after its request, in fact represented
a substantial majority of the employees in the appropriate
unit . As a result of the Supreme Court's decision in Gissel,
it must now be considered settled law that the majority
status of a Union may be established by methods other than
certification by the Board after an election, including the
securing of a majority of unambiguous authorization cards.
Under the Board's subsequent explications of Gissel,35 it is
well settled that where an employer rejects a bargaining
demand based on unambiguous authorization cards, and
then engages in substantial unfair labor practices, the Board
is authorized to issue a bargaining order, both when the
employer has engaged in unfair labor practices "so coercive
that, even in the absence of a Section 8(a)(5) violation, a
bargaining order would have been necessary to repair the
unlawful effect of those [unfair labor practices]," and as the
Court further stated: " . . . in less extraordinary cases
marked by less pervasive practices which nonetheless still
have a tendency to undermine majority strength and im-
pede the election process." In the latter situation, in the
words of the Court:
If the Board finds that the possibility of erasing the
effects of past practices and of insuring a fair election
(or a fair re-run) by the use of traditional remedies,
though present, is slight and that employee sentiment
once expressed through cards would, on balance, be
better protected by a bargaining order then such an
order should issue.
Here, the Respondents were unwilling to suggest that
the Union resort to the Board's election process, and await
the outcome of the election, instead, Respondents em-
barked upon the course of conduct, found supra and infra,
of insisting that the employees withdraw the unfair labor
practice charges, and desist from union representation, as a
condition precedent to reinstatement, and Respondents en-
gaged in coercive interrogation and threats, which I find, in
each instance, to constitute an unfair labor practice.
Accordingly, J I conclude and find that, as a result of
these unfair labor practices, the possibility of erasing their
effects and insuring a fair election is slight, and the employ-
ees' sentiment, once expressed through cards, would, on
balance be better protected by a bargaining order. I find
Respondents' failure and refusal to recognize and bargain,
in the circumstances outlined herein, including Respon-
dents discontinuing their petroleum hauling operations and
leasing their trucks without notification to or bargaining
with the Union relative to the decision to take such action,
or the effects of the decision upon the employees, to be
35 E. g, Great Plains Steel Corp, 183 NLRB No 96, Martin Electronics,
Inc, 183 NLRB No 4, Central Soya of Canton, Inc, 180 NLRB 546, The
violative of the provisions of Section 8(a)(5) and (1) of the
Act.
3. Unfair labor practice strike
It is alleged that the strike, which I have found com-
menced on November 15, with picketing to November 17,
was caused by the failure of Respondent Marsal to grant
recognition and to bargain collectively in good faith with
the Union, and that it was prolonged by the conduct of
Respondents in leasing their trucks to TIBSCA and discon-
tinuing the petroleum hauling operations.
I have found that the Union, by letter, under date of
November 8, requested Respondent Marsal to recognize
and to bargain with the Union. I have found that Dietrich,
on November 11, in a conference with Sisneros, made a
similar request. I have found that, on November 15, at 1
a.m., by telephone, Dietrich advised Sisneros that the em-
ployees were insisting that Sisneros grant recognition and,
in the event of a refusal, that the employees were contem-
plating a strike. None of these requests resulted in any effec-
tive response from Respondents, who, instead, promptly
undertook conduct for the purpose of undermining the
Union's strength, as set forth supra.
Accordingly, I find the concerted work stoppage or
strike was caused and prolonged by the unfair labor prac-
tices of Respondent and that it was and is an unfair labor
practice strike.36
4. Failure to reinstate employees
The complaint, as amended , alleges that, since No-
vember 23, Respondents have failed and refused to reinstate
the employees, because the employees engaged in union or
other protected concerted activities, for purposes of collec-
tive bargaining or other mutual aid or protection, and be-
cause the employees had filed unfair labor practice charges.
By answer, Respondents admit the failure , but deny that it
constituted a refusal to reemploy.
I have found, supra, from undisputed evidence, that on
November 23, the Union, by letter, made an unconditional
offer, on behalf of all of the employees, to return to work.
I have found that, under date of December 13, the union
attorney, Reich, by letter to Yandell , made a similar uncon-
ditional offer on behalf of the employees, to return to work.
It is undisputed that none of the employees have been reem-
ployed.
I have found that Yandell, on November 24, advised
Dietrich that if the Union would withdraw the unfair labor
practice charges, and drop the petition for election, that
Sisneros would attempt to reemploy the drivers. I have
found that, in early December, Lino advised Acevedo that
Sisneros wanted the drivers to withdraw from the Union as
a condition precedent to reinstatement.
I have found that, on December 6, Sisneros advised
Gomez, in the presence of Martinez, that Gomez should
attempt to prevail upon the drivers to withdraw the unfair
labor practice charges, and that Sisneros asserted that was
the only way all the employees could go back to work. I
have also found that the truck leases, according to Sisneros,
Brescome Distributors Corporation, 179 NLRB 787, and Garland Knitting 36 Rental Uniform Service, 167 NLRB, 190; Astro-Electronics, Inc, 188
Mills of Beaufort, South Carolina, Inc, 178 NLRB, 396 NLRB No. 92
MARSAL TRANSPORT, INC.
were terminable at will. There is no evidence that Respon-
dents could not have reacquired their former hauling opera-
tions, for Pemex, upon settlement of the strike.
General Counsel, in his brief, correctly urges that Re-
spondents produced no evidence that Respondents could
not resume their hauling operations, except the statement of
Sisneros that Pemex representatives had advised that they
would not give him any work until the labor dispute was
settled. General Counsel further urges, assuming arguendo
that this was the policy of Pemex, it does not establish a
defense, because the strike would have ended on November
23, with the employees' offer to return to work, if Respon-
dents had been willing to reinstate the employees.
Respondents, in their brief, assert the reason for failure
to reemploy was unavailability of work. Respondents assert,
"Such loss of business being directly related to representa-
tives of Pemex, [Garcia and Mendez] informing Marsal that
Pemex could not do business with Marsal so long as
Marsal's labor problems continued." Respondents, in their
brief, acknowledge that Sisneros related that if the employ-
ees would drop the unfair labor practice charges, Sisneros
could obtain the work from Pemex, and could give them
their jobs back.
Accordingly, for the reasons stated, I find the failure to
reinstate the employees, upon their unconditional applica-
tion, on November 23 and thereafter, was by reason of their
having filed, and refusing to withdraw, unfair labor practice
charges, and said conduct is violative of the provisions of
Section 8(a)(4) and (1) of the Act. I further find, for the
reasons stated, that said refusal was for the purpose of dis-
couraging membership in a labor organization and was thus
discriminatorily motivated, and that such conduct is viola-
tive of the provisions of Section 8(a)(3) and (1) of the Act.
5. Interference, restraint, and coercion
I have found, supra, that about November 1, Lino
interrogated Lozano relative to his union activities, which
Lozano denied. About a week later, Lino advised Lozano
that he understood that Lozano was passing out union au-
thorization cards, which Lozano denied. Thereupon Lino
advised Lozano that if he wanted to keep his job, he should
cease passing out union authorization cards. On November
11, in a telephone conversation, Lino advised Lozano that
he was a dirty bastard, because he was trying to get the
Union in. Lozano denied the accusation.
About November 12, Lino advised Mercer, when he
saw union stickers in the back of Mercer's automobile, that
Lino had no use for unions, "and had no more use for
Mercer."
I have found, supra, that on November 11, Sisneros
advised Lozano that his efforts to obtain union representa-
tion would "only [put] people out of work." I have found
that, on November 16, during the picketing, Sisneros in-
quired if he could "join the wake," explaining that the busi-
ness was dead, that he had to fold up, and that he was out
of business. Sisneros then advised "that it was not too late
for the fellows to come back to work, providing they drop-
ped all union activities ." Sisneros suggested that they should
obtain their union authorization cards from the Union. Al-
ternatively, Sisneros threatened to sell the trucks to the
701
Mexican firm.
I have found that, on November 20, Sisneros advised
Carmelo, Tena, Contreras, Camacho, and Acevedo that if
they would get their union authorization cards back from
the Union and sign an affidavit disavowing any interest in
the Union they could be put back to work.
In early December, Lino advised Acevedo that Sisne-
ros wanted the drivers to withdraw from the union activities,
and sign a letter so indicating as a condition precedent to
their being returned to work. Sisneros ackowledged advising
employees: "My hands are tied until someone drops the
charges, so that I can go back to Pemex and see if I can get
my work back."
I have found that, on December 6, Sisneros advised
Gomez to get the drivers together, to agree to drop the
unfair labor practice charges, after which they could begin
to work. On December 10 or 11, Lino advised Cortez that
the employees could be put to work again if they went to
the Board and dropped the unfair labor practice charges.
In the Blue Flash case 37 the Board found interrogation
was not unlawful where legitimate reasons for inquiry ex-
isted and appropriate safeguards were taken. The Board
held that the test is whether, under all the circumstances,
interrogation reasonably tends to restrain or interfere with
the employees in the exercise of rights guaranteed by the
Act.
In Johnnie's Poultry,38 the Board further elaborated,
stating that it and the courts found two areas which permit-
ted legitimate interrogation, i.e., verification of the Union's
claim to majority status, and investigation of facts concern-
ing issues raised in the complaint, where such interrogation
is necessary in preparing the employer' s defense for the trial
of a case. In each instance, however, enumerated safeguards
must be taken.
There is no evidence herein of the existence of either
of the conditions outlined by the Board in Johnnie's Poultry,
nor were the safeguards enumerated therein taken.
Section 8(c) permits the expression of views, argu-
ments , or opinions , provided such expression contains no
threat of reprisal or force or promise of benefit. Numerous
Board and court decisions have uniformly held that threats,
i.e., such as discharge of an employee for engaging in union
activity, threats of plant closure or removal, and inferential
job loss, for the purpose of interfering with the employee's
right to exercise privileges granted under Section 7 of the
Act, is coercive conduct violative of the proscriptions of
Section 8(a)(1) of the Act.
The decision of the Supreme Court in Exchange
Parts,39 appears appropos:
The broad purpose of Section 8(a)(1) is to establish
"the right of employees to organize for mutual aid with-
out employer interference." [Citation omitted.] We
have no doubt that it prohibits not only intrusive
threats and promises, but also conduct immediately
favorable to employees which is undertaken for the
express purpose of impinging upon their freedom of
choice for or against unionization, and it is reasonably
calculated to have that effect. In Medo Photo Supply
37 Blue Flash Express, Inc, 109 NLRB 591.
38 Johnnie's Poultry Company, 146 NLRB 770, 775.
39 N LR B. v Exchange Parts Co, 375 U.S. 405, 409.
702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corporation v. N.L.R.B., 321 U.S. 678, 686, the Court
said: "The action of employees with respect to the
choice of their bargaining agents may be induced by
favors bestowed by the employer, as well as by his
threats or domination." Although in that case, there
was already a designated bargaining agent, and the
offer of "favors," was in response to a suggestion of the
employees that they would leave the Union if favors
were bestowed, the principles which dictated the result
there are fully applicable here. The danger inherent in
well-timed increases in benefits is the suggestion of a
fist inside the velvet glove. Employees are not likely to
miss the inference that the source of benefits now con-
ferred is also the source from which future benefits
must flow and which may dry up if it is not obliged.
There can be no doubt that the holding of the Court in
Exchange Parts has application here. Sisneros' refusal to
undertake a restoration of the employees' work, unless they
desisted from their union activities, and withdrew the unfair
labor practice charges, cannot be categorized as other than
threats of reprisal. Blaser Tool & Mold Company, Inc., 196
NLRB No. 45.
Accordingly, for the reasons stated, I find that each act
of interrogation, threat of discharge, and refusal to reinstate
the employees, unless and until they withdrew their support
of the Union, or withdrew the unfair labor practice charges,
constitutes conduct in derogation of the provisions of Sec-
tion 8(a)(1) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section
III, above, occurring in connection with the operations of
the Respondents described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and com-
merce 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 engaged in
and are engaging in certain unfair labor practices, I shall
recommend that they cease and desist therefrom, and take
certain affirmative action designed to effectuate the policies
of the Act.
It will be recommended that Respondents, upon re-
quest, recognize and bargain collectively with Van Storage
Drivers, Packers, Warehousemen & Helpers, Local No. 389,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive repre-
sentative of all employees in the unit herein found to be
appropriate for the purposes of collective bargaining, with
respect to rates of pay, wages, hours of employment, and
other terms and conditions of employment, and, if an un-
derstanding is reached, upon request, embody such under-
standing in a signed agreement.
In view of the complete failure of Respondents to rec-
ognize and bargain in good faith, it will be recommended
that the bargaining period shall not be deemed to have
commenced until such time as Respondents do comply with
the Remedy, herein, and shall extend for a period of not less
than 1 year from said date.
It has been found that Respondents, commencing No-
vember 23, discriminatorily failed and refused to reinstate
Jesus Acevedo, Alphonso Camacho, Richard Carmelo,
Francisco Contreras, Robert Cortez, La Vant Fisher, Ed-
ward Gomez, John Guest, Alejandro Lomas, Roberto Loza-
no, Enrique Martinez, Enrique Medina, Hubert Mercer,
Daniel Reyes, Edgar Swanguen, Felix Tena, and Raymond
Woodcock upon the unconditional application of the Un-
ion, on behalf of each. I have found that the strike was
caused and prolonged by the unfair labor practices of Re-
spondents. Accordingly, I recommend that Respondents
offer to each immediate and full reinstatement to the former
or substantially equivalent position of each, without preju-
dice to seniority or any other rights or privileges previously
enjoyed by each, dismissing, if necessary, any employee
hired since November 23, 1971. It is further recommended
that Respondents make each employee whole for any loss
of pay each may have suffered by reason of the discrimina-
tion against each. Said loss of pay shall be based upon the
earnings each would normally have earned from the date of
the refusal of reinstatement, November 23, 1971, until the
date each is offered reinstatement , less the net earnings of
each during said period. Said back pay shall be computed
on a quarterly basis, in the manner established by the Board
in F. W. Woolworth Company, 90 NLRB 289. Interest on
backpay shall be computed in the manner set,forth in Isis
Plumbing & Heating Co., 136 NLRB 716.
It is also recommended that Respondents be ordered to
make available to the Board, upon request, payroll and
other records to facilitate checking the amount of earnings
due.
As stated by the Board, the policy of the Act to insure
industrial peace through collective bargaining can only be
effectuated when speedy access to uncrowded Board and
court dockets is available. To discourage future frivolous
litigation, to effectuate the policies of the Act, and to serve
the public interest, the Board found it to be just and proper
to order Respondents to reimburse the Board and the Un-
ion for their expenses incurred in the investigation, pres-
entation , and conduct of these cases. Tiidee Products, Inc.,
194 NLRB No. 198.40
In Tiidee II 41 the Board found:
Respondent violated Section 8(a)(1)(3) and (4) of the
Act by conduct which, as did its like conduct in Tiidee
I, clearly manifested its hostility toward the concept of
collective bargaining and animus toward employees
who it believed espoused unionization . Additionally,
while pursuing in Tiidee I its frivolous objections to
recognizing and bargaining with the Union, Respon-
dent violated Section 8(a)(5) and (1) of the Act in the
instant case by ignoring its employees' statutory repre-
sentative and unilaterally effecting changes in the em-
ployment relationship. In such circumstances,
Respondent's refusal to bargain with the Union over
4° See also N L R B v. Ramada Inns, Inc, 79 LRRM 2927 (C A 1) (March
I, 1972), Local Union 676, Laborers Intl Union [MFA Milling Co ] v
NLRB, 463 F 2d 953 (CA D C) (May 9, 1972)
41 Tudee Products, Inc, 196 NLRB No. 27.
MARSAL TRANSPORT, INC. 703
mandatory subjects of collective bargaining in the in-
stant case cannot be viewed in isolation. Rather, it must
be examined in the total context of Respondent's entire
course of unfair labor practices. So considered, the
conclusion is inescapable that the later conduct was a
continuation of the conduct begun in Tiidee I and was
similarly in furtherance of Respondent's ultimate ob-
jective; i.e., to deny to its employees the exercise of
those rights guaranteed to them by Section 7 of the Act.
It is in this light that we must determine whether or not
the remedy herein should be revised.
Finding that Respondents' purported defenses consti-
tute frivolous litigation, and having found that Respondents
have engaged in a flagrant violation of the collective-bar-
gaining principle, and clearly manifested their hostility to-
ward the concept of collective bargaining and animus
toward employees who they believed espoused unioniza-
tion, by conduct violative of Section 8(a)(1), (3), (4), and (5)
of the Act, as stated by the Board, to discourage frivolous
litigation for an unlawful object and to undo some of the
effects of Respondents' unlawful conduct, I will recom-
mend that Respondents be ordered to pay the following
costs and expenses incurred by the Board and the Union:
reasonable counsel fees, salaries, witness fees, transcript and
record costs, printing costs, travel expenses and per diem,
and other reasonable costs and expenses.42
In view of the nature of the unfair labor practices com-
mitted, the commission of similar and other unfair labor
practices reasonably may be anticipated. I shall therefore
recommend that Respondents be ordered to cease and de-
sist from in any manner infringing upon rights guaranteed
to its employees by Section 7 of the Act.
CONCLUSIONS OF LAW
11, 1971, to recognize and bargain in good faith with the
Union as the exclusive bargaining representative of their
employees, in the aforesaid appropriate unit, by discontinu-
ing its petroleum hauling operations, and leasing its trucks,
without prior notification to or bargaining with the Union
regarding either the decision to take such action or the
effects of the decision upon the employees, Respondents
have, in each instance, engaged in and are engaging in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act.
7. By discriminating in regard to the hire and tenure of
employment and terms and conditions of employment, and
by failing and refusing to reinstate Jesus Acevedo, Alphon-
so Camacho, Richard Carmelo, Francisco Contreras, Rob-
ert Cortez, La Vant Fisher, Edward Gomez, John Guest,
Alejandro Lomas, Roberto Lozano, Enrique Martinez, En-
rique Medina, Hubert Mercer, Daniel Reyes, Edgar Swan-
guen, Felix Tena, and Raymond Woodcock upon their
unconditional application, on November 23, 1971, thereby
discouraging membership in the Union, Respondents have
engaged in and are engaging in unfair labor practices within
the meaning of Section 8(a) (3) and (1) of the Act.
8. By interfering with, restraining, and coercing their
employees in the exercise of rights guaranteed in Section 7
of the Act, to the extent found under the section titled
"Interference, Restraint, and Coercion," Respondents have
engaged in and are engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
9. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
RECOMMENDED ORDER 43
1. Respondents are employers engaged in commerce
and in activities affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
2. Van Storage Drivers, Packers, Warehousemen &
Helpers, Local No. 389, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. All truckdrivers employed by Respondent Marsal,
excluding all other employees, office clerical employees,
professional employees, guards, and supervisors as defined
in the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times, since November 8, 1971, the Union has
been the exclusive representative for the purpose of collec-
tive bargaining, within the meaning of Section 9(a) of the
Act, of all the employees in the aforesaid appropriate unit.
5. The strike, which commenced on November 15,
1971, was at all times an unfair labor practice strike, by
reason of the Respondents' unfair labor practices, including
its refusal to recognize and bargain with the Union.
6. By failing and refusing, at all times, since November
42 See also Rule 38 , Federal Rules of Appellate Procedure. Cf. Sprague v
Ticonic National Bank, 307 U .S. 161, 166 ; Schauffler v. United Association of
Journeymen, 246 F.2d 867 (C.A. 3).
On the basis of the foregoing findings of fact and con-
clusions of law, and upon the entire record in the case, and
pursuant to Section 10(c) of the Act, as amended, I recom-
mend that Marsal Transport, Inc., its officers, and Salvador
Sisneros, d/b/a International Transportation Co., their
agents, successors, and assigns , shall be ordered to:
1. Cease and desist from:
(a) Failing and refusing to recognize and bargain col-
lectively, in good faith, with Van Storage Drivers, Packers,
Warehousemen & Helpers, Local No. 389, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of all
employees in the unit herein found to be appropriate for the
purpose of collective bargaining, with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment, and, if an understanding is
reached, upon request, embody such understanding in a
signed agreement.
(b) Failing and refusing to bargain in good faith with
the Union, prior to discontinuing their petroleum hauling
operations, without prior notification to or bargaining with
the Union regarding either the decision to take such action
43 In the event no exceptions are filed as provided in Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, recommendations , and recommended Order herein shall, as
provided in Sec . 102.48 of the Rules and Regulations , be adopted by the
Board and become its findings, conclusions , and Order, and all objections
thereto shall be deemed waived for all purposes.
704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or the effects of the decision upon their employees, in the
appropriate unit described supra.
(c) Discouraging membership in Van Storage Drivers,
Packers, Warehousemen & Helpers, Local No. 389, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other union, or
discouraging the free exercise of rights guaranteed by Sec-
tion 7 of the Act, by discriminating against any employee
in regard to his hire or tenure of employment, or any term
or condition of employment, by refusing to reinstate the
unfair labor practice strikers, identified supra, upon their
unconditional application for reinstatement.
(d) Interrogating employees in a manner violative of
the provisions of Section 8(a)(1) of the Act.
(e) Threatening employees with discharge because they
engage in union activities, threatening to sell the trucks
unless the employees desist from union activities, or alterna-
tively, unless they withdraw unfair labor practice charges
previously filed, threatening the employees with loss of their
jobs unless they withdraw their union membership, desist
from engaging in union activities, or, alternatively, unless
they withdraw unfair labor practice charges filed with the
Board.
(f) Soliciting employees to prevail upon other employ-
ees to withdraw unfair labor practice charges, as an essential
condition precedent to reinstatement of employees.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist
the above-named Union, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in any other concerted activity for
the'purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities,
except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as
the condition of employment, as authorized in Section
8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with Van Stor-
age Drivers, Packers, Warehousemen & Helpers, Local No.
389, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive
representative of all the employees in the aforesaid appro-
priate unit, and, if an understanding is reached, upon re-
quest, embody such understanding in a signed agreement.
(b) Offer to Jesus Acevedo, Alphonso Camacho, Rich-
ard Carmelo, Francisco Contreras, Robert Cortez, La Vant
Fisher, Edward Gomez, John Guest, Alejandro Lomas, Ro-
berto Lozano, Enrique Martinez, Enrique Medina, Hubert
Mercer, Daniel Reyes, Edgar Swanguen, Felix Tena, and
Raymond Woodcock immediate and full reinstatement to
the former or substantially equivalent position of each,
without prejudice to seniority or other rights and privileges
previously enjoyed by each, and make each whole for any
loss of pay each has suffered by reason of Respondents'
discrimination against each, in accordance with the rec-
ommendation set forth in "The Remedy" herein.
(c) Preserve and, upon request, make available to the
Board or its agents , for inspection and reproduction, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records neces-
sary to analyze, compute, and determine the amount of
backpay to which each employee may be entitled under the
terms of this Trial Examiner's Decision.
(d) Pay to the Board and the Union the costs and
expenses incurred by each in the investigation, preparation,
presentation, and conduct of these cases before the Na-
tional Labor Relations Board, as provided in "The Reme-
dy" herein. Such costs to be determined at the compliance
stage of these proceedings.
(e) Post at its facility, in Santa Fe Springs, California,
copies of the attached notice marked "Appendix."44 Copies
of said notice, on forms to be provided by the Regional
Director for Region 21, after being duly signed by Salvador
Sisneros, shall be posted by the Respondents immediately
upon receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondents to
insure that said notices are not altered, defaced, or covered
by any other material.
Notify the Regional Director for Region 21, in writing,
within 20 days from the date of the receipt of this Trial
Examiner's Decision, what steps Respondents have taken to
comply with the foregoing recommended Order.
IT IS FURTHER RECOMMENDED that unless Respondents
shall, within 20 days from the date of the receipt of this Trial
Examiner's Decision, notify said Regional Director, in writ-
ing, they will comply with the foregoing recommended Or-
der,45 the National Labor Relations Board issue an Order
requiring that Respondents take the action aforesaid.
44 In the event that the Board 's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading : "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."
45 In the event that this recommended Order is adopted by the Board, after
exceptions have been filed, this provision shall be modified to read : "Notify
the Regional Director for Region 21, in writing , within 20 days from the date
of this Order, what steps Respondents have taken to comply herewith."