Milo Express, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 313 (N.L.R.B. 1974)

MILO EXPRESS, INC. 313
Milo Express, Inc. and Keystone Lawrence Transfer
Company and General Teamsters, Chauffeurs and
Helpers Local Union No . 249 a/w International
Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America. Case 6-CA-6785
June 28, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On November 30, 1973, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief and the General Counsel
filed cross-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 entire record and the
attached Decision in light of the exceptions and briefs
and finds merit in certain of Respondent's exceptions.
It has decided, for reasons set forth below, to dismiss
the complaint in its entirety. It therefore adopts only
those findings and conclusions of the Administrative
Law Judge as are consistent with this Decision, and
does not adopt his recommended Order.
The complaint named as one Respondent two
trucking companies, Milo Express, Inc. and Keystone
Lawrence Transfer Company. It alleged that the two
companies, operating as "a single integrated business
enterprise," violated Section 8(a)(3) of the Act by
closing its Milo Express terminal and terminating the
truckdrivers employed by Milo Express because of
these employees' union activity. It further alleged that
Milo Express violated Section 8(a)(5) of the Act by its
refusal to recognize the Union and by going out of
business without notice to or consultation with it.
The Administrative Law Judge found that the two
trucking companies, named as one Respondent, were
not integrated in operation. Nevertheless, he conclud-
ed that "in spite of the limited amount of meshing of
the two operations," Zigmund Milos' control of both
corporations made the two a single employer. Re-
spondent contends in its exceptions and brief that the
record lacks an evidentiary showing that Keystone
and Milo Express operated as one business, and that
Milo Express' conduct before and after the closing
was not unlawful under the Act. We find merit in
these contentions.
1. Keystone Lawrence Transfer Company (Key-
stone) is engaged in the interstate trucking business,
including the operation of a terminal at Oakmont,
Pennsylvania, pursuant to authority issued by the In-
terstate Commerce Commission. Milo Express, Inc.
(Milo Express) was engaged, until June 21, 1973, in
intrastate hauling in and around Oakmont pursuant
to authorization of the Pennsylvania Public Utility
Commission. It has always operated nonunion.
About 3 years ago Respondent President Milos
Purchased Keystone, then located at New Castle,
Pennsylvania. Keystone employed drivers who were
represented by Teamsters Local No. 261. Subsequent-
ly, Milos moved Keystone from New Castle to a sepa-
rate terminal in Oakmont. The Keystone drivers
transferred from Local 261 to Teamsters Local 249,
the Charging Party, which has continued to represent
them. None of Keystone's employees is an alleged
discriminatee in this case and the complaint does not
allege an unfair labor practice with respect to Key-
stone as an employer.
Keystone and Milo Express are separate corporate
entities. The stock of each is owned by 'Zigmund Mi-
los and his wife. Mr. Milos is president of both corpo-
rations, and the board of directors of the two
corporations is the same. However, the two corpora-
tions used different bookeepers, filed separate tax re-
turns, operated at different locations separated by a
half mile, operated pursuant to different hauling per-
mits, and did not share equipment except on a lease
basis familiar in the trucking industry.
Each corporation operated as a separate enterprise
and President Milos considered them to be separate
businesses. Milo Express operated under the immedi-
ate supervision of Operations Manager Robert Do-
man. Its staff included, in addition to Doman, a
bookkeeper, a clerk, a helper in the shop, seven regu-
lar drivers, and as many as three so-called lease driv-
ers.
President Milos was responsible for the hiring and
termination of employees of the two companies, al-
though there had been no occasion to discharge any-
one at Milo Express. In earlier periods he had met
with Milo Express employees to tell them what sort of
pay raise they would receive, a decision reached to-
gether with Milo Express Operations Manager Do-
man and its bookkeeper. It was President Milos whom
the Union approached in seeking recognition.
During the 3-month period preceding the Milo Ex-
press shutdown there was insufficient work to keep
the Milo Express drivers busy. In order to obtain work
for them, Milo Express Operations Manager Doman
solicited and obtained hauling assignments from Key-
stone. Such loads were handled by lease arrangements
between Milo Express and Keystone. The drivers con-
tinued to be paid by Milo Express and were dis-
patched from the Milo Express terminal by Manager
Doman.
212 NLRB No. 57
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The principles governing the determination appli-
cable in this kind of case were restated in Poole's
Warehousing, Inc.,' where the Board adopted the con-
clusion of the Trial Examiner that a partnership and
a corporation controlled by the same interests were
not to be regarded as a single employer. The Trial
Examiner in that case stated, "Common ownership
alone is not sufficient. There must be in addition such
actual or active common control, as distinguished
from merely a potential, as to denote an appreciable
integration of operations and management policies."
158 NLRB at 1286.2
We do not view the evidence of common ownership
and President Milos' participation in the labor rela-
tions of Milo Express as warranting a finding that
Milo Express and Keystone constitute a single enter-
prise. The day-to-day operations of Milo Express
were in the hands of Manager Doman. Despite com-
mon ownership, the two businesses were not interde-
pendent. As found by the Administrative Law Judge,
to conclude that the two concerns were integrated
operations "would be an exaggeration." Moreover,
we do not view the developments of the last 3 months
before the shutdown when, due to failing business,
Milo Express solicited hauling assignments from Key-
stone, as destroying the autonomous operation of the
two companies. Accordingly, we find, contrary to the
Administrative Law Judge, that Milo Express and
Keystone did not constitute a single employer within
the meaning of the Act.3
2. The Administrative Law Judge held that the
closing of Milo Express, coincident with the advent of
union organization but also prompted by economic
considerations, violated Section 8(a)(3) of the Act in
that seven employees were thereby terminated. As we
have found that Milo Express operated autonomously
as a separate employer, we find that its closing was
not unlawful. The United States Supreme Court in
Textile Workers Union v. Darlington Manufacturing
Co., 380 U.S. 263 (1965), held that "when an employer
closes its entire business, even if the liquidation is
motivated by vindictiveness towards the union, such
action is not an unfair labor practice." (380 U.S. at
273).4
3. We further find that Respondent did not violate
Section 8(a)(5) in refusing to recognize the Union and
bargain concerning the closing. On June 18, 1973, the
Union requested recognition on the basis of a card
showing. As found by the Administrative Law Judge,
Milo Express had not engaged in independent acts of
interference or coercion preceding this request. Nev-
ertheless, because he viewed the shutdown of Milo
Express as unlawful, the Administrative Law Judge
found a violation of Section 8(a)(5) and held that a
bargaining order was justified under the decision of
the Supreme Court in N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575 (1969).
As we have found that the closing of Milo Express
was not unlawful and that Respondent Milo Express
has engaged in no other unfair labor practices that
would have made a fair election impossible, a bar-
gaining order is not justified. Steel-Fab, 212 NLRB
No. 25 (1974); Gissel, supra at 600 and 614-615. Ac-
cordingly, we shall dismiss the complaint.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board orders that the complaint herein be, and
it hereby is, dismissed in its entirety.
'Drivers, Chauffeurs and Helpers Local No 639, IBT (Poole's Warehousing,
Inc), 158 NLRB 1281
2 Accord Bachman Machine Company v N L R B, 266 F 2d 599 (C A 8,
1959), J G Roy & Sons Company v NLR B , 251 F 2d 771 (C A I, 1958),
Miami Newspaper Printing Pressmen Local No 46 (Knight Newspapers, Inc )
138 NLRB 1346 , enfd 322 F 2d 405 (C A D C, 1963)
3 Contrary to the conclusion of the Administrative Law Judge , we find that
the Board 's holding in Poole 's Warehousing, Inc, supra, has direct application
in this case
There is insufficient basis in the record from which to conclude that the
'purpose and effect' " of the Milo Express closing was to "chill unionism"
among Keystone 's employees Darlington , supra at 275, 276
DECISION
STATEMENT OF THE CASE
JAMES M. FITZPATRICK, Administrative Law Judge: This
proceeding under Section 10(b) of the National Labor Rela-
tions Act, as amended (the Act), was tried before me at
Pittsburgh, Pennsylvania, on October 16, 1973,' upon a
complaint (issued August 31) alleging, and an answer deny-
ing, that the employer, Milo Express, Inc. and Keystone
Lawrence Transfer Company, constituting a single employ-
er within the meaning of the Act, had committed unfair
labor practices in violation of Section 8(a)(3), (5), and (1) of
the Act by terminating certain employees, unilaterally clos-
ing down certain operations, and refusing to bargain with
a union . The complaint was founded on charges filed June
19 (amended June 20 and August 21) by General Teamsters,
Chauffeurs and Helpers Local Union No. 249 a/ w Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America (herein the Union).
Upon the entire record, my observation of the witnesses,
and consideration of the briefs filed by the General Counsel
and the Respondent, I make the following:
FINDINGS OF FACT
I THE EMPLOYER INVOLVED
This matter involves two corporations, Milo Express, Inc.
1 All dates herein are in 1973 unless otherwise indicated
MILD EXPRESS , INC. 315
(herein Milo Express) and Keystone Lawrence Transfer
Company (herein, Keystone) which the complaint alleges
are a single employer within the meaning of the Act.
Keystone is now, and at all times material to the events
involved herein has been, engaged in the interstate trucking
business, including the operation of a terminal at Oakmont,
Pennsylvania, pursuant to authority issued by the Interstate
Commerce Commission. Milo Express was also engaged in
the trucking business in and around Oakmont until June 21
when it closed its terminal. It operated intrastate pursuant
to authority issued by the Pennsylvania Public Utility Com-
mission. The parties have stipulated that during the past 12
months each performed freight transport services valued at
over $50,000 within Pennsylvania for companies which an-
nually ship goods valued at over $50,000 directly, to points
outside Pennsylvania and are themselves engaged in inter-
state commerce. The parties stipulate, and I find, that at
times material herein Milo Express and Keystone have been
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
The complaint alleges, and the answer denies, that Key-
stone and Milo Express are affiliated businesses with com-
mon officers, common ownership and operators, and that
they constitute a single integrated business enterprise en-
gaged in the transportation of general commodities.
The evidence shows that each is a separate corporation.
Zigmund Milos is president of both corporations. The
board of directors of each corporation consists of Milos, his
wife, and Ada Simpson who is not otherwise identified in
the record. There is likewise substantial identity in the own-
ership of outstanding stock of both corporations. Thus Zig-
mund Milos owns 51 percent of the stock of Milo Express,
his wife owns 48 percent and daughter 1 percent; he owns
51 percent of the stock of Keystone and wife owns 49 per-
cent.
At all times material to the present matter the Milo Ex-
press terminal has been located in Oakmont, Pennsylvania.
Milo Express has always operated nonunion. About 3 1/2
years prior to the hearing herein Zigmund Milos bought
controlling interest in Keystone, then located in New Cas-
tle, Pennsylvania. Keystone employed drivers who were
then represented by Teamsters Local No. 261. Subsequently
Keystone moved from New Castle to a terminal in Oak-
mont several blocks from the Milo Express terminal. The
Keystone drivers at that time transferred from Local 261 to
Local 249, the Union involved in the present matter, which
has continued to represent them.
Milo Express has operated under the immediate supervi-
sion of Operations Manager Robert Doman. Besides him
the staff included a bookkeeper, a clerk, a helper in the
shop, seven regularly employed drivers (Robert Semler,
Robert Kirchner, Harry Hilke, Joseph Ecsedy, David Brac-
co, Daniel Taylor, and John Doman) and as many as three
so-called lease drivers working pursuant to lease arrange-
ments. The record does not disclose, and I make no finding
with respect to, whether the drivers operating pursuant to
lease arrangements were or were not employees of Milo
Express.
Some aspects of the evidence indicate the two companies
are separate employers. Thus, in addition to the fact that
they are separate and unrelated corporate entities, they used
different bookkeepers, filed separate tax returns, operated
at different locations separated by a half mile, operated
pursuant to different hauling permits, and did not share
equipment except on a lease basis familiar in the trucking
industry. Zigmund Milos testified credibly that he operated
each company as a separate enterprise and considered them
to be separate businesses.
Other evidence shows that effective management of both
enterprises is centralized in the hands of Zigmund Milos.
Although in some respects his management of Milo Express
was indirect in that he operated through Operations Manag-
er Robert Doman (the father of driver John Doman), I find
his direct responsibilities were sufficient to establish that the
two concerns are a single enterprise within the meaning of
the Act. Thus, although Robert Doman was responsible for
such matters as assignment of work to the drivers, Zigmund
Milos himself was responsible for the total operation of both
Milo Express and Keystone. More specifically, Zigmund
Milos was responsible for the hiring and firing of employees
in both terminals. With respect to Keystone it is conceded
that he is in complete charge. The record shows that when
he purchased the Keystone business he made the decision
to assume the outstanding collective-bargaining agreement.
Since that time it has been he who has met with union
representatives in collective bargaining relating to the Key-
stone terminal. With respect to the Milo Express operations,
although prior to the events involved in this case no union
has been in the picture, Zigmund Milos met annually with
the employees to tell them what sort of a pay raise he could
give them. And, as noted later herein, when the Union
involved here requested recognition on behalf of the regu-
larly employed Milo Express drivers it made that request to
Zigmund Milos and it was he who declined to recognize the
Union as the drivers' representative. In sum, then, it appears
that Zigmund Milos individually was sufficiently involved
in the labor relations of both concerns to warrant the infer-
ence that they constitute a single enterprise under the Act.
The General Counsel also contends that the two concerns
had become operationally integrated. Although the record
shows an increased amount of operational mixing during
the last 3 months of Milo Express operation, the conclusion
that they were integrated operations would be an exaggera-
tion. Keystone has long followed a normal practice in the
trucking industry of leasing equipment (with or without
drivers) from outside sources when its own facilities were
insufficient to serve its business needs. It obtained such
extra equipment and drivers from various other trucking
concerns, from individuals with equipment, and from Milo
Express. Its arrangements for such equipment, with or with-
out drivers, have always been on a lease basis.
In recent years the business of Milo Express has dwin-
dled, a development of concern both to Manager Robert
Doman and,to Zigmund Milos. From time to time they
conferred about the increasingly serious problems of the
business with particular attention to reduced profits. Robert
Doman, as the one immediately in charge, sought various
ways to improve operations and to obtain more business. In
the 3 months prior to June he had insufficient work to keep
the seven regular drivers busy and in order to obtain work
for them he solicited and obtained hauling assignments
from Keystone. Each day, after determining the number of
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drivers he needed for Milo Express customers, Doman con-
tacted Keystone to see if he could obtain additional loads.
Such loads as were thus obtained were handled by lease
arrangements between Milo Express and Keystone. The
drivers continued to be paid by Milo Express and were
dispatched from the Milo Express terminal by Robert Do-
man. As noted above, the quantity of work thus obtained
increased during the last 3 months of operation. At least one
Milo Express driver testified credibly and without contra-
diction that during that period 80 percent of his work was
hauling such loads provided by Keystone.
Considering that such lease arrangements are normal in
the trucking industry; that the control of the Milo Express
drivers remained in the hands of the Milo Express manager;
and that the whole purpose of the Milo Express manager
was to obtain additional work to keep his drivers employed,
I fail to see how the developments of the last 3 months
materially alter the legal relationship of the two companies.
In spite of the limited amount of meshing of the two
operations, I find the degree of control of both, centralized
in the hands of Zigmund Milos, was sufficient to make the
two a single enterprise. See N.L.R.B. v. Gibraltar Industries,
Inc, 307 F.2d 428 (C.A. 4, 1962). In making this finding I
am somewhat troubled by the Board's holding in Poole's
Warehousing, Inc., 158 NLRB 1281, a secondary boycott
case which turned on the question of single employer.
There , on facts somewhat similar to those in the present
matter, the Board held the two concerns were not a single
employer under the Act. However, that case is distinquisha-
ble to a degree in that the warehouse manager there ap-
peared to have greater labor relations authority than did
Robert Doman in the present case, and the Poole brothers
(the owners there) appeared less active in managing the
warehouse operation than was Zigmund Milos in managing
Milo Express. Recognizing that the difference is one of
degree and the question a close one, nevertheless I find here
that Milo Express and Keystone, in the hands of Zigmund
Milos, constitute a single enterprise.
II THE LABOR ORGANIZATION INVOLVED
The Charging Party (the Union here) is an organization
which represents employees in collective bargaining. It is a
labor organization within the meaning of Section 2(5) of the
Act. Among other persons it admits to membership drivers
employed by various trucking concerns including drivers
employed by Keystone and drivers employed by Milo Ex-
press . For a number of years past Keystone and the Union
have maintained collective-bargaining agreements and at
the time of the hearing Keystone recognized the Union as
the representative of its employees. Milo Express has never
recognized the Union as the representative of its employees
and has never had a contract with it.
III THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Discriminations
1. The allegations
The parties agree that on June 21 the Milo Express termi-
nal closed. The complaint alleges, and the answer denies,
that on that date seven regular drivers of Milo Express were
terminated and have since not been reinstated, and that this
action was taken because of their union activity and con-
certed activity and in order to discourage membership in the
Union. The seven drivers were Daniel Taylor, Harry Hilke,
Robert Kirchner, David Bracco, Joseph Ecsedy, Robert
Semler, and John Doman.
2 Union activity at Milo Express
From time to time prior to the closing unsuccessful efforts
had been made to organize the drivers. In late May or early
June Titus McCue, a Teamster International representative,
approached Daniel Taylor on his truck and succeeded in
interesting him in the Union. This led to a meeting of six
Milo Express drivers on June 8 at the home of Joseph Ecse-
dy at which McCue explained the advantages of union rep-
resentation. The drivers in attendance included Escedy,
Taylor, Bracco, Hilke, Kirchner, and one other not identi-
fied. All of those named filled out cards applying for mem-
bership in the Union and authorizing it to represent them
and all except Taylor signed their cards. Taylor neglected
to sign his but he thought he had signed it and remained
under that impression until the time of the hearing herein.
In any case he was sworn in as a member of the Union on
June 16 along with Kirchner, Hilke, Bracco, and Escedy.
3. Company knowledge of union activity
Over 3 years prior to the events involved in this case, at
a time when Zigmund Milos was considering purchasing
control of Keystone, he met with the drivers of Milo Express
and told them he was considering purchasing the other com-
pany. He indicated that over a period of 6 months or a year
he would endeavor to equalize their wages with the wages
of the Keystone drivers who were receiving union scale. He
made it clear, however, that the Milo Express operations
would be nonunion. The General Counsel urges that this
incident shows a predisposition by Zigmund Milos against
union representation of employees. I disagree. The incident
happened too long ago and the fact was that at that time one
operation was nonunion and the other was union. When the
employees of Milo Express asked if they were to receive the
union scale , they were promised that an effort would be
made to meet the union wage. Given the fact that they were
then nonunion, it might well have been an unfair labor
practice for the Employer to have told them that they
thenceforth would be union.
On June 18, the Monday morning following the swearing
in of the five Milo Express drivers, International Represen-
tative McCue and Union Organizer William Reed called on
Zigmund Milos at his office in the Keystone terminal. Reed
advised Milos that the Union represented a majority of the
drivers at Milo Express and asked for recognition as their
representative. Milos replied he did not think the Union
represented a majority and he would like to see the authori-
zation cards. Reed, who did not at the time have them with
him, promised to return with them the next day.
That day a normal crew of Milo Express drivers, includ-
ing Kirchner, worked. When Kirchner returned to the ter-
MILO EXPRESS, INC.
minal at the end of the day, Operations Manager Robert
Doman told him they had had visitors that day. Kirchner
assumed he meant the union representatives because he had
understood they were going to present themselves to man-
agement on that day. Kirchner testified further, "and at that
time he (Robert Doman) said I didn 't ask anyone else so I'm
going to ask you, did you sign and I said yes, I did. He said,
well, that 's it, he said we 're going to work two men tomor-
row, two of the other men the next day and two of the
remaining six the third day and we will operate like that
until the end of the month at which time we are closing up."
I find the facts were as Kirchner reported.
4. Closing of the Milo Express terminal
Milo Express did close down its operations but not in
exactly the way Robert Doman had predicted. According to
Robert Doman, whom I credit, "Mr. Milos had been want-
ing to cut down operations due to the low profit margin and
he felt as I felt on the 18th that this was the final nail in the
coffin." By "this" he meant the employees signing up with
the Union. It was the judgment of Milos and Doman that
they could no longer afford to operate the way they had
been operating . Doman testified , "I felt personally that it
would kill the Company." Zigmund Milos instructed him to
cut down on pickups for a few days to see what would
happen. In the meantime they would continue to deliver
freight already on their dock. Robert Doman concluded
that the Company probably would close and immediately
applied elsewhere for a job.
On Tuesday, June 19, he scheduled Semler , Kirchner,
Hilke, and John Doman to work. At the end of the day
Semler and John Doman were scheduled for work the next
day, Wednesday, June 20, and the others were advised there
would be no work the next day and they would be called
when needed . Ecsedy was on vacation on Monday and
Tuesday. When he called in on Tuesday night he was told
there was no work the next day. Those who were without
work contacted the Union.
On Wednesday , June 20, Union Organizer Reed returned
to the Keystone terminal to see Zigmund Milos. He showed
Milos the five authorization cards in his possession. Milos
looked at them and told him he did not have the time and
he did not recognize the Union and if Reed wanted to talk
to him he should make an appointment . Reed said the
Union was putting Milos on strike . According to Reed he
was belligerent . He ordered Reed off the property.
That same day, June 20, the Union set up a picket line
at the Milo Express terminal only. The signs asserted that
Milo Express was being struck because of its failure to
recognize and bargain with the Union . All of the Milo Ex-
press drivers, including those who had not signed union
authorization cards, respected the picket line.
On June 29 Zigmund Milos , as President of Milo Express,
sent each of the regular drivers a letter stating , "This letter
is to serve as your official notice that as of June 21, 1973,
Milo Express, Inc., has decided to close the entire opera-
tion." From this it is clear that at least from June 21, for
whatever reason , Milo Express ceased operating as a truck-
ing company.
317
5. Conclusions regarding alleged discriminations
The above-described sequence of events demonstrate a
classic violation of Section 8(a)(3) of the Act with respect to
all seven regularly employed drivers at Milo Express. It is
immaterial that the record reveals no significant antiunion
animus on the part of management. And whatever econom-
ic factors may have threatened financial disaster, the evi-
dence is clear that knowledge that the employees had signed
union cards was the crucial motivating factor at the time the
decision was made to cease taking any more freight and
cutback on the work. In the mind of Operations Manager
Robert Doman this was basically a decision to close up
shop. And even on a wait and see basis, when the extent of
employee support for the Union was made clear on June 20
when all drivers honored the picket line protesting failure to
recognize the Union, the final decision to terminate all oper-
ations was immediately made the next day.
Based on the foregoing I find that the effective June 21
Taylor, Hilke, Kirchner, Bracco, Ecsedy, Semler, and John
Doman were terminated from their employment with Milo
Express because of employee support for the Union and
that since that time they have not been reinstated. I further
find that these terminations and failures to reinstate dis-
couraged membership in the Union. Because Milo Express
and Keystone are a single employer, they are, as such, res-
ponsible for this conduct and accordingly have violated
Section 8(a)(3) and (1) of the Act.
B. The Alleged Refusal To Bargain
1. The issues
The complaint alleges, and the answer denies, that Milo
Express and Keystone, constituting a single employer, have
since June 18 engaged in a general refusal to bargain with
the majority representative of employees of Milo Express,
thereby violating' Section 8(a)(5) and (1) of the Act. The
complaint further alleges that Section 8(a)(5) and (1) were
further violated on June 21 by the unilateral closing of the
Milo Express terminal and the termination of the employees
there. This allegation of unilateral action is denied except
for the admission that no consultation with respect to the
closing of the terminal or the termination of its employees
was had with the Union.
2. The alleged appropriate unit
The complaint alleges, and the answer denies, that all
truckdrivers employed at the Milo Express terminal, exclud-
ing all office clerical employees and guards, professional
employees, and supervisors as defined in the Act, constitute
an unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
There is very little evidence in the record as to the appro-
priateness of the alleged bargaining unit. The burden of
establishing the allegation is, of course, on the General
Counsel. However, in the circumstances I view that burden
as being a light one . The description of the alleged unit on
its face appears normal for the trucking industry. No evi-
dence in the record suggest that it is inappropriate. It en-
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
compasses all regular drivers of Milo Express and I construe
the allegation to be confined to regular drivers. There is
some evidence in the record that Milo Express also used
lease drivers, at times as many as three. From the record it
is not clear whether these drivers were or were not employ-
ees of Milo Express nor whether, if employees, they could
appropriately be included with the regular drivers in a bar-
gaining unit. In the circumstances it does not appear that a
unit omitting lease drivers would be inappropriate. Consid-
ering that historically the regular drivers, without benefit of
outside representation, have met annually with Zigmund
Milos to ask what they could expect by way of wage increas-
es, it seems to me there is sufficient evidence in the record
on which to base a finding that the alleged appropriate unit,
limited to regular drivers, is appropriate under the Act. I so
find.
3. The alleged majority status of the Union
The complaint alleges, and the answer denies, that since
June 18, the Union has been the majority representative of
Milo Express drivers.
I have found above that a unit consisting of the regular
truckdrivers constitutes an appropriate unit. There were
seven such drivers: Daniel Taylor, Harry Hilke, Robert
Kirchner, David Bracco, Joseph Ecsedy, Robert Semler,
and John Doman The evidence shows that four of these,
Hilke, Kirchner, Bracco, and Ecsedy, signed cards authoriz-
ing the Union to represent them on June 8. Taylor filled out
such a card on that day and, although he inadvertently
neglected to sign it, he intended as of then to authorize the
Union to represent him. These authorizations were all out-
standing on June 18, the date on which it is alleged the
Union enjoyed majority status. And so far as this record
shows, that same situation continues. Inasmuch as five of
the seven employees in the unit indicated their desire that
the Union represent them, I find that since June 18, the
Union has been designated by a majority of employees in
the unit as their bargaining representative. I further find
that under Section 9(a) of the Act, by virtue of such designa-
tion, the Union became and continues to be the exclusive
representative of all employees in that bargaining unit for
the purpose of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and
conditions of employment.
4. The request for recognition
As noted earlier herein, the evidence shows, and I find,
that on Monday, June 18 Union Organizer William Reed
called on Zigmund Milos at the Keystone terminal and
asked for recognition of the Union as the representative of
the Milo Express drivers. He in effect repeated the request
on Wednesday, June 20 when he returned to show Milos the
authorization cards. And the request for recognition was
given further continuing force by the picketing of the driv-
ers at the Milos terminal beginning June 20 in support of the
demand for recognition. Accordingly, I find that, as alleged
in the complaint, the Union since June 18 has been request-
ing recognition and bargaining as the reresentative of Milo
Express drivers.
5. The alleged refusal to bargain
The complaint alleges, and the answer denies, that since
June 18 the employer has refused generally to bargain with
the Union in violation of Section 8(a)(5) and (1) of the Act.
Actually Zigmund Milos did not refuse to recognize or
bargain with the Union when the first demand was made by
Reed and McCue on Monday, June 18. At that time he
merely expressed doubt that the Union represented the em-
ployees and further said he would like to see the authoriza-
tion cards, which Reed did not have with him at the time
but said he would bring the following day. At that point the
Employer had not refused to bargain.
However, by the time Reed returned 2 days later, Wed-
nesday, June 20, management had polled one employee as
to whether he had signed a union card, and had stiffened
its attitude. On June 20, when Reed displayed the authoriza-
tion cards to Milos, Milos examined them and stated he did
not recognize the Union. When Reed then informed him
that the employees were going on strike Milos ordered him
off the property. This refusal to bargain was made in the
face of asserted union majority status backed up by authori-
zation cards and the declaration of a strike. The strength of
the Union's status as a representative was immediately
thereafter further buttressed by the picket line set up at the
Milo Express terminal, which was honored by all employees
in the bargaining unit including those who had not signed
authorization cards.
Because of the substantial unfair labor practices in viola-
tion of Section 8(a)(3) of the Act, which occurred on June
21 with the closing of the Milo Express terminal, I find that
the June 20 and thereafter refusal to recognize and bargain
with the Union violated Section 8(a)(5) and (1) of the Act.
N.L R B. v. Gissel Packing Co., Inc., et al., 395 U.S. 575
(1969). Dismissal of the entire driving staff because a major-
ity of them had authorized the Union to represent them
constituted substantial employer misconduct which I find
will preclude the holding of a fair election. Accordingly it
is appropriate to rely on the Union's majority status as
demonstrated by means other than a Board election. Com-
mitting such unfair labor practices was not an option legally
open to the Employer, and having resorted to such conduct,
its refusal to recognize and bargain with the approved ma-
jonty representative violated Section 8(a)(5) and (1) of the
Act.
6. The closing of the terminal
The complaint also alleges an unilateral violation of Sec-
tion 8(a)(5) and (1) when the Milo Express terminal was
closed and the driver terminated effective June 21. The
complaint alleges, and the answer admits, that this was
carried out without consultation with the Union. The com-
plaint also alleges, but the answer denies, that no notice was
given to the Union
There is no evidence of any communication whatsoever
between the Employer and the Union in advance of the
effective date of closing. Communication to individual em-
ployees cannot suffice. In any case, all any employee knew,
commencing on the evening of June 18, was that work was
being cut back. There was no specific notice to anyone prior
MILO EXPRESS, INC.
to the Employer's letter to individual employees on June 29
that the terminal was closing.
Because , as of June 21, the Employer was obligated to
recognize and bargain with the Union respecting drivers at
the Milo Express terminal, the unilateral closing of the ter-
minal and the terminating of those employees constituted a
further refusal to bargain within the meaning of Section
8(a)(5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Employer set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the
several States. Those found to be unfair labor practices tend
to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce and are unfair labor
practices within the meaning of Section 8(a)(3), (5), and (1)
of the Act and Section 2(6) and (7) of the Act.
CONCLUSIONS OF LAW
1. Milo Express, Inc. and Keystone Lawrence Transfer
Company are a person within the meaning of Section 2(1)
and an employer within the meaning of Section 2(2), en-
gaged in commerce within the meaning of Section 2(6) and
(7), of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Employer, by terminating the employment of
Daniel Taylor, Harry Hilke, Robert Kirchner, David Brac-
co, Joseph Ecsedy, Robert Semler, and John Doman be-
cause some of them authorized the Union to represent them,
discriminated against each of them in regard to their hire,
tenure of employment, or terms and conditions thereof
thereby discouraging membership in a labor organization.
The Employer thereby engaged in and is engaging in unfair
labor practices proscribed by Section 8(a)(3) and (1) of the
Act.
4. On June 18 the Union was , and at all times since has
been, the duly designated collective-bargaining representa-
tive of the Employer's employees in a unit of regular drivers
employed at the Milo Express, Inc., terminal, but excluding
all office clerical employees and guards, professional em-
ployees and supervisors as defined in the Act. That unit is
appropriate for the purpose of collective bargaining within
the meaning of Section 9(b) of the Act.
5. On June 18 the Union requested, and at all times since
has continued to request, that the employer recognize and
bargain with it as the duly designated collective-bargaining
representative of the employees in the aforesaid appropriate
unit.
6. By refusing on June 20, and at all times thereafter, to
recognize and bargain with the Union as the collective-
bargaining representative of the employees in the aforesaid
unit, the employer engaged in, and is engaging in, unfair
labor practices proscribed by Section 8(a)(5) and (1) of the
Act.
7. By unilaterally on June 21 closing the Milo Express,
Inc., terminal and terminating the seven regular drivers em-
319
ployed there without notice to, or consultation with, the
Union, the employer-engaged in, and is engaging in, unfair
labor practices proscribed by Section 8(a)(5) and (1) of the
Act.
8. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act. -
THE REMEDY
Having found that the employer engaged in unfair labor
practices, I recommend that it cease and desist therefrom
and take certain affirmative action to effectuate the policies
of the Act. I recommend that the employer be ordered to
offer Daniel Taylor, Harry Hilke, Robert Kirchner, David
Bracco, Joseph Ecsedy, Robert Semler, and John Doman
immediate and full reinstatement to their former jobs or, if
those jobs are not available, to substantially equivalent posi-
tions in any of the Employer's operations, without prejudice
to their seniority and other benefits and privileges, and that
each be made whole for any loss of earnings suffered by
reason of his termination by paying him a sum of money
equal to that he would have earned in wages from the date
he was terminated to the date reinstatement is offered, less
net earnings during such period, such backpay to be com-
puted in the manner set forth in F. W. Woolworth Company,
90 NLRB 289, with interest thereon at 6 percent' calculated
according to the formula in Isis Plumbing & Heating Co.,
138 NLRB 716. I also recommend that the Employer pre-
serve and to make available to Board agents upon request
all pertinent records and data necessary in analyzing and
determining whatever backpay may be due.
Having found that the Employer violated Section 8(a)(5)
and (1) of the Act by generally refusing to recognize and
bargain with the Union and in particular by unilaterally
terminating the drivers and closing the terminal, I further
find that unless appropriate action is taken the Employer
will profit from such unlawful conduct. It is appropriate,
therefore, and I recommend that to remedy the unfair labor
practices the Employer be ordered, upon request, to bargain
with the Union as a representative of the employees in the
unit herem found appropriate, and if an understanding is
reached, embody the same into a written signed agreement.
I further recommend that the Employer post appropriate
notices.
The General Counsel contends that the Employer here
should be required to reopen Milo Express terminal. In view
of the violations of Section 8(a)(3) and (5) found above, the
Board would, in my view, have authority to order the facili-
ty reopened. That, however, would be strong medicine con-
sidering that the record here indicates that the Employer is
something less than a giant in its industry and some eco-
nomic justification for not continuing that terminal in oper-
ation. Moreover, much of its equipment has been disposed
of. It seems to me that substantial justice can be done if
reinstatement of the discriminatees can be effected in opera-
tions of the Employer which are continuing and if the Em-
ployer is required to bargain with the Union. Accordingly,
I do not recommend that the Employer be ordered to re-
open its Milo Express terminal.
[Recommended Order omitted from publication.]