Plastics Transport Inc.

National Labor Relations Board - Board Decisions

Sep 7, 1971

193 N.L.R.B. 54 (N.L.R.B. 1971)

54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plastics Transport Inc. and Stafford Trucking Inc. and
Local 330, General Chauffeurs , Salesdrivers and
Helpers , affiliated with International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and
Helpers of America . Case 38-CA-985
September 7, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On April 29, 1971, Trial Examiner Paul E. Well
issued his Decision in the above-entitled proceeding,
finding that Respondents had engaged in and were
engaging in certain unfair labor practices and
recommending that they cease and desist therefrom
and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter the
Respondents filed exceptions to the Trial Examiner's
Decision and a brief in support thereof, and the
General Counsel filed a brief in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case,' and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondents, Plastics Transport Inc., Waterman,
Illinois, and Stafford Trucking Inc., Portage, Wiscon-
sin, their officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
recommended Order.3
I The Respondents' request for oral argument is denied, since, in our
opinion, the record, including the transcript, exhibits, and exceptions and
briefs, adequately presents the issues and the positions of the parties
2 In the exceptions the Respondents allege bias and prejudice on the
part of the Trial Examiner Upon a careful analysis of the whole record, we
find nothing to support Respondents' allegations Accordingly, they are
rejected, as lacking in merit
3 Member Kennedy agrees with Member Fanning and Member Jenkins
that Respondents violated Section 8(a)(I), (3), and (5) as found by the Trial
Examiner With respect to the remedy, however, Member Kennedy would
order the Respondents, in the alternative, to offer reinstatement to the
discrimmatees by either reestablishing the terminal at Waterman , Illinois,
or offering reinstatement to the discriminatees at its Portage, Wisconsin,
terminal, together with paying their moving expenses . He would order the
Respondents to make the discnminatees whole for any loss of pay suffered
by paying each of them a sum of money equal to the amount he would
have earned as wages from the date of his termination to the date he
secures equivalent employment elsewhere or Respondents offer him
reinstatement at either the Waterman or Portage terminal.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Trial Examiner: On August 10, 1970,
Local 330, General Chauffeurs, Salesdrivers and Helpers,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
hereinafter called the Charging Party, filed a charge with
the Regional Director for Subregion 38 of the National
Labor Relations Board, hereinafter called the Board,
alleging that Plastics Transport Inc. and Stafford Trucking
Inc., hereinafter called Respondent Plastic and Respondent
Stafford or, jointly, Respondents, violated Section 8(a)(1),
(3), and (5) of the National Labor Relations Act by failing
and refusing to bargain with the Union, by attempting to
negotiate with the employees represented by the Union,
and by threatening loss of employment. On October 5,
1970, the said Regional Director on behalf of the General
Counsel of the Board issued a complaint and notice of
hearing alleging that Respondents are affiliated businesses
and constitute a single-integrated business enterprise, that
Respondents violated Section 8(a)(1) of the Act by
promising benefits, threatening reprisals, refusing to
bargain with the Union as the collective-bargaining
representative in an appropriate unit, negotiating with the
employees in derogation of the Union's rights to negotiate,
removing the equipment from one of Respondents'
terminals, ceasing operations without bargaining with the
Union, and by failing and refusing to reinstate, on their
unconditional application, employees who engaged in an
unfair labor practice strike to protest the above unfair labor
practices.
By its duly filed answer Respondents denied that they are
an integrated operation and denied the commission of any
unfair labor practices. On the issues thus joined the matter
came up for hearing before me in Ottawa, Illinois, on
January 19 through January 22, 1971. All parties were
represented by counsel and had an opportunity to examine
and cross-examine witnesses and introduce relevant
evidence, to argue orally, and to file briefs. Briefs have been
received from the General Counsel, the Charging Party,
and Respondents.
Thereafter affidavits were forwarded to me by counsel
for the Charging Party and counsel for Respondents
concerning a telephone conversation between the two
lawyers. The affidavits were not wholly consistent with
each other but revealed the existence of a possible issue,
one determination of which could afford Respondents a
defense to the refusal-to-bargain charge. Accordingly I
ordered the hearing reopened and called both attorneys as
the Trial Examiner's witnesses and examined them with
regard to the telephone call which was the subject of the
affidavit. Each counsel cross-examined the other and the
General Counsel cross-examined both.
193 NLRB No. 10
PLASTICS TRANSPORT INC.
All parties waived the filing of additional briefs.
Upon the entire record in this case and in consideration
of the briefs, I make the following.
FINDINGS AND CONCLUSIONS
I BUSINESS OF THE RESPONDENTS
Respondent Stafford is an interstate hauler of silicate
sand between points in Wisconsin, Illinois, Indiana,
Michigan, and Iowa with annual gross revenue in excess of
$50,000 and is engaged in commerce within the meaning of
the Act. Respondent Stafford operates under a license or
authority granted by the Federal Interstate Commerce
Commission.
In the year 1966 Jack Stafford, president and majority
stockholder of Respondent Stafford, purchased a corpora-
tion known as Plastics Transport Inc , to obtain its
intrastate trucking rights in the State of Illinois. Stafford
was advised at this time that he could not incorporate
Plastics Transport Inc. into Stafford Trucking because he
did not apply for rights in Illinois under Stafford's name.
After purchasing the stock of Plastics Transport Inc.'
Stafford divided the shares in the corporation between his
two sons, Robert and James, hoping that he could get them
involved in the trucking business. Stafford however at that
time retained the presidency of Respondent Plastics and
remained at all times until the present the general manager
of its operation. The board of directors of Respondent
Plastics, as presently constituted, consists of Robert
Stafford and James Stafford (the sons who own the stock),
Wilcy Stafford, apparently a daughter of the Stafford
family, Grace Stafford, who is Mrs. Jack Stafford, and Jack
Stafford. The board of directors of Stafford Trucking
includes Jack Stafford, Grace Stafford, and Wilcy Stafford
with Jack as the president, Wilcy the vice president, and
Grace as secretary-treasurer.
Robert Stafford, called as a witness, testified that he is
employed full time by American Motors as a supervisor of
industrial engineering and that his brother, James, is
employed full time as a mechanic and part-time manager
for Respondent Stafford in its Portage, Wisconsin,
terminal . He stated that he has not been involved in the
day-to-day operations of Respondent Plastics but could not
speak for his brother in that regard. He testified that he
received his share of ownership of Respondent Plastics as a
gift from his father, contributed nothing to the cost of
Respondent Plastics and has received no dividends on
those shares. He testified that his father, Jack Stafford, is
running the business of Respondent Plastics for him and his
brother.
Robert Huber, who is the general manager of Respon-
dent Plastics' terminal in Waterman, Illinois, testified that
he was first employed by Respondent Stafford as a driver in
1961 and continued in that capacity until March 1969 when
he was transferred to Stafford's terminal in Ottawa, Illinois,
which had been opened approximately 4 years before. He
was the manager of all Stafford trucking operations in the
State of Illinois, reported only to Jack Stafford and hired all
the employees employed at the Stafford terminal in Ottawa.
Plastics Transport Inc was apparently not operating at that time
Stafford purchased the corporate shell and the authority granted Plastics
55
In July 1969, following organization by a labor organiza-
tion of the employees at Stafford's Ottawa terminal, the
terminal was closed down and the operation moved to
Waterman, Illinois, with Huber continuing as the manager
but with a new crew of employees.
When Huber commenced operations in Waterman,
Illinois, the drivers operating from that terminal were
drivers who had been employed by Respondent Stafford in
Wisconsin and were sent to Ottawa by Stafford. Thereafter
these drivers were replaced with drivers hired locally by
Huber in Waterman.
On January 1, 1970, the name of the operation in
Waterman, Illinois, was changed from Stafford Trucking
Inc. to Plastics Transport Inc. No other change in the
Waterman operation took place at that time. All drivers
who had been employed by Respondent Stafford continued
to work for Respondent Plastics, driving the same
equipment and serving the same customers. Huber
continued to receive his instructions and orders from Jack
Stafford and to send his bills of lading to Jack Stafford. The
paychecks, which now bore the name of Respondent
Plastics, continued to be signed by Mrs. Jack Stafford.
The drivers at the Waterman terminal before and after
January 1, 1970, drove both interstate and intrastate loads.
The interstate loads were driven under authonty assigned
to Respondent Stafford by the ICC and the intrastate loads
under rights assigned to Respondent Plastics by the State of
Illinois. It is conceded that the drivers spent about an equal
amount of time driving under Stafford's rights and Plastics'
rights. All equipment used was the property of Respondent
Stafford and bore its name . Huber was unaware of any
lease agreement between the Respondents for the equip-
ment.
Prior to 1970, according to the testimony of Robert J.
Tobin, CPA, who has done the accounting for both
Respondents since 1966, the wages of all of the drivers and
all personnel concerned with Respondent Plastics were
paid by Respondent Stafford. This led to a profit showing
for Respondent Plastics which Tobin considered to be
excessive and difficult to justify. Accordingly he suggested
to Grace Stafford that a different accounting system should
be set up to more accurately reflect the profit and loss
picture of Respondent Plastics as a separate corporation.
Probably as a result of his recommendation, Grace Stafford
directed Tobin to allocate all the expenses of the Waterman
terminal and payrolls to Respondent Plastics rather than
Respondent Stafford. Tobin testified candidly that it was as
unrealistic to attribute all the expenses to Respondent
Plastics as it was previously to attribute them to Stafford
inasmuch as half of the business of the Illinois terminal was
operated under Stafford's ICC authority. The result of the
change was that although Respondent Plastics' business
increased somewhat in the last year of its operation the
books now showed a large loss rather than a profit as in
each of the previous years. This loss was of such nature that
it wiped out all of the accumulated profits and left
Transport Inc to operate intrastate in the State of Illinois
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent Plastics on paper owing Respondent Stafford a
sum of some $25,000.2
The evidence reveals that except to the extent that Huber
solicited business, all business conducted by Respondent
Plastics in Illinois was generated by Jack Stafford and
Respondent Stafford. All management other than Huber's
on-the-spot management at the Waterman terminal was
supplied by Jack Stafford and his wife, Grace. The sole
supervision was embodied in Manager Huber, who had
been a Stafford employee paid by Stafford until January 1,
1970. Thereafter until August 15 he was paid by Plastics
and, the terminal having been shut down on August 15, his
payment by Respondent Stafford resumed until he resigned
from Stafford's employment in October 1970.3
I conclude that the General Counsel has met his burden
of showing that the two Respondents are in a fact a single,
integrated employer and that jurisdiction should be
asserted on the basis of Respondent Stafford's interstate
operations. I find that Respondents are a single, integrated
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
The Charging Party is and at all times relevant hereto has
been a labor organization within the meaning of Section
2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On August 3, 1970, Jim Smith, the business agent of the
Charging Party, came to the Waterman terminal and met
with Manager Huber. He informed Huber that he had
cards authorizing the Charging Party to represent all of the
six regular drivers then employed at the Waterman terminal
and asked for recognition. Huber informed Smith that he
had no authority to recognize the Union and stated that he
would get in touch with Jack Stafford and inform him of
the Union's demand. Huber at that time examined the
cards and agreed that they were authentic.4
That afternoon Huber telephoned Jack Stafford at his
home and informed him of the demand for recognition, and
that he had examined the cards and found them valid.
Stafford replied that he would have to shut the terminal
down if the Union came in because he could not afford the
Union. After talking the matter over he agreed that he
would come down on August 5 and told Huber to set up a
meeting with the employees so that he could speak to them.
During this conversation Jack Stafford mentioned his son
Robert in connection with Respondent Plastics; this was
the first indication to Huber that Robert had anything to do
with Respondent Plastics.
The meeting was held between the six drivers, Stafford,
and Huber on the afternoon of August 5, 1970. When the
employees were informed of the meeting, they delegated
one of their number, Edward Harding, to inform the Union
of it. Harding talked to Smith by telephone and Smith
stated that he would be unable to attend the meeting but
2 it should be pointed out that the only change was in the bookkeeping,
no change in operations took place
3 Huber is now employed as a truckdriver by another company
unrelated to the Stafford operation
delegated Harding to speak for the men and to request
recognition from Jack Stafford. The meeting commenced
with Harding identifying himself as a spokesman for the
men and asking Stafford for recognition. Stafford count-
ered with the statement that he would not grant recognition
and wanted to know what the employees wanted. One of
the employees, Allen Priar, stated in words or substance
that they wanted a union contract and that the contract rate
was $4 an hour and 14 cents a mile. Stafford stated that he
could not afford this rate and offered $3.15 an hour and 10
cents a mile but no union contract. He also stated that he
would shut down the terminal before he would sign a union
contract and that no one was going to tell him how to run
his business. During the conversation another employee,
John Modglin, who had recently had an accident and had
had difficulty with the insurance coverage because of it,
entered into a discussion with Jack Stafford about the
accident insurance and workmen's compensation insurance
during the course of which Stafford stated that he was
going to talk to a man in a few days about an insurance
policy that Stafford believed would be better for the
employees. One of the employees finally asked Stafford
directly what he would offer and he offered $3.25 an hour
for loading and unloading plus 10 cents a mile but without
a union. An employee asked Stafford what he had against
unions. Stafford said he had nothing against unions other
than that he did not want them running his business and
mentioned that he had once belonged to the Musicians
Union. Just before the meeting was completed, Stafford
said, "Well this is the offer; take it or leave it but I'll tell you
one thing boys, there's no union going to be in my business.
If you want to go union go elsewheres and work." 5
The employees assembled outside the office and agreed
that they would not accept Stafford's offer of $3.25 an hour
and 10 cents a mile without a union but would insist on a
union contract. They agreed that they would immediately
go on strike unless Stafford agreed to this in principle. The
strike apparently was occasioned by Stafford's statement
that if the employees insisted on a union contract and
would not accept his offer he would remove the trucks back
to his Wisconsin base. The men communicated their
decision to strike to Stafford as he was leaving. He stated
that they had until Saturday to accept his terms or he would
remove the trucks.
A picket line was formed on August 5 and continued
thereafter for about a week.
On August 8, Saturday, the men assembled at the plant
and Stafford arrived in his car with drivers from his Portage
operation. Stafford ascertained from Huber that the men
were determined not to accept his offer without a union
contract and attempted to move the trucks. The men
caused a tandem trailer which was passing at that time to
park in front of the door to the garage so that the tractors
could not be taken out of the garage and the men also
parked their cars in front of the trailers so that the trailers
could not be removed. This impass continued for about an
hour until the local police were called and prevailed on the
4 There is no issue concerning the authenticity of the authorization
cards signed by the six drivers.
S The quotation is from the testimony of Modglin , whom I credit.
Stafford 's denial of this statement is discredited.
PLASTICS TRANSPORT INC. 57
men to move the tractor and their automobiles . Thereupon
the trucks were driven away . During this period of time, for
an hour or an hour and a half , Stafford sat in Harding's
automobile talking with Harding and employee Bacon
about the trucking industry in general and Stafford's
operation in particular . During the course of this conversa-
tion Stafford again reiterated that he would not sign a
contract with the Union for the Plastics operation but
would close it up first.
Stafford testified that the subject of closing the Water-
man terminal had been discussed between him and his wife
for a considerable period of time because Respondent
Plastics was not making enough money to warrant keeping
it open . He testified that when the figures for the year 1970
showed an alarming loss by Respondent Plastics he and his
wife determined to shut down the terminal , and that it was
as result of this determination that he took the action, on
August 8 , of removing the trucks and shut down
Respondent Plastics' operations on August 15. He testified
that his decision had nothing to do with the union
organization . Manager Huber testified that Grace Stafford
had on a few occasions in the past mentioned the possibility
of shutting down the terminal but that he was aware of no
plans having been made to do so prior to the demand for
recognition by Smith.
Conclusions
I conclude that all over- the-road truckdrivers located at
the Respondents ' Waterman , Illinois, terminal , excluding
salesmen , clerical employees , guards, professional employ-
ees and supervisors as defined in the Act , constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act and that at all times
since July 11, 1970, a majority of the employees in said unit
have designated the Charging Party as their exclusive
representative for purposes of collective bargaining with
respect to rates of pay , wages, hours of employment, and
other terms and conditions of employment.
I conclude that on or about August 3, 1970 , and at all
times since , the Union has requested and is requesting that
Respondents bargain collectively with it with respect to
rates of pay , wages , hours of employment and other terms
and conditions of employment as the exclusive collective-
bargaining representative of Respondents ' employees in
said unit . I further find that since August 5, 1970,
Respondents have refused to bargain collectively with the
Union and that on that date , August 5 , 1970, Respondents
by Jack Stafford attempted to bargain directly with
employees in the unit notwithstanding the Union's
representation of said employees.
In this regard Respondents contend that it was in fact
bargaining with the Union through Mr. Harding who was
designated as the Union 's spokesman . This defense will
avail Respondents nothing . In the first place Harding was
not the Union 's spokesman except for the purpose of
seeking recognition . In the second place all negotiating
done by Jack Stafford in the meeting of August 5, 1970, was
predicated on his position that he would not recognize the
Union but would shut the plant down rather than sign a
contract with the Union . This is not good -faith bargaining
within the meaning of the Act and such negotiation by
Respondents does not vitiate their duty to negotiate with
the Union on demand . I find further that by the cessation
of operations at the Waterman terminal, without negotiat-
ing with the Union, Respondents attempted to undermine
and destroy the Union 's majority status.
I find that Respondents violated Section 8(a)(1) of the
Act by informing their employees that they would not
bargain with the Union , that it would go out of business
before bargaining with the Union and that it would not sign
a contract with the Union. I find that Respondents violated
Section 8(a)(5) of the Act as well as Section 8 (a)(1) by
refusing to bargain with the Union , refusing to recognize
the Union and by attempting to bargain with the employees
in derogation of the Union 's authority from the employees
to represent them , all on August 5, 1970.
Poststrike Events
On August 7 Attorney Carmell addressed a letter to
Manager Huber at Waterman , Illinois, containing an
unconditional offer on behalf of each of the striking
employees to return to work and asking that Respondents
contact either Carmell or Business Agent Smith or Floyd at
their Elgin, Illinois, office.
Respondents contend that on August 9, 1970, Jack
Stafford authorized Attorney Rabmovitz to represent them
in the instant matter and that he attempted to contact the
union representatives without success on August 12 and 13.
He eventually talked to Attorney Sherman Carmell, who
represents the Charging Party, on August 13 at which time
he told Carmel ] that he had an appointment with the field
examiner of the National Labor Relations Board on August
17 and advised Carmell that he wanted to negotiate the
labor dispute between Respondents and the Union.
According to Attorney Rabinovitz , Carmell informed him
that he would have to negotiate with the Union 's business
agent with regard to a contract and that he would have to
reinstate the employees with backpay.
Attorney Carmell testified that he received Attorney
Rabinovitz ' call on March 13, that Rabinovitz wanted to
know the Union 's position with reference to settling the
unfair labor practice charges and that at no time stated that
the Employer was willing to recognize and bargain with the
Union . According to Carmell , Rabinovitz agreed to discuss
the matter with his client and after meeting with the
representatives of the General Counsel would call back to
discuss the matter further . He never called back.
The Respondents contend that at the close of the
conversation between Attorneys Rabinovitz and Carmell,
Attorney Carmell agreed to have his client contact
Attorney Rabinovitz to enter into negotiations.
The Charging Party on the other hand contends that
Attorney Rabinovitz stated that he had not completed his
investigation and would be in contact with the Charging
Party when the investigation was complete . I credit Mr.
Carmell 's testimony in this regard . I am convinced that Mr.
Rabinovitz' recollection is at fault . Under examination by
the General Counsel Mr. Rabinovitz testified that a letter
addressed to him on August 24, 1970, by Field Examiner
Ferree contained an accurate account of a telephone
conversation between Attorney Rabinovitz and Field
Examiner Ferree on August 17. In this letter Ferree quotes
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rabinovitz as stating that no written reply to Carmell's
letter had been sent as of August 17 and that Attorney
Rabinovitz "intended to contact Business Agent Jim Smith
about it." In a return letter dated August 27 to Ferree from
Attorney Rabinovitz he stated that he had to meet with his
client before he could state his position and added "I feel
that I need this one meeting before I call Business Agent
Smith, who I indicated I would call, but will definitely talk
to you after my meeting with the Staffords." I am
convinced by the exchange of correspondence which
Attorney Rabinovitz confirmed on the witness stand that in
fact his conversation with Attorney Carmell resulted in his
agreeing to consult with his client and contact the union
agents thereafter.
Although Attorney Rabinovitz stated in his affidavit that
he had been authorized by his client to offer reinstatement
to all employees, the record is clear that he has never done
so. Carmell made an unconditional offer on behalf of each
of the striking employees on August 7 which was
admittedly received. Harding, Bacon and Elkin, three of
the truckdrivers, went to Manager Huber on August 10 and
offered to return to work on Stafford's terms without a
contract. The only answer they received was that Stafford
had placed the matter in his attorney's hands. Admittedly
no employee has ever been offered reinstatement.
Respondents contend that under the Darlington rules
they had a right to close their entire business operation for
any reason or no reason and accordingly may not be
charged with a violation herein. However this case must be
distinguished from Darlington on its facts. I have found
above that Respondent Stafford and Respondent Plastics
are the same company. The Waterman terminal was
operated as no more than one of the terminals of Stafford
and about half of its business consisted of interstate
shipments under Stafford's authorization. Respondents
have not, as in Darlington, gone out of the business engaged
in at the Waterman terminal. They have ceased their
intrastate operations but are continuing their interstate
operations using their Portage, Wisconsin, drivers operat-
ing out of the Portage terminal.?
In any event as the General Counsel points out
Respondents by the closure of the Waterman plant must
have succeeded in "chilling" unionism among the Portage
drivers it brought down to cross the picket line and remove
the equipment on Saturday, August 8.
Respondents before closing the Waterman terminal had a
duty to bargain with the Union about the closure of the
terminal, with regard to the effects on their drivers of the
closure, even under the Darlington decision. Under the
circumstances of this case, where as I have found
Respondents closed the terminal in retaliation for the union
activities of their employees, Respondents had a duty to
offer reinstatement to their employees who were unfair
labor practice strikers and who had made an unconditional
offer to return. I find that by their failure to do so
Respondents have additionally violated Section 8(a)(3) and
(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 Respondents' opera-
tions described in section I, above, have a close, intimate,
and substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
Upon the foregoing findings of fact and upon the entire
record I make the following:
CONCLUSIONS OF LAW
1. At all times material herein Respondents have
engaged in commerce as a single employer within the
meaning of Section 2(6) and (7) of the Act.
2. At all times material herein the Charging Party was a
labor organization within the meaning of the Act.
3. All over-the-road truckdrivers located at Respon-
dents' Waterman, Illinois , terminal , excluding salesmen,
clerical employees, guards, professional employees and
supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within
the meaning of Section 9(b) of the Act, and at all times
since July 11, 1970, a majority of the employees in said unit
have designated the Charging Party as their exclusive
representative for purposes of collective bargaining with
respect to rates of pay, wages , hours of employment and
other terms and conditions of employment.
4. At all times since August 3, 1970, the Charging Party
has requested and is requesting that Respondents bargain
collectively with it with respect to rates of pay, wages, hours
of employment and other terms and conditions of
employment as the exclusive collective-bargaining repre-
sentative of Respondents' employees in the unit set forth
above.
5. Since August 5, 1970, Respondents have failed and
refused to bargain collectively in good faith with the Union
by the various acts and conduct set forth above.
6. By failing and refusing to reinstate their employees
who are unfair labor practice strikers and who have made
an unconditional offer to return to work, Respondents have
discriminated against their employees in violation of
Section 8(a)(3) of the Act.
7. By the acts and conduct set forth above and by
threatening to close the plant and discharge employees
because of their union activity, Respondents have inter-
fered with, coerced and restrained their employees within
the meaning of Section 8(a)(1) of the Act.
THE REMEDY
Having found that Respondents have engaged in unfair
labor practices violative of Section 8(a)(5), (3) and (1) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
The General Counsel contends that under the circum-
6 Textile Workers v Darlington Manufacturing Co, 380 U S 263 ( 1965) Respondents are serving their intrastate customers by interstate shipments
7 The record does not disclose the extent, if any, to which the from suppliers in Wisconsin or elsewhere
PLASTICS TRANSPORT INC.
stances of this case Respondents should be ordered to
reopen their Waterman terminal and reinstate the employ-
ees therein . The Respondents contend on the other hand
that the decision to close the plant was economically
motivated. In circumstances where a plant is closed for
economic reasons and the violation found was the failure of
the employer to bargain with the union concerning the
closing, the Board has almost uniformly declined to order
the reopening of the plant. However in the instant case the
circumstances compel me to recommend the reopening of
the plant as the General Counsel asks.
I have found above that Respondents have not, as in
Darlington, ceased to perform the services formerly
performed from their Waterman plant. At least half of the
work from the Waterman terminal was the movement of
interstate shipments under Stafford's authority. Only the
intrastate shipments directly attributable to the Plastics
authority have been discontinued. Respondents have not
relinquished the terminal building which they rented in
Waterman but continue to lease under Stafford's name.
Respondents had six employees at the time they discrimina-
torily shut down the Waterman plant; presumably at least
three would be required to continue its interstate shipping
now being serviced out of their Portage terminal. This is
consistent with the testimony of Huber who stated that for
the months that he continued in Respondents' employ at
Waterman there was enough work for three drivers.
Respondents' alleged economic motivation appears to be
wholly specious. As its accountant testified, two accounting
systems were operated, one placing most of the expenses on
Respondent Stafford wherefor Respondent Plastics showed
a net profit annually, and the second placing most of the
expenses on Respondent Plastics wherefor it showed a net
operating loss. The accountant testified that neither
accounting system gives a true picture of the profit and loss
situation at the Waterman terminal and he was not asked to
develop a system which would do so or to compute the
reasonable expectation of profit or loss under such a
system. Respondents made much of the fact that Jack
Stafford was not educationally qualified to make such a
computation and Grace Stafford, his wife, who handles
Respondents' finances was not called as a witness. It is
clear from the testimony of Jack Stafford that no decision
to shut down the terminal had taken place prior to the
meeting on August 5 at which he failed to coerce the
employees to drop the Union. Clearly the decision to shut
down resulted from his failure in that regard.
The reopening of the Waterman terminal would entail no
additional financial outlay other than the institution of
some form of supervision." The resumption of operations
from the Waterman terminal would serve to restore the
status quo ante to the end that the Union would be able to
" Huber is no longer employed by Respondents
9 Fibreboard Paper Products Corp v N L R B, 379 U S 203, 216, cf
Royal Plating and Polishing Co. 160 NLRB 990
10 1 have not found that the removal of the trucks under the
circumstances herein violated the Act Rather I have found that the
shutdown of the Waterman terminal was a violation The removal of the
trucks under the circumstances of the employees' strike activity was not a
significant step by Respondents in my opinion The trucks at all times
belonged to Stafford and were useable and were used in its operations
59
engage in meaningful bargaining without undo disturbance
of the present economic posture of Respondent .9
Respondents contend that the only appropriate means by
which the alleged question concerning representation could
be resolved is by an election conducted by the Board. I
have found above that all employees of Respondents were
members of the Union at the time it made its demand and
that Respondents engaged in direct and massive unfair
labor practices to dissipate the majority so attained by the
Union. The record also reveals that after Respondents'
removal of their trucks 10 at least three of the six employees
came to Manager Huber and offered to return to work
under Stafford's conditions, i.e., without a union contract.
This direct evidence renders unnecessary any presumptions
or inferences such as have led some courts to require
additional consideration by the Board whether Respon-
dents' acts may be considered to have rendered an election
impossible. Here the undermining of the Union was
demonstrably effective. Accordingly the appropriate reme-
dy must necessarily be an order that Respondents bargain
with the Union on demand in the unit set forth above.
Finally, with regard to the unfair labor practice strikers
who sought reinstatement with Respondents, an effective
remedy for Respondents' failure to reinstate them should
include backpay for the period of time between the receipt
by Respondents on August 10 of their offer and such time
as they are reinstated or have declined reinstatement.
Upon the basis of the foregoing findings of fact, and
conclusions of law and upon the entire record in the case, I
hereby issue the following recommended: Ii
ORDER
Respondents Plastics Transport Inc. and Stafford
Trucking Inc., their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union as the
exclusive bargaining representative of Respondents' em-
ployees in the appropriate unit by failing and refusing to
bargain on demand with said Union, by attempting to
bargain unilaterally with the employees to the detriment of
the Union and by unilaterally shutting down their terminal
thereby terminating the employment of the unit employees
without prior bargaining with the Union or any other labor
organization they may select as their representative.
(b) Discouraging membership in the Union by failing and
refusing to grant reinstatement upon the unconditional
offer of unfair labor practice strikers therefor or in any
other manner discriminating against them with respect to
their hire or tenure of employment or any other term or
condition of employment.
(c) Interfering with, restraining or coercing their employ-
ees in the exercise of their statutory rights by threatening to
There is no showing that Stafford has disposed of them or that they are not
available to be returned to the Waterman terminal to the extent that they
are needed upon its reopening
ii In the event no exceptions are filed as provided by Section 10246 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided in
Section 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
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shut down the terminal in the event they insisted on
representation by the Union.
(d) In any like or related manner interfering with,
restraining or coercing their employees in the right to self-
organization, to form their own labor organizations, to join
or assist the Union or any other labor organization, to
bargain collectively with representatives of their own
choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities.
2. Take the following affirmative action designed to
effectuate the policies of the Act.
(a) Resume operations from the Waterman, Illinois,
terminal and offer reinstatement to their striking employees
who have made an unconditional offer of reinstatement.
(b) Upon request bargain collectively with the Union as
the exclusive representative of all employees in the unit set
forth above and if an agreement is reached, upon request,
sign a contract embodying the same.
(c) Notify immediately the above-mentioned individuals,
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.
(d) Post at their terminal in Waterman, Illinois, and at
their terminal in Portage, Wisconsin,12 copies of the
attached notice marked "Appendix " 13 Copies of said
notice, on forms provided by the Regional Director for
Subregion 38 (Peoria, Illinois), after being duly signed by
Respondents' representative, shall be posted by Respon-
dents immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondents to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Subregion 38 in
writing, within 20 days from the date of the receipt of this
Decision, what steps the Respondents have taken to comply
herewith.14
12 As I have found above Respondents ' closing of the Waterman
terminal necessarily came to the attention of the Portage drivers who were
required to remove the trucks from behind the Union's picket line in
Waterman , Illinois Accordingly in order to dissipate the chilling effect of
this action the posting of notices in Portage is required
13 In the event that the Board 's Order is enforced by a Judgment of a
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 "
14 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 Subregion 38, in writing , within 20 days
from the date of this Order , what steps the Respondents have taken to
comply herewith "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a Trial in which all sides had a chance to give
evidence the National Labor Relations Board has found
that we violated the National Labor Relations Act and has
ordered us to post this notice. The Act gives all employees
these rights:
To engage in self-organization
To form, join or help unions
To bargain collectively through representatives of
their own choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things
WE WILL NOT do anything that interferes with,
restrains , or coerces employees with respect to these
rights.
WE WILL NOT threaten our employees with closing
the terminal if they insist on representation by Local
330, General Chauffeurs, Salesdrivers and Helpers,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization.
WE WILL NOT refuse to bargain with the above-
named labor organization or any other labor organiza-
tion as a representative of our employees in the unit
consisting of all truckdrivers at our Waterman, Illinois,
plant.
WE WILL NOT discriminate against our employees by
refusing to reinstate unfair labor practice strikers who
have made an unconditional offer to return to work.
WE WILL bargain collectively with the above-named
labor organization or any other labor organization
representing our employees in a unit consisting of all
truckdrivers at the Waterman terminal with regard to
wages, hours, and conditions of employment or any
other terms or conditions of employment and, in the
event agreement is reached , we will , upon its request,
sign a written agreement containing the terms and
conditions thereof.
WE WILL reinstate the employees of the Waterman
terminal who were unfair labor practice strikers and
have made unconditional offers of reinstatement and
WE WILL make them whole for any pay lost by them as a
result of our failure to reinstate them when they first
requested reinstatement.
PLASTICS TRANSPORT INC.
AND STAFFORD TRUCKING
INC.
(Employers)
Dated By
(Representative ) (Title)
We will notify immediately the above-mentioned individu-
als, if presently serving in the Armed Forces of the United
PLASTICS TRANSPORT INC. 61
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 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office,
Savings Center Tower, 10th Floor, 411 Hamilton Boule-
vard, Peoria , Illinois 61602, Telephone 309-673-9061,
Extension 282.