Thompson Transport Co., Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1967

165 N.L.R.B. 746 (N.L.R.B. 1967)

746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thompson Transport Company, Inc. and
Truck Drivers and Helpers Union Local No.
696, affiliated with International Brother-
hood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America . Cases 17-CA-
2881 and 17-CA-2934
June 21, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On February 14, 1967, Trial Examiner W. Edwin
Youngblood issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, Respondent filed exceptions to the Trial
Examiner's Decision with a supporting brief and
General Counsel filed cross-exceptions with his
supporting brief.
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, only to the extent consistent
herewith:
The Trial Examiner found, and we agree, for the
reasons set forth in the Trial Examiner's Decision,
that Respondent interfered with, restrained, and
coerced its employees in violation of Section 8(a)(1)
by making statements in November and early
December 1965, as to a possible closure of the
Phillipsburg terminal in the event of union
organization, and violated Section 8(a)(5) and (1) of
the Act, following certification of the Union as
exclusive bargaining representative, by closing the
Phillipsburg terminal on or about March 31, 1966,
without prior notice to and bargaining with the Union
concerning the decision to close the terminal and the
effects of the closing upon the employees. However,
as we do not agree that a preponderance of the
evidence supports the Trial Examiner's further
finding that the Phillipsburg terminal was closed out
of a desire to avoid bargaining with the Union, we do
not adopt his conclusion that employees at that
location were discharged in violation of Section
8(a)(3) and (1) of the Act.
In finding the Phillipsburg closure to have been
discriminatorily motivated, the Trial Examiner
concluded that the economic considerations
advanced by the Respondent as giving rise to its
decision to close that terminal were unconvincing,
pretextual in nature, and insufficient to overcome
the General Counsel's prima facie case. We
disagree. Although the timing of the closure in
relation to the Union's certification, and the prior
warnings to employees of a possible closing in the
event they selected a Union created a suspicion of
unlawful motivation, we are here confronted with a
record which plainly establishes the uneconomic
nature of the Phillipsburg operation, and also shows
that further losses could be fairly anticipated for
1966 should Respondent continue to maintain its
facilities at that location. Thus, the record reveals
that Respondent's president, Thompson, made his
decision to close the terminal on March 22, 1966, at
which time he was fully aware that Respondent was
confronted with a substantial projected loss in
business for 1966 viewed in light of an operating loss
at Phillipsburg for 1965. In this regard, Respondent,
on November 16, 1965, became cognizant that a 9-
million-gallon haul of asphalt from the Consumer
Cooperative Refinery at Phillipsburg for the
Interstate Highway 70 job, to be delivered during the
summer of 1966, would not be carried by its trucks,
which normally hauled 16-18 million gallons of the
total asphalt production of 20 million gallons
produced at the refinery. The cartage of asphalt was
Respondent's greatest source of business for
Phillipsburg based trucks.
Thereafter, in January 1966, Respondent also
became aware that the 1965-66 State highway
maintenance contract for northwest Kansas had
been lost by the Consumer Cooperative Refinery,
which had previously supplied about 3 million
gallons of asphalt using Respondent's Phillipsburg
based trucks. Respondent was contacted by the
successful bidders of this contract and agreed to
continue hauling asphalt for State highway
maintenance to northwest Kansas, but it would now
be supplied from refineries much closer to
Respondent's McPherson terminal, located in east-
central Kansas. Furthermore, although Respondent
had hauled casinghead with Phillipsburg based
trucks for the Service Petroleum Company to the
refinery in Phillipsburg, that haul was curtailed in
the summer of 1965 due to a fire, and then
completely eliminated in January 1966 when Service
Petroleum lost the contract. While the foregoing was
known to Respondent in advance of the closure, it
was not until after Thompson returned from his
month-long European trip in early March 1966 that
he was informed by General Manager Sanders, that
Respondent's financial records for McPherson and
Phillipsburg revealed an operating loss of about
165 NLRB No. 96
THOMPSON TRANSPORT CO. 747
$33,000 at Phillipsburg for 1965.1 The facts also
show that the trucks and other equipment at
Phillipsburg were obsolete and inefficient.
Against this background, unlike the Trial
Examiner, we are unwilling to rely upon the manner
and timing of the announcement to close the
terminal as determinative of an unlawful motivation
herein. Nor are we willing to find that factor, coupled
with the statements of Terminal Manager N. Wise in
November and early December 1965, made 3-4
months prior to the decision to close, as a sufficient
basis upon which to conclude that Respondent was
unlawfully motivated in making the decision to
close. On the contrary, the series of events
culminating in the announcement of the closing are
consistent with a lawful economic motive based
upon the dim prospect for business in the year 1966
out of the Phillipsburg terminal caused by (1) the
anticipated loss of asphalt business amounting to
about 12 million gallons or 75 percent of its normal
asphalt business, (2) the actual loss of casinghead
business, and (3) the report in March that the
Phillipsburg operation had suffered a substantial
financial loss during the year 1965. As Thompson did
not become aware of a portion of the lost hauling
volume until January 1966, and did not receive the
Phillipsburg financial statement until March, his
decision to close the terminal on March 22, 1966,
about 2 weeks after his return from a month-long trip
to Europe, reflects a chronology indicative of a bona
fide economic closing. We conclude that the General
Counsel has failed to prove by a preponderance of
the evidence that the Respondent's decision to close
the Phillipsburg operation was motivated in whole or
in part by union animus or the desire to avoid
bargaining with the Union rather than by economic
considerations. Accordingly, we find that the
Respondent did not violate Section 8(a)(3) and (1) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices, we shall order that it
cease and desist therefrom, and from like or related
conduct, and that it take certain affirmative action to
effectuate the policies of the Act.
We have found in agreement with the Trial
Examiner that Respondent violated Section 8(a)(5)
and (1) by its failure to notify and bargain about its
decision to close the Phillipsburg terminal and the
effects of that decision on its employees. In
fashioning our affirmative order, we are mindful that
the remedy should "be adapted to the situation that
calls for redress,"2 with a view toward "restoring the
situation as nearly as possible to that which would
have obtained but for [ the unfair labor practice]." 3
In view of the nature of the violation herein, an
order restoring the status quo ante, would require
Respondent to recreate the situation existing prior to
the closedown of the Phillipsburg terminal by
reopening the discontinued terminal. However, we
believe that our remedy should also be tempered by
practical considerations, which if applied to the
present situation dictate against restoration of the
Phillipsburg terminal as being impractical and
nonessential to the formulation of a meaningful
remedy, since the terminal has been closed for a
considerable period of time and the trucks and other
equipment have been shipped some distance away.4
Also, we have found that Respondent's decision to
close the Phillipsburg terminal was motivated solely
by economic considerations.5 Accordingly, unlike
the Trial Examiner, we shall not require
reestablishment. Effectuation of the policies of the
Act does require, however, that Respondent be
required to establish a preferential hiring list of all
employees in the appropriate unit following the
system of seniority, if any, customarily applied to the
conduct of Respondent's business, and, if operations
are ever resumed at Phillipsburg or anywhere in the
Phillipsburg area, at that time offer reinstatement to
those employees, and bargain with the Teamsters,
upon request.6 Our order will so provide. Of course,
if Respondent decides to resume its Phillipsburg
operation, it shall offer all those in the appropriate
unit reinstatement to their former or substantially
equivalent positions there.
Under the present set of circumstances, however,
a bargaining order alone cannot suffice as an
adequate remedy for the unfair labor practices
committed. It is evident that had Respondent
adhered to its bargaining obligation, the employees
at Phillipsburg would not have been terminated
without the protection of collective bargaining. As a
result of bargaining, the employees quite possibly
would not have been terminated at all . In any event,
it must be presumed, as in Winn-Dixie,7 that the
employees would have retained their jobs at least
until Respondent had fulfilled its bargaining
obligation by negotiating to a bona fide impasse.
Particularly is this true since Respondent owned the
Phillipsburg property and could have remained on
the premises for as long as it desired beyond the
closing date, and further there is nothing in the
instant record to suggest that Respondent
I We do not deem the variance between Respondent's 1965
Federal Income Tax return and its Statement of Income and
Expense for 1965, as significant, since both documents reveal a
substantial financial loss for the year 1965.
2 N L R B v Mackay Radio & Telegraph Co., 304 U S 333,
348
9 Phelps Dodge Corp. v N.L R B., 313 U S. 177,194.
' Ozark Trailers, Incorporated, 161 NLRB 561
5 Ozark Traders, Incorporated, supra
s McGregor Printing Corporation, 163 NLRB 938.
' Wtnn-Dixie Stores, Inc., 147 NLRB 788, affd. in pertinent part
361 F 2d 512 (C A 5)
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
permanently abandoned the Phillipsburg operation,"
or that Respondent would not resume operations
there if it would acquire adequate hauling contracts.
Thus, under these circumstances, it is both
reasonable and necessary to require that "the
employees whose statutory rights were invaded by
reason of Respondent's unlawful unilateral action,
and who may have suffered losses in consequence
thereof, be reimbursed for such losses until such
time as the Respondent remedies its violation by
doing what it should have done in the first place."9
Accordingly, we shall further order that
Respondent shall make the discharged employees
whole for any loss of pay they may have suffered as a
means of remedying the 8(a)(5) violations involved
herein.10 The liability for such backpay shall cease
on July 12, 1966, the date on which Respondent
fulfilled its duty to bargain as to the effects of its
decision to suspend operations from the Phillipsburg
facility. Backpay shall be based upon the earnings
which the terminated employees would normally
have received during the applicable period less any
net interim earnings, and shall be computed on a
quarterly basis in the manner set forth in F.W.
Woolworth Company, 90 NLRB 289; N.L.R.B. v.
Seven-Up Bottling Company of Miami, Inc., 344 U.S.
344; with interest thereon. Isis Plumbing & Heating
Co., 138 NLRB 716.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Thompson Transport Company, Inc., McPherson,
Kansas, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
with Truck Drivers and Helpers Union Local No.
696, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive bargaining
representative of all drivers, mechanics, and
servicemen at Respondent's Phillipsburg, Kansas,
terminal, excluding all office clerical employees and
professional employees, guards, and supervisors as
defined in the Act, by failing or refusing to bargain
with the above-named labor organization with regard
to the decision to close the Phillipsburg terminal,
and the effects such discontinuance of operations
had upon the employees in the appropriate unit.
(b) Threatening employees that it will close its
Phillipsburg terminal if they select the Union as
their collective-bargaining representative.
(c) In any like or related manner interfering with,
restraining, or coercing the employees in the
appropriate unit in the exercise of their right to self-
organization, to form, join, or assist the above-named
Union, or any other union, to bargain collectively
through representatives of their own choosing, and
to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid
or protection or to refrain from such activities.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Make Ronald Wise, Robert Ringle, and Willis
Hodge whole for any loss of pay suffered by them in
the manner set forth in the section herein of the
Board's Decision entitled "The Remedy."
(b) Establish a preferential hiring list of all
employees in the appropriate unit following the
system of seniority, if any, customarily applied to the
conduct of Respondent's business, and, if operations
are resumed at Phillipsburg or anywhere in the
Phillipsburg area, at that time offer reinstatement to
those employees to their former or substantially
equivalent positions and bargain collectively with
the above-named labor organization, upon request.
(c) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay due under the terms of this Order.
(d) Mail an exact copy of the attached notice
marked "Appendix" to Truck Drivers and Helpers
Union Local No. 696, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, and to all employees in
the appropriate unit who were employed by
Respondent at its Phillipsburg terminal immediately
prior to March 31, 1966.11 Copies of said notice, to
be furnished by the Regional Director for Region 17,
shall, after being signed by Respondent's duly
authorized representative, be mailed immediately
upon receipt thereof, as herein directed.
(e) Notify the Regional Director for Region 17, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the
complaint be, and it hereby is, dismissed, insofar as
it alleges violations not found herein.
B We note that despite the Phillipsburg closing, this case does
not involve a complete or partial permanent abandonment of the
business operations formerly conducted through that facility
Respondent continues to haul products from the Phillipsburg
area, through the use of other facilities Thus, Respondent hauls
gasoline and oil from the Phillipsburg refinery to its customers in
northwest Kansas with the aid of a leased tractor and driver, and
when necessary with its trucks based in McPherson
Furthermore , after the Phillipsburg closedown , Respondent
resumed the hauling of casinghead to the Phillipsburg refinery
from a new source in southwest Kansas, again with the use of its
McPherson based trucks
0 Winn -Dixie Stores , Inc., supra
10 Royal Plating and Polishing Co , Inc, 148 NLRB 545, and
cases cited therein at fn 7
" In the event that this Order is enforced by a decree of a
United States Court of Appeals, there shall be substituted for the
words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order "
THOMPSON TRANSPORT CO. 749
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended, we hereby notify you that:
After a trial in which both sides had the
opportunity to present their evidence, the National
Labor Relations Board has found that we violated
the law and has ordered us to mail this notice and to
keep our word about what we say in this notice.
WE WILL NOT refuse to bargain collectively in
good faith with Truck Drivers and Helpers
Union Local No. 696, affiliated with the
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining
representative of all employees in the
appropriate unit by failing or refusing to bargain
with the above-named labor organization with
regard to the decision to close the Phillipsburg
terminal, and the effects such discontinuance of
operations had upon the employees in the
appropriate unit. The appropriate unit is:
All drivers, mechanics, and servicemen
at the Phillipsburg, Kansas, terminal of
Thompson Transport Company, Inc.,
excluding office clerical employees, and
professional employees, guards, and
supervisors, as defined in the Act.
WE WILL NOT threaten our employees with
closing the Phillipsburg terminal if they select
the Union as their collective-bargaining
representative or threaten other reprisals for
engaging in union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce the employees
in the appropriate unit in the exercise of their
right to self-organization , to form , join , or assist
unions to bargain collectively through
representatives of their own choosing, and to
engage in concerted activities for the purposes
of collective bargaining or other mutual aid or
protection, or to refrain from such activities.
WE WILL establish a preferential hiring list of
all employees in the appropriate unit following
the system of seniority, if any, customarily
applied to the conduct of our business, and, if
operations are resumed at Phillipsburg or
anywhere in the Phillipsburg area, at that time
offer reinstatement to those employees to their
former or substantially equivalent positions and
bargain collectively with the above-named labor
organization , upon request.
WE WILL make Ronald Wise, Robert Ringle,
and Willis Hodge whole for any loss of pay
suffered by them as a result of failure and
refusal to bargain with the aforenamed Union
concerning the decision to close the
Phillipsburg terminal, and the effects such
discontinuance of operations had upon the
employees in the appropriate unit.
THOMPSON TRANSPORT
COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 610 Federal Building, 601 East 12th Street,
Kansas City, Missouri 64106, Telephone 374-5282.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
W. EDWIN YOUNGBLOOD , Trial Examiner : This case
was heard at Phillipsburg , Kansas, on July 19, 20, and 21,
1966 ,1 pursuant to a complaint issued June 17 upon a
charge filed March 23 in Case 17-CA-2881, and a
complaint issued July 6 upon a charge filed May 27 and an
amended charge filed July 6 in Case 17-CA-2934. The
complaint in Case 17-CA-2881 alleges that Respondent
has violated Section 8 (a)(5) of the Act by: (a) refusing to
bargain collectively in good faith with the Union since on
or about March 1 and (b) by discharging the drivers,
mechanics , and servicemen employed at its Phillipsburg,
Kansas, terminal and by closing its Phillipsburg , Kansas,
terminal and transferring those operations to its
McPherson , Kansas, terminal without notice to or
bargaining with the Union and thereafter continuing to
refuse to bargain about said operational change. Further,
this complaint alleges that Respondent by the foregoing
conduct and by threatening its employees with closing the
Phillipsburg terminal if the terminal was unionized has
violated Section 8(a)(1) of the Act. The complaint in Case
17-CA-2934 alleges that Respondent discriminatorily
discharged Willis Hodge on or about December 1, 1965,
and Ronald Wise, Robert Ringle , and Dorothy Peasley on
or about March 31, in violation of Section 8(a)(1) and (3) of
the Act . Respondent denies the commission of any unfair
labor practices. Briefs have been received from the
General Counsel and the Respondent.
Upon the entire record , including my evaluation of the
witnesses based upon the evidence and my observation of
their demeanor , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Until about March 31, Respondent, a Kansas
corporation and common carrier of petroleum products,
operated terminals at McPherson , Kansas, and
Phillipsburg, Kansas. Respondent annually performs
I All dates herein are in 1966 unless otherwise indicated
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
services valued in excess of $50,000 for other Kansas
enterprises which in turn annually purchase goods and
materials valued in excess of $50,000 directly from outside
the State of Kansas . I find that Respondent is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Respondent's Animus Toward the Union
1. At McPherson
The Union attempted to organize the employees at
Respondent's McPherson, Kansas, terminal in 1963. At
that time, Respondent opposed the efforts of the Union to
organize, in fact, Darrell Thompson, president of
Respondent, threatened employees with reprisals in the
event they selected the Union as their collective-
bargaining representative-these threats being made on
April 28 and May 12, 1963. In addition, in April, May, or
June, 1963, Thompson and other agents of Respondent
interrogated employees concerning their interest in or
activities on behalf of the Union. Finally, in his efforts to
defeat the Union, Thompson in late April and May 1963
granted benefits and announced the granting of benefits to
employees in order to discourage their interest in or
activity on behalf of the Union. The Union commenced an
effort to organize the employees at Phillipsburg in the fall
of 1965.2 Thompson, admitted in this proceeding that
Respondent's position continued as it was in 1963, that is,
in opposition to the Union."
2. At Phillipsburg
In March or April of 1964 Willis Hodge approached
Norman Wise, Phillipsburg terminal manager, with the
request that he start driving a truck for Respondent. Wise
told Hodge that he "could start driving if [he] would
promise not to start a union." Hodge replied that he would
not "start a union but if the other boys tried to get a union
in [he] would vote for it." Wise repeated that if Hodge
promised not to start a union that he "could go back to
work." As found above, the Union' s organizing drive at
Respondent's Phillipsburg terminal commenced in the
2 This finding is based on the credited and undemed testimony
of Dorothy Peasley and J J. Glenn, assistant business agent for the
Union
3 The foregoing, except as otherwise indicated, is based on the
credited testimony of Thompson and certain allegations in the
complaint issued in Thompson Transport, Inc , 17-CA-2186,
which allegations are admitted in a stipulation entered into by
Respondent, the Union and the General Counsel providing for the
entry of a Decision and Order by the Board, which is in evidence
in this proceeding as General Counsel 's Exhibit 17 I have taken
official notice of the complaint and stipulation in 17-CA-2186 in
the interest of clarifying the Board's Decision and Order
" The foregoing, except as otherwise indicated, is based on the
credited testimony of Hodge Wise disagreed as to the date of this
conversation but did admit that he asked Hodge if he put Hodge
back on would he not try to get the Union started and that Hodge
said that he would not Wise denied anything else being said.
Wise denied having any conversation at all with Hodge at
Martha's Cafe Wise's denials were unconvincing.
first part of November 1965. In the latter part of November
or the first part of December 1965, Hodge again had a
conversation with Wise about the Union in a place called
"Martha's Cafe." Wise told Hodge that he thought that if
the Union was voted in that they might close the terminal
down.4
About November 7, 1965, Mrs. Dorothy Peasley, who
was employed as an office employee and relief dispatcher
by Respondent, and who worked under Norman Wise,
terminal manager, had a conversation with Wise in the
office. Wise told Peasley that "he was afraid that if the
terminal went union , it would cause quite a turmoil and
there was a possibility, he was afraid the terminal might
close because of it." Wise repeated this statement two or
three times during the month of November. This was all
that Wise said."
Wise said to Peasley one day in early December 1965,
"You should know what is going on among the drivers and
why won't you tell me?" Peasley replied that she did not
know what was going on among the drivers.6
The General Counsel contends that Wise's statements
to Peasley and Hodge that if the Union were voted in
Respondent might close the terminal violated Section
8(a)(1) of the Act. The complaint alleges these statements
occurred on December 29, 1965, and the evidence
establishes they were made in November and in early
December 1965. I must reject the Respondent's contention
that the variance between the dates alleged in the
complaint and the dates established by the evidence is
fatal to this allegation of the complaint.7 Moreover, I
likewise must reject Respondent's contention that the
statement to Hodge was ambiguous because Wise used
the word "they." It is clear in context that Wise was
referring to action by the Company such as closing the
terminal . Finally, I must reject Respondent's contention
that Wise's statements to Peasley were merely predictions
and not coercive; it is clear the statements referred to the
fact that Thompson might close the terminal if it "went
union " and thus were clearly coercive. Accordingly, I find
that Respondent violated Section 8(a)(1) by the foregoing
conduct.
B. The Representation Proceeding
In Thompson Transport Company, Inc., Case
17-RC-4912,6 the Regional Director issued a Decision and
Direction of Election on December 9, 1965, finding a unit
appropriate for collective bargaining purposes within the
meaning of Section 9(b) of the Act consisting of: "All
' Wise admitted making the statements attributed to him by
Peasley However, Wise further testified in regard to his
discussion of union affairs with Peasley that he said that if the
Union got in and there was a demand for higher wages he was
"scared" that Thompson would close the Phillipsburg terminal
Wise also testified that he told Peasley that he had heard several
times before that the terminal was losing money and "they were
on the verge of shutting down anyway on account of losing
money " I do not believe Wise made these additional statements
As indicated above, his testimony was unconvincing Accordingly,
I have credited the testimony of Peasley as set forth above which
was persuasively given
6 The foregoing is based on the credited testimony of Peasley
Wise denied having such a conversation. As stated above, his
denials were not persuasive
r Haynes Stellate Company, Division of Union Carbide
Corporation, 136 NLRB 95,98
e At the request of the General Counsel, I have taken official
notice of this representation proceeding
THOMPSON TRANSPORT CO.
drivers, mechanics and servicemen at Respondent's
Phillipsburg, Kansas, terminal excluding office clerical
employees and professional employees, guards and
supervisors as defined in the Act." The Regional Director
specifically rejected the Employer's contention that leased
drivers were not employees but individual contractors and
included in the unit the leased driver stationed at
Phillipsburg. An election was conducted on December 29,
1965, at which time two votes were cast for the Union and
two votes were cast against the Union. There were five
challenged ballots. On January 28, the Acting Regional
Director issued a Supplemental Decision and Order in
which he sustained the challenges to four ballots. The
remaining ballot was that of Willis Hodge, the leased
driver referred to in the Regional Director's Decision of
December 9, 1965. Hodge's ballot was challenged by the
Board agent pursuant to the Board's telegraphic order of
December 28, 1965, denying the Employer's request for
review of the Decision and Direction of Election in all
other respects. In the Supplemental Decision the Acting
Regional Director again found that Hodge was not an
independent contractor and found that his status was that
of an employee. In so doing, the Acting Regional Director
considered a letter to Hodge dated December 1, 1965,
from Norman Wise, terminal manager at Phillipsburg, and
the Employer's assertion that Hodge was terminated on
November 16, 1965. Further the Acting Regional Director
found that Hodge's status was that of an employee who
had a reasonable expectancy of continued employment.
Therefore the Acting Regional Director overruled the
challenge to Hodge's ballot and directed that it be opened
and counted. A revised tally of ballots was issued about
January 28 reflecting that three votes had been cast for the
Union and two against the Union. On February 23, the
Regional Director issued a certification of representatives
certifying that the Union was the exclusive bargaining
representative of certain employees at Respondent's
Phillipsburg, Kansas, terminal. At the hearing in this
proceeding the Respondent sought to litigate the status of
Hodge; once again contending that Hodge had been
terminated on November 16, 1965." The General Counsel
objected to this on the basis that the Regional Director had
decided this question in the representation proceeding and
that Respondent therefore was precluded from relitigating
the point in this proceeding. I sustained the General
Counsel's objection on the basis of the Board's well-
established policy not to relitigate in an unfair labor
practice proceeding such as this, issues which were or
could have been litigated in a prior related representation
proceeding absent newly discovered or previously
unavailable evidence. I adhere to the ruling made at the
hearing. It seems to me that it is implicit in the Decision of
the Regional Director that he found that Hodge was not
terminated or discharged on December 1, 1965. Consistent
with the foregoing, I must, as Respondent argues in its
brief, reject the General Counsel's contention based on
Respondent's letter of December 1, 1965, that Hodge was
discriminatorily discharged on that date.
From the foregoing, it is clear, and I find, that the Union
was the certified collective-bargaining representative of
the employees of Respondent in the appropriate unit set
forth above, and that Respondent was legally obligated to
0 This was in support of Respondent's contention that Section
10(b) of the Act would bar Hodge's case because if discharged on
November 16, 1965, the charge filed May 27 was filed more than 6
months after the discharge
10 Glenn fixed the date of this conversation as March 7 but
751
recognize and bargain with the Union as such
representative.
C. The Union's Attempts to Bargain with Respondent
On March 1, Union Respresentative J.J. Glenn called
Respondent's attorney, William Haynes, and requested
that Respondent bargain with the Union regarding wages,
hours, and working conditions of Respondent's employees.
Haynes asked Glenn if he had prepared contract
proposals, and when Glenn replied that he had, Haynes
requested that a copy be mailed to him. Haynes told Glenn
that Thompson was in Europe. That same day, March 1,
Glenn mailed the contract proposal to Haynes. On
March 7, Glenn again called Haynes and asked if he had
received the Union's proposed contract. Haynes stated
that he had and, upon Glenn's request that Haynes draft a
counterproposal, Haynes agreed to do so. Glenn also asked
for a date for them to meet. Haynes said that he "would get
with Mr. Thompson," and try to arrange a meeting. On
March 15, Glenn again called Haynes about negotiating
and asked about a counterproposal. Haynes informed
Glenn that Thompson had just returned from out of town
and said that he would give Glenn a date and a
counterproposal but that he would have "to be in touch
with his client first." Glenn felt that Haynes was stalling
and so on March 15, he wrote a letter to Respondent's
terminal manager in Phillipsburg, Norman Wise, relative
to a meeting with Respondent's representative. By letter
dated March 18, Haynes advised Glenn that he would be
willing to meet on March 23 or another date if that was not
satisfactory. On March 22, Glenn called Haynes for a time
to meet since none was specified in Haynes' letter. Haynes
informed Glenn that there was no further need to meet
"due to the fact that they had closed the Phillipsburg
terminal." Glenn told Haynes that he "definitely wanted to
know why [they] weren't notified, being we had been
certified. Haynes informed [Glenn] that it was their
prerogative to close the terminal if they saw fit." Glenn
then asked about negotiations with respect to closing the
terminal and the seniority of the employees and severance
pay. Haynes replied that "being they were closing, that
people had been laid off, there was no further need to
meet." Glenn testified that Haynes told him that in the
spring season there would be some employment at the
McPherson terminal and the Phillipsburg employees
should make applications as new employees. to
Glenn then filed, on March 23, the charge in Case
17-CA-2881.11
It is apparent that Respondent made its decision and
closed the Phillipsburg terminal without notice to the
Union and without affording the Union an opportunity to
bargain about the closing and the effects of the closing
upon the employees. I find that Respondent by so doing
violated Section 8(a)(5) of the Act.12
D. The Closing of the Terminal
1. The termination of certain employees
On March 24 , Norman Wise informed Peasley that her
employment would be terminated on March 31. Robert
obviously that date was in error because Glenn did not learn of the
closing of the Phillipsburg terminal until March 22
i! The foregoing is based on the credited and undemed
testimony of Glenn
12 Ozark Trailers, Inc , 161 NLRB 561
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ringle was told by Norman Wise on approximately
March 24 that they were closing the shop on March 31.
Ringle asked Wise a day or so later if Wise knew what was
going to become of him and Wise said "no, he didn't know
if [Ringle] would be transferred or not . He also didn't say
that [Ringle ] would be terminated on that day." As a
result of receiving the information that the terminal was
closing, Ringle found another job . Ringle then told Wise
that he had found another job and that he wanted to quit.13
Ronald Wise , brother of Norman Wise, was told, about
March 24, by his brother that the terminal was shutting
down . Ronald continued to work for Respondent for 3 to 4
weeks after March 31. During this time Ronald was
engaged in transporting trucks and shop equipment from
the Phillipsburg terminal to the McPherson terminal, and
he also hauled some asphalt.
2. The General Counsel ' s prima facie case
It is clear from the foregoing that Respondent strongly
opposed the advent of the Union at its McPherson,
Kansas, terminal in 1963. Thus, when the Union sought to
organize the employees , Thompson , himself, on several
occasions , admittedly threatened employees with reprisals
if they selected the Union as their bargaining representa-
tive. In addition , Thompson and other agents of Re-
spondent admittedly interrogated employees concerning
their union activities and granted and announced benefits
to employees in order to discourage their union activities.
That this attitude of strong opposition to the Union
continued during the Union ' s organizing campaign at
Phillipsburg is clear from the record herein. Thus,
Thompson admitted at the hearing herein that his position
in opposition to the Union was the same as it was in 1963.
In addition , as found above, Respondent ' s attitude of
continuing forceful opposition to the Union is reflected in
the interview for employment of Hodge which Terminal
Manager Norman Wise conducted . In that interview Wise
conditioned Hodge's employment with Respondent on his
"promise not to start a union." Respondent 's attitude is
further reflected in Wise's statements to Hodge and
Peasley that if the Union were voted in the terminal might
be closed . Wise also reflected Respondent ' s attitude
toward the Union by his conduct in attempting to secure
knowledge about the employees ' union activities through
Peasley. Respondent 's attitude in opposition to the Union
is further reflected in the circumstances under which its
attorney informed the Union ' s representative of the
decision to close the terminal . Without any advance notice
to the Union and, in fact, under circumstances which had
given no hint whatsoever of any intent to close, the Union
was bluntly informed on March 22 that there was no need
for the parties to meet because the terminal had been
closed . And when the Union protested the lack of notice to
the certified - bargaining representative , they were informed
that it was the Company 's prerogative to close "if they saw
fit." And when the Union sought to negotiate about the
effect of the closing on employees they were informed that
the people had been laid off already and if the employees
wished to seek employment at the McPherson terminal in
the spring they should make applications as new
employees . I consider very significant the timing of the
announcement of the closing of the terminal with respect
to the date of the Union 's certification . Thus the Union was
certified on February 23, Thompson returned from Europe
about March 4, and the closing was announced a scant 18
days later . Under all the circumstances , I find that the
General Counsel has established a strong prima facie case
for concluding that Respondent closed the terminal and
terminated its employees to avoid bargaining with the
Union and to defeat the Union . We turn now to the reasons
advanced by Respondent for closing the terminal.
3. The Respondent 's defenses
Respondent contends that it closed the terminal purely
for business reasons. In fact , Thompson denied that the
union activities of his employees played a part in the
decision to close. Respondent relied primarily on the
factors summarized below as reasons for the closing.
a. The Sand-Orr contract
On November 16, 1965, according to Thompson's
testimony , the Sand -Orr Construction Company was low
bidder on a contract let in Norton , Kansas, to work on
Interstate Highway 70 . This work encompassed two
"spreads" or stretches of highway where work was to be
done. In that connection , asphalt would have to be hauled
from the Consumer Cooperative Refinery in Phillipsburg
to the two spreads referred to above. It seems that
Respondent hauls asphalt from the Cooperative to some
spreads, and a competitor , Kansas Transport , hauls to
some spreads . Unfortunately the two spreads for Highway
70 were the competitor 's spreads and not Respondent's.
The 1-70 contract calls for hauling about 9 million gallons
of asphalt from the Cooperative to spreads , and Thompson
testified that this was business Respondent would not get.
Thompson testified that the Cooperative was the main
customer Respondent had insofar as asphalt
transportation was concerned . In fact , Thompson testified
that Respondent normally hauled 90 percent of the asphalt
production of the Cooperative . Since 9 million gallons of
asphalt from the Cooperative would be hauled by a
competitor , Thompson testified this meant the loss of a big
percentage of hauling which Respondent normally did.
Thompson estimated "for easy figuring" that the
Cooperative produced 20 million gallons of asphalt a year
and so the loss of 9 million gallons would be a big loss for
Respondent . Thompson testified that when Sand-Orr
received this contract on November 16, 1965, he knew
Respondent lost 9 million gallons of asphalt hauling "at
that particular date."
b. State maintenance
Thompson testified that he was requested to come to
Kansas City by representatives of a major oil company.
When he arrived in Kansas City, he was asked if
Respondent could haul asphalt products from Augusta,
Kansas, to northwest Kansas, for the summer of 1966.
Thompson stated that they estimated the amounts
involved at something in excess of 2 million gallons going
to northwest Kansas. Testifying in more detail , Thompson
stated that he talked with "the traffic manager and
assistant traffic manager , Chuck Fortman and Jim Beatty"
in Kansas City, and that they were with Mobil Oil
Company. Thompson then stated that although he did not
'S Ringle could not recall exactly when his employment for
Respondent ended
THOMPSON TRANSPORT CO. 753
remember the exact date of this conversation it was
"sometime" in the month before he left for Europe.
Thompson then testified that he left for Europe on about
February 4 and fixed the date of this conversation as in the
month of January 1966. Further that Fortman and Beatty
told him that they had made a successful bid to furnish
asphalt for northwest Kansas for the year 1965-66.
Thompson stated that the Cooperative had been
furnishing asphalt for State maintenance prior to this for
years. Thompson further testified that Respondent for
years had hauled the majority of asphalt from the
Cooperative to northwest Kansas for this purpose.
Thompson testified further that shortly after the above
occurred "and I will be rather vague on this date because I
don't remember the exact date" he received a telephone
call from Ray Wells, assistant traffic manager of Skelley
Oil Company in Kansas City. Wells asked if Respondent
could haul in excess of 1 million gallons of asphalt from
Skelley's refinery. The source of asphalt for this purpose
was El Dorado, Kansas, and Augusta, Kansas. El Dorado is
20 miles northeast of Augusta and El Dorado and Augusta
are 70 miles from the McPherson terminal and about 250
miles from the Phillipsburg terminal. Thompson testified
that this meant that while Respondent was getting more
business, it was business out of the McPherson terminal
and not the Phillipsburg terminal because it was so far
from the source of supply. According to Thompson, Alvis
Jackson of the Cooperative notified him after the above
occurred that the Cooperative had lost the contract for
servicing the State highway maintenance for the
Northwest Division of Kansas.
c. The Service Petroleum Company contract
Thompson testified that Respondent had hauled
casinghead gas for the Service Petroleum Company from
the Deerfield and Lakin, Kansas, plants in 1963 and 1964.
In the summer of 1965 the Deerfield plant burned down.
Respondent, however, continued to haul from the Lakin
plant in the fall of 1965 but on January 1, 1966,
Respondent lost this haul. Leo Wilmot, general manager
for Service Petroleum, told Thompson at that time that
Service Petroleum had lost the contract and Respondent
therefore would no longer have this haul. Respondent has
not hauled from Lakin since January 1966.
Thompson testified with respect to, the closing of the
terminal that the loss of business was "certainly a
paramount issue." He referred also, however, to other
"issues" such as equipment getting old like steel asphalt
tanks. Thompson testified that new aluminum tanks were
needed in order to show a profit. In addition, Thompson
testified that Respondent had received numerous
customer complaints because their tractors could not
make deliveries on time since they were so old that they
had many breakdowns. So he concluded that it was
essential to purchase 10 new tractors at a cost of about
$200,000 and 10 more trailers at a cost of about $100,000.
These purchases were also necessary, according to
Thompson, because Respondent needed to switch from
gasoline power equipment to diesel equipment because
diesel equipment was more economical to operate.
Thompson testified that for 2 years the Phillipsburg
terminal had been getting in worse shape due to losing
business. The books for the two terminals were kept
together. Respondent had been trying to separate the
books and a new Burroughs machine was being used to
accomplish this. The machine was actually purchased 2
years before, but they only decided to separate the books
"a year or so ago."14 Respondent had no records they
could rely upon until 1965.
When Thompson returned from Europe and in about the
first or second week in March 1966, he talked with
Sanders who advised that he had practically completed
separating the records for the two operations and that the
"picture" showed a loss of about $33,000. Thompson
inquired if the figures were correct, and Sanders replied,
"reasonably so." When Thompson asked if that meant
within 10 percent, Sanders replied that the figures were
more accurate than that.
At the hearing and in the absence of supporting records,
I received a document in evidence (Resp. Exh. 8)
captioned "Statement of Income and Expense" for the
year 1965 for the limited purpose of establishing that such
a document was before Thompson when he made his
decision. I in effect sustained the General Counsel's
objection to admitting the document as proof of its
contents. The hearing was adjourned with the
understanding that the General Counsel would be afforded
the opportunity to examine certain records of the
Respondent, and unless he advised the Trial Examiner on
or before August 1 of his desire to further examine Mr.
Thompson the hearing would be considered closed as of
August 1. I requested the General Counsel to advise me
what his position was with respect to Respondent's Exhibit
8 after examining the Company's records and stated that if
I heard nothing further from the General Counsel
regarding Respondent's Exhibit 8 I would assume that his
objection was withdrawn and I would receive
Respondent's Exhibit 8 into evidence. After the hearing
adjourned, I received a stipulation signed by the General
Counsel and the Respondent with a letter attached from
the Charging Party interposing no objection to the
stipulation . The stipulation contains no objection to
Respondent's Exhibit 8 and the General Counsel did not
request the hearing to be reconvened and I therefore
receive Respondent's Exhibit 8 into evidence as proof of
its contents. The stipulation is hereby marked Trial
Examiner's Exhibit 1 and it is also received in evidence.
Thompson testified that he reached the decision to close
the Phillipsburg terminal on March 22. Further that he
informed Mr. Jackson of the Cooperative of his decision
and Jackson was "quite upset" about it. Thompson
testified that he told Jackson' he would try to get Kansas
Transport in to handle the business.
Thompson testified further that Respondent is now
operating "in the neighborhood of 45" tractors which is
pretty close to the same number Respondent operated in
July 1965. In 1965 Respondent operated about 20 tractors
out of Phillipsburg and 25 out of McPherson. Thompson
added that of course not all tractors were operated every
day.
As set forth above, Respondent relies primarily on loss
of business as justification for the closing of the
Phillipsburg terminal . Yet it is apparent from Thompson's
testimony that most of the business lost occurred long
before March 22. The 1-70 contract, according to
Thompson, involved 9 million gallons of asphalt, and
Thompson estimated that the total asphalt business lost to
" Will Sanders, general manager for Respondent, testified that
the Burroughs accounting machine was purchased in March 1964
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent was between 11 or 12 million gallons of
asphalt.15 Yet Thompson knew the 1-70 contract situation
as early as November 16, 1965, and it will be recalled that
the Deerfield plant burned down in the summer of 1965
nevertheless Thompson took no action until shortly after
the Union was certified as bargaining representative of
Respondent's employees at Phillipsburg. Under these
circumstances I am unable to attach much weight to
Thompson's testimony with respect to the acquisition of
about 3 million gallons of new business in the vicinity of
the McPherson terminal, or to the loss of the hauls from
the Lakin plant. Respondent also asserts as a defense the
cost of replacing equipment such as tractors. It is clear,
however, from Thompson's testimony that Respondent
was operating about the same number of tractors at the
time of the hearing as it did the previous summer. It is
apparent that this expense was a continuing one and
closing the Phillipsburg terminal would have no effect on
this cost item. As to the net loss reflected on Respondent's
Exhibit 8 of approximately $33,000 for the year 1965 at the
Phillipsburg terminal, I cannot give the weight to this item
Respondent desires. For, as the General Counsel contends
in his brief, the stipulation establishes that Respondent
used a different method for computing tractor and trailer
expense on Respondent's Exhibit 8 than it did in its
income tax return for 1965. The figures of Respondent's
Exhibit 8 are in excess of $21,000 more than the figures
shown for these items on the income tax return. This
results in increasing the Respondent's losses
correspondingly or from about $12,000 to $33,000, a
substantial increase. I find the reasons asserted by
Respondent for the closing to be unconvincing,
pretextuous in nature, and insufficient to meet the General
Counsel's prima facie case. Accordingly, I find and
conclude for all the reasons set forth above that
Respondent closed the Phillipsburg terminal to avoid
bargaining with the Union in violation of Section 8(a)(5)
and that this closing was tantamount to unlawfully
discharging Peasley, Ronald Wise, Ringle, and Hodge16 in
violation of Section 8(a)(3) of the Act."
Since Ringle was informed of the terminal closing and
as a result thereof obtained employment elsewhere, I must
reject Respondent's contention that he quit his
employment.18 Nor does the fact that Ringle, Wise,
Hodge, and Peasley were offered employment at
McPherson change this finding. I do not consider offers of
employment at McPherson, a distance of about 190 miles
from Phillipsburg, as substantially equivalent
employment.19 Moreover, neither the fact that Peasley
was an office worker and not in the unit nor the fact that
she was not shown to be a prounion adherent is sufficient
to bar the above finding.20 Finally, since Hodge occupied
the status of an employee on March 31 with a reasonable
expectancy of continued employment which was
extinquished by the illegal closing of the Phillipsburg
terminal, the fact that the evidence may not show
company knowledge of his union activity likewise does not
preclude the above finding.21
11 Both the General Counsel and the Charging Party objected
repeatedly to Thompson's testimony as to the value of contracts
involved on the basis that the records were the best evidence In
that regard, colloquies between the Trial Examiner and counsel
show that Attorney Haynes did not adduce this testimony to
establish that Respondent lost any particular amount of business
last year, or to establish the actual dollar value of any contracts
Respondent had.
10 Hodge's status as an employee is described above.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations
described in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1), (3), and (5) of the
Act, I shall recommend that it cease and desist therefrom
and take certain affirmative steps designed to effectuate
the policies of the Act.
It having been found that Respondent unlawfully closed
its Phillipsburg terminal which was tantamount to
discriminatorily discharging Willis Hodge, Ronald Wise,
Robert Ringle, and Dorothy Peasley in violation of Section
8(a)(3) and (1) of the Act, I shall recommend that
Respondent be required to reopen its Phillipsburg
terminal and offer the foregoing employees immediate and
full reinstatement to their former or substantially
equivalent positions. As to Hodge, this means only that he
is to be restored to the status he occupied on March 31. In
making this recommendation, I have considered
particularly these facts: Respondent still owns the
building in Phillipsburg in which its terminal was located;
although this building was leased, it was only for 1 year,
which year should end shortly if it has not already;
Respondent apparently has given at least some
consideration to reopening this terminal as shown by its
letter of July 12, to the Union offering a 10-cent wage
increase and preferential employment to all employees in
the bargaining unit as of March 31, in the event that the
Phillipsburg terminal was reopened; Respondent has
continued to operate a truck in the Phillipsburg area
servicing some of its customers; closing the terminal did
not extinguish Respondent's obligations as a common
carrier to service certain customers in the Phillipsburg
area; and finally, although some financial hardship may
occur, it is the result of the Respondent's own unlawful
actions in closing the Phillipsburg terminal.22 I further
recommend that Respondent make the employees named
above whole for any loss of earnings they may have
suffered by reason of the unlawful discrimination against
them, by payment to each of them of a sum of money equal
to the amount which the employee would normally have
earned as wages from the date of the employees'
termination, except for Hodge whose backpay will have to
be determined on the basis of what he normally would
have earned when in the status he occupied on March 31,
to the date of Respondent's offers of reinstatement, less
the employees' earnings during said period. Backpay shall
be computed in the manner provided in F. W. Woolworth
17 Cf Preston Feed Corporation, 134 NLRB 629, enfd 309 F 2d
346 (C A 4)
11 Cf. Arlington Hotel Company, Inc , 127 NLRB 736, 751
11 Cf Ref-Chem Company, 153 NLRB 488,493
20 Cf. Arlington Hotel Company, Inc , supra (not in unit);
Muscle Shoals Rubber Company, 157 NLRB 829 (minimal or no
union activities shown)
21 Cf Muscle Shoals Rubber Company, supra
22 Preston Feed Corporation, supra
THOMPSON TRANSPORT CO.
Company, 90 NLRB 289, with interest as directed by the
Board in Isis Plumbing & Heating Co., 138 NLRB 716.
Having found that Respondent refused to bargain in
violation of the Act, it will be recommended that, upon
request, Respondent bargain collectively with the Union
and if an understanding is reached , embody such
understanding in a signed agreement.
As the conduct in closing its Phillipsburg terminal and
terminating its employees there to avoid bargaining with
the Union goes "to the very heart of the Act," I shall also
recommend that Respondent cease and desist from
infringing in any manner upon the rights guaranteed in
Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120
F.2d 532, 536 (C.A. 4).
Upon the basis of the foregoing findings of fact and upon
the entire record , I made the following:
CONCLUSIONS OF LAW
1. Thompson Transport Company, Inc., is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. Truckdrivers and Helpers Union Local 696, affiliated
with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All drivers, mechanics and servicemen at the
Phillipsburg, Kansas, terminal of Thompson Transport
Company, Inc., excluding office clerical employees, and
755
professional employees , guards and supervisors, as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. The Union, at all times material herein , has been and
now is the exclusive representative of all employees in the
aforesaid appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By unilaterally closing its operation at Phillipsburg,
Kansas, on or about March 31, without prior notice to and
bargaining with the Union as the exclusive representative
of the employees in the aforesaid appropriate unit
concerning the decision to close the terminal and the
effect of the closing upon said employees , Respondent has
engaged in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act.
6. By - unlawfully closing the Phillipsburg terminal to
avoid bargaining with the Union thereby discriminatorily
discharging the employees named above, Respondent has
engaged in unfair labor practices in violation of Section
8(a)(5), (3), and (1) of the Act.
7. By interfering with , restraining, and coercing its
employees Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a)(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.
[Recommended Order omitted from publication.]