James K. Sterritt, Inc.

National Labor Relations Board - Board Decisions

Dec 16, 1974

215 N.L.R.B. 769 (N.L.R.B. 1974)

JAMES K. STERRITT, INC. 769
James K. Sterritt , Inc. and Concrete Haulers Inc. and
Allen Finch and Albert Quick , Sr., and Frank K.
Ruhnke , and Thomas F. Monteverde , Jr. and Robert
Quick and Edward Jordan , Jr., and Paul D. Over-
baugh . Cases 3-CA-5580-1, 3-CA-5580-2,
3-CA-5580-3, 3-CA-5580-4, 3-CA-5580-5,
3-CA-5580-6, and 3-CA-5580-7
December 16, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On August 12, 1974, Administrative Law Judge Paul
E. Weil issued the attached Decision in this proceeding.
Thereafter, Respondent filed exceptions and a support-
ing brief, and the General Counsel filed a brief in an-
swer to Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent, James K. Sterritt, Inc., and Concrete
Haulers Inc., New Baltimore, New York, its officers,
agents, successors, and assigns, shall take the action set
forth in the said recommended Order.
The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined
the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
PAUL E. WEIL, Administrative Law Judge: On February 20,
1974, Allen Finch, Albert Quick, Sr., Frank K. Ruhnke,
Thomas F. Monteverde and Robert Quick; and on February
25, Edward Jordan, Jr., and Paul D. Overbaugh filed with the
Regional Director for Region 3 of the National Labor Rela-
tions Board, hereinafter called the Board, charges alleging
that James K. Sterritt, Inc., hereinafter called JKS, violated
Section 8(a)(1) and (3) of the Act by the termination of the
named employees. These charges were amended on April 23
and 25, alleging that JKS and Concrete Haulers Inc., herei-
nafter called CHI, violated Section 8(a)(3) and (1) by the
termination and failure to recall the named Charging Parties.
On April 30, 1974, the said Regional Director on behalf of
the General Counsel of the Board consolidated the seven
cases for hearing and issued a complaint alleging that JKS
and CHI were the same employer and that they violated
Section 8(a)(1) and (3) of the Act by the termination and
failure to recall the seven named Charging Parties and addi-
tionally violated Section 8(a)(1) by various alleged threats to
employees that they would lose their jobs because of their
union activities. JKS and CHI, hereinafter jointly called Re-
spondent, duly filed its answer denying the commission of
any unfair labor practices. On the issues thus joined, the
matter came on for hearing before me on June 4, 5, 6, and 11,
1974, at Albany, New York. All parties were present, Re-
spondent and General Counsel were represented by counsel,
all parties had an opportunity to call and examine witnesses
and to adduce relevant and material evidence. At the close of
the hearing all parties waived oral argument. Briefs have been
received from the General Counsel and Respondent.
Upon the entire record herein and in consideration of the
briefs, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
James K. Sterritt is the principal operating officer of JKS,
CHI, and of Sterritt Trucking Inc., hereinafter called STI.
Mr. Sterritt is the president of JKS and STI and the general
manager of CHI. He has effective control over all the stock
in all three corporations. STI has interstate and intrastate
operating authorities as a carrier which are possessed by
neither JKS or CHI. In the year prior to January 31, 1974,
JKS performed transportation services valued in excess of
$50,000 for Span-Crete Northeast, an enterprise which itself
annually ships goods valued in excess of $50,000 directly to
States of the United States, other than the State of New York,
where it is located. The services furnished by JKS are fur-
nished pursuant to the authority held by STI which has no
employees and itself performs no operations. On January 31,
1974, JKS ceased operations and the following day all the
operations theretofore conducted by JKS were conducted by
CHI, which arrangement has continued at least to the point
of the hearing. All payments from Span-Crete for the services
rendered by Sterritt's enterprises are made through STI
which prior to February 1, 1974, turned over all of the money
to JKS and since February 1, 1974, to CHI. Sterritt through-
out this period has been the sole operating authority of both
JKS and CHI. The operations were conducted for the same
customer using the same equipment out of the same terminals
and using, with the exception of the Charging Parties herein,
the same personnel. I find that JKS, STI, and CHI are all
together a single employer within the meaning of the Act and
that CHI is an alter ego of JKS. I find further, as will be set
forth below, that CHI was formed and implemented for the
purpose of avoiding the effect of a contract negotiated be-
215 NLRB No. 143
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tween JKS and Local 294 International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America.
Respondent is and at all times relevant hereto has been an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
q I THE UNFAIR LABOR PRACTICES
Background
At all times relevant hereto James K. Sterritt has had
contractual relationships with Span -Crete Northeast and
other enterprises engaged in the construction and sale of
prestressed concrete building materials , pursuant to which
Sterritt 's enterprises shipped the products of Span-Crete and
others within the State of New York and to States other than
the State of New York .' The operating authority required
by State and Federal law resided in STI which apparently at
this time exists only for the purpose of holding the operating
authority and operates through the other corporations. STI
had no employees during the periods material to this case but
exists only on paper . Payments by Span -Crete were made
exclusively to STI and turned over by STI prior to February
1 to JKS which owned the equipment and hired the drivers
who did the work.
Prior to April 1973, Sterritt 's drivers occasionally had
trouble delivering to jobs organized by the Union. Sterna
arranged to have union cards issued to certain of his drivers.
Thereafter when deliveries had to be made at a union job the
drivers with union cards were dispatched. There was at this
time , however , no union contract in existence between Ster-
ntt and the Union.
In April 1973 , Sterritt 's employees under the leadership of
Robert Quick and others decided to seek union representa-
tion. On or about April 9 , Charging Parties Monteverde,
Robert Quick , and Overbaugh and another employee , Ronald
Misetich , obtained authorization cards from Local 294,
signed them , and solicited signatures from other employees.
On April 11 the Union demanded recognition from Sterritt.
On May 6 , at 11 p.m ., William Mackey , a representative of
the Union telephoned Sterna and told him that a strike
would commence at midnight because of his failure to reply
to the demand for recognition . Sterritt agreed to meet at the
terminal at midnight.
When Sterritt reached his terminal he found Robert Quick,
Monteverde, Misetich , Rippinger , Walters Peters, Jr., and
Sr., and a mechanic , Thomas Clark , prepared to picket Ster-
ritt met with Mackey and agreed to recognize the Union and
Mackey sent the men who were present home stating there
would be no strike . After the men went home , Sterritt who
was annoyed and distressed by the incident dispatched sev-
eral loads that were to have gone out the following morning.
' The record reveals that the Sterritt enterprises carved a substantial
portion of its business to states other than the State of New York
One of them was to have been driven by Robert Quick who
was present , prepared to picket , and had gone back home.
When Robert Quick returned in the morning he found that
his load was gone , and, after consulting with other employees
who arrived to go to work , some of whose loads were also
gone, called the Union and was told to raise a picket line. This
he did and all the Charging Parties took part in the picketing
as well as certain other employees . Employees Frank Barger,
Walter Martin , Robert Van Heusen , Frank Mausolf, and
Bruce Ballinger continued working . At the end of 5 days of
strike , Sterritt signed a recognition agreement with the Union
and the employees went back to work.
Commencing shortly thereafter and until November, Ster-
ritt negotiated with the Union for a contract . During the
negotiations he verbally agreed to pay whatever was nego-
tiated retroactively to the employees employed before August
1, 1973. On September 14, according to the testimony of
Robert Quick which I credit , Quick asked Sterritt how the
negotiations were going and said that he had heard that the
Company was going to close down . Sterritt said that the
negotiations were not going very well and that he was going
to close the place down until they got a contract straightened
out. The following Monday , Tuesday , and part of Wednesday
no dispatches of Sterritt 's employees were made and the work
was performed by another contractor, Dallas and Mavis.
Nicholas Robilletto , the Union 's business agent , complained
to Span -Crete that Sterntt had locked out his employees and
demanded that Sterritt 's employees again be used . Accord-
ingly starting sometime the following Wednesday , Sterritt's
employees resumed hauling for Span -Crete . After this inci-
dent Sterritt no longer took an active part in the negotiations
which were handled by representatives of Span -Crete on his
behalf. On or about November 19, 1973 , the Union forwarded
a draft of the contract through Span-Crete to Sterritt Sterritt
went over the draft and had it retyped to reflect certain date
changes. He signed the retyped draft and sent it to the Union
and thereafter changed the wage structure to that contained
in the new contract. He also began making contributions to
the health and welfare and pension funds, and enforced a
requirement that the drivers who had not been informed of
loads prior to 4 p.m. of the preceding day were to telephone
Respondent for assignments or to ascertain whether they had
assignments . The drivers in their turn commencing on or
about November 19 commenced dealing with Sterntt largely
through Robert Quick who became the steward for the
Union.
During the time between September and December 1973,
the Union kept telling the employees that they were going to
receive a retroactive payment in the amount of $160 from
Sterritt and that they would receive backpay for the 2-1/2
days that Dallas-Mavis performed their work. There were 13
employees who would recieve the $160 payment , apparently
only 7 or 8 were to have received pay for the Dallas-Mavis
incident based on the number of loads hauled by Dallas-
Mavis during that period.
In early November, Sterritt approached Robert Quick and
asked him if he would refuse the $ 160 retroactive pay. Quick
said he would do so if it would help straighten out the con-
tract and Sterritt asked Quick what the other employees
would do . Quick met with a number of drivers and talked it
over, they decided that they had a right to the money and
JAMES K STERRITT , INC 771
would accept it. At this time Sterritt was under pressure from
Span-Crete to pay the money. Finally on or about November
26, 1973, Blosser, the president of Span-Crete, told Sterritt
that if he did not pay the retroactive pay Span-Crete would
withhold its payments for the work done by Sterritt's enter-
prises . Blosser also told Sterritt to pay the backpay to the
drivers who were displaced by the Dallas-Mavis incident. On
November 26 Sterna instructed his office girl to prepare
retroactive paychecks for the 13 drivers who were employed
prior to August 1; namely, Peter Whipper, who had been and,
was at that time largely operating as the terminal manager
and dispatcher, Charging Parties Finch, Quick Sr., Mon-
teverde, Robert Quick, Jordan, Overbaugh, and Ruhnke as
well as employees Gerow, Meo, Martin, Van Heusen, and
Mausolf. Sterritt also told his clerical employee, Mrs. Roberts
to prepare the checks emanating from the Dallas-Mavis inci-
dent for Whipper, Robert Quick, Monteverde, Jordan, Finch,
Rippinger, Overbaugh, and Meo. Sterritt told Mrs. Roberts
at the time that the men would give the checks back.
In early December 1973, Monteverde inquired of Sterna
when he would receive his retroactive pay. Sterntt told him
that the money was coming out of his own pocket contrary
to what the Union had told Monteverde and argued that
Monteverde should not accept it. He made this position clear
to all of his employees. Later in early December Finch„Over-
baugh, Quick Sr., Ruhnke, Rippinger, Jordan, Monteverde,
and Robert Quick all received and accepted the retroactive
pay. Before he paid them, Sterritt spoke with Ruhnke, Over-
baugh, Finch, and Robert Quick and told them that their
taking the money would put him in a bind and that he was
paying out his own sweat and blood because the money was
not going to be paid by Span-Crete as the Union had told the
employees He told them to talk it over and if they wanted
the money they should come individually into his office and
sign for it. Robert Quick led the way, accepted the checks and
signed a receipt. He was followed by the other three em-
ployees at that time. Later other employees received their
checks. Peter Whipper, Bruce Meo, and Walter Peters Sr , all
declined to accept their checks. Accordingly only the seven
Charging Parties and Rippinger accepted the $160 retroac-
tive payment.
In order to meet the increased costs engendered by the
contract which Span-Crete's agents had negotiated for him,
Sterna demanded that Span-Crete give him an increased
tariff or rate of payment. Accordingly as of the time that
Sterritt signed the contract, his tariff from Span-Crete was
increased by 10 percent. He had theretofore agreed with
Span-Crete for a 12-1/2 percent increase to be effective the
first of January. In December Sterritt received a letter from
Blosser, Span-Crete's president suggesting that his rate struc-
ture was too high and urging him to reduce it in some way.
He wrote back to Blosser that he had in mind various steps
by which to do this but that under the union contract his costs
were extraordinarily high. At or about the same time Sterritt
took steps to organize CHI, using his accountant, Bevier to
effect this purpose. Also some time in December Sterna
caused application blanks to be printed bearing the corporate
name of CHI.
CHI was incorporated in the State of Delaware on Decem-
ber 31, 1973.
On December 14, 1973, Sterntt told his clerical employee,
Mrs Roberts that he was going out of business and that she
should prepare a notice that as of January 31, 1974, JKS
would be going out of business and all drivers would be
terminated. This notice remained posted for only 1 day. Rob-
ert Quick called Nick Robillotto of Local 294 and told him
of the notice, Robillotto told him to wait and see what hap-
pened. Quick also asked Sterritt whether the notice was true
and Sterritt answered that it was and told him "whether you
guys know it or not, when you accepted the $160, it was the
turning point on the job." Robert Quick asked whether he
could 'continue working if he could find work for one of
Sterritt's trucks. Sterritt told him that it was time that Sterritt
and Quick parted company. Sterntt told Quick that he did
not know or care who would be hauling for Span-Crete after
January 31, 1974. Monteverde, thinking that Sterritt might
have a new corporation, in late December asked for an appli-
cation; Sterritt told Monteverde that he was no longer in-
cluded in Sterritt's future plans and that Monteverde would
receive no application from any corporation in which Sterritt
was involved. Rippinger quit in December.
Commencing in late December the amount of work availa-
ble decreased and Sterna commenced laying off his em-
ployees in seniority order. Robert Quick, first in seniority was
the last laid off, on January 25. When Finch was laid off
Sterritt recommended that he should put in an application
with Hudson Valley Cement, another employer who had in
the past used some of Sterritt's equipment. Finch asked who
was going to haul for Span-Crete, and Sterritt replied that he
did not know but stated that he could not live with the union
contract.
Sometime in mid-January, Whipper no longer appeared as
an employee of JKS. Sterritt caused a notice to be posted that
Whipper was no longer employed by JKS and that the em-
ployees should no longer call him for instructions or dispat-
ches. Whipper, after taking a vacation, commenced, at a
garage in another terminal, to sand the panels on the trucks
which had Sterritt's name painted on them and to repaint
them with the name, Concrete Haulers, Inc. By the end of
January he had repainted and delivered to Sterntt's main
terminal six trucks bearing the new designation. By this time
all of the employees who filed charges were laid off and none
had occasion to see any of the trucks with the CHI name
painted on them.
Sterritt never made a public announcement that CHI was
taking over the JKS hauling for Span-Crete. However, appar-
ently in December, he commenced recruiting a force of driv-
ers to work for CHI. He first recruited Whipper, who testified
that in the first half of December he agreed to drive for
Sterritt and that he signed an application blank on December
13. I do not believe this testimony. On the application blank
which is in evidence, the date December 13 appears in one
place, December 23 in another, and the December 23 date
obviously was changed from December 13. However in yet a
third place on the application, Whipper shows himself to
have been laid off on December 28 from JKS. Applications
signed by employees Walter Woods, Stephen Woods, Louis
Perrine, Peter Decker, Walter Martin, and Richard Alte, all
bear the date January 24, Gerow, Mausolf, Van Heusen, and
Meo all signed applications bearing dates after January
24.1
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On February 1 or as soon thereafter as work was available
CHI started operating with former employees Whipper,
Mausolf, Gerow, Meo, Van Heusen, Martin, Alte, Steven
Wood, Walter Wood, and Peter Decker in that seniority
order. Seniority was obviously not based on the date on which
they allegedly signed applications but appears to be in accord-
ance with their seniority while employed by JKS. At some
time in late January or early February these employees met
with Sterntt and agreed on a new wage structure of $5.25 per
hour plus 15 cents a mile. This wage structure was still in
effect at the time of the hearing Later Whipper contacted the
secretary of the Union and told him that the men had put
together a new package and wanted the Union to get them
a contract The secretary declined to act but said that he
would report to Robillotto. Later Whipper called on Finch
and asked him to go with him to the Union to attempt to
persuade them to accept the men's wage package, Finch de-
clined to do so pointing out that he was on layoff and Whip-
per told him that he could be employed with the new corpora-
tion if he would assist Whipper. Finch said that he was not
the union steward and gave as his opinion that there was a
successor clause in the contract signed on November 19
which covers the situation. Later in February, Whipper
reached Robillotto and asked him to execute a new agreement
on these terms but Robillotto refused.
In the middle of February Robert Quick and the other
Charging Parties, having become aware of the fact that Ster-
ritt was now operating under the CHI name, went to the
union hall where they met with Mike Robillotto, the son of
Nick Robillotto. Mike Robillotto is an assistant business
agent for the Local Mike Robillotto advised them to file
charges with the National Labor Relations Board because
they had not been employed by CHI.
Apparently late in Februai y Nick Robillotto returned from
his vacation and was apprised of the developments with Ster-
ritt's corporations. He got in touch with Sterntt who assured
him that he was prepared to sign a contract. Robillotto told
Sterntt to prepare a seniority list and a list of the changes he
desired in'the contract and told him that he would meet with
the employees Thereupon all of the employees were called to
the union hall for a meeting. When six of the seven Charging
Parties' attended the meeting, they were asked by Nick
Robillotto to leave. They left the hall and were getting into
their cars when Mike Robillotto and another union agent
called them back in to the meeting. Robillotto went over the
seniority list and was informed by the Charging Parties where
their names should appear on the list. Robert Quick was first
on the list. When Whipper's name was reached, the second
man in senionty, Finch pointed out that Whipper had quit
JKS and accordingly had lost his senionty and must go to the
bottom of the list. Robillotto agreed, although he assured
Whipper that if he wanted to file a grievance he would assist
him. At this point Whipper left the meeting. The remaining
employees continued and on the list of employees submitted
by Sterntt, Robillotto wrote the numbers designating their
2 Meo testified that he received an application about January 25 No one
seems to know what happened to the application and he signed a new one
apparently in anticipation of the hearing and backdated it to January 25 No
evidence of the actual dates on which the applications were filled out and
signed appears in the record
3 Overbaugh was not present
respective positions on the complete seniority list. As the
General Counsel points out, Robillotto in effect merged the
pre-February 1 senionty list with the post-February 1 seni-
ority list.
Robillotto then read off the wage proposal of $5.25 and 15
cents a mile. Robert Quick pointed out that this was only 25
cents more than they were making before the Union came
into the picture and Robillotto changed the $5.25 to $5.50
and the 15 cents to 16 cents per mile. Toward the end of the
meeting Robillotto called Sterna by telephone and informed
him that he had the employees all present and, in effect, that
they had settled their differences. He suggested that Sterritt
meet with the employees in an hour and Sterritt agreed. At
the close of his conversation with Sterritt, Robillotto turned
from the telephone and asked the Charging Parties if the men
were going to withdraw the charges. No one answered but
Robillotto said into the telephone that the charges would be
dropped. Robillotto ran off a number of photocopies of the
seniority list as he had changed it and of the contract changes.
He gave a number of employees each a copy and sent them
on their way to Sterritt's office. The six Charging Parties who
were present went- off together and agreed to meet and have
a cup of coffee en route to Sterritt's office. When they pro-
ceeded to Sterntt's office they found the automobiles of the
other employees parked in the parking lot and all the doors
to the terminal were locked. They saw through the window
of Sterritt's office that there was a group of men talking to
Sterna However, shortly thereafter the window curtains
were pulled and except for someone occasionally moving the
curtain aside and peeking through, they saw no other action.
They pounded on the door but there was no response.
Whipper testified that after he left the union meeting he
went to Sterritt's garage and when the other employees
showed up he and they met with Sterritt. When the automo-
biles containing the striking employees arrived he locked the
door so that they could not get in This was done with Ster-
ritt's approval The employees other than the Charging Par-
ties indicated to Sterntt that they were not in accordance with
the seniority list sent to him by Robillotto and some of them
apparently told Sterritt that if the Charging Parties came
back to work they would be out of a job. They indicated
considerable anger over the situation. Sterritt met with them,
for over an hour. He testified that he was aware that the other
men were outside but saw no reason to meet with the two
groups at the same time since there was obvious animosity
between them.
The Charging Parties having failed to gain admission drove
to the nearest public telephone where Jordan put in a call to
Sterritt's office. The telephone was answered by Whipper
who said that he would call Sterritt to the telephone and put
the call on hold. Jordan held the telephone for 12 minutes and
then since no one came on the line hung up.
According to the testimony of Sterntt, after the meeting
was over, as the men were milling around, he went to the
bathroom and when he came out of the bathroom he was told
by Whipper that Jordan was on the telephone; when he asked
Whipper to find out if Jordan was still there Whipper told
him that he had hung up. Whatever the situation was, it is
clear that Sterritt refused to meet with the Charging Parties
at this time.
JAMES K. STERRITT , INC. 773
After the meeting with the employees , Sterritt called Rob-
ert Quick and told him to have the men who filed the charges
meet with him at 2 p . m., the following day , Sunday. Quick
called the others and relayed Sterritt 's message . However, the
following day at 9:30 in the morning Sterrett called Finch and
asked him to meet with him as Finch was the only one he
could talk to without getting mad. When Finch arrived, Ster-
ritt locked the door and talked to Finch about the March 9
meeting Sterrett said that he would have to get together with
Robillotto before he put the Charging Parties back to work
and asked Finch to call the men to tell them that the meeting
was canceled Finch declined to do so, whereupon Sterritt's
wife called Robert Quick and told him that the meeting was
canceled and that Sterritt would call Quick later . Sterritt
never called Quick.
On March 12 , Robert Quick called Robillotto and told him
that he was not working and what had happened after the
March 9 meeting . Robillotto said he would call Quick back
and in about 30 minutes told Quick that he had called Span-
Crete and told them to stop loads being hauled by Sterritt
drivers until the Charging Parties were put back to work.
However , 20 minutes later Robillotto again called Quick and
told him that ' since the charges had not been dropped he
could not stop Sterntt from hauling Span -Crete's work and
that the Labor Board would have to handle the case. Quick
pointed out that the charges had not been dropped because
the men were not put back to work on March 10 , but this
apparently made no difference to Robillotto . The men have
never been returned to work.
Discussion and Conclusions
The General Counsel contends that the failure of Sterrett
to employ the seven Charging Parties resulted from their
union activity and especially from the fact that they accepted
the $160 retroactive pay negotiated on their behalf by the
Union . Respondent contends that CHI was a new corpora-
tion putting together a new employee list and it had no obliga-
tion to the Charging Parties to hire them . Respondent con-
tends that inasmuch as none of the Charging Parties have
ever filed applications Respondent was under no duty to seek
them out and put them to work , and accordingly ,cannot be
charged with an unfair labor practice for its failure to do so.
I conclude that the refusal of Respondent to continue the
employment of the seven Charging Parties is violative of
Section 8(a)(3) and ( 1) of the Act. Respondent's defense is
somewhat simplistic . I have found that CHI is the "alter ego"
of JKS , indeed it is nothing but a continuation of the same
enterprise with the name changed , clearly only for the pur-
pose of avoiding the effects of the contract signed on Novem-
ber 19 , 1973. There is no evidence that any of the seven
Charging Parties were ever informed of the existence of the
new corporation by Sterntt or anyone acting on his behalf.
On the contrary every attempt was made to put the new
corporation into operation without disclosing its existence to
those employees . Thus when various of the Charging Parties
asked who was going to handle the Span-Crete trucking,
Sterritt uniformly answered that he did not know and in one
case said he did not care. When one of the seven asked for
an application , Sterna denied that there was anything to
apply to. Sterntt made no contact with the Union as the
representative of his employees until after he had agreed with
his new employees on the terms and conditions under which
they would work and was operating under these terms Re-
spondent contends that CHI is a successor enterprise and that
it has a right to select employees on any basis it chooses. The
facts do not bear it out . Clearly the new corporation , in this
frame of reference , is no more than a subterfuge , adopted by
Respondent to avoid the terms of the agreement it entered
into with the Union and utilized by the Respondent to divest
itself of the employees whose strong union adherence and
whose insistence on the retroactive pay negotiated on their
behalf by the Union was seen by Sterritt as a personal affront.
When Robert Quick asked Sterrett whether he was indeed
closing down , Sterrett said that he was and said "whether you
guys know it or not , when you accepted the $160 it was the
turning point in the job." When Monteverde asked for an
application in late December , Sterna told him that he was no
longer included in his future plans and Monteverde would
receive no application from any corporation in which Sterna
was involved . In January Sterntt told Robert Quick "you
sure put a lot of people out of work this time . . . you and
your union activities ." After Sterritt posted the notice that he
was going out of business , Finch discussed with him who was
going to haul for Span -Crete, he told him he did not know
and at this time he also said he could not live with the
contract , the rates were too high . Unquestionably he was
referring to the contract with the Union . In May 1973, Mon-
teverde overheard Sterritt talking to a person whom Mon-
teverde could not identify and say that he would go out of
business before he would go union . During the summer of
1973, Sterritt told Overbaugh and Jordan that as far as he was
concerned the negotiations for a contract would take forever,
that he would not bend and lean to come to an agreement and
he said that people were not going to tell him how to run his
business.
The above incidents as well as others reveal not only the,
depth of Sterritt 's animosity toward the Union but seriously
impair the position of Respondent that in fact Sterritt wanted
his drivers organized and preferred to operate as a union
shop . On the record as a whole it is clear that Sterritt fought
the Union until his chief customer , Span-Crete, made him
realize that in order to handle their product he would have
to get along with the Union . He left it to Span -Crete to
negotiate a contract for him and then determined that he
could not live with the contract . His immediate reaction then
was to set up CHI and transfer his entire business to the new
corporation believing that he could thus get a new contract.
Whether he did this before or after conferring with Robillotto
is not known but Robillotto , after some initial adverse reac-
tion , went along with the deal until he became aware that the
seven men remaining of the eight who accepted the retroac-
tive pay in December had been ousted from their jobs by the
changeover . Even then the Union was not about to support
the seven with any show of strength but left it to the Charging
Parties to proceed through the Labor Board, apparently out
of the pique of Nick Robillotto that they had filed charges
rather than fighting their battle through the Union.'
' The fact that Nick Robillotto 's son Mike advised them to file charges
apparently made no difference to Nick Robillotto who administered a
tongue lashing to his son in the presence of union members for giving advice
to the Charging Parties
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I conclude that Respondent by the action set forth above
discriminated against the seven Charging Parties because of
their union activities and especially because they accepted the
retroactive pay negotiated on their behalf by the Union
thereby discouraging membership in the Union and activities
on its behalf in violation of Section 8(a)(3) and (1) of the Act.
By an amendment to the complaint at the hearing, the
General Counsel alleged that by an incident that took place
in early September 1973, Sterritt urged and encouraged its
employees to bypass the Union and establish their own union.
The record reveals that in early September 1973, Rippinger
and a number of other employees were seated in the terminal
waiting for loads. Sterritt called Rippinger into his office and
spent about an hour talking to him. When Rippinger came
out of Sterritt's office he addressed himself to the other em-
ployees and asked them what they thought of starting a com-
pany union. The other employees present, Jordan and Mon-
teverde, were not at all enthused at the idea. Rippinger told
Monteverde that a meeting would be held that night; shortly
thereafter a notice was posted calling the drivers to a meeting
at 7 o'clock. About 15 drivers attended the meeting , exclud-
ing Jordan and Monteverde who were on a run and had not
returned. The meeting started about 7:30 and lasted for about
an hour and a half. When the employees arrived they found
Sterritt present in the meeting room. Ruhnke asked Sterritt
why he was there and suggested that the drivers would not
speak up if the boss is around Sterritt said he would leave if
the employees wanted him to but nobody spoke up to ask him
to leave. Rippinger then suggested forming a company union,
saying that he had discussed the proposal with Sterritt. The
employees discussed the matter Finch, Overbaugh, and
Ruhnke spoke up to oppose the idea. Sterritt informed the
employees that he could obtain hospitalization and retire-
ment for them at less expensive rates than that obtainable
through the Union and that he would contact his lawyer with
regard to how to go about forming a union. The meeting
apparently broke up without any action being taken.
When Monteverde and Jordan returned immediately after
the meeting broke up Rippinger approached them and told
them that the men were angry with him because of the meet-
ing but that it was Sterritt's idea and not his. On a later
occasion Rippinger told Monteverde that that would be the
last time he would stick his neck out for the men, Sterntt got
him in to the matter and now the men were angry with him
Respondent contends that the General Counsel did not
prove his allegation and that indeed only Rippinger appears
to have attempted to form a company union . Respondent
points out that the General Counsel did not call Rippinger to
support the allegation and accordingly I should presume that
Rippinger's testimony would not have supported it. The only
evidence on the record that a company union was ever dis-
cussed at any other time was in the testimony of Whipper
whom I found unreliable in other respects and do not credit
in this respect. Whipper testified that Rippinger at various
times had discussed company unions with him prior to the
meeting in early September. I find that the facts set forth
above, accepting Monteverde and Jordan's testimony as to
the statements made by Rippinger only to the fact that the
statements were made and not the truth of the statements,
raises the inference that the impetus to form a company union
and the exploration of it derived from Sterritt. In any event
Sterritt's presence at the meeting of the employees, even
though it was suggested he should not be present, and his
participation in the discussion with the suggestion, first, that
he could secure the benefits for the men cheaper than the
Union and, second, that he would provide the legal advice
necessary to setting up a company union , adopted and fur-
thered Rippinger's suggestion. I find that Sterritt thereby
interfered with, coerced, and restrained his employees in the
exercise of their rights guaranteed in Section 7 of the Act in
violation of Section 8(a)(1) of the Act.
By another amendment to the complaint made at the open-
ing of the hearing, General Counsel contends that in late
January the Respondent, by Sterritt, bargained directly with
the employees concerning rates of pay, wages, hours of em-
ployment, etc., in violation of Section 8(a)(1) of the Act. This
action on Sterritt's part is admitted. He testified that he met
with the men when he set up the new corporation and that
they reached agreement on the wages and hours that are
currently in force. It was not until later, in early February
that any attempt was made to inform the Union first that
CHI was in existence and second that the employees and
Sterntt had agreed on new rates lower than those embodied
in the contract that Sterritt had signed on November 19,
1973. I have found that the employing enterprise continued
throughout the period relevant to this case, accordingly the
employees were at all times represented by the Union and by
negotiating directly with the employees and presenting to the
Union an accomplished fact, Respondent interfered with, co-
erced, and restrained its employees in the exercise of their
Section 7 rights in violation of Section 8(a)(1) of the Act.
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) by Sterritt's statement to Overbaugh when he
gave him his