Mar-Kay Cartage, Inc. And Contemporary Delivery Systems, Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1985

277 N.L.R.B. 1335 (N.L.R.B. 1985)

A
MAR-KAY CARTAGE
Mar-Kay Cartage, Inc. and Contemporary Delivery
Systems , Inc. and Van Drivers, Furniture Ware-
housemen Handlers, T.V.-Radio-Appliance-Air
Condition Servicemen and Piano Movers Local
Union No. 392, a/w the International Brother-
hood of Teamsters , Chaufferus, Warehousemen
and Helpers of America. Case 8-CA-17488
30 December 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 21 May 1985 Administrative Law Judge
Robert A. Giannasi issued the attached decision.
The Respondent, Contemporary Delivery Systems,
Inc., filed exceptions and a supporting brief, and
the Charging Party filed a brief in support of the
judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs' and
has decided to affirm the judge's rulings, findings,2
and conclusions and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, Mar-Kay
Cartage, Inc., Solon, Ohio, and Contemporary De-
livery Systems, Inc., Bedford Heights, Ohio, their
officers, agents, successors, and assigns, shall take
the action set forth in the Order.
I The Respondent Contemporary's motion to reopen the record to in-
troduce an affidavit containing evidence of Mar-Kay's efforts in Novem-
ber 1983 to dispose of certain of its assets is denied since such evidence
was not shown to be newly discovered, or previously unavailable
2 The Respondent Contemporary has excepted to some of the judge's
credibility findings The Board's established policy is not to overrule an
administrative law judge's credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incorrect,
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d
Cir 1951). We have carefully examined the record and find no basis for
reversing the findings
The Respondent Contemporary's request for oral argument is denied as
the issues and positions are adequately set forth in the record and briefs
of the parties
Mary G. Balazs, Esq ., for the General Counsel.
Charles Garavaglia , of Sterling Heights, Michigan, for
Respondent Mar-Kay Cartage, Inc
Howard Levy, Esq. (Benich, Friedland , Coplan & Arnoffj,
of Cleveland , Ohio, for Respondent Contemporary
Delivery Systems, Inc.
Daniel N. Kosanovich , Esq. (Logethis & Pence), of Dayton,
Ohio, for the Charging Party.
DECISION
1335
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge.
This case was tried in Cleveland, Ohio, on 22 and 23 Oc-
tober 1984. The complaint alleges that Respondents are
alter egos of each other and constitute a single employer
and that, since 6 February 1984, they have refused to
bargain with the Charging Party Union (the Union) in
violation of Section 8(a)(5) and (1) of the Act. The com-
plaint also alleges that, on 4 February 1984, Respondents
unlawfully terminated their union-represented work
force in violation of Section 8(a)(3) and (1) of the Act. In
addition, the complaint alleges that Respondents have
unilaterally, and without prior notice to the Union, sub-
contracted their delivery operations in order to avoid
their bargaining agreement with the Union and also
failed to provide the Union with certain information nec-
essary to its function as bargaining agent, all in violation
of Section 8(a)(5) and (1) of the Act. Respondents have
filed separate answers denying the alter ego and single
employer allegations and also denying the substantive al-
legations of the complaint.
All parties have filed briefs which I have read and
considered. i
On the entire record, including the testimony of the
witnesses and my observation of their demeanor while
testifying, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Respondent Mar=Kay Cartage, Inc. (Mar-Kay), an
Ohio corporation with an office and place of business in
Solon, Ohio, was engaged in the intrastate and interstate
transportation of freight until 4 February 1984. In the
course and conduct of its business operations, Mar-Kay
annually derived gross revenues in excess of $50,000 for
the transportation of freight in interstate .commerce pur-
suant to arranagements with, and as agents for, various
common carriers. Accordingly, I find that Mar-Kay is an
employer engaged in interstate commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
Respondent Contemporary Delivery Systems, Inc.
(Contemporary), an Ohio corporation with an office and
place of business in Bedford Heights, Ohio, will derive
or has annually derived gross revenue in excess of
$50,000 from the interstate transportation of freight since
the inception of its operations on 6 February 1984. Ac-
cordingly, I find, as Contemporary admits, that it is ,an
employer engaged in interstate commerce within the
meaning of Section 2(2), (6), and (7) of the Act,
1 There has been some posthearing skirmishing by the parties over the
resubmission by the reporting service of R-M Exh 6, a financial state-
ment for the year ending 31 March 1984 for Respondent Mar-Kay That
exhibit, which was received into evidence at the hearing, was somehow
not delivered with the record in this case. I am satisfied that the docu-
ment submitted by the reporting service is indeed the document received
into evidence as R-M Exh 6
277 NLRB No. 152
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
1. Background
The Union and Mar-Kay have had a long-term bar-
gaining relationship culminating in successive bargaining
agreements covering all regular, full -time employees, ex-
cluding office clerical employees, guards, and supervi-
sors. The last agreement between the parties ran from 1
June 1982 to 2 June 1985. That agreement contained
wage reopener provisions for the second and third years
of the agreement.
In May 1983 just before the date appropriate for re-
opening-Mar-Kay's vice president, Howard Kaspy,
contacted union officials and requested consideration of a
so-called cost/stop form of compensation for the Mar-
Kay drivers instead of the hourly rate set forth in the
contract for deliveries performed for Sears, one of Mar-
Kay's largest customers. No agreement was reached on
this proposal. However, the Union did agree to extend
the wage reopener provision until 2 December 1983.
On 14 July 1983 Howard Kaspy wrote the Union and
stated that because Sears was increasing Mar-Kay's
charges per stop, Mar-Kay had need to establish an in-
centive pay program for the employees. Mar-Kay took
the position that it was losing money and that it needed
wage concessions from the Union. The parties apparently
met several times over Mar-Kay's request. On 6 Septem-
ber 1983 Howard Kaspy wrote another letter to the
Union pointing out Mar-Kay's financial difficulties.
Kaspy proposed a reduction in the base contract wage of
$1.50 per hour. This proposal was taken to the Mar-Kay
employees who rejected it.
Thereafter, in early November, Mar-Kay's representa-
tive, Charles Garavaglia, met with union officials on the
issue. According to uncontradicted testimony, Garavag-
lia told the union officials that "if the company did not
receive concessions from the Union . . . it would close."
The parties met again in late November. Present for
Mar-Kay were Garavaglia, Mar-Kay's president, Ted
Kaspy, his son, Vice President Howard Kaspy, and Nate
Schenker, treasurer. These officials offered three other
proposals for wage relief. It was stated at this meeting
that, if no relief was given, Mar-Kay would close on 23
December 1983. The Union agreed to bring the propos-
als to a vote of the employees. A vote was held some-
time in December and the proposals were rejected.
Thereafter the parties exchanged letters and phone calls
attempting to set dates for meetings to negotiate issues
relating to the closing of the Mar-Kay operation. Mar-
Kay agreed to extend the closing date until 4 February
1984. One last meeting was held between union and Mar-
Kay officials at the Union's office in late January 1984.
There was one final proposal by Mar-Kay but it was
taken to the employees for a vote and rejected. Thereaf-
ter Mar-Kay officials decided to close the operation. The
closing took effect on 4 February 1984.2
On 6 February 1984 the Union sent the following
letter to Mar-Kay:
Enclosed are sample letters that will give you an
idea of what is necessary for all members of Local
#392, that are no longer employed by Mar-Kay
Cartage.
These letters will be of future use when the men
in question will be filing for their pension benefits.
Your cooperation in this matter will be greatly
appreciated.
The enclosed sample letters requested information on
length of service and hours worked for each employee
and were addressed to the Teamsters Central States Pen-
sion Fund. Mar-Kay did not respond to the Union's
letter. However, there was no evidence that the required
information was not sent to the Central States Pension
Fund or was not otherwise available to it.
By letter addressed to Howard Kaspy dated 15 Febru-
ary 1984, the Union also asked that Mar-Kay pay all
moneyes due to employees including fringe benefits by
the end of the month. The letter referred to a prior
phone conversation with Kaspy wherein he had stated
that vacation pay owed to former employees would be
paid. On 14 February the Union filed a contract griev-
ance concerning the cessation of Mar-Kay and asserted
that Mar-Kay was continuing to operate under changed
names, "Contemporary Delivery or D & S Leasing."
By letter dated 20 February 1984, Charles Garavaglia,
on behalf of Mar-Kay, responded to this grievance by
stating that Mar-Kay had ceased operations and that it
had nothing to do with Contemporary or D & S Leas-
ing. On 24 February 1984 Garavaglia responded to the
Union's 15 February letter stating that the firm was en-
deavoring to pay "everything we can with the finances
we have available."
On 29 February 1984 the Union notified Mar-Kay that
it was seeking arbitration over the denial of its grievance.
Garavaglia subsequently responded, rejecting arbitration
and stating that "the company has been liquidated" and
"there is no company to arbitrate." Actually, although
Mar-Kay ceased business operations in February 1984, it
continued to exist as an entity until at least the time of
the hearing in October 1984.3
2. The Companies involved
a. Mar-Kay
Mar-Kay had been in operation for many years prior
to its closing on 4 February 1984. The president and sole
stockholder of Mar-Kay was Ted Kaspy. The vice presi-
dent and sales manager was Howard Kaspy, Ted Kaspy's
2 According to Union Representative Charles Smith, who was present
at a number of these negotiating sessions, "the main meetings were con-
ducted by Howard Kaspy," although at one meeting "Ted Kaspy kind of
took the lead in the negotiations "
2 The financial statement of Mar-Kay "for the year ended March 31,
1984" indicated a net loss of $146,920 but a deficit, after application of
retained earnings from prior years, of only $3000
MAR-KAY CARTAGE
son. Howard Kaspy's brother-in-law, Marvin Wolf, was
secretary, and Nate Schenker, whose wife- was Howard
Kaspy's first cousin, was the treasurer. Schenker also
served as office manager.
Howard Kaspy had worked for Mar-Kay since 1968.
He was made vice president in 1972. His father, Ted
Kaspy, turned 75 in May 1984. For the past several years
he has been in ill health. Since sometime in 1980 he has
suffered from memory loss. According to his son, "he
would wake up in the morning and not know what day
it is , not know where he was, where he had spent the
previous day." He spent less time in the office beginning
in 1981. He later suffered a stroke and had some paraly-
sis. According to Howard Kaspy, his father spent only
50 percent of his time in the office after his illness.
Howard Kaspy appeared in the office on a day-to-day
basis.
During his testimony Howard Kaspy attempted to
show that his father and not he made most of Mar-Kay's
business decisions, including those involving labor mat-
ters. I reject this testimony as self-serving, unreliable, and
contrary to the weight of the evidence in this case In
view of the acknowledged condition of Ted Kaspy and
other evidence in this case, it is clear to me that Howard
Kaspy functioned as a vice president normally does and
in more than a ministerial capacity in running the affairs
of Mar-Kay.
Howard Kaspy initially denied he had anything to do
with the labor relations of Mar-Kay. He testified that all
he did was take his father, Ted Kaspy, "around when he
was unable to get there by himself." However, it became
clear later on in his own testimony that his role was
quite significant. Howard Kaspy disposed of a grievance
filed by the Union on 5 December 1983 by rejecting it as
untimely as reflected by his signature on the grievance.
Documentary evidence also reveals that he issued warn-
ings to employees and they spoke to him about resigna-
tions. Indeed, he signed the last collective-bargaining
agreement with the Union and his was the only signature
on the document for Mar-Kay. Kaspy also acknowl-
edged participating in the last negotiations between the
Union and Mar-Kay in late 1983 and early 1984. Docu-
mentary evidence shows that he wrote two letters to the
Union asking for concessions. Union Officials Smith and
DePhillips testified far more credibly than Howard
Kaspy that he participated actively in grievance meetings
and negotiations with union officials.
Based on my credibility determinations and the other
evidence discussed above, I find that Howard Kaspy had
significant authority in the business and labor relations
matters of Mar-Kay-consistent with the normal role of
a corporate vice president.4
4 Two agreements were entered into evidence between Ted and
Howard Kaspy, which show the importance of Howard Kaspy's role in
Mar-Kay They were dated in early September 1983, In one Howard
Kaspy's wages are reduced from $775 per week to $400 per week provid-
ed that the "deferred wages" shall be replaced with a vehicle whose
value shall not exceed the amount of wages lost In the other Ted Kaspy
was to forego any wages but would receive a company owned vehicle
That agreement also stated that if Mar-Kay ceased operations, a cash set-
tlement could be paid to Ted Kaspy instead of the automobile
1337
Mar-Kay was primarily a delivery company, but it
also had some storage facilities or a warehouse. In some
cases Mar-Kay drivers would pick up and deliver from a
customer's warehouse, but, in other cases, the customers
would send the goods to the Mar-Kay warehouse and
Mar-Kay employees would then deliver the goods in
Mar-Kay trucks to the destination point. The Mar-Kay
operation was located on Naiman Parkway in Solon,
Ohio, a southeastern suburb of Cleveland. It consisted of
3900 square feet of warehouse space and 600 square feet
of office space. These facilities were leased. The lease ex-
pired in June 1984.
The major customers of Mar-Kay and their percentage
of Mar-Kay's total business in 1983 and 1984 were as fol-
lows: Sears, 19 percent of the total business in 1983 and
40 percent in 1984; J. C. Penney, 62 percent in 1983 and
44 percent in 1984; Joseph Horne Co., 8 percent in 1983;
IGC Transportation, 4 percent in 1983 and 6 percent in
1984; W. Levy Furniture, 4 percent in each of 1983 and
1984; Bonhards Interiors, 3 percent in 1984.
In the performance of its delivery functions Mar-Kay
owned its own PUCO authority-operating rights under
the Pubic Utilities Commission of Ohio. May-Kay also
had ICC authority to operate interstate. In some cases it
would operate under its own authority and in others as a
labor broker under the authority of a customer, such as
J C. Penney, which would provide the vehicles.
b. Contemporary
Contemporary was incorporated in late December
1983 and began business operations on 6 February 1984.
Its main facility is located on Corbin Road in Bedford
Heights, which, like Solon, is a suburb of Cleveland.
Contemporary's Corbin Road facility is located some 4
miles from Mar-Kay's former facility. The Corbin Road
facility is leased and was originally comprised of 400
square feet of office space and 2000 square feet of ware-
house space.5
Contemporary is solely owned by Rochelle Kaspy,
Howard Kaspy's wife. She serves as president and treas-
urer of Contemporary. The vice president is Seth Kaspy,
the Kaspy's 19-year old son. Louis Orkin, Howard
Kaspy's cousin, is secretary of Contemporary. Howard
Kaspy is not an officer of Contemporary but serves as
sales manager and assists Nate Schenker who is "in
charge of the total operating functions" at Contempo-
rary. Schenker was also office manager at Mar-Kay.6
Howard Kaspy receives no income from Contempo-
rary but his wife receives a "draw" of $500 per week.
Neither Orkin nor Seth Kaspy, the other officers of Con-
temporary, receives a salary. As a closely held corpora-
tion, Contemporary is taxed under subchapter S of the
5 In October 1984 Contemporary added another 8000 square feet of
warehouse space
6 Marvin Wolf, who worked for Mar-Kay, retired and he does not
work for Contemporary His job as warehouse supervisor and dispatcher
at Mar-Kay is now handled at Contemporary by Bryan Dunn Ted
Kaspy also retired Howard Kaspy, who is in charge of sales at Contem-
porary was also in charge of sales at Mar-Kay Leighton Kaspy, the
Kaspy's second oldest son who is 17, worked part time in the warehouse
at both Mar-Kay and Contemporary. One other former Mar-Kay- office
employee worked at Contemporary for a few months after its inception.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tax Code. Rochelle and Howard Kaspy file a joint tax
return.
Rochelle Kaspy testified that neither she nor her hus-
band have any other source of income outside of their
involvement with Contemporary. She became involved
in the incorporation of Contemporary sometime in De-
cember 1983 when she and her husband discussed the
labor problems and possible closing of Mar-Kay. Ac-
cording to Rochelle Kaspy, she and her husband decided
to start Contemporary because "we had to find some
means of supporting ourselves" and to provide a "source
of livelihood for the family." Rochelle Kaspy stated that
this was necessary because "the Union was putting [Mar
Kay] out of business. She testified as follows:
After I-well, Howard explained to me that there
had been a series of Union meetings which the con-
cessions had been rejected, and if they continued to
reject the concessions, that Mar-Kay Cartage would
be in a position where it would either have to gain
new capital or continue operating at a loss. So, in
order to protect ourselves at a very minimal cost,
we decided to incorporate. And if we didn't need it
there would be very little lost financially.
Before the formation of Contemporary, Rochelle
Kaspy had no experience in the trucking business or any
business. She was a housewife and a substitute foreign
language teacher. She did not, however, earn any
income from teaching during the school year beginning
in September 1983.
Contemporary does not employ any drivers or helpers.
On 6 February 1984-Contemporary's first day of oper-
ation-Contemporary entered into a contract with D &
S Leasing Inc for the latter to provide it with such em-
ployees. The contract provides that D & S would be the
employer of Contemporary's drivers and helpers, pay
them according to an agreed-on schedule of wages and
benefits and take care of all payroll and compensation
matters with respect to these employees. The contract
also provides that Contemporary " at all times will solely
and exclusively be responsible for maintaining operation-
al control direction and supervision over said employ-
ees." Under the contract Contemporary also has the
right to reject employees supplied by D & S.
Since D & S's office is in Michigan and it has no office
in the Cleveland area, Contemporary placed ads in local
newspapers for drivers. Contemporary assembled the ap-
plications and forwarded them to D & S. An official of
Contemporary-usually Rochelle Kaspy-would inter-
view the applicants and decide whom to hire or whom
to reject. In her absence-and she was absent about 50
percent of the time after June of 1984-Howard Kaspy
would interview the applicants, make the hiring determi-
nations, and handle communications with D & S.
Contemporary maintains a list of approved employees
and Contemporary calls them as needed. Several of these
employees formerly worked for Mar-Kay. Bryan Dunn
handles the dispatch function. He makes the decision as
to which drivers or employees to call. He does not con-
sult D & S before selecting them.
Both Howard and Rochelle Kaspy signed the contract
between Contemporary and D & S. Howard Kaspy tried
to downplay the significance of his signature by saying
that he simply witnessed his wife's signature. I do not
accept this view of his role.?
There is no doubt that Contemporary's labor contracts
with D & S and Genesee are less costly than Mar-Kay's
contract with the Union. For example, the Union's con-
tract provided wages of $9.57 per hour plus about $I-
per-hour contribution to fringe benefit funds. The D & S
contract called for a rate of $9.81 per hour but that in-
cluded payroll costs and service fees. This figure also in-
cluded unemployment compensation, workmen's com-
pensation, social security, and taxes. There was also a
weekly payment for fringe benefits. In addition, the D &
S contract provided for the very "cost-stop" payment
for Sears deliveries-a flat rate of $5.41 per stop-which
Mar-Kay had unsuccesfully sought to obtain from the
Union as a wage concession . The Genesee contract was,
of course, even less costly than the D & S contract.
Contemporary does not own delivery trucks . It leases
the trucks it uses from two companies, Gelco Truck
Leasing Division of Gelco Corporation and Ryder Truck
Rental, Inc. A contract with Gelco dated 7 May 1984
and providing for the rental of three trucks was entered
into the record. However, subsequent documentary evi-
dence shows there was another agreement between
Gelco and Contemporary dated 14 July 1984 which is
not in evidence . The Ryder contract is also not in evi-
dence.8
A list of original Contemporary customers was re-
ceived into evidence. The customer list was drawn up by
Howard Kaspy who solicited their business. Although
some customers on the list have not yet done business
with Contemporary, Kaspy is "hopeful" that they will
utilize Contemporary. Almost all of these customers
were also customers of Mar-Kay. The only exceptions
were one or two firms whose portion of the total busi-
ness is "minimal ." Contemporary was also able to expand
the Sears account from what it had been under Mar-Kay
by adding Sears' Ashtabula County deliveries. Howard
Kaspy negotiated with Sears to do this additional work.
In the cases-such as for J. C Penney-where Mar-Kay
served as labor broker for the customers, Contemporary
plays the same role as Mar-Kay. The major customers of
Contemporary are Sears , J. C. Penney, IGC Transporta-
tion, and Bonhards Interiors; their percentage of Con-
temporary's total business is 40 percent, 43 percent, 8
percent, and 3 percent respectively.
After at first denying he contacted any of Mar-Kay's
clients in order to notify them of the formation of Con-
temporary, Howard Kaspy was referred to his pretrial
affidavit and he admitted that he and his wife met with
Mar-Kay's major clients-Penney and Sears-and noti-
r Thereafter, on 20 August 1984, Contemporary also entered into a
contract with Genesee Cartage-another company owned by the person
who owns D & S which has the same address as D & S-to provide
drivers at a lower cost It appears that both contracts are in effect at
present It is unclear how Contemporary decides which employees work
under which of the contracts
8 Mar-Kay sold its trucks to a third party
MAR-KAY CARTAGE 1339
feed them that Mar-Kay was going to close and that
Contemporary was interested in their business. There
was no interruption in the service provided to the major
customers when Mar-Kay closed.
On 1 February 1984, even before it went out of busi-
ness, Mar-Kay sold its PUCO authority to Contempo-
rary for $16 ,000. The final payment for the PUCO au-
thority was made on 10 May 1984. Mar-Kay also as-
signed its ICC authority to Contemporary . In addition,
Mar-Kay sold 65 percent of its office furniture and
equipment to Contemporary ; the rest was described as
"junk" by Howard Kaspy. Contemporary paid $2750 for
the furniture and equipment , an amount slightly below its
appraised value. There is no evidence that the PUCO au-
thority or the office equipment was offered for sale to
any other party or that Contemporary sought such au-
thority or equipment from any other sources. Also trans-
ferred to Contemporary was a "converted tow truck"
worth $500 and a 1980 Lincoln , used by Howard Kaspy
when he was with Mar-Kay, worth $5000. Kaspy uses
the Lincoln to carry out his duties with Contemporary.
The Lincoln and the truck were apparently transferred
to Howard Kaspy by Mar-Kay.9
An incomplete financial statement introduced into evi-
dence in this case and explained by the certified public
accountant who prepared it indicates that Howard
Kaspy contributed $5500 in capital to Contemporary-
the value of the two vehicles transferred by him to Con-
temporary at its incorporation. The only other capital
which was contributed was $500 from Rochelle Kaspy in
exchange for 100 shares of common stock.
Contemporary also utilized the proceeds from several
loans to it by Kaspy family members as working capital.
There were four loans totalling $30 ,000 from Howard
Kaspy's two minor children , Leighton, 17, and Mitchell
10, who both live at home. The loans were in the form
of notes payable to the Kaspy children by Contemporary
on demand , with interest at 14 percent . The notes are
dated 6 and 28 February, 28 March , and 10 May 1984.
These funds were originally bequests from Rochelle
Kaspy's father to her upon his death in 1979. She then
made a gift of the bequests to Leighton and Mitchell
and, as custodian of that money, she caused the loans to
be made to Contemporary . An additional source of funds
for Contemporary , a loan of $11,000 from Rochelle
Kaspy, was evidenced by a promissory note dated 18
June 1984 with interest at 14 percent. These funds were
used to purchase a 12-month certificate of deposit from
Bank One of Cleveland with interest at 11.10 percent
which in turn was used to obtain letters of credit re-
quired by Gelco and Ryder under their truck leasing ar-
rangements with Contemporary . In consideration for an
extension of credit from Bank One, Contemporary, on
the same date-18 June 1984-assigned to the bank the
above certificate of deposit . In addition , on 13 June 1984,
Contemporary obtained a $15,000 unsecured loan from
Bank One. The bank required that Contemporary sign
9 Kaspy testified that the Lincoln was transferred to him "in lieu of
back pay" Apparently he was referring to the agreement wherein his
pay was reduced from $775 per week to $400 per week in September
1983
for the loan, but it also required that both Rochelle and
Howard Kaspy sign individually on the loan. 10
Both Howard -and Rochelle Kaspy are authorized to
and do sign checks on the Contemporary bank account.
For example, Howard Kaspy signed a check on Contem-
porary's account in May 1984 for $7500 in part payment
to Mar-Kay Cartage for its purchase of Mar-Kay's
PUCO authority.
Howard Kaspy attempted to downplay his involve-
ment in the business decisions of Contemporary , attrib-
uting most of them to his wife. He did, however, ac-
knowledge participating in some decisions in an advisory
capacity and making some of them in her absence. For
example, the evidence herein shows that Howard Kaspy
participated in the negotiations with former Mar-Kay
customers such as Sears and J . C. Penney leading to
their continuation-without interruption in service-with
Contemporary . He also participated in the determination
by Contemporary of acceptable labor costs and the re-
sulting negotiations with D & S Leasing and Genesee
over labor costs and hiring arrangements . And he partici-
pated in the decisions concerning the leasing of office
and warehouse space for Contemporary . Rochelle Kaspy
also attempted to show that she-and not her husband-
made the major business decisions for Contemporary.
However, it appears that Rochelle Kaspy was hospital-
ized for a serious illness in May 1984 and thereafter was
undergoing chemotherapy treatments which kept her out
of the office . She only appears at the office 50 percent of
the time . Howard Kaspy , on the other hand, shows up at
the office at all times.
I cannot accept the testimony of the Kaspys insofar as
it attempts to downplay the role of Howard Kaspy in the
decision making of Contemporary . In Howard Kaspy's
case, his testimony was as unreliable as was his very
similar testimony attempting to downplay his role in
Mar-Kay.
Rochelle Kaspy's testimony that she delegates certain
functions to her husband was also , unimpressive . Her in-
sistence that she alone handled the major business deci-
sions for Contemporary was insincere and unbelievable.
For example , she testified that her husband did not assist
her or give her advice in negotiating the contracts with
Sears and J . C. Penney. This is difficult to accept. He
was present during the negotiations and he was the vice
president and sales manager for Mar-Kay when these
10 The financial statement which was entered into evidence is incom-
plete . The unaudited statement itself is an compilation which carries a
caveat by the accountant who prepared it The covering letter states as
follows.
Management has elected to omit substantially all disclosures which
are required by generally accepted accounting principles If the
omitted disclosures were included in the financial statements, they
might influence the users conclusions about the company 's financial
position, results of operations, and changes in financial position Ac-
cordingly these financial statements are not designed for those who
are not informed about such matters
The statement , for example, does not list either the $ 11,000 loan from Ro-
chell Kaspy or the $15,000 loan from Bank One as an account payable
and it lists her draw as a reduction of long-term debt. Accordingly, I do
not rely on this evidence as a complete financial statement It is useful
only to the extent that it is supported by the testimony of the accountant
and other evidence.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
firms dealt with Mar-Kay. Moreover, the record shows
that there was no interruption in service to those firms in
February 1984. The original customer list of Contempo-
rary was essentially composed of former Mar-Kay cus-
tomers. In addition, Rochelle Kaspy had no experience
in the trucking industry and her responses, during the
hearing, to questions involving contract negotiations and
other aspects of the business not only show a lack of
depth and knowledge about those matters, but also dem-
onstrate an evasiveness which would preclude any objec-
tive`trier of fact from relying on her testimony. Ii
In short, the unreliable testimony of the Kaspys, their
relative experience levels, the fact of Howard Kaspy's
acknowledged participatory and advisory role, and the
fact that Rochelle Kaspy was absent from the office 50
percent of the time all lead me to the conclusion that
Howard Kaspy did play a major role in the business de-
cisions of Contemporary, including the labor relations
decisions attendant to the utilization of drivers from D &
S. It is, of course, well settled that a trier of fact may
make credibility determinations that not only reject a
witness' story but find that the truth is the opposite of
that story. See NLRB v. Walton Mfg. Co, 369 U.S. 404,
408 (1962), quoting from Dyer v. MacDougall, 201 F.2d
265, 269 (2d Cir. 1952). These determinations are all the
more valid when supported, as here, by reasonable infer-
ences from objective facts.
B. Discussion and Analysis
1. The alter ego issue
The, pivotal issue herein is whether Contemporary is
the alter ego of Mar-Kay. It is, of course, well settled
that an employer cannot evade its obligations under the
Act by forming what appears to be a new company but
is in fact a "disguised continuance" or alter ego of the
old company. Southport Petroleum Co. v. NLRB, 315 U.S.
100, 106 (1942); Howard Johnson Co. v. Hotel & Restau-
rant Employees, 417 U.S. 249, 259 fn. 5 (1974); NLRB v.
Herman Bros. Pet Supply, 325 F.2d 68, 69-72 (6th Cir.
1963). The Board has found alter ego status where the
two enterprises have "substantially identical" manage-
ment, business purpose, operation, equipment, customers,
and supervision, as well as ownership. Advance Electric,
268 NLRB 1001, 1002 (1984). In addition, the Board
considers whether the purpose behind the creation of the
new corporation was "to evade responsibilities under the
Act." Ibid, quoting from Fugazy Continental Corp., 265
NLRB 1301 (1982), enfd. 725 F.2d 1416 (D.C. Cir. 1984).
The record reveals that Mar-Kay and Contemporary
had the same business purpose and mode of operation.
They both performed truck delivery services in the same
geographical area Their locations were 4 miles apart in
a suburb of Cleveland. Initially-and for the first 8
months of its operation until 3 weeks before the hear-
i 1 For example, she admitted she did not have "a lot of experience
with contracts" and she also described her "delegation" of functions to
her husband in the following manner "I allow him to answer the phone
I allow him to write no orders I allow him to be my liaison whenever
needed " A trier of fact can perhaps make allowances for a domineering
woman and a submissive husband, but Rochelle Kaspy's description of
her husband's business responsibilities is a bit hard to swallow.
ing-Contemporary had roughly the same amount of
office space and less than half as much warehouse space
as Mar-Kay.- The major customers of both firms were es-
sentially the same and there was no interruption in serv-
ice between the closing of Mar-Kay and the opening of
Contemporary. Howard Kaspy, who was responsible for
sales in both firms, managed to secure the same customer
base for Contemporary as he had serviced for Mar-Kay.
In brief Contemporary argues that its business was sig-
nificantly different from Mar-Kay's because it empha-
sized the warehouse function of the operation more than
did Mar-Kay. In this respect it points to evidence that
Contemporary and Weis, one of its customers, advertised
jointly that warehouse space was available and it also
points to its utilization of 10,000 square feet of ware-
house space in October 1984. However, this evidence
does not amount to a change in the business operation.
For 8 months Contemporary operated with much less
warehouse space than Mar-Kay and its utilization of
more warehouse space in October, shortly before the
hearing in this case, is what can be expected in the
normal expansion of business. Nor is the mode of oper-
ation significantly different solely because Contemporary
leases its vehicles rather than owns them as did Mar-
Kay. What is significant is that when Contemporary
began operations 2 days after Mar-Kay folded, it operat-
ed essentially a truck delivery and warehouse service as
did Mar-Kay.
It is also clear that Contemporary and Mar-Kay shared
a substantially identical customer base Sears and J. C.
Penney were the major customers for both firms. They
provided about 80 percent of Mar-Kay's business in the
last 2 years of its operation; and they provided about 83
percent of Contemporary's business. It is true, as Con-
temporary points out, that Contemporary was able to
add Sears' Ashtabula County deliveries but' there is no
evidence that this work was of a different character than
the other delivery work it already performed for Sears.
Here again this evidence merely shows a normal expan-
sion of business. Contemporary, in brief, also argues that
W. Levy, a Mar-Kay account, no longer is a customer of
Contemporary. But it is clear that Levy was an initial
customer of Contemporary and was dropped at some un-
disclosed subsequent date. Moreover, this customer only
accounted for 2 percent of Contemporary's business.
With respect to common equipment, the evidence
shows that Contemporary purchased all of Mar-Kay's
usable office equipment as well as Mar-Kay's PUCO and
ICC authority. 12 There is no evidence that Mar-Kay
sought to sell these assets to other parties or that Con-
temporary sought to purchase these assets from other
firms It is true that the office equipment was appraised
and Contemporary paid substantially the appraised value
for this equipment. And it is also true that Mar-Kay's
trucks were not sold to Contemporary. There is, howev-
er, no evidence of an independent appraisal of the value
of the PUCO authority and Contemporary, of course,
had no need for trucks since it decided to lease them. Al-
12 The ICC authority was transferred without payment but is charac-
terized as having no value to either corporation
MAR-KAY CARTAGE 1341
though the evidence on this point alone might not sup-
port an alter ego finding , it is not inconsistent with such
a finding based on the other considerations which point
overwhelmingly to a finding of alter ego.
There is no doubt about common management and su-
pervision of the two corporations. The evidence shows
that Howard Kaspy participated in significant manage-
ment and labor relations decisions for both firms. He
handled negotiations with the Union in the attempt to
cut Mar-Kay 's labor costs . He participated with his wife
in the determination to utilize a labor broker to provide
employees for Contemporary. And, certainly in the ab-
sence of his wife, he handled the interview and selection
of drivers . It is clear also that Howard Kaspy 's experi-
ence in the trucking business provides a continuity in the
management of both firms whose ostensible presidents
were his father and his wife, both of whom only worked
50 percent of the time due to illness . Howard Kaspy
worked full time at both firms. In addition, the office
manager of both firms was Nate Schenker , Kaspy's
cousin, who was also the treasurer of Mar-Kay. Kaspy's
son and another cousin are officers of Contemporary.
Neither of them is paid . It seems obvious that the major
day-to-day managers of the two firms remained the same.
As to supervision, it is fairly clear that Howard Kaspy
who had significant authority over the labor relations of
Mar-Kay continued his general supervision over this
function with Contemporary . He participates in the se-
lection of drivers and communicates with the labor
broker, at least when his wife is out of the office. As I
have stated earlier in this decision, I believe his actual
authority in this respect is far greater than either he or
his wife cared to admit. In other respects the supervision
of employees is not shown to be significantly different.
Schenker, who was described by Kaspy as being "in
charge of the total operating functions" at Contempo-
rary, served in the same position at both firms . Although
Bryan Dunn replaced Marvin Wolf as dispatcher and
warehouse supervisor , there is no evidence that Contem-
porary's method of supervision differed from Mar-Kay's
in any significant way. The use of D & S as labor broker
does not alter the supervisory authority of Contempo-
rary officials. The contract between Contemporary and
D & S clearly states that Contemporary has the right to
reject drivers supplied from D & S and that Contempo-
rary has sole and exclusive responsibility for the direc-
tion and supervision of employees provided by D & S.
As to the ownership of the two firms, it is clear that
Ted Kaspy, Howard's father, was the sole owner of
Mar-Kay and had no ownership interest in Contempo-
rary. However, it is also clear that both firms were
owned by members of the Kaspy family and the corpo-
rate officers were also members of that family . Howard
Kaspy's role in both firms is significant. He was vice
president of Mar-Kay and certainly ran Mar-Kay after
the illness of his father. He is also effectively the owner
of Contemporary even though his wife owns all of the
stock . He contributed about 10 times as much capital as
she did-$5500 in equipment compared to $500 for her.
His contribution , moreover, was made up of assets he re-
ceived from Mar-Kay-a tow truck and an automobile.
These assets were transferred to him as a result of an
agreement between him and his father . The only consid-
eration for this transfer was to make up for a pay cut
Howard Kaspy took in September 1983. There is no evi-
dence that other officers or employees received such
preferential treatment . Rochelle Kaspy's loan to the cor-
poration is of course not capital but an account payable.
Indeed the money was essentially used to purchase a cer-
tificate of deposit which in turn provides security for let-
ters of credit . As a creditor she assumes less of a risk in
practical terms than her husband . The same applies to
the loans from the Kaspy children . Finally, since
Howard Kaspy is not paid one cent for what he does-
full time-for Contemporary and since he and his wife
file a joint tax return, Rochelle Kaspy 's draw from the
corporation must be considered family income. The
facade of Rochelle Kaspy's ownership is revealed by the
bank's insistence on the individual signature of both
Kaspys on a loan to the corporation . In these circum-
stances, I find that Contemporary and Mar -Kay share
substantially identical ownership.
Contrary to the contention of Contemporary in brief,
the fact that Ted Kaspy retired after Mar-Kay ceased
operations and does not have an ownership interest in
Contemporary does not require a different result.
Howard Kaspy's significant role in the operation of both
corporations transcends the simple assertion that Ted
Kaspy owned and managed Mar-Kay and that Rochelle
Kaspy owned and managed Contemporary . In any event,
common ownership is not an absolute prerequisite to an
alter ego finding . Fugazy Continental Corp. Y. NLRB, 725
F.2d 1416, 1420 (D .C. Cir. 1984). The Board considers it
sufficient to satisfy this aspect of the alter ego test that
members of the same family have stock ownership in the
two corporations . See Crawford Door Sales, 226 NLRB
1144 (1976); Advance Electric, supra ; Tanaka Construction,
249 NLRB 238, 241 fn . 29 (1980), enfd . 675 F .2d 1029
(9th Cir . 1982); Super Save, 273 NLRB 20 (1984).
Finally there, remains for consideration whether the
purpose behind the formation of Contemporary was to
evade responsibilities under the Act. It is clear that
Howard Kaspy was instrumental in attempting to secure
concessions for Mar-Kay from the Union . When this
effort failed , Mar-Kay ceased operations . It is also clear
from Rochelle Kaspy's testimony that Contemporary
was formed in order to eliminate the high costs associat-
ed with operating Mar-Kay as a union company. She and
her husband formed Contemporary to provide a job for
Howard and a means of support for the Kaspy family.
This was necessitated , according to Rochelle Kaspy, be-
cause the Union was forcing Mar-Kay out of business.
The inference is plain that both the decision to form
Contemporary and the decision not to use union repre-
sented employees who were required to be paid under
the Mar-Kay collective-bargaining agreement were moti-
vated by union considerations . A comparison of the
union contract at Mar-Kay with the labor contract with
D & S not only shows lower labor costs but also shows
that it provides the same flat rate method of payment
which Mar -Kay sought unsuccessfully to achieve in its
negotiations with the Union. This evidence fairly leads to
the inference that the true purpose for the formation of
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Contemporary was to evade Mar-Kay's responsibility
under the Act to bargain with the Union and to honor its
collective-bargaining agreement . Such a motivation sup-
ports an alter ego finding. See Advance Electric, supra,
and Super Save, supra . In addition, the obvious benefit in
the operation of Contemporary as a nonunion firm was
the continuation of a livelihood for the Kaspy family
without the high cost of a union contract or union repre-
sentation . See Watt Electric Co., 273 NLRB 655, 658
(1984).
2. The violations
It is undisputed that, since its commencement of busi-
ness on 6 February 1985, Contemporary has never recog-
nized the Union _as the bargaining agent of its employees
and Contemporary did not advise the Union about the
arrangements with respect to the employment services
provided to Contemporary by D & S. There is also no
dispute that Mar-Kay terminated its work force on 4
February 1984.
Since Contemporary is the alter ego of Mar-Kay it
was-at all times since its commencement of oper-
ations-obligated to bargain with the Union as represent-
ative of its employees and was and is bound by the col-
lective-bargaining agreement between Mar-Kay and the
Union. Its failure to bargain and to honor the agreement
constitutes a violation of Section 8(a)(5) and (1) of the
Act. See Advance Electric, supra. The General Counsel
also alleges another violation of Section 8(a)(5) and (1)
which I find has been proved in this case . Contemporary
unilaterally, changed the method of paying and utilizing
employees by entering into a contract with D & S. In
view of the alter ego finding and the finding that Re-
spondent attempted to evade its responsibilities under the
Act, its unilateral conduct cannot be deemed a legitimate
change in the nature and direction of its business. See
Otis Elevator Co., 269 NLRB 891, 984 (1984). This con-
duct, which effectively repudiated the collective-bargain-
ing agreement, and was taken without notification to the
Union and without giving the Union an opportunity to
bargain over the matter , constituted a separate , albeit a
derivative and subsidiary, violation of the Act.
The repudiation of the collective-bargaining agreement
and the evidence of alter ego status, including the evi-
dence that Contemporary was formed to evade responsi-
bilities under the Act, also demonstrate that the layoff of
the union-represented work force and the continued op-
eration of Contemporary without them was violative of
Section 8(a)(3) and (1) of the Act. Such a termination of
union-represented employees in an alter ego situation is
unlawful because it forces the employees to work with-
out a union contract or not to work at all. See Advance
Electric, supra; Super Save, supra. Indeed, in this case,
Respondent did not even offer the union-represented em-
ployees the opportunity to work for Contemporary.
Mar-Kay's argument, in brief, that the layoff was eco-
nomically motivated is without merit in view of the find-
ing that, the employer which laid off the employees con-
tinued as an employing enterprise under a different
name.13 -
CONCLUSIONS OF LAW
1. Respondent Contemporary Delivery Systems, Inc.
is, for the purpose of this proceeding, the alter ego of
Respondent Mar-Kay Cartage, Inc.
2. All drivers, helpers, warehousemen, operators, ship-
ping and receiving clerks, and packers employed by
Mar-Kay Cartage, Inc. and by its alter ego Contempo-
rary Delivery Systems, Inc., but excluding all office cler-
ical employees, guards, and supervisors as defined in the
Act constitute a unit appropriate for collective bargain-
ing within the meaning of Section 9(b) of the Act.
3. At all times material herein, the Union has been the
exclusive collective-bargaining representative of the em-
ployees in the appropriate unit set forth above within the
meaning of Section 9(a) of the Act.
4. By failing and refusing to recognize and bargain
with the Union as exclusive representative of its employ-
ees in the appropriate unit, by failing to honor the collec-
tive-bargaining agreement with respect to such employ-
ees, and by failing to apply to such employees the terms -
and conditions of the agreement, Respondent 14 has vio-
lated Section 8(a)(5) and (1) of the Act.
5. By failing to notify and bargain with the Union
before subcontracting for the employment of drivers and
other employees through other companies, Respondent
has violated Section 8(a)(5) and (1) of the Act.
6, By laying off and terminating the employees in the
appropriate unit described above because of their union
representation and because they were covered by a col-
lective-bargaining agreement, Respondent has violated
Section 8(a)(3) and (1) of the Act.
7. The aforesaid violations are unfair labor practices
affecting commerce within the meaning of Section 2(6)
and (7) of the Act
THE REMEDY
Having found that Respondent has violated Section
8(a)(5), (3), and (1) of the Act, I shall order that Re-
spondent cease and desist from engaging in the conduct
found unlawful and take certain affirmative action de-
signed to effectuate the policies of the Act.
Since it has been found that Respondent unlawfully
and discriminatorily terminated its union-represented em-
ployees on 4 February 1984, I shall also order Respond-
ent to restore the status quo ante by offering these em-
ployees their former jobs or, if those jobs no longer exist,
substantially equivalent jobs, without prejudice to their
18 It is also alleged that Mar-Kay failed to provide the Union with in-
formation relevant to the pension credits of laid-off employees in viola-
lion of Sec 8(a)(5) and (1)-of the Act This allegation was not proven by
a preponderance of the evidence. There was no showing of particular rel-
evance to the Union's bargaining needs and it is not clear whether the
information was provided to or already available to the pension fund In
any event, in view of the other violations herein and the broad remedy
for those violations, including a general bargaining order, retroactive
payment of contract benefits and backpay for laid-off employees, any
finding in this respect is superfluous
14 At this point Respondent used in the singular means both respond-
ents
MAR-KAY CARTAGE
seniority and other rights and privileges , dismissing if
necessary , any employees hired on or since 4 February
1984 to fill any of said positions , and make them whole
for any loss of earnings suffered by reason of the dis-
crimination against them by payment to them of sums of
money equal to that which they normally would have
earned absent the discrimination, less net interim earnings
during such period , computed on a quarterly basis in the
manner established in F. W. Woolworth Co., 90 NLRB
289 (1950), with interest computed as described in Flori-
da Steel Corp., 231 NLRB 651 (1977).15
Having also found that Respondent Contemporary is
the alter ego of Respondent Mar-Kay and has continued
to operate its business, but has failed and refused to rec-
ognize the Union or to apply the terms of the collective-
bargaining agreement between the Union and Mar-Kay, I
shall order Respondent Contemporary to recognize the
Union as the representative of its employees and to
honor the terms of that agreement to its employees. Re-
spondent shall also make whole its employees by making
the contractually established payments to the various
trust funds established by the collective-bargaining agree-
ment,16 and by reimbursing employees for any expenses
ensuing from Respondent unlawful failure to make such
required payments , as provided in Kraft Plumbing &
Heating, 252 NLRB 891 fn 1 (1980), enfd. 661 F.2d 940
(9th Cir. 1981).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'7
ORDER
The Respondent , Mar-Kay Cartage , Inc., Solon, Ohio,
and its alter ego, Contemporary Delivery Systems, Inc.,
Bedford Heights , Ohio, its officers , agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain with the Union
as the exclusive representative of its employees in the ap-
propriate unit with respect to wages, hours, working
conditions , or other terms and conditions of employment,
and refusing to honor the collective -bargaining agree-
ment applicable to those employees.
(b) Subcontracting for the employment of drivers and
other employees with D & S Leasing , Inc., Genesee
Cartage, or any other company without first notifying
the Union and offering it an opportunity to bargain over
the matter.
(c) Discouraging membership in the Union, or any
other labor organization, by terminating its employees
because they belong to the Union, or any other labor or-
ganization , or because they are covered under a collec-
tive-bargaining agreement , or by otherwise discriminat-
ing against its employees in regard to hire, tenure of em-
ployment, or other terms and conditions of employment.
16 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
16 See Merryweather Optical Co, 240 NLRB 1213, 1216 fn 7 (1979).
17 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Order shall , as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1343
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to the employees laid off or terminated by
Mar-Kay on 4 February 1984 immediate and full rein-
statement to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions , without preju-
dice to their seniority or any other rights or privileges
previously enjoyed , and make them whole for any loss of
earnings and`other benefits suffered as a result of the dis-
crimination against them , in the manner set forth in the
remedy section of the decision.
(b) Remove from its files any reference to the unlawful,
layoffs or discharges and notify the employees in writing
that this has been done and that the discharges will not
be used against them in any way.
(c) Comply with the terms and conditions of the col-
lective-bargaining agreement between the Union and
Mar-Kay to which the Union is bound , retroactively to 4
February 1984 and prospectively if the agreement is con-
tinued by its terms, including making the appropriate
trust funds, employees , and the Union whole in the
manner described in the remedy section of this decision.
(d) On request, recognize and bargain with the Union
as the exclusive representative of the employees in the
following appropriate unit concerning terms and condi-
tions of employment:
All drivers, helpers, warehousemen , operators,
shipping and receiving clerks, and packers em-
ployed by Mar Kay and its alter ego Contemporary,
but excluding all office clerical employees and pro-
fessional employees , guards and supervisors as de-
fined in the Act.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying , all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(f) Post at its facility in Bedford Heights, Ohio, copies
of the attached notice marked "Appendix." 18 Copies of
the notice , on forms provided by the Regional Director
for Region 8, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced , or covered by
any other material.
(g) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
18 If this Order is enforced by a judgment of a United States court of
appeals , the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT refuse to recognize and bargain with
Van Drivers, Furniture Warehousemen Handlers, T.V.-
Radio-Appliance-Air Condition Servicemen and Piano
Movers Local Union No. 392, a/w the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America as the exclusive representative
of our employees in the appropriate unit with respect to
wages, hours, working conditions, or other terms and
conditions of employment.
WE WILL NOT subcontract for the employment of
drivers and other employees with D & S Leasing, Inc.,
Genesee Cartage, or any other company without first no-
tifiying Van Drivers, Furniture Warehousemen Handlers,
T.V.-Radio-Appliance-Air Condition Servicemen and
Piano Movers Local Union No. 392, a/w the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America, and offering it an oppor-
tunity to bargain over the matter.
WE WILL NOT discourage membership in the above-
named Union, or any other labor organization , by termi-
nating our employees because they belong to the above-
named Union or any other labor organization, or because
they are covered under a collective-bargaining agree-
ment , or by otherwise discriminating against our employ-
ees in regard to hire, tenure of employment, or other
terms and conditions of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer to our employees laid off or terminated
by us on 4 February 1984 immediate and full reinstate-
ment to their former jobs or, if those jobs no longer
exist, to substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges pre-
viously enjoyed, and make them whole for any loss of
earnings and other benefits resulting from their dis-
charge, in the manner set forth in the Board's decision.
WE WILL remove from our files any reference to the
unlawful layoffs or terminations and notify the employ-
ees in writing that this has been done and that the termi-
nations will not be used against them in any way.
WE WILL comply with the terms and conditions of the
collective-bargaining agreement between the above-
named Union and Mar-Kay to which the Union is
bound, retroactively to 4 February 1984 and prospective-
ly if the agreement is continued by its terms, including
making the appropriate trust funds, employees, and the
Union whole in the manner described in the Board's de-
cision.
WE WILL, on request, recognize and bargain with the
above-named Union as the exclusive representative of the
employees in the following appropriate unit concerning
terms and conditions of employment:
All drivers, helpers, warehousemen, operators,
shipping and receiving clerks, and packers em-
ployed by Mar Kay and its alter ego Contemporary,
but excluding all office clerical employees and pro-
fessional employees, guards and supervisors as de-
fined in the Act.
MAR-KAY CARTAGE, INC. AND CONTEM-
PORARY DELIVERY SYSTEMS, INC.