Miller Trucking Service, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1969

176 N.L.R.B. 556 (N.L.R.B. 1969)

556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miller Trucking Service , Inc., and/or Miller
Trucking Service , Inc., a subsidiary of Tulsa Crude
Oil Purchasing Company and Truck Drivers and
Helpers Local Union No. 696, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America. Case 17-CA-3264
June 11, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On March 21, 1968, Trial Examiner George J.
Bott issued his Decision in the above-entitled
proceeding, finding that the Respondent which he
designated as Miller Trucking Service, Inc., had
engaged in certain unfair labor practices. He,
however, recommended no remedy for these
violations . He also found that the Respondent which
he designated as Miller Trucking Service, Inc., a
subsidiary of Tulsa Crude Oil Purchasing Company,
although continuing the same operations after
buying the Respondent ' s stock , had not engaged in
the unfair labor practices alleged in the complaint,
and was not responsible for remedying the unfair
labor practices he found to have occurred.
Accordingly, the Trial Examiner recommended that
the complaint be dismissed in its entirety.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner' s Decision and a supporting brief
and the Respondent filed cross -exceptions to the
Trial Examiner 's Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner ' s Decision, the exceptions , the briefs, and
the entire record in this case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner only to the extent consistent
herewith.
Prior to May 20, 1967, Hilary Miller and his wife
owned substantially all of the outstanding common
stock of Respondent Miller Trucking Service, Inc.
Hilary Miller was president of the corporation and
managed the business . On May 20, 1967, the
Respondent received a letter from the Union,
asserting that it represented a majority of the
Respondent ' s truckdrivers and mechanics for the
purpose of collective bargaining . The letter also
requested a meeting . However , no response was ever
made to this letter . On May 31 , the Respondent was
served with a Notice of Representation Hearing and
176 NLRB No. 76
a copy of the Union's election petition dated May
22. The election petition was subsequently
withdrawn.
Hilary Miller had, by this time, begun to make
inquiries respecting the possible sale of his stock in
the Respondent. On or about May 24, 1967, he met
with representatives of Tulsa Crude Oil Purchasing
Company to negotiate the terms and conditions for
sale of the Respondent's stock. Another meeting
was held on or about May 31, and on June 10 the
parties executed an agreement for the transfer of all
outstanding shares in the Respondent, the transfer
to take place on June 19. Hilary Miller thereafter
acquired all shares not held by him, and the transfer
of the stock took place as fixed in the sales
agreement. The Respondent was a corporation, and
was never dissolved. But the connections of the
Millers with the Respondent were completely
severed with the transfer of stock. Also, pursuant to
a clause in the sales agreement proposed by Tulsa
Crude Oil Purchasing Company, Hilary Miller
caused all ten employees of the Respondent to be
terminated on June 17. Thereafter, the Respondent
rehired all but four of the former drivers. Except for
closing one of its terminals and having some new
managerial personnel , the Respondent operates in
the same manner as before the stock transfer, using
the same equipment, servicing the same customers
and employing the same number of employees,' at
the same work and under the same general terms
and conditions of employment.
1. Ignoring the continuity of the Respondent as a
legal entity, the Trial Examiner analyzed this case
on the theory that upon the transfer of stock, Hilary
Miller was replaced, as employer, by Tulsa Crude
Oil Purchasing Company. Contrary to this analysis,
we find that at all times in question the employer
was Miller Trucking Service, Inc., regardless of its
stock ownership. Although a corporate identity will
sometimes be pierced in order to avoid its use to
shield one who seeks to evade legal responsibility,' it
will not be pierced to sanction its own wrongdoing.
In other contexts, the Board has consistently held
that mere change of stock owership does not absolve
a continuing corporation of responsibility under the
Act.'
Because we do not accept the Trial Examiner's
analysis of the case as involving two separate and
unrelated legal entities , we do not reach the question
of whether his application of the Darlington4
'Although the evidence was not crystal clear , driver Wagner testified that
there are about the same number of drivers as prior to the transfer of
stock . There was also testimony to the effect that when they were given
applications for rehire , the employees were told that if they did not apply,
the Respondent would have to hire others . No contrary evidence was
offered
'See Fletcher , Cyclopedia of the Law of Private Corporations . Secs. 41,
43, 4231
'See West Boyston Manufacturing Company of Alabama . 87 NLRB
808, 851 , The M B Farrin Lumber Company. 117 NLRB 575; Dunkirk
Broadcasting Corporation, 120 NLRB 1588; Dixie Highway Express, Inc,
153 NLRB 1224, Martin White , Jr. Inc, 165 NLRB No. 81
4N L R B v. Darlington Mfg Co. 380 U S. 263. Nor do we reach the
MILLER TRUCKING SERVICE, INC. 557
doctrine is a correct statement of law. Hilary Miller
is not , and need not be, a respondent in this
proceeding inasmuch as any violations were
committed in the name of the Respondent, a
corporation and can be cured by that entity and its
agents . The transfer of stock of the Respondent did
not itself constitute an unfair labor practice here. If
any unfair labor practices occurred in connection
with the transfer, they were the result not of the
stock transfer but rather of managerial decisions
respecting how the business would function both
before and after that transfer.
2. The Trial Examiner found and we agree that
on May 20, 1967, when the Respondent received the
Union's request for recognition, Hilary Miller, the
Respondent ' s president , engaged in an unlawful poll
of four employees regarding their organizational
activities; on May 22, he unlawfully interrogated a
fifth employee; and on about June 15, he threatened
another employee, whom we find to have been the
leading union activist, with economic reprisal
because of his union activities , in violation of
Section 8(a)(l) of the Act. The Trial Examiner,
however, recommended no remedy as, in his view,
the Respondent was "out of business" and therefore
no remedy was practicable. We, however, find merit
in the General Counsel's exception to the Trial
Examiner ' s failure to order the Respondent to
remedy its unlawful conduct, in view of our finding
above that at all times in question , the Respondent
was a continuing corporate entity.
3. The Trial Examiner found that the Respondent
did not violate Section 8(a)(3) and (1) of the Act by
terminating its employees, an action which he
viewed as part of the transfer of the business from
Hilary Miller to Tulsa Crude Oil Purchasing
Company and therefore privileged under Darlington.
We agree that the evidence is insufficient to
establish that the terminations were violative of
Section 8(a)(3) of the Act, but for the following
reasons . As mentioned above , the purchaser of the
stock proposed the terminations , and the record
indicates only that Hilary Miller agreed thereto.
Although the purchaser of the stock knew of the
employees ' organizational activity, we cannot
conclude, on the basis of the very limited evidence in
the record , that the proposal to terminate was
motivated by antiunion considerations as opposed to
nondiscriminatory business reasons. A new
management was preparing to operate the business,
and new managers often desire , for reasons
unrelated to union activities , to start afresh, with
employees of their own choosing . In these
circumstances , we find that the record does not
establish that the Respondent violated Section
8(a)(3) and (1) of the Act by the termination of its
employees . We shall accordingly dismiss this portion
of the complaint.
question of whether the Trial Examiner has correctly construed the Board's
decision in Perma Vinyl Corporation . 164 NLRB No. 119, enfd . 398 F.2d
544 (C.A. 5).
4. We turn now to a consideration of the
Respondent's duty to recognize and bargain with the
Union. For the reasons set forth in the Trial
Examiner's discussion of unit appropriateness, we
find that the unit described in the Union's letter to
the Respondent and the election petition constitutes
an appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(b) of the
Act. ' Further, we find, in agreement with the Trial
Examiner, that a majority of the employees in the
unit designated the Union as their
collective-bargaining representative. The Trial
Examiner, however, found that the Respondent did
not violate Section 8(a)(5) and (1) of the Act by
refusing to accord the Union recognition. For the
reasons set forth below, we find merit in the General
Counsel's exception to this finding.
After receiving the Union's letter asserting its
representational status, and requesting a meeting for
the purpose of collective bargaining, the Respondent
engaged in widespread interrogation of employee
organizational activity, and unlawfully threatened an
employee respecting such activity. The cumulative
impact of such conduct on the employees' ability to
continue to freely exercise their Section 7 rights is
surely substantial under these circumstances. We
agree with the Trial Examiner's observation that
Hilary Miller's failure to grant the Union statutory
recognition was motivated by a desire to gain time
in which to get out of the business , thereby
destroying the Union.6 Contrary to the Trial
Examiner, however, we find that Miller was an
agent of the Respondent and that the Respondent is
charged with his refusal and the responsibility for
remedying it. The failure of Miller Trucking
Service, Inc., to recognize the Union was, therefore,
in violation of Section 8(a)(5) and (1) of the Act.7
5. The Trial Examiner further found that the
Respondent had no duty to bargain about "the
decision to go out of business," relying on
Darlington.' The General Counsel excepts to this on
the basis that he has alleged that there was no going
out of business, but rather the Respondent failed to
bargain specifically about the effects of the sale on
the rights of the employees. The General Counsel
further contends that the terminated employees who
were denied reinstatement should be reinstated with
backpay pursuant to Section 8 (a)(5) and (1) of the
Act. We find merit in the General Counsel's
contentions.
As noted above, on June 17, Hilary Miller, while
acting as the Respondent' s agent , terminated the
'The appropriate unit is
All truckdrivers and mechanics of Miller Trucking Service, Inc.,
excluding office employees , professional employees , guards and
supervisors as defined in the Act.
'For example , the Trial Examiner credited testimony that on handing an
employee his termination notice , Hilary Miller said: " (Tlhis is the way it's
got to be , I cannot buck the union wages."
'See Fabricators, Inc. 168 NLRB No. 21
IN L R B v. Darlington Mfg Co, 380 U S. 263.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's employees without bargaining with, or
contacting the Union. There is no evidence showing
that the Union, which had only shortly before
requested recognition and which, we have found,
was entitled to it, knew at this time of the
Respondent's plans to terminate its employees.
Although there were many questions which might
profitably have been the subject of collective
bargaining, the Respondent ignored the Union's
request for recognition. Such questions might have
included whether mass terminations were necessary
at all; and if so, when the terminations would occur;
notice to employees of the impending terminations;
and rights of employees with respect to rehiring.
Thus the Respondent's bargaining with the Union
might well have affected those very terms which
Hilary Miller agreed to with the purchaser of his
stock, with respect to the job tenure of its
employees.
In view of the foregoing, we conclude and find
that the Respondent further violated Section 8(aX5)
and (1) of the Act by unilaterally terminating its
employees" without bargaining with the Union.
1. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of the Respondent set
forth above, occurring in connection with the
operations of the Respondent, have a close,
intimate, and substantial relation to trade, traffic,
and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
II. THE REMEDY
Having found that the Respondent has engaged in
and is engaging in unfair labor practices, as set forth
above, we shall order that it cease and desist
therefrom and take certain affirmative action to
effectuate the purposes of the Act.'°
Having found that the Respondent refused and
failed to recognize or bargain with the Union as the
exclusive representative of its employees in an
appropriate unit, we shall order that the
Respondent, upon request, bargain collectively with
the Union, concerning rates of pay, wages, hours of
employment, or other terms and conditions of
employment, and, if an understanding is reached,
embody such understanding in a signed agreement.
`See :Northwestern Publishing Company. 144 NLRB 1069, enfd. 343
F.2d 521 (C.A. 7). prima facie case that the Respondent failed to rehire
four of the terminated employees in violation of Section 8(aX3) and (1) of
the Act. Respondent thus failed to put on evidence as to its motivation in
refusing to rehire the four employees . In light of our findings herein, we
find it unnecessary to determine whether the Trial Examiner was correct
with respect to this issue.
"Some of the Respondent 's truckdrivers do not regularly report to its
LaCrosse. Kansas , terminal Therefore , in order to effectuate the Order
herein , we shall order that the Respondent mail copies of the attached
Notice to such employees , as they have less opportunity to read the
bulletin board than is normally anticipated.
Having found that the Respondent further refused
and failed to bargain collectively with the Union by
bypassing the above-named Union and unilaterally
terminating its employees, we shall order that the
Respondent offer to Duane Mader, Ralph
Gottschalk, Harley Rogers, and Robert Rogers
immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice
to their seniority or other rights and privileges, if
necesary dismissing employees hired since their
terminations," and make them whole for any loss of
earnings they may have suffered by reason of the
Respondent's unlawful unilateral action, by payment
to them of a sum of money equal to that which they
normally would have earned from the aforesaid date
of their termination, to the date of the Respondent's
offer of reinstatement less their net earnings during
such period.': The backpay provided herein shall be
computed on the basis of calendar quarters, in
accordance with the method prescribed in F. W.
Woolworth Company, 90 NLRB 289; N.L.R.B. v.
Seven-Up Bottling Company of Miami, Inc., 344
U.S. 344. Interest at the rate of 6 percent per
annum shall be added to such net backpay and shall
be computed in the manner set forth in Isis
Plumbing & Heating Co., 138 NLRB 716. We shall,
however, order no reinstatement and backpay for
the other six employees whom the Respondent
terminated, as the record indicates that they were
reinstated forthwith and there is no contention that
they lost any pay, or other rights or privileges as a
result of the Respondent's unlawful unilateral
conduct.
CONCLUSIONS OF LAW
1. Miller Trucking Service, Inc., is, and has been
at all times material herein, an employer engaged in
commerce within the meaning of Section 2(6) and
(7) of the Act.
2. Truck Drivers and Helpers Local Union No.
696, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Respondent violated Section 8(a)(1) of the
Act by threatening an employee with economic
reprisal because of his union activities and
interrogating its employees concerning their
protected activities.
4. At all times since May 20, 1967, the
above-named Union has been the exclusive
representative for the purposes of collective
bargaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of
employment, of an appropriate unit of all
"The record shows that the Respondent continued to operate in
essentially the same fashion after the stock transfer as before, and
employed the same number of employees after the stock transfer
"See, e .g., Fibreboard Paper Products Corp v N. L R 8, 379 U.S 203,
enfg . 138 NLRB 550.
MILLER TRUCKING SERVICE, INC. 559
truckdrivers and mechanics of the Respondent,
excluding office employees, professional employees,
guards and supervisors as defined in the Act.
5. The Respondent has engaged in and is engaging
in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act by its failure and
refusal on and after May 20, 1967, to recognize or
bargain collectively with the Union.
6. The Respondent has further violated Section
8(a)(5) and (1) of the Act by bypassing the Union
and unilaterally terminating its employees.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
8. The Respondent did not engage in unfair labor
practices within the meaning of Section 8(a)(3) of
the Act by terminating its employees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Miller Trucking Service, Inc., LaCrosse, Kansas, its
officers , agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Unlawfully interrogating its employees
concerning their union activities.
(b) Threatening employees with economic
reprisals because of their union activities or
sympathies.
(c) Refusing to recognize or bargain collectively
with Truck Drivers and Helpers Local Union No.
696, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive bargaining
representative of all its employees, with respect to
rates of pay, hours of employment, and other terms
and conditions of employment in the following
appropriate unit:
All truckdrivers and mechanics of Miller
Trucking Service, Inc., excluding office
employees, professional employees, guards and
supervisors as defined in the Act.
(d) Bypassing the above-named Union and
unilaterally terminating all of its employees.
(e) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise
of the right to self-organization, to form labor
organizations , to join or assist the above-named
Union or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7
of the Act, and to refrain from any and all such
activities.
2. Take the following affirmative action which the
Board finds will effectuate the policies of the Act:
(a) Upon request, bargain collectively with Truck
Drivers and Helpers Local Union No. 696, affiliated
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, as the exclusive bargaining representative
of all employees in the unit found appropriate, with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and,
if an understanding is reached, embody such
understanding in a signed agreement.
(b) Offer to Duane Mader, Ralph Gottschalk,
Harley Rogers, and Robert Rogers immediate and
full reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and make
them whole for any loss of pay suffered by them in
the manner set forth in the section above entitled
"The Remedy."
(c) Notify the above-named employees if presently
serving in the Armed Forces of the United States of
their right to full reinstatement upon application in
accordance with the Selective Service Act and the
Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to
the Board and its agents , for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary or useful to
determine the amount of backpay due and the rights
of reinstatement under the terms of this Order.
(e) Post at its terminal in La Crosse, Kansas,
copies of the attached notice marked "Appendix""
and mail a copy of said notice to each employee
who does not regularly report to the LaCrosse
terminal. Copies of said notice, on forms provided
by the Regional Director for Region 17, shall, after
being duly signed by the Respondent's
representative, be mailed to employees who do not
regularly report to the La Crosse terminal, and be
posted by the Respondent immediately upon receipt
thereof, and. maintained by it for a period of 60
consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken
by the Respondent to insure that said notices are
not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 17, in
writing , within 10 days from the date of this Order,
what steps have been taken to comply herewith.
IT IS FURTHER ordered that the complaint be
dismissed insofar as it alleges violations of the Act
not specifically found herein.
"In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals
Enforcing an Order."
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Dated By
(Representative ) (Title)
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as amended,
we hereby notify our employees that
WE WILL NOT unlawfully interrogate our employees
concerning their union activities
WE WILL NOT threaten our employees with economic
reprisals because of their union activities or sympathies
WE WILL NOT refuse to recognize or bargain
collectively with Truck Drivers and Helpers Local
Union No 696, affiliated with international
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive bargaining
representative of all our employees in the appropriate
unit with respect to rates of pay, hours of employment,
and other terms and conditions of employment
WE WILL NOT bypass the above-named Union and
unilaterally terminate our employees
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their right to self-organization, to form labor
organizations, to join or assist the above-named Union,
or any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purposes of
collective bargaining or other mutual aid or protection,
as guaranteed in Section 7 of the Act, and to refrain
from any and all such activities
WE WILL offer Duane Mader, Ralph Gottschalk,
Harley Rogers, and Robert Rogers immediate and full
reinstatement to their former or substantially equivalent
positions without prejudice to their seniority or other
rights and privileges
WE WILL notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service Act
and the Universal Military Training and Service Act, as
amended, after discharge from the Armed Forces
WE WILL make whole Duane Mader, Ralph
Gottschalk, Harley Rogers, and Robert Rogers for any
loss of pay which they incurred as a result of our
bypassing the above-named exclusive bargaining
representative and unilaterally terminating them
WE WILL bargain collectively, upon request, with
Truck Drivers and Helpers Local Union No 696,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive bargaining representative of all the
employees in the bargaining unit described below with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment, and, if
an understanding is reached, embody such an
understanding in a signed agreement The appropriate
bargaining unit is
All our truckdrivers and mechanics excluding office
employees, professional employees, guards and
supervisors as defined in the Act
MILLER TRUCKING
SERVICE, INC
(Employer)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 610 Federal
Building, 601 East 12th Street, Kansas City, Missouri
64106, Telephone 816-374-5181
TRIAL EXAMINER'S DECISION
STATEMENT OF THE PROCEEDING
GEORGE J BOTT, Trial Examiner Upon a charge and
amended charge filed on June 22 and August 29, 1967,'
the General Counsel of the National Labor Relations
Board issued a complaint and notice of hearing dated
August 30, 1967, in which he alleged that Miller Trucking
Service, Inc , (herein Respondent Miller) and/or Miller
Trucking Service, Inc , a subsidiary of Tulsa Crude Oil
Purchasing Company, (herein Respondent Tulsa) had
engaged in unfair labor practices in violation of Section
8(a)(1), (3) and (5) of the National Labor Relations Act,
as amended, herein called the Act Respondent Miller and
Respondent Tulsa filed an answer, and a hearing was held
before me in Hays, Kansas on December 5 and 6, 1967, at
which all parties except the Union were represented
Subsequent to the hearing, General Counsel and
Respondents Miller and Tulsa filed briefs which I have
carefully considered
Upon the entire record in the case and from my
observation of the witnesses, I make the following
FINDINGS OF FACT
I JURISDICTION OF THE BOARD
Between June 14 and June 19, 1967, Tulsa Crude Oil
Purchasing Company purchased all of the outstanding
stock of Miller Trucking Service, Inc , a Kansas
corporation The stock represented all of the assets of
Respondent Miller On June 19, 1967, the operations of
Respondent Miller were transferred to Tulsa Crude Oil
Purchasing Company, an Oklahoma corporation, and the
latter company has continued to operate Miller Trucking
Service, Inc as its wholly owned subsidiary
Prior to the sale and transfer of operations to
Respondent Tulsa, Respondent Miller was engaged in
transporting crude oil and other petroleum products and
maintained terminals at La Crosse and Hays, Kansas
Respondent Miller over the years performed
transportation services for such companies engaged in
commerce as Derby Refinery Company, Skelly Oil
Company, Mobile Oil Company, Continental Oil
Company and Phillips Petroleum Hilary Miller, former
president of Respondent Miller, and John Beardslee,
general manager in charge of purchasing for Derby
Refinery, testified that Respondent Miller in the period
The first charge named Miller Trucking Service inc and Tulsa Crude
Oil Purchasing Company as the employer and described Tulsa Crude
Oil Purchasing Company as successor The amended charge named
Respondent Miller Trucking Service Inc and Miller Trucking Service
Inc a subsidiary of Tulsa Crude Oil Purchasing Company as the
employer
MILLER TRUCKING SERVICE, INC 561
from July 1, 1966, through June 1967, received $59,872
for transporting crude oil for Derby Refinery Company
Beardslee also testified that Derby Refinery purchased
approximately $12,000 worth of crude oil a day from
outside the State of Kansas and that its wholesale sale of
gasoline outside the State of Kansas in any given year
exceeded $50,000
I find on the basis of the entire record, including the
stipulations of the parties and Miller's and Beardslee's
credited testimony, that Respondent Miller, before its
stock was sold to Respondent Tulsa, was an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act S
Beardslee also testified that since the sale of stock to
Tulsa Crude Oil Purchasing Company, Tulsa s subsidiary,
Respondent Tulsa, has continued to perform
approximately $5,000 worth of transportation services per
month for Derby Refinery I find that Respondent Tulsa
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act '
II THE LABOR ORGANIZATION INVOLVED
that he would send him union authorization cards and that
when Mader had secured the employees' signatures to
them and returned them to him, he would meet with the
employees and discuss "bargaining" with them
When Glenn sent the union cards to Mader as
promised, Mader signed one and distributed the rest to
the other employees By May 13, eight employees had
signed authorization cards, some in Mader's presence, and
Mader mailed them to Glenn On May 15 or 16, Glenn
telephoned Mader and arranged to meet with the
employees in Hays on May 18
Seven of the eight card signers were present at the May
18 meeting Glenn discussed the benefits that the
employees might hope to obtain if they were organized,
and it was agreed that he would write a letter to Miller
advising him that the Union represented his employees
On May 19, 1967, Glenn dispatched a letter to Hilary
Miller, president of Respondent Miller, advising him that
the Union represented a majority of his truckdrivers and
mechanics "for the purpose of collective bargaining" and
noting that he was "ready to meet" with Miller at his
convenience It was stipulated that the letter was received
on May 20, and Miller testified that he did not answer it
Truck Drivers and Helpers Local Union No 696,
affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America,
herein called the Union, is a labor organization within the
meaning of Section 2 (5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Basic Findings
1 The employees organize and sign union
authorization cards
In April, May, and June, 1967, when all of the
important events in this case took place, Respondent
Miller employed nine drivers and a mechanic Five of the
drivers were stationed at the Hays terminal, two others
and a mechanic at La Crosse and the remaining drivers
were domiciled at Sublette
In late April or early May, according to Duane Mader,
a truckdriver, whose testimony I credit, he and the other
drivers at Hays discussed among themselves the
desirability of joining a union and agreed that it was a
good idea The men at La Crosse and Sublette were soon
made aware of the proposal, and it was decided that they
should get in touch with a local of the Teamsters Union
After some delay caused by difficulty in finding the right
local union , Mader finally reached J J Glenn, business
agent of the Union, by telephone in Topeka, Kansas, and
explained what the employees wanted Glenn told Mader
iH P 0 Services Inc 122 NLRB 394 The fact that Derby Refinery
deducts from the price it pays producers the cost of transportation or any
other private understanding between the producers and Derby cannot
overcome the facts that Derby made the arrangements with Miller and
paid Miller to transport the products for it I reject Respondents
argument therefore that the record does not show that Respondent Miller
performs services in excess of $50 000 for an enterprise over which the
Board would assert jurisdiction
'Beardslee is in charge of purchasing for Derby Refinery but he said he
also had general knowledge about Derby s sales Contrary to Respondent s
position Beardslee was sufficiently competent to testify about Derby s
interstate operations The Trial Examiner also indicated to counsel for
Respondent that the testimony would be accepted subject to
cross-examination and that if necessary the hearing could be moved to
Tulsa to examine Derby Refinery Company s records
2 Miller receives the Union's demand for bargaining
and questions some employees about it
Miller conceded that as soon as he got the Union's
letter notifying him that it represented a majority of the
employees, he took it into the shop where he found four
employees, and read it to them He then asked, "Does
anybody know anything about this " Since no one replied,
he asked if anyone had signed a union card, and Harley
Rodgers, a driver, replied, "We signed some cards " This
was the end of the incident, according to Miller, for he
said no more, and returned to his office
Harley Rodgers, an employee who testified about
Miller's interrogation on May 20, agreed in essence with
Miller's version He did add, however, that when Miller
asked him if he knew anything about the Union s letter,
he told him that he had been to a union meeting
I find that Respondent Miller, on May 20, 1967,
interrogated employees about their union activities as
alleged in the complaint
The complaint also alleges that Miller interrogated
another employee on May 22 about his union activities,
but Miller denied it Employee Herbert Wagner, still
employed by Respondent Tulsa, testified that when he was
in Hays, Kansas, on a trip from his Sublette base he
sometimes stayed at Miller's home He said that on one
of these occasions Miller asked him if he knew anything
about "the deal" Wagner denied that Miller used the
word "union" in describing the "deal," but he said he
knew that Miller meant the "Union" and he told him he
had been "contacted" Wagner was clearly a reluctant
witness, but I find it unnecessary to resolve the minor
issue about the use of a particular word, and I find,
contrary to Miller's denial, that he also interrogated
Wagner about the union activity which was occurring
3 Miller's threat to deprive Mader of his vacation
pay because of his union activities
Mader took 3 days off from work with permission in
May 1967, and was paid for it According to him, the 3
days were part of his earned vacation Mader was again
absent from work for 3 days in early June 1967 with
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Miller's permission and he again made a claim for
vacation pay, but this time did not receive it Mader
testified without contradiction that he asked Mrs Miller,
who kept the Company's books and was in charge of the
payroll, about the failure to pay him for what he thought
was due him for the last 3 days of his vacation, but Mrs
Miller suggested that he see Mr Miller According to
Mader, he saw Miller on June 14 or 15 with Mrs Miller
present He testified that Miller told him that he "would
not get paid for (his) vacation until this whole thing is
settled " Mader asked Miller what he meant, and Miller
said that Mader knew what he meant, and added that "If
you guys want the God damn union to run you and tell
you what to do, it looks like they are going to write your
paychecks"
Miller's version of the conversation with Mader about
vacation pay differed from Mader's He agreed that he
had given Mader permission to take 3 days leave in June
and that Mader made a written claim for vacation pay
He said, however, that when he saw Mader he said
nothing to him about the Union, but merely explained
that Mader had no vacation pay due him until after the
anniversary date of his employment with the Company,
which was July 31
There was a considerable amount of testimony about
what the Respondent's vacation policy actually was
Miller's position was that employees are entitled to I
week's leave until they complete 5 years of service, at
which time they are entitled to 2, but he insisted that leave
is not earned on an annual basis until the employee has
each year reached the anniversary date of his hire Since
Mader had been hired on July 31, he claimed that
although he was entitled to vacation pay in 1967, he could
not receive it until after July 31 of that year Mader,
however, identified company records, which are in
evidence, which indicate that he received vacation pay in
past years during the summer months but before his
anniversary arrived Miller suggested, but offered no
concrete examples, that employees may save their
vacations for many months, implying that this is what
may have happened in Mader's case He also claimed that
he was not aware until the hearing in this case that Mrs
Miller had paid Mader vacation pay for 3 days not
worked in May Mrs Miller was not called as a witness
The only importance Respondent's actual vacation
policy has in regard to the alleged threat is its possible
bearing on the credibility of the participants in the
discussion I find it unnecessary to completely resolve that
question, because as confused as Mader occasionally
appeared, I am inclined to accept his version of what he
understood the policy was and how it was applied, for he
impressed me as honest, if somewhat uncertain I thought,
on the other hand, that Miller's account of his
conversation with Mader was lame and unimpressive, not
consistent with past practice and not logically acceptable,
particularly in the absence of some explanation from Mrs
Miller I find, in accord with Mader's testimony, that
during a discussion of his claim for vacation pay, Miller
told him that he would not be paid, and attributed the loss
to the employees' union activities
4 Miller sells all stock in Respondent Miller to
Respondent Tulsa, terminates all employees, and
retires from the transporation business
Respondent Miller terminated all employees on June
17, 1967 Miller testified that his health was not up to
par" and his doctor had advised him to reduce his
activities Following this suggestion from his doctor in
March 1966, Miller passed the word to selected people
that he might sell his business Until May 1967, any
conversations Miller had about selling were general and
uncertain, but he said that he did speak with a
representative of Tulsa Crude Oil Purchasing Company in
late 1966 about the possibility Miller said he also received
inquiries from Rock Island and Jayhawk Transportation
but these occurred after he started negotiating with Tulsa
Crude Oil on May 24 He did state, however, without
contradiction, that he got a "feeler" from a representative
of National Cooperative Refinery Association during the
first part of May and spoke with their manager at
McPherson, Kansas, on or about May 12, about a sale
As noted above, Miller received the Union's claim to
represent his employees on May 20 On May 24,
negotiations with Tulsa Crude Oil began in earnest Miller
said that on May 24 he was telephoned by Holsinger, of
Tulsa, who asked him directly if the business was for sale,
and he said it was Holsinger said he would call back, and
he apparently spoke with Wier, president of Tulsa, for
Wier telephoned Miller shortly thereafter and made
arrangements for a meeting later in the day
Miller met with Wier and other representatives of Tulsa
Crude Oil on the afternoon of May 24 to discuss the
details of the proposed sale During the course of the
discussions, Wier asked Miller if his company "had a
labor union " Miller told him it did not, but said he had
received a letter from the Union which he showed to
Wier According to Miller, there was no discussion of the
Union's written claim to representation except that Wier
asked him what he was doing about it, and he replied that
he was retaining counsel
On May 22, 1967, the Union filed a Petition for
Certification of Representatives with the Regional Office
of the Board covering Respondent Miller's drivers and
mechanic, and, on May 31, the Regional Director notified
the Company of a hearing on the petition On or about
June 1, Miller and representatives of Tulsa Crude Oil met
again on the sale and at this meeting Miller gave Tulsa's
representatives the Union's petition for certification of
representatives, a copy of which had been forwarded to
him with the notice of hearing He said Tulsa's
representatives made no comment about the petition other
than to ask him if he had retained counsel yet, and he told
them that he had
At least one more meeting of the parties took place
before the details and mechanics of the sale were settled
It is not clear at which meeting it occurred, but there was
discussion at one of the meetings about what would
happen to Respondent Miller's employees when the
transfer of operations took place Miller said it was
understood during the negotiations that his employees
would be required to apply to Respondent Tulsa for
employment and take an examination before being hired
Miller thought that although the tenure of his employees
was discussed during negotiations and agreed on, the
understanding was not reduced to writing, but his counsel
stated at the hearing that the sales agreement as finally
drawn contained a clause that "buyers shall be under no
obligation to retain or continue in employment the present
employees of the corporation In this regard, stockholders
shall cause the corporation to notify, and that all
employees shall be notified (of their termination), as of
the closing date " Counsel also stated that the sales
agreement provided that "Stockholders agree to
'These words do not appear in the transcript but their inclusion is in
consonance with the rest of the statement
MILLER TRUCKING SERVICE, INC. 563
personally bear and pay any vacation benefits, sick leave
or any termination benefits due the present employees of
the corporation upon such termination of their
employment."
On July 17, 1967, Miller notified all employees by
letter which he personally handed to them that "the
owners of Miller Trucking Service, Inc. have sold all of
their interest and authority to an Oklahoma corporation"
and "accordingly, your services will no longer be needed
ending today, Saturday, June 17, 1967." It appears that
Miller owned all but a few shares of stock in Respondent
Miller. He acquired those that were outstanding and
assigned all stock, including a few shares owned by his
wife, to the purchaser. The purchaser, Respondent Tulsa,
began operations on the following Monday, June 19.
Miller no longer has any connection with Miller Trucking
Service, Inc.'
After Respondent Miller terminated its employees on
June 17 they were introduced to representatives of
Respondent Tulsa who were on the premises. The
employees filled out job applications, took written
examinations, and the drivers were given a road test.
Respondent Tulsa did not (tire Mader, Gottschalk, Robert
Rodgers and Harley Rodgers. Respondent Miller's
termination of all employees and Respondent Tulsa's
failure to hire the four named individuals are alleged as
violations of Section 8(a)(3) of the Act.'
Some of the employee witnesses described their
terminations and attempts at employment with
Respondent Tulsa. Truckdriver Harley Rodgers, who had
worked for Respondent Miller for many years, testified
that when Miller handed him his notice of termination of
June 17 he said, "Harley, this is the way its got to be. I
cannot buck the union wages."' Miller then told Rodgers
that there were two men from "the Oklahoma
corporation" at the terminal who would take his
employment application. Rodgers and his brother Robert
were introduced to the Tulsa representatives by Amos,
another employee of Miller who appears to have done
some office work, including dispatching of drivers, and the
Rodgers were given employment applications. On the
following Monday, they returned the applications, took a
written test and a driving test, but were advised later that
day by Respondent Tulsa's representative that their
applications had been rejected.
Truckdriver Kippes stated that Miller commented that
"this is it, this is the only way out" when he gave him his
notice. General Counsel pleaded surprise, and offered an
affidavit Kippes had given a Board representative on July
'The corporation known as Miller Trucking Service , Inc. has not been
dissolved.
'The complaint describes "the Respondent " as Miller Trucking Service,
Inc., and/or Miller Trucking Service , Inc., a subsidiary of the Tulsa Crude
Oil Purchasing Company, and it alleges that the Respondent violated
Sections 8 (axl), (3) and (5) of the Act. It is General Counsel' s first and
basic position that Miller's sale of stock did not destroy the corporate
entity known as "Miller Trucking Service , Inc.," and , this being so, there
is only one Respondent involved which never went out of business. These
contentions , and the identity of the "employer" or "employers" involved
and their separate or joint liabilities for having committed or remedying
any unfair labor practices, will be treated fully later. My identification of
Respondent Miller as the employer which terminated employees and
Respondent Tulsa as the employer which did not hire certain employees is,
at this point , only for the purpose of hoped for clarity in setting forth the
facts and chronology.
'Whether Miller said it was "the union" or "union wages " which he
couldn 't buck is unimportant for the thrust is the same , and I credit
Harley Rodgers' testimony , for he impressed me as a careful, honest
witness , that Miller did mention the Union in his parting statement.
11, 1967, in which he stated that Miller said "something
about this was the only way out, he couldn't buck them
all his competitors and drivers." During the rest of his
examination , however , Kippes insisted that all that Miller
said at the time was what he had testified to. He did not
say that he could not recall what Miller had said, and so I
reject the affidavit as past recollection recorded.'
Kippes was hired after taking a written examination
and a road test. He still gets his instructions from Amos,
and he said that operations are "just like it was before,"
"that there was no change from company to company,"
but he noted that the Hays terminal has been closed and
the former Hays employees are now employed at La
Crosse.
Mader testified that the only comment Miller made
when he handed him his termination notice was "Boys,
I've sold out." Mader was interviewed by Tulsa's
representatives and also took the examinations, but he was
not hired. When he inquired about his status, he was told
that he and three others had not been taken on, and in his
case it was because he had received too many tickets for
speeding. Mader said Gottschalk, who was with him at
the time, was informed that he had been rejected because
he had worked for too many employers during the last
year. Nothing was said about the Union to either of them.
5. Alleged violation of Section 8(aX5) of the Act; the
demand; refusal; appropriate unit and the Union's
majority
As already found, Respondent Miller received the
Union's letter in which it claimed to represent the drivers
and the mechanic on May 20, and he never replied to it.
The complaint alleges that "All truck drivers and
mechanics employed by Miller Trucking Service, Inc.,
and/or Miller Trucking Service, Inc., a subsidiary of
Tulsa Crude Oil Purchasing Company, at its Hays and/or
La Crosse, Kansas, facilities, excluding clerical employees
and supervisors as defined in the Act" constitutes an
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b), and I so find for the
following reasons:
At the time of the demand for recognition, Respondent
Miller had two terminals , one at Hays and the other at La
Crosse, Kansas. Five employees were stationed at Hays,
three at La Crosse and two lived in Sublette, Kansas, but
got their instructions from Hays. All of the drivers do
essentially the same kind of work, transporting the same
kinds of products and, although stationed at one location,
they frequently make pickups and deliveries in the area
normally serviced by another terminal.
All of the drivers regardless of location get instructions
from the same persons. All drivers are paid on the same
basis and receive the same fringe benefits . Both terminals
were administered from Hays. Equipment was repaired at
either terminal.
The similarity of functions, skills, wages and working
conditions described make it evident that the employees in
the unit sought have a substantial mutuality of interests
and may be appropriately grouped in a single unit.'
There were 10 employees in the appropriate unit on
May 20, 1967, the day that Miller received the Union's
'It should be noted , however, that Kippes was a very reluctant witness,
and I have no hesitancy in fording that what he told the Board investigator
was what he recalled at that time.
'M. F A Oil Company and M F A Petroleum Company of
Columbia. Missouri. 162 NLRB No. 102.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demand for recognition , 10 and 8 of them had previously
signed union authorization cards which clearly designated
the Union as the employees' representative for collective
bargaining." Respondent attacks the cards on various
grounds, however, claiming that they are not valid
designations of the Union. Some of the employees were
not called to identify their signatures, for example, and
their cards were identified by others. Harley Rodgers
identified his brother's card as well as his own, and Mader
identified his own and employee Gottschalk's. In each
case , however, the witness was present when the
employee's signature was affixed, and this is an acceptable
method of authenticating authorization cards or other
instruments. ' 2
I also find, contrary to Respondents contention, that
the record establishes that the employees' intended to
designate the Union as their representative for collective
bargaining when they signed the cards and that there is no
evidence of any substance that their signatures were
obtained by fraud, deceit or misrepresentation. In the first
place, the cards, as already noted, speak clearly for
themselves.
Second, although there is some evidence that some
employees were told that signing the cards was for their
"protection" against discharge , and in one case an
employee testified that he merely "glanced" at the card
before he signed it and did not "to his knowledge"
authorize the Union to represent him, there is substantial
evidence that individually and as a group the employees
knew that they were authorizing the Union to represent
them and to seek a meeting with Respondent for the
purpose of collective bargaining. Mader testified credibly,
for example, that he contacted the Union and secured the
cards because the employees had discussed unionization
for their betterment among themselves. After Mader got
the cards, he distributed them as instructed by the Union's
business agent, and he told the employees that signing a
card was for their "protection" and for bargaining too.
Third, a union meeting was held on May 18, 1967, after
the cards were signed, at which the Union's representative
discussed possible improvements in wages, hours and
working conditions, and advised the employees that he
would write the Company claiming to represent the
employees. This action, of course, is clearly consistent
with the clear purpose of the card itself."
Finally, even those employees who testified and
indicated that they had something other than collective
bargaining in mind when they signed a card, actually
knew what they were doing and intended to designate the
Union. Scheiderman explained the need for "protection"
in the context of employees "talking about the union,"
"There is nothing unclear about the scope of the unit in the Union's
demand , as Respondent suggests in its brief, for the letter stated that the
Union represented a majority of Respondent ' s "truck drivers and
mechanics" without reference to a particular terminal or location.
"The card states in bold type at its very beginning that it is an
"Authorization for Collective Bargaining Representative ," and that grant
of authority is never qualified elsewhere in the card.
"N.L R B v. Merrill. d/b/a Merrill Axe! and Wheel Service. 414 F.2d
1323 (C.A. 10)
"Even if some employees were told that the card was for job
"protection" and were told nothing else , this is not , in my view,
inconsistent with the overriding purpose stated in the cards, and is not, in
any event , the kind of representation that invalidates a card . See N L R B
v. Hamburg Shirt Corporation. 371 F 2d 740, 745 (C.A.D.C ), Dayco
Corporation v. N L.R B. 382 F .2d 577, 582 (C.A. 6); Jov Silk Mills, Inc.
v NLRB B. 185 F.2d 732, 743 (C A.D C ). CJ NLRB v. Gotham Shoe
Mfg Co. 359 F 2d 684 (C.A 2).
and he conceded that he intended to "go along" with the
rest of the employees "who wanted the union" and that
this had something to do with his signing a card. He also
heard Glenn, the Union's business representative, tell the
employees that he would write a letter to Respondent and
claim to represent the drivers.
In Urban's case, he agreed that he read the card before
he signed it, and he said that although Mader told him
that the card meant "protection" and did not mention
"bargaining" at all, Mader's remarks had no bearing on
his motives for signing the authorization. Employee
Kippes said he did not read the card before he signed it,
but I do not credit him because he solicited other
employees and must have been aware of the legend on the
card. He also attended the meeting which Glenn
addressed, and he remembered Glenn telling the
assembled employees that Miller "would have a letter in
the mail" informing him that "the employees wanted to
bargain."
Employee Wagner said that Mader told him that the
"main" reason for signing a card, was to "protect" the
employees in case "word of this game out, this union." He
also conceded that he read thesard. 11
I find that all cards in evidence are valid designations
of the Union and that the Union represented a majority of
employees in an appropriate unit when it claimed majority
status and asked to meet with Respondent Miller."
B. Analysis, Additional Findings, and Concluding
Findings
1. Introduction to the problem
The above findings have been made without particularly
underscoring Hilary Miller's sale of all of his company's
stock to Tulsa Crude Oil Purchasing Company and his
retirement from the transportation business and from the
company he formerly headed. These factors, it seems to
me however, are crucial. This is not the now conventional,
albeit frequently difficult, case of an employer who refuses
to recognize a union on the basis of authorization cards
and whose good faith must be partially tested in the light
of any unfair labor practices he committed. The remedy in
such a case is hard enough to fashion; but the employer
may be ordered to bargain without an election or
certification on the resolution of the issues of whether he
made a fair' election impossible by his unfair labor
practices or rejected the Union's demand without an
adequate basis in fact. This is a case where the
Employer's identity has disappeared or changed radically.
The glaring reality of this change cannot be dimmed out,
in viewing the conduct and determining the liabilities of
the parties, or party Respondent, by routinely invoking
the "employing industry" concept while emphasizing
Miller' s sale of stock and not assets as his method of
going out of business . This is true despite the superficial
appeal of General Counsel's contention that since Miller
sold only his stock, the corporation never died, and, qua
corporation, must expiate any unfair labor practices
"It was evident to me at the hearing that Wagner and other employees
like Kippes were reluctant witnesses who were having second thoughts
about their reasons for signing union authorization cards
"This is not the kind of a case where employees were told , or where the
effect of the statements made to them amounted to a representation, that
the only reason for the card was to obtain an election or for something
other than the card purported to authorize Cf. N L R B v Crawford
MJg Co. 386 F 2d 367 (C. A. 4), N L R B v S E Nichols Company et
a!. 380 F 2d 438 , 444-45 (C.A 2)
MILLER TRUCKING SERVICE, INC. 565
committed during its corporate life.16
2. Interrogation of employees
As found earlier, on May 20, 1967, as soon as he got
the Union's letter in which it claimed that it represented a
majority of Respondent's employees, Miller read it to a
group of employees and asked if they knew anything
about the claim. No one replied, and Miller then asked if
anyone had signed a union card. Harley Rodgers
answered that some of the employees had attended a
union meeting and signed union cards . I have also found
that on May 22 Miller asked another employee what he
knew about the "deal," meaning the Union's claim. It
does not appear that Miller was aware at this time that
the Union had filed a petition for an election with the
Board, and since he had just gotten the Union's letter
claiming majority status, it seems that his inquiries served
a legitimate purpose and satisfied one of the standards,
laid down by and explicated by the Board in recent cases,
which must be present as a minimum , absent unusual
circumstances, before interrogation or polls will be held
permissible." However, the Board's revised criteria also
require that an employer's purpose to determine the truth
of a union ' s claim must be communicated to the
employees questioned, but even assuming that an
expression of that purpose was unnecessary here because
Miller's reason might have appeared obvious, nevertheless
the poll fell short of the standards which must be met
because no assurances against reprisals were given and the
poll was not by secret ballot. By interrogating employees
as found, Respondent Miller violated Section 8(a)(1) of
the Act.
3. The threat to deprive Mader of vacation pay in
violation of Section 8 (a)(1) of the Act
I have found that , during a dispute over Respondent's
failure to pay Mader 3 days vacation pay, Miller told him
that he would not receive his vacation pay "until this
whole thing is settled ," and added that the employees
could look to the Union for payment of their wages.
When these remarks were made on June 14 or 15, Miller
had practically completed negotiations for the sale of all
of Respondent Miller's stock , and a few days later all
employees were terminated as required by the sales
agreement . In this context , Miller's statement that Mader
would not get his vacation pay "until this whole thing is
settled" could have referred to the sale , but the remark
remains unclear and unexplained , for Miller denied that
he made it at all. But in any case , regardless of what
Miller had in mind , by connecting the withholding of
Mader's vacation pay with union activities , and indicating
at the same time that employees might have to look to the
Union for their wages in the future , Respondent Miller
threatened Mader with a reprisal because of his union
activity as alleged in the complaint . By such coercive
conduct , Respondent Miller violated Section 8 (a)(1) of the
Act.
4. The discharge of all employees on June 17, 1967,
allegedly in violation of Section 8 (a)(3) of the Act
retiring from business because of his health and had had
some inquiries from possible purchasers before he received
the Union's demand for recognition, he conceded, and it is
clear, that he gave his first clear signal that his company
was on the market to Tulsa Crude Oil Purchasing
Company on May 24 when he told their representatives
that he would sell and began serious negotiations only a
few hours thereafter. This, of course, was but a few days
after he got the Union's letter and a day or so after he
had learned that the employees had signed union cards. It
is also a fact that when Miller handed Harley Rodgers his
last paycheck on June 17 he said it had to be "that way"
because he couldn't "buck the union wages." I have no
hesitancy therefore in finding on the basis of the whole
record, including the timing of the sale and Miller's
admission to Rodgers, that Miller was partially motivated
in selling out by the fact that his employees had organized
themselves.
It follows from this that the discharge of all employees,
even though pursuant to the sales agreement with the
purchaser, is a direct consequence of Miller's sale of all
the corporation's stock and, if the sale was illegal, the
terminations were equally a violation of the Act.
When a business is closed, sold or transferred in a labor
relations context the decisions of the Supreme Court in
N.L.R B v. Darlington Mfg. Co.," and John Wiley &
Sons, Inc. v. Livingston et al," must be initially
considered for their impact on the rights of the parties
involved. In my judgment, as far as Respondent Miller is
concerned, the principles stated in Darlington govern here,
and I find that when Miller, president of Respondent
Miller, sold all of the corporate stock to Respondent
Tulsa, terminated his employees and retired from the
transportation business completely, neither he nor the
corporation which he headed committed any unfair labor
practices, regardless of Miller's motivation or the stock
purchaser's continued operation of Miller Trucking
Service, Inc., as its wholly owned subsidiary.
In Darlington, the Court held that "when an employer
closes his entire business, even if the liquidation is
motivated by vindictiveness toward the union, such action
is not an unfair labor practice ."" It is true, as General
Counsel points out, that Darlington involved a "going out
of business" situation and that here there was a sale of
stock and the corporation headed by Miller has not
dissolved, but I consider these factors irrelevant. In
Darlington, the Court said that, "A proposition that a
single business man cannot choose to go out of business if
he wants to would represent such a startling innovation
that it should not be entertained without the clearest
manifestation of legislative intent or unequivocal judicial
precedent so construing the Labor Act. We find neither."
31 That it is the real change in ownership that is
controlling, and not the particular from or method by
which the change is effected, is evident from the language
in other cases which the Court cited. In Southport
Petroleum Co. v. N.L.R.B, 315 U.S. 100, 106, for
example, the Court stated that "Whether there was a
bona fide discontinuance and a true change of ownership
which would terminate the duty of reinstatement created
by the Board's order or merely a disguised continuance of
Although Miller testified that he had contemplated
"Excepto the extent of amnesty granted in Section 10(b) of the Act 380 U.S. 263
"Strukcnes Construction Co., Inc ,. 165 NLRB No. 102 , Leonard "373 U S 543
Fontana , et at, d/b/a Fontana Bros ., 169 NLRB No. 56 . Cohen Bros "Supra at 273, 274.
Fruit Company , 166 NLRB No. 2. "Supra at 270.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the old employer, does not clearly appear." And in
N.L.R.B. v. New Madrid Mfg. Co., 215 F. 2d 908, 914
(C.A. 8), which the Supreme Court cited with approval,
the court said:
But none of this can be taken to mean that an
employer does not have the absolute right, at all times,
to permanently close and go out of business, or to
actually dispose of his business to another, for whatever
reason he may choose , whether union animosity or
anything else, and without his thereby being left subject
to a remedial liability under the Labor Management
Relations Act for such unfair labor practices as he may
have committed in the enterprise , except to the time
that such actual and permanent closing or true and
bona-fide change in ownership has occurred. [Emphasis
supplied.]
Miller operated his business as a sole proprietorship for
many years until it was incorporated in 1964. He owned
all the stock , except a few shares which his wife held, and
he ran the business and his wife kept the books. If Miller
had not incorporated, and had later sold his business
assets, there would be no question that the entity which he
owned and managed was out of business . If Miller as the
sole stockholder had voted to distribute the corporation's
assets as a dividend to stockholders and had then disposed
of the assets, the application of Darlington would be
evident . 33 In my opinion , Hilary Miller was Miller
Trucking Service , Inc. and the corporation was Miller,
and the corporate fiction cannot disguise the fact that by
the sale of atovk Miller "disposed of his business to
another" and A *'true and bona-fide change in ownership"
occurred. 22
Logic supports the view that the Darlington rule applies
when the sole owner and operator of a corporation sells
the stock to another , instead of selling the assets and
dissolving the corporation , and severs all connection with
the corporation which issued the stock. General Counsel
contends that here we do not have a "going out of
business" situation , but I have noted that in New Madrid
Mfg. Co., the principal case cited by the Supreme Court,
the "employing industry" was not liquidated, but
"To my knowledge there are no cases in which the Board was faced
directly with the problem of the sale of all stock as a means of divesting an
individual or a group of ownership in the kind of a fact situation we have
here. In determining whether to impose liability on a "successor ," which is
not the same , of course , as deciding the responsibility of the owners of the
"predecessor," the various techniques by which a business may be acquired
do not seem to make any difference in the result , and this may be some
guide to us here. See Burlington Roadbudders . Inc, 149 NLRB 791, where
the seller first offered to sell stock but then used the asset distribution
method; Stnko Manufacturing and Tool Company, 154 NLRB 1474, where
liability was imposed on the purchaser of the predecessor' s stock, but it
also appeared that the corporation was subsequently dissolved. In
Vaileydale Packers . Inc. 162 NLRB No. 139, the transfer was effected by
a lease . Cases like Dixie Highway Express, inc., 153 NLRB 1224, and
Dunkirk Broadcasting Corporation . 120 NLRB 1588, which contain broad
dicta that "change in stock ownership alone did not work a change in
corporate identity" (Dunkirk. at 1389 ), are of little help because they did
not involve the issue of the seller 's liability in the context we have here, but
involved primarily the effectiveness of a bargaining order where the
business remained fundamentally the same . In a sense , these are basically
"successor" type cases whose scope have not yet been determined in the
light of the Darlington holding or the Board 's decision in Perma Vinyl
Corporation , 164 NLRB No. 119.
"N.L R B. v. New Madrid Mfg Co., supra at 914 . It is not unusual for
the Board to disregard the corporate entity and look to the real owner to
effectuate the policies of the Act See Ogle Protection Service . Inc and
James Ogle , 149 NLRB 545.
continued as a going business, but more important, in
Darlington , the proposition that a single business man
could not go out of business if he wished was labeled a
"startling innovation" by the Court. This broad and
positive language and the holding of the Court would have
little practical meaning if in order to come within its
ambit an employer must dismantle his business instead of
disposing of it as a going concern with its valuable good
will.
It is true that the Court noted in Darlington that since
the Darlington property and equipment could not be sold
as a unit and were eventually auctioned off piecemeal, the
Court was not confronted with "the sale of a going
concern, which might present different considerations
under Section 8(a)(3) and 8(a)(5)."24 However the cases
the Court cited indicate that it had in mind the liability of
the purchaser of a going business and was not suggesting
a limitation on the immunity of the seller dependent on
his method of disposing of his investment."
An employer who goes out of business in whole or in
part is responsible for any unfair labor practices
committed before the decision to terminate was made. 16
Respondent Miller's final decision to sell its stock and
thereby transfer its assets to Respondent Tulsa was made
not later than May 24 and its ultimate termination of all
employees was an integral part of its decision and sale. If,
as I have found , Respondent Miller had the right under
the law to eliminate itself as an employer through the
technique it chose, then its discharge of its employees as
part of the transaction was not illegal. I find and conclude
that Respondent Miller did not violate Section 8(a)(3) of
the Act as alleged in the complaint."
5. Respondent Miller's refusal to bargain with the
Union
The heart of this case is the discharge of Miller's
employees and it effects every other issue in the case. If
Miller had not sold his business and terminated the
employees but had nevertheless ignored the Union's
demand for recognition and awaited the processing of the
petition for an election it filed with the Board, it would
have been difficult enough to have found that the General
Counsel had sustained his burden of proving that the
refusal was in bad faith, for the unfair labor practices
Miller committed were not so flagrant that they carried
the day for the General Counsel on the issue or justified a
bargaining order on the ground that Miller had made a
"Darlington, supra . fn 14, at 271.
"John Wiley d Sons, Inc v . Livingston , 376 U.S. 543, N L.R.B. v.
Deena Artware , Inc. 361 U.S. 398. Wiley was a Section 301 action under
the Act, where the Court held that arbitration may be compelled .Wtder a
labor agreement against one who is regarded as a successor to the
agreement . Deena Artware dealt in part with the question of whether
separate corporations were in fact separate or merely divisions or
departments of a "single enterprise " and so liable for the obligations of
each other. There is no contention here that Tulsa Crude Oil Purchasing
Company's wholly owned subsidiary is a "disguised continuance" or an
alter ego of Miller Trucking Service, Inc., but rather , as stated , that there
has been no legally sign ificant change in the employer at all because the
corporation still exists under the laws of Kansas and only its stock changed
hands.
"Darlington, supra at 271 ; A C Rochat Company, 163 NLRB No. 49;
Makela Welding, Inc and Kemp Welding , Inc, v. N.L R B., 387 F.2d 40
(C.A. 6).
"See Motor Repair . Inc. 168 NLRB No. 148, where no violation was
found with respect to employees discharged by virtue of the closing, but a
remedy was ordered for an employee whose discharge "was unrelated to
the closing."
MILLER TRUCKING SERVICE, INC. 567
fair election possible. 18 But since I see Miller as out of
business and his termination of employees as legitimate as
his withdrawal, finding an illegal refusal in the context is
less warranted.
Here again the ' logic of the Court's opinion in
Darlington persuades me that there is no duty to bargain
about a decision to go out of business completely. Not
only did the Court broadly state that . when an
employer closes his entire business, even if the liquidation
is motivated by vindictiveness towards the Union, such
action is not an unfair labor practice,"" but the
imposition of such a duty with its attendant sanctions if
the obligation is not fulfilled would here too appear
incongruous in the context of the Court's description of
the suggestion that an employer cannot go out of business
without statutory liability as a " startling innovation." But
the Board has reserved decision on this issue.]"
In my opinion, and without reference to what the Board
might do in a different situation, I find that, in the
circumstances existing here , Respondent Miller did not
violate Section 8(a)(5) of the Act by failing to respond to
the Union's request for a meeting but proceeding to
negotiate a sale of the Company instead. The Union was
not an established representative . Miller's decision to sell
was almost contemporaneous with the Union's claim, and
the claim was shortly followed by the Union's filing of a
representation petition and the Board 's notification of
hearing on it. Although certification is not the only
method by which a union may establish itself as a
bargaining representative and so the representation
proceeding is not controlling," Miller Trucking Service,
Inc., notified the Board by wire while the proceeding was
pending that the Company had sold its interests to
Respondent Tulsa. Thereafter, the Regional Director
postponed the hearing on the representation matter until
June 29, 1967, and thereafter postponed it indefinitely
after the charge was filed. No charge was filed until June
22, and by the time the representation case was
postponed, Miller was out of business, and Respondent
Tulsa had commenced operations. In this context,
Respondent Miller might reasonably have awaited the
outcome of the representation proceeding as it did,
provided it committed no other unfair labor practices. I
have found that it did not. Perhaps paradoxically, Miller's
failure to grant the Union statutory recognition was not
motivated by a desire to gain time in which to undermine
the Union, but to gain time in which to go out of
business , thereby destroying the Union, but this is what
"See Hammond & Irving. Incorporated. 154 NLRB 1071; N L.R.B v.
Flomatic Corporation, 347 F.2d 74 (C.A. 2), Aaron Brothers Company of
California. 158 NLRB 1077; John P. Serpa. Inc.. 155 NLRB 99.
"Supra at 274.
"In Royal Plating and Polishing Co. Inc.. 152 NLRB 619, 621, and in
Ozark Trailers, Incorporated, 161 NLRB No. 48, the Board noted that
since the cases involved only a partial closing of a business, it was not
faced with the question of whether a decision to go out of business
completely is a mandatory subject of bargaining, and it therefore need not
consider the effect of the Court's decision in Darlington . In Motor Repair,
Inc. 168 NLRB No. 148, however , the Board held a permanent closing of
even a part of an employer 's business was not a violation of Section 8(a)(3)
and (5 ) of the Act because , as required by Darlington . the evidence did not
preponderate in favor of a finding that , in closing part of the business the
employer was motivated by a desire to chill unionism in other divisions.
This holding would have indicated to me that the Board would go the same
way in a complete closing case , but, in fn . 4 of the slip opinion , it noted
that since the General Counsel had not excepted to the failure of the Trial
Examiner to pass on the allegation that Respondent violated Section
8(a)(5) by unilaterally ceasing operations , the Board had not addressed
itself to that issue.
Darlington says he may do.
C. Respondent Tulsa's Alleged Unfair Labor
Practices or Responsibility for Remedying
Respondent Miller's
Respondent Miller having terminated all employees on
June 17, Respondent Tulsa accepted applications from
them and hired six of the unit employees. Respondent
Tulsa began operations on June 19, and it appears to have
operated in essentially the same fashion as did Respondent
Miller, using the same equipment and servicing the same
customers. The complaint alleges that Respondent Miller
and/or Respondent Tulsa is the Respondent and that the
Respondent violated Section 8(a)(l), (3), and (5) of the
Act. As has been repeatedly emphasized earlier, General
Counsel contends that there was no change in corporate
identity, that the corporation still exists and that the
corporation committed all the unfair labor practices. By
this reasoning, he concludes that Respondent Tulsa
committed the same unfair labor practices that
Respondent Miller did by virtue of the same actions.
Although General Counsel disavowed relying on any
theory of "successorship," at least as such, he flatly stated
that, in fixing liability on the purchaser (successor?), if it
was a purchaser, he was relying on the Board's recent
decision in Perma Vinyl Corporation,32 which actually is a
"successor" type case.33
Since I have found that there was a real change in
ownership, I turn to the treatment of Respondent Tulsa's
liability on the basis of General Counsel's theory and the
cases he cites. First of all, it must be noted that at the
close of General Counsel's case-in-chief, I dismissed, on
appropriate motion, all allegations that Respondent Tulsa,
that is to say, Miller Trucking Service, Inc., a subsidiary
of Tulsa Crude Oil Purchasing Company, committed any
unfair labor practices, but I left said Respondent or
Company in the complaint as a party Respondent for the
purpose of considering its liability under Perma Vinyl for
remedying the unfair labor practices, if any, committed by
Respondent Miller before Respondent Tulsa took
possession of the Company. I renew my ruling here, and
my reasons for dismissal were simply these:
On the assumption that Respondent Tulsa is an
innocent purchaser for value, it could not have violated
Section 8(a)(1) of the Act by interrogating employees on
May 20, after Miller got the Union's demand, or by
threatening Mader on June 14, because it had not come
into existence and could not have participated in those
unfair labor practices. Similarly, Respondent Miller, not
Respondent Tulsa, discharged employees on June 17, and
although the sales agreement provided that the employees
be terminated, there is no evidence that this was intended
to aid Respondent Tulsa in avoiding its responsibilities
under the Act and there is likewise no evidence of any
kind that Respondent Tulsa was motivated by antiunion
"United Mine Workers v. Arkansas Oak Flooring Co, 351 U.S. 62,
71-72
"Perms Vinyl Corporation, Dade Plastics Co. and United States Piper
and Foundry Company. 164 NLRB No. 119.
"Consistent with the complaint' s identification of Miller Trucking
Service , Inc., before and after sold his stock, as the Respondent, and
General Counsel 's reluctance to rely on the "successorship" theory, which
is now very well established , the complaint does not allege that Miller
Trucking Service , Inc., a subsidiary of Tulsa Crude Oil Purchasing
Company, is a "successor ." See Geo. Wash. L. Rev Vol. 36, No. I
(October 1967), at 215-223, U. Pitt L Rev, Vol. 29, No. 2 (December
1967), at 273-286.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considerations when it refused to hire four of Respondent
Miller's former employees . Therefore Respondent Tulsa
did not violate Section 8(aX3) of the Act as alleged.
Respondent Tulsa did not violate Section 8 (aX5) of the
Act, for, assuming that the unit is still the same and has
not been substantially altered by the closing of the Hays
terminal or the merger of it into any other division of
Respondent Tulsa, the Union made no demand for
bargaining ion Respondent Tulsa, and, in any case , there is
no evidence that Respondent Tulsa' s failure to reply to the
letter that the Union sent Miller was in bad faith."
In regard to the Perma Vinyl basis for imposing
liability on Respondent Tulsa, since the case involves the
question of the duty of one employer to remedy the
"unfair labor practices of his predecessor by reinstating
the discriminatees,"" the short and simple answer would
appear to be that since Respondent Miller did not
discriminate against employees or illegally refuse to
bargain with the Union , there is nothing of substance left
for Respondent Tulsa to remedy."
Moreover , in considering Perma Vinyl, first it ought to
be stated what the instant case is not so that the Perma
Vinyl doctrine and the rationale of the courts and Board
in other cases where there has been a change in ownership
in the "employing industry"" may be better understood.
This is not an alter ego case , or one where the new
company is a disguised continuance of the old. Tulsa had
no connection with the Miller corporation , and Miller, the
individual and sole owner of Miller Trucking Service, has
no connection with Respondent Tulsa .J" Neither is it a
case where the new owners committed unfair labor
practices on their own , participated in the unfair labor
practices of their predecessor or took other actions to
evade their responsibilities under the Act." In those
situations the Board and courts have had no difficulty in
requiring the "new" company to remedy its own unfair
labor practices and acknowledge the status which the
union had acquired in the "old" company or would have
acquired in the "new" if no unfair labor practices had
been committed.
In Perma Vinyl, the Board found that : "U. S. Pipe
acquired Perma Vinyl's business with knowledge of the
unfair labor practice proceeding against that company.
Upon consummation of the sale and transfer of assets to
"Cf. C'hemrock Corp., 151 NLRB 1074; Overnlte Transportation
Company, Inc., 157 NLRB 1185, 1189, enfd . 372 F.2d 765 (C.A. 4).
"Perma Vinyl, supra
"There would remain Miller's interrogation and threat under Section
8(a)(1) of the Act.
"N L R B. v. Cotten, d/b/a Kiddie Kover Mfg Co..'105 F.2d 179, 183
(C.A. 6).
"See N L.R B v. New Madrid Mfg. Co. supra, N L.R B v. F G
McFarland. 306 F.2d 219, 220 (C.A. l0); N.L.R B v. Deena Artware,
Inc. supra. N.L R B v. Herman Brothers Pet Supply, Inc., 325 F.2d 68,
71 (C.A. 6k Intergraphic Corporation of America. 160 NLRB No. 100,
N.L.R.B. v. Birdsall-Stockdale Motor Co, 208 F.2d 234 (C.A. 10).
"The successor committed unfair labor practices in N L R B. v. Armato,
199 F.2d 800, 803-804 (C.A. 7), by refusing to bargain with the union and
unilaterally granting wage increases , in New Madrid Mfg Co., supra, and
in Makela Welding. Inc. and Kemp Welding, Inc. supra, the purchaser
participated in the unfair labor practices committed by the predecessor; in
Trt State Maintenance Corp. 167 NLRB No. 140, an employer refused to
hire en nurse the employees of his predecessor , contrary to the practice in
the industry , in an effort to avoid successorship status and the obligation to
bargain with the certified representative of those employees . In Gibbs
Shipyard. Inc v. N.L R B. 333 F.2d 459 (C A. 5), the "new" company
was held for the unfair labor practices of the "old" even without reliance
on the successorship doctrine because it was in practical control of the
predecessor at the time the unfair labor practices were committed.
it, U. S. Pipe continued to operate the former facilities of
Perma Vinyl without substantial change. The operation
was continued at the same location. Essentially the same
personnel were employed and they worked under the
direction and control of supervisors who had been on
Perma Vinyl's payroll. Sorosky, president of Perma Vinyl,
who had personally participated in that company's
unlawful activity, became plant manager under U. S.
Pipe. In that capacity, he made a speech to the employees
in opposition to the Union."
In requiring U. S. Pipe to remedy Perma Vinyl's unfair
labor practices, the Board reversed Symns Grocer Co.,'"
which holds that a bona fide purchaser with knowledge of
unfair labor practices of its predecessor is not responsible
for remedying the unfair labor practices, and, reevaluating
its position in the light of Wiley," where the Court
required a successor company to arbitrate grievances
under its predecessor's contract, returned to its policy it
had established in 1948 in Alexander Milburn Company!'.
that the successor employer who acquired the business
with knowledge of the existence of the unfair labor
practice proceeding is responsible, jointly and severally
with its predecessor, for remedying the unfair labor
practices.
In both Alexander Milburn and Perma Vinyl the
successor knew of an unfair labor practice proceeding
pending against the seller when it purchased the business.
Indeed, in Perma Vinyl, the person who became plant
manager of the successor participated in the predecessor's
unfair labor practices as president of the company, and in
Alexander Milburn, the successor unlawfully ignored the
Union's request to bargain. The Board noted these factors
and relied upon them in "balancing the equities" and
attaching liability to the purchaser who as the "beneficiary
of the unremedied unfair labor practices" acquires and
operates a business as a "successor" with "notice of unfair
labor practice charges against his predecessor."" When
the transaction in this case which resulted in Respondent
Tulsa performing the services and operations which
Respondent Miller previously performed was completed
there were no unfair labor practice charges pending
against Respondent Miller. What was pending was a letter
from the Union claiming to represent a majority of
Miller's employees and a petition for certification and a
notice of hearing on it from the Board. I find these
circumstances obviously insufficient to charge Tulsa with
notice of "unfair labor charges" which had not yet been
filed," and I find nothing in the record to support a
finding that Tulsa knew that Miller had committed or was
committing any unfair labor practices. Knowledge is
crucial in applying Perma Vinyl. I find that General
Counsel has not established by a preponderance of the
evidence that Respondent Tulsa is responsible for
remedying any unfair labor practices that Respondent
Miller may have committed."
"109 NLRB 346.
"John Wiley di Sons. Inc v. Livingston, et al, 376 U.S. 543, 549.
"The Alexander Milburn Company. 78 NLRB 747.
"The Alexander Milburn Company, supra at 749, Perma Vinyl, supra
"Actually, in Perma Vinyl , a hearing on the charges before a Trial
Examiner of the Board had been held and U . S. Pipe knew it before the
sale of Perma Vinyl's assets and business was finalized by the closing
agreement, and in Alexander Milburn , the Trial Examiner's decision had
been issued before the purchase.
"General Counsel , although disclaiming at the hearing , at least at times,
reliance on the "successor theory," and although putting his case primarily
on Perma Vinyl, cites Chemrock Corporation, 151 NLRB 1074, as
dispositive of the question of Respondent Tulsa's liability. First, Chemrock
MILLER TRUCKING SERVICE, INC.
IV. THE REMEDY
I have found that Respondent Miller violated Section 8
(a)(1) of the Act by interrogating employees about their
union activities and threatening an employee with loss of
vacation benefits because of union activities , but I have
also found that Respondent Miller did not discriminate
against employees in violation of Section 8(a)(3) of the
Act by terminating them after he sold his stock to
Respondent Miller, or violate Section 8(a)(5) of the Act
by refusing to accord the Union recognition as requested.
Respondent Miller is out of business , and I have found
that Respondent Tulsa is not responsible for remedying
any of Respondent Miller's unfair labor practices . In these
circumstances , no remedy for the violation of Section
8(a)(1) of the Act seems practicable , and I will therefore
recommend none.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
is a "successor" case and is frequently cited as such. Second , in that case,
the purchaser hired the employees in one unit represented by a labor
organization and dealt with it, but it refused employment to employees in
another unit for unlawful reasons , which has not been established in this
case . I find Chemroek not controlling.
CONCLUSIONS OF LAW
569
1. Respondent Miller was , and Respondent Tulsa is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. Respondent Miller did not violate Section 8(a)(3)
and (5 ) of the Act.
4. Respondent Tulsa did not violate Section 8(a)(1), (3)
and (5) of the Act and is not responsible for remedying
any unfair labor practices which Respondent Miller
committed.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in the case,
I recommend that the complaint be dismissed in its
entirety.