Edward J. Bell, 1267 (1969)

BELL STORAGE AND WAREHOUSE

Edward J. Bell t/a Edward J. Bell and /or Bell Storage and Warehouse , and Edward R. Bell t/a Edward R. Bell and /or Bell Storage and Warehouse and Highway Truck Drivers and Helpers Local 107, affiliated with International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America. Case 4-CA-4637

March 19, 1969 DECISION AND ORDER

BY CHAIRMAN MCCULLOCH AND MEMBERS

BROWN AND ZAGORIA

On November 27, 1968, Trial Examiner Robert Cohn issued his Decision in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision.

Thereafter, Respondents filed exceptions to the Trial Examiner's Decision and supporting briefs.

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 reveiwed 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 the case,' and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner.

ORDER

Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that Respondents, Edward J . Bell t/a Edward J . Bell and/ or Bell Storage and Warehouse, and Edward R Bell t/a Edward R. Bell and/or Bell Storage and Warehouse, Philadelphia, Pennsylvania, their officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.

'Respondents' request for oral argument is hereby denied, as the record, including the exceptions and briefs, adequately presents the issues and positions of the parties 'We find in agreement with the Trial Examiner that in discharging the employees on June 25 , Respondents were retaliating against the employees' assertion of their rights under the collective -bargaining agreement, and, as well, were attempting to avoid their (Respondents') obligations under the contract TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE

1267

ROBERT COHN, Trial Examiner Upon an original charge filed July 2, 1968' (amended September 4), by Highway Truck Drivers and Helpers Local 107, affiliated with International Brotherhood of Teamsters, Chauffeurs,

Warehousemen and Helpers of America (herein called the Union), the General Counsel of the National Labor Relations Board, through the Regional Director for Region 4, on September 4, issued a complaint and notice of hearing against Edward J. Bell, trading as Edward J.

Bell, and/ or Bell Storage and Warehouse, and Edward R.

Bell. trading as Edward R. Bell and/or Bell Storage and Warehouse (herein collectively called the Company or Employer or Respondents) The complaint alleges, in essence, that the Respondents violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (herein the Act), when on or about June 25, the Respondents ceased business operations, terminated the employment of their employees, reopened their business operations on or about July 1, and altered terms and conditions of employment without notice to or discussions with the Union as the collective-bargaining representative of such employees.

In due course, and within the prescribed time limits of the National Labor Relations Board Rules and Regulations, Series 8, as amended, a written answer to the complaint was filed by one Gregory J Dean, Esq , who signed such answer as 'Attorney for Respondent, Edward R. Bell, t/a Bell Storage and Warehouse ' No such written answer was filed on behalf of Respondent Edward J. Bell (who, the record discloses, is the father of Edward R Bell) Indeed, the record further shows that the said Edward J. Bell refused service of the amended charge, and complaint and notice of hearing when such was attempted upon him by registered mail on September Il.

Whereupon, personal service of the aforesaid papers was effected upon the said Edward J Bell by an attorney from the Regional Office of the Board on September 20

At the commencement of the hearing, the said Edward J. Bell appeared in the back of the hearing room and remained there throughout the course of the hearing without participating therein except that during the preliminaries thereof he authorized the said Gregory Dean, counsel for Edward R Bell, to file on his behalf an oral answer denying as to him the charges contained in the complaint Without objection, the Trial Examiner accepted such oral answer in lieu of a written answer on behalf of the Respondent, Edward J. Bell On the basis of the foregoing, I find that the said Edward J Bell was duly served with process, and that at all times material he was a party participant in these proceedings At the hearing, all parties were afforded full opportunity to be heard, to introduce evidence, to examine and cross-examine witnesses, to present oral argument and to file briefs Oral argument was waived by all parties Posthearing briefs were filed by counsel for the General Counsel and by counsel for the Respondent, Edward R.

Bell, which have been carefully considered.

Upon the entire record in the case, and from my observation of the witnesses and their demeanor while testifying, I make the following 'All dates hereinafter refer to the calendar year 1968 unless otherwise specified 174 NLRB No. 188 FINDINGS AND CONCLUSIONS

1. JURISDICTION Bell Storage and Warehouse is a business organization, operated by Edward J. Bell and Edward R. Bell (the exact nature of which will be discussed more fully anon ), which was engaged at all times material herein in the hauling and storage of household goods and appliances Its sole place of business is located at the corner of Emerald and York Streets, Philadelphia, Pennsylvania The complaint alleges, and the answer of Edward R Bell admits, that during the past year the business derived revenues in excess of $50,000 from sales to firms over each of whose business operations the Board would assert jurisdiction on a standard other than that of indirect inflow or indirect outflow S Based upon the foregoing facts, I conclude and find that at all times material herein that the business organization involved herein is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act II. THE LABOR ORGANIZATION INVOLVED The complaint alleges, the answer of Respondent Edward R. Bell admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act III. THE ALLEGED UNFAIR LABOR PRAACTICES A. Background The record herein reflects that in January 1941, the Interstate Commerce Commission issued a certificate of public convenience and necessity to Edward J Bell, doing business as Bell Storage and Warehouse, Philadelphia,

   Pennsylvania, to engage in the business of transporting household goods and new furniture over irregular routes between Philadelphia and points in surrounding States The record further reflects that on March 9, 1955, the Pennsylvania Public Utility Commission issued a certificate of public convenience to Edward J Bell, trading and doing business as Bell Storage and Warehouse Edward R Bell, the son of Edward J Bell (hereinafter sometimes referred to as the son and the father, respectively) testified that he joined his father in the business in January 1963, and at that time, the business was a very small operation Thereafter the operation grew to the extent that at an undetermined time prior to the advent of the Union in January 1968, the father and son jointly executed a lease on a warehouse on the corner of Emerald and York Streets, Philadelphia, from which they operated, primarily, the business of storage and transportation of new household goods and appliances for department stores and other such enterprises in the Philadelphia area The son testified and maintained that at all times material the father operated a separate business of storage and hauling of used household goods from a separate part of the warehouse proper However, it appears from the son's own testimony that such business 'The record discloses that these business organizations include such well-known firms as Hotpoint Appliances and John Wanamaker's Department Store The record further shows that, at all times material,

   Bell Storage and Warehouse operated pursuant to authority granted by the Interstate Commerce Commission was quite infinitesimal, and that the father maintained no permanent payroll of regular employees but that at such times as were necessary he would utilize the employees hired and substantially directed by the son to move such household goods Indeed, the son further testified that on such occasions he, rather than the father, would pay the employees for such services Thus the record shows that at the time immediately prior to the advent of the Union in January 1968, the storing and hauling business of Bell Storage and Warehouse was substantially directed by the son. He hired, fired, disciplined, directed, and paid the approximately eight employees (drivers and helpers) of the firm He directed them in their work, adjusted their grievances, and was looked upon by them as their principal employer However, the business was operated at all times under and pursuant to the certificates of public convenience and necessity of the Federal and State governments hereinabove referred to, and such certificates were never amended nor certificates secured in the name of the son Moreover, all trucks utilized by the firm in its operations were, at all times, owned by the father,...