Adkins Transfer Co., Inc.

National Labor Relations Board - Board Decisions

Aug 23, 1954

109 N.L.R.B. 956 (N.L.R.B. 1954)

956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warrant setting the election aside. In his report on objections the
Regional Director attributed to the Employer an allegation not made
in its formal objections, to the effect that the union representatives
made it impossible for vehicles to pass them by without hitting them.
Without deciding whether this additional objection was properly con-
sidered by the Regional Director, we find that it also is without merit.
Accordingly, the Employer's exceptions to the report on objections
are hereby overruled. As the tally of ballots shows a majority of the
ballots were cast for the Union, we shall certify that labor organiza-
tion as the collective-bargaining representative of the employees in the
appropriate unit.
[The Board certified Local 4876, United Steelworkers of America,
CIO, as the selected collective-bargaining representative of the em-
ployees of West Coast Loading Corporation, in the appropriate unit
described in the Board's Decision and Direction of Election.]
MEMBERS MURDocK and RODGERS took no part in the consideration
of the above Supplemental Decision and Certification of Representa-
tives.
ADKINS TRANSFER COMPANY, INC. and TEAMSTERS, CHAUFFEURS, HELP-
ERS AND TAXICAB DRIVERS LOCAL UNION #327, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, AFL. Case No. 19-CA-1867. August 23,
1954
Decision and Order
On April 15, 1954, Trial Examiner Herbert Silberman issued his
Intermediate Report in the above-entitled proceeding, finding, as is
set forth in the copy of the Intermediate Report attached hereto, that
the Respondent had not engaged in and was not engaging in the unfair
labor practices charged to it in the complaint and recommending that
the complaint be dismissed. Thereafter, the General Counsel filed
exceptions to the Intermediate Report and a supporting brief.
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 Intermedi-
ate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings of fact made by the Trial Exam-
iner, except as noted below. However, for the reasons hereafter indi-
cated, the Board rejects in their entirety the recommendations of the
Trial Examiner and so much of his conclusions as go to the substantive
unfair labor practice allegations of the complaint.
109 NLRB No. 138.
ADKINS TRANSFER COMPANY, INC.
The Unfair Labor Practices
957
As is noted in the Intermediate Report, the essential facts in this
case are not in dispute. William B. Elkins, Jr., and Thomas W.
James, Jr., joined the Union on November 13, 1953. On November 16
and on November 20, the Union's business agent met with the Re-
spondent's president, as the representative of these employees, and
presented, on their behalf, a request for an increase in wages, and for
other changes in working conditions. The Respondent's president
stated he would consider the Union's request, and would meet with
the Union's agent again on November 24. Instead, on November 21,
the Respondent's president directed his supervisory agent to discharge
Elkins and James. Such discharge action was effected that day with
the explanation that "Mr. Adkins [the Respondent's president] was
going to close the shop [i. e. the garage where James and Elkins were
working] because he wasn't going to pay the union scale."
These objective facts, establish, in our view, a prima facie case sup-
porting the General Counsel's position that the dismissal of the two
employees was violative of Section 8 (a) (3) and (1) of the Act. For
it clearly appears that the affected employees would not have so sum-
marily been dismissed if they had not joined the Union and had not
sought, through the Union, to exercise the rights incident to union
membership.
We do not believe that the Respondent sustained its burden of dis-
pelling the inferences fairly to be drawn from these facts. For its
claim that its dismissal action represented an attempt to resolve an
"economically difficult" position in which it had been placed by the
Union is supported by nothing more than its subjective anticipation
of what the Union might do, rather than upon what the Union actu-
ally did do, in its representation of these employees. Thus, the Re-
spondent precipitately effected the dismissal of these two employees
while the substance of the Union's demands was still in its earliest dis-
cussion stage and without giving any serious consideration to the
possibility that the Union might compromise its substantive demands
in the light of the Respondent's position that they were not economi-
cally feasible. By this precipitate dismissal action the Respondent,
in fact, preempted the area of bargaining. In these circumstances,
and in the absence of any evidence that the Respondent had been
threatened with strike activity, we are unable to regard as factually
valid, the Respondent's contention that it resorted to the elimination
of the jobs of these employees because it had "no practical alternative"
available to it,l or to test the legal issue the Respondent thereby seeks
1 The General Counsel points out in its brief in support of the exceptions that "there is
no reason shown why Respondent could not have bargained for a wage scale lower than
that proposed by the Union , and in the event of an impasse Respondent could have con-
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to present. Any other view on a record such as this would, we believe,
provide to employers a ready means for frustrating the organizational
rights the Act guarantees to employees.2
In so ruling, we are mindful of the Respondent's argument in ef-
fect, that its dismissal of these employees represented only an exercise
of its managerial prerogative to discontinue operations if it chose,
and that we are without power to "interfere" with its business judg-
ment. There is, of course, merit to the idea that an employer cannot
be compelled to do business against his will. The instant case, how-
ever, does not seem to us to present the kind of situation involving
consideration of such theory. The Respondent is still operating its
business in substantially the same form as it was prior to the dis-
missal of Elkins and James. As is undisputed, it still requires serv-
ices of the kind which Elkins and James previously performed. Thus,
the record shows that the maintenance work on the Respondent's
vehicles is presently done in part by employees in other parts of the
Respondent's Nashville operations, and in part, on a job-by-job basis
by independent business concerns. Although the Respondent's presi-
dent testified that he now finds this method of having its maintenance
work done to be less costly, no evidence was adduced to establish what
the differences in cost actually were. While the economic desirability
of the present system of operation is pertinent to the framing of the
remedy, we do not deem it material to the basic issue of whether the
Respondent's November 21, 1953, dismissal of Elkins and James was
discriminatory.
We find, in accord with the foregoing, that by dismissing William
B. Elkins, Jr., and Thomas W. James, Jr., on November 21, 1953, the
Respondent violated Section 8 (a) (3) and (1) of the Act.
The Remedy
Having found that the Respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and
to take certain affirmative action designed to effectuate the policies of
the Act.
In determining what affirmative action will best effectuate the poli-
cies of the Act, there are several factors to be considered. An order
directing complete restoration to the status quo existing prior to the
events here placed in issue would, in effect, require the Respondent
to give up a system of operation which it apparently now finds feasible
tinned to pay the prevailing wages or could have granted any increase previously declined
by the Union " See Crompton Highland Mills, 337 U . S. 217. The General Counsel also
notes that the Respondent ' s argument ( that failure to grant the Union demands would
have resulted in a strike affecting its drivers and other employees ) ignores the fact that
the discharges , which it considered to be its only practical alternative , amounted to action
most likely to result in a strike of the kind it alleged feared.
2 Compare Tennessee-Carolina Transportation Co., 108 NLRB 1369.
ADKINS TRANSFER COMPANY, INC. 959
for nondiscriminatory reasons.3 Avoidance of this result without
undue prejudice to the remedial rights of the employees affected by the
Respondent's November 21, 1953, action, appears possible however,
in view of the fact that the character of the Respondent's Nashville
operations as a whole is such that there are apparently many kinds
of substantially equivalent job classifications other than those previ-
ously filled by Elkins and James which these two employees may be
qualified to fill. In these circumstances, we shall require the Respond-
ent to offer Elkins and James immediate and full reinstatement in
any portion of its Nashville operations where it may have substan-
tially equivalent jobs these employees are qualified to perform, with-
out prejudice to their seniority or to any other rights and privileges.
If there is not sufficient employment immediately available for Elkins
and James, the Respondent shall place them on a preferential hiring
list for any position for which they are qualified, and shall offer them
employment before any other persons are hired for such work.4
We shall order the respondent to make Elkins and James whole
for any loss of pay they may have suffered by reason of the Respond-
ent's discrimination, by payment to each of them of a sum of money
equal to that each normally would have earned as wages from the date
of the discrimination to the date of the Respondent's compliance with
the reinstatement provisions of this order, excluding from the period
of computation the period of time beginning with the date of the
Intermediate Report and ending with the date of this Decision and
Order. Determination of the amount of back pay due shall be based
on a quarterly method of computation in the manner established by
the Board in the F. W. Woolworth Company case.5
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Adkins Transfer
Company, Inc., its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Teamsters, Chauffeurs, Helpers
and Taxicab Drivers Local Union #327, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
AFL, or in any other labor organization of its employees, by discrimi-
nating against its employees in any manner in regard to their hire or
tenure of employment or any term or condition of their employment.
(b) In any other manner interfering with, restraining,, or coercing
its employees in the exercise of the rights to self-organization, to form
3 Cf Tennessee- Ca' oluna Tran3portation Co , 108 NLRB 1369
* Cf. Wailick cE Schwalm Corp , 95 NLRB 1262, 1265-1267 ; Symns Grocer Co . and Idaho
Wholesale Gi ocery Co , 109 NLRB 346.
5 90 NLRB 289 , 291-294.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organizations, to join or assist the above-named 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,
or to refrain from any or all of such activities except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as au-
thorized in Section 8 (a) (3) of the Acts
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Offer William B. Elkins, Jr., and Thomas W. James, Jr., im-
mediate and full reinstatement in the Nashville, Tennessee, operations
to any position each may be qualified to fill without prejudice to their
seniority or other rights and privileges, and make those employees
whole for any loss of pay suffered, in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Post at its Nashville terminal copies of the notices, attached
hereto and marked "Appendix."' Copies of said notice, to be fur-
nished by the Regional Director for the Tenth Region, shall, after
being duly signed by the Respondent's representative, be posted by
it immediately upon receipt thereof and be maintained by it for a
period of at least sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted.
(c) 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 to analyze the amount of back pay due.
(d) Notify the Regional Director for the Tenth Region, in writ-
ing, within ten (10) days from the date of this Order, as to what steps
the Respondent has taken to comply herewith.
e Because the Respondent 's violation here goes to the heart of the Act, we regard a broad
cease and desist order necessary
T 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 "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership of our employees in
Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local
ADKINS TRANSFER COMPANY, INC. 961
Union #327, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, AFL, or any other
labor organization by discharging any of them, or by discriminat-
ing in any other manner in regard to their hire and tenure of
employment, or any term or condition of employment.
WE WILL offer William B. Elkins, Jr., and Thomas W. James,
Jr., immediate and full reinstatement to any position each may be
qualified to fill, without prejudice to any seniority or other rights
and privileges previously enjoyed.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights to self -organiza-
tion, to form labor organizations, to join or assist the above-
named 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, or to refrain from any or all
such activities except to the extent that such rights may be affected
by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8 (a) (3) of
the Act.
All our employees are free to join, form, or assist any labor organi-
zation, and to engage in any self-organization or other concerted ac-
tivities for the purposes of collective bargaining or other mutual aid
or protection or to refrain from such activities except to the extent that
such right is affected by an agreement made in conformity with Sec-
tion 8 (a) (3) of the Act.
ADKINS TRANSFER COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed by Teamsters , Chauffeurs , Helpers and Taxicab Drivers
Local Union #327, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL, herein called the Union, the General
Counsel of the National Labor Relations Board, by the Regional Director for the
Tenth Region (Atlanta, Georgia), issued a complaint, dated January 22, 1954,
against the Respondent, Adkins Transfer Company, Inc., alleging that the Re-
spondent by discharging William B . Elkins, Jr., and Thomas W. James, Jr, on
November 21, 1953, and thereafter failing and refusing to reinstate them, had en-
gaged in and was engaging in unfair labor practices affecting commerce within the
meaning of Section 8 (a) (1) and ( 3) and Section 2 (6) and ( 7) of the National
Labor Relations Act, 61 Stat. 136, herein called the Act. Copies of the charge,
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaint, and notice of hearing were duly served upon the parties. The Respond-
ent in its amended answer denied that it committed the alleged unfair labor practices.
Pursuant to notice, a hearing was held on March 9, 1954, at Nashville, Tennessee,
before Herbert Silberman, the undersigned Trial Examiner. The General Counsel
and the Respondent were represented by counsel, and the Union by an official repre-
sentative. Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence pertinent to the issues was afforded all parties. At the
conclusion of the General Counsel's case, Respondent made a motion to dismiss the
complaint. Decision on this motion was reserved and it is now disposed of in
accordance with the findings of fact and conclusions of law made below. All parties
were granted opportunity to present oral argument and to file briefs and proposed
findings and conclusions with the undersigned. Briefs were received from the Gen-
eral Counsel and the Respondent.
Upon the entire record in the case, and from my observation of the demeanor
of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , an Indiana corporation , is a common carrier engaged in the trans-
portation of freight by motor vehicles. The Respondent operates between Nash-
ville, Tennessee , and Chicago, Illinois, principally , and maintains terminals at
Indianapolis and Evansville , Indiana, as well as at Chicago and Nashville . During
all times material herein , the dollar volume of Respondent 's annual business was in
excess of $1,000,000 . The Respondent admits, and I find, that it is engaged in com-
merce within the meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union #327, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL, is a labor organization within the meaning of Section 2 (5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The essential facts in this case are not in dispute. Respondent is a common car-
rier engaged in the transport of freight by motor vehicles. During the times in-
volved herein there were contracts in effect between the Respondent and the Union
covering Respondent's pickup and delivery men and over-the-road drivers. These
contracts, including their wage rate provisions, were identical with similar agree-
ments between other trucking companies in the areas in which the Respondent
operates and the Union. Respondent's relations with the Union has been amicable.
With the exception of the two individuals named in the complaint all Respondent's
operating employees appear to have been represented by the Union.
William B. Elkins, Jr., and Thomas W. James, Jr., were hired by Respondent in
August 1953, as a mechanic and a mechanic's helper, respectively, and were Re-
spondent's only maintenance employees at its Nashville, Tennessee, terminal. They
applied for membership in the Union and designated the Union as their collective-
bargaining representative about November 13, 1953, at which time they were being
paid at the rate of $1.25 and $0.75 per hour, respectively. Upon the basis of the
designations by Elkins and James, the Union attempted to secure substantial wage
increases for these employees. Two meetings were held, one about November 16
and the other on November 20, 1953, between L. P. Herd, assistant business agent
for the Union, and Howard Adkins, Respondent's president. At these meetings,
Herd presented Adkins with copies of the Union's uniform contracts covering
mechanics and servicemen. Herd pointed out the scale of pay for Elkins and
James under the terms of these uniform contracts, which called for $1.75 per hour
for Elkins, an increase of $0.50, and between $1.25 and $1.40 for James, an increase
of $0.50 or more. A third meeting was set for November 24. This meeting was
not held because, in the meantime, on November 21, Respondent discharged the two
employees.
Elkins testified that when he was discharged on November 21, 1953, he was told
by his supervisor, Robert E. Lee, that "Mr. Adkins was going to close the shop
because he wasn't going to pay the union scale." This was not denied. Howard
Adkins testified credibly that based upon his experience in dealing with the Union
ADKINS TRANSFER COMPANY, INC. 963
he was of the opinion that if Respondent continued its maintenance department at
Nashville, Tennessee, unless it raised the wages of Elkins and James to meet the
Union's scale, a strike would ensue which would effectively close Respondent's entire
business operations The accuracy of Adkins' opinion is borne out by Herd, who
testified that he knew of no instance where the Union permitted a contracting em-
ployer to pay union members different wage rates than are provided for in the Union's
uniform, industry agreements for the particular employee classifications. Therefore,
rather than capitulate to the Union's demands and increase the wages for Elkins and
James to the union scale which he considered economically disadvantageous for the
Respondent,' Adkins decided to discontinue the maintenance department' and to
discharge the two maintenance employees.
Adkins further testified that the fact that Elkins and James joined the Union did
not motivate their discharge. This is corroborated by the fact that the Respondent
has not attempted to replace these two former employees directly or indirectly with
nonunion personnel.
This is not a case where an employer who is generally hostile towards unions and
opposes employee organization seeks to defeat his employees ' efforts to engage in
collective bargaining by discontinuing a department in which a majority of the
employees have selected a collective-bargaining representative. Compare: The
Houston Chronicle Publishing Company, 101 NLRB 1208; Williams Motor Com-
pany, 31 NLRB 715, enfd., 128 F. 2d 960 (C. A. 8). In this regard, it is significant
that the complaint does not charge that the Respondent has refused to bargain in
good faith with the Union. Here, the Respondent had only two practical choices,
either to pay its maintenance employees the wage rates demanded by the Union, or
discontinue its maintenance department. No area for bargaining with the Union
existed! In this circumstance, Respondent has committed no unfair labor practice
by choosing to discontinue its maintenance department and to discharge its two
maintenance employees, especially in the absence of evidence of other unfair labor
practices or animus towards the Union on the part of the Respondent. I find, there-
fore, that Respondent did not discharge Elkins and James to encourage or discourage
membership in any labor organization, in violation of Section 8 (a) (1) and (3) of
the Act.
CONCLUSION OF LAW
Respondent has not engaged in any unfair labor practices within the meaning of
the Act.
[Recommendations omitted from publication.]
'Adkins testified that since Respondent closed its maintenance department and dis-
charged Elkins and James, most of the work previously performed by these two employees
has been performed by various automotive repair and service agencies, and the remaining
work previously performed by these two individuals has been performed by other em-
ployees of the Respondent who are members of the Union Also, Respondent's maintenance
costs under its present arrangement are not only less than they would be if Elkins and
James were retained and paid the union wage scale, but are less than they were before
the Respondent discontinued its maintenance department when Elkins and James were
being paid substantially below the union scale. However, Respondent submitted no evi-
dence, such as figures showing comparative costs, to corroborate Adkins' testimony.
2 Adkins testified that Respondent has no present intention of reopening its maintenance
department at Nashville, Tennessee.
s In this regard, Herd testified, as follows :
Q. Now, if Mr. Adkins had kept his maintenance, kept open, but declined to sign
your contract, what would you have done?
A In regard to what?
Q. If he just refused to sign the mechanic's and service man's contracts, but kept
his service going. You would call a strike against him, wouldn't you?
A. I think that is the procedure.
Q. Mr Herd,-if you called a strike against a trucking company where you repre-
sent his dockinen and his over-the-road men, it is pretty effective, is it not?
A. I don't know.
Q. It results in one hundred percent close down of that company, does it not?
A. It has happened
Q. Well, it usually does, as a matter of fact.
A. Yes, sir.
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