Bluefield Produce & Provision Co.

National Labor Relations Board - Board Decisions

May 20, 1957

117 N.L.R.B. 1660 (N.L.R.B. 1957)

1660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statements concerning the making of such remarks, while Chaffin and Jones repudi-
ated pertinent parts of their statements and conceded they had no independent recol-
lection of what transpired at the union meeting.,, Undoubtedly, the testimony of
these witnesses as given at the hearing , on both direct and cross -examination, is in
serious conflict with their written statements , but such conflicts do nothing more
than discredit the individuals , who were called as employer witnesses. In passing
upon the weight to be given statements of witnesses which are in direct conflict
with their testimony, the Court of Appeals for the Second Circuit, in the Quest-Shon
Mark Brassiere case (185 F . 2d 285, 289), held that:
"It is universally maintained by the Courts that Prior Self-Contradictions are not
to be treated as having any substantive or independent testimonial value"; and
this we can properly accept as the district court rule . . . . 3 Wigmore on Evi-
dence 688, § 1018, 3d Ed. 1940. Hence prior inconsistent statements are
admissible not as affirmative evidence to prove the truth of what they affirm,
but only as matter tending to show that the witness is not credible, because he
has changed his story4
Under the circumstances , and if the evidence did not go beyond this point, the
Trial Examiner would find that the Employer has failed to establish its objections
by credible evidence , as required in cases of this character . (See cases cited supra.)
But the testimony goes beyond this point and the Union's witnesses , Wallace,
Thomas, Johnson, and Brooks categorically denied that any coercive or threatening
statements were made at either of the meetings , as urged by the Employer. It is
true that these individuals cannot be considered as disinterested witnesses , but, in
the opinion of the Trial Examiner, that fact did not detract from their desire and
ability to answer fully all questions propounded to them and to present their testi-
mony in an intelligent, fair, and honest manner . Accordingly, on the straight issue
of credibility , as to whether to accept the repudiated or qualified statements of the
Employer's witnesses, or the positive denials of the allegations therein by the Union's
witnesses , the Trial Examiner has no difficulty in reaching the conclusion that the
testimony of the Union's witnesses is far more persuasive and convincing and is,
therefore, accepted and credited . The Trial Examiner finds that neither Wallace nor
Thomas, nor anyone else, made the statements to the employees as contended by the
Employer in its objections.
[Recommendations omitted from publication.]
4 Seaboard Terminal and Refrigeration Company, 114 NLRB 754, footnote 1.
Bluefield Produce & Provision Company and Chauffeurs, Team-
sters and Helpers Local Union No. 175, International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen and Helpers
of America, AFL-CIO. Case No. 9-CA-1043. May 20,1,957
DECISION AND ORDER
Upon charges duly filed by Chauffeurs, Teamsters and Helpers,
Local Union No. 175, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, here-
in called the Union, the General Counsel of the National Labor Rela-
tions Board, by the Regional Director for the Ninth Region, issued a
complaint dated October 17, 1956, against Bluefield Produce & Provi-
sion Company, herein called the Respondent, alleging that the Re-
spondent had engaged in and was engaging in unfair labor practices
within the meaning of Section 8 (a) (5) and (1) and Section 2 (6)
and (7) of the National Labor Relations Act, as amended (61 Stat.
117 NLRB No. 215.
BLUEFIELD PRODUCE & PROVISION COMPANY 1661
136). Copies of the charge, complaint, and notice of hearing before a
Trial Examiner were duly served upon the Respondent and the Union.
With respect to unfair labor practices the complaint alleged, in
substance, that since about May 11, 1956, the Respondent has refused
to bargain collectively with the Union as the exclusive representative
of all employees in an appropriate unit in violation of Section 8, (a)
(5) and (1) of the Act.
On November 13, 1956, all parties to this proceeding entered into a.
stipulation setting forth an agreed statement of facts. The stipulation
states that the parties have waived their rights to a hearing before a.
Trial Examiner of the Board and the issuance of a Trial Examiner's
Intermediate Report. The stipulation provides further that the stipu-
lation, the exhibits attached thereto, the charge, the complaint, the
notice of hearing, and the affidavits of service of the charge, complaint,
and notice of hearing shall constitute the entire record in the case.
After the execution of the stipulation, the General Counsel filed a
request that the Board issue a Decision and Order finding that the
Respondent had violated the Act as alleged in the complaint together
with a supporting brief, and the Respondent filed a motion to dismiss
the complaint and a supporting brief. For the reasons stated herein-
after, the motion to dismiss is hereby denied.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Jenkins].
The stipulation is hereby approved and accepted and made part of
the record of this case. In accordance with Section 102.45 of the
Board's Rules and Regulations, Series 6, as amended, this proceeding,
is duly transferred to, and continued before, the Board. Upon the
basis of the stipulation and the entire record in this case, the Board,
having duly considered the briefs submitted by the parties, makes the
following:
FINDINGS of FACT
1. THE BUSINESS Or THE RESPONDENT
Bluefield Produce & Provision Company is a West Virginia corpo-
ration engaged in Bluefield, West Virginia, in the wholesale distribu-
tion and sale of produce and canned goods. During 1955 the Re-
spondent sold and delivered goods valued in excess of $750,000 directly
to points outside of the State of West Virginia.
The Respondent admits, and we find, that it is engaged in commerce
within the meaning of theAct.
n. THE LABOR ORGANIZATION INVOLVED
Chauffeurs, Teamsters and Helpers Local Union No. 175, Interna-
tional Brotherhood of Teamsters, , Chauffeurs, Warehousemen and
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Helpers of America, AFL-CIO, is a labor organization as defined in_
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit
The parties stipulated, and we find, that the following employees
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act :
All truckdrivers and warehousemen of the Respondent at its opera-
tions in Bluefield, West Virginia, excluding office personnel, guards,
night watchman, and supervisors within the meaning of the Act.
B. The Union's majority
On March 5, 1956, the Department of Labor for the State of West
Virginia conducted an election in the unit set forth above. The results
of that election were 21 votes for the Union and 7 votes against the
Union. Representatives of the Respondent, the Union, and the West
Virginia Labor Department certified the results of the election.
We find that since March 5, 1,956, the Union has represented a ma-
jority of the employees in the appropriate unit.
C. The refusal to bargain
Following the election the Respondent entered into collective-bar-
gaining negotiations with the Union and continued such negotiations
until about May 11, 1956. At that time certain employees in the appro-
priate unit notified the Respondent they no longer desired the Union
to represent them. After the subsequent filing of decertification peti-
tions in Cases Nos. 9-RD-160 and 9-RD-164, the Respondent, about
July 2, 1956, withdrew recognition from the Union as the majority
representative of the employees in the appropriate unit. Since that
date the Respondent has failed and refused to recognize the Union as
the exclusive bargaining representative of the employees in the ap-
propriate unit and to bargain collectively with the Union, although
the Union has requested the Respondent to do so.
On July 5, 1956, the Regional Director dismissed the decertification
petition filed by the Respondent in Case No. 9-RD-160, and, on August
20,1956, he dismissed that filed by the employees in Case No. 9-RD-164.
Upon an appeal from the dismissal of the latter petition, 'the Board,
on September 27, 1956, sustained the Regional Director's action. , In
affirming the Regional Director, the Board relied upon Section 9 (c)
(3) of the Act which provides, in pertinent part :
No election shall be directed in any bargaining unit or any sub-
division within which, in the preceding twelve-month period, a
valid election shall have been held.
BLUEFIELD PRODUCE & PROVISION COMPANY 1663
D. Conclusion
The Board has held, with the approval of the Supreme Court,' that
a certification based upon a Board-conducted election must be honored
for a reasonable period-ordinarily 1 year-in the absence of unusual
circumstances. The Board has also decided that the same effect should
be given to certifications based upon secret ballot elections conducted
under the auspices of responsible State Government agencies as to
Board certifications? There is no contention in this case that the
election conducted by the West Virginia Department of Labor in-
volved any irregularity. In these circumstances we find that the
Respondent was required to honor the certification issued to the Union
by the State of West Virginia for 1 year, because the change of mind
by employees within a few months after the election is not the type of
unusual circumstance warranting suspension of the 1-year rule.'
The Respondent contends that Section 9 (c) (3) of the Act is un-
constitutional insofar as it may be construed as depriving employees
of the privilege of changing bargaining representatives at will. The
Board has often held that, as an administrative agency created by Con-
gress, it cannot question the constitutionality of any part of the Act
that created it but must leave such questions to the courts. Unless
-and until the courts determine otherwise, the Board will assume that
all parts of the Act are constitutional 4
Upon the foregoing and the entire record, we find that the Re-
spondent's refusal, since about May 11, 1956, to bargain collectively
with the Union violated Section 8 (a) (5) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the Respondent set forth in section III,
above, occurring in connection with its operations as described in
section I , above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among.the several States and tend to lead
to labor disputes burdening or obstructing commerce or the free flow
thereof.
V. THE REMEDY
Having found that the Respondent has violated Section 8 (a) (5)
and (1) of the Act, we shall order it to cease and desist therefrom and
take certain affirmative action which we deem.necessary to effectuate
the policies of the Act.
It has been found that since about May 11, 1956, the Respondent has
unlawfully refused to bargain collectively with the Union. We shall,
1 Ray Brooks v. N. L R. B, 348 U. S 96.
3 Olin Mathieson Chemical Corporation, Calabama Plant ' at McIntosh, Alabama, 115
NLRB 1501, 1502; T-H Products Company, at at., 113 NLRB 1246, 1247.
3 Ray Brooks v. N L. .R B., supra.
41. L A. No. 1351, Steamship Clerks and Checkers , Independent ( Rothermel Brothers),
108 NLRB 712, 715
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore, in order to effectuate the policies of the Act, require the
Respondent, upon request, to bargain collectively with the Union as
the exclusive representative of its employees in the appropriate unit
with respect to wages, hours, and other terms and conditions of em-
ployment, and, if an understanding is reached, embody such under-
standing in a signed agreement.
Upon the basis of the above findings of fact, and the entire record
in this case, the Board makes the following :
CONCLUSIONS OF LAW
1. Chauffeurs , Teamsters and Helpers Local Union No. 175, In-
ternational Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , AFL-CIO, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. All truckdrivers and warehousemen of the Respondent at its
operations in Bluefield , West Virginia , excluding office personnel,
.guards, night watchman , and supervisors within the meaning of the
Act, constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
3. Chauffeurs , Teamsters and Helpers Local Union No. 175, In-
ternational Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , AFL-CIO , was on March 5, 1956, and at all
times thereafter has been, the exclusive representative of all employees
, in the aforesaid unit for the purposes of collective bargaining.
4. By refusing about May 11 , 1956, and at all times thereafter to bar-
gain collectively with Chauffeurs , Teamsters and Helpers Local Union
No. 175 , International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America, AFL-CIO, as the exclusive repre-
sentative of the employees in the appropriate unit , the Respondent has
engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (5) of the Act.
5. By the aforesaid refusal to bargain , the Respondent has inter-
fered with, restrained , and coerced its employees in the exercise of
rights guaranteed by Section 7 of the Act and has thereby engaged
in, and is engaging in unfair labor practices within the meaning of
Section 8 ( a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
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, Bluefield Prod-
uce & Provision Company, Bluefield, West Virginia, its officers,
agents, successors, and assigns , shall :
BLUEFIELD PRODUCE & PROVISION COMPANY 1665
1. Cease and desist from :
(a) Refusing to bargain collectively with Chauffeurs, Teamsters
and Helpers Local Union No. 175, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,.
AFL-CIO, as the exclusive representative of all truckdrivers and
warehousemen at its operations in Bluefield, West Virginia, excluding
office personnel, guards, night watchman, and supervisors within the
meaning of the Act.
(b) In any like or related manner interfering with the efforts of
Chauffeurs, Teamsters and Helpers Local Union No. 175, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
,Helpers of America, AFL-CIO, to bargain collectively with it in
behalf of the employees in the aforesaid unit.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Chauffeurs, Teamsters
and Helpers Local Union No. 175, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-
CIO, as the exclusive representative of all the -employees in the afore-
said" appropriate unit 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) Post at its place of business at Bluefield, West Virginia, copies.
of the notice attached hereto marked "Appendix."' Copies of said
notice, to be furnished by the Regional Director for the Ninth Region,
shall, after being duly signed by an official representative of the Re-
spondent, be posted by the Respondent immediately upon receipt
thereof and be maintained by it for a period of sixty (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.
(c) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, as to the steps Re-
spondent has taken to comply herewith.
6 In the event that this Order is enforced by a decree of the 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:
4237 84-5 7-v of 117-106
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL, upon request, bargain collectively with Chauffeurs,
Teamsters and Helpers Local Union No. 175, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America , AFL-CIO, as the exclusive representative of all
employees in the bargaining unit described herein 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. The bargain-
ing unit is :
All truckdrivers and warehousemen of Bluefield Produce
R Provision Company, Bluefield, West Virginia, excluding
office personnel, guards, night watchman, and supervisors
within the meaning of the Act.
WE WILL NOT in any like or related manner interfere with the
'efforts of Chauffeurs, Teamsters and Helpers Local Union No.
175, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL-CIO, to bargain col-
lectively with us as the exclusive representative of the employees
in the bargaining unit set forth above.
BLUEFIELD PRODUCE & PROVISION COMPANY,
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.
.Local 175, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , AFL-CIO and R. O.
Wetz, d/b/a R. O. Wetz Transportation . Case No. 9-CC-84.
.May 20,1957
DECISION AND ORDER
On January 17, 1957, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter the Respondent
filed exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Jenkins].
117 NLRB No. 214.