Boetticher & Kellogg Co., Inc.

National Labor Relations Board - Board Decisions

Jul 18, 1962

137 N.L.R.B. 1392 (N.L.R.B. 1962)

1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Boetticher & Kellogg Co., Inc. and Local 215, International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America. Case No. 25-CA-1112. July 18, 1962
DECISION AND ORDER
On March 5,1962, Trial Examiner Lloyd A. Fraker issued his Inter-
mediate 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 Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
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 McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. Except
as indicated below, the rulings are hereby affirmed.' The Board has
considered the Intermediate Report, the exceptions and brief, and the
entire record in this proceeding, and hereby adopts the findings, con-
clusions, and recommendations of the Trial Examiner to the extent
consistent with the decision below.
We agree with the Trial Examiner's conclusion that the Respondent
refused to bargain with the Union in violation of Section 8(a) (5) of
the Act. As already noted, we reach this conclusion on the basis of
testimony given by Respondent's witnesses and on uncontroverted
testimony by others, as follows :
On April 8, 1961, Respondent's three over-the-road truckdrivers,
Pate, Birchler, and Martin, designated the Union as their bargaining
representative. On April 10, the Union requested recognition of the
Respondent for a unit of the over-the-road drivers. At this time,
Respondent also employed two city drivers and a warehouseman,
Hooper, who was assigned to over-the-road driving duties for about 10
percent of his time.
The Union's recognition demand was received by Respondent on
April 11, and Respondent's Vice President Killinger conceded that
he then had no doubt that the Union was the "agent" of the three
over-the-road drivers.
i While we find that the Trial Examiner erred in not permitting any cross -examination
of Martin by Respondent, we do not find this prejudicial error for we ale not relying on
Martin ' s testimony herein Our conclusion that Respondent violated the Act is based only
upon testimony of Respondent ' s witnesses and the testimony of others which is un-
contradicted . Also, although we find error in the aforementioned ruling of the Trial
Examiner , we are satisfied, upon careful examination of the record, that neither it nor
any other circumstance cited by Respondent supports its charge of bias and prejudice
on the part of the Trial Examiner.
137 NLRB No. 143.
BOETTICHER & KELLOGG CO., INC. 1393
On April 13,1961, Respondent replied to the Union as follows :
This will acknowledge receipt of your letter of April 10, 1961,
addressed to the writer, in which you claim that a majority of the
employees in what you define as the collective bargaining unit,
have selected your union as the bargaining agent.
We, of course, have no way of knowing whether your union
does represent a majority of the over-the-road semitractor-trailer
drivers. However, what information we have that has come to our
attention is to the contrary.
We also have in our possession a petition which the National
Labor Relations Board calls Case No. 25-RC-2016, asking for
an election at our Company. Be advised that we have already
told the National Labor Relations Board that we will be glad to
cooperate with them in their investigation of this case.
Also on April 13, Respondent's Vice President Killinger asked em-
ployee Pate if he, Birchler, and Martin had joined the Union and,
upon receiving an affirmative reply, requested Pate to arrange a meet-
ing of these three employees with him (Killinger) on the following
weekend on a nonwork day.
On Sunday, April 16, the three over-the-road truckdrivers met at
Respondents' office with Killinger and Respondent's secretary-
treasurer, Don Heseman. At the outset of the meeting, Killinger
asked each employee whether he had joined the Union, stating that he
did not have to reply if he did not want to. All three answered in the
affirmative. There followed a discussion of employee grievances con-
cerning the overloading of trucks and the assignment of Hooper
to driving of certain of the loads. The employees complained of the
overloading both on grounds of safety and because the lighter loads
resulted in more trips (the employees were paid by the hour). Also,
they viewed the assignment of Hooper to part-time truckdriving duties
as cutting down their time. Killinger promised he would look into
the matter with a view to making some adjustments, particularly with
respect to the overloading complaints.
On April 20, Pate telephoned Killinger and told him that he and
Birchler would like to meet with him further.2 Killinger set Satur-
day, April 22, as the date for the requested meeting. On that date,
Killinger and Respondent's president, Kirwer, met with Pate and
2 According to Killinger , Pate said at that time, "Birchler and I have decided to with-
draw from the union but we would like to talk to you about it first " Pate denied mak-
ing any such statement when he telephoned . He admitted, however , that in the course of
the meeting thereafter held, he and Birchler told Killinger that both of them were think-
ing of withdrawing from the Union . The Trial Examiner found that Birchler and Pate
were in fact considering withdrawing from the Union "by the time of the second meeting"
and, under either version , it seems clear that this was so. However , these employees did
not in fact withdraw from the Union . Respondent does not claim that it thought that
they had done so, either at that time or any time here material
649856-63-voL 137-89
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Birchler. Pate had with him a list of items for a "contract" which
included : (1) the previously discussed grievances about the overload-
ing of the trucks and Hooper's assignment to routes; (2) a more evenly
balanced daily schedule of hours of driving; (3) a guarantee of 45
hours per week; and (4) a wage increase of about 25 percent in the
hourly rate. Killinger admittedly stated that Respondent would not
"contract" and was not permitted to "promise" anything so long as the
employees were in the Union and the Union was in the picture. There
was a discussion of each of the specific items above mentioned. As to
each, Killinger commented as follows : (1) the truckloads would be
lightened; (2) Hooper would not be assigned to any runs "except in
case of emergency"; (3) no promise could be given about a 45-hour
guarantee because there could not be certainty as to the amount but up
to now the employees had in fact worked at least 45 hours; and (4)
as to the wage item, Respondent "would be lucky" if it could manage
a 10-percent increase, but that nothing could be done or promised
definitely while the Union was in the picture.
At the hearing in the representation proceeding on May 5, Respond-
ent claimed that the requested unit was inappropriate and maintained
that the only appropriate unit was one encompassing all the Respond-
ent's truckdrivers, including the city drivers and the part-time driver,
Hooper. The Board found the Respondent's position to be without
merit in its Decision and Direction of Election issued August 7, 1961,
and held that the requested unit of over-the-road drivers, excluding
Hooper, was in fact appropriate.3
It is clear from the foregoing facts that the Union, representing all
the employees in an appropriate unit, requested recognition as the
bargaining agent for that unit and has been rejected by Respondent.
Respondent claims that it nevertheless did not violate the Act because
it had a good-faith doubt as to the appropriateness of the requested
unit as well as the Union's majority status therein. We are not per-
suaded by Respondent's defense.
Respondent's rejection on April 13 of the Union's April 11 request
states that it had no way of knowing whether the Union represented
a majority of the over-the-rqad drivers and that what information it
had was "to the contrary." However, Killinger's own testimony indi-
cates that Respondent did not entertain any such doubts and possessed
no such "contrary" information. On the very day Respondent's reply
was transmitted to the Union, Respondent learned from Pate that
all three over-the-road drivers had joined the Union. It was told
the same thing on April 16, this time by all three drivers themselves,
and it could not then have had any reasonable doubts of the Union's
representative status. Yet Respondent persisted in its refusal to
8 The representation petition was dismissed following issuance by the General Counsel
of the instant complaint.
BOETTICHER & KELLOGG CO., INC. 1395
recognize the Union. The Respondent now asserts that it always
doubted the appropriateness of the requested unit. But it did not
challenge the validity of the Union's request on this ground in its
April 13 reply. And even after the Board found the requested unit
to be an appropriate one, Respondent was still not prepared to extend
recognition to the Union. When, in addition to all the foregoing, are
added Respondent's interrogation of the over-the-road drivers 4 and
its dealing with those drivers outside the presence of their bargaining
representative, we are convinced, and conclude, that Respondent re-
fused to recognize and bargain with the Union because of a fixed intent
to avoid dealing with the Union at all and that its conduct violated
Section 8(a) (5) and (1) of the Act.'
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that Boetticher & Kellogg Co., Inc., Evansville,
Indiana, its officers, agents, successors , and assigns, shall:
1. Cease and desist from :
(a) Unlawfully interrogating its employees as to their membership
in and activities on behalf of Local 215, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America.
(b) Bargaining directly with its employees in derogation of the
rights of their exclusive bargaining representative.
(c) Refusing to recognize and bargain with the above-named Union
as exclusive representative of the employees in the appropriate bar-
gaining unit . The appropriate unit is: All over-the-road truckdrivers
employed by Respondent at its Evansville, Indiana, establishment,
excluding city truckdrivers, office clerical employees, professional em-
ployees, guards, and supervisors as defined in the Act.
(d) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-named Union
as to the wages , hours, and other terms and conditions of employment
of the employees in the appropriate unit, and, if an agreement is
reached, embody the terms thereof in a written contract.
4In the circumstances described , we agree with the Trial Examiner that Respondent's
interrogation of the drivers violated Section 8 (a)(1) of the Act.
6 See Fred Snow , Harold Snow and Tom Snow d/b/a Snow & Sons , 134 NLRB 709;
Mitchell Concrete Products Co., lno, 137 NLRB 504.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its Evansville, Indiana, establishment, copies of the
notice attached hereto marked "Appendix." 6 Copies of said notice,
to be furnished by the Regional Director for the Twenty-fifth Region,
shall, after having been duly signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof, and be main-
tained by it for 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, in writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply
herewith.
E 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 you that :
WE WILL NOT unlawfully interrogate our employees as to their
membership in and activities on behalf of Local 215, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America.
WE WILL NOT bargain directly with our employees in derogation
of the rights of their exclusive bargaining representative.
WE WILL NOT refuse to recognize and bargain with the aforesaid
labor organization as the exclusive representative of our em-
ployees in the appropriate unit.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights to
self-organization, to form labor organizations, to join or assist
the above-named Union, or any other labor organizations, to bar-
gain collectively through representatives of their own choosing,
to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, or to refrain from any
and all such activities.
WE WILL, upon request, recognize and bargain with said labor
organization as the exclusive representative of our employees in
the appropriate unit, and if an agreement is reached, embody the
terms thereof in a written contract.
The unit of our employees appropriate for the purposes of collec-
tive bargaining with the said labor organization is :
BOETTICHER & KELLOGG CO., INC. 1397
All over-the-road truckdrivers employed by us at our Evans-
ville, Indiana, establishment, excluding city truckdrivers, office
clerical employees, professional employees, guards, and super-
visors as defined in the Act.
BOETTICFIER & KELLOGG CO., 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.
Employees may communicate directly with the Board's Regional
Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indi-
ana, Telephone Number, Melrose 2-1151, if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The original unfair labor practice charge in this case was filed July 16, 1961, and
the amended charge was filed July 28, 1961, by Local 215, International Brotherhood
of Teamsters , Chauffeurs, Warehousemen and Helpers of America, herein called the
Union, against Boetticher & Kellogg Co., Inc., herein called the Respondent. The
complaint was issued August 30, 1961.
This case was heard by Trial Examiner Lloyd R. Fraker at Evansville, Indiana,
on January 3, 1962.
At the hearing the Respondent moved orally to disqualify me as the Trial Examiner
because of alleged bias against one of its counsel , Arthur R. Donovan . The motion
was overruled for reasons which were fully explicated ,by me on the record.
After the close of the hearing and within the time fixed for filing briefs as extended,
the General Counsel and the Respondent filed briefs, in support of their respective
positions , which have been fully considered by me in arriving at my findings and
recommendations herein.
After the close of the hearing the Respondent renewed its objection to my par-
ticipation in the hearing as the Trial Examiner , by a motion in writing . For the
reasons stated by me in a written order issued February 19, 1962, said motion has
also been overruled.
The Pleadings and Stipulation
It is alleged in the complaint , as amended by interlineation at the hearing, that the
Respondent at specified times violated Section 8 ( a)(1) of the National Labor Re-
lations Act, as amended , herein called the Act , by the conduct of its officers and
agents in interrogating certain of its employees , in bargaining with them as individuals
and in refusing to bargain with the Union as their exclusive collective -bargaining
representative in an appropriate unit.
It is also alleged in the complaint , as so amended , that the Respondent at specified
times violated Section 8(a)(5) of the Act by refusing to bargain with the Union as
such representative of the Respondent 's employees in said unit.
In its answer the Respondent admitted the jurisdictional allegations of the com-
plaint as well as the status of the Union as a labor organization , as defined in Section
2(5) of the Act, the official capacities and the agency for the Respondent, of its
three corporate officers who are named in the complaint , but denied generally all
other allegations of the complaint.
The General Counsel and the Respondent stipulated , in writing , that on April 11,
1961 , the Respondent received a written request from the Union for recognition and
bargaining with it as the collective -bargaining representative of all over -the-road
semitractor-trailer drivers employed at your Evansville , Indiana , establishment; ex-
cluding all guards , professional employees , clerical employees , and supervisors as
defined in the Act and all other employees ; that on or about April 14, 1961, the
Union received from the Respondent a written refusal to recognize or bargain with
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it for such employees; and that the Respondent had not as of December 29, 1961,
recognized the Union as the representative of said employees. Since there is no
evidence in the record that the Respondent has, at any time, recognized the Union,
I will apply the presumption of the continued existence of the facts covered in the
stipulation. (N.L.R.B. v. National Motor Bearing Company, 105 F. 2d 652 (C.A.
5); and N.L.R.B. v. Piqua Munising Wood Products Co., 109 F. 2d 552 (C.A. 6).)
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Since the allegations of the complaint of the facts, upon which the jurisdiction of
the Board in this case is predicated, are admitted by the Respondent, I find that the
Respondent is an Indiana corporation engaged at Evansville, Indiana, in the dis-
tribution, at wholesale, of hardware, electrical and automotive parts, and building
supplies and equipment, and that during the period of 12 months prior to August 30,
1961, it sold and shipped goods of a value in excess of $50,000, from its establish-
ment in Evansville, Indiana, to points outside of that State.
I find, therefore, that the Respondent is engaged in commerce and in operations
affecting commerce as defined in Section 2(6) and (7) of the Act and that it will
effectuate the policies and purposes of the Act to assert jurisdiction over the
Respondent.
H. THE LABOR ORGANIZATION INVOLVED
The General Counsel alleged, the Respondent admitted , and I find that the Union
is a labor organization as defined in Section 2(5) of the Act.
III. THE APPROPRIATE UNIT
On August 7, 1961, in the related representation case No. 25-RC-2016, the Board
issued a Decision and Direction of Election (not published in NLRB volumes) in
which it found that the unit of over-the-road drivers (excluding the part-time driver
and the city drivers) sought by the Union was the unit of Respondent's employees
which is appropriate for the purposes of collective bargaining. I am bound by that
decision and shall, therefore, base my findings herein which are collateral to the issue
of the appropriate unit, on that decision of the Board, a copy of which is in evidence
as General Counsel's Exhibit No. 3G.
IV. PROCEDURAL ISSUES
A. During the course of the Union's interrogation of the witness Pate, one of the
over-the-road truckdrivers, involved in this case, who was called and interrogated
in chief by the General Counsel, I overruled the Respondent's objection that a ques-
tion asked the witness by counsel for the Union, was leading. The question itself
was not highly leading; however, that it entirely beside the point. Under Sections
102.8 and 102.38 of the Board's Rules and Regulations, Series 8, as amended, the
Union having filed the charges herein, was a party to the proceedings and had the
right to cross-examine witness called by the General Counsel. (John L. Clemmey
Company, Inc., 118 NLRB 599.) It seems to me that such a privilege is particularly
appropriate in this case where all three of the employees in the appropriate unit had
joined the Union and after two meetings with officials of the Respondent two of the
three admitted that they might withdraw from the Union. The meetings were held
after the Respondent knew that all three of said employees had joined and it had
refused of recognize or bargain with the Union as their representative. There is no
evidence that the Union was notified that either of the meetings would be held and
none of its representatives attended either meeting. Although the Respondent denied,
in its answer herein, that it had refused to bargain with the Union, it defended against
that allegation of the complaint solely on the theory that there was no obligation on
its part to bargain.
B During the course of the hearing I ruled that the Respondent should cross-
examine Martin (one of the three over-the-road truckdrivers involved) who was a
witness called by the General Counsel, at the close of the General Counsel's direct
examination of him rather than after counsel for the Union had also interrogated
him. Upon the Respondent's refusal to do so, I excused the witness after counsel
for the Union had interrogated him and refused to permit the Respondent to cross-
examine him. Although the Union' s interrogation of this witness was trivial and had
little or no bearing on the issues , that fact has nothing to do with the issue raised
by my ruling.
My reasons for requiring the Respondent to cross-examine Martin at the close of
the General Counsel's direct examination were to expedite the hearing, since it was
BOETTICHER & KELLOGG CO., INC. 1399
entirely possible that the Union would not interrogate him at all, and to facilitate
consideration of the record in this case by having the examination in chief and the
main cross-examination in consecutive order.
Under Section 102.35 (f), (h), and (k) of the Board's Rules and Regulations,
Series 8, as amended, my authority to so rule is not subject to debate. When this
issue first arose counsel for the Respondent indicated clearly that he would accede
to my ruling on the matter and when I had ruled contrary to his request, he refused
to do so. At this point I refused to rescind my ruling in the interest of conducting
an orderly hearing and of retaining control thereof.
Ordinarily I would not discuss such collateral issues in an Intermediate Report
but have done so here because the Respondent has challenged my rulings as indicative
of the bias on my part against it. I have discussed them in detail in this case and have
cited the controlling rules and decisions so that the parties, and the Board, if excep-
tions are taken to this Intermediate Report, may have the benefit of my unbiased
thinking on the collateral issues in question.
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. The alleged direct violations of Section 8(a)(1) of the Act
The Respondent's vice president, John H. Killinger, testified that on April 11,
1961, when he received the Union's request for recognition and bargaining, the
Respondent had in its employ only three employees in the appropriate unit, namely,
Gilman Pate, Clayton Birchler, and Gaylon Martin, who will be hereinafter referred
to by their last names only. He also testified that on April 13, 1961, he approached
Pate in the Respondent's warehouse, asked him if he had joined the Union and if
Birchler and Martin had done likewise, and that, upon being told by Pate that all
three of said employees had joined the Union, he asked Pate to arrange a meeting
with the three of them for the next Saturday, in the Respondent's office as he "would
just like to hear it from them. . whether or not they had joined the Union." I
credit his statement that he asked Pate if he, Birchler, and Martin had joined the
Union and that he requested Pate to arrange a meeting with the three employees
the following Saturday, as admissions against interest, but I do not credit his state-
ment that he asked for the meeting only for the purpose of having said employees
tell him either individually or collectively if they had joined the Union. In the first
place he could have asked each of the other two if they had joined the Union at the
warehouse, without arranging a meeting for that purpose, on a nonworking day in the
office.
At that time he was privileged to ask each of said employees if he had joined the
Union if he had given them the assurances which the Board approved for such
interrogation in its decision in the Blue Flash Express, Inc., case (109 NLRB 591).
He did not, however, at any time give the employees in question any such assur-
ances. In the second place his testimony as a whole clearly indicates that he called
that meeting and at the very least suggested a second meeting, in an effort to rid the
Respondent of the Union, by promising said employees adjustments in their conditions
of employment which would leave them with little, if anything, to be gained by their
continued adherence to the Union.
All three of the employees involved testified in detail as to the bargaining con-
cerning the conditions of their employment which took place between them and
Killinger at that meeting. Their testimony was straightforward and some of it was
favorable to the Respondent. It is true that they were confused as to dates, etc., but
so was Killinger, as is to be expected when witnesses rely on their memory to fix
the dates of transactions which occurred in the past.
All three of said employees testified, as did Killinger, that Don Heseman, the
Respondent's treasurer, was present at the meeting of April 16, 1961. Heseman was
not called to corroborate Killinger and no explanation was given for the Respondent's
failure to call him. Under such conditions the presumption is that had Heseman been
called he would not have testified favorably to the Respondent. (Bonham Cotton
Mills, Inc., 121 NLRB 1235, and Threads Incorporated, 124 NLRB 968.) They also
testified that during that meeting Killinger told them to think it over and let him
know what they decided. Each of them also testified that Killinger interrogated each
of them individually about having joined the Union before the meeting of April 16,
1961. I credit their testimony in that regard as well as all of their testimony which
conflicts with the testimony of Killinger . His testimony clearly indicates that after
interrogating Birchler, Pate, and Martin as to their membership in the Union at a
time when he already had no doubt that the Union represented all of them, he pro-
ceeded to bargain with them as individuals, to promise them benefits conditioned
on their withdrawal from the Union, and that the purpose back of such conduct was
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to get them to withdraw from the Union . His testimony that , although he had not
talked to his attorneys before the meeting of April 16 , 1961, and had had no experi-
ence in labor relations before that time, he knew he could not talk to them about any-
thing pertaining to the Union because , "You read it in the newspapers all the time
and various places," is incredible.
In view of the promises made to the three employees at the meeting of April 16,
1961 , contingent upon their withdrawal from the Union , it is not strange that by the
time of the second meeting Birchler and Pate were considering withdrawing from
the Union.
Crediting, as I do, the testimony of the three employees involved that at their
first meeting with Killinger he agreed to adjust their grievances as to hours , stops,
and the use of a part-time over-the -road driver, I find that the decision of Birchier
and Pate to consider withdrawing from the Union was induced by such promises.
There is no evidence in the record , however, that any of said employees ever with-
drew from the Union or that adjustment of their grievances was ever actually effec-
tuated by the Respondent.
It is not disputed that the second meeting between officials of the Respondent and
over-the-road truckdrivers in its employ was held in the office of the Respondent on
Saturday, April 22, 1961. Both Killinger and J. F. Kirwer, the Respondent's presi-
dent , attended as did Birchler and Pate. Both of said employees testified credibly that
Birchler arranged for the meeting pursuant to Killinger 's request , voiced at the first
meeting, that the three employees involved "think it over" and let him know what
they had decided. Based on the credited testimony as to what took place at the first
meeting, and on the admissions of Killinger against the interest of the Respondent, I
infer that Killinger had suggested that the employees think over their membership in
the Union and let him know what, if anything, they were going to do about with-
drawing therefrom and that the second meeting was brought about by such conduct
on his part.
Both Killinger and Kirwer testified that they had been advised by counsel before
the second meeting with the employees and knew that they could not legally bargain
with the employees directly, at that time . Strangely enough Killinger testified, in his
direct testimony, that he told the two employees present at that meeting that he would
make no changes in their working conditions "until they were out of the Union," and
Kirwer almost admitted the same but caught himself in time to put it on the basis
that the Respondent could not offer the employees anything "as long as the matter
was in the course of litigation."
Even if the employees were told at either or both of the meetings that the Respond-
ent could not promise them anything as long as the matter was in litigation , admit-
tedly Killinger did bargain with them directly at both meetings and did promise to
adjust certain grievances for them. This being so the Respondent's contention that
it did not bargain with them even though Killinger knew that on and after April 11,
1962 , the Union was the agent for all three of the over-the -road truckdrivers , is absurd.
Since all of the interrogation of and bargaining with the three employees involved
took place after the Respondent knew that the Union was their exclusive collective-
bargaining representative and the interrogation was not within the protection of the
Board 's non per se doctrine as enunciated in its Blue Flash decision , I find that the
Respondent violated Section 8 (a) (1) of the Act by interrogating them and bargaining
with them directly.
B. The alleged refusal to bargain with the Union
Since admittedly the Respondent knew, at all times on and after April 11, 1962, that
the Union represented all of the employees in the unit found to be appropriate by the
Board, it could not have had a good-faith doubt as to the majority status of the Union
at any time subsequent to that date . It stands admitted that at all times thereafter
the Respondent not only failed but refused to recognize and bargain with the Union as
the representative of said employees.
Under such conditions its conduct in violating Section 8(a) (1) of the Act, as
found above and in failing and refusing to recognize and bargain with the Union
constituted violations of Section 8(a)(5) and ( 1) of the Act and I so find . (Joy Silk
Mills, Inc., 85 NLRB 1263, enfd. as mod. 185 F. 2d 732 (87 App. D.C. 306).)
Although I also find that the Respondent was motivated by bad faith in violating
Section 8 ( a)(1) and (5 ) of the Act, as found above , in a case such as this where
the Respondent's illegal conduct amounted to direct violations of the Act, its motives
in so doing are not material . (The Radio Officers' Union of the Commercial Teleg-
raphers Union , AFL (A . H. Bull Steamship Company ) v. N.L.R.B., 347 U.S. 17.)
LOCAL 3, INT'L BROTHERHOOD ELECTRICAL WORKERS 1401
In arriving at the findings and conclusions on which my recommendations herein
are based , I have carefully considered and reconsidered all of the evidence adduced
at the hearing and have based my findings and recommendations on the entire record
in this case.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer as defined in Section 2(2) of the Act, is engaged
in commerce and in operations affecting commerce as defined in Section 2(6) and (7)
of the Act, and it will effectuate the policies and purposes of the Act to assert
jurisdiction in this case.
2. The Union is a labor organization as defined in Section 2(5) of the Act.
3. By interrogating employees Pate, Birchler, and Martin as to their membership
in and activities on behalf of the Union, on and after April 13, 1961, and by
bargaining with them directly on and after April 16, 1961, the Respondent interfered
with, coerced, and restrained them in the exercise of the rights guaranteed them in
Sections 7 and 8 of the Act, in violation of Section 8(a)(1) thereof.
4. By failing and refusing, on April 11, 1961, and at all times thereafter, to
recognize and bargain with the Union as the exclusive collective-bargaining rep-
resentative of its employees in an appropriate unit of all over-the-road truckdrivers
employed by it at its Evansville, Indiana, establishment, excluding city truckdrivers,
office clerical employees, professional employees, guards, and supervisors as defined
in the Act, and by, on and after April 16, 1961, bargaining directly with the em-
ployees in said unit, the Respondent refused to bargain with the Union in violation
of Section 8(a)(5) and (1) of the Act.
5. The foregoing findings of violations, by the Respondent, of Section 8(a)(1)
and (5) of the Act, are findings of unfair labor practices, as defined therein, tending
to lead to a labor dispute or disputes which would have a substantial effect on the
Respondent's business operations in commerce as defined in Section 2(6) of the Act.
[Recommendations omitted from publication.]
Local 3, International Brotherhood of Electrical Workers, AFL-
CIO and Jack Picoult and Al Picoult d/b/a Jack Picoult.
Case No. 2-CP-122. July 18, 1962
DECISION AND ORDER
On April 23, 1962, Trial Examiner Sidney Sherman 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 Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
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 Inter-
137 NLRB No. 138.