Bowman Transportation, Inc.

National Labor Relations Board - Board Decisions

May 27, 1958

120 N.L.R.B. 1147 (N.L.R.B. 1958)

BOWMAN TRANSPORTATION, INC . 1147
Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) and (3) of the Act.
4. By recognizing and entering into a collective-bargaining agreement with the
Independent Union while rival petitions of that union and the Steelworkers were
pending before the Board, the Respondent interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act and
contributed illegal assistance and support to a labor organization, and thereby
engaged in and is engaging in unfair labor practices within the meaning of Section 8
(a) (1) and (2) of the Act.
5. With respect to other conduct of Respondent alleged in the complaint, I find no
independent violations 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.
[Recommendations omitted from publication.]
Bowman Transportation , Inc. and International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America,
Local No. 612
Bowman Transportation , Inc. and Truck Drivers & Helpers Local
No. 515, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America
Bowman Transportation , Inc. and Highway & Local Motor
Freight Employees Local Union No. 667, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America. Cases Nos. 10-CA-1950,1 10-CA-1985, 10-RC-3745,
and 32-RC-983. May 27, 1958
SUPPLEMENTAL DECISION, ORDER CONSOLIDATING
CASES AND DIRECTING HEARING, AND AMENDED
ORDER
The above-entitled complaint proceedings are before the Board on
remand from the Supreme Court. The remand directs the Board to
reframe its remedial order to permit District 50, United Mine Workers
of America, a noncomplying labor organization which was assisted by
the Respondent Company in violation of Section 8 (a) (2) of the Act,
to demonstrate in an election conducted pursuant to the Board's
remedial powers under Section 10 (c) that the effects of assistance
have been dissipated and that the Company's employees desire to be
represented exclusively by that union.
In its original Decision and Order,2 the Board found, inter alia,
that the Company illegally assisted the UMW in becoming the ma-
jority representative of the Company's employees. To remedy the
effects of this assistance, the Board ordered the Company to withdraw
and withhold recognition from the UMW as exclusive bargaining
'For the reasons set forth in our decision herein, Cases Nos. 10=RC-3745 and
32-RC-983 are being consolidated with Cases Nos. 10-CA-1950 and 10-CA-1985.
2112 NLRB 387.
120 NLRB No. 154.
1148 DECISIONS OF NATIONAL LABOR RELATIONS" BOARD
agent for its employees "unless and until the said labor organization
shall have been certified as such representative by the Board" after
a representation election conducted pursuant to Section 9 (c) of the
Act. In a supplemental proceeding,' the UMW requested that the
Board delete the quoted language from its order on the ground that
the UMW was entitled to establish its exclusive bargaining status by
means other than a Board certification. In support of this request,
the UMW argued, that the Board's order would forever bar it from
becoming the exclusive representative of the Company's employees
because of its noncompliance with Section 9 (f), (g), and (h) of the
Act, and therefore it could never be certified pursuant td an election
held under Section 9 (c). The Board declined to alter the order,
stating that the UMW's inability to petition for 'a representation
election was clue solely to its willful refusal to comply with the filing
provisions of the Act.
On review, the Court of Appeals for the District of Columbia modi-
fied the Board's order to provide that the Company would be free to
recognize the UMW not only when it had obtained a Board certificate,
but, alternatively, when the UMW "shall have been freely chosen as
such [representative] by a majority of the employees after all effects
of unfair labor practices have been eliminated." 4
The Supreme Court granted certiorari. In its decision,' the Court
ruled that the Board exceeded its remedial authority under Section 10
(c) of the Act by requiring that the noncomplying UMW go to an
election under Section 9 (c) and achieve a Board certification as a
condition to becoming the exclusive bargaining agent of the Com-
pany's employees., Relying upon its decision in United Mine Workers
of America v. Arkansas Oak Flooring Co.,' the Court declared :
Congress did not in § 9 (f), (g), and (h) make the filing required
by those subsections compulsory or a condition precedent to the
right of a noncomplying union to be recognized as the exclusive
representative of the employees. . . . Similarly, the Board can-
not, through the requirement of a Board certification, make non-
compliance a reason for denying the employees the right to choose
the assisted union at an election which can readily serve its de-
signed purpose without such certification.
The Court observed that the purpose of a remedial order in Section 8
(a) (2) assistance cases is to assure that the taint of employer assist-
ance has been removed before an employer can again deal exclusively
with the assisted union. The most significant element in such an
order, the Court stated, is the provision for an election in which em-
113 NLRB 786.
4 District 50, United Mine Workers of America v. N. L. R. B., 237 F. 2d 585.
5N. L. R. B. v. District 50, United Mine Workers of America ( Bowman Transportation,
Inc.), 355 U. S. 453.
6 351 U. S. 62.
BOWMAN TRANSPORTATION , INC. 1149
ployees can register their free choice , and not the formality of a Board
certification . Declaring that the prohibitions of Section 9 (f), (g),
and (h ) against conducting elections at the behest of noncomplying
unions under Section 9 (c) have no impact upon elections held under
Section 10 ( c) to remedy unfair labor practices , the Court concluded
that "Nothing in the subsections . . . [ ( f), (g), and ( h) ] is a barrier
to the conduct by the Board of an election not followed by a certifica-
tion, or to the making of an arrangement with another appropriate
agency , state or federal , for the conduct of the election under condi-
tions prescribed by the Board." The Court pointed out that the Board
need only certify the arithmetical results of such election.
With respect to the court of appeal 's decision , the Supreme Court
struck down that court 's modification of the Board 's order which
would have permitted the Company and the UMW to determine for
themselves when the effects of the unlawful assistance had been re-
moved. In doing so, the Court stated that nothing in its Arkansas
Oak Flooring opinion "justifies the Court of Appeals in going so far
as to dispense with an election under proper safeguards."
In sum, the Supreme Court has declared that the UMW, despite its
noncompliance , is entitled to proceed to an election held outside the
scope of Section 9 (c), and pursuant to the Board's remedial powers
under Section 10 (c), to demonstrate that the Company's employees
desire exclusive representation by it. After such an election , only the
arithmetical results thereof need be certified . If the UMW is success-
ful in such election , the Company may then lawfully recognize and
bargain with the UMW concerning its employees.
To conform the Board's order in these cases to the Supreme Court's
mandate, we shall therefore adopt the following procedures and
policies.
A. The conduct of remedial elections under Section 10 (c) : In its
opinion, the Supreme Court suggested that the Board, "or another
appropriate agency, state or federal," could conduct remedial elec-
tions under Section 10 (c). Because such elections are peculiarly and
intimately related to the duties imposed upon, the Board by that
section to determine whether the effects of unlawful assistance have
been dissipated, the Board has decided that it alone will conduct
these elections "under conditions prescribed by the Board."
Accordingly, in this as well as in all future Section 8 ( a) (2) as-
sistance cases involving noncomplying unions, the Board shall, after
the appropriate posting period has elapsed and the Board is satisfied
that A free and 'untrammeled election can be held, afford such unions
an opportunity to demonstrate in a Board election held outside the
scope of Section 9 (c) that the employees involved desire to be repre-
sented by those unions. In all such cases, the parties will be accorded
a hearing to develop unit and related contentions . The Board 's Rules
1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Regulations governing the conduct of hearings and elections under
Section 9 (c) shall be applicable to the election procedures conducted
pursuant to Section 10 (c). After the election procedures have been
concluded, the Board will certify the arithmetical results to the par-
'ties. If the noncomplying unions are successful in those elections, the
offending employers may thereafter grant exclusive recognition to
them.
In accordance with the Supreme Court's mandate, we shall make
available to the UMW a remedial election under Section 10 (c). How-
ever, the Board's files disclose that, on December 4, 1956, Truck
Drivers & Helpers Local No. 515, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America , a sister
local of the Charging Party, filed a petition in Case No. 10-RC-3745.
Local 515 seeks to represent certain employees located at the Com-
pany's terminal in Chattanooga, Tennessee. On December 12, 1956,
Highway & Local Motor Freight Employees Local No. 667, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, another sister local, filed a petition in Case No.
32-RC-983. Local 667 seeks an election among certain employees
located at the Company's terminal in Memphis, Tennessee. These
petitions are still pending. In view of this circumstance, we find that
it will best effectuate the policies of the Act to consolidate the repre-
-sentation cases herein with the Section 10 (c) proceeding and to
remand them to the Regional Office for the Tenth Region. In so do-
ing, we shall direct the Regional Director for the Tenth Region to
issue a notice of hearing in the representation cases after the posting
period has elapsed and a free election can be held. Such notice shall
be served upon all parties, including the UMW. The UMW shall
be permitted to intervene in the consolidated Sections 9 (c) and 10 (c)
proceedings and advance unit and related contentions. In accordance
with the Board's usual policy, such intervention must be supported
by at least one current authorization card 7 In the event that the
Board directs an election on the petitions filed herein, the UMW shall
be accorded a place on the ballot. If the Petitioners are successful in
the election, they will obtain a Board certification. If the UMW wins
the election, we shall merely certify the arithmetical results. On
the other hand if, after the hearing on the petitions, the Board shall
determine that the units petitioned for are inappropriate and dis-
misses the petitions, the Board shall direct the UMW to proceed to an
election in the unit which the Board deems appropriate. If the UMW
emerges the winner in such election, the Board will also certify the
arithmetical results. Thereafter, the Company may lawfully recog-
nize the UMW and bargain with it.
9 Because the Board has found that the contract between the UMW and the Company
was executed in violation of Section 8 (a) (2) of the Act, such contract cannot serve as a
basis for intervention.
BOWMAN TRANSPORTATION, INC. - - 1151
The consolidation of representation elections under Section 9 (c)
with Section 10 (c) remedial election proceedings serves the dual
purpose of resolving questions of representation while at the same time
establishing whether the effects of unlawful assistance have been
removed. The Board has therefore decided that, in all future assist-
ance cases involving noncomplying unions, the remedial election pro-
ceedings under Section 10 (c) shall be consolidated with any pending
representation petitions involving the same employees.
B. The form of the amended order: Paragraph 1 (d) of the Board's
original order in these complaint cases directs the Company to cease
"Recognizing District 50, United Mine Workers of America, as the
representative of its employees . . . unless and until the said labor
organization shall have been certified -as such representative by the
Board." (Emphasis supplied.) Paragraph 2 (d) further directs
the Company to "Withdraw and withhold all recognition from
'District 50, United Mine Workers of America, as representative of its
employees . . . unless and until the said labor organization shall have
been certified as such representative by the Board." (Emphasis sup-
plied.) As the Board may no longer make a certification a condition
precedent to the attainment of exclusive representative status by a
noncomplying, assisted union, we shall amend our original order by
substituting the following for the emphasized language:'
unless and until the said labor organization shall have- demon-
strated its exclusive majority representative status pursuant to a
Board-conducted election among the Respondent's employees.
To assure uniformity in remedial orders, the Board has decided that
the language set forth above shall be employed in all future orders
involving unlawfully assisted unions without regard to the compliance
status of such labor organizations.'
[The Board consolidated Cases Nos. 10-CA-1950, 10-CA-1985,
10-RC-3745, and 32-RC-983 and referred them to the Regional
Director for the Tenth Region for the purpose of scheduling a hearing
in conformity with, and for the reasons set forth in, the Board's
Supplemental Decision.]
8 The pertinent portion of the notice appended to the Board 's original order shall be,
and it hereby is, similarly amended
9 The Supreme Court's opinion does not impair the Board's authority to continue to
require that complying , assisted unions establish their exclusive bargaining agency by
obtaining a Board certificate after an election held under Section 9 (c). The Board
therefore could, if it so desired , continue to employ the "unless and until certified"
language in assistance cases involving such unions However, a certification flows to a
successful, complying union in a Section 9 ( c) election as a .final ministerial act of the
-Board in concluding a representation-proceeding, and not because of any direction in the
statute. Thus, all that Section 9 (c) requires when a petition is filed thereunder is that
the Board "shall direct an election by secret ballot and shall certify the results thereof"
,(Emphasis supplied.) In view of this circumstance, we shall henceforth utilize the
above-quoted language in all assistance cases.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AMENDED ORDER
Upon the basis of the entire record in these cases, and pursuant to,
Section 10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Respondent,
Bowman Transportation, Inc., Gadsden, Alabama, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Local No. 612, or any other labor organization of its employees, by
discharging or refusing to reinstate any of its employees or by dis-
criminating in any other manner in regard to their hire or tenure of
employment, or any term or condition of their employment.
(b) Assisting in the administration of District 50, United Mine
Workers of America, or contributing support to it, or to any other
labor organization.
(c) Giving effect to the collective-bargaining agreement, dated
May 22, 1954, between the Respondent and District 50, United Mine
Workers of America, or to any extension, renewal, or modification
thereof, or any other contract agreement between the Respondent and
the said labor organization which may now be in force. '"
(d) Recognizing District 50, United Mine Workers of America, as
the representative of its employees for the purpose of dealing with
the Respondent concerning grievances, labor disputes, wages, rates
of pay, hours of employment, or other conditions of employment,
unless and until the said labor organization shall have demonstrated
its exclusive majority representative status pursuant to a Board-
conducted election among the Respondent's employees.
(e) Interrogating its employees concerning their activities on be-
half of International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local No. 612, or any other labor
organization, in a manner constituting interference, restraint, or
coercion in violation of Section 8 (a) (1) ; and from engaging in the
surveillance of its employees at meetings of said or other labor
organizations.
(f) In any other 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 International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, Local
No. 612, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such activi-
ties, except to the extent that such right may be affected by an agree-
BOWMAN TRANSPORTATION, INC. 1153
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Welch Gross, upon his application, immediate and
full reinstatement to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privileges, and
make him whole for any loss of pay he may have suffered by reason
of the Respondent's discrimination against him, in the manner set
forth in the section of the Intermediate Report entitled "The
Remedy."
(b) Offer assignments to Joe Lackey, upon his reemployment,
without discrimination because of that employee's union or concerted
activities.
(c) Withdraw and withhold all recognition from District 50,
United Mine Workers of America, as representative of its employees
for the purpose of dealing with the Respondent concerning. grievances,
labor disputes, wages, rates of pay, hours of employment, or other
conditions of employment, unless and until the said labor organization
shall have demonstrated its exclusive majority representative status
pursuant to a Board-conducted election among the Respondent's
employees.
(d) Post at all its terminals copies of the notice attached hereto,
marked "Appendix A." 10 Copies of said notice, to be furnished by
the Regional Director for the Tenth Region, shall, after being duly
signed by the Respondent, be posted by it immediately upon receipt
thereof, and maintained 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 Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify the Regional Director in writing, within ten (10) days
from the date of this Order, what steps the Respondent has taken to
comply herewith.
10 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 A
NOTICE TO ALL EMPLOYEES
Pursuant to a Supplemental Decision and Amended Order of the
National Labor Relations Board, and in order to effectuate the policies
of the National Labor Relations Act, we hereby notify our employees
that :
483142-59-vol. 120-74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discourage membership in International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local No. 612, or in any other labor organization of our
employees, by discharging or refusing to reinstate any of our
employees, or in any other manner discriminating in regard to
their hire or tenure of employment, or any term or condition of
their employment.
WE WILL offer to Welch Gross, upon his application, immediate
and full reinstatement to his former or substantially equivalent
position, without prejudice to any seniority or other rights and
privileges previously enjoyed, and make him whole for any loss
of pay suffered as result of the discrimination against him.
WE WILL offer assignments to Joe Lackey, upon his reemploy-
ment, without discriminating against him because of his union or
concerned activities.
WE WILL NOT interrogate our employees concerning their activi-
ties on behalf of International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, Local No. 612, or
any other labor organization in a manner constituting interfer-
ence, restraint, or coercion in violation of Section 8 (a) (1) of the
Act, and we will not engage in the surveillance of our employees
at such meetings.
WE WILL NOT interfere with the formation or administration of
any labor organization or contribute financial or other support
to it.
WE WILL NOT give effect to the agreement dated May 22, 1954,
with District 50, United Mine Workers of America, or to any con-
tract or agreement with that organization which may now be in
force.
WE WILL withhold all recognition from District 50, United
Mine Workers of America as representative of any of our em-
ployees for the purposes of collective bargaining unless and until
said organization shall have demonstrated its exclusive majority
representative status pursuant to a Board-conducted election
among our employees.
All our employees are free to become, remain, or refrain from becom-
ing members of any labor organization, except to the extent that this
right may be affected by agreements in conformity with Section 8
(a) (3) of the National Labor Relations Act, as amended October
22, 1951.
BOWMAN TRANSPORTATION, 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.