Budway Express

National Labor Relations Board - Board Decisions

Apr 8, 1968

170 N.L.R.B. 1175 (N.L.R.B. 1968)

BUDWAY EXPRESS
Estate of Vincent McLeod d/b/a Budway Express
and Local Freight Drivers , Local No. 208 , Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America
Estate of Vinvent McLeod d /b/a Budway Express
and Local Freight Drivers , Local No. 208 , Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America , Petitioner.
Cases 21-CA-7617 and 21-RC-10497
April 8, 1968
DECISION AND ORDER
Bar CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On December 27, 1967, Trial Examiner William
E. Spencer issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in and was engaging in certain unfair labor
practices and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not en-
gaged in certain other unfair labor practices alleged
in the complaint. Thereafter, Respondent filed ex-
ceptions to the Decision and a supporting brief, and
the Charging Party and General Counsel filed
cross-exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with these cases to a three-
member panel,
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
Trial Examiner's Decision, the exceptions, cross-ex-
ceptions, and briefs, and the entire record in these
cases, and hereby adopts the findings,' conclusions,
and recommendations of the Trial Examiner with
the following modifications:
The Trial Examiner found, and we agree, that the
Respondent violated Section 8(a)(1) of the Act by
interrogating its employees concerning their union
activities; by threatening its employees with loss of
jobs and plant closing for supporting a union; and
' The General Counsel and Charging Party except to the Trial Ex-
aminer's credibility findings It is the Board's established policy, however,
not to overrule a Trial Examiner 's resolutions with respect to credibility un-
less, as is not the case here, the preponderance of all the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544, enfd 188 F.2d 362 (C A 3)
1175
by promising its employees benefits if they would
reject union representation. We also agree with the
Trial Examiner's finding that Respondent violated
Section 8(a)(3) and (1) of the Act by discharging,
on May 29, 1967, 7 of the 13 employees in the bar-
gaining unit because of their union activities. We
accept the Trial Examiner's recommendation that
these unfair labor practices which rendered a free
choice in an election impossible be remedied by or-
dering Respondent to bargain, upon request, with
the Union.'
However, unlike the Trial Examiner, we are of
the view that the Respondent also violated Section
8(a)(5) of the Act by its refusal to recognize and
bargain with the Union. Contrary to the Trial Ex-
aminer , we are satisfied that Respondent's letter of
June 2, 1967, in reply to the Union's May 29 de-
mand for recognition, constituted a refusal to
recognize the Union as the representative of a
majority of Respondent's employees in an ap-
propriate unit . It is well settled that an employer
may in good faith insist on a Board election as
proof of the union 's majority, unless such insistence
is motivated not by any bona fide doubt, but rather
by a rejection of the collective-bargaining principle
or by a desire to gain time within which to un-
dermine the union.' Here, Respondent engaged in a
campaign of flagrant 8(a)(1) violations and 8(a)(3)
and (1) conduct which was calculated to un-
dermine the Union's position with the employees so
as to dissipate its majority status. Indeed, it
discharged a majority of the employees in the ap-
propriate unit immediately after they told him they
had decided to remain with the Union and de-
manded that he sign a union contract, then initially
refused to discuss their reinstatement with the
Union. Such conduct clearly establishes the illegali-
ty of Respondent's refusal to bargain. Accordingly,
we find that Respondent refused to bargain collec-
tively within the meaning of Section 8(a)(5) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner, as modified
below, and hereby orders that the Respondent,
Estate of Vincent McLeod d/b/a Budway Express,
2 See Bernel Foam Products, Inc., 146 NLRB 1277. In adopting the Trial
Examiner 's findings herein , we do not rely on his observations concerning
the Bernel Foam doctrine, nor do we adopt his comments with respect to
Webb Tractor and Equipment Company, 167 NLRB 383
3 Joy Silk Mills, 85 NLRB 1263, enfd. 185 F.2d 732 (C A D C ), cert. de-
nied 341 U.S 914
170 NLRB No. 122
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Los Angeles, California, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order, as
herein modified:
Redesignate paragraphs 1(a) and 1(b) as para-
graphs 1(b) and (c) and insert the following as
paragraph 1(a):
"(a) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment, with Local Freight Drivers, Local No.
208, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America,
as the exclusive representative of its employees in
the appropriate unit described in paragraph 2(a)
below."
IT IS FURTHER ORDERED that the petition for cer-
tification of representative, filed in Case
21-RC-10497, be, and it hereby is, dismissed, and
that all prior proceedings held thereunder be, and
they hereby are, vacated.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM E. SPENCER, Trial Examiner: These con-
solidated proceedings were heard at Los Angeles,
California, on October 3, 1967, pursuant to due
notice. The complaint and amended complaint in
Case 21-CA-7617, issued July 13, 1967, amended
at the hearing, under Section 10(b) of the National
Labor Relations Act on a charge dated May 29, and
amended charges dated respectively June 1, June 6,
June 22, and June 23, all in 1967, alleged that the
Respondent engaged in unfair labor practices viola-
tive of Section 8(a)(1), (3), and (5) of the Act.
Consolidated therewith for hearing and decision
were certain objections filed by the Charging Party
herein to conduct affecting the results of the elec-
tion in Case 21-RC-10497.
The Respondent in its duly filed answer denied
having committed any of the alleged violations.
Upon the entire record in the case, my observa-
tion of witnesses, and with consideration of the
briefs filed with me by the General Counsel and the
Respondent, respectively, I make the following:
FINDINGS OF FACT
1. JURISDICTION
The Respondent-Employer, called at times the
Company, a California corporation, has its prin-
cipal place of business and terminal in Los Angeles,
California, from which, as a duly licensed common
carrier , it is engaged in the hauling of general com-
modities. During the 12-month period ending May
1967 it performed services valued in excess of
$50,000 for customers each of which in turn during
the same 12-month period sold and shipped
products valued in excess of $50,000 directly to
points outside California.
II. THE LABOR ORGANIZATION INVOLVED
Local Freight Drivers Local No . 208, Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America , the Charg-
ing Party-Petitioner herein , called hereinafter the
Union , is a labor organization within the meaning
of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Appropriate Unit and the Union's Majority
Therein
At all material times all truckdrivers and truck
maintenance employees of the Respondent, exclud-
ing all other employees, office clerical employees,
professional employees, guards, watchmen and su-
pervisors as defined in the Act, constituted a unit
appropriate for purposes of collective bargaining
within the meaning of the Act.
As of May 29, 1967, there were 13 employees in
the appropriate unit, and of these, 7, a majority of 1,
had signed cards authorizing Local 208 to represent
them.
B. Chronology
Following a discussion among employees con-
cerning union representation, employee Glen
Parker telephoned Bill Hart, a business representa-
tive of Teamsters Local 986, questioned him on
steps to be taken in getting union representation,
and later received authorization cards from him.
Parker distributed these cards and as of May 24 a
total of some nine signatures had been obtained.
On May 24, Parker, accompanied by three other
employees, met with Bill Croysdill, a business agent
of Local 208. Croysdill told the employees that in-
asmuch as they were truckdrivers it would be better
if Local 208, rather than Local 986, represented
them. Croysdill then struck 986 from the cards w id
inserted 208. The four employees present ap-
proved, or acquiesced in, this action.
On May 26, Local 208 filed a petition in Case
21-RC-10497.
On May 29, 7 of the 13 employees then in the
appropriate unit signed new authorization cards
designating Local 208 to represent them.
On May 29, Local 208 demanded, in writing,
recognition by the Respondent. This letter was
received by. the Respondent on May 31.
Under date of June 2, Respondent replied that it
had "no information" to support Local 208's claim
of majority representation; referred to the petition
previously filed in Case 21-RC-10497; stated that
BUDWAY EXPRESS 1177
it preferred certification by the Board before com-
mencing negotiations for a contract ; and supplied a
telephone number- for further discussion if the
Union desired it.
On June 6, the parties entered into a consent-
election agreement, and the election was held on
June 16 . The tally of ballots showed that all 13
eligible employees voted and of these 1 voted for
representation by Local 208, 12 against.
On June 22 , Local 208 filed timely objections to
the election and on July 14 the Board 's Regional
Director directed a hearing on the objections and
issued an order consolidating the representation
and complaint cases.
C. The Issue
The principal issue is whether the Respondent
engaged in unlawful preelection conduct of a sub-
stance and character requiring a Bernel Foam
remedy ( Bernel Foam Products , Inc., 146 NLRB
1277).
D. Respondent's 8(a)(1), (3) Conduct
Subsequent to the filing of the Union's represen-
tation petition, on or about May 27, Donald Atkin-
son, Respondent's deck foreman, told employee
Tom Horn that the Company knew the Union was
trying to get in, and asked Horn if he knew
anything about it. On about the same date, Atkin-
son told employee Steve Costido that the Company
had received a letter from the Union (a copy of the
representation petition?) and asked him if he knew
anything about the Union.'
On the morning of May 29; Ray Childs, Respon-
dent's general traffic manager, told employee Larry
Rakestraw that he had heard rumors about the
Union, and questioned Rakestraw on what he knew
about the matter and how far it had gone. Rakes-'
traw said it had gone "quite a ways." A few minutes
later Childs calledall the employees present, seven
in number, to the-loading dock, questioned them on
the extent of organization, and asked them if there
were any way of postponing the election for about,
6 months as the Company was then in the process
of negotiating a contract with an important
producer and proceeding with the election at that
time might jeopardize getting the contract. He also
told the employees that they should- have ap-
proached Vincent McLeod, part owner of Respon-
dent t who apparently managed its operation, before
going to the Union; that the Company could not af-
ford to pay union benefits and stay in business; that
there, was a possibility that if the Union came in he,
along with them, might lose his job and the Com-
pany might have to close down.
Employee Parker asked that the employees be
left to discuss the matter among themselves,
whereupon Childs left them. A little later when he
returned, Parker told him the employees had de-
cided to go ahead with the Union, that the Com-
pany could either sign -a union contract or they
would proceed to an election. Childs thereupon or-
dered them back to work.'
Childs must have reported back to McLeod on
developments, because McLeod shortly appeared
on the yard and indicating the five drivers who had
not yet left the yard told them they were fired and
to get "out of the yard." Parker, who had already
driven out of the yard, was stopped by one of the
men already discharged. Parker called McLeod and
was informed by McLeod that he could not afford
the Union, that he would go broke if the Union
came in, that he was going to close the door and
put a lock on it, and that if Parker was in his,
McLeod's, place he would do the same thing.
Another employee who had already left the yard
called Atkinson. Atkinson asked him "why did you
do this?" and instructed him to leave his truck
where it then was and he, Atkinson, would pick it
up.
The seven employees who thus had received
notice of- discharge went to the Union's office and
met with Cahill. They then met with the Union's at-
torney, were given new authorization cards, and
signed them. Cahill called McLeod and, according
to him, stated that the Union represented a majori-
ty of Respondent's employees and wanted to
discuss with him the discharge of the seven em-
ployees and the execution of a contract. Further,
according to Cahill, McLeod told him that he could
not afford to meet union demands, that he wanted
to talk to his employees but would not talk to the
Union.`Also on this same date, the Union addressed
its recognition demand to Respondent in writing
(received by Respondent on May 31), and filed the
charge which initiated this proceeding. This charge
alleged 8(a)(3) violations but no 8(a)(5) viola-
tions.3
All employees laid off or discharged- I use the
terms interchangeably-on May 29 were on May
29 notified that they were to return to their jobs
following the Memorial Day holiday. It is not
disputed that all these employees did in fact return
to their obs, were reinstated, and that none of
them suffered any loss of pay or other loss because
of the action taken earlier on May 29. Childs
I Horn and Costido so testified. Atkinson admitted having a conversation
with Costido on about May 27, but testified that it was Costido who in-
troduced the subject of the Union into a general conversation and that it
was only then that he asked Costido what he knew about the Union I credit
Atkinson.
2 Parker's testimony "I told him Vince could either sign a contract with
the union or we were going to go ahead with our plans on the election with
the union." According to Parker the men understood that if they did not
proceed to an election at this time, it would be a year before they could
again file for an election. Apparently, an election had been held at some
prior date, but no details were given Parker, doubtless , was misinformed.
3 The 8(a)(5) violation charge first appeared in the Union's first
amended charge, dated June 1, 1967
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
testified that Respondent, realizing its error before
it received a call from Cahill, began attempting to
reach all drivers for directing them to return to
work. Childs testified:
In fact, after this was done [the employees
discharged] and we came back in the office,
and Vince and I were talking, we kind of
looked at each other and from past ex-
periences we realize that we had done wrong,
and we knew we had to rectify the situation
and we thought, well, the best thing we better
do is to start calling and try to get them back
to work.
Employee Steve Costido testified that at or about
1 I a.m. of May 29, when he noticed all the delivery
trucks in the yard, he inquired about this of
McLeod and was told by the latter that he was
being laid off because the Union was trying to get
in and the Company could not afford the Union.
According to Ray Costido, a dockworker, on the
evening of May 29, he was told by Atkinson, in the
presence of his brother, Steve, that he was being
laid off because the other "boys" had been
discharged on account of the Union and, con-
sequently, there was no work for him. Atkinson ad-
mitted that he had a conversation with the Costido
brothers on the evening of May 29 in which he in-
formed them that there was no work for them
because there was no freight, and that when- the
drivers came back to work they would be put back
to work. He denied saying that the drivers had been
discharged.
As stated in the chronology above, the parties en-
tered into a consent election agreement on June 6
pursuant to which an election was held on June 16.
In the period between June 6 and June 16, all al-
legations of unlawful interference hinge on the
testimony of the Costido brothers.
Steve Costido testified that on May 31 when At-
kinson directed him to report back to work, Atkin-
son told him that he was going to be on Costido's
back-"be told me he was going to be on my back
constantly, and I got mad and hung up"-and that
some lawyer had made them bring the men back.
That evening, according to this witness, Childs told
him that Costido had let Childs down by joining the
Union, that Childs had been down to the union hall
and had seen Costido's authorization card.
Costido's testimony: "He told me I sure let him
down, and he was down at the Union and he saw
my Union authorization card, and I told him he
was a liar, and I told him what color it was, and he
said it was white , and I called him a liar again, and
he got beefed and he walked away." (The Costido
brothers did not sign new authorization cards on
May 29, and the earlier cards they signed were not
white.) Childs,, though testifying, did not deny the
statements 'thus attributed to him. Further
testimony of one or the other of the Costido
brothers was to the effect that on about June 8 At-
kinson said that if the Union got in a "lot of guys"
would have to be discharged because of union rules
which provided employees with felony records
would not be allowed in the Union-one of the
Costidos had a felony conviction record ; on about
June 12 said that if the Union got in, the first time
they got "messed up " they would be fired; and on
about June 8 asked the Costidos how they were
going to vote in the election and told them that
they would get union wages if they voted against
the Union.
Atkinson admitted he had conversations with the
Costido brothers concerning the election and union
activities generally; that these discussions involved
questioning by one or the other Costido about the
union requirements with respect to licensing of
truckdrivers and rules on a driver who had been
convicted of a felony . He did not specifically deny
other statements attributed to him by the Costidos.
E. Concluding Findings
This is still another Bernel Foam case (supra)
brought under the theory that though in secret bal-
loting in a Board-conducted election, 12 of the 13
employees eligible to vote and all voting voted
against union representation, they were too brain-
washed by their employer's unfair labor practices to
vote their true convictions, and therefore we must
look to their previously given authorization cards
and on that basis determine that the Union's
majority - of one prevails and accordingly declare
the Union their bargaining representative. The
basic issue in all Bernel Foam cases, as I view them,
is not whether the employer stands to gain by his
unfair labor practices and is not a matter of the
reach of the Board's discretion in fashioning an ap-
propriate remedy, but is plainly and simply whether
employees are guaranteed freedom in their choice
of a bargaining representative when their votes cast
in secret balloting, under "laboratory" conditions,
are set aside and an earlier choice, as indicated by
signed authorization cards (considered, by some to
be notoriously unreliable as compared with a secret
ballot)' is declared decisive.
Guarantees of the freedom of employees, to ac-
cept or reject union representation lie at the very
heart of the Act and any rule, by whatever name,
that interferes with that freedom is just as much a
violation of the spirit of the Act as is unlawful inter-
ference with that choice by an employer or a labor
organization. Obviously therefore, in applying the
Bernel Foam doctrine our zeal for insuring em-
ployees representation of their choice is properly
matched by an equal or greater zeal to insure that
representation' shall not be thrust upon them where
4 See, for instance , Crawford Manufacturing Co., Inc. v. N.L.R.B., 386
F.2d 367 (CA 4)
BUDWAY EXPRESS
that choice has not been decisively and freely ar-
ticulated . Even so, the application of Bernel Foam
in any given situation may be accompanied by per-
sistent doubts ( unless we affect bureaucratic om-
niscience), for employees are people and people
not infrequently change their minds ; a chief if not
the sole reason for holding elections is to afford
employees an opportunity to confirm or reject
previously given authorizations , otherwise the hold-
ing of an election in a Bernel Foam situation would
constitute a hoax ;. and aside from an employer's un-
lawful interference with election processes, there
may be other factors lawfully persuasive arising
between the signing of cards and the casting of bal-
lots in secrecy-not to mention the fact that the ex-
ecution of authorization cards is not normally
achieved in secrecy or with any safeguards what-
ever-such as would account for a shift in majority
opinion . (All of this is said with full cognizance
that law is seldom grounded in certainties, and
justice is a relative term.)
Coming to the facts at hand , a reasonable in-
ference may be drawn from the testimony of the
General Counsel 's first two witnesses , Parker and
Larry Rakestraw, both of whom signed authoriza-
tion cards on May 29, that in signing these cards
what was uppermost and foremost in their minds
was, that there would be an election . Rakestraw
testified that he did not read the card before he
signed it ; that nothing was said to him about what
the card would be used for, and that he signed it
because of prior experience in such matters; and
that his prior experience was that cards had to be
signed "to have the Union come in and represent us
for a vote," Parker's testimony also, though incon-
clusive, was to the same effect : "In order to have an
election , we had to have half of the people at Bud-
way fill' out a card...." He further testified that
when he asked Hart, representative of Local 986,
about organizational procedures , Hart said "you
had to have a majority of the men there fill out a
card in order to get an election there."
Other employee witnesses for the General Coun-
sel who had signed cards and who followed Rakes-
traw to the witness stand testified with really re-
markable uniformity that in soliciting their signa-
tures, Parker or others said they were authoriza-
tions for the Union to represent them, from which I
assume we are expected to infer that nothing was
said to them about an election . I infer nothing of
the sort. Parker was unmistakably the leader in the
organizational ' movement and apparently solicited
most of the authorization cards, and in view of his
own' credible testimony it would be absurd to con-
clude that no mention of an election in his solicita-
5 Cumberland Shoe Corporation, 144 NLRB 1268, enfd 351 F.2d 917
(C A. 6), Preston Products Company, Inc., 158 NLRB 322, enfd 373 F 2d
671 (C.A.D.C ), cf. N.L.R.B v Swan Super Cleaners, Inc., 384 F 2d 609
(C A 6), N L.R B. v S E. Nichols Co, 380 F.2d 438 (C A. 2), Crawford
Manufacturing Co, Inc. v. N L R B , 386 F 2d 367 (C A. 4).
B If only Rakestraw , of the seven employees signing authorization cards
1179
tions: Nor do I credit Cahill's testimony that on
May 29 he "explained to them [the employees]
that cards were not necessarily for an election, that
this was to show we represented a majority of the
people for the purposes of collective bargaining,
period." Had he made such a specific and
forthright statement it would almost certainly have
impressed Parker and Rakestraw, both prounion,
sufficiently that they would have remembered it
and testified to that effect.
The confrontation between the employees and
Childs on the morning of May 29 also centered-on
whether there would a postponement of a bargain-
ing election, previously petitioned for, and the deci-
sion of the employees as presented to Childs was
that either the Company should forthwith make a
contract with the Union, or the election would
proceed without delay. -
The Board may well consider all these matters ir-
relevant to the application of the Bernel Foam doc-
trine. As I understand prevailing current Board pol-
icy, no matter how much an election may be
stressed to the virtual exclusion of other matters in
the process of obtaining signatures to authorization
cards , unless the signatories are informed that the
holding of an election is the only or sole purpose of
the cards, the cards are not to be invaliuated and
may prevail over the results of secret balIotinga It
would seem to me, however, that before holding
bound by prior authorizations employees who have
overwhelmingly rejected union representation in a
bargaining election, all the circumstances attending
the getting of their signatures on the cards would be
at least relevant. On this assumption, and the entire
evidence, I find that while a majority of Respon-
dent's employees would have accepted representa-
tion by Local 208 on the morning of May 29, they
also believed that if the Respondent did not
forthwith agree to a union contract, they would be
afforded an opportunity to vote their convictions
on union representation in secret balloting,'
As to the alleged refusal to bargain, I find that
Respondent's letter of June 2 did not constitute a
refusal. The statement that the Respondent "prefer-
red" certification by the Board before commencing
negotiations on a contract, accompanied by a
stated willingness for further discussion of the
matter, was not a refusal. This is not to say that the
Respondent had a good-faith doubt that a majority
of its employees wanted union representation at that
time . It was amply demonstrated on the morning of
May 29 that a majority of employees wanted a
union contract or an election, and Respondent's ac-
tion in discharging or laying off a majority of them
is indicative of Respondent's knowledge or belief.
on May 29, signed believing that the sole purpose of the cards was to get an
election, and his card was therefore not counted, the Union would have
lacked majority on that crucial date, crucial because the General Counsel
has based his allegations of 8(a)(5) violations on a May 29 majority, the
only date on which a payroll was furnished for purposes of establishing a
majority.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But lack of a good-faith doubt of a union majority
does not of itself constitute a refusal to bargain.'
There is no evidence that, following receipt of
Respondent's June 2 letter, the Union availed itself
of Respondent's expressed willingness to pursue the
matter of recognition and bargaining , and on June
6 the parties executed a consent election agreement
from which stemmed the election of June 16. In
view of these facts, if a bargaining order is to issue
it must be based on 8(a)(1) and (3) violations.
There is no question that Respondent's conduct
on May 29 constituted a major violation of em-
ployee rights . Its interrogations of employees,
threats of plant closure, followed by the discharge
or layoff of a majority of its employees, far ex-
ceeded what the Board normally requires as a basis
for a bargaining order. I have no doubt that the
Respondent acted on impulse and in anger. It is
common knowledge , I believe, among those ex-
perienced in industrial relations , that in a compara-
tively small, family-owned enterprise, management
is apt to adopt a paternalistic attitude toward its
employees.8 This Respondent doubtless resented
the action of its employees in seeking union
representation without first bringing their com-
plaints to management. This may explain somewhat
its precipitate action on the morning of May 29,
but, of course, does not furnish legal justification
for that action. There is, however, some novelty in
the situation.
Either on demand of the Union, or its own initia-
tive with or without legal advice, the Respondent
promptly reinstated all the employees it laid off or
discharged on May 29 and no loss of pay resulted.
In fact, the Respondent did about everything that
would have been required of it under a remedial
order of the Board except post notices, and I have
little doubt that it would have done that too had the
Union requested it. Under Board decisions, how-
ever , a labor organization seeking an election has
no duty to take any action whatever to offset or
seek redress of what is a clearly recognizable unfair
labor practice by demands on the offending em-
ployer, but may proceed to an election, knowing
full well that it stands an excellent chance of having
the election set aside and its results nullified if it
does not win it.9 It may with impunity and Board
approval say to the employees whose authorization
' I do not credit Cahill's testimony that he demanded bargaining on a
contract during his telephone conversation with McLeod on May 29. Obvi-
ously, the object of his call was to get the men back on the job, the Union's
telegram of May 29 made reference only to the reinstatement of the
discharged employees ; the charge filed by the Union on May 29 alleges
only 8(a)( I) and ( 3) violations, and the Union 's May 29 written demand
for bargaining rights made no mention of a prior demand
8 In Webb Tractor and Equipment Company, 167 NLRB 383, the Board
mistakenly stated or implied that I found an interrogation harmless for the
sole reason that the interrogator was paternalistic " if indeed he was," when
I would have thought that my decision made it plain that my finding, aside
from the immediate context in which the interrogation occurred, was based
cards it holds, "Vote any way you wish, but if you
vote against union representation we will ask that
the election be set aside and on the basis of your
cards seek certification as your representative, "10
thereby, in effect, warning them of the futility of
voting aginst union representation. Nevertheless, it
may be argued that the coercive effects of Respon-
dent's May 19 statements and conduct were offset,
or at least diluted, by the show of union power in
getting the men back on their jobs without loss of
pay, and therefore that if the employees initially
were inhibited by the Respondent's unfair labor
practices in voting for the Union, the Union's show
of power would have given them increased con-
fidence in benefits to be derived from union
representation. On the other hand, despite the
Union's prompt, forceful, and successful action,
fear of further reprisals may well have continued to
be operative in the minds of the employees.
In my opinion, little occurring between May 29
and the election would justify a bargaining order,
except that it be read into the context of what oc-
curred on the morning of May 29. I credit Atkinson
that some of the remarks attributed to him by the
Costidos arose in the context of discussions in-
itiated by the Costidos. To the extent that he was
asked by the Costidos to express his opinion on the
advantages or disadvantages of union affiliation, I
find that his answers, thus invited, were not viola-
tive of the Act to the extent that they were respon-
sive. I was not impressed generally by the testimony
of the Costidos, one or both of whom had been
discharged by the Respondent prior to their testify-
ing, discharges which we must assume were for
cause. They did indeed corroborate each other to a
degree, but much of their testimony to my ears had
a somewhat rehearsed sound. Nor am I able to find
a logical explanation of why, of all the employees
involved, only the Costidos were sought out by At-
kinson for his alleged unlawful interrogations and
threats. For lack of specific denials, however,
together with reservations as to Atkinson's own
candor in testifying, I do find that Atkinson inter-
rogated the Costidos on how they would vote in the
election, made threats of job loss in the event the
Union won the election, and promised or suggested
a union wage scale in the event it lost. While there
is no evidence that McLeod or others in policy-
making management authorized or ratified these
on my entire observation of the interrogator, as well as that of the em-
ployee allegedly coerced, both of whom testified
Please note I do not use the term "paternalistic " as justification of what
would otherwise be unlawful conduct , but as a key to understanding that
conduct To understand all is to forgive all was not spoken of the law, but
judgment leavened with understanding may be useful in promoting an ac-
ceptance of the law
8 See Webb Tractor and Equipment Company, ibid, where the board held
that no such duty rested on the petitioning union though it had invited the
offending supervisor to a union meeting and advised him that he would be
included in the appropriate unit
10 Ibid
BUDWAY EXPRESS 1181
statements and interrogations, they constituted
8(a)(1) violations."
In sum, the interrogations, the threats, the
discharges, on and before May 29 though
remedied in large degrees, and Atkinson's inter-
rogations, threats, and suggestions of benefits if the
Union lost the election, occurring election agree-
ment and the election itself, add up to election in-
terference of such magnitude that the election must
be set aside, and,, unless I have misconstrued the
Board's Bernel Foam decisions, require a Bernel
Foam bargaining order though only 1 of the 13
eligible voters, all voting, voted for union represen-
tation. If the Bernel Foam doctrine is applicable at
all, I do not see that, it makes any difference
whether one or none of the eligible voters voted for
the Union. We cannot logically assume, on the
basis of the same factual complex, that one or two
employees were too intimidated to vote their true
convictions, but the, rest were not.12
Upon the basis of the foregoing findings of fact
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. The Respondent is an employer within the
meaning of Section 2(2) of the Act, enaged in com-
merce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
its employees in the exercise of rights guaranteed in
Section 7 of the-Act, the Respondent has engaged
in unfair labor' practices in violation of Section
8(a)(1) of the Act.
4. By discharging, its employees on May 29,
1967, because of their union and concerted activi-
ties, thereby discouraging membership in a labor
organization, Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning
of Section 8(a)(3) of the Act.
5. The aforesaid labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
6. It has not been proven that the Respondent
refused to bargain -with the Union in violation of
Section 8(a)(5) of the Act.
THE REMEDY
Having found'that Respondent engaged in certain
unfair labor pratices, .I -shall recommend- that it
cease and desist therefrom and take certain affir-
mative action which I find to be necessary to
remedy and remove the effects of the unfair labor
practices and to effectuate the policies of the Act,
to wit:
Upon request bargain collectively with the Union
as the exclusive representative of employees in the
appropriate unit with respect to rates of pay, wages,
hours of work, and other terms and conditions of
employment, and embody in a signed agreement
any understanding reached.
It will further be recommended that the election
held on June 16, 1967, be set aside.
RECOMMENDED ORDER
Upon the entire record in the case, and pursuant
to Section 10(c) of the Act, it is recommended that
the Respondent, its officers, agents, successors, and
assigns, shall:
1. "Cease and desist from:
(a) Discouraging membership of any employee
in the Union, or in any other labor organization, by
discharging or in any other manner discriminating
against any employee with regard to his hire or
tenure of employment, or any term or condition of
employment, except as authorized in Section
8(a)(3) of the Act.
(b) Interrogating its employees in an unlawful
manner concerning their own or their fellow em-
ployees' union sympathies or activities; threatening
its employees - with reprisals for choosing union
representation; promising its employees benefits if
they reject union representation; in any other
manner interfering with , restraining , or coercing its
employees in the exercise of their right to self-or-
ganization, to form, join, or assist the Union or any
other labor organization, to bargain collectively
through representatives of their own choosing, or to
engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities,
except to the extent that such right may be affected
by an agreement requiring membership in a labor
organization as authorized in Section 8(a)(3) of the
Act, as modified by the Labor-Management Re-
porting and Disclosure Act of 1959:
2. Take the following affirmative action required
to effectuate the policies of the Act:
(a) Upon request, bargain, collectively with the
Union as the exclusive representative of the em-
" In a much more dubious situation , where a supervisor was found =to
have made coercive antiunion s̀tatements , the statements admittedly oc-
curred in discussions among the employees pro and con the Union , and the
supervisor in question admittedly having been invited toa union- meeting
and advised that he would be included in the bargaining unit, the- Board
nevertheless found not only that the antiunion statements constituted
8(a)(l) violations. but also, relying on the rule of respondant superior,
were su'f icient to require a Bernel Foam remedy See Webb Tractor and
Equipment Company, supra -
12 My conclusions are based on the assumption that unlawful conduct oc-
curring,at any time after the filing of the election petition on May- 26 and
the election on June 16 constituted election interference , though as of May
26 there is no basis for establishing the petitioner's full representational
strength ; a fact which the Union recognized by having new authorization
cards executed on-May 29, If we'were to limit rndingsof election inter-
ference to the period between June 6, when the, consent election agree-
ment was executed, andJune' 16, when the election was held, I would have
great hesitancy in recommending a bargaining-order based solely on Atkin-
son's 8 ( a)( I) conduct as tesiif kd to by-the Costido brothers.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees in the appropriate unit described below
with respect to rates of pay, wages, hours of work,
and other terms and conditions of employment, and
embody in a signed agreement any understanding
reached. The appropriate unit is:
All truck rivers and truck maintenance em-
ployees, excluding all other employees, office
clerical employees, professional employees,
guards, watchmen and supervisors as defined
in the Act.
(b) Post at its office in Los Angeles, California,
copies of the attached notice marked "Appen-
dix. "13 Copies of said notice, on forms provided by
the Regional Director for Region 21, after being
duly signed by the Respondent's authorized
representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Regional Director for Region 21,
in writing, within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith.14
(d) IT IS FURTHER RECOMMENDED that the elec-
tion held on June 16, 1967, be set aside.
13 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
14 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify said Regional Director, in
writing, within 10 days from the date of this Order, what steps Respondent,
has taken to comply herewith "
APPENDIX
All truckdrivers and truck maintenance
employees, excluding all other employees,
office clerical employees, professional em-
ployees, guards, watchmen and super-
visors as defined in the Act.
WE WILL NOT discourage membership in the
above-named Union, or any other labor or-
ganization, by discharging any of our em-
ployees because of their concerted or union
activities or in any other manner discriminate
in regard to their hire or tenure of employment
or any terms or condition of employment, ex-
cept the extent that such right may be affected
by an agreement requiring membership in a
labor organization as authorized in Section
8(a)(3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of
1959.
WE WILL NOT interrogate our employees in
an unlawful manner concerning their own or
their fellow employees' union sympathies or
activities.
WE WILL NOT threaten our employees with
reprisals for choosing union representation.
WE WILL NOT promise our employees in-
creased benefits for rejecting union representa-
tion.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their right to self-organization, to
form, join, or assist the above-named Union, or
any other labor organization, to bargain collec-
tively through representatives of their own
choosing, or to engage in other concerted ac-
tivities for the purposes of collective bargain-
ing or other mutual aid or protection, or to
refrain from any or all such activities, except to
the extent that such right may be affected by
an agreement requiring membership in a labor
organization as authorized in Section 8(a)(3)
of the Act, as modified by the Labor-Manage-
ment Reporting and Disclosure Act of 1959.
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL, upon request, bargain collectively
with Local Freight Drivers Local No. 208, In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America,
as the exclusive representative of all our em-
ployees in the following unit with respect to
rates of pay, wages, hours of work, and other
terms and conditions of employment, and em-
body in a signed agreement any understanding
reached. The bargaining unit is:
ESTATE OF VINCENT
MCLEOD D/B/A BUDWAY
EXPRESS
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, Eastern Columbia Building, 849 South
Broadway, Los Angeles, California 90014,
Telephone 688-5229.