Eclipse Motor Lines, Inc.

National Labor Relations Board - Board Decisions

Mar 17, 1964

146 N.L.R.B. 371 (N.L.R.B. 1964)

ECLIPSE MOTOR LINES, INC. 371
employees interfered with their freedom of choice in that election , I conclude that
the Board correctly set aside the results of that election and ordered a second election.
Accordingly, I reaffirm my findings and conclusions set forth in the Intermediate
Report issued on October 12, 1962 , in this proceeding and recommend to the Board
that it order the Company to comply with the recommendations in that report for
action to remedy its unfair labor practices found therein.
Eclipse Motor Lines, Inc. and General ' Teamsters , Chauffeurs,
Warehousemen and Helpers , Local Union 697, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases No. 8-CA-3148 and 8-RC-1t932.
March 17, 1964
DECISION AND ORDER
On November 15, 1963, Trial Examiner John C. Fischer issued his
Trial Examiner's Decision in the above-entitled proceedings, find-
ing that the Respondent had not engaged in any unfair labor practices
and recommending that the complaint be dismissed in its entirety, as
set forth in the attached Decision. Thereafter, the Charging Union
filed exceptions to the Decision and a supporting brief, and the Re-
spondent filed a brief opposing the Union's exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and
Members Fanning and Jenkins].
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 and the entire record in this case, including
the exceptions and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
additions and modifications.
The Charging Union excepts to the Trial Examiner's credibility
findings, which findings, as stated by the Trial Examiner, constitute
the controlling factor in the resolution of this case.
We note at the outset the Trial. Examiner's basic finding that, "The
demeanor of the witnesses on the stand left no doubt in the mind of
the Trial Examiner that Respondent's witnesses were telling the
truth." It is thus apparent that the Trial Examiner's credibility
findings were based in large part on his observation of the witnesses.
It is our policy to attach great weight to such credibility findings;
and -we do not overrule such findings, except where the clear pre-
ponderance of all the relevant evidence convinces us that the Trial
146 NLRB No. 42.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Examiner's credibility resolutions were incorrect.' No such conclu-
sion is warranted in this case 2
The Union contends, inter alia, that, in the absence of a specific
denial of some of the alleged threats of reprisal testified to by the
General Counsel's witnesses, such testimony must be accepted and
is sufficient to establish the alleged violations of the Act. First, it is
apparent that the Trial Examiner, based largely on his observation
of "the witnesses," not only credited Respondent's witnesses, but also
completely discredited the General Counsel's witnesses. Moreover,
Respondent's principal witness Donahie not only made a specific
denial of many of the numerous alleged threats testified to by the
General Counsel's Witnesses,' but also made general denials sufficient
to contradict all such alleged threats 4 Accordingly, we find no
merit in the Union's contention.
The Union also contends that there is a clear preponderance of
the evidence in favor of the General Counsel, because there were
five General Counsel witnesses as opposed to one for the Respondent.
Sheer numbers of witnesses are not necessarily determinative in this
connection; and especially so in this case where Respondent witness
Donahie was the only one charged with making unlawful statements,
and therefore was the only one who could testify in contradiction of
the General Counsel's witnesses.'
In view of the foregoing, we shall adopt the Trial Examiner's
recommendation that the complaint herein be dismissed, and that the
companion objections to election herein be overruled.
1 Standard Dry Wall Products , Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
2 The Trial Examiner also relied in part for his credibility findings on an assumption
that Respondent Manager Donahie would not have made the alleged unlawful statements
involved herein because he had the advice of counsel during the period involved. We do
no rely on such a speculative assumption Nor do we rely, as , the Trial • Examiner also
did in part, in discrediting employee Nye, on a speculative assumption that it is "simply
unbelievable" that Donahie would call Nye from his home to come into the office and
make obviously illegal threats to Nye before an election . The Trial Examiner also relied
in part, in discrediting employee Link, on charges that Link was a continual drinker on
the job and also wrote obscenities on the walls. As the actual evidence shows only one
incident when Link may have been drinking on the job, we consider these unsupported
charges as wholly insufficient to even enter into a credibility finding. Rather, as already
indicated , we necessarily rely in large part in this case, as the Trial Examiner also
necessarily did, on his observation of the witnesses.
a The General Counsel's five witnesses , erroneously identified at several places in the
Trial Examiner 's Decision as "the Union 's witnesses," testified to some 15 to 20 different
threats made to them.
'General Counsel witness Link also testified to an alleged unlawful interrogation, but
there was a general denial of any such conversation.
The Union also points to Donahie's failure to specifically deny an alleged statement to
employee Rotilio that Donahie planned to deny all the alleged threats made by him. As
Donahie denied that any such threats were made by him , it was unnecessary for him to
also deny this necessarily nonexistent statement with respect to such nonexistent threats.
5 The Union also contends that Donahie should be discredited because of an incon-
sistency in his testimony in the prior representation case hearing , and two alleged in-
consistencies in his testimony in this case . One minor inconsistency appears in each case,
hardly sufficient to discredit Donahie who is-'otherwise credited largely on the liasis of his
demeanor on the stand.
ECLIPSE MOTOR LINES, INC. 373
[The Board dismissed the complaint in Case No. 8-CA-3148 and
overruled the objections to the conduct of and results of election in
Case No. 8-RC-4932.]
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act,
as amended , 29 U.S .C. Sec . 151, et seq., herein called the Act.
General Teamsters , Chauffeurs , Warehousemen and Helpers , Local Union 697,
International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of
America, herein sometimes called the Union or Local 697 , on May 3 , 1963, filed
a charge against Eclipse Motor Lines , Inc., herein sometimes called the Com-,
pany or the Respondent . On June 13 , 1963 , the General Counsel of the National
Labor Relations Board , on behalf of the Board , by, the Regional Director for the
Eighth Region , issued a complaint and notice of hearing, the complaint alleging
that the Respondent during stated times has engaged in and is engaging in unfair
labor practices within the meanings of Section 8 (a) (1) of the Act . The Respond-
ent thereafter filed timely answer to the allegations of the complaint , effectively
denying the violations , alleged in Case No. 8-CA-3148.
Prior to the issuance of the complaint herein , the Regional Director for the
Eighth Region on December 4, 1962, entered a Decision and Direction of Elec-
tion in Case No. 8-RC-4932 , after which an election was held on April 26, 1963.
A secret ballot was conducted under the supervision and direction of the Regional
Director among certain employees of the Respondent in the bargaining unit as set
forth in the Decision and Direction of Election , to determine whether these employees
desired to be represented for collective -bargaining purposes by Local 697. Out
of an approximately 64 eligible voters, 55 valid votes were cast, of which 27 were for
and 28 against the Union as such representative . There were four ' challenged-
enough to affect the results of the election.
Thereafter the petitioning Union , Local 697 , filed timely objections to conduct
of the election and to conduct affecting results of the election . On June 13, 1963,
the Regional Director issued his supplemental decision and order consolidating
cases for hearing on objections . In his decision and order consolidating these
cases, the Regional Director ordered that certain of petitioner 's objections should
be and were overruled and consolidated other objections for hearing with the
complaint issued in Case No ., 8-CA-3148 . The Regional Director ruled that:
IT IS HEREBY ORDERED that the challenges to the ballots of William
Taylor , Hughey Otanic and Mike Evans be, and they hereby are, sustained.'
IT IS FURTHER ORDERED that Petitioner 's Objections B, C, and its
additional Objection be, and they hereby are, overruled , and that the issues
raised by Petitioner 's Objection A be resolved at a hearing to be held before a
Trial Examiner to be designated by the Chief Trial Examiner, and that such
hearing be consolidated with the hearing to be held in the complaint to issue
in Case No. 8-CA-3148; and
IT IS FURTHER ORDERED that the Trial Examiner designated for the
purpose of conducting the hearing shall prepare and cause to be served upon
the parties a report containing resolutions of the credibility of witnesses, find-
ings of fact, and recommendations to the , Board as to the disposition of said
objection . Within the period provided for in the Board's Rules and Regula-
tions, any party may file with the Board in Washington , D.C., an original
and six copies of exceptions thereto . Immediately upon the filing of such
exceptions, the party filing shall serve a copy upon each of the other parties
and upon the Regional Director. If no exceptions are filed thereto , the Board
will adopt the recommendations of the Trial Examiner.
Pursuant to notice , and on the issues as framed by ,the complaint and the answer
thereto in Case No . 8-CA-3148 and on the supplemental decision and order con-
solidating cases for hearing on objections issued by the Regional Director on June
13, 1963 , in Case No. 8-RC-4932, these consolidated matters came on to be heard
before Trial Examiner John C . Fischer at Martins Ferry, Ohio , on July 30, and 31,
1 While the-,p'arties have agreed that the challenge to, the ballot of Melvin Thomas be
overruled ,'inasmuch as his ballot cannot affect the results of the electipn „ it will not be
necessary to open and count his ballot.,
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1963. At the hearing, the General Counsel and the Respondent each was repre-
sented by counsel, and Local 697 by designated representatives, and afforded
opportunity to call, examine, and cross-examine witnesses and to participate fully,
to argue orally upon the record, and to submit proposed findings or conclusions or
both. A brief has been submitted on behalf of the Union with proposed findings
and conclusions and subscribed to by the General Counsel.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein, a corporation organized
under and existing by virtue of the laws of the State of Virginia, with its office
and principal place of business located in Bridgeport, Ohio. Respondent is en-
gaged as an interstate trucking motor carrier and has I.C.C. franchises for the
States of Pennsylvania, Maryland, Ohio, Indiana, Delaware, and West Virginia.
Annually, Respondent, in the course and conduct of its operations, has gross reve-
nues in excess of $1,000,000, of which an amount in excess of $50,000 is received
from transporting goods and materials in interstate commerce.
Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
A. THE LABOR ORGANIZATION INVOLVED
General Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union 697,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
The complaint alleged that Respondent has interfered with, restrained, and
coerced, and is interfering with, restraining, and coercing, its employees in the
exercise of rights guaranteed in Section 7 of the Act by the following acts and
conduct: (a) Since on or about December 10, 1962, and continuing to date,
Respondent, through its officer, agent, and representative, more particularly John
M. Donahie, (1) threatened its employees with the loss of certain privileges and
benefits if the Union were successful in its organizational efforts, (2) interrogated
its employees concerning their union membership, activities, and desires, (3)
threatened its employees with discharge if they persisted in their support of the
Union, and (4) promised its employees benefits if they would cease in their sup-
port of the Union; (b) and since on or about April 23, 1963, and continuing to date,
Respondent through its officer, agent, and representative, more particularly Dale
Albus, threatened its employees with the loss of certain privileges and benefits
if the Union were successful in its organizational efforts.
The controlling factor in the resolution of this consolidated complaint and rep-
resentation case is one of credibility. Both the representation aspect and the com-
plaint arise from identical allegations. If the Union's five witnesses are to be be-
lieved, the Respondent committed unfair labor practices for which it is culpable and
the election is vitiated. If, however, as a Trial Examiner finds, the Respondent's
two witnesses gave truthful versions of events, Respondent has not engaged in unfair
labor practices in violation of Section 8(a) (1) of the Act as alleged in the complaint,
and the objections concerning the conduct of and result of the allegation conducted
by the Regional Director in the representation case are not supported by the evidence
adduced and should be overruled as specifically treated hereinafter. The Trial
Examiner finds that the truth lay with Respondent' s witnesses , and it will be recom-
mended that the complaint be dismissed and the objections be overruled. The
record testimony, both on direct and cross-examination, bears out the fact that Re-
spondent's witnesses , particularly Manager Donahie, were reliable witnesses. The
demeanor of the witnesses on the stand left no doubt in the mind of the Trial
Examiner that Respondent' s witnesses were telling the truth.
The background of conditions from which the allegations spring is necessary,
relevant, and material to the adjudication of this case. This background consisted of
a chain of events involving the Teamsters union organization which culminated in the
election and in the issuance of the complaint. For some 2 or 3 years prior to January
1963, the Teamsters had unsuccessfully engaged in efforts to organize Respondent's
employees. This is evidenced by record testimony. On January 18, 1963, manage-
ment placed a letter in the pay envelopes of all employees (Respondent's Exhibit
No. 4, appearing hereinafter as Appendix B) entitled: `ATTENTION: All Bridge-
ECLIPSE MOTOR LINES, INC. 375
port OWNER-OPERATORS & DRIVERS." This letter advised employees that on
Friday, January 25 , 1963, all Bridgeport owner-operators and drivers "are hereby
requested to be present at the Bridgeport , Ohio, terminal at 10 : 00 A.M ., for the
purpose of voting for or against Union representation here at Eclipse Motor Lines,
Inc." This communication , in addition to a similar letter (Respondent 's Exhibit
No. 3) was likewise put in the employees ' pay envelopes prior to an election sched-
uled for April 26, 1963 . This letter , an elaboration of the one of January 18, was
addressed to "All owner-operators and drivers of Eclipse Motor Lines " ( attached
herewith as Appendix A). The letter of January 18 directed employees ' attention to
privileges currently available at Eclipse Motor Lines , Inc., and urged employees
"Please give this matter your most serious consideration as your future welfare is
entirely in your hands . The letter listed the following as privileges : "No monthly
dues; no interchange of drivers on other owners' power units ; the use of a modem
load shifter FREE of charge to you ; garage and tool privileges to maintain your
equipment ; the use of trailers other than Company owned; extra advance privileges,
under emergency circumstances ; the option to accept or refuse loads ; Food , Cigarette,
Candy and Drink concession machines for your convenience ; the privilege of Tri-
Leasing to another authorized carrier for return haul ; the option to load out of
Pittsburgh office ; no specific policy currently in force relative to drivers age and
the age of leased equipment."
The letter (Appendix A) consisted of a 5-page document by which employees were
made aware of the coming election of April 26 . In this communication Manager
Donahie urged that every employee was duty bound to cast his ballot in the coming
election . After exhorting the employees to vote on this secret ballot "known only to
you and to God," Donahie pointed out the benefits which he said they received by
reason of working for the Company . The benefits and working conditions were
listed as follows: "1 . The privilege of using the company garage to make necessary
repairs to your equipment . 2. The privilege of using company tools to maintain your
equipment . 3. The privilege of accepting or refusing loads when your name ap-
pears at the top of the dispatch board . 4. The privilege of loading out at the
Pittsburgh Dispatch Office . 5. The privilege of trip -leasing to another authorized
carrier when business so warrants , and also for return loads . 6. The right to use
leased trailers other than those owned by the company . 7. The privilege of using a
modem load shifter free of charge . 8. Additional `advance ' privileges under emer-
gency circumstances . 9. The privilege of choosing which driver 's board to work
from . 10. The privilege of food, cigarette , soft drink , and other vending service in
the terminal at nominal cost. 11. The privilege of purchasing tarpaulins through the
company at discount prices . 12. Under emergency conditions , the purchase of parts
through the company at discount prices . 13. The right to substitute drivers of your
equipment . 14. The privilege of using your own discretion as to when to sign the
dispatch board upon returning from a load."
Both of these communications had been prepared by Manager Donahie in col-
laboration with Respondent Counsel Kinder . Donahie credibly testified that he was
counseled by the company lawyer throughout the organizing period. Obviously he
had competent counsel; and it would be incomprehensible to this Trial Examiner that
a man of Donahie 's intelligence and experience of long years in business , including
working and living with the same .union on other jobs, would not have followed the
advice of such counsel . To conclude under these circumstances that Donahie uttered
the threats and indulged in the interrogations attributed to him by the five witnesses
of the Union in their testimony, all implicitly violative of the Act, would be absurd.
In the first place it would be completely out of character in contrast with his past
conduct toward his employees and would be self-defeating in maintaining the sup-
port of employees loyal to the Company for benefits and privileges hitherto received.
The Union 's witnesses , on the other hand, had suffered the loss of a close election,
and as disgruntled losers testified with motives of self-interest and resentment. The
majority of these witnesses were presently or had been members of the Teamsters
Union.
It was and is the Trial Examiner 's judgment that the Union 's witnesses took the
list of privileges and benefits which the Respondent had made available to employees
over the years and charged him with threats to take all of them away if they voted
for the Union . Their testimonies were recitations of alleged statements by Donahie
which were couched in terms constituting implicit violations of the Act . Donahie
specifically denied making the alleged statements, and forthrightly explained each
conversation and incident . The Trial Examiner accepts Donahie 's denials and his
explanations as being truthful . Respondent's counsel offered Nicholas Tafiin,
mayor of Martins Ferry , as a character witness for Manager Donahie as to his
truth and veracity . The Trial Examiner refused to take such testimony and over-
ruled counsel 's offer of proof on the grounds that Donahie 's character and reputa-
376 DECISIONS OF NATIONAL' LABOR RELATIONS BOARD
tion for truth and veracity were not in issue . Counsel Kinder also offered to bring
30 or more responsible citizens of the community to testify as to Donahie's reputa-
tation for truth and veracity. This trial might have been interminable if the Trial
Examiner had followed such a procedure, and had granted the same privilege as
to the other witnesses . The uncontradicted testimony of Respondent's witness, Dale
Albus, company dispatcher for 13 years, is not material to the disposition of the
case in view of the fact that General Counsel dismissed the allegation in the com-
plaint involving him.
Union counsel, in their comprehensive brief, paraphrased the testimony of the
General Counsel's five witnesses as to the alleged threats and promises made prior
to the election by Respondent through its General Manager Donahie. These
five witnesses were: Vigo Rotilio, Mervin J. Nye, William A. Link, William C.
Crane, and Charles W. (Bud) Coulson. The Trial Examiner readily accepts this
paraphrasing of the testimonies as being a succinct narration of that evidence.
However, the Trial Examiner does not accept the testimony as being true, and
therefore does not agree with. the conclusions drawn by the authors of the brief.
Quite the contrary, the Trial Examiner credits the denials and explanations made
and given by Manager Donahie. The pertinent testimony of those witnesses to-
gether with the Trial Examiner's inserted comments is as follows:
Vigo Rotilio: Rotilio, presently employed by the Respondent, was working as
a driver at the time of the election held on Friday, April 26, 1963. Rotilio testified
that on the Tuesday evening, April 23, before the election, at 10 p.m., Donahie
spoke with him alone on the terminal lot. Donahie allegedly told Rotilio:
(1) If the Union won, everyone would have to use company trailers; that
is, the owner-operators, instead of furnishing their own trailers and, instead,
use the company trailers. This threat, if consumated, would create severe
economic consequences since when operating their own trailers the drivers
receive 75% of the gross for a haul whereas if they were forced- to use com-
pany trailers they would receive only 60% of the gross load, a deficiency of
15%. (2) If the Union won, there would be a charge for the use of load
shifters which previously have been available to the drivers free of charge.
(3) If the Union won, vending machine privileges would be withdrawn. More-
over, the Respondent would withdraw the right to use the garage and garage
tools, both of which had been permitted to the employees on prior occasions.
[The Trial Examiner credits Donahie's denial of such threat but agrees with
the Union's contention of the effect of the threat if true and consummated.]
Donahie's accepted testimony in this connection is:
"Are we going to have to pull these company trailers? Are we going to have
to pay for the use of the load shifters?" And I told him, I said that we never
told you fellows anything of the sort. I said that you fellows know what you
have here, you have worked here long enough, you know what privileges
you have had extended and that is all I can say. What you do when the elec-
tion come up, is entirely up to you boys. That was approximately the extent
of my conversation.
Queried if he made any threats, Donahie testified:
I can't see how in my own mind, because as I mentioned we talked general-
ities, and we got into the subject of the election coming up, and Mr. Rotilio
asked me about having certain privileges taken away. I explained to him
that he should be aware of all the privileges he had. The fact that he had
worked there the length of time that he had, and he certainly should be the
judge of that.
The union brief recites that Rotilio testified, under cross-examination, that
Donahie told Rotilio that Donahie "was going around threatening everybody," and
that Donahie made plain,to Rotilio "what he was going to do, and he was going
to deny this, and deny that.. . [The Trial Examiner rejects this interpreta-
tion. Donahie was the more reliable witness.]"
Mervin I. Nye: Nye is presently the assistant night dispatcher at the Respondent's
terminal and was employed by Respondent at the time of the election. On April
22, 1963, Nye testified that Donahie called him at his home and asked Nye to
come to his office at Respondent's terminal. When Nye arrived, Donahie, with no
one else present, allegedly told Nye that:
(1) If the Union came in, the use of both garage and the coke , pop and
soup machines "would be prohibited for members of the Union." [The Trial
Examiner credits Donahie's denial of this threat.]
ECLIPSE MOTOR LINES, INC. 377
(2) The advent of'the Union would result in the drivers having to pay for
the use of the load shifters. [The Trial Examiner credits Donale's denial.]
(3) If the Union won, the fees,formerly paid by the Company would now
have to be paid by the drivers. [The Trial Examiner credits Donahie's denial.]
(4) If the Union won, advances would no longer be given to the drivers
and the owner-operators would have to switch over to company trailers which
would automatically result in less revenues.per gross load. [The Trial Ex-
aminer credits Donahie's denial.]
(5) If the Company "went union, the guys couldn't use the garage or
tools." [The Trial Examiner credits Donahie's denial.]
The union brief stated that Donahie's "inquisition of Nye," however, went further
than mere threats inasmuch as Donahie cautioned Nye that "the company (Nye)
was keeping didn't go along with company policy, because they had heard Floyd
Beal (a friend of Nye) was an agent for the Union." On another occasion, the
Monday preceding the election, Donahie 'interrogated Nye as to whether the union
organizers were at the plant and further warned Nye that if he associated with any
organizers he would be fired.
The Trial Examiner does not agree with this recitation, and instead credits
Donahie. It was simply unbelievable to the Trial Examiner that Manager Donahie
would call Nye from his homerto come into the office at this critical time and lay
himself and the Company open to obviously illegal threats, etc., especially when
Nye may have been strongly pro-Teamster-this conduct also in face of advice to
the contrary by competent legal counsel.
William A. Link: Link is employed by the Respondent as a mechanic and was
.working there at the time of the election. Approximately 1 month before. the
election, during March, while standing across the street from the main office of the
terminal, Donahie told Link that:
(1) "If this place went union (Link) would be out of a.job."
(2) Other employees had been telling Donahie that Link had nothing to do
with the Union but Donahie told Link that Donahie believed he was involved
with the Union.
(3) Donahie asked Link who was responsible for the Union and if Link had
anything to do with it. [The Trial Examiner credits Donahie's denial as above.]
The brief stated:
On another occasion; 4 or 5 months before the election, Donahie asked Link,
in the stockroom: "To take a 50-cent an hour raise and forget about the Union."
[The Trial Examiner accepts Donahie's denial of this charge. Link was a totally
unreliable witness. He had a history of continual drinking on the job, and was
charged with writing of obscenities on the walls. If Donahie ever spoke to Link
about a 50-cent raise (which he denied and the Trial Examiner credits) Donahie
may earlier in his employment have offered him a raise if he would refrain from
drinking on the job.]
William C. Crane: The union brief contends that William Crane is an owner-
operator employed by the Respondent and who was driving for Respondent at the
time of the April election. The day before the election Crane had a conversation
with Donahie, at noontime, outside the drivers' room. Charles W. (Bud) Coulson
was also present. Donahie told Crane that:
(1) "If this place goes union tomorrow, that your garage privileges will be cut
off, that the garage will go on a single twelve-hour shift, that you will pull a
company trailer-they say you won't pull a company trailer, but we know that
you will. (2) A union victory would result in Donahie's cutting off of
garage privileges.
The Trial Examiner credits Donahie's denial of the above alleged statement.
Donahie's accepted testimony in this connection is as follows:
I walked up to Mr. Crane in the company of Mr. Coulson, and we talked gen-
eralities once again, the weather, and things like that, and the boys mentioned,
they said, "Well, the time is getting close," And I said "Well, that is true."
I don't [know] which one mentioned it, but one fellow-mentioned about they
had to pull company trailers. They both looked at each other and started
laughing. And I said, "Listen. We have explained to you fellows the privileges
here . You have got those letters in the mail, and I think you fellows are pretty
well-" As I mentioned, we spoke generalities. . . . Mr. Crane, to the
best of my knowledge, tried to entice me in a more detailed conversation. Of
course, I walked away at that time.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The union brief continues that the above statement by Donahie as to a 12-hour shift
was in contrast to the then prevailing schedule of two 8-hour shifts. Donahie
admitted to Crane that the switch would result in two drivers losing their jobs.
As already indicated, the forced use of company trailers by independent owner-
operators would result in a 15-percent loss of revenue to the drivers. (The Trial
Examiner agrees that the forced use of company trailers would result in a loss of 15
percent of revenue to the drivers, but finds Donahie made no such threats.)
Charles W. (Bud) Coulson: The union brief contends that Coulson, presently
unemployed, was working as a driver at the time of the election. At the hearing,
Coulson (1) corroborated Crane's testimony as to the conversation with Donahie, the
day before the election; and (2) further recalls Donahie's statement to Coulson
and Crane that if the Union won there would be no more advance sheets or garage
privileges for brokers.
The Trial Examiner rejects Coulson's so-called corroboration of Crane's testimony
and accepts Donahie's denial. The Trial Examiner found Coulson to be as un-
reliable a witness as Link, and the testimony he gave was about on par with that of
Link.
On the basis of the above findings, it will be recommended by the Trial Examiner
that the complaint be dismissed, and the objections to the election be overruled.
CONCLUSIONS OP LAW
1. Eclipse Motor Line, Inc., the Respondent in Case No. 8-CA-3148, now and
has been at all times material herein, engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. '
2. General Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union 697,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of Section 2(5) of the Act.
3. The Respondent above named has not and is not now engaged in unfair labor
practices in violation of Section 8(a) (1) of the Act, as alleged- in the complaint.
4. The objections concerning the conduct of and the result of the election con-
ducted by the Regional Director for-tlie Eighth Region in Case No. 8-RC-4932 are
not supported by the evidence adduced, as set forth in section III hereof, and should
be, and hereby are, overruled.
RECOMMENDED ORDER _
Upon the basis of the foregoing findings of fact and conclusions of law, it is
recommended that the complaint herein be dismissed in its entirety and that the
objections to conduct of and result of election in Case No. 8-RC-4932 be overruled
and dismissed.
APPENDIX A
To: All Owner-Operators and Drivers of Eclipse Motor, Lines, Inc.
You are, I know, aware that an Election is going to be held on Friday, April 26,
1963, to determine whether or not you wish to be represented by the Teamsters
Union.
I'm sure you will graciously extend to me the courtesy of listening to a few
simple statements before you vote on such an important matter.
First of all, V urge upon every individual employee to vote; you are duty bound
to cast a ballot, so that the result will represent the will and wishes of as many
of our people as possible, and not the, desires of a few, so I call on every eligible
person to VOTE ON FRIDAY, APRIL 26.
Let me illustrate in simple language just what I mean.-Let's say there are 125
drivers; and further, let's say only 50 of them vote; suppose of these 50 only 26
vote for the union or against it; then just these few would control the outcome.
Let us not have- a minority deciding the election; that is not the AMERICAN
WAY. So-I repeat,-COME IN FULL ATTENDANCE,-AND VOTE.
Your ballot is a secret,-known only to you and to God. You will get a blank
ballot; then you go to a private booth,-mark the ballot as your conscience dictates;
you then fold it up and drop it into the ballot box; and that is all. You sign no
papers,-No one knows,-and nobody will ever know how you voted.
You may have signed a union card, but you may "still vote against' the union.
Likewise, you may vote for the union even -if you haven't signed a union card.
This, I repeat, is a FREE ELECTION.'
BE SURE TO VOTE IN ANY EVENT!
ECLIPSE MOTOR LINES, INC . 379'
For some time past, union organizers have been handing out literature, holding
meetings and; in general, propagandizing you in various ways, asking you to join
the union. _ Of course, from them • you have heard only one side of the question,
and I want ,to suggest some thoughts which have not been brought out before. .
You will agree with me that both sides should be heard and full consideration,
given before you make up your minds.
What has the organizer -told you? That the union will get you better wages,-,
better conditions? Let's consider these things calmly.. The truth is, that our wages
are as high, and in some instances higher, than any other trucking company's in
this area. You know that we have to compete with other companies in order to
make jobs for all of-you. If our service cannot compete with others, then there
can be no jobs for any of us.
AS FOR WORKING CONDITIONS, I WOULD LIKE TO POINT OUT THE
FOLLOWING BENEFITS THAT YOU RECEIVE BY WORKING FOR THIS
COMPANY:
1. The privilege of using the company garage to make necessary repairs to
your equipment.
2. The privilege of using company tools to maintain your equipment.
3. The privilege of accepting or refusing loads when your name appears
at the top of the dispatch board.
4. The privilege of loading out of the Pittsburgh Dispatch Office.
5. The privilege of trip-leasing to another authorized carrier when business
so warrants, and also for return loads.
6. The right to use leased trailers other than those owned by the company.
7. The privilege of using a modern load shifter free of charge.
8. Additional "advance" privileges under emergency circumstances.
9. The privilege of choosing which driver's board to, work from.
10. The privilege of food, cigarette, soft drink, and other vending service in
the terminal at nominal cost.
11. The privilege of purchasing tarpaulins through the company at discount
prices.
12. Under emergency conditions, the purchase of parts through the company
at discount prices.
13. The right to substitute drivers of your equipment.
14. The privilege of using your own discretion as to when to sign the dis-
patch board upon returning from a load.
In addition to the above, I would like to point out to, you that this company
has never forced a seniority policy on any of the drivers of equipment, and none
is in effect at this time. Nor, has this company ever put into effect a policy with
respect to the age of drivers or age of leased equipment; rather, we have always
taken the position that any driver of any equipment . . . is competent to do the
job, will remain under lease with the company. I am happy to have you enjoy these
benefits,-AND MARK YOU WELL-IT REQUIRED NO UNION TO GET
THESE CONDITIONS AND BENEFITS FOR YOU, AND IT WON'T REQUIRE
ANY UNION TO KEEP THEM FOR YOU.
I would like to say to you that we value the personal relationship which has
always existed between the management of this company and each of you drivers
and owner-operators. As you know, we have always considered each of you to be
independent business men and, as such, free to govern your own fate.
Up to now you have been free to come to us about any matter whatever, right-
the union wins in the election on April 26th-you will lose this right which you
have to bargain and' to deal 'with us personally in regard to your wages, working
conditions and the like. If the Union wins the election, you will not be permitted
to deal with us in such matters yourselves, but only through the Union.
If the Union wins in this election, the personal, relationship which has existed be-
tween you and us is going to disappear. If the union wins, we will deal with it, but
on a purely impersonal basis. And we will no longer deal directly and individually
with you as heretofore-but only through the Union. This does not mean that
we would penalize you or be unfriendly to you. It does mean that we would cease
to deal with you as we have up to now, personally and individually. We would like
to keep our relationship as it has been! We hope you feel the same way about it.
I place no blame on anyone,-but it is a' fact that disturbances and strikes
occurred mainly in union shops. And, think of the loss of time, and loss of wages,-
which can never be regained . It is, our, purpose to give employment and coopera-
tion to anyone who seeks itUNION OR NO UNION.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
You don't have to join a union to work here,-and you won't have to join a union
to work here as long as this company is able to work and deal directly with you-
the owner-operators and drivers.
Under union conditions you do not receive the full earnings of your labor; we
may be bound to deduct your union dues from your check and give it to the union
official.
If you do not choose to belong to the union, you will get the same wages and
the same courteous treatment as does the person who does belong. There is no
distinction to be made in our usual treatment of fair play for all. of our people.
A FINAL WORD: COME AND VOTE ON FRIDAY AS YOUR GOOD
JUDGMENT DIRECTS. TO CAST YOUR BALLOT IS YOUR SOLEMN
DUTY!
ECLIPSE MOTOR LINES, INC.,
(S) J. M. Donahie,
J. M. DONAHIE.
,APPENDIX B
ATTENTION: All Bridgeport OWNER-OPERATORS & DRIVERS
GENTLEMEN:
Friday, January 25, 1963 all Bridgeport Owner-Operators and drivers are hereby
requested to be present at the Bridgeport, Ohio terminal at 10:00 A.M., for the pur-
pose of voting for or against Union representation here at Eclipse Motor Lines, Inc.
All personnel concerned will not be required to make Friday deliveries but rather
make deliveries the following Monday.
OWNER-Operator and driver payroll checks will not be mailed this date but
may be picked-up at Bridgeport upon arrival to vote.
As this issue is extremely important to each Owner-Operator and driver, you are
urged to be present and cast your vote. Each man has an obligation to vote.
Please be advised that if you so desire, you may vote for an Independent or
Broker Union or any other Union of your choice.
Kindly consider the following privileges currently available at Eclipse Motor Lines,
Inc.
A) No monthly dues.
B) No interchange of drivers on other owners power units.
C) The use of a modem load shifter FREE of charge to you.
D) Garage and tool privileges to maintain your equipment.
E) The use of trailers other than Company owned.
F) Extra advance privilges, under emergency circumstances.
G) The option to accept or refuse loads.
H) Food, Cigarette, Candy and Drink concession machines for your con-
venience.
I) The privilege of Tri-Leasing to another authorized carrier for return haul.
J) The option to load out of Pittsburgh office.
K) No specific policy currently in force relative to drivers age and the age of
leased equipment.
Please give this matter your most serious consideration as your future welfare is
entirely in your hands.
Curcie Brothers, Inc., Curcie Brothers Trucking, Inc., Beach
Boulevard Service , Inc., and Hallandale Rock & Sand Co. and
International Union of Operating Engineers, Local 675, AFL-
CIO, Petitioner. Case No. 12-RC-1739. March 17, 196.
DECISION ON REVIEW
On August 6, 1963, the Regional Director for the Twelfth Region
issued a Decision, Direction of Elections, and Order I in the above-
I Order dismissed the petition as to Curcie Brothers Paving Co., Inc., which is no
longer In business.
146 NLRB No. 44.