Eklund Brothers Transport, Inc.

National Labor Relations Board - Board Decisions

Mar 21, 1962

136 N.L.R.B. 471 (N.L.R.B. 1962)

EKLUND BROTHERS TRANSPORT, INC. 471
Upon the basis of the foregoing findings of fact and of the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Local 391 is a labor organization within the meaning of Section 2(5) of the
Act.
2. By engaging in the conduct set forth in the section entitled "Concluding find-
ings," the Respondent has engaged in and is engaging in unfair labor practices within
the meaning of Section 8(a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Eklund Brothers Transport , Inc. and General Drivers and
Helpers Local Union 74, International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers of America.
Case No. 18-CA-1305. March 01, 1962
DECISION AND ORDER
On December 13, 1961, Trial Examiner George L. Powell issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the Intermediate
Report attached hereto. Thereafter, the Respondent filed exceptions
to the Intermediate Report together with a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the findings, conclusions, and recommenda-
tions on the Trial Examiner.'
1 We agree with the Trial Examiner ' s rejection of the Respondent ' s defense that it
was not required to bargain with the Teamsters Union pursuant to the May 5, 1961, elec-
tion because of alleged "newly discovered evidence " as to the latter's preelection conduct,
which was made the basis of a charge on August 14, 1961 We find it unnecessary, how-
ever, to pass upon or adopt the Trial Examiner 's suggestion that the Respondent may
properly have engaged in an "investigation " of the Teamsters ' alleged conduct A repre-
sentation proceeding is not adversary in nature and is designed to assure the employees of
a resolution of a question concerning representation as speedily as possible consistent with
due process . To this end the Board has established a cutoff date for preelection conduct
to which any party may object Similarly , the Board has established a 5-day period after
the election within which objections to conduct affecting the election may be filed Conduct
occurring before the cutoff date or to which no objections have been filed within the time
provided therefor will not be considered by the Board to invalidate an otherwise valid
election , absent unusual circumstances not here present
136 NLRB No. 47.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the modifications of provisions 2(b) and 2(c) in accord with
footnotes 5 and 6 of the Recommended Order.'
°The notice is further modified by adding the following language at the end thereof.
Employees may communicate directly with the Board's Regional Office, 316 Federal Build-
ing, 110 South Fourth Street, Minneapolis 1, Minnesota, Telephone 339-0112, Extension
2601, if they have any question concerning this notice or compliance with its provisions
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
In this proceeding, heard before the duly authorized Trial Examiner, in Williston,
North Dakota, on November 7, 1961, Eklund Brothers Transport, Inc., the Respond-
ent herein, was charged with a refusal to bargain with General Drivers and Helpers
Local Union 74, International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, herein called the Teamsters, in violation of Section 8(a) (1)
and (5) of the National Labor Relations Act, as amended (61 Stat. 136), herein
called the Act. All parties participated in the hearing and subsequent thereto, on or
before November 24, 1961, the General Counsel and the Respondent, respectively,
filed briefs.
Upon the entire record in the case, I make the following: 1
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is and has been at all times material herein a corporation organized
and existing under the laws of the State of North Dakota, having its principal office
and place of business at Watford City, North Dakota , where it is engaged in the
business of the hauling and distribution of crude oil and fresh and saline water in
and about various oil fields in North Dakota and Montana . The Respondent also
has a place of business located at Poplar, Montana.
During the year 1961, the Respondent 's revenue derived from its Montana oper-
ations was in excess of $300,000 and the revenue derived from its North Dakota
operations was in excess of $ 1,000,000.
During 1961 the Respondent performed services for Texaco , Inc., in an amount
exceeding $ 148,000 and for Amerada Petroleum Corporation in excess of $142,000.
Amerada Petroleum Corporation is a Delaware corporation with principal offices
and place of business in New York City. It is engaged in the acquisition , develop-
ment, exploitation , and production of crude oil and natural gas, and has operations
in 15 States of the United States and Canada, as well as investments in petroleum
concessions in Venezuela , Libya, Tunisia, and Guatemala . During the year ending
December 31, 1960 , it had a gross sales and operating revenue of $102,445, 193 and
shipped goods valued in excess of $1,000,000 across State lines. It is an employer
engaged in commerce within the meaning of Section 2(6) of the Act.
Texaco, Inc., a Delaware corporation with principal offices and place of business
in New York City, is, together with its subsidiaries and affiliates , one of the leading
integrated, worldwide organizations in the petroleum industry . It is engaged in ex-
ploration , production , transportation , sales, and research of petroleum products,
crude oil , natural gas , and chemicals . It maintains plants and establishments in
many States of the United States, South America, and Africa. For the year ending
December 31, 1960, it had a gross operating income of $2,980,308,544 and shipped
goods valued in excess of $1,000 ,000 across State lines. It is an employer engaged
in commerce within the meaning of Section 2(6) of the Act.
Respondent is and at all times material herein has been engaged in commerce as an
employer within the meaning of Section 2(6) of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
The Teamsters is a labor organization within the meaning of Section 2(5) of
the Act.
i No witnesses were called . The case was developed by way of stipulation and offers of
proof as will be set out below . All facts are taken from the admitted portions of the
complaint or from the stipulations unless otherwise indicated
EKLUND BROTHERS TRANSPORT, INC. 473
III. THE UNFAIR LABOR PRACTICES
On April 3, 1961, a petition was filed by the Teamsters and duly served upon the
Respondent which, inter alia, set forth that a specified unit of Respondent's em-
ployees desired representation by the Teamsters.
On April 18, 1961, Respondent and Teamsters executed an Agreement for Consent
Election which was approved by the Regional Director of the National Labor Rela-
tions Board for the Eighteenth Region, hereinafter referred to as Regional Director,
on April 20, 1961.
Pursuant to the terms of the agreement for consent election, mail balloting was con-
ducted between April 24 2 and May 5 in a unit of "All drivers and drivers' helpers
working at and out of the Employers Watford City, North Dakota, and Poplar, Mon-
tana, operations engaged in delivering petroleum products, crude oil and water, but
excluding mechanics, the safety supervisor, dispatchers, tiremen, servicemen, pushers,
employees of Dakamont Motor Sales, Inc., employees of Eklund Bros. Truck Stop,
office clerical employees, guards, professional employees and supervisory employees
as defined in the National Labor Relations Act, as amended." The payroll period for
eligibility was April 8, 1961. The ballots were counted in the Regional Office of the
Eighteenth Region on May 8, 1961. The Employer challenged the ballot of John
Nightingale, Jr., and the Teamsters challenged the ballots of Leo J. Dardis, Ernest
Dumdai, Loren Chitwood, and Alvin Johnsrud.
On May 8, 1961, a tally of ballots was served upon the Respondent and the
Teamsters showing, inter alia,
Approximate number of eligible voters------------------------------ 57
Votes cast for Petitioner------------------------------------------- 25
Votes cast against participating labor organization---------------------- 23
Valid votes counted----------------------------------------------- 48
Challenged ballots------------------------------------------------ 5
and further that the challenged ballots were sufficient in number to affect the results
of the election and that a majority of the valid votes counted, plus challenged ballots,
had not been cast for the Teamsters.
On May 26, 1961, a report on challenged ballots and certification of representative
was issued by the Regional Director and duly served upon Respondent and Teamsters.
The report sustained the employer challenge of Nightingale and the Teamsters'
challenges of Dumdai, Chitwood, and Johnsrud, holding that they were ineligible
voters. The report further found that the Teamsters' challenge of Dardis was
without merit and overruled it. However, since the ballot of Dardis could not
affect the results of the election, it was not opened and counted.
On June 1, 1961, counsel for Respondent, Ward M. Kirby, replied to the report
of the Regional Director by letter to him which inter alia, demanded a hearing on the
challenged ballots and, further, requesting that a second election be held.
On June 5, 1961, the Regional Director by letter replied to the request of Attorney
Kirby and, inter alia, declined the request for hearing, referring to paragraph 6 of the
agreement for consent election.
On June 9, 1961, attorney for Respondent, Kirby, replied to a request by Sylvan
Hubrig, business representative for the Union, requesting a bargaining meeting.
The letter stated inter alia, that the Company would not meet until such time as it
determined whether or not to accept the certification as valid.
On July 13, 1961, attorney for Respondent, Kirby, again wrote to Hubrig advising
him, inter alia, that no decision had as yet been reached but that, in the meantime,
the Union should present a copy of its demands to the Company.
On July 18, 1961, Hubrig met with Orvey Eklund, president of Respondent, and
submitted a proposed contract.
On July 20, 1961, Hubrig wrote to Eklund, enclosing additional proposals.
On August 17. 1961, at a meeting attended by Hubrig, Orvey Eklund, attorneys
for Respondent. Ward M. Kirby, and Howard C. Burton, and by Commissioner Clell
Harris of the Federal Mediation and Conciliation Service, the Company took the
position that it was refusing and would continue to refuse to bargain for reason that
it objected to the report of the Regional Director, and because of alleged misconduct
of the Union prior to the election.
In addition to the above, which the Respondent admitted in a stipulation, it raised
two affirmative defenses.
1. It noted the fact that the Teamsters' petition filed on April 3, 1961, above, called
for a unit of "all regular full time drivers and drivers helpers . . " but on April 18,
2 All dates are In 1961 unless otherwise indicated
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1961, the date set for the hearing, the parties modified the unit to include "all drivers
and drivers helpers .. ." and executed a consent election agreement.
After the election took place, Respondent supplied the Regional Director, at his
request in investigating the challenges, payroll records showing the employment
history of the challenged voters Chitwood, Dumdai, Dardis, and Johnsrud, whose
votes had been challenged on the ground that they had voluntarily terminated their
employment and were therefore not eligible voters. [Emphasis supplied in Respond-
ent's brief.] Four days later on May 24, 1961, again at the request of the Regional
Director, it furinshed the Regional Director with a short statement respecting the
employment status of the same four voters pointing out that it employed six other
drivers with similar status whose votes were not challenged. The Regional Director
made his report on challenged ballots and certification of representative on May 26,
1961, sustaining the Teamsters' challenges as to Dumdai, Chitwood, and Johnsrud,
on the basis that they were "recurrent, and casual employees whose employment is
seasonal and, as such, do not have a sufficient community of interest with the regular
employees to warrant their inclusion in the same unit with regular employees."
[Emphasis supplied in Respondent's brief.] Respondent filed objections on June 1,
1961, and requested a hearing on the issue. On June 5, 1961, the Regional Director
declined to permit further review of or a hearing upon the matter.
Respondent, claiming the determination made by the Regional Director was in
error in fact, is charging the Regional Director with "arbitrary and capricious
action . in the course of a representation election, (a) by sustaining, on improper
grounds, challenges lodged by [Teamsters] to certain ballots . (b) in refusing a
hearing . . . on the status of the employees . . . and (c) in declining to tally the
ballots cast by such employees." Respondent attempted to litigate the issue in the
instant case on the ground, apparently, that it contains substantial and material issues
with respect to the results of the election and the certification of the Teamsters as
the majority representative of the employees in the unit. The General Counsel
objected, on relevancy and materiality, to testing the merits of that issue on the
ground that there must be finality to representation case proceedings and that the
Trial Examiner was bound by the Regional Director's report on challenged ballots
and certification of representative. The Trial Examiner sustained this objection
but permitted Respondent to make an offer of proof which will be detailed later.
The General Counsel moved to reject this offer of proof but ruling thereon was
reserved and will be made in this decision.
2 The second affirmative defense made by Respondent to the complaint in this
case is that the Teamsters engaged in preelection conduct of such nature as to pre-
clude a free election, but that it had no knowledge of this conduct within the 5-day
period following the election so as to give it grounds to file a timely objection to the
election Accordingly, it filed a charge on Auggust 14, 1961, alleging the Teamsters
had engaged in certain unfair labor practices with respect to this conduct 3 As this
matter involves an entirely different proceeding, the Trial Examiner sustained the
objection of the General Counsel to any evidence on this issue but Respondent was
permitted to make an offer of proof. This offer, after being made, was rejected
by the Trial Examiner upon motion of the General Counsel.
Summary and Issues
Following an election under a consent election agreement, the Teamsters were
certified by the Regional Director as the exclusive collective-bargaining representative
of the employees. Respondent refused to bargain with the Teamsters contending
first, that the certification lacked vitality having been issued by the Regional Director
in an "arbitrary and capricious" manner, and secondly that the election should he
set aside due to later discovered evidence of Teamsters misconduct so serious as to
preclude the holding of a free election.
Accordingly, unless there is merit to either of the two affirmative defenses, the
Respondent admittedly refused to bargain with the certified representative of its
emnloyees in violation of Section 8(a) (5) and'(1) of the Act
The heart of the case, as to the first affirmative defense, is the determination of
what constitutes "arbitrary and capricious" manner. The responsibility of the Trial
a General Drivers and Helpers Local Union 74 International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America Cage No 18-CB-165 The Regional
Director declined to issue a complaint on August 22. 1961. to which Respondent filed a
timely appeal to the General Counsel. No further action had been taken at time of the
instant hearing.
EKLUND BROTHERS TRANSPORT, IN C. 475
Examiner in this case is not to supplant his judgment for that of the Regional Director
in the latter's rulings as to the facts of eligibility of certain employees to vote.
Rather, it is to examine the evidence put forth in support of the charge of "arbitrary
and capricious" manner.
Evidence of "arbitrary and capricious" manner
The Regional Director is charged with arbitrary and capricious action in the course
of a representation election ( a) by sustaining , on improper grounds, challenges
lodged by the Teamsters to certain ballots cast in such election; (b) in refusing a
hearing, at the request of Respondent, on the employment status of the employees
who cast the challenged ballots; and (c) in declining to tally the ballots cast by such
employees.
As to (a), Respondent argues that the unit established by the terms of the consent
election agreement was substantially different from that requested in the Teamsters
petition; that the Regional Director "went far afield" from the challenges, which
were made on the ground the voters "had voluntarily terminated their employment,"
and concluded they were ineligible to vote because they were seasonal employees
lacking a community of interest with regular employees; and that in so ruling he
barred only 3 of a class of 11 similarly situated employees from the polls. I find no
merit to this argument. There was no change in the unit. The effect of the consent
election agreement is that rather than having eligibility set out in the definition of
the unit it was left to be determined by individual challenges. In all election cases,
each party to the election is permitted to have an official observer at the election
with authority to challenge the eligibility of any voter. Once challenged, the voter
inserts his folded ballot into an envelope, seals it, and tenders it to the Board agent
who marks it for identification. The voter, himself, then places the ballot in the
ballot box. The ballot is never examined unless and until a later determination is
made that it should be opened and counted. Based on the challenge , the Regional
Director conducts and investigation and passes on the eligibility based upon his
findings made on evidence adduced in the investigation. This investigation may,
upon his discretion, be made in the form of an open bearing or it may be done orally
and by letter as in the instant case. There admittedly was no issue as to the facts
of the employment status of the challenged voters as those facts supplied by Respond-
ent were accepted The Regional Director is not limited in his investigation to the
precise wording of the challenge Rather, any challenge opens up all aspects of
eligibility as it is not reasonable to expect observers, who usually are not trained as
lawyers, to be able to precisely state the reasons for a given challenge. However, the
challenge must be so worded as to contain a logical reason for rejecting the vote of
the one challenged, such as was done in the instant case. Regardless of whether an
employee is listed on the list of employees as of the payroll period governing the
election, a voter must still be an employee, for the purpose of voting, on the date of
the election or a challenge to his vote will be sustained and his vote not be counted.
The payroll period decided upon precludes new hires from voting. Finally, it is not
accurate to say the Regional Director "barred only three of a class of eleven similarly
situated employees." As a matter of fact the Regional Director, in the absence of
a challenge, is precluded from determining the eligibility of a voter. When observers
for the parties do not challenge a voter they, in effect, admit that he is qualified to
vote But failure to challenge some does not bar a challenge of another "similarly
situated " The Regional Director has no authority to investigate the eligibility to
vote of an unchallenged voter, hence it cannot be established that a challenged voter
is "similarly situated" to an unchallenged voter and both votes are to be counted
or neither one is to be counted. The challenged voter stands on his own situation.
As to (b), the Regional Director is charged with arbitrary and capricious action
by failing to have a hearing to air the employment status of the challenged voters.
But, as the decision of whether to have a hearing rests in the sound discretion of the
Regional Director pursuant to the binding consent election agreement, and as there
was no dispute as to the employment status of the challenged voters as supplied by
Respondent, no useful purpose would seem to be achieved by holding a hearing.
There is no other evidence of abuse of discretion Accordingly, this contention lacks
merit. Respondent argues that the hearing is necessary because the Regional Direc-
tor "substantially modified" the unit in the consent election agreement The invalidity
of this argument is set out above. Finally, again, even if a postelection hearing were
ordered, it would be improper and reversible error to receive evidence as to the eli-
gibility to vote of any unchallenged voter.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to (c), the Respondent charges the Regional Director with arbitrary and ca-
pricious action because he declined to count the votes of the ballots of the three
employees he found should not be eligible to vote in the election. In other words,
Respondent takes issue with the decision of the Regional Director. It is clear then
that the issue in this case is whether the Regional Director's conclusions, drawn
from the admitted facts, is correct or in error. The Respondent correctly under-
stands and states the law that the Regional Director's determination in consent
elections of this character are final in the absence of fraud, misconduct, or such gross
mistakes as to imply bad faith on the part of the Regional Director even though the
Board might have reached a different conclusion. (Sumner Sand & Gravel Com-
pany, 128 NLRB 1368; This policy was affirmed by the courts in Buffalo Arms,
Inc., v. N.L.R.B., 224 F. 2d 105 (C.A. 2), in which it reversed a contrary ruling of
the Board in 110 NLRB 816.) Accordingly, the duty is on the'Respondent to carry
the burden of proof in its affirmative defense that the Regional Director was arbitrary
and capricious. As there is no evidence of fraud or misconduct, and as the parties
were permitted to do all they agreed to be bound to in the consent election agree-
ment, the only possible hook on which Respondent can hang its serious charge would
be one made by proving the Regional Director made such a gross mistake as to
imply bad faith .4 Did the Respondent prove a gross mistake? I think not. The
Regional Director made a reasonable application of precedent to the facts relying
on the case of California Vegetables Concentrates, Inc., 120 NLRB 266. In the
California case, the employer was engaged in a year-round operation with a labor
force fluctuating according to the weather and the availability of materials. The
regular work force was augmented during the peak periods by additional employees
classified in two groups as recurrent and casual. The employees in both these
groups had other, regular places of employment. The recurrent employees were
those who had previously worked for the employer. However, the employees in
both groups would or would not return during subsequent peak periods. They
received the same pay and performed the same duties as regular employees, although
they did not participate in other benefits. The Board stated that an operation of
this kind was on an annual basis with a representative work force of regular year-
round employees, rather than on a seasonal basis with a work force composed pri-
marily of seasonal employees. The Board distinguished this kind of operation from
one which is primarily seasonal in nature , and concluded that both the recurrent and
the casual employees were temporary seasonal employees without a sufficient com-
munity of interest to warrant their inclusion in the unit with regular employees. On
the facts presented by the Respondent about which there is no controversy, the
Regional Director's decision was in accordance with the above Board policy. Ac-
cordingly, it cannot be maintained that the Regional Director made such a gross
mistake as to imply bad faith and the first affirmative defense of Respondent falls
for lack of proof. The General Counsel's motion, made at the hearing, to strike
the Respondent's offer of proof is hereby granted.
The second affirmative defense made by the Respondent is that the Teamsters
engaged in preelection conduct of such nature as to preclude a free election and that
it had no knowledge of this conduct within the 5-day period following the election
so as to give it grounds to file a timely objection to the election. Accordingly, it filed
an unfair labor practice charge against the Teamsters as set out above. I find no
merit to this second affirmative defense.
As to the unfair labor practice charge filed against the Teamsters. it is the subiect
matter of an entirely different proceeding from the instant case. Accordingly, evi-
dence with respect to it is irrelevant and immaterial and was rejected at the hearing
on motion made by the General Counsel. I have reconsidered this decision and
find no reason to reverse it. Finally, it is noted that no effort was made in the elec-
tion case to reopen it and set the election aside because of "newly discovered" evi-
dence. The election was concluded by mail ballot on May 5, 1961. Respondent
admits that this alleged conduct of the Teamsters, which allegedly was of such serious
nature as to preclude the holding of a fair election, did not come to its attention
until August 1. 1961, and that it completed its investigation of this conduct by Au-
gust 5 and filed the unfair labor practice charge on August 14, 1961 In its offer of
proof, which was rejected, it is clear that the conduct related to statements made by
Teamsters' agents at meetings of the employees prior to the election. This could
An honest error of judgment does not constitute arbitrary and canricious action by
the Regional Director N L 77 B v Volnen Felt Mills, Inc . 210 F 2d 559 (C A 6) :
NLRB v J TV. Rex Co , 243 F 2d 356 (C A 3)
EKLUND BROTHERS TRANSPORT, INC. 477
not be considered "newly discovered" evidence as a simple investigation would have
uncovered it. The serious nature of the alleged misconduct and its weight in assessing
the impact or the reasonableness of its impact on the voters is, of course , seriously
adulterated by the timelag of almost 3 months in coming to the attention of Respond-
ent. The Board's rule of filing objections to election conduct within 5 days is based
upon its long experience that the smell of something bad will become noticeable
within that period-as a rule.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I above, have a
close, intimate , and substantial relation to trade, traffic , and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
It having been found that the Respondent engaged in unfair labor practices by
refusing on and after June 9, 1961, to bargain with the Teamsters, the statutory
bargaining representative of its employees in an appropriate unit, it will be recom-
mended that on request the Respondent bargain with the Teamsters on all proposals
which raise bargainable issues, and , if an understanding is reached , embody such
understanding in a signed agreement.
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 Teamsters is a labor organization within the meaning of Section 2(5) of
the Act.
2. All drivers and drivers' helpers working at and out of the Respondent's Watford
City, North Dakota , and Poplar, Montana, operations engaged in delivering petro-
leum products, crude oil, and water, but excluding mechanics, the safety supervisor,
dispatchers , tiremen , servicemen , pushers, employees of Dakamont Motor Sales,
Inc., employees of Eklund Bros. Truck Stop, office clerical employees, guards, pro-
fessional employees, and supervisory employees as defined in the National Labor
Relations Act, as amended , constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act.
3. The Union was on May 26, 1961 , and at all times since has been the exclusive
representative of all employees in the aforesaid appropriate unit for the purposes of
collective bargaining within the meaning of Section 9,(a) of the Act.
4. By refusing on and after June 9, 1961, to bargain collectively with the Team-
sters as exclusive representative in the aforesaid appropriate unit , Eklund Brothers
Transport , Inc., has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (5) of the Act.
5. By the said refusal to bargain, Eklund Brothers Transport, Inc., interfered with,
restrained , and coerced its employees in the exercise of rights guaranteed them in
Section 7 of the Act, and thereby engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7 ) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon the
entire record in the case, it is recommended that Eklund Brothers Transport, Inc.,
its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Teamsters as the exclusive bargain-
ing representative of all its employees in the previously described appropriate unit.
(b) In any like or related manner interfering with, restraining or coercing its
employees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist the Teamsters 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 such activities.
478 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Upon request, bargain collectively with the Teamsters as the exclusive repre-
sentative of employees in the previously described appropriate unit, with respect
to rates of pay, wages, hours of work, and other conditions of employment and, if
an understanding is reached, embody such understanding in a signed agreement.
(b) Post at its place of business in Watford City, North Dakota, and Poplar,
Montana, copies of the notice attached hereto as Appendix.5 Copies of the notice,
to be furnished by the Regional Director for the Eighteenth Region, shall, after
being duly signed by Respondent's representative, be posted by the Respondent
immediately upon receipt thereof, and maintained by it for a period of 60 days
thereafter in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other material.
(c) Notify the Regional Director for the Eighteenth Region, in writing, within
20 days from the date of the service of this Intermediate Report and Recommended
Order, what steps the Respondent has taken to comply therewith.6
5 If these recommendations are adopted by the Board, the words "A Decision and Order"
shall be substituted for the words "The Recommendations of a Trial Examiner," In the
notice If the Board's order is enforced by a decree of a United States Court of Appeals,
the notice shall be further amended by substituting the words "A Decree of the United
States Court of Appeals Enforcing an Order" for the words "A Decision and Order."
0If these recommendations are 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 as to what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify our employees that:
Upon request WE WILL bargain collectively with General Drivers and Helpers
Local Union 74, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive representative of all our
employees in the unit described below, with respect to rates of pay, wages,
hours of employment, or other conditions of employment, and if an under-
standing is reached, embody such understanding in a signed agreement. The
bargaining unit is:
All drivers and drivers' helpers working at and out of the Respondent's
Watford City, North Dakota, and Poplar, Montana, operations engaged
in delivering petroleum products, crude oil, and water, but excluding
mechanics, the safety supervisor, dispatchers, tiermen, servicemen, pushers,
employees of Dakamont Motor Sales, Inc., employees of Eklund Bros.
Truck Stop, office clerical employees, guards, professional employees, and
supervisory employees as defined in the National Labor Relations Act,
as amended.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to join or assist
the above-named union or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in concerted
activities for the purposes of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities.
EKI.uND BROTHERS TRANSPORT, 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.