Fontaine Truck Equipment Co., Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1967

166 N.L.R.B. 576 (N.L.R.B. 1967)

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fontaine Truck Equipment Company, Inc. and
Shopmen 's Local Union 702 of the International
Association of Bridge , Structural and Ornamental
Iron Workers , AFL-CIO. Cases 15-CA-2894
and 15-RC-3412
June 30, 1967
DECISION, ORDER , AND DIRECTION OF
SECOND ELECTION
[Text of Direction of Second Election , omitted
from publication.]
An election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 15 within 7 days after the date of issuance of the
Notice of Second Election by the Regional Director The Regional
Director shall make the list available to all parties to the election No ex-
tension of time to tile this list shall be granted by the Regional Director ex-
cept in extraordinary circumstances Failure to comply with this require-
ment shall be grounds for setting aside the election whenever proper ob-
jections are filed EX(ehlorUnderiear Inc , 156 N LRB 1236
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On April 12, 1967, Trial Examiner Lloyd
Buchanan issued his Decision in the above-entitled
consolidated proceeding , finding that Respondent
had engaged in certain unfair labor practices, and
recommending that it cease and desist therefrom
and take certain affirmative action . as set forth in
the attached Trial Examiner ' s Decision In addi-
tion, the Trial Examiner found merit in certain of
the objections to conduct affecting the election
results and recommended that the election held on
August 5, 1966, in Case 15-RC-3412. be set aside,
and that a second election be conducted.
Thereafter , the Respondent filed exceptions to the
Trial Examiner ' s Decision , with a supporting brief.
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 this case 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 and
brief, and the entire record in this case, and hereby
adopts the Trial Examiner ' s findings, conclusions,
and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, and
orders that the Respondent, Fontaine Truck Equip-
ment Company, Inc., its officers. agents. succes-
sors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order.
IT IS FURTHER ORDERED that the complaint, in-
sofar as it alleges that the Respondent violated the
Act by conduct other than that found to be violative
herein, be, and it hereby is. dismissed
IT IS FURTHER ORDERED that the election held on
August 5. 1966. among the employees in the stipu-
lated unit be, and it hereby is, set aside.
TRIAL EXAMINER'S DECISION
LLOYD BUCHANAN, Trial Examiner: The complaint
herein ( issued January 19, 1967; charges filed August 9
and 15, 1966), alleges that the Company has violated Sec-
tion 8 (a)(1) of the National Labor Relations Act, as
amended , 73 Stat. 519, by interrogating groups of em-
ployees concerning their own and other employees' union
activities and desires , promising benefits by telling an em-
ployee that he would make more money if the Union did
not come in: threatening that if the Union were voted in
the Company would give all employees a classification
test and that some would probably fail and have to take a
pay cut, that there would then also be a possibility of the
plant being closed because the owner , forced to pay union
wages, could get bodies built as cheaply in Birmingham,
that the employees would lose their holidays or really
have to earn them , that production standards would be
raised beyond the employees ' capacity , with discharge for
those who did not meet the standards , and that after the
election was over none of the troublemakers would be
working on a given line, telling an employee that he was
going to be another Hoffa and wind up in the "pen" if he
did not leave the Union alone; warning an employee that
if a prospective employer found out about his union ac-
tivities they would go against him and he would not be
hired , and by asking an employee whether he was still
determined to declare war on the Company . The answer
denies the allegations of violation.
Consolidated with the hearing on the above issues was
a hearing with respect to issues raised by certain objec-
tions by the Union to conduct affecting the results of a
Board -conducted election . The Union agreed at the hear-
ing that for support of its objections 3 and 5, of interroga-
tion and threats , respectively, it relies on the proof sub-
mitted to sustain the corresponding allegations of viola-
tion. The other objections before us are that promises of
wage increases beyond that allegation of violation were
made to employees shortly before the election , that regu-
lar overtime was discontinued because of the employees'
union activities ; and that on the date of the election the
Company withheld $4.25 from each employee 's pay, issu-
ing a separate check and describing the deductions as
union dues The General Counsel specifically disclaimed
any violation which might be indicated by the Union's
proof in connection with its additional objections to the
election
A hearing was held before me at Collins , Mississippi,
on February 23 and 24, 1967. Pursuant to leave granted
to all parties , briefs have been filed by the General Coun-
sel and the Company, the time to do so having been ex-
tended
166 NLRB No 50
FONTAINE TRUCK EQUIPMENT CO. 577
Upon the entire record in the case and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZA-
TION INVOLVED
The facts concerning the Company's status as an
Alabama corporation, the nature and extent of its busi-
ness, and its engagement in commerce within the meaning
of the Act are admitted; I find and conclude accordingly.
I also find and conclude that, as admitted, the Union is a
labor organization within the meaning of the Act.
II. THE ALLEGED VIOLATION OF SECTION 8(a)(l)
Various alleged violations are charged to more than
one supervisor, and more than one witness testified to the
same or similar violations.
A representation petition was filed by the Union on
June 13, 1966, and a copy was received by the Company
on June 18 or 19. A consent election was held on August
5 with a tally of 23 votes for and 40 against the Union. On
August 9 the Union filed timely objections, numbered 1
through 9; it thereafter withdrew objections 4, 6, 7, and 9.
It was stipulated that on June 7 the Company received
a telegram in which the Union recited that 10 employees
composed an Organizing Committee. Of the seven wit-
nesses called by the General Counsel, all except Mosley
were among those named in the telegram. Remarks un-
certainly placed by employee W. C. Mooney about the
last of May or first of June and offered by the General
Counsel as background outside the issues here suggest
company knowledge of the Organizing Committee before
the telegram; but we do not even know how long before
the date of the telegram the committee was formed.
W. C. Mooney, who apparently was and was regarded
by the Company as the leader among the employees in
the union campaign, testified that about June 1 (later, per-
haps June 22, but certainly not about July 22 as alleged),
Supervisor Lee asked him whether he was going to be
another Hoffa and then, Supervisor Stapleton agreeing,
warned that Mooney would wind up in the pen if he didn't
leave the Union alone. Denying only that he had ever
heard of Hoffa up to that time, Stapleton did not deny that
he had joined in the warning. Lee made no denial of any
of this. I find and conclude that both Lee and Stapleton
unlawfully interfered by this warning and threat of im-
prisonment because of union activities.
After that earliest in point of time, Mooney testified
that about the first of July (not the middle of the month as
alleged), Lee asked him' whether a painter, McGee, was
going to vote for the Union, and when Mooney replied
that he didn't know, Lee would have to ask McGee, Lee
replied that he had already done so and that McGee had
answered in the negative. Lee was not asked about this;
Stapleton was, and testified that he did not remember.
Here were unlawful interrogation and admission of more,
and I so find and conclude. More of this occurred later
that day or the next, when Stapleton asked Mooney how
he thought the Union would benefit the employees,
Mooney replying that it would through representation and
bargaining. Other instances occurred about the middle of
June (not July). when according to Mooney's uncon-
tradicted testimony Stapleton asked him how much
money he was getting from the Union for his activities;
and about the beginning of July, when Stapleton asked
whether the Union was going to get in. Stapleton did deny
that he had told Mooney that employee and commit-
teeman Lott had turned but, whatever the violation, this
was not alleged.
Returning to Lee, Mooney testified that Lee told him
that, because of the Union, he could not receive a 10-cent
raise which was due him; this was neither alleged nor
litigated. But Mooney later did testify, as alleged, that
Lee told him that he would get a raise if the Union did not
get in. I credit Lee's testimony that, in response to
Mooney's question why the Company could not give him
a raise, he replied only that its attorney had advised that no
pay adjustments were to be made between the filing of the
petition and the election; and I find no violation in that
statement. On the other hand, Mooney's cousin, J. D.
Mooney, testified without contradiction that Lee, while
declaring that he could not promise him a raise, told him
that he would make more money if the Union did not
come in; and this promise I find and conclude was viola-
tive. (I have not "overlooked" another statement, not al-
leged as violative.)
Not to miss any of the bases (at least to this point), ad-
ditional interrogation is to be found in J. D. Mooney's un-
contradicted testimony that a week or two before the
election Lee asked him whether he was going to vote for
the Union. Lee appeared to support employee Mosley's
testimony that Lee had asked him how he thought the
Union was going or doing; but on further questioning,
Lee denied it. Whether or not Lee misunderstood is not
clear; I make no finding on this.
I am prepared to credit Plant Superintendent Higgin-
botham's denial that he questioned employee Shoemake,
and his version of the circumstances leading to their con-
versation. But without detailing further and cumulative
testimony, the violative interrogation already noted is
clear, as is Plant Manager Craven's interrogation in the
light of his uncertain recollection of his reference to
"war" on the Company. In the face of Supervisor Brooks'
denial, I make no credibility finding as to whether he
asked employee Jones, a few weeks before the election,
who "started" the Union.
The threat alleged with respect to classification tests,
failure to pass, and a consequent pay cut, was testified to
by six employees for the General Counsel and three su-
pervisors for the Company. I credit Lee's explanation
that the references were to the Union making classifica-
tions which would call for testing. These were not threats
or warnings of action to be instituted by the Company.
What appeared to be an admission by Stapleton and a
failure to deny was explained and denied by him under
further and persistent questioning. Brooks denied that he
spoke to either Jones or J. D. Mooney concerning tests
or classification beyond replying to questions and ex-
plaining that at the Company's Birmingham plant a man
must pass a test given by the Company in order to be clas-
sified as a welder; that classification is based on skill,
again the concern being classification under a union con-
Here and elsewhere the interrogation was not of "groups of em-
ployees "
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract. I find and conclude that references to tests and
possible failure and loss of pay occurred during conversa-
tions concerning action by the Union and were not
threats of company action.
I credit employee Graham's testimony that Lee told
him that the plant would probably be closed if the Union
got in since it would be cheaper to make bodies in Bir-
mingham than to ship the bodies there if union wages had
to be paid at the Collins plant. I do not credit Lee's
testimony that Graham merely asked whether the plant
would ever amount to anything or be shut down and that
he replied in the negative. Here was a further violative
threat. "Union wages" are not fixed and would not neces-
sarily be the same in Collins as in Birmingham so that the
eventuality threatened would not necessarily, and cer-
tainly not automatically, follow a union victory in the
election.
However we evaluate Stapleton's testimony that he
merely explained that, when a strike was called in
Houston in a plant where he was a member of an inde-
pendent union, paid holidays and other benefits were lost,
he did not even deny W. C. Mooney's testimony that
Stapleton had warned that, if the Union came in, produc-
tion standards would be set so high that they could not be
met.
Only where practice or experience is needed would it
serve any useful purpose to continue to detail the allega-
tions of threats and to analyze the testimony pro and con.
The remedy cannot be seriously affected; nor should we
encourage fragmentation or cumulation of allegations and
proof.
III. THE OBJECTIONS TO THE ELECTION
The findings herein of interrogation and threats support
objections 3 and 5 to conduct affecting the results of the
election. By way of rendering full if unnecessary measure,
brief reference will be made to the evidence concerning
the other objections before us.
In support of objection 1, several employees testified
that on the day before the election Craven came around
with a list of employees. From that point the testimony
differed. According to W. C. Mooney, Craven promised
him a raise if the U nion were voted down. Lott and Jones
testified that Craven said that the Company could not
promise a raise until the union business was settled, or
that at that time there would be a raise, Aside from any
question whether the latter statements, not contingent on
defeat of the Union, would constitute interference with
the election, employees Shoemake and Graham testified
that there was no promise of increase and that Craven
said that the Company would appreciate a confidential
vote. I credit Craven's testimony that he did not speak to
W. C. Mooney, that he told others that he wanted all to
vote, and that, while he could not tell them how to vote,
he would like them to vote in favor of the Company.
The records show that there was a marked reduction in
overtime throughout the plant in the week ending June 2,2
prior to the first showing, by a telegram from the Union,
of company knowledge of union activities; and that dur-
ing the pay period beginning 10 days after the telegram
and thereafter, except for 1 or 2 weeks in the following
month, the reduction in overtime was even greater, and
that this continued after the election. The Company ex-
plained that overtime was reduced because the backlog of
work did not require it and also, as several of the General
Counsel's witnesses testified that they were told at the
time, because of a shortage of material. W. C. Mooney
told us that, with that explanation, he was transferred to
another line. It does not appear that overtime was
stopped, as claimed, or reduced because of the union acti-
vities.3
On the day of and shortly before the election, each em-
ployee received his pay, from which $4.25 was deducted,
together with a separate check in that amount and the fol-
lowing notice:
THIS CHECK REPRESENTS $4.25 OF YOUR MONEY.
THIS IS THE ESTIMATED AMOUNT YOUR UNION
WOULD LIKE TO TAKE OUT OF YOUR PAY CHECK
EVERY MONTH, TO BE TURNED OVER TO THEM
. . . THE UNION !
The amount of money in this envelope does not in-
clude fines, assessments and other charges that the
Union may desire you to pay. We have given these
separate checks to you today so that you can more
fully appreciate one of the issues involved in this
election ... that Unions want money and they ex-
pect to be paid by the employees. This Union cannot
help our business.
VOTE TO KEEP ALL THE
MONEY YOU EARN
FOR YOURSELVES AND
YOUR FAMILIES.
VOTE "NO"
If we are inclined to ignore the fact that the objection
filed is to the deduction and issuance of a separate check,
and to consider the objection as addressed to the state-
ment issued by the Company, we must at least note what
the Company said. The Union urges that the statement
was incorrect and misleading.
We must first ask whether a statement of "the esti-
mated amount" which the Union "would like to take"
monthly is such a misstatement as would affect the out-
come of the election even if there were no basis for the
$4.25 figure. Rigby, the Union's International representa-
tive, told us that only one local in his district, in Meridian,
has monthly dues of $4.25; he does not know the dues
paid in Birmingham; the dues are $3.75 in a local in New
Orleans and one in Baton Rouge, both in his jurisdiction;
and it was stipulated that the dues in Birmingham to
which frequent reference was made in the plant, as we
were told throughout the hearing, are $4.25 per month,
except for June, when they were $5.
Rigby was less than reliable when he testified that the
$4.25 dues paid in his Meridian local are excessive.
Under such circumstances I would not charge the Com-
pany with misrepresentation when it declares that the
' Testimony elicited by the Union, which ignored the earlier drop in
overtime and sought to connect it with the June 7 telegram served but to
reflect on the credibility of several of the General Counsel's witnesses
' Lee's and Stapleton's position with the Company is not such that their
alleged predictions concerning the amount of overtime after the election
can be regarded as admissions of discriminatory reduction, nor were these
alleged as violative
FONTAINE TRUCK EQUIPMENT CO. 579
Union would like $4.25 monthly. In fact , if this local's
dues are significantly lower, Rigby did not tell us that. He
advised the employees at meetings and in a handbill dis-
tributed on August 5 before the election and before4 the
Company's notice and separate checks were distributed
that, after being told of the International ' s per capita tax,
they would fix their own dues.
Neither with respect to the amount nor with respect to
the Union ' s desire for dues in that amount do we have
"material misrepresentations " or even "[e]xaggerations,
inaccuracies , partial truths , namecalling , and false-
hoods." 5 The reasonably accurate statement that the
Union would like to take $4.25 out of the employees'
check each month does not mention or imply that an em-
ployee could be required to join the Union in Mississippi,
a "right-to-work" State ; and it harmonizes completely
with the fact that the Union could enforce a dues-paying
requirement regardless of actual membership.
That several employees were asked and testified that
they are customarily charged 10 cents for each check
cashed and that the second check on August 5 thus cost
them 10 cents suggests that this is claimed to be a serious
factor , or seriously claimed to be a factor affecting the
election. As for future income, it is clear that diminution
would be in the amount of the dues , without further
deduction for a separate check , which the employees
would not receive . It is hardly likely that the 10-cent ex-
pense, where incurred , turned the employees against the
Union or prejudiced them against the Company, which
caused such expense; or that the conditions for a free
choice were thereby impaired . The Company cites the
Caressas case in support of its position. Without un-
dertaking to compare the cases , I rely on the analysis
above for decision on this objection.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that the Company , Fontaine Truck Equip-
ment Company , Inc., its officers , agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Interfering with , restraining , or coercing em-
ployees by interrogation , threats, or promises of benefit
in connection with union activities.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its place of business in Collins, Mississippi,
copies of the attached notice marked "Appendix."7
Copies of said notice , on forms provided by the Regional
Director for Region 15, after being duly signed by the
Company 's representative , shall be posted by the Com-
pany immediately upon receipt thereof , and be main-
tained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to its
employees are customarily posted. Reasonable steps
shall be taken by the Company to insure that said notices
are not altered , defaced , or covered by any other material.
(b) Notify the Regional Director for Region 15, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.8
I FURTHER RECOMMEND that objections 3 and 5 to con-
duct affecting the results of the election be sustained; that
objections 1, 2, and 8 be overruled ; and that the election
of August 5, 1966, be set aside and, upon request by the
Union within 30 days immediately following compliance
herewith by the Company , a new election be conducted
in the appropriate unit here found , with application of the
Excelsior Underwear8 and other relevant rules.
4 I would venture to assume , were that necessary , that the checks and
the Company ' s notice were prepared on advice of counsel before the
Union's handbill came to the Company 's attention.
5 The Trane Company (Clarksville Manufacturing Division), 137
NLRB 1506, 1508-09, cited by the General Counsel as "the case most
analogous."
6 Caressa , Inc, 158 NLRB 1745
7 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 "
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region 15 , in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith "
9 Excelsior Underwear Inc ., 156 NLRB 1236
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our em-
ployees that:
WE WILL NOT interfere with , restrain or coerce
employees by interrogation, threats, or promises of
benefit in connection with union activities.
WE WILL NOT in any like or related manner inter-
fere with , restrain , or coerce employees in the exer-
cise of the right to self-organization , to form labor or-
ganizations , to join or assist Shopmen 's Local Union
702 of the International Association of Bridge,
Structural and Ornamental Iron Workers,
AFL-CIO, or any other labor organization to bar-
gain collectively through representatives of their own
choosing , and to engage in other concerted activities
for the purpose of collective bargaining or other mu-
tual aid or protection, or to refrain from any or all
such activities.
All of our employees are free to become or remain, or
to refrain from becoming or remaining , members of Shop-
men's Local Union 702 of the International Association
of Bridge, Structural and Ornamental Iron Workers,
AFL-CIO, or any other labor organization.
FONTAINE TRUCK EQUIP-
MENT COMPANY, INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced , or covered by any other material.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If employees have any question concerning this notice Building (Loyola), 701 Loyola Avenue , New Orleans,
or compliance with its provisions , they may communicate Louisiana 70113, Telephone 527-6361.
directly with the Board ' s Regional Office , T6024 Federal