Fox Valley Truck Service, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1965

153 N.L.R.B. 727 (N.L.R.B. 1965)

FOX VALLEY TRUCK SERVICE, INC., ETC . 727
Respondent, be posted by Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places, including all
places where notices to its members are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that the said notices are not altered, defaced, or
covered by any other material.
(b) Forthwith mail to the aforesaid Regional Director for Region 2 [now Region
29], signed copies of the said notice for posting by Darby Electric Corporation, if it
so chooses, in places where notices to its employees are customarily posted.
(c) Notify the Regional Director for Region 2 [now Region 29], in writing, within
20 days from the date of receipt of this Decision, what steps Respondent has taken
to comply herewith 22
23 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read. "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF LOCAL 3, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that-
WE WILL NOT picket, or cause to be picketed, or threaten to picket Darby
Electric Corporation or any of its projects where an object thereof is to force
or require Darby Electric Corporation to recognize or bargain with us as the
representative of its employees, or to force or require the employees of Darby
Electric Corporation to accept or select us as their collective-bargaining repre-
sentative, where Darby Electric Corporation has lawfully recognized, in accord-
ance with the National Labor Relations Act, as amended, Industrial Workers of
Allied Trades, Local 199, affiliated with the National Federation of Independent
Unions, and United Construction Contractors Association, Inc., or any other
labor organization, and a question concerning the representation of said employ-
ees may not appropriately be raised under Section 9(c) of said Act, unless we
are then currently certified by the National Labor Relations Board as their
representative.
LOCAL 3, INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO,
Labor Organization.
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.
Employees or members may communicate directly with the Board's Regional
Office, Fifth Floor, Squibb Building, 745 Fifth Avenue, New York, New York,
Telephone No. 751-5500 [now address of Region 29], if they have any question con-
cerning this notice or compliance with its provisions.
Fox Valley Truck Service, Inc., Valley Leasing Co., Inc. , and John
Toppins, an Individual and General Drivers and Helpers Union,
Local 563, affiliated with the International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of America.
Case No. 30-CA-60 (formerly 1,3-CA-6389). June 209, 1965
DECISION AND ORDER
On March 22, 1965, Trial Examiner Abraham H. Mailer issued his
Decision in the above-entit] ed proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
153 NLRB No. 46.
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
alleged in the complaint and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Respondent filed exceptions
to the Trial Examiner's Decision and a brief in support thereof. No
exceptions were filed by the General Counsel.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, 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, the exceptions and brief, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, 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 Order recommended by the Trial Examiner and orders that
the Respondent , Fox Valley Truck Service , Inc., Appleton , Wiscon-
sin, its officers , agents, successors , and assigns , shall take the action set
forth in the Trial Examiner 's Recommended Order .2
1 With respect to representations made by the Union's solicitors concerning the purported
purpose of union authorization cards , Member Brown refers to his stated position in
Cumberland Shoe Corporation, 144 NLRB 1268, 1269
2 The telephone number for Region 30, appearing at the bottom of the Appendix at-
tached to the Trial Examiner 's Decision , is amended to read: Telephone No. 272-3866.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed May 5, 1964, by General Drivers and Helpers Union, Local
563, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, herein called the Union, the Regional Director
for Region 30 of the National Labor Relations Board, herein called the Board, on
July 1, 1964, issued a complaint on behalf of the General Counsel of the Board against
Fox Valley Truck Service, Inc., alleging violations of Section 8(a)(1), (3), and (5)
of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.),
herein called the Act. On July 20, 1964, the Union filed an amended charge against
Fox Valley Truck Service, Inc. (herein called Fox Valley Truck), Valley Leasing Co.,
Inc. (herein called Valley Leasing), and John Toppins, an individual.' On August 4,
1964, an amended complaint and notice of hearing was issued by the Regional
Director.
In substance, the amended complaint alleged that John Toppins is the president,
a director, and principal stockholder of Fox Valley Truck and Valley Leasing and is
responsible for the management and control of the daily operations of said companies,
including the formation and administration of a common labor policy of said com-
panies; that Fox Valley Truck interfered with, restrained, and coerced its employees
by the following acts, Interrogating employees concerning their union membership,
activities, or desires, promising benefits and threatening reprisals if they voted for,
1 For convenience , Fox Valley Truck and Toppins are sometimes referred to herein col-
lectively as the Respondent.
FOX VALLEY TRUCK SERVICE, INC., ETC. 729
became members of, or gave support to, the Union; encouraged employees to form
their own bargaining committee and offered assistance for that purpose; encouraged
and assisted employees to withdraw from the Union; granted benefits to discourage
the employees from union membership; discriminatorily discharged employee Lyle
Burt; refused to bargain with the Union although the Union had been designated
by a majority of the employees as their representative for collective bargaining, and
is and has been the exclusive collective-bargaining representative of a majority of
the employees of Fox Valley Truck in an appropriate unit, all in violation of Section
8 (a) (1), (3), and (5) of the Act.
In its duly filed answer to the amended complaint, Respondent admitted that John
Toppins is president, a director, and principal stockholder of Fox Valley Truck and
Valley Leasing and that there is an overlapping and interlocking of officers, direc-
tors, and stock ownership between the two corporations, but denied that they have
common officers, directors, and ownership, and denied that the labor policy of both
corporations is a common labor policy. Respondent also denied the commission of
any unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Abraham H. Mailer
at Appleton, Wisconsin, on August 25, 26, and 27, 1964. All parties were represented
and were afforded full opportunity to be heard, to introduce relevant evidence,2 to
present oral arguments, and to file briefs with me. Briefs were filed by all parties.
Upon consideration of the entire record, including the briefs of the parties, and upon
my observation of each of the witnesses, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. THE BUSINESS OF THE RESPONDENT
Fox Valley Truck, a Wisconsin corporation, maintains its principal office and
garage in Appleton, Wisconsin, where it is engaged in the retail sale and service of
trucks and trailers. Valley Leasing, also a Wisconsin corporation, maintains its prin-
cipal office in Appleton, Wisconsin, with subsidiary offices in other cities of Wisconsin,
where it is engaged in the business of leasing delivery trucks and other vehicles. John
Toppins is the president, a director, and principal stockholder of Fox Valley Truck
and of Valley Leasing and is responsible for the management and control of the daily
operations of said companies. At all times material herein, Fox Valley Truck and
Valley Leasing have had overlapping and interlocking officers, directors, and stock
ownership.3
During the year preceding the filing of the amended complaint, Fox Valley Truck
sold and distributed products valued in excess of $500,000. During the same period,
Fox Valley Truck purchased and received in interstate commerce goods and materials
valued in excess of $50,000 from points outside the State of Wisconsin. In view of
the foregoing, I find and conclude that Fox Valley Truck is engaged in commerce
within the meaning of the Act and that it will effectuate the policies of the Act for
the Board to assert jurisdiction here.
Valley Leasing maintains no facilities for servicing its trucks. All such work is
performed at the garage of Fox Valley Truck by employees of Fox Valley Truck.
The office of Fox Valley Truck is used jointly by Valley Leasing which shares a part
of the cost of the office. Two employees of Fox Valley Truck, the bookkeeper and a
foreman, are employed jointly by Fox Valley Truck and Valley Leasing.
20n October 19, 1964, the General Counsel filed (with his brief) a motion to correct
the record In certain particulars therein specified . No opposition to the motion has been
filed Upon consideration of the motion, it is hereby ordered that said motion be and It
1s hereby granted.
8 Foal Valley Truck Percentage of stock owned
John Toppins , president--------------------------------------------- 40
A. F Toppins, vice president----------------------------------------- 21
Leona I. Toppins , treasurer----------------------------------------- 2
C. J Crognet------------------------------------------------------ 331,
Marvin Schnese , secretary-treasurer----------------------------------- -
Valley Leasing
John Toppins, president---------------------- --------------- -------- 51
A. F. Toppms, vice president---------------------------------------- 16
C J. Crognet------------------------------------------------------ 33
Marvin Schnese,secretary-treasurer ----------------------------------- -
In each case, the officers are the corporate directors. A. F. Toppins and Leona I. Toppins
are parents of John Toppins.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
General Drivers and Helpers Union, Local 563, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, is
and has been at all times material herein a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE ISSUES
1. Whether the Respondent interfered with, restrained, or coerced the employees
of Fox Valley Truck within the meaning of Section 8 (a) (1) of the Act.
2. Whether Lyle Burt was discharged because of his union or protected concerted
activities.
3. Whether Respondent's refusal to bargain with the Union was based upon a good-
faith doubt of the Union's majoiity status.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of events
1. The start of the organizational campaign
Early in April 1964,4 employees Lyle Burt and James Kelly discussed the possibility
of getting a raise Burt suggested that the only way to get a raise was to organize a
union and gave Kelly a matchbook giving the Union's name and telephone number.
Kelly subsequently called Robert Schlieve, the Union's secretary-treasurer, for infor-
mation. A meeting was then held on April 16 in the basement of the home of
employee Sylvester Boehme. In attendance was Schlieve, Marvin DeVries, an orga-
nizer from the Teamster's Joint Council, and eight employees: Boehme, Burt, Kelly,
Arden Mattice, John McCann, Arnold Thompson, James T. Davis, and Guenter
Demert.
At the meeting the men discussed union contracts with other firms, particularly
Foremost Dairies, and the working conditions at Fox Valley Truck. In addition,
Schlieve distributed white membership application cards and green combination
application-dues deduction authorization cards and explained the purpose of the
cards. He also told the men about the alternative means by which the Union could
obtain recognition, including a Board election and a card check by an impartial third
party. He told the men that the Union had to have a majority signed in order to
obtain recognition and also for the purpose that "if the Employer did engage in any
unfair labor practice proceedings, it would be possible for us to protect the integrity
of the unit and the interest of the Union at the time." He suggested to the men that
they should go back and discuss the matter with their fellow employees and that, if
they did have a majority, he would be glad to meet with them again.
2. Events of April 22
On April 22, shortly before noon, employee Kenneth Kohl came to Toppins' office
and told him "that there was some union talk in the shop." Toppins admittedly asked
him how far it had gone and whether everybody had attended. Kohl also told him
that there was going to be another union meeting Toppins testified that he was hurt
by the disclosure and immediately went into the back shop of the garage and told a
group of employees that he knew that theie had been some union thinking and that
there had apparently been a meeting. He asked them if they knew anything about
the meeting. The employees answered in the negative. Toppins repeated the ques-
tion asking them if they were sure that they did not know anything about a union
meeting. He then addressed his remarks specifically to employee McCann, asking
him if he knew anything about a union meeting, and McCann replied in the negative.
Toppins then went to the front shop and made the same inquiry of the employees
there Only one employee, Kelly, acknowledged that he had attended a meeting.
Toppins then asked Kelly who else had attended the meeting. Kelly told him that he
was not the only one, but that he would not give him any names. Toppins then asked
Kelly what some of the complaints were and, Kelly told him that one of the com-
plaints was the profit-sharing deal and another was the matter of wages.
Toppins admitted that before interrogating the employees he did not assure them
that there would be no reprisals.
a All events involved herein occurred in 1964 , unless otherwise indicated.
FOX VALLEY TRUCK SERVICE, INC., ETC. 731
Later that day, Foreman Kurt Langdok approached Burt and asked him if he knew
anything about a union meeting that had taken place or would take place. Burt
replied that he did.5
About 5.30 that afternoon, Toppins called a meeting of all the employees in the
garage. Toppins opened the meeting by telling the men he knew that they had been
looking into a union, that he had asked most of the men about it and whether they
had attended a meeting, and that the only one who had acknowledged that he had
attended was Kelly. At that point, Mattice stated that he had also attended the meet-
ing. Toppins then pointed out to them that if the shop went union, the employees
might lose such benefits as free laundry for coveralls, hospitalization insurance, gas
discount, unlimited overtime, and shop privileges.6 Toppins also suggested that the
employees should then and there discuss their demands and present them to him with-
out a union.? The employees, however, did not act on this suggestion.
In the course of the discussion, Toppins compared the wage rates of his employees
with those paid by three of his competitors. Burt questioned the validity of the com-
parison and told Toppins that he should compare their wage rates with those of the
mechanics at Foremost Dairies who were getting $2.71 an hour. Toppins maintained
that they were getting $2.66 an hour An argument also developed between Toppins
and Burt regarding union dues. Toppins had pointed out to the men that union dues
were $6 a month, while Burt insisted they were $5 per month and, according to
Toppins, was "very positive" in his position. Toppins testified that Burt's remarks
were "very aggravating" to him. Thereupon, Toppins pointed his finger at Burt and
said that the only reason Burt wanted a union in the shop was to protect his job and
that Burt should have stayed in the Army.8
3. The discharge of Burt
The next morning, Toppins discharged Burt. According to Toppins when he first
testified, he decided to fire Burt the evening before because he was angry with Burt
for having disagreed with him during the meeting. Later, however, Toppins gave
another reason for firing Burt: that Burt was not a satisfactory employee and that if
the Union came in and the employees thereafter received an increase in their wages,
Burt would also receive an increase. This latter reason comports with a letter written
to the Board by Toppins with the advice of counsel on May 7, in response to the
charge, in which Toppins ascribed this reason as the basis for Burt's discharge. In
that letter, Toppins pointed out also that "once we had the union it would be impos-
sible for me to discharge him because of his seniority." 9
That morning, Toppins summoned Burt, Foreman Langdok, and Foreman Joe
Friday to his office,io Toppins told Burt that they had been unable to come to an
5 The credited testimony of Burt Although Langdok subsequently took the stand, he
did not testify concerning this conversation. Burt's testimony therefore stands uncon-
tradicted on the record.
6 The credited testimony of McCann, Burt, Kelly, and Kohl. Toppins admitted discuss-
ing these matters, but his version was that the benefits might be lost because he could
not afford to continue them if the Union obtained a pay raise for the employees. I do not
credit Toppins' version. It is significant that it is not corroborated by any of the em-'
ployees, including Kohl who admittedly was opposed to the Union Aside from the fact
that Toppins' testimony is contradicted by credible witnesses, Toppins did not appear to be
a credible witness On several occasions, he testified contrary to an earlier statement
given by him to the Board's representative and changed his testimony when shown his
earlier statement.
'The credited testimony of Burt and McCann. Toppins did not deny making this
suggestion.
'Burt was a member of the Army Reserve, and, while employed by Fox Valley Truck,
had been called up for active duty for a period of 10 months in 1961 Toppins' statement
referred to above is based upon the credited testimony of Burt, corroborated by Kelly.
Toppins testified that he did not "believe" that he used the word "union," but that he
said what Burt needed "is somebody to come and guarantee him a job" I credit the
testimony of Burt and Kelly and find that Toppins did use the word "union."
9 The evening before the discharge. Toppins telephoned Foreman Langdok, told him that
Burt had made him "awfully, awfully angry," that he had babied Burt along for 6 years
hoping that he would turn out to be a good employee, and asked Langdok whether he
recommended that Burt be discharged. Foreman Langdok agreed to the discharge.
10 Foreman Friday had never supervised Burt.
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreement the evening before, that he had asked Burt to quit last year, and that he
should consider himself fired. Burt asked Toppins why he was being fired, and
Toppins replied that he was too slow. Burt disagreed and pointed out that a majority
of the shop orders would prove that he had done his work in flat-rate time. Toppins
then offered to give Burt a recommendation if he needed it, and since Burt had been
scheduled to work on Saturday, Toppins stated that he would pay him through Satur-
day.11 Burt rejected Toppins' generosity and told him that he would accept only
what was on his timecard when he punched out.
4. The union meeting of April 23
On April 23, a second union meeting was held in the basement of Boehme's home.
Attending this meeting were: Schlieve and DeVries, and employees Kelly, Mattice,
McCann, Davis, Deinert, Thompson, Burt, Mcllraith, Colden, Boehme, Marks, Mar-
vyn Handschke, Toren, and Laib. After discussing the Board proceedings, which
would take place if they organized, and working conditions at Fox Valley Truck,
Schlieve asked the men "if they had decided to either make the move to go into the
Union or whether they wished to drop it." The men present decided to go forward
with the Union. Schlieve thereupon distributed both the white and the green cards to
them and again explained the purpose of the cards By the end of the meeting 13
employees, including Burt who had signed earlier, signed membership applications
and checkoff authorizations. Of these, six (including Burt) paid the $25 initiation
fee, and two other employees surrendered their withdrawal cards from other locals.12
Schlieve told the employees that he was going to file an unfair labor practice charge
to protect Burt and would serve a bargaining demand letter on the employer. The
employees suggested that the letter be delayed so that Toppins would not receive it
until the following Monday; that if he sent it out the next day, Toppins would receive
it on Saturday when there would not be a full complement working. Schlieve told
them he would take this into consideration but that it was important, in view of the
discharge of Burt, to do whatever he felt necessary to protect the Union's status at
that point as the designated representative of the employees. The employees then
present elected a steward and a bargaining committee.
5. Events of April 24 and 25
The next morning, Toppins approached McCann and asked him if he had attended
the meeting and how the meeting had gone.13 Toppins admittedly also asked Diehl
whether he had gone to the meeting. Also that morning, he summoned employees
Deinert, Boehme, Marvyn Handschke, Mcllraith, Kelly, and Mattice, individually,
into his office and questioned them concerning their complaints. He told some of
them that he was hurt by their action. Toppins indicated to Mattice that it was
obvious that the employees meant business, and "there would have to be some adjust-
ment made, whether it was with or without the Union." One of the men told Toppins
that 13 men had signed union cards.
Later that evening Toppins called McCann at his home. He told McCann to con-
sider the Union closely because McCann was a new man "and perhaps, if someone
were to go or be cut on hours because of lack of work, I would probably be one of the
first ones to go." Toppins also said that "if we wanted representation from the
employees, he felt we should have it among ourselves. That way, we could have a
group of representatives from our organization meet with him at a later date to dis-
cuss our problems at Fox Valley Truck." 14
n The workweek usually ended Thursday evening.
12 Burt testified that he stopped in at the Union's office on the evening of April 21 and
paid his initiation fee to Organizer DeVries. The latter, called as a witness by the Gen-
eral Counsel, corroborated Burt and identified the receipt which he had issued and the
receipt stub. Although Respondent's counsel cross-examined both witnesses vigorously
and obtained from the Union the production of the receipt book, itself, Respondent was
unable to impeach the evidence that Burt paid the initiation fee on April 21 before his
discharge. Nor did Respondent affirmatively produce any evidence to show otherwise.
While it may seem somewhat peculiar that Burt did not wait for the second meeting
before joining the Union, the evidence that he paid his initiation fee on April 21 is not
inherently incredible and is credited. In any event, the issue whether Burt paid his
initiation fee before he was discharged is in no way crucial. Burt's discharge, if motivated
by Respondent's belief or suspicion that he was active in the Union's organizational cam-
paign, is violative of the Act, whether he had paid his initiation fee prior thereto or not.
is The uncontradicted testimony of McCann
14 The uncontradicted testimony of McCann
FOX VALLEY TRUCK SERVICE, INC., ETC. 733
On April 25, Toppins asked employee Thompson whether he had attended the
meeting of April 23, and Thompson told him that he had'5
6. The demand letter
Under date of April 24, the Union wrote a letter to Fox Valley Truck in which it
stated that it represented a majority of the employees, demanded recognition, described
the collective-bargaining unit,16 set a tentative date for negotiations, and offered to
submit to a card check by a neutral person. Toppins received this letter on April 27.
He immediately went into the garage and showed it to the employees. According to
Toppms, all the employees, except McCann, "denied that this is what they thought
they were doing," and that Davis told him that the union representatives had mis-
represented themselves. However, it is significant that although the Respondent called
nine of the union adherents to the stand as its witnesses, not one corroborated
Toppins' testimony concerning employee reaction to the letter, and some contradicted
him. Thus, Davis denied talking to Toppins about his understanding; Mattice did
not know whether he told Toppins what he considered was the effect of signing the
union card; Marvyn Handschke did not recall discussing the matter with Toppins;
Thompson testified that he never saw the letter; and Colden testified that he saw the
letter but did not read it. It is also significant that Toppins' testimony is inconsistent
with his letter of May 7, to the Regional Office, which was written with the advice
of counsel, in which he said:
I had heard before refusing to bargain with Mr. Schlieve that thirteen of our
employees had "signed up" with the union, and that, of course, would have been
a majority; but unfortunately one of the men told me that he had signed up only
to go along with the majority, intending or expecting that he signed only a
request for an election to be held. [Emphasis supplied.]
In view of the foregoing, I do not credit Toppins' testimony that the employees upon
seeing the letter disassociated themselves from it.
7. Attorney Van Susteren's speech
That evening, Toppins called another meeting of his employees and had his attor-
ney, Urban Van Susteren, address the employees. Van Susteren started out by telling
the employees that they had no reason or cause to be disturbed by anything that he
would say, and continued as follows: The law gave the employees the right to orga-
nize. It forbade Toppins from discriminating :.gainst them in any way. Unions
could be a good thing for the employer and for the employees, but one of the most
important considerations would be unanimity of opinion so that the shop could work
in harmony. "John [Toppins] would hate to come into the garage here some morn-
ing or some day and find one of his employees on the floor in a bloody mess with a
wrench buried in his skull." If the employees joined the Union, they would have
readily available to them, the advice of an expert or professional on the kind of pay
that is current in the community and would learn whether Toppins could afford to
pay more. If the employees do not join the Union, they get a free ride, "but I am not
telling you you should do that." In deciding what is best for them, the employees
should give some consideration to the fact that Fox Valley Truck would have to sur-
vive and remain competitive. The employees had seniority rights which might be of
advantage to some employees and a disadvantage to others. The employees would not
be free to deal directly with Toppins and bring their problems directly to them be-
cause this would have to be done through the union bargaining representative.
Toppins had been planning for seve-al months to give them a wage increase, but
"unfortunately" if the Union succeeded in getting a majority of the employees, it
would get credit for the wage increase. The wage increase that Toppins had been
planning would not be small like 5 or 1) cents, but would be substantial. At this
point Toppins broke in and said, "Don't make any promises," but Van Susteren ad-
mittedly told them "at least twice or more often" that they would get that increase
in pay whether they joined the Union or not, whether there was an election or not,
and regardless of how the election came out. As one of the disadvantages of a
union, Van Susteren pointed out that they might have shorter hours and perhaps a
11 The uncontradicted testimony of Thompson
16 On April 27 the Union filed an RC petition with the Board's office in Chicago The
unit description in the petition was identical with that contained in the demand letter, viz,
all employees excluding parts department, stockroom, and office clerical employees, guards,
professional, managerial , and sales employees , and supervisors as defined in the Act.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lower paycheck . A union shop would be of advantage to Toppins because he would
be able to hire junior grade employees at a considerable lower rate to do such things
as sweeping , oiling, washing , and greasing trucks and putting gasoline in them.
Van Susteren referred to the demand letter, called it an insulting and arrogant
letter, and said, "It 's a hell of a way to introduce yourself for the purpose of entering
into a business relationship ." He then pointed out that it was not possible or feasible
for the Respondent to bargain because Schlieve apparently was unaware of the close
relationship between Fox Valley Truck and Valley Leasing, that Toppins contem-
plated building another building for Valley Leasing and that a skeleton crew might
be sent over to set up the new plant and teach the new crew , that if Valley Leasing
was nonunion and the Fox Valley Truck was union there would be a complaint of
discrimination as to the employees sent over to Valley Leasing's new plant He sug-
gested that the employees go back to the Union and make it decide whether it wants
Fox Valley Truck alone, or Fox Valley Truck and Valley Leasing together in the
same unit.
Van Susteren also suggested that the employees look into the matter of having some
other union , possibly one affiliated with the AFL, to represent them. Finally, Van
Susteren told them to meet among themselves and nominate one of their number to
represent them in their dealings with Toppins.
8. Employer assistance
The next morning, April 29, the employees met in the garage. After some discus-
sion concerning the fact that Toppins would not bargain with them as long as they
had a union to represent them, the employees voted to try to bargain with him by
themselves and temporarily to hold up their union activities. Their decision, however,
was not withdraw permanently from the Union but to see what they could accom-
plish without the Union. Toppins was then called into the meeting and informed of
the employees' desire to negotiate. He replied that he would not bargain with the
employees as long as they were represented by the Union. A committee of three
(McCann, Boehme, and Kelly) was selected to have a letter drafted withdrawing
temporarily from the Union. Toppins was then informed of the men's decision and
he thereupon telephoned Edward Bollenbeck, an associate in the law firm of Van
Susteren, and arranged to have the committee meet him. Toppins then drove the men
down to Bollenbeck's office and explained to him what the employees had in mind.
The employees told Bollenbeck that they wanted to get out of the Union temporarily.
Bollenback thereupon dictated a letter into a dictaphone machine and told them
that he would have the letter typed and prepared for the signature of all the employees
who had signed up with the Union. Toppins then drove the employees back to the
garage. That afternoon, Bollenbeck came to the garage and told the employees that
he could not prepare the letter for them because he was representing Toppins and
could not act as attorney for the employees at the same time.17
9. Correspondence between the Employer and the Union
On the same day, Van Susteren replied on behalf of the Respondent to the Union's
demand letter of April 24. He stated that he had been extremely busy preparing
for a jury trial, lacked experience in the field of labor law, and had not had time to
do the legal research necessary to advise the Respondent He promised to write
within a week, when he would suggest another date for a meeting. Under date of
May 1, Schlreve replied, stating that the Union was filing charges of unfair labor
practices committed since the organizational drive began On May 27, Schlieve
again wrote to the Respondent requesting the Respondent to state its position regard-
ing collective bargaining and pointing out that the Union was ready to commence
negotiations at any convenient place.
Under date of June 16, Van Susteren wrote Schlieve a letter in which, inter alia,
he raised a question as to the appropriate unit, stating that the Respondent had no
preference and would permit the Union and the Board to decide on any unit the
Union wished, i.e, either Fox Valley Truck alone, or in conjunction with Valley
Leasing. Van Susteren also stated that Toppins intended to grant a general increase,
17 There is a suggestion in Attorney Van Susteren's letter of June 16 to the Union that
some of the employees may have taken some action toward this end in a letter of April 30,
drafted by one Walter Dlelchoir. However, that letter was not offered in evidence; hence,
its tenor and signers were not disclosed.
FOX VALLEY TRUCK SERVICE, INC., ETC. 735
regardless of whether the Union represented the employees. He pointed out that this
increase would be granted in order to keep the employees, even it it constituted a
violation of the Act.18
10. The wage increase and other changes in working conditions
On or about July 1, after the original complaint herein had issued, Fox Valley
Truck instituted a general wage mciease of 40 cents an hour, from $2 20 to $2 60
per hour.10 Other changes in working conditions put into effect at that time included
a reduction in the amount of permissible overtime, at time and a half, 6 days per
year sick leave retroactive for 2 years and cumulative for 5 years,20 and changed
the method of computing vacation pay.21 None of these changes were discussed with
the Union. In a posted notice announcing these changes, Toppins invited his
employees to discuss with him any problems that might be created by the new rules.
B. Concluding findings
1. Interference, restraint, or coercion
a. Interrogation
The record is replete with undisputed evidence of Toppins' interrogation of the
employees. On April 22 he told Kelly, individually, and two groups of employees
that he was aware of the fact that there had been a meeting and questioned them
whether they knew anything about it. On April 24, he asked Diehl whether he had
attended the meeting, and on the same day he addressed a similar inquiry to McCann,
asking him also how the meeting had gone. On or about April 25, he asked
Thompson whether he had attended the meeting of April 23. Foreman Langdok
also engaged in interrogation. On April 22, he asked Burt whether he knew any-
thing about a union meeting that had taken place or would take place. Since Fore-
man Langdok was a supervisor, his conduct is chargeable to the Respondent. On
none of these occasions did either Toppins or Langdok accompany their interrogation
with any of the safeguards prescribed in Blue Flash Express, Inc., 109 NLRB 591,
nor was the interrogation for any legitimate purpose.22 It is well settled that interro-
gation of employees concerning their union activities constitutes restraint and inter-
ference with the rights guaranteed them by Section 7 of the Act and is violative of
Section 8(1).23 Accordingly, I find and conclude that Respondent violated Section
8(a)(1) of the Act by interrogating employees as aforesaid.24
za On the same day Schlieve sent a letter to Fox Valley Truck again indicating the
Union's readiness to negotiate . The two letters, both dated June 16, apparently crossed
in the mail.
19 Except in the case of employee Thompson , whose rate became $2 50 per hour.
21 The record does not reveal what sick leave policy Fox Valley Truck followed prior
to July 1.
a Toppins was unable to say whether the new system would result in increased vaca-
tion pay.
^ To the contrary , Foreman Langdok ' s interrogation was accompanied by the comment
that if he had anything to say about it, there would not be a union , while Toppins' in-
terrogation overtly demonstrated his knowledge of the union meetings, thereby giving
the employees the impression of surveillance and thus intensifying the coercive effect of
the interrogation
za See, e .g, Blue Flash Express , Inc., supra; P-M Garages , Inc, et al, d/b/a P-M
Parking System , 139 NLRB 987 , Southwire Company, 145 NLRB 1329, 1332.
"The General Counsel contends that Toppins ' interrogation of Kohl is also violative of
the Act. The General Counsel recognizes that it was Kohl who initiated the conversa-
tion in which he told Toppins about the union activity , but points out that Toppins sought
to elicit the full extent of Kohl's knowledge concerning the Union. Inasmuch as the find-
ing that Toppins had engaged in unlawful interrogation of other employees is so amply
supported , it is unnecessary to make any finding as to whether Toppins' interrogation of
Kohl also constituted interrogation . Cf. A. P. Green Fire Brick Co ., 140 NLRB 1067,
footnote 3.
Although Toppins gave the employees the impression of surveillance , I do not find
that Toppins independently violated the Act thereby. The amended complaint did not
allege that Respondent was guilty of giving the impression of surveillance See Riply
Manufacturing Company , 138 NLRB 1452, 1453, footnote 1 And in any event, such a
finding would be cumulative . Interstate Smelting and Refining Co, 148 NLRB 219,
Sheraton-Houston Corpoi ation, 148 NLRB 1195.
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Threats
The record contains undisputed evidence of various threats by Toppins and his
attorney, Van Susteren. Thus, in his speech of April 22, Toppins told the men that
if the shop went union, the employees might lose such benefits as free laundry for
coveralls, hospitalization insurance, gas discount, unlimited overtime, and shop
privileges. Although Toppins put this in the form of a possibility and not as an
overt threat, the effect was nevertheless the same, since as the Court of Appeals for
the Fifth Circuit pointed out in N.L.R.B. v. W. C. Nabors, d/b/a W. C. Nabois
Company, 196 F. 2d 272, 276:
When statements such as these are made by one who was a part of company
management and who has the power to change prophecies into realities, such
statements, whether couched in language of probability or certainty, tend to
impede and/or coerce employees in their right to self-organization, and there-
fore constitute unfair labor practices.25
This applies with equal force to Toppins' telephone call to McCann on April 24,
when he told McCann to consider the Union closely because McCann was a new
man and if someone were to go or be cut on hours because of lack of work, he would
be one of the first to go
Other threats are found in the speech made by Attorney Van Susteren on April 27,
even though Van Susteren assured the employees at the outset of their right
to organize. Thus, Van Susteren told them that the Respondent would benefit from
a union shop in that the Respondent would be permitted to hire junior grade
employees at a considerably lower rate to do some of the work then being done by
the mechanics; i.e., sweeping, oiling, washing, and greasing trucks and putting
gasoline in them. Respondent argues that:
These remarks were made ... for the purpose of quieting the hot-headed anti-
union employees, and making known to the pro-union employees that there was
no conflict between them and Toppins. Naturally, if they understood that under
collective-bargaining some of the more menial tasks could be done by lower
paid employees, they would know that Toppins could raise their pay without
any financial sacrifice.26
This is indeed a strained construction. Certainly, the employees with the least
seniority would hardly understand it that way. To the contrary, it would mean to
them that Fox Valley Truck could get along with fewer mechanics if some of the
work was to be performed by junior grade employees. Rather than being an assur-
ance that they would get an increase in pay, it was a warning to the newer employees
that the advent of a union could well mean the loss of their jobs.
Van Susteren also told them that in deciding what was best for them, "they had
to give some consideration to the fact that Fox Valley Truck Service would have
to survive and would have to remain competitive." In effect, the employees were
being told that if they selected the Union as their bargaining representative and the
Union obtained high wages, the Respondent might go out of business. The Board
has frequently held that such statements tend to instill in the minds of the employees
the futility of selecting the Union as their collective-bargaining representative and a
fear of economic suffering and loss of benefits as a result of such selection.27
Respondent argues that Toppins cannot be charged with having attempted to
intimidate his employees, because Toppins was "not the bully type" and "there was
a close, almost family-like, relationship between Toppins and his employees." This
argument must be rejected. Aside from the fact that there is no evidence of the
alleged "close, almost family-like relationship," the fact remains that to constitute
a threat the words used need not be uttered in a bullying or domineering manner.
Threats may be and often are subtle in form.28 Furthermore, while it is unnecessary
2 See also N.L.R.B. v. Kropp Forge Co., 178 F 2d '822, 828, 829 (C.A. 7) ; Willard
Bronze Company, 148 NLRB 1686.
21 Respondent 's brief, p. 11.
zr See, e g., Remington Rand Corporation , 141 NLRB 1052, 1053; C. J. Glasgow Co.,
148 NLRB 98, Radio Kemetal Industries, Inc, and Radio Industries , Inc., 144 NLRB
546, 553
See. e g, Morris & Associates, Inc., 138 NLRB 1160, 1161; Southwire Company, 145
NLRB 1329 , 1331-1332.
FOX VALLEY TRUCK SERVICE, INC., ETC. 737
to prove that the threat was effective, in order that the employer be held to have
violated Section 8(a)(1) of the Act, the fact remains that in this case the employees
did, following Respondent's conduct, attempt to withdraw temporarily from the
Union. Accordingly, I find and conclude that the foregoing conduct of the
Respondent constituted threats and as such was coercive conduct in violation of
Section 8 (a)( 1 ) of the Act.29
c. Promise of a wage increase and the unilateral grant of an increase
In his speech of April 27, Attorney Van Susteren told the employees that Toppins
had been planning on a wage increase for several months past and that the wage
increase "would not be small like 5 or 10 cents . . . but will be substantial."
Although Toppins interrupted to caution Van Susteren not to make any promises,
Van Susteren admittedly repeated "at least twice and maybe more often that they
would get that increase in pay whether they joined the Union or not, whether there
was an election or not, and regardless of how the election came out." This promise
was reiterated in Attorney Van Susteren's letter to the Union under date of June 16,
a copy of which Toppins posted on the bulletin board. In the letter, Respondent
frankly conceded that a general increase at that time might result in an additional
unfair labor practice charge against Fox Valley Truck, but justified it on the ground
that if the employees did not get an increase in the near future, they might quit and
go to work for somebody else.30 On July 1, Respondent granted a general wage
increase of 40 cents an hour.
Respondent sought to prove that it had been considering a pay raise prior to Van
Susteren's announcement. According to Victor Murry, area representative of General
Motors Corporation, Toppins had discussed with him the possibility of increasing
mechanics' wages during February and March.31 However, Murry conceded on
cross-examination that these were merely general discussions and no specific amounts
were mentioned.32
However, regardless of whether Toppins had been considering or planning a wage
increase, the timing of the promise-coming as it did on the heels of the Union's
demand for recognition-compels the conclusion that it was made to deflect the
interest of the employees from the Union by impressing on them that union repre-
sentation was not necessary in order to get a raise and that they could rely upon
their employer's unilateral generosity to attain their needs, and I so find. Accord-
ingly, I find and conclude that the promise of a pay increase on April 27 and June 16
interfered with the rights of the employees guaranteed by Section 7 of the Act
and as such violated Section 8 (a) (1) of the Act 33
20 I do not consider Attorney Van Susteren's remarks concerning the possible transfer of
employees to Valley Leasing as a threat. The statement was made in the context of a
suggestion to the employees that they discuss with the Union the broadening of the unit
to include Valley Leasing. Van Susteren pointed out that if Valley Leasing were nonunion
and employees were transferred to its payroll, the Respondent might be charged with an
unfair labor practice, a result which would be avoided if both companies comprised the
appropriate unit.
31 There is no evidence in the record that any of the employees were planning to quit
unless they received a raise, or that they had threatened to do so.
31 It appears that the remuneration which Fox Valley Truck receives from General
Motors for work performed pursuant to the latter's warranty to purchasers is determined
by a formula based on the approved hourly wage of the mechanics. Consequently, in
order to be paid fully for such work, Fox Valley needed the approval of General Motors
for any wage increase to the mechanics.
32 Murray testified also that at the time of the hearing there was pending a request by
Toppins for permission to grant the mechanics a wage increase. However, the record does
not disclose when such request was actually filed According to Murray, he did not recall
any discussion with Toppins after March 13 "until more recently "
33 See, e.g., Arts & Crafts Distributors, Inc, 132 NLRB 166, 176; Laars Engineers, Inc,
142 NLRB 1341, 1345, enfd. as modified 332 F. 2d 664 (CA. 9), cert. denied 379 US.
930; Admiral Linen Service, 138 NLRB 361, 378; Donald L. Trettenero, et al., d/b/a
Trettenero Sand it Gravel Co , 129 NLRB 610, 619.
796-027-66-vol. 153-48
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The granting of the 40-cent wage increase on July 1 was likewise a violation of
Section 8 ( a)(1). The increase was substantial-far in excess of any wage increase
that Toppins had given in any previous year 34
Toppins defended the pay raise by testifying that it was Respondents "policy" to
give a general increase at midyear. He admitted, however, that the first time he
gave a midyear increase was in June of 1963, that some years he did not give a
general increase; and that the largest general increase in the past 10 years was 15
cents. Such sporadic and comparatively smaller wage increases can hardly be con-
strued as the establishment of a policy or a regular practice to justify the granting
of a substantial increase after the Union appeared on the scene . By implementing
his earlier promises and by giving so large a wage increase, Toppins was dramatically
demonstrating to the employees that they did not need a union in order to better
their working conditions
d Suggesting that the employees form their own committee and
assisting the employees to withdraw from the Union
As previously noted, Toppins in his speech to the employees on April 22 and in
his telephone call to McCann on April 24 suggested to the employees that they
should form their own committee to bargain with him. This suggestion was repeated
by Van Susteren in his speech of April 27. Later, when the employees informed
Toppins of their desire to withdraw temporarily from the Union in order to be able
to discuss matters directly with him, Toppins drove a committee of employees in
his automobile to the office of Van Susteren , where Bollenbeck dictated a letter of
withdrawal.
The foregoing obvious encouragement of the employees to form a committee and
deal with the Employer directly , rather than through the Union, and assisting the
employees to effectuate this suggestion was clearly an attempt to interfere with the
employees ' organizational efforts and improperly to influence their decision to have
union representation , and I so find.35
2. The discharge of Burt
Two significant events preceded Burt's precipitous discharge on April 23: (1) On
April 22, Foreman Langdok had approached Burt and asked him whether he knew
anything about the union meeting , and Burt replied that he did . ( 2) At the meeting
later that day, Burt contradicted Toppins as to the amount of union dues and
questioned the propriety of the wage comparisons made by Toppins and the accuracy
of Toppins' statement as to the wages of mechanics at Foremost Dairies.
Respondent has presented two reasons for Burt's discharge 36 First , that Toppins
became angry at Burt because the latter had contradicted and disagreed with him at
the meeting . Second, that Burt was not a satisfactory employee and, if the Union
came in, there would be a general increase which he could not bear giving to Burt
and it would be difficult to discharge him because of his seniority.37
The record demonstrates that Toppins was not completely satisfied with Burt's
performance and had asked Burt to quit in August 1963, during an incident in which
Toppins failed to accept Burt's explanation for taking too much time on a repair
34 Toppins sought to give the impression that the increase was not as great as it ap-
peared Thus he testified that by working 9 hours overtime ( at time and a half), the
men now received an average of $2 83 per hour , whereas previously their average was
$2.06-a difference of only 17 cents per hour. The latter figure of $2 66 Is obviously
incorrect . At the old rate of $2 20 per hour , including 9 hours of overtime ( at time and
a half), the average hourly wage was $2 40 , making a difference of 43 cents an hour be-
tween the old rate and the new. Even on the basis of 18 hours overtime, the average
rate before the increase was $2 54 per hour
35 S. N. C. Manufacturing Co., Inc., 147 NLRB 809 ; Edward Fields , Incorporated, 141
NLRB 1182 , 1192, enfd as modified 325 F. 2d 754 ( CA. 2) ; Ballas Egg Products, Inc.,
121 NLRB 873, 880, footnote 10, enfd. 283 F 2d 871 (CA. 6) , Alberto Culver Company,
136 NLRB 1432 , 1433. The question whether Respondent ' s conduct in this respect also
constituted a violation of Section 8(a) (5) will be discussed in the appropriate sec-
tion , infra.
30 Respondent 's answer to the amended complaint alleged a third reason, viz, that Burt
had, on at least one occasion , been detected stealing the Employer ' s merchandise No
evidence was presented to support this allegation , nor was it mentioned in Respondent's
letter to the Board's Regional Office in answer to the charge
37 Toppins first testified that his anger at Burt was "the reason" for firing him Sub-
sequently , he cited the latter reason stated above as part of the basis for his action
FOX VALLEY TRUCK SERVICE, INC., ETC. 739
job and that he had been criticized by both Toppins and Foreman Langdok prior
thereto 38 On the other hand, Burt had been employed by Fox Valley Truck for 9
years (except for a 10-month period of active service in the Army), had received
each of the general increases during that period, and for the past 6 years was the
acting shop foreman when Langdok was absent.
I am satisfied that Burt's work performance was not the motivating force behind
his discharge. Tne fact remains that although Toppins had asked him to quit, he
did not discharge him but continued to have him act as foreman in Langdok's
presence. Apparently, then, Burt's performance was not thought of sufficient
importance to warrant a discharge at any time during the 9 years of his employment
by Fox Valley Truck. See N.L R.B. v. Gieenhoio Coca Cola Bottling Company,
180 F. 2d 840, 843 (C.A. 4). It is therefore strange that it should suddenly become
important enough to warrant a discharge in the middle of the workweek.
I find that the real reason for Burt's precipitous discharge was Toppins' knowledge
or belief that Burt was active in the Union's organizational campaign. As previ-
ously noted, Burt had admitted to Foreman Langdok in response to the latter's
inquiry that he knew about the union meeting. Foreman Langdok's knowledge is
imputable to Toppins and to Fox Valley Truck as a matter of law. A. P. Gieen
Fire Buck Co., 140 NLRB 1067, 1071, 1074-1075, enfd. 326 F. 2d 910 (C.A. 8).
Even apart from that, Toppins had ieason to believe, or at least suspect, that Burt
was active in the Union's campaign. By disagreeing with Toppins as to the propriety
of Toppins' comparison of rates of pay and as to the amount of union dues, Burt
showed an awareness of matters that a person who was not interested in organizing
the plant might not have. And he was the only employee who spoke out on these
matters. This could clearly stamp him as a ringleader in the organizing campaign.
That Toppins either knew or at least suspected that Burt was involved in the Union's
organizational campaign is further evidenced by his statement to Burt that the latter
wanted a union to protect his job. "The Board has consistently held that a dis-
charge based upon a mere suspicion of union activity is discriminatory." (Editorial
"El Imparcial" Inc., 92 NLRB 1795, 1797.)
Furthermore, the reasons advanced by Respondent for discharging Burt, in them-
selves, require the conclusion that Burt's discharge was discriminatory. By the first
reason advanced, viz, that Toppins was angry at Burt because the latter had dis-
agreed with him at the meeting, Respondent implies that the basis for the discharge
was Toppins' personal pique, rather than any union activity by Burt. Thus, Respond-
ent argues correctly that an employer may allow any whim or caprice no matter
how ridiculous it might be, to motivate him in discharging so long as that motive is
not discriminatory to encourage or discourage membership in any labor organiza-
tion. However, the rule is not applicable here. The matter which caused Toppins'
anger was brought out at a meeting called by Toppins to find out what the employ-
ees' grievances were-why they wanted a union. The statements made by Burt
were in response to the inquiry and to data provided by Toppins. Therefore, in
disagreeing with Toppins, Burt was speaking on a matter for which the meeting
was called and in which the employees generally were interested. As such, it was a
concerted activity for the mutual aid or protection of the employees. "[W]hile a
discharge in caprice or anger is not in and of itself a violation of the Act, if that
caprice or anger arises out of, or may be reasonably attributed to, a resentment
against employees for pressing their rights under the Act, the Act specifically makes
such discharges unfair labor practices." (Gullett Gin Company, Inc. v. N.L.R.B ,
179 F. 2d 499, 501-502 (C.A. 5).) See also Mike Persia Chevrolet Corporation of
Houston, 134 NLRB 1402, 1407.
Similarly, the second reason advanced by Toppins for discharging Burt, viz,
that if the Union came in, there would be a general increase which he could not bear
giving to Burt and that it would be difficult to discharge him because of his seniority,
in itself, presents a discriminatory motive for the discharge, as it was premised on
the advent of the Union. Capital Distributing Co., 147 NLRB 1138.
Finally, Respondent points to the fact that employees Kelly and Mattice who
had admitted attending the meeting suffered no discrimination. The short answer
is that "this does not exculpate .. [Respondent] from the charge of discrimination
as to those discharged" (N.L.R.B. v. W. C. Nabors, d/b/a W. C. Nabors Company,
196 F. 2d 272, 276 (C.A. 5)) See also Willard Bronze Company, 148 NLRB 1686;
Murray Golub, et al., d/b/a Golub Bros. Concessions, 140 NLRB 120, 129
In sum, I find and conclude that Burt's discharge was discriminatory, in violation
of Section 8(a) (3) and (1) of the Act.
38 Foreman Langdok testified that Toppins had asked Burt to quit on two occasions In
view of the ensuing discussion , it is unnecessary to determine whether Toppms asked
Burt to quit once or twice.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The refusal to recognize and bargain with the Union
a. The appropriate unit
There is no real issue concerning the appropriate unit. The Respondent in its
correspondence with the Union and with the Board's Regional Office and in speeches
to the employees had suggested that the Union might wish to enlarge the appro-
priate unit to include Valley Leasing However, at the hearing Respondent's counsel
explicitly stated that Respondent did not object to the General Counsel's motion
that the allegation as to the appropriate unit set forth in the amended complaint be
deemed to be admitted. Accordingly, I granted the motion.
b. The Union's majority
As of April 27, when the Union informed Respondent that it represented a majority
of the employees of Fox Valley Truck in the appropriate unit, and requested bargain-
ing, the unit consisted of 17 employees and Burt who had been discriminatorily dis-
charged. Thirteen employees had signed cards designating the Union as their
representative for the purposes of collective bargaining, a fact of which Toppins
was admittedly aware as early as April 24.
c. Respondent's lack of a good-faith doubt as to the Union's majority
Respondent defends its refusal to bargain with the Union on the ground that one
employee had told Toppins that he had signed only to go along with the majority
and that other employees said that they thought that they were merely asking for
an election . I have heretofore discredited Toppins' testimony that when he showed
the demand letter to the employees, they disassociated themselves from it. Although
the employees called by Respondent testified that Schlieve told them that one of
the purposes of signing the cards was to get an election, none of them stated that
Schlieve had told them that this was the only purpose of the cards. In short, there
is no evidence whatsoever that the union officials misrepresented the effect of the
membership cards. To the contrary, of the nine employees called as witnesses by
the Respondent, four: Kelly, Deinert, Thompson, and Boehme, testified that they
paid their initiation fees and knew that they were joining the Union. The others
testified that they read the cards before signing.39 Furthermore, the fact that a
steward and a bargaining committee were elected and the demand letter was dis-
cussed at the meeting when the cards were signed obviously negate the concept of
signing only to get an election. It is well settled that where the cards signed by
the employees designate the Union as their bargaining representative, such designa-
tion is considered valid unless there is proof of fraud or misrepresentation to the
effect that the employees were told that the only purpose of the cards is to get an
election. S. N. C. Manufacturing Co, Inc, 147 NLRB 809; Peterson Brothers, Inc,
144 NLRB 679, 681-682; Gary Steel Products Corporation, 144 NLRB 1160;
Cumberland Shoe Corporation, 144 NLRB 1268, 1269; Harold W. Koehler, et al.,
a Partnership d/b/a Koehler's Wholesale Restaurant Supply, 139 NLRB 945, 947.
Compare Englewood Lumber Company, 130 NLRB 394.
In the light of the foregoing, it is obvious that Respondent did not have a good-
faith doubt as to the Union's majority when it received the demand letter. More-
over, Respondent's conduct after learning of the Union's organizational campaign
demonstrates the absence of a good-faith doubt. Thus, Attorney Van Susteren, in
response to the Union's demand for bargaining, stated that he was busy preparing
for a trial and was inexperienced in labor law and needed some time. Although
he promised to write the Union "either at the end of this week or the earlier part of
next week," he did not respond until June 16, some 6 weeks later, after the Union
in the interim had written two letters to the Respondent and to Van Susteren.
Respondent offered no explanation for this inordinate delay. It is unnecessary to
decide whether, as the General Counsel contends, Respondent sought the delay for
the express purpose of undermining the Union or whether its attorney was not in a
position to meet with the Union. What is significant is that the Respondent waited
for a long time and utilized the intervening period to attempt to dissipate the Union's
10 As previously noted the employees signed two cards: One was entitled "application
for membership" in which the signer applied for admission to membership in the Union
and designated the Union as his representative for the purposes of collective bargaining ;
the other was entitled "application for membership " and "checkoff authorization and
assignment" which repeated the application and designation of the other cards and, in
addition, authorized the Employer to ded•ict initiation fees and membership dues from
his wages.
FOX VALLEY TRUCK SERVICE , INC., ETC. 741
majority by the unfair labor practices found above. Movie Star, Inc., et al , 145
NLRB 319, 343. And when Respondent finally answered the Union's demand, it
challenged the Union's statement that it represented a majority and insisted on an
election.
In sum, I find and conclude that the Union represented a majority of the employees
of Fox Valley Truck in the appropriate unit described above on and after April 27
when Respondent received the Union's demand letter, that the Respondent
refused to bargain with the Union in violation of Section 8(a)(5) of the Act, and
that at no time did the Respondent have any good-faith doubt as to the Union's
majority. Inasmuch as the Union was then the bargaining representative of the
employees, the conduct of the Respondent in announcing a forthcoming wage
increase on April 27 and June 16, in granting a wage increase on July 1, and in
encouraging and assisting the employees to withdraw from the Union and to form
their own committee was in derogation of its duty to bargain with the Union as
the duly designated representative of the employees and therefore constituted addi-
tional violations of Section 8(a) (5) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Fox Valley Truck and Toppins set forth in section IV, above,
occurring in connection with the business operations of Fox Valley Truck set forth
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 thereof.
VI THE REMEDY
Having found that Fox Valley Truck has engaged in unfair labor practices within
the meaning of Section 8(a)(1), (3), and (5) of the Act, I shall recommend that
it cease and desist therefiom and that it take certain affirmative action designed to
effectuate the policies of the Act 40
Since I have found that Fox Valley Truck discharged Lyle Burt because of his
activity on behalf of the Union, I shall recommend that Fox Valley Truck be
required to offer him immediate and full reinstatement to his former or substan-
tially equivalent position, without prejudice to his seniority or other rights, dismissing
if necessary any employee hired after his layoff. Fox Valley Truck should also be
required to make him whole for any loss of earnings he may have suffered because
of the discrimination against him, with backpay computed in the customary man-
ner.41 I shall further recommend that the Board order Fox Valley Truck to
preserve and, on request, make available to the Board or its agents, payroll and
other records to facilitate the computation of the backpay due and the right of
employment. I shall also recommend that Fox Valley Truck be ordered to bargain
collectively with the Union, upon request.
As the unfair labor practices committed by Fox Valley Truck are of a character
striking at the root of employee rights safeguarded by the Act, I shall recommend
that it cease and desist from infringing in any manner upon the rights guaranteed
in Section 7 of the Act.
The General Counsel requests that the order include a specific provision requiring
Fox Valley Truck and Toppins to bargain before transferring employees out of the
unit. The General Counsel requests such a provision because of "Respondent's
announced intentions to transfer employees and its denial of any obligation to
bargain with the Union concerning this matter, even if the Union did represent a
majority of the employees " The General Counsel also asks that Valley Leasing
be included as a respondent in the order because of the possibility that the transfer
will already have occurred when this Decision is issued and the fact that Fox
Valley Truck and Valley Leasing are a single employer (in Appleton, Wisconsin)
for the purposes of collective bargaining
The requests must be rejected because they are inappropriate. In the first place,
as I have pointed out above, I do not construe Toppins' contemplated building of a
new plant for the operations of Valley Leasing and the possible transfer of some of
the mechanics to the Valley Leasing payroll as a threat . Rather, it was advanced
by Attorney Van Susteren as the basis of a suggestion that the Union consider
enlarging the appropriate unit to include Valley Leasing. Second, at this time the
40 Inasmuch as the order will run against Fox Valley Truck and its officers , agents,
successors , and assigns , it would be surplusage to have the order also run against John
Toppins specifically.
41 F. W. Woolworth Co., 90 NLRB 289; Iss8 Plumbing & Heating Co ., 138 NLRB 716.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
possibility of such action is still speculative. I note that in Attorney Van Susteren's
letter to the Union on June 16, he indicated that Toppins contemplated building the
new plant "within the next 12 months " As of the date of the hearing, Toppins had
taken no action in this regard. And presumably if Toppins had, since the hearing,
completed the building and transferred some of the employees to Valley Leasing,
General Counsel would have moved to reopen the hearing to adduce these facts.
In view of the interlocking directors and officers of Fox Valley Truck and Valley
Leasing, there is ample authority for including Valley Leasing in the order if a
transfer had in fact occurred See, e.g., International Powder Metallurgy Company,
Inc., 134 NLRB 1605, 1607-1608 But that is not the situation before us. Accord-
ingly, I conclude that it would be inappropriate to have the order run against
Valley Leasing.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and conclusions of law and upon
the entire record in the case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, I recommend that the Respondent, Fox Valley Truck
Service, Inc., its officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Discouraging membership in General Drivers and Helpers Union, Local 563,
affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or in any other labor organization of its employees,
by discharging or in any other manner discriminating against employees in regard
to hire and tenure of employment or any term or condition of employment, except
as permitted by the proviso of Section 8(a)(3)
(b) Threatening employees with discriminatory action or loss of benefits by
reason of their selecting General Drivers and Helpers Union, Local 563, affiliated
with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization of its employees, as their bar-
gaining representative.
(c) Interrogating employees concerning their or other employees' membership in,
or activities on behalf of, General Drivers and Helpers Union, Local 563, affiliated
with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization of its employees, in a manner
constituting interference, restraint, or coercion within the meaning of Section
8(a)(1) of the Act.
(d) Threatening to go out of business if a majority of the employees select General
Drivers and Helpers Union, Local 563, affiliated with the International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other
labor organization of its employees, to represent them.
(e) Promising and/or unilaterally granting wage increases in violation of Section
8(a)(1) of the Act.
(f) Soliciting employees to withdraw their designations of or membership in
General Drivers and Helpers Union, Local 563, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or
any other labor organization of its employees, and/or assisting them in doing so
(g) Encouraging and/or assisting employees to form their own bargaining
committee.
(h) Refusing, upon request, to bargain collectively with General Drivers and
Helpers Union, Local 563, affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative
of all employees in the following appropriate unit:
All employees of Fox Valley Truck Service, Inc, Appleton, Wisconsin, excluding
parts department, stockroom, and office clerical employees, guards, professional,
managerial, and sales employees, and supervisors as defined in the Act
(i) In any other manner interfering with. restraining, or coercing its employees
in the exercise of their right to self-organization, to form, join, or assist any labor
organization, to bargain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any and all such activities,
except to the extent that such right is affected by the proviso of Section 8(a)(3)
of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Offer to Lyle Burt immediate and full reinstatement to his former or sub-
stantially equivalent position, without prejudice to his seniority or other rights and
privileges, dismissing if necessary any employees hired subsequent to his discharge,
FOX VALLEY TRUCK SERVICE, INC., ETC . 743
and to make him whole for any loss he may have suffered as a result of the dis-
crimination against him in the manner set forth in the section of the Decision entitled
"The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary for the deter-
mination of the amount of backpay due.
(c) Notify the above-named employee if presently serving in the Armed Forces
of the United States of his right to full reinstatement upon application in accordance
with the Selective Service Act and the Universal Military Training and Service Act
of 1948, as amended, after discharge from the Armed Forces.
(d) Upon request, bargain collectively with General Drivers and Helpers Union,
Local 563, affiliated with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America, as the exclusive representative of the
employees in the appropriate unit with respect to rates of pay, wages, hours of
employment, and other conditions of employment, and, if an understanding is
reached, embody such understanding in a signed agreement.
(e) Post at the plant of Fox Valley Truck Service, Inc., in Appleton, Wisconsin,
copies of the attached notice marked "Appendix." 42 Copies of such notice, to be
furnished by the Regional Director for Region 30, shall, after being duly signed by
an authorized representative of Fox Valley Truck Service, Inc., be posted by said
Respondent immediately upon receipt thereof, and be maintained by it for a period
of 60 consecutive days thereafter„ in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall be taken by
said Respondents to insure that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director, in writing, within 20 days from the date of the
receipt of this Decision, what steps the said Fox Valley Truck Service, Inc., and
John Toppins have taken to comply herewith.43
" If 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. If the Board's Order is enforced by a decree of a United States Court of Appeals,
the notice shall be further amended by the substitution of the words "a Decree of the
United States Court of Appeals, Enforcing an Order" for the words "a Decision and Order "
41 If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 30, in writing, within 10 days from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in General Drivers and Helpers Union,
Local 563, affiliated with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or in any other labor oiganiza-
tion of our employees, by discharging or in any other manner discriminating
against employees in regard to hire and tenure of employment or any term or
condition of employment, except as permitted by a proviso of Section 8(a)(3)
of the Act.
WE WILL NOT threaten employees with discriminatory action or loss of
benefits by reason of their selecting General Drivers and Helpers Union. Local
563, affiliated with the International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, or any other labor organization of our
employees, as their bargaining representative.
WE WILL NOT interrogate employees concerning their or other employees'
membership in, or activities on behalf of, General Drivers and Helpers Union,
Local 563, affiliated with the International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America, or any labor organization of
our employees, in a manner constituting interference, restraint, or coercion
within the meaning of Section 8(a)(1) of the Act.
WE WILL NOT threaten to go out of business if a majority of the employees
select General Drivers and Helpers Union, Local 563, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, or any other labor organization of our employees, to represent them.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT promise or unilaterally grant wage increases in violation of
Section 8(a) (1) of the Act.
WE WILL NOT solicit employees to withdraw their designation of or member-
ship in General Drivers and Helpers Union, Local 563, affiliated with the Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization of our employees, or assist them
in doing so.
WE WILL NOT encourage or assist employees to form their own bargaining
committee.
WE WILL NOT refuse, upon request, to bargain collectively with General
Drivers and Helpers Union, Local 563, affiliated with the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of all employees in the following appropriate unit:
All employees of Fox Valley Truck Service, Inc., excluding parts depart-
ment, stockroom, and office clerical employees, guards, professional, man-
agerial , and sales employees, and supervisors as defined in the Act.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form a labor
organization, to join or assist any labor organization, to bargain collectively
through representatives of their own choosing, and to engage in other concerted
.activities for the purpose of collective bargaining or other mutual aid or protec-
tion, or to refrain from any and all such activities, except to the extent that
,such right is affected by the proviso of Section 8(a)(3) of the Act.
WE WILL offer to Lyle Burt immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or other
rights and privileges, dismissing if necessary any employees hired subsequent to
his discharge, and make him whole for any loss he may have suffered as a result
of the discrimination against him.
WE WILL, upon request, bargain collectively with General Drivers and Help-
ers Union, Local 563, affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of America, as the exclusive repre-
sentative of the employees in the appropriate unit with respect to rates of pay,
wages, hours of employment, and other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed agreement.
All our employees are free to become or remain, or to refrain from becoming or
remaining , members of the above-named Union or any other labor organization.
Fox VALLEY TRUCK SERVICE, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
NoTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended, after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board's Regional Office, 744 North
Fourth Street, Milwaukee, Wisconsin, Telephone No. 272-8600, Extension 3860,
if they have any questions concerning this notice or compliance with its provisions.
American Newspaper Guild, AFL-CIO, and Youngstown News-
paper Guild No. 11 , American Newspaper Guild , AFL-CIO and
Youngstown Arc Engraving Co. Case No. 8-CC-223. June 29,
1965
DECISION AND ORDER
On February 5, 1965, Trial Examiner Stanley N. Ohlbaum issued
his Decision in the above-entitled proceeding, finding that the
153 NLRB No. 73.