Great Southwest Warehouses, Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1970

183 N.L.R.B. 645 (N.L.R.B. 1970)

GREAT SOUTHWEST WAREHOUSES, INC.
Great Southwest Warehouses , Inc. and General
Drivers, Warehousemen and Helpers , Local Union
745, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of Amer-
ica. Cases 16-CA-3794 and 16-RC-5277.
June 19, 1970
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
By MEMBERS MCCULLOCH, BROWN , AND JENKINS
On April 3, 1970, Trial Examiner William J.
Brown issued his Decision in the above -entitled
proceeding , finding that Respondent had engaged
in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner 's Decision. He
further found that certain conduct of the Respon-
dent had interfered with the election held on Oc-
tober 31 , 1969, in Case 16-RC-5277 , and recom-
mended that the election be set aside and a second
election held . Thereafter , the Respondent filed ex-
ceptions to the Trial Examiner 's Decision with a
supporting brief, and the Charging Party filed an
answering 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 these cases to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed . The Board has considered the
Trial Examiner's Decision , the exceptions and
briefs , and the entire record in these cases, and
hereby adopts the findings , conclusions , and recom-
mendations of the Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
orders that Respondent, Great Southwest
Warehouses, Inc., Dallas, Texas, its officers , agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended
Order.'
IT IS FURTHER ORDERED that the election held on
October 31, 1969, among the employees in the
designated unit at Great Southwest Warehouses,
645
Inc., Dallas, Texas, be, and it hereby is, set aside,
and that said case be, and it hereby is, remanded to
the Regional Director for Region 16 to conduct a
new election when he deems that circumstances
permit the free choice of a bargaining representa-
tive.
[Text of -Direction of Second Election3 omitted
from publication.]
' Respondent 's exceptions are directed to the credibility resolutions of
the Trial Examiner and are without merit The Board will not overrule the
Trial Examiner 's resolutions as to credibility unless a clear preponderance
of all relevant evidence convinces us that they are incorrect On the entire
record, such a conclusion is not warranted herein Standard Dn Wall
Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3)
Y Modify paragraph 2(a) of the Recommended Order to read as follows
"Offer to John S Wilson immediate and full reinstatement to his former
job or, if that job no longer exists, to a substantially equivalent position,
without prejudice to his seniority or other rights and privileges previously
enjoyed, and make him whole for any loss of pay he may have suffered as a
result of the discrimination against him, in the manner set forth in the sec-
tion herein entitled'The Remedy "'
Modify the second indented paragraph of the notice to read as follows
WE WILL offer to John S Wilson immediate and full reinstatement
to his former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or other rights
and privileges previously enjoyed, and make him whole for any loss of
pay he may have suffered as a result of the discrimination against him
in order to assure that all eligible voters may have the opportunity to be
informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them Excelsior Un-
derk ear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S
759 Accordingly, it is hereby directed that an election eligibility list, con-
taining the names and addresses of all the eligible voters, must be filed by
the Employer with the Regional Director for Region 16 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 extension of time to file this list shall be granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall be grounds for setting aside the election
whenever proper objections are filed
TRIAL EXAMINER 'S DECISION
and
REPORT ON OBJECTIONS TO ELECTION
WILLIAM J. BROWN, • Trial Examiner: This con-
solidated proceeding under Sections 9 and 10 of
the National Labor Relations Act, as amended,
hereinafter referred to as the Act, came on to be
heard at Fort Worth, Texas, on February 4, 1970,
before the Trial Examiner. The petijion in Case
16-RC-5277 had been filed by General Drivers,
Warehousemen and Helpers, Local Union 745, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Charging
Party-Petitioner,' on or about August 20, 1969,2 a
stipulation for certification upon consent election
approved September 12, and an election in Case
Hereinafter sometimes referred to as the Union
Dates hereinafter, unless otherwise indicated , relate to the calendar
year 1969
183 NLRB No. 75
646 DECISIONS OF NATIONAL
16-RC-5277 conducted on October 3 On
November 5, the Union filed objections to conduct
affecting the results of the election and on the same
day filed the original charge of unfair labor prac-
tices herein, both filings relating to the alleged dis-
criminatory discharge on October 10 of employee
John S. Wilson, hereinafter referred to as Wilson."
The complaint herein, issued December 24, alleged
that the discharge of Wilson constituted an unfair
labor practice within the scope of Section 8(a)(1)
of the Act and consolidated the complaint and
representation cases for purposes of hearing. The
representation case also includes an objection to
conduct affecting the results of the election based
on the Company's preelection posting on a com-
pany bulletin board of a copy of the Company's
letter to Wilson, dated October 10, informing him
of his discharge.
At the hearing the parties appeared and par-
ticipated as noted above with full opportunity to
present evidence and argument on the issues. Sub-
sequent to the close of the hearing all parties filed
written briefs which have been fully considered. On
the entire record herein and on the basis of my ob-
servation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The pleadings and evidence indicate and I find
that the Company is a corporation organized and
existing under and by virtue of the laws of the State
of Texas and engaged at its facility in Dallas in the
business of warehousing and storage of household
goods and general merchandise. During the calen-
dar year preceding issuance of the complaint
herein, the Company derived gross revenue exceed-
ing $50,000 from storage and handling of goods
transported to its Dallas warehouse directly from
points outside the State of Texas. Although the
Company's answer to the complaint has denied that
it is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act, I find,
as the Company has conceded in its stipulation
respecting the election, that it is such an employer
and that assertion of Board jurisdiction is war-
ranted.
II. THE LABOR ORGANIZATION INVOLVED
The pleadings and evidence establish and I find
that the Union is a labor organization within the
purview of Section 2(5) of the Act.
' Results of the election were as follows Approximate number of eligible
voters, 30, votes cast for the Union, 10, votes cast against the Union, 15,
and challenged ballots, 3.
' Additional objections to the election were withdrawn prior to the bear-
mg.
' The original charge herein also alleged the discriminatory layoff of Mrs
Wilson , an allegation not contained in the amended charge on which the
complaint herein issued. 11.
LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES AND THE
OBJECTIONS TO CONDUCT AFFECTING THE RESULTS OF
THE ELECTION
The Company's operations-transportation,
packing, and storage-have been carried on for at
least 10 years. The work force at material times
numbered about 35 and worked under the supervi-
sion of Company Vice President Harold T. Cook
and Dispatcher Wendell Fisk, each of whom is a su-
pervisor within the meaning of Section 2(11) of the
Act.
Wilson commenced working for the Company in
February 1960 as a leased operator using his own
equipment, receiving a percentage of company
revenue from his efforts,' and paying his own
operating expenses. This arrangement continued
until March 12, 1969, when Wilson, tired of driv-
ing, quit and ran his own nursery for a time until
Fisk asked him and his wife to return to work for
the Company as a man and wife packing team, an
offer which they accepted, and were paid starting
May 27 at hourly rates of $2.05, respectively, until
his wife's layoff on September 205 and Wilson's
transfer to.driving and helping6 where he remained
until his termination on October 10.
Sometime about the middle of March? a dozen of
the older company employees came to Wilson and
asked him to start efforts to secure union represen-
tation. About August 1 Wilson communicated with
the Union and thereafter secured signed authoriza-
tion cards from three employees and urged others
to attend union meetings. On August 19 the Union
wrote the Company claiming majority status in a
unit numbering 35 employees (G.C. Exh. 2), all of
whom according to the undenied testimony of Wil-
son attended the first union meeting and signed
"slips."8
On October 10 Wilson was assigned to unloading
work and finished about 5 o'clock. He punched out
and was called to the office by Fisk where he was
given his letter of discharge signed by Cook and
terminating him for threatening and intimidating
employees. Wilson read it and said that he un-
derstood it. He apparently made no protest at the
time. Shortly thereafter, and prior to the election, a
copy of the discharge letter was posted on the com-
pany bulletin board. The letter states that Wilson
was discharged for threatening other employees
with loss of their jobs if they did not join the Union
and for trying to force employees to join the Union
in order to work for the Company. It also states
that any employee may engage in lawful union ac-
tivity but not in threats and intimidation.
Wilson received a $2 40 rate for driving and, presumably , a somewhat
lower rate as a helper
' Since Wilson quit his leased operation setup on March 12 it is not clear
whether he was a leased operator or operating his nursery at the time of the
inception of self-organization among company employees
' It is not clear whether these were authorization cards or mere at-
tendance slips.
GREAT SOUTHWEST WAREHOUSES, INC. 647
Johnnie Davis, Sr., a warehouse packer and
crater with 23 years' service with the Company,
testified that in the period prior to the election Wil-
son told him on three different occasions that if he
did not join the Union he would have no job and
that his new pickup could be splashed with paint.
He testified that he reported these threats to Fisk.
He also testified that the threats brought on ner-
vousness and an ulcer for which he consulted a
physician.
Mrs. Evelyn Jane McKim, a driver-packer whose
husband had left her and their four children during
the union campaign, testified that a week before his
discharge, Wilson, who had asked her twice to sign
for the Union and who knew of her husband's de-
fection, asked her why she had failed to attend a
union meeting and, when she indicated her lack of
interest in the Union, told her that the Union was
coming in to the Company, no one would work
with her, and the Company would be forced to
release her. She testified that she reported this
threat to Fisk.
Jerry Thomas, who had told Wilson of his opposi-
tion to the Union, testified that 3 weeks before his
discharge Wilson told him at work that if he did not
vote for the Union the union members would sit
down when he came to work and make things so
hard for him that he would have to quit. He
testified that he reported the latter conversation to
Fisk.
Wilson generally denied threatening anyone and
specifically denied the charges of Davis and
McKim. I credit Wilson in his denials. His
demeanor on the stand impressed me not only as
that of a truthful witness but as one whose
character would be totally inconsistent with the ac-
cusations leveled against him by the company wit-
nesses . I do not believe their accounts of threats; to
the contrary I credit his denials of impropriety in
his solicitations for the Union.
There is no doubt that Wilson was the prime
mover in bringing the union organizational effort
into the warehouse and that he thereafter engaged
in efforts to secure employee support for the
Union. Neither can it be doubted that he thereafter
solicited some employees to sign up for the Union
and presented to others arguments in favor of union
representation. Since he was discharged for alleged
improprieties in his efforts on behalf of the union
campaign and since , as I believe and find, he did
not in fact engage in such improprieties, his
discharge constituted an unfair labor practice
within the scope of Section 8(a)(1) of the Act.
N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21.
The discharge and the posting of the notice thereof
also constitute cause for setting aside the election
conducted herein. The National Heating Company,
167 NLRB 534.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section
III, above, and there found to constitute unfair
labor practices , occurring in connection with the
Company's operations set forth in section I, above,
have a close , intimate , and substantial relationship
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.
V. THE REMEDY
In view of the findings set forth above to the ef-
fect that the Company has engaged in unfair labor
practices affecting commerce it will be recom-
mended that it be required to cease and desist from
such unfair labor practices and from like or related
unfair labor practices, and to take such affirmative
action, including the offer of reinstatement with
backpay9 to John S. Wilson and the posting of ap-
propriate notices, as will effectuate the policies of
the Act. It will be recommended that the election
heretofore conducted in Case 16-RC-5277 be set
aside, severed, and remanded to the Regional
Director for the conduct of a new election at such
time as, in his judgment, the effects of the Com-
pany's unfair labor practices and interference with
the conduct of the election of October 31 have
been dissipated.
On the basis of the foregoing findings of fact and
upon the entire record in this consolidated case, I
make the following:
CONCLUSIONS OF LAW
1. The Company is an employer engaged in com-
merce within the meanniing of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging employee John S. Wilson on
the basis of participation in unlawful threats in the
course of concerted activities whereas in fact no
such unlawful threats were committed, the Com-
pany has engaged in unfair labor practices within
the scope of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and
(7) of the Act.
5. The unlawful discharge of John S. Wilson and
the posting of notice thereof constituted inter-
ference with the election held herein and the elec-
tion should be set aside and a new election con-
ducted herein as above indicated.
9 Backpay shall be computed in accordance with the remedial relief prin-
ciples of F W Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co , 138 NLRB 716
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in
this case, it is recommended that Great Southwest
Warehouses, Inc., its officers, agents, successors,
and assigns , shall:
1. Cease and desist from:
(a) Discharging or otherwise disciplining em-
ployees because of their participation in activities
protected by Section 7 of the Act.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of rights guaranteed under the Act.
2. Take the following affirmative action which
appears necessary and appropriate to effectuate the
policies of the Act:
(a) Offer John S. Wilson immediate and full
reinstatement to his former or a substantially
equivalent position and make him whole for loss of
earnings as provided above in the section 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, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its warehouse at Dallas, Texas, copies
of the attached notice marked "Appendix."10 Co-
pies of said notice, on forms provided by the Re-
gional Director for Region 16, after being duly
signed by an authorized representative, shall be
posted by the Company immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to 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.
(d) Notify said Regional Director, in writing,
within 20 11 days from the receipt of this Decision,
what steps have been taken to comply herewith.
IT IS FURTHER RECOMMENDED that the election
conducted herein on October 31 be set aside and
that proceedings in Case 16-RC-5277 be re-
manded to the Regional Director for the conduct-
ing of a new election at such time as in his
judgment circumstances will permit the free choice
of employees respecting a collective-bargaining
representative.
10 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, recommendations , and Recommended Order herein
shall, as provided in Section 102 48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions , and order, and
all objections thereto shall be deemed waived for all purposes In the event
that the Board 's Order is enforced by a Judgment of a United States Court
of Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board " shall be changed to read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
11 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 16 , in writing , within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discharge or in any way dis-
criminate against employees because of their
peaceful participation in organizational activi-
ties on behalf of General Drivers,
Warehousemen and Helpers, Local 745, Inter-
national Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
or any other labor organization.
WE WILL offer John S. Wilson immediate
and full reinstatement to his former or a sub-
stantially equivalent position and make him
whole for lost wages by paying him backpay
with interest.
All our employees are free to join or assist
General Drivers, Warehousemen and Helpers,
Local 745, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, or any other labor organization of their own
choosing.
GREAT SOUTHWEST
WAREHOUSES, INC.
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, Room 8A24, Federal Office Build-
ing, 819 Taylor Street, Fort Worth, Texas 76102,
Telephone 817-334-2921.