Groendyke Transport, Inc.

National Labor Relations Board - Board Decisions

Jun 12, 1973

204 N.L.R.B. 96 (N.L.R.B. 1973)

96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Groendyke Transport , Inc. and Ann Myers Bell d/b/a
Bell Transport Company and Southern Conference
of Teamsters, affiliated with International Brother-
hood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America . Cases 16-CA-4886, 16-
CA-4943, and 16-RC-5991
June 12, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On February 26, 1973, Administrative Law Judge
Paul E. Weil issued the attached Decision in this pro-
ceeding . Thereafter, Respondent and Charging Party
filed exceptions and supporting briefs. Counsel for the
General Counsel filed an answering brief to
Respondent's exceptions.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge 1 and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Groendyke Transport, Inc.,
and Ann Myers Bell d/b/a Bell Transport Company,
Longview, Texas, its officers, agents successors, and
assigns , shall take the action set forth in the said rec-
ommended Order.
IT IS FURTHER ORDERED that the election in Case 16-
RC-5991 be, and it hereby is, set aside and the peti-
tion therein is herewith dismissed.
1 In the absence of exceptions the Board adopts, pro forma, the conclusions
of the Administrative Law Judge sustaining the challenges to the ballots of
Curtis Craig, Raymond Lilly, and Carl Wilhite, and dismissing the 8(a)(3)
and (1) allegations based on the discharge of Charles Storch.
DECISION
PAUL E. WEIL, Administrative Law Judge: The Southern
Conference of Teamsters, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, herein the Union, on April 14 1 filed a
petition with the Regional Director for Region 16 of the
National Labor Relations Board, hereinafter called the
Board, seeking an election among certain employees of Bell
Transport Company located at Longview, Texas. The Re-
gional Director caused a hearing to be conducted on the
petition on May 26 and on June 14 issued a Decision and
Direction of Election which was conducted on July 16.
Twenty-six employees voted for the Union, 26 employees
voted against the Union, four ballots were challenged and,
within a few days, both the Union and the Employer filed
objections to the election. On August 10, the Union filed a
charge with the Regional Director, alleging that Groendyke
Transport, Inc. and Ann Myers Bell d/b/a Bell Transport
Company, hereinafter called Respondent, violated Section
8(a)(3) and (1) of the Act by the discharge of an employee,
Storch, on May 24, and another employee, Statler, on July
25. On August 29 the charge was amended dropping the
allegations with regard to Statler and adding an allegation
that Respondent altered the job status of employee Silver-
tooth for discriminatory reasons and an allegation of refusal
to bargain in violation of Section 8(a)(5) of the Act. On
September 19, the Regional Director issued a Supplemental
Decision in the representation case setting forth the fact that
objections were filed and attaching them, and that ballots
were challenged and ordering a hearing to investigate both
objections and challenges.
On September 28, the Union filed a second charge (Case
16-CA-4943) alleging the discriminatory discharge of em-
ployees Alsip and Maass and on the following day the Re-
gional Director issued an order consolidating the original
charge with the representation case and alleging discrimina-
tion by Respondent in the discharge of Storch and the al-
leged demotion of Silvertooth as well as various allegations
of interference, restraint and coercion by the terminal man-
ager, Gail Anderson. On October 19 the Regional Director
issued a second order consolidating cases, this time consoli-
dating Case 16-CA-4943 with the representation case and
with Case 16-CA-4886, and added an allegation that Re-
spondent discharged Roy Alsip in violation of the Act. By
its duly filed answer, Respondent denied the commission of
any unfair labor practices. The matter came on for hearing
before me at Tyler, Texas, on November 7 and 8. On No-
vember 9, because of the absence of a witness deemed essen-
tial by the General Counsel, the matter was continued until
December 6 to be resumed at Longview, Texas, the site of
Respondent's terminal. The hearing concluded on Decem-
ber 7.
All parties were present and represented by counsel at the
hearing. All parties had an opportunity to call and adduce
relevant and material evidence with regard to the allega-
tions in the complaint, the challenges, and the objections.
All parties waived oral argument at the close of the hearing.
Briefs have been received from the General Counsel, the
Charging Party and Respondent.
All dates hereinafter are in the year 1972 unless otherwise specified.
204 NLRB No. 27
BELL TRANSPORT COMPANY 97
The Issues
A basic issue in the entire proceeding is whether the Em-
ployer has a duty to bargain with the Union. There are
sufficient challenges to determine the election. If, after con-
sideration of the challenges and the opening of such ballots,
such determination should indicate the majority of ballots
have been cast for the Union, the Employer's objections
must be considered. If the Employer's objections are over-
ruled, the Union will be certified which disposes of the issue.
On the other hand if the Union does not win as a result of
the determination of the challenges, the Union's objections
must be considered. If they are found to have merit the
election will be set aside. At this point the General Counsel
argues that the unfair labor practices allegedly committed
by Respondent are of such nature that under the decision
of the United States Supreme Court in the Gissel case 2 a
bargaining order should issue. To this end the General
Counsel introduced evidence that the Union represented a
majority of the employees at the time it first sought recogni-
tion from Respondent.
Finally, no matter what determination results in the rep-
resentation case, the alleged unfair labor practices must be
considered. These allegations include allegations of threats
and interrogation by Gail Anderson, the Longview terminal
manager for Respondent, whether Charles Storch and Roy
Alsip were discharged because of their union activities and
whether R. B. Silvertooth was demoted from the position of
first driver to that of second driver and, if such demotion
occurred, whether it was discriminatory within the meaning
of Section 8(a)(1) and (3) of the Act.
On the record as a whole and in contemplation of the
briefs I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is a business association doing business as a
carrier in interstate commerce among the several states of
the United States with a terminal located at Longview, Tex-
as, which is the site of the matters raised in the instant case.
In the operation of its business Respondent performs serv-
ices in states of the United States other than the State of
Texas valued in excess of $50,000 annually and operates as
a conduit in interstate commerce.
Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE CHALLENGES
As set forth above, the election resulted in 26 votes being
cast for the Union, 26 votes being cast against representa-
tion by the Union and 4 challenged ballots. The four ballots
challenged were those of Curtis Craig, Raymond Lilly, Carl
Wilhite, and Roy Alsip.
Curtis Craig was employed until June 20, 1972, as a dis-
patcher at Groendyke's 3 Channelview, Texas, terminal. On
May 31, a memorandum was addressed to Craig by Alvin
L. Hamilton, a Groendyke vice president, stating "In line
with our conversation, it is agreeable for you to transfer
from Houston to Longview as the dispatcher effective as of
this date. Salary will be $850 per month. Your moving ex-
penses will be paid." Craig testified that he was on the
Channelview payroll through the pay period ending May
31, and that he remained in Channelview until June 14
because of the absence there of the terminal manager whose
place he was taking, but that he considered himself an em-
ployee at the Longview terminal from May 31.
The Regional Director's Decision and Direction of Elec-
tion dated June 14 provided that the eligibility date should
be the payroll period last preceding the Decision and Direc-
tion of Election. The evidence reveals that Respondent's
payroll periods extend from the 1st through the 15th and the
16th through the end of the month. Accordingly, the eligibil-
ity date would be the payroll period ending May 31. The
Excelsior list furnished by the Employer did contain the
name of Curtis Craig but also contained the name of Vertus
Brightwell as dispatcher. The Board's longstanding rule is
that an employee slated for transfer into a proposed unit is
eligible to vote if in fact he is transferred to and performing
the duties of the unit during the determinative payroll peri-
od. It is clear that Craig did not perform any duties in the
unit until after June 14. Accordingly, he was not a member
of the unit during the determinative payroll period and the
challenge to his ballot must be sustained.4
Raymond Lilly and Carl Wilhite were drivers at
Respondent's Mt. Pleasant, Texas, terminal. The Mt. Pleas-
ant terminal did not have a dispatcher or manager; most of
the trucks driven by drivers at that terminal were owned by
Lilly and Wilhite and used by the Employer on a lease basis
with payment based on a percentage of the revenue attribut-
able to each truck. Neither Lilly nor Wilhite testified in the
hearing. Longview Terminal Manager Anderson testified
that many of the drivers at the Mt. Pleasant terminal had
been hired on the recommendations of Lilly and Wilhite
and indeed all of the drivers that they have recommended
have been hired other than those who failed to meet the
Department of Transportation physical requirements for
over-the-road drivers. While neither Lilly nor Wilhite had
specific authority or responsibility concerning the move-
ments of loads at the Mt. Pleasant terminal, Anderson testi-
fied that they took this responsibility and saw to it that loads
moved, replacing drivers if necessary by calling out other
drivers to handle the loads.
It is clear that Lilly and Wilhite have the authority to
3 It should be noted that the "Employer" herein is a business association
of Groendyke Transport, Inc, (herein referred to as Groendyke) and Ann
Myers Bell d/b/a Bell Transport Company At the time of all of the actions
undertaken herein Groendyke was operating Respondent under a temporary
authority granted by the ICC Whether that authority still exists or has been
made permanent is not known It appears that Groendyke operated Respon-
dent as part of its system of terminals
United States Rubber Compan 80 NLRB 1039 See also McDonald Print-2 N L R B v Gissel Packing Company, Inc, 395 U S. 575 (1969) ing Company, 81 NLRB 481.
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsibly recommend drivers for hire; it is also clear that
their recommendations with regard to any other terms or
conditions of employment would enjoy practically the same
authority as that of Anderson who is undeniably a supervi-
sor. I find that Lilly and Wilhite are supervisors within the
meaning of the Act and that the challenges to their ballots
should be sustained.
Inasmuch as the names of Lilly and Wilhite appeared on
the Excelsior list and the Union did not object until the
election, Respondent contends that by its inaction the
Union has waived its right to challenge them.' In support
of its argument the Employer states, "in an analogous case,
a union has been held to be guilty of a waiver by inaction
in checking such a list," citing United States Consumer Prod-
ucts, 164 NLRB 1187. I find nothing in the cited case relat-
ing to the issue for which it is cited, nor any discussion of
waiver in that case. The Employer also cited Pyper Construc-
tion Company, 177 NLRB 707, in support of the statement
that "if the employees' names referred to herein had not
appeared on the Excelsior list then these challenges would
have had merit." That case does not deal with a so-called
Escelsior list but rather with a "Norris-Thermador" list 6
which is in effect a stipulation between the parties to an
election resolving, as between themselves, all issues of eligi-
bility prior to an election. The Board will consider such an
agreement only when it is in the form of a written and signed
agreement which expressly provides that the issues of eligi-
bility resolved therein shall be final and binding on the
parties. No such agreement or list appears in the instant
case.?
I see no warrant for accepting Respondent 's argument
that the Excelsior list put the burden on the Union to mount
a challenge raised by the inclusion or exclusion of the names
from the list prior to the election, under pain of being
deemed to have waived such challenge. The Excelsior rule
was adopted to enable all parties to a Board election to
communicate with the eligible voters. The Board has in a
number of cases found that the omission of persons from an
Excelsior list by the employer or the addition of ineligible
employees to the Excelsior list by an employer does not
violate the order under which the list is issued as long as the
omissions or additions are not of such a substantial number
that the list is not fairly representative of the unit. I reject
the Employer's contention that the Union has waived its
rights to challenge the votes of Wilhite and Lilly and I find
that as they are supervisors within the meaning of the Act
the challenges should be sustained.
Roy Alsip was the Union's election observer at the polls.
No evidence was taken at the hearing, all parties agreeing
that there was no issue between them as to the facts behind
the challenge. An affidavit submitted by the Employer with
its objections to the election states that after the election
concluded the election sign was taken down and the observ-
5 Lilly's and Wilhite 's names appear followed simply by the designation
"driver," with no indication of their connection with the Mt. Pleasant termi-
nal
6 Norris-Thermador Corporation, 119 NLRB 1301.
7 It should be noted that in a recent case, Laymon Candy Company, 199
NLRB No 65, the Board sustained a challenge to the ballot of a supervisor
notwithstanding the fact that the parties agreed on a Norris-Thermador list
that the voter was eligible
ers were invited to attend the counting of the ballots. They
did so and the ballots were counted disclosing that 26 em-
ployees had voted for the Union and 26 against and 3 had
voted challenged ballots. At this point Alsip announced that
he had not voted. The Board agent conducting the election
called someone, apparently his superior, and announced
that Alsip would be permitted to vote under challenge. Alsip
cast a ballot which was sealed in an envelope and chal-
lenged by the Board agent. Clearly the secrecy of Alsip's
ballot was not violated.
Whether a voter may be permitted to cast a ballot after
the polls have closed is left to the reasonable discretion of
the Board and its agent conducting the election. In Glauber
Water Works, 112 NLRB 1462, the Board held that ballots
would be counted where the Board agent in charge of the
election , in the exercise of his discretion, reopened the polls
to take the challenged ballots of six employees, five of whom
could not get away from their jobs during the voting period
to vote. However, the Board stated, "We believe it would
have been the better practice if the Board agent had fol-
lowed the rule [not to extend voting periods beyond the time
specified in the notice of the election] in this case ." In N.L.
R.B. v. Wilkening Manufacturing Company B the court found
an abuse of the Board's discretion to refuse to take the late
cast ballot of an employee who appeared within 5 minutes
of the closing of the polls.
In Hanford Sentinel, Inc., d/b/a Hanford Sentinel, 163
NLRB 1004, the Board sustained an objection that the
Board agent declined to take the ballots of two employees
who appeared at the polls immediately after they were
closed. There the Board found that the agent, in the proper
exercise of his discretion, should have permitted the two
employees to cast their ballots.
In Westchester Plastics of Ohio, Inc.,' the Board and the
court approved the action of a Board agent who permitted
an employee who was 1 minute late to cast his ballot. As the
court pointed out in enforcing the Board's decision, in each
of the cases the Board has evaluated the circumstances of
the late voting in order to determine whether the agent
exercised his discretion correctly. The evaluation in each
dealt with: (1) The reason the employee was late; (2) how
late the employee was; (3) how long the voting period was;
and (4) whether the ballot box was opened or the tally
commenced at the arrival of the employee.
Applying the same tests to the instant case no excuse is
given for the failure of the employee to vote within the
voting period. He was present and indeed was the observer
for the Union during the election. The polling period was
apparently adequate; there is no indication that employees
were left waiting to vote when the time period was complet-
ed. The decision of the employee to cast a ballot took place
well after the polls had closed. The polling place had been
dismantled to some extent and the ballot box had been
opened, the ballots counted and apparently the tally com-
pleted at the time he indicated that he wanted to cast his
ballot. While, as the court pointed out in Wilkening Manu-
facturing Company, supra, the Board must give employees an
opportunity to cast their ballots and make known their pref-
8 207 F.2d 98 (C.A. 3, 1953), denying enforcement of 100 NLRB 1201 and
96 NLRB No. 13 (not published).
9 165 NLRB 219, enfd . 401 F.2d 903 (C A 6, 1968).
BELL TRANSPORT COMPANY
erences with regard to union organization , there must be a
limitation within which the Board 's reasonable rules should
be followed. I infer from the cited decisions that when the
ballot box has been opened and the tally concluded, any
employee should thereafter be precluded from the right to
cast his ballot . If an employee has not been able to make
up his mind to vote until he finds out the result of his fellow
employees ' votes , I think he has waited too long . I recom-
mend that the challenge to the ballot of Alsip be sustained.
I have recommended that all four challenges be sus-
tained. Accordingly, the Union has not obtained a majority
of the valid votes counted. Therefore it is not necessary to
consider the objections to the election filed by the Employ-
er/Respondent herein. However, those objections filed by
the Union must be considered.
IV. THE UNION OBJECTIONS
The Union filed objections to the conduct of the election
on the following grounds : ( 1) That all eligible voters were
not permitted to vote their ballots in secret; (2) that the
Employer gave work assignments to employees making it
impossible for them to attend the polls and did not provide
substitute or mailed ballot opportunity; and (3) by the
above and by other acts of interference and coercion, em-
ployees were denied the opportunity to cast their ballots in
accordance with the rights under the Act.
No evidence was adduced by the Union, or by anyone
else for that matter , that any eligible voters were restrained
in any regard in voting their ballots in secret . No evidence
appears that the Employer gave work assignments to em-
ployees which made it impossible for them to vote. There
is no evidence that any employee who wanted to vote did
not succeed in doing so. Accordingly, the first two grounds
for objections set forth above must be dismissed for failure
of the Petitioner to support them with evidence. The third
ground , relating to unspecified acts of interference, restraint
and coercion , has reference , according to the statement of
Petitioner's counsel at the hearing , to the matters alleged as
unfair labor practices in the complaint portion of this case.
As I recited above, the complaint alleges various acts of
interference , restraint and coercion between April 1 and
August 9, the discharges of Storch on May 22, Alsip on
September 23 and the discriminatory demotion of Silver-
tooth on May 29. Only those actions of Respondent be-
tween April 14 when the petition was filed and July 14,
when the election was conducted, would be considered for
the purposes of the objections within the Board's normal
rules. The allegations will be considered in the next section
together with the other unfair labor practice allegations.
V THE ALLEGED UNFAIR LABOR PRACTICES
The organizing campaign was initiated by Roy Alsip, one
of Respondent's drivers, who contacted the Union early in
March and, after holding a meeting, determined that there
was enough interest to warrant an attempt to get authoriza-
tion cards signed . The first cards were signed on March 30
by Alsip and another employee, and thereafter the majority
of the employees signed cards in April and May. Respon-
dent, through its terminal manager , Anderson, became
99
aware of the organizing attempt early in April. Possibly the
first solid information Anderson received was from one of
the drivers, Paul Hyden, who came to Anderson and told
him that the employees were orgamzing.10
Alsip testified that shortly after the first of April, Manag-
er Anderson called him into his office and asked him if he
had heard anything of the rumor of the Union coming into
the Company. Alsip told him it wasn't a rumor anymore and
stated that the organization had commenced. Anderson
asked who the instigator was and Alsip acknowledged that
it was he, to which Anderson answered that Alsip was "a
sorry-" for bringing the Union in; that it would cause him
to lose his job. Anderson was on the witness stand on two
occasions . First he was called by the General Counsel as a
43(B) witness, and later in the proceeding was called by
Respondent as its main witness. On the latter occasion he
denied having any conversation with any employee con-
cerning the Union, and denied making any of the state-
ments attributed to him during the hearing. On
cross-examination he was reminded that when he was testi-
fying under 43(B), he admitted that Hyden had told him
about the union organization whereupon he stated that he
made no answer to Hyden, that all the talking was done by
Hyden. Anderson's testimony throughout was character-
ized by an evasiveness that seriously reduced his credibility.
I credit Alsip's testimony concerning the above incident,
and I further credit the testimony of Alsip that on succeed-
ing occasions when Alsip had mechanical trouble with his
truck, Anderson told him, in essence, that if he hadn't got-
ten involved with the Union, he could expect to be assigned
a new truck. Anderson denied any such statement and de-
nied that Alsip ever had any serious mechanical trouble
with his truck." Alsip testified that he had been assigned
truck No. 3151, an old truck, shortly after the union organi-
zation came to Anderson's attention. Alsip placed this on
March 8 but log analysis records placed in evidence reveal
that until April 13, truck No. 3151 was driven by driver
Silvertooth who thereafter drove No. 3163 and No. 3162.
The record does not disclose what truck Alsip drove prior
to April 13. Respondent, which has the records under its
control, took no steps to controvert Alsip's testimony. Ac-
cordingly I conclude that he had been driving a newer truck
until April 13. Alsip also testified credibly that on occasions
Anderson would "catch" Alsip talking with fellow workers
and Anderson would tell them that if they didn't leave Alsip
alone, they would wind up in trouble, too. Alsip gave no
dates for these conversations. As he could not recall the day
on which any of them occurred, it is not possible to attribute
any of the incidents to any of the allegations in the com-
plaint. Accordingly, I make no finding that these somewhat
ambiguous warnings constitute unfair labor practices.
Employee John Maass, a driver, testified that after the
second organizational meeting which took place early in
April Manager Anderson questioned him whether he had
0 Hyden signed a card on April 2.
i In rebuttal Alsip produced a copy of a bill dated May 9, 1972, for repairs
to his truck by a shop in Memphis, Tennessee, totaling over $ 1,000. It appears
that Respondent was unaware that Alsip had retained a duplicate copy of
the repair bill which he submitted to Respondent . Alsip was then driving
truck No 3151 which is a 1970 model, Peterbuilt truck
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attended the union meeting . Maass answered that he had
done so and Anderson asked who had been there. Maass
answered that Hyden had already told him that he was
giving Anderson the names and therefore Anderson knew
who had been at the meeting . Anderson said that Maass
could get in trouble over the Union and this ended the
conversation . Three or four weeks later , which would have
been around May 1, Anderson came up to Maass who was
talking to Alsip and told him that if he would keep hanging
around with Alsip he would get in trouble . This is apparent
corroboration of Alsip's testimony that Anderson made
such statements to employees with whom Alsip was talking.
I think the statement is too ambiguous to warrant an infer-
ence that Anderson was threatening Maass with relation to
union activities . Accordingly, I find no violation in this.
On the day of the election Maass drove into the terminal
to check in prior to voting . Anderson on this occasion said
"we won 't get those new trucks if the Union is voted in."
This had reference to a rumor that the Longview terminal
was to get several new trucks . Maass testified that before his
termination one new truck had been delivered.
Although Anderson denied the statements attributed to
him by Maass I credit Maass and find that these statements
were made . I further find that at another time before the
election and after the commencement of the organizational
campaign Anderson asked Maass if he hadn' t had trouble
on a job before related to the Union. Maass admitted that
he had and Anderson asked if he had been run off the job.
Maass said no but he had left it . Whereupon Anderson said,
"Well, you could do the same here." The General Counsel
contends that this testimony , which I credit, reveals a viola-
tion by Anderson; I conclude that Anderson was in fact
threatening Maass in violation of Section 8(a)(1) of the Act
that he would have trouble because of the union organiza-
tion.
A hearing was held on the representation petition on May
26. Shortly before that date driver Silvertooth was in the
terminal office and Anderson asked him what he thought
about the Union. Silvertooth gave him an ambiguous an-
swer and Anderson apparently did not follow up his ques-
tioning.
After the election Silvertooth and Anderson were discuss-
ing the fact that the vote had split evenly and that the
election could go either way. Silvertooth somewhat mali-
ciously stated to Anderson that if the Union won Dispatch-
er Craig would probably get Anderson's job , and then
commented that if the Union lost Alsip and Silvertooth
would probably be the first ones to be run off . To this
remark Anderson merely nodded his head . The General
Counsel contends that by nodding his head Anderson in
effect threatened Silvertooth with discharge ; I conclude that
nothing more can be inferred from the incident but that
Anderson was going along with Silvertooth in his "kidding"
about the possible results of the election. I recommend that
the complaint , insofar as this incident is alleged to be a
violation , be dismissed.
Employee Statler testified that some time late in June or
early in July he went into the terminal office to ask for an
advance on his wages . While Anderson was writing a check,
he stated that if the Union came in there would be no more
cash advances , and pointed out to Statler that Statler was
"a poor boy," that he gave him a job and took him in and
treated him like a son, and he hoped that Statler would
remember that when the vote came up. Anderson said that
there would be quite a few people run off because of the
Union.
A few days before the election Anderson met Statler in
the outer office and asked him if he had seen the election
notices ; he also asked Statler who he was voting for. Statler
responded that he did not know. A couple of days later
Statler ran into Anderson in the shop and Anderson ex-
pressed himself as being angry with Alsip. At that time
Anderson said that he had Alsip and Silvertooth running
together, and that they could run up and down the road
together and talk about the Union and that they would be
together when they left. Anderson said he already had run
off Mr. Storch, and J. C. Maass would be next.
On election day after the voting, Statler testified, he was
talking to Craig about a dispatch when Anderson walked up
to him . Statler said "sure is a lot of confusion around here
today." Anderson answered "yeah but it's not going to be
any longer . I've got those kind of suckers where I want them
now." At this point Craig asked Anderson what tractors had
hot water hookups on them and Anderson named them off,
but left off tractor No. 153 which George Joyner, another
union advocate, was driving, Statler reminded him of No.
153 and Anderson answered "yeah he's driving it for the
short time he's going to be here too." 12 1 credit Statler
although Anderson denied all of the above incidents except
that he had given Statler an advance . Statler is no longer
employed by Respondent . Respondent contends that he is
incredible because he was actuated by malice against the
Respondent in his testimony . In support of this assertion
Respondent , on cross-examination of Statler, brought out
that he had come forward with his testimony at the request
of Silvertooth after Statler's discharge ; that Silvertooth had
asked him if he knew of any incidents which would help out
the men on whose behalf charges had been brought and
stated that as a result of the instant case Statler might be
able to get his job back. While it appears from this testimo-
ny that Statler at the time he first spoke to the Board agent
had some interest in the litigation , it no longer appears to
be the fact. On the witness stand Statler' s demeanor was
that of a man telling the truth. The record reveals that
Statler is no friend of Alsip, who at one time refused to drive
with him because he disliked him. I had the impression that
Statler was attempting to tell the truth as he recalled it with
candor . I credit his testimony and I find that the statements
attributed by him to Anderson were made.
The Discharges
The first employee whose discharge is alleged to have
violated the Act is Charles Storch. On May 25, Charles
Storch received a letter written on May 22, at Respondent's
Enid , Oklahoma , office, advising him that he was terminat-
ed as a driver effective May 24 . The letter stated that he was
terminated because he had willfully falsified his logs, on
May 7 and 8. According to Storch's story he was driving
12 The record does not reveal whether Joyner is still employed by Respon-
dent
BELL TRANSPORT COMPANY 101
from West Memphis, Arkansas, to Longview on May 7.
When he arrived at Texarkana, at 5 in the afternoon, he had
trouble with the electrical circuit of his truck. He attempted
to find the source of the trouble without success and then
decided because it was a Sunday evening and there was a
considerable amount of passenger traffic on the road to
remain where he was until morning . Storch testified that he
slept in the back of his truck until 2 o'clock in the morning,
at which time he awakened and decided to try to call the
company office in Longview. When he telephoned he
reached Alsip who was preparing to take a load out. Alsip
advised him that from his description it was not indicated
that his truck would be disabled and he should drive on in.
Accordingly he drove in to Longview without further trou-
ble, arriving at 5 a.m. on May 8. Storch was corroborated
by Alsip who testified that he received a phone call at the
company terminal between 2 and 3 a.m. on May 8 and
consulted with Storch who told him of the trouble he was
having. Alsip advised Storch that it sounded as though the
alternator was bad and that he could drive on in to the
terminal . Alsip did not see Storch again until that afternoon
when Alsip had returned from wherever he was going and
Storch was about to leave on another trap.
John Smith who stated that he is a "safety engineer" for
Respondent testified that his duties include checking vehi-
cles on the road, checking the drivers' logs and checking
equipment . It appears that his job includes driving over the
roads normally used by Respondent 's equipment and mak-
ing observations of the driving of company equipment.
Sometimes Smith stops the equipment and checks the logs;
other times he merely makes reports of the habits of the
drivers as he observes them . His reports are turned in to the
safety director, William Knight. Smith testified that on May
7 he observed the truck and trailer which he later learned
to have been driven by Storch, at 11:30 a.m., while he was
parked in Malvern, Arkansas, at a truck stop. He followed
the truck until it pulled into a rest area near Prescott , Arkan-
sas, at 12 : 15 p.m., where he passed the truck and stopped
in Prescott . Soon after that the truck passed him again at
Prescott . Heading south Smith saw the unit again at 1:30
p.m. in Nash, Texas, and at 3:15 p.m. he saw it in Longview
at the fuel pumps in the company yard.
Smith denied that he knew who was driving the "rig" or
that he had any particular interest in Storch's driving.
Storch testified that on May 8 after he had laid over in
Longview he was dispatched in the early afternoon and that
he checked his truck and found that the alternator had been
repaired . He testified that a mechanic told him that the
alternator had come loose and required only to be fastened
down.
After the trip each driver is required to file, with the
papers concerning his trip , a report on the mechanical con-
dition of his vehicle. Respondent produced Storch's report
after this trip. It bears the date May 7. The report shows a
checkmark indicating disapproval of the panel instrument
gauges and states as the reason for disapproval "panel gaug-
es/tachometer and speedometer cable twisted off." There is
no indication on the report of trouble with the electrical
system. Respondent stated that its records show no repair
work done on the truck by its maintenance staff after the
May 7 trip. No explanation is offered by Respondent as to
what would be gained by Storch's falsifying his arrival 14
hours later than it actually took place, and none is apparent.
Storch's pay would not be affected, nor would his driving
hours under either version. The General Counsel contends
that Smith's reports are false and that the entire incident
was staged for the purpose of giving an excuse to discharge
Storch. Smith appeared to be truthful in his testimony and
there appears to be nothing out of the way in his activities
or reports. On the other hand, assuming that Storch was
telling the truth, it does not appear likely that he would not
have made some mention of the trouble with his electrical
system in the mechanical condition report that he filed on
his return. Also, the fact that that report, which is filed at
the termination of the trip, is carefully made out, yet bears
the date May 7, which coincides with Smith's report, rather
than May 8, which is the date on which Storch testified he
returned, tends to corroborate Smith's story rather than
Storch's. While Alsip's testimony appears corroborative of
Storch, Alsip admitted that he did not see Storch and had
no way of knowing from what point Storch was calling other
than the fact that Storch said he was in Texarkana. On the
record as a whole, I find that the General Counsel has not
produced a preponderance of evidence in support of his
allegation that Storch's discharge was discriminatory. There
is no contention assuming that Storch's logs were falsified,
that his discharge was nevertheless discriminatory. Accord-
ingly I find that the General Counsel has failed in its burden
of supporting this allegation with a preponderance of credi-
ble evidence and I must recommend that the complaint be
dismissed insofar as the discharge is alleged to be a violation
of Section 8(a)(3) and (1) of the Act.
R. B. Silvertooth, Storch and Alsip attended the represen-
tation case hearing with the union representative. Accord-
ingly there was no question that Respondent was aware of
their union adherence.
On the Monday following the Board hearing, when Sil-
vertooth came to work, he found that his truck had been
dispatched to the man who had been driving with him and
that he had been bumped back to second driver. He testified
that the Company has two kinds of drivers, first and second
drivers. They are paid at the same rate but the first drivers
are usually the senior men and they have trucks regularly
assigned to them. In the event a trip is of such a nature that
it has to be accomplished with greater speed than a single
driver can drive, a second driver is dispatched on the truck
and the two drivers take turns with one sleeping in the berth
on the truck. On these occasions, 25 percent of the charge
for the trip is divided between the drivers and each received
12-1/2 percent. When a driver makes a trip alone he receives
20 percent of the value of the trip. In addition, according to
Silvertooth's testimony corroborated by that of the other
drivers that testified, the "first driver" usually drives the
truck to pick up the load and bring it back to the terminal,
from which it is dispatched to points all over the country.
The second driver is not normally assigned or does not
normally take the load until the terminal departure. The
average additional emolument for picking up the load and
returning it to the terminal is somewhere around $30 ac-
cording to the testimony of the drivers. Since the representa-
tion hearing, according to Silvertooth, he had been
dispatched only as a second driver which has led to a de-
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
crease in his income. The General Counsel contends that
this decrease and the demotion from first to second driver
constitute a violation within the meaning of Section 8(a)(3)
of the Act.
The Respondent on the other hand contends that it has
no such thing as "first drivers" and "second drivers" but
that when two drivers are attached to a truck they are re-
ferred to as "codrivers." They share equal responsibility and
the additional emoluments resulting from picking up the
loads and delivering them to the terminal as well as for
making trips individually are divided between them or are
dispatched by Respondent on the basis of the number of
hours of driving each of the codrivers has had.
Respondent adduced various records in an attempt to
show that no significant difference appeared between Sil-
vertooth, Joyner who had been his codriver and Watson
who later drove the truck which had been assigned to Silver-
tooth and Joyner. Whatever else these records demonstrate,
they demonstrate that in fact trucks are, for periods of time,
principally driven by a single driver and that there is a
greater "turnover" among the codrivers with the driver than
among drivers with a truck. A more significant demonstra-
tion appears however and that is from March 1, when the
records start, until April 13, Silvertooth normally drove
truck No. 3151 or No. 3155, with driver Condwell as his
second driver between March 8 and March 18, and John-
ston as a second driver from March 29 until April 6. Joyner
or Jayner became his second driver on April 12 and contin-
ued as such for one trip; then the two of them together
switched to truck No. 3163 and then No. 3162, driving
together until May 10. Silvertooth continued to drive No.
3162 for two trips alone thereafter which took him up to
May 23, and then after a 3-day trip with Van Deacon as a
second driver he was assigned to No. 3151 with Alsip. Sil-
vertooth continued to drive with Alsip, with the exception
of one short trip, until July 6. All his driving with Alsip, with
the exception of one trip, appears to have been in rig No.
3151 the "old" rig Alsip testified had been assigned to him
after Anderson learned that Alsip was organizing the
Union.
It is clear from the various records adduced in evidence
that whether a driver is called a codriver, first driver, or a
second driver, the more senior drivers normally are assigned
trucks and are in a position to achieve higher earnings by
reason of their availability to travel on the single loads and
to do the loading. Codrivers or second drivers are not as-
signed trucks; while they earn as much as the first drivers
for the hours and miles that they drive with the first drivers,
they drive alone only when there is a truck free because the
first driver assigned to that truck cannot make the trip for
one reason or another. 13 It is apparent that for most of the
time after the hearing in the representation case,
Silvertooth's earnings were less than those of the drivers
with whom he rode or the drivers to whom his former truck
had been assigned. But the error is in trying to determine
whether Respondent has violated Section 8(a)(3) by com-
parison of final earnings. The record suggests, in the testi-
mony of Statler which I have credited above, that the reason
13
This might of course be frequent depending on the utilization of trucks
and drivers, and the amount of business
for the transfer of Silvertooth from a truck of his own to
codriver or second driver, call it what you will, with Alsip
was to insulate the two leading union adherents from the
other employees. Anderson is quoted to have said, "if they
want to talk union let them talk union to each other." Since
both Alsip and Silvertooth were "first drivers" prior to this
assignment , necessarily one or the other would have to suf-
fer as a result of the assignment . But, the assignment entered
into for discriminatory reasons and in violation of Section
8(a)(1) of the Act would be violative whether or not a less-
ening of the earnings of Silvertooth took place . Since the
violation resulted in the diminution of Silvertooth 's earn-
ings, the remedy therefore should require that Respondent
make him whole and I will so recommend. But more records
than I have before me are necessary to determine the extent
to which he has suffered such a diminution. It is enough, as
I find, that Respondent transferred Silvertooth from his
own truck to ride as a codriver with Alsip, to establish that
a violation took place and I so find.14
Roy Alsip. On August 23 Roy Alsip picked up a load and
returned it to the terminal for dispatch. He was informed
that the second driver to be dispatched with him was a
driver named Nolen. Alsip refused to drive with Nolen,
referring to him by a combination of vulgar words, and said
that he would either take it by himself or Nolen could take
it by himself but he would not ride with Nolen. The dis-
patcher gave the load to Nolen. According to Alsip's testi-
mony at that time he told the dispatcher that Nolen was too
dangerous.
Alsip testified that he went to the terminal each day there-
after until August 29 on which date Anderson called him to
the office and asked him why he refused the dispatch. Alsip
said he did not refuse a dispatch but did refuse to run with
Nolen to which Anderson replied that he was taking it as
a refusal to dispatch. On this occasion Anderson told Alsip
that he had 2 weeks to rest. On September 8 Alsip got a
phone call from Terminal Manager Anderson and later got
a letter from Safety Director Knight stating that he was
suspended while the Employer investigated the incident. On
September 23 Alsip got another letter from Knight stating
that he was terminated.
The Respondent's version of the above events is some-
what different. Anderson in his first testimony when he was
called by the General Counsel testified that Alsip was dis-
charged for refusing a dispatch which he explained as fol-
lows: "He was scheduled to go out on a run with a co-driver.
He wouldn't run with him." He later testified that Alsip was
suspended on September 6 for failure to be available for
dispatch but not with regard to the August 23 dispatch
incident.
14 Respondent contends that the record reveals that there was no such
thing as a permanent assignment of a truck That is quite clear. However the
record reveals that trucks were assigned for lengthy periods of time up to
periods of several months to a single driver who rode with various codrivers.
The record also suggests that changes in assignments were made by way of
punishment of drivers or at the request of drivers since assignments of trucks
generally followed seniority. The record reveals that Respondent was pur-
chasing new trucks and involving them in its Longview terminal business
Some of the drivers preferred the older trucks which are more powerful and
accordingly there would necessarily be a considerable turnover as between
trucks and drivers This in no way disproves the evidence that senior drivers
were permanently assigned specific trucks
BELL TRANSPORT COMPANY
On direct examination , when Anderson was called to the
stand by Respondent , he testified that when he ascertained
that Alsip had declined to ride with Nolen he told him to
take a couple of days off while Anderson contacted the Enid
office to find out what to do . Thereafter , commencing on
the 28th , he attempted to locate Alsip for dispatch but was
unable to do so until September 8 on which occasion he told
Alsip that he was suspended and would receive a letter from
the Enid office to that effect . He then testified that on
September 8 he got his copy of the letter from Enid dis-
charging Alsip and that he had suspended him on Septem-
ber 6 . However , later Anderson was straightened out and
recalled that he talked to Alsip about his suspension on
September 8 but he was discharged on September 24. Asked
why Alsip was not terminated on September 8 instead of 2
weeks later he answered that he did not know , but that
Alsip 's case "was under study at this time."
The letter of suspension to Alsip , dated September 6 and
signed by A. B. Knight , the director of safety , stated that
he was suspended as of September 6 pending "our investiga-
tion of your failure to report fo; dispatch between August
23 and September 5." Knight testified that his investigation
of the situation consisted of a telephone call to Anderson in
which Anderson reported that Alsip was not available for
dispatch . Of course this is what Anderson had told him prior
to September 6 but Knight testified that he expected that
Alsip would be available for dispatch after the receipt of the
letter of September 6 or that Alsip would contact Anderson
or Knight to find out what was happening. When Alsip had
contacted neither Anderson nor Knight by September 23,
Knight determined to discharge him. Anderson was not
able to explain what would impel Alsip to contact him
inasmuch as the tenor of the letter of September 6 was that
he was suspended until the Employer had completed its
"investigation ." Further it does not appear that any investi-
gation took place . Anderson did not contact Alsip to inform
him that the "investigation" consisted of waiting for Alsip
to make himself available for talk with either Anderson or
Knight nor did Knight instruct Anderson to do so . Accord-
ing to Alsip 's testimony he reported to the Longview termi-
nal daily between August 23 and September 8 when he was
informed that he had been suspended . Thereafter he came
to the terminal two or three times prior to his discharge. On
none of these occasions did he speak to Anderson nor did
Anderson speak to him. Alsip testified that he attempted to
talk to Craig , the dispatcher , but that Craig would not speak
to him . The letter of termination dated September 23 and
signed by Knight states , "your refusal to be dispatched on
a load from the Longview terminal on August 23 , 1972; and
your failure to report for dispatch since August 24, 1972,
prompted your termination."
Discussion and Conclusions
I find that Alsip was discharged because of his union
adherence and activity . I find that at all times since the first
week of April Respondent was aware of the fact that Alsip
was the leading union adherent among its employees and,
as spelled out above , Anderson had more than once re-
vealed his disposition to get rid of Alsip for this reason.
Alsip testified that he had refused in the past to ride with
103
other drivers and had never been admonished or punished
for so doing . Silvertooth testified that he refused to ride with
J. D. Spears on a trip in December of 1971 and with a driver
named Beason after Groendyke took over in 1972. He testi-
fied that he was never reprimanded nor disciplined because
of this. Alsip testified that when he first spoke to Anderson
after his refusal to drive with Nolen , Anderson told him to
take a couple of weeks off . Anderson testified that he told
Alsip to take a couple of days off while he ascertained what
Groendyke's Enid office wanted him to do. Anderson testi-
fied that no one had ever before declined to make a trip
because of the codriver assigned . I do not credit this asser-
tion in view of the testimony of the drivers that they had in
the past declined to ride with various employees without
reprimand or punishment.
Dispatcher Craig testified that he attempted to get in
touch with Alsip to dispatch him and identified memoranda
allegedly written by Anderson to the Enid office that stated
that Craig had attempted to make various telephone calls
between August 28 and September 6. Although Craig in his
testimony pretended to recall the incidents, it was obvious
that he recalled nothing that was not written on the memo-
randa that he identified . He testified that he was sure that
he had called Alsip before he started making memos and
that normally he would try at least for a day to reach a
driver before memorializing his difficulty in that regard, but
he had no recollection of for how long he had tried to call
Alsip or how many times. Similarly he had no recollection
of the period between September 1 and September 5 during
which no memoranda appeared to have been written, but he
knew he had dispatched drivers during that period of time.
Craig further testified that he had no knowledge of any
suspension of Alsip other than that memorialized in the
letter from Enid dated September 6. It is incredible to me
that the terminal manager might have suspended a driver
for 2 days or 2 weeks , depending on which version I accept,
without informing the dispatcher of this fact.
Although both Craig and Anderson contended that me-
moranda of telephone calls were normally made when the
dispatcher encountered difficulty in reaching an employee,
no memoranda other than those in this incident were ad-
duced by Respondent . Neither Craig nor Anderson could
detail the circumstances under which memoranda would be
prepared. I conclude that the memoranda in this case were
produced for the purposes of supporting the discharge of
Alsip and were not generated in the normal course of busi-
ness. I conclude further that the entire suspension and dis-
charge of Alsip was unrelated to the refusal of Alsip to make
the trip with Nolen as a codriver and also unrelated to his
failure to be available for dispatch. I credit his testimony
that he was indeed available for dispatch except for a period
of a week after he was informed of his suspension by Safety
Director Knight . I do not believe Knight 's testimony that
the suspension was converted to a discharge because of
Alsip's "unavailability" between September 6 and Septem-
ber 23 because of the absence of any factor that would give
Alsip any reason to believe that he was supposed to contact
Knight . I credit Alsip 's testimony that he was present at the
Longview terminal at various times during the period from
September 8 through September 23. I find in the absence of
any reasonable explanation for Alsip's discharge and in
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contemplation of the threats by Anderson that Respondent
would get rid of him that Alsip was discharged because of
his union activity.
VI THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of Respondent set forth in section V, above,
occurring in connection with the Respondent 's operations
described 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.
CONCLUSIONS OF LAW
1. Groendyke Transport , Inc. and Ann Myers Bell d/b/a
Bell Transport Company , is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Southern Conference of Teamsters , affiliated with In-
ternational Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , is a labor organization
within the meaning of Section 2 (5) of the Act.
3. By discriminatorily demoting R. B. Silvertooth from
the position of first driver to that of second driver and by
discharging Roy Alsip because of his activities on behalf of
the Union , Respondent has discriminated in regard to hire
or tenure and conditions of employment of its employees
thereby discouraging membership in the Union in violation
of Section 8(a)(3) of the Act.
4. By the above actions and conduct and by coercively
interrogating employees, by threatening them with less ad-
vantageous working conditions and with discharge because
of their activities on behalf of the Union and by promising
benefits if the employees rejected the Union Respondent
has interfered with , restrained and coerced employees in
violation of Section 8(a)(1) of the Act.
5. Respondent has not violated the Act in certain re-
spects as set forth above.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
The Union's Objections (Concluded)
I have found above that Respondent violated Section
8(a)(3) and ( 1) of the Act by the demotion of Silvertooth. I
found additionally that during the period between the filing
of the petition and the election Anderson told Alsip that if
he had not gotten involved in the Union he could expect to
be assigned a new truck , told Maass that if the Union were
voted in new trucks would not be brought to the Longview
terminal , questioned Silvertooth concerning his opinion of
the Union before the hearing on the representation petition,
told Statler that if the Union came in there would be no
more cash advances and that there would be quite a few
people run off because of the Union and asked Statler who
he was voting for, made statements to Statler from which
the inference is clear that Silvertooth was demoted because
of his union adherence , that he and Alsip and Maass would
be terminated therefor and that Storch already had been.
These incidents , all of which took place during the critical
period, in my opinion require that the election be set aside.
They all constitute objectionable conduct on the part of
Respondent and its agent Anderson. Accordingly I recom-
mend that the Union's objection be sustained and the elec-
tion set aside.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices within the meaning of Section 8(a)(1)
and (3) of the Act, I shall recommend that it cease therefrom
and take certain affirmative action designed to effectuate
the policies of the Act. Since I find that Respondent discri-
minatorily discharged Roy Alsip and demoted R. B. Silver-
tooth I shall recommend that Respondent offer them
immediate and full reinstatement to their former positions
or, if those positions are no longer in existence , to substan-
tially equivalent positions , without prejudice to their senior-
ity and other rights and privileges and make them whole for
any loss of pay they may have suffered by reason of
Respondent 's discrimination . Backpay shall be computed in
accordance with the formula prescribed by the Board in
F. W. Woolworth Company, 90 NLRB 289, together with 6
percent interest per annum to be computed in accordance
with Isis Plumbing & Heating Co., 138 NLRB 716.
The General Counsel suggests that the unfair labor prac-
tices found to be committed in this matter are of such a
nature that they render the holding of a valid election im-
possible within the meaning of the decision of the United
States Supreme Court in the Gissel case (supra).
Respondent submits in its brief that a Gissel order re-
quires proof that Respondent has been guilty of serious,
"massive," unfair labor practices which preceded this elec-
tion and affected the results thereof . The Respondent points
out:
The only employee fired prior to the election was
Storch . If this charge is dismissed then that would leave
the tenuous charges of Alsip and Silvertooth to support
the alleged massive misconduct. -
The prayer for a bargaining order appears to be an
afterthought and unsupported by the record. If the
conduct recited by Alsip and Silvertooth did in fact
affect the results of the election , then the Board can
order a new election as a remedy for the employer's
alleged misdeeds.
While it is true that the former election may not be set
aside except on a finding of objectionable conduct preced-
ing the election, a consideration of whether the activities of
the Respondent are of such a nature that the imposition of
a bargaining order is necessary because of the improbability
that a fair election could exist were the election to be rerun.
I have found that conduct of Respondent sufficient to re-
quire the setting aside of the original election has been
approved by the General Counsel , but this conduct is not
all that would be before the employees if they were to vote
again. Indeed the postelection unfair labor practices which
I have found , that is to say the discharge of Alsip and
additional 8(a)(1) violations consisting of a statement to
Statler by Anderson after the election that revealed
Anderson 's opinion that he had the union advocates where
BELL TRANSPORT COMPANY 105
he wanted them and they would not be driving longer are
also facets to be considered . By and large it is my opinion
that the extensive violations of Section 8(a)(1) and (3) by
Respondent would reasonably be expected to have the ef-
fect of undermining the Union's majority, that they de-
stroyed the conditions necessary to the holding of a free and
fair election and are not such that it may reasonably be
expected that normal Board remedies would restore the
necessary laboratory conditions. I conclude that in order to
protect the statutory rights and interests of employees and
to remedy these violations of Section 8(a)(1) and (3), it is
essential that Respondent be ordered to recognize and bar-
gain with the Union as the statutory representative of its
employees for the purposes of collective bargaining. 15 Ac-
cordingly I shall recommend that Respondent be ordered to
bargain on request with the Union as the representative of
its employees in the unit consisting of all drivers , service
mechanics and the dispatcher of the Employer at its termi-
nals in Longview, Tyler and Mount Pleasant, Texas, exclud-
ing office clerical employees , guards , terminal manager and
all supervisors as defined in the Act, which was found to be
an appropriate unit in Case 16-RC-5991.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section I0(c) of the Act, I hereby issue the
following recommended: 16
ORDER
prejudice to their seniority or other rights, privileges or
working conditions and make them whole for any loss of
earnings they may have suffered as a result of the discrimi-
nation against them in the manner set forth in the section
hereto entitled "The Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of this
recommended Order.
(d) Upon request bargain collectively with the above-
named Union as the collective-bargaining representative of
its employees in the appropriate unit set forth above and
embody in a signed agreement any understanding reached.
(e) Post at its terminal at Longview, Texas, copies of the
attached notice marked "Appendix." 17 Copies of said no-
tice, on forms provided by the Regional Director for Region
16, after being duly signed by the Respondent's representa-
tive, shall be posted by Respondent immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(f) Notify the Regional Director for Region 16, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
Respondent, Groendyke Transport, Inc. and Ann Myers
Bell d/b/a Bell Transport Company, its officers, agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning their
and other employees union activities , threatening employ-
ees that if they select the Union as their representative they
will not be given new trucks to drive or will be denied other
benefits, threatening employees that they or other employ-
ees will be discharged because of their union activities or
promising benefits to employees if they reject the Union as
their collective-bargaining representative.
(b) Discriminating against employees because of their
union activities and adherence by changing their assign-
ment to less desirable or remunerative assignments or by
discharging them because of their activities on behalf of the
Union.
(c) In any other manner interfering with , restraining, or
coercing employees in the exercise of rights guaranteed in
the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Upon request recognize and bargain collectively with
Southern Conference of Teamsters, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America , as the exclusive representative
of the employees in the appropriate unit set forth in the
Regional Director's Decision and Direction of Election in
Case 16-RC-5991.
(b) Offer to R. B. Silvertooth and Roy Alsip immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist, to substantially equivalent jobs without
15 The General Counsel adduced authorization cards of at least 45 employ-
ees The May 26 payroll listed 64 employees The Union obviously repre-
sented a majority of the employees at the time of the hearing in the
replresentation case
6In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 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
17 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 National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial at which all sides had a chance to give evidence,
the National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered
us to post this notice and we intend to carry out the Order
of the Board and abide by the following.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To bargain collectively through representatives of
their choosing
To act together for collective bargaining or other
mutual aid or protection
To refrain from any or all of these things.
WE WILL NOT do anything that interferes with or re-
strains or coerces employees with respect to these
rights.
WE WILL NOT discriminate against our employees for
engaging in activities on behalf of the Union or on their
own behalf.
WE WILL NOT threaten to lay off or discharge employ-
ees for engaging in union activities.
WE WILL NOT coercively interrogate our employees
concerning their or other employees union activities.
WE WILL NOT promise our employees benefits if they
reject the Union as their collective-bargaining repre-
sentative.
WE WILL upon request recognize and bargain with
Southern Conference of Teamsters, affiliated with In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the repre-
sentative of our employees in the unit which the Board
found to be appropriate for purposes of collective bar-
gaining and WE WILL embody in a signed agreement any
understanding reached.
WE WILL reinstate R. B. Silvertooth and Roy Alsip to
their former jobs or, if those jobs no longer exist, to
other equivalentjobs and we will make them whole for
any pay they lost as a result of our discrimination
against them.
GROENDYKE TRANSPORT, INC.
AND ANN MEYERS BELL D/B/A
BELL TRANSPORT COMPANY
(Employer)
Dated By
(Representative) (Title)
We will notify immediately the above-named individuals, if
presently serving in the Armed Forces of the United States,
of the right to full reinstatement, upon application after
discharge from the Armed Forces, in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, Federal
Office Building, Room 8A24, 819 Taylor Street, Fort
Worth, Texas 76102, Telephone 817-334-2921.