Heick Moving & Storage, Inc.

National Labor Relations Board - Board Decisions

Jan 19, 1965

150 N.L.R.B. 1124 (N.L.R.B. 1965)

1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Heick Moving & Storage, Inc. and Drivers, Salesmen, Ware-
housemen , Milk Processors, Cannery, Dairy Employees and
Helpers Union , Local No. 695 , affiliated with The International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America
Heick Moving & Storage, Inc. and Drivers, Salesmen, Ware-
housemen , Milk Processors , Cannery, Dairy Employees and
Helpers Union , Local No . 695, affiliated with The International
Brotherhood of Teamsters , Chauffeurs, Warehousemen and
Helpers of America , Petitioner . Cases Nos. 30-CA-4 , (for-
merly 13-CA-6239) and 30-RC-1P (formerly 13-RC-9861). Janu-
ary 19, 1965
DECISION AND ORDER
On November 10, 1964, Trial Examiner Eugene E. Dixon issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor Relations Act,
as amended, and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found merit in the
objections to the election and recommended that it be set aside.
Thereafter, the Respondent and the General Counsel each filed ex-
ceptions to the Trial Examiner's Decision and the Respondent filed
a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Chairman McCulloch and Members Fanning and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in these cases, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
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, Heick Moving & Storage, Inc., its officers,
agents, successors, and assigns, shall take the action set forth in the
Trial Examiner's Recommended Order.
150 NLRB No. 106.
HEICK MOVING & STORAGE, INC. 1125
IT IS FURTHER ORDERED that the election held on February 17, 1964,
be, and it hereby is, set aside, that the petition for certification of
representatives filed by the Petitioner in Case No. 30-RC-12 (for-
merly 13-RC-9861) be, and it hereby is, dismissed, and that all
proceedings held in connection therewith be, and they hereby are,
vacated.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding , brought under Section 10 ( b) of the National Labor Relations Act,
as amended (61 Star. 136), herein called the Act, was heard before Trial Examiner
Eugene E . Dixon at Madison , Wisconsin , on July 21 and 22, 1964 , pursuant to due
notice . A complaint , issued by the representative of the General Counsel for the
National Labor Relations Board (herein called the General Counsel and the Board)
on April 24 , 1964, and based upon charges filed by the captioned labor organization
(herein called the Union ) on February 24, and served February 26, 1964 , alleged
that Heick Moving &' Storage, Inc., the Respondent herein , had engaged in and was
engaging in unfair labor practices in violation of Section 8(a)(1) and ( 5) of the
Act, by interrogating its employees about their union activities , and by threatening
them with economic reprisals and promising them economic benefits for the purpose
of influencing their attitude and action regarding the selection of the Charging Party
as their bargaining agent , and by refusing to bargain with the duly designated col-
lective -bargaining agent of the employees.
On August 11, 1964 , the General Counsel moved to correct the transcript of the
testimony in' certain specified respects . No opposition having been made the motion
is hereby granted and made part of the exhibits.
In its duly filed answer, Respondent denied the commission of any unfair labor
practices.
On January 14, 1964, the Union filed a certification petition with the Board, on
the basis of which a consent election was held on February 17, which was lost by
the Union . Thereafter, on February 19, the Union filed objections to the election and
asked that it be set aside . Thereafter, on June 29, the Regional Director made his
report on the objections to the election , finding that the objections raised "substantial
and material questions of fact which can best be determined by a hearing ." He also
recommended that a hearing be held thereon and that it be consolidated with the
unfair labor practice case that was already pending before the Board . On July 15
the Board ordered a hearing in accordance with the recommendations of the Regional
Director.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE EMPLOYER 'S BUSINESS
Heick Moving & Storage, Inc., at all times material herein has been a corporation
organized and existing under the laws of the State of Wisconsin , and is engaged in
the moving and storage of household goods at its warehouse and office facility located
in Madison , Wisconsin . During the calendar year 1963 , a representative period,
Respondent , in the course and conduct of its moving and storage operations , derived
a gross revenue in excess of $50 ,000 from said operations which were performed in
the movement of household goods directly out of the State of Wisconsin , or into the
State of Wisconsin from one of the other States of the United States. During the
same period of time in the course and conduct of its moving and storage operations
constituting a link in the chain of interstate commerce , Respondent derived a gross
revenue in excess of $50,000 from said operations which were performed pursuant
to contracts or' arrangements with , and/or as agents for, various enterprises, including,
inter alia, United Van Lines , Inc., operating between and among the various States of
the United States. Respondent at all times material herein has been an employer
engaged in commerce within the meaning of Section 2(6) and (7 ) of the Act.
H. THE LABOR ORGANIZATION
Drivers, Salesmen , Warehousemen , Milk Processors , Cannery, Dairy Employees
and Helpers Union , Local No . 615, affiliated with the International Brotherhood of
Teamsters, Chauffeurs , Warehousemen and Helpers of America, at all times material
herein has been a labor organization within the meaning of Section 2(5) of the Act.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
A. The 8(a)(1) allegations
1. The setting
On or about January 8, 1964, Gordon Haack, one of Respondent's drivers, con-
tacted the Union with the information that Respondent's employees desired the Union
to represent them in collective bargaining. Thereafter he arranged a meeting of the
employees on January 10 with the union officials at which five of Respondent's then
six drivers appeared and signed authorization cards.'
The complaint alleges that "all regularly employed drivers at employer's Madison,
Wisconsin, location, excluding all office clerical employees, casual employees, guards
and supervisors as defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act." There is
no contention that this unit is not an appropriate unit and I find that it is. It was
stipulated that as of January 13, 1964, the unit described in the complaint consisted
of the six employees who had signed authorization cards as found above but that the
unit had not been defined by agreement of the parties until January 30 when the repre-
sentation hearing was held.
On January 13, 1964, the Union wrote the Company as follows:
Please be advised that Drivers, Salesmen, Warehousemen, Milk Processors,
Cannery, Dairy Employees and Helpers Union Local No. 695, Madison, Wiscon-
sin have been designated by a majority of your employees employed by Heick
Moving and Storage, Inc., to represent them for the purposes of collective bar-
gaining and to negotiate a labor agreement covering wages, hours and conditions
of employment.
Various Federal and State Laws permit and give all workers the right to join
any union of their own choosing. Any interference with this right, by intimida-
tion, coercion, or threats of reprisals, or any offers of inducements, rewards, and
monetary offerings, to discourage employees from exercising their rights, on the
part of the employer or its representatives, is clearly in violation of these laws.
We hereby request a meeting with you or your designated representative for
the purpose of commencing negotiations on Monday, January 20, 1964, at the
office of this Union, 530 Division Street, Madison, Wisconsin, at 11:00 a.m. In
the event you desire a more convenient place for this meeting, please advise the
writer.
On January 16, 1964, Respondent's attorneys replied to the Union as follows:
We represent Heick Moving and Storage, Inc. and have today for the first
time seen ,your letter of January 13 requesting a meeting on Monday, January 20.
Inasmuch as you apparently have petitioned the National Labor Relations
Board for an election we don't see that a meeting would be appropriate until after
the proceedings before the Board have been completed.
2. Respondent's letter to the employees
On February 7, 1964, Respondent's president, Dorothy Jorgenson, called a meeting
of the six employees who comprised the unit and passed to each of them a copy of the
following letter:
To our Drivers:
A week from next Monday there will be an election when you will determine
if you want the union, popularly known as the Teamsters Union, to represent you.
Each of you is entirely free to vote as he decides. It will be a secret election.
Our lawyer assures me that you and Hall and I can discuss this whole union
situation freely so long as neither you nor we make any promises or threats. This,
letter is sent to you to give you the company's basic position.
I see no need for a union to represent you. I think we have been able to work,
things,out together in the past, without a union, and that we can do it in the
future without a union . If you want the company to consider any changes in
working conditions or methods of payment or anything else, I think it can be done
directly between us better than through a union agent. If any of you feel there
have been misunderstandings about what may have been agreed on at any time,
I am sorry. That is a simple matter to correct by written memorandums or some
such means.
;1 The sixth driver, John Davidson , signed an authorization card on January 14, 1964.
HEICK MOVING & STORAGE, INC.
on a changed insurance program to benefit you.
Under the law I cannot make any promises for the futurewhile this election
is in prospect, and I'm not making any. But I, do think that any improvements
we may be able to work out in the future can be done better between you 'and
Hall and me directly.
1.127
I think you should realize that the company has done everything'for,you in the
past that I have thought financially possible. We are a small company with large
debts, and we have been working hard to expand and improve our business so we
could do more for you and our other employees and still make' a little money.
Believe me, it hasn't been easy and the salary I take, and the earnings of the
company, have not been great. Some years it has been nip and tuck. I think we
are gaining momentum, but that could be easily stopped if our pay scale should
be forced out of line with our competitors or with what we can pay. '
Over the past few years we have managed to increase your pay each year, to
provide Christmas bonuses and a Christmas party I think we all enjoy, to work
out a way to provide neat uniforms, to provide paid vacations and six yearly
holidays with pay and to help those of you who have had personal financial prob-
lems. Just when the union filed the petition for this electior, we were working
If the union has promised you it will get you a pay raise," remember the com-
pany can't pay what it can't afford. If the union should try to force a pay scale
on this small company that Jimmy Hoffa might consider proper for Chicago or
some other place, I have no assurance that we could pay'it. If it should develop
that we couldn't, we might have to close the business. That's happened to other
businesses. I would hate that. I've worked too hard ever since Jorgy's death to
get the business on its feet and to get it rolling. And I don't think that would
benefit you either.
The election will be decided by the majority of those of,you who vote. Ifyou
do not favor the union but don't vote, it is, in effect, a vote for the union. And
if the union does receive a majority vote, it will then represent all of you, even
if you do not want it to represent you.
I am frankly opposed to the union representing you. We have been able
gradually to give you more in the past each year. I hope, but in no way,promise,
that can be continued in the future; and if it can be continued, I think we will all
be better off without the union in the picture.
Hal and I may want to discuss this with you, as you and we both have a right
to do this.
(S) Dorothy
Haack, an employee of 7 years' standing testified about this meeting as follows: In
addition to Mrs. Jorgenson, Respondent's general manager and vice-president, A
Harold Hueschen, attended this meeting. After the men had received a copy of the
letter Mrs. Jorgenson "more or less read it through." Haack was not sure whether
she read "word for word" and he testified that she "may have paused" during the
reading. At any rate she "kind of asked each one," if they "had any comments." She
"more or less" asked them what they were "dissatisfied with" and what they thought
they "were going to gain by joining the Union."
Haack's reply to Mrs. Jorgenson was that he did not think that they "should give
away [their] position as trying to organize what [they] really wanted, [he],didn't think
it should be talked over." The men "kind of thought" they ought to talk it over among
themselves so they had a meeting in the backroom. There they decided .that they
"shouldn't talk anything over" with management so they appointed Davidson to go,,in
the office and tell Mrs. Jorgenson that they had "nothing to discuss." '
In general Haack's testimony was corroborated by Davidson. According to his
testimony Mrs. Jorgenson read the letter and they "discussed certain parts of it" but
he could not remember which parts. She did tell the men she did not think they
needed a union . They also discussed "wages and things could be handled through the
Company without the Union, talked about growth of the Company and working con-
ditions .... When the men in their own meeting "couldn't seem to come to a conclu-
sion [as] to how [they] actually felt" he went to Mrs. Jorgenson and told her that they
"just hadn't got anywhere and ... didn't think that any further discussion at the,time
"was too important ....
About this matter Mrs. Jorgenson testified as follows: " „ , ' ,
Yes, we called the men together and told them after we had distributed a copy
of a letter to each one of them, I told then I would like to go through the
letter and would like to read the whole letter at one time rather than stop after
each paragraph and after that I read the letter, I would stop and ask them if
they had any questions pertaining to this letter that they might want to ask
about and so this is what we did. We discussed the-didn't discuss, but .rather
read the letter.
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After she had read the letter she asked each of the employees "one by one if any
of them had a question about the contents of this letter." When asked by counsel
whether she had asked them any other questions she answered, "Nothing specific,
just merely about the contents of the letter." According to her further testimony
the employees "took the position that they didn't really feel they should talk about
it 2 ... so consequently there was not too much said at that time."
After the men had had their meeting in the warehouse Davidson came back later
and told her that "they tried to have a discussion but they just weren't accomplishing
anything, they didn't feel they understood their own position any better so there
was nothing to report ...." She said, "Well, Jack, that is fine. I can't discuss
it with you anyway."
As can be seen, one sentence in the February 7 letter to the employees reads as
follows: "Just when the Union filed a petition for this election, we were working
on a changed insurance program to benefit you." Explaining this sentence Mrs.
Jorgenson testified that the Company had made a change in the employee health
and accident insurance program which went into effect about January 1964. This
change she described as "merely a health program that . . . provided them with
better benefits than the previous one had.3 This had come about as a result of a
request from the men themselves to secure better health insurance "and it was
worked out with the men." It further appears from Mrs. Jorgenson's testimony
that while the old insurance program had included some group life insurance, there
was no life insurance included in the new program.
Notwithstanding the January change in Respondent's insurance program that
dropped life insurance Mrs. Jorgenson testified that the Company was again consider-
ing a group life insurance policy for the employees. In this connection she testified
that shortly after the change in the policy, the insurance agent talked to her about
"a life insurance program for the men." Although she was-"a little bit confused"
exactly as to when this occurred, she did testify that it was not until after "the union
negotiations or whatever you want to term it had started" that the agent came in
with an actual proposal.
3. Derra's comments
Paul Parks who was employed by Respondent from 1953 until June 1, 1964, and
who had left because he had not been granted the vacation time he wanted, was called
as a witness by the General Counsel and testified as follows: On February 13 when
he came into the warehouse he found Donald Derra, Respondent's dispatcher,4 Smith,
and. Davidson who were engaged in conversation. Derra asked Parks how he was
going to vote in the oncoming union election. Parks replied that he was definitely
going to vote for the Union. Derra said that Jorgenson had said that "If the vote
went through that she would sell or lock up the doors and take the trucks off the
road." When Parks asked how she could do this Derra replied that "she will only do
local work and work 8 hours a day." 5 Derra also said that "If the vote goes through"
. Mrs. Jorgenson was going to ask Lester Smith and Bob Snyder for the money she
had loaned them and if they could not pay up "she would fire them right there." From
2 On cross-examination Mrs Jorgenson testified that the men were "very reluctant to
speak," and that Gordon Haack said he didn't think it was proper for them to discuss the
matter with her.
s It also appears from her testimony that as far as the Company was ' concerned, the
extent of the insurance change was merely a change from one carrier to another since
the entire cost of the insurance was paid by the employees
• The complaint alleges and the answer admits that Derra is a supervisor within the
meaning of the Act Nevertheless 'Respondent contends that Derra did not participate
in policy matters of Respondent and that he had no authority to speak for Respondent
regarding the Union and that if Derra made any coercive remarks (which Respondent
denies ) they cannot be attributed to Respondent While it may be true that Derra had
no voice in policy matters of Respondent, it is clear that he had authority to 'discipline
employees and to effectively recommend action regarding their status. It is also clear
that*no limitation on Derra's authority to speak for management was ever communicated
to the employees. Furthermore there was no retraction ever made by Respondent of any
of Derra's remarks. Respondent's denial of knowledge of such remarks is weakened by
Derra's testimony, as shown below, that he told Vice President Hueschen about his con-
versation with the employees and that he could not remember what Hueschen's comments
about it were. I find that he was a supervisor within the meaning of the Act and I'also
find, notwithstanding Respondent's testimony that Derra was given instructions that he
was not to'discuss the Union with the employees, that he was acting within the scope
of his apparent authority when he talked to the employees about union matters.
6 At this time Parks was on a 44-hour guarantee.
HEICK MOVING & STORAGE, INC. 1129
the warehouse they went into one of the offices where they continued "just kicking
around a bunch of things." The subject of a contract came up and Parks said he
wondered "how much it cost to draw up a contract ...... So he called a lawyer friend
who, when he learned there was to be an election, declined to tell him "I, yes or no."
Derra said that "as far as the union went, he was all for [the employees] going union
but he didn't want [them] to think that he was connected with it because [they] were
all his friends and [they] had been there a long time together and ... went to the same
church ...."
As to this conversation Davidson testified as follows: They were discussing the
Union in the warehouse talking pro and con and "not getting anywhere really."
Derra came out and joined in the conversation. They talked about "working condi-
tions. The overtime and wages." Derra said that "things could happen." He said
they "could possibly get overtime and could have better pay possibly if [they] didn't
bring up the Union." Derra also said "that if the Union did come in, that Mrs.
Jorgenson would close the business or sell it which was mentioned before." He also
mentioned the "possibility" that the trucks might be leased to United Van Lines. They
also talked about getting a portion of their insurance paid by the Company "and it
was possibly Derra [who] said that this might be accomplished ... without the Union."
On cross-examination Davidson testified "that most everything Derra said" was
"more or less" in reply to questions the employees had put to him. He also testified
on cross-examination in substance that Derra had said that overtime could be reduced
by Respondent but not that it would, and that trucks could be leased rather than would
be leased. This last he testified was not as a result of a question to Derra. In his
further testimony Davidson repeatedly said he did not recall if Derra had said that
Jorgenson had herself made the statement that she would close the doors, lease the
trucks, or take other economic reprisals in connection with the Union.
In his testimony about the matter Derra testified that Mrs. Jorgenson had told him
before his February 13 conversation with the men that he "cannot discuss union with
the men." He admitted having a "very little conversation" with the men in which they
asked him about his "knowledge of union shop" and how they operated. He answered
them to the best of his ability. They asked him if a union shop limited shifts to 8 hours
and he answered that they did not. He also said, "You fellows know how unions work,
for example the freight companies in the area, they are put on shifts to take care of the
overtime." In this connection he gave an example of the Central Wisconsin Freight
Lines "across the street" 6 telling them "so you can see for your self what can happen."
When he was asked by counsel if Jorgenson had said she would lock the doors and
take the trucks off the road, his answer was "this question was put to me." When the
question was in effect repeated his reply was that he had said that was "Dorothy's
prerogative, she can do what she wants with the business." He further denied telling
the employees "that changes would be made" if the Union came in. The employees
had suggested that if the Union came in they might get their insurance paid by the
Company. He said, "Is it as good a policy as the one you have now?" He was also
asked if the loan to Smith would be called in and his answer was "this was up to
Dorothy." He also denied saying that Jorgenson would fire them if they could not
pay up.
Derra further testified that it was "not more than 2 days" prior to the Union's letter
to Respondent that Haack had told him that the employees "had consulted the Union."
He did not know how many employees were involved. After his February 13 discus-
sion of the Union with the employees, Vice President Hueschen called him in and
asked "how things were coming off." He told Hueschen that the men "had discussed
some questions" about the Union with him. He did not recall what Hueschen had
told him when he learned of this conversation.
According to the undenied and credited testimony of Larry Anderson, on or about
February 20, 1964, at a time when he was receiving periodic assignments to work for
Respondent through the Madison labor pool, Derra asked him if he would like to
become a permanent employee and Anderson replied that he would. Then Derra
asked him if he knew about the union election at the Company. Anderson said that
he had heard of it. Derra then asked Anderson how he would vote if there was
another union election. Anderson subsequently was hired on a permanent basis.
4. 8(a)(1) conclusions
a. The letter and meeting of February 7
There is not a great deal of conflict between the testimony of Respondent and the
General Counsel on the matter of the letter and Mrs. Jorgenson's meeting with the
6In his cross -examination Derra in effect denied referring specifically to the company
"across the street."
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees. It is clear that Mrs. Jorgenson attempted to get an expression of some kind
from the employees by means of a direct inquiry from her. In this connection I credit
Haack's testimony that in addition to the question for comment in general, Mrs. Jor-
genson also asked the employees what they were dissatisfied with and what they
thought they were going to gain by joining the Union .7 These inquiries, in the context
of,the other unfair labor practices found herein, were coercive and constituted illegal
interrogation within the meaning of Section 8(a)(1) of the Act. Blue Flash Express
Co., 109 NLRB 591. Moreover, I also find that in the context of the entire record
here the letter itself must be interpreted as implying a promise of an insurance benefit
to the employees if they rejected the Union,s and also a "thinly veiled threat to close
the business if the Union was voted in."
Respondent vigorously contends that the letter and the meeting with the employees
about it were permissible under Section 8(c) of the Acts Had Respondent distributed
this letter, to the employees without comment it would in my opinion be on safer
ground. But having called the employees together and having insisted on an expres-
sion of their ,views and having coercively interrogated them as to their feelings and
reaction to the letter 10 tends to take what otherwise might have been permissible com-
ment outside the protection of Section 8(c).
b. Derra's comments
I-have no doubt that the conversation between Derra and the employees was on a
more or less friendly and give-and-take basis and that probably some of his comments
were the result of direct questions put to him by the employees. On the other hand
considering the entire tenor of Derra's testimony with his admitted examples and
what the employees could see from them for themselves, and his suggestions as to what
Mrs. Jorgenson's prerogatives were and what steps she could take vis-a-vis the Union,
I, am, inclined to view the overall effect of Derra's comments as having been coercive
within the meaning of Section 8(a) (1) of the Act.
Whether or not all of the things he mentioned were couched in the conditional
rather than the absolute, as something that could happen rather than would happen
(I believe that his remarks probably involved a little of both) the implication of repri-
sal for the union activities of the employees was clearly there. Hortex Manufacturing
Company, Inc., 147 NLRB 1151; Bonnie Enterprises, Inc., 145 NLRB 1625; W. Ral-
ston & Co., Inc., and Technical Tape Corporation, 142 NLRB 1124; Wilder Finishing
Co., Division of Jervis Corporation, 138 NLRB 1017; West Side Carpet Cleaning Co.,
136 NLRB 1694, 1700; Remington Rand Corporation, 141 NLRB 1052. And in this
context his having asked Parks how he was going to vote (which stands undenied in
the record) and his interrogation of Anderson were also coercive within the meaning
of Section 8(a) (1) of the Act. Blue Flash Express Co., supra; Burke Golf Equipment
Corporation, 127 NLRB 241; The Great Atlantic & Pacific Tea Company, Inc., 144
NLRB 1571.
B. The refusal to bargain
As shown above, as of January 13 the Union represented a majority of all the
employees in an appropriate unit. At that time the unit as appears in the representa-
tion petition was described as all employees of Respondent excluding office clerical,
guards, and supervisors as defined in the Act. I find no substantial variance between
the unit as described in the R petition (for which unit it must have been apparent to
Respondent the Union was requesting collective bargaining in its letter of January
13) and the unit as described in the complaint.
Where a union represents a majority of employees in an appropriate unit, as it did
here on January 13, an employer cannot refuse its request to bargain unless it has a
7If there was any denial of 'this by Mrs Jorgenson, it was not specific and only by
implication. -
8This'implication is particularly strong when it is considered that it was only a few
weeks before this 'that at the request of the employees Respondent's insurance program
had been revised and a new coverage put into effect
9 Section 8(c) of the Act states that "'The expressing of any views, argument, or
opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form,
shall not constitute or be evidence of an unfair labor practice under any of the provisions
of this Act, if such expression contains no threat of reprisal or force or promise of benefit."
10 The coercive effect of the meeting was clearly demonstrated by the reluctance of the
employees, to, express themselves and by their contention that the whole purpose of Re-
spondent in the matter was improper.
IIEICK MOVING & STORAGE, INC. '1131
good-faith doubt of the Union's majority status. The determination of whether or
not an employer has or can have a good -faith doubt must be made "in light of all rele-
vant facts in the case , including any unlawful conduct of the employer ." Lakbs, Inc.,
128 NLRB 374 . If a refusal to bargain "is motivated , not by a bona fide doubt as to
the Union 's majority, but rather by a rejection of the collective bargaining principle
or by a desire to gain time within to undermine the union ," it is unlawful . Joy Silk
Mills, Inc., 85 NLRB 1263, enfd. 185 F. 2d 732 (C.A.D.C.).
_
'
Here, no question was raised about the Union's majority and no doubt of such
majority was voiced by Respondent until Mrs. Jorgenson so testified at the hearing.
As pointed out by the General Counsel, Respondent's alleged surprise at the Union's
request for recognition in its January 13 letter is somewhat weakened by Derra's prior
knowledge of the employees' interest in the Union and their trip to the union hall.', The
fact that the Union enclosed a copy of its representation petition with its letter asking
for recognition , of course does not relieve Respondent of its duty to bargain . Gallo-
way Manufacturing Corporation, 136 NLRB 405, 409; Permacold Industries, Inc., 147
NLRB 885.
On this record as a whole I am convinced and find that -Respondent's failure and
refusal to bargain with the Union was based not on any good-faith doubt of its majority
but was motivated by its rejection of the collective -bargaining principle . - 'Joy Silk
Mills, Inc., supra. Accordingly I find that Respondent has refused to bargain with
the Union in violation of Section 8(a) (5) of the Act. ' ' '
C. The objections of the election
It is clear from the foregoing that there is merit in the Charging Party's objections to
the election and that the election should be set aside. I so recommend . However, in
view of my finding of a refusal to bargain under Section 8(a')(5) and my Recom-
mended Order in that connection , I do not recommend that a new election be held.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of Respondent described in section 1, above , have a close , intimate,
and substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free flow
of commerce.
V. THE REMEDY
Having found that Respondent violated Section 8(a) (1) and ( 5) of the Act, I will
recommend that Respondent cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that Respondent refused to bargain with the Union which ' repre-
sented a majority of the employees in an appropriate unit. 'Accordingly , I shall
recommend that upon request Respondent be ordered to bargain with the Union as the
exclusive representative of the employees in the appropriate unit.
In view of the foregoing findings of fact , and upon the entire record in this ' case, I
make the following:
CONCLUSIONS OF LAW
1. At all times material herein , the Union has been a labor organization within the
meaning of Section 2(5) of the Act.
2. At all times material herein , Respondent has been engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
3. All regularly employed drivers at Respondent 's Madison , Wisconsin , location,
excluding all office clerical employees , casual employees , guards, and supervisors as
defined in the Act , constitute a unit appropriate for the purpose of collective bargain-
ing within the meaning of Section 9 (b) of the Act.
4. By interfering with , restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor
practices proscribed by Section 8 (a) (1) of the Act.
5. By refusing to bargain with the Union commencing on or 'about January 13,
1964 , Respondent has engaged in and is engaging in unfair labor practices proscribed
by Section 8(a) (5) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act. ,
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the entire record in the case, the foregoing findings of fact and conclusions of
law, and pursuant to Section 10(c) of the Act, I recommend that the Respondent,
Heick Moving & Storage, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain with Drivers, Salesmen, Warehousemen, Milk Processors,
Cannery, Dairy Employees and Helpers Union, Local No. 695, affiliated with the
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, as the exclusive representative of its employees in the appropriate unit with
respect to rates of pay, wages, hours of employment, and other terms and conditions
of employment.
(b) Illegally interrogating its employees about their union activities or inclinations
or threatening them with economic reprisals or promising them economic benefits for
the purpose of influencing their union activities or sympathies.
(c) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form, join, or assist the
above-named Union, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right is affected by the
provisions of Section 8(a) (3) of the Act, as amended.
2. Take the following affirmative action, which it is deemed necessary to effectuate
the policies of the Act:
(a) Upon request, bargain collectively with Drivers, Salesmen, Warehousemen,
Milk Processors, Cannery, Dairy Employees and Helpers Union, Local No. 695,
affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, as the exclusive representative of all its regularly employed
drivers at its Madison, Wisconsin, location, excluding all office clerical employees,
casual employees, guards, and supervisors as defined in the Act, with respect to rates
of pay, wages, hours of employment, or other conditions of employment, and, if an
understanding is reached, embody such understanding in a signed agreement.
(b) Post at its warehouse and office in Madison, Wisconsin, copies of the attached
notice marked "Appendix." 11 Copies of said notice, to be furnished by the Regional
Director for Region 30, shall, after being duly signed by Respondent's representative,
be posted by Respondent immediately upon receipt thereof, and be maintained by it
for a period of at least 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that such notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for Region 30, in writing, within 20 days from the
date of receipt of this Trial Examiner's Decision, what steps the Respondent has taken
to comply herewith.12
"In the event that this Recommended Order Is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board's Order Is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
12 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 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 bargain, upon request, with Drivers, Salesmen, Warehousemen, Milk
Processors, Cannery, Dairy Employees and Helpers Union, Local No. 695,
affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclusive representative of all the
employees in the bargaining unit described below with respect to rates of pay,
BANNER BISCUIT CO. 1133
wages, hours of employment, or other terms and conditions of employment, and,
if an understanding is reached , embody it in a signed agreement. The bargaining
unit is:
All of our regularly employed drivers excluding all office clerical
employees, casual employees, guards , and supervisors as defined in the Act.
WE WILL NOT interrogate employees as to their union interests and activities in
a manner constituting interference , restraint, or coercion within the meaning of
Section 8 (a)( I) of the Act.
WE WILL NOT threaten employees with economic reprisals or promise them
economic benefits for the purpose of influencing their union activities or
sympathies.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization , to form, join, or
assist Drivers, Salesmen , Warehousemen, Milk Processors , Cannery, Dairy
Employees and Helpers Union, Local No. 695, affiliated with the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen , and Helpers of America,
or any other labor organization , to bargain collectively through representatives
of their own choosing , and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection , or to refrain
from any or all such activities , except to the extent that such right may be affected
by the provisions of Section 8 (a) (3) of the Act, as amended.
HEICK MOVING & STORAGE, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Titiel
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, Second
Floor, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin , 53203,
Telephone No. 272-8600 , Extension 3860 , if they have any questions concerning
this notice or compliance with its provisions.
Banner Biscuit Co. and American Bakery and Confectionery
Workers International Union , AFL-CIO. Case No. 17-CA-
2313. January 19, 1965
DECISION AND ORDER
On October 23, 1964, Trial Examiner Lloyd Buchanan issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, Respondent filed exceptions with a sup-
porting brief to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
The Board has considered the entire record in this case, including
the Trial Examiner's Decision and the exceptions and brief of the
Respondent, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
150 NLRB No. 111.