Kimbrough Trucking Co.

National Labor Relations Board - Board Decisions

Sep 7, 1966

160 N.L.R.B. 954 (N.L.R.B. 1966)

954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Notify said Regional Director, in writing, within 20 days from receipt of this
Decision, what steps have been taken to comply therewith.?
'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 front
the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL MEMBERS OF AND TO ALL EMPLOYEES OF
AKRON ENGRAVING COMPANY
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT coercively follow or threaten with physical violence the em-
ployees of Akron Engraving Company or the employees of any other employer
if they continue to work for the Company or such other employers who do
business with the Company during our strike against it.
WE WILL NOT in any like or ielated mannei restrain or coerce employees in
the exercise of rights guaranteed them by Section 7 of the Act.
CLEVELAND LOCAL No. 24-P LITHOGRAPHERS AND PHOTO-
ENGRAVERS INTERNATIONAL UNION, AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office. 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone 621-4465_
Ozella Harrington , d/b/a Kimbrough Trucking Co. and Team-
sters , Chauffeurs, Warehousemen & Helpers of America, Local
310, affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America. Case 28-
CA-1293. September 7, 1966
DECISION AND ORDER
On July 1, 1966, Trial Examiner James R. Hemingway issued his
Decision in tine above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
and recrnumendnlg that it. cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial E'xaminer's Deci-
sion. Thereafter, Respondent filed exceptions to the Tiial Examiner's
Decision, and a supporting brief, limited to the Section 8(a) (5) and
derivative Section 8(a) (1) findings.
Pursuant to the prosisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Zagoria].
160 NLRB No. 79.
KIMBROUGH TRUCKING CO. 955
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 Respondent's exceptions, the brief, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'
[The Board adopted the Trial Examiner 's Recommended Order.]
S The Trial Examiner , in the first paragraph of his Decision , no doubt through in-
advertence, describes the complaint as alleging violations of "Section 8(a)(1) and (5),"
thereby omitting reference to the 8 ( a)(3) allegation therein . The description of the com-
plaint is, accordingly, corrected to read "Section 8(a) (1), (3 ), and (5 ) of the Act."
TRIAL EXAMINER 'S DECISION AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , under Section 10 ( b) of the National Labor Relations Act, as
amended , 29 U.S .C. Sec. 151 et seq ., herein called the Act , was commenced by
the filing of a charge by Teamsters , Chauffeurs , Warehousemen & Helpers of
America, Local 310 , affiliated with International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen & Helpers of America , herein called the Union , on Octo-
ber 21 , 1965 . and an amended charge filed on November 30, 1965, pursuant to
which a complaint was issued on November 30, 1965, against Ozella Harrington,
d/b/a Kimbrough Trucking Co., herein called the Respondent . The complaint
alleged that the Respondent had engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and ( 5) of the Act.
Pursuant to notice , a hearing was held in Tucson , Arizona, on March 31, 1966,
before Trial Examiner James R. Hemingway.' Following the close of the hearing
the General Counsel and the Respondent filed briefs with me.
Upon my observation of the witness , and on all the evidence in the case, I make
the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is and has been at all times material herein an individual
proprietor doing business under the trade name of Kimbrough Trucking Co., with
her principal place of business at Benson, Arizona, where Respondent is engaged
in furnishing trucking and haulage services. During the year preceding the issuance
of the complaint, in the course and conduct of her trucking and haulage operation,
Respondent derived gross income equal to, or in excess of, $50,000 from said op-
erations which were performed for firms within the State of Arizona, which, in
turn, made sales to customers outside the State of Arizona, in total in excess of
$50,000 during said period. The Respondent concedes jurisdiction of the Board
and I find that it will effectuate the policies of the Act to assert jurisdiction.
H. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to membership employees of the
Respondent.
an. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
On August 27, 1965 , 6 of the 10 employees of Respondent designated the Union
as their collective -bargaining representative . On August 30, 1965, the Respondent
1 The transcript is replete with errors , mostly in spelling which, In most instances, do
not interfere with the reader 's understanding of what is meant. However , some errors are
sufficiently egregious to require correction , especially in cases where the misspelling might
alter the sense of the testimony . Accordingly the transcript is hereby corrected as shown
in the attached Appendix B.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received a letter from the Union notifying her that the Union had been designated
by the employees as their exclusive bargaining representative and requesting that
Respondent meet with the Union at a mutually convenient time for'the purpose of
negotiating a collective-bargaining agreement. On the same day that this request
for recognition and bargaining was received, the Respondent posted a notice to all
employees reading as follows:
Effective September 1, 1965, there will not be any gas put in your automobiles
from our pumps. Do not charge any parts, etc. for personal use to our ac-
counts. Turn in all bills and expense money, also pay all advances. It will be
necessary to have a purchase order for all repairs and parts.
Thank you
Ozella
Before this notice was posted, the employees had been permitted for a number of
years to purchase gasoline from the Respondent for use in their personal automo-
biles at prices generally lower than those charged at most service stations. They
would fill their gas tanks themselves and were on their honor to enter the correct
number of gallons in a book that was provided for that purpose. At the end of
the pay period, the Respondent would determine the amount owed for gasoline by
each employee and would deduct it from his pay check. Once, several years be-
fore the events herein related, the Respondent had determined that one of the
employees was not making correct entries of gasoline taken for private use and
discontinued for a short time the privilege of taking gasoline. At an unspecified
time, that employee ceased to be employed by the Respondent. Presumably fol-
lowing his departure, the Respondent had resumed the practice of allowing the
taking of gasoline for private use as it previously had existed and continued the
practice until September 1, 1965, when it was terminated pursuant to the notice
of August 30.
The Respondent had also permitted employees to charge automotive parts for
their private automobiles to Respondent's account at the dealers from whom the
Respondent received a fleet discount. This privilege made a great deal of work for
the Respondent when the seller would bill the purchases to the Respondent without
indicating whether or not the parts charged were for private automobiles or for
trucks. However, the Respondent apparently put up with the inconvenience until the
date of the notice, August 30, 1965.
Before that date it had also been a common practice for the truckdrivers to have
repairs made on the trucks they drove and to obtain parts in connection with the
repairs without the necessity of obtaining a purchase order for them. The Respond-
ent testified that she had from time to time requested the men to get purchase orders
but that she would get lax and take care of the employee's purchases without a
purchase order. Since August 30, 1965, the Respondent's full-time mechanic has
issued the purchase orders as needed.2
When a driver was sent on a trip out of town, it was the Respondent's practice
to advance a certain amount of money to cover his expenses. Upon his return, he
Was supposed to turn in his bills and any excess of expense money remaining. The
drivers were careless about this and the Respondent would have to call for an
accounting before making out the paycheck for such driver. The reminder in the
notice was, therefore, not a change in practice.
It had also, before August 30, 1965, been the practice of the Respondent, at
times, to put cases of soft drinks in the refrigerator and to let the drivers help
themselves. The Respondent testified that, without her knowledge, the mechanic
had taken it upon himself to post a notice on the refrigerator "Pop, lOc" and to
put a can on top of the refrigerator in which to put the money. The mechanic's
change in the former practice was not alleged in the complaint to be a violation
of the Act. However, the deprivations mentioned in the aforesaid notice are all
alleged to constitute discrimination in violation of the Act.
The Respondent testified that the posting of the notice had nothing to do with
the Union or with the notice of its claim to represent the Respondent's employees,
that she had posted it at that time only because it was the first of the month.
2 The Respondent had had a full -time mechanic only since June or July 1965.
KIMBROUGH TRUCKING CO. 957
However, in an affidavit given to the Board on October 29, 1965, the Respondent
stated , "The men had been taking advantage of gas, parts, and advances policies
that I had prior to August 30, 1965. 1 was considering doing away with these
policies for some time, but I didn't. The men signing up for the Union brought
it to a head." From this, as well as from the fact that the notice was quite com-
prehensive in its coverage, the inference is inescapable that the reason for Respond-
ent's posting of a notice on the very day of receipt of the Union's request for recog-
-nition and bargaining was to discourage their continued support of the Union.
Accordingly, I conclude and find that, by posting the notice of October 30, 1965, the
Respondent discriminated in regard to the terms and conditions of employment of
her employees thereby discouraging membership in a labor organization, and inter-
fered with, restrained, and coerced them in the exercise of the rights guaranteed in
Section 7 of the Act.3
B. The refusal to bargain
1. The appropriate unit
The complaint alleged and the answer admitted that all Respondent's drivers,
exclusive of mechanics and helpers, janitors, office clericals, and supervisors as
defined in the National Labor Relations Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9(b) of the Act,
and I so find.
2. The Union's majority
As previously stated, on August 27, 1965, the majority of the employees desig-
nated the Union as their representative for the purposes of collective bargaining
with the Respondent. The Respondent. concedes this, and I so find. The Respondent's
only contention is that the Union lost its majority thereafter. This contention will
be considered hereinafter.
3. The refusal to bargain
Following the posting of the aforesaid notice of August 30, 1965, the Respondent
retained counsel, and on August 31, 1965, this attorney, John Boland, verbally
notified the Union that the Respondent recognized the Union as the bargaining
representative of the aforesaid employees of the Respondent. On September 2, •1965,
Boland confirmed this oral commitment in writing. On September 9, 1965, the
Union delivered its proposed contract to Boland, and receipt thereof was later
acknowledged by Boland. On October 6, 1965, the first negotiation session between
the parties was held in the Respondent's office in Benson, Arizona. At this time,
the Union and the Respondent, discussed the Union's proposal. and reached tenta-
tive agreement on several provisions. Because of mutual commitments, the parties
agreed that they would not meet again until sometime after October 15, 1965.
Meanwhile on September 16 and October' 8 and 11, 1965, employees Ferris, Bur-
ton, and Smith, respectively, all of whom had signed union authorization cards,
resigned their employment with the Respondent and other employees were hired
to replace them.
Upon learning of the three resignations, Attorney Boland, on or about October 20,
1965, telephoned the Union's representative and informed him that, in view of
the resignations, the Respondent doubted that the Charging Party continued to
represent a majority of Respondent's employees and that the Respondent was, there-
fore, withdrawing recognition of the Union as the employees' bargaining repre-
sentative and that it would refuse to negotiate further, although Boland said that
the Respondent would agree to abide by the results of an election.
The Respondent, conceding that a collective-bargaining representative's majority
may not be questioned within a year following certification by the Board, claims
that this is not true where initial recognition has been voluntarily granted without
Board action. The Board, however, has already decided against this. contention. In
Keller Plastics Eastern, Inc., 157 NLRB 583, the Board, after' reviewing the law
with respect to the effect of a loss of majority. following certification, Board orders,
and settlement agreements, decided that -the same rule applied in cases where the
3 Hoffinan-Tall', Inc., 135 NLRB 1319.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective-bargaining representative had been voluntarily recognized, and it quoted
from its language in Poole Foundry and Machine Company, 95 NLRB 34, 36;
It is well settled that after the Board finds that an employer has failed in his
statutory duty to bargain with a union, and orders the employer to bargain,
such an order must be carried out for a reasonable time thereafter without re-
gard to whether or not there are fluctuations in the majority status of the union
during that period. [Emphasis supplied.] 4
The Respondent argues that the General Counsel has the burden of proving the
majority of the Union at the time of the refusal to bargain and that he has here
failed to do so. This argument overlooks the fact that, once a union is validly recog-
nized as the collective-bargaining representative of the employer's employees in an
appropriate unit, the collective-bargaining representative acquires a status which
continues, absent unusual circumstances , for a reasonable time during which the
collective-bargaining process is given an opportunity to reach fruition,' and "mere
substantial turnover of employees in the appropriate unit can certainly not be re-
garded as an indication that the Union's previously established majority was thereby
impaired ..."' Specifically what might constitute a reasonable period of time in
which to give the bargaining process a fair chance to succeed is not necessary to be
decided here, because, in any event, the single bargaining meeting held in this case
was not adequate, and the parties were not at an impasse on October 20, 1965, when
Respondent withdrew recognition.
I find, therefore, that on August 27, 1965, and at all pertinent times thereafter,
the Union was the exclusive representative of all Respondent's employees in the
appropriate unit within the meaning of Section 9(a) of the Act and that, on and
after October 20, 1965, the Respondent has failed and refused to bargain with the
Union in violation of Section 8(a) (5) and (1) of the Act.
IV. THE REMEDY
The notice of August 30, 1965, altered certain procedures followed by Respond-
ent or required existing procedures to be more rigidly followed. This includes the
necessity for obtaining orders from the mechanic for necessary repairs to Respond-
ent's equipment, accounting for and refunding travel advances, reporting private
automobile parts charged to Respondent and the like. To the extent that the notice
merely tightened up on existing rules, I find that it is not necessary or advisable to
require a restoration of lax practices. However, the elimination of the long enjoyed
privilege of buying gasoline or automobile parts at the price paid by Respondent was
discriminatory, and only by restoration of such privileges will the effect of the unfair
labor practices be dissipated. My Recommended Order will include a requirement of
such restoration.
I shall also recommend an order that, upon request, Respondent bargain collec-
tively with the Union and, if an understanding is reached, embody such understand-
ing in a signed agreement.
The customary cease-and-desist order will also be recommended.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent's drivers, exclusive of mechanics and helpers, janitors, office cleri-
cal, and supervisors, as defined in the Act constitute a unit appropriate for the pur-
pose of collective bargaining within the meaning of Section 9(b) of the Act.
' See also Universal Gear Service Corporation, 157 NLRB 1169.
5 In Franks Bros. Company v. N.L.R.B ., 321 U.S. 702 , the Supreme Court said : " . a
bargaining relationship once rightfully established must be permitted to exist and function
for a reasonable period in which it can be given a fair chance to succeed."
6 The National Plastic Products Company, 78 NLRB 699.
KIMBROUGH TRUCKING CO. 959
4. On August 27, 1965, and at all times pertinent hereto the Union has been and
now is, the exclusive representative of the employees in the appropriate unit herein
found, within the meaning of Section 9(a) of the Act.
5. By refusing on and after October 20, 1965, to bargain collectively with the
Union, the Respondent has engaged in unfair labor practices within the meaning of
8(a)(5) of the Act.
6. By depriving her employees of certain discount rights and privileges previously
enjoyed because they joined or assisted the Union, thereby discouraging membership
in a labor organization, the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) of the Act.
7. By the conduct described in paragraphs 5 and 6 above, the Respondent has
interfered with, restrained, and coerced her employees in the exercise of the rights
guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
It is recommended that the Respondent, Ozella Harrington, doing business as Kim-
brough Trucking Co., her officers, agents, successors, and assigns, shall
1. Cease and desist from:
(a) Discriminating in regard to terms or conditions of employment of any
employee of Respondent by depriving him of benefits previously enjoyed because he
joined or assisted the Union, thereby discouraging membership in a labor
organization.
(b) Refusing to bargain collectively with Teamsters, Chauffeurs, Warehousemen
& Helpers of America, Local 310, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, upon request.
(c) In any like or related manner interfering with, restraining , or coercing her
employees in the exercise of their right to self-organization, to form, join, or assist
labor organizations, including the above-named Union, to bargain collectively
through representatives of their own choosing, or to engage in other concerted activ-
ities for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
2. Take the following affirmative action, which I find will effectuate the policies
of the Act:
(a) Restore to her employees the privileges of purchasing gasoline and automo-
bile parts as that privilege existed immediately before August 30, 1965.
(b) Upon request, bargain collectively with the Union as the exclusive represent-
ative of all employees in the appropriate unit and, if an understanding is reached,
embody such understanding in a signed agreement.
(c) Post at her place of business in Benson, Arizona, copies of the attached notice
marked "Appendix A."' Copies of said notice, to be furnished by the Regional
Director for Region 28, after being duly signed by Respondent, shall be posted by
her immediately upon receipt thereof, and be maintained by her for 60 consecutive
days thereafter, in conspicuous places, including all places where notices to her
employees are customarily posted. Reasonable steps shall be taken by Respondent to
assure that said notices are not altered, defaced, or covered by any other material.
(d) Notify the said Regional Director, in writing, within 20 days from the date
of receipt hereof, of what steps Respondent has taken to comply herewith.'
7 In the event that this Recommended Order is adopted by the Board, the words "a Deci-
sion and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in this 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."
I In the event that this Recommended Order is adopted by the Board , this provision
shall read : "Notify the Regional Director for Region 28, in writing , within 10 da} s from
the date of this Order, what steps the Respondent has taken to comply herewith.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
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:
I WILL NOT discriminate against any of my employees in regard to hire or ten-
ure of employment or any term or condition of employment because he has
joined or assisted Teamsters, Chauffeurs, Warehousemen & Helpers of America,
Local 310, affiliated with International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other labor organization.
I WILL NOT interfere:with, restrain, or coerce my employees in the exercise of
their right to self-organization, to form or join labor organizations, including
Teamsters, Chauffeurs, Warehousemen & Helpers, Local 310, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, or any other labor organization, to bargain collectively through
representatives of their own choosing, or to engage in other concerted activity
for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
I WILL restore to my employees the privileges of buying gasoline or automo-
bile parts for their private automobiles at cost to me
I WILL,,upon request, bargain collectively with Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, Local 310, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and if
an understanding is reached, I will embody such understanding in a signed
agreement:
OZELLA HARRINGTON, D/B/A KIMBROUGH TRUCKING CO.,'
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 500 Gold
Avenue SW., Albuquerque, New Mexico, Telephone 247-2583.
APPENDIX B
CORRECTIONS IN TRANSCRIPT
Page 1, line 19, change Aira to Ira here and wherever the name thereafter appears;
change Lant to Land; page 4, line 22, change to to too; page 5, line 14, change stipu-
lation to stipulated; page 8, line 12, change refuses to refused; page 9, line 21, change
August to October; page 11, line 21, insert to after referring; page 12, line 12, change
affect to effect; page 12, line 19, change brake to break; page 13, line 17, change by
to buy; page 15, line 14, change lack to lax; page 16; line 15, change sence to sense,
page 17, line 24, change baught to bought; page 18, line 16, change spasmotic to
spasmodic; page 18, line 17, change lacks to lax; page 18, line 18, change aloud to
allowed; page 19, line 11, change question mark to a period, page 20, line 1, change
affect to effect; page 20, line 7, change liket to like it; page 20, line 11, change obused
to abused; page 20, line 18, change there priviledge to their privilege; page 21, line 15,
change affective to effective; page 25, line 5, change have striken to have been
stricken; page 25, line 11, change ask to asked; page 26, line 17, change there to
shot to short; page 28, line 1, change straitened to straightened; page 28, line 2,
their; page 26, line 18, change counterman to countermand; page 27, line 13, change
shot to short; page 28, line 1, change straitened to straightened; page 28, line
2, change by to buy; page 28, line 19, change stollen to stolen; page 29, line 10,
change Bollen to Boland here and wherever the name appears; page 29, line 16,
change to to too; page 31, line 2, change aloud to allowed; page 31, line 3, change on
to own; page 32, line 5, change aught to ought; page 33, line 5, between representa-
tion and comma, insert election; page 34, line 3, change desire to desires; page 34,
line 17, change close to closed.