Nashville Lumber Co.

National Labor Relations Board - Board Decisions

Jan 20, 1967

162 N.L.R.B. 1027 (N.L.R.B. 1967)

NASHVILLE LUMBER CO. 1027
he could," and that he was sorry that it happened "but they had to keep the freight
moving." According to Vogel, Bauer felt the employees were getting a "raw deal."
During the course of the discussions , Vogel said that Bauer indicated that he
would not assign loads to Local 710 contract unit drivers because "they were
afraid there would be trouble ." Bauer was also quoted by Vogel as saying that "he
would continue to try to get [the 710 contract unit drivers'] seniority." Vogel testi-
fied that Mr . Burke, a company lawyer, suggested that the employees transfer and
join 705 "under duress."
Vogel agreed that the hauling of dry freight was in Local 705 's jurisdiction and
that it was mentioned during the discussions that "the reason for the request for
transfer from Local 710 to 705 was because the employees of 710 were doing work
which 705 claimed was in its jurisdiction."
None of the 710 contract unit employees filed a grievance with the Respondent
Employer or with the Unions. The only action taken by them was the charge filed
with the Board. They pressed no claim under the collective -bargaining agreements.
The foregoing facts make it trenchantly clear that the General Counsel has not
established a prima facie case supporting the allegations that "Re "spondent Com-
pany, Respondent 705, and Respondent 710 have entered into , performed, main-
tained, and otherwise given effect to an arrangement, understanding or practice
whereby Respondent Company gave and delegated to Respondent 705 and Respond-
ent 710 jointly , and Respondent 705 and Respondent 710 accepted and exercised
the final and exclusive control over the seniority ranking of Respondent Company's
employees , and thereby over the employment , order, duration , and tenure of
employment and reemployment , and over the order and duration of layoff of and
recall of said employees," as alleged in the consolidated complaint . To hold the
Respondent guilty of unfair labor practices under the circumstances of this case is
tantamount to holding that it is unlawful for employers and representatives of
employees to resolve seniority controversies through the practices and procedures
of collective -bargaining agreements and the governing rules and regulations of the
unions involved . The law condones no such paradox but fosters the settlement of
disputes by the method agreed upon by the parties "Section 203(d) of the Labor
Management Relations Act, 1947, 61 Stat. 154, 29 U.S.C. Sec . (d), states, `Final
adjustment by a method agreed upon by the parties is hereby declared to be the
desirable method for settlement of grievance disputes arising over the application
or interpretation of an existing collective -bargaining agreement . That policy
can be effectuated only if the means chosen by the parties for settlement of their
differences under a collective bargaining agreement is given full play." United
Steelworkers of America v. American Manufacturing Co., 363 U.S. 564, 566.
The Respondents ' motions to dismiss are granted . The consolidated complaint
is dismissed in its entirety.
Nashville Lumber Company and Chauffeurs and Helpers Union
Local 50, affiliated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen and Helpers of America.
Case 14-CA-3883. January 00, 1967
DECISION AND ORDER
On September 21,1966, Trial Examiner Benjamin B. Lipton issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had not engaged in unfair labor practices as alleged in the
complaint and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Decision and a supporting brief and the Respondent filed a
brief in support of the Trial Examiner's Decision.
162 NLRB No. 104.
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
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 and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order
dismissing the complaint.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed by the Union on February 3, 1966, the General Counsel of
the National Labor Relations Board issued a complaint on March 16, 1966, alleg-
ing that the Respondent violated Section 8(a)(5) of the Act. On May 19, 1966, in
St. Louis, Missouri, a hearing was held before Trial Examiner Benjamin B. Lipton
in which all parties were represented and were afforded full opportunity to present
relevant evidence. Oral argument on the record was waived. Briefs filed by the
General Counsel and Respondent have been duly considered.
Upon the entire record in the case,' and from my observation of the witnesses'
demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Nashville Lumber Company is engaged at Nashville, Illinois, in the sales of
lumber and the manufacture and sale of ready-mixed concrete. During the year
1965, Respondent purchased goods and materials valued in excess of $50,000,
which were transported and delivered to it directly from points outside the State
of Illinois. It is admitted, and I find, that Respondent is engaged in commerce
within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Essential issues
1. Whether the Union had valid authorization cards from an uncoerced majority
of employees in the appropriate unit at the time it requested recognition of
Respondent.
2. If so, whether Respondent engaged in an unlawful refusal to bargain-after
according recognition to the Union, and then withdrawing such recognition on
grounds that it had a good-faith doubt that the Union represented a majority of
the unit employees.
B. Introductory facts and background
Rudolph Nordin, assistant business agent of the Union, testified on cross-
examination and without contradiction to the following effect: About 1961,
'Without opposition, the motion to correct transcript filed by the General Counsel (as
contained in the formal file of the case) is hereby granted.
NASHVILLE LUMBER CO. 1029
Respondent could not get its ready-mixed concrete delivered on a certain bridge
construction job "because the people would not accept concrete from this com-
pany. They called me and I agreed to give the boys cards to help the company so
they could deliver to that job . . . and so the two drivers always carried cards " 2
The two drivers currently employed by Respondent, who constitute the appropriate
bargaining unit,3 are Virgil Holzhauer, hired in April 1963, and Leroy Bergmann,
hired in July 1965? Bergmann had not taken out a union card. There is pertinent
evidence that in the fall of 1965, at a union job near Wayne City, Bergmann had
completed delivery of ready-mixed concrete when Nordin drove up and asked him
if he had his union card. Receiving a negative reply, Nordin said that if he had
known Bergmann had no card, he would not have allowed him to unload the con-
crete.5 Thereafter, it appears, only Holzhauer was used by Respondent to make
deliveries to the union jobs.
Holzhauer testified that when he was hired, Respondent's manager (then Mr.
Warne) requested that he join the Union, which he did. He personally sent a
check each month to the Union for his dues, but in each instance, he was reim-
bursed by Respondent for the amount of the monthly dues, until December 1965.
Leon Coil, Respondent's present manager, testified that (about December 1965) 6
he talked to Respondent's attorney concerning the dues-paying arrangement, was
advised "that we weren't doing the right thing," and thereafter stopped the specific
monthly reimbursement, but increased Holzhauer's salary "to cover his union
dues." However, Holzhauer never told anyone from the Union that Respondent
was paying his dues.
C. Question of Union 's majority status
In late October 1965, Business Representative Nordin visited Holzhauer at the
latter's home. Nordin testified that he told Holzhauer that the Union had no con-
tract with Respondent, that he was not getting any benefits except a $1,000 insur-
ance policy which he could buy commercially at a lower rate, and that he should
sign an authorization card giving the Union the right to negotiate a contract to
better his wages and working conditions. On cross-examinaton, Nordin gave the
following testimony:
Q. When you were talking to Holzhauer about his signing the new card,
did you say anything to him about taking his card away?
A I told him it was no use to pay union dues because we were not help-
ing him at all. All he was getting was the insurance.
Q. Did you tell him he didn't have to pay his dues, that if you didn't get
a contract you weren't going to take his dues anymore, is that right?
A. If I said that, that doesn't mean I would take his card away.
Q. I am just asking what you said , if you said that.
A. I don't recall.
Q. But you could have said that?
A. It is possible.
Holzhauer testified in substance. Nordin introduced himself, and then asked him
to sign an authorization card so that the Union could negotiate a contract with
Respondent. At first he "didn't want to," but Nordin "talked a little more and then
he said if I didn't sign it they could refuse my dues, so then I went ahead and
signed it " Holzhauer did not read the card before signing.
After receiving the signed card, Nordin said he wanted to see Folzhauer's
"partner" and obtained from Holzhauer directions to drive to the home and farm
2 Elsewhere on cross-examination, Nordin stated that "We [the Union] go out on these
construction jobs and check the drivers, see if they have deliveries, and so on, and we do
not take people off of jobs ; we can't do that That is up to the contractor If the people
do not have cards or something like that we talk to the contractor and ask him to get it
straightened out . . . It's up to the contractor when they sign an agreement with us
that they will employ only union men "
3 Stipulated by the parties.
4 Bergmann maintained his own farm and was not relied upon by Respondent to work
on a full-time basis.
6 Based upon Bergmann's testimony Nordin could not remember what he told Bergmann,
but he recalled the incident and that Bergmann did not have a card at the time
8 The Union had presented its initial recognition and bargaining demand upon Respondent
on November 17, 1965, infra
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Bergmann, the other driver of Respondent. Nordin spoke to Bergmann in the
yard outside the farmhouse.? Nordin testified he told Bergmann the same thing he
said to Holzhauer-that he wanted Bergmann to sign an authorization card so
that the Union could bargain with Respondent for a contract. He also indicated
that he had "just" spoken to Holzhauer, who signed a card. However, Bergmann's
version was that Nordin said-"he had a card he wanted me to sign so I could join
the Union and Mr. Holzhauer could keep his card." Without asking any questions,
Bergmann signed the card, which he did not read.8
On November 17, Nordin visited the plant and presented a bargaining demand
to Leon Coil, Respondent's manager. Nordin admitted stating, inter alia, that
Holzhauer had no representation whatever from the Union, although he was a,
member, and that the Union might be doing something illegal by accepting his
dues.9
At this meeting, Coil and Nordin signed a "Recognition Agreement," in which
the Respondent recognized the Union as exclusive bargaining agent, and further
agreed to negotiate a collective-bargaining agreement within 30 days. On subse-
quent dates, the two principals discussed and bargained concerning terms of a
contract, and Nordin undertook to draft a "sample" agreement, which was sub-
mitted to Coil. At a meeting on January 17, Coil informed Nordin that Respondent
decided it would be better off to dispense with any union agreement and to cease
deliveries to union contractors, which was only a minor part of Respondent's
business. Nordin mentioned the Recognition Agreement and the authorization
cards signed by the drivers, whereupon Coil agreed to go over the draft contract
prepared by the Union and start working something out. However, on January 21,
Coil sent Nordin a letter in which Respondent, for the first time, questioned the
Union's majority and indicated that it was not obligated to negotiate a contract
without a Board certification. On January 24, Nordin came to the plant and showed
Coil the two signed authorization cards of the drivers. According to Nordin, Coil
said, "I guess you do represent both the employees So, we will have to negotiate."
Coil then arranged to call Nordin to set a date for the next meeting Thereafter,
Respondent filed with the Board an election petition, which was dismissed on
March 17, in view of the instant complaint.
D. Conclusions
To support a finding of a refusal-to-bargain violation, it is of course essential
that the union's actual majority representation be established during the effective
time of its recognition demand. Absent such a preliminary finding, it can be of no
avail to the General Counsel's case that evidence of subsequent events-no matter
how strong-would tend to show a lack of good faith by the employer in question-
ing the union's asserted majority status.
In the present case, it is necessary to consider all the background facts properly
to decide the majority question, i e., issues concerning the validity of the authori-
zation cards of Holzhauer and Bergmann. Originally, about 1961, there was the
arrangement made between Respondent and the Union in which Respondent's
drivers were given union membership cards in order to overcome what Nordin
testified was the refusal of "the people" on union construction jobs to accept delivery
of ready-mixed concrete from Respondent. Consistent with this arrangement, when
Holzhauer was hired in April 1963 he was required by Respondent to take out
such union membership, which he did. Thereafter, he was regularly recompensed
by Respondent for all his union dues.
In October 1965, Union Agent Nordin deemed it necessary to obtain a signed
authorization card from Holzhauer, although he was already a member.10 When, on
9 When Nordin arrived , Bergmann was engaged , with the help of neighbors, in filling a
silo and, as he testified, was anxious to get back to this work.
8 Holzhauer and Bergmann were Respondent 's witnesses
0 Coil testified that Nordin said "that we would have to have a simple little contract to
cover the men that were working because at the present time the way it was we were
permitting an illegal act and he was by accepting Holzhauer 's union dues."
10 Ordinarily , the current union membership of an employee would in itself constitute
authorization to the union to represent such an employee in collective bargaining. FWD
Corporation, 138 NLRB 386. In his testimony , Nordin explained in effect that he wanted a
card from Holzhauer as a basis for obtaining a Board election. As already indicated, Nordin
did not use the authorization cards for such purpose.
NASHVILLE LUMBER CO. 1031
November 17, Nordin initially presented his requests for recognition and for nego-
tiation of a contract, he sought to impress upon Manager Coil the fact the "the
Union might be doing something illegal by accepting [Holzhauer's] dues." The
source of Nordin's opinion of possible illegality was not revealed." In any event, it
is plain that union membership was imposed upon Holzhauer by Respondent and
that this element of compulsion continued to taint his membership while Respond-
ent paid him back each month the amount of his union dues. It is immaterial
whether or not the Union was aware that Respondent was in effect paying the
dues. Such membership cannot be regarded as providing a valid authorization to
the Union to represent Holzhauer in collective bargaining.12
Reverting to the occasion in October 1965, when Nordin sought and secured
from Holzhauer a signed authorization card, Holzhauer's testimony concerning
the conversation which took place is substantially uncontroverted and is credited
At first unwilling to sign the card, Holzhauer did so only after Nordin told him
that if he did not sign, the Union "could refuse" to take his dues Despite Nordin's
testimonial protestation that his statement "doesn't mean I would take his card
away,"-the meaning conveyed to Holzhauer could hardly be misunderstood.
Surely, Nordin was not suggesting to Holzhauer that he would be allowed to keep
his membership card as a "free rider." Particularly in the present context, it may
reasonably be assumed that Holzhauer's membership was contingent upon the pay-
ment and receipt of requisite union dues and fees. More directly, however, Nordin's
statement must be related to the arrangement with Respondent, which was con-
tinuing, wherein he agreed to accept the drivers into membership, necessarily upon
payment of dues, thereby enabling them to make deliveries at union jobs. Nordin,
I find, consciously took advantage of the existence of this arrangement to pressure
Holzhauer into signing a card And Holzhauer reasonably could, and apparently
did, construe Nordin's statement as an implicit threat to remove his union card,
with consequences which would affect his employment conditions. In the circum-
stances, it must be held that Holzhauer did not sign the authorization card volun-
tarily and without duress. While Respondent in a sense may be reaping a benefit
from its own wrongdoing when it compelled Holzhauer to become a union member,
the paramount consideration in determining the issue at hand are the rights of
employees under the Act freely to choose whether or not they desire representation
by a labor organization. Accordingly, it is concluded that Holzhauer's card may not
be counted as an authorization to the Union for purpose of determining majority
status
Supplementally, or alternatively, I find that the card of Bergmann, the other
employee in the appropriate unit, is similarly to be rejected Here, the credibility
conflict which exists in the testimony is resolved in favor of Bergmann-that
Nordin told him to sign the card so that he could join the Union and "Mr. Holz-
hauer could keep his card." From his encounter with Nordin in Wayne City in
the fall in 1965, Bergmann was made aware of the condition that, without a mem-
bership card, the Union would prevent Respondent's drivers from making deliveries
on a union job. He also knew that Holzhauer was the only driver with a union
card who was making such deliveries for Respondent. It is true, as argued by the
General Counsel, that Bergmann's subjective state of mind when he signed the
card is not relevant.13 However, the objective fact is that an implied threat to take
away Holzhauer's card accompanied Nordin's soliciting statement.14 Bergmann
could thus reasonably have been influenced by a concern in having his "partner,"
Holzhauer, retain his union card, or by a desire to keep open his employer's access
for deliveries to union jobs In any case, I am of the opinion that, by his state-
ment, Nordin exerted undue pressure upon Bergmann to sign the card, and thereby
rendered the card ineffective for the purpose, as essentially sought herein, of justi-
fying a bargaining order against Respondent.
"Cf. Sec. 302, Labor-Management Reporting and Disclosure Act of 1959
12 See, e g., Leas ,f McVitty. Incorporated, 155 NLRB 389 ; Heck's, Inc., 156 NLRB 760:
and J. C. Penney Co, 160 NLRB 279, in which activities and solicitations of supervisors
were held to invalidate alleged union authorizations. And cf. Barney Wilkerson Construc-
tion Company, 145 NLRB 704, 706.
13 Merrill Axle and Wheel Service, et al, 158 NLRB 1113
14 Also noted are the surrounding circumstances, as earlier related, that Bergmann signed
the card, without reading it, in the haste of the situation ; and there is no other evidence
showing an affirmative desire on his part to have the Union act as his representative.
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis that the Union did not represent a majority of the employees in
the appropriate unit at the material times that it demanded recognition of Respond-
ent, it is found and concluded that Respondent did not unlawfully refuse to bargain
collectively with the Union.15
Upon the foregoing findings of fact, and upon the entire record in the case, I
make the following:
CONCLUSIONS OF LAW
1. 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 the Act.
3. The allegations of the complaint that Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5) of the Act have not been sup-
ported by substantial evidence.
RECOMMENDATION
It is recommended that the complaint be dismissed in its entirety.
15 No other unfair labor practices by Respondent are alleged or found herein. The
evidence reveals that, sometime between November 17 and December 16, Manager Coil
asked Bergmann if he had signed a union card and was answered negatively. Coil testified
that, after the January 17 meeting with the Union, he again questioned Bergmann and
received the same reply. However, Bergmann testified that, after the first of the year, Coil
did not ask him but he volunteered the information that he had "signed some kind of card,
that help me get a card and help Holzhauer keep his." The General Counsel contends that
an issue of illegal Interrogation, though not alleged, was fully litigated at the hearing and
should therefore be remedied by a formal cease and desist order. I do not agree that an
"issue" of an interrogation was fully litigated ; and In any event, as I find no violation,
I would not recommend the issuance of such an order in the circumstances of this case.
Jacksboro Billfold Company, Jacktex Shoe Manufacturing Com-
pany, Texas Lace Company, Genamco, Wier Leathercraft,'
Craft Tool Company, Tandy Warehouse Company , Gaico Hand-
bag Company, Wier Manufacturing Company, and Tandy
Plastics and Amalgamated Meat Cutters and Butcher Workmen
of North America, AFL-CIO. Case 16-CA-2578. January 20,
1967
DECISION AND ORDER
On August 24, 1966, Trial Examiner George A. Downing issued
his Decision in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the attached
Trial Examiner's Decision. Thereafter, the Respondents filed excep-
tions to the Trial Examiner's Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
1 This Respondent's name was Inadvertently misspelled in the caption In the Trial
Examiner's Decision, and is hereby amended.
162 NLRB No. 101.