Neuman Transit Co., Inc.

National Labor Relations Board - Board Decisions

Sep 18, 1962

138 N.L.R.B. 659 (N.L.R.B. 1962)

NEUMAN TRANSIT Co., INC. 659
6. By promulgating and enforcing broad rules against solicitation and the distribu-
tion of literature on company premises during nonworking time, the Respondent has
also engaged in unfair labor practices within the meaning of Section 8(a) (1) of the
Act.
7 The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act
[Recommendations omitted from publication.]
Neuman Transit Co., Inc. and International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of Amer-
ica, Local Union No. 307. Case No. 07-CA-1087. September 18,
1969
DECISION AND ORDER
On May 3, 1962, Trial Examiner David F. Doyle issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel and the Charging Party filed ex-
ceptions to the Intermediate Report together with supporting briefs.
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 [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
[The Board dismissed the complaint.]
i The Trial Examiner found that the appropriate unit for collective bargaining was one
comprising all drivers employed by the Respondent at its Rawlins, Riverton , Rock Springs,
Casper, Evanston , and Jeffrey City, Wyoming , terminals . On the other hand , the General
Counsel and International Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, Local Union No. 307, the Charging Party herein, contend, in pertinent
part, that the drivers assigned to the Jeffrey City terminal should be excluded from the
unit . In dismissing the complaint , herein , we find it unnecessary to resolve this issue
as to the appropriate unit for collective -bargaining purposes Here , the record clearly
shows, as found by the Trial Examiner. that the Respondent had a good -faith doubt as
to the majority status of the Union whether or not the Jefliey City drivers were included
in the unit Accordingly without passing upon the Taal Examiner's appropriate unit
determination , we agree with the Trial Examiner ' s remaining conclusions that the Re-
spondent had a good -faith doubt as to the majority status of the Union , and did not
violate Section 8(a) (5) or ( 1) by its refusal to bargain
138 NLRB No. 79.
662353-63-vol 138-43
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The charge in this case was filed by the above-named Union on August 22, 1961,
and complaint herein was issued by the Regional Director of the Board (Twenty-
seventh Region) on December 1, 1961.1 The Respondent filed a timely answer
and thereafter this proceeding came on regularly to be heard by Trial Examiner
David F. Doyle at Rawlins, Wyoming, on January 16 through 20, 1962. At the
hearing, the parties were represented by counsel who were afforded a full opportunity
to present evidence, examine and cross-examine witnesses, and to present oral
arguments and briefs on the issues.
Upon the entire record, and from my observation of the witnesses, I hereby make
the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OPERATIONS OF THE COMPANY
The pleadings and a stipulation of the parties establish that the Company is a
Wyoming corporation with its principal place of business at Rawlins , Wyoming,
where it is engaged in the business of a common and contract carrier, hauling general
freight, livestock , oil products , chemicals, ores , and other commodities . The Com-
pany annually derives gross revenues in excess of $50,000 from the interstate trans-
portation of general freight, oil products , and other materials and commodities.
In the course and conduct of its business the Company maintains terminals and
places of business at Rawlins , Riverton , Rock Springs, Evanston , Casper, and
Jeffrey City, Wyoming.
It is not disputed , and I find, that all times pertinent hereto the Company was and
is an employer engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted in the pleadings , and I find, that the Union at all times pertinent
hereto was , and is, a labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The issues
The complaint herein alleged that between August 19 and 23, 1961, the Company
committed unfair labor practices in violation of Section 8(a) (1),(3), and (5) of the
Act. The answer of the Company denied the commission of unfair labor practices
and asserted certain affirmative defenses. At the hearing the General Counsel in-
troduced the formal documents basic to the proceeding and at that point the Trial
Examiner suggested that opening statements by counsel followed by a pretrial
conference on the record might be beneficial to ascertain any areas in which the
parties agreed and to sharpen the issues requiring litigation. Counsel agreed to
the suggestion.
In the ensuing pretrial conference the following issues emerged:
1. The General Counsel contended that on August 19, 1961, the Company had
discharged employees Sealock and Stanley for engaging in union activities and
had on about the same date laid off employees Jones, Frederick, Saxton, and Stans-
bury for the same discriminatory reason, all in violation of Section 8(a)(3) and (1)
of the Act. The Company contended that Sealock and Stanley were discharged for
good and sufficient cause-failure to report for work; and that Jones, Frederick,
Saxton, and Stansbury were temporarily laid off because of lack of work.
2. The General Counsel contended that the Union in an organizational campaign
achieved majority status of the Company's employees in a unit appropriate for
bargaining on or about August 20, 1961, and thereafter properly demanded recog-
nition by the Company and bargaining, which was refused by the Company. He
also contended that by the unfair labor practices involving the discharges and
layoffs, the Company had refused to bargain with the Union, all in violation of
I In this report the Charging Party, International Brotherhood of Teamsters. Chauffeurs,
Warehousemen and Helpers of America, Local No 307, is referred to as the Union or the
Teamsters ; Neuman Transit Co , Inc., as the Respondent, the Company, or the Employer ;
the National Labor Relations Board as the Board; and the Labor Management Relations
Act, as amended, as the Act ; the General Counsel of the Board and his representatives
at the hearing, as the General Counsel.
NEUMAN TRANSIT CO., INC. 661
Section 8(a)(5) of the Act. The Company on this point contended that the dis-
charges and layoffs were lawful, as set forth above, and that it refused to recognize
the Teamsters as the representative of its employees because the Company had a
good-faith doubt that the Teamsters represented a majority of its employees in any
unit which the Board, on the basis of its decisions, could find appropriate.
3. The General Counsel contended that certain of the Company's officers and
supervisors had interrogated certain employees concerning their concerted activities
and threatened employees with loss of employment or other economic reprisals if
they became or remained members of the Union. This contention the Company
denied.
4. The General Counsel in his opening statement said that he was going to show a
"long history of anti-union conduct" on the part of the Company by the introduction.
into evidence of certain testimony relative to a meeting of Neuman and his em-
ployees at the Ferris Hotel, Rawlins, which would relate to events outside the 6-month
period of limitation under Section 10(b) of the Act. He conceded that no finding of
an unfair labor practice could be based upon conduct disclosed by such testimony,
but he said it would shed light on the events which occurred within the permissible
6-month period, which were claimed to be unfair labor practices in this proceeding.
He stated that such evidence was admissible in the t. ht of the United States Supreme
Court's decision in Local Lodge No. 1424, International Association of Machinists,
AFL-CIO; et al. (Bryan Manufacturing Co.) V. N.L.R.B., 362 U.S. 411. The reac-
tion of the Company to this proposal was prompt and vigorous. Counsel for the
Company contended that such evidence was inadmissible and cited as authority the
same case, Bryan Manufacturing Co. (supra). The Trial Examiner stated to counsel
that when evidence outside the 6-month period was proffered, he would be inclined to
rule that it was admissible for the purpose of shedding light on any of the conduct
of the Company, now alleged in the complaint to be unfair labor practices. However,
the Trial Examiner stated that such evidence became admissible if, fairly considered,
it shed light or clarity on the alleged unfair labor practices set forth in the complaint.
He also stated that in the event the so-called background evidence, after full dis-
closure, did not meet the requirements for admissibility, he would entertain a proper
motion to strike such background evidence from the record. Thereafter in the course
of the hearing at each and every point where the General Counsel sought to introduce
evidence relating to events prior in time to the 6-month period allowed by Section
10(b) of the Act, counsel for the Respondent made proper objection, was overruled
by the Trial Examiner, and a specific exception noted in favor of the Company.
The evidence in this case is contained in 767 pages of transcript and some 40-odd
exhibits. However, much of the evidence is undisputed, and this affords a most
helpful basis from which the contested issues may be correlated and evaluated.
The Trial Examiner has considered all of this evidence in its totality in arriving
at his concluding findings as to each of the contested issues. However, the orderly
organization of this report requires that the testimony and exhibits pertinent to each
contested issue be kept close to the Trial Examiner's concluding findings on that
issue. This brings a type of separation of issues into this report, but the Trial
Examiner wishes it distinctly understood that all the evidence has been considered in
its totality, in making the findings hereinafter expressed.
B. Undisputed facts. The operations of the Company, its terminals, etc.; duties of
drivers; the labor management policies; the Rock Springs operation; some sea-
sonal factors; the unit appropriate
At the hearing the principal witness as to the operations of the Neuman Transit
Company was its president, H. T. (Ted) Neuman. He was called by the General
Counsel as an adverse witness under Rule 43(b). The testimony of Neuman as to
the operations of the company is not challenged by the General Counsel. Additional
valuable evidence on these points is contained in a series of exhibits prepared by
Christie Mayash, accountant for the Company, which were stipulated into evidence,
after being thoroughly examined and checked by all counsel. In addition, some of
the employees testified to various features of their employment This mass of
testimony affords a clear picture of the operations of the Company and the duties
of its drivers. Since this feature is basic to the entire controversy, the evidence
on this point will be related first.
It is undisputed that the Company maintains terminals at the following places
in the State of Wyoming: Rawlins, Casper, Riverton, Rock Springs, Evanston, and
Jeffrey City. The terminal at Rawlins is the heart of the system. It is from this
headquarters that Neuman, president of the Company, with the assistance of Don
Rogers, dispatcher, directs all operations throughout the system. At each of the
other terminals the Company has a dispatcher and such mechanics as are needed
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to keep the Neuman fleet of trucks in repair. For its business of hauling the Com-
pany operates 35 heavy duty diesel-powered tractors and 57 trailers of various kinds
and types. The Company hauls a wide variety of freight for its customers who
are engaged in a variety of businesses . The diesel-powered tractors are used to
haul all commodities. One day the power unit may be used to haul livestock
with a livestock trailer, the next day road oil with a tanker trailer, and the following
day, uranium concentrate which is contained in sealed containers and transported
in a trailer van. During the calendar year 1961 the percentage of business from
the varying types of hauling were:
Percent
Uranium ore ------------------------------------------------- 43.80
Petroleum products -------------------------------------------- 21.56
Road oil ----------------------------------------------------- 14.94
Acid -------------------------------------------------------- 10.35
Livestock ---------------------------------------------------- 5.08
Yellow cake (uranium concentrate) ------------------------------ 2.74
Heavy equipment ---------------------------------------------- .43
Miscellaneous ( chemicals , cement , etc.) -------------------------- 1.10
All truckdrivers are hired by Neuman or Don Rogers at Rawlins, Wyoming The
transfer of all employees and equipment between the various terminals is also
directed by Neuman or Rogers from the central office in Rawlins. At this office
all accident and safety reports are prepared and all personnel records for truck-
drivers are maintained. Duplicate records are not kept at any other location. From
the central terminal in Rawlins the distance to other terminals in the system is as
follows: To Riverton-l55 miles; Casper-118 miles; Rock Springs-108 miles;
Evanston-214 miles; Shirley Basin-107 miles; Jeffrey City-72 miles.
The testimony and the exhibits also establish that all truckdrivers are hired to
drive all equipment and to haul all the various commodities transported in the
system. They are transferred between Rawlins, Riverton, Evanston, Casper, and
Rock Springs routinely and frequently ; drivers stationed at those cities are trans-
ferred to Jeffrey City as necessity requires, but less frequently.
The Company's method of pay for all drivers employed by the Company is de-
pendent on the type of commodity hauled. These rates are as follows:
A. Drivers hauling sulfuric acid are compensated on a per-trip basis varying as
to length of trip
B. Drivers hauling livestock receive 6 cents per mile, plus loading and unloading
time
C. Drivers hauling petroleum receive 63/4 cents per mile, plus unloading time.
D. Drivers hauling road oil receive 61/4 cents per mile, plus unloading time.
E. Drivers hauling freight receive 61/4 cents per mile, plus loading and unloading
time.
F Drivers hauling ore are paid on an hourly rate, and receive overtime at the
rate of time and one-half for all hours worked beyond 40 hours in a workweek.
It is also undisputed that the Company has a common policy on labor relations,
vacations , holidays, and health and welfare for all drivers at all locations. The
Company has a common retirement plan for all truckdrivers at all locations, and
all truckdrivers have similar skills and abilities.
In general , the Company has uniformity of wages and working conditions among
all employees, dependent upon the type of equipment which the truckdrivers
operate.
There is some difference in the operations when the drivers are hauling various
types of commodities . When the drivers are hauling road oil, petroleum, and
uranium ore, they do not keep Interstate Commerce Commission logs. Drivers
on interstate runs, hauling acid , livestock , and yellow cake ( uranium concentrate)
do keep ICC logs.
The work performed by the drivers located at the Jeffrey City terminal differs in
some respects from the duties performed by drivers at other terminals. The Jeffrey
City teiminal is maintained for the purpose of hauling uranium ore from the uranium
mines in the Gas Hills area of Wyoming to the Western Nuclear Mill at Jeffrey City
This is a distance of approximately 225 miles, all within the State of Wyoming
Neuman testified that the Jeffrey City operation was called the ore division for
bookkeeping purposes inasmuch as that type of operation did not vary except as
to volume. Also at Jeffrey City, the Company maintains some extra-heavy-duty
type of Euclid truck which is used to haul raw ore from the mines to the uranium
mills. Because of their great size, these heavy vehicles are not allowed on public
highways and they travel on special private roads. He also said that the bills of
lading for these hauls are different from those used at other terminals in that they
refer to the operation as the ore division . He explained that this again was book-
NEUMAN TRANSIT CO., INC. 663
keeping procedure. Since these men do not drive in interstate commerce , they are
not required to keep ICC logs. Neuman also said that the Atomic Energy Com-
mission , by its directives , controls the productivity of the uranium mills who in
turn control the amount of uranium ore which the Company must haul from the
mines to the mills. He said this amount fluctuated very widely and he transferred
men and equipment from the other terminals to the Jeffrey City terminal in accord-
ance with the tonnage directives given to him by the nuclear mills . The assignment
of drivers and equipment to Jeffrey City is controlled by Neuman and Rogers at
Rawlins, the same as all other transfers of men or equipment.
An exhibit established that the average number of drivers employed by the system
per month in the year 1960 was 41.25 and in 1961 it was 49.75. As illustrative
of the fluctuation of drivers engaged in hauling ore , Neuman testified , from com-
pany records, that on January 16, 1962, 27 out of 44 drivers were engaged in
hauling uranium ore. On January 15, 1961, 16 drivers were hauling ore. In May
and June 1961 , 12 drivers were hauling ore, and on August 20, 1961, 8 drivers
were hauling ore.
The Company prior to 1959 paid the drivers at Jeffrey City engaged in hauling
ore, on a mileage basis . In that year the Federal Wage and Hour Division, De-
partment of Labor, by means of a proceeding entitled Mitchell v. Metals Trans-
portation Co., 137 F. Supp. 887 (Wyo. 1959 ), required the Company to pay the
Jeffrey City drivers thereafter on an hourly basis.
It is undisputed that the Company has six men based at Jeffrey City who are the
nucleus for that operation . Rather infrequently they are transferred to other hauls,
but it is similarly undisputed that frequently this force of six is greatly expanded
by the transfer of drivers from Riverton and elsewhere to take care of expanded
needs of the uranium mills. From all the evidence it would appear that the six
men at Jeffrey City can take care of the minimum requirements of the mills, but
fluctuations of volume upward require the transfer of men and power units and
trailers to Jeffrey City. When the demands of the mills return to routine require-
ments, the expanded force is redistributed back to their bases at Riverton , Rawlins
etc. The six drivers at Jeffrey City are Hornbeck, Lynn Kelly, Orville Kelly, Lamb,
Luton, and Patton.
Hornbeck was hired January 16, 1960, as a patrol operator, but on or about April
1961 began hauling uranium ore. He has regularly hauled acid in tank trailer
from the Susquehanna plant at Riverton to Western Nuclear mills and from the
Susquehanna plant into Lucky Mc in the Gas Hills. Hornbeck also testified that
other Jeffrey City drivers have also hauled acid regularly on different occasions.
Orville Kelly was hired on February 6, 1961, at Jeffrey City. He has hauled
uranium ore at Jeffrey City, been transferred to Rawlins terminal hauling livestock
and gas products , and then been transferred temporarily beck to Jeffrey City to
haul ore. For the month of March 1961 he was transferred back to Rawlins to
haul gas, and then on approximately March 28, 1961 , he was transferred to
Jeffrey City
Lynn Kelly was hired in January 1960, starting work at the Rawlins terminal. He
was transferred to Jeffrey City and, while located there , has hauled ore, fuel oil,
and acid. He testified that other drivers at Jeffrey City have hauled acid because
that was a "regular" haul.
The parties stipulated that Patton and Lamb were stationed at Jeffrey City, hauled
uranium ore, and were not transferred from Jeffrey City to any other terminal.
Patton was hired in October 1959 and Lamb in May 1961.
Luton was hired on May 8, 1961. He hauled ore during the period May 8 to 30,
1961 On June 1 and 2, Luton was stationed at Rawlins. From June 3 to 17 he
was stationed in Jeffrey City hauling ore and from June 18 to 23, 1961, he was
stationed at Rawlins hauling diesel fuel and road oil from Sinclair to Fort Bridger,
Wyoming.
Neuman testified that Jeffrey City -based drivers hauled acid from Riverton to the
Western Nuclear, Lucky Mc, Gold Mill, Federal Red Rock Mills, and to the
Globe Mill on a regular recurring basis. That when Jeffrey City-based drivers haul
acid, they were paid by the trip.
Neuman also testified that the livestock hauling was seasonal ; it expanded in the
spring and summer months and dwindled towards the winter Gasoline, diesel fuels,
and gasoline distillates also varied, composing a higher volume of the Company's
business during the summer tourist months , than during the winter , when these hauls
were curtailed Acid hauls and chemical hauls were on a steady basis. Road-oil
hauling was limited to the summer months when the highway departments of the
State and counties were engaged through contractors in repairing and oiling high-
ways. Heavy equipment hauling was limited by seasonal factors as the heavy equip-
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment was usually transported for general contractors engaged in the building in-
dustry, which in Wyoming is seasonal.
Concluding Finding as to Appropriate Unit
As noted hereafter , the demand for recognition made by the Union in its letter
delivered to Neuman on the morning of August 21, demanded recognition for the
Company's "transport tank drivers " at the Company 's Rawlins, Riverton, Rock
Springs, Casper , and Evanston , Wyoming, terminals . The complaint of the General
Counsel herein alleges the proper unit to be "all transport drivers employed by the
Respondent at Respondent 's Rawlins, Riverton , Rock Springs , Casper and Evanston,
Wyoming terminals , exclusive of mechanics , etc." [Emphasis supplied.]
The first point that the evidence establishes is that the Company has no em-
ployee who is classified as a "transport tank driver " or as a "transport driver," if
either terminology means that drivers are limited to driving either tankers or some
other type of "transport" vehicle. The testimony establishes beyond doubt that all
Neuman drivers have comparable skills and drive all types of vehicles . The power
units they all drive are of the same type, but the trailer which is hauled varies
in accordance with the freight transported . The Company has no particular cattle
drivers, acid drivers, chemical drivers, etc .; all drivers perform the same type of work
and all drive the variety of commodities transported by the Company.
The principal issue between the Company and the General Counsel , who in this
instance , takes the Union 's position , is relative to whether the six drivers stationed
at Jeffrey City should be included in the appropriate unit or not . The mass of un-
disputed evidence establishes that much of the Company 's business at the terminals,
exclusive of Jeffrey City, is affected by seasonal factors. In the spring the Company's
force of employees is expanded to meet the Company's requirements and in the fall
there is a corresponding contraction . The evidence also establishes that the Com-
pany's business out of the Jeffrey City terminal is composed mostly of hauling ore
for the nuclear mills . This operation is affected by the widely fluctuating require-
ments of the Atomic Energy Commission . The requirements of ore of the nuclear
mills is controlled exclusively by the directives of that Commission , and the Com-
pany's business at Jeffrey City expands and contracts in accordance with those di-
rectives . However, this is a fluctuation which is not dependent or connected with
seasonal considerations . In the course of its operations , the Company has evolved
a system whereby it transfers men from Rawlins, Riverton , and Evanston and the
other terminals to Jeffrey City to meet the higher requirements for ore, and re-
distributes the men back to their original stations when these emergency require-
ments are met. This system evidently is based on practical considerations beneficial
to the Company. It has at its other terminals sufficient competent men to fill the
requirements at Jeffrey City, even when those requirements are at maximum volume.
However, when maximum requirements of ore are not required at Jeffrey City,
the Company has sufficient other work at the other terminals to keep the men
occupied . Even with this interplay of variable factors, the total operations of the
Company are subject to some curtailment by the decrease in both variable fluctua-
tions. But the system evolved by the Company appears to be the best arrangement
that can be made to handle a comparatively fluid situation.
In my judgment the same practical considerations dictate that the definition of an
appropriate unit of drivers include all drivers of the Company , including those at
Jeffrey City. A ruling that the Jeffrey City drivers should not be included in the unit
would divide the Company 's business into two separate and distinct business opera-
tions and divide its employees into two separate and distinct units. If different unions
represented each distinct unit, or if one unit was unorganized , there could be no
transfer of employees back and forth between the units to handle the variable factors
in the Company's business . Also, the employees at Jeffrey City would be dependent
for their livelihood almost exclusive upon the fluctuating requirements of the Atomic
Energy Commission . Likewise, the employees of the other terminals would be more
dependent upon the fluctuating seasonal factors in the Company's business. On
the other hand , if all the employees are combined in one unit of all drivers at all
terminals , and are represented by one union , there could be unrestricted transfer of
employees or an orderly seniority procedure established , which would permit the
fluctuating situation at Jeffrey City to offset the seasonal factors at the other terminals,
and vice versa . Other evidence related hereafter will show that occasionally the
maximum requirements for ore at Jeffrey City is advantageous in affording employ-
ment to employees at the other terminals who would have been laid off because of
seasonal factors except for transferability to Jeffrey City.
From all the evidence in this case , it appears that employment as a truckdriver is
somewhat precarious at best because of seasonal factors alone and it is my considered
NEUMAN TRANSIT CO., INC. 665
judgment that the Board should not create two units of drivers which would leave
each unit at the mercy of a different set of variable factors. If all drivers are in one
unit and represented by one union, they will have first chance at all work of the
Company and at least to that extent the Board will have taken a step toward
stabilizing their long-term employment. Within the limits of Neuman's operations,
the men would have stable employment.
On the basis therefore of all the evidence, I find that the unit of Neuman's drivers
appropriate for collective bargaining is as follows:
All drivers employed by Respondent at Respondent's Rawlins, Riverton, Rock
Springs, Casper, Evanston, and Jeffrey City, Wyoming, terminals, exclusive
of mechanics, office clerical employees, maintenance employees, professional
employees, guards, and all supervisors as defined in the Act 2
C. Undisputed facts: Sequence of events; the Union's organizing campaign; its de-
mand for recognition; certain correspondence between the parties; meeting of
September 5
Certain features of the Union's organizational campaign and certain features of
the Company's reaction to the Union's demand for recognition are not disputed.
With these undisputed features in mind, the contested issues may be better understood.
According to the testimony of employee Stansbury, a driver for the Company based
at Rawlins, he invited the Union to organize the employees of the Company. On
August 15 or 16 3 be met Teamster Official Jack Anderson at Riverton, Wyoming.
He told Anderson that some of the drivers were interested in the Union and he gave
Anderson a list containing the names of some employees. Employee Dick Sealock
also testified that he met Anderson in Casper, Wyoming, on or about August 16 or 17
and talked to Anderson about organizing the employees.
On August 18, Anderson, accompanied by another Teamster representative, John
Moss, came to Rawlins and checked into a room at the Rawlins Motel. According to
the testimony of these union representatives and Sealock, they met at the Venice
Cafe in Rawlins around dinnertime that evening. At this meeting they discussed
the manner in which they would organize the employees. It was decided that the
Union would hold an "open house" and the Sealock and other interested employees
would attempt to bring the employees to the Rawlins Motel where the Teamster
officials could talk to them and obtain their signatures on applications for member-
ship. The hour at which the "open house" started and Sealock first brought prospec-
tive members to the motel, is not clear in the testimony, but it is clear that Sealock
was joined in this work by employee Bob Stanley about 10 p.m. that evening. From
that time until approximately 2:30 the following morning, Sealock and Stanley
were engaged in going to the homes of Neuman drivers and bringing them to the
motel room where Anderson and Moss could talk to them and sign them up. Some
of the men who came to the motel room stayed and talked with the union officials,
while others left. In the course of this meeting, Anderson informed,the men that it
might be necessary to strike the Company.
It is undisputed that on the morning of August 19, the morning after the first
open house, Stanley did not report for work. He was fired by Neuman in the course
of a phone call about 6 p.m. that day. On the same morning Sealock encountered
difficulty with the Company over an early morning trip he did not make. Neuman in
the same phone call as to Stanley told Sealock that he was fired, but that Sealock
would be given a chance to explain on the following morning. The discharges
of Sealock and Stanley form one of the contested issues in the case and will be
treated at length hereinafter.
On the evening of August 19 and the early morning hours of August 20, Sealock
and Stanley continued the same system of recruitment by bringing the employees to
the motel to be signed up by the union representatives. By a point some time on
August 20, a total of 22 drivers had signed union application cards.
2E. E. McNeal and John Marshall d/b/a Southern Truck Line , 107 NLRB 615;
Groendyke Transport , Inc, 92 NLRB 1332. In my judgment the line of cases which
include H. D. Shaver, d/b/a Shaver Transfer Company, 119 NLRB 939; Fredrickson
Motor Empress Corporation , 121 NLRB 32 ; and Standard Trucking Company, 122 NLRB
761, are inapposite in the light of all the circumstances here present. Here, the terminals
are all in one State with unrestricted transfer of employees between terminals, and an
interrelationship and interdependence between terminals , and all conditions of employ-
ment of the men are substantially uniform.
3 All dates in this report are in the year 1961.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Saturday, August 19, Teamster Official Anderson was notified of a death
in his family, so he departed on the early morning bus on August 20, leaving in
charge Union Representative John Moss who was later joined by another Teamster
official named Shenefelt. On the morning of August 20, Neuman interviewed Sea-
lock and Stanley and confirmed his firing of Sealock. Later in the day, Neuman laid
off employees Jones, Stansbury, Frederick, and Saxton. He told these employees that
they were laid off temporarily for lack of work. The layoff of these employees is a
second contested issue in the case and will also be treated at length hereinafter.
When Teamster Official Anderson reached Casper on August 20, he dictated two
letters to the Company and sent them by personal messenger to Moss with instruc-
tions that they were to be delivered to Neuman, the president of the Company, or
some other responsible Neuman official. Moss received these letters at approximately
9 p.m. At approximately 1.0 p.m. on Sunday, August 20, Moss, Shenefelt, and
Stansbury went to Neuman's home. Shenefelt and Moss went up to Neuman's door
and Stansbury stayed in the car. Neuman came to the door. Moss told Neuman
that he and Shenefelt represented the Union and a majority of Neuman's drivers.
Moss said he had a letter for Neuman and that he would like to discuss the matter
with him. Neuman did not open the door, but speaking through it, replied, "If
you want to see me, come to my office in the morning." The union representatives
then went to the home of Don Rogers, dispatcher for the Company at the Rawlins
terminal. When the union representatives knocked at Rogers' door he refused to open
the door or accept the letters.
Moss then returned to Rawlins Motel and about midnight instructed one of the
employees who was a painter to prepare a picket sign . It was stipulated that at
2 a.m., on the morning of August 21, the Union began picketing at the entrance of
the Company. The picket sign read, "Neuman Transit Company refused to bargain as
preferred by law. Teamsters Local 307." 4
It is undisputed that the picketing was only partly effective. At the Rawlins terminal
approximately half of the drivers reported for work, and approximately half honored
the picket line. There was no picketing of any other terminal of the Company.
The facts and figures as to the effect of the picketing are involved in the contested
issue, "Alleged refusal to bargain," and are developed at length hereinafter.
At 8 a.m., on August 21, Moss and Shenefelt went to the Neuman terminal at
Rawlins, passed through the picket line, and went to Neuman's office. Neuman's
office and the dispatcher's office are separated from a large public room called the
"drivers room" by a partition with a sliding glass window. Moss and Shenefelt
talked to Neuman through this window. Moss told Neuman that he represented
a majority of his "tanker-drivers" and that they had proof of it. Neuman made no
effort to come to greet him but told him that the National Labor Relations Board at
Denver settled such matters and that he should take up the matter with his lawyer,
Mr. Armsrong, at Rawlins. Moss then laid the letters to Neuman on the dispatcher's
desk inside the window and left the company property. These letters on stationery
of Teamsters Local Union No. 307 are dated August 20, 1961, in each case, and
read as follows:
NEUMAN TRANSIT COMPANY,
Rawlins, Wyoming.
GENTLEMEN: This is to inform you that Teamsters Local Union No 307
has been selected by your transport drivers employed at Rawlins, Riverton,
Rock Springs, Casper and Evanston, Wyoming as their official authorized bar-
gain agent for the purpose of representing them on all matters concerning
their wages, hours of employment and working conditions, as employees of
your Company.
This is also to inform you that we are in a position to prove that we represent
a substantial majority of the aforementioned employees.
As the above mentioned employees bargaining agent, we request that you
meet with us prior to 10 p m this day, August 20, 1961 at Cabin # 16 of the
Rawlins Motel, Rawlins, Wyoming for the purpose of discussing terms of an
agreement covering the wages, hours of employment and working conditions
of said employees.
Sincerely,
TEAMSTERS LOCAL UNION No 307,
JACK ANDERSON , Secretary - Treasurer 5
[Emphasis supplied
* A day or two later the signs read "Neuman Transit Company has refused to bargain
as required by law Teamsters Local 307 "
5 This letter is Respondent 's Exhibit No 3 in evidence.
NEUMAN TRANSIT CO., INC. 667
Mr. TED NEUMAN, Owner,
Neuman Transit Company,
Rawlins, Wyoming.
DEAR SIR: This date, August 20, 1961 we presented our situation at your office
for the purpose of proving to you that we have been selected as the official au-
thorized bargaining agent for the purpose of representing your transport tank
drivers on all matters concerning their wages, hours of employment and working
conditions as employees of your company.
Further we also attempted to request that employees,
Dick Sealock Dick Frederick
Bob Stanley Ted Saxton
Milo Jones Dan Stansbury
so employed by your company be immediately reinstated, inasmuch as they
were discharged because of exercising union activities which is guaranteed and
protected by law.
Therefore, inasmuch as we were unable to gain an audience with you we
request that you meet with us prior to 12:00 P.M. this day, August 20, 1961, at
cabin # 16 of the Rawlins Motel, Rawlins, Wyoming.
In the event that we do not hear from you prior to the deadline outlined
herein, please be advised that we will take whatever legal or economic action
that we deem appropriate or necessary to protect the right of our members
and this local union.
Sincerely,
TEAMSTERS LOCAL UNION No. 307,
JACK ANDERSON , Secretary -Treasurer.6
[Emphasis supplied.]
On August 21, after he had checked the number of employees working and those
picketing, and after conferring with Darkey, one of this counsel herein, Neuman
wrote the following letter to the Union.
Mr. JACK ANDERSON, Secretary-Treasurer,
Teamsters Local Union No. 307,
235 North Wolcott,
Casper, Wyoming.
DEAR MR. ANDERSON: In reply to your letter dated August 20, 1961, delivered
to my office August 21, 1961, requesting us to recognize the Union as bargain-
ing representative for our transport and tank drivers in Rawlins, Riverton, Rock
Springs, Casper and Evanston, be advised that we do not wish to comply with
your request to recognize you as the bargaining agent, because we doubt that
your Union does in fact represent a majority of our employees in the appro-
priate bargaining unit.
It is suggested that a proper legal procedure is available to dispose of your
claims, and that this matter be determined by means of the election procedure
under the supervision of the National Labor Relations Board.
Very truly yours,
NEUMAN TRANSIT CO., INC.,
H. T. NEUMAN, President.?
On August 22, the Union filled the charge which is the basis of the present com-
plaint. Also on this day, the Company filed an RM petition with the Regional
Office of the Board (Twenty-seventh Region), requesting the Board to investigate
the question concerning representation which had arisen by virtue of the Teamsters
claim that it represented a majority of the employees of the Company in an appro-
priate unit, the procedure outlined in Section 9(a) of the Act.
On August 23, the Company received notice from the Regional Director (Twenty-
seventh Region) that the Union's charge had been filed with the Board. Also on
that date the Company sent hte following letter to Stansbury, Frederick, Jones, and
Saxton The letters to these men were identical and read as follows:
DEAR MR. FREDERICK: Today we received a copy of an unfair labor charge
alleging that you were discharged for the purpose of discouraging membership
in the Teamster's Union.
As you know, this was not, and is not true You were laid of} temporarily
only, because of lack of work.
6 This letter Is Respondent's Exhibit No 2 In evidence
7 This letter is Respondent's Exhibit No 6 In evidence
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Our situation is now such that work is available for you. You are hereby
offered immediate employment. If you desire to return to work, please contact
the undersigned at once.
Yours very truly,
NEUMAN TRANSIT CO., INC.,
H. T. NEUMAN, President.8
[Emphasis supplied.]
On August 30, 1961, Mr. Lowe, counsel for the Union, addressed the following
letter to Mr. Armstrong, counsel for the Company:
J. R. ARMSTRONG, Esquire,
Attorney at Law,
Ferguson Building,
Rawlins, Wyoming.
DEAR REUEL:In line with your request, here is the proposal I discussed with
you in my office Monday.
Subject to our agreement on the following preliminaries, it is my understand-
ing the Teamsters Union would be disposed to withdraw its unfair labor charges
with the NLRB and concur in the proposed NLRB conducted elections to
resolve the question of recognition of the within as bargaining agent for em-
ployees of the Neuman Transit Company. The preliminary conditions, I
believe, are as follows:
1. Reinstatement of all laid-off employees, including those fired.
2. Agreement on the employees eligible to vote.
3. A guarantee of no reprisals.
It is, therefore, recommended that we get together and sit down to resolve
these points so as to reach some reasonable preliminary solution and thereby
permit just and satisfactory solution to the present situation.
Yours very truly,
(S) Robert S. Lowe,
ROBERT S. LOWE.
It is undisputed that Armstrong phoned Lowe on September 1 on receipt of the
letter and told Lowe that the Company agreed to a meeting for 4 p.m. on September
5. It is also undisputed that Armstrong told Lowe that he did not think the meeting
would be successful if the Teamsters were adamant in regard to the reinstatement
of Sealock and Stanley.
On September 5, 1961, representatives of the parties met at the office of Arm-
strong, company counsel, at Rawlins. Representing the Company were Neuman,
Armstrong, and Darkey, the latter also of counsel for the Company. Representatives
of the Union were Lowe, its counsel, and a group of union officials. Darkey stated
that the Company would discuss the situation, but it believed that the question of
Sealock's and Stanley's discharges should be decided by the Board in a proper
proceeding. He said the Company would not reinstate these men. The Union
then asked for time to discuss the situation in a caucus of union representatives.
After the caucus, the union representatives stated that Sealock and Stanley had to
be reinstated immediately. The meeting ended on this note.
The issue of refusal to bargain which is vigorously contested by the parties will
be discussed hereinafter, as will an issue arising from the admission in evidence
of certain testimony relative to the conduct of the Respondent occurring outside the
limitation period of Section 10(b) of the Act As to this latter issue there is pending
a motion by the Company to strike the testimony from the record
D. The contested issues
1. The discharge of Stanley; of Sealock
It is undisputed that in operations out of Rawlins and the other terminals, the
drivers worked odd hours, because shipping schedules, lengths of hauls, and hours of
delivery of freight, all varied, and were subject to normal hazards of the road, such
,as weather, traffic conditions, mechanical failures, etc In consequence, drivers sched-
ules for a run were required to keep themselves reasonably available for orders, and
the Company tried to give the drivers reasonable advance notice of their runs.
As noted previously, following the meeting of Sealock and union officials at the
Venice Cafe, Stanley and Sealock were engaged in bringing employees of the Com-
8 General Counsel 's Exhibits Nos. 3, 5, 16, and 27
NEUMAN TRANSIT CO., INC. 669
pany to the Union 's open house at its room in the Rawlins Motel . They finished
this work around 2:30 or 3 a.m. on August 19. When Stanley returned home at that
hour, his wife informed him that Don Rogers , the dispatcher at the Rawlins terminal,
had been trying to locate Stanley all through the evening and night . This was serious
news, for it is undisputed that at the close of business on August 18, Don Rogers,
the dispatcher, had left a note for Stanley, which Stanley received, reading as follows:
"August 18 . Bob: I haven 't heard anything as of yet. However I am putting this
bill in your box just in case the order comes in. If I hear, I will call you at home
and go ahead and load this for you ; otherwise be down at 8 a.m. Don." 9 It is not
disputed that both the dispatcher and Stanley understood this note to refer to a pos-
sible trip which Stanley was assigned ,to make if the order for the haul was confirmed
for that night. -
Nor is there any question concerning the efforts of Rogers to locate Stanley that
evening and morning. Stanley testified to the substance of what his wife told him,
and his wife gave direct testimony as to what Rogers said to her. Stanley's wife
testified that Rogers made four phone calls looking for Stanley in the course of the
evening of August 18 and the early hours of August 19. She said the first call came
from Rogers to her at her place of employment about 10 p.m. Rogers asked her
if she knew where her husband was. She replied that he was at home. Rogers said
that he had called their home and her sister had informed him that Stanley was not
there. The second call came at 11 p.m . when Mrs. Stanley was home. Rogers again
asked if she had heard from Stanley and she told him that she had not. That
ended the conversation. About midnight Rogers called again. On this occasion
Rogers told her that he had orders for her husband, that he was supposed to take
a haul out early on the following morning, and Mrs. Stanley agreed to relay that
information to her husband. The fourth and final call came approximately an hour
later about 1 am. on August 19. On this occasion Rogers told her to tell her
husband that he was canceled off the trip because he must be "out on the town
drinking" and since he wasn't available at home or any place else, that Rogers had
been forced to make other arrangements for the haul. Mrs. Stanley told Rogers that
she would relay this information to her husband, then she went out looking for her
husband She went to Sealock's home and learned from Mrs. Sealock what the two
husbands were doing. When her husband returned about 2:30 a.m. she told him
of this series of phone calls from Rogers.
It is undisputed that although the note left in Stanley 's box concerning the run
he was to make on the 19th concluded with the words "otherwise be down at 8 a.m.,"
that Stanley did not report for work at 8 a.m. or in any other way communicate with
Rogers or any official of the Company in the course of the day on August 19.
Sealock's difficulty with the Company was somewhat similar but somewhat dif-
ferent from the experience of Stanley. Don Rogers , the dispatcher, testified that
at 5 a.m . on August 19 he received an order for a load of gas from a customer in
the western part of the State who said that he was in dire need of the supplies.
Rogers testified that at 5 a.m. he called Sealock and told him that he had a rush order
for La Grande Johnson 's job in the Mountain View area and that he would send
the unit down to be loaded for Sealock, which would give Sealock time to get
something to eat and be ready to go . According to Rogers , Sealock replied, "All
right, fine ." Rogers then issued the necessary orders to have the truck loaded. It
was loaded and returned to the terminal at approximately 5:45 a.m . However,
Sealock did not show up to take the run. About 7:30 a.m. Sealock phoned Rogers
and asked Rogers, "If the truck was ready." Rogers told Sealock that the truck
had been ready and "was all ready gone an hour." Rogers readily admitted that
at the time of Sealock 's call the truck had not gone, but explained that he was
annoyed with Sealock because Sealock hadn't shown up promptly to take the run
and Rogers had been required to obtain and assign another driver to the unit. The
other driver took the load to Mountain View.
Rogers reported both incidents of failure to report for work to Neuman.
H. T. (Ted) Neuman, the president of the Company, was called as the first
witness in this proceeding by the General Counsel and examined by leading ques-
tions under Rule 43(b) of the U.S. District Court Rules. When Neuman was asked
why Sealock was fired he said that he was fired because he was "late for reporting
for work " Neuman said that Sealock was supposed to report at 6 a m. for the
Johnson haul and that he had not reported . On the evening of the 19th , Neuman
called Sealock and asked him why he didn't report for work. Sealock gave as his
excuse "that he had heard from another source that the truck had gone, so he figured
there was no use coming down ." Neuman told Sealock to report on the morning
e Transcript, page 476.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the 20th , when Neuman would hear his story and the dispatcher 's version and
make a decision as to whether or not he would fire Sealock.
Neuman testified that on the morning of the 20th , Sealock came to the office.
He heard the dispatcher 's report and Sealock 's explanation and then he told Sealock
he was fired for "failure to show up for work."
Neuman also testified that he discharged Stanley, but this occurred on August 19,
in the evening . Neuman said that when he phoned Sealock on this evening , Sealock
told him Stanley was with Sealock.
Neuman testified that he fired Stanley forthwith over the phone because Stanley
had been habitually late for runs , being late 14 times in the previous 6-month
period . When queried about this in his turn on the witness stand, Stanley said
that he had not been late 14 times ; he estimated the number to be 6 or 7 times.
The last instance of tardiness had been about 3 weeks before his discharge and
on that occasion , when Neuman asked an explanation , he had no excuse. On
that occasion , Neuman warned him that repetition of the offense would bring about
his discharge . Stanley admitted also that on a prior occasion he had absented
himself from work for a period of 3 days without notice to the Company.
Sealock testified he had been late on only one prior occasion . Neuman in his
testimony said that Sealock was not late frequently , and for that reason he gave
Sealock an opportunity to explain his failure to report. However, after Neuman
heard the report of Rogers , and Sealock 's excuse, he decided to discharge Sealock.
Employee Ray Langwell testified that he happened to be in the drivers' room at
the Company as the Sealock-Neuman conversation ended. According to Langwell,
after Sealock and Stanley left the room , Neuman made the statement , "that he had
just fired .two men who had joined the Union " 10 However, Langwell's recollection
as to all -circumstances surrounding this lone statement was extremely hazy. He
said he remembered the gist of Neuman 's statement but not the exact words that
Neuman used. Also, he believed, but was not positive , that Dispatcher Rogers,
Harold Boyer , and Dean Mills were present at the time of Neuman's statement
Langwell did not remember how he happened to be in the drivers' room at that
time, nor could he say where he was standing in the room in relation to Neuman,
when he heard Neuman 's statement . Nor could he say what approximate time
in the morning this statement was made. He agreed that he was in the room only
long enough to hear this statement.
Langwell also testified that in an affidavit which he gave to an agent of the
Board , he had said that the form of application for employment which he had
signed contained a question requiring him to disclose his union affiliation , if any.
On the witness stand , he admitted that he was mistaken on this point, that he had
seen his application for employment and it did not contain such a question.
2. The layoffs of Frederick , Stansbury, Saxton , and Jones
Frederick : Neuman , president of the Company, testified that he laid off employee
Frederick on August 20 because of lack of work . Frederick and another driver,
Nation , by name, were located at Rock Springs. Only one truck was based at that
place, and it was Frederick 's job to relieve Nation , who was senior to him with
the Company , and to alternate with Nation. Neuman and Frederick both testified
that on August 17 and 18, Frederick came to the Rawlins terminal and complained
to Neuman that his check for the previous pay period was too small. Neuman
explained that as the hauling from Rock Springs tapered off because of seasonal
factors, there were not enough runs at Rock Springs to keep two drivers fully
employed. Frederick said that his last check showed that fact Neuman explained
that the continuance of full -time employment for Frederick depended on the
Company obtaining more work in the Rock Springs area. When no new work
materialized , Neuman phoned Frederick on August 20 and told him he was laid off
temporarily for lack of work . Frederick asked if he could have such occasional
runs as might turn up in the Rock Springs area. Neuman told him he would be
glad to give him this temporary work , as and when a second driver was needed.
Frederick was called as a witness by the General Counsel . From his testimony
it is clear that some few hours after talking to Neuman about his prospective layoff,
Frederick joined the Union Frederick testified that on the evening of August 18
he was driven to the Rawlins Motel by Saxton , and there met the union representa-
tives and employees Sealock and Everett. He signed an application for member-
ship in the Union about 9 that evening.
10 Transcript , page 444
NEUMAN TRANSIT CO., INC. 671
According to Frederick, he first talked to Neuman about the smallness of his
check on either Thursday or Friday, August 17 or 18. Neuman explained the
shortage of work and agreed to give Frederick such extra runs as might arise. On
the next night, Frederick talked to Neuman by phone, and Neuman told him two
men had been laid off (presumably Sealock and Stanley), and asked Frederick if
he could move to Rawlins from Rock Springs, as Neuman thought he could not
use Frederick at Rawlins. Neuman told Frederick that another driver, Tolle, would
pick Frederick up about 3 p.m., the next day, Sunday. About the time he expected
to be picked up, Dispatcher Rogers at Rawlins phoned Frederick and said he was
laid off.
At approximately 12:50 a.m. on Monday, approximately 1 hour after picketing
began, Neuman called Frederick and said he had some new work he didn't know
about earlier, and asked him if he still wanted to go back to work. Frederick asked
him if this had anything to do with the Union and Neuman said, "No." Frederick
told Neuman he would think about it, and let Neuman know in the morning. At
that time, Frederick did not know that the Union had decided to picket and that
picketing was scheduled to begin at approximately 2 a.m. At approximately 9 a.m.,
the next morning, Frederick phoned Union Representative Moss at Rawlins and
learned that a picket line had been placed at the company property. Frederick
then called Neuman and told him that he understood there was a picket line at
the Rawlins terminal, and that as long as there was a picket line he didn't want to
cross it. Neuman offered to transfer him to the Riverton or Evanston terminal,
where he wouldn't have to cross a picket line. Frederick told him that as long as
there was union trouble he didn't want to be involved.
In the course of his examination, Frederick admitted that in his first talk with
Neuman about the smallness of his previous paycheck, Neuman explained that
the Company had completed two large contracts for road oil, and that was the
reason for a reduction in drivers. Frederick also admitted that in the year 1960,
he had worked until December, when the work "slacked off like it did this last year,"
and he was laid off. He testified, "It's slow every year, I understand." ii
Saxton: This driver was employed at the Rawlins terminal. Neuman testified
that on August 19 he had an interview with Saxton and told him that the Company
had completed two large road-oil contracts and that he might have to lay Saxton
off. Neuman also explained to Saxton that the Company expected to receive new
contracts with Texaco for the shipment of Texaco products from that Company's
refinery in Casper to Salt Lake City, and that he might have to transfer Saxton to
Evanston. Saxton said he would like to consult with his wife about such a transfer.
On the next morning, August 20, Saxton reported to Neuman that he would like
the transfer. Neuman told him to go home and pack a suitcase and be ready to
go. Saxton returned in about an hour. However, in the meantime, Neuman had
called McLean, the Evanston terminal manager, and after a discussion, it was
decided by Neuman that there would not be enough work at Evanston for two
additional drivers, so Neuman told Saxton he was laid off temporarily. The Com-
pany did transfer driver Mills from Rawlins to Evanston. Mills was also a member
of the Union, and the son of Don Mills, the Company's terminal manager at
Jeffrey City.
In his testimony, Saxton substantially confirmed the testimony of Neuman. He
said that for several months he had been engaged in hauling road oil and that these
contracts were completed in the week of his layoff. He and his wife agreed to the
transfer to Evanston because the job at that terminal seemed steady. When Neu-
man told Saxton there would not be enough work there for two drivers and that
Mills would be transferred and Saxton laid off, Saxton asked Neuman why seniority
did not prevail as he had been with the Company longer than Mills. Neuman said
the Company did not abide by seniority, the best driver got the job. When Saxton
was asked if Neuman ever criticized his work, he replied that Neuman had criticized
his performance of work the previous winter.
Saxton said that he signed his union application at the Rawlins Motel at an hour
"close to midnight" on August 18, and that he engaged in the work of bringing
other drivers to the Rawlins Motel.
Jones: This employee was stationed at the Rawlins terminal. Neuman testified
that he temporarily laid off Jones on the morning of August 20, in the course of
a personal interview in Neuman's office. Neuman explained to Jones that they
had just completed the road-oil jobs at Evanston, and that his truck was due for
maintenance. Although Jones had written up a report on the operation of his truck
11 Testimony of Frederick, transcript page 134.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nearly every day for the past 4 weeks, the Company had not wanted to lay up his
truck for repairs until the road-oil jobs were completed. Neuman told Jones that
the truck repairs would take only 2 or 3 days, and that the Company hoped to get
a haul from Riverton, Wyoming, to Grants, New Mexico. Neuman asked Jones
if he would be interested in transferring to Riverton if and when this haul would
happen and after his truck came out of the shop. Jones said he'd like to consult
with his wife on the move. A little later in the morning, Jones returned to Neu-
man's office and reported that he would be happy to make the move. Neuman
said, "Fine. Your truck is in the shop for three days. If and when the haul is
consummated, we will move you to Riverton, and you will be off until we hear
from that, or your truck gets going again."
In his turn on the witness stand, Jones testified that Neuman laid him off tem-
porarily for a period of 2 weeks due to lack of work and needed repairs to his truck.
Jones said that he had reported the condition of his truck to Neuman personally
and by written memo on several occasions in previous weeks. He said that on
August 19 he talked to Neuman who said he was considering transferring Jones
to Riverton, but made "no definite statement on when he (Neuman) was going to
transfer me." This discussion ended with Jones going home to consult his wife on
the transfer. On the following morning he reported to Neuman that his wife was
agreeable to his transfer. Jones said he did not recall exactly what was then said
by Neuman or himself, but Neuman said, "He wasn't sure whether I was going to
Riverton or not."
Jones' application for membership in the Union is dated August 19. He went
on strike and, while on picket duty on August 20, saw driver Dallas Isabell drive
his truck through the picket line. Isabell stopped the truck to allow Jones to remove
some personal belongings from the truck.
Stansbury: This employee was based at Rawlins, but during the 3-week period
prior to his layoff he had been temporarily transferred to Riverton. He returned
to Rawlins on August 18 on orders of the Riverton terminal manager.
Neuman testified that he laid off Stansbury on August 20 because of lack of
work. Stansbury had always been considered a seasoned worker. During the
winter of 1960-61, Stansbury had been kept busy running a pickup truck between
Rawlins and Denver. Neuman laid off Stansbury in a personal interview in his
office. Neuman told him that he had tried to keep him busy by transferring him
temporarily to Riverton, but that now the road-oil jobs were completed and they
were short of work. Neuman said he hoped to get a contract for a large haul of
sulfuric acid from the Riverton area to Grants, New Mexico, and if the Company
received the contract, he might transfer Stansbury to Casper to work out of that
terminal with the Company's driver-supervisor. Neuman said that he "thought,"
but was not sure, that the date on which he talked to Stansbury about a transfer
was August 19. On that date, Neuman said he was not sure that they needed another
man at Casper.
Stansbury testified that he worked for the Company the first time in June 1959
He quit the Company on December 3, 1959, because he was not making enough
money. He returned to the Company in June 1960 and had continued working
until his layoff.
Stansbury places the time of his layoff as 9 a .m. on August 19. Stansbury also
said that he signed his union application card just after midnight on August 19.
According to Stansbury, on August 18 Neuman discussed with him the possibility
of a transfer from Rawlins to Casper. Stansbury discussed this with his wife and
on the morning of August 19, told Neuman he was willing to go to Casper. Neuman
told Stansbury to go home and pack his bag, which Stansbury did. However, when
he returned to the terminal, Neuman said that some unforeseen things had come
up and that because of these, there was not enough work to keep Stansbury busy,
so he was laid off until further notice. Neuman told Stansbury in the course of
this conversation that the Company had lost a couple of bids, and. because of
that, there was a shortage of work. Neuman did not explain what the bids were
or go into details.
Neuman testified that letters were sent to Jones, Frederick, Saxton, and Stans-
bury on August 23, 1961, offering them employment at the Company. Neuman
explained that on August 22, 1961, Bill Joyce, general manager for Western Nu-
clear. Inc., called Neuman to alert Neuman to a new large uranium haul from
Shirley Basin to Jeffrey City, beginning on approximately August 28, 1961. The
Company began hiring employees immediately after the phone call from Joyce.
It was stipulated by counsel for the parties that the following named employees were
hired by the Company as drivers during the period from August 18 to September 1,
1961 and assigned to the Rawlins terminal on the date given opposite each name:
NEUMAN TRANSIT CO., INC. 673
Daugherty and Pittman , August 22; Goodman and Ryan , August 23 ; Gunnett and
Watson, August 26; Phares, August 27; and Mestas and Raey, August 31.
3. Concluding findings on the discharge of Sealock and Stanley , and the layoffs of
Frederick , Stansbury , Saxton , and Jones
The entire testimony of the Respondent is comprised of the testimony of three
witnesses, Neuman, president of the Company, Don Rogers, dispatcher for the
Company, and Christie Mayash, accountant for the Company. Neuman is a man
approaching middle age who testified in a serious and thoughtful manner. As a
witness he testified fairly, frankly, and candidly. He was the first witness called
by the General Counsel in this proceeding, and Neuman was examined as an adverse
witness pursuant to the provisions of Section 43(b) of the U.S. District Court
Rules. Under 43(b), the General Counsel adduced Neuman's version of the dis-
charges and layoffs by means of leading questions . At one point , Neuman referred
to a paper which was on the table near the witness stand and the General Counsel
asked the witness to what he was referring. Neuman answered that he was referring
to the statement which he had previously made to Mr. Maslanska, an agent of the
Board. From that I infer that the General Counsel had some advance knowledge
as to the tenor of Neuman's testimony. After Neuman's defenses on these contested
issues were thus made a matter of record, the General Counsel presented his own
witnesses whose testimony was contrary or at variance with that of Neuman. Later
in this proceeding, Neuman was recalled by counsel for the Company and again
he was cross-examined by the General Counsel. Through all of these examina-
tions, Neuman was at ease and testified like a witness who was sure of his facts.
After an examination of the entire record in the case, I can find no point upon which
Neuman should not be given full credence. His testimony bore one notable feature.
He testified like a man who had nothing to fear and nothing to hide. All his conduct
as a party to this proceeding confirmed that aspect of his testimony. The General
Counsel had subpenaed the production of certain documents and records of the Com-
pany. These were produced upon request, and Neuman instructed his accountant,
Mayash, to aid and assist counsel for the General Counsel , as well as counsel for
the Company, in the examination , compilation , and understanding of the volumi-
nous records which were produced. When the General Counsel wanted a spot
check of original documents, arrangements were made so that the General Counsel
might make the check. Neuman's bearing and demeanor as a witness and his
straightforward answers coupled with his most cooperative attitude toward the
General Counsel impressed the Trial Examiner most favorably. I find that Neu-
man was a most convincing witness, and I accept his entire testimony as it relates
to each of the issues in the case.
Rogers, the dispatcher, testified to certain facts in the case. Rogers, too, is a
man approaching middle age. He testified with every appearance of frankness and
candor on both direct and cross -examination . Rogers comported himself as a
dignified, candid, fair witness. He appeared to be without rancor or malice toward
any of the employees.
Christie Mayash, accountant for the Company , appeared briefly on the witness
stand to explain certain records . However, his efforts in assembling factual data
from the records of the Company in cooperation with all counsel was a major
contribution to the expeditious handling of this proceeding . The factual data
compiled by Mayash , under the supervision and direction of counsel , resulted in
a series of joint exhibits, which were introduced pursuant to stipulation of counsel
for the parties . The testimony which he gave on his brief appearance on the witness
stand was likewise unchallenged by counsel for any party herein.
With these findings made, we may turn to a discussion of the testimony , and I will
make such findings upon the credibility of witnesses as are required , in the course
of that discussion.
It is the contention of the General Counsel that Neuman in all the various events
which comprise this proceeding was animated by "an anti-union animus" which
motivated the discharges and layoffs. It was upon the General Counsel's plea that
the incident at the Ferris Motel would establish this long "history" of "anti-union
animus," that the testimony concerning the Ferris Motel was accepted. I must say
that this contention of the General Counsel appears to be without any founda-
tion, when the evidence is considered in its totality
Stanley and Sealock: It is undisputed that the union representatives came to the
Rawlins Motel around dinnertime on August 18. They conferred with Sealock and,
around 10 o'clock, Stanley joined them. Thereafter the two employees were en-
gaged in bringing other employees to the motel to sign up with the Union. This
was necessarily a nocturnal operation because the drivers came in from their runs
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at various hours near the close of the day or in the evening. All the union organiza-
tional activities were conducted at the motel room, or if any travel was involved it
was between the homes of the employees and the Rawlins Motel. Every employee
who testified that he signed an application for the Union said that he signed it at the
Rawlins Motel. Consequently, it is clear that as far as the Company was concerned
this was a secret and clandestine activity. There is not a scintilla of credible evidence
in the entire case that either Neuman or Rogers knew of any union organizational
campaign prior to 10 p.m., Sunday, August 20, when Union Representatives Moss and
Shenefelt went to Neuman's home and told him the Union represented a majority
of his employees.
It is undisputed that both Sealock and Stanley were engaged in union organizing
activities until approximately 2:30 or 3 a.m. on August 20. It is admitted that at
approximately the close of the business on August 19, Stanley had been notified by
the dispatcher, Rogers, to stand by for an early morning trip and that Rogers called
him four times in the course of that evening to give him orders concerning the trip
At 1 o'clock in the morning, Rogers canceled Stanley off the trip. It is undisputed
that although Stanley's orders were to report at 8 o'clock in the morning if he was
not given contrary orders during the night, that Stanley failed to report or phone
the Company during the whole course of the day on August 20 and that at 6 o'clock
Neuman fired him.
Stanley as a witness testified with the air of a mischievous prankster. He appeared
to be faintly amused that his discharge was a matter of concern to counsel and
others in the proceedings. He blithely denied Neuman's charge that he had been late
for 14 runs in prior months, but just as blithely, on cross-examination, estimated that
he had been late 6 or 7 times. And with a smile he admitted that he had been absent
for 3 days on a prior occasion without notifying the Company. He impressed the
Trial Examiner as an irresponsible witness.
Sealock, in his testimony, afforded a different version of his discharge than that
afforded by Dispatcher Rogers. In the light of all the undisputed facts, I must reject
the testimony of Sealock and accept that of Rogers. In the light of all the evidence,
one need not be clairvoyant to understand the conduct of these two employees, which
brought about their discharge. Both Sealock and Stanley had been employed in
organizational activities at the Union's open house until 3 a.m. on August 20. I'm
quite sure that Sealock did not welcome a rush order call 2 hours later, or Stanley
anticipate with pleasure a run at 8 a.m.
In the light of all the evidence, I find that both Sealock and Stanley were dis-
charged for cause-failure to report for work. On this issue the testimony of one
other witness must be discussed.
Employee Langwell testified that he happened to be in the Neuman terminal a few
moments after Sealock and Stanley were discharged and heard Neuman say that he
had just fired two men "who had joined the Union." However, upon further examina-
tion, Langwell could not explain what he was doing in the office, what time of day
it was that the statement was made, or any other of the surrounding circumstances.
He finally said that he was there just long enough to hear this statement. In the
course of his examination, Langwell was proven to be mistaken in regard to his em-
ployment application. Also as will hereafter appear, Langwell tried to be on both
sides of this labor dispute. He was an adherent of the Union, yet at approximately
midnight, Sunday night, he warned Neuman by means of a telephone call that the
terminal was to be picketed at 2 o'clock. Langwell as a witness testified quite boldly
on direct examination but when questioned closely he immediately retreated to a
point where his memory was insufficient.
Langwell also testified as to what Neuman said at the Ferris Hotel meeting He
testified that at that meeting, Neuman said that there would be no union and that the
Company would shut its doors and close its business down before it had a union.
No other employee testified to any such statements by Neuman In my judgment
Langwell's partisanship and eagerness to assist the Union have led him into un-
truthful testimony. Upon the basis of his demeanor and bearing, and the character
of his testimony, I reject his entire testimony.
Frederick, Stansbury, Saxton, and Jones: It is undisputed that seasonal factors in
regard to the hauling of road-oil affect the Company's operations. The un-
disputed facts and the testimony of Neuman establish that at approximately the time
of the union organizational activities, certain layoffs of employees were contemplated,
discussed, and finally effected. The General Counsel contends that the layoffs were
animated by "anti-union animus." But the undisputed facts and the testimony of
Neuman illustrate that the economic factors which caused the layoffs were already
at work some weeks before the advent of the Union's organizational campaign.
Frederick admitted that he talked to Neuman about his paycheck for the previous
pay period on the day he joined the Union. At that time Neuman told him that
NEUMAN TRANSIT CO., INC. 675
the Company did not need two drivers at Rock Springs. Later in the day, Frederick
joined the Union. The undisputed facts lead to a conclusion that the men here in
question were not laid off because they joined the Union, but that quite the reverse
was true, that they joined the Union with some hope of attaining job security because
they were aware that the diminishing volume of work would necessitate some layoffs.
The General Counsel contends that Frederick was laid off because Neuman knew he
was a union adherent. Yet, it is undisputed, that after Neuman received Langwell's,
telephone call warning Neuman that a picket line was to be established, that Neuman
called Frederick and offered Frederick work. Such conduct on the part of Neuman
is not consistent with the General Counsel's claim of union animus. In the course
of his testimony, Frederick admitted that the work had slacked off like it had the year
previous.
Saxton was laid off for lack of work and was not transferred to Evanston although
driver Mills was transferred at the same time. In his testimony, Saxton substantially
confirmed the testimony of Neuman by conceding that the road-oil jobs on which
he had been employed had been finished.
Jones, in his turn, also confirmed the testimony of Neuman that his truck needed
maintenance and that he had finished his work on the road-oil job. In the course
of his testimony, Stansbury by inference also confirmed Neuman. He said that he
worked for the Company in the first year beginning 1959 and that he quit the
Company on December 3, 1959, because he was not making enough money. In the
winter of 1960-61, the Company had been able to keep him busy running a pickup
truck from Rawlins to Denver.
In this entire record, there is not a scintilla of credible evidence that Neuman had
any knowledge of the union affiliations of the drivers involved or of the Union's
organizational campaign, and the drivers themselves agree with Neuman's state-
ment that the completion of the road-oil jobs necessitated some temporary layoffs.
On this issue, there is another significant feature. At no point in the course of
the discharges of Sealock and Stanley, or the layoffs of Frederick, Stansbury, Saxton,
and Jones, was there a spontaneous complaint or righteous protest from any of the
men to any Neuman official that they were being discriminated against because they
had joined the Union. The first mention in the transcript of testimony of any charge
that these discharges or layoffs were discriminatory was made by Union Representa-
tive Moss who said that the picket line was established because Neuman "had been
laying men off" and he did not say "because of their union activities." From the
evidence, which is rather meager as to why the picket line was established, it is
apparent that there was no protest from the men involved that their discharges or
layoffs were discriminatory; that charge seems to have emanated from the union
representatives only.
On the basis of Neuman's credited testimony, and all the undisputed evidence in
the case, I find that the layoffs of Frederick, Stansbury, Saxton, and Jones were for
cause, lack of work, and not because they had engaged in any union or concerted
activities.
4. The alleged refusal to bargain; the good-faith doubt of the Company
Neuman testified that when the union representatives attempted to talk to him at
his home at 10 p.m. on August 20, he told them that he would talk to them at 8 a.m.
the next morning at his office. The union representatives then attempted to make
delivery of their demand letters at the home of Dispatcher Rogers.
After his unsuccessful attempt to deliver the letters to Neuman or Rogers the
union representatives returned to Rawlins Motel. According to Union Representa-
tive Moss, there was some discussion and he decided that the company would be
picketed at 2 a.m. the next morning and he instructed Speyer, one of the union
employees, to paint up the picket sign.
Moss testified that he decided to place pickets at the terminal "after some of the
members were fired, discharged and several were laid off." And, that a second"
"reason was that we went to Mr. Neuman's house like gentlemen and tried to talk
to him. He even refused to let us in his house." 12
According to the testimony of Neuman, at approximately midnight, employee
Ray Langwell phoned him, saying, "I have just come from a meeting at the Rawlins
Motel, and there have been several of your drivers up there. The Teamsters are
going to put a picket line on your property at 2 a.m." Neuman thanked Langwell
and hung up the phone. He immediately called Dispatcher Rogers and asked the
dispatcher to meet him at the Rawlins terminal They went to the terminal and
there canvassed the situation as to continuing the operations of the Company in,
12 Transcript, page 585
662353-63-vol. 138-44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the event there was a picket line . At 2 a.m ., the picket line appeared at the terminal.
Neuman said that he went to the picket line to see which men were engaged in
picketing since he wanted to be prepared for the failure of the pickets to report for
work . For the remainder of the night , Neuman and Rogers considered ways and
means of keeping the Company's operations moving. Neuman testified that he
thought it was about 1:20 on this morning that he called Frederick at Rock Springs
and told him that there was a job for him because of unforeseen circumstances.
Neuman testified that at 8 a.m., the following morning, 35 drivers out of a total of
49 drivers employed by the Company reported for work; the only terminal picketed
was at Rawlins . The terminals at Riverton , Casper, Evanston, Rock Springs, and
Jeffrey City all reported that all drivers were on the job and that no picketing had
occurred at those terminals
Neuman said that he was busy with operational details until approximately 10 a.m.
that morning. At that hour he opened the Union 's letters demanding recognition of
the Union as representative of a majority of his drivers. He testified that the first
thing which caused him to doubt that the Union represented a majority of his em-
ployees was the terminology in the Union's letter dated August 20, in which it said
it represented a majority of his "transport tanker drivers." He said that since the
Company had only "general drivers" he suspected that only a portion of his drivers
had been recruited into the Union. He testified that the second fact which made
him doubt the majority status of the Union was the fact that 35 of the total force
of 49 employees showed up for work at 8 a.m ., and of the absentees , 4 of them,
Frederick, Jones, Stansbury, and Saxton, had been laid off previously. So he esti-
mated the total strength of the Union at approximately 10 active members and 4 in
layoff status.
Later in the morning , Neuman consulted with Darkey, the representative of the
Rocky Mountain Employers Council, and acquainted him with the facts of the situa-
tion . Darkey advised him that there was another reason for denying the Union im-
mediate recognition and that was that in his opinion a legal question was involved
concerning the appropriate unit of Neuman 's employees.
With these various factors in mind , Neuman wrote his letter of August 21 to the
Union , saying, "We doubt that your union does in fact represent a majority of our
employees in the appropriate bargaining unit."
Neuman's discussion with Darkey also led to further action since he instructed
Darkey to file an RM petition with the Regional Office of the Board at Denver.
This petition was filed on August 22 , 1961 , the same date on which the Union's
charge herein was filed.
When the good faith of Neuman 's professed doubt of the Union's majority status
is examined in the light of the facts existent at 8 a.m ., August 21, we are forced to
conclude that his doubt was founded on an arithmetical calculation which precluded
any chance of error . Neuman, of course, did not know the secret affiliation of some
employees in the Union . In his count , he took for granted that men on the picket
line or absent from work without excuse were strikers , and that those at work were
unaffiliated.
However , at the hearing undisputed evidence established that the Union suffered
a serious number of defections , for various reasons prior to or at the time the picket
line was established.
Employee Bennett testified that he signed his union application on August 20
and that he tried to retract his application for membership within a matter of 45
minutes after he signed it. He testified that he signed his application for membership
in the Union only because the union organizers and adherents assured him that his
friend , employee Isbell , had previously signed . A few minutes after signing, Bennett
checked with Isbell who informed him that he had not signed with the Union and
was against the Union . Bennett had been aided in obtaining employment with the
Company by'Isbell and he felt obligated to Isbell. He immediately went to the picket
line at the terminal at approximately 2 a.m. and demanded of those in charge that
his card be given to him. He was told that his card was not available. At 8 o'clock
the next morning, Bennett crossed the picket line and continued to cross it thereafter.
Upon the basis of Bennett's uncontradicted testimony which I credit, I find that the
Union obtained his designation card by a fraudulent misrepresentation of a material
fact, and that in no event can Bennett 's authorization card be counted in favor of
the Union.i3
Employee McAllister testified that he joined the Union with the understanding that
they were going to form a union and ask for an increase in wages. On the following
morning when he discovered the picket line, he asked what the demands of the Union
t3 See T7 L R B v. H Rols tstean , Co, 266 F 2d 407 ('C A. 1), cases collated and
discussed
NEUMAN TRANSIT CO., INC. 677
were. He then told the pickets that he thought a strike was a last resort weapon.
The pickets said they were going to strike first and then talk. He told them that he
wouldn't support any such idea and that he was going to cross the picket line. There-
after he did so.
It is also clear from the testimony of employee Deyo that though he signed a union
card, that he crossed the picket line from its very inception. In the course of his
testimony, he said he signed the card because the rest of the men wanted him to. In
Deyo's opinion the strike was unnecessary, so he crossed the picket line when it was
first placed at the terminal, and he continued to cross it until the time of the hearing.
Employee Donald Mills testified that he signed an application for membership in
the Union but that he did not "believe in striking for one thing" and that he crossed
the picket line as soon as it was placed.
The testimony of these men, which illustrates their conduct in relation to the
picket line, is of importance here, not because their crossing of the picket line can-
celled their authorization given to the Union, but because of its important bearing
upon Neuman's judgment that, in fact, the Union did not represent a majority of
his drivers. As far as Neuman was concerned, when these men crossed the picket
line and appeared for work, he drew the reasonable inference that they were not
adherents of the Union. When he took into consideration the fact that Sealock and
Stanley who were on the picket line had been previously discharged for cause, and
four men had been laid off for lack of work, he came to the conclusion, upon what
appears to be very reasonable grounds, that the total union strength was far short
of a majority.
From all available evidence I have reconstructed the disposition of the Neuman
driver force as of 8 a.m. August 21. It shows the following situation:
Rawlins men at work who had not signed up with the Union Cantu, Cozart, Dickson, Isbell,
Lindbergh, K McBride, R McBride, Poole, R Wales------------------------------------- 9
Men who had signed with the Union, but who crossed picket line Bennett, Deyo, Mills,
McAllister ----------------------------------------------------------------------------- 4
Union adherents honoring picket line
Everett, Foote, Gonzales, Ranson, Hays, Langwell, O'Connell, Ross, Shurtz, Speyer,
W Wales, Urban----------------------------------------------------------------------- 12
Jones, Saxton, Stanbury (Employees to status of laid off employees, counted for the union) 3
Sealock, Stanley-not counted as employees because they had been discharged for cause,
prior to the strike
Rawlins Terminal-
On picket line, 12+3 ---------------------------------------------------------------------- 15
At work, 9+4 --------------------------------------------------------------------------- 13
Riverton-All at work Allen, Irons, Miller, Phillips, Taylor---------------------------------- 5
Casper-At work Lamar- ----------------------------------------------------------------- I
Evanston-All at work Calder, Crompton, Taylor, Tolle------------------------------------- 4
Roclc Springs-At work.
Nation---------------------------------------------------------------------------------- I
Employee in status of laid-off employee, counted for Union, Frederick-------------------- I
Jeffrey City-All at work Hornbeck, L Kelly, 0 Kelly, Lamb, Luton, Patton--------------- 6
TOTALS
Working Picketing Total
Rawlins-----------------------------------------------------
Riverton-----------------------------------------------------
Casper -------------------------------------------------------
Evanston----------------------------------------------------
Rock Springs-------------------------------------------------
13
5
1
4
1
15
------------
------------
------------
11
24
6
30
16
16
28
5
1
4
2
40
6
46
i No picket
If Neuman on the morning of August 21 saw the disposition of the work force
as I see it, as reconstructed from the evidence, he had every reason to believe that
the Union did not in fact have a majority in any unit, which the Board might deem
appropriate. While there has been much argument in this case as to whether the
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate unit should be all drivers at Rawlins, Riverton, Casper, Evanston, and
Rock Springs with Jeffrey City excluded, or whether the drivers at the last-named
terminal should be included, for the purposes of our analysis that decision has no
significance, because whether Jeffrey City is counted in, or counted out, the Union
did not appear to Neuman to have a majority status in either unit.
If Jeffrey City was excluded the count was: at work, 24; on strike, 16; of a total
of 40 drivers.
If Jeffrey City was included the count was: at work, 30; on strike, 16; of a total
of 46 drivers.
From the above, it is clear and I find that Neuman's expression of a doubt as to
the Union's lack of majority status was made in good faith and upon visual evidence
and an arithmetical calculation which he could not disregard. In the circumstances
of this morning, if he had recognized the Union and signed a contract with it, he
and the Union would have run the risk of being prosecuted for a different unfair
labor practice, knowingly executing a contract foisting a minority union on all
Neuman's employees in derogation of the employees' rights under Section 7 of the
Act.14 When Neuman filed his RM petition with the Regional Office, under the cir-
cumstances here present, he fulfilled his duty as required by the Act. At that point
he was entitled to have his doubt as to the Union's actual status resolved by the
Board's elective processes, to enable him to determine what course of action the Act
required him to take.15
Upon a consideration of all the credible evidence, I find that the Company has
not refused to bargain with the Union in violation of Section 8(a) (51) of the Act,
for two reasons: (1) Neuman had a good-faith doubt as to the majority status of
the Union in an appropriate unit of his drivers, and (2) the Union did not in fact
have majority status at any place, except at Rawlins terminal. That terminal is
admittedly integrated with those at Riverton, Evanston, Casper, and Rock Springs,
and integrated, in my judgment, with Jeffrey City.16
5. Interference, restraint, and coercion
The General Counsel's complaint alleges that Neuman and Supervisors Stewart.
Boyer, and McLean interrogated certain employees and threatened them with loss
of employment or other economic reprisal. The complaint also alleges that the
Company used an employment application which was unlawful in that it requested
the prospective employee to disclose his union affiliation.
The allegation as to the illegal employment application was disproved in the
course of the hearing. Employees Sealock and Langwell both testified that they
"thought" that their employment application contained such a question, but that
each had seen his application and each admitted that it did not contain such a ques-
tion . That is the only evidence in this record on that point.
The principal statements alleged by the General Counsel to be coercive are con-
tained in the testimony of employee Everett. Everett testified that about 3:30 a.m.
on August 21 Neuman phoned him at his home. Neuman told Everett that the
Union had put up a picket line at the terminal and Neuman then asked Everett how
he felt about it. Everett replied that he wouldn't cross a picket line, then Neuman
said, "You'stand on your convictions and I'll stand on mine." The General Counsel
then asked Everett if Neuman "had said anything else?" Everett replied that
Neuman "said again that he wouldn't go union "
Everett also testified that about August 29 he was in Riverton, Wyoming, and
he met Boyer, the Company's dispatcher at the terminal. Everett said that on
this morning he and Boyer went to a neighboring coffee shop They sat there and
discussed the picket line and in the course of the conversation Boyer said that Neuman
had told him "that he would go for broke before he joined the union."
Employee Robert Hays testified that at approximately 8 p.m. on August 20 Rogers,
the dispatcher at the Rawlins terminal, asked him if he had been approached by the
Union. Hays answered that he had not, but some men had been up at his house
14 See International Ladies' Garment Workers' Union , AFL-CIO (Bernhard-Altmann
Texas Corp ) v. N L R.B., 366 U.S 731. ,
11NLR.B v . Hannaford Bros Co ( T R Savage Division ), 261 F 2d 638 (C.A 1)
Celanese Corporation of America , 95 NLRB 664 ; Joy Silk Mills, Inc v . NLRB, 185 F.
2d 742 (CAD C.), cert. denied 341 US 914
1e In this computation I have credited the Union with 19 union applications in evidence
Sealock and Stanley may not be so credited because they were discharged for cause prior
to the demand and Bennett may not be so credited because his application was obtained
by fraud
NEUMAN TRANSIT CO., INC. 679
while he was away. Rogers then told Hays that if they came back to tell them to
leave him alone, that he didn't want to be bothered. Then Rogers asked Hays what
he thought about the Union and Hays replied that he didn't care for the Union, that
they had never done much for hun. Rogers then said that "the guys was planning
on going union" and he would like for Hays to stay with him, but he wasn't trying
to tell Hays what to do, that he would have to make up his own decision on the
matter. Again, the General Counsel asked, "What else did he say?" And the
witness replied, "Well, I am trying to think here. Oh, he said they wouldn't go
union no matter what, that if it came to a vote even if they voted union they wouldn't
go, if they had to, they would just lock the doors and sell out, they would rather
than go union." 17
Employee Gerald Urban testified that on the morning of August 20 Dispatcher
Rogers asked him if a couple of the boys had been down to see him. He replied
in the affirmative. Rogers then asked Urban if he had signed anything and Urban
said, "Yes " Then Rogers, in reference to a trip that Urban was about to make,
said, "Well, I guess we're going to have to send you, anyway." Rogers then dis-
patched Urban on a trip to Casper. When Urban returned on the morning of
August 21, the picket line was up at the Rawlins terminal When he took his truck
into the terminal, Urban saw Neuman. Neuman asked Urban whether he was go-
ing to stay and work, or whether he was going out there and sit with the boys.
Urban replied that he had a withdrawal card from the Teamsters before, and that he
had signed up in this campaign, so he guessed he would have to go out there with
the boys. Neuman replied, "Okay," and added that when this was all over Urban
could come back and get his job back 18
In his testimony, Dispatcher Rogers denied that he had talked about the Union
with Urban. He testified that he could not have had such a conversation because
he had no knowledge of any union activities until Neuman called him around mid-
night, August 20.
Upon a consideration of all the evidence, including the demeanor and bearing of
the witnesses, I credit the testimony of Rogers
Furthermore, in view of the fact that the strike was in progress, with its accom-
panying picketing, at the time that Boyer said Neuman would not go Union, I under-
stand that statement to mean that Neuman would not capitulate to the Union. No-
where in these statements attributed to Neuman is there any element of threat of
reprisal or force or promise of benefit which is required before a statement can be
found to constitute a violation of Section 8(a)(1) of the Act.
There is no evidence in the record that Supervisors Stewart and McLean in any
way interfered with, restrained, or coerced any employees. The General Counsel's
allegation, as regards those supervisors, are dismissed for insufficient evidence.
6. The so-called background testimony; the Ferris Hotel incident
From the testimony of employees Sealock, Stanley, Langwell, Everett, and Gon-
zales, it is clear that sometime in the spring of 1960, a meeting of Neuman and his
employees was held at the Ferris Hotel, Rawlins. Apparently, a petition circulated
among the employees by employee Tom Deyo triggered this meeting. One further
fact about this meeting is clearly established. The General Counsel conceded that
the petition around which all the testimony revolved was lost or destroyed, and
was not available as evidence. The General Counsel also conceded that the peti-
tion had nothing to do with the Union, which is a party to this proceeding.
Employee Sealock testified that a few days before the meeting at the Ferris Hotel
he had a conversation with Neuman, in which Neuman said that a petition was be-
ing circulated among the men and asked Sealock how he felt about it. Sealock
said he was fairly new with the Company and he would do what the other men did.
Neuman then asked Sealock what his biggest beef was. Sealock said the men were
hauling as much gas in 7,000 gallon tankers, as the men in the 8,000 gallon tankers,
and he thought they should be paid the same. Neuman said he would look into that
and correct it. According to Sealock, in this conversation Neuman then said that
he would fire every man who signed the petition or signed an application for a
union card. Later in the day, Neuman repeated this statement to a group of em-
ployees, but Sealock could not remember which employees were in this group
Sealock testified that at the meeting at the Ferris Hotel, Neuman said that he had
said some things he would have to retract One of these was in reference to the
petition, and his statement that he would fire the men who signed the petition; at
17 Transcript, page 573
"Transcript, page 525.
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meeting Neuman said he would have to retract that because "it just wasn't legal."
Sealock said he had never read the petition and had not signed it, so he did not
know what the petition was about.
Employee Everett, like Sealock, testified that he had never read the petition or
signed it. He testified to the same effect, as Sealock, in regard to Neuman's state-
ment at the meeting at the Ferris Hotel, that he would have to retract his statement
about firing the men who had signed the petition. In the course of his testimony,
Everett said that the petition was not about a union because he remembered that
Tom Deyo, the author of the petition, spoke from the floor and said that the petition
was not in regard to a union.
Employee Gonzales next testified that he had signed the petition, but could not
recall when or where he signed it, or who presented it to him. He testified he
"thought" it concerned a union. As to the meeting at the Ferris Hotel, Gonzales
displayed an utterly confused memory, placing the date of the meeting in the winter
of 1960, the spring of 1960, and the winter of 1961, which would be a date after
this present dispute arose.
Employee Langwell also testified that he attended the meeting at the Ferris Hotel
and, like others, he had not seen or signed the petition. Langwell testified that at
the meeting, Neuman said "That there would be no union" and that the Company
"would shut its doors and close its business down before it had a union." Langwell
then testified that prior to this statement by Neuman, no one had raised the question
of a union, and the petition had not raised the question of a union.
Employee Stanley testified that when he first went to work for Neuman in March
1960, Neuman interrogated him in regard to his union affiliation. Stanley said he
had withdrawn from the Union, and Neuman said, "Good, we don't want a union
in here."
Employee Tom Deyo, who apparently was the author of this petition, was called
,as a witness by the General Counsel. He had signed a membership application for
the Union, but had crossed the picket line continuously since it had been set up-
The General Counsel did not question Deyo about the petition or the meeting at
the Ferris Hotel. In the course of Deyo's examination on another point, the Gen-
eral Counsel confronted Deyo with a previous statement Deyo had made to an
agent of the General Counsel. The statement concluded with the assertion that
Deyo had "never heard anyone from management say anything for or against the
Union."
The Motion To Strike the So-Called Background Testimony
The above is a brief summary of the testimony on this subject. At each point at
which the General Counsel proffered such testimony, Counsel for the Respondent
objected upon the basis of relevancy and upon the ground that the Supreme Court's
decision in the Bryan case (supra) barred the admission of such testimony. In
considering this testimony in the light of the Bryan decision some remarks of the
Court are pertinent to this case. The Court stated that the policy behind Section
10(b) of the Act was "to bar litigation over past events `after records have been
destroyed, witnesses have gone elsewhere, and recollections of the events in question
have become dim and confused."' That description certainly fits this testimony.
Here the testimony pivots around a central document or record, a petition, which
has been lost or destroyed, and no witness can testify as to what the petition con-
tained. They disagree as to whether it pertained to a union or not, and the General
Counsel concedes that it did not pertain to the Union, here a party. Nor does
any witness say that any union was then involved in an effort to organize the
Neuman employees.
At most, all we have is a statement by two highly partisan witnesses, Sealock and
Langwell, that Neuman said he would fire any man who signed the petition, and
that at the meeting at the Ferris Hotel Neuman said he would retract that statement
because he had learned that such an action "just wasn't legal."
The General Counsel proposes that from this testimony I conclude that Neuman
was activated then by an "anti-union animus" that carried over from 1960 to August
1961, and that this "anti-union animus" motivated Neuman's conduct as to the
contested issues herein. That proposal I must reject for a variety of reasons
The first reason is that the statement attributed to Neuman and his purported
retraction of it, are divorced from the context of circumstances in which either the
statement or the retraction was made. Here, we have only a fragment of the
entire transaction.
Secondly, the transaction appears to be most ambiguous. If Neuman made the
original statement, it might illustrate his anger about some feature of the petition,
but surely his public retraction of the statement can only be construed as an
AMERICAN OPTICAL COMPANY 681
expressed determination to observe the law, despite his anger in the matter. And,
no man was discharged! I can attach no significance to this testimony.
Thirdly, this testimony was received only on the representation by the General
Counsel that it would shed light on the issues herein. Now, what is the light?
Surely, if the light is to illuminate that which lies in darkness, the light should be
clearly discernible, and burn with such brightness that its removes shadows from
the principal issues. But here the allegedly illuminating testimony has far less
clarity than the contested issues which are surrounded by an illuminating mass of
undisputed evidence. The Ferris Hotel incident adds more confusion than clarity
to this record.
And lastly, this testimony has all the earmarks of something dragged from the
shadowland of past, forgotten events, by an exhaustive examination of the memories
of partisan witnesses in a desperate effort to make out a case , where none exists. I
find this testimony to be of most dubious character, and I believe no prudent person
would accept it and, upon it, base any decision of importance. The Bryan case is,
not dispositive of the motion of the Respondent, as I read the case, but I grant the
Respondent's motion to strike this testimony on the ground that it is entirely
irrelevant, and does not shed any light on the actions of the Respondent occurring
within the 6-month period defined by Section 10(b) of the Act. The actions of the
Respondent within that period, when viewed in the light of the undisputed evidence,
is crystal clear.
CONCLUSION
For the reasons stated above, I find that the General Counsel has failed to prove
by a preponderance of the credible evidence that the Respondent has committed any
of the unfair labor practices alleged in the complaint. On the contrary I find that
a substantial preponderance of the evidence establishes:
1. That Sealock and Stanley were discharged for cause, and that Frederick,
Stansbury, Jones, and Saxton were laid off temporarily for lack of work and for
no other reason.
2. That the Respondent had a good-faith doubt of the Union's majority status
in the appropriate unit, and did not violate Section 8(a)(5) when it refused to
recognize or bargain with the Union.
3. That none of the supervisors or officials of the Company violated Section
8(a)(1) of the Act.
Therefore it is recommended that the complaint herein be, and it hereby is dis-
missed in its entirety.
American Optical Company and United Optical Workers Union,.
Local 853. Case No. 13-CA-4490. September 18, 1962
DECISION AND ORDER
On June 8, 1962, Trial Examiner Alba B. Martin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in and was not engaging in the unfair
labor practices alleged in the complaint and recommending that the
complaint be dismissed in its entirety, as set forth in the attached
Intermediate Report. Thereafter, the General Counsel and United
Optical Workers Union, Local 853 filed exceptions to the Intermediate
Report, and supporting briefs. The Respondent filed a brief in sup-
port of the Intermediate Report.
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 Rodgers and:
Fanning].
138 NLRB No. 85.