Ott's Vacuum Truck Service

National Labor Relations Board - Board Decisions

Mar 10, 1969

174 N.L.R.B. 1080 (N.L.R.B. 1969)

1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ottis E. Pittman and Earl T . Pittman d /b/a Ott's
Vacuum Truck Service and Teamsters ' Local 235,
General Truck Drivers, Warehousemen & Helpers.
Case 21-CA-7707
March 10, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On October 30, 1968, Trial Examinee Maurice M.
Miller issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. The
Trial Examiner further found that the Respondent
had not engaged in certain other unfair labor
practices alleged in the complaint, and
recommended that those allegations be dismissed.
Thereafter, the General Counsel filed exceptions to
the Trial Examiner's Decision and a brief in support
thereof, and the Respondent filed a brief in
opposition to General Counsel's exceptions and
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision,' the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its , Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Ottis E. Pittman
and Earl T. Pittman d/b/a Ott's Vacuum Truck
Service, Brea, California, their agents, successors,
and assigns, shall take the action set forth in the
Trial Examinei's Recommended Order
As noted by the Respondent, the Trial Examiner erred in referring to
employee Bowman ' s lack of insurance coverage , inasmuch as the record
reveals that employee Warner , not Bowman, lacked such coverage, and
sought the Respondent ' s help in securing hospitalization plan coverage
However , this does not affect our decision herein
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
MAURICE M. MILLER, Trial Examiner Upon a charge
filed on August 9, 1967, and duly served, the General
Counsel of the National Labor Relations Board caused a
Complaint and Notice of Hearing to be issued and served
upon Ott's Vacuum Truck Service, designated as
Respondent within this decision (When the hearing began,
the Complaint's caption was amended to read Ottis E
Pittman and Earl T Pittman, d/b/a Ott's Vacuum Truck
Service, as noted.) The Complaint was issued November
30, 1967; therein, Respondent was charged with unfair
labor practices affecting commerce within the meaning of
Section 8(a)(1) and (5) of the National Labor Relations
Act, as amended, 61 Stat 136, 73 Stat. 519 Respondent's
answer, duly filed, conceded certain factual matters set
forth within the Complaint; Respondent, however, denied
the commission of any unfair labor practice and pleaded
certain affirmative defenses
Pursuant to notice, a hearing with respect to the issues
was held at Los Angeles, California, on February 29,
March 1, and March 6, 1968, before me The General
Counsel, Respondent and Complainant Union were
represented by counsel Each party was afforded a full
opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the
issues Since the hearing's close, briefs have been received
from General Counsel and Respondent's counsel. These
briefs have been duly considered.
Upon the entire testimonial record, documentary
evidence received, and my observation of the witnesses, I
make the following
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent partnership, doing business as Ott's
Vacuum Truck Service, maintains its office and yard in
Brea, California, there; respondent partnership engages in
the business of providing vacuum trucking service, plus
other oil field services, to various producing oil companies
within the Southern California area. (The parties have
stipulated that, among such oil companies, are Gulf Oil
Corporation, Shell Oil Company, Standard Oil Company
of California, Texaco, Inc , Tidewater Oil Company, and
Union Oil Company of California Counsel has stipulated,
further, that these oil companies ship products to, or
receive products from, points and places outside the State
of California valued in excess of $50,000 annually.) In the
course and conduct of its business, Respondent annually
performs vacuum trucking services and other oil field
services valued in excess of $50,000 for the various oil
companies designated, each of which - so the previously
mentioned stipulation shows - purchases and receives
directly from, or ships directly to, points and places
outside the State of California, goods, materials, and
products valued in excess of $50,000 yearly
Upon the Complaint's jurisdictional declarations, which
are conceded, I find that Respondent, throughout the
period with which this case is concerned, was an employer
within the meaning of Section 2(2) of the Act, engaged in
commerce and business activities which affect commerce
within the meaning of Section 2(6) and (7) of the Act, as
amended With due regard for those jurisdictional
standards which the Board presently applies see
174 NLRB No. 161
OTT'S VACUUM TRUCK SERVICE
Siemons Mailing Service, 122 NLRB 8I, and related
cases -- I find assertion of the Board's jurisdiction in this
case warranted and necessary to effectuate statutory
objectives
11 THE LABOR ORGANIZATION INVOLVED
Teamsters' Local 235, General Truck Drivers,
Warehousemen & Helpers, designated as Complainant
Union herein, is a labor organization within the meaning
of Section 2(5) of the Act, as amended, which represents
certain of Respondent's workers for collective-bargaining
purposes.
111. THE UNFAIR LABOR PRACTICES
A. Matters Not Contested
General Counsel's Complaint, herein, contains certain
factual declarations which Respondent has, through its
response, specifically conceded With due regard for these
concessions - which have been somewhat elaborated
through testimony - certain preliminary determinations
may be made
Throughout the period with which this case is
concerned, Ottis and Earl Pittman have functioned as
Respondent's co-partners; Ottis Pittman, however,
presently holds a controlling share with respect to their
partnership business Normally, both men devote
themselves primarily to providing "field" service, selling,
and supervision connected with Respondent's business,
Elinor Pittman, Ottis Pittman's wife, functions as
Respondent's office manager and dispatcher (Mrs.
Pittman's testimony reveals, persuasively, that her
husband and brother-in-law concern themselves with office
and personnel problems "only" when she reports her
failure or inability to resolve them, or when policy
questions are presented Mr Pittman's testimony confirms
that Mrs Pittman handles yard and office matters first
and refers "anything of major consequence" later )
General Counsel contends, herein with Respondent's
concurrence, that Ottis and Elinor Pittman are, and have
been - throughout the period with which this case is
concerned - Respondent's agents, functioning on its
behalf, and supervisors within the meaning of Section
2(11) of the statute
Within his Complaint, General Counsel has declared -
with Respondent's concurrence - that "all employees,
excluding all office clerical employees, guards,
professional employees, and supervisors as defined in the
Act" constitute a unit appropriate for
collective-bargaining purposes, within the meaning of
Section 9(b) of the statute. Presumably, respondent
partnership's employees, merely, are meant
(The record shows that Ottis Pittman, further, functions
concurrently as "one of the principal owners" of two
related corporations - Oil Heating and Dewaxing, Inc ,
and Pittman Tanks, a Division of Ace Industrial
Chemicals, Inc With respect to these corporations, Elinor
Pittman serves as secretary-treasurer. Both corporations
render a specialized service to oil producers, they function
as separate businesses, however General Counsel makes
no real contention, herein, that these corporations,
together with respondent partnership, should be considered
a single employer for statutory purposes, nor is any
serious contention made, so far as General Counsel's
Complaint shows, that Respondent's workers, when
performing services for the designated corporations, fall
1081
within the bargaining unit which this Board is requested to
find appropriate herein )
Despite the Complaint's lack of specificity, there seems
to be consensus that the collective-bargaining group with
which this case is concerned compasses only those drivers
who handle respondent partnership's vacuum trucks and
semiflatbed trucks I so find.
Further, within his Complaint, General Counsel
contends - while Respondent, within its answer concedes
- that "prior to March, 1967" most of Respondent's
employees, within the unit previously described, had
designated or selected Complainant Union as their
representative for purposes of collective bargaining with
respondent partnership Consistently, General Counsel's
Complaint declares that
at all times material herein the Union has been,
and is now, the representative for purposes of collective
bargaining of a majority of the employees in the said
unit and, by virtue of Section 9(a) of the Act, has been,
and is now, the exclusive representative of all the
employees in the said unit for purposes of collective
bargaining with respect to rates of pay, hours of
employment, and other terms and conditions of
employment
Through its failure to note any denial, respondent
partnership, within its answer duly filed, has conceded the
correctness of this declaration For present purposes,
therefore, Complainant Union's statutory right to claim
representative status with respect to Respondent's workers
- within the unit herein found appropriate for
collective-bargaining purposes - may be taken as datum
Before March 31, 1967, Respondent was privy to a
collective-bargaining contract with Complainant Union,
functioning as the representative of partnership workers
within the group previously described. (This contract,
designated "Vacuum and Pump Truck Wage Agreement,"
had been negotiated previously - with a July I, 1964,
effective date between Complainant Union and various
area firms within the so-called vacuum truck industry Its
preamble defines the document as supplemental to and
part of the concurrently effective Western States Area
Master Freight Agreement, for a period commencing on
the designated date The contract contained a further
provision that it was to remain effective through March
31, 1967, and thereafter until sixty (60) days' written
notice had been given, by either party, regarding a desire
to change or modify its terms Changes or modifications
negotiated thereafter were to be effective upon the
expiration of 60 days following the giving of notice, but
no sooner than April 1, 1967 Further, the parties had
contractually declared that "during negotiations for such
changes or modifications, the provisions of this agreement
shall remain" effective ) However, the record reveals -
without dispute -- that timely letters and notices, the
latter dated December 29, 1966, which purported to reflect
written notices given by Complainant Union regarding the
proposed termination or modification of both the Western
States Area Master Freight Agreement, and its Vacuum
and Pump Truck supplement, had been dispatched to
Respondent, together with four other interested firms, by
registered mail These letters and notices had been, so the
record shows, duly received
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Contested Matters
1. Issues
General Counsel's Complaint charges, substantially,
that between some time in March and July, within the
succeeding calendar year - while negotiations looking
toward a new contract, covering Southern California's
so-called "vacuum truck" industry were being conducted
-- both Ottis and Elinor Pittman, while functioning as
representatives of Respondent herein
[By] threats of reprisals made to its employees for
engaging in union activities, by promises and offers of
economic benefits for refraining from union activities or
for withdrawing their support from the Union, by
interrogation of its employees concerning their union
activities or union sympathies in a manner constituting
interference, restraint, and coercion, and by bargaining
directly and individually with its employees concerning
rates of pay, wages, hours of employment, and other
terms and conditions of employment, all in order to
undermine the Union and destroy its majority .
refused to bargain collectively in good faith with
Complainant Union, as the exclusive representative of
respondent partnership's workers within a unit concededly
appropriate for collective-bargaining purposes, contrary to
Section 8(a)(5)'s mandate. Further, General Counsel
contends that, by such conduct, Respondent interfered
with, restrained and coerced its employees, with respect to
their exercise of rights statutorily guaranteed, thereby
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the statute.
Respondent, first, proffers general denials with respect
to General Counsel's charges regarding the course of
conduct with which its representatives have been charged.
Secondly, Respondent denies any refusal to bargain
collectively in good faith with Complainant Union as the
exclusive representative of Respondent's workers, the
contention is made, rather, that
The Union did fail, neglect and refuse to bargain
collectively in good faith with respondent . . [and that]
collective-bargaining negotiations and the successful
conclusion thereof were prevented solely and directly by
the acts and conduct and more specifically by the
negligent omissions of the representatives of the Union
and by their failure, neglect and refusal, properly and
adequately to represent the employees of
respondent
Further, with respect to this contention, counsel for
Respondent relies upon this Board's prior Times
Publishing decision, 72 NLRB 676, 682-683, and
particularly the doctrine, declared therein, that "a union's
refusal to bargain in good faith may remove the
possibility of negotiation and thus preclude the existence
of a situation in which the employer's own good faith can
be tested." See, likewise, Kinard Trucking Co , Inc , 152
NLRB 449. Fleming & Sons of Colorado, Inc, 147
NLRB 1271, in this connection. Finally, Respondent
contends that its challenged course of conduct should not
be considered "interference, restraint, or coercion"
statutorily proscribed whether or not determination is
deemed warranted that Respondent's representatives may
properly be charged with such conduct - since the record
made with regard to certain developments "between May
31, 1967, when the employees unanimously voted to strike
if necessary, and August 9, 1967, when the Union initiated
these proceedings" shows conclusively that Respondent's
purportedly coercive conduct had not, really, undermined
Complainant Union or destroyed its majority
representative status
2 Facts
a Background
Respondent's contractual privity with Complainant
Union herein, previously noted, date, from July 1, 1965,
Mrs. Pittman's testimony - received without challenge or
contradiction - reflects her plainly professed "belief
that, following a very short period of June negotiations -
during which neither she nor her husband had any
significant opportunity to study Complainant Union's
proffered "complete" contract, carefully they were
given the designated July 1st "deadline" for Respondent's
signature , so that their vacuum truckdrivers could
thereafter claim contractually-defined July 4 holiday pay.
Ottis Pittman and Pete Kurbatoff, Complainant Union's
secretary-treasurer, were the contract signatories
Subsequently, on September 19, 1966, Kenneth Gaddis
was named Complainant Union's business representative,
with responsibility for servicing, inter alia, five vacuum
truck firms doing business within Complainant Union's
geographical jurisdiction, Respondent included During
October and November, thereafter, he paid two routine
visits to Respondent's yard.
Early in December 1966, Gaddis presented Mrs
Pittman with a grievance filed by Driver Bruce Todd,
which protested Respondent's purported failure to grant
him contractually required Labor Day and Thanksgiving
Day holiday pay Mrs Pittman protested that
Complainant Union's contract was "ambiguous and
uncertain" with respect to holiday pay for persons in
Todd's situation, further she contended, I find, that Todd
had, nevertheless, received such pay, computed
consistently with directions proffered by Complainant
Union's secretary-treasurer during a prior telephone
conversation Gaddis promised to check his organization's
contract files - regarding the scope of the partnership's
holiday pay commitment - and further promised that he
would bring Kurbatoff, when he returned for further
discussions. (While a witness, Gaddis, testifying from
memory, designated late November or early December as
this conference's date The record shows, however, that
Todd's holiday pay grievance was actually filed on
December 6th, I conclude, consistently with Mrs
Pittman' s testimonial recollection, that Complainant
Union's business representative visited Respondent's yard,
solo, shortly thereafter )
Sometime later in December, Gaddis and Kurbatoff,
together with another business representative, revisited
Respondent's yard Todd's grievance was further reviewed,
Mrs. Pittman renewed her contention that his pay had
been computed consistently with certain directions which
Kurbatoff had purportedly given her during a prior
Thanksgiving week telephone conversation Complainant
Union's secretary-treasurer however - when queried by
Mrs. Pittman finally - could not recall their purported
prior talk (This factual determination - with respect to
what was said - rests upon Mrs Pittman's testimony
While a witness, Gaddis could not "recollect" such a
Kurbatoff-Pittman conversation; however, no categorical
denial with respect thereto was proffered Kurbatoff did
not testify. The present record, considered in totality,
persuades me that Mrs Pittman really did - during this
OTT'S VACUUM TRUCK SERVICE
December conference - refer to a purported prior
telephone conversation with Complainant Union's
secretary-treasurer, which he then claimed he could not
recollect, but did not deny ) The Pittmans further
suggested - so I find - that, with respect to holiday pay,
their contract was less than clear, they complained that
Respondent's representative had been persuaded to sign
without having been given a chance to review the
proffered contract's provisions properly. Some "heated"
remarks were passed. (For example: Gaddis testified,
without contradiction in this respect, that Ottis Pittman
had disparaged Teamsters' President Hoffa, shortly after
the meeting began, in terms calculated to rouse
Kurbatofrs displeasure The record, further, reflects a
consensus that Complainant Union's secretary-treasurer
had suggested - during the discussion - that, should
Respondent find that it could not "go along" with its
current contract, that document should perhaps be "torn
up" with Complainant Union thereafter "taking its best
shot" looking toward a new consensus )
The results of the conference, however, were not
conclusive. Complainant Union's grievance regarding
Driver Todd's holiday pay claim, clearly, was not settled
Nor was Respondent's full contractual responsibility, with
respect to such holiday pay matters, further defined
On December 27, pursuant to Mrs. Pittman's
telephonic request, Gaddis again visited Respondent's yard
--- this time, to discuss the firm's Christmas holiday pay
computations With Mrs. Pittman - plus two office
clerical workers - present, Complainant Union's business
representative reviewed holiday pay computation problems
for some two hours. His discussion - together with
comments or questions from the partnership's office
personnel - was tape recorded; nothing in the present
record, with respect thereto, suggests dispute Shortly
thereafter, Mrs. Pittman prepared a purported summary
of Respondent's holiday pay commitments, derived from
this December 27 discussion. On January 3, 1967, this
summary was dispatched to Complainant Union's
secretary-treasurer by registered mail, he was requested to
"check" the document, sign a copy and return it to
Respondent's office While a witness, Gaddis conceded
that Complainant Union had neither acknowledged, nor
complied with, this request
Subsequently, so the record shows, Driver Todd filed a
second grievance, with a January 18 date, he claimed pay
shortages for two weeks which compassed the Christmas
and New Year's Day holidays. On January 18, or within a
few days thereafter, so I find, Complainant Union's
business representative telephoned Respondent with
respect to both grievances, Todd's second grievance - so
Gaddis testified - had been mailed to Respondent's yard
Mrs. Pittman was told that - should her driver's several
claims not be settled - they would be referred to some
joint employer-union grievance committee for disposition
The present record, within which Gaddis did not
designate the committee with proper precision, leaves
some doubt regarding the particular committee which he
mentioned. Respondent partnership's Vacuum and Pump
Truck Wage Agreement, particularly Articles XVII and
XVHI with respect to grievance machinery, mentions
Joint State Committees [31 for the States of California
and Nevada, together with a Joint Western Area
Committee, composed of delegates from eleven western
states. With matters in their present posture, however, this
lack of certainty within the record, regarding the
committee's precise designation, need not be resolved.
1083
According to Gaddis - whose testimony in this respect
I credit - Mrs Pittman displayed resentment, she
purportedly declared, "Don't call me again. Don't come
on my property Tell Pete Kurbatoff to take that contract,
tear it up and bring me the pieces " On this note - so
Complainant Union's business representative testified -
their conversation terminated
While a witness, Mrs. Pittman could not recall this
telephone conversation She declared that Respondent
had, coincidentally, dispatched a January 18th telegram to
Complainant Union, repeating the partnership's January
3rd written request for some sign of concurrence with
regard :o her previously summarized conception of
Respondent's contractual holiday pay commitments But
she could not recollect any telephone response, that day or
later, by Complainant Union's business representative.
Further, she denied telling him - then or at any time -
that further contacts or visits by him were forbidden, or
that Respondent's current contract had been repudiated.
My review of the record - which buttresses conclusions
bottomed upon Mrs Pittman's witness-chair demeanor -
persuades me, however, that her present denials, with
respect to this matter, cannot be credited. There can be no
doubt that Mr and Mrs Pittman found their contractual
holiday pay problems - which Todd's two grievances had
generated - more than mildly vexatious With matters in
their January 18th posture, I consider Gaddis' testimony
that he did call, and that Mrs Pittman's reaction to
his telephone call revealed frustration and resentment -
consistent with probability
Whether Mrs. Pittman really meant her remarks to be
taken literally need not, however, be determined The
record shows that - during a subsequent conversation -
she disclaimed having voiced any purpose to debar
Complainant Union's business representative from
Respondent's premises; further, determination would seem
to be warranted that, despite her remarks, respondent
partnership still considered itself contractually bound
Whatever motive Mrs. Pittman may have had, for her
remarks, they were clearly calculated - at the very least
- to put Complainant Union on notice that Respondent's
management spokesmen considered their "holiday pay"
contretemps a troublesome harassment.
Shortly thereafter, consistently with Gaddis'
declaration, Complainant Union did take steps to press
Todd's holiday pay complaints before the proper
contractual grievance committee The matter was set for
consideration during that committee's scheduled January
30 meeting On January 27, however, Gaddis received a
telephone call from Bill Reed, California Trucking
Association representative, the latter reported that
Respondent had requested a postponement of the
grievance matter for l month Complainant Union's
business representative, so the record shows, acquiesced
On March 6, subsequently, the grievance committee
met Representatives of Complainant Union, Todd, and
the California Trucking Association were present, no
appearance was noted, however, for respondent
partnership According to Gaddis, Todd's grievance was
"won" through Respondent's default
Within a few days - so I find - Complainant Union's
business representative had a telephone conversation with
Mrs. Pittman, Gaddis, however, could not recollect,
clearly, whether Respondent's office manager or he had
placed the call. (Mrs Pittman could not recall this
telephone conversation either. Upon the record, I am
satisfied that her lack of memory derives from
rationalization, Gaddis' testimony with respect thereto is
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credited )
In any event, Complainant Union's default victory, with
respect to Todd's grievance, was discussed, Mrs Pittman
was asked whether she would pay She refused, declaring
that she had not yet had her day in court When Gaddis
reminded her that the matter had been postponed at
Respondent's request, but that no partnership
representative had been present when the postponed
matter was finally heard, Mrs Pittman protested that she
had received no notice confirming the postponement, and
had not known the postponement date With matters in
this posture, their conversation was terminated So far as
the record shows, Respondent has never given the
aggrieved driver - who is no longer in the firm's hire -
any holiday pay computed consistently with the grievance
committee's determination
b Claimed Interference, Restraint , and Coercion
(1) General Counsel's Presentation
With respect to developments between March and June
1967, General Counsel presented but two worker witnesses
- truckdrivers Charles Lemons and Emery Carl Lacy,
specifically.
Neither Lemons nor Lacy works for Respondent
presently, throughout the period with which this case is
concerned, however, they had been Respondent's senior
drivers. (Lacy's period of service full-time with respondent
firm had run from January 9, 1959, to July 3, 1967, save
for one year [1965-1966] during which he had been on
leave; the circumstances which led to his termination will
be noted, subsequently, within this decision Lemons had
worked for both Respondent and Pittman's related firms,
handling all types of movable equipment, between May
13, 1962, and July 16, 1967, his termination will, likewise,
be discussed hereinafter.)
During this period, also, Respondent had employed
three more full-time drivers Wayne Morgan, Art
Bouman, and Bill Warner, specifically. Two, Bouman and
Warner, still work for respondent partnership full time
John Nienhouse, currently a part-time driver, had
previously worked full-time for Respondent between
December 7, 1955, and September I, 1966, on the latter
date, having purchased a so-called "hot oil" truck from
the partnership, Nienhouse had started his own business,
while continuing to perform part-time services for either
respondent firm or other related Pittman enterprises
Three of the drivers last named - Bouman, Warner
and Nienhouse - testified in Respondent's behalf; their
proffered recollections, however, reflect no rebuttal or
contradiction with respect to Lemons' or Lacy's specific
testimony relative to certain statements with which Mr
and Mrs Pittman have been charged
Thus, while witnesses, Lemons and Lacy herein testified
- among other things - that Mr. and Mrs Pittman
made statements which, so General Counsel contends,
merit statutory proscription. Substantially, their testimony
- should it be found credible - would warrant
determinations that
I Sometime during March 1967, Mrs Pittman had
queried Lacy with respect to how he would "vote"
regarding Complainant Union's claim to representative
status Lacy, so his testimony shows, had refused to
commit himself Mrs. Pittman had then declared that
Respondent would rather pay workers, directly, sums
which the firm was then "giving" the Complainant Union,
should the men "vote" their severance from that body
Further, Mrs Pittman had suggested that her husband
might set up some sort of profit-sharing plan, since he
would rather pay Respondent's workers, directly, the
equivalent of what he was paying Complainant Union
herein Finally, Mrs Pittman had noted that such action
would probably raise Respondent's drivers' total pay to
$4 70 per hour
2 In April, shortly following the April I expiration
date of Respondent's contract, Mrs. Pittman had told
Lemons that, "If you men stay union, you might as well
figure on looking for another fob" Later that day, when
he reached home, Lemons had telephoned Mrs Pittman,
asking whether she had really meant her remark.
According to General Counsel's witness, she had said that
she did, and had declared, further, that men as old as
Respondent's drivers would find it hard to procure other
positions
3. Sometime in April 1967, Ottis Pittman had told
Lacy that if Complainant Union were not "in " the plant,
Respondent 's employees would be getting more work, and
that, as long as Complainant Union was "in" he didn't
"give a damn " whether the drivers worked or not.
4. Sometime during April or May, Ottis Pittman had
told Lacy that - should Respondent's drivers "get rid" of
their "damned" union - he would be willing to give them
a financial return equivalent to their take home pay plus
fringe benefits, which might reach $4 70 per hour.
Further, Pittman had declared that he would rather set up
a profit-sharing plan, and give Respondent's workers part
of his profits , than pay it to Complainant Union herein.
Complainant Union's retirement fund had been
disparaged, on the ground that Respondent's then current
worker complement would not be there long enough to
derive retirement benefits According to Lacy, further,
Pittman had declared that newspaper reports showed
workers received only twenty-five percent of the money
contributed to Teamsters' Union pension funds
5 Late in May 1967, while Lacy was making plans for
a subsequent June vacation, Mrs. Pittman had told him he
would have to take his vacation at that time [May] or
wait until some time later than planned, she added that,
should he choose to wait, he would have to give up his 40
hour weekly guarantee Ottis Pittman, so Lacy testified,
had told him substantially the same thing, when
confronted thereafter with a letter from
Secretary-Treasurer Kurbatoff, within which Complainant
Union supported Lacy's June vacation request, Ottis
Pittman had, supposedly, declared that Complainant
Union could not tell him when Respondent's men could
take their vacations
6 During May or June, under circumstances which will
be noted, Mrs Pittman had telephoned Lemons at his
home, asking what he was "doing" about "his" union,
specifically Lemons had been asked to telephone
Complainant Union with a request that a copy of that
body's proposed contract be sent to respondent
partnership. According to Lemons, Mrs Pittman had
declared that her husband was "unhappy" regarding
Complainant Union's pension plan; that she wanted to see
a contract, but that she "would not" sign it. Lemons, so
he testified, had telephoned Complainant Union pursuant
to Mrs Pittman's request, but had been told that body's
prospective contract terms had not yet been reduced to
written form.
7 Sometime during June 1967, Mrs Pittman had
scolded Lemons and Wayne Morgan, saying, "What is the
matter with you men' Are you a bunch of kindergarteners
that have to be led around by your hands" Look at that
OTT'S VACUUM TRUCK SERVICE
equipment out there $40,000 pieces of equipment, and not
a man fit to drive any of it " Then, referring to a prior
Union meeting, during which Respondent's drivers had
purportedly discussed several grievances, Mrs Pittman
had queried Lemons, "If you men wanted a washroom
and a bathroom, why didn't you come to manag"ment for
it, instead of going to the Union""
8 During July, while Lemons was on vacation, Mrs
Pittman had telephoned him at his residence Presumably
referring to the fact that Respondent had not yet received
a copy of Complainant Union's proposed contract, she
had asked Lemons, once more, what he had "done" about
"his" union When he replied that he had done nothing,
Mrs Pittman had told him, so he testified, that, "We can
make you a better deal than the Union can " Lemons had
asked whether she had a concrete proposal His testimony
regarding her reply reads as follows "She says, `I agree
with you, Charley, that it should be in black and white
and all legal and everything, but we can't do that ' I said,
`Why not?' She says, `On account of the Union and
because the Government will not let us complete a
contract with the employees' " Lemons had then been
asked why he did not procure a withdrawal card "like Bill
[Warner] and Art [Bouman]" had done The driver, so he
testified, had subsequently learned from Complainant
Union that neither Warner nor Bouman had actually
procured withdrawal cards, but that Nienhouse had
recently done so, following his truck purchase, previously
noted
9 Later in July 1967, so Lemons testified, Mrs
Pittman had telephoned to ask what he had done
regarding a withdrawal card The driver reported that he
had done nothing, declaring that, under the circumstances
he did not feel he could do anything about such a card
He had then queried Mrs Pittman with respect to what
she was going to do about him, in view of her earlier
comments concerning "what would happen" if
Respondent's drivers stayed unionized Mrs Pittman, so
Lemons recalled, had said she would have to consult Ottis
Pittman, but that she could make him a better deal than
the Union could - specifically mentioning more money,
40-hour workweek guarantees, company-supplied
uniforms, and hospitalization - should he procure a
withdrawal card. During their conversation, the driver
testified, Mrs Pittman had expressed wonder regarding
her drivers' willingness to keep paying money to "that
crook Hoffa "
(2) Respondent's Rebuttal
With respect to this detailed testimony, Mr and Mrs.
Pittman have proffered nothing more than general denials
Mrs Pittman was merely asked (1) Whether she had
heard Lemons' and Lacy's testimony regarding "certain
things" which she was "supposed" to have said to them,
and whether she had made "any of those" statements, (2)
whether she had "at any time" made any efforts to
influence them "in any way" with reference to their Union
membership, (3) whether she had discussed "anything
pertaining to Union matters" with Respondent's drivers,
after posting notices regarding a June 23 Union meeting
which will be discussed hereinafter These generalized
questions produced merely "No, sir" responses.
Subsequently, Mrs. Pittman declared that she had not
discussed "profit sharing" for Respondent's workers,
during the period with which we are now concerned
Further, she testified that whatever discussions she may
have had relative to wage raises since March 1, 1967,
1085
specifically - had not been initiated by her She then
volunteered, however, that sometime during August or
September thereafter Bouman, Warner and Nienhouse
had asked her "how come" they were still being paid their
old contract rate while some "other vacuum truck
drivers" were getting more Finally, Mrs Pittman did
testify she was "almost positive" that neither she, not any
management representative, had - since March 1, 1967,
specifically - suggested a willingness to pay $4 50 per
hour for services specifically rendered in respondent
partnership's behalf Ottis Pittman was merely asked -
when his turn came - whether, during 1967, he had ever
promised Lacy, Lemons or any other worker "any raises
in salary or anything else" calculated to affect their Union
membership. He replied, likewise, with a simple negative.
(3) Factual Conclusions
Such generalized denials, with respect to General
Counsel's detailed presentation, possess very little
persuasive power Further, Mrs Pittman's testimony -
proffered as Respondent's principal witness-chair
protagonist - largely merits characterization, within my
view, as discursive and rather disconnected, sometimes it
was clearly subjectively colored. The record, for example,
reflects her disposition to proffer capsulized comment.
During her direct testimony she declared , inter alia, that
Secretary-Treasurer Kurbatoff was "quite disgusted" with
the "ambiguous" language of Complainant Union's
contract, during cross-examination, at one point, she
characterized Respondent's driver group as "men .
in turmoil"with respect to whom "there was a lot of
friction, continuous friction" which she never detailed
Such recitals - though reasonably calculated to convey
Mrs Pittman's firmly-held, self-righteous conviction
regarding the soundness of her views - suggest a memory
colored by rationalization, rather than factual reportage
Counsel suggests, presently, that Lemons and Lacy
should not, in any event, be believed - with respect to
their testimony now under consideration - because of
their previously revealed bias vis-a-vis respondent
partnership In this connection, Mrs Pittman contended
that Lemons had purportedly nurtured a grievance against
her for slightly more than one year before his resignation
She declared that his presumptive "displeasure" seemed
derived from her June, 1966, decision to sell, rather than
move, certain partnership equipment then located in
Kansas, which decision had, realistically, denied him,
(Lemons), the chance to receive pay for that equipment's
transportation to Respondent's Southern California
premises With respect to Lacy, Respondent's office
manager proffered testimony calculated to suggest that
resentment over his July 3rd termination - following his
return from a vacation taken without regard to
management's wish - had generated within him a desire
for reprisal
These suggestions of possible bias, however, cannot be
considered persuasive With respect to Lemons, Mrs
Pittman's first reference to his sense of grievance -
proffered during her direct testimony - seemed calculated
to suggest that his "disturbance" so-called (derived from
Respondent's decision to sell its Kansas business
equipment), had directly motivated his July 16th
termination; only when queried further, by this Trial
Examiner, did she reveal that his purported grievance
really dated back more than one year (During her direct
testimony, Mrs Pittman further suggested that - when
he resigned - Lemons had been "disturbed" because
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent had sold a so-called "hot oil" truck to
Nienhou.;e, and had "financed" his self-employed business
venture; the record shows, however, that this transaction
had been completed in September, 1966, some 9 months
previously.)
With matters in this posture, Mrs. Pittman's
subsequent testimony - that Lemons had, nevertheless,
maintained his previous "bitter" resentment over her
purportedly "wrong" decision, and that such resentment
had motivated his resignation, simply does not ring true
Further, her concurrent testimony that Lemons was
"number one" against Complainant Union, and that he
was "very bitter towards the union, very bitter" because
Respondent's July 1965, compliance with Complainant
Union's contractual wage rate for vacuum truckdrivers
had "cut" his pay by 27 cents per hour, cannot be
reconciled with his subsequent behavior Having joined
Complainant Union when Respondent's crew was
organized, Lemons has retained his membership.
Throughout the period with which this case is concerned,
Lemons patently supported Complainant Union without
qualification; his testimony, herein, proffered voluntarily
in General Counsel's behalf, belies any suggestion,
whatsoever, that he had been "very disturbed" with regard
to Complainant Union's contract and pension plan, or
with regard to "anything" considered Union connected.
During cross-examination, Lemons had not been
questioned regarding any prior statements or conduct
reasonably calculated to reveal his purported hostility or-
displeasure, vis-a-vis either respondent partnership or
Complainant Union herein
Finally, with respect to Lacy, Respondent's counsel
sought to show - through cross-examination merely -
certain threatening statements, coupled with purportedly
violent conduct, sufficient to warrant a determination that
the driver had resented his termination. Confronted with
these challenges, however, Lacy denied any resentment;
further, he proffered variant testimony with respect to his
purported course of conduct which Respondent would
have this Board find revelatory of bias Thereafter,
Respondent provided no direct testimony - during its
defensive presentation - dealing with Lacy's supposedly
questionable statements or conduct. With matters in this
posture, counsel's challenge regarding this former driver's
veracity, within my view, cannot be considered sustained
This record then - so I find - dictates factual
determinations bottomed upon General Counsel's
presentation The circumstantially detailed testimony
which Lemons and Lacy proffered - specifically with
respect to Mr and Mrs. Pittman's challenged statements
and conduct - reflects a pattern of behavior which,
within context, mutt be considered consistent with
probability, that testimony, within my view, has not been
convincingly rebutted
c Complainant Union's Contractual Dealings With
Respondent
Meanwhile, during the period with which this case is
concerned - particularly following the April 1st
termination of Complainant Union's Vacuum and Pump
Truck master contract - negotiations looking toward a
new contract were being conducted. These negotiations, so
the record shows, involved Complainant Union, Local 692
(Complainant Union's Long Beach, California, sister
local), and spokesmen for California Trucking
Association, functioning, pursuant to specific designation,
for various represented firms
The present record provides no definitive data regarding
the number, names or geographical distribution of those
firms within Southern California's so-called "vacuum
truck" industry which were represented in these
negotiations Concededly, however, Respondent was not
considered privy to them, whether directly or by proxy
On May 31, Gaddis convened a special workers'
meeting - confined, I find, to Respondent's drivers - at
Complainant Union's hall The record does not reveal the
means employed to disseminate word regarding the
meeting. Lemons, Lacy, Morgan, Warner, and Bouman
were present (While witnesses, Lemons, Lacy, Warner,
and Bouman presented some variant testimony about this
gathering, regarding the possible presence of another
driver not in Respondent's hire; the present record
considered in totality - with due regard for probabilities
persuades me, however, that those who purportedly
recalled the presence of such a driver, during the meeting
proper, were mistaken)
Much of their discussion seems to have dealt with
driver grievances, the minutes of the meeting, prepared by
Complainant Union's recording secretary, list fourteen
separate complaints with respect to Respondent's
management However, Complainant Union's business
representative - so the record shows - did present a
report regarding the status of the so-called "industry
wide" contract negotiations; various contractual provisions
then considered tentatively settled were reviewed, and
Gaddis' thoughts with respect to prospects of final
settlement were recapitulated The business
representative's testimony, which I credit in this
connection, warrants a determination, further, that he
discussed Complainant Union's past "troubles" and
possible future "troubles" with Respondent's
management Specifically, he noted that Complainant
Union had won a grievance dispute, but that Respondent
had, thus far, failed to settle consistently with the
grievance committee's determination, he speculated that
Complainant Union would "probably" have to shut
Respondent down, to procure a new contractual
settlement A consensus motion by Bouman - which
Lacy seconded - whereby Complainant Union's
secretary-treasurer would be generally "empowered" to
call a strike against respondent partnership, should such
action finally be required to procure a contractual
commitment, was passed five votes to none, while a
witness, Bouman characterized this as a "tentative" strike
vote The Complainant Union's minutes show that
"general discussion about some other problems" followed,
the meeting then terminated
On June 19, so Gaddis' further credible testimony
shows, Ottis Pittman telephoned him When Complainant
Union's business representative subsequently returned this
call, he was asked why he had not, recently, visited
Respondent's premises When he recapitulated Mrs
Pittman's purported prior refusal to permit him on
partnership property, Mr Pittman expressed surprise He
summoned Mrs Pittman, who protested that Respondent
was contractually bound and denied any such ukase;
arrangements for a June 21 visit, thereupon, were made
On the latter date, when Gaddis reached Respondent's
premises, Mr Pittman was not present. So far as the
record shows, he (Gaddis) spoke with Mrs Pittman,
solely With respect to their conversation, the record
reveals substantial testimonial conflict, which cannot
readily be reconciled. Gaddis testified, this time, from
notes, Mrs Pittman from memory Due reflection -
bottomed upon my observation of these witnesses and my
OTT'S VACUUM TRUCK SERVICE 1087
review of their respective testimonial presentations
considered in totality - has, however, persuaded me that,
with respect to this conversation, each probably recalls
merely those comments which post facto rationalization
would mark as worthy of recollection, while permitting
other facets of their confrontation to slip into limbo. My
factual determinations, regarding the substance of their
discussion, which follow -- therefore reflect a synthesis
derived from their composite testimony with due regard
for the natural logic of probability Cf. Inter-Mountain
Dairymen, Inc, 157 NLRB 1590, 1609-1610, Phaostron
Instrument and Electronic Co , 146 NLRB 996, 998, enfd
344 F 2d 855 (C A. 9), Southeastern Motor Truck Lines,
113 NLRB 1122, 1124-1127, citing N L.R B v Universal
Camera Corp , 179 F.2d 749 (C A 2) in this connection
Complainant Union's business representative produced
a notice, dated the previous day, which he requested Mrs.
Pittman to post, the notice, directed to "All Members Of
Local No 235 - Employed In The Vacuum Pump
Industry," proclaimed a special membership meeting,
scheduled for Friday, June 23rd, at Complainant Union's
hall, during which a vote regarding "the acceptance of the
contract" would be taken Respondent's office manager
agreed to post - and subsequently did post - the
proffered notice
During the conversation wh!ch followed, so I find,
Gaddis mentioned some grievances which he wished to
discuss, when Mrs Pittman declared her willingness to
listen, he cited , inter a/ia , Driver Todd's holiday pay
grievance, together with a grievance which had been
discussed on May 31st by Respondent's workers regarding
their claimed lack of free access to Respondent's toilet
and washroom facilities.
My determinations relative to this part of the
conversation now under consideration derive from Mrs.
Pittman's testimony That testimony reveals her claimed
lack of contemporary knowledge regarding the May 31st
Union meeting previously noted. She declared -
consistently - that she could not recall any driver
comments, whether before or after that date, regarding
particular grievances which had then been mentioned Yet
the record - which reveals no testimonial conflict in this
respect - warrants a determination, which has been noted
previously herein, that she made a subsequent statement
regarding the men's so-called "washroom" grievance
With matters in this posture, some determination seems
justified that she must have heard about this problem
during her June 21st talk with Complainant Union's
business representative I so find
Most of their discussion, however, seems to have been
devoted to the contractual consensus which had
purportedly been reached by Complainant Union, Local
692, and designated employer representatives during their
so-called "vacuum truck industry" negotiations.
According to Gaddis, consensus on terms had been
reached, but no definitive contract draft had yet been
prepared; Complainant Union's business representative -
during their talk - merely had a memorandum of
purportedly "agreed" terms, which he reviewed, so I find,
for Mrs Pittman's benefit Gaddis sought a verbal
commitment from her, that Respondent would sign a
contract with similar terms when it could be proffered in
written form Mrs Pittman demurred, however, saying
that Mr Pittman and she had opposed the Teamsters'
Union pension plan, which the prospective "industry"
contract would recognize, together with certain other
contractual provisions.
Gaddis, during his direct testimony, purportedly
recalled a flatfooted refusal by Mrs Pittman to consider
signing a document drafted to match the prospective
"industry" contract; he declared that she had said
Respondent had "no problems" until Complainant Union
claimed representative status, and that she - speaking for
Respondent presumably - would not sign the proffered
"contract" with Complainant Union's pension plan
included, under any circumstances Further, he
purportedly recalled Mrs Pittman as saying, "Now
all we have is problems Why don't you take your union
and just go away and leave us alone7" During
cross-examination, however, Gaddis' recollection with
respect to this facet of their talk, was significantly
qualified, he finally conceded that
She definitely said she would have to have a copy of the
contract . She said that she would definitely have to
see another one . . but she would not go along with
the pension plan, Teamster pension plan
With matters in this posture, this trier of fact is satisfied
that Mrs Pittman may very well have declared
Respondent's disposition not to sign a contract drafted to
match the prospective "industry" agreement, should it
take the form which Gaddis had recapitulated for her,
further, however, I am satisfied that her comments could
not fairly be considered calculated to disclose any fixed
determination to foreclose further "independent"
negotiations Her demand that Respondent be provided
with a written copy of Complainant Union's proposed
contract - which Gaddis finally conceded testimonially
- persuasively belies any factual contention that
Respondent was then -- determined to reject further
contractual discussions or negotiation I so find
On June 23, pursuant to posted notices, Complainant
Union's special meeting was convened Though
Complainant Union's prior notice had, purportedly, been
directed to "members" working for various "vacuum
pump industry" firms with Orange County headquarters
- Steverson Brothers, Fairbanks Transportation
Company, Parker & Martin, Imperial Transport Service,
and Respondent - the minutes which Recording
Secretary Manos subsequently prepared, plus his own
testimony, reveal persuasively that no more than four
drivers were present. And this record warrants a
determination contrary to Gaddis' and Manos' claimed
recollections - that these were Respondent's drivers
Lemons, Bouman , Warner and Morgan, Lacy was then on
vacation Gaddis summarized the purported "final
settlement" which had just been reached, regarding the
prospective "Vacuum Pump" contract His recapitulation
- so the record shows - derived from his personal
memorandum summary of purportedly "agreed" changes,
no contractual draft, however, was produced Gaddis
reported, merely, that such a document, when ready,
would be submitted to various concerned firms
While a witness, the business representative volunteered
that - following developments which he did not detail -
some sort of conflict developed regarding the prospective
contract's vacation provision This conflict, so he testified,
has not yet been resolved; though a completely
"integrated" document has been prepared for signature -
this having been done some 6 or 7 weeks before the
hearing in this case, sometime during January, 1968,
specifically - that draft's vacation clause remains in
controversy still
Pursuant to motion, the workers present - presumably
Respondent's drivers solely - voted their "acceptance"
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with respect to the contractual consensus which Gaddis
had reviewed Their vote was unanimous
The record, nevertheless, reflects a substantial
testimonial conflict regarding the substantive content of
the specific motion which won their concurrence Gaddis
and Lemons recalled the vote --- with corroboration from
Complainant Union's recording secretary - merely as
calculated to ratify the "final" consensus which
Complainant Union's negotiators had purportedly
reached Both Warner and Bouman, however - testifying
in Respondent's behalf claimed (1) That Gaddis,
during his presentation, had declared his purpose to
present respondent partnership with contractual demands
which would match the consensus which had purportedly
been reached during the described "industry" negotiations;
(2) that he had, further, declared his purpose to present
these demands before July 1, or within some short time
thereafter, and (3) that Respondent's drivers had,
thereupon, voted their specific concurrence with plans for
an early July strike, should Respondent then fail or refuse
to accept Complainant Union's prospective contract
proposal, within a few days This testimonial conflict,
regarding the significance of Complainant Union's June
23 vote, was thoroughly litigated My review of the record
- coupled with my observation of Bouman and Warner
relative to their witness-chair deportment - persuades me
that their claimed present recollection, regarding the
matter now under consideration, must be considered
colored by rationalization (When queried in direct
examination, Warner's reference to this matter was
prefaced with the apologetic comment that it reflected
"the best of my memory" merely; during
cross-examination, he conceded that he might be confused
regarding the date of the strike vote ) Their testimony,
both with regard to the June 23 meeting and other
matters, reflects partial divergence, coupled with some
conceded confusion and lack of certainty; further, portions
thereof - particularly with respect to certain July
developments which I propose to discuss - cannot be
reconciled with documentary material proffered for the
record Due regard for probability does suggest some basis
for a factual conclusion that Gaddis may well have
recapitulated - during his general discussion - his May
31 forecast, bottomed upon prior contacts, that
respondent partnership might have to be struck, sometime
thereafter
There is record testimony, which I would consider
suggestive in this context, warranting a determination that
Complainant Union's business representative probably
did, inter alia report his prior receipt of confirmation that
Teamsters' Union strike benefits would be payable to
Respondent's drivers, should such disbursements become
necessary.
Credible testimony considered in context, however,
would finally justify a deduction - merely - that
whatever remarks he may have made regarding his
timetable for contract talks, with particular reference to
some contingent strike deadline, must have been
vouchsafed in general conversation, possibly following the
meeting's formal close While a witness, during his direct
testimony, Bouman spoke of the strike consensus as the
product of "agreement" following a discussion For
whatever significance such a factual conclusion may have,
determination seems clearly warranted, therefore, that
Complainant Union's July 23rd final "ratification" vote,
per se, confirmed no concrete timetable, nor did it set
strike deadlines I so conclude
With respect to later "contract" developments, the
record reveals further testimonial conflict. Gaddis, while a
witness, could not recall any subsequent conversation with
Mrs. Pittman, following their June 21 talk previously
noted His denial with respect to later contacts was not,
however, categorical, when queried by Respondent's
counsel, he declared
I am sorry. I am going to have to go through my book
here It has been a long time I visit a lot of yards I
wouldn't say I hadn't talked to her To the best of my
knowledge I [haven't] been back in the yard since then
[Emphasis supplied ]
Mrs. Pittman, however, did recall a subsequent
conversation She testified that - about June 29 or 30
specifically Complainant Union's business
representative telephoned Her recollection regarding their
conversation - which Gaddis, though present, was not
thereafter recalled to deny - reads as follows
He told me that he had a piece of paper that he would
like for me to sign on behalf of the Company, because
he did not have the new contract [,] and this would bind
it over [And] I told him that I really didn't feel it
would be fair for me to present a piece of paper to Ottis
and Earl Pittman, especially with . the difficulty we
had with the last contract, that he was quite aware of
how ambiguous it was He said that - Well, he just
hadn't been able to get his hands on a copy of the new
contract, and I told him that I had heard from the
operators in Long Beach that they did have a copy, a
draft or a copy of the contract, and if he would run by
and get it, [from Local 692 in Long Beach presumably]
I would Xerox a copy off so that then I could present it
to Ott and Earl Pittman for review He said, "Okay,
very well I will probably see you this afternoon " This
is the last I heard from Mr Gaddis
This record - which I have reviewed with due regard for
Mrs Pittman's proffer of circumstantial detail coupled
with Gaddis' failure to note a definitive denial
persuades me that Mrs. Pittman's recollection, specifically
with regard to this telephone conversation, merits
credence Complainant Union's business representative -
within my view would, most likely, have deferred his
specific suggestion that Respondent sign a proposed
"interim" or "contingency type" contract, pending his
membership's ratification of some contractual consensus,
Mrs Pittman's testimony that Gaddis did wait strikes me,
therefore, as consistent both with logical probability and
conventional practice
d Subsequent Developments
With respect to later developments, General Counsel
proffers no direct testimony Mrs. Pittman's declaration
- previously noted - that Complainant Union's business
representative never revisited Respondent's premises with
any sort of contract draft, procured from Complainant
Union's Long Beach sister local, stands without challenge
Indeed Gaddis while a witness - conceded,
substantially, that no vacuum truck firms within
Complainant Union's geographical jurisdiction have, thus
far, been presented with a draft contract ready for
signature, further, his testimonial concession that he and
Mrs Pittman have had no subsequent contacts whatever
warrants a determination - consistent with Mrs
Pittman's recollection - that Gaddis has never even
proffered, for respondent partnership's perusal, the
OTT'S VACUUM TRUCK SERVICE
memorandum "interim" contract which, before July 1, he
had verbally requested Mrs Pittman to sign
Consistently, Warner and Bouman testified, credibly
and without contradiction, that they, likewise, have had no
significant contacts, whatsoever, with Complainant
Union's spokesmen since their June 23 meeting, previously
noted I so find
Their recollections in this respect stand corroborated by
General Counsel's witness, Lemons, with respect to the
period between June 23rd and his subsequent July 16th
resignation, Lemons testified that no representative of
Complainant Union spoke with him regarding a possible
strike Nor did any Union representative, during that
period, even report a contract submission which
Respondent had rejected When they reported for work on
Monday, July 3, they found no picket line, they
commenced work, and have continued to work whenever
called so far as the record shows - since that date
During this period by the way - they constituted
Respondent's complement of full-time drivers Lemons -
so his testimony shows -- had gone on vacation "shortly
after" the Union's June 23 meeting Following his several
July telephone conversations with Mrs. Pittman,
previously noted, he had sought work elsewhere, when
notified on July 16 that "one of these applications" had
been accepted, Lemons resigned According to Warner,
Morgan had left on "leave of absence" during the first
part of the month Lacy, meanwhile - having returned
from his vacation had telephoned Respondent on July
3 regarding his resumption of work He had been told that
he had been discharged The record warrants a
determination that, when notified of his discharge, Lacy
had asked Mrs Pittman whether he could call to pick up
his check, and that he had been referred to Respondent's
counsel Subsequently - following a telephone
conversation or conversations with respondent
partnership's lawyer - he had received his check by mail
Previously, within this decision, reference has been
made to counsel's suggestion - during Lacy's
cross-examination specifically - that "considerable
animosity" had been generated within him, presumably
because of the controversy regarding his vacation timing,
and Respondent's consequent decision to dispense with his
services. Questions calculated to suggest Lacy's resentful
"mental attitude" following his termination were,
however, countered with denials; counsel, then, declared
that he would subsequently present direct testimony
regarding the "facts and circumstances" surrounding
Lacy's discharge Respondent's defensive case-in-chief,
however, reflects no such testimony
Thus, throughout July's first half and, so far as the
record shows, thereafter - Respondent's driver
complement consisted of Warner and Bouman, working
full time, together with Nienhouse whose part-time
services were likewise at respondent partnership's disposal
Warner and Bouman, so their testimony - which I
credit in this respect - shows, discussed Complainant
Union's seeming neglect to pursue promised contractual
negotiations with respondent partnership; they concluded
following a consultation with Regional Office personnel
that, since they were hearing nothing from
Complainant Union's spokesmen, some effort should be
made to procure that organization's removal as their
recognized collective-bargaining representative.
Warner's testimony, which has not been challenged in
this connection, warrants a determination That he had
first queried Mrs. Pittman as to whether Respondent's
drivers would get a raise, that she had refused to discuss
1089
contract matters and had referred him to partnership
counsel, that such counsel had, likewise, refused to discuss
the contract situation, but that he had been told he could
visit or telephone the Board's Regional Office to get
information
A typewritten petition was prepared -- sometime close
to July 22 presumably - for submission to the Board's
Regional Office, which Warner, Bouman, and Nienhouse
thereupon signed The petition read
We, the undersigned do not wish to be represented by
any Union for Ott's Vacuum Truck Service, Oil
Heating and Dewaxing Service, Inc , and Pittman
Tanks a Division of Ace Industrial Chemicals, Inc
On July 24, this petition was submitted to the Board's
Regional Office However, shortly thereafter -
presumably because they were told that their submission
had, for some reason, been technically deficient -
Respondent's drivers "prepared" a second petition form,
which all three drivers again signed This petition, dated
July 29th, read simply "We the undersigned have voted
to give up the Union Local 235 as our bargaining agent "
This was submitted on August Ist, presumably with a
properly prepared representation petition form,
subsequently docketed as Case 21-RD-842 by Regional
Office personnel
The testimony severally proffered by Warner, Bouman,
and Nienhouse with respect to these petitions reveals
significant variations Their respective recollections need
not be now recapitulated; suffice it to say that their
recitals, considered in totality, reflect a lack of certainty
or substantial differences with respect to The
circumstances under which they reached consensus
regarding the language which headed the first petition, the
person or persons directly responsible for drafting that
first petition's language, the circumstances under which
that first petition was typed, the specific person
responsible for such typing, the circumstances under which
consensus was reached with respect to the revised
language of their second petition, the specific person
responsible for typing that petition, the circumstances
under which both petitions were signed, and the source or
sources which provided the plain bond paper used for both
petitions (While a witness, both Nienhouse and Warner
- possibly confused by the fact that these petitions had
been received for the present record and marked with
General Counsel's exhibit numbers in reverse
chronological sequence could not even "recall" which
petition had been drafted or typed first ) Inter alia,
Bouman and Nienhouse both declared that a
secretary-clerk in Respondent's yard office whom
Nienhouse retained part-time, as needed, and paid to
service his own separate business - had provided the
paper for at least one petition draft from a supply in
Respondent's office, and that she had typed the petition at
Nienhouse's request, without Pittman's knowledge or
consent Their testimony in this respect flatly contradicted
that proffered by Warner, who had previously described
both petitions as typed on a neighbor's typewriter, one by
himsell and one by his neighbor Both petitions, however
- so the record shows were typed on paper of uniform
quality with identical watermarks Both reveal - when
their letter formations, type structure, and type alignments
are closely studied - that they were typed on the same
typewriter I so find.
With matters in this posture, General Counsel would,
presumably, have me deduce that Mrs Pittman or
Respondent's partners may have suggested, supported or
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
promoted the petitions. Certainly, such a determination
could not, herein, . be considered completely foreclosed
Warner's patent witness-chair try to portray both petitions
as severally drafted and typed, without help from
Respondent's clerical personnel - which his fellow drivers
so conspicuously failed to coiipborate - may,
conceivably; generate more than a scintilla of suspicion
that he (Warner) deliberately so testified because he
considered it possible that contrary testimony would be
thought prejudicial Such mere suspicion, however, would
provide no sufficient basis for a specific factual
determination, conversely, that Respondent's management
had - really suggested, promoted or concretely
supported Complainant Union's decertification, Nienhouse
and Bouman testified - flatfootedly - to the contrary
Questions raised, within this record, regarding the
circumstances leading toward this decertification petition's
genesis, may, conceivably, finally persuade this Board's
Regional Director that a further investigation should be
made before the petition is deemed ready for final
disposition. With respect to such "representation"
questions, however, this trier of fact's commission does
not run Suspicion, however rational - derived from
nothing more than a witness' demonstrated readiness to
provide obfuscatory testimony - cannot be considered
proof: with matters in their present posture, therefore, the
docketing of Warner's decertification petition cannot
provide a linchpin for General Counsel's position herein
When filed, docketed, and served, however, that
petition may well have motivated Complainant Union's
response That body's charge, herein, was drafted August
8th and filed the following day. Pursuant to standard
Board practice, the processing of Warner's decertification
petition was, thereupon, postponed indefinitely. So far as
the record shows, however, no Union representative has
communicated with any spokesman for Respondent's
management since
C Conclusions
I Interference, restraint, and coercion
Within his brief , General Counsel contends that this
record clearly "demonstrates " conduct, chargeable to
respondent partnership, which merits characterization as
reasonably calculated to interfere with, restrain and coerce
concerned workers , regarding their exercise of rights
statutorily guaranteed
By and large, this contention , within my view, merits
Board concurrence . With respect to most of General
Counsel ' s presentation , detailed discussion - coupled with
citations of relevant precedent - hardly seems required;
credible testimony , which I have herein found reliable,
probative and substantial , clearly calls for certain
conclusions consistent with his position
1. Respondent ' s drivers were, so I have found,
threatened with reprisal because of their commitment to
Union representation Reference has been made to Mrs
Pittman's declaration , before Lemons particularly, that,
"If you men stay union, you might as well figure on
looking for another job " This declaration , further,
Respondent ' s office manager and dispatcher later
confirmed and buttressed, with a forecast that "old" men
such as respondent partnership ' s drivers would find
procurement of new positions difficult Likewise, Ottis
Pittman, during a substantially contemporaneous
conversation with Driver Lacy, noted - so the record
shows - that, so long as Complainant Union held
representative status, he didn't "give a damn" whether
Respondent's drivers worked or not
2. Partnership drivers were promised various possible
economic benefits, contingent upon their decision to
refrain from Union support In this connection, credible
testimony, previously noted, reveals Mr and Mrs
Pittman's separate statements - directed to Driver Lacy
specifically - that they would rather pay their workers,
directly, those sums which Complainant Union was
currently collecting for various "fringe benefit" funds
Further, both mentioned Respondent's possible willingness
to commence "profit sharing" calculated to provide
partnership workers with some greater "direct" financial
return. Mr Pittman likewise, so I have found, told Lacy
that -- should Complainant Union lose its representative
status - Respondent's drivers would get more work.
Twice thereafter, so credible testimony shows, Mrs.
Pittman told Lemons that respondent partnership could
"make him a better deal" than Complainant Union could,
during their second conversation, several types of possible
benefits were mentioned, contingent upon his (Lemons)
proceeding to procure a withdrawal card.
3 Twice, during the period with which this case is
concerned, Respondent's office manager queried drivers
regarding their "union membership, activity or
sympathies" under circumstances which would render such
questions subject to statutory proscription During March,
1967, specifically - shortly before Complainant Union's
contract with Respondent terminated vacuum truck
driver Lacy was asked by Mrs Pittman how he would
"vote" regarding that body's continued claim to
representative status. Despite her phraseology, which
could hardly be considered realistically apropos herein,
Mrs Pittman's question was clearly calculated to probe
Lacy's Union sympathies; since that query was presented
within a context reasonably likely to generate some
apprehension, with regard to Respondent's possible
reaction, her question must be considered violative of the
statute N L R.B v Idaho Egg Producers, Inc , 229 F.2d
821, 822-823 (C A 9); N L R B v. West Coast Casket
Co , 205 F 2d 902, 904 (C A 9), Blue Flash Express, Inc .
109 NLRB 591, cf Charles Kushins Co - Oakland, 168
NLRB No 51. Similar conclusions, within my view, must
be considered warranted regarding Mrs. Pittman's July
interrogation of Driver Lemons, with respect to whether
he was then seeking to procure a withdrawal card from
Complainant Union herein (The record does reflect two
more occasions when Mrs Pittman directed questions to
Lemons, twice he was queried regarding what he was
"doing" with respect to "his" union representative. Within
their context, however, these particular questions were,
within my view, posed rhetorically, they were
presumptively calculated merely to solicit Lemons' help in
persuading Complainant Union's business representative
to produce a definitive contract proposal for Respondent's
perusal Determination could hardly be considered
warranted, therefore, that they had any so-called "natural
tendency" to produce fear with respect to discrimination,
based on particular information which Mrs. Pittman
sought)
4. Respondent's office manager, so the record shows,
told Lemons - when she requested him to have
Complainant Union's representative send her a proposed
contract draft - that Mr. Pittman was "unhappy" with
respect to Complainant Union's pension plan, that she
wanted to see a contract proposal; but that she "would
not" sign such a document. Her last declaration, clearly,
must have been calculated to reflect Respondent's
OTT'S VACUUM TRUCK SERVICE
opposition with respect to Complainant Union's
presumptive proposals, such statements of purpose have
frequently been found violative of law. N L.R B v Fosdal
Electric, 367 F.2d 784, 786 (C.A 7); N.L R B v Hortex
Manufacturing Co , Inc., 343 F 2d 329, 330 (C A D.C ),
N L R.B v. Herman Brothers Pet Supply, Inc., 325 F.2d
68, 70 (C A. 6), N L R B v. Fitzgerald Mills Corp , 313
F.2d 260 (C.A. 2) Later, within this decision, I propose
to discuss whether Mrs. Pittman's statement to Lemons
- noted - coupled with her substantially comparable
statements to Complainant Union's business
representative, should properly be construed as reflective
of Respondent's fixed determination to foreclose real
collective bargaining For present purposes, however, the
conclusion seems clearly warranted that statements by
management representatives, made to partnership
workers, which seem reasonably calculated to convey such
a thought - whether or not seriously meant - possess a
capacity to restrain and coerce, and thus merit statutory
proscription
With respect to certain further matters, however,
General Counsel's position seems less sound. Within his
brief, for example, he suggests that respondent partnership
bargained or dealt "directly and individually" with
workers, likewise, General Counsel contends that
Respondent's management unilaterally changed their rates
of pay, together with certain other terms and conditions of
work In this connection, however, reference is first made
to Mrs Pittman's several suggestions that Respondent
could give its drivers a so-called "better deal" than
Complainant Union could. Such statements have been
found, herein, violative of law as promises of benefit, their
further characterization as statutorily proscribed "direct
and individual" bargaining, therefore, hardly seems
necessary.
True, Respondent's office manager during her last
conversation with Lemons particularly - did specify
certain beneficial changes which respondent partnership
might be prepared to make The record warrants a
conclusion, however, that Mrs. Pittman's declaration was
primarily promissory in character, proffered to prompt
Lemons' reconsideration with respect to his previously
declared reluctance to seek a withdrawal card from
Complainant Union herein, and that Mrs Pittman
described Respondent's possible "better deal" as
contingent upon her husband's concurrence following
consultation Further, Lemons did testify, himself, that
Mrs. Pittman had previously declared her reluctance to
proffer a concrete "deal" within a written document,
concededly "because the Government will not let us
complete a contract with the employees" so long as
Complainant Union retains representative status
Respondent's driver reasonably must have known,
therefore, that he was not really being proffered a firm
commitment to better his wages, hours or conditions of
work, contingent merely upon his concurrence, or some
quid pro quo response. With matters in this posture, Mrs
Pittman's final suggestion - though clearly "calculated to
bypass, undercut, and undermine" the Complainant
Union's representative status - realistically cannot be
considered "direct" bargaining, subject to statutory
proscription upon such particularized grounds.
The record does show, consistently with General
Counsel's contention, that Respondent's office manager
did - during a seeming fit of pique never clarified for
the record - chide Lemons and Morgan for seeking
Complainant Union's support in presenting their
giievances. Within context, however, her remarks reflected
1091
little more than petulance, they could hardly have been
considered reasonably calculated to suggest or promote
direct negotiations The record reveals that - during this
period - she did consult with Complainant Union's
representative regarding the reported "washroom and
bathroom" problem shared by Respondent's drivers, and
that - following their discussion -- such facilities were
provided. Respondent's reaction when Gaddis presented
the so-called "washroom" grievance, therefore, really
reflects a partnership readiness to recognize and deal, with
Complainant Union - despite the prior termination of
their contractual relationship - rather than the reverse
Within his brief, General Counsel cites respondent
partnei ship, further, for certain postcontract "unilateral
changes" with respect to wage rates, plus other conditions
of work. Specifically, factual contentions are made that'
In at least one instance, in the case , of Johnny
Nienhouse, Respondent discussed with and led an
employee to believe that he would get higher pay if he
withdrew from the Union, and increased his hourly
wages after he obtained a withdrawal card Elinor
Pittman, as well as truckdriver employee Bouman,
admitted that Respondent dealt directly with the
employees regarding hospitalization insurance and its
coverage. Mrs Pittman told Bouman that as long as he
continued to be a member of the Union he could not be
covered under Respondent's own hospitalization plan
Similarly, in June 1967, when truckdriver employee
Nienhouse obtained a withdrawal card from the Union,
he was dropped from the Union-sponsored
hospitalization plan.
This construction of the record, however, lacks substantial
testimonial support While a witness, Nienhouse denied
that "anybody" representing Respondent's management
ever had "approached" him regarding his possible
withdrawal from Complainant Union herein, the record -
which reveals significant differences between his
relationship to respondent partnership and that of
Lemons, previously noted - reflects no reliable, probative
testimony which would, within my view, warrant his
denial's rejection. When queried regarding his present rate
of compensation for "part-time" work with respondent
partnership, Nienhouse did testify that he currently
receives $4.50 per hour; this figure - so the record shows
- does represent a pay rate higher than the scale
specified for such work within Complainant Union's
terminated contract However, the present record -
considered in totality provides no persuasive support
for determinations that Nienhouse does, really, receive the
higher hourly rate specified for driving vacuum trucks or
semiflatbed trucks in respondent partnership's particular
service
The part-time driver testified that, while working for an
hourly rate "with the company" during Complainant
Union's contract term, he was "getting less" than he
presently receives Mrs. Pittman's testimony, however,
would warrant determinations that Nienhouse's present
$4 50 rate represents his compensation for part-time
service rendered Oil Heating and Dewaxing Service, Inc.,
while driving that corporation's "hot oil" truck rather
than his compensation for services rendered respondent
partnership; that his higher rate for such part-time work
had been negotiated or promised back to September 1966,
when he had relinquished full-time work with Ott
Pittman's various enterprises to start his own business,
and that Oil Heating and Dewaxing Service, Inc , had not
really hired him for part-time work, compensable at such
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a higher rate, before Lemons' July 1967 resignation This
testimony - though proffered for the record with
somewhat disconnected and confusing references - has
not been challenged or contradicted.
Further - despite a record showing that Nienhouse
has, indeed, been paid $4.50 per hour for driving a
so-called "hot oil" truck, within the period following his
June 1967 withdrawal from Complainant Union herein -
no testimonial basis can be found for a conclusion that he
had previously been "led to believe" that he would receive
the designated rate contingent upon his withdrawal from
Union membership The driver testified - without
challenge or contradiction - that he had seen no reason
to retain Union membership while self-employed; that his
final decision to withdraw had, however, been deferred
pending his determination that his new business was
"going to go" successfully; and that, when he decided he
could "make a go" working for himself, he sought
withdrawal This testimony - which certainly cannot be
said to carry a death wound merits credence. General
Counsel has proffered nothing which would warrant a
contrary conclusion
With regard to Respondent's purported changes in
hospitalization coverage, General Counsel's contention,
likewise, lacks substantial record justification Nienhouse
testified that - though-covered by Complainant Union's
hospitalization program before his withdrawal from
membership he "got his Qwn" coverage thereafter,
nothing in the record would justify a conclusion that this
change derived from any promise, suggestion or conduct
chargeable to respondent partnership And Bouman's
undenied testimony shows that - when told, by some
person or persons never specified, that his wife's hospital
costs could not be considered reimbursable under
Complainant Union's contractually-validated
hospitalization program, since he (Bouman) was not
covered - he sought Mrs Pittman's help She, thereupon,
did procure coverage for him, under Respondent's
separately maintained hospitalization plan for workers not
covered by Complainant Union's program
Bouman's lack of coverage under Complainant Union's
plan - so far as the record shows - purportedly derived
from his conceded prior failure to perfect or maintain
Union membership, which Complainant Union's Vacuum
and Pump Truck Wage Agreement had, during its term,
seemingly required Whether or not Complainant Union's
purported determination regarding this driver's failure to
qualify for contractually-specified hospitalization coverage
had, really, been bottomed upon the ground cited in his
testimony need not, however, be determined herein Nor
does a determination seem required regarding the
propriety or validity of Complainant Union's purported
position
Whatever the fact relative to Complainant Union's
purported refusal to recognize Bouman's right to
hospitalization coverage, determinations seem to be
warranted within the context of the present record -
that he sought Mrs Pittman's help only when confronted
with word that Complainant Union's hospitalization plan
would not consider him qualified for coverage, that, since
he concededly had not, before Complainant Union's
contract termination date, perfected his union membership
status - and was not, thereafter, subject to contractual
requirements in that regard - Mrs Pittman's proffer of
coverage under Respondent's separately-maintained
program cannot, realistically, be considered calculated to
"by pass or undercut" Complainant Union herein, and
that coverage under Respondent's separate hospitalization
plan, under such circumstances, reflected no statutorily
proscribed "change" with respect to Bouman's terms and
conditions of work.
With matters in this posture, no conclusion would be
justified - within my view - that respondent partnership
"bargained" directly and individually with partnership
workers, regarding their wages, hours, or conditions of
work while serving in that capacity, or that statutorily
proscribed "unilateral changes" were made in their rates
of pay or conditions of work, calculated to subvert their
support for Complainant Union or destroy its majority
representative status Compare Medo Photo Corp v
N L R B, 321 U S 678, 685. More particularly, the
record reveals no "direct bargaining" within the statute's
cognizance between Respondent's management
representative and partnership workers, during the period
within which - under the principle of the cited case -
respondent partnership was required to deal with
Complainant Union exclusively
Within his brief, further, General Counsel makes much
of Mrs Pittman's several declarations reasonably
calculated to reveal her strong personal distaste for
negotiations or discussion with Complainant Union's
spokesman With respect thereto, General Counsel
contends that
Mrs Pittman's statements to Gaddis as early as
January that he should never call on her again or come
on her property, and that the contract should be torn in
pieces, and her statement to Gaddis in June to take his
Union men and go away and leave Respondent alone
demonstrates that Respondent had no intention of
continuing to recognize the Union as the employees'
bargaining agent or to bargain with the Union for a
new contract Respondent's conduct clearly
demonstrated the futility of any attempt by the Union
to seek any meaningful negotiations with Respondent
on the new contract [Emphasis supplied]
These contentions, however, fail to persuade. The present
record, within my view, clearly reveals Mrs Pittman's
disposition to verbalize her feelings of resentment or
frustration However - whether bottomed upon mere
petulance, some transitory or capricious fit of pique,
smouldering resentment or high dudgeon such
spur-of-the-moment reactions, dispassionately viewed,
provide no reliable clue with respect to respondent
partnership's business policy With due regard for the
record, considered in totality, I find more reliable indicia
relative to Respondent's position when reviewing other
circumstances- Mrs Pittman's December search for
clarification relative to respondent partnership's
contractual "holiday pay" commitment, Mr. Pittman's
timely June initiative, looking toward a resumption of
contact with Complainant Union's representative; Mrs
Pittman's subsequently demonstrated readiness to post
notices at his request, and to deal with him regarding
grievance matters, despite the lack of current contractual
privity between Respondent and Complainant Union, and
despite her prior recriminations; and, finally, her several
requests - directed both to Gaddis and Lemons
particularly - that Complainant Union produce a draft
contractual proposal for Respondent's perusal So far as
Mrs Pittman was concerned, such demonstrations of
readiness to fulfill Respondent's statutory obligation may
well have been reluctant Her professions of distaste,
directed to Gaddis specifically, may well have persuaded
him that a contractual consensus with Respondent might
prove difficult to reach. They provide no substantial
OTT'S VACUUM TRUCK SERVICE
warrant, however, for General Counsel's contention that
concrete proposals looking toward meaningful
negotiations would have been futile
Though Mr and Mrs Pittman may have made
disparaging remarks - during the period with which this
case is concerned - regarding Complainant Union herein,
the Teamsters Union president, or purported
maladministration within the Union's pension plan, the
record with respect thereto provides no persuasive basis
for concluding that Complainant Union's bargaining
requests would have been fruitless Conceivably, such
remarks - when proffered within a context of substantial
unfair labor practices might properly be cognizable as
buttressing a course of conduct generally subject to
statutory proscription N L R B v Preston Feed
Corporation, 309 F 2d 346, 351, 51 LRRM 2362, 2366
(C A 4) However, the present record - within my view
-- reflects no pervasive, broadly gauged program designed
to interfere with, restrain or coerce respondent
partnership's workers in their exercise of rights statutorily
guaranteed. No determination should be considered
warranted, therefore, that mere "disparaging remarks"
found chargeable to management representatives herein -
whether considered separately or within the context of
some total course of conduct - merit a cease and desist
sanction The government demeans itself when it marshals
the full panoply of Federal power to proscribe such
passing verbal byplay
2 The claimed refusal to bargain
With matters in their present posture - so far as
General Counsel's "refusal to bargain" charge is
concerned - this trier of fact finds merit in Respondent's
defense Specifically, I conclude that Respondent's refusal
to sign some "piece of paper" proffered as constituting a
memorandum "contingency" contract - which was
coupled with Mrs Pittman's declaration that respondent
partnership's management would wish to review the
substantive terms set forth within a written draft proposal
before accepting a contractual commitment reflects a
good-faith bargaining posture
Respondent's position in this respect, clearly, derived
from Mrs. Pittman's professed concern, generated by her
prior "difficulty" with Complainant Union's business
representative, regarding the partnership's holiday pay
commitments That professed concern - with respect to
which, however, no determination on the merits need
presently be made - was patently genuine Nothing in the
present record would warrant a determination that
Respondent's office manager, when she rested
Respondent's refusal to sign a memorandum "interim"
document on such stated grounds, merely wished to cloak
some fixed purpose to scotch a bargaining relationship.
Certainly, Respondent's position cannot be considered,
per se, reflective of bad faith, the statute, so far as I
know, has never been construed to mandate employer
concurrence, sight unseen, with a purported contractual
consensus not yet finalized through negotiations involving
a different bargaining group Single firms not privy to
multiple-employer bargaining - even though they may
have, previously, signed separate "individual" contracts
drafted to match or parallel master "industry wide"
contracts definitively reached with employer groups -
cannot be faulted, within the meaning of the statute, for
refusing to commit themselves before such "pattern
setting" negotiations have been concluded
1093
General Counsel, within his brief, suggests
"Respondent cannot in good faith contend that an
impasse in bargaining had been reached so as to enable it
to lawfully and unilaterally deal with the employees"
through grants of economic benefit
This contention - even were I to find it factually well
grounded - would miss the mark Respondent does not,
herein, contend - nor would this trier of fact, upon the
present record, find - that Complainant Union and
Respondent's management had reached impasse Rather,
the record shows (1) that Complainant Union's
representative had, presumably through choice, deferred
separate contract discussions with Respondent's
management, pending the negotiation of some
"industry-wide" contractual consensus, (2) that, following
Complainant Union's presumptively successful completion
of such multiple-employer negotiations, he had presented
Mrs Pittman with nothing more than a verbal
recapitulation which purportedly reflected the contractual
consensus reached, but had requested Respondent merely
to execute some memorandum "interim" document,
committing itself to sign thereafter, whatever written
contract the so-called "industry" negotiators would,
finally, produce, (3) that Mrs Pittman, following her
reference to some prior difficulties with respect to contract
compliance which she considered chargeable to
purportedly "less-than-clear" language within
Complainant Union's most recently terminated agreement,
refused to consider such a precommitment; (4) that she
proffered a counter request, calling upon Complainant
Union to produce a complete draft proposal for
Respondent's consideration, (5) that Gaddis, when
confronted with this request, first signified acquiescence,
but subsequently - for reasons not herein material -
failed to produce the requested draft, (6) that
Complainant Union's representative has never, since then,
presented Respondent's management with a request for
further discussions or negotiation, whether bottomed upon
his previously proffered memorandum contract or some
written draft proposal embodying substantive terms and
conditions of work With matters in this posture, no
question with respect to negotiations - purportedly
pursued to final disagreement - can be considered
presented.
Respondent's counsel, rather, suggests that whatever
"breakdown" the record may reveal with respect to
collective-bargaining negotiations between Complainant
Union and respondent partnership - that breakdown
derived solely and directly from Complainant Union's
neglect to pursue such negotiations
This contention, within my view, merits Board
concurrence Throughout the period with which this case
is concerned, Respondent never challenged Complainant
Union's claim of representative status. Nor does
respondent partnership, presently, question Complainant
Union's majority representation, this, despite
management's conceded knowledge regarding the
pendency of Bouman's decertification petition. Further -
despite Mrs. Pittman's declared wish that Complainant
Union would "go away" without seeking a renewed
contract no responsible management representative has,
point blank, refused to deal with Complainant Union's
representative. (True, Mrs Pittman did reject Gaddis'
particular request that some management representative
execute his suggested memorandum, confirming
respondent partnership's willingness to sign whatever
written contract Complainant Union's rer resentatives
might thereafter submit, following the conclusion of
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
multiple-employer negotiations elsewhere conducted
However, such a refusal - so far as I can tell -- flouts
no statutory command )
Their last telephone contact - so I have found -
reflects Mrs Pittman's request, subsequently reiterated,
that Complainant Union proffer a written contract
proposal, so that management representatives would be
given a chance to review its substantive terms, conditions
and provisions That request - within the factual context
revealed by the present record - was, within my view,
reasonable When it was made, Respondent's office
manager so far as the record shows - had no grounds
for belief that compliance with her request would prove
difficult, or that continued negotiations with Complainant
Union would be, thereby, forestalled With matters
standing thus, Respondent's conduct cannot legitimately
be considered a refusal to bargain
Substantially, General Counsel suggests that
Respondent's general course of conduct, considered in
totality, reflects a purpose to repudiate
collective-bargaining principles, thus constituting a breach
of respondent partnership's bargaining duty Statutorily
proscribed interference, restraint and coercion, however,
cannot routinely be considered probative, per se, with
respect to claims of refusal to bargain Some proof of
conduct chargeable to a respondent firm - specifically
cognizable as calculated to flout a bargaining obligation
- must be proved Within a recent reply brief directed to
the Fourth Circuit Court of Appeals, N L R B v Bratten
Pontiac Corporation, 163 NLRB No 85, on Petition for
Enforcement, this Board has declared that
The basis of the Section 8(a)(1) finding is not that the
Company's conduct [which involved the grant of certain
employment benefits] breached a bargaining obligation
owed the Union but that it was done for the purpose of
causing the employees to reject the Union, a violation
of the Act "quite apart" from the bargaining violations
also found, as Medo Photo Corp v N L R B, 321
U S 678, 685 (1944), discussed in our opening brief,
makes plain. [Emphasis supplied ]
Similarly, herein, General Counsel's contention that
Respondent's Section 8(a)(1) conduct constituted a refusal
to bargain collectively - merely because it reflected a
general purpose to undermine Complainant Union and,
presumably, to destroy its majority status must be
rejected
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section III,
above, since they occurred in connection with
Respondent's business operations described in section 1,
above, had, and continue to have, a close, intimate, and
substantial relation to trade, traffic, and commerce among
the several States Absent correction, such conduct would
tend to lead to labor disputes burdening and obstructing
commerce and the free now of commerce
V THE REMEDY
Since I have found that Respondent engaged, and
continues to engage, in certain unfair labor practices
which affect commerce, I shall recommend that it be
ordered to cease and desist therefrom and to take certain
affirmative action, including the posting of appropriate
notices, designed to effectuate the policies of the Act, as
amended
CONCLUSIONS OF LAW
In the light of the foregoing findings of fact, and upon
the entire record in this case, I make the following
conclusions of law
I Ottis E Pittman and Earl T. Pittman, doing business
as Ott's Vacuum Truck Service, designated as Respondent
herein, constitute an employer within the meaning of
Section 2(2) of the Act, engaged in commerce and
business activities which affect commerce within the
meaning of Section 2(6) and (7) of the Act, as amended
2 Teamsters' Local 235, General Truck Drivers,
Warehousemen & Helpers, is a labor organization within
the meaning of Section 2(5) of the Act, as amended,
which represents certain of Respondent's workers for
collective-bargaining purposes.
3 Respondent partnership's representatives - by
threats of reprisal made to workers for engaging in Union
activities, by promises and offers of economic benefit
should they choose to refrain from Union activities or
withdraw their support from Complainant Union herein;
and by interrogation of employees concerning their Union
activities or sympathies, under circumstances sufficient to
warrant proscription of such interrogation as interference,
restraint, and coercion - did interfere with, restrain, and
coerce employees, in their exercise of rights statutorily
guaranteed Thereby, Respondent did engage, and
continues to engage, in unfair labor practices affecting
commerce within the meaning of Section 8(a)(I) and
Section 2(6) and (7) of the Act, as amended
4. All of Respondent's employees, exclusive of office
clerical employees, guards, professional employees, and
supervisors as defined in the Act, constitute a unit
appropriate for collective-bargaining purposes within the
meaning of Section 9(b) of the Act, as amended
5 Throughout the period through which this case is
concerned, subsequent to March 31, 1967, Complainant
Union has been entitled to claim recognition aF the
exclusive representative of Respondent's workers within
the bargaining unit described above, pursuant to the
provisions of Section 9(a) of the Act, as amended, for the
purpose of collective bargaining with respect to their rates
of pay, wages, hours of work, and other terms and
conditions of employment
6 General Counsel has not produced reliable,
probative, and substantial evidence sufficient to justify a
determination that Respondent herein - through a course
of conduct reasonably calculated to undermine
Complainant Union and destroy its majority
representative status - did engage or continues to engage
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(5) and Section 2(6) and (7) of the
Act, as amended
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law, and
upon the entire record in the case, it is recommended that
the Board, pursuant to Section 10(c) of the National
Labor Relations Act, as amended, order that Respondent,
Ottis E Pittman and Earl T. Pittman, d/b/a Ott's
Vacuum Truck Service, its co-partners, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing their
employees, by threats of reprisal directed to them for
OTT'S VACUUM TRUCK SERVICE 1095
engaging in Union activities, by promises and offers of
economic benefit for refraining from Union activities, or
for withdrawing their support from Complainant Union
herein, or by interrogation of such employees concerning
their union activities or union sympathies under
circumstances found violative of the statute,
(b) Interfering with, restraining, or coercing their
employees, in any like or related manner, in'connection
with their exercise of the right to self-organization, to
form labor organizations, to join or assist Teamsters'
Local 235, General Truck Drivers, Warehousemen &
Helpers, or any other labor organization, to bargain
collectively through representatives of their own free
choice, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities
2 Take the following affirmative action which is
necessary to effectuate the policies of the Act, as
amended
(a) Post at its place of business in Brea, California,
copies of the notice attached to this report as an appendix.
Copies of the notice to be furnished by the Regional
Director for Region 21, as the Board's agent, shall be
posted, immediately upon receipt, after being duly signed
by a representative of respondent partnership When
posted, they shall remain posted for 60 consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted Reasonable
steps shall be taken by the Respondent to insure that these
notices are not altered, defaced, or covered by any other
material,
(b) File with the Regional Director for Region 21, as
the Board's agent, within 20 days from the date of service
of this Trial Examiner's Decision, a written statement
setting forth the manner and form in which it has
complied with these recommendations I
'Should the Board adopt this Recommended Order, the words, "a
Decision and Order" shall be substituted for the words "the
Recommendations of a Trial Examiner" in the notice Further , should the
Board's Order be enforced by a decree of a United States Court of
Appeals, the words "a Decree of the United States Court of Appeals,
Enforcing an Order" shall be substituted for the words "a Decision and
Order" in said notice
'Should the Board adopt this Recommended Order, this provision shall
be modified to read "Notify said Regional Director , in writing, within 10
days from the date of this Order, what steps Respondent has taken to
comply herewith "
4 APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner
of the National Labor Relations Board and in order to
effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that
WE WILL NOT threaten our employees with possible
work losses or other forms of reprisal for engaging in
Union activities
WE WILL NOT make promises to our employees or
offer them economic benefits for refraining from Union
activities or for withdrawing their support from
Teamsters' Local 235, General Truck Drivers,
Warehousemen & Helpers, or any other labor
organization
WE WILL NOT question our employees concerning
their union activities or union sympathies in any
manner violative of law
WE WILL NOT suggest or solicit discussions with our
employees, directly and individually, concerning their
rates of pay, wages, hours of employment, and other
terms and conditions of employment related to services
performed for us, so long as Teamsters' Local 235,
General Truck Drivers, Warehousemen & Helpers,
retains a statutory right to claim recognition as their
exclusive bargaining representative, with respect to such
matters
All our employees are free to become or remain, or to
refrain from becoming or remaining, members of the
.above-named labor organization, or any other labor
organization, except to the extent that such a right may be
affected by an agreement requiring membership in a labor
organization as a condition of employment, authorized by
Section 8(a)(3) of the Act, as amended
Dated By
OTTiS E. PITTMAN AND
EARL T PITTMAN D/B/A
OTT'S VACUUM TRUCK
SERVICE
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting, and must not be altered,
defaced, or covered by any other material
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Eastern
Columbia Building, 849 South Broadway, Los Angeles,
California 90014, Telephone 688-5229