Paterson Fire Brick Co.Download PDFNational Labor Relations Board - Board DecisionsApr 2, 195193 N.L.R.B. 1118 (N.L.R.B. 1951) Copy Citation 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no other compensation from the Company than the gallonage rate fixed in the agreement and do not share in any benefits granted to salaried employees; 2 they pay all their own expenses; neither their hours nor days of work are fixed by the Company; they determine for themselves the order and manner in which their deliveries are to be effected; their trucks all carry their names; the Company does not account for those taxes which arise from an employment relation- ship; and the truckers pay all taxes and license fees required in their hauling operations. Upon the foregoing facts and the entire record, we conclude that the truckers petitioned for herein are independent contractors and not employees within the meaning of the Act.' We shall therefore dis- miss the petition herein. Order IT IS HEREBY ORDERED that the petition filed herein be, and it hereby is, dismissed. 2 The participation in a group life insurance plan by a few of the truckers is a holdover from the period when they were salaried employees . It does not appear that the Company contributes any part of the premium on their policies. 2 Nelson-Ricks Creamery Company, 89 NLRB 204 ; Spic kelmier Company, 83 NLRB 452. Cf. Flint Oil Company, 88 NLRB 634 , and Standard Oil Company (Indiana ), 81 NLRB 1381 where the Board found petroleum haulers operating in a substantially different manner to be employees. PATERSON FIRE BRICK COMPANY and UNITED BRICK AND CLAY WORK- ERS of AMERICA , AFL, PETITIONER . Case No. 6-RC-494. April 2i, 1951 Second Supplemental Decision and Order On January 4, 1951, the Board directed that a hearing be held on objections to conduct affecting the results of the election, filed herein by the Petitioner,'- and that the hearing officer designated to conduct the hearing should prepare and cause to be served upon the parties a report containing resolutions of credibility of witnesses, findings of fact, and recommendations to the Board as to the disposition of said objections. On January 30, 1951, and pursuant to the order of the Board, a hearing was held before Lloyd R. Fraker, hearing officer. The Board 2 has reviewed the rulings made by the hearing officer and finds that no prejudicial error was committed. The rulings are hereby affirmed. I The revised tally of ballots showed that 28 votes were cast for, and 35 votes against, the Petitioner. 2 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in connection with this case to a three -member panel [ Members Houston, Murdock, and Styles]. 93 NLRB No. 203. PATERSON FIRE BRICK COMPANY 1119 On February 9, 1951, the hearing officer issued a report on objec- tions, which was duly served upon the parties and a copy of which is attached hereto. The hearing officer found that within a period of 3 days immediately before the day of the election the Employer, through its supervisors, told many of its employees in the voting unit that they should vote against the Union because the Employer was indebted to a bank in the sum of $150,000, and that, if the Union won the election, the plant would be closed. He also found that the Employer told Ira Rider, a laid-off employee, to vote no in the election and promised to call him back to work in a day or two if the Union lost the election. The hearing officer concluded that the above acts constituted threats of loss of employment and a promise of benefit, and interfered with, restrained, and coerced the employees in their free choice in the election; he recommended that the election be set aside. The Employer filed timely exceptions to the hearing officer's report on objections. The record clearly supports the findings of fact made by the hearing officer. However, the Employer contends, in effect, that the alleged expressions and conduct neither contained threats of reprisal or force or promise of benefits, nor did they, by themselves, interfere with, restrain, and coerce its employees. The Board has found that state- ments made by an employer indicating that its plant might be closed if the union won the election per se interfere with the exercise of a free choice of bargaining representatives.3 Furthermore, any promise made to a laid-off employee that he would be returned to work if the union lost the election is clearly a promise of benefit which similarly interferes with a free choice of representatives. It is accordingly unnecessary to inquire, as the Employer urges, into whether such acts were effective in accomplishing the intended results.' Upon consideration of the entire record in this case, the Board finds, as did the hearing officer, that the Employer's employees have been denied the right guaranteed them under the Act to select a bargaining representative of their own free choice, and that they are therefore entitled to a new election. Accordingly, we shall set aside the election of June 23, 1950, and shall direct that a new election be held at such time as the Regional Director advises is appropriate. Order IT Is IIEREBY ORDERED that the election held on June 23, 1950, among the employees at Paterson Fire Brick Company, at Clearfield, Penn- sylvania, be, and it hereby is, set aside. 3 Hobart Manufacturing Company, 92 NLRB 203, Schwas zenbach Huber Company, 85 NLRB 1490. 4Cf Hobart Manufacturing Company, supra, Wilson R Co, Inc, 88 NLRB 1, Lane Drug Stores, IncasjIo ated, 88 NLRB 584, The Pure Oil Company, 73 NLRB 1. 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Hearing Officer 's Report on Objections to Election Frank A. Whitsett, Esq, for Paterson Fire Brick Company. Emil E. Nartek, Esq., for the Board. Messrs. Alfred G. Wagner and J. C Gatehouse, for United Brick and Clay Workers of America, AFL. Pursuant to the Order of the Boai d dated January 4, 1951, directing a hearing on objections' to conduct affecting the results of the election which was held June 23, 1950, among certain employees of Paterson Fire Brick Company, here- inafter called the Respondent, a hearing was held before the undersigned hearing officer on said objections at Clearfield, Pennsylvania, on January 30, 1951. All parties appeared, participated in the hearing, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to intro- duce evidence bearing on the issues involved. The hearing officer hereby reports the following findings, as to credibility of witnesses, of facts, and recommendations as to disposition of the objections. 1. CREDIBILITY OF WITNESSES The Petitioner offered as witness in support of its objections the following named individuals : Charles E. Lunsford, Paul Palovesik, John C. Henry, Ira Rider, Deroy Tubbs, Levis Read, Verdon Knepp, Wilber Warren, and Albert Starr. The Respondent failed to call any witnesses or to offer any evidence to refute the testimony of the Petitioner's witnesses All witnesses offered by the Petitioner appeared to be credible, none of them were in any manner impeached, and the hearing officer therefore credits the testimony of all of said witnesses. II. FINIDING OF FACTS On the whole record of the testimony adduced at the hearing, the hearing officer makes the following finding of facts : (a) Within a period of three days immediately prior to the day of the election the Respondent, through its supervisors, told many of its employees in the voting unit that they should vote against the Union because the Respondent was indebted to a bank in the sum of $150,000, and if the Union won the election the plant would he closed, and likewise told Ira Rider, a laid-off employee, to vote no in the election and promised to call him back to work in a day or two if the Union lost the election. (R. 18, 24, 41, 45, 47, 76, 77, 90, 91, 102, 103, and 117.) (b) There is no evidence that the Respondent "corrupted the employees", or "threatened certain employees with violence" as alleged in paragraphs number 3 and 4 of the objections. The hearing officer therefore finds that the Respond- ent neither corrupted nor threatened employees with violence (c) The hearing officer further finds that the acts of the Respondent detailed in Section II (a), above, constituted threats of loss of employment and a promise of benefit, and interfered with, restrained, and coerced the Respondent's em- ployees in their free choice in the election. I The objections were filed by United Brick and Clay Workers of America, AFL, the Petitioner in Case No 6-RC-494, hereinafter called the Petitioner. CRAWFORD CLOTHES. INC. III. RECOMM ENDATIONS 1121 The hearing officer having found that the Respondent interfered with, coerced, and restrained its employees in their free choice in the election, therefore recom- mends that the objections be sustained and that the election be set aside. Within 10 days after the receipt of this Report any party may file with the Board in Washington, D. C. an original and six copies of exceptions thereto. Immediately upon the filing of any such exceptions, the party or parties filing same shall serve a copy thereof upon each of the other parties and shall file a_ copy thereof with the Regional Director. CRAWFORD CLOTHES, INC. and CONGRESS OF INDUSTRIAL ORGANIZATIONS, PETITIONER. Case No. 2-RC-2772. April 2,1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor- Relations Act, a hearing was held before Lloyd S. Greenidge, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Murdock]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer' 3. A question affecting commerce exists concerning the represen- tation of employees of the Employer within the meaning of Section 9^ (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks a single unit of office and clerical employees employed in the Employer's principal and credit offices, excluding- guards and supervisors as defined in the Act. The Intervenor opposes the unit requested by the Petitioner and contends that the employees of the credit office constitute a separate and appropriate unit, and that separate units should be established for the credit office and the prin- cipal office. The Employer agrees with the Petitioner that a single unit of all office and clerical employees in both offices is appropriate. The Employer, a New York corporation, is engaged in the manu- facture of men's clothing, and in the operation of a chain of retail 'Distributive , Processing & Office Workers Union of America , District 65, herein called, the Intervenor , was permitted to intervene upon the basis of an existing contractual intei est 93 NLRB No 191 943732-51-72 Copy with citationCopy as parenthetical citation