Royal Fleet Service

National Labor Relations Board - Board Decisions

Mar 29, 1955

111 N.L.R.B. 1180 (N.L.R.B. 1955)

1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix C
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Rela-
tions Board, and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
WE WILL NOT discourage membership in The American Federation of Labor,
or any other labor organization of our employees, by discharging and refusing
to reinstate them, or in any other manner discriminating in regard to their hire,
tenure of employment, or any term or condition of employment.
WE WILL NOT interrogate our employees regarding their union activities, af-
filiations, or sympathies or how they intend to vote in a Board-conducted election.
WE WILL NOT threaten loss of employment or other reprisals against our em-
ployees because of their membership in or assistance to the above-named union,
or any other labor organization.
WE WILL NOT keep under surveillance the concerted activities of our
employees.
WE WILL NOT in any other manner interfere with, restrain, or coerce our em-
ployees in the exercise of the rights guaranteed in Section 7 of the National
Labor Relations Act.
WE WILL offer to Charlie Dean Ferguson immediate and full reinstatement to
his former or a substantially equivalent position, without prejudice to any
seniority or other rights and privileges previously enjoyed.
WE WILL jointly and severally make whole Charlie Dean Ferguson and Belton
Hollinger for any loss of pay suffered as a result of the discrimination against
them.
All our employees are free to become, remain, or refrain from becoming mem-
bers of the above-named Union or any other labor organization, except to the extent
that this right may be affected by agreements in conformity with Section 8 (a) (3)
of the National Labor Relations Act, as amended October 22, 1951.
T. A. MCGAHEY, SR., T. A. MCGAHEY, JR.,
MRS. ALTIE MCGAHEY JONES, AND MRS.
WILDA FRANCES MCGAHEY HARRISON,
D/B/A COLUMBUS MARBLE WORKS, A
PARTNERSHIP,
Employer.
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
GEORGE SHERIDAN AND MURRAY DACKS D/B/A ROYAL FLEET SERVICE
and TEAMSTERS, CHAUFFEURS , WAREHOUSEMEN AND HELPERS, LOCAL
UNION No. 390 , INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA, AFL.
Case No. 10-CA-1494. March 29,1955
Decision and Order
On December 30, 1953, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair labor
practices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in a copy of the Interme-
diate Report attached hereto. The Trial Examiner further found
111 NLRB No. 191.
ROYAL FLEET SERVICE 1181
that the Respondents had not engaged in certain other unfair labor
practices alleged in the complaint and recommended that such allega-
tions be dismissed. Thereafter the Respondents filed exceptions to the
Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
Board has considered the Intermediate Report, exceptions, and the
entire record in the case and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following ad-
ditions and modifications.
1. The Respondents contend that they are not engaged in commerce
within the meaning of the Act. The Respondents, according to the
stipulation of the parties, are engaged in the local transportation
business in Dade County, Florida. During the calendar year of 1954
they received in excess of $100,000 from at least two interstate freight
carriers for the local delivery of materials originally transported from
points outside the State of Florida.
Upon these facts we find that the Respondents are engaged in inter-
state commerce and that it will effectuate the purposes of the Act to
assert jurisdiction in the case.'
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board orders that George Sheridan and Murray Dacks, d/b/a Royal
Fleet Service, their agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in the above-named Union, or in any
other labor organization of their employees, by discriminating in re-
gard to their hire or tenure of employment or any term or condition
of employment.
(b) Interrogating its employees concerning their membership in, or
activities on behalf of, the above-named Union, or any other labor or-
ganization, in a manner constituting interference, restraint, or co-
ercion in violation of Section 8 (a) (1).
(c) Refusing to bargain collectively with said Union, as the exclu-
sive representative of all their employees in the appropriate unit with
respect to rates of pay, wages, hours of employment, or other condi-
tions of employment.
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right of self-organization to
form, join, or assist the Union named above, or any other labor organ-
ization, to bargain collectively through representatives of their own
'Breeding Transfer Company, 110 NLRB 493; Edelen Transfer and Storage Company,
Inc., 110 NLRB 1881.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from
any or all of such activities except to the extent that such right may
be affected by an agreement requiring membership in a labor organ-
ization as a condition of employment as authorized in Section 8 (a)
(3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Make whole Charles A. McCartney in the manner set forth
in the section entitled "The Remedy," in the Intermediate Report.
(b) Upon request bargain collectively with the Union named above,
as the exclusive representative of all the employees in the unit found
appropriate in the Intermediate Report and embody any understand-
ing reached in a signed agreement.
(c) Post at their plant in Miami, Florida, the notice attached
hereto marked "Appendix." 2 Copies of such notice, to be furnished
by the Regional Director for the Tenth Region, shall, after being duly
signed by the Respondents' authorized representative, be posted by
the Respondents immediately upon receipt thereof, and maintained for
a period of at least sixty (60) consecutive days thereafter in conspicu-
ous places, including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the Respondents
to insure that said notices are not altered, defaced, or covered by any
other material.
(d) Notify the Regional Director for the Tenth Region, in writ-
ing, within ten (10) days from the date of this Order what steps the
Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that that portion of the complaint which al-
leges that the Respondents discharged and/or refused to reinstate
Eugene L: Hale in violation of Section 8 (a) (3) and (1) of the Act
be, and it hereby is, dismissed.
2 In the event that this Order is enforced by decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT discourage membership in Teamsters, Chauffeurs,
Warehousemen and Helpers, Local Union No. 390, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, AFL, or any other labor organization, by dis-
ROYAL FLEET SERVICE 1183
criminating in regard to their hire or tenure of employment or
any term or condition of employment.
WE WILL NOT interrogate our employees concerning their mem-
bership in , or activities on behalf of, Teamsters , Chauffeurs,
Warehousemen and Helpers , Local Union No. 390 , International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Help-
ers of America , AFL, or any other labor organization , in a man-
ner constituting interference , restraint or coercion in violation of
Section 8 (a) (1) of the Act.
WE WILL NOT in any manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations , to join or assist Teamsters , Chauf-
feurs, Warehousemen and Helpers , Local Union No. 390 , Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehousemen_
and Helpers of America , AFL, or any other labor organization,
to bargain collectively through representatives of their own choos-
ing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to re-
frain from any or all such activities , except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment , as authorized
in Section 8 (a) (3) of the Act.
WE WILL bargain collectively upon request with the Union
named above, as the exclusive representative of all employees in
the bargaining unit described herein with respect to rates of pay,
hours of employment , or other conditions of employment, and if
an understanding is reached , embody such understanding in a
signed agreement. The bargaining unit is :
All employees including drivers and warehousemen , but ex-
cluding office clerical employees , professional employees,
guards, and supervisors as defined in the National Labor Re-
lations Act, as amended.
WE WILL offer to Charles A. McCartney immediate and full re-
instatement to his former or substantially equivalent position
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of pay suf-
fered as a result of the discrimination.
GEORGE SHERIDAN AND MURRAY DACKS
D/B/A ROYAL FLEET SERVICE,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
Upon an amended charge filed by Teamsters, Chauffeurs, Warehousemen and
Helpers, Local Union No. 390, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, AFL, herein called the Union, the Gen-
eral Counsel of the National Labor Relations Board, respectively called herein the
General Counsel and the Board by the Regional Director for the Tenth Region
(Atlanta, Georgia), issued a complaint dated April 30, 1953, against George Sheri-
dan and Murray Dacks, d/b/a Royal Fleet Service, herein called the Respondents,
alleging that the Respondents had engaged in unfair labor practices affecting com-
merce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and
(7) of the National Labor Relations Act, as amended, herein called the Act.
With respect to the unfair labor practices, the complaint alleges that on or about
March 4, 1952, and thereafter, the Respondents refused to bargain collectively with
the Union as the exclusive representative of their employees in an appropriate unit;
that the Respondents engaged in certain acts which constituted interference, restraint,
and coercion; that the Respondents discharged Eugene L. Hale on or about January
25, 1952, and thereafter failed and refused to reinstate him until on or about
January 26, 1952, because he engaged in concerted activities with other employees
for the purposes of collective bargaining or other mutual aid and protection; and
that the Respondents discharged Charles A. McCartney on or about March 8, 1952,
and Eugene L. Hale on or about March 28, 1952, and thereafter failed and refused
to reinstate them, because of their membership in and activities on behalf of the
Union, and because they engaged in concerted activities with other employees.
The Respondents filed an answer on or about May 19, 1953, in which they denied
the jurisdictional allegations of the complaint, and denied the commission of any
unfair labor practices.
Pursuant to notice, a hearing was held at Miami, Florida, from August 31 to
September 4, 1953, inclusive, before the duly designated Trial Examiner. At the
close of the whole case, the Respondents moved to dismiss the complaint. Ruling
was reserved on the motion. The motion to dismiss is disposed of as hereinafter
indicated. The General Counsel moved to conform the pleadings to the proof, as
to names, dates, and other minor variances. The motion was granted without
objection.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
George Sheridan and Murray Dacks are copartners, doing business under the
name and style of Royal Fleet Service. They have their principal office and place
of business in Miami, Florida, where they are engaged in the pickup and delivery
service of various kinds of parcels and freight.
The Respondents perform services for local Miami merchants, wholesalers, and
manufacturers, picking up their merchandise in the local area and delivering the
same within the confines of the greater Miami area. The Respondents do not have
authority to operate outside of said confines.
The Respondents perform services for Republic Carloading & Distributing Co.,
Inc., which company is a freight forwarder, operating throughout a major part of
the United States under regulation of the Interstate Commerce Commission. Royal
Fleet Service is hired by the local representative of Republic and, operating under
a contract with said company, distributes its freight in the Miami area. The freight
is consigned to the customer in Miami; Republic receives all bills of lading by mail;
and Royal Fleet Service, in turn is contracted to distribute said freight for Republic.
Royal Fleet Service also performs services for Riddle Airlines, Inc. This com-
pany is an air-freight carrier and operates, under regulation by the Civil Aeronautics
Board, between New York, Miami, and Puerto Rico. Royal Fleet Service is con-
tracted by Riddle to do some of its local delivery and pickup work.
During 1952, the total business of the Respondents amounted to $116,500.71.
During the same year the Respondents performed services for Riddle amounting to
$8,395.69 and for Republic amounting to $43,958.22.
It is found that the Respondents are engaged in commerce within the meaning of
the Act.
ROYAL FLEET SERVICE
If. THE ORGANIZATION INVOLVED
1185,
Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 390, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL, is a labor organization which admits to membership employees of
the Respondents.
III. THE UNFAIR LABOR PRACTICES
A. The alleged discharge of Eugene L. Hale on about January 12,1952
Hale was hired by the Respondents on about September 3, 1951. When em-
ployed, it was understood that he would supervise the handling of freight. How-
ever, it conclusively appears from the record and I find that Hale was not a super-
visory employee within the meaning of the Act. He did not have authority to hire
or fire or to recommend such action. It appears that almost all of his time was spent
in performing manual work and driving trucks. He unloaded boxcars and loaded
trucks. Respondent George Sheridan gave him the delivery orders and he in turn
gave them to the employees. Otherwise, it does not appear that he exercised any
supervision over the employees.
It was agreed between the Respondents and Hale at the beginning of his employ-
ment that he would purchase a truck which would be available for the Respond-
ents' business. Hale purchased the truck shortly after he was hired and it was used
by the Respondents in its parcel delivery service. Hale was paid about $100 per
week for his work and the use of his truck. The Respondents' employees drove
Hale's truck. It appears that Hale seldom drove it on Respondents' business. The
Respondents ceased using Hale's truck during about January 1952 because it was
in need of repairs and reduced his compensation accordingly.
The Respondents, in effect, contend that Hale was an independent contractor.
This contention is rejected. He was listed on the Respondents' records as an em-
ployee. Income and social-security taxes were deducted from his wages. It ap-
pears that almost all of his work was performed at the Respondents' warehouse, load-
ing and unloading freight. He worked the same hours as the other employees.
On or about the night of January 11, 1952, the employees held a meeting on the
railroad tracks near the Respondents' office. For the most part they discussed
their hours of work. Hale was not present at the start of the meeting, but joined the
employees later. Immediately after the meeting the employees went to the office and
talked to Respondents Sheridan and Murray Dacks. They complained about their
wages and the hours of work, and also about the fact that Hale had "special privi-
leges" in that he sometimes did not work as hard or as late as they did. The Re-
spondents replied to the effect that they would see what could be done about short-
ening the hours of work.'
On Saturday, January 12, Hale and his wife, Birdie Hale, went to the Respondents'
warehouse and had a conversation with Sheridan. Birdie Hale told Sheridan that she
had heard from Hale's brother 2 that the Respondents were going to discharge Hale
and asked him for the reason. Concerning the ensuing conversation, Birdie Hale
testified as follows:
So George said, "Well, I will tell you, Mrs. Hale. There has been a lot of
trouble among the boys, and it seems that Gene is the instigator of it," and the
only trouble that they were having was the union. They were trying to organ-
ize the union. So he was letting him go because he was trying to organize the
union.. .
I can't recall anything else. The only thing he said was because he was the
instigator of the trouble... .
Well, he said-he did say something about the wages. He said he could not
afford union wages. That is what he was talking to Gene about-his salary.
He said he could not afford the union wages and he didn't intend to have the
union in there. That's why he wanted Gene to just take his salary and be satisfied
with it. .. .
i Employees Morton Negar and Joseph Dombrowski, witnesses for the Respondent, testi-
fied credibly concerning the above meeting. It conclusively appears from the record as a
whole and I find that Hale at times quit work about 30 minutes before the other
employees.
2 The record indicates that Hale's brother, who did not appear at the hearing as a wit-
ness , was friendly with the Respondents, and that Hale had obtained his job through his
brother's efforts
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Well, I don 't know what else he wanted him to do to get along , but he didn't
want him-he said he didn 't need to be in with the boys; that he was drawing his
salary and why should he be in with the boys, trying to make more money when
he was drawing his salary.. .
He said for Gene just to walk away and not have anything to do with them,
not be in with them in their meetings... .
Eugene Hale testified that the following conversation took place:
My wife spoke up and said , "George, what is the trouble ? Why are you fir-
ing Hale?" He said , "He is causing a lot of trouble among the men and is trying
to get them in the union ." He said , "I will have to let him go." He said, "Go
back and get the boys not to join the Union, and you can go back to work.
You stay out of it and don't mess around with it and you can have your job
back."
Sheridan denied that he mentioned the Union during the conversation . Concern-
ing the conversation , Sheridan testified as follows:
She said her brother -in-law called them and that he said we were unsatis-
fied with Hale and so forth . She wanted to know what it was about. I pro-
- ceeded to tell her the things that he had done. While the other men were work-
ing, he would take a comic book , run into the freight car and read it in the car,
and all the men were objecting . He would sneak off; he would go off and leave
men working there, and they were all objecting to that. Then there was the
fact that he would-he had blown a tire and he hadn 't kept his truck in repair
like he was supposed to. I kept telling him to put planks in, fix the seats, and
things like that that he was supposed to have done . He never did it.
It was just a lot of things that we were objecting to, and I told him that I en-
trusted a lot of authority to him and that he had misused it. I gave him an op-
portunity to take over the leadership of it . I told him he was the supervisor and
he misused it. He was creating a lot of ill will with the men. I told him if he
didn't straighten out I was going to let him go.
She proceeded to bawl him out right in front of me.
Eugene Hale and Birdie Hale denied Sheridan 's version of the conversation. How-
ever, when called as a rebuttal witness Birdie Hale testified , ". . . some kind of a
subject came up about idle time. Maybe he [Hale] would have a few idle hours or
minutes. George suggested that Gene maybe wash trucks ... and do things he
[Sheridan ] wanted him to do in the warehouse."
There are contradictions and discrepancies in the testimony of both Eugene Hale
and Sheridan ; and Sheridan was evasive as a witness . Other than the testimony
of Eugene and Birdie Hale, there is no evidence in the case which shows that the
Respondents' employees were attempting union organization at the time in question.
As will be hereinafter related , union activity did not commence until the latter part
of February . Further, it is apparent from the testimony of Birdie Hale that she was
testifying to her conclusions concerning the "trouble" mentioned by Sheridan, and
not to actual statements made by him. Accordingly , I do not consider her to be a
reliable witness , and do not credit her testimony in this connection.
It is undisputed that Hale worked on January 12, 1952, following the above con-
versation , and that he did not lose any time because of his alleged discharge. The
discharge itself is in issue since it was denied in the Respondents ' answer and since
Sheridan testified that Hale was not discharged. For all of the above reasons I find
that the General Counsel failed to sustain the burden of proving that Hale was dis-
criminatorily discharged on the date in question, and will recommend that this allega-
tion of the complaint be dismissed.
B. The appropriate unit and representation of a majority therein
The complaint alleges that "all employees of Respondents at Miami, Florida, in-
cluding drivers and warehousemen , but excluding office clerical employees , profes-
sional employees , guards, and supervisors as defined in the Act," constitute a unit
appropriate for the purposes of collective bargaining . The Respondents ' answer
denies this allegation of the complaint. No evidence was adduced at the hearing
which would conflict with the unit alleged to be appropriate.
Accordingly, the Trial Examiner finds that said unit has at all times material herein
constituted and does now constitute an appropriate unit within the meaning of the
Act; he finds that said unit will insure to the Respondents ' employees the full benefit
of their rights to self-organization and collective bargaining , and otherwise effectuate
the purposes of the Act.
ROYAL FLEET SERVICE 1187
The Respondents' answer denies that the Union represented a majority of the em-
ployees in the appropriate unit. The evidence discloses that as of March 4, 1952,
there were 13 employees in the appropriate unit, and that as of that date 8 had desig-
nated the Union as their bargaining agent.
It is found that the Union on and after March 4, 1952, represented a majority of
the employees in the unit described above for the purposes of collective bargaining.
C. The sequence of events
Employee Charles McCartney was hired by the Respondents during the middle of
February 1952. Prior to this employment, he worked for United Parcel Service in
Philadelphia, Pennsylvania, where he was a member of the Union. When he was
hired by Sheridan, he told him that he had been a member of the Union and was
"on the withdrawal card." Sheridan told him, "We don't have any union down here
and we don't want any. We are doing all right without them."
During about the latter part of February, the employees questioned McCartney
about the possibility of joining the Union. At their request McCartney visited the
Union's office and spoke to Daniel Sheil and Clarence Lord, representatives of the
Union. At their suggestion McCartney brought the employees-as a group to the
Union's office on March 3, 1952. Either at this meeting or on March 4, eight of the
employees signed cards designating the Union as their collective-bargaining agent.
On March 4, Lord had a telephonic conversation with Dacks. He told Dacks that
a majority of the employees had joined the Union, and asked for a meeting in order to
discuss recognition and a contract. Dacks agreed to a meeting which was set for
Saturday, March 8.
Immediately after his conversation with Lord, Dacks left the office and spoke to
employees Ben Brenan 3 and Nicholas Rymer. He asked Brenan if he knew aything
about the Union. Brenan replied, "Don't worry about it. It will all come out in the
wash." He then stated to Rymer, "You too?" Rymer replied, "The majority went,
and I don't want to be a black sheep and I went with them." That same day both
Dacks and Sheridan 4 asked Hale if he had joined the Union. He told them that he
had. Later that day Dacks asked employee Eugene Chatfield if he was one of the
employees who had gone to the union hall. Chatfield admitted that he was one of
the group.
The employees who had joined the Union returned to its office during the evening
of March 4. They told Lord and Sheil that they had been questioned by the Re-
spondents. It was agreed at the meeting that Lord and Sheil would go to the Re-
spondents' office the following morning instead of waiting for the conference sched-
uled on Saturday.
The union representatives went to the Respondents' office during the morning
of March 5, and spoke to Dacks. In substance, they told him that they had not
waited until Saturday because some of the employees were worried about being dis-
charged. Dacks replied that he wasn't going to discharge anybody, and asked them
if they had any proof that the employees had joined the Union. Shell then handed
to Dacks the eight union-designation cards which had been signed by the employees.
Dacks examined the cards. At that time Sheridan came into the office. As he
examined the cards, he stated, "That's their signatures all right." Sheridan requested
the union representatives to return on Saturday when they would have more time to
talk. They agreed.5 Before leaving the office, Dacks stated that the Respondents
leased a truck from Hale, that it was not operating, and that Hale had promised to
get it in operating condition but was not living up to his agreement.
3 Dacks testified that Brenan was "more or less a foreman" at the time in question.
However, the preponderance of the credible evidence shows and I find that Brenan did
not assume any supervisory duties until after Hale's employment was terminated, when
it appears that he took Hale's place It has been found above that Hale was not a super-
visory employee within the meaning of the Act.
4 It appears from the testimony of Sheridan that he interrogated more than one em-
ployee on March 4
5 Shell and Lord testified credibly concerning the above meeting. Dacks, whose testi-
mony is replete with contradictions, first testified that he was shown 3 or 4 cards and that
the union representatives stated that they had the "balance" at their office. Later he testi-
fied that he saw 5 or 6 cards, but not 8 ; and that the union representatives showed him
6 blue dues deduction authorization slips, and not the white designation cards. His testi-
mony in this connection is not credited
344056-55-vol. 111-76
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The union representatives and the Respondents walked out of the office to the
loading platform. A number of employees, including McCartney, were present at
the time. Dacks told Sheil, "Well, I'm going to leave one of the drivers go Satur-
day anyway . . . McCartney is the one we are going to let out." McCartney walked
over to Dacks and asked him if he was going to be discharged. When Dacks con-
firmed this, McCartney asked for the reason. Dacks replied, "Well, you belong to
the Union, and besides you're not working out too good." Sheridan stated that
McCartney had been hired on a "trial basis." He also said, "Now this came up. He
didn't pan out too well anyway." Dacks stated that he was going to take employee
Miller off of his run and put another employee on it.6 It appears that an argument
between the employees and the Respondents followed the above statement of Dacks.
The union representatives told the employees to return to work, and then left the
plant, with the understanding that they would return for a meeting on the following
Saturday.
The Respondent discharged McCartney on Saturday, March 8, 1952. That same
day the Respondents and the union representatives held another meeting. Lord
handed Dacks a copy of the Union's proposed contract. The parties then discussed
the clauses in the contract. Dacks asked why Alabama was mentioned in one of the
clauses, and if it was an Alabama contract. Lord explained how the contract had
been drafted and that a mistake had been made by his secretary. When asked by
Sheridan, Lord presented the Union's wage demands, stating that the matter was sub-
ject to negotiation. Sheridan said, "You would be cutting their wages. We pay them
more than that. They would be better off without the . contract." Lord ex-
plained that the employees had decided the wage question; and that if Sheridan's state-
ment was true, it would be to the Respondents' advantage. The Respondents then
stated that they could not sign any agreement until their attorney "looked it over for
the legality of it." The union representatives had no objection to this procedure and
left the plant with the understanding that the Respondents' attorney would contact
them as soon as he had examined the proposed contract.
Lord and Sheil met with Mr. Marion Sibley, the Respondents' attorney, on March
19, 1952. At the beginning of the conference, Sibley demanded proof of the Union's
claim of majority representation. The union representatives advised him that they
had submitted the requested proof to the Respondents. Sibley stated that his infor-
mation was to the contrary, and that he wanted them to produce proof of majority
before he began negotiations. Sheil and Lord replied that the designation cards
which had been signed by the employees were at the Union's office. Sibley then
read the Union's proposed contract and pointed out a number of its clauses which
he considered illegal under Florida law. He suggested that the Union retain a Miami
attorney, whom he named, to represent it in the negotiations and to draft another
proposed contract. The union representatives rejected this suggestion. Lord asked
him if he was refusing to negotiate "on the basis of this agreement ." Sibley replied,
"That's right." It appears the meeting ended with the understanding that Sibley
would investigate further to see if the Union's majority had been proved to the
Respondents; that the Union would produce proof of majority if necessary; and that
the union representatives would communicate with Sibley after making some changes
in the proposed contract?
Thereafter and during the early part of April 1952, Sheil called Sibley's office a
number of times, but was told that Sibley was not present. On the last two occasions
he left a message with Sibley's secretary to have Sibley call him. Sibley did not
return Sheil 's call.
On June 17, 1952, Lord wrote the following letter to Sibley:
On March 3, 1952, a majority of the employees of the Royal Fleet Service
Company made applications and became members of this Organization.
On March 4, 1952, Mr. Sheil and the writer called on the Company Officials,
Mr. Dacks and Mr. Sheridan, for recognition of the Union as the bargaining
agent for the involved employees. Mr. Dacks asked for proof that their em-
ployees did belong to the Union, whereby they were shown the signed applica-
e Miller was discharged about 1 hour after the above conversation He is named in the
original charge, but not in the amended charge or the complaint.
7 The above findings are based on the credited testimony of Sibley, Shell, and Lord.
Lord testified that Sibley stated that an election would have to be held to prove the Union's
majority; and that he (Lord) denied that an election was necessary in order to prove ma-
jority and explained that it could be proved by the designation cards. It is apparent,
however, from Sibley's testimony that he did not insist on certification by the Board, and
that he stated or indicated that the cards would be acceptable as proof of majority.
ROYAL FLEET SERVICE 1189
tion cards. After examining the cards Mr. Sheridan said, "That is their signa-
tures, true enough, but we have work to do now, can't you come back Saturday
when we have more time to work this thing out."
On Saturday, March 8, 1952, we again called on the Company Officials and
proceded to negotiate a contract. After going through the contract Mr. Dacks
asked us if we would mind giving him time to consult his attorney as to the
legality of the contract. This we agreed to because we felt that it was fair.
He, Mr. Dacks, told us that he would have his attorney contact us by Wed-
nesday, March 12, 1952, to work out the legal points, however, we did not hear
anything from you, as their attorney, so we requested Mr. Dacks to make an
appointment with you for Mr. Sheil and the writer.
The appointment was confirmed for Wednesday, March 19, 1952, and I must
say that I was very much disappointed, as well as surprised, at your refusal to
negotiate with us after the matter had been placed in your hands.
Your reasons for refusing are of no concern to us, however, I am of the
opinion that matters such as this can best be settled through collective bargain-
ing. Therefore, we are willing to resume negotiations with you.
Sibley answered Lord's letter by letter dated June 26, 1952, as follows:
Please permit me to correct certain inaccuracies contained in your letter of
June 17, 1952.
You have never established your authority to bargain for the employees of
Royal Fleet Service. Mr. Shiel visited my office in company with yourself.
At that time, I requested proof of your asserted right to represent the employees;
such proof has not been furnished to me. I am convinced that you do not
represent the employees of this company, and have no right to bargain on their
behalf.
You did present to me in my office a contract which was totally inapplicable
to Florida. The deficiencies of said contract were pointed out to you by me.
I did not undertake to negotiate with you because of your failure to establish
your right to represent the employees of Royal Fleet.
Your willingness to resume negotiations still is subject to two conditions:
(1) That you establish proof that you represent the employees of this com-
pany;
(2) That you obtain a dismissal of the proceedings which you have initiated
against this company before the National Labor Relations Board, with an order
stating that said proceedings were predicated upon unfair statements of fact.
D. Conclusions
It is found that the Respondents refused to bargain with the Union within the
meaning of Section 8 (a) (5) of the Act on and after March 5, 1952. On that date,
in compliance with the Respondents' request, the Union proved that it represented a
majority of the employees. The Respondents apparently were satisfied with the proof
since they did not voice any objections at the time. The discharge of Miller about
1 hour after the conference did not change the situation. Since Miller is not named
in the complaint, it must be assumed that he was discharged for cause. After his
discharge the Union still represented a majority, or 7 out of 12 employees.
The Union's majority was not changed by McCartney's discharge on March 8,
1952. It is found that the Respondents discharged McCartney in violation of Sec-
tion 8 (a) (3) and (1) of the Act. The statements of both Dacks and Sheridan on
March 5 disclose the discriminatory motive behind the discharge. Further, McCart-
ney testified credibly that Sheridan complimented him several times on his work.
The testimony of Respondents' witnesses to the effect that McCartney took too much
time in making his deliveries is not credited.8
At the meeting with Sibley on March 19, 1952, the union representatives claimed
that they had proved the Union's majority status to Dacks and Sheridan. Sibley
replied that his information was to the contrary. The fact that he had been mis-
informed by his clients did not relieve the Respondents from their obligation under
the Act to recognize and bargain with the Union.
S The Respondents' contention that McCartney was hired as a temporary employee is
rejected McCartney testified credibly that when he was hired, Sheridan asked him if he
would take temporary work ; that he told Sheridan that he was not interested in such
work ; and that Sheridan replied, "If it works out, it will be a steady job" Moreover,
assuming that McCartney was hired as a temporary employee, Miller's discharge on March
5 created a vacancy in the Respondents' permanent staff of drivers
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The testimony of Lord shows that Sibley raised the question of an election and
certification by the Board. However, from Sibley's testimony it conclusively ap-
pears that he relinquished this demand. Aside from this testimony, the evidence dis-
closes and I find that the Respondents did not have a good-faith doubt of the Union's
majority status and that by their course of conduct on and after March 4 they were
delaying the negotiations in order to undermine the Union's strength. They interro-
gated the employees on March 4, concerning their union activities, and discharged
McCartney on March 8. Under all the circumstances of this case, and especially in
view of the announcement on March 5 of McCartney's impending discharge, I find
that such interrogation constituted interference, restraint, and coercion within the
meaning of Section 8 (a) (I) of the Act.
It has been found above that Lord and Sheil, at the conclusion of their meeting
with Sibley, agreed to furnish him with proof of the Union's majority. In my opin-
ion, since proof of majority previously had been furnished to the Respondents, the
union representatives' agreement to establish it again and their subsequent failure
to do so did not relieve the Respondents from their obligation to bargain. How-
ever, the Union's letter, dated June 17, 1952, left no doubt as to its position. In
substance, its letter stated that majority representation had been proved to the Re-
spondents, and requested a resumption of negotiations. Sibley's letter in reply, dated
June 26, 1952, indicated that the Respondents would negotiate with the Union, pro-
vided (1) that it proved its majority, and (2) that it obtained a dismissal of the
charges of unfair labor practices which had been filed with the Board. With respect
to the second condition, the filing of a charge does not relieve an employer of the duty
to bargain.9 The Union was justified under the circumstances in not making any
further attempts to gain recognition or to bargain with the Respondents.
E. The alleged discharge of Eugene Hale on March 28, 1952
It has been related and found above that on March 4 the Respondents interrogated
Hale concerning his union activities. He was a member of the Union before he was
employed by the Respondents and Dacks was aware of this fact. He was one of the
employees who signed a designation card of the Union on March 3, 1952.
The Respondents contend, in substance, that Hale was discharged because of his
truck's disrepair and because he was an unsatisfactory employee. Hale denied all
of the charges against him. Heretofore his testimony has been discredited.
The undisputed evidence shows that the truck was in need of repairs and was not
used by the Respondents for a considerable length of time before Hale's discharge.
Dacks admitted that the truck had been damaged "several times" while on the Re-
spondents' business and while driven by employees other than Hale. However, it
appears that the Respondents and Hale had a dispute as to who should pay for the
repairs to the truck, with the Respondents claiming that Hale's insurance company
should pay for the damage and Hale contending otherwise. There is also a dispute
concerning money allegedly owed to the Respondents by Hale. Both Dacks and
Hale testified at length in this connection. I am unable to resolve this issue as I do
not credit the testimony of either of them.
Employee Dombrowski, who did not impress me as a reliable witness, was ques-
tioned and testified concerning Hale's work as follows:
Q. What was your point about Hale goofing off? What was that?
A. Any time about 3:30 or 4, most of the fellows are in off their rounds. We
all go downtown then and pick up parcels and bring it to the warehouse for the
next day. That is distributed in bins on the floor and most of the time Hale
would go out then. His wife would come and pick him up in his car. She
- would come in for him, and he would take off outside and maybe sat around
outside and then when the work was done he would come back inside in the
warehouse as if he was outside helping us do the work all the time.
Q. How many times did you see that?
A. Quite a few times. Quite regular he did that. I couldn't give you the
number.
Dombrowski also testified that "a lot of times" he saw Hale leave work early at about
4 or 4:30 p. in. Employee Morton Neger testified to the same effect. Employee
Nichlos Rymer, called by the General Counsel as a witness, testified that Hale at
times left the plant about an hour earlier than the other employees. Employee
Eugene Chatfield, also called by the General Counsel as a witness , testified that Hale
left the plant before the other employees "a few hours some nights," including Satur-
day nights.
9 J. B. Wood, et at, 95 NLRB 633.
ROYAL FLEET SERVICE 1191
While the Respondents' motive is not free from suspicion, I conclude and find from
all the evidence that the General Counsel has failed to sustain the burden of proving
that the Respondents discharged Hale on about March 28, 1952, because of his mem-
bership in and activities on behalf of the Union, as alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondents set forth in section III, above, occurring in con-
nection with the operations of the Respondents set forth in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have engaged in unfair labor practices, the
Trial Examiner will recommend that they cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It has been found that the Respondents by their course of conduct on and after
March 5, 1952, refused to bargain collectively with the Union as the exclusive repre-
sentative of their employees in a unit appropriate for the purpose of collective bar-
gaining. Accordingly, it will be recommended that the Respondents bargain collec-
tively, upon request, with the Union as the exclusive representative of their employees
in the aforesaid appropriate unit, and that the Respondents embody any under-
standing reached in the course of such collective bargaining, upon request, in a writ-
ten agreement, signed by the parties affected thereby.
It has been found that the Respondent on March 8, 1952, discharged Charles A.
McCartney because of his adherence to the Union. It will be recommended that the
Respondents offer him immediate and full reinstatement to his former or substantially
equivalent position without prejudice to his seniority or other rights or privileges.
It will be further recommended that the Respondents make whole said employee for
any loss of pay he may have suffered by reason of Respondents' discrimination by
payment of a sum of money equal to that which he would have earned as wages from
the date of the discrimination to the date of an offer of reinstatement, less his net
earnings during said period . Said loss of pay shall be computed on the basis of each
separate calendar quarter, or portion thereof, during the period from the Respond-
ents' discriminatory action to the date of the offer of reinstatement. The quarterly
periods, herein called "quarter" shall begin with the first day of January, April, July,
and October. Loss of pay shall be determined by deducting from a sum equal to
that which the employee would normally have earned for each such quarter or
portion thereof, his net earnings, if any, in other employment during that period.
Earnings in one particular quarter shall have no effect upon the back-pay liability
for any other quarter. In order to ensure compliance with the foregoing back-pay
and reinstatement provisions, it is recommended that Respondents be required upon
reasonable request, to make all pertinent records available to the $oard and its
agents.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 390,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, AFL, is a Labor organization within the meaning of Section 2 (5) of the
Act.
2. By discriminating in regard to the hire and tenure of employment of Charles A.
McCartney, the Respondents have engaged in and are engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (1) and (3) of the Act.
3. By interfering with, restraining, and coercing their employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and
are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the
Act.
4. By refusing to bargain collectively with the Union, the Respondents have
engaged in and are engaging in unfair labor practices within the meaning of Section
8 (a) (5) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]