Safeway Cabs, Inc.

National Labor Relations Board - Board Decisions

May 5, 1964

146 N.L.R.B. 1334 (N.L.R.B. 1964)

1334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
where notices to employees are customarily posted . Reasonable steps shall be taken
to insure that such notices are not altered , defaced, or covered by any other
material.
(b) Notify the said Regional Director , in writing , within 20 days from the date of
the receipt of this Trial Examiner 's Decision , what steps the Respondent has taken to
comply herewith .9
O In the event that this Recommended Order be adopted by the Board , this provision
shall be modified to. read : "Notify said Regional Director , in writing , within 10 days from•
the date of this Order , what steps the Respondent has taken to comply herewith."
Safeway Cabs , Inc. and Taxicab Drivers Union Local No. 762,.
affiliated with the International Brotherhood of Teamsters,.
Chauffeurs , Warehousemen and Helpers of America . Case No.
17-CA-2207. May 5, 196.E
DECISION AND ORDER
On February 6, 1964, Trial Examiner James F. Foley issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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. He further found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint and
recommended that such allegations be dismissed. Thereafter, the
Respondent and the General Counsel filed exceptions to the Trial Ex-
aminer's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members.
Leedom and Brown].
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 entire
record in this case, including the Trial Examiner's Decision, the ex-
ceptions and the briefs, and hereby adopts the Trial Examiner's find-
ings, conclusions, and recommendations, with the following additions
and modifications :
1. We fund, in agreement with the conclusion of the Trial Examiner,.
that the Respondent's distribution and posting of a notice on June 10,.
1963, to the effect that its employees could "get out of the union," and
could revoke their dues checkoff authorizations within the next 10,
days, and providing forms for the latter purpose, constituted unlawful
solicitation in violation of Section 8(a) (1) of the Act. In reaching
this conclusion we rely on all the circumstances of this case, including
(1) President Volcheck's subsequent remark to Union Representative
146 NLRB No. 165.
SAFEWAY CABS, INC. 1335
Campbell that Campbell had brought the notice on himself by bring-
ing the Nebraska Railway Commission down on Volcheck; (2) his
personal appeal to employee Seger to "get out of the Union" and
revoke his checkoff authorization; (3) his personal solicitation of em-
ployee Dubas; and (4) his posting of a second notice stating "Nobody
can tell you that you can't get out of the Union because its a damn
lie, and it looks to me that the Union needed some money for some
purpose."'
2. The Trial Examiner found that statements of President Volcheck
and Ronald Volcheck, a supervisor, were not violations of the Act.
We find merit in the General Counsel's exceptions to this finding.
President Volcheck told employee Joseph Dubas that if demands
were made for a contract like those Dubas had obtained in California,
there would not be a contract after July 1, and Volcheck would sell the
place, transfer it or shut the doors. We find, contrary to the Trial
Examiner, that this statement exceeded the limits of mere expression
of opinion protected by Section 8 (c) of the Act and constituted a clear
threat.
On another occasion President Volcheck told Dubas that the em-
ployees were not working enough and if they did not work more, "he
was going to hire negroes and get out of the union"; and Ronald.
Volcheck told employee Charles Grover that, "if it wasn't for the
Union, you could get up quicker and have better benefits at Safeway."
We find that these statements comprised a threat of reprisal and a
promise of benefit violative of Section 8(a) (1) of the Act. We do
not agree with the Trial Examiner that these statements did not con-
stitute violations of the Act because they were made in a context of
good-natured give-and-take between the Volchecks and their em-
ployees, particularly in the absence of any affirmative showing that
the employees to whom the statements were made understood that
they were not to be taken seriously 2 Such threats and promises of
benefit as were made in this case constitute an effective invasion of
the rights protected by Section 7 of the Act even though conducted
under the guise of a good-natured exchange.'
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, Safe-
'Movie Star, Inc., et al ., 145 NLRB 319 ; Sexton Furniture Company, 111 NLRB
342, 345.
2 N.L.R .B. v. Marval Poultry Co ., 292 F. 2d 454 ( C.A. 4) ; A . P. Green Fire Brick Co.,
140 NLRB 1067, 1071.
s See Star Cooler Corporation, 129 NLRB 1075 , 1076, footnote 3; Monarch Foundry
Company, 106 NLRB $77; Graham County Electric Cooperative , Inc., 96 NLRB 684, 699.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
way Cabs, Inc., of Omaha, Nebraska, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order, with the following modifications:
1. Insert the following paragraph : 4
1. (b) Threatening employees with economic reprisals or prom-
ising then economic benefits to discourage union membership
and activity.
2. Renumber 1(b) as 1(c).
The notice shall be amended to correspond to the modifications of the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case , Case No . 17-CA-2207, was brought under Section 10(b) of the
National Labor Relations Act, as amended ( 61 Stat. 136, 73 Stat. 519), herein called
the Act, on a charge filed June 12 , 1963, against Respondent Safeway Cabs, Inc.,
herein called Respondent , by Taxicab Drivers Union Local No. 762, affiliated with
the International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers
of America, herein called the Union . On August 8, 1963, General Counsel issued a
complaint against Respondent alleging interference with , coercion , and restraint of
employees in violation of Section 8 ( a) (1) of the Act with respect to their rights to
engage in union activity, be members of a union, and be represented by a collective-
bargaining representative , by soliciting their withdrawal from the Union by posted
notice and notices distributed to them , by offering economic and other benefits as in-
ducement to sever their connection with the Union , and threatening them if they do
not do so. Respondent by answer filed August 27, 1963, denied the allegations of il-
legal conduct. A hearing on the complaint and answer was held before Trial Exam-
iner James F. Foley on October 8, 1963, at Omaha , Nebraska. General Counsel, Re-
spondent , and Charging Party were represented at the hearing . The parties were
afforded an opportunity to be beard , make oral argument , and file briefs . General
Counsel and Respondent filed briefs after the close of the hearing.
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent, a Nebraska corporation, with its principal office and place of business
in Omaha, Nebraska, operates a taxicab business in Omaha, Nebraska. During the
12 months preceding the issuance of the complaint on August 8, 1963, Respondent's
gross volume of business exceeded $400,000. During that period it purchased
vehicles, parts, and materials originating outside the State of Nebraska that had a
value in excess of $17,000. Respondent and Checker Cab Co., Inc., a company that
also operates a taxicab business, and has its principal office and place of business in
Omaha, Nebraska, have a bargaining history or bargaining as a unit with the Union,
and recognize the Union as exclusive bargaining representative of a unit of all the
drivers employed by both companies. The gross annual volume of business of Checker
Cab Co., Inc., herein called Checker Cab, for the year ending August 8, 1963,
exceeded $500,000. During that period it purchased vehicles, equipment, and mate-
rials originating outside the State of Nebraska that had a value exceeding $10.000.
I find that Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that assertion of jurisdiction by the Board over this proceed-
ing will effectuate the purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
M. THE UNFAIR LABOR PRACTICES
A. Background evidence
Respondent employs approximately 70 drivers. The last collective-bargaining
agreement executed by the Respondent and Checker Cab as a party, and Respondent
as the other party, was effective July 1, 1961. It was for the period ending June 30,
SAFEWAY CABS, INC. 1337
1963, with the provision that it would be continued from year to year thereafter unless
a party served the other party with notice 60 days prior to the anniversary date
that it desired to negotiate changes or modifications in, or termination of, the agree-
ment . The Union served a notic6 on Respondent and Checker Cab by May 1, 1963,
of its desire to seek changes in the contract . Negotiations between Respondent and
Checker Cab on the one hand and the Union on the other began in May 1963.
On the day of the hearing, October 8 , 1963, the parties had not reached agreement on
a new contract . The Respondent and Checker Cab have been proposing a lease ar-
rangement for compensating driver employees as a substitute for commissions
determined by applying to the fares received by each employee specified percentages
premised on seniority in employment and in the industry in Omaha. The record is
silent as to what the demands of the Union are for increases in commissions. At
the hearing , Emil Volcheck, president of Respondent , and a negotiator for the
companies , stated that the parties had not been able to get together on the proposed
lease arrangement so efforts would have to be made to get together on the commission
method of compensation. During the period from June 30 , 1963, to the day of the
hearing, the provisions of the collective -bargaining contract that terminated on
June 30, 1963, were continued in effect.
Article II of the contract provides for checkoff of union dues , fees and assessments
upon receipt by the companies from the Union of authorization cards executed by
the employees . The Article also provides that the authorization cards are contracts
by the signing employees with the Union to pay the fees, dues and assessments, ir-
revocable for 1 year or the duration of the contracts , whichever occurs earlier, and
are automatically renewable from year-to-year or for the duration of the contracts,
whichever occurs earlier , unless written notice is given to the companies and the
Union not more than 20 days and not less than 10 days from the expiration date of
each 1 -year period or the contracts , whichever occurs earlier. Article II of the
collective-bargaining contract also provides that the companies shall honor. these
contracts between the Union and the members of the Union employed by them.
B. The conduct in controversy
On or about June 10, 1963, Emil Volcheck, president of Respondent , distributed
a notice and attachments to all the drivers employed by Respondent, by placing them
in their paycheck envelopes . At this time, the notice and attachments were also
posted at the' cashier's window in Respondent 's garage. The notice was dated.
June 10, 1963, and was unsigned . It is undisputed that the notice was posted and
placed in the paycheck envelope either by Emil Volcheck or at his direction.
The first paragraph of the notice stated that Respondent recognized the "full and
complete right" of employees to choose , join, and belong to a labor union and to have
their union dues checked off , "and taken out of your pay for the union ," and to con-
tinue these practices . In the second paragraph , it was stated that the Respondent
would not interfere with this right , and would continue to check off if the employees
so desired . It also stated in paragraph 2 that "By the same token , our employees
may not have been told and informed by the labor union that you may legally
get out of the union and stop having union dues , etc., deducted from your pay if you
wish to so advise the company."
In the third and fourth paragraphs , it was stated:
The labor contract signed by representatives of the union and the company
states clearly ( and we do not know whether the union has reminded you or not)
that all employees who are now having their union dues, etc., deducted from
their pay can get out of this by signing the attached notices and sending one copy.
to the union and one copy to the company within the next 10 days . If you would
prefer , you can fill out both blanks and turn them in to the company office and
the company will send one copy to the union.
The contract states that if you are to be able to stop the deduction from your
wages in this manner , you must do so in the next 10 days-before June 20th.
The attachments , which are alike with the exception that one has a place for a
date and the other has not , are as follows:
This is to notify whomever it may concern that I am hereby withdrawing any
right anyone has heretobefore been given by me or anyone has exercised for me
to WITHDRAW AND/OR WITHHOLD ANY OF MY INCOME AND/OR
WAGES FOR THE PURPOSE OF PAYING OR SENDING THEM OR
OTHER FEES TO ANY LABOR UNION ORGANIZATION.
Signed --- -----------------------------------------
Employee of------------------------------------------
Date ---------------------------=--------------------
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 11 or 12, 1963, Business Representative John C. Campbell of the Union
saw the notice posted at the cashier's window. Shortly thereafter, President Vol-
check handed him two copies of the attachment to the notice. Each of the copies
had been signed by an employee member of the Union. He said there would be
a lot more where they came from. When Campbell began copying the notice, Vol-
check told him not to bother that he had plenty of them. Campbell asked him
if he did not think he was sticking his neck out by what he was doing, and Vol-
check replied that he knew what he was doing. He also said that Campbell had
brought it on himself by bringing Mahoney of the Railway Commission down on
him.
In April 1963 Campbell informed President Volcheck that a female driver who had
driven a passenger from Omaha to Norfolk, Nebraska, in February 1963, had an
additional $5.12 commission coming to her for that trip. Campbell claimed that
Respondent had charged a fare below the rate established for that trip by the
Nebraska Railway Commission with the result that the commission the driver
received was less by $5.12 than what it would have been had Respondent charged a
fare at the established rate and the percentage in the contract for her seniority was
applied to that fare. When President Volcheck refused to pay the additional $5.12,
Campbell communicated with Jack Mahoney of the Railway Commission. After
Mahoney had a conversation with Volcheck, the latter paid the additional $5.12
to the driver.
About a week following June 10, 1963, Respondent placed a notice on the em-
ployees' bulletin board which stated in part that, "Nobody can tell you that you
can't get out of the Union because it's a damn lie, and it looks to me that the Union
needed some money for some purpose." It was signed by Emil Volcheck. About
the time of June 10, 1963, driver John Seger on reporting for duty was called to the
cashier's window by President Volcheck. The latter said to Seger that he under-
stood he wanted to get out of the Union, that if he did he had some slips in the
office. He also said that if he signed one he would send it in for him , and that if
he signed up then he could get out within 10 days . Seger replied that he did not
wish to get out of the Union. Volcheck said he was sorry, that he was informed
that he did.
On or about June 10, 1963, President Volcheck offered driver Joseph A. Dubas a
copy of the notice and the attachments when he picked up his paycheck in Vol-
check's office. Dubas testified that Volcheck had a "stack" of them on his desk.
Dubas replied to Volcheck that he did not want one as he did not wish to get out
of the Union. He also said to Volcheck that the latter was foolish to put the notice
out, and "try to get the guys out of the Union." He also testified: "I told him I
wouldn't get out of the union because he would probably cut my percentage down
anywhere from 4 to maybe 8 percent and I'd lose $1,700 or $1,800 a year by it."
According to Dubas, Volcheck replied that he would save $60 a year union dues,
and he answered that before he would get out of the Union be would transfer back
to Local 554 Truck Drivers where he came from.
Volcheck testified that he posted the notice at the request of employees "who wanted
out of the union" and that the contract permitted employees to get out of the Union
by sending a written notice to the Respondent and the Union during a 10-day period
starting June 10 . He also testified that 11 drivers signed the attachments to the
notice he placed in their paycheck envelopes. He gave the signed attachments to
Business Agent Campbell. He also testified they had asked him when they could
get out of the Union. He answered them by saying that according to the contract,
they could get out between June 10 and June 20.
In March 1963 Dubas had a conversation with President Volcheck when several
drivers were present. He had recently made a trip to' California and brought back
with him several contracts providing benefits higher than those received by Respond-
ent's employees under their collective-bargaining contract. Dubas said to Volcheck
that if they had a contract like the California contracts they would have a good one.
From an evaluation of Dubas' testimony and the surrounding circumstances, I find
that Volcheck said Respondent could not pay that kind of money, and that if demands
were made for a contract like the California contracts there would not be a contract
after July 1, and he would sell the place, transfer it, or shut the doors.
Both Volcheck and Dubas appeared to the Trial Examiner to be about the same
height and weight and to be frank .and rough in their conversations and actions with
each other. Dubas testified that he was prounion and Volcheck was not for the
Union, and that they had many conversations about the Union. Volcheck testified
that they had had a conversation about the Union every day that both were at the
garage for the 6 years he had been with Respondent. Dubas had been employed
by Respondent before Volcheck became connected with it. At the hearing, Vol-
check grinned when Dubas testified and Dubas grinned when Volcheck testified.
SAFEWAY CABS, INC. 1339
Dubas said Volcheck unsuccessfully tried to push him around the garage one day,
and Volcheck said that Dubas ' testimony was "baloney," but that if he did, it was
in fun.
Dubas testified that on other occasions Volcheck told him that if the employees
were not represented by a union , or did not have a union , he would have been fired
"a long time ago." Volcheck testified that he possibly said it to him and to other
drivers "more or less in a joking 'arrangement ." Dubas also testified that on one
occasion Volcheck told him the drivers were not working enough and if they did
not work more, "he was going to hire negroes and get out of the union ." Accord-
ing to Dubas , he replied that he could not get out of the Union . President Volcheck
testified he could not recall the details of any of these conversations. He recalled
that Dubas in the conversations he had with him would say that he should go along
with the demands of the Union , and he would reply that if he did he would have
been out of business long ago . He testified that he had conversations about the
Union with many of the drivers sometime or another . It appears to the Trial
Examiner that he and the drivers in a rough good -natured way exchanged verbal
blows about the Union , the contract , wages , and their work . - The employees who
talked with President Volcheck did not appear to be inhibited by the fact that they
were employees and he represented the employer.
In the garage in April 1963 , driver Charles R. Grover asked President Volcheck
when he would get a raise . Volcheck replied that raises were controlled by the
contract . Grover testified that at the time he began this conversation he thought
that raises were controlled by the drivers ' ability, but was told by Volcheck they
were controlled by the contract . Grover testified that Volcheck also said that if
they did not have a contract the raises would be controlled by the president . Grover
also testified that in June 1963 he asked Ronald Volcheck , President Volcheck's
son, "how long it would take to get up from 42% to 45 %." He is the Respondent's
fleet manager . Grover was referring to the percentages applied to the fares a
driver earned to determine his commission. Under the contract , a driver received
42 percent for the first 100 days worked , 45 percent for the next 260 days, 47
percent for the following 235 days, and 49 percent thereafter . According to Grover,
Ronald Volcheck replied that "If it wasn 't for the union , you could get up quicker
and have better benefits at Safeway ." Ronald Volcheck testified that Grover asked
him about the days he worked , and he replied that the books would have to be
checked to see how many he worked . He testified that they talked about the
Union and the contract , and he told Grover that if there was no contract , if there
was no union , that Respondent might pay the drivers on a work basis. He did
not recall what Grover said in reply . He also testified that Grover comes in the
shop where he is located about four or five times a week , that he "usually comes in
before he goes on the street ," and that he likes "to heckle us a little bit and give us
a hard time ." According to Volcheck , on every one of the occasions he comes in
the shop , Grover and he discuss the Union . Grover admitted he knew that raises
were controlled by the contract when he asked Ronald the question.
On May 24, 1963, President Volcheck and the president of Checker Cab met
with Business Agent Campbell and Lowell C . Wiles, president of the Union,
and a driver employed by the Respondent , to negotiate changes in the contract. The
lease system for compensating drivers proposed by the companies was discussed.
Campbell proposed that the Union operate a hiring hall which would assign drivers
to the companies. President Volcheck replied that nobody had to belong to the
Union in order to work for his company . Four or five days later , President Vol-
check and Wiles had a conversation in the garage . They discussed the lease sys-
tem. In the course of this conversation , Wiles said he did not favor the lease sys-
tem as he did not feel he could make a living at it. Volcheck said that there would
be a lease system or there would not be any contract.
C. Analysis and conclusions
On the foregoing findings of fact I make the following analysis and findings and
conclusions.
By the notice Respondent inserted in the pay envelopes on or about June 10,
1963, it informed its employees that they may resign from the Union and revoke
their authorizations for a checkoff . The third and fourth paragraphs dealt specifically
with the provisions of the collective -bargaining contract dealing with the right to
revoke the checkoff authorizations and the 10-day period within which the right
to revoke could be exercised . The collective-bargaining contract is silent with
respect to withdrawing from the Union.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If the notice only imparted the information that the contract permits the revocation
of the checkoff agreements during the period of June 10 to June 20, upon the giving
of notice to that effect in writing to Respondent and the Union, it could be consid-
ered a neutral act by Respondent under the decision of the Board in Perkins Machine
Company, 141 NLRB 697. Respondent would be merely informing the employees
of provisions of the collective-bargaining contract. However, Respondent does
more by the language of the notice. While it states that the employees have the right
to be members of a union and have dues checked off, and Respondent would rec-
ognize the right, the manner in which this matter is phrased strongly suggests that
the employees are exercising a right which is foolish and harmful to themselves,
and they should exercise the right they also have of abandoning these activities.
Since the contract is silent about withdrawing from membership in the Union, the
Respondent in stating that the employees may withdraw from membership is not
performing a perfunctory act of informing the employees of provisions of the con-
tract, but volunteering information to them with respect to their relations with the
Union. Moreover, the phrasing of the notice strongly suggests that the Union
may have concealed from the employees that they can withdraw from union mem-
bership and revoke the checkoff agreements. It subtly conveys the impression that
the employees are not dealing with an honest or forthright organization that honestly
represents their interest. Also, the enmeshing of the statements dealing with rights
to withdraw from membership and revoke the checkoff agreements with the state-
ment of what the contract states with respect to the checkoff agreements, suggests
that the right to withdraw from the Union, as well as the right to revoke the checkoff
agreements, can be exercised only during the 10-day escape period.
I find that the notice on its face is not a neutral act by Respondent, but affirma-
tive solicitation to abandon membership in the Union as well as to revoke the
checkoff authorizations. The object of Respondent to solicit the abandonment of
union membership, and union representation, is also evident from the statement of
President Volcheck to Business Representative Campbell on June 11 or 12, 1963
(supra). He indicated clearly to him that he was going to attempt to break the
Union in reprisal for Campbell's communication with the Nebraska Railway Com-
sion regarding fares Respondent charged. This is also clear from his solicitation of
employee Seger about the same time to sign the slips that were attached to the notice.
He called to him, saying he understood he wished to get out of the Union. He
informed him he had some of the slips attached to the notice which he could sign.
He said further that he would send it in to the Union for him, and by it he could
be' out of the Union in 10 days.; Respondent's object is also apparent from the
second notice, posted a week after the June 10 notice, that it was a "damn lie" for
anyone to tell the employees that they could not get out of the Union.
I conclude and find that the solicitation of employees to abandon membership in
the Union and union representation, and revoke checkoff authorizations, and the
offer of assistance toward these ends, contained in the notice and in the conversation
President Volcheck had with driver Seger, to be interference with, coercion, and
restraint of employees in violation of Section 8(a) (1) of the Act.,
I conclude and find that the statements made by President Volcheck to drivers
Dubas and Grover do not constitute illegal interference with, restraint, and coercion
when considered in the contexts in which they were made. I reach the same finding
with respect to the statements made by Ronald Volcheck to driver Grover.2 These
drivers engaged the Volchecks in conversations about the Union and took delight
in heckling them. President Volcheck in asking Dubas about June 10 or 11, 1963, if
he wished some slips to sign, was engaging in the give-and-take activity about the
.Union going on between him and Dubas for some time. After the many conversations
he had had with Dubas, he could hardly believe that such a solicitation to Dubas would
receive a favorable response. Dubas' caustic reply (supra) shows clearly that he
was not the least bit disturbed. President Volcheck's statement to driver Dubas in
March 1963 (supra), that Respondent could not pay the driver compensation provided
in the contracts Dubas brought back with him from California, and if demands were
made for a contract like the California contracts there would not be a contract
after July 1 and he would sell the place, transfer it, or shut the doors, is an expression
i Movie Star, Inc., et at., 145 NLRB 319; Winn-Dixie Stores, Inc., 128 NLRB 574, 580,
588; Heaton Furniture Company, 111 NLRB 342; Nebraska Bag Company, ct at., 122
NLRB 654; Central Freight Lines, Inc., 133 NLRB 393, 408.
2 See N.L.R.B. v. Firedoor Corporation of America, 291 F. 2d 328, 331 (C.A. 2), cert.
denied 368 U.S. 921; N.L.R.B. v. Power Equipment Company, 313 F. 2d 438, 440 (C.A. 6).
SAFEWAY CABS, INC. 1341
of opinion by Dubas of economic consequences over which he would have no
control that would result if such demands were made by the Union. In the context
in which it was made, this statement of Volcheck is protected by Section 8(c) of
the Act .3 Driver Grover, by asking Ronnie Volcheck, the president 's son , in June
1963 the same question he asked his father the prior April, was not looking for
information but trying to draw Ronnie to say something about the Union. He knew
the answer to the question before he asked it. President Volcheck informed him in
April that all raises were governed by the collective-bargaining contract. His
questioning was part of Grover's practice of coming into the shop where the younger
Volcheck was and engaging him in a conversation about the Union. I credit Ronald
Volcheck's testimony that Grover's inquiry was part of his practice of "heckling"
him about the Union.
President Volcheck's statement in the May 24, 1963, bargaining session that a
person does not have to belong to a union to work for Respondent is not illegal.
He made this statement in response to Business Agent Campbell's proposal that the
Union operate a hiring hall and assign drivers to the Respondent and Checker Cab.
Respondent would be acting illegally if union membership was a condition of em-
ployment either initially or after any period of employment. A closed shop is
illegal under the Act, and Nebraska has a right-to-work law.4 I also find the
absence of illegality in President Votcheck's statement a few days later to driver
Wiles, president of the Union, and a negotiator for the Union, that there would
either be a lease system for compensating employees or there would be no contract.
He made this statement in the course of a conversation in the garage regarding the
lease agreement method for compensating employees discussed at the May 24
negotiations meeting at which Wiles, the president of the Union, was present as a
negotiator for the Union. This statement was merely part of the hard bargaining
technique of Respondent. The evidence shows willingness by Respondent to discuss
the method of driver compensation, and its gradual realization that its proposal for
the lease agreement method would have to be abandoned and agreement sought on the
commission basis for compensation. It can be assumed from the evidence that
the union negotiators voiced statements that there would be no contract if it were.to
include the lease agreement method for compensation proposed.by the Respondent
and Checker Cab, the other employer.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above, have
a close, intimate, and substantial relationship to trade, traffic, and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices in
violation of Section 8(a) (1) of the Act, I shall recommend that Respondent be
required to cease and desist from such unfair labor practices, and take such affirma-
tive action as appears necessary to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. Respondent, Safeway Cabs, Inc., is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act, and Taxicab Drivers Union Local No. 762, affiliated
with the International Brotherhood of'Teamsters, Chauffeurs, Warehousemen and
Helpers of America, is a labor organization within the meaning of Section 2(5) of
the Act.
2. By urging and assisting employees to withdraw from the Union and revoke
checkoff authorization agreements, Respondent engaged in conduct violative of Sec-
tion 8 (a) (1) of the Act.
3. The aforesaid. unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing. findings of fact and conclusions of law, and pursuant to Sec-
tion 10(c) of the Act, the Trial Examiner hereby issues the following:
' Central Freight Lines, 133 NLRB 393, 407-408.
4 See Nebraska Bag Co., et at ., supra.
1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Respondent Safeway Cabs, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Urging and assisting employees to withdraw from the Union and to revoke
checkoff authorization agreements.
(b) Engaging in other like or related conduct that interferes with the rights of em-
ployees voluntarily to engage in union activities, embrace union membership, select
a labor organization as their collective-bargaining representative, or to engage in
other concerted activity for their mutual aid or protection.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Post in conspicuous places at its place of business in Omaha, Nebraska, where
notices to employees are customarily posted, copies of the attached notice marked
"Appendix." 5 Copie of said notice, to be furnished by the Regional Director of the
Seventeenth Region of the National Labor Relations Board, shall, after being signed
by a duly authorized representative of Respondent, be posted by Respondent immedi-
ately upon receipt thereof, and maintained by it for 60 consecutive days from the
date of posting in such conspicuous places. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the said Regional Director, in writing, within 20 days from the receipt
of this Trial Examiner's Decision and Recommended Order, what steps Respondent
has taken to comply therewith .6
It is further recommended that unless on or before 20 days from the date of the
receipt of this Trial Examiner's Decision and Recommended Order the Respondent
notifies the said Regional Director, in writing, that it will comply with the foregoing
recommendations, the National Labor Relations Board issue an order requiring the
Respondent to take the action aforesaid.
5In the event this Recommended Order Is adopted by the Board , the words "A Decision
and Order" shall be substituted for the words "The Recommendations of a Trial Ex-
aminer" in the notice. In the further event that the Board's Order is 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 the event that this Recommended Order is adopted by the Board, paragraph 2(b)
thereof 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."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order 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 urge or assist employees to withdraw from Taxicab Drivers
Union Local No. 762, affiliated with the International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America.
WE WILL NOT urge or assist employees to revoke checkoff authorization agree-
ments with the Taxicab Drivers Union Local No. 762.
WE WILL NOT engage in like or related conduct that interferes with, restrains,
or coerces employees with respect to their rights voluntarily to engage in union
activity, embrace membership in Taxicab Drivers Union Local No. 762, or any
other labor organization, or select it, or any other labor organization, as their
collective-bargaining representative, or to engage in other concerted activity for
their mutual aid or protection.
All our employees are free to become, remain , or refrain from becoming or re-
maining, members of Taxicab Drivers Union Local No. 762, or any other labor
organization.
SAFEWAY CABS, INC.,
Employer.
Dated------------------- By-------------------------------------------(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.
THE BATO COMPANY, INC., ETC. 1343-
Employees may communicate directly with the Board's Regional Office, 1200 Rialto,
Building , 906 Grand Avenue , Kansas City, Missouri , Telephone No. Baltimore
1-7000, Extension 731, if they have any questions concerning this notice or com-
pliance with its provisions.
The Bato Company, Inc. and Peter Brant and Joseph Allen,.
d/b/a Super Service Trucking Company and Enrique Morales..
Case No. 2-CA-9506. May 5, 1964
DECISION AND ORDER
On January 20, 1964, Trial Examiner C. W. Whittemore 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 Deci-
sion. Thereafter the Respondent and the General Counsel filed excep-
tions to the Trial Examiner's Decision and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom and Brown].
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 entire
record in this case, including the Trial Examiner's Decision, the ex-
ceptions and briefs, and hereby adopts the Trial Examiner's findings '21
conclusions, and recommendations.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, The,
Bato Company , Inc. and Peter Brant and Joseph Allen , d/b/a Super
Service Trucking Company , of New York, N.Y., its officers, agents,
successors , and assigns, shall take the action set forth in the Trial Ex-
aminer 's Recommended Order.'
1 The Respondent's request for oral argument is hereby denied as, in our opinion, the
record, including the exceptions and briefs , adequately presents the issues and the posi
tions of the parties.
2 Harry Brant is the Respondent's office manager and supervisor , the brother of Murray
Brant , active head of the Respondent, and performs the duties of Murray Brant while he.
is away from the premises . We therefore find that Harry Brant is an agent of, and his
remarks herein are attributable to, the Respondent.
8 The notice shall be amended by adding the following language to the first indented
paragraph: "by discharging , refusing to reinstate , or in any other manner discriminating
against you in regard to hire or tenure of employment or any term or condition of
employment."
146 NLRB No. 167.
744-670-65-vol. 146-86