Shovel Supply Co.

National Labor Relations Board - Board Decisions

Oct 22, 1958

121 N.L.R.B. 1485 (N.L.R.B. 1958)

SHOVEL SUPPLY COMPANY 1485
ommended that the Respondents cease giving effect to the clause of the contract of
June 1, 1955, or any similar clause in any subsequent contracts between the same
parties, which delegates to the Union authority to settle controversies relative to
seniority, and any procedure thereunder which is operated in such manner as to
make the date of joining the Union the sole yardstick of determining seniority in
the terminal employment
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 Kramer Bros Freight Lines, Inc, is an employer within the meaning of Sec-
tion 2 (2) of the Act and is engaged in interstate commerce within the meaning of
Section 2 (6) and (7) of the Act
2 Local 249, International Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America, AFL-CIO, is a labor organization within the meaning
of Section 2 (5) of the Act
3 By interfering with, restraining , and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent Company has engaged in
unfair labor practices within the meaning of Section 8 (a) (1) of the Act
4 By discriminating in regard to hire and tenure of employment and other terms
and conditions of employment of certain chargees named herein , the Respondent
Company has engaged in unfair labor practices within the meaning of Section 8 (a)
(1) and (3) of the Act
5 The Respondent Company has not engaged in any unfair labor practice in rela-
tion to Section 8 (a) (1) and ( 3) relative to the hire and tenure of employment,
and terms and conditions of work of Joseph DeLisio
6 By restraining and coercing employees of the Company in the exercise of the
rights guaranteed in Section 7 of the Act, the Respondent Union has engaged in un-
fair labor practices within the meaning of Section 8 (b) (1) (A) of the Act
7 By attempting to cause and causing the Respondent Company to discriminate
against its employees and thus to commit an unfair labor practice within the mean-
ing of Section 8 (a) (3) of the Act, the Respondent Union has engaged in unfair
labor practices within the meaning of Section 8 (b) (2) of the Act
The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act
[Recommendations omitted from publication I
L. C. Ferguson and E. F. von Seggern , d/b/a Shovel Supply
Company and Local 96, International Brotherhood of Boiler-
makers, Iron Ship Builders, Blacksmiths, Forgers and Helpers,
AFL-CIO, Petitioner. Case No 16-RC-1,888 October 22, 1958
SECOND SUPPLEMENTAL DECISION, ORDER, AND
DIRECTION OF THIRD ELECTION
On July 26,1957,-pursuant; to a Supplemental Decision, Order, and
Direction of Second Election issued by the Board,' an election by
secret ballot was conducted, under the direction and supervision of
the Regional Director of the Sixteenth Region, among the employees
of the Employer in the unit found appropriate Thereafter, a tally
of ballots was furnished to the parties, which shows that, of 100 votes
cast, 22 votes were for the Petitioner, 74 votes were against the
Petitioner, and 4 were challenged Thereafter, the Petitioner filed
timely objections to conduct affecting the results of the election After
:1118 NLRB 315
121 NLRB No 187
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
investigation of the aforesaid objections, the Regional Director issued
his report on objections on January 23, 1958, in which he found that
the Petitioner's objection No. 12 raised credibility issues •. and recom-
mended that a hearing be held concerning these issues; he also found
no merit in the remainder of the Petitioner's objections and recom-
mended that they be overruled. Thereafter, the Petitioner filed timely
exceptions to the Regional Director's report.
The Board duly considered the matter and it appeared to the Board
that, as stated in the Regional Director's report, the Petitioner's ob-
jection No. 12, alleging that the Employer threatened or interrogated
the employees before the election, raised substantial and material
issues of fact that would best be resolved by a hearing.
Accordingly, the Board ordered that a, hearing be held before a
hearing officer to resolve the issues raised by the said objection and
referred the above-entitled matter to the Regional Director for the
purpose of conducting such hearing. Pursuant thereto, a hearing was
held on May 1 and 2, 1958, before Lee J. Best, hearing officer. There-
after, on June 27, 1958, the hearing officer officer issued his report and
recommendations on Petitioner's objections to election, in which he
found that the Employer had interfered with the employees' free
choice of a bargaining representative and recommended that the
election of July 26, 1957, be set aside and a new election directed.
Thereafter" the Employer filed timely exceptions to the hearing
officer's report.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Fanning].
The Board has reviewed the ruling made by the hearing officer at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.'
The Board has considered the hearing officer's report, the Em-
ployer's exceptions, and the entire record in this case, and makes the
following findings :
We find, like the hearing officer, that the Employer interfered with
the employees' freedom of choice, but rely solely on the following
circumstances set forth below.
1. On July 16 or 17, 1957, the Employer held a meeting of lead-
men and other supervisors and officials, at which the Employer's
attorney was present, for the purpose of discussing ways and means
to defeat the Union in the coming election.
During the course of the meeting, Supervisor Don Ferguson (son
of L. C. Ferguson, a partner), suggested that the leadmen talk to all
2 We have carefully reviewed the record and find no merit in the Employer 's contention
that the hearing officer was biased or prejudiced.
SHOVEL SUPPLY COMPANY 1487
employees individually and tell them that it-was their, opinion 3 that,,
if the Union were selected as bargaining representative, the plant
would go back to a 40-hour week and also that-,the employees would
lose their Christmas bonus, whereas at that time they were working
9 hours on weekdays and 5 hours on Saturdays with overtime pay
in excess of 40 hours per week. The Employer's attorney announced
that such statements were permissible as long as they were in the form
of personal opinions.
The next day L. C. Ferguson told the leadmen to find out how each
employee felt about the Union. That same day, each leadman
received a statement, approved by the Employer's attorney, which
contained a series of questions and answers as to what the leadmen
could say to the employees without interfering with the election.
Thereafter, Leadman Sutton talked to all but two employees in his
department, asking them how they felt about the Union, and telling
each of them that, in his opinion, the Employer would cut down their
employment to 40 hours per week and that they would lose their
Christmas bonus if the Union was selected as bargaining representa-
tive. He also told two employees, in confidence, that at the meeting
L. C. Ferguson had said he would close the plant before he would let
it go union. .
2. A few days before the election, employee Kral had a conversa-
tion with Leadman Lane (who was not Kral's supervisor), wherein
Lane inquired how he voted in the first election, how he was going to
vote in the second election, and what he thought about the Union.
3. Kral also had conversations with L. C. Ferguson as follows :
On July 24, Ferguson came to Kral's place of work and inquired
what he thought of the Union. Kral replied that he thought that
the Union was a -"pretty good outfit." On July 25 Ferguson asked
Kral how long he had been with the Employer, how many years of
experience he had, and said that Kral did not have enough experience
at his trade to work in a union shop. In concluding the conversation,
Ferguson stated to Kral, "Well, I can't tell you yet how you should
vote, but I hope -you change your mind and later on you can be sorry
of it." [Sic.] -
From the foregoing, and upon the record as a whole, we find that
the Employer's conduct prevented a free choice by the employees in
the election. Leadman a Sutton's statements to the employees that
the workweek would be cut down and ' the Christmas bonus would
be. withheld were manifestly coercive, as was the statement about
3 The leadmen were instructed not to make threats or promises, but that it would be
permissible to say, "I believe such and such would happen," just as long as the leadmen
did not say L. C Ferguson or the Employer would do it
a Whether or not the leadmen are supervisors, the Employer is responsible for their
actions under the circumstances of this case Harrison Sheet Steel Company, 94 NLRB
81, 82 , enfd . 194 F. 2d 407 (C. A. 7). .
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
closing down the plant which he attributed to L. C. Ferguson. Con-
trary to the Employer's contention, the fact that some of these threats
were couched in the form of an "opinion" in no way militates against
their coercive nature when, as here, the so-called personal opinions
were not merely predictions as to the terms the Petitioner might
exact from the Employer if it won the election, but were rather care-
fully phrased utterances made solely for the purpose of deterring
the employees from voting for the Petitioner, pursuant to the Em-
ployer's instructions 5 Ferguson's veiled threat to Kral that he
would suffer reprisals if the Union came in also interfered with the
elections Moreover, in the context of the foregoing threats, we find
that the interrogation by Sutton, Lane, and Ferguson was coercive,
and such as the Board has found to violate Section 8 (a) (1) of the
Act. Accordingly, we . conclude, as did the hearing officer, that the
Employer's conduct interfered with the employees in the exercise
of their free choice of a bargaining representative, and we shall
therefore order that the election held on July 26, 1957, be set aside
and direct a new election.'
[The Board set aside the election of July 26, 1957.]
[Text of Direction of Third Election omitted from publication.]'
6 See Norris-Thermador Corporation, 117 NLRB 1340, and cases cited therein.
e See Mid-South Manufacturing Company, Inc., 120 NLRB 230.
In view of our decision herein we have not considered the Petitioner's other objections,
nor have we found it necessary to pass upon other findings of the hearing officer, apart
from those adopted above, that the Employei interfered with the elections.
Sherman Lumber Company and Colby Porter, Petitioner and
Truckdrivers , Warehousemen & Helpers Local 340, Inter-
national Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers , of America . Case No. 1-RD-268. October 22,
1958 ,
SUPPLEMENTAL DECISION AND DIRECTION
Pursuant to a Decision and Direction of Election issued on July 2,
1958,1 an election by secret ballot was conducted on July 24, 1958,
under the direction and supervision of the Acting Regional Director
for the First Region, among the employees in the unit found appro-
priate by the Board. '' Following the election, a tally of ballots was
furnished the parties which showed that of 163 valid ballots cast, 2
were for the Union, 41 were against the Union, and 120 were
challenged.
1 Unpublished.
121 NLRB No. 190.