Silver Fleet Motor Express

National Labor Relations Board - Board Decisions

Feb 27, 1969

174 N.L.R.B. 873 (N.L.R.B. 1969)

SILVER FLEET, MOTOR EXPRESS 873
Silver Fleet, Inc. d /b/a Silver Fleet Motor Express,
Security Terminals and Local Freight Drivers,
Local No. 208, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers
of America
Silver Fleet, Inc. d /b/a Silver Fleet Motor Express,
Security Terminals and Local Freight Drivers,
Local No. 208, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Petitioner. Cases 21-CA-7431
and 21-RC-10270
February 27, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On October 2, 1967, Trial Examiner Maurice M.
Miller issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations
Act, as amended, and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision He also found that Respondent had not
engaged in other unfair labor practices alleged in the
complaint and recommended dismissal of those
allegations. Thereafter, Respondent filed exceptions
to the Trial Examiner's Decision and a brief in
support thereof; General Counsel filed
cross-exceptions, a brief in support thereof, and a
brief in answer to Respondent's exceptions.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision and the entire record in this
case, including the exceptions and briefs, and hereby
adopts the findings. conclusions, and
recommendations of the Trial Examiner, except as
modified below.
1. We agree with the Trial Examiner's findings of
Section 8(a)(1) violations by Respondent. However,
we also find, contrary to the Trial Examiner, that
the speech delivered by President Denkler on
December 6 violated Section 8(a)(1). In that speech,
President Denkler told the employees that if the
Union had won the election, the company would
have sold its "bobtail" trucks, moved to a smaller
terminal, and continued in business with fewer
employees. In our view, this statement amounted to
a threat of reprisal in violation of Section 8(a)(1).'
'Significantly, the Trial Examiner found that identical comments made
prior to the election tended to generate fear and were, therefore, violative
of Sec 8(a)(1) We have agreed with these findings We do not believe that
this kind of statement becomes less threatening because It was made after
the election and was contained in a speech in which Respondent announced
a number of measures intended to achieve a "tighter" shop This is
2. The Trial Examiner concluded that
Respondent ' s unfair labor practices were not
sufficiently pervasive to support a finding of bad
faith . He concluded , nonetheless , that a bargaining
order was necessary to remedy the numerous
violations of Section 8(a)(1) We do not find it
necessary , however, to resolve either of these
questions because, contrary to the Trial Examiner,
we conclude that the General Counsel failed to
prove that the Union represented a majority of
employees in the appropriate unit.
The General Counsel contends that the Union's
majority status was demonstrated in two different
ways: ( 1) by the authorization cards which the
Union submitted to the Employer, and (2) by the
poll of employees taken by Denkler on November
10. We disagree with both of these contentions. The
cards submitted to Respondent designated the
Union as bargaining agent and then contained the
following statement in bold letters:
THIS DOES NOT OBLIGATE ME IN ANY
WAY.
The General Counsel contends that construed in
context , this sentence could have only one meaning
- that by signing the card an employee was not
thereby obligating himself to pay union dues or
become a union member . We disagree. While it is
certainly possible that some employees would
interpret the sentence in the manner suggested by
General Counsel, there are other reasonable
constructions that could be given to this language.
For example , the sentence could imply that by
signing the card , the employee was not doing
anything that he would not have an opportunity to
reconsider . In this sense, the language was
misleading . If more than half the employees signed
cards, the Respondent might have recognized the
Union without an election. If an election were held,
and the Union defeated , the Respondent might have
committed unfair labor practices which warrant a
bargaining order. Thus, even though the signing of
the authorization card did not obligate the
employees to pay dues, it could achieve a result; i.e.,
union representation which was binding on the
employees . In this sense , the employee had
"obligated" himself by signing a union card.
In finding that the cards obtained by the Union
were insufficient for purposes of proving majority
status, we rely not only on the language of the card
itself, but also on testimony dealing with the
solicitation of the cards .' Employee Hicks, the most
active solicitor for the Union , testified as follows
when questioned about the authorization cards.
TRIAL EXAMINER : Did you have a conversation
with him' at the time he gave you the cards?
particularly so in a situation such as this where the period for filing
objections to the recently held election had not yet expired
'For this reason, we find it unnecessary to determine whether the
disclaimer of obligation on the card would, by itself, be a sufficient basis
for invalidating the cards
'The question refers to Maheras, the union organizer from whom Hicks
obtained the cards
174 NLRB No. 141
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
HICKS: Yes.
TRIAL EXAMINER: Tell us the substance of that
conversation.
HICKS: Well, just what the Union could do for
us, and that if a certain percent of these cards
were signed there would' be an election to vote
whether to get the Union in or not.
TRIAL EXAMINER: He enlisted your help to
distribute the cards?
HICKS: Yes, I would say that....
Q (By Mr. Sweeny): Did he tell you anything
further than there would be an election?
A: No...
Q: Were you told the purpose of distribution of
these cards was for an election only?
A: Yes....
Q: What were you told with respect to the
card? For what purpose were the cards to be
distributed?
A: To have an election - if a certain
percentage of employees signed these cards we
would have an election.
Q: Were you told anything further?
A: No.
Hicks also testified that he repeated this
conversation to one employee and "might have"
repeated it to several others. As pointed out by the
Trial Examiner, it was only after several leading
questions in which General Counsel specifically
mentioned the possibility of voluntary recognition
that Hicks stated:
All he ever told me about them was that it would
be for an election or to negotiate with Silver Fleet
through them.
Under these circumstances, we do not believe that
the authorization cards can be regarded as an
unambiguous expression of intent to designate the
Union as a bargaining agent. The oral assurances
that the card was to be used for an election, coupled
with the disclaimer of obligation in the card itself,
created an ambiguity which, in our view, is sufficient
to invalidate the cards for purposes of determining
majority status.
Nor do we believe that majority status was
established by the poll taken by Respondent shortly
after it received the Union's demand for recognition.
It is significant that in this poll, Respondent's
President Denkler did not ask employees whether
they wanted a union, but whether they had signed
authorization cards. If, as we have held, the
authorization cards cannot be used to establish
majority, it follows that an employee's oral
affirmation that he signed such a card was not
effective for such purpose. Accordingly, we do not
adopt that portion of the Trial Examiner's Decision
which recommends that Respondent be ordered to
bargain with the Union. Instead, we shall order that
the election be set aside and direct that a second
election be held.4
The subject of a "model" card to which Member Zagoria refers in his
concurring opinion is one to which the entire Board is giving careful
ORDER
Pursuant to Section 10(c) of the "''tional Labor
Relations Act, as amended, the N ^L- -nal Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein, and orders that the Respondent,
Silver Fleet, Inc. d/b/a Silver Fleet Motor Express,
Security Terminals, Los Angeles, California, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order, as so modified:
1. Delete paragraph 2(a) of the Trial Examiner's
Recommended Order and renumber the subsequent
paragraphs consecutively.
2. Delete the last indented paragraph (including
the unit description) from the Appendix attached to
the Trial Examiner's Decision.
3. Delete the last paragraph of the Trial
Examiner's Decision.
It is,hereby ordered that the complaint be, and it
hereby is, dismissed insofar as it alleges that
Respondent unlawfully refused to bargain with the
Union on and after November 14, 1966.
It is hereby further ordered that the election
conducted on November 29, 1966, be, and it hereby
is, set aside.
[DIRECTION OF SECOND ELECTIONS
omitted from publication.]
MEMBER ZAGORIA, concurring:
Like my colleagues, I would dismiss the
complaint herein insofar as it alleges an unlawful
refusal to bargain. I would not, however, rely on the
statements made to the signers of the cards, as I
believe the cards are invalid because of the
disclaimer of obligation, which stated "THIS DOES
NOT OBLIGATE ME IN ANY WAY." Such a
statement, in my view, permeates the entire card
with its ambiguity. If that statement appeared
toward the end of a sales contract for a vacuum
cleaner, I have little doubt that the courts would
treat the entire document as a nullity.
This is not the first case where cards have been
questioned because of language ambiguities. As has
been noted by the Bench,6 commentators,' and the
consideration Chairman McCulloch and Member Fanning are unwilling to
rule upon the specific form suggested by their colleague or to state the
precise legal consequences of the use of any such card without a fuller
opportunity for affected parties generally to present their views on this
matter to the Board.
'An election eligibility list, containing the names and addresses of all the
eligible voters, must be filed by the Employer with the Regional Director
for Region 21 within 7 days after the date of issuance of the Notice of
Second Election by the Regional Director. The Regional Director shall
make the list available to all parties to the election. No extension of time
to file this list shall be granted by the Regional Director except in
extraordinary circumstances. Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed. Excelsior Underwear Inc.. 156 NLRB 1236.
'E.g., N.L .R B. v Peterson Bros., Inc. 342 F.2d 221, 225 (C.A 5,
1965); International Union of Electrical. Radio and Machine Workers v.
N L R B., 352 F 2d 361, 363-364 (C.A. 5, 1965) (concurring opinion),
N.L.R.B v. S E Nichols Company. 380 F.2d 438, 442, fn 4 (C A. 2,
1967), N.L R.B. v. Southbridge Sheet Metal Works, 380 F.2d 851, 855
(C.A 1, 1967).
'E.g., Lesnick , Establishment of Bargaining Rights Without an NLRB
SILVER FLEET, MOTOR EXPRESS
Trial Examiner, problems specifically concerning the
propriety of authorization card language and format
could be eliminated if this Board or the unions
would adopt an appropriate card form more suitable
to the purpose of Sections 9 and 10 of the Act.
Although aware of the pitfalls involved in drafting a
legal form, I offer below8 a proposed authorization
card model which, if adopted by union organizers,
should reduce those challenges based on card
language or format. I propose this model to give the
sense of what I have in mind rather than for its
precise language. Of course I recognize that this
proposal will not solve all the card problems, but
should help in those arising from the wording of the
cards.
MEMBERS BROWN AND JENKINS, concurring in part,
dissenting in part:
We agree with the majority's conclusion that the
speech delivered by President Denkler on December
6 violated Section 8(a)(1). Contrary to the majority,
however, we would find that the authorization cards
obtained by the Union were unambiguous and,
therefore, valid for purposes of establishing union
majority.
As to the validity of the union authorization
cards, the majority concedes that the cards explicitly
designate the Union as bargaining agent. The claim
of ambiguity dissolves when the full text of the card
is reviewed. It states:
AUTHORIZATION FOR
REPRESENTATION UNDER THE
NATIONAL LABOR RELATIONS ACT
I, the undersigned, employee . . . hereby authorize
Teamsters Union, Local 208, as my
collective-bargaining representative for wages,
hours, health and welfare, pension protection,
Election , 65 Mich . L. Rev 851, 856-858 (1967), Lewis, The Use and Abuse
of Authorization Cards in Determining Union Majority, 16 Lab L J. 434,
441 (1965).
'[NAME OF BARGAINING AGENT - printed in upper case]
AUTHORIZATION FOR REPRESENTATION
I, , of
(Employee's name please print-(Employee ' s address - please
print)
hereby authorize [NAME OF BARGAINING AGENT - printed in
upper case]
to represent me for the purpose of collective bargaining with my
employer, , and to
(Employer's name - please print)
negotiate and conclude all agreements respecting wages, hours , and other
terms and conditions of employment . I understand that this card can be
used by the Union to obtain recognition from my employer without an
election.
NOTE
READ BEFORE SIGNING
Date : Signed:
(Month, day , year)._(Signature of employee)
Received by.
875
working conditions and other conditions of
employment. This authorization supersedes any
similar authority previously given to any person
or organization. THIS DOES NOT OBLIGATE
ME IN ANY WAY.. . . [Emphasis supplied]
According to the majority, an employee may
construe this reservation to mean a rejection of the
clear authorization made to the Union in the
preceding language. However, such interpretation
renders the entire card signing procedure
meaningless, a result obviously not intended or
envisioned by either the solicitor or the signatory. In
view of the repeated language authorizing the Union
as bargaining agent, the subsequent reservation must
be interpreted consistent with such authorization. If
the reservation creates an ambiguity, it does not
relate to the twice bestowed and clear authorization
for representation in the language which
immediately precedes it. The ambiguity only relates
to the range of other union activities, i.e., joining
the union or the payment of initiation fees or the
obligation to take an oath or attend meetings.
This interpretation is upheld by the only
testimony on the point by Driver Dunne who stated
he understood the reservation meant he would not
be required to pay an initiation fee unless the Union
permitted him to join . As aptly phrased by the Trial
Examiner:
Nothing in the record, therefore, would warrant a
determination that Complainant Union's card
signers were either confused or misled by the
language now under consideration. To the extent
that Respondents may have tried to suggest that
they were, such a contention is rejected.
Unlike the majority, we are not persuaded by the
contention that the cards should be invalidated
because of oral representations made by union
organizers. The testimony of employee Hicks was
carefully analyzed by the Trial Examiner. He found
that while Hicks was told by Union agent Maheras
that the cards could be used for an election, he was
not told or led to believe that the cards were to be
used only for that purpose. Thus, under prevailing
standards, we find no basis for invalidating Hicks'
card. 9
Additionally, Hicks testified that he repeated his
conversation to only one employee and that he
"might have" repeated it to three others. We do not
believe that an authorization card should be rejected
because of uncorroborated statements that the
solicitor "might have" made. Accordingly, we would
find that a valid majority has been established, and
we would order Respondent to bargain with the
Union upon request.10
'Cumberland Shoe Co., 144 NLRB 679, enfd . 351 F.2d 917 (C A. 6),
Levi Strauss & Co. 172 NLRB No. 57.
"As noted in the majority opinion, the Trial Examiner found that the
unfair labor practices committed by the Employer were not sufficient to
justify a finding of bad-faith refusal to bargain , but were sufficient to
justify a bargaining order as a remedy for the violations of Sec . 8(a)(1)
Like the majority, we find it unnecessary to decide whether these two types
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of bargaining orders are governed by two different evidentiary standards
because we conclude that the Employer' s unfair labor practices were
sufficient to justify a bargaining order under either theory'
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
MAURICE M. MILLER, Trial Examiner: On November
14, 1966, Local Freight Drivers, Local No. 208,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, filed a petition for
certification with the Board's Regional Office (Case
21-RC-10270); therein Petitioner requested certification to
represent a group of workers designated as follows:
All employees [of Silver Fleet Inc. d/b/a Silver Fleet
Motor Express; Security Terminals] including
truckdrivers, warehousemen, mechanics, dockmen, their
helpers and assistants, excluding office clerical
employees, guards, professional employees and
supervisors as defined in the Act.
Thereafter, pursuant to the parties' stipulation for
certification upon consent election negotiated and signed
on November 16, a vote by secret ballot was conducted on
November 29, which a representative of the Board's
Regional Director directed and supervised. There were 25
voters concededly eligible; all cast valid ballots. Petitioner
received 12 votes; 13 votes were cast against
representation for collective-bargaining purposes. On
December 6, Petitioner filed timely objections with respect
to this election. N.L.R.B. Rules and Regulations, Series 8,
as amended, Section 102.69(a), Section 102.114(a). The
Regional Director, pursuant to the Board's Rules and
Regulations, thereafter proceeded to investigate
Petitioner's objections.
On December 30, Petitioner, designated henceforth as
Complainant Union herein,'filed a charge against Silver
Fleet, Inc. d/b/a Silver Fleet Motor Express, and
Security Terminals, henceforth designated as Respondent
herein. The firm was charged with various unfair labor
practices affecting commerce, within the meaning of
Section 8(a)(1) and (5) of the National Labor Relations,
Act, as amended. 61 Stat. 136, 73 Stat. 519. Specifically,
Complainant Union challenged the propriety of certain
conduct purportedly chargeable to Respondent's
representatives, which had both preceded and followed the
consent election previously noted.
Subsequently, on February 10, 1967, the General
Counsel of the National Labor Relations Board caused a
complaint and notice of hearing to be issued and served
upon Respondent; therein, the firm, was charged with
unfair labor practices affecting commerce within the
meaning of the particular statutory sections noted. On
February 14, the Board's Regional Director, further,
published and served his report on objections with respect
to Complainant Union's previously filed objections in
Case 21-RC-10270; therein, note was taken that
Respondent's purported course of conduct - challenged
as violative of the statute within the complaint previously
served - compassed, inter alia, the conduct put in
question by Complainant Union's representation case
objections. With matters in this posture, the Regional
Director concluded that the statute's purpose would best
be served by directing a consolidated hearing upon
Complainant ' Union's objections, jointly with the
scheduled hearing on General Counsel's complaint
previously issued. Thereafter, Respondent's answer with
respect to General Counsel's complaint was duly filed.
Certain factual matters set forth within the complaint
were conceded; Respondent, however, denied the
commission of any unfair labor practice.
Pursuant to notice, a hearing with respect to various
questions presented in both cases was held at Los Angeles,
California, on May 2, 3 and 4, 1967, before me. The
General Counsel, Respondent, and Complainant Union
were represented by counsel. Each party was afforded a
full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence
pertinent to the issues. Since the hearing closed, briefs
have been received from General Counsel and
Respondent's counsel; these briefs have been duly
considered.
FINDINGS OF FACT
Upon the entire testimonial record, documentary
evidence received, and my observation of the witnesses, I
make the following findings of fact:
L THE BUSINESS OF RESPONDENT
Respondent, functioning as a California corporation,
maintains its principal place of business and terminal in
Los Angeles, California, from which, as a duly licensed
common carrier, it is engaged in the hauling of general
commodities. During the course and conduce of its
business operations, Respondent receives more than
$50,000 annually for hauling services rendered to various
interstate carriers, each of which in turn receives more
than $50,000 annually from customers, for services
directly performed outside the State of California
Upon the Complaint's jurisdictional declarations, which
are conceded, I find that Respondent was - throughout
the period which this case is concerned - and is now, an
employer within the meaning of Section 2(2) of the Act,
engaged in commerce and business activities which affect
commerce within the meaning of Section 2(6) and (7) of
the Act, as amended. With due regard for those
jurisdictional standards which the Board presently applies
- see Siemons Mailing Service, 122 NLRB 81, and
related cases - -1 find assertion of the Board's jurisdiction
In this case warranted and necessary to effectuate
statutory objectives.
IL THE LABOR ORGANIZATION INVOLVED
Local Freight Drivers Local No. 208, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, designated as Complainant
Union within this decision, is a labor organization within
the meaning of Section 2(5) of the Act, which admits
certain of Respondent's employees to membership.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary Statement Matters Not Contested
General Counsel's complaint, herein, contains certain
factual declarations which Respondent has, specifically,
conceded. With due regard for these concessions - which
have been somewhat elaborated in testimony - certain
preliminary factual determinations may be made.
Throughout the period with which this case is
concerned, Ronald L. Denkler has been Respondent's
president and part owner; he concerns himself - so his
testimony shows - primarily with financial management
SILVER FLEET, MOTOR EXPRESS 877
and. sales. David Huddleston has been, likewise, part
owner of the respondent enterprise; his testimony warrants
a determination that he "runs" the business, so far as the
firm's trucks and personnel are concerned These men are
now, and have been, at all times material , supervisors
within,the meaning of Section 2(11) of the statute; they
have, throughout, functioned as agents of Respondent,
acting on its behalf.
The bargaining unit defined within Complainant
Union's representation petition, previously noted,
concededly constitutes a unit appropriate for
collective-bargaining purposes, within the meaning of
Section 9(b) of the statute.
On November 10, 1966, before Complainant Union
filed its representation petition, the designated labor
organization 's legal counsel had dispatched a letter -
which Respondent had received on November 14, 1966;
therein, Respondent had been advised that a majority of
its workers, within the bargaining unit previously defined,
had designated Complainant Union their
collective-bargaining representative. In Complainant
Union's behalf, counsel requested "an early meeting" for
the purpose of negotiating a written collective-bargaining
contract covering wages, hours, and other terms and
conditions of employment, for Respondent's workers
within the unit designated. Respondent was, further,
advised that - should company management have any
doubt regarding Complainant Union's majority status -
that organization would be pleased to permit a
cross-check conducted by the State Conciliation Service or
any other responsible disinterested third party, between its
designation cards and Respondent's payroll.
When this communication was received , the respondent
firm - though it functioned under two business names -
had 25 men on payroll. Four workers - designated as
warehouse men - were considered Security Terminal
employees. There were 21 men considered Silver Fleet,
Inc. workers; this group compassed I mechanic, 2
warehouse men, and 6 heavy-duty tractor drivers, plus 12
men listed, merely, as drivers. These workers, concededly,
made up the group which Respondent-Employer and
Complainant Union - Petitioner considered eligible to
vote during the November 29 representation election,
previously noted.
B. Contested Matters
1 Issues
These consolidated cases - save for certain threshold
problems raised by Respondent ' s challenge regarding the
validity of Complainant Union's claim to represent a
majority of company workmen within the previously
designated employee group - present several relatively
conventional questions . Primarily , these concern the
proper scope which may be given this Board's so-called
Joy Silk Mills and Bernel Foam doctrines . Joy Silk
Mills, 85 NLRB 1263, enfd. 185 F.2d 732 (C.A.D.C.);
Irving Air Chute Company, Inc., Marathon Division, 149
NLRB 627; Bernel Foam Products Co., Inc., 146 NLRB
1277. Upon the present record, specifically,
determinations would seem to be required with respect to
the following matters. 1. Whether President Denkler and
David Huddleston , functioning in Respondent's behalf -
following their receipt of notice with respect to
Complainant Union's petition for certification -
interfered with, restrained or coerced Respondent's Los
Angeles workers through: (a) questions relative to their
Union membership, sympathies and activities; (b) further
comments reasonably calculated to create the impression
that their Union activities were subject to company
surveillance , (c) threats that certain employees might,
possibly, lose their jobs, contingent upon Complainant
Union's success in winning representative status; (d)
promises that Respondent's workers would receive pay
raises and further benefits, should they refrain from
supporting Complainant Union herein; and (e) subsequent
wage raises, which Respondent coupled with a
discontinuance of previous Christmas bonus practices,
such action being taken without notice , consultation, or
collective bargaining with Complainant Union herein. 2.
Whether Respondent' s management -- following the
firm's November 14th receipt of notice regarding
Complainant Union's claim to represent Respondent's Los
Angeles workers, within a unit appropriate for
collective-bargaining purposes - refused to bargain,
contrary to statutory requirements, by: (a) Refusing to
recognize and deal with Complainant Union as their
designated bargaining representative , and (b) modifying
their working terms and conditions with respect to matters
previously noted, unilaterally and without giving
Complainant Union any chance to bargain thereon. With
respect to these questions , Respondent contends that: first,
General Counsel has failed to sustain his case through a
preponderance of the "substantial, credible" evidence;
second, various statements purportedly chargeable to
company spokesmen should not be considered, within
their relevant context, violative of statutory proscriptions,
third, such company spokesmen - though they may have,
concededly, refused to bargain with Complainant Union
herein - legitimately bottomed that refusal upon their
good-faith doubt that a majority of their workers, within a
concededly appropriate bargaining unit, had freely,
voluntarily and without threats, coercion or
misrepresentation, selected Complainant Union as their
collective-bargaining representative ; and fourth,
management ' s course of conduct should not, in ' any event,
be considered a so-called "consistent and flagrant pattern
of unlawful conduct" sufficient to warrant this Board's
bargaining order, under current Bernel Foam decisional
doctrine.
2. Facts
a. Background
(1) The Company's business
Respondent conducts a so-called "general freight"
business within the Los Angeles area. Thus, it provides
local hauling service for large truck trailers received from
- or destined for - various interstate carriers; further,
Respondent's personnel unload, within its terminal,
trailers containing so-called "LTL" less than trailer load
freight, reassemble and reload such freight on
Respondent's trucks for delivery to various freight
recipients. For these business purposes, the company
maintains a fleet which, so the record shows, numbers 20
trucks. These include eight "tractors" and twelve
"bobtails" so-called. Tractors, of course, are motorized
vehicles which pull truck trailers. A so-called "bobtail"
has been defined, for the present record, as "just a
straight truck with a box on it" within which freight may
be loaded. During the period with which this case is
concerned, Respondent's payroll listed six tractor drivers,
plus twelve "drivers" who presumably, drove "bobtail"
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4
trucks, in pickup and delivery service.
(2) The September meeting
Respondent has been in business for some four years.
On dates subsequent to its commencement of business -
not specified for the record - Respondent initiated a
profit-sharing plan, with which was coupled a Christmas
bonus policy. Thereafter, Respondent's management - so
the record shows - held fairly frequent company
meetings, during which the firm's workers were kept
advised regarding business operations, management's
financial situation, and their profit-sharing prospects.
For some time - commencing quite a few months
before Complainant Union's organizational campaign with
which this case is concerned - the company's
management had been concerned regarding the
profitability of so-called "bobtail" truck operations.
Following the firm's purchase of nine such trucks - some
time during 1966's spring months - David Huddleston,
Respondent's part owner, together with Terminal
Manager Gutfeld and Respondent's accountant, had
surveyed Respondent's business. Their survey had shown
that - for various reasons which need not be presently
detailed - local "bobtail" truck operations generally-were
losing money, so that Respondent's business was really,
being "carried" through the profits derived from its
tractor-trailer operations. This situation was - so the
record shows - made generally known to Respondent's
crew. Further, the fact that managerial discussions were
being held, and that decisions were being considered, with
regard to the future of the firm's local "bobtail" truck
pick-up and delivery business, was a matter of general
knowledge - so, I find - within Respondent's driver
complement.
Some time in September 1966, Respondent's
management - which had been confronted with several
driver requests for raises - summoned the firm's
personnel to meet. President Denkler, Huddleston and
Respondent's accountant were present; Denkler and the
accountant, so the record shows, addressed the group. The
accountant gave a financial report; references were made
to some recent declines in business volume, and
Respondent's record of monthly losses. Though no
company financial statements were proffered for the
present record, while the hearing was in progress,
President Denkler did testify - without contradiction or
challenge - that Respondent's September, 1966, loss had
approximated $4,000; compared with monthly profits
which had averaged $1,500-$2,000 per month previously; I
so find. Respondent's workers were reminded of
management's problem regarding the firm's profitable
tractor business, and nonprofitable "bobtail" truck
business. With respect to this portion of management's
presentation, the record - more particularly, the
testimony of several driver witnesses, which I credit in this
respect - warrants a determination that Respondent's
president:
. . . talked about in general the bobtails and the
tractors; that the tractors, you know, were carrying
most of the weight and we needed more business for the
tractors to pull us out of the slump we were in. And
that the bobtails were . . . not making no money. The
tractors were carrying it . . . . Well, talking about the
freightwise going out . . . it's a known fact by going
through the records that the bobtails were going out
loaded light, because there was no freight for them,
which there was no revenue coming in. In other words,
the bobtails really weren't carrying their part of the
load; that the tractors was carrying the heavy part of
the load to make ends meet for the bobtails.
President Denkler told the men that he proposed to make
a trip East; and that he hoped to secure more
tractor-trailer business from some five interstate carriers,
more particularly from one firm designated as "Itofca"
with which Respondent had previously maintained a
business relationship. Respondent's drivers were further,
told that - should President Denkler's trip prove
successful - resultant profits, during October and
November, might well provide the wherewithal for
requested raises. Thereafter, Drivers Hicks, Conyers, and
Howard - who had personally requested raises - were
told, subsequently, that they deserved wage increases, and
that if they would "just gamble a little longer" with the
firm, raises would be given.
Various witnesses proffered in Respondent's behalf
testified - credibly and without contradiction - that
President Denkler did, in point of fact, procure three new
"trailer" accounts, though not the desired "Itofca"
account, during his Eastern trip. The firm's new business,
so the record shows, produced what one driver witness
called "substantial" numbers of additional trailers for
Respondent's tractor drivers to handle.
(3) Complainant Union's campaign
Meanwhile, on or about September 25, Complainant
Union's organizer, Alex Maheras, met Larry Hicks, one
of Respondent's tractor drivers, by chance, while the latter
was calling at a so-called "piggyback" trailer terminal. He
(Maheras) gave Hicks some Union authorization cards.
These cards, in relevant part, read as follows:
AUTHORIZATION FOR REPRESENTATION
UNDER THE
NATIONAL LABOR RELATIONS ACT
I, the undersigned , employee . hereby authorize
Teamsters Union, Local 208, as my
collective-bargaining representative for wages, hours,
health and welfare , pension protection , working
conditions and other conditions of employment. This
authorization supersedes any similar authority
previously given to any person or organization. THIS
DOES NOT OBLIGATE ME IN ANY WAY .. . .
This card will be kept confidential by Local 208 and the
Federal Government.
Maheras testified , credibly, that - when he gave Hicks
these designation cards - he explained that they would be
needed so that Complainant Union could present itself to
Respondent 's management with a claim to represent an
employee majority , and that, should Respondent deny
Complainant Union recognition , it would then petition for
a representation election. This testimony was corroborated
by Hicks, who recalled , following several questions from
opposing counsel , that - when Maheras gave him the
cards - something was mentioned about both
negotiations and an election.
Hicks signed Complainant Union ' s designation card.
Further - so the record shows - he distributed cards to
many of his fellow workers Between September 27 and
November 9, 1966, seventeen of Respondent ' s workers
signed cards . Hicks recalled distributing cards to eleven of
SILVER FLEET, MOTOR EXPRESS 879
these seventeen workers. Another recalled that Hicks had,
likewise, given him the card which he signed. One driver
testified, merely, that he had received his card from a
fellow driver. With respect to three employees, the record
is silent regarding the source of the cards which they
signed. While a witness, Hicks testified that he "may"
have repeated Maheras' conversation with him, concerning
the card's purpose, when he passed "some of them" out;
with due regard for the probabilities, I find warrant for a
determination that he did.
General Counsel's presentation, herein, compassed all
seventeen card signers in Respondent's hire. Each testified
regarding his completion of the various entries which the
cards required, and regarding his card's execution; save
for two - Driver Greene and Warehouseman White -
the record shows that each signer had read Complainant
Union's card before signing it.
Driver Sherman Dent's card bears a September 27
date; Respondent's mechanic, Michael Clarke, signed his
card - so the record shows - on October 5. The rest of
the cards were signed - so I find - between November 2
and 9. Driver Greene's card on its face, bears an October
7 date; he testified, however, that he signed his card on
November 7, rather than a month previous. The testimony
proffered by two workers - Warehouseman White and
Tractor Driver Cahill - could, conceivably, leave some
room for doubt regarding the correctness of the dates
which their cards presently bear. The record, however,
shows that all 17 cards signed bear the date stamp of the
Board's Regional Office, showing their receipt on
November 14, at 8:34 a.m. Union Organizer Maheras
testified credibly that, on November 9, he had "picked
up" the signed cards from Hicks, during a visit to the
lacter's home, and that be had made a personal visit to
Respondent's place of business on November 10, though
he hadn't found management present. Presumably,
Maheras had, thereafter, submitted the cards to counsel
who filed Complainant Union's representation petition I
so find
With matters in this posture, determination would
certainly seem warranted that these supposedly doubtful
cards, whether or not they were really dated by their
signers, must have been- signed and tendered before the
close of business at Respondent's dock on Friday,
November 11, at the latest; most probably they had all
been signed before November 9. 1 so find. By November
14, when Respondent received Complainant Union's letter
demand for recognition and bargaining, previously noted,
designation cards signed by seventeen workers, within the
bargaining group previously defined, were in the Regional
Office's possession.
b. Respondent's reaction
(1) Interrogation
When Respondent's president received Complainant
Union's November 10 letter, he telephoned his labor
relations consultant; he was told that he could question his
workers, for the purpose of verifying Complainant
Union's majority representation claim, but that he would
have to be careful with respect to what he said.
Summoned as Respondent's witness, President Denkler
testified that he, thereupon, queried most of his employees
with respect to whether they had signed Complainant
Union's authorization card. When he reached thirteen
negative responses, so his direct testimony shows, he
stopped. During cross-examination, however,
Respondent's president conceded that - within two sworn
statements - he had previously said that he had, during
this period, questioned "all the men" with respect to
whether they had signed cards. Considered in totality, the
present record clearly warrants a determination consistent
with Denkler's prior sworn statements, rather than with
his direct testimony. Complainant Union herein, so I have
found, submitted seventeen -signed cards, when its
November 14 representation petition was filed. This would
mean that 8 of Respondent's 25 workers had not then
signed. When proffered as General Counsel's witnesses,
fifteen of Complainant Union's seventeen card signers all
testified - credibly I find - that they had been
questioned. The sixteenth Cahill, could not recall;
Denkler, however, conceded questioning him. Since the
record - which I propose to note, further, in this respect
- shows that no more than 5 of the 17 card signers gave
negative answers when Respondent's president questioned
them, determination would seem to be warranted that he
found himself required to query or otherwise determine
the facts with respect to Respondent's full employee
complement before he received his thirteenth negative
response. With matters in this posture, I find that
President Denkler did, really, question all Respondent's
employees - with the probable exception of Driver Hicks,
to be noted - with respect to whether or not they had
signed Complainant Union's card.
Denkler's questions, however, were clearly part of some
design to probe more deeply than his "mere" try to verify
Complainant Union's claim would require. Credible
testimony proffered in General Counsel's behalf, rather,
warrants a determination - which I make - that, both
during his canvass and within the several days which
followed, Denkler pressed further inquiries or proffered
comments. These - so the record shows - may be
categorized as follows:
1. When Tractor Driver Conyers answered
Respondent's president negatively, the latter
commented, "That is good. You are my boy. I didn't
think you would."
2. When Respondent's mechanic, Michael Clarke,
conceded in response to Denkler's query that he had
signed a card, and that he would "stay with" the
worker majority which had signed cards, Respondent's
president asked where he had received his card. Clarke
replied that he had received his card from Hicks; the
record warrants a determination that his response was
true.
3. Warehouseman Blinn testified credibly that
Part-Owner Huddleston, rather than President Denkler,
had asked him whether he had signed Complainant
Union's card. I find, contrary to Huddleston's denial,
that - following Blinn's affirmative response - he was
told that "however which way" matters went,
Respondent's workers would get a raise close to union
scale.
4. When Driver Dunne provided Denkler with a positive
response, relative to Complainant Union's card,
Respondent's president stated, "You of all people I
didn't expect to do this... What [do you expect] to gain
by it...did [you] think [you weren't] good enough to
keep [your] job since [you have] been with [us] almost
two years." Further conversation, relative to Dunne's
motivation, followed.
5. When Denkler received Driver Goode's affirmative
response, he declared his disappointment, saying "You
98 0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know we don't want the union in here," but declaring
that there would be no hard feelings. Several days later
Respondent's president asked Goode why he had signed
Complainant Union's card.
6. Driver Greene's testimony warrants a determination
that - following his affirmative response when
questioned by Respondent's president - he was present
during the latter's subsequent conversation with Driver
Goode; Denkler, following his query of Goode with
respect to the latter's reason for signing, directed a
similar question to Greene.
7. Driver Sullivan, when questioned by Respondent's
president, tried to evade the question quite a few times;
when pressed to reply, I find, he finally proffered a
negative response
8. Driver Dent, when questioned as to whether he had
signed a card, responded affirmatively; President
Denkler then asked what he thought he could gain by
doing that.
9. Driver Servantes, likewise, responded affirmatively
when questioned. Several days later - so I find -
Respondent's president asked him why he had signed
Complainant Union's card.
Credible testimony, proffered by several drivers, will
support a further determination that Denkler's questions
were, sometimes, proffered with comments reasonably
calculated to convey the thought that Respondent's
management - should the person questioned refrain from
giving a direct reply - had other sources of information,
with respect to whether cards had been signed or whether
particular workers were Union supporters. In this
connection, I find, the record will support determinations
that:
1. President Denkler told Driver Curtis that he
(Denkler) was going to find out anyway, should Curtis
not tell whether he had signed a card.
2. Respondent's president, when Driver Griggs was
interrogated, prefaced his question with the statement,
"You know I am going to find out."
3. President Denkler told Driver Powell, during their
conversation, that, "There is no use lying. I can find
out" whether he (Powell) had signed a card.
4. During the late afternoon of November 14th,
Respondent's president told Driver Hicks - whose
responsibility for distributing Complainant Union's
cards had previously been revealed to him - that he
(Hicks) had just helped ruin a good company.
5. Some time thereafter, following a Union meeting
which Tractor Driver Conyers had attended, despite a
prior statement to Respondent's president that he did
not plan to go, Denkler commented, "I didn't think you
[Conyers] were going to the meeting."
Driver Griggs, one of Complainant Union's card
signers, further testified that - following Denkler's
declaration he was "going to find out" whether he
(Griggs) had signed a card - he gave Respondent's
president a negative response; Denkler then, so I find, said
"You won't regret it." The next morning, however, when
D,enkler came to work, Griggs declared that he had lied,
and that he had, really, signed a card. The driver added,
however, that he did not then know how he would vote
Denkler declared his hope that Griggs would "stick with"
him.
(2) Further claimed interference, restraint, and
coercion
During Denkler's interrogation of Driver Sullivan,
previously noted, he (Sullivan) was - so I find - told
that, though he was then working nights, his nightwork
would probably be discontinued "if the union came in"
because of the wage increase which Respondent would
have to pay.
Then, during the weeks which followed Complainant
Union's representation petition - so credible testimony
shows - several of Respondent's drivers had
conversations with President Denkler, during which
comments were made regarding possible developments,
should Respondent's workers designate Complainant
Union their bargaining representative. With respect to
these matters, the record - considered in totality -
warrants a determination that:
h Denkler told Tractor Driver Conyers on two
occasions - once on Respondent's terminal dock and
once in the firm's garage - that if the firm "went
union" they would sell their "bobtail" trucks and
continue in business with six tractors alone.
2. Similarly, Respondent's president - on several
occasions - told Mechanic Clarke that - should
Complainant Union win representative status - he
would sell the bobtails, cancel a pending order for three
new bobtail trucks, retain the firm's fleet of tractors,
and possibly seek a smaller terminal. Inter alia, I find,
Clarke was told that he was then being paid more than
Complainant Union's rate, so that unionization would
not affect him; that he (Clarke) would be retained as
Respondent's mechanic to service the tractors; that
Denkler's biggest complaint regarding unionization
derived from his belief that Complainant Union would
interfere with Respondent's management; and that the
firm would try to pay Union rates but had not to
that point - had enough money.
3. During a friendly conversation with Driver Griggs,
which the latter may have initiated, President Denkler
pointed to a piece of paper on his desk and stated, "I
am not telling you this myself, but if the union does
come in, we will have to sell all the bobtails and get rid
of all the bobtail drivers, and we will have to cancel
orders for other bobtails and just run tractors."
Respondent's president added that the firm wasn't
making enough money to pay benefits and wages equal
to those which Complainant Union would require:
according to Griggs, Denkler cited figures, though the
driver could not recall them.
President Denkler, during his direct testimony, conceded
that he regularly conversed with Respondent's drivers; he
testified that it was his practice to greet them daily, and
to pass remarks generally regarding their work.
Respondent's president - speaking in this connection -
further described his company as "pretty close-knit" with
personnel relationships conducted on a friendly
"first-name" basis. Within this context, Denkler denied
any conversation with Conyers or Goode regarding
unionization. Further, he denied questioning Dunne, or
holding any conversations with him. With regard to
Clarke and Griggs, however, Respondent's president
proffered no specific denials. Due regard for the record,
considered in totality, persuades me that Denkler's
generalized protestations - with respect to this portion of
General Counsel's case - fall short of convincing
`SILVER FLEET, MOTOR EXPRESS
rebuttal. The testimony of Conyers, Dunne, Clarke, and
Griggs - with respect to their conversations last noted -
will, therefore, be credited.
(3) The November 25 meeting
Respondent conducted two meetings for employees,
generally related to the representation election. The first
- as the record shows - was held on the morning of
November 25, 4 days before the scheduled vote; the
second was held on December 6, 7 calendar days following
the vote. Both were held in Respondent's "upstairs"
quarters.
With respect to the first of these meetings, pursuant to
a suggestion received from his labor relations consultant,
President Denkler had prepared a written statement; this
statement, so he testified, was read. When its reading was
concluded, Respondent's president declared, he stated
merely, that he could answer no questions.
Denkler's statement, proffered for the present record,
began with a recapitualtion of Respondent's history,
detailing several financial crises which the firm had,
previously, successfully surmounted. Respondent's workers
were then reminded that.
About three months ago we started losing money badly
and when we had our last meeting, I told you we
needed more trailer load business. I went East and got
three new accounts, but not Itofca. That's the one we
needed, however we did raise our dollar business to
40,000.00 last month. We made 5,100 profit.
Figures were cited, however, purportedly to show that this
presumptive business improvement would not solve the
firm's financial problems. Respondent's president, then,
detailed some reasons why the Company's necessarily
competitive rate structure limited profit possibilities; he
referred to certain proceedings currently before the
California Public Utilities Commission, which, so he
stated, held out some chance that higher local service
rates might be permitted, soon, for those portions of
company business which were not, currently, profitable.
Respondent's workers were, thereupon, reminded of
various fringe benefits which the firm provided; references
were made to their prospects for job security, and
management's previously demonstrated concern for their
welfare. At this point - so Denkler's prepared statement
shows - he declared:
About six months ago we ordered three more diesel
bobtails. Last Wednesday we canceled the order. We
can't take a chance on more trucks at this point. Our
growth has stopped and we will have to give up certain
accounts because we will not be able to gamble on the
long range anymore.
Finally, Respondent's president promised, however, that
his listeners need have no fear of reprisals from
management. They were reminded of the forthcoming
vote; Denkler concluded his remarks with a plea for their
rejection of Union representation.
Several warehousemen and drivers, proffered as
General Counsel's witnesses, purportedly recalled that
Denkler had made some further statements, while he read'
the document noted. Warehousemen Blinn and Libasora,
for example, together with Driver Servantes, testified that
Denkler had said he would cancel an order for two or
three diesel bobtails if Respondent went union; Blinn
further testified that Respondent's president said he would
cut out the profit-sharing plan, terminate the bobtail
881
drivers, and just run tractors, should such a contingency
develop. Driver Powell substantially corroborated Blinn in
this respect; he [Powell] added that mention was also
made regarding the firms possible move to a smaller dock.
Servantes testified that Denkler had said he would dismiss
the bobtail drivers and just use six tractors. Driver
Conyers, though he first testified that Denkler had made
statements not contained within his prepared speech, later
declared that Respondent's president had had "nothing to
say" beyond the statement which he read. Other witnesses
proffered in General Counsel's behalf - Hicks, Dunne
and Goode - could not recall any statements by Denkler
which reflected a departure from his written statement.
Blinn - following his testimony on direct examination
that Denkler's remarks had compassed certain statements
which cannot be found within his prepared text -
conceded during cross-examination that Respondent's
president had "simply read" from a document. With
matters in this posture, determination would not be
warranted - within my view - that President Denkler
did more than read a prepared speech containing the
statements which have previously been quoted; I so find.
c. The election and its aftermath
(1) The election
The Board's representation election, previously noted,
was held on the morning of Tuesday, November 29.
Complainant Union failed to win a majority designation,
losing by one vote.
(2) The December 6 meeting
With the vote held, President Denkler communicated
with Respondent's labor relations consultant; purportedly,
this was to determine how soon Respondent's
management might, with propriety, thank the firm's
workers and discuss future plans. Respondent's president
was told, I find, that - since Complainant Union would
have five days, following the day of the vote, within which
objections thereto might be filed - he would be
well-advised to withhold any pronouncement or comment
until the period for objections had passed. Denkler
decided to wait 7 days. During the morning of Tuesday,
December 6, therefore, he summonded Respondent's
workers to meet, within the firm's "upstairs" quarters.
December 6, was the seventh calendar day which followed
the date of the representation vote. However - since the
Board's Rules and Regulations, previously noted, provide
that, with respect to time periods set for particular action
compassing less than seven days, intermediate Saturdays,
Sundays, and holidays may not be counted - this
December date represented the fifth countable day
following the election, and the last day within which
objections might be filed. Complainant Union's objections
were, in fact, filed later that day. Several workers -
proffered as General Counsel's witnesses - provided
somewhat variant testimony regarding the substance of
President Denkler's remarks. However, within his brief,
General Counsel has cited the testimony of Driver Dunne,
which, so he contends, provides a substantially correct
summary. With due regard for the record, considered as a
whole, I concur. Regarding Denkler's remarks, Dunne
testified as follows.
Well Ron more or less spoke to us at that meeting. He
blessed the 13 that voted against it. He said there would
be a raise in pay, and that after the raise in pay he says
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some of us were working part-time at other companies,
and there would be no_ more part-time work, because
with the raise in pay this would compensate for it; and
that if we had two chargeable accidents against us we
would be dismissed; we would not be paid for any time
we were off after this. Every one would start work
promptly at eight o'clock in the morning, and if there
was any chance of us - after we had our trucks loaded,
if there was a chance for us to take a big mark [i.e.,
some special stop] on the end of the evening, if it was a
block or two out of the way, to make sure we took it
and be sure the trucks were full on the way out. . there
would be no Christmas bonus due to the raise and
everything. . .Well, he said. . if the union had got in he
would have sold the bobtails and continued on with just
the tractor operation. . He said [regarding the
projected raise] it would be close to union scale
assuming we didn't have to pay fees and initiation fees.
Four drivers - Hicks, Goode, Greene, and Powell -
testified Denkler had likewise said that if Complainant
Union had won the vote he would have dispensed with the
bobtail trucks, moved Respondent's business to a smaller
dock retained a smaller crew, and just run the tractors,
since he would not have been able to pay Union wages.
Tractor Driver Conyers, whose testimonial recollections
regarding Denkler's remarks at various meetings was
proffered in somewhat disconnected fashion, recalled a
statement by Respondent's president that the firm would
no longer grant sick pay, except for days off due to
hospitalization or job-related injuries. He first placed this
comment during the November 25 meeting; then he
testified it was made on December 6. It could only have
been made, within a relevant context, during Denkler's
December 6th remarks. Drivers Hicks, Sullivan, Powell,
Goode, and Warehouseman Blinn recalled comments of
similar tenor, made during the December 6th meeting. I
so find. One driver - Dent - recalled statements by
Respondent's president that if the Union had gotten in he
would have closed the doors, and that the firm's
profit-sharing plan would have been cut off.
While a witness, President Denkler conceded that he
had "blessed" the 13 nonunion voters. He further
conceded that Respondent's workers had been told about
their prospective raises "approximately" calculated to
match union scale; likewise, he conceded that a reference
had been made to the fact that the firm's management
would have to "tighten [itself] up pretty tight" with
respect to operations, and that Respondent's profits -
because of its prospectively higher payroll - probably
would not permit the payment of a Christmas [money]
bonus for the current year. Finally, Respondent's
president acknowledged his pronouncement that workers
who had to take days off (presumably because of illness)
would have to forfeit pay.
With matters in this posture, I find it unnecessary to
determine whether Hicks, Goode, Greene, Powell, and
Dent correctly recalled President Denkler's remarks. Since
their testimony, generally, corroborates that which Dunne
provided I find his summary - supplemented by that of
Conyers, Sullivan, and Blinn, previously noted -
sufficient for present purposes.
d. Subsequent developments
Thereafter, on Friday, December 9, Respondent's
workers did receive wage raises, covering their pay period
week which had ended December 7; these raises ranged
from $10 per week to $30 per week. According to
President Denkler - whose testimony in this respect I
credit - Respondent's monthly payroll costs were raised
$1,700 thereby. For Christmas 1966, Respondent
distributed turkeys; previously, during 1965's holiday
season, Respondent had distributed Christmas bonuses
which had ranged from $23 to $65 per worker. The
present record - though somewhat skimpy and clouded
by Driver Dent's passing testimony on the point, -- will,
within my view, support a determination that
Respondent's policy regarding sick leave pay was,
however, continued without change
C. Analysis and Conclusions
1. Interference, restraint, and coercion
Basically, General Counsel contends herein that
Respondent's total course of conduct - challenged as
interference, resfraint, and coercion -- destroyed the
conditions pursuant to which the firm's workers were,
supposedly, being given a chance to register their choice,
with regard to representation, through "free and fair"
votes. With matters in this posture, General Counsel
suggests, first, that the vote result should be voided.
Dal-Tex Optical Company, Inc, 137 NLRB 1782, 1786.
Further, General Counsel contends that Respondent's
course of conduct will support a determination that its
failure or refusal to bargain with Complainant Union
upon request was motivated by rejection of the
collective-bargaining principle, Joy Silk Mills, 85 NLRB
1263, enfd. 185 F.2d 732 (C.A.D.C.). Therefore - so the
argument runs - nothing less than a bargaining order can
redress the employee rights at stake, or restore the
situation which would have existed but for Respondent's
unfair labor practices.
Within his brief, Respondent's counsel notes, correctly,
that management's claimed Section 8(a)(1) violations fall
into three temporarily separate categories. These must
now be, severally, considered.
a. President Denkler's informal contacts with
company personnel
(1) Interrogation
Respondent's counsel, within his brief, suggests that
President Denkler reacted to Complainant Union's request
for recognition by seeking merely to determine, through
"informal pre-election conversations" whether
Complainant Union had, really, procured designation
cards from a majority of Respondent's workers. Counsel
contends that Denkler sought contacts with employees for
that purpose solely; that "under all the circumstances" his
challenged poll could not, properly, be considered
calculated to restrain or interfere with Respondent's
workers in their exercise of rights statutorily guaranteed;
that whatever conversational "departures" from a mere
interrogation Respondent's president committed were
permissible, when viewed within their "friendly, informal"
context.
These contentions, however, must be considered
simplistic; with due regard for the complete record, they
fail to persuade This Board has long held, and continues
generally to hold, that:
.any attempt by an employer to ascertain employee
views and sympathies regarding unionism generally
tends to cause fear of reprisal in the mind of the
SILVER FLEET, MOTOR, EXPRESS 883
employee if he replies in favor of unionism and,
therefore, tends to impinge on his Section 7 rights....
Whether a deliberate canvass of worker sentiment,
however, interferes with, restrains or coerces employees
must be determined on the basis of the record as a whole;
inter alia, the time and place of the challenged
interrogation, the personnel involved, the nature and scope
of the information sought, and the employer's known or
declared preferences must be considered. Blue Flash
Express, Inc., 109 NLRB 591. Within the case cited -
which, for present purposes, must be considered a
controlling precedent - the Board noted several
"objective" criteria which it would normally consider,
when called upon to determine whether "under all the
circumstances" particular interrogation reasonably tended
to interfere with, restrain, or coerce workers with respect
to their exercise of statutorily guaranteed rights.
Contrary to Respondent's contention, herein, these
particularized criteria do not establish "formalistic
requirements" with which management representatives
determined to conduct a workers' poll must comply.
Rather, they reflect the Board's effort to define those
determinable manifestations which, when present, will
persuasively dictate a judgment that no proscribed
invasion of workers' rights took place.
Measured by these criteria or standards, President
Denkler's course of conduct, so I find, did not - contrary
to Respondent's contention - meet the test of lawfulness.
First: The record will not sustain a determination that
Denkler's "sole purpose" was to ascertain whether
Complainant Union really represented a majority of
Respondent's workers. He may, naturally, - at the outset
- have considered his mission thus circumscribed.
Credible testimony shows, however, that several workers
who proffered negative responses were vouchsafed
comments which reflected Denkler's approbation; that one
card signer (Clarke) was asked where he had gotten his
card; that several workers who declared that they had
signed were apprised of Denkler's disapproval, or were
queried further regarding their motivation. While
interrogating some workers, Respondent's president - so
I have found - prefaced or followed his questions with
declarations which clearly implied that, should his
listeners maintain silence or proffer untruthful responses,
he had other sources from which the facts could be
determined. These comments, concommitant queries, and
suggestions can hardly be deemed consistent with
Denkler's present protestation that he was conducting a
simple poll; second: Respondent's workers were not even
told for purposes of reassurance - regardless of the facts
herein found - that President Denkler's sole purpose was
to ascertain whether Complainant Union really
represented a majority. Lacking such assurances, the
firm's workers were, clearly, left to surmise that positive
responses, conveivably, could - despite the firm's
so-called "happy company" atmosphere - generate
reprisals; third: As noted, Denkler made no conscious or
sustained attempt to remove possible fears, along this line,
through assurances against reprisal. No more than one
worker was told that his affirmative response, when
questioned, would generate "no hard feelings" so far as
Respondent's president was concerned. Denkler's failure
to proffer such reassurances - so the record shows -
had some manifest results. Five of Complainant Union's
card signers, when questioned directly, were persuaded to
reply negatively; Respondent's president, himself, testified
that one worker questioned was so abashed that he hung
his head and refused to meet his questioner's eye. When
Driver Griggs, who had first denied signing a card, told
Denkler - the following day - that he had really signed
one, he felt impelled to add that nevertheless, he did not
know how he was going to vote. Finally - despite the
fact that President Denkler's canvass may have been
conducted within a context free of flatly declared or
demonstrated bias - those questioned could clearly
deduce that their firm's management feared the
consequence should Complainant Union win
representative status. Such patent demonstrations of
managerial preference, considered with due regard for
concommitant circumstances, call for a determination that
Denkler's polling technique transgressed permissible
limits I so find.
(2) Creating the impression of surveillance
Previously, within this decision, determination has been
made that Denkler, during his poll, told Drivers Curtis,
Griggs, and Powell that he could "find out" whether they
had signed cards. Thereafter, during a conversation with
Driver Conyers, Respondent's president let it be known he
was aware of the fact that Conyers, contrary to his
previously declared intention, had attended a union
meeting. These remarks, I find, were reasonably
calculated to create the impression, within Respondent's
worker complement, that Denkler had covert sources of
information regarding their union activity and sympathies.
(Respondent's president, so I have found, further told
Tractor Driver Hicks, while his other drivers were being
polled, that he [Hicks] had just helped ruin a good
company. This remark, likewise, was reasonably
calculated to convey a suggestion that Hicks' role as
Complainant Union's principal protagonist was known.)
Comments clearly calculated to create an impression that
union activities by company workers have been under
surveillance have consistently been found to constitute
interference, restraint, or coercion of employees, with
respect to their exercise of statutorily protected rights. See
Bourne Company v. N.L.R.B., 332 F.2d 47, 48 (C.A. 2);
N L.R B. v. Lester Brothers, Inc., 301 F.2d 62, 65-66
(C.A. 4); Rosen Sanitary Wiping,Cloth Co., Inc., 154
NLRB 1185, 1188; Ainsworth Manufacturing Company,
131 NLRB 273, 274. And President Denkler's comments
- so I find - did tend to create a proscribed impression
of surveillance, whether or not they were proffered,
consistently with Respondent's contention, during
conversations carried on within a context of friendly
camaraderie.
(3) Claimed threats of reprisal
Within his brief, General Counsel makes much of
Denkler's several conversational declarations that -
should Respondent's workers opt for Union representation
- company management might find itself constrained to
cancel a pending order for new "bobtail" trucks, sell off
its current "bobtail" fleet, seek a smaller terminal, and
continue tractor-trailer operations with a reduced driver
complement. With respect thereto, General Counsel
contends, within his brief, that:
The above statements about the consequences of union
representation went beyond being an expression of
opinion or a prediction of things to come. The
employees were told that union representation would
mean that the Company would be unable to continue in
its plans for expanding the bobtail fleet, that union
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
demands would require the sale of part of the truck
fleet and a corresponding loss of jobs. Even if these
matters were presented in the form of mere predictions
...the emphasis given them by repetition and the failure
to voice balancing factors, such as the obligation to
bargain does not include the obligation to consent,
would necessarily impress on the employees that they
could not hope to gain anything, but stood to lose much
by, choosing the Union . . . . Under the circumstances,
the employees could not view the dire results of
recognition as mere possibilities.
Respondent's counsel, however, would have me conclude
that Denkler's statements - should I find them to have
been made - reflect nothing more than privileged "views,
argument or opinion" within the parameters of protected
free speech, defined within Section 8(c) of the statute.
These sharply divergent contentions present a close
question, with respect to which no facile judgment, within
my view, would be warranted. Both General Counsel and
Respondent's counsel, however - within their respective
briefs - seemingly consider the judgmental problem
involved to require a choice between polarities.
Respondent's counsel defines and discusses it in so-called
"prophecy versus threat" terms; General Counsel would
have me find Denkler's statements, regardless of their
semantic formulation, something more than "mere"
predictions.
Within this Board's thirty-two year history, cases
presented for disposition have required that it consider a
wide - practically infinitely varied - range of statements
charged to managerial representatives or supervisory
personnel confronted with union representation
campaigns, Without a detailed review - which would
necessarily have to compass thousands of cases -
generalization would seem to be warranted, nevertheless,
that these verbal employer reactions have reflected
variations on a theme, proffered to persuade or constrain
employee judgments with respect to a statutorily
designated matter of choice. Time and circumstance may,
sometimes, permit the confident categorization of
challenged statements as so-called "views, argument or
opinion" while other statements, may with equal
confidence, be categorized as threats. Realistically,
however, such labels represent mere semantic designations
for polar concepts designed to mark the limits of a
spectrum of verbal or written communication. More often
than not, challenged statements will fall somewhere within
such a spectrum. For example: They may be "mere"
predictions regarding the shape of things to come, lacking
any thrust calculated to reveal the speaker's point of view
with respect thereto. They may reflect a speaker's
concern, worry, or fear regarding contingencies or possible
developments not realistically within his control. They
may mirror some comparable concern, worry or fear that
future developments may constrain choices, nominally
within the speaker's power, contrary to his basic desires or
preference. They may, finally, reveal a speaker's ready
disposition to take retaliatory or punitive steps patently
consistent with his desire or preference; then, we call them
threats. Whether a given statement or set of statements
may properly be found within the permissible or
proscribed portion of this conceptual spectrum will
frequently depend upon value judgments, with respect to
which articulation may be difficult. Basically, however,
such judgments would seem to require a determination
whether within a given context challenged statements
could reasonably be considered likely to influence a
worker's judgment through their persuasive appeal to
reason, or through their capacity to generate fear.
Would a determination be warranted, then, that
Denkler's so-called "casual" comments regarding the
possible consequences of unionization, herein, merit
proscription? Such a question - particularly when posed
with respect to challenged statements which fall within the
spectrum between mere argumentation proffered to
persuade and clear threats patently calculated to constrain
- calls for refined judgment, with respect to which
reasonable minds may differ.
Considered in totality, the present record - within my
view - precludes a determination that Respondent's
president was voicing "mere"' predictions. Within their
context, Denkler's comments seem to have been proffered,
rather, to reveal his concern, worry or fear that - should
Complainant Union win representative status - his firm's
financial burdens would necessarily be magnified: such a
development, he declared, would necessitate a business
reorganization or retrenchment, with a concomitant
reduction in force. Thus viewed, Denkler's so-called
"casual" statements went beyond prediction;
dispassionately considered - without regard for his
personal freedom from professed hostility, or guile, which
cannot be considered relevant or material in this
connection - they, consistently with General Counsel's
contention , would "necessarily impress" his listeners with
the thought that they could not hope to gain, but "stood
to lose" should Complainant Union be chosen their
bargaining representative.
General Counsel, within his brief, suggests, inter alia,
that Denkler's statements derived such a thrust both from
the emphasis which he gave them through repetition, and
from his failure to qualify them with a further comment
that management's resultant obligation to bargain would
not necessarily signify a concomitant obligation to
consent. Whatever this Board 's final judgment may be,
however, with respect to the propriety of Denkler's course
of conduct, these contentions - within my view -
provide something less than persuasive support for
General Counsel's position. Mere repetition cannot,
surely, transform statements, arguably susceptible of
designation as noncoercive, into comments calculated to
generate fear. Further - while it may be true, generally,
that a firm's statutory obligation to bargain does not,
necessarily, compass a duty to concur with union contract
proposals - the General Counsel's suggestion, that
Respondent's president should have softened the thrust of
his remarks with such a comment, seems singularly
lacking in realism. Despite Respondent' s status as a
relatively new, marginal firm - within a highly
competitive, largely unionized , industry - the General
Counsel would, seemingly, have Respondent's president
"whistle a happy tune" so no one would suspect his
concern. Such a requirement - that management
representatives must , willy-nilly, dissemble to forestall a
conclusion that, otherwise, their declared forebodings
would reasonably tend to generate some comparable fear
within their listeners - demands too much of human
frailty.
True, Respondent's workers had, previously, been told
- some time before Complainant Union's campaign
began - that the bobtail truck fleet was a money loser;
that a greater volume of tractor-trailer business than
Respondent had, thus far, enjoyed would be required to
maintain overall profits; that questions with regard to the
wisdom of reducing or selling off the bobtail truck fleet
were currently being discussed within their firm's
SILVER FLEET, MOTOR EXPRESS 885
managerial hierarchy. President Denkler's conversational
statements now under consideration, however, were
reasonably calculated to convey the thought that
Respondent's previously defined dilemma had acquired a
new dimension. The men knew - so the record shows -
that Denkler's Eastern trip had produced a'substantial
volume of new tractor-trailer business, though they had
not yet been told, presumably, what such expanded
business operations would do for Respondent's profits.
Between November 14 and 29, nevertheless, three workers
were told, substantially, that - regardless of the firm's
demonstrably greater business volume - presumptively
higher costs, stemming from management's prospective
need to concur with Union contract demands, might
dictate a substantial business retrenchment and threaten
job security, President Denkler may not have, knowingly
or deliberately, proffered his statements as threats; well
established decisional doctrine, however, teaches that his
subjective freedom from "mens rea" confers no absolution
herein. Within their total context, I find, his challenged
conversations with Conyers, Clarke, and Griggs, together
with his comparable statement to Driver Sullivan herein
found, possessed a reasonable tendency to constrain,
rather than persuade judgment, through their capacity to
generate fear. Louisiana Manufacturing Company, 152
NLRB 1301, 1303, enfd. 374 F.2d 696, 698-703 (C.A. 8);
Miller-Charles and Company, 146 NLRB 405, 406; see
N.L.R.B. v. Stanton Enterprises, Inc, 351 F.2d 261, 265
(C.A. 4). But see: N.L.R.B. v Morris Novelty Company,
Inc., 378 F.2d 1000, 1002-06 (C.A. 8); N.L.R.B. v.
Brownwood Mfg Company, 363 F.2d 136 (C.A. 5); Texas
Industries, Inc. v. N.L.R.B, 336 F.2d 128 (C.A. 5);
N.L.R.B. v. Transport Clearings, Inc., 311 F.2d 519 (C.A.
5); Warton Drilling Company, Inc, 164 NLRB No. 51;
Wagner Industrial Products Company, Inc., 162 NLRB
No 114; Lord Baltimore Press, 145 NLRB 888 The
matter is, within my view, borderline. The thrust of the
statements challenged can hardly be characterized, within
their context, as overpoweringly coercive. Nevertheless,
within the meaning of the statute, I find them reasonably
calculated to interfere with, restrain and coerce
Respondent's workers, in their exercise of rights
statutorily guaranteed. Compare N.L.R.B v. River Togs,
Inc., 382 F.2d 198, 200-202 (C.A. 2) in this connection.
b. The November 25 speech
General Counsel contends that Denkler's November 25
remarks, considered in context, contained an implied
threat. Within his brief, Respondent's counsel suggests -
however - that Respondent's president, during his
speech, proffered no "new material" designed to threaten
or constrain judgment; Denkler's comment - so the
argument runs - merely reflects a noncoercive
recapitulation of Respondent's financial situation. Counsel
cites President Denkler's references to the so-called
"actual economics" of bobtail fleet operations, and to the
firm's financial condition generally; the thrust of these
comments, he contends, can be evaluated properly only
when they are considered against the background of
Denkler's previously-declared hopes and forebodings,
voiced during the September 1966, meeting before
Complainant Union's campaign began. Respondent
suggests that Denkler's speech, since it purportedly
reviewed the firm's situation dispassionately and
truthfully, should be considered privileged.
Respondent's president, so I find, made no direct
reference to Complainant Union while reviewing his firm's
financial straightened circumstances When considered,
however, within the context provided by his prior "casual"
statements concerning the possible fate of Respondent's
bobtail fleet, Denkler's comment that management's
previously placed order for "three more diesel bobtails"
had been cancelled would - as General Counsel notes -
reasonably be construed as motivated by Complainant
Union's campaign for representative status. Respondent's
president noted that management could not "take a
chance" since it could not "gamble on the long range"
thenceforward; such comments would, so I find,
necessarily strike his listeners as calculated to buttress his
prior suggestion that, with Complainant Union's election
victory conceived as possible. Respondent's financial
well-being, together with the bobtail fleet's fate, was at
hazard. This could, conceivably, serve to explain the
purported recollection of several witnesses, herein rejected,
that Respondent's president, during his November 25
remarks, did specifically recapitulate prior statements
regarding the possible disposal of Respondent's bobtail
trucks. Standing alone, the president's reference to
management's relinquishment of plans for supplementing
the bobtail fleet would probably not merit discussion
herein. Since, however, this reference is found reasonably
calculated to recall - and thus underscore - prior
statements violative of the statute's mandate, this portion
of Denkler's speech must be considered part of his total
course of conduct herein found deserving of proscription.
c. The December 6 meeting
During the December 6 meeting, previously noted,
Respondent's president notified his firm's workers that
wage increases which had been conditionally promised
during their previous September 1966, meeting - before
Complainant Union's organizational campaign began -
would now be granted. This presumptively cheerful news
was, however, balanced with further declarations that
Respondent's higher payroll would require "tighter"
personnel management; that the firm's policy on personal
loans would have to be more restrictive; that future
declines in work would have to be countered with layoffs;
that a conventional Christmas bonus could not be granted;
and, inter alia, that company payments for sick leave
would be restricted. Within his brief, Respondent's counsel
concedes, further, that some remarks "evidently" were
made to the effect that Respondent's management would
probably have found it necessary to sell the firm's bobtail
fleet, had Complainant Union won representative status.
Regarding these developments, General Counsel
contends that - when the December 6 meeting was held
- the November 29 Board-conducted election was
"clearly" subject to invalidation, should timely objections
yet be filed and found meritorious. And the record shows
that Complainant Union did, indeed, file "timely"
objections later that day. General Counsel contends,
therefore, that:
This [December 6] untimely announcement of combined
benefits and threats during the objection period, and so
soon after a bare one-vote majority election in favor of
the Respondent must be viewed as an effort to keep the
support of a majority of the employees in case a second
election was directed by the Board.
Respondent's management - so the argument runs -
thereby interfered with, restrained, and coerced workers
within the meaning of the statute. Ralph Printing and
Lithographing Company, 158 NLRB No. 128, enfd. 379
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. 2d 687 (C.A. 8) cf. Decorel Corporation, 163 NLRB
No. Il; Gal-Tex Hotel Corporation, 154 NLRB 388;
Northwest Engineering Company, 148 NLRB 1136, 1145,
and cases therein cited. Respondent's counsel - though
he concedes that Denkler's challenged pronouncements fell
within the Board 's defined "five day" period following the
representation vote - contends that the firm stands
charged with nothing more than a mere "technical"
violation much to its surprise and consternation.
The present record, considered in totality, provides -
within my view - considerable support for Respondent's
position. True, the Board's Ralph Printing and
Lithographing decision does condemn a Respondent's
decision to confer benefits with "precipitous haste" within
the 5-day period during which objections may be filed
following a representation vote; that case, however, dealt
with challengable employer conduct within I day following
the Board-conducted election. Herein, we find no
comparable haste, from which a possible inference might
be drawn that management's conduct had really been
"undertaken with the express purpose" of maintaining
worker support and guaranteeing a continued majority
vote against union representation, should a second election
be directed, Denkler's testimony - which stands without
contradiction and certainly cannot be considered
inherently lacking in plausibility, - shows, rather, that
Respondent's management had, consciously, sought to
defer planned announcements , with regard to
previously-promised raises and concomitant changes in
working conditions, to comply with "both the spirit and
the letter" of the Board's 5-day rule Management's
failure to do so derived, not from any consciously reached
decision, but merely from Denkler's failure to realize that
- when prescribed periods less than seven days long must
be determined pursuant to Board rule - intermediate
Sundays and [Saturday] holidays may not be counted
Within its Ralph Printing and Lithographing decision, the
Board notes that the factual situation presented was
"essentially the same" as that presented in N L R.B. v.
Exchange Parts Company, 375 U.S. 405, 409; therein the
Supreme Court, had stated that the statute prohibits
conduct immediately favorable to workers "which is
undertaken with the express purpose of impinging upon
their freedom of choice for or against unionization" and is
reasonably calculated to have that result. In this case,
though the November 29' election proceedings had not
really become "final" pursuant to rule when Respondent's
wage increase announcement was made, determination
could hardly be considered warranted that management's
challenged raises were granted with the express purpose of
impinging upon some foreseen choice regarding
unionization, which Respondent's workers might
thereafter be called upon to make. Compare the Eighth
Circuit' s decision in Ralph Printing and Lithographing,
supra , on the Board 's petition for enforcement , in this
connection.
Further, Respondent has, within my view, pursuasively
shown that management's decision to grant specific
benefits - viz, the raises - was governed by factors
other than the possible pendency of a second election.
Compare Gal-Hex Hotel Corporation, supra; Northwest
Engineering Company, supra, Glosser Bros., Inc., 120
NLRB 965, 966-967. Such raises had been promised in
September 1966, before Complainant Union's campaign
began, conditioned upon Respondent's profitable business
operations during the 2 succeeding months; Respondent's
president did testify, without challenge or contradiction,
that his firm's overall business operations, within the
2-month October-November period, had produced profits
sufficient to justify the promised raises With matters in
this posture, Respondent's workers could, reasonably,
view their raises as derived from Denkler's precampaign
commitment. Compare American Sanitary Products Co ,
157 NLRB 473, 474; cf General Industries Electronics
Company, 152 NLRB 1029, 1033. Finally, determination
would seem to be warranted that Denkler's December 6
pronouncements, taken as a whole, referred to raise
benefits balanced, in some degree, with detriments.
Though a qualitative judgment - that management's plan
to run a somewhat "tighter" shop precisely
counter-balanced those benefits which Respondent
proposed to confer through raises - would certainly not
be warranted, Denkler's remarks, considered in totality,
cannot really be considered calculated to display
management's benevolent paternalism, sufficiently to
constrain or subvert Respondent's workers, with respect to
some possible choice regarding unionization, which they
might prospectively be required to make.
President Denkler's conceded declaration that
Respondent might have found it necessary to reduce the
scope of its business operations or sell the bobtail fleet,
had Complainant Union won representative status, could
conceivably be found - consistently with my previous
determination herein - possessed of some
statutorily-proscribed thrust. Within its midmorning
December 6 context, however, his comment - when made
- was, clearly, conceived as purely retrospective. Since
his comparable statements previously made have been
found violative of the statute, any further determination,
with respect to his postelection declaration, would, within
my view, be surplusage
2. Refusal to bargain
a. The appropriate unit
General Counsel's contention, regarding the scope of
the appropriate unit as to which Respondent stands
charged with a refusal to bargain, has previously been
noted. Respondent has conceded the appropriateness of
the bargaining unit thus defined.
When the hearing began, General Counsel's
representative and Respondent's counsel reserved, for
further testimonial consideration, questions regarding the
propriety of including warehouse men Harry Luck and
Francis White within the bargaining unit thus defined;
there was a suggestion that their possible supervisory
status would be litigated The record shows, however, that
Complainant Union had solicited and procured a
designation card from one, Francis White, in support of
its representation claim; that Respondent, without any
Union objection, had listed both men when it compiled a
list of eligible voters for the November 29 representation
election; and that both were finally permitted to vote
therein without challenge. Both men "handle" freight.
With matters in this posture, there can be no doubt that
Luck and White - despite their seemingly conceded
status as so-called "dock foremen" or dispatchers - are
properly compassed within the defined bargaining unit
which General Counsel has proffered as appropriate,
herein. And I so find.
Upon the record, I find that the bargaining unit defined
within General Counsel's Complaint constituted -
throughout the period with which this case is concerned -
and presently constitutes a unit appropriate for
collective-bargaining purposes
SILVER FLEET, MOTOR EXPRESS 887
b. Complainant Union's majority status
By November 14, when Complainant Union 's demand
for recognition and bargaining was received by
Respondents herein, seventeen of Respondents ' employees
within a bargaining unit which compassed 25 workers, had
signed Complainant Union's designation card . Each card
signer, summoned to testify herein, verified his own card.
One card , so' the record shows, had been signed on
September 27; another had been signed October 5. During
the hearing , Respondent ' s counsel suggested that these
cards should be considered stale , with relation to
Complainant Union's November 14 bargaining demand.
The contention has not , however, been pressed . Since the
cards were , clearly, signed during Complainant Union's
then current organizational campaign , Respondent's
contention , were it currently being maintained, would
merit rejection . N.L.R.B . v. Greenfield Components
Corp., 317 F.2d 85 (C.A 1); Knickerbocker Plastic Co.,
Inc., 104 NLRB 514, 529-530, enfd . 218 F.2d 917 (C.A.
9). I so find.
Respondent contends , however, that Complainant
Union's authorization cards should - because of their
particular language - be considered complete nullities.
Following language which purportedly commits card
signers to designate Complainant Union as their
collective -bargaining representative for various purposes,
the card contains a sentence , "This does not obligate me
in any way ," set forth in capitalized , large-size type.
Respondent suggests that, taken at face value, this
sentence effectively withdraws whatever authority the
cards' antecedent text may have conferred , thus rendering
such cards meaningless.
This contention - though perhaps superficially
plausible - merits rejection . Counsel is mistaken when he
states, within his brief, that no "presumption of validity"
arises in favor of a card phrased like those under
consideration . Generally, within the field of contract law,
documents susceptible of construction which will make
them valid , legal, effective , and enforceable will be given
such constructions , despite their ambiguity or lack of
certainty . See "Contracts ," 17 Am. Jur. 2d ., Sec. 254.
When parties negotiate contracts , it is to be presumed that
their intention is to make effective , rather than nugatory,
agreements ; therefore , unless such constructions are
wholly negatived by the language used , agreements should
be construed so as to render them effective , and their
obligations binding . Further, fundamental rules of
contract construction require that the "entire contract,"
with each and all of its parts and provisions , must be
given meaning , force and effect, if that can consistently
and reasonably be done. Ibid., Sec. 259. A construction
will not be given one part of a contract which will annul
another part , unless such a result is fairly inescapable.
Similar canons of construction would seem to be relevant
within the present context . Certainly , no presumption
could rationally be considered warranted that
Complainant Union herein - when its representatives
drafted the card , with which we are now concerned, for
use during organizational campaigns - meant to draft a
null document Nor can we presume that they meant to
solicit signatures reflective of no commitment whatsoever.
Further, determination would seem to be warranted -
absent testimony logically supportive of some contrary
conclusion - that Complainant Union ' s card signers in
Respondent ' s hire must have considered their signatures
meaningful . The cards , then , must be considered reflective
of some commitment . We need consider , merely, whether
the cards - rationally construed - do, properly,
designate the Complainant Union herein their signers'
bargaining representative.
With due regard for relevant canons of construction,
which have been previously- noted, such a determination
would seem warranted. The card's text -- so far as its
positive language is concerned -- plainly authorizes
Complainant Union to represent signers, for
collective-bargaining purposes; no concomitant or
secondary purpose is mentioned. Driver Dunne, the only
witness whom Respondent's counsel queried concerning
any purported card ambiguities, finally volunteered that
he understood the final sentence, "This does not obligate
me in any way," to mean, merely, that he would not be
required to pay an initiation fee unless Complainant
Union permitted him to join. Logically - though the
record contains no testimonial suggestion that
Respondents' workers so construed Complainant Union's
card - the sentence now under consideration would,
likewise, seem calculated to suggest that card signers
would not be -considered candidates for membership,
merely by virtue of the card's execution, and that they
would not be deemed "obligated" to take a membership
oath, or perfect their membership status. Nothing in the
record, therefore, would warrant a determination that
Complainant Union's card signers were either confused or
misled by the language now under consideration. To the
extent that Respondents may have tried to suggest that
they were, such a contention is rejected.
The Board has held - with respect to language of
similar purport when proffered verbally by card solicitors
- that designations procured following such
representations, will not be considered vitiated thereby.
Respondents' contention that, for this reason,
Complainant Union's designation cards should be
considered "nullities on their faces" must, therefore, be
declared deficient in merit. See Bishop and Malco, 159
NLRB No. 106.
With this determination made, no viable question
regarding the significance of Complainant Union's specific
card language remains. Some further comment, however,
would seem warranted. The fact that - despite 32 years
devoted to the statute's effectuation - this Board may
still be required to consider, "construe," or explain away
challenged or doubtful language' in union designation
cards must surely be reckoned somewhat anomalous, to
say the least; such problems, one' might think, could have
been resolved, more or less definitely, long since. Yet
recently - when required to determine the significance of
some designation cards which contained a concededly
invalid restriction - the Court of Appeals for the First
Circuit felt constrained to "scrutinize the record" carefully
to determine what effect the restrictive clause may have
had. As with this case, no determinable effect was found;
the contention of respondent therein that the challenged
clause vitiated the cards was, therefore, rejected. N L R. B.
v. Southbridge Sheet Metal Works, 380 F.2d 851, 855
(C.A. 1). The court felt compelled to declare, nevertheless,
that:
We cannot emphasize too strongly our disapproval of
such clauses, and we express our hope that the Board
will make all feasible efforts to bring about the
elimination of such unwarranted representations on
authorization cards. It seems to us that so long as the
use of cards is countenanced as an alternative to an
election, there is the corresponding obligation, on the
part of the Board and the union , to make the cards as
straightforward and as little susceptible to
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
misinterpretation as possible. [Emphasis supplied.]
In this connection, further, see N.L R B. v. Freeport
Marble & Tile Co., Inc. 367 F.2d 371 (C.A. 1);
International Union of Electrical, Radio and Machine
Workers, AFL-CIO v. N. L. R. B. (S N.C. Manufacturing
Company, Inc.) 352 F.2d 361, 363-364 (C.AD.C.)
(Concurring opinion of Burger, J.); N.L.R.B. v. S.E.
Nichols Company, 380 F.2d 438, 442-443 (C.A. 2). When,
following judicial review, proffered cards are found
deficient in clarity for whatever reason - so that they
cannot be considered clear manifestations of their signers
presumed intention to designate a particular union their
bargaining representative - the union's organizational
campaign is set at naught; workers' expectations with
respect to possible representation, previously roused, are
thwarted; shop relationships may prove to have been
exacerbated bootlessly. Should the challenged cards,
however, finally be found sufficiently clear to warrant
,consideration as so-called "clear manifestations" with
respect to their signers' purpose, whatever time and study
may have been required to reach and declare such a
conclusion would still have delayed and complicated the
judgmental process. Whether a Board regulation -
drafted to define what union designation cards may or
may not contain - might prove reasonably calculated to
minimize such delay or complication, remains a question
beyond my competence. Complainant Union herein,
however, would - within my view - be well advised to
consider whether something should be done with their
authorization cards, to make them clear, straightforward
and less vulnerable to claims ` that they invite
misinterpretation.
Respondent contends, further, that Complainant
Union's principal protagonist, Larry Hicks, was told by
Organizer Maheras - and, himself, represented to his
fellow workers - that the cards, when signed, would be
used solely for the purpose of procuring a representation
election. Within his brief, General Counsel does concede
that Hicks - during cross-examination - first testified
that Maheras, when he turned over Complainant Union's
cards for distribution, said that, should a certain
percentage of these cards be signed, there would be an
election wherein Respondent's workers would be given a
chance to choose or reject Union representation. During
General Counsel's redirect examination, however, Hicks
further declared, following several leading questions, that
Maheras had told him the cards would be relied upon to
procure an election or negotiations with Respondents
herein. This record - considered without regard to Hicks'
testimony in response to General Counsel's questions on
redirect which I cannot conscientiously find persuasive -
presents two questions: (1) Should Hicks' own designation
card, which he presumptively signed pursuant to Maheras'
representation be disregarded; and (2) should the balance
of Complainant Union's cards be considered vitiated as
proof of that organization's majority status because some
"misrepresentation" may have persuaded Respondent's
workers to sign? Upon the present record both questions,
within my view, deserve negative responses Hicks may
have, indeed, been told that - should Complainant
Union's cards be signed by some representative
complement - there would be a representation vote.
Since the credible record, however, will not support a
determination that he was told to solicit card signatures
solely with such a development in mind, his card cannot
be found vitiated by the circumstances or representations
which presumptively motivated its execution. N.L.R.B. v.
Cumberland Shoe Corporation, 144 NLRB 679, enfd. 351
F.2d 917 (C.A. 6). Hicks' card must be considered a valid
designation. (Whether a witness testifies, finally, that he
was told his signed card or those signed by others would
be used "solely" to procure a Board-conducted vote - or,
alternatively, that procuring such a vote was merely "a"
purpose for which his card might be used - may,
sometimes, depend more upon the skill which able counsel
display in framing and presenting questions - or the
testifier's readiness to respond consistently with his
questioner's presumed desire - than upon truly
nonprompted recollection. Compare A. J. Krajewski
Manufacturing Company, Inc., (Cases 1-CA-5666,
1-RC-9085) TXD, fn. 5. Relevant Board decisions,
however, clearly confirm a principle of case law, binding
upon this trier of fact, that when workers have been
solicited to sign so-called "single purpose" cards which
purport to designate a labor organization their bargaining
representative testimony sufficient to support a conclusion
that solicited workers were, nevertheless, requested to sign
cards "only" to procure an election will preclude any
contention that such cards may be considered a clear
manifestation of their signers' purpose forthrightly to
designate a bargaining representative; testimony which will
not warrant a determination that concerned workers were
solicited "solely" for election purposes will carry no such
preclusionary consequences. See Dayco Corporation v.
N.L.R.B., 382 F.2d 577, 580-583 (C.A. 6), and cases
therein cited. Some determination must therefore be
reached - when triers of fact are confronted with such
cases - with respect to the nature and thrust of the
particular representations which campaign solicitors may
have made to win card signatures. And when the
transcript which must be studied in that connection
reflects a witness' testimonial concurrence with leading
questions - from whatever source - reliable conclusions
can only be bottomed upon those clues'which the balance
of the record may, hopefully, provide suggestive of his
nonprompted memory See Yazoo Valley Electric Power
Association, 163 NLRB No. 106 (TXD In. 13); Compare
Bryant Chucking Grinder Co., 160 NLRB No. 125 (fn. 2).
Since Hicks, during cross-examination, did not - himself
- testify, when confronted with non-leading questions,
that he was misleadingly told Complainant Union's
single-purpose designation cards would "only" be used to
support a representation petition, his card's efficacy for its
declared purpose cannot be considered nullified.) Should a
contrary determination - concerning Hicks' card - be
considered warranted, the result herein would not, in any
event, be affected; even without Hicks' card, Complainant
Union has proffered a sufficient number of 'cards -
herein found valid - to establish a majority status.
Regardless of what Hicks may have been told by
Complainant Union's organizer, Respondent's contention
- within its brief - that he, subsequently, represented to
his fellow workers that Complainant Union's cards were
to be used solely for the purpose of procuring an election
must be rejected. He was questioned regarding his
solicitation of no more than eight fellow workers. With
respect to four, he was asked whether he had repeated
Maheras' comment and noted his denial; with respect to
three, he testified merely that he "might have" repeated
whatever he was told, but could not recall precisely what
he said. Tractor Driver Cahill was - so Hicks recalled -
told what Maheras had said Complainant Union's
authorization card would be used for; since the record -
specifically Hicks' testimony - will not warrant a
derivative determination that he was told the cards would
SILVER FLEET, MOTOR EXPRESS 889
be used "only" for the purpose of procuring a
Board-conducted vote, the tractor driver's card must
likewise be considered a valid designation. I so find.
The matter, therefore, stands thus- The record is
completely silent regarding the representations made to
procure eight cards. Hicks' own card has for reasons
previously noted - been found a valid designation. His
testimony regarding the solicitation of four cards - which
stands without challenge or contradiction - would justify
a forthright determination that no representations
whatever, reasonably calculated to vitiate the cards' stated
purport, were made With respect to Complainant Union's
four additional cards, the record will merely warrant a
conclusion that representations "might have" been made,
or that - in one case - representations were made,
which cannot, consistently with current Board decisional
doctrine, be deemed sufficient to destroy their significance
as valid bargaining representative designations.
With matters in this posture, then, determination seems
warranted that by November 14th - when its demand for
recognition and bargaining was received by Respondent
herein - Complainant Union had been designated and
selected by a majority of Respondent's workers, within the
bargaining unit previously described, for
collective -bargaining purposes I so conclude and find.
However, the next question - whether, with due regard
for subsequent developments, Complainant Union may
presently be permitted to claim the right to be recognized
as the exclusive representative of Respondent's workers
within the described unit pursuant to Section 9(a) of the
statute - must now be considered
c. Respondent 's claim of goodfaith doubt
Within his brief, Respondent ' s counsel - when dealing
with General Counsel ' s 8(a)(5) contentions - suggests,
first, that Complainant Union ' s demand for recognition
and bargaining cannot have been "seriously" proffered.
This contention , counsel bottoms upon Complainant
Union ' s failure to do more than dispatch its November 10
letter, since its petition for certification was filed
thereafter , presumptively to coincide with Respondent's
receipt of the letter in question , counsel suggests that.
This fact alone appears to raise a strong inference that
the Union did not seriously assert its demand to
bargain, but rather looked upon it as a showing upon
which to base its petition for an election Obviously, the
Union had decided to attempt proof of a majority by
election even before the Respondent had had an
opportunity to reply to the Union ' s demand for
recognition
Such a deduction - even conceding , arguendo , that it
might, realistically , be warranted - cannot, however,
provide Respondent herein with defenses Currently
well-settled decisional doctrine teaches us that requests for
recognition are continuing requests Burton-Dixie
Corporation , 103 NLRB 880, 881-882 And recipient
employers cannot be considered privileged to refuse such
requests because of subsequent union conduct . Cf. Skyline
Homes, Inc. v. N L.R B, 323 F.2d 642, 647, (C A. 5).
More particularly , this Board has held that, when a union
files a representation petition, such action will not, itself,
suspend the concerned employer's duty to bargain; there
must be some other ground shown upon which his claimed
good-faith doubt of the petitioner union ' s majority status
may persuasively be rested Master Transmission
Rebuilding Corporation , 155 NLRB 364, 367-368, Irving
Air Chute Company, Inc, Marathon Division 149 NLRB
627, 628 When petitions for certification are filed,
therefore, they cannot be considered, per se, waivers or
relinquishments of the petitioner union's right to proceed,
subsequently , with unfair labor practice charges.
Some determination on the merits must , therefore, be
made with respect to General Counsel's final contention
that Respondent ' s failure to proffer recognition and
commence negotiations forthwith - when confronted with
Complainant Union's demand letter - derived from
nothing more than purported doubts, proffered in bad
faith, regarding that organization ' s majority status
General Counsel, clearly, must bear the burden of proof
herein with respect to his contention that Respondent's
course of conduct affirmatively reflects bad faith. John P
Serps, Inc, 155 NLRB 99, 100-101. No contrary
contention has been suggested. Within his brief, Company
counsel seeks to shortcut General Counsel ' s contention in
this regard ; he suggests that regardless of testimonial
proffers which General Counsel might wish to make
supportive of his contention that Respondent's
management lacked good faith - the firm ' s president
really had sufficient grounds for his so-called "well
founded belief" that Complainant Union lacked majority
status. Specifically, counsel presently relies upon Denkler's
testimony that 13 of Respondent's 25 workers - within
the bargaining unit found appropriate herein - had told
him, when questioned, that they were not designation card
signers.
Previously , within this decision , reference has been
made to my determination that this figure necessarily
reflects forthright denials by eight workers who, so far as
the record shows, had not signed cards, plus false denials
by five of Respondent's seventeen workers who had,
really, signed. With all respect, counsel ' s reliance upon the
claimed "genuineness " marking Denkler's belief , together
with his contention that such belief derived from
"substantial" grounds, must be rejected First, some
reference should be made to the fact that Denkler's
purported foundation for belief - namely, his poll - had
been significantly undercut before 24 hours passed. By the
morning of November 15th - when Driver Griggs told
Respondent ' s president that he had lied, before, and that
he had in fact signed a card - Denkler knew that at least
13 of Respondent ' s workers had designated Complainant
Union their bargaining representative. Eleven of these
workers, so I have found, had previously told Denkler so
From the whole record, his knowledge with respect to
Hicks' status as Respondent's 12th union supporter may
be deduced When Griggs proffered his confession,
whatever basis Denkler might have had, arguably, for his
so-called "genuine" belief with respect to Complainant
Union' s minority status, was necessarily dissipated See
American Sanitary Products Co v. N L.R.B, 382 F.2d 53
(C.A 10), enfg. 157 NLRB 473, in this connection
Respondent's counsel may, conceivably, wish to argue
that, since Driver Griggs suggested a lack of certainty
regarding his prospective vote with respect to
representation, some justification for Denkler's purported
"belief' can be claimed. Considered in totality, however,
the present record provides no persuasive support for
counsel's contention regarding the soundness of Denkler's
belief, or the credibility of his claims with respect thereto
Respondent's president, himself, testified that several firm
workers - when questioned - hesitated, replied only
when prompted, or displayed reluctance when required to
declare themselves union supporters ; these reactions,
reconsidered with due regard for Griggs' subsequent
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
confession, surely would have given any reasonable man
some ground for doubt that his "poll" had really
produced truthful replies. Within such a context, certainly,
Respondent can hardly now contend, persuasively, that -
despite Griggs' confession of prior misrepresentation -
President Denkler's professed belief, with respect to his
survey's reliability, was-still well founded.
In any event, Respondent cannot - so I find
legitimately claim "good-faith" doubt with regard to
Complainant Union's majority status when the record
reveals that the data which had purportedly generated that
doubt had been derived from coercive interrogation, herein
found statutorily proscribed. Madison Brass Works v.
NLRB , 381 F 2d 854 (C.A. 7); The Gem City
Mattress Manufacturing Co., 136 NLRB 1317, 1325,
1328, 1330-31, compare American Sanitary Products Co
v. N L R B, 382 F.2d 53 (C.A. 10), enfg. 157 NLRB 473.
Denkler, really, may have sought to follow his labor
relations consultant's advice while conducting his survey;
since he did not, however, surround his questions with
those "measures of safety" which the Board deems
necessary to deprive them of coercive thrust, Respondent
cannot now claim that his resultant "belief' regarding
Complainant Union's lack of majority status merits
characterization as well founded
This rejection of Respondent's position, however,
cannot - alone - be deemed dispositive. The burden of
proof - with respect to company management's
"bad-faith" refusal to bargain - remains with General
Counsel. We must, therefore, consider his contention that
Respondent's course of conduct, viewed in totality,
positively reflects a rejection of the collective-bargaining
principle, or Denkler's purpose to use whatever time
might remain before the proposed representation vote to
subvert Complainant Union's majority support. Joy Silk
Mills, 85 NLRB 1263, enfd. 185 F.2d (C A.D C.); cf.
N L.R B. v. Cumberland Shoe Corp, 351 F.2d 917,
920-921 (C.A. 6). Should such a determination be found
warranted, this Board will then "infer" therefrom the
requisite bad-faith motivation for Respondent's refusal to
bargain
Crucial determinations - within this field of
controversy - cannot, be facilely reached. Aaron
Brothers Company of California, 158 NLRB No 108
Within the cited case, this Board has noted that.
Whether an employer is acting in good or bad faith in
questioning the union's majority is a determination
which of necessity must be made in the light of all the
relevant facts of the case, including any unlawful
conduct of the employer, the sequence of events, and
the time lapse between the refusal and the unlawful
conduct. Where a company has engaged in substantial
unfair labor practices calculated to dissipate union
support, the Board, with the Courts' approval, has
concluded that employer insistence on an election was
not motivated by a good-faith doubt of the union's
majority, but rather by a rejection of the
collective-bargaining principle or by a desire to gain
time within which to undermine the union. However,
this does not mean that any employer conduct found
violative of Section 8(a)(1) of the Act, regardless of its
nature or gravity, will necessarily support a
refusal-to-bargain finding. For instance, where an
employer's unfair labor practices are not of such a
character as to reflect a purpose to evade an obligation
to bargain, the Board will not draw an inference of bad
faith.
Though the Board's decision, quoted, requires triers of
fact to weigh those "relevant facts" which every case
presents, no calculus of value, formulated to facilitate this
judgmental process, has been provided Decisions in
comparable cases - published since Aaron Brothers thus
restated the governing principle merely provide
suggestive examplars; they contain no defined guide line
for judgment Since each case, therefore, seemingly
present sui generis problems regarding the dtermmation of
any respondent firm's challenged motivation, President
Denkler's conduct can only be weighed and measured with
reference to concededly general standards
Viewed in context, the course of conduct with which
Respondent has been charged, herein, can hardly be
considered literally revelatory of management's purpose to
reject a duty to bargain, realistically dissected, Denkler's
survey, together with his subsequent conduct, seems to
reflect - rather - his concern regarding possible
consequences, should Respondent be confronted with
certain foreseeable demands during negotiations which he
expected would follow Complainant Union's possible
election victory Nor, within my view, can it be said
with fidelity to fact - that Respondent's president,
consciously, commenced a course of conduct deliberately
calculated to subvert Complainant Union's majority
support. Nothing more than some "constructive" rejection
of the collective-bargaining principle - derived from the
legal doctrine that men must necessarily intend those
consequences of their conduct which may reasonably be
foreseen - could conceivably be found herein.
When General Counsel, within his brief, cites Joy Silk
Mills, contending that, within the doctrine of that case,
Respondent' s management "refused to bargain" with
Complainant Union herein, Board judgment with respect
to the correctness of his position obviously requires,
mediately, some determination with the respect to
management's presumptive "motive" for challenged
conduct Previously, within this decision, certain conduct
chargeable primarily to Respondent's president has been
found violative of the statute; that determination, clearly,
derived from a factual conclusion, merely, that President
Denkler's course of conduct had a so-called "reasonable
tendency" to produce designated effects statutorily
proscribed, whatever his personal, subjective, motivation
may have been. Now, however, General Counsel's further
contention that Respondent's management, thereby,
constructively refused to bargain, requires a determination
with respect to this previously passed-over matter.
Specifically it calls for some "inference" regarding
Respondent's "real purpose" for withholding recognition,
purportedly bottomed upon Denkler's participation in
conduct found violative of the statute regardless of
motivation Such inferences regarding management's real
purpose for challenged conduct so Aaron Brothers,
together with comparable cases, teaches may not be
lightly drawn. When Respondent firms have been found
guilty of certain 8(a)(1) violations - reasonably subject to
characterization as "serious , substantial and pervasive"
practices - then, but only then, will this Board infer that
their "real purpose" compassed a rejection of the
collective -bargaining principle, or that their statutorily
proscribed conduct derived from a desire to gain time
within which to undermine the labor organization
concerned and dissipate its majority I T T.
Semi-Conductors, Inc., 165 NLRB No. 98, Aaron
Brothers , supra; cf. N.L R.B v. Flomatic Corporation,
347 F 2d 74, 77-79 (C.A. 2), cited with approval in
Hercules Packing Corporation, 163 NLRB No 35. The
SILVER FLEET, MOTOR EXPRESS
quintessential inference must, in short, be clearly
compelled.
This case, within my view, presents no congeries of
relevant fact which clearly compels the necessary
conclusion. Nothing in the present record warrants a
determination that Respondent's management planned or
pursued a deliberate, pervasive, antiunion campaign Save
for President Denkler's survey, and November 25 speech,
his worker contacts during which Complainant Union's
campaign and possible consequences were discussed -
were, so far as the record shows, casual rather than
programmed. And his poll, though conducted without
those previously-designated verbal safeguards which the
Board has heretofore required, when potentially coercive
interrogation is pursued, seems to have been conducted
without them through negligence or lack of knowledge,
rather than through design Further, President Denkler's
course of conduct, qualitatively considered, can hardly be
deemed "gross and flagrant" behavior, though violative of
statutory standards No forthright personally directed
threats of discharge, calculated to forestall or reverse
Complainant Union's campaign success, were made; nor
were Respondent's workers "importuned, privately and
under patently coercive circumstances" to vote against
unionization Compare The Colson Corp. v. N.L.R B,
347 F 2d 128 (C A 8), N.L R B v. Ca!darera, et al., 209
F.2d 265 (C.A. 8) Respondent's president made no
promise of benefit which had not previously been made
known to concerned workers, some time before his receipt
of Complainant Union's recognition letter and the
Regional Office's practically concurrent notice relative to
Complainant Union's petition See N L.R B v. Philamon
Laboratories, Inc, 298 F.2d 176 (C.A. 2), N L.R B v.
Delight Bakery Inc , 353 F 2d 344 (C.A.6). So far as the
record shows , indeed, he did not even repeat or mention
his September reference to possible raises. And Denkler's
declared forebodings with respect to possible
retrenchment , should Respondent find itself constrained to
accept Complainant Union's standard Los Angeles
contract - though found violative of the statute -
reflected no barefaced threat, his statements were clearly
bottomed upon "real" business circumstances, previously
discussed freely by management, which Respondent's
workers well knew.
With matters in this posture , no determination would
be warranted, within my view, that Respondent's course of
conduct, herein found violative of the statute, was
sufficiently pervasive or gross to reveal "bad faith " within
the meaning of relevant Board case law. The present
record - so I find will not, therefore, sustain a
conclusion that Respondent ' s management, through its
failure to grant recognition forthwith and bargain
collectively when it received Complainant Union 's demand
letter, refused to bargain
d. Respondent' s unilateral changes
Within the Complaint, Respondent is furhter charged
with a refusal to bargain collectively in good faith with
Complainant Union herein, because it granted various
raises after December 5, and thereafter discontinued
monetary Christmas bonuses Previously, within this
decision, my determination has been noted that
Respondent's course of conduct, with respect thereto, did
not interfere with, restrain, or coerce employees, within
the meaning of the statute. Since I have found, now, that
management's prior course of conduct, considered in
totality, reflects no constructive refusal to bargain in good
891
faith, no determination would be warranted that
Respondent's post election modification of wages, fringe
benefits or conditions of work constituted a separately
cognizable 8(a)(5) violation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
Certain aspects of Respondent's course of conduct, set
forth in section III, above - since they occurred in
connection with the firm's business operations described in
section I, above - had, and continue to have, a close,
intimate , and substantial relation to trade, traffic, and
commerce among the several States. Absent correction
such conduct - to the extent that it has been found
violative of the statute - would tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce
V THE REMEDY
Since I have found that Respondent did engage and
continues to engage in certain unfair labor practices, I will
recommend that it cease and desist therefrom, and take
certain affirmative action, including the posting of
appropriate notices, designed to effectuate the policies of
the Act, as amended.
Within his brief, General Counsel contends that - with
due regard for those "numerous instances of violations"
found under Section 8(a)(1) herein - nothing less than a
bargaining order can adequately restore the situation
which would have existed but for Respondent's unfair
labor practices This suggestion has precedential support.
Wausau Steel Corporation, 160 NLRB 635, enfd. 377
F.2d 369 (C.A. 7). Within the cited case, the Board,
adopting the language of Trial Examiner Reel, noted that
Moreover, the Company having foreclosed by illegal
conduct the customary means of resolving majority, the
proof of majority status may be made by cards, and in
the light of such proof a bargaining order is appropriate
to restore the status existing prior to the violation of
Section 8(a)(1), even assuming arguendo that the record
did not warrant a finding of unlawful refusal to bargain.
[Emphasis supplied ]
General Counsel, herein, does not - specifically -
request a bargaining order bottomed solely upon 8(a)(1)
violations found. Such a request, however, seems clearly
implied within his brief. And, certainly, questions
regarding a bargaining order's possible propriety "even
assuming arguendo that the record [does] not warrant a
finding of unlawful refusal to bargain" must be considered
posed by the present record, since "the relation of remedy
to policy is peculiarily a matter for administrative
competence" this Board, must necessarily determine -
within each case - what remedies may be required to
effectuate statutory policies. Fibreboard Paper Products
Corp. v N.L R B, 379 U S. 203, 216; Phelps Dodge
Corp. v. N L R B., 313 U.S 177, 194 Finally, pursuant
to this Trial Examiner's suggestion - made during the
hearing - that such a question could, conceivably, be
presented, Respondent's counsel has, within his brief,
considered and discussed the matter.
Bargaining orders formulated to remedy 8(a)(1)
violations cannot be considered novel. When promulgated,
such orders were, first, based upon determinations that
particular Respondent firms had engaged in unfair labor
practices aimed at destroying the Union's majority and
892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disclosing some "disposition to evade" their obligation to
bargain Western Aluminum of Oregon Incorporated, et
al, 144 NLRB 1191, 1192. Subsequently, the Board's
rationale for such orders was somewhat modified.
Northwest Engineeering Company, 158 NLRB 624,
629-630,, cf Bannon Mills , Inc , 146 NLRB 611, 613,
Flomatic Corporation, 147 NLRB 1304, 1307 Within the
case first cited, the Board noted that
In the exercise of its remedial powers, the Board is
required to restore a situation which calls for redress as
nearly as possible to that which would have obtained,
but for the unfair labor practices involved. Applying
this principle, the Board has in the past ordered an
employer to bargain with a union where the employer's
unfair labor practices caused the dissipation of a union's
majority, even in the absence of a finding or an
allegation that the employer refused to bargain with the
union in violation of Section 8(a)(5) of the Act. [Case
cited.] We deem such a remedy appropriate in the
present case [Cases cited.] The record shows and we
have found, that, prior to the unfair labor practices here
involved, the Union represented a majority of
Respondent's employees. If, in these circumstances, the
Union had retained its majority status and had
requested bargaining, it would manifestly be
Respondent's duty to bargain with the Union as the
representative of its employees However, as previously
stated, Respondent embarked upon a course of action,
involving serious violations of the Act, which resulted in
the dissipation of the Union's majority and the
destruction of the conditions for a fair election in which
the Union could have demonstrated that majority To
require the union to submit to another election under
these circumstances would be to permit Respondent to
profit from its own unlawful conduct at the expense of
the Union and the majority of Respondent's employees
Accordingly, we find that only an order requiring
Respondent to bargain with the Union can restore as
nearly as possible the situation which would have
obtained but for Respondent's unfair labor practices
and thereby effectuate the policies of the Act
[Emphasis supplied.]
Justification for requiring respondent firms to bargain -
within cases like the present - may be derived, therefore,
from a conclusion that this declared "objective" standard
has been satisfied; determinations need no longer be made
that a respondent's course of conduct discloses a
subjective "disposition to evade" his bargaining duty
United Steelworkers of America, AFL-CIO v. N L R.B,
376 F.2d 770 (C.A D C) enfg. Northwest Engineering
Co , supra But see J C Penney Company, Inc. v
N L R B , 384 F.2d 479, 485-487 (C A 10), enfg. as
modified 160 NLRB No 26 The Board thus avoids
whatever "ambiguity, if not contradiction" reasoned
thought could, conceivably, find in determinations that
particular respondents intended to evade their duty to
bargain, following hard upon conclusions that no unlawful
refusal to bargain had been proven.
Respondent herein - therefore - may properly be
required to bargain, should a determination be found
warranted that President Denkler's course of conduct
compassed some "serious" statutory violations, which
dissipated Complainant Union's majority and destroyed
those conditions which the Board deems requisite for a
fair representation vote.
The present record, within my view, leaves no
substantial room for doubt that, following closely upon
certain statements and conduct chargeable to
Respondent's president, which have been herein found
statutorily proscribed, Complainant Union did lose its
majority status Though no post hoc ergo propter hoc
rationale could, without more, really be considered
dispositive herein, the presence of a causal relationship
between Denkler's course of conduct and Complainant
Union's subsequent failure to win representative status
seems patent. When President Denkler conducted his
survey, five of seventeen workers who had signed
Complainant Union's designation cards withheld
information regarding their prior action from
Respondent's president, or sought to denigrate its
significance The Board-conducted vote, when held,
revealed that Complainant Union had, finally, lost five
presumptive supporters This numerical coincidence, of
course, may have been purely fortuitous, still, the real
likelihood that those workers who, when questioned, felt
constrained to deny their signatures were the men who,
subsequently, recorded "No" votes cannot be disregarded
Nor can it be doubted that - so far as November 29
representation vote was concerned - the course of
conduct chargeable to Respondent's president effectively
destroyed those "laboratory conditions" which
dispassionate judgment would deem a condition precedent
for any free and fair choice.
Whether President Denkler's conduct, however,
possessed sufficient coercive thrust to destroy any future
prospect for a so-called "free and fair" representation
vote, cannot be thus readily decided. The Board has been
cautioned that bargaining orders premised upon such a
determination can be considered justified only when a
respondent firm's course of conduct reflects a so-called
"substantial broad-gauged campaign " flagrantly hostile to
the concerned union ' s organizational effort, with respect
to which "glaring violations" have been found N L.R B
v. Flomatic Corporation, 347 F 2d 74, 77-80 (C.A. 2), cf.
N L R B v. S.E Nichols Company, 380 F 2d 438 (C A
2). And the Board, seemingly, really does hold similar
views Previously, within this decision, reference has been
made to Northwest Engineering; therein, the Board's
bargaining order was specifically premised upon a
determination that 8(a)(1) conduct found chargeable to
respondent did compass " serious" statutory violations
What type and quantum of statutorily-proscribed
conduct must be shown, then, before a bargaining order
can properly be deemed necessary to remedy 8(a)(1) unfair
labor practices found? Presumably, such conduct need not
be as "serious, substantial and pervasive" as that required
to persuade the Board that there has been a so-called
"bad-faith" refusal to bargain. Wausau Steel Corporation,
supra Within a recent Board brief, directed to the Eight
Circuit Court of Appeals (Montgomery Ward & Co,
Incorporated v N.L R.B , 385 F.2d 760, on Petition to
Review 160 NLRB 1729) the contention is proffered that
even if the record were less clear than it is with
respect to showing the Company's bad faith in declining
to grant recognition , there can be no doubt that the
Company's unlawful conduct destroyed the employees'
opportunity to register their votes in a free and fair
election. A bargaining order is therefore essential to
redress the employee rights at stake if, as we have
shown, a majority of the employees favored union
representation [Emphasis supplied.]
Whether such a distinction should be drawn, between
conduct required to be proven before a specific "refusal to
bargain" determination can be made, and conduct which
SILVER FLEET, MOTOR EXPRESS
this Board will consider sufficient to warrant a remedial
bargaining order premised solely upon 8(a)(1) violations
found, must be considered a policy question. With respect
thereto, this Trial Examiner's commission does not run.
The Board has, thus far, drawn the distinction, the courts
have concurred. See N.L R B v. Wausau Steel Corp,
supra, United Steelworkers of America v N L R B,
supra; J C. Penney Co v N L,R B, supra Consistently
with these standards, therefore, my present
recommendation must be made
Due regard for relevant precedent constrains me to
conclude - upon this record - that Respondent should
be required to bargain with Complainant Union Cf
Crystal Tire Company, 165 NLRB No. 82 (TXD) and
cases therein cited There can be no doubt, herein, that,
before November 14, a substantial majority of
Respondent's workers had designated Complainant Union
their bargaining representative Nor can there really be
doubt that President Denkler's overall course of conduct
- whether or not a determination would be warranted
that it must "necessarily" have been purposed to destroy
Complainant Union's majority status - realistically had
that result No other factor in the situation - between
November 14 and the election date - has been proffered
to explain the shift in worker sentiment. See N L R B v.
Frank C. Varney, 359 F 2d 774, 775 (C A 3) With
matters in their present posture, therefore, the likelihood
that a mere cease and desist order, confirmed by posted
notices, would really undo Respondent's
statutorily-proscribed interference, restraint and coercion
and permit a free and fair election hereafter, must be
considered remote The record shows that, since
November 29, 1966, six of Respondent's workers - and
possible more - have resigned Whether a second election
now, under the circumstances, would even produce a truly
representative vote, may be doubted Thus, as the Board's
Northwest Engineering decision noted, directives which
would require Complainant Union to submit to another
election, would, realistically, permit Respondent to profit
from its own unlawful conduct, at the expense of
Complainant Union and the relevant majority of
Respondent's workers. N L R B. v Gotham Shoe Mfg
Co , 359 F.2d 684, 687 (C A 2); compare Irving Air
Chute Co , Inc, 350 F.2d 176, 182 (C A 2), in this
connection My recommendation, therefore, will be that
Respondent be directed to bargain collectively with
Complainant Union herein, upon request
VI THE OBJECTIONS TO THE ELECTION
Complainant Union's objections to the November 29th
election, previously noted, derived from the same course
of conduct, chargeable to Respondent's president, which
General Counsel has herein challenged as violative of the
statute And within this decision, certain of General
Counsel's contentions with respect to Respondent's
unfair labor practices - have been found meritorious.
Conduct found violative of Section 8(a)(1) has been held,
a fortiori, deserving of censure as conduct which interferes
with a free and untrammeled choice in representation
votes. Dal-Tex Optical Company, Inc, 137 NLRB 1782,
1786. Complainant Union's objections, therefore, could be
considered sufficiently well grounded to justify a vacation
of the election results Since I have, however, herein found
a bargaining order presently necessary and proper to
remedy the particular unfair labor practices found,
direction of a second election would, clearly, serve no
useful purpose. My recommendation, therefore, will be
893
that Complainant Union's representation petition be
dismissed.
CONCLUSIONS OF LAW
Upon these findings of fact, and upon the entire record
in this case, I make the following conclusions of law
I Respondent, Silver Fleet, Inc. d/b/a Silver Fleet
Motor Express, Security Terminals, is an employer within
the meaning of Section 2(2) of the Act, engaged in
commerce and business activities which affect commerce
within the meaning of Section 2(6) and (7) of the Act, as
amended.
2. Local Freight Drivers Local No. 208, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, is a labor organization within the
meaning of Section 2(5) of the Act, as amended, which
admits certain of Respondent's employees to membership.
3 All employees of Respondent, including truckdrivers,
warehousemen, mechanics, dockmen, their helpers and
assistants, excluding office clerical employees, guards,
professional employees and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of
collective bargaining, within the meaning of Section 9(b)
of the Act, as amended.
4 Since November 9, 1966, Complainant Union has
been designated or selected by a majority of Respondent's
employees within the unit described above, as their
representative for collective bargaining purposes By virtue
of Section 9(b) of the Act, Complainant Union has been,
and is now, entitled to recognition as the exclusive
collective-bargaining representative of Respondent's
employees within the unit described, with respect to their
rates of pay, wages, hours of work, and other terms and
conditions of their employment
5. Through certain conduct, chargeable to Respondent's
management between November 14 and 29, 1966,
previously set forth within the section of this Decision
designated "Interference, Restraint, and Coercion,"
Respondent has engaged in and continues to engage in
unfair labor practices affecting commerce, within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act, as amended.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in this case,
I recommend that the Respondent, Silver Fleet, Inc.
d/b/a Silver Fleet Motor Express, Security Terminals, its
officers, agents, successors, and assigns, shall-
I Cease and desist from
(a) Interrogating employees concerning their
organizational activities in a manner violative of Section
8(a)(1) of the Act, creating an impression of employer
surveillance with respect to their activities on behalf of, or
their support for, Complainant Union herein, or
threatening possible business retrenchments and
consequent job losses, reasonably calculated to induce
Respondent's workers to refrain from becoming or
remaining members of Complainant Union, or to
withdraw their support from that organization
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights to self-organization, to form labor organizations, to
join or assist any labor organization, to bargain
collectively through representatives of their own free
choice, and to engage in concerted activities for the
894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of collective bargaining or other mutual aid or
protection, guaranteed in Section 7 of the Act, or to
refrain from any or all such activities
2 Take the following affirmative action, which is
necessary to effectuate the policies of the Act, as
amended
(a) Upon request, recognize and bargain collectively
with Local Freight Drivers Local No 208, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen &
Helpers of America, as the exclusive representative of all
Respondent's employees within the unit found appropriate
for collective-bargaining purposes herein, and, if an
understanding is reached, embody such understanding in a
signed agreement.
(b) Post at its Los Angeles, California, place of
business, copies of the notice attached to this report as an
Appendix.' Copies of said notice, on forms provided by
the Regional Director for Region 21, as the Board's
agent, shall be posted immediately upon their receipt,
after being duly signed by Respondent's official
representative Once posted, they shall remain posted for
60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced or covered by any other material
(c) File with the Regional Director for Region 21, as
the Board's agent, within 20 days of the date of service of
this Decision, a written statement setting forth the manner
and form in which it has complied with these
recommendation S.2
IT IS FURTHER RECOMMENDED that those portions of
General Counsel's Complaint which charge Respondent
with interference, restraint, and coercion on or about
December 5, 1966, and with a refusal to bargain on and
after November 14, 1966, be dismissed The petition for
certification of representatives in Case 21-RC-10270
should, likewise, be dismissed
'Should the Board adopt this Recommended Order, the words "a
Decision and Order" shall be substituted for the words "the
Recommendations of a Trial Examiner" Further, should the Board's
Order be enforced by a decree of a United States Court of Appeals, the
words "a Decree of the United States Court of Appeals, Enforcing an
Order" shall be substituted for the words "a Decision and Order "
'Should the Board adopt this Recommended Order, this provision shall
be modified to read "Notify said Regional Director, in writing , within 10
days from the date of this Order, what steps Respondent has taken to
comply herewith "
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 question our employees concerning
their organizational activities in a manner violative of
the Act.
WE WILL NOT make statements calculated to create
the impression among our employees that their
activities on behalf of Local Freight Drivers Local No.
208, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America are
subject to company surveillance
WE WILL NOT threaten possible business
retrenchments and consequent job losses, reasonably
calculated to induce our employees to refrain from
becoming or remaining members of the Union above
named, or to withdraw their support from that
organization.
WE WILL NOT in any like or related manner,
interfere with, restrain, or coerce our employees in the
exercise of their rights to self-organization, to form
labor organizations, to join or assist any labor
organization, to bargain collectively through
representatives of their own free choice, and to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection,
guaranteed in Section 7 of the Act, or to refrain from
any or all such activities
WE WILL bargain collectively, upon request with
Local No 208 as the exclusive representative of our
employees in the bargaining unit defined below,
concerning rates of pay, wages, hours of employment,
and other terms and conditions of employment If an
understanding is reached, we will embody it in a signed
agreement The bargaining unit is
All of our employees, including truckdrivers,
warehousemen, mechanics, dockmen, their helpers
and assistants, excluding office clerical employees,
guards, professional employees, and supervisors as
defined within the Act, as amended.
SILVER FLEET, INC
d/b/a SILVER FLEET
MOTOR EXPRESS,
SECURITY TERMINALS
(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
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, Eastern
Columbia Building, 849 South Broadway, Los Angeles,
California 90014, Telephone 688-5229