Southeastern Motor Truck Lines, Inc.

National Labor Relations Board - Board Decisions

May 5, 1955

112 N.L.R.B. 601 (N.L.R.B. 1955)

SOUTHEASTERN MOTOR TRUCK LINES, INC. 601
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondents have violated the Act, I shall recommend that
they cease and desist therefrom and take certain affirmative action designed to effectu-
ate the policies of the Act. I shall thus recommend, among other things, that the
Respondents, jointly and severally, make Loy Gittings whole for any loss of pay suf-
fered by reason of the discrimination against him, by payment to him of a sum of
money equal to that which he normally would have earned from December 29, 1953,
until he would have been laid off absent unfair labor practices, less his net earnings
during this period. Back pay shall be computed in accordance with the formula stated
in F. W. Woolworth Company, 90 NLRB 289.
CONCLUSIONS OF LAW
Upon these findings of fact, and upon the entire record in the case, I make the fol-
lowing conclusions of law:
1. The Respondent Company is engaged in commerce and business activities which
affect commerce within the meaning of Section 2 (6) and (7) of the Act.
2. Local 25, International Association of Bridge, Structural and Ornamental Iron
Workers, AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
3. By its interference with, restraint, and coercion of its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent Company has en-
gaged in and continues to engage in unfair labor practices within the meaning of Sec-
tion 8 (a) (1) of the Act.
4. By its acceptance of the Respondent Union's determination as to the identity of
those who should be permitted to work for it, in the absence of any lawful contractual
obligation to accept such a determination, the Respondent Company has engaged in
and has continued to engage in unfair labor practices within the meaning of Section
8 (a) (3) of the Act.
5. By attempting to cause, and causing, the Respondent Company to discriminate
against Loy Gittings, and thus to commit an unfair labor practice within the mean-
ing of Section 8 (a) (3) of the Act, the Respondent Union has engaged in and has
continued to engage in unfair labor practices within the meaning of Section 8 (b) (2)
of the Act.
6. By its restraint and coercion of employees in the exercise of certain rights guar-
anteed in Section 7 of the Act, the Respondent Union has engaged in and has con-
tinued to engage in unfair labor practices within the meaning of Section 8 (b) (1)
(A) of the Act.
7. These unfair labor practices are unfair labor practices within the meaning of
Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Southeastern Motor Truck Lines , Inc. and Teamsters, Chauffeurs,
Helpers and Taxicab Drivers Local Union No. 327, International
Brotherhood of Teamsters, Chauffeurs , Warehousemen and
Helpers of America, AFL, Petitioner. Case No. 10-RC-2769.
May 5,1955
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
On May 20, 1954, pursuant to a stipulation for certification upon
consent election, an election by secret ballot was conducted under the
direction and supervision of the Regional Director for the Tenth Re-
gion, among the employees in the unit herein found appropriate. At
112 NLRB No. 78.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the conclusion of the election, a tally of ballots was furnished the
parties. The tally shows that of approximately 20 eligible voters, 20
cast ballots, of which 10 were for, and 10 were against, the Petitioner.
No ballots were challenged and none were void.
On May 25, 1954, the Petitioner filed timely objections to the elec-
tion, a copy of which was served on the Employer. The objections
alleged that the Employer interfered with, restrained, and coerced its
employees in the exercise of their rights and that the Employer made
threats and promises to its employees, after the election agreement was
signed, including such conduct within 24 hours preceding the election.
In accordance with the Rules and Regulations of the Board, the Re-
gional Director conducted an investigation of the objections and, on
June 18, 1954, issued and served on the parties his report on election,
objections to election, and recommendations in which he found merit
in the Petitioner's objections based on threats and interrogation
uttered by the Employer after the execution of the election agreement,
and recommended to the Board that the election be set aside and a new
election directed. Thereupon, on July 7, 1954, the Employer filed
timely exceptions to the Regional Director's report.
On September 23, 1954, the Board found that substantial and ma-
terial issues had been raised and issued an order directing hearing
and on October 26, 1954, a hearing was held in Chattanooga, Tennes-
see, before Frank E. Hamilton, Jr., hearing officer. In accordance
with the Board's Order, the hearing was limited to "alleged threats
and interrogation by the -Employer uttered after the execution of
the election agreement." On December 30, 1954, the hearing officer
issued and caused to be served upon the parties his report on objec-
tions to election. The hearing officer found that by certain conduct
the Employer had created a situation and atmosphere in which a free
election was impossible and, therefore, recommended that the elec-
tion be set aside and a new election directed. On January 26, 1955,
the Employer filed exceptions to the hearing officer's report on objec-
tions to election. The Board has reviewed the rulings made by the
hearing officer at the hearing and finds that no prejudicial error was
committed. The hearing officer's rulings are free from prejudice and
hereby affirmed.
The Board has considered the hearing officer's report, the exceptions,
and the entire record in this case, and hereby adopts the fuidings of
fact and conclusions of law, and recommendation of the hearing of-
ficer, and further finds :
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The labor organization involved herein claims to represent certain
employees of the Employer.
SOUTHEASTERN MOTOR TRUCK LINES, INC. 603
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
All garage employees, namely, mechanics, servicemen, and parts
clerks of the Employer at Nashville, Tennessee, excluding all office and
office clerical employees, over-the-road drivers, pickup and delivery
drivers, warehousemen; checkers and dockworkers, watchmen, guards,
and supervisors as defined in the Act.
5. The Employer's conduct preceding the election (after execution
of the election agreement) was as follows :
The hearing officer relies upon nine incidents 1 in support of his
recommendation that the election be set aside :
The hearing officer finds that Fleet Superintendent Jacobs interro-
gated employee Johnson on the morning of the election and solicited
his vote against the Union; interrogated employee Regan on the pay-
day preceding the election, calling attention to his raise 2 and the fact
that the Company "had not been union," and asking him whether
he would change his mind concerning the Union ; interrogated em-
ployee Simmons on the Friday preceding the election concerning the
Union and the election, calling attention to the raise in his paycheck,
and threatening that if the Union won the election he would be out of
a job; interrogated employee McCormack a day or two before the
election concerning the election, and remarked that the Company
had a way to find out how he felt about it; and interrogated employee
McMurray a day or two before the election concerning his union
sympathies and the need of a union.
With respect to Hiett, a shop foreman, the hearing officer finds that
he interrogated employee Simmons about a week before the election,
threatening to close the body shop if the Union won the election;
threatened employee McCormack, a few days before the election that
he would be sorry if the Union were successful, that the Employer
would "work hell out of the employees," and the practice of permitting
the employees to do outside work on their own time would be discon-
tinued; and stated to employee McMurray, a few days before the
election, that the Employer would discontinue outside work if the
shop went union.
The hearing officer further finds that on the morning of the election,
Swain, the labor relations director and coordinator of operations,
1 In addition , the hearing officer describes the interrogating of other employees than those
referred to in these incidents , but does not rely upon them because of unclear testimony
or for other seasons not stated.
2 The healing officer does not rely upon various raises given employees prior to the elec-
tion as any basis for his recommendation to set aside the election.
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated to employee Regan that it was not too late for the employees
to settle their differences at the chair where they were hired, after
having previously stated that the place to get a raise without having
to go through the Union is "the place where you are hired at."
In its exceptions to the hearing officer's report, the Employer argues
that, notwithstanding the evidence of its activities, it has not been
established that any employee was effectively influenced to vote against
the Union. However, it would be manifestly improper to inquire as
to whether and why particular employees have voted against a union.
The test to be applied is whether an employer's conduct reasonably
tends, or is calculated, to interfere with employee rights to such an
extent that a free election becomes impossible,3 and we so find.
The Employer, in its exceptions, disputes the hearing officer's credi-
bility findings, and further maintains that his findings generally are
not supported by a preponderance of the evidence. We perceive no
basis in the record for reversing any of the hearing officer's credibility
findings. In addition, the Employer appears to be contending in
effect that the hearing officer failed to assign sufficient weight to cer-
tain mitigating aspects of its activities, and that, if the Board would
do so, it would conclude, contrary to the hearing officer, that its activi-
ties did not prevent a free election. We disagree. Even assuming Em-
ployer's version of the evidence, we are satisfied that a free election
was not possible. That employees rather than officials may have
started certain of these conversations does not serve to alter the fact
that there were interrogations and threats. Nor does the Employer's
disclaimer to employees of its intention to influence the election 4 and
its position that it was planning to make changes in working condi-
tions in any event, detract from the interference with the election im-
plicit in such interrogations and threats. Accordingly, we find no
basis upon which to conclude that the hearing officer's findings are not
supported by a preponderance of the evidence.
In our view, the evidence clearly establishes that the employees were
interrogated by company officials concerning their union sympathy
and how they intended to vote at the election, and urged to reject the
Union.' Moreover, the Company revealed its firm opposition to a
union and threatened the loss of existing benefits if the Union won
the election .6
Accordingly, we find that the interrogations conducted by Jacobs,
Hiett, and Swain, and their threats to employees, substantially inter-
fered with the employees' freedom of choice in the selection of a bar-
gaining representative, and made a free choice impossible. We shall,
3 See Syracuse Color Press, 103 NLRB 377, 209 F 2d 596 (C A. 2) ; Blue Flash Empress,
Inc, 109 NLRB 591 , Donnelly Garment Company, 50 NLRB 240
4 Graber Manufacturing Co , Inc, 111 NLRB 167
6 Cf General Shoe Corporation, 97 NLRB 499, 502
41 See Rem Company, 111 NLRB 537, cf General Shoe Corporation , supra.
AMERICAN BROADCASTING COMPANY, INC. 605
therefore, order that the election be set aside and direct that a new
election be held.
[The Board set aside the election held on May 20,1954.]
[Text of Direction of Second Election omitted from publication.]
American Broadcasting Company , Inc.; Columbia Broadcasting
System , Inc.; DuMont Television Network Division ; Allen B.
DuMont Laboratories , Inc.; National Broadcasting Company,
Inc.; General Tele-Radio , Inc.' and Television Authority, affil-
iated with * the Associated Actors and Artistes of America,
AFL, 2 Petitioner . Case No. 2-RC-2334. May 5, 1955
ORDER DENYING MOTION
On February 18,1952, pursuant to a, Decision and Direction of Elec-
tions,3 and an election conducted pursuant thereto, the Board issued
an amended certification in the above-entitled proceeding, certifying
American Federation of Television and Radio Artists as the exclusive
representative of the following unit:
All persons employed as talent on all live network television pro-
grams originating in New York, Chicago, and Los Angeles, and
broadcast over the network facilities of the Employers, including
actors, masters of ceremony, quizmasters, disc jockeys, singers,
dancers, announcers, sportcasters-play-by-play, assistant play-
by-play, and colormen-specialty acts, walk-ons, television extras,
and all other television performers, but excluding services ren-
dered by such performers in the capacity of musician, and talent
employed by Columbia Broadcasting System, Inc., in its west
coast motion picture productions.
On March 30, 1954, ABC filed a "motion to clarify decision and
direction of election and certification of representatives," and, on
May 26, 1954, the Board directed a hearing on this motion. On vari-
ous dates between June 29 and October 14, 1954, the hearing was held
before I. L. Broadwin, hearing officer. ABC, AFTRA, and the
American Federation of Musicians, herein -called AFM, appeared and
'American Broadcasting Company, Inc, was merged on February 9, 1953, with united
Paramount Theaties , Inc, and is now American Broadcasting-Paramount Theatres, Inc.
ABC will be used herein to designate this Employer without regard to the time period
involved.
2 On September 20, 1952 Television Authority was merged with the American Federation
of Radio Artists , and the name of the combined union was changed to American Federation
of Television and Radio Artists AFTRA will be used herein to designate the Petitioner
in all instances
3 96 NLRB 815.
112 NLRB No. 83.