St. John's Associates, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1967

166 N.L.R.B. 287 (N.L.R.B. 1967)

ST. JOHN'S ASSOCIATES, INC. 287
St. John's Associates , Inc. and Local 810 , Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen, and Helpers of America. Case
2-CA-11008
June 29,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH, AND MEMBERS
FANNING AND BROWN
On April 13, 1967, Trial Examiner James F.
Foley issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices
alleged in the complaint and recommending that it
cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Ex-
aminer's Decision. He also found that Respondent
had not engaged in other unfair labor practices al-
leged in the complaint and recommended dismissal
of those allegations. Thereafter, the Respondent
and the General Counsel filed exceptions t6, the
Trial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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, the exceptions and
briefs, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, with the additions and
modifications set forth below. I
As described more fully in the Trial Examiner's
Decision, the Union sent a telegram to Respondent
on May 24, 1966, requesting recognition as bar-
gaining representative of a unit of Respondent's
truckdrivers. The Respondent never answered this
telegram. At that time, the Union had obtained
authorization cards from two of the Respondent's
three truckdrivers. On the same day, the Union
filed with the Regional Director for Region 2 a peti-
tion for certification as bargaining representative of
these employees.
The Respondent contends that the truckdrivers
alone do not constitute an appropriate unit, that an
appropriate unit should include the dispatcher, the
assistant dispatacher, and the messengers. The
Trial Examiner found that the truckdrivers and the
truckdriver dispatcher together constituted an ap-
propriate unit. He further found that, as the
evidence did not show that the Union represented
a majority of the employees in this unit, the Respon-
dent had not refused to bargain with the Union in
violation of Section 8(a)(5) and (1) of the Act. We
do not agree.
We have traditionally established truckdrivers as
a separate appropriate unit in the absence of a bar-
gaining history where a union seeks to represent
them separately and where no other labor organiza-
tion seeks to represent them in a unit of larger
scope.2 The instant case appears to fall within the
ambit of that holding.
We are persuaded, for the reasons set forth
below, that the truckdrivers constitute a clearly
identifiable and homogeneous group of employees
such as the Board has frequently found may con-
stitute a separate appropriate unit, if they desire.3
The record shows that the truckdrivers herein
spend most of their working time making deliveries
by truck in and around New York City and, that,
from October 1, 1965, to May 24, 1966, none of
Respondent's other employees made any deliveries
by truck. The drivers are paid more per hour and
earn more overtime than-the messengers; unlike the
messengers or the dispatcher, they wear uniforms
issued by the Respondent; and their timecards are
kept at both the 45th Street and the 61st Street
places of business and they may start the day or end
it at either place. The dispatcher is located at the
45th Street place of business. His duties include
shipping and receiving duties and, although he was
formerly a truckdriver for the Respondent, it is
clear that at least during the period from October 1,
1965, to May 24, 1966, he did not drive a truck.
The messengers are paid less than the drivers; they
do not hold licenses to drive trucks as the drivers
do; they work less hours than the drivers; they do
not wear uniforms as the drivers do; they clock in
and out under different conditions and provide a
different type of service than do the drivers. The
assistant dispatcher has duties more closely asso-
ciated with the messengers than with the dispatcher
or the truckdrivers. We are not persuaded that the
dispatcher, the assistant dispatcher, or the messen-
gers have a sufficient community of interest with
the truckdrivers to compel their inclusion in the
truckdriver unit. We therefore find that the truck-
drivers apart from other employees constitute an
appropriate unit. We also find that the Union,
when it made its bargaining demand on Respondent
on May 24, 1966, represented a majority of the
employees in an appropriate unit. Accordingly,
as it is clear that the Respondent failed to reply
to the Union's May 24, 1966, demand for recogni-
tion and bargaining and thereafter explicitly indi-
cated that it would refuse to deal with the Union,
' Chairman McCulloch agrees with the Trial Examiner for the reasons
stated by him, that a unit of truckdrivers excluding the dispatcher is not
appropriate . He would therefore affirm the Trial Examiner's dismissal of
the 8 (a)(5) allegation of the complaint on the ground that the Union did not
represent a majority of employees in an appropriate unit.
166 NLRB No. 30
2 Ballentine Packing Co , Inc, 132 NLRB 923.
3 National Fireworks Ordnance Corporation, 104 NLRB 792,796.
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we find that the Respondent thereby violated
Section 8 (a)(5) and (1) of the Act. In so doing we
rely on the fact that the Respondent , with knowl-
edge of the Union ' s claim of majority status,
engaged in a campaign of 8(a)(1) conduct which
was calculated to undermine the Union 's position
with the employees so as to dissipate its majority
status. Such conduct clearly establishes the il-
legality of Respondent 's refusal to bargain with a
statutory representative.4
AMENDED REMEDY
Add the following to the Trial Examiner's
Remedy, section V: "We have found that the
Respondent had unlawfully failed and refused to
bargain with the Union as the representative of its
employees in an appropriate unit. We shall there-
fore require the Respondent to bargain, upon
request, with the Union, and, if an understanding is
reached, embody such understanding in a signed
agreement."
CONCLUSIONS OF LAW
We do not adopt the Trial Examiner's Conclu-
sions of Law 6, 7, 8, 9, 10, and 11, and we make the
following conclusions of law:
6. The following employees constitute a unit ap-
propriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act:
All truckdrivers employed by Respondent at its
45th Street and 61st Street plants in New York,
New York, excluding office clericals, production
workers, dispatchers, assistant dispatchers, mes-
sengers, and all guards and supervisors as defined
in the Act.
7. The Union represents drivers Stevenson and
Weinman as of the dates the Union requested
recognition and bargaining, and Respondent
refused to recognize or bargain. Driver Weinman
continues to be represented by the Union as there
is no evidence that any notice of revocation of his
authorization to the Union to represent him was
ever sent to or received by the Union, and because
the Respondent by Vice President Heisner
procured Weinman's agreement to revoke his
authorization to the Union by interrogation, threats,
and promises of benefits, and by the giving of
benefits, in violation of Section 8(a)(1) of the Act.
The agreement to revoke or the revocation itself is
invalid and is of no legal effect. The driver who
replaced Stevenson is presumed to be represented
by the Union as there is a presumption of the con-
tinuation of the status quo. There is no evidence
that the Union represents the other employee in the
unit.
8. At all times since May 24, 1966, the aforesaid
labor organization has been the exclusive represent-
ative of all the employees in the aforesaid unit for
the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment, and
other terms and conditions of employment.
9. By failing and refusing to bargain collectively
with the aforesaid labor organization, although
requested to do so, the Respondent has engaged in
and is engaging in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
10. The unfair labor practices enumerated above
are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the
Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, St. John's Associates, Inc., New York, New
York, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interfering with, coercing, or restraining em-
ployees by interrogation, threats, promises of
benefits, and the giving of benefits, in connection
with their activity to become members of the
Union, and to authorize and designate the Union to
act as their collective-bargaining representative, for
the purpose of reducing the number of employees
applying or eligible for membership in the Union or
designating or authorizing the Union to act as their
bargaining representative.
(b) Discouraging membership in the Union by
transferring drivers Simuel Stevenson and Richard
D. Weinman, or any other employee, against their
will from their jobs of drivers to the jobs of floor-
boy, inventory clerk, or part-time loading and un-
loading driver's helpers, or the job of dispatcher, or
any other job, to reduce the number of employees
applying or eligible for membership in the Union or
designating or authorizing the Union to be their col-
lective-bargaining representative.
(c) Refusing to bargain collectively with Local
810, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen, and Helpers of Amer-
ica, as the exclusive representative of all its em-
ployees in the appropriate unit with respect to rates
of pay, wages, hours of employment, and other
terms and conditions of employment.
(d) In any other manner interfering with,
restraining, or coercing employees in the exercise
of their rights to self-organization, to form labor or-
ganizations, to join or assist the Union, or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to en-
gage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection.
a Joy Silk Mills, 85 NLRB 1263, enfd 185 F .2d 732 (C.A D.C ), cert
denied 341 U .S. 914.
ST. JOHN'S ASSOCIATES, INC. 289
2. Take the following affirmative action, which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain collectively with
Local 810, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen, and Helpers of
America, as the exclusive representative of all its
employees in the appropriate unit with respect to
rates of pay, wages, hours of employment, and
other terms and conditions of employment, and, if
an understanding is reached, embody such un-
derstanding in a signed agreement. The bargaining
unit is:
All truckdrivers employed by Respondent at its
45th Street and 61st Street plants in New York,
New York, excluding office clericals, production
workers, dispatchers, assistant dispatchers, mes-
sengers and all guards and supervisors as defined in
the Act.
(b) Make employee Richard D. Weinman whole
for loss of earnings including interest, suffered by
reason of the discrimination against him, in the
manner stated in the section entitled "The
Remedy."
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and
reports, and all other records relevant and material
to Respondent's compliance with the provisions of
this Order.
(d) Post at its plant and offices in New York,
New York, copies of the attached notice marked
"Appendix." 5 Copies of said notice, on forms pro-
vided by the Regional Director for Region 2, after
being signed by Respondent's representative, shall
be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, where
notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to insure that said notices are not altered, defaced,
or covered by any other material.
[(e) Notify the Regional Director for Region 2,
in writing, within '10 days from the date of the Deci-
sion, what steps have been taken to comply
herewith.]
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board, and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify our employees that:
WE WILL NOT interrogate employees in re-
gard to their rights to engage in union activity,
to assist , or join Local 810, Steel , Metal, Al-
loys, & Hardware Fabricators &
Warehousemen , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen, and
Helpers of America, or to authorize it to act as
their collective-bargaining representative.
WE WILL NOT threaten employees with
discharge or discontinuance of our tracking
service, to thwart employees union organizing
activity, assistance to Local 810 , membership
in it or authorization to it to act as their collec-
tive-bargaining representative.
WE WILL NOT promise employees benefits
or give them benefits to abandon their union or-
ganizing activity , their assisting or joining
Local 810, or their authorizing it to act as their
collective-bargaining representative.
WE WILL NOT discourage membership in
Local 810 by transferring employees to other
jobs because they engage in union activity,
assist Local 810, apply for membership in it, or
authorize it to act as their bargaining represen-
tative.
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exer-
cise of their rights to self-organization , to form
labor organizations , to join or assist Local 810,
or any other labor organization , to bargain col-
lectively through representatives of their own
choosing , and to engage in other concerted ac-
tivities for the purpose of collective bargaining,
or other mutual aid or protection.
WE WILL compensate our driver Richard D.
Weinman for any loss of earnings , including in-
terest , suffered by reason of the discrimination
against him.
WE WILL bargain collectively , upon request,
with Local 810 , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen, and
Helpers of America , as the exclusive bargain-
ing representative of all our employees in the
appropriate unit described below, with respect
to rates of pay, wages, hours of employment,
and other terms and conditions of employment
and, if an agreement is reached, embody such
understanding in a signed contract.
The appropriate unit is:
All truckdrivers employed by Respondent
at its 45th Street and 61st Street plants in
New York, New York , excluding office
clericals, production workers, dispatchers,
assistant dispatchers , messengers, and all
guards and supervisors as defined in the
Act.
All our employees are free to become, or
refrain from becoming , members of Local 810,
5 In the event that this Order is enforced by a decree of aUnitedStates Order" the words "a Decree of the United States Court of Appeals En-
Court of Appeals, there shall be substituted for the words "a Decision and forcing an Order."
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Steel, Metal, Alloys, & Hardware Fabricators &
Warehousemen, International Brotherhood of
Teamsters, Chauffers, Warehousemen, and Help-
ers of America, or any other labor organization.
ST. JOHN'S ASSOCIATES,
INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecu-
tive 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, 5th Floor Squibb Building, 745 Fifth
Avenue, New York, New York 10022, Telephone
751-5500.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES F. FOLEY, Trial Examiner: This case,
2-CA-11008, was brought before the National Labor
Relations Board (herein called the Board) under Section
10(b) of the National Labor Relations Act, as amended
(herein called the Act), 61 Stat. 136, 73 Stat. 519, against
St. John's Associates, Inc. (herein called Respondent), on
a complaint issued September 30, 1966, and an answer
filed October 12, 1966. The complaint is premised on a
charge filed on May 31, 1966, by Local 810, Steel, Metal,
Alloys, & Hardware Fabricators & Warehousemen, In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America (herein called
the Union).
It is alleged in the complaint that Respondent in viola-
tion of Section 8(a)(5) and (1) of the Act, has refused
since May 24, 1966, to bargain with the Union as the col-
lective-bargaining representative of an appropriate unit
of truckdriver employees; and in May and June 1966, in
an attempt to dissipate the Union's majority representa-
tion of the truckdriver employees, interrogated,
threatened, and promised benefits to employees in viola-
tion of Section 8(a)(1) of the Act, and discriminated
against two drivers by assigning them to less desirable
jobs because of their membership in the Union in viola-
tion of Section 8(a)(3) and (1) of the Act. Respondent de-
nies in its answer that it engaged in any illegal conduct.
A hearing was held before Trial Examiner James F.
Foley, on December 5, 6, and 7 in New York City. Pur-
suant to notice, General Counsel moved for leave to
amend the complaint to include additional allegations of
interrogation in May and June 1966 and threats in May
1966. The motion was granted. Respondent's motion to
amend its answer to include a denial of the additional al-
legations of illegal conduct was also granted. The parties
were afforded opportunity to offer evidence, make oral
argument, and file briefs in connection with the amended
complaint and amended answer. Counsel for General
Counsel and for Respondent filed briefs after the close of
the hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF RESPONDENT
Respondent, a New York corporation with an office
and place of business at 75 West 45th Street, New York
City (herein called 45th Street), and a place of business at
211 West 61st Street, New York City (herein called 61st
Street), is engaged in the business of providing direct mail
advertising services and related services. During the year
preceding the issuance of the complaint on September 30,
1966, Respondent performed services valued in excess
of $50,000 for customers located in States other than the
State of New York. This out-of-State business is
representative of the out-of-State business that Respond-
ent has done annually. Respondent is, and has been at all
times material to the conduct in issue under the com-
plaint, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. The assump-
tion of jurisdiction will effectuate the purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The issues before the Trial Examiner are:
1. Did Respondent engage in conduct violative of Sec-
tion 8(a)(1) and (3) of the Act?
2. Did Respondent in bad faith refuse to bargain with
the Union for an appropriate unit of employees in viola-
tion of Section 8(a)(5) of the Act?
3. Did Respondent dissipate a majority representation
of the Union in an appropriate unit by the allegedly illegal
8(a)(1) and (3) conduct?
B. Background Evidence
As stated supra, Respondent furnishes a direct mail ad-
vertising service to customers. It has two plants, one on
45th Street and the other on 61st Street, in which 112 to
122 employees are employed, and a trucking and delivery
service consisting of 3 truckdrivers, 3 messengers, a
dispatcher, and an assistant dispatcher. In two trucks and
a station wagon rented from Hertz, and garaged at the
Hertz location on 39th Street, New York City, the three
truckdrivers make pickups at, and deliveries to,
customers in New York City, interplant pickups and
deliveries, and deliveries of bulk mail from the 61st Street
plant to the United States Post Office in New York City.
The three messengers, by subway and on foot, make
pickups at, and deliveries to, customers in New York
City. The quantity and weight of the material to be car-
ried determine whether the customer service shall be
done by the trucks or by the messengers. The dispatcher
who is located at the 45th Street plant designates the
driver or the messenger to make the customer pickup or
delivery if more than one driver or more than one mes-
senger are available. The truckdrivers take turns in mak-
ing a daily late delivery of bulk mail to the post office. In
May 1966, driver Juan Sanchez made the late delivery on
Monday and Friday, driver Stevenson on Tuesday and
Thursday, and driver Weinman on Wednesday.
ST. JOHN'S ASSOCIATES, INC. 291
Kenneth Fishbach, employed by Respondent for 10
years, has been its executive vice president about 1-1/2
years. He reports directly to the board of directors. He
handles directly the financial affairs of Respondent, and
has overall responsibility for its production and sales. For
the 10 years prior to the beginning of his employment by
Respondent, he was its outside accountant. Mrs.
Christoverson, known also as Miss Heisner, is vice pre-
sident in charge of plant operations. Mr. Spannaus is vice
president in charge of sales. Fishbach, Heisner, and
Spannaus are located at the 45th Street plant. Paul Jones
is manager of the 61st Street plant and is located there.
He directly supervises the three truckdrivers, three mes-
sengers, dispatcher, and assistant dispatcher, and em-
ployees at the 61st Street plant in the mailing and the
material handling and storage departments. There are ap-
proximately 27 employees in the mailing department and
7 employees in the material handling and packaging de-
partment. The truckdrivers make three to five trips daily
to the 61st Street plant. It is undisputed that Jones exer-
cises the duties of a supervisor set out in Section 2(11) of
the Act with respect to the dispatcher, the assistant
dispatcher, the drivers, and the messengers . As will be
shown infra, the dispatcher merely performs routine as-
signments in dispatching, and the dispatcher and assistant
dispatcher perform routine duties in connection with the
preparation of orders and checking in deliveries or
pickups. The General Counsel, the Respondent, and the
Union do not claim that the dispatcher and assistant
dispatcher are supervisors.
The trucks and station wagon are each equipped with
a 2-way radio by which the drivers are dispatched by the
dispatcher. The control station is at the 45th Street plant,
but there is also one at the 61st Street plant. Anthony
Cacciopoli, the dispatcher, was a truckdriver for 4 years
before being made dispatcher in August 1965. Lenford
Fitch, the assistant dispatcher, was employed as a mes-
senger for 1-1/2 years when he was made assistant
dispatcher about the time of the hearing. The three mes-
sengers are Kenneth Hoffman, Ronald Stoker, and Lewis
Pujol. Vice President Fishbach testified that the
dispatcher has the classification of dispatcher-driver, and
the assistant dispatcher has the classification of assistant
dispatcher-messenger. Miss Heisner referred to Cac-
ciopoli as the shipping clerk.
C. Evidence of the Alleged Violations of Section 8(a)(1),
(3), and (5) of the Act 1
1. Undisputed evidence
In September 1966, George A. Aronov, organizer for
the Union, began organizing activity at Respondent's
plants to organize Respondent's three truckdrivers. On
May 13; 1966, truckdrivers Simuel Stevenson and
Richard D. Weinman signed cards of the Union which
were applications for membership in the Union, and
authorized it to act as their collective-bargaining
representative. There is no evidence that truckdriver
Juan Sanchez, the messengers , the dispatcher , assistant
dispatcher, or plant employees, signed union cards.
On May 24, 1966, the Union sent and Respondent
received a telegram in which the Union stated that it
represented a majority of the three truckdrivers Respond-
ent employed, and requested that Respondent commu-
nicate with it for the purpose of negotiating a
collective-bargaining agreement. Respondent never
replied to the telegram. On the same date of May 24, the
Union filed with the Board's New York Regional Office
a petition for certification as bargaining representative of
a unit of employees consisting of the three truckdrivers.2
I assume that, in accordance with Board policy, a deci-
sion on the petition is being withheld until a decision is
made in this unfair labor practice proceeding initiated by
the May 31 charge.
2. Evidence of alleged 8(a)(1) and (3) violations
Truckdriver Stevenson was absent on May 23 to 25,
1966 (Monday through Wednesday), to attend the funeral
of a deceased uncle. On May 24, 1966, he told
Dispatcher Cacciopoli that he would return to his job but
did not disclose when. The dispatcher told him to report
to Jones at the 61st Street plant when he returned and not
to pick up the truck. On May 26 he reported to Jones at
the 61st Street plant. Shortly after he had left his home
that morning, a letter dated May 24, 1966, and signed by
Heisner, was delivered to his home. In it, Heisner stated
that she and the other officials regretted the passing of his
uncle, and that he could take the rest of this week off if he
deemed it necessary. He was then informed in the letter
that he was being transferred to an in-plant job effective
on his return. When Stevenson reported to Jones on May
26, Jones gave him a copy of Heisner's letter to read, and
instructed him to change his clothes. Jones said he would
be working with him on the inside until he could find a
place for him. The drivers had work clothes at both the
45th Street and 61st Street plants. When he had changed,
he asked Jones what it was all about. The latter told him
that a telegram had been received from the Union in
which it was stated that a majority of the truckdrivers had
signed authorization cards, and that Respondent would
discontinue using trucks in about 10 days. Jones said the
transfer was for his protection.
Stevenson worked as a floorboy for 2 weeks, and then
for 2 weeks did inventory work and occasionally helped
with loading and unloading the trucks. He complained to
Jones daily about being transferred to work in the plant,
1 The evidentiary findings are premised on demeanor and oral and
documentary evidence , evaluated in context. The findings of what trans-
pired in conversations between Stevenson and Jones and Heisner are
premised on Stevenson 's testimony evaluated in context, and of what
transpired in conversations between Weinman and Jones and Heisner are
premised on Weinman's testimony evaluated in context. Neither Jones
nor Heisner testified . The findings of what transpired in the conversation
between Weinman and Vice President Fishbach are premised on the
testimony of both , evaluated in context.
2 A conference on the Union's petition attended by representatives of
the Respondent and the Union was held in the Regional Office on June 2,
1966. George A. Aronov, an organizer for the Union and a witness for the
General Counsel, testified that at the conference the Union's attorney,
Henry Brickman , Esq., said to Respondent 's attorney, Woodrow Sandler,
Esq, that he knew the Union represented a majority of the drivers, and
asked that Respondent settle the dispute by recognizing the Union, and
that Sandler replied, "We are not going to allow the Union to take over the
plant and run the business ." Sandler objected to the question that elicited
the testimony of what Backman and he had said in the representation
proceeding, but I permitted Aronov to answer. I gave no weight to this
testimony. The question to and answer of Sandler are the only evidence of
record of what transpired at the conference . Sandler's answer may have
been the opening statement of a hard bargainer which lost its prima facie
identification as evidence of a peremptory bad-faith refusal to bargain in
the course of the colloquy of the conference participants
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and stated to him that he wished to be returned to his job
of truckdriver. Vice President Heisner talked to him in
Jones' office at the 61st Street plant about the middle of
June. Jones was present. Stevenson told her that he
wished to be reassigned to driving a truck, that he had
more seniority than Weinman. She replied that Weinman
was not driving a truck either.3 She said he could not go
back to driving. She said there were greater opportunities
in the plant than in driving. She also said that she had
previously transferred employees to plant jobs, and they
disliked them at first, but in the long run they liked them.
She said he was intelligent enough to have a job in the
plant.
Stevenson began his employment with Respondent in
August 1964. He was hired as a truckdriver by Jones.
The transfer to the plant job on May 26 was the first time
he had been assigned to a job other than that of driver. As
a truckdriver he received $2.80 an hour. His weekly pay
amounted to $105 per week for regular hours, and with
overtime approximated $120 per week. He received the
same hourly rate for the plant job although rank-and-file
plant employees received less.4 Stevenson did not work
overtime when working in the plant. Fishbach testified he
could have done so, but refused. Stevenson was reas-
signed to driving a truck sometime between June 23 and
July 15, 1966. He was discharged on July 15, 1966,
because of accidents he had as a driver. Counsel for
General Counsel conceded that he was discharged for
cause on that date.
About 4 days after he signed an authorization card on
May 13, 1966, truckdriver Weinman, while he was at the
45th Street plant, had a telephone conversation with
Jones in which the latter asked him if he had any contacts
with the Union. Weinman answered that he did not have.
Jones asked if he was sure, and Weinman answered that
he was. Jones was at the 61st Street plant. When Wein-
man was in Jones' office at the 61st Street plant on May
24, 1966, the latter said to him that he had received a tele-
gram from the Union in which it was stated that a majori-
ty of the drivers had signed authorization cards. Jones
held up the telegram, but did not permit Weinman to read
it. He asked him if he had any more contacts with the
Union, and he answered "no." He took a union card from
his desk, and asked Weinman if he had signed a similar
card. Weinman said he had not, that he had never seen a
card like it. Jones said to Weinman that if he signed a card
he would be fired. Jones made a telephone call to
Heisner. She talked to Weinman. She asked him if he had
any contacts with the Union, and he answered "no." He
also said that the Union never bothered him.
Weinman made the late mail delivery to the Grand
Central Post Office at 48th Street that evening. Between
about 8:20 and 8:45 p.m., Michael Grasso, assistant to
Vice President Spannaus, telephoned him,-and told him
not to take the truck out of the Hertz garage the next
morning, and to report to the 45th Street plant at 9 a.m.
He said he would be told what to do at that time. He re-
ported to Heisner at 9 a.m. on May 25. Cacciopoli was
there. Heisner told him Jones had received a telegram
from the Union. She showed him the telegram. He read
8 The driving was being done by Cacciopoli, the dispatcher, and
Sanchez
4 Respondent's evidence includes its payroll journal for the week end-
ing May 29, 1966 It discloses a range of weekly pay for rank-and-file
plant employees from $63 to $95 for 37-1/2 hours. The employees are
identified by code number only. Respondent did not furnish evidence that
it. She asked him if he had any contacts with the Union,
and he answered that he had none. She then told Wein-
man that his job would be changed, that for his own pro-
tection it would be better if he stayed inside as shipping
clerk. She was referring to the job of dispatcher which
was held by Cacciopoli. She said that Cacciopoli would
take his place as truckdriver.5 She asked him if he signed
a card and he said "no."
Weinman worked as dispatcher or shipping clerk for 2
weeks. He was reassigned to driving a truck about June
8. The next day Heisner, at the 45th Street plant, said to
him that if he had signed a union card she could get him
out ofit very easily. He said that he told her not to worry
that he had not signed a card. About June 16, 1966, Jones
spoke to Weinman about the Union. Earlier that day,
while he was unloading his truck at the 61st Street plant,
Aronov, the union organizer, had talked to him, Steven-
son, and Sanchez. Jones asked Weinman what the
union man asked him, and he answered that he had
asked him to sign a card. Jones asked him if he signed
one, and he answered that he had not.
On the evening of June 16, after he had brought his
truck to the Hertz garage, Weinman slipped on the steps
to the subway station, and fell and hurt his back. He was
absent on June 17 because of this injury. He was also ab-
sent on Monday, June 20, until about 1:30 p.m. At this
time he reported to the 45th Street plant with his truck.
Heisner asked him about his back, and he replied that it
hurt him, but he could still work. Heisner then informed
him that he was reassigned to the job of shipping clerk.
Cacciopoli again replaced him on the truck, and he
replaced Cacciopoli. He stayed on the shipping clerk or
dispatcher job until Stevenson was discharged on July 15,
1966.
Weinman had spent sometime during the morning of
June 20 at the Regional Office of the Board giving a state-
ment. Jones had learned on the prior Friday from Steven-
son that he and Weinman were to give statements on the
following Monday. Jones telephoned Weinman's home
three times on the morning of June 20, but was unable to
talk with him. His wife said he was sleeping. Executive
Vice President Fishbach called Weinman to his office on
the afternoon of June 20. He told Weinman he had been
absent without leave all morning, and when Jones
telephoned his home he was told by Weinman's wife he
was sleeping, and could not be disturbed. He said his
failure to report to work was reprehensible.
Fishbach also said to Stevenson that the plant em-
ployees were dissatisfied with the way he was running the
dispatching desk, that he was clocking out at 5:15 p.m.
sharp, leaving work to be done, failing to prepare the desk
for the next morning, and losing the opportunity to work
overtime. Weinman said that he was unhappy with work-
ing inside the plant, and preferred driving a truck. Fish-
bach replied that the inside job was equally important.
Vice President Spannaus, who was present, endorsed
Fishbach's statement about the opportunities that were
present to those who worked inside. Fishbach asked
Weinman if he had signed a union card, or had other con-
tacts with the Union. Weinman replied that he might as
disclosed the earnings of floorboy, inventory clerk, or any other type of
plant classification
5 Cacciopoli had been a truckdriver for 4 years before becoming
dispatcher in the fall of 1965 He received $3.47 per hour Sanchez
received $3.33 per hour, and Weinman received $2.67 per hour
ST. JOHN'S ASSOCIATES, INC. 293
well tell the truth, that he had signed a card . Fishbach
askedifhas -buddy,Stevenson , had signed , and he said he
had.
On Saturday , June 25, 1966 , Weinman had a conversa-
tion with Vice President Heisner. He was visiting his
mother on City Island . He was driving toward his
mother 's home when he saw an automobile double
parked. Heisner was in it. He parked his automobile and
talked to her . After remarking that he was driving a beau-
tiful car, she said it would be nice if he came over to her
side. She then said all he had to do was to write a note to
the Union requesting the return of the card he signed. She
promised him more money and other benefits. Weinman
rejected the offer . He said his mind was made up to hav-
ing the Union represent him. Heisner said that if he
changed his mind to come to her office on Monday, and
tell her so.
On Monday , June 27, at 9 a.m., Weinman visited her
office. Cacciopli was there . He said he had changed his
mind , and would write the note to the Union . She gave
him pencil and paper , and told him to write the following,
which he wrote down:
Dear Sirs:
Whoever it may concern. I would like my union
card back. Since I have back trouble there will be no
need for me to go on the truck at this time, and I will
stay inside as a shipping clerk.
Weinman signed the writing, and gave it to Heisner.
Weinman then asked Heisner if his job would be
guaranteed. She said yes, and not to worry about it. He
remarked he was still in pain, and asked for 2 or 3 days
off. She told him to take a whole week off with pay. She
said that a week's leave would be for his protection since
he signed the note to the Union. Heisner gave him his
weekly salary and a week's sick pay. This amounted to 2
weeks' pay. He received it on Monday, although payday
was the following Wednesday.
3. Evidence dealing with the appropriateness of an nit of
truckdrivers
Respondent has no bargaining history. St. John Offset
Corporation, a wholly owned subsidiary located at the
45th Street plant which does offset printing, has a collec-
tive-bargaining contract with a local of the Amalgamated
Lithographers of America for four employees. The
Union has petitioned for certification as bargaining
representative of the three drivers only. Respond-
ent disputes the General Counsel's and the Union's
claims that the three drivers constitute an appropriate
unit. Respondent contends that the three truckdrivers,
the three messengers, and the dispatcher, and assistant
dispatcher constitute the only appropriate unit. There is
no evidence that the Union attempted to organize the
messengers, the dispatcher, or assistant dispatcher, or the
plant employees.
Respondent's direct mail advertising service consists
of the preparation of the advertising material in ac-
cordance with the customers' specifications or orders,
and the mailing of the material to persons on mailing lists
maintained by Respondent or the customers. The adver-
tising material is usually a letter or some other type of
document. The letter or other document varies -in terms
of type, grade of quality, and quantity -with the
customers' orders and specifications. In some instances,
the advertising material may be a sample or other object.
This latter material is furnished by the customer.
Respondent's truckdrivers and messengers pick up
from customers and return to them the formats, nega-
tives, dummies, specifications, lists, etc., necessary to the
preparation and mailing of the material. The truckdrivers
haul the finished material ready for mailing from the 61st
Street plant to the post office, and deliver to the
customers quantities of the finished material for internal
distribution. They also haul the partly finished material
from the 45th Street plant to the 61st Street plant to be
finished and readied for mailing. Respondent's 52 to 56
employees at the 45th Street plant, and its 60 to 66 em-
ployees at the 61st Street plant, prepare the advertising
material and get it ready for mailing. In the preparation of
the material, which includes the envelope or other cover,
they engage in various kinds of letter processing, requir-
ing the use of different types of equipment, the operation
of manual and automatic typing equipment, and the main-
tenance of mailing lists on addressograph and speedo-
matic plates. In the preparation for mailing, there are the
addressing of the envelopes or other cover, machine and
hand insertion of the material in envelopes or other cover,
the operation of stamping and meter machines, and the
placing in mailbags for bulk mailing of the finished materi-
al enclosed in envelopes or other cover, and properly ad-
dressed and stamped. Part of the plant operation is
completed at the 45th Street plant and part at the 61st
Street plant.
The truckdrivers or messengers are not required to do
any plant work. They come into the plants only to deliver
or pick up at the departments initiating a delivery or
receiving a pickup. The driver making the late delivery to
the post office from the 61st Street plant may help the em-
ployees in the mailing department as an alternative to
doing nothing while waiting, but is not required to do so.
Plant employees do not do`driver or messenger work ex-
cept where a fourth truck and driver are needed, or a
helper is needed on a truck delivery or pickup, or to load
or unload at one of the plants.
A plant employee or a messenger who can drive may be
assigned to drive the additional Hertz rental, and plant
employees or messengers may be assigned to do the
helper work or to load or unload. These assignments,
however, do not occur with any frequency. Eddie Wall,
a 20-year employee doing plant work connected with
letter processing and printing, may occasionally drive a
truck. He began his employment as a messenger. Warren
Ward, who was discharged on May 10, 1966, and worked
in the plant as floorboy and packer, occasionally drove
the extra truck rental, and acted as truck helper. John
Murphy, who terminated his employment in June 1966,
as floorboy and stock handler, occasionally drove the
extra truck. He did not drive during the October 1965 to
June 1966 period. Sam Murray, employed as floorboy
and packer at the 61st Street plant, occasionally drives a
truck. He drove about six times from October 1965 to
May 1966. Wally Olchowoj and Sal DeLuca, employed
in plant work doing packaging and material handling, help
with the loading and unloading. Olchowoj did this work
twice during the period from October 1965 to May 1966.
DeLuca did not do helper work during this period.
There is evidence that Respondent's outside em-
ployees have advanced themselves by taking plant jobs.
Emily Bartha, a 30-year employee, transferred from mes-
senger to the multigraph and mimeograph department,
and then became head of the mailing department. John
Rossi, a 36-year employee, transferred from messenger
308-926 0-70-20
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to a plant job, and then to mailing department head, 61st
Street plant manager, and salesman . Mike Grasso, an
11-year employee , advanced from messenger to
dispatcher , truckdriver , head of a small plant department,
and assistant head of the mailing department . George
Levine, a 36 -year employee , went from messenger to
dispatcher and mailing department employee, and then to
a supervisor 's job in the mailing department . Dispatcher
Caccopoli advanced from a plant job to dispatcher. He
began his employment in 1945 as an apprentice in the
monotype department , was a journeyman in that depart-
ment from 1949 to 1961 , and became a truckdriver in the
fall of 1961 and dispatcher in the fall of 1965.
The drivers pick up their trucks each morning at the
Hertz garage and report to the 45th Street plant. They are
then dispatched by Dispatcher Cacciopoli . The exception
is where a driver has an early morning pickup or delivery.
In this case , he may keep the truck overnight and go
directly to the 61st Street plant or to a customer . A driver
may be dispatched to making a delivery from the 45th
Street plant to the 61st Street plant of partially finished
advertising material , and to picking up material at the
latter plant for the 45th Street plant. He may be dis-
patched to a customer delivery or pickup . He will call in
on the 2-way radio to the dispatcher when he has com-
pleted an assignment , and receive the next order from
him if it is a customer pickup or a delivery from the
61st Street plant . Otherwise he will return to the 45th
Street plant . A driver makes three to five visits a day to
the 61st Street plant . He is dispatched from five to eight
times a day. The number depends on the extent of the
work to be done on each assignment and the distance to
be traveled . As previously stated , they deliver mailbags
of advertising material to the post office from the 61st
Street plant.
The messengers , generally, perform the same customer
service as the drivers . They travel by subway or on foot.
The size and weight of the material to be .delivered or
picked up will determine whether the dispatcher will
dispatch a driver or a messenger. The messengers or-
dinarily do not make interplant deliveries or pickup or
carry material to the post office for mailing. The excep-
tion is where the material is small and not heavy. The
messengers in the aggregate travel to and from the 61st
Street plant no more than once a day, and more often less.
Each messenger is dispatched from three to nine times
daily. The number of dispatches depends on the number
of deliveries and pickups on each assignment , and the
distance to be traveled.
The three truckdrivers wear jackets with the Respond-
ent's identification on them . Fishbach testified that he
did not recall any specific requirement by Respondent
that they must wear them . Fishbach testified that he saw
Dispatcher Cacciopoli wearing a jacket , but that he was
not required to wear one. He did not know how often he
wore it. He also testified that messenger Stokes, an em-
ployee of 10 years, wore one, but that messengers were
not required to wear them . The drivers keep work clothes
at both the 45th and 61st Street plants. The messengers,
dispatcher , and assistant dispatcher keep them at the 45th
Street plant only.
The three drivers, the three messengers, Cacciopoli,
and Fitch are hourly paid workers. They are required to
clock in and out. When the drivers and messengers are on
assignment before they reach the plant in the morning,'
they write in the beginning time on their cards. They do
the same if their work hours are completed away from the
plant. The drivers have timecards at both the 45th and
61st Street plants. The messengers , Cacciopoli, and Fitch
have them only at the 45th Street plant.
The drivers , messengers , plant employees , Cacciopoli,
and Fitch have a regular workweek of 37-1 /2 hours, and
are paid time and a half for overtime . For the week ending
May 9 , 1966, the drivers worked 8 to 16 hours overtime,
the messengers 1 to 2 hours overtime , and Cacciopoli
5-1/2 hours overtime . Fitch would have had the same
overtime as the messengers had he had not been absent
1 day. For the week ending May 29 , 1966 , the hourly rate
for each of the drivers , messengers , Cacciopoli, and Fitch
was as follows:
Sanchez $3.33
Stevenson 2.80
Weinman 2.67
Stoker 2.00
Hoffman 1.68
Pujol 1.60
Cacciopoli 3.47
Fitch 1.60
The drivers, messengers , Cacciopoli , Fitch , and plant em-
ployees, as hourly paid employees , have the same fringe
benefits.
The only testimony of what the dispatcher , assisted by
the assistant dispatcher, does, is the testimony of Vice
President Fishbach. The dispatcher operates a shipping
and receiving desk, with the help of the assistant
dispatcher, at the 45th Street plant. He keeps a record of
all orders that go out whether to customers or to the 61st
Street plant. He also keeps a record of all material
received by Respondent, whether picked up from the
customers or purchased for use in the preparation of the
advertising material. He sees that the customer orders are
ready for the drivers or the messengers . If the orders are
for additional units of previously prepared advertising
material, he and the assistant dispatcher will make up the
orders and place them in envelopes or cartons , and insert
the addresses of customers on the envelopes or cartons.
They do a small amount of packaging. If the orders are for
the return of material used in the preparation of the adver-
tising material, and in possession of one of the depart-
ments, or for partly finished material to be sent to the 61st
Street plant for further processing , the dispatcher will see
that the order slips reach the departments holding the
material , so that they can get it ready . He designates the
drivers and messengers to carry the orders. The drivers
or messengers take the envelopes or cartons available at
the shipping table, or go to the departments for them if
they are being held at those places. The drivers do the
carrying instead of messengers if the quantity is too much
for the messengers to carry or the distance or direction do
not permit delivery by foot or subway.
The orders for a particular messenger or driver to be
carried on one assignment will be those destined for
delivery in the same area . The drivers and messengers are
constantly coming in and leaving . The orders go out with
those who are first available for any particular area. The
same procedure is followed in the case of delivering
material to the 61st Street plant. The dispatcher keeps a
daily record of the 'assignments to each driver and mes-
senger, and the deliveries he makes on each assignment.
The dispatcher also provides for the pickup of material
from a customer. He will do this when the messengers
and drivers are in the 45th Street plant or by radio when
drivers are on the road or are at the 61st Street plant.
When material of any nature comes into the 45th Street
ST. JOHN'S ASSOCIATES, INC.
plant, he will see that it reaches the department for which
it is destined or the place where it is to be stored. He also
keeps a daily record of all pickups by drivers or messen-
gers, and their deliveries to the 45th Street plant or the
61st Street plant, as well as the call-ins by drivers.
Neither Cacciopoli or Fitch ordinarily deliver or
pickup. As stated above, they see that the material to be
shipped moves out of the 45th Street plant, and the
material received is routed to the proper department or
storage space, and do the routine clerical work at the
shipping and receiving desk related to these duties. Occa-
sionally, Cacciopoli may deliver or pick up by truck and
Fitch may pick up or deliver by foot or subway. Both may
have to obtain order slips either within the 45th Street
plant or from customer locations. The finished advertis-
ing material is made ready for mailing at the 61st plant by
the mailing department. The dispatcher and the assistant
dispatcher have nothing to do with this operation or the
hauling of it to the post office each evening from Monday
through Friday. The mailing department which gets the
mail ready and the driver who hauls it are under the su-
pervision of Paul Jones, the 61st Street plant manager.
He directly supervises the mailing and material handling
departments, and the delivery and messenger service.
While the delivery of the finished material to a customer
for internal distribution is made by the driver from the
61st Street plant when it is made in quantity, it appears
that this delivery is scheduled by the dispatcher as it must
be fitted into the regular day deliveries.
The record does not disclose to what extent, if at all,
Assistant Dispatcher Fitch schedules deliveries or
pickups, or assigns them to drivers and messengers. His
hourly rate of $1.60 is the same as the lowest rate paid to
a messenger, and substantially lower than the
truckdrivers' rates which range from $2.67 to $3.33, and
Cacciopoli's rate of $3.47. It appears that while Fitch
handles the same routine shipping and receiving clerical
duties as Cacciopoli, the scheduling of deliveries and
pickups, especially by drivers, is left to Cacciopoli. This
is suggested by the rate of pay Fitch receives and the as-
signment of Weinman to the dispatcher job when Cac-
ciopoli replaced him as a driver. Dispatcher Cacciopoli
is a truckdriver and had 4 years' experience as a
truckdriver for 'Respondent before he was made
dispatcher. He not only qualifies as a driver, but knows
Respondent's delivery and pickup operation, and the
layout of New York City. On the other hand, there is no
evidence that Fitch is a truckdriver or could qualify as
one, especially in New York City, or has the experience
necessary to dispatch the truckdrivers or even the mes-
sengers. He was a messenger for only a year and a half
before he was made assistant dispatcher.
There is no evidence that Cacciopoli has authority to
hire or fire the drivers, messengers, or assistant
dispatcher, or to discipline them or adjust their wages, or
to recommend hirings, firings, wage adjustments, or
discipline, or to responsibly direct employees in their du-
ties by the exercise of independent judgment. There is un-
disputed evidence that Jones has authority to hire, fire,
and discipline the drivers, messengers, dispatcher, and
assistant dispatcher, and the employees in the mailing and
material handling departments at the 61st Street plant. He
6 Weinman gave the signed letter to Heisner. There is no evidence that
she sent it to the Union.
7 Blue Flash Express. Inc., 109 NLRB 591: N L.R.B. v. Firedoor Cor-
poration of America, 291 F 2d 325 (C.A. 2), enfg 127 NLRB 1123, cert.
295
also responsibly directs their employment by the exercise
of independent judgment. He effectively recommends
wage adjustments to Vice Presidents Fishbach and
Heisner. The drivers make three to five trips daily to the
61st Street plant which is under his management, and
where he exercises direct supervision of employees.
ANALYSIS AND CONCLUDING FINDINGS
About May 17, 1966, afew days after Weinman signed
a union authorization card, Manager Jones interrogated
him about his union activity. On May 24, 1966, the day
he received the Union's telegram claiming a majority of
drivers had signed authorization cards, he interrogated
Weinman about his signing an authorization card, and
threatened him with discharge if he signed one. Vice
President Heisner interrogated Weinman on May.24 and
25, 1966, about his signing a card, and promised him
benefit and threatened him with discharge on June 9,
1966, when she said that if he had signed a card she
could easily get him out of the commitment. Heisner
promised him more money and other benefits on Satur-
day, June 25, 1966, if he would revoke his authorization
to the Union. On Monday, June 27, 1966, she gave him
2 weeks' leave with pay, and paid him this amount on
that date instead of on payday, the following Wednesday,
for his decision to revoke his authorization to the Union
to represent him, and writing a letter to the Union
revoking the authorization which she dictated to him.6
On June 20, 1966, Vice President Fishbach inter-
rogated Weinman about his signing an authorization card.
He also threatened him when he admitted he signed a
card, by pretextually claiming that the plant employees
had complained about the way he handled the
dispatching, shipping, and receiving jobs to which he had
been assigned on May 25, 1966, and held until the follow-
ing June 8, 1966. On June 20, 1966, the day he was repri-
manded, he was reassigned to this job. His reassignment
is persuasive that the reprimand was for signing the card
rather than incompetency.
Heisner promised benefit to driver Stevenson in her
letter of Tuesday, May 24, 1966, when she told him he
could take the week off if he wished. He had been absent
on Monday to attend the funeral of a deceased uncle. It
was in this same letter that she informed him that he was
being transferred to a job in the plant. As stated above,
Manager Jones had received on May 24, the Union's
telegram claiming a majority of the drivers had signed
authorization cards, and demanding recognition and bar-
gaining. Jones threatened him and the other drivers on
May 26, 1966, when he told him about the Union's tele-
gram, and said that Respondent would discontinue its
trucking service within the following 10 days.
The above interrogation, threats, and promises of
benefit by Vice Presidents Fishbach and Heisner and
Manager Jones constitute interference with and coercion
and restraint of employees in connection with their rights
to engage in union and other concerted activity, and to
become members of the Union, for the purpose of collec-
tive bargaining, and other mutual aid and protection. By
their conduct, they and Respondent have violated Section
8(a)(1) of the Act.7
Vice President Heisner decided on May 24, 1966, to
denied 368 U.S 921; N.L.R.B. v Power Equipment Company, 313 F 2d
438 (C A. 6), enfg. as modified 135 NLRB 945; and Midwestern Manu-
facturing Company, Inc., 158 NLRB 1698.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transfer Stevenson from his job of driver to a plant job
and so informed him in a letter of that date . This was the
day that Manager Jones received the Union's telegram in
which the Union claimed that two of the three drivers had
signed authorization cards, and demanded recognition
and bargaining . On May 26, Jones assigned him to the job
of floorboy. When Stevenson asked Jones what the as-
signment was all about, the latter informed him of his
receipt of the telegram and its contents , and said that
Respondent 's trucking service would be discontinued in
10 days. Stevenson worked at this floorboy job for 2
weeks. Jones then assigned him to doing inventory work,
and occasionally helping with the loading and unloading
of the trucks. He held these latter jobs for approximately
2 weeks. He was then returned to the job of driver.
The plant jobs of floorboy, helper, and inventory clerk
were clearly jobs of a lower grade than truckdriver. He
was assigned to them to reduce the number of drivers
who had signed cards. The Union was only interested in
representing drivers. Stevenson complained daily to
Jones about the transfer, and to Heisner on June 15.
Heisner's statement to him on June 15 when she refused
to return him to the job of driver, that he had been trans-
ferred to the plant to make available to him the greater op-
portunities plant employment afforded , is pretextaal, as
the work to which he was assigned was not the work that
would be given to an employee with Stevenson's ex-
perience and job status who was destined to be promoted
to the better jobs in Respondent 's plant. Moreover, the
fact that Heisner paid him the hourly rate he received as
a driver when he held the lower grade jobs is persuasive
that the transfer was only to remove him from the status
of driver to defeat the Union 's organizational activity and
his membership in the Union . The explanation for
Stevenson 's reassignment to driver on or about June 23
is that since Heisner assigned Weinman to the
dispatcher 's job again on June 20, he would be the only
driver who authorized the Union to represent them, as
Cacciopoli who replaced Weinman as driver and Sanchez
the other driver had not signed authorization cards.
Vice President Heisner assigned Weinman to Cac-
ciopoli's dispatcher job on May 25, 1966 , and assigned
Cacciopoli to replace Weinman as truckdriver . Jones'
inquiry to Weinman on May 24 as to whether he was en-
gaging in any union activity or had signed a union card,
and his threat to him that he would discharge him if he
signed one, after holding up the Union 's telegram for him
to see , are persuasive evidence of the reason for the
transfer. Also persuasive evidence of this reason is
Heisner 's inquiry to Weinman on May 25, when she in-
formed him of his transfer to the dispatching job, regard-
ing his union activity and his signing an authorization
card, and her statement to him that the transfer was for
his protection . Both Jones and Heisner were endeavoring
to find out who the drivers were who signed cards, and to
dissipate the support the Union had by transferring Wein-
man to a nondriver job as the Union had only an interest
in organizing the drivers.
The transfer was not for Weinman 's protection , but for
the protection of Respondent against the Union's or-
ganizational activity . Weinman worked less overtime as
dispatcher. Weinman preferred the job of driver and so in-
formed Fishbach. Fishbach testified that he refused to
8 N.L R B . v Dal-Tex Optical Co., Inc., 310 F.2d 58 (C A. 5), enfg 131
NLRB 715; and Transamerican Freight Lines, Inc., 122 NLRB 1033, re-
manded for other reasons 275 F.2d 311 (C.A. 7)
work overtime. He was able in any event to have worked
overtime only to the extent Cacciopoli did when he was
dispatcher. This was 5-1/2 hours, compared to the 8 to 16
hours he could work as a driver . Weinman was not given
the $3.47 per hour Cacciopoli received as dispatcher, but
was paid his truckdriver rate of $2.67 per hour. Cac-
ciopoli, on the other hand, was paid the $3.47 per hour
dispatcher rate while he held Weinman's driver's job.
This means that Weinman had less overtime available to
him, and was paid at his driver 's rate, while Cacciopoli,
as a driver, was paid at his dispatcher's rate, and had
more overtime available to him than he had as a
dispatcher. Weinman was penalized because Heisner and
Jones believed he may have signed a card, and Cacciopoli
received benefit because he had not signed a card, and
they did not believe he had signed one.
Apparently Heisner , Jones, and Fishbach did not know
on June 8, 1966 , whether Weinman signed a card. He was
reassigned to his driver 's job on that date . On June 9
Heisner told him that she could easily get him out of any
commitment he made to the Union by his signing of a
card. On June 20 , 1966 , they assumed he had signed a
card because he went to the Regional Office on that date
to give a statement . Heisner then put him back on the
dispatcher's job. Later that day Weinman admitted to
Vice President Fishbach that he had signed. He was
returned to the driver's job on July 15, 1966, because on
June 27, he had agreed to revoke the authorization he had
given the Union by signing a card on May 13, and
Stevenson , the only other driver who had signed a card,
was discharged on July 15.
This evidence clearly discloses that Stevenson, against
his will, was transferred from the job of driver to lower
grade plant jobs, and required to work at them for 30
days, because he was suspected of signing a union card,
which was an application for membership in the Union
and an authorization to the Union to represent him as bar-
gaining representative . The evidence also discloses that
Weinman was transferred, against his will, from his job
as driver to the higher grade job of dispatcher, but at the
lower rate paid to him as driver instead of the higher rate
for dispatcher, and with less opportunity to work over-
time, and required to work at the job for 2 weeks on one
occasion, and approximately 3 weeks on another occa-
sion. The reason was that at the time of the first transfer,
Respondent's Heisner and Jones suspected him of signing
a union card , and at the time of the second transfer,
Respondent ' s Heisner , Fishbach , and Jones had the same
suspicion , which ripened into knowledge upon Wein-
man's admission he had signed . The purpose of the trans-
fers was to reduce the number of eligible applicants for
membership in the Union and the number of elibible
authorizations to the Union to act as bargaining repre-
sentative . The Union demanded recognition only as
bargaining representative of the drivers . This conduct
was for the object of discouraging membership in the
Union within the meaning of Section 8(a)(3) of the Act,
and violates Section 8(a)(3) and (1) of the Act.8
The evidence clearly shows that Respondent refused
to bargain with the Union for the three drivers. The
refusal violates the Act if the three drivers constitute an
appropriate unit . They do not have to constitute the only
appropriate unit or the more appropriate unit .9 Where the
9 Endicott-Johnson Corporation , 108 NLRB 88; Marks Oxygen Com-
pany ofAlabama, 147 NLRB 228
ST. JOHN'S ASSOCIATES, INC. 297
petitioning union applies for certification of a driver's
unit only, and there is no history of bargaining, which is
the case here, the Board will consider favorably the peti-
tion if the drivers constitute a functionally distinct and
homogeneous group.1° However, the extent of employee
organization may not be the controlling factor in the
Board's decision, and employees whose duties are sub-
stantially related to the duties of the drivers, and they do
not constitute a separate and independent unit, are in the
unit with the drivers.1 i
Here the evidence shows that the drivers, messengers,
dispatcher, and assistant dispatcher are functionally
separated from Respondent's plant employees except in
the rare instances where plant employees, such as floor-
boys, and other employees at the same level, occasionally
drive a truck or act as helpers to the drivers. Therefore,
a unit in which drivers are included can be one which
does not include plant employees. The same conclusion
can be made with respect to the messengers. They
receive an hourly rate considerably below that of the
drivers. They do not have to have the qualifications or
competence of drivers, or to hold licenses to drive trucks
as the truckdrivers do. They work less hours than the
drivers, do not wear uniforms as the drivers do, and do
not travel by automotive vehicle as the drivers do but by
foot or by subway. They clock in and out under different
conditions than those of the drivers, and they generally
render a different type of service from the service the
drivers perform. They do not engage in any extensive in-
terplant transfers, or in hauling mail, or in delivering in
quantity advertising material to customers for internal
distribution.
There is the question whether the dispatcher and the
assistant dispatcher have a community of interest with
the drivers that places them in a unit with the drivers. The
truck deliveries to and pickups from customers and
between plants constitute one of the lifelines of Respond-
ent's business. The operation of this lifeline, however,
is dependent on the duties that the dispatcher per-
forms in scheduling the pickups and deliveries, and in the
routine shipping and receiving. In addition, his rate of
pay, his performance of driver duties in an emergency, his
prior background as a driver, and his reliance on this
background for know-how in performing his duties, give
him an, indentity akin to that of the drivers. He is not a su-
pervisor but a rank-and-file employee, and his duties are
not related to those performed by plant employees. There
is no evidence of the extent that the assistant dispatcher
performs the duties of a dispatcher. There is a question
whether he is intrusted at all with these duties in view of
his rate of pay which is the lowest a messenger receives.
The evidence of record does not answer this question.
The routine shipping and receiving clerical duties which
the dispatcher may perform with the assistant dispatcher
do not alone place them apart in a separate unit. For these
reasons, I conclude and find that the dispatcher is in a
unit of employees which includes the drivers. 112
The assistant dispatcher is more closely associated
with the messengers, or with plant clericals, than he is
with the drivers. It is not necessary to decide in this case
whether the messengers and the assistant dispatcher may
be included in a unit with the drivers and the dispatcher,
or whether a broader unit, which includes the plant em-
ployees, the drivers, messengers , dispatcher, and
assistant dispatcher, would also be an appropriate unit, or
whether either of these units, if appropriate, would be a
more appropriate unit than the unit I have found appro-
priate.13
The evidence shows that the Union demanded recogni-
tion and bargaining for a unit of drivers only. I have found
this unit to be inappropriate. The evidence is that only
Weinman and Stevenson, two of the three drivers,
authorized the Union to act as their bargaining
representative. 14 There is no evidence that the remaining
employees in the appropriate unit, namely, Sanchez, the
other driver, and Cacciopoli, the dispatcher, authorized
the Union to act as their representative. The evidence,
therefore, does not show that the Union represents a
majority of employees in an appropriate unit. So the
refusal of Respondent to bargain is not violative of Sec-
tion 8(a)(5) of the Act. Nor does Respondent's illegal
conduct under Section 8(a)(I) and (3) of the Act warrant
a remedy of an order to bargain, since the Union does not
have the status of majority representative.15
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and
commerce among the several States, and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent engaged in certain un-
fair labor practices, I will recommend that it cease and
desist therefrom , and take certain affirmative action.
Since Respondent engaged in flagrant violations of Sec-
tion 8(a)(1) and (3) of the Act, a broad cease-and-desist
order enjoining violations of these provisions of the Act
is warranted and will be recommended . N.L.R.B. v.
Entwistle Mfg. Co., 120 F.2d 532(C.A. 4).
Since truckdriver Stevenson was discharged for cause
on July 15, 1966 , his rate of pay was not reduced when he
was assigned to jobs inside the plant , and he refused the
opportunity to work overtime on the in-plant jobs, no af-
to E H. Keester Bakery Co., Inc., 136 NLRB 1006, 1010-12,
Ballantme Packing Company, Inc, 132 NLRB 923
Section 9(c)(5) of the Act; N.L R B v. Metropolitan Life Insurance
Co., 380 U.S. 438; Marks Oxygen Company of Alabama, supra;
Kalamazoo Paper Box Corporation, 136 NLRB 134, Yellow Cab, Inc.,
131 NLRB 239.
12 Yellow Cab, Inc., supra.
13 Marks Oxygen Company ofAlabama, supra.
14 Weinman 's authorization continued in effect even though he agreed
to revoke it on June 27, 1966, since there is no evidence that the Union
ever received notice of revocation, and, in any event, the agreement to
revoke was not the voluntary act of Weinman , but the result of Heisner's
illegal conduct Southbridge Sheet Metal Works, Inc., 158 NLRB 819;
Werstein's Uniform Shirt Company, 157 NLRB 856; and Sullivan Sur-
plus Sales , Inc., 152 NLRB 132. There is a presumption , although
rebuttable, that the employee by the name of George who replaced
Stevenson sometime after July 15, 1966, continued Stevenson's
authorization to the Union. See N L.R.B v. National Seal Corporation,
127 F.2d 776,778 (C.A. 2); and Carlson v. Thompson, 138 F.2d 753,755
(C.A 7), cert. denied 321 U.S. 789. Otherwise, Respondent's illegal posi-
tion would benefit to the detriment of the employees' statutory right to be
represented by a union as a bargaining agent
15 H. W. Elson Bottling Company, 155 NLRB 714, 715-716; and
Shapiro Packing Company, Inc., 155 NLRB 777.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
firmative action with respect to Stevenson is necessary to
remedy the unfair labor practices against him , and none
will be recommended.
The record shows that Weinman was reassigned to his
truckdriving job on July 15, 1966. However, he held Cac-
ciopoli's job of dispatcher for the period of May 25 to
June 8, 1966, and from June 20 to July 15, 1966. He
received during this period his truckdriver rate of $2.67
per hour , while Cacciopoli 's rate as dispatcher was and is
$3.47 per hour. I will recommend that Weinman be reim-
bursed in an amount representing the difference between
what he received during his employment as dispatcher,
and the sum he would have received had he been paid at
$3.47 per hour for the time he worked as dispatcher, with
interest at ,6 percent per annum. F. W. Woolworth Com-
pany, 90 NLRB 289, and Isis Plumbing & Heating Co.,
158 NLRB 716. The evidence shows that Weinman had
the opportunity to work overtime as dispatcher, but did
not take advantage of the opportunity. Therefore, the
remedy need not provide for time other than the time he
actually worked. The remedy shall also provide for the
preserving , and making available to the Board and its
agents, records and reports relevant to Respondent's
compliance with this provision of the Recommended
Order.
The affirmative action recommended also includes the
posting of the notice marked or identified as "Appendix."
[Omitted from publication.]
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the
meaning of the Act.
2. The Union is a labor organization within the mean-
ing of the Act.
3. Respondent interfered with, coerced , and restrained
employees , in violation of Section 8(a)(1) of the Act, by
interrogation , threats, promises of benefit , and the giving
of benefit, to prevent employees from enjoying rights
guaranteed them in Section 7 of the Act, including the
right to self-organization , to form , join , or assist the
Union , to bargain collectively through representatives of
their own choosing , and to engage in other concerted ac-
tivities for the purpose of collective bargaining or other
mutual aid or protection.
4. On May 26 , 1966 , Respondent transferred driver
Simuel Stevenson against his will from his job as driver to
the less desirable in-plant jobs of floorboy and inventory
clerk , and the part -time job of loading and unloading
trucks, and refused to reassign him to his driver's job for
approximately 30 days or until on or about June 23, 1966,
to discourage membership in the Union, in violation of
Section 8(a)(3) and ( 1) of the Act , by the reduction of the
number of drivers represented by the Union or eligible to
apply for membership in the Union.
5. On May 25, 1966, Respondent transferred driver
Richard D . Weinman against his will from his job of
driver to the job of dispatcher for the period May 25,
1966, to June 8, 1966, and again on June 20, 1966,
against his will, transferred him from the job of driver to
the job of dispatcher for the period June 20, 1966, to July
15, 1966 , to discourage membership in the Union, in
violation of Section 8(a)(3) and ( 1) of the Act, by the
reduction in the number of employees represented by the
Union, or eligible to apply for membership in the Union.
6. The aforementioned unfair labor practices are uni-
fair labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
7. An appropriate unit of employees that includes
Respondent 's drivers is comprised of the dispatcher and
the three drivers, and the Union must represent three of
these four employees in order to represent a majority of
employees in an appropriate unit.
8. The Union represents drivers Stevenson and Wein-
man as of the dates the Union requested recognition and
bargaining , and Respondent refused to recognize or bar-
gain . Driver Weinman continues to be represented by the
Union as there is no evidence that any notice of revoca-
tion of his authorization to the Union to represent him
was ever sent to or received by the Union, and because
the Respondent by Vice President Heisner procured
Weinman's agreement to revoke his authorization to the
Union by interrogation , threats, and promises of benefits,
and by the giving of benefits , in violation of Section
8(a)(1) of the Act. The agreement to revoke or the revo-
cation itself is invalid, and is of no legal effect. The driver
who replaced Stevenson is presumed to be represented
by the Union as there is a presumption of the continua-
tion of the status quo. There is no evidence that the
Union represents the other two employees in the unit.
9. Respondent has not violated Section 8(a)(5) and (1)
of the Act by a refusal to bargain with the Union because
the Union did not represent a majority of employees in an
appropriate unit at the time of the demand for recognition
or the refusal, and did not acquire the status of majority
representative at any time thereafter.
10. The remedy for the Respondent's violations of
Section 8 (a)(1) and (3) of the Act may not include an
order to bargain as the Union has not, and does not now,
represent a majority of employees in an appropriate unit.
11. The complaint should be dismissed insofar as it al-
leges a refusal to bargain in violation of Section 8(a)(5) of
the Act.
[Recommended Order omitted from publication.]