The Dixie Terminal Co.

National Labor Relations Board - Board Decisions

Feb 18, 1953

102 N.L.R.B. 1452 (N.L.R.B. 1953)

1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE DIxIE TERMINAL COMPANY and BUILDING SERVICE EMPLOYEES
INTERNATIONAL UNION LOCAL 158-A, BunDINGI SERVICE EMPLOYEES
INTERNATIONAL UNION, AFL. Case No. 9-CA-497. February 18,
1953
Decision and Order
On October 27, 1952, Trial Examiner James A. Shaw issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings made
by the Trial Examiner are hereby affirmed. The Board has considered
the Intermediate Report, the exceptions and brief, and the entire
record in the case, and hereby adopts the findings , conclusions, and
recommendations of the Trial Examiner.2
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that the Respondent, The Dixie Terminal
Company, Cincinnati, Ohio, its agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Interfering with, restraining, and coercing its employees, by
discharge or otherwise, in the exercise of the right to join, remain
members of, or assist, Building Service Employees International
Union Local No. 158-A, Building Service Employees International
Union, AFL, or any other labor organization in the exercise of the
rights to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, as guaranteed in Sec-
tion 7 of the Act, or to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment
as authorized in Section 8 (a) (3) of the Act.
1 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [Members Houston, Murdock,
and Styles].
2 We agree with the Trial Examiner that it will effectuate the purposes of the Act for
the Board to assert jurisdiction over the Respondent 's office buildings . In addition to the
cases cited by the Trial Examiner, the Board has recently asserted jurisdiction over a
business enterprise substantially similar to that of the Respondent . RAC Realty Company,
101 NLRB 1390.
102 NLRB No. 156.
THE DIXIE TERMINAL COMPANY 1453
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to Walter J. Cinser and James Ross immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights or privileges.
(b) Make whole Walter J. Cinser and James Ross in the manner
set forth in that portion of the Intermediate Report entitled "The
Remedy" for any loss of pay each may have suffered by reason of the
Respondent's discrimination against them.
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social-security payment
records, timecards, personnel records and reports, and all other records
necessary to analyze the amounts of back pay due and the right of
reinstatement under the terms of this order.
(d) Post at its buildings in Cincinnati, Ohio, copies of the notice
attached to the Intermediate Report marked "Appendix A." 3 Copies
of said notice, to be furnished by the Regional Director for the Ninth
Region, shall, after being duly signed by the Respondent, be posted
by the Respondent immediately upon receipt thereof and maintained
by it for a period of sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director of the Ninth Region, in writing,
within ten (10) days from the date of this Order what steps the
Respondent has taken to comply herewith.
I This notice, however. shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The Recommendations of the Trial Examiner" and substi-
tuting in lieu thereof the words "A Decision and Order." In the event that this Order is
enforced by a decree of the United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed by Building Service Employees International Union Local
No. 158-A, Building Service Employees International Union, AFL, hereinafter
called the Union, the General Counsel of the National Labor Relations Board, by
the Regional Director for the Ninth Region, issued his complaint dated May 22,
1952, against The Dixie Terminal Company, Cincinnati, Ohio, hereinafter called
the Respondent. The complaint alleged in substances that since on or about
January 12, 1952, the Respondent has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and (3)
and Section 2 (6) and (7) of the National Labor Relations Act, as amended (61
Stat. 136), herein referred to as the Act. Copies of the complaint, the charge,
and notice of hearing were duly served upon the Respondent and the Union.
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices, the complaint alleges in substance
that: (1) The Respondent discharged the employees named below on the dates
specified after their respective names, and since said discharges has failed and
refused to reinstate said employees because of their membership in, sympathy for,
and activity on behalf of, the Union :
Robert Denny January 12, 19521
Walter Cinser January 13, 1952
James Ross January 14, 1952
(2) the Respondent, commencing on or about January 12, 1952, and at all times
thereafter, interfered with, restrained, and coerced, and is now interfering with,
restraining, and coercing its employees in the exercise of the rights guaranteed
to them by Section 7 of the Act by questioning its employees concerning the
union membership, sympathy, and activities of its employees ; that by the acts
described above the Respondent violated Section 8 (a) (3) and (1) of the Act.
The Respondent in its answer to the complaint admitted certain jurisdictional
allegations, and in effect generally denies that it committed any of the unfair
labor practices alleged in the complaint. 4
Pursuant to notice, a hearing was held in Cincinnati, Ohio, on various dates
between July 1 and 15, 1952, before the undersigned Trial Examiner duly desig-
nated by the Chief Trial Examiner. The General Counsel, the Respondent, and
the Union were represented by counsel, and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues. At the close of the hearing the General Counsel and
counsel for the Respondent argued orally before the undersigned in support of
their respective positions. Counsel for the Respondent at the close of the Gen-
eral Counsel's case-in-chief moved to dismiss the complaint primarily on juris-
dictional grounds. The motion was denied by the undersigned without prejudice
to renewing it at the close of the hearing. Accordingly, counsel for the Re-
spondent did so at that time. Ruling thereon was reserved by the undersigned.
It is hereby denied for reasons which will be apparent hereinafter. The General
Counsel at the close of the hearing moved to conform the pleadings to the proof
as regards such minor matters as names, dates, and the like. The motion was
granted by the undersigned. Since the close of the hearing briefs have been
received from the General Counsel and counsel for the Respondent. They have
been duly considered by the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Ohio Corporation, owns and operates an office building
located at Fourth and Walnut Streets, Cincinnati, Ohio. As indicated in the
caption the building also serves as a terminal. In its answer, oral argument by
its counsel at the hearing herein, and in its brief the Respondent vigorously
contests the propriety of the Board in its attempt to assert jurisdiction over its
business. In the main the Respondent contends that its business is not of such a
nature as to affect commerce within the meaning of the Act. Primarily because
it produces nothing and sells nothing, but is engaged solely in the business of leas-
ing real property to tenants on a monthly rental basis. The Respondent further
1 The General Counsel moved to dismiss the complaint as to Denny at the hearing herein.
The motion was granted by the undersigned without objection from any of the parties.
THE DIXIE TERMINAL COMPANY 1455
contends that the mere fact that certain of its tenants may themselves be engaged
in interstate business is of no moment for precisely the same reasons that com-
pelled the Board to decline jurisdiction in the Midland Building Company case.'
In further support of its contention in this regard the Respondent also stresses
the position taken by the Board in the Hotel Association of St. Louis case,' not
only because the Board declined to assert jurisdiction therein, but particularly
because it involved persons similarly employed in the instant case.` The position
of the Respondent in this regard as stated in its brief is that ". . . The present
case is of great importance to the operators of general office buildings throughout
the country. It would obviously be unreasonable and unfair to these real estate
operators, and would deny them the equal protection of the law, to hold that
elevator operators in commercial hotels are not covered by the Act, but that
elevator operators in general office buildings are covered by the Act. As the
Board pointed out in its significant footnote in the Midland case, supra: `The
characterization of such an enterprise (general office building) by the Supreme
Court as essentially local is of persuasive significance in a policy determination
in connection with the assertion of jurisdiction."'
The theory of the General Counsel insofar as the jurisdictional question is con-
cerned is that the Board has as of all times material herein asserted jurisdiction
over operators of office buildings in the following cases, Cormax, d/b/a Southland
Building and Annex, 94 NLRB 1150, and the Charlotte Barth Howell, et al., 95
NLRB 1028, particularly the Cormax case. In that case the Board said :
The principal tenant is the vendor, Southland Life Insurance Company,
which rents about half of the office space for its home headquarters, paying
more than $150,000, rental per year. This company is licensed to no business
(writing life insurance policies and making loans) in seven States and the
District of Columbia in addition to Texas. In 1950, it had slightly less than
$330,000,000 insurance in force in Texas and slightly more than that amount
elsewhere.
On these facts we find that the Respondent is engaged in commerce within
the meaning of the Act, and also that it will effectuate the purposes of the Act
to exercise the Board's jurisdiction.'
2 Hollow Tree Lumber Company, 91 NLRB 635. To the extent that the standards
there laid down may have affected the Board 's prior policy on office buildings (for
example, Corrigan Properties, Inc., 87 NLRB 252 ; Central Tower, Inc., 84 NLRB 357 ;
Midland Building Company, 78 NLRB 1243), that policy was thereby overruled. See
also Tri-State Casualty Insurance Company, 83 NLRB 828ti enforced 188 F. 2d 50
(C. A. 10, March 21, 1951) ; Intertown Corporation, 90 NLRB 1145. Cf. Hotel Asso-
ciation of St. Louis, 92 NLRB 1664, where the Board declined jurisdiction over hotels
because of announced congressional approval of a long-standing policy to that effect.
Further argument in support of the General Counsel's position as regards the
jurisdictional question is found in his brief where he states :
(b) The Board's Jurisdictional Criteria Applies
In asserting jurisdiction over office buildings in the Cormax and Charlotte
Barth Howell cases, the Board applied its so-called "indirect-outflow" cate-
gory set forth in Hollow Tree Lumber Co., 91 NLRB 635. On page 16 of the
Sixteenth Annual Report, supra, this is listed as category No. 5. To obtain
jurisdiction under this category it is necessary to show that the enter-
2 See Midland Building Co., (1948) 78 NLRB 1243.
® See Hotel Association of St. Louis, (1951) 92 NLRB 1388.
4 As will be shown hereinafter the instant case involves building service employees,
particularly elevator operators.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prise in question furnished goods or services of $50 ,000 a year or more to.
concerns in category 1 (Instrumentalities and channels of commerce, inter-
state or foreign ) ; or category 2 (Public utility and transit systems) ; or
category 4 (Enterprises producing or handling goods destined for out-of-
state shipment , or performing services outside the State in which the firm.
is located , valued at $25,000 a year).
It is under this category 5 (indirect -outflow ) that we contend jurisdiction
should be asserted over Respondent. Under this criterion , Respondent is
engaged in "furnishing services" by renting office and other space to tenants
who fall within categories 1, 2 or 4, for which services Respondent receives
rentals far in excess of $50 ,000 a year , as follows : ( General Counsel Ex-
hibit 2.)
The answer of course to the contentions of the parties is the record itself.
As indicated above the Respondent concedes but little as regards the jurisdictional
question . It does concede however that The Dixie Terminal Company is an
Ohio corporation and that it owns and operates an office building in Cincinnati,
Ohio, located at Fourth and Walnut Streets. It further concedes the following
as regards the physical aspects of the real property involved herein.
The Dixie Terminal Building is a 10 -story structure that stands on the corner
of Fourth and Walnut Streets in downtown Cincinnati , Ohio. Its main entrance
faces north on Fourth Street. It also has avenues of ingress and egress on
Walnut Street. The property as described in the record consists of a north
and south building . The north building is an office building. It is a 10-story
structure, with a "concourse" and a subbasement below the first floor. In this
building, offices and space are leased and occupied by numerous tenants. The
south building is primarily a terminal and is leased to the Cincinnati, New-
port and Covington Railway Company, which operates a busline between points
in northern Kentucky such as Covington , Newport, Fort Mitchel , Kentucky, and
elsewhere in that vicinity . The approach to the terminal is through the con-
course referred to above. It may be entered either through the main entrance
on Fourth Street or by way of entrances on Walnut Street. Both the north
and south buildings are under the same management and supervision. At the
time of the hearing herein , William C. Lightfield was the building manager, and
directly under his supervision was Clinton C. Wood, with the title of "Superin-
tendent of the building."
As indicated above, in the north building are numerous tenants who lease the
premises they occupy from the Respondent . A list of the tenants of both the
north and south buildings is attached hereto and marked as "Appendix B."
The lessees or tenants represent a cross-section of our industrial life. They
range from individual enterpeneurs to representatives of nationally known
enterprises . From railroads to Quaker Oats. From dealers and brokers in
stocks and bonds to brokers of hides and skins. From lawyers to C. P. A: s.
From sales agencies for coal to steel ingots. From fiberglass to zippers, etc.
Clearly the enterprises which lease the premises of the Respondent represent
the gamut of a host of products and services which affect the day-to-day affairs
of literally thousands of citizens.
In support of the General Counsel 's contention as regards the business of the
Respondent and its effect on commerce ( which must be alleged and proven by a
preponderance of the evidence , before the Board may assert jurisdiction), he
called as witnesses , more than 70 citizens . For the most part they were branch
managers or agents of nationally known and recognized firms all of whom in one
way of another are clearly engaged in interstate commerce . Each of these
witnesses appeared under subpoena duces tecum. They were served upon the
THE DIXIE TERMINAL COMPANY 1457
witnesses sometime before the date of the hearing herein. In each case they
were requested to furnish certain information as regards the business affairs of
their respective principals. The General Counsel queried each witness as regards
the volume of business transacted in their respective offices, the percentage that
was involved in States other than Ohio, and the nature of the product sold or
service rendered by the firms they represented. In some instances the witnesses
referred to memoranda, that is letters, prepared forms, and the like, that were
either prepared by them from information available in their local offices, or
by others. under their direct supervision, from books and available records kept
in the usual course of business . Others testified from similar memoranda pre-
pared at the witnesses' request by accountants and others from the records kept
at their home offices. In no instance did the witnesses testify from the original
books and records of their respective principals. Nor did the individual entre-
peneurs called as witnesses testify from their original records, nor did they
bring such records to the hearing room with them so that their oral testimony
could be checked against such records, should counsel for the Respondent choose
to do so.
Counsel for the Respondent objected to the testimony of each and every witness
called by the General Counsel for the purposes described above. His objections
were overruled, and the undersigned permitted testimony in this regard to stand
on the record. The basis of the Respondent's objection to the admissibility of
the testimony offered by the General Counsel as regards the commerce data,
was of course because of the commonly called "best evidence" rule. That is
the books and records kept in the usual course of business are the best evidence,
and resort to secondary evidence such as was done at the hearing herein, is in-
admissible because it is "irrelevant, immaterial and incompetent." Counsel for
the Respondent reiterates his position in this regard in his brief. An excerpt
therefrom follows below :
The General Counsel introduced no competent evidence proving that the
individual tenants made individually at least $25,000 worth of interstate
sales. Instead, over standing objections of the Respondent that such testi-
mony was hearsay, opinion, and not the best evidence, the General Counsel
offered the testimony of office managers , accountants and others to the
annual volume of business transacted by tenants without producing any
books and records whatsoever or validly accounting for the absence of such
books and records. Thus, the Respondent was deprived of any opportunity
to check the books and records and verify the testimony of these jurisdic-
tional witnesses. All of such evidence was inadmissible and should be
disregarded by the Board. Section 10 (b) of the Act specifies that:
Any such proceedings shall, so far as practicable, be conducted in
accordance with the rules of evidence applicable in the district courts
of the United States under the rules of civil procedure for the district
courts of the United States, adopted by the Supreme Court of the United
States pursuant to the Act of June 19, 1934 (USC, Title 28, Sections
723-B, 723-C.
Rule 43 of the Federal Rules of Civil Procedure specifies in part that :
All evidence shall be admitted which is admissible under the statutes
of the United States, or under the rules of evidence heretofore applied
in the courts of the United States on the hearing of suits in equity, or
under the rules of evidence applied in the courts of general jurisdiction
of the state in which the United States Court is held. In any case, the
statute or rule which favors the reception of the evidence governs and
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the evidence shall be presented according to the most convenient method
prescribed in any of the statutes or rules to which reference is herein
made.
Applying the above rule, Federal courts have repeatedly held that informa-
tion contained in books and records may be proved by oral testimony, unless
such books and records are brought into court and made available to counsel
for the other side. The best evidence rule is clearly applicable. In Cabel v.
United States, 113 F. 2d 998 (C. A. 1) 1940, the court said, at page 1001:
The testimony of experts in construing complicated accounts, such as
those involved here, is permissible under some circumstances. ... Mr.
Greenleaf in his work on evidence says:
The testimony of experts upon the results appearing from ac-
count books which are in evidence is generally accepted . . . and to
that extent relaxation of the rules as to the best evidence is uni-
formly approved by the authorities. I Greenleaf on Evidence, Par.
93.
* * * *
The above and similar cases have been cited to us by counsel for
the plaintiff, but in no case that has come to our attention does it
appear that such testimony has been admitted unless the books or
documents which are the basis of the testimony of the expert wit-
ness have been produced in court and made available for purposes
of cross examination. We can see no reason for any further re-
laxation of the rule as to the best evidence that as stated above, and
it seems to be well settled that, at least, the productiGn in court of the
books or records which have been the subject of the examination by the
expert witness is a prerequisite to the admission of his testimony con-
struing them. (Emphasis added.)
In Berthold-Jennings Lumber Co. v. St. Louis, 80 F. 2d 32 (C. A. 8) 1935,
the court said :
While, under certain limitations, an expert may give a summary of his
examination of voluminous records, if proper foundation has been laid
with reference to such records so as to make them competent evidence,
still to be admissible the records must be at least produced and be made
available to the opposite party for the purpose of cross-examination.
Ordinarily, the rule is one of convenience which goes no further than
to permit a summary of the mass of records otherwise in evidence, or at
least admissible in evidence and actually produced in court. (Em-
phasis added.)
The undersigned is well aware of the provisions set forth in Section 10 (b)
of the Act as regards the conduct of hearings and in particular as regards the
"rules of evidence" that are applicable to such proceedings. He is also mindful
of the fact that Section 10 (b) likewise states that such rules are applicable
"so far as practicable" to proceedings before the Board. It was for this as
well as other reasons that the undersigned permitted its reception as evidence
at the hearing herein. Other compelling factors in the undersigned's reasoning
in this regard were as follows: (1) The witnesses who testified in this regard
occupied responsible positions for their respective principals; (2) the very
nature of their day-to-day duties required them to be familiar with the records
entrusted to their care; (3) the memoranda referred to were either prepared
from records kept in their own offices by employees under their direct super-
THE DIXIE TERMINAL COMPANY 1459
vision or by responsible agents of their principals at other places, such as dis-
trict or home offices; and (4 ) the testimony and the memoranda in support
thereof were elicited from persons subpoenaed by the General Counsel to appear
and testify before the undersigned in the litigation of a public matter in which
they by no stretch of the imagination had an interest therein one way or another;
and finally we are faced herein with an issue that does not require the same
standards insofar as dollars and cents are concerned as that say of litigation
involving a trust fund, the records of a bankrupt, an action for damages, and
cases of a similar nature. This conclusion of the undersigned is buttressed by
the fact that the Board with the approval of the courts in innumerable cases
has found that many types of enterprises are engaged in activities which "affect
commerce" on the basis of findings that the annual business of such enterprises
is in excess of a certain figure, say $50,000 per annum, etc. Moreover, to have
compelled the General Counsel to bring in or to make available to the Respondent
for examination the original books and related data of such nationally and in-
ternationally recognized concerns as the Pennsylvania Railroad Company, Balti-
more and Ohio Railroad Company, Western Union Telegragh Company, Canadian
and Pacific Railroad Company, Merrill Lynch, Pierce, Fenner and Beane, and
the host of other concerns as set forth in Appendix B would have required the
transportation of carloads of records and required years of exhaustive analysis
by an army of accountants, statisticians, and the like. Again excerpts from
annual reports prepared for and filed with the Interstate Commerce Commission
and annual reports to stockholders based thereon were physically brought to the
hearing room and referred to by witnesses employed by several of the railroads
in the course of their testimony. They at least were available to counsel for the
Respondent for his inspection at the hearing but as the record demonstrates he
did not choose to peruse them for reasons stated by him on the record.' Under
such circumstances the undersigned is convinced that the testimony of the indi-
viduals entrusted with the management of the affairs of the tenants of the
Respondent were not only competent to testify concerning the affairs of their
respective principals, but also that such testimony when giveif in the mode and
manner described above is admissible in evidence, is competent, material, and
relevant and its probative value as evidence may and in fact should be con-
sidered by the undersigned in making his ultimate findings as regards the busi-
ness of the Respondent. Moreover, the undersigned is convinced that under all
the circumstances as described and set forth in the record, the briefs of the
parties, and the plain language of Section 10 (b) of the Act that the procedure
adopted and followed by the General Counsel (with the approval of the under-
signed) in his presentation of the evidence to support the jurisdictional aspects
of his case-in-chief was not only proper, but well within the scope of Section 10
(b) in that it was not "practicable" to conform to the rigid interpretation of
the rule as advocated and demanded by counsel for the Respondent.
Moreover and finally the objections of the Respondent to the admission in evi-
dence of the testimony of the various individuals referred to above as regards
the business operations of their principals has been before the Board before.
Particularly In Amalgamated Meat Cutters and Butcher Workmen of North
America (A. F. L.), Amalgamated Meat Cutters and Butcher Workmen of N'vrth
America (AFL), Local No. 421, and The Great Atlantic and Pacific Tea Company,
Case No. 21-CB-8, decided March 1, 1949, 81 NLRB at pages 1052 and 1053. In
that case which involved practically the same evidentiary problems as here the
Board said inter alia the following :
S See Pallama v. Fox, (C. A. N. Y.-1950) 182 2d 895.
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To prove that the Company was engaged in interstate commerce, the
General Counsel introduced into evidence a number of arithmetical sum-
maries of the Company's annual business. The summaries were compiled
specially for the hearing from thousands of original records. The Com-
pany's office manager, under whose supervision the tabulations were pre-
pared, testified as to manner of their preparation. However, the original
records from which the compilations were prepared were not introduced
into evidence. At the hearing, numerous representatives of the Company's
suppliers and several expert witnesses supplemented the tabulations by tes-
tifying as to the State of origin of most of the products sold to the Company.
The Respondents contend that the tabulations should not have been admitted
into evidence because they were hearsay and not the best evidence.
Section 10 (b) of the amended Act provides that unfair labor practice
proceedings shall be conducted "so far as practicable ... in accordance with
the rules of evidence applicable in the district courts of the United
States. . . ." The phrase "so far as practicable" "leaves it largely to the
discretion of the Board and the examiners whether they shall apply the
rules of evidence or not." (Senator Taft in 93 Daily Cong. Rec. 6676, June
6, 1947. )
We believe that the summaries are sufficiently reliable for their purpose
and were therefore properly admitted into evidence, even assuming, arguendo,
that they were not admissible under the technical rules of evidence. More-
over, the summaries appear to have been admissible even under such rules.
[See United States v. Mortimer, 118 F. (2d) (C. A. 2), cert. denied 314 U. S.
616, and Section 1855 of the California Code of Civil Procedure.] [Emphasis
supplied.]
As indicated above several interstate carriers are tenants of the Respondent.
Many of them maintain ticket offices for the sale of pullman and passenger
accommodations to the public. For the most part these offices are located on
the first floor. Each sales office is readily identifiable by the trade marks of
their respective companies as seen and recognized by the public for generations.
Managers of these various offices appeared and testified as regards the volume
of business transacted over a representative period by their respective offices.
Their testimony is summarized below:'
(1) Baltimore and Ohio Railroad Co-------------------- $591, 622.21
(2) Chesapeake and Ohio Railroad------------------------ 163, 464.78
(3) Louisville and Nashville R. R. Co--------------------- 222,000.00
(4) New York Central Railroad Co----------------------- 1, 468, 027.88
(5) Norfolk and Western R. R. Co----------------------- 49, 000.00
(6) Pennsylvania Railroad Company---------------------- 810,000.00
Total ------------------------------------------------- 3,304,114.87
It is a matter of common and notorious knowledge that each of the above
carriers is engaged in interstate commerce, and in the course and conduct of
their business maintain and operate passenger service throughout the several
States of the United States.
In addition to the passenger ticket service several interstate carriers maintain
offices in the Respondent's building for the purpose of soliciting freight haulage
over their respective lines. The record indicates and it is also a matter of
The undersigned deems it unnecessary to set forth herein the ticket sales of the
Canadian National Railroad and its affiliate the Grand Trunk Railroad , which according
to the testimony of its representative was in excess of $1,50,000.
THE DIXIE TERMINAL COMPANY 1461
general knowledge that this phase of the railroad business is highly competitive
and a friendly rivalry exists between those engaged in this field. For this
reason the undersigned understandingly permitted these representatives to
testify that the "carloads" solicited and obtained through their respective
offices was in "excess" of certain established figures. A summation of their
testimony in this regard follows below :
(1) Canadian National and Grand Trunk Railroads [includes car- Cara
loads routed through Canada] inexcess of_________________ 12,000
(2) Chicago, Milwaukee, St. Paul & Pacific Railroad-in excess of_ 50,000
(3) Chicago and Northwestern Railroad Company-in excess of__ 25,000
(4) Chicago, Rock Island & Pacific Railroad Company-in excess
of------------------------------------------------------ 25,000
(5) Florida East Coast Railway Company-in excess of_________ 67,000
(6) Illinois Central Railway Company-in excess of------------- 25,000
(7) Missouri, Kansas, and Texas Railroad Company-in excess of_ 15,000
(8) St. Louis-San Francisco Railroad Company-in excess of ---- 25,000
(9) Texas and Pacific Railroad Company-in excess of ---------- 12,000
(10) Wabash Railroad Company-in excess of___________________ 18,000
Total of carloads solicited-in excess of___________________ 279,000
In addition to the foregoing, representatives of the following carriers testified
that the gross value of the freight business in dollars and cents that cleared
through their offices was as follows :
(1) Atcheson, Topeka, and Santa Fe Railroad-in excess of____ $7, 500,000
(2) Western Pacific Railroad Company-in excess of__________ 1,439,282
Total------------------------------------------------- 8,939,282
Representatives and office managers of other nationally known enterprises
which maintain sales offices in the Respondent's building testified that the volume
of business transacted by their concerns through said offices was as set forth
below.? Their testimony in this regard was predicated on the same type of in-
formation as that used by the representatives of the interstate carriers which has
been described hereinabove.
(1) Owens-Corning Fibreglass Company___________________ $2,228,524.00
(2) Talon Manufacturing Company [ Zippers ]______________ 400,000.00
(3) Wyandotte Chemical Corporation_____________________ 4, 700,000.00
(4) Logan-Long Company [Asphalt shingles]-------------- 1,500,000.00
(5) Eli Lilley and Company [Pharmaceutics]-------------- 1, 000, 000. 00
Total---------------------------------------------- 9,800,524.00
In addition to the foregoing the Respondent also leases space to numerous
insurance companies such as American Insurance Company ; Commonwealth Life
Insurance Company ; Home Insurance Company ; Lumberman's Mutual Casualty
Company ; Mutual Benefit Insurance Company of Omaha, Nebraska ; Mutual Life
Insurance Company of New York (mortgage loan division), and to various indi-
vidual operators who sell various kinds of insurance for nationally known and
recognized companies. The "annual premiums received from operations in Re-
'The undersigned deems it unnecessary to set forth herein in detail the testimony of
each and every witness called by the General Counsel in support of his contention as re-
gards jurisdiction . He feels that a cross -section is enough to burden this report with on
this issue.
250983-vol. 102-53-93
1462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent building by each of these companies vary from $100,000 to $928,000.00.
The value of such insurance written out of these offices varies from about
$1,000,000.00 to $50,000,000.00 annually." e
The Respondent also leases space to a number of investment companies and
brokerage houses, such as Merrill Lynch, Pierce, Fenner and Beane, The Cin-
cinnati Stock Exchange, W. D. Gradison & Company, and Bashe & Company.
The value of the business performed by these concerns through their offices in
the Respondent's building is in excess of $10,000,000 per annum.
Among the lessees of the Respondent is the Little Miami Railroad Company
which maintains its principal office and place of business in the building. This
railroad owns the tracks used by the Pennsylvania Railroad Company between
Columbus and Cincinnati, Ohio. It leases its trackage to the Pennsylvania for
an annual rental in excess of $1,000,000 per year.
By and large the two most important tenants in the south building are the
Cincinnati, Newport and Covington Railway Company, which leases 49.15 percent
of the space, and the Western Union Telegraph Company, which leases 50 38
percent. As will be shown below, these companies clearly are literally and
physically engaged in commerce within the meaning of the Act in the use of
their leased property on the Respondent's premises.
According to the credible and undenied testimony of David L. Ringo, president
and general manager, the Cincinnati, Newport, and Covington Railroad Com-
pany, hereinafter called the Bus Company, is a Kentucky corporation engaged
in the transportation business, with its principal office and place of business
at Third and Court Streets, Covington, Kentucky. It operates under the rules and
regulations of the Interstate Commerce Commission and Department of Motor
Transportation of Kentucky. It operates busses for the transportation of people
in Kentucky and between Kentucky and Ohio. Other than picking up passengers
at its terminal in the Respondent's south building for transportation to and
from points in Kentucky it does no business in the State of Ohio! During the
year 1951 approximately 10,000,000 persons used its facilities for transportation
to and from points in Kentucky and Ohio. The approximate value of the fares
collected from the people who use the Bus Company's facilities was $1,200,000
during the year 1951.
Ringo's testimony was based on his official knowledge as president of the
Company and from data furnished him by employees under his supervision and
at his express request pursuant to the request made in subpoena duces tecum
served upon him by the Board's Regional Director for the Ninth Region, Cincin-
nati, Ohio.
H. R. Pace, superintendent in charge of the operations for the Western Union
Telegraph Company testified concerning his company's activities in the Cincin-
nati, Ohio, area. According to Pace the operations in the Respondent's building
consist of four departments, the main office, the relay office, an accounting depart-
ment where the business of its local office and that of other areas is handled, and
a plant and engineering department that services not only the Cincinnati area
but that of the company's operations elsewhere.
The main office serves the public in general.10 Here telegrams are handled and
8 Quoted portion from the General Counsel's brief and which is supported by the record.
0 The Bus Company does pick up passengers for Kentucky at points between the terminal
and the bridge across the Ohio River. It also discharges passengers from Kentucky in
the same manner.
10 The office which takes care of the sending of messages, money orders, and the like is
located in the north building at the corner of Fourth and Walnut Streets in downtown
Cincinnati, Ohio. This is a matter of common and notorious knowledge that the under-
signed takes judicial notice of.
THE DIXIE TERMINAL COMPANY 1463
the usual related services rendered that one usually expects from "Western
Union" across the land.
The business of company at its offices in the Respondent's building is best
stated in Pace's testimony" It follows below :
Q. Now, what is the function of the main office here in Cincinnati?
A. What is the function of the main office?
Q. Yes.
A. Well, briefly it is to serve the public ; accept and handle telegrams, and
related services.
Q. And your relay office, what is the function of that?
A. To receive incoming messages from other points and re-transmit them
either manually or automatically to destination.
Q. A relay office, do you have one of those in each city?
A. No.
Q. Does this relay office cover more than one state?
A. I explained that it served all the states of Kentucky, West Virginia,
Tennessee, and Ohio ; and of course it receives from and transmits to a great
many other points.
Q. Would you have any way of knowing the value of the business per-
formed by the company here in the Dixie Terminal Building?
A. I have that. For the year 1951-
Mr. SWIGERT: I object to the question. You want to ask him a question
how about what it is?
Mr. KIMMELL : Let him answer, and then I will ask him.
Mr. SwIGEmT : Well, he's answered your question. Now do you want to ask
him the amount, so I can have an opportunity to object?
Mr. KIMMELL : All right, Mr. Swigert.
Q. (By Mr. Kimmell) What is the amount?
Mr. SWIGERT : Now I object, for the reasons heretofore given.
Trial Examiner SHAW : Overruled.
A. The value of the business conducted at this location in 1951 was
$1,654,254.
Q. Sir, would you tell us the source of that information?
A. The source of that information is our monthly report provided by our
accounting center.
Q. Which came to you in the normal course of the business?
A. Sir?
Q. Which came to you, I presume , in the normal course of business?
A. That's correct.
Q. And from those documents you arrived at this figure, is that correct?
A. I don't know how to explain that, exactly. Each classification sepa-
rately, messages, money order messages , revenues, commercial news depart-
ment revenues, time service, miscellaneous of all kinds, like subrents and so
on, constitute the total revenues. They are provided in a breakdown similar
to that I have just mentioned, and are totalled monthly by the accounting
department.
Q. And from those monthly figures you arrived at this yearly figure?
A. That's right, I took the total for the twelve months.
Mr. KiMMELL : Your witness.
u Pace's testimony is set forth herein because it is typical of that of other witnesses
called by the General Counsel in support of his contention as regards the business of the
Respondent . See supra.
1464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As indicated above the undersigned has made no attempt to set forth in detail
herein the dollar value of each and every business enterprise that leases space
from the Respondent. What he has attempted to do is present a picture of the
Respondent's business in its relation to other enterprises which clearly are en-
gaged in interstate commerce. The General Counsel has set forth in his brief
a summation of the dollar value of the business of numerous enterprises (other
than the interstate carriers and the Western Union) which the record discloses
are clearly engaged in interstate commerce in relationship to the dollar value
of their rentals paid to the Respondent for the year 1951. The undersigned con-
siders his efforts in this regard to the point ; adopts them as his own and attaches
them hereto, marked "Appendix C."
The total dollar value of the rentals paid to the Respondent by the enterprises
listed on Appendix C is $194,099.40.
The total rental paid to Respondent by the interstate carriers is $85,315.12.
From the tenants in the south building, that is Western Union and the "Bus
Company" the Respondent receives $44,423.64.
In addition the Respondent receives from the Western Union Telegraph Com-
pany for rental of its office space in the north building the sum of $13,910.04.
From the foregoing the undersigned finds that the Respondent receives an-
nually for the space it rents and the services it renders to the interstate carriers,
and enterprises engaged in interstate commerce, an annual rental in excess of
$150,000 per year.
The Board's policy as regards the assertion of jurisdiction over office buildings
is set forth in its Sixteenth Annual Report, at page 15 to 39, particularly at page
16, where the Board said :
1. Instrumentalities and channels of commerce, interstate or foreign.'
2. Public utility and transit systems .6
3. Establishments operating as an integral part of a multistate enterprise'
4. Enterprises producing or handling goods destined for out-of-State ship-
ment, or performing services outside the State in which the firm is located,
valued at $25,000 a year.'
5. Enterprises furnishing goods or services of $50,000 a year or more to
concerns in categories 1, 2, or 4.°
6. Enterprises with a direct inflow of goods or materials from out-of-State
valued at $500,000 a year"
7. Enterprises with an indirect inflow of goods or materials valued at
$1,000,000 a year'1
8. Enterprises have such a combination of inflow or outflow of goods or
services, coming within categories 4, 5, 6, or 7, that the percentages of each
of these categories, in which there is activity, taken together add up to 100.1'
9. Establishments substantially affecting the national defense.''
5 W. B. S. R, Inc., 91 NLRB 630.
e Local Transit Lines, 91 NLRB 623.
7 The Borden Co., 91 NLRB 628.
8 Stanislaus Implement and Hardware Co., 91 NLRB 018.
8 Hollow Tree Lumber Co., 91 NLRB 635.
10 Federal Dairy, Inc., 91 NLRB 638.
n Dorn's House of Miracles, Inc., 91 NLRB 632.
12 The Rutledge Paper Products, Inc., 91 NLRB 625.
1H Westport Moving & Storage Co., 91 NLRB 902.
Applying the foregoing "standards" to the facts found above the undersigned
finds that the Respondent herein renders and sells services far in excess of the
$50,000 minimum set by the Board and consequently is engaged in an enterprise
THE DIXIE TERMINAL COMPANY 1465
which affects commerce within the meaning of Section 2 (6) and (7) of the Act.
There yet remains for disposal two questions raised by counsel for the Respond-
ent in his brief . Simply stated they are ( 1) that since the elevator operators
alone are involved herein, then a work stoppage by such employees would not
seriously interfere with interstate commerce because the bulk of the business
done by the interstate carriers and the Western Union Telegraph Company is
transacted either on the first floor of the north building or in the south building
and hence it is unnecessary for the public to use the elevators ; and (2) the
small amount of space used by other enterprises engaged in commerce, which
are housed in the north building as set forth in Appendices B and C , does not
warrant the assertion of jurisdiction . In other words , as the undersigned sees
it the Respondent urges that the "di-minimum " doctrine should apply to the facts
herein.
In the considered opinion of the undersigned the answer to the Respondent's
contention in this regard is found in the decision of the Seventh Circuit ( Chicago,
Illinois ) U. S. Court of Appeals in Joliet Contractors Association et at. v.
N. L. R. B ., No. 10323, January 7, 1952" In that case the Board dismissed the
complaint after a hearing was had before a Trial Examiner on the ground
inter alia that the business involved was too indirect and insubstantial to
warrant the exercise of jurisdiction . There the Respondent was a labor organi.
zation . The court , speaking through Major , circuit judge , said inter alia:
"[THE) AUTHORITIES]"
Pronouncements by the Supreme Court in a number of cases are persua-
sive that the Board employed an improper standard in measuring the impact
on commerce resulting from the Union 's activities . The cases make it plain
that such impact is not ascertainable merely by reason of the local nature
of the employer's activity . A pertinent statement is found in National
Labor Relations Board v . Fainblatt , et al ., 306 U . S. 601, 607 [4 LRR Man.
5351:
There are not a few industries in the United States which , though
conducted by relatively small units , contribute in the aggregate a vast
volume of interstate commerce . Some, like the clothing industry, are
extensively unionized and have had a long and tragic history of indus-
trial strife . It is not to be supposed that Congress , in its attempted
nation-wide regulation of interstate commerce through the removal
of the causes of industrial strife affecting it, intended to exclude such
industries from the sweep of the Act.
Equally pertinent is the statement in Polish National Alliance v. National
Labor Relations Board , 322 U . S. 643, 648 [14 LRR Man. 700):
Congress has explicitly regulated not merely transactions or goods
in interstate commerce but activities which in isolation might be deemed
to be merely local but in the interlacings of business across state lines
adversely affect such commerce . . . . Whether or not practices may
be deemed by Congress to affect interstate commerce is not to be de-
termined by confining judgment to the quantitative effect of the activi-
ties immediately before the Board . Appropriate for judgment is the
fact that the immediate situation is representative of many others
throughout the country , the total incidence of which if left unchecked
may well become far-reaching in its harm to commerce.
23 Bee 20 LRRM 2274 at page 2282 at. seq.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In United States v. Women's Sportswear Mfrs. Assn., et al., 336 U. S.
460 [23 LRRM 25191, the court in a Sherman Act case in discussing the
effect of certain activities on commerce stated (page 464) :
This may or may not be the nature of their operation considered alone,
but it does not matter. Restraints, to be effective, do not have to be
applied all along the line of movement of interstate commerce. The
source of the restraint may be intrastate, as the making of a contract or
combination usually is ; the application of the restraint may be intra-
state, as it often is; but neither matters if the necessary effect is to
stifle or restrain commerce among the states. If it is interstate com-
merce that feels the pinch, it does not matter how local the operation
which applies the squeeze.
[DISCRETION OF BOARD]
It must be recognized, of course, that the cases cited and many others
to which reference could be made were in response to an attack upon the
jurisdiction of the Board because of the local nature of the enterprises
involved. But even so, the courts in these and many other cases have
fashioned a yardstick by which the impact on commerce is determinable,
and we perceive no reason why the same yardstick should not be utilized in
the instant and similar cases in measuring the impact which the Union's
boycott had upon commerce. We do not think the Board has the unbridled
discretion to evaluate such impact by any standard which its fancy may
suggest as expedient in a particular case. This yardstick often employed
by the Board and approved by the courts does not square with the Board's
treatment in the instant case of the contractors separately and independ-
ently of each other and of the building and construction industry in the
Joliet area purely as a local activity.
While it is quite true that in the above-cited case the building and construction
industry was involved, nevertheless, the undersigned is convinced that this
factor is beside the point for the reason that the courts dictum and reasoning
as regards the question of jurisdiction is applicable not only to the facts in the
instant case but to all cases that come before the Board. Consequently the
undersigned finds the Respondent's contentions in this regard are without merit.
Upon all of the foregoing the undersigned finds that the Respondent, The
Dixie Terminal Company, is engaged in commerce within the meaning of Sec-
tion 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
From the activities of the Respondent's employees in their efforts to act con-
certedly as described and found hereinbelow, the undersigned finds that the
Building Service Employees International Union Local No. 158-A, Building
Service Employees Union, AFL, is a labor organization within the meaning of
Section 2 (5) of the Act's
III. THE UNFAIR LABOR PRACTICES
A. Interference with, restraint, and coercion
The events with which we are concerned herein began sometime in the latter
part of November 1951. At that time W. H. Mohlman , business agent and treas-
" In its answer the Respondent denies that the Union is a labor organization within the
meaning of the Act.
THE DIXIE TERMINAL COMPANY 1467
urer for the local union, decided to organize the building service employees in the
Respondent's building. With that in mind he went to the building and tried
to see James Ross, a freight elevator operator of whom more anon. Ross was
working at the time, and he was unable to see him . Later that same day he met
Ross outside the building and introduced himself. At this time Ross was unable
to talk to Mohlman due to a previous engagement . Mohlman then gave him
one of his business cards and requested that he get in touch with him at his
earliest convenience. Sometime in the early part of December 1951, Ross
called at Mohlman's office. In the conversation that ensued Mohlman explained
to him the advantages of unionization and what the Union would attempt to do
to better the working conditions of the Respondent's building service employees,
such as wage increases, etc. Ross told Mohlman that he thought the employees
would be interested and agreed to assist him in his organizational efforts.
Mohlman then cautioned him to be careful to not let the Respondent learn of his
activities in this regard.
Thereafter Ross talked to a number of his coworkers about the Union and
what it might be able to do for them. In the course of his conversation several
of the employees apparently were skeptical about the ability of the Union to
assist them in bettering their working conditions, and in addition they were
concerned about the dues and the initiation fees that they would be required
to pay. Ross could not answer all of their questions and suggested that in order
to assure themselves that he was on the "up and up" so to speak, that they
select from amongst themselves somebody to go with him to Mohhnan' s office
and secure the information they desired. In other words the employees would
then have the word of some other employee as to what the Union proposed to do
for them. The employees agreed with Ross' suggestion and selected Walter J.
Cinser, an assistant elevator starter, to go with him to see Mohlman.
Shortly thereafter Ross and Cinser went to the Union' s office and queried
Mohlman as regards the question raised by the employees. Mohlman explained
to them the Union's policy as regards initiation fees, dues, and the like. Cinser
was forced to leave the meeting and go to work. Ross , however, stayed and
talked to Mohlman. In the course of their conversation Mohlman gave him
some application-for-membership cards and asked him to have the employees sign
them.
Ross took the cards to work with him the next day. He gave Cinser a portion
of the cards and kept the rest for his own use. He and Cinser then contacted the
employees and solicited their membership in the Union. From what the under-
signed can glean from the record Ross confined his activities to the service
employees in general and Cinser to the elevator operators. Ross signed up ap-
proximately 5 of the service employees, and Cinser 9 of the elevator operators.
On Saturday, January 12, 1952, Lightfield, the manager of the Respondent's
building, called several of the elevator operators to his office and questioned
each privately, as regards the concerted activities of the employees. Several
of these employees testified at the hearing herein. A summation of their testi-
mony follows below.
Thomas Schmidt, an elevator operator employed by the Respondent at all
times material and at the time of hearing herein, testified that he entered the
Respondent's services on January 9, 1952. On that date Cinser asked him to join
the Union and to sign an application-for-membership card. He agreed to do
so providing the other employees signed. After being informed that they had,
he then signed a card and gave it to Cinser. On Saturday morning, Janu-
ary 12, 1952, Lightfield called him to his office. Present in the, office with
Lightfield was Wood, the building superintendent. The three were alone in the
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
office. Lightfield asked Schmidt if he had signed a union card and who gave it
to him to sign. Schmidt told Lightfield that Cinser asked him to sign the card
and that he told Cinser at the time that he didn't want to sign unless the other
operators did so, and upon being assured that they had, he signed a union card.
According to Schmidt this constituted the entire conversation.
Schmidt was subjected to vigorous cross-examination by counsel for the Re-
spondent particularly as regards what transpired and what was said in his con-
versation with Lightfield. Since the undersigned considers Schmidt's testimony
on cross-examintaion of the utmost importance, he is convinced that excerpts
therefrom should be set forth hereinbelow as it appears in the official transcript
of the record.
Q. Now, when you were called into Mr. Lightfield's office and he asked you
who gave you the card, isn't it a fact that you answered that you didn't
remember who gave it to you?
A. No, I didn't say that. I said Cinser gave it to me.
Q. Are you sure that you mentioned Mr. Cinser's name?
A. Yes, sir.
Q. What makes you positive of that?
A. Because he's the only one that gave it to me.
Q. But what makes you positive that you told that to Mr. Lightfield on
that occasion?
Mr. KIMMELL. I object.
Trial Examiner SHAW. Overruled. This is cross-examination.
A. He asked me who gave me the card, who did 1-
Q. Yes, but-
Trial Examiner SHAW. Let him finish his answer.
A. (Continued) He asked me who I received the card from, and I told him
Cinser.
Trial Examiner SHAW. All right.
Q. (By Mr. Swigert ) But I say, what makes you sure, if anything does,
that you told him Cinser, rather than that you didn't remember who gave
it to you?
A. Oh, I wouldn't say that, because I tell the truth.
Q. And you are positive that you mentioned Mr. Cinser 's name?
A. Yes, sir.
Q. Did you mention anybody else's name?
A. No, he didn't ask me.
Q. So that was the only name that you mentioned?
A. That's the only one I had a contact with.
Q. And when did you first meet Mr. Cinser?
A. Oh, I met him in '51 when I worked there once before for a month.
Q. So you had known him back from 1951?
A. April and May I worked there.
Q. You worked there in April and May of '51?
A. And then I quit, and went back on the farm.
Nelson Fischesser, employed by the Respondent as an elevator operator at
all times material herein, testified as follows : " Sometime in the early part
of January 1953, Cinser asked him to sign a union card, and at the time told
him that the other employees had done so. He signed the card as requested
and gave it back to Cinser. On Saturday morning, January 12, 1952, he was
14 At the time of the hearing herein Fischesser was no longer in the Respondent 's service,
but was working elsewhere . He appeared and testified at the hearing herein under
subpoena.
THE DIXIE TERMINAL COMPANY 1469
called to Lightfield's office and queried as to whether or not he had signed a
union card and if so who gave it to him to sign . He told Lightfield that Cinser
gave him the card, and that he signed the card after Cinser assured him that
the other operators had done so. Wood, the building superintendent, was
also present at the time he was interrogated by Lightfleld about his union
activities. No one else was present. The three were alone.
Fischesser, like Schmidt, was subjected to vigorous cross-examination by
counsel for the Respondent . For the same reasons that persuaded the under-
signed to set forth above excerpts from Schmidt's testimony on cross-
examination, he sets forth below excerpts from that of Fischesser.
Q. Who was with you when you were in Mr. Lightfield's office? Was Mr.
Woods there?
A. Yes, sir.
Q. Was anyone else?
A. No.
Q. When you first mentioned the name in your testimony here a few
moments ago, of the assistant starter who gave you the card, I think you re-
ferred to him as Mr. Winzer, and then you changed it to Cinser, is that
correct?
A. I didn't know for sure what his name was . He was the assistant
starter, the blond-headed man.
Q. You didn't know Mr. Cinser before you started to work at the Dixie
Terminal Building, did you?
A. No, sir.
Q. And did you know him very well while you were there?
A. No, I never.
Q. Isn 't it a fact that when you were asked by Mr . Lightfield who gave
you the card you said you didn 't know the man's name?
A. No, I told him who gave me the card.
Q. You are sure that you did that?
A. Yes, sir ; and I also told him that he told me they all had cards, that
they all signed cards.
Trial Examiner SHAW : You mean Mr . Cinser told you that they all had
signed cards?
The WITNESS : Yes, sir.
Q. (By Mr. Swigert) That is, you told Mr. Lightfield that the assistant
starter told you that all the others had signed the cards.
A. Yes, that they signed the cards.
Q. Now, are you sure that you used Mr . Cinser's name, or did you refer
to him in some other way on that occasion?
A. I don 't think I spoke his name, because I don't know if I knew his
name, but I told him the man who had given me the card, I told him the as-
sistant starter had given me the card.
Q. But you didn't use his name, probably?
A. I think he asked me if it was him that gave me the card.
Q. Are you sure that Mr. Lightfleld mentioned his name?
A. Yes.
Q. You are positive he did?
A. Yes, sir.
Q. Did Mr. Lightfield mention any other names?
A. No, I don't believe so.
Q. You didn 't mention anybody's name while you were in the office and
Mr. Lightfield you say mentioned Cinser 's name, is correct?
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Yes.
Q. And you are appearing here under subpoena are you, today?
A. Yes, sir.
Mr. SWIGERT. I have no further questions.
Vernon Banks, employed by the Respondent as an elevator operator, testified
that James Ross asked him to join the Union and sign an application-for-mem-
bership card, which he did after being assured that other employees had done
likewise. He was called to Lightfield's office on the morning of January 12, 1952,
and interviewed by Lightfield in the presence of Wood as regards his knowledge
of union activities amongst the employees in the same manner as Schmidt and
Fischesser which has been described above.
Banks, however, did not divulge to Lightfield who the person was that solici-
tated his membership in the Union, but told him when queried about signing a
union card that "some guy" gave him card on the elevator and that he threw it
away and did not sign it. At no time did he tell Lightfield that Ross either
solicitated his membership in the Union or gave him a card to sign. At the time
of the hearing herein Banks was still employed by the Respondent as an ele-
vator operator.
Henry Brock and Richard Ravine, employed by the Respondent as elevator
operators at all times material herein, both testified that Walter Cinser asked
them to sign union cards; and that they did and returned the cards to him.
They also testified that they were called to Lightfield's office on the morning of
January 12, 1952, and queried by Lightfield in the presence of Wood as regards
their union activities, and in particular as regards who the person was that
solicited their membership in the Union and asked them to sign union cards.
Both told Lightfield that some unknown individual gave them the cards. Neither
of them told Lightfield that Cinser had solicited their membership and asked
them to sign a union card. Nor did they mention Cinser's name in any respect
when interviewed.
James Ross concerning whom reference has been made herein above, testified
that Superintendent Wood took him up to Lightfield's office on Saturday morn-
ing, January 12, 1952, and that Lightfield queried him as regards his union
activities, in about the same mode and manner as described above in the testi-
mony of Schmidt, Fischesser, and the other employees mentioned. Lightfield
started the conversation off by asking Ross what he knew about "this Union
Lusiness." Ross asked him what information he desired. Lightfield then asked
him if he had signed a union card and Ross told him that he had not, but that he
intended to do so. Ross also told Lightfield about certain grievances the
employees had and suggested that if he would meet with the employees as a
group instead of calling them up to his office one by one, and talk to them about
their working conditions and hear their grievances things could be settled
and the "whole thing would blow over." Lightfield told Ross that his sug-
gestion was a good one, but when Ross offered to arrange such a meeting
Lightfield declined his offer and told him that he would do it himself. Ross
returned to his work and did not see Lightfield again until Monday, January
14, 1952, of which more anon.
Lightfield admitted that he interrogated the employees in the mode and manner
described above by the witnesses called by the General Counsel. His testimony
in this regard is in the considered opinion of the undersigned of sufficient im-
portance to be set forth herein for the same reasons that excerpts of the testi-
mony of the witnesses Schmidt and Fischesser were set forth hereinabove,
particularly in view of the fact that Lightfield denied that any of the employees
THE DIXIE TERMINAL COMPANY 1471
interrogated by him on the morning of January 12, 1952 , identified the person
who solicited their membership in the Union.
Q. And did those men come to your office individually or in a group?
A. Individually.
Q. And what took place in each of those conferences?
A. In each case I asked them if they had been approached by a Union
representative, and in each instance they said yes. I asked them what had
occurred, and they said they had been given a card by the Union agent.
In each case, I asked them had they signed the card. In the case of
Ravine, Schmidt, Fischesser, they said they had signed the card. In the case
of Banks and Brock, they said they had thrown the cards away. In the case
of Ross, he told me that he still had the card at home and he hadn't made
up his mind what he was going to do.
Q. You heard the testimony of Mr. Ross here when he stated that he told
you that he was going to sign the card. Does that refresh your recollection
as to what he told you?
A. No, James Ross told me he hadn't made up his mind what he was
going to do.
Q. He told you he had not made up his mind?
A. That is right.
Q. Well now, did you ask any of these men who gave them these cards?
A. I asked each man that question. Their answer in each case was they
didn't know who he was.
Q. Well now, you have heard the testimony-
A. They described him as the business agent ; they didn't know who he
was.
Q. You have heard the testimony of two of these men, and they told
you Mr. Cinser, or the starter, gave them those cards. Does that refresh
your recollection as to what was said?
A. The word "starter" or "Cinser" or no name was mentioned in any
case, in any event.
Q. You say no one mentioned the name of Mr. Cinser?
A. No one.
Q. No one mentioned the starter?
A. No one, no.
Q. Or the assistant starter?
A. No. They said they didn 't know. They described him as the business
agent, they understood him to be a business agent. They didn't know who
he was.
Q. And was that true of every single one of these six men?
A. That is right, yes.
Wood , who was present throughout the interviews and who selected the
employees to be interviewed, testified as follows :
Q. And what is your recollection of those conferences and the events
leading up to them?
A. I went into the office with my reports, as is usual every morning.
Mr. Lightfield said he would like to talk with some of the elevator operators,
and he said bring them into his office when it was convenient.
Q. What day of the week was this?
A. It,was on a Saturday morning . I brought them into his office one at
a time and-
Q. Whom did you bring in, what men?
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I don't know in what order, I don't know, but I brought in six of them.
It was Elmer Schmidt, Vernon Banks, Nelson Fischesser, Jim Ross, and
Henry Brock.
Q. And what took place in each of these conferences in Mr. Lightfield's
office, to the best of your recollection?
A. Mr. Lightfield asked them about the same thing, if they had been con-
tacted to join a Union, who had contacted them, if they had received a
card, who they had received it from, and what they did with it.
Q. And do you remember the answers that were given to those questions?
A. I believe so. In the case of Vernon Banks and Brock, they said they had
not signed the card ; and Fischesser and Schmidt and Ravine-I don't be-
lieve I mentioned his name-said they had signed. Jim Ross said that he
did not, and he hadn't decided whether he was going to or not.
Q. Well now, whom did they say gave them the cards?
A. They said a business agent ; they did not described him any further.
Q. Well now, which individuals are you talking about?
A. They all gave the same answer in about the same words.
Q. Was there any reference to anyone other than a business agent as
having given the cards or talked to them about Union activity?
A. No, sir.
According to Lightfield his purpose in interviewing the employees was occa-
sioned by rumors that he had heard to the effect that a business agent had been
seen about the building. And also by the fact that he had personally seen an
unknown man riding up and down the elevators talking to the operators. When
he put the two incidents together, he had a "hunch" or as he expressed it "feel-
ings" that there was union activity in the building. In order to satisfy his
"feelings" in this regard he decided to interrogate the employees in the mode and
manner described above. And for the further reason that he felt that as
manager of the building it was his business to know whether or not the employees
under his supervision were engaged in such activity.
As indicated above, both Schmidt and Fischesser testified on both direct and
cross-examination that they told Lightfield in the presence of Wood, in their
separate interviews, that it was Walter Cinser, the assistant starter, that solicited
their membership in the Union and asked them to sign application-for-member-
ship cards. Both were subjected to vigorous cross-examination as has been
shown above, and neither "budged" from their original testimony on direct
examination.
On the other hand Lightfield and Wood denied that Cinser's name was men-
tioned one way or another by any of the employees who were interrogated con-
cerning their union activities.
Schmidt and Fischesser impressed the undersigned as honest and forthright
witnesses. Their demeanor on the stand was good, and they forthrightly resisted
all attempts of counsel to change their testimony on cross-examination as regards
Cinser's activities on behalf of the Union. This is particularly true as regards
Schmidt who of the two was subjected to the more vigorous cross-examination as
the record amply demonstrates. Moreover, he had no interest one way or the
other concerning the outcome of the litigation which is before us.
Lightfield on the whole did not impress the undersigned as a forthright wit-
ness. His testimony on direct examination was, for the most part, narrative in
form, and it seemed to the undersigned that he had anticipated that the General
Counsel would of necessity call the employees he had personally interrogated on
the morning of January 12, 1952, as witnesses in this proceeding and had antic!-
THE DIXIE TERMINAL COMPANY 1473
pated the testimony of Schmidt and Fischesser as regards their version of what
transpired when he interrogated them , and that with this in mind he carefully
calculated and planned his testimony on this vital issue well in advance of the
hearing herein . Again, as will be shown hereinafter, there are certain improb-
abilities in his testimony concerning the alleged discriminatory discharge of
Ross and Cinser that are compelling factors in the undersigned 's resolution as
regards his credibility as a witness.
Wood, likewise , did not impress the undersigned as an exactly forthright wit-
ness . For example , his testimony as regards some of the events surrounding
the discharge of Ross just simply do not ring true, such as his avowal to Ross
that he was not consulted and knew nothing whatever of Lightfield's decision to
fire him until it was an accomplished fact. While such little incidents as this,
alone, may be of no importance neverthless, when put with others of a similar
nature, they all add up and become factors in the ultimate determination of the
credibility of any witness. Resolution of credibility is always difficult and
requires long and careful analysis by a trier of the facts before he is able to
satisfy himself as to the issue. Having resolved it after such contemplation he
has no alternative but to be specific in his findings and let the chips fall where
they may.
Consequently the undersigned credits the testimony of Schmidt and Fischesser
and finds that they did in fact tell Lightfield at the time he interrogated them
that it was Cinser who gave them the union application-for-membership cards
and solicitated their membership in the Union.
Concluding Findings
Having found that Lightfield, the manager of the Respondent's building, called
six of the elevator operators to his office one at a time and interrogated them in
the mode and manner described above, the undersigned is convinced and finds
that such interrogation constituted interference with, restraint, and coercion of
the rights guaranteed employees in Section 7 of the Act , and hence specifically
violative of Section 8 (a) (1) of the Act.
In reaching this conclusion the undersigned has given careful consideration to
the contentions of the Respondent in its brief that Lightfield's conduct was
nothing more than the proper exercise of free speech, and since his remarks were
not coupled with threats of reprisal or promises of benefits they were doubly
protected by the provisions of Section 8 (c) of the Act. The undersigned has
also considered and is thoroughly familiar with the cases cited by Respondent
in its brief in support of its position in this regard. Such as the Tennessee
Coach Company case and the Winer case.15 As the undersigned sees it, these
cases and others cited by the courts in their separate decisions are not applica-
ble to the facts hereinl° For example, in the Winer case the alleged acts of
interference with, restraint, and coercion were committed in a background of
open discussion and banter back and forth amongst employees and supervisors.
Here the employees were interrogated in an entirely different atmosphere, each
was escorted by the superintendent to the office of the manager of the building,
privately subjected not only to inquiries as regards the existence of union
activities amongst the employees but specifically interrogated as to who was the
instigator of the activity and who had solicited their membership in the Union.
When the latter is coupled with the former then the undersigned is convinced
11 See N. L. R. B. v. Tennessee Coach Co., 191 F. 2d 546 (C. A. 6, 1951) ; N. L. R. B. v.
Winer, 104 F. 2d 370 (C. A. 7, 1952).
a° See infra in re a recent case decided by the U. S. Court of Appeals for the Sixth Circuit.
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that such interrogation in the setting described above becomes interference with,
restraint, and coercion within the meaning of Section 8 (a) (1) of the Act, and
goes beyond the privileges sanctioned in Section 8 (c) of the Act.
In the considered opinion of the undersigned when an employer interrogates
his employees in the mode and manner described above, then the position of the
parties in relation one to the other are significant factors in determining whether
such conduct is beyond the protection of Section 8 (c) of the Act. Particularly
where an employer in such a setting requires employees to divulge the name of
their coworker who was responsible for their efforts to exercise the right guaran-
teed them by Section 7 of the Act. 14 This is especially true where an employer
thereafter discriminately discharges the employee whose name they divulged to
him at the times he subjects them to such interrogation 1'
B. The discriminatory discharges
1. Walter J. Cinser
Walter J. Cinser was employed as an elevator operator by the Respondent on
March 16, 1949. After working about a month as an operator he was promoted
to acting starter. He served in this capacity until September 1950. At that
time the Respondent appointed one William Denny to the starter's position, and
Cinser was retained as relief man. As relief man it was his job to relieve the
operators during their respective lunch and relief periods. At that time each
operator had a 15-minute relief period in the morning and one in the afternoon.
In addition each was permitted a period for lunch at noon. In performing his
duties he would circulate around from one elevator to another as the starter's
relief periods came up. Cinser continued on the job as assistant starter and/or
relief man until he was discharged on Sunday, January 13, 1952.
As indicated and as found above, Cinser was one of the instigators of the union
activities amongst the Respondent's employees. In fact, as the record clearly
shows, the most active protagonist for the Union amongst the elevator operators.
His activities have been described above, and will not be reiterated in this
section of the report.
According to Cinser the circumstances surrounding his discharge were as
follows : On Sunday, January 13, 1952, he reported for work at about 12:30
p. m., as was his custom. Upon arrival at the building he went to the locker
room on the 10th floor to change his clothes. There he met Lightfield, who re-
quested that he report to Wood's office at once. Cinser did so . Upon arrival
there he found Lightfield and Wood. No one else was present . There were
neither salutations nor exchange of pleasantries between them ; Lightfield
reached into his pocket and handed Cinser a check. Cinser asked him what
the check was for, Lightfield's only reply was "That's it." He refused to give
Cinser a reason for his discharge then and as far as the record is concerned
has never done so. Lightfield also refused to give the "Ohio Bureau of Unem-
ployment Compensation" any reason whatsoever for Cinser' s discharge despite
the fact that he was requested to do so by that bureau .'' The record also shows
that Cinser was never warned, censored, criticized, or reprimanded for any dere-
lictions in his duties by any representative of management throughout his entire
tenure of employment ; regardless of this record however, he was summarily and
abruptly discharged with the curt remark of "That's it."
11 See N. L. R. B. V. Kropp Forge Co., (C. A. 7,1949); J. S. Abercrombie Co., 83 NLRB
524.
is See infra.
19 See comment by Bureau on General Counsel's Exhibit No. 12.
THE DIXIE TERMINAL COMPANY 1475
Lightfield's explanation and his reasons for discharging Cinser are,,in the
considered opinion of the undersigned, best told in his own words. Accordingly,
the undersigned sets forth below excerpts from his testimony in this regard:
Q. (By Mr. Swigert) Well now, the testimony you heard is that on the
13th, Cinser was discharged by you. Can you tell us what occurred on that
occasion, to the best of your recollection?
A. I had his check made up the previous day by our bookkeeper and came
down on a Sunday shortly after noon. Cinser was due to go on duty at 1
o'clock. I called him to the Superintendent's office when he came, and
handed him his check and told him he was discharged.
Q. Why did you fire him?
A. Cinser had been an acting starter for some time prior to the previous
starter's tour of duty, a man by the name of Robert Denny, and when Denny
took over, Cinser took on his duties again as an assistant starter. During
that past week, after a study of the situation, it seemed logical to me that
we were going to be without a starter the following week, that Cinser,
being an assistant starter, would want the job again, or think he ought to
have the job again. From past experience with the man, it didn't seem
feasible or sensible to give him a job. Under those conditions, I felt that
he, being a normal individual, would be disgruntled, unsatisfied, being
passed up, and it would be best for us to start with a clean slate and bring
some other man from within the organization to do the job.
Q. Had you had any complaints of any kind about Cinser?
A. Yes, from time to time particularly tenants, on a Sunday when Cinser
was on duty, have remarked to me, not come into the office, but they would
say something on the elevator or as I passed them in the building. "That
Sunday man you had here yesterday, was he in bed Saturday night, or do
you think he drinks? His eyes seem bloodshot." I have those remarks
passed to me any number of times in connection with Cinser.
As the undersigned sees it Lightfield's reasons for discharging Cinser were
psychological, in that he was afraid to keep Cinser on the job as assistant starter
on the theory that his mental processes be in such a state after having been
bypassed for promotion to starter that his resulting attitude towards his job
would be of such a nature that it would seriously damage the morale of the other
employees. In other words his anticipated sulkiness would be contagious and
communicated to his coworkers to such an extent that it would injure their
morale. Lightfield's subsequent testimony on this point, to some extent supports
the undersigned' s reasoning in this regard. An excerpt from his testimony in
this regard follows below :
A. Well, from my experience with employees, I have always found that a
man, if he is a normal person at all with any drive, and Cinser certainly
had a certain amount of that, or else he wouldn't have gotten as far as
acting starter, would be resentful; if not that, at least unhappy in his job,
if he is bypassed a second or third time. It is just human nature to be that
way. I would be that way, myself. I think any normal person would be
that way.
Q. By that, you mean you had made up your mind not to give him the
starter job before you had decided to discharge him?
A. Yes, sir.
Trial Examiner SHAW. Denny, as I understand it, he was a starter?
The WITNESS . He was a starter.
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner SHAW. In other words, I gather your testimony adds up
to this, that in order to keep down any friction at all, when you discharged
Denny you discharged Cinser?
The WITNESS. That's right.
Trial Examiner SHAW. So that he wouldn't be in a bad humor because
he didn't get the starter's job?
The WrrNESS. I had to think in terms of both of them.
Wood, the superintendent of the building, testified that he had nothing to do
with Cinser's discharge and that the first he knew about it was when Lightfield
brought him into his office on Sunday afternoon , January 13, 1952, and dis-
charged him.
According to Wood, he was the superintendent of the building and at the time
of the hearing herein had held that position since about the middle of June 1951.
His duties generally speaking were to supervise the employees and to see that
their work is done in accordance with the "standard practice" of the Respondent.
He interviews prospective employees and recommends their employment. He
does no hiring himself, but merely recommends it. The same is true as regards
discharging employees, that is he merely recommends that an employee be dis-
charged. As indicated above he testified that he was neither consulted as
regards the discharge of Cinser nor was he informed by Lightfield prior thereto
that such action was even contemplated.
From all of the above and upon the record as a whole the undersigned is con-
vinced that the real reason for Cinser's discharge was because of his member-
ship in and activities on behalf of the Union. The undersigned has found above
that the Respondent received positive information of Cinser's activities on the
morning of January 12, 1952, at the time Lightfield privately interrogated six of
the employees in his office as regards (1) their knowledge of union activities,
and (2 ) the name of the individual who was responsible for such activities.
The undersigned has given long and careful consideration to this case, he
has read and reread the record, the briefs of the parties, and the cases cited
therein in support of their respective positions. In arriving at this determina-
tion several factors have been most persuasive to him. For example, the under-
signed cannot bring himself to the belief that the manager of an enterprise such
as the Respondent's business would deliberately conceal from his superintendent
for a week the fact that he had determined to discharge two employees on a
certain date. Particularly when one was a supervisor, and under the direct
supervision of the superintendent who in turn was responsible to the manager
for the activities of such employees. The undersigned does not believe that
Lightfield would deliberately bypass Superintendent Wood and make a change
in personnel in the latter's department without at least conveying to him his
intent to do so, in some way, shape, or form before it became an accomplished
fact. Having been thus persuaded by the record the undersigned is convinced
that neither Lightfield nor Wood gave a true and accurate account of the events
leading up to the discharge of both Cinser and Ross (of whom more anon).
Again, Lightfield's refusal to give either Cinser or the Ohio Bureau of Un-
employment Compensation any reason for the discharge has also been a very
persuasive factor for the following reasons. In the first place if Cinser was
discharged for just cause as Lightfield insists that he was, then why should
he refuse to give such information? If the discharge was for cause then what
harm would befall either himself, the Respondent, or anybody else to say so?
That is the sole question he was asked by Cinser and by the Ohio Bureau of
Unemployment Compensation. He chose to ignore it. In the considered opinion
THE DIXIE TERMINAL COMPANY 1477
of the undersigned Lightfield 's position in this regard doesn 't "ring true" so to
speak , unless it was because he had reason to conceal the truth . Which, the
undersigned is convinced , was the real reason. In reaching this determination
the undersigned is not unmindful of the fact that under a recent amendment to
the Ohio law employers are not required to give any reason for the discharge of
an employee. But this is beside the point, the undersigned is not concerned
with the provisions of the Ohio law in this regard, that matters not a whit, but
he is concerned with the resolution of Lightfield's credibility as a witness. To
that extent alone has he considered the testimony in the record as regards the
provisions of the Ohio unemployment insurance law.
Upon all of the foregoing and upon the record as a whole, the undersigned
is convinced and finds that the reasons advanced by the Respondent for the dis-
charge of Walter J. Cinser on January 13, 1952, were not the real reasons, but
mere pretext, and that the only reasonable inference that it is possible to draw
from the facts found herein is that the Respondent discharged Cinser because
of his membership in and activities on behalf of the Union, and that by such
conduct discouraged concerted activity amongst its employees and thereby
violated Section 8 (a) (1) and (3) of the Act.
There yet remains another issue to be resolved as regards Cinser, and that is
the Respondent's contention that he was a supervisory employee, and conse-
quently as such was beyond the pale of the Act.
According to the record as the undersigned interprets it, Cinser was not a su-
pervisory employee as defined in the Act. For the most part he was a relief
operator, relieving each operator on duty twice each day for a 15-minute period
and at lunchtime. When not so occupied he acted as starter for about an hour
a day . He was paid by the hour and received the same rate per hour as the
other operators . No member of management ever told him that he was a super-
visor and outlined to him his authority as such.
As the undersigned interprets the record Cinser spent about 90 percent of his
time operating an elevator, and about 10 percent as a starter. There is no sub-
stantial evidence in the record that be had the authority to hire and fire, or to
effectively recommend such action. The uncontradicted and undenied testimony
in the record is to the contrary. According to Cinser, he had on a few occasions
pointed out to his superiors errors made by some few of the operators which he
had observed while acting as a starter , and that his suggestions were ignored
in toto.
In the considered opinion of the undersigned any authority that Cinser might
conceivably have had would of necessity, due to the very nature of his duties,
have been exercised only on infrequent and sporadic occasions . Under all the
circumstances the undersigned is convinced and he so finds that the record as
a whole does not warrant a finding that Cinser was a supervisor."
2. James Ross
James Ross entered the service of the Respondent sometime in 1947, and at
the time of the hearing herein had been steadily employed until he was dis-
charged on Monday , January 14,1952 . He was first employed as assistant janitor
foreman. He worked as such for about a week . He was then made a watchman
and worked as such for about 4% years. As a watchman he performed the
duties usually associated with that job, such as patrolling the building, locking
up offices , putting the windows down, and a host of other things . In addition
" See Southern Industries Company , 92 NLRB 998 ( 1950) ; Carolina Power & Light
Co., 80 NLRB 1821 ( 1948).
250983-vol. 102-53--94
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to his duties as a watchman during this 4y2-year period he acted at times as a
relief operator on the freight elevator, when the regular operator went to lunch.
Sometime in August 1951 he asked Lightfield for a job as elevator operator.
Shortly thereafter Lightfield gave him the freight elevator job. In addition he
helped out as watchman on Sundays. He was so employed at the time of his
discharge on January 14, 1952.
As indicated above Ross was the first of the Respondent's employees to engage
in union or concerted activity. His activities in this regard have been set forth
above, and will not be reiterated here.
At this time it might be well to visualize Ross as he appeared to the undersigned
'while he was testifying. He was a little short gray-haired Irishman, somewhere
between 60 and 65 years of age. He was neat and clean in his appearance,
smooth shaven, ruddy complexioned, and blue eyed. He appeared to be about
5 feet 7 inches tall and inclined to be a little on the "stout" side. In answer to
questions posed him by counsel for all parties he was courteous and straight-
forward in his answers. At no time did he "hedge" or act in an evasive manner.
To the undersigned he was an impressive witness.
As indicated above, Ross was one of the employees interrogated by Lightfield
on Saturday morning, January 12, 1952. When queried by Lightfield as to
whether or not he had joined the Union, Ross replied that he had not as of
that particular time but that he intended to do so. Since Ross' testimony in
this regard is of the utmost importance in the disposition of the case the under-
signed feels that an excerpt from his testimony in this regard should be set
forth herein. Accordingly, it follows below :
Q. What happened when you got to Mr. Lightfield's office?
A. Mr. Lightfield asked me, "Jim," he says, "What do you know about
this Union business?"
Q. What did you say?
A. I asked him I says, "What do you want to know?"
Q. What did he say then?
A. He said, "Have you signed a card?" I said, "No." He said, "Are you
going to?" I said, "Yes." Then he asked me what was the matter. I
had got a raise, wasn't I satisfied with it? I says, yes, I was satisfied with
it, but there was other things besides the wages. Then I asked Mr. Light-
field if the Company had any objection to the men joining a Union. He
said that was a legal question. And then I asked him, "Have you got any
objection to it?" He says, "I can't answer that."
Q. Was there anything else said during the conversation?
A. Well, he asked me about what the condition were. Now, I knew there
was other conditions that I didn't mention to him at the time.
Trial Examiner SHAW : Well, just what you told him, that's all.
The WITNESS: Just what I told him?
Trial Examiner SHAW : That's right.
Q. (By Mr. Kimmell) Just say what you said, what he said to you, and
what you said to him.
A. He says, "Well, what other conditions?" I said, "Well, when a man
works here a year he gets one week vacation ; a man that works four or five
years, he should be entitled to at least two weeks vacation." He says, "Two
weeks vacation?" and I says yes. Then I asked him, instead of bringing the
men up there to his office one at a time, why wouldn't he have them come in
on a Sunday and have a meeting on a Sunday with them ; and I asked him
first if I could make a suggestion, before I said that, and he says yes. I says,
"Instead of having the men come up here one at a time-"
THE DIXIE TERMINAL COMPANY 1479
Q. (By Mr. K immell ) What did he say, Mr. Ross?
A. He said, "Well, Jim, that's a very good suggestion ." I says , "Well,
do you want me to talk to the men about coming in or will you do it?" He
says , "I will do it."
Lightfield and Wood in their testimony concede that the conversation was
somewhat along the same lines as described by Ross, except as to his testimony
concerning his union affiliation . Their version was to the effect that Ross told
them at the time Lightfield interrogated him in this regard that he had not
yet made up his mind as to whether he would sign a card.
After careful consideration the undersigned is convinced that Ross' version as
regards the above incident is the correct one. Ross impressed the undersigned
as an honest and forthright witness. His demeanor while testifying was espe-
cially impressive. That the Respondent likewise respected him as an individual
is demonstrated by the following excerpt from Lightfield's testimony which the
undersigned credits?' At one point in his testimony on direct examination
Lightfield testified that ". . . he was a man that I had in mind to put in as a
starter. He was a man that had been with us quite a while in varying jobs and
shown himself to be of above the average in intelligence, and a man I believed
qualified for the job." 22 On another occasion Lightfield testified that Ross was
a man of convictions and that when he "said something he usually meant it."
Ross' version of the events leading up to his discharge was as follows. On the
morning of January 14, 1952, he reported for work as usual and assumed his
duties as freight elevator operator. At about 9 a. in. Superintendent Wood got
on his elevator and told him to take over the "floor," that is to take over the
job as starter for the passenger elevators. Ross replied, "Not me," and told
Wood that he was not familiar with the job. Particularly as regards the opera-
tion of the signal lights and the regulation of the traffic. Wood told him that
he could never learn "any younger." At about this time Ross' relief period
came up and he told Wood that he was going across the street to "Thompson's"
and get a cup of coffee. He returned in about 10 or 15 minutes and when he
entered the elevator he met Wood. According to Ross the following conversation
between them ensued :
Q. Did you then go out for coffee?
A. I told Mr. Wood, "I'm going over to get a cup of coffee. I'm on my
relief period now." I went over to Thompson's across the street, got a cup
of coffee, and about five minutes before my relief period was up I came back
in the building, walked to the passenger elevator. Mr. Wood was on there,
on the floor. I says, "Well, what do you want me to do?" He says, "Take
the floor." I says, "Mr. Wood, I don't know anything about this job." He
says, "All right, take your elevator job."
Q. You mean your freight elevator?
A. Freight elevator.
Q. At the time you said you didn't know anything about it, did you mention
anything about a double-barreled gun?
A. Yes.
Q. What did you say?
A. Well, it looked like it was open season on starters. In other words, as
they called the floor men. And they got Denny with one barrel of the gun on
Saturday, and they got the assistant starter on Sunday with the other barrel,
21 See Univer8al Camera, 340 U . S. 474.
23 Lightfield had reference to his reasons for selecting Ross to take Denny's place as
starter.
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and I told them , "If you get the other barrel loaded you will get me on the
freight elevator."
Trial Examiner SHAW : Wait a minute . That's what you told Wood?
The WITNESS . That's what I told Wood.
Q. (By Mr . Kimmell ) How did the conversation conclude ? Did he tell
you to go back to your freight elevator?
A. He told me then to go back and take my other job on the freight
elevator.
Shortly thereafter Wood came to Ross and said, ". . . Jim, Mr. Lightfield
wants to see you in his office." On the way to the office Ross said in words or
substance that he supposed that Lightfield had his check ready , to which Wood
replied "Oh, no, nothing like that." Upon arrival at the office Lightfield without
more ado handed Ross his check . Ross took it and said ". . . there is no reason
for me asking you the reason for this," Lightfield "shook his head no." Ross then
walked out of the office and went up to the locker room and changed his clothes.
On his way out of the building he went by Wood 's office and turned in his keys.
At that time Wood said , "Jim, this is the biggest surprise.... as big a surprise
to me as it was to you." Ross replied that "it was no suprise" to him. Wood
also told Ross that he would be glad to help him land another job, and would
gladly give him a good recommendation.
The Respondent contends that Ross was discharged not only because he refused
to accept the job of starter when it was offered to him but also because of his
belligerent attitude and use of profanity at the time of his refusal . In other
words such "rank insubordination" on Ross' part merited his discharge.
According to Lightfield he had determined to fire Denny, the regular starter,
and Cinser , the assistant starter, about a week before he did so on January 12
and 13, 1952 , respectively . At the same time he had made up his mind that Ross
was the logical man to take over the starter job. Again the undersigned is
convinced that an excerpt from Lightfield 's testimony on direct examination in
this regard should be inserted herein. It follows below :
Q. (By Mr. Swigert) Now, there has been some testimony with respect
to the discharge by you of Mr. Ross on Monday, the 14th of January, 1952.
What occurred on that occasion, to the best of your recollection?
A. Well, Monday morning found us without a starter, with both Denny
and Cinser gone. It has been in my mind all that previous week , knowing
Ross, to give him the job, or at least try him out on it. I wouldn't say give
him the job ; the first point was to try him on it. He had all the attributes
that I felt qualified him for the job. So I asked Mr. Wood to get him off
the special elevator and have him go over and, what we say, take the floor
and try him out on the job and give him whatever instructions that was
necessary for him to-not to do the job a hundred percent, we couldn't
expect that , but to start him out on the job. Mr . Wood went to get him and
later reported back to me that Ross had told him that he didn't know a
damn thing about the Bordman Control system, didn't want to know any-
thing about it, and, further, that he knew that the gun was loaded, both
barrels loaded, one had been fired , and we might just as well fire the other
barrel and let him go. That was like a bolt out of the blue, I might say.
Q. Did he tell you the man refused the assignment?
A. That's correct , refused the assignment.
Q. Then what happened?
A. I had known Jim Ross for five years. He was a man of convictions.
When he said something , he usually meant it . I knew that under the con-
THE DIXIE TERMINAL COMPANY 1481
ditions he spoke to the Superintendent, who was his supervisor, there was
only one thing we could do. It was a case of rank insubordination. I told
Mr. Wood we would prepare his check, which we did, and have Ross come
up and get it. Mr. Wood went after him and brought him up, and I handed
him his check and discharged him.
Trial Examiner SHAW : You mean who was insubordinate?
The WITNESS : ROSS.
Superintendent Wood's version as regards what transpired and led up to
Ross' discharge is about the same as that of Ross but it is more detailed. Con-
sequently the undersigned is of the opinion that it likewise should be set forth
herein particularly because of his ultimate findings as regards Ross.
Q. What did you do then?
A. I went down the special elevator with Jim and asked him to come with
me over to the passenger side. I said , "Jim, what do you know about this
Bordman System?" Jim said , "I don't know a damn thing about it, and I
don't want to know a damn thing about it." I said, "Why, Jim?" He said,
"Well, it seems like the starters in this place are getting fired faster than
they can get hired." He said, "I don't know anything about a starter's job."
I said, "Well, Jim, everybody has to learn." He said, "No, I don't want any
part of it." I said, "Jim, this is an opportunity for you to advance." He
said, "I don't want any part of it." He said, "You've got both barrels loaded,
and you might just as well fire me, too."
I went back and reported it to Mr. Lightfield, and Mr. Lightfield said, "If
that's the way he feels about it, there is no use fooling with him; bring
him in."
Q. Well now, Mr. Wood, did all of this conversation occur at one time,
or was there an interruption or anything to take place in the middle of it?
A. No, it all took place at one time. Jim said he was going on his relief.
He asked me what he should do. I said, "Well, go back over on your car."
He said, "Well, I'm due for my relief now." I said, "Well, go ahead on
your relief." He was allowed fifteen minutes. I think then it was around
9 o'clock or a little after.
In the meantime, I went up and reported to Mr. Lightfield, and when he
came back from his relief I took him into his office.
As indicated above Wood was present when Lightfield fired Ross. His testi-
mony as regards this incident is also about the same as Ross', except that in his
version Lightfield said to Ross at the time he handed him his check, "I don't
have to tell you why, Jim, you're just through."
According to Lightfield he did not at any time discuss with Superintendent
Wood his decision to discharge Denny and Cinser and to give Ross Denny's job
as starter . His decisions in this regard were known only to himself. Even
though Wood was his superintendent and responsible to him for the conduct of
all the elevator operators, he did not inform him or discuss with him his decisions
in this regard. As in the case of Cinser, he refused to give either Ross or the
Ohio Bureau of Unemployment any reason for the discharge. His explanation
of his attitude in this regard was the same in each case , that under the Ohio
law he did not have to give any reason for discharging an employee.
Lightfield on cross-examination summed up his reasons for discharging Ross
as follows :
Q. (By Mr. Kimmell) Now, James Ross, you directed him through your
agent, Mr. Wood, to assume the role of starter, and he refused. Now, did you
discharge him because of that refusal?
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I would say no. I mean, this isn't second -guessing , but had Ross
asked to see me or asked to talk to Mr. Wood in his office and pointed out
that he would rather not, and been mannerly and orderly about it, I would
question whether we would have. I would say we wouldn't have.
Q. In other words, the reason for discharging him was because of the
language he used to Mr. Wood?
A. It was his attitude, his obvious disrespect for a superior, I would say.
Q. Now, what particular language did you object to?
A. From Mr. Wood, I understood that Ross said that he didn't know a
damn thing about the Bordman System , didn 't want to know a damn thing
about the Bordman System ; furthermore, if the company had loaded the
gun and fired one barrel, they might just as well fire the other barrel and
and let him have it, too. As I said before, I knew Jim Ross to be a man of
strong convictions, one of the attributes which a starter should have, to
enable him to control his employees under him, and I felt that whatever was
in back of why he flew off the handle like that and acted insubordinate, that
it must have been a part of him, he felt that way sincerely. I mean, it was
like a bolt out of the blue to discover that a man with five years with us
felt like that.
Q. All right, now, Mr. Lightfield, during the five years, I assume Ross had
never been insubordinate before?
A. No.
Q. And after this five years' employment, he used the word "damn" and
used the expression of "reloading the shotgun and fire both barrels," it was
because of that you fired him, is that correct?
A. Yes.
Q. After five years ' employment?
A. Yes.
Q. Mr. Lightfield, as I take it, this insubordination, this alleged insubor-
dination by Ross, didn 't occur in your presence?
Q. No.
Q. It was reported to you by Mr. Wood?
Q. That's right.
Q. And on the basis of that, you made your election to discharge James
Ross?
A. Yes.
Q. It was your decision alone , I take it?
A. Yes.
Q. Now before you discharged Ross, did you make any effort to get Ross'
side of the story , or to interview him, or ask him about this incident with
Mr. Wood?
A. No.
Q. You took Mr. Wood's statement, and acting upon that solely, you fired
him, is that corect?
A. That's right.
Conclusion
From all of the foregoing the undersigned is convinced that the reasons ad-
vanced by the Respondent for discharging Ross were not the true reasons. Many
factors have entered into his determination in this regard. For example, the
undersigned does not believe that Lightfield would discharge a man with an
employment record as exemplary as that of Ross without at least discussing the
THE DIXIE TERMINAL COMPANY 1483
matter with his immediate supervisor . Nor does the undersigned believe that
Lightfield would promote a man to a supervisory position without at least
discussing it with Superintendent Wood who thereafter would be directly re-
sponsible for his conduct and the mode and manner in which he discharged
his duties . The undersigned cannot bring himself to the point where he can
accept Lightfield 's testimony that he discharged Ross for insubordination in
the face of the factors set forth above, particularly in view of the fact that
throughout his testimony both on direct and cross -examination he speaks in
terms of "morale" and "qualifications" that supervisors must meet, and the
inmportance of starters as contacts for the Respondent with its tenants and the
public in general, and yet, as he himself testified time and again , he consistently
ignored the very people whom he had selected as supervisory employees. The
two positions are totally inconsistent and beyond the comprehension of the
undersigned.
Nor is the undersigned convinced that Ross ' use of the word "damn " shocked
either Lightfield or Wood . Both impressed the undersigned as mature men and
not the type that would or could be abashed by the use of four -letter words
under any circumstances . Even so the undersigned is not unmindful of the
fact that the crux of the case as to Ross lies not in the fact that he used pro-
fanity in his conversation with Wood at the time he refused the starter's job,
but rests on whether or not his conduct on the whole , or as Lightfield puts it,
"insubordination ," was the real cause of the discharge.
Whether Ross ' conduct under all the circumstances amounted to insubordina-
tion and justified his discharge is not the concern of the undersigned. What
others may or may not have done under like circumstances where an old , reliable,
trusted , and respected employee such as Ross was involved is likewise of no con-
cern to the undersigned . These considerations matter not a whit one way or the
other . The sole question that is before him is this : Was Ross discharged because
of his insubordination or because of his union or concerted activities? If the
former then the Respondent has not violated the Act, if the latter , it has.
The resolution of the case as to Ross is a difficult one especially as regards
the knowledge of the Respondent of Ross' role in the union or concerted activities
of the employees . There is no question but that he was the original instigator
of the Union's organizational efforts amongst the Respondent 's employees. The
undersigned has found above that Ross told Lightfield that he intended to sign
a union card , at the time he was interrogated in this regard. The undersigned
has also found above , in fact it is not contested by the Respondent , that Lightfield
knew that there was union activity afoot among the employees . He has also
found above that the Respondent by and through Lightfield's interrogation of
the elevator operators as regards their union or concerted activities , and his
request that they divulge the name of the persons responsible for such activity
was violative of Section 8 (1) of the Act." He has also found above that Ross
:' As to the proscription against requesting employees to "divulge" their union affiliations
and information concerning union activities , see a recent case in the Sixth Court of Appeals.
See N . L. R. B. v . Superior Company , Inc., 199 F . 2d 39 , setting aside 94 NLRB 586. In
that case the court speaking through Miller , circuit judge, had the following to say inter
alia.
The Board contends that the Respondent interfered with the right of the four
employees , who were members of the Union Committee , to join a labor organization
and participate in its activities by interrogating them with respect to their signatures
on the antiunion petition . Interrogation about union membership under some circum=
stances carries an empress or-implied threat of reprisal against such employees 'who
have joined a union , and is in violation of 18 ( a), (1) of the Act. N. L. R. B. V.
Ford, supra ; Joy Silk Mills v. N. L. R . B., 185 Fed . (2d) 732, 740 C. A., D. C. But
1484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had never asked to be promoted to a starter ' s position , and was without any
knowledge whatsoever that he was even considered for promotion to that position
until he was so informed by Superintendent Wood on the morning of January 14,
1952 ; that within less than 1 hour after his refusal and conversation with
Wood he was summarily discharged without warning , or given any reason
whatsoever for his discharge.
As indicated above the undersigned is not unmindful of the fact that an
employer may discharge an employee for any reason , or for no reason at all, the
only proscription imposed upon him by the Act is that he shall not discharge an
employee because he engaged in either concerted activities or, as the cases usu-
ally say, "union activity ." This has always been the law both before and since
the Act's amendment . The undersigned is well aware of this and is in full
agreement with counsel for the Respondent on this score . He is also aware that
prior to the incidents described and found above to be violative of the Act, there
is no evidence in the record that the Respondent had engaged in antiunion con-
duct towards its employees.
In its brief the Respondent points out that employees who admittedly were
members of the Union were not discharged , and in fact some few were still so
employed at the time of the hearing herein, is indicative of the Respondent's
union animus and supports its contention that neither Ross nor Cinser was
discharged for his union or concerted activities . The undersigned rejects the
Respondent 's contention in this regard for precisely the same reasons that the
United States Court of Appeals for the Fifth Circuit did in the case of N. L. R. B.
v. W. C. Nabors , d/b/a W. C. Nabors Company , 196 F. 2d 272 nfg. 89 NLRB 538.
There the court speaking through Strum , circuit judge , said inter alia:
The fact that respondent retained some union employees does not excul-
pate him from the charge of discrimination as to those discharged. N. L.
R. B. v. Link Belt Co., 311 U . S. 584, 602; 82 L. Ed 368, 380 ; N. L. R. B. v.
National Garment Co., 166 Fed . ( 2d) 233, 238; F. W. Woolworth, Co. V.
N. L. R. B ., 121 Fed. (2d) 658, 661 ; N. L. R. B . v. Sandy Hill Iron Works, 165
Fed. (2d ) 660, 662.
In view of the foregoing findings and upon the record as a whole , the under-
signed infers a' and finds that James Ross was discharged because of his union
inquiries unaccompanied by threats of reprisal , express or implied, and without
relation to coercion or restraint of the employees in their right to self -organization
are not violative of the Act . N. L. R. B . v. Tennessee Coach Co ., supra, 191 Fed.
(2d) 546 , 555, C. A. 6th . Section 8 (c) of the Act, as amended , permits the employer
to express his views about the disadvantages of joining a union , if unaccompanied by
threats or coercion . N. L. R. B . v. Mylan-Sparta Co., supra , 166 Fed . ( 2d) 485, at
489, C . A. 6th . In the present case, the Respondent did not require the four em-
ployees to divulge information about their union affiliation which they had not already
freely given . By accepting membership on the Union Committee and by applying for
leave of absence they had previously notified the Respondent that they were on the
Union side. In signing the anti-union petition they created a situation which the
Respondent was justified in inquiring into. The interrogation resolved their incon-
sistent positions . The evidence does not disclose any threat or attempt at coercion.
The incident was not part of any general pattern of interrogating employees
generally about union affiliation and activities . In our opinion, such limited interroga-
tion, justified by the acts of the employees themselves , was not a violation of the Act.
[Emphasis supplied.]
K As indicated above there is no direct evidence in the record that either Ross or Cinser
was discriminately discharged because of their union and/or concerted activities. But
from the record as a whole and the facts found therefrom , the undersigned is convinced
that the only reasonable inference that can possibly be drawn from such facts is that
Ross and Cinser were discharged because of their union activities . Here, like in the
THE DIXIE TERMINAL COMPANY 1485
and concerted activities , and not for the reasons advanced by the Respondent
which the undersigned finds to be mere pretext . The undersigned also finds that
by the discharge of James Ross, when considered in the light of the other unfair
labor practices found above, such conduct by the Respondent had the proximate
and predictable effect of discouraging concerted activities and membership in
the Union , and the rights guaranteed employees in Section 7 of the Act, and is
specifically violative of Section 8 (a) (3) and (1) of the Act.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth above, occurring in connection
with the operations of the Respondent 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
thereof.
IV. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that it cease and desist therefrom and
take the following affirmative action designed to effectuate the policies of the
Act : (1) Offer Walter J. Cinser and James Ross immediate and full reinstate-
ment to their former or substantially equivalent positions," without prejudice
to their seniority or other rights and privileges; (2) make each of the above-
named employees whole for any loss of pay each may have suffered by reason
of the Respondent's unlawful discharge, by payment to each of them a sum of
money equal to the amount each would normally have earned as wages, from
the date of discharge to the date of the Respondent's offer of reinstatement, less
the net earnings of each during said period;" (3) the Respondent shall, upon
request, make available to the Board payroll and other records to facilitate the
checking of the amount of back pay, which shall be computed in accordance with
the Board's customary formula; " and (4) that the Respondent be ordered to
cease and desist from in any manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed by the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. The Respondent, The Dixie Terminal Company, Cincinnati, Ohio, is engaged
in commerce within the meaning of Section 2 (6) and (7) of the Act.
2. Building Service Employees International Union Local No. 158-A, Building
Service Employees International Union, AFL, is a labor organization within the
meaning of Section 2 (5) of the Act.
majority of the cases considered by the Board, there rarely is direct testimony in this
regard , and it is only by inference upon a fact or facts that such findings are made. In
arriving at this determination the undersigned is not unmindful of the fact that "it was
the employer who was on trial and the employer alone," and whether or not the Respond-
ent herein discharged Cinser and Ross for union activity or for cause becomes a question
"that must be resolved by evidence, direct or circumstantial," which is for the undersigned
to determine from the record as a whole . [ Quotes from the dictum in Ohio Associated
Telephone Company, Petitioner v. National Labor Relations Board, Respondent , United
States Court of Appeals for the Sixth Circuit, Case No. 11&27, decided November 29, 1951,
91 NLRB 32.
"The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch,
65 NLRB 627.
"Crossett Lumber Company, 9 NLRB 440; Republic Steel Corporation Y. N. L. R. B.,
311 U. S. 7.
31 F. W. Woolworth Co., 90 NLRB 289.
1486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By discharging Walter J . Cinser and James Ross, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a) (3) of the Act.
4. By interfering with , restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
Appendix A
NOTICE TO ALI. EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate employees concerning their union affiliations,
activities, or sympathies.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self- organization , to form labor
organizations , to join or assist BUILDING SERVICE EMPLOYEES INTERNATIONAL
UNION LOCAL No. 158-A, BUILDING SERVICE EMPLOYEES INTERNATIONAL
UNION, AFL, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or
protection, as guaranteed in Section 7 of the Act, or to refrain from any or
all of such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a condi-
tion of employment as authorized in Section 8 (a) (3) of the Act.
WE WILL offer Walter J. Cinser and James Ross immediate and full
reinstatement to their former or substantially equivalent positions without
prejudice to any seniority or other rights and privileges previously enjoyed
and we will make whole said employees for any loss of pay suffered as a
result of the discrimination against them.
All our employees are free to become, remain , or to refrain from becoming
or remaining members of any labor organization except to the extent that this
right may be affected by an agreement in conformity with Section 8 (a) (3)
of the National Labor Relations Act.
THE DIXIE TERMINAL COMPANY,
Employer.
By ------------------------------------
(Representative ) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
THE DIXIE TERMINAL COMPANY 1487
Appendix B
Dixie Terminal Building-North Rental Data as of January 1, 1952
Names of companies and other enterprise
Annual rent
paid
Percent
of space
occupied
by each
tenant
The American Insurance Company__ ________________________________________
The Atchison , Topeka and Santa Fe By. Co--------------------------------
William C. Atwater & Co.,Inc ----------------------------------------------
Bache & Co-----------------------------------------------------------------
Wm. N. Bair ----------------------------------------------------------------
The Baltimore and Ohio Railroad Company --------------------------------
John L. Barth Company ----------------------------------------------------
Richard Bennett Associates , Inc---------------------------------------------
J. A. Blalock- ---------------------------------------------------------------
Blue Diamond Coal Sales Company _________________________________________
Bond Crown and Cork Co __________________________________________________
J. T. S. Brown 's Son Company----------------------------------------------
Thomas T Bryant ----------------------------------------------------------
W. R. Butler- ---------------------------------------------------------------
Canadian National Railway Company ______________________________________
Canadian Pacific Railway Company ----------------------------------------
The Carbon Fuel Sales Cc --------------------------------------------------
Central of Georgia Railway Company _______________________________________
The Chesapeake and Ohio Railway Company -------------------------------
Chicago & Northwestern Rwy. Co... .......................................
Chicago, Burlington & Quincy R. R. Co ------------------------------------
Chicago,Indianapohs and Louisville Rwy Co-_-____________________________
Chicago, Milwaukee , St Paul & Pacific R. R. Co---------------------------
Chicago, Rock Island and Pacific Railroad Company _______________________
Cincinnati Convention & Visitors Bureau, Inc-______________________________
The Cincinnati Equitable Insurance Co_____________________________________
The Cincinnati Stock Exchange _____________________________________________
The Columbia General Company-- -----------------------------------------
Ben Comisar ----------------------------------------------------------------
Commonwealth Life Insurance Co__________________________________________
Corbly and Kite Brokerage Company____________ ___________________________
Corn Products Sales Company ______________________________________________
Cunningham Drug Stores, Inc-----------------------------------------------
Arthur J. Daly --------------------------------------------------------------
Devro,Inc ------------------------------------------------------------------
Dixie Terminal Food Shop, Inc_____________________________________________
The Dixie Terminal Company-- -------------------------------------------
Howard Do yyle
Emhorn & Co ...............................................................
Ellis & Company ------------------------------------------------------------
Farson, Huff and Northlich _-_______________________________________________
The Fidelity and Deposit Company of Maryland______________ ______________
Florida East Coast Railway Co_____________________________________________
Fox, Reusch & Co.,Inc ----------------------------------------------------
Russell R. Gannon ----------------------------------------------------------
Garland Coal Co-----------------------------------------------------------
General Cable Corporation __________________________________________________
F. J. Golden ----------------------------------------------------------------
W. D. Gradison & Co--------------------------- ----------------------------
Gulatt Cleaning & Laundry Co .............................................
C. L. Gurney ---------------------------------------------------------------
Charles R . Hadley Company ---------------------------- --------------------
Haehnle Advertising Cc --------------------------------------------------
Hamilton-Stewart Company___ _____________________________________________
Samuel Hannaford & Sons---------------------------------------------------
Hazelet & Erdal -------------------------------------------------------------
Hoffman Realty Co---------------------------------------------------------
The Home Insurance Company of New York_______________________________
Illinois Central Railroad Co _________________________________________________
Industrial Waxes,Inc ------------------------------------------------------
Island Creek Coal Sales Co--------------------------------------------------
Kurt Iverson----------------------------------------------------------------
E. Lawrence Jones & Frances L'H Jones___ _________________________________
Sam Malcolm Levy ---------------------------------------------------------
Little Miami Railroad Company ____________________________________________
The Logan-Long Company--------------------------------------------------
Louisville and Nashville Railroad Co _______________________________________
The Lumberman 's Mutual Casualty Co _____________________________________
Magnus & Comparey
James L. Magrish ,
Sid Marean------------------------------------------------------------------
Mason & Company ----------------------------------------------------------
Massachusetts Mutual Life Ins. Co_____ _____________________________________
Mathleson Chemical Corporation ____________________________________________
Merchant Shippers Association , Inc__________________________________________
Merrell Lynch , Pierce, Fenner and Beane------------------------------------
$2,817.50
4,454.00
2,192.50
9,523.13
962.50
4,720.70
1,361.25
12, 000.00
1,778.00
13,905.50
1,151 50
1, 925.00
11, 398.50
893.75
4,025 00
3,902 80
2,062.50
1, 344.00
2, 253.98
2,290.75
3,755 50
1,180 00
2,012 50
3,563.00
2,349 00
5,274.50
3,207 00
893.75
7,680 00
2,658.50
1,014.00
893 75
16,243.98
3,230 50
3,600 00
12,458.86
4,149 00
893 75
935 00
3, 685 00
8,942.50
3,575 00
893.75
3,948.00
3,461 50
1,485.00
2,744.00
962.50
15,273 00
2,000.00
13, 084.90
1,863.75
5,215 00
3,600 00
8, 277 00
3,575 00
825.00
3,850 00
2, 887 50
880.00
6,671.00
2,400 00
825 00
3,409 75
1,842 50
3,740.00
9, 532.21
2, 259 35
4, 386 00
4,863 25
959.75
1, 500 00
2,940 00
1, 980 00
935 00
10,400 00
0.39
.73
.33
1.38
.14
.85
.25
1.47
.25
2.20
.18
.27
1.68
.14
.68
.76
.27
.21
.53
.39
.53
.17
.31
.51
.36
.86
.65
.14
2.27
.41
.16
.18
1.92
.49
.56
1 32
.69
.14
.14
.55
1.33
.55
.14
.56
.49
.20
.39
14
2 63
09
2.09
.26
.74
.37
1.44
.55
.15
.55
.41
.14
.95
.14
.19
.51
.32
.55
1.43
.31
.64
.69
.17
.25
.42
.27
.14
1.59
1488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dixie Terminal Building-North Rental Data as of January 1, 1952-Continued
Names of companies and other enterprise Annual rentpaid
Percent
of space
occupied
by each
tenant
Wm. H. Mers & Co---------------------------------------------------------- $8,102.50 1.05
Missouri-Kansas-Texas Railroad Co_________________________________________ 1 576 25 .24
J. J. Mitchell
,
2,142.25 .89
The Model Laundry Company______________________________________________ 6, 500.00 .38
Murphy, Lamer & Quinn---- ----------------------------------------------- 10, 234.10 1.64Mutual Life Insurance Company of New York________________________ 2,040 50 .29
National Carloading Corporation____________________________________________ 962 50 .14
The New York Central Railroad Company_________________________________ 5,225.17 .81
Norfolk and Western Railway Company___________________________________ 10,228 01 1.53
Owens Corning Fiberglas Corp---------------------------------------------- 2,887 50 .41
Pacific Fruit Express Company_____________________________________________ 962 50 .14
Peat, Marwick, Mitchell & Co............................................... 6,044 00 .75
Peck & Peck of Cincinnati, Inc.............................................. 10, 000.00 1.83
The Pennsylvania Railroad Company______________________________________ 9, 424.41 1.36
Pohl & Company,Inc ------------------------------------------------------- 2, 887 50 .41
Price Y Cia,Inc ---------------------------------- ------------------------- 2, 221 05 .33
The Quaker Oats Company------------------------------------------------- 3,822 00 .54
The Ranson & Orr Company________________________________________________ 1,197 00 .17
Reliance Life Insurance Company of Pittsburgh, Pa________________________ 5,398 50 .78
Retail Bakeries, Incorporated ----------------------------- __________________ 5,600 00 .72
B. N. Ritter & Company---------------------------------------------------- 1,787 50 .27
St. Louis San Francisco Rwy. Co........................................... 2, 555 00 .36
Saint Paul Mercury Indemnity Company___________________________________ 1,925.00 .27
Salkover Metal Processing Co_______________________________________________ 1,953 05 .29
Security Savings & Loan Company_________________________________________ 12,000 00 1.69
Semet-Solway Division of The Allied Chemical and Dye Corporation-----__ 5, 527.50 .80
Strachan Shipping Company------------------------------------------------ 994 50 .17
The Southam Watch Company---------------------------------------------- 2,000 00 .25
(Mrs.) Mary H. Sutphim---------------------------------------------------- 962.50 .14
Jane Taft Ingalls & Louise Taft Semple_________ ____________________________ 1,241.50 .20
Taft Stettmius & Hollister__________________________________________________ 21,121.00 3.66
Talon,Inc------------------------------------------------------------------ 935.00 .14
Charles Tatgenhorst Oliver M. Dock, Lawrence R. Lytle___________________ 3, 461 50 .49
The Texas and Pacific Railway Company___________________________________ 1 200.50 .17
Title Guarantee and Trust Company, David F. Weston and Leo F. Weston_ 1,787.50 .27
Title Insurance Company of Minnesota .-____________________________________ 4,472.00 .87
The Union News Company_________________________________________________ 27,663 23 1.84
Union Pacific Railroad Company -------- --- - 4 518 84 75-- ---------------------------United Newspapers Magazine Corporation__________________________________
, .
1,008.00
.
.14
Universal C. I. T. Credit Corporation_______________________________________ 4,476 50 .03
Vail Petroleum Company--------------------------------------------------- 962.50 .14
The Virginian Railway Company------------------------------------------- 962.50 .14
John H. Voelker & Co------------------------------------------------------- 1,929 00 .31Wabash Railroad Company_________________________________________________ 1,907.75 .29
Walter, Woody and Heimerdinger____________________________________________ 4,985.00 .83
Well, Roth & Irving Company --__-____ 4,613 00 .86
The Western Pacific Railroad Company ------------------------------------- 1,613 50 .23
Western Union Telegraph Company 13, 910.04 2.86
White Company
------
A. 3,040.00 .83
Wyandotte Chemical Corporation ___________________________________________ 4,214.00 .60
Dixie Terminal Building Total Floor Space-Square Feet as of January 1, 1952
North Building---------------------------------------------------------------------------------- 201,138
South Building------------------------------------------------ ----------------------------------- 96,070
Dixie Terminal Building-South Rental Data as of January 1, 1952
Annual rent
paid
Percent of
space occu-
pied by
each
tenant
The American Sign Co------°----------------------------------------------I $3,000.00 I 0.10
The Cincinnati, Newport and Covington Ry. Co------------------------- __ 15,999. 96 49.15
The Union News Company _________________________________________________ ____ . 37
Western Union Telegraph Company_________________________________________ 28,423. 68 50.38
AMERICAN SMELTING AND REFINING COMPANY
Appendix C
1489
Name of enterprise Annualrent
Value of interstate goods
handled or interstate services
performed
Thomas T. Bryant, d/b/a Walter P. Dolle and Company____ $11, 398.50 $985, 000 (Tr. 14-15).
Taft, Stettinus&Hollister ------------------------- _-------- 21,121.00 25,000 (Tr .21).
Strachan Shipping Company_______________________________ 994.50 150,000 (Tr. 109-110).
American Insurance Company______________________________ 2,817.50 300,000 (Tr. 122).
Commonwealth Life Insurance Co__________________________ 2,658.50 1,226,000 129).
Fidelity and Deposit Company of Maryland________________ 3,575.00 100, 000 (Tr. 132).M.
Semet-Solvay Division, Allied Chemical & Dye Corpora- 5, 527.50 100,000 (G. C. Ex. 4).
tion.
The Home Insurance Company_____________________________ 3,850.00 80,000 (Tr. 144-145, 210).
Lumbermen's Mutual Casualty Co_________________________ 2,259.35 . 88,000 (Tr. 150).
Mutual Life Insurance Company of New York_____________ 2,040.50 9,350,000 (Tr. 157-158).
Reliance Life Insurance Company__________________________ 5,398.50 2,700,000 (Tr. 161--162).
Fox-Reusch & Company, Inc_______________________________ 3,948.00 1, 400, 000 Tr. 172-173).
Ellis & Company___________________________________________ 3,685.00 4,000,000 (Tr. 179-180).
6,000,000
Magnus &Company ---------------------------------------- 4,386.00 500,000 (Tr. 181-182).
Einhorn & Company--------------------------------------- 935.00 500,000 (Tr. 184).
Merrel Lynch, Pierce, Fenner and Beane___________________ 10,400.00 400,000 (Tr. 190).
Pohl & Company___________________________________________ 2,887.50 1,500,000 (Tr. 194-195).
Walter, Woody &Heimerdinger----------------------------- 4,985.00 2,000,000 (Tr. 197-198).
William C. Atwater & Co., Inc_____________________________ 2,192.60 3,000,000 (Tr. 200-201).
Carbon Fuel Sales Company_______________________________ 2,062.50 54,400 (Tr. 206).
Island Creek Coal Sales Company__________________________ 6,671.00 . 1,250,000 (Tr. 215).
Eli Lilly and Company_____________________________________ 1,778.00 500,000 (Tr. 219--220).
Charles It. Hadley & Company_____________________________ 1,863.75 50,000 (Tr. 223).
Mathieson Chemical Corporation___________________________ 1,980.00 125,000 (Tr. 227).
Logan-Long Company______________________________________ 3,740.00 750,000 (Tr. 231).
Quaker Oats Company_____________________________________ 3,822.00 3,000,000 (Tr. 242).
Ronson & Orr Company____________________________________ 1,197.00 500,000 (Tr. 253).
Talon, Inc-------------------------------------------------- 935.00 80,000 (Tr. 259).
Owens-Corning Fiberglass Corporation ---------- .._____-____ 2,887.50 1,200,000 (Tr. 267).
Model Laundry Company__________________________________ 8,500.00 560,000 (Tr. 276).
Wyandotte Chemical Corporation___________________________ 4,214.00 3,750,000 (Tr. 279-280, 281-
282).
Samuel Hannaford & Sons__________________________________ 8, 277.00 331, 800 (Tr. 286).
Russell R. Gannon Company______________________________ 3,461.50 30,000 (Tr. 291-292).
Corbly & Kitt Brokerage Company________________________ 893.75 36,000 (Tr. 318).
General Cable Corporation_______________________ 2,744.00 300,000 (Tr. 353-354).
Dixie King Coal Company_______________________ 2, 142.25 400,000 (Tr. 469-470).
Total------------------------------------------------ 50,440.60 ----=°----- --------------------
Adding the rentals received from each of these groups of tenants together we
obtain the total of $194,099.40 annual rental received by Respondent from
these tenants who are themselves engaged in interstate commerce within the
meaning of categories 1, 2, and 4 of the Board's jurisdictional standards. Since
this sum far exceeds the required $50,000, jurisdiction over Respondent is
established.
AMERICAN SMELTING AND REFINING COMPAN°, NORTHPORT UNIT and
INTERNATIONAL HOD CARRIERS, BUILDING AND COMMON LABORERS,
LOCAL UNION No. 238, AFL, PETITIONER
AMERICAN SMELTING AND REFINING COMPANY, NORTHPORT UNIT and
INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WARE-
HOUSEMEN AND HELPERS OF AMERICA, LOCAL No. 690, AFL, PETI-
TIONER. Cases Nos. 19-RC-1218 and 19-RC-1224. February 18,
1953
Decision and Direction of Elections
Upon separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
102 NLRB No. 155.