The Singer Co.

National Labor Relations Board - Board Decisions

Aug 11, 1972

198 N.L.R.B. 870 (N.L.R.B. 1972)

870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Singer Company , Climate Control Division and
Bob L . Atkinson and Sheet Metal Workers Inter-
national Association , AFL-CIO, and its Local
Union No. 459, Parties to the Contract
Sheet Metal Workers International Association,
AFL-CIO, and Sheet Metal Workers Internation-
al Association , Local Union No. 459, AFL-CIO
(The Singer Company , Climate Control Division)
and Bob L . Atkinson and The Singer Company,
Climate Control Division , Party to the Contract.
Cases 14-CA-6426 and 14-CB-2341
August 11, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On March 27, 1972, Trial Examiner Louis Libbin
issued the attached Decision in this proceeding.
Thereafter, General Counsel filed exceptions and a
supporting brief, the Employer filed cross-exceptions
and a brief in support thereof, and Respondent
Union filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions as modified herein.
1. The Trial Examiner found, and we agree, that
Respondent did not engage in any conduct violative
of the Act by accreting the over-the-road truckdri-
vers to the production and maintenance unit.'
2. The Trial Examiner further found that Respon-
dent Company's discharge of over-the-road driver
Atkinson was not in violation of the Act. We do not
agree.2
The Trial Examiner correctly found that Atkinson
was discharged for engaging in concerted activity in
attempting to persuade the Company to agree to a
more satisfactory wage scale for the over-the-road
drivers. He further found, however, that such
activity, though concerted, was not protected be-
cause, in attempting to negotiate changes in the
current contract, Atkinson bypassed Local 459, the
I The Trial Examiner also found that the Company, through statements
by three of its supervisors, violated Sec 8(a)(I) of the Act As no exception
was taken to these findings, we hereby adopt them pro forma
2 Chairman Miller does not join his colleagues in this finding He would
affirm the Tnal Examiner on this issue , for the reasons stated by the
Examiner in his decision
" Combustion Engineering, Inc, 177 NLRB 521, 526, Eastern Illinois Gas
and Securities Company, 175 NLRB 639, 640, reversed on other grounds 440
-exclusive bargaining representative.
The complaints which led to Atkinson's discharge
took place between May 7, 1971, and June 7, 1971.
',Although the contract, including provisions for the
'over-the-road drivers, was agreed upon and became
,effective on May 1, it was not printed in its final
,form and executed until July 19. In fact, during the
,time between the parties' agreement on May 1 and
,the execution of the contract, changes were made in
those provisions covering the over-the-road drivers,
increasing the wage scale, as a result of Atkinson's
efforts. Clearly then, Atkinson could not be expected
to be sure of the status of the contract and its
provisions regarding the over-the-road drivers at the
time he pressed his grievance. Indeed, the provisions
quite obviously remained subject to change, and
were in fact changed, before the contract was
executed on July 19.
The Board has held that, while under Section 9(a)
and its proviso an employer may lawfully refuse to
,resolve, without the presence of a union representa-
tive, an employee's grievance which poses demands
which are in conflict with the contract in effect,
Section 9(a) does not confer on an employer the right
,to discharge an employee for presenting such a
!grievance.3 The Board reasoned that to view the 9(a)
proviso otherwise:
would lead to the incongruous result of, on the
one hand, granting an employee freedom to
present his complaints to his employer without
the intervention of the bargaining representative
and on the other, subjecting that employee to the
peril of discharge should his complaint contradict
the terms of the contract.4
The same rationale for protecting an employee who
may, in the final analysis, have incorrectly interpret-
ed the contract, is applicable when, as here, an
employee could be justified in believing that he was
not yet covered by a final and binding contract.
Further, in the absence of unusual circumstances not
present here, we can find no basis for withdrawing
the Act's protection of an employee's right to engage
in the concerted activity of grieving simply because
the proviso of Section 9(a) does not require the
Employer to adjust the employee's complaint under
the present circumstances.5
Thus, we find that, while Atkinson's complaint
may have contradicted the terms of the contract in
F 2d 656, Mushroom Transportation Co, Inc, 142 NLRB 1150, 1157, 1158
4 Eastern Illinois Gas and Securities Co, 175 NLRB 639, 640, reversed on
other grounds 440 F 2d 656
5 The protections of the Act are not dependent upon a correct
interpretation of the contract or on the merit or lack of merit of the
concerted activity Combustion Engineering, Inc, 177 NLRB at 526, Eastern
Illinois Gas and Securities Co, 175 NLRB at 640 , Anaconda Aluminum
Company, 160 NLRB 35, 40, Mushroom Transportation Co, Inc, 142 NLRB
at 1158
198 NLRB No. 122
THE SINGER COMPANY It 871
effect and did not merit adjustment under Section
9(a)'s proviso, it was, nevertheless, protected concert-
ed activity. His discharge for such activity was,
therefore, violative of Section 8(a)(1) of the Act 6
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
The Singer Company, Climate Control Division, Red
Bud, Illinois, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening employees with loss of their jobs
by discontinuing its over-the-road truckdriving oper-
ations and going back to using common carriers to
haul all its freight or going to leasing drivers, or with
any other economic reprisals, if they joined or
selected a Teamsters local as their bargaining
representative.
(b) Discharging employees for engaging in protect-
ed concerted activity.
(c) In any like or related manner interfering with,
restraining, and coercing its employees in the
exercise of their rights guaranteed in Section 7 of the
Act.
2, Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Post at its plant in Red Bud, Illinois, copies of
the attached notice marked "Appendix." T Copies of
said notice, on forms provided by the Regional
Director for Region 14, after being duly signed by
Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaft-
er, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
IT IS FURTHER ORDERED that the complaint in Case
14-CA-6426 be, and it hereby is, dismissed insofar as
it alleges violations of Section 8(a)(2) and (3) and of
Section 8(a)(1) not herein specifically found.
IT IS FURTHER ORDERED that the complaint in Case
14-CB-2341 be, and it hereby is, dismissed in its
entirety.
B As Atkinson returned to work on the same day of his dismissal and
suffered no loss of worktime, we find it unnecessary to provide any remedial
order for reinstatement or for backpay
r In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten employees with loss of
their jobs by discontinuing our over-the-road
trucking operations and going back to using
common carriers to haul all our freight or going
to leasing drivers, or with any other economic
reprisals, if they joined or selected a Teamsters
local as their bargaining representative.
WE WILL NOT discharge employees for engaging
in protected concerted activity by presenting
grievances on behalf of themselves and other
employees.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights guaranteed by
Section 7 of the Act.
THE SINGER COMPANY,
CLIMATE CONTROL
DIVISION
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced , or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board 's Office , 210 North 12th Boulevard, Room
448, St . Louis, Missouri 63101 , Telephone
314-622-4167.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Louis LIBBIN, Trial Examiner : Upon charges filed on
September 10 and October 20, 1971, by Bob L. Atkinson,
an individual, the General Counsel of the National Labor
Relations Board, by the Regional Director for Region 14
(St. Louis, Missouri), issued a complaint, dated October 28,
1971, against the Singer Company, Climate Control
Division, herein sometimes called Respondent Company
or the Company, and also issued a complaint, dated
November 15, 1971, against the International and its local,
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sheet Metal Workers International Association, AFL-
CIO, and Sheet Metal Workers International Association,
Local Union No. 459, herein sometimes called Respondent
International or the International and Respondent Local
459 or Local 459, or collectively Respondent Unions. With
respect to the unfair labor practices , the complaint against
Respondent Company alleges , and the duly filed answer of
said Company denies, that said Company engaged in
unfair labor practices violative of Section 8(a)(1), (2) and
(3) of the Act; and the complaint against Respondent
Unions alleges, and their duly filed answer denies, that
Respondent Unions engaged in unfair labor practices
violative of Section 8(b)(1)(A) and (2) of the Act. Said
complaints were subsequently consolidated.
This case was tried before me at St . Louis, Missouri, on
January 17 and 18, 1972. All parties appeared at the trial
and were given full opportunity to participate therein. On
February 22, 1972, the General Counsel, Respondent
Company and Respondent Unions filed briefs, which I
have fully considered . For the reasons hereinafter indicat-
ed, I find that Respondent Company engaged in conduct
violative only of Section 8(a)(1) of the Act and that
Respondent Unions did not engage in any conduct
violative of the Act.
Upon the entire record in the case , and from my
observation of the demeanor of the witnesses while
testifying under oath, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT COMPANY
Respondent Singer Company , Climate Control Division,
a New Jersey corporation with its principal office and
place of business in New York, New York, maintains
plants in the State of Illinois where it is engaged in the
manufacture , sale and distribution of heating and air
conditioning systems and related products. The only
facility involved herein is the Company's plant at Red Bud,
Illinois. During the year ending December 31, 1970, a
representative period, the Company sold and shipped
products , valued in excess of $50 ,000, from its Red Bud,
Illinois plant directly to points located outside the State of
Illinois.
Upon the above admitted facts, I find , as all Respon-
dents also admit in their answers, that Respondent
Company is engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The complaints allege, all Respondents admit, and I find,
that Respondent International, Respondent Local 459, and
Chauffeurs & Helpers Local Union No. 50, affiliated with
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, hereinafter
sometimes called Teamsters Local 50 , or the Teamsters, are
each labor organizations within the meaning of Section
2(5) of the Act.
Ili. THE UNFAIR LABOR PRACTICES
A. Introduction; the Issues
As previously noted , Respondent Company's Red Bud,
Illinois, plant is the only facility involved in this proceeding.
Pursuant to a petition filed in Case 14-RC-6107 on
December 20, 1968 , Respondent International won a
Board-conducted election and was certified by the Board
on February 17, 1969, as the exclusive collective-bargain-
ing representative of Respondent 's Company's employees
in a unit of "all production and maintenance employees
including truck drivers of the Employer's Red Bud, Illinois
facility EXCLUDING office clerical and professional employ-
ees, guards and supervisors as defined in the Act." At the
time there were about 235 employees in the appropriate
unit , including the only truckdriver employed at the plant,
Alfons Wolter, who voted in the election and whose duties
consisted principally of making several trips daily between
Red Bud , Illinois and St . Louis, Missouri , a distance of
about 30 miles each way.
That same month , Respondent Local 459 was organized
and thereafter it entered into collective-bargaining negotia-
tions with the Company. As a result of said negotiations,
Respondents Local 459 and the Company executed a
collective-bargaining agreement , effective from May 12,
1969, to April 30, 1971, in which the Company recognized
Local 459 as the "sole and exclusive bargaining agent .. .
for all hourly production and maintenance employees as
stipulated in Case # l4-RC-6107 and certified" by the
Board in the specific language set forth in the Board's
certification . The contract contained no classification of
over-the-road driver or of truckdriver . Wolter was covered
by the contract under the classification of "truck chauf-
feur."
In May 1970, the Company began an over-the-road
trucking operation at its St. Louis facility, using "casual"
drivers who were hired and paid on the basis of individual
trips to haul materials to and from the Red Bud plant and
who were not carried on the Company's payroll as
employees. The 1969- 1971 contract contains no reference
to these or to any other over-the-road truckdrivers.
In late 1969 the Company's Traffic Manager Bandy
made a survey and recommended that the establishment of
an over-the-road truckdriving operation would result in
economies in the Red Bud operations. In early 1971 the
Company determined to establish a new over -the-road
trucking operation at the Red Bud plant and to add over-
the-road drivers to its Red Bud employee complement.
Discussions with Respondent Local 459 concerning the
addition of the over-the-road truckdrivers to the Red Bud
operations began in February 1971.
Negotiations for a new collective-bargaining agreement
began on March 17, 1971. During the negotiations, the
Company's chief negotiator took the position that the over-
the-road truckdrivers were included in the original Board
certification and should be part of the plant unit represent-
ed by Local 459. The Company also relied on certain
provisions of the contract (art. 2 and 16) as authorizing it
to establish a new job or make a permanent change in an
existing job . Agreement between the parties on all points of
the new contract , including provisions for the over-the-
THE SINGER COMPANY
')road truckdrivers, was reached on May 1, 1971, and ratified
by Local 459 on that day, although the final form of the
new contract was not signed until July 19, 1971. The
provisions relating to the over-the-road truckdrivers are
contained in a Letter of Agreement which is included in
the contract. Between May and July 19, the wage scale for
the over-the-road truckdrivers was increased and the
contract as executed reflects this increase . The contract is
effective from May 1, 1971 to April 30, 1973. It contains,
among other things, a dues checkoff authorization provi-
sion and a union-security clause requiring as a condition of
continued employment that all new employees hired after
its effective date should become members of Local 459 "by
their thirty-first day of continuous employment within the
bargaining unit."
The Company's Red Bud over-the-road trucking opera-
tion began on May 9, 1971, and thereafter functioned with
a complement of four over-the-road truckdrivers. Some of
the drivers were requested to join Local 459 on penalty of
discharge if they did not join within the first 31 days of
their employment. Some joined, signed dues checkoff
authorizations and had their dues deducted from their pay
by the Company. At the time when Respondents agreed
upon the terms of the 1971-73 contract and extended its
terms and conditions of employment, including the union
security provisions, to the over-the-road truckdrivers,
Respondent Local 459 did not represent a majority of the
over-the-road truckdnvers.
Bob Atkinson, the Charging Party herein, was first
employed as an over-the-road truckdriver at Respondent's
Red Bud plant on May 9, 1971. He was discharged by the
Company on July 8, 1971, and reinstated that same day
when it was learned that his 60-day probationary period
had already expired.
Some of the over-the-road truckdrivers who were
dissatisfied with their wages and conditions of employment
joined Teamsters Local 50 which filed a petition with the
Board on October 4, 1971, to represent a unit of over-the-
road truckdrivers at the Company's Red Bud plant.
Processing of this petition is being withheld by the Board's
Regional Office because of the pendency of the charges in
the instant case.
The facts hereinabove detailed are not in dispute. The
principal issue litigated in this proceeding is whether, by
the conduct of the Respondents in agreeing that Local 459
was the representative of the over-the-road truckdrivers as
part of the production and maintenance unit and by
entering into and enforcing a union-security agreement
covering these over-the-road truckdrivers , all at a time
when Local 459 did not represent a majority of them,
Respondent Company violated Section 8(a)(1), (2), and (3)
of the Act and Respondent Unions violated Section
8(b)(I)(A) and (2) of the Act. A determination of this issue
depends on whether over-the-road truckdrivers on the one
hand are found either to be included in the unit described
by the certification and the contract or to constitute a
proper accretion to the existing unit, or on the other hand
are found to constitute a separate appropriate unit. Also
involved is the issue of whether Respondent International
873
is liable for any unfair labor practices which may be found
against its Local 459.
Other issues litigated in this proceeding are whether
Respondent Company violated Section 8(a)(1) and (3) of
the Act by the discharge of Bob Atkinson on July 8, 1971,
and independently violated Section 8(a)(1) of the Act by
certain statements made to over -the-road truckdrivers by
admitted statutory supervisors of the Company. The latter
issue also involves the usual credibility resolutions as to
some of the alleged statements.
B. Allegations Relating to the Contract Covering
and Applied to Over-the-Road Truckdrivers i
1. The over- the-road trucking operation
The Company' s over-the -road trucking operation is
geared to inbound materials used in the Company's
manufacturing process. The procedure starts out with a
"pickup sheet" designating a vendor 's place of business
where a pickup is to be made of compressors , coils, or
tubing which constitute the raw materials used by the
Company in the manufacture of its product . Then the sales
division is contacted to determine what available outbound
shipments of the Company 's products would coincide with
the geographic location where pickups are required to be
made . Thus, the driver's routing is based on the incoming
pickups of raw materials and not on the shipment of the
Company's finished product. An over-the-road driver is
dispatched to make deliveries of the Company's products
only if a pickup of raw materials is required in the same
geographic location . As a result of this procedure, the
Company still makes about 65 to 75 percent of its
outbound shipments by common carrier rather than by its
own drivers.
In February 1971, when it became known among the
employees that the Company was going to employ over-
the-road truckdrivers, three production employees (Shoe-
maker, Millman , and Biesterfeld) in the plant bargaining
unit applied to the Personnel Manager for Jobs as over-the-
road drivers. All three were obviously members of Local
459. The Company employed four full-time over-the-road
truckdrivers when this operation began on May 9, 1971.
These four were Shoemaker and Biesterfeld , both of whom
had requested a transfer from plant production jobS,2 and
Atkinson and Brumley, both of whom had previously
worked as "casual" drivers. At his own request , Shoemaker
was transferred back to the plant as a production welder
early in June 1971. He was replaced by Burns who had
previously worked as a "casual" driver. On June 28, 1971,
Biesterfeld , at his own request , was transferred back to a
plant production job and was replaced on that date by
Wilson. On October 21, 1971, Brumley, at his own request,
was transferred into a plant production job as a punch
press B operator . He was replaced by Macklin who had
been temporarily employed for a short period a month
earlier . About 5 days after his transfer into a production
job, Brumley requested a transfer back to the job of over-
the-road truckdriving. His request was not granted because
there was no vacancy in the driving staff . Thereafter he
I The factual findings hereinafter set forth are not in dispute
2 Millman was disqualified because he failed to pass the driving test
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
renewed his request on three different occasions and each
time was told that he would have to wait until there was an
opening. During the month preceding the instant trial,
Bums asked Traffic Manager Bandy if it would be possible
for him to transfer into a production job if he should so
desire in the future. Bandy was noncommittal and said he
would think about it. From time to time in emergency
situations , production employees have been assigned by
the Company to make over-the-road truckdriving trips. On
such occasions, they are paid on the same basis as the
regular over-the-road drivers. At no point has the truckdnv-
erjob ever been posted for bid.
Duane Pryor is general manager of the Company's
approximately 400 hourly and salaried employees. About
50 employees are salaried and comprise executives,
supervisors, and clericals. The remaining 350 are hourly
production and maintenance employees represented by
Respondent Local 459. Directly under Pryor in the
supervisory heirarchy is Materials Manager Blitzer. Direct-
ly under Blitzer is Traffic Manager Bandy who directly
supervises the over-the-road drivers. Bandy's backup man
is Shipping Foreman Winkleman who supervises the local
driver, Wolter, and the shipping department employees
who load the over-the-road drivers' trucks. Winkleman is
in charge of the over-the-road drivers when Bandy is
absent or sick, issues the over-the-road drivers all their bills
of lading and has a key to the over-the-road drivers' box.
They spend over 95 percent of their time away from the
plant and have little or no contact with plant employees.
Their equipment consists of twin-axle, diesel-powered,
sleeper cab tractors, pulling 40-foot high-cube trailers
12-1/2 or 13 feet high.
Under the current contract, the over-the-road drivers are
paid a weekly salary of $90 plus mileage rates and
allowances for waiting time, room and board while on the
road. However, for vacations, holidays, and other benefits,
they are paid the same hourly rate as the "truck-chauf-
feur," Wolter. In common with the production employees,
they share the compensatory benefits such as pensions,
vacations, holidays, insurance, and other fringe benefits as
well as seniority.
2. The "truck -chauffeur"
Alfons Wolter has been the only employee in the
classification of "truck-chauffeur." The current contract
lists this classification as labor grade 8 with an hourly rate
of $3.54. Article 11(c) provided for time and one half for all
hours worked in excess of 8 per day or 40 per week. He
admittedly is covered by the term "truck drivers" in the
certification.
Wolter is the local driver. He is under the direct
supervision of Foreman Winkleman of the shipping
department, makes two to three loads a day from Red Bud,
Illinois, to St. Louis, Missouri, a distance of 30 miles each
way, and may spend 2 to 3 hours sitting around the
warehouse and shipping department waiting for his truck
to be loaded. However, prior to 1971 he spent about 10
percent of his time on over-the-road driving. During 1971
he spent only about 2 to 3 percent of his time driving over-
the-road. On over-the-road trips he is still paid his contract
rate, including time and a half over 8 hours a day, plus
expenses for meals and lodging. He has never been paid on
a mileage basis and never took an I.C.C. test on safety
regulations . He drives a gasoline single -axle tractor and
pulls the older trailers varying in length from 36 to 40 feet.
3. Contentions of the parties
The General Counsel contends that (1) the classification
of over-the-road truckdrivers was not included in the unit
for which the International was certified or in the original
contract between Local 459 and the Company; (2) the
Respondent neither claimed to, nor did, represent a
majority of them; and (3) in view of the lack of community
of interest between the over-the-road drivers and the local
driver and the production and maintenance employees, the
over-the-road truckdriver constitute a separate appropriate
unit and not an accretion to the production and mainte-
nance unit represented by Local 459. Under these
circumstances, the General Counsel contends, the conduct
of the contracting parties in extending to the over-the-road
truckdrivers, and enforcing, the terms and conditions of
employment set forth in the current contract, constitutes
violations of Section 8(a)(1), (2), and (3) of the Act by the
Company and violations of Section 8(b)(I)(A) and (2) of
the Act by the Unions.
The Respondents advance two alternative contentions.
First, they contend that the over-the-road drivers are
included in the unit described by the certification and the
original contract. In support of this contention, they point
out that (1) while the certification and contract description
of the unit includes "truckdnvers," there never has been a
job classification with that title ; (2) although Wolter was
the only driver employed at the time of the election, the
unit description is in the plural; (3) Wolter at that time
spent about 10 percent of his time in over-the-road driving;
(4) a reasonable interpretation of the word "truckdrivers"
in the unit description would have to include the over-the-
road portion as well as the local portion of the then existing
work; and (5) the over-the-road function of the "truckdnv-
ers" was expanded pursuant to the provisions of the
contracts which outline the procedure to be followed "if
the Company establishes a newjob, or makes a permanent
change in an existing job."
For their second contention, Respondents assert that in
any event "the facts in this case nevertheless warrant the
inclusion of over-the-road drivers in the bargaining unit
under the Board's accretion doctrine." They then point out
the facts which, they contend, establish that the over-the-
road drivers have a substantial community of interest with
the production and maintenance unit to warrant their
inclusion in a single bargaining unit.
4. Applicable Board unit principles
In Valley of Virginia Cooperative Milk Producers Assn.,
127 NLRB 785, the Board, in considering the unit
placement of driver-salesmen , stated at p. 787:
Even though they may be away from the plant most
or all of the time and have little contact with plant
employees, truckdrivers are included, under established
Board practice , in production and maintenance units
unless the parties agree to exclude them or some labor
THE SINGER COMPANY 875
organization seeks to represent them separately . . . we
conclude that they have sufficient interest in common
with the production and maintenance employees to
warrant their inclusion in a production and mainte-
nance unit when , as here , there is no agreement to
exclude them and no other labor organization seeks to
represent them separately.
Two years later, the Board in E. H. Koester Bakery, 136
NLRB 1006 , changed its blanket policy of automatically
including truckdrivers in the more comprehensive unit
when the foregoing factors are present . Thus, the Board
stated in that case as follows (pp. 1010-11):
However, when the parties are in disagreement as to
the unit placement of truckdrivers , there is no bargain-
ing history , and no union is seeking to represent them
separately , it is incumbent upon the Board to consider
the pertinent factors present in order to determine
wherein the predominant interests of truckdrivers are
vested. In treating with this type of situation , the Board
has, over the years, considered various criteria as
guides in its determinations. In large part, such
determinations were based upon the evidence present-
ed in each case bearing upon the factual situation as it
reflected the existence of a community of interest or
lack thereof.
In another 2 years, the Board followed this development
with the rationale of Marks Oxygen Company of Alabama,
147 NLRB 228. In considering the unit placement of nine
truckdrivers who transported the Employer' s product to
both local and distant points , the Board stated as follows
(pp. 229-230):
Prior to the Koester decision, the Board for a period
of time followed a policy of requiring the inclusion of
truckdrivers in production and maintenance units
unless the parties agreed to exclude them, or unless
another labor organization sought to represent them
separately . In the Koester case, supra, the Board
reversed the policy of requiring the inclusion of
truckdrivers where there was disagreement. However, it
did not reverse the finding , stated in Valley of Virginia,
concerning a community of interest between truckdriv-
ers and production and maintenance employees in
relation to the flow of materials and products into and
out of the plant. Nor did the Board reverse such basic
policies as (a) a plantwide unit is presumptively
appropriate ; (b) a petitioner 's desires as to the unit is
always a relevant consideration ; and (c) it is not
essential that a unit be the most appropriate unit. The
elimination of the policy of requiring the inclusion of
truckdrivers brought the Board 's policy with respect to
such employees into harmony with its long-standing
and oft-stated policy of not compelling a labor
organization to seek representation in the most compre-
hensive grouping . Where, as here , a labor organization
is willing, and seeks, to represent them in a plantwide
unit , we agree with the Regional Director that even
though they may be away from the plant most or all of
the time and do little or no work in the plant,
truckdnvers have sufficient community of interest with
production and maintenance employees to warrant
including them in such a unit.
As recently as September 22, 1971, the Board reaffirmed its
adherence to the principles of the Marks Oxygen case when
it affirmed the Regional Director's inclusion of three over-
the-road drivers in the production and maintenance unit.
Dayton Steel Foundry, 193 NLRB No. 45.
5. Conclusions
If the General Counsel's contentions are sustained, then
it follows under controlling Board precedents that the
Respondents violated the Act in the respects previously
stated. On the other hand, if either the first or second
contention of the Respondents is sustained , it follows that
they engaged in no unlawful conduct in these respects.
I find merit in Respondents' second contention and
therefore deem it unncessary to address myself to the first
one. In arriving at this conclusion, I have been motivated
primarily by the following relevant factors:
(a) At the time when the current contract was agreed
upon and applied to the over-the-road truckdrivers, no
other union was seeking to represent them in a separate
unit. I agree with Respondents that for the purpose of
determining the lawfulness of their conduct, the situation
must be viewed as it existed at the time of their alleged
misconduct.
(b) Although Respondent Company initiated the move-
ment to include the over-the-road truckdrivers in the
production and maintenance unit, Respondent Local 459
nevertheless was willing and agreed to represent them as
part of the comprehensive unit.
(c) The over-the-road operation is geared to the pickup
of inbound raw materials used by the Company in its
manufacturing process and any outbound shipments are
only incidental thereto. This demonstrates the existence of
a community of interest with production employees in
relation to the flow of materials into the plant.
(d) During a short period of time, there was a
considerable amount of regular transfers between the plant
production job classifications and the over-the-road
truckdriving and vice versa, albeit always at the request of
the transferee. In addition, there were several "emergency"
temporary transfers from job classifications in the plant to
over-the-road work.
(e) There have been instances when the over-the-road
drivers report to or get instructions from Shipping
Foreman Winkleman who supervises the local driver and
the shipping department employees who load the over-the-
road drivers' trucks. And it is Winkleman, rather than
Traffic Manager Bandy, who possesses a key to the drivers'
box.
(f) Over-the-road truckdrivers share in common with the
production and maintenance employees such compensato-
ry benefits as pensions, vacations, holidays, insurance, and
other fringe benefits as well as seniority.
(g) Over-the-road truckdrivers are paid the "truck-
chauffeur" hourly rate for vacations, holidays and other
benefits.
(h) The equipment operated by the over-the-road drivers
is essentially the same as that operated by the local driver
classified as "truck-chauffeur," who admittedly is in the
production and maintenance unit.
Upon consideration of all the foregoing in the light of the
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
established Board unit principles previously set forth, I
find that the four over-the-road truckdrivers have a
sufficient community of interest with the approximately
350 production and maintenance employees to warrant
their inclusion in the comprehensive unit as an accretion
thereto. I therefore find that the contracting parties did not
engage in any conduct violative of the Act on this aspect of
the cases. As the contract was validly applied to the over-
the-road drivers, I further find that the conduct of
Respondent Local 459 in seeking to enforce the union-
security and checkoff provisions thereof also is not
unlawful . Moreover , as the complaint against Respondents
in Case 14-CB-2341 contains no other allegations of
violations of the Act, I will recommend that said complaint
be dismissed in its entirety.
C. The Independent Violations of Section 8(a)(1)
1. The facts
a. As to Personnel Manager Eggemeyer
Over-the-road driver Bud Atkinson testified that during
his employment interview on May 4, 1971, Eggemeyer
discussed the wages and benefits offered by the Company
under the contract which had been agreed upon with Local
459, and that during the discussion Eggemeyer stated that
if Atkinson went to the Teamsters the Company would just
discontinue its trucking operation and go back to common
carriers and that the Company would have nothing to do
with the Teamsters at the Red Bud plant. Brumley, another
over-the-road driver, testified that during his employment
interview on May 7, 1971, Eggemeyer stated that the
Company did not want the Teamsters in the plant and that,
if the drivers elected to go Teamsters, the Company would
go back to common carriers.
During the period between May 7 and June 7 Atkinson,
Biesterfeld, and Brumley were in the plant cafeteria,
discussing their wage scale and working conditions.
Eggemeyer was called over to their table. Acting as the
spokesman for this group of over-the-road drivers, Atkin-
son urged upon him the inadequacy of their wage scale and
proposed in writing one that would result in more money
for the men without any substantial increase in costs to the
Company. Atkinson and Brumley testified that in the
course of their conversation, Eggemeyer told the men that
if they went with the Teamsters the Company would go
back to common carriers.
Atkinson testified that about May 15, 1971, he met with
Eggemeyer and Traffic Manager Bandy and discussed
increases in the drivers ' mileage rates and allowances.
During the course of this discussion, according to Atkin-
son's further testimony, Eggemeyer stated that if Atkinson
tried to get the Teamsters in, the Company would go back
to common carriers, that they had a contract with the Sheet
Metal Workers [Local 459] and that was the contract they
were going by.
Atkinson testified that during the course of his discharge
interview on July 8, 1971, he talked to Eggemeyer about
Teamster wages, grievance procedures and seniority. He
further testified that Eggemeyer told him that the Compa-
ny would have nothing to do with the Teamsters, that
Singer did not want the Teamsters and wanted to stay with
what it had and that if the Teamsters came into the picture
the Company would go back to common carriers.
Brumley testified that on September 12, 1971, Atkinson,
Wolter , and he were in the plant cafe when Eggemeyer
came in and joined them at their request . He further
testified that Atkinson then started to talk with Eggemeyer
about the rates of pay which the Company's drivers in New
York were getting and started figuring out an alternative
method of payment which could be used at the Red Bud
plant . He further testified that Eggemeyer said if they went
Teamsters, he would do away with the trucking operation
and put it back to common carrier . Atkinson testified that
on this occasion he told Eggemeyer that the men had all
signed cards authorizing the Teamsters to represent them,
that Eggemeyer retorted he was sick and tired of hearing
Atkinson talk about wages and that if he did not stop it
Eggemeyer was going to pick up the phone and cancel the
contract on the trucks and go back to common carrier, and
that Atkinson replied that Eggemeyer had better get on the
phone and call the leasing company because the men were
going to send in their union cards.
Eggemeyer denied that he ever told Atkinson or Brumley
or any employee that the Company would discontinue the
trucking operation and go back to common carrier if the
drivers went Teamsters or brought the Teamsters in as the
bargaining agent . I do not credit Eggemeyer's denials. I
credit the testimony of Atkinson and Brumley and find
that Eggemeyer made the statements attributed to him as
hereinabove set forth.
b. As to Traffic Manager Bandy
During a discussion with Traffic Manager Bandy about
the middle of July 1971, Bandy told Atkinson that a leasing
company in St . Louis had offered Singer a deal of leasing
drivers for so much an hour and that before Singer would
go Teamsters it will either go back to common carriers or it
will lease drivers.
The foregoing is based on the credited and undisputed
testimony of Atkinson . Although Bandy testified at the
instant trial , he did not deny having made the above
statement to Atkinson.
c. As to Shipping Foreman Winkleman
After ratification of the current contract on May 1, 1971,
Winkleman told Alfons Wolter, the local driver, that if the
drivers joined the Teamsters, the Company would go back
to common carriers. On another occasion when Wolter was
talking to Winkleman in the shipping department , Winkle-
man said that if they joined the Teamsters the Company
would discontinue the truck lines and go to common
carriers . During a conversation with Winkleman in the first
part of September 1971, Wolter mentioned that he knew
two men in the city who had belonged to the Teamsters for
18 years and who only worked until 12:05 and then went
home but who were paid for the full 8 hours whereas he
(Wolter) was driving a truck all day for $3.54 an hour.
Winkleman replied, "it's your choice. If you want to go
Teamsters, O.K. They'll discontinue the truck line."
The foregoing findings are based on the credited and
THE SINGER COMPANY 877
undisputed testimony of Wolter. Although present in the
hearing room throughout the trial, Winkleman was not
called as a witness.
2. Conclusions
Although I have found that the over-the-road drivers
were properly part of the production and maintenance unit
represented by Local 459 and covered by its current
contract with the Company, they nevertheless had the right
guaranteed by Section 7 of the Act to join the Teamsters
and to try to get the Teamsters to become the employees'
bargaining representative at an appropriate time. The
statements of Personnel Director Eggemeyer, Traffic
Manager Bandy and Shipping Foreman Winkleman, all
admitted agents of the Company, were clear threats of
discontinuance of their jobs as reprisals for exercising that
right. I therefore find that by such conduct, Respondent
Company violated Section 8(a)(1) of the Act.3
D. The Discharge of Atkinson
Eggemeyer discharged Atkinson on July 8, 1971,
believing that he was acting within the contract 60-day
probationary period during which an employee could be
discharged without recourse to the grievance procedure.
Later that afternoon, Atkinson telephoned Eggemeyer and
stated that according to his calculations he had already
worked 61 days and therefore could not be discharged
under the probationary provisions of the contract. Upon
checking with Traffic Manager Bandy, Eggemeyer was
apprised of the correctness of Atkinson's calculations.
Eggemeyer thereupon telephoned Atkinson, told him that
he had made a mistake about his probationary period of
work, asked him to "forget it ever happened" and "just
erase it from your mind," and to report back to work as
scheduled. Atkinson returned to work without having lost
any time.4
Eggemeyer admitted that he discharged Atkinson on
July 8, 1971, because of his frequent complaints about his
wage rate and that on at least one occasion Atkinson was
acting as spokesman for a group of drivers in this respect.
This has reference to the meeting in the plant cafeteria
during the period between May 7 and June 7 when
Atkinson acted as the spokesman for himself and drivers
Brumley and Biesterfeld, as previously found. During the
discussion on this occasion, Atkinson told Eggemeyer,
among other things, that "we weren't so much in love with
the Teamsters union, we were willing to work with what we
could get." Eggemeyer also admitted that he entered on
Atkinson's employment record the reason for his dis-
charge. The crossed-out entry on this document states, in
part, `let him go-he was good driver but was not happy
with the pay arrangement-too energetic ...." Atkinson
credibly testified, without dispute, that during his discharge
interview the Teamsters was brought into the discussion
only insofar as their contract provided a standard for
3 In view of my findings that the over-the-road truckdrivers were
appropriately included as an accretion to the production and maintenance
unit and properly represented by Local 459 and covered by the current
union-security agreement, I find no violation of Sec 8(a)(l) in additional
conduct alleged in the complaint and urged by the General Counsel For
example, I find nothing unlawful in Eggemeyer telling the drivers that they
comparison with the Company's wages, and that he told
Eggemeyer at that time that the drivers were not actively
seeking representation by the Teamsters.
The complaint alleges, and Respondent Company's
answer denies, that Atkinson was discharged because he
joined or assisted Teamsters Local 50 or engaged in other
union or concerted activities , in violation of Section 8(a)(1)
and (3) of the Act. I am not persuaded that the evidence
warrants a finding that Atkinson was discharged because
he joined or assisted Teamsters Local 50. However, I am
convinced and find that it was motivated by his persistent
conduct in attempting to get the Company to agree to a
more satisfactory wage scale for the over-the-road drivers.
Although such conduct was at times a concerted activity, I
find that it was not a protected concerted activity because
Atkinson was on these occasions bypassing Local 459, the
exclusive collective -bargaining representative , in attempt-
ing to negotiate changes in the current contract which I
have previously found properly covered and was applied to
the over-the-road drivers. Indeed, both Eggemeyer and
Bandy at times told Atkinson that they could not bargain
wtih him individually but that he would have to take such
matters up through the plant union. Accordingly, I find
that the discharge of Atkinson was not violative of the Act
and will recommend dismissal of the complaint in this
respect also.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent Company set forth in
section III , above , occurring in connection with the
business operations of said Respondent described in
section I , above , have a close , intimate , and substantial
relation to trade, traffic, and commerce between the
several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. By the conduct of Personnel Manager Eggemeyer,
Traffic Manager Bandy and Shipping Foreman Winkle-
man in threatening the drivers on a number of occasions
with loss of their jobs by discontinuing its over-the-road
truckdnving operations and going back to using common
carriers to haul all its freight or going to leasing drivers if
they joined or selected the Teamsters as their bargaining
agent, Respondent Company interfered with, restrained,
and coerced its employees in the exercise of their rights
guaranteed by Section 7 of the Act and thereby engaged
and is engaging in unfair labor practices within the
meaning of Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
3. Respondent Company did not engage in any other
would have to join Local 459 at the end of 31 days or in Bandy telling
Atkinson and other drivers that the plant union was the bargaining agent
for the drivers and that they would have to go through the plant union to
settle whatever complaints they had
4 The findings in this paragraph are based on a composite of the
mutually consistent and undisputed testimony of Eggemeyer and Atkinson
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices alleged in Case 14-CA-6426 but not
specifically found herein.
4. Respondent Unions did not engage in any unfair
labor practices alleged in Case 14-CB-2341.
THE REMEDY
Having found that Respondent Company has engaged in
certain unfair labor practices, I will recommend that it
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
[Recommended Order omitted from publication.]