Tidewater Express Lines, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1941

32 N.L.R.B. 792 (N.L.R.B. 1941)

In the Matter of TIDEWATER EXPRESS LINES, INC. and FREIGHT DRIVERS
& HELPERS LOCAL UNION No. 557
Case No. C-1768.-Decided June 17, 1941
Jurisdiction : motor transportation industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: threat to shut down operations or sell
business before recognizing union ; soliciting striking employees individually
to return to work while they were on the picket line and thereby abandon the
strike and repudiate the union ; threatening to discharge an employee for
soliciting membership in union.
Company-Dominated Union: charges of, dismissed.
Remedial Orders : employer ordered to cease and desist unfair labor practices.
Mr. Charles Y. Latimer; for the Board.
Mr. Francis Key Murray, of Baltimore, Md., for the respondent.
Mr. Edward Colgan, Jr., of Baltimore, Md., for the Independent.
Mr. Thomas J. Healy and Mr. Jacob J. Edelman, of Baltimore, Md.,
for the Union.
Miss Marcia Hertzmark, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges-and amended charges 1 duly filed by Freight Drivers
and Helpers Local Union No. 557, affiliated with the American Fed-
eration of Labor, herein called the Union, the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for
the Fifth Region (Baltimore, Maryland),, issued its complaint dated
September 24, 1940, against Tidewater Express Lines, Inc., Baltimore,
Maryland, herein called the respondent, alleging that the respondent
had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (2) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act.
1 The original charge was filed June 28, 1940 and an amended charge as subsequently
filed on September 20, 1940.
32 N. L . R. B., No. 136
792
TIDEWATER EXPRESS LINES, 1N'C. 793
A copy of the complaint accompanied by a notice of hearing was duly
served upon the -respondent, the Union, and the Independent Union of
Employees of Tidewater Express Lines, Inc., herein called the
Independent.
With respect to the unfair labor practices, the complaint alleged in
substance : (1) that the respondent, by its officers and agents, on or
about June 24, 1940, initiated, formed, and sponsored the Independent
and thereafter dominated, interfered with, and contributed support to
said organization; and (2) that the respondent, from in or about May
1940, urged, persuaded, and warned its employees to refrain from
joining the Union and threatened said employees with discharge if
they became or remained members of the Union.
On September 28, 1940, the Regional Director granted the Inde-
pendent's petition to intervene for the limited purpose of meeting the
issue of domination. On September 30, the respondent filed its answer,
denying that it had engaged in the unfair labor practices alleged in
the complaint. On October 10, the Independent filed its answer,
denying that the respondent had dominated or interfered with its
formation or administration.
Pursuant to notice, a hearing was held in Baltimore, Maryland,
from October 24 through 29, 1940, before Henry J. Kent, the Trial
Examiner duly designated by the Chief Trial Examiner. The Board,
the respondent, and the Independent were represented by counsel and
participated in the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses and to introduce evidence bearing on the
issues was afforded all parties. At the conclusion of the hearing,
counsel for the Board moved to conform the complaint to the proof.
The motion was granted. The respondent moved that the complaint
be dismissed for want of evidence to sustain the allegations of the
complaint. A similar motion was made by the Independent. Rulings
were reserved on both motions. In his Intermediate Report the
Trial Examiner granted the motions as to those allegations in the
complaint pertaining to domination and interference with the forma-
tion and administration of-the Independent. He denied them in all
other respects. During the course of the hearing the Trial Examiner
made rulings on other motions and on objections to the admission of
evidence. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
At the conclusion of the hearing, the parties participated in oral
argument before the Trial Examiner. A joint brief signed by counsel
for the respondent and counsel for the Independent was thereafter
filed-with the Trial Examiner.
On December 23, 1940, the Trial Examiner' filed his Intermediate
Report, copies of which were duly served upon all the parties, finding
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the respondent had engaged in unfair labor practices within the
meaning of Section 8 (1) of the Act. He recommended that the
allegation that the respondent had interfered with and contributed
support to the Independent be dismissed. Exceptions to the Inter-
demiate Report were filed by the respondent and the Union and both
requested permission to argue orally.
Pursuant to notice, a hearing was held before the Board in Wash-
ington, D. C. on March 13, 1941, for the purpose of oral argument.
The respondent and the Union were represented by counsel. The In-
dependent did not appear. The Board has considered the exceptions
of the parties and their oral arguments in support thereof, and in so
far as the exceptions are inconsistent with the findings,, conclusions,
and order set forth below, finds no merit in them.
Upon the entire record in the case the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, Tidewater Express Lines, Inc., is a corporation or-
ganized on August 26, 1933, under the laws of Maryland. Its princi-
pal office is in Aberdeen, Maryland. It is engaged in the business of
trucking freight between the cities of Baltimore, Maryland; Wash-
ington, D. C.; Richmond, Virginia; Frederick, Maryland; York,
Pennsylvania; and other towns lying on the operating routes between
the above-named route terminal cities.
During the last fiscal year the gross tonnage handled by the re-
spondent amounted to 47,431 tons, of which approximately 40 per cent
was hauled in interstate commerce. The respondent's gross income
for the last fiscal year was about $240,000, approximately 30 or 35
per cent of which was allocable to its interstate business.
The respondent maintains about 40 trucks, 10 of which are used
exclusively in hauling milk and cream from farms in the State of
Maryland to dairies in the city of Baltimore. This milk-trucking
business is a purely intrastate operation.
H. THE ORGANIZATIONS INVOLVED
Freight Drivers and Helpers Local Union No. 557, an affiliate of
the American Federation of Labor, is a labor organization admitting
to its membership employees of the respondent.
The Independent Union of Employees of Tidewater Express Lines,
Inc., is an unaffiliated labor organization admitting to its membership
employees of the respondent.
TIDEWATER EXPRESS LINES, INC. 795
III. THE UNFAIR LABOR PRACTICES
A. Background of labor relations
On November 10, 1936, the Board issued a complaint against the
respondent alleging that the respondent had engaged in unfair labor
practices within the meaning of Section 8 (1), (2), and (3) of the Act.
On-January 23, 1937, the Board issued its Decision and Order, finding
that the respondent had violated Section 8 (1) and (3) of the Act.
Among other things, the Board found that the respondent had "coerced
its employees to sign certain contracts . . . which bound the signers
to refrain from joining any union." 2 The Board also found that the
respondent had discouraged membership in the International Broth-
erhood of Teamsters, Chauffeurs, Stablemen and Helpers of America
by discharging two employees. It was pointed out in that decision
that the respondent had expressly stated that it would not have union
men in its employ. The Board ordered the respondent to cease and
desist from discouraging membership in any labor organization of its
employees and from interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed in Section 7 of
the Act. The 8 (2) allegation in that complaint was directed against
an Association of the respondent's employees, formed as a result of
a meeting in 1936 at which the respondent had presented to its em-
ployees the above-mentioned anti-union contracts. At the close of
the hearing this allegation of the complaint was dismissed by the Trial
Examiner upon motion of counsel for the Board. In its Decision
the Board subsequently approved the dismissal of the 8 (2) allegation.
On May 10, 1937, the Circuit Court of Appeals for the Fourth Circuit
enforced the Board's Decision and Order.
The record in the present case discloses that after the decision of the
Circuit Court of Appeals, the respondent posted notices to the effect
that it would not interfere with the rights of its employees to organize.
The respondent continued to pay the bonus provided for in the con-
tracts, but no further "yellow dog" contracts were signed. The em-
ployees were not specifically notified, however, that the contracts were
void and of no effect; several employees testified that, until the summer
2 These contracts provided for the payment of a bonus each 6 months, in addition to
the base salary, at a scale based upon the respondent's gross income The contract also
contained the following provision :
The employee hereby represents to the employer that he does not, at the time of
the signing of this Agreement, belong to any labor union, labor association, or labor
organization of any kind, and he hereby covenants to join no labor union, labor asso-
ciation, or labor organization of any kind while lie is in the employ of Tidewater
Express Lines, Inc. Breach of this covenant, entered into after full discussion by the
parties, shall automatically terminate the - employment, and the employee shall be
paid for his services to the date of discharge on the base pay, calculated weekly but
he shall not be entitled to any additional pay hereinabove provided.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of 1940, they believed that the contracts were still operative. In July
1940, at the suggestion of the Board's Regional Director, the respond-
ent notified, by letter, such of its employees who had signed the con-
tracts in 1936, that "the contract of employment which you signed .. .
is no longer in effect, the same having been abrogated by virtue of an
order of the United States Circuit Court of Appeals, for the Fourth
Circuit, some time in the late spring of 1937."
The Association, which was formed under the circumstances stated
above, continued in existence until April 1940. Its activities appear
to have been largely confined to social functions. A constitution and
bylaws, the nature of which are not disclosed by the record, were
adopted and officers were elected. There was no bargaining between
the respondent and the Association. The last function of the Asso-
ciation was a banquet in April 1940, which was financed by the re-
spondent, because, according to Harold Wilson, secretary and general
manager of the respondent, a mistake had been made in paying the
bonus to the employees and it had been suggested that the surplus
should be spent on the banquet. Linwood Clarke, a mechanic in the
shop, was president of the Association when it was abandoned in
April 1940.
The above findings, including those made by the Board in its previous
Decision and Order, are not alleged in the present proceeding as un-
fair labor practices, but they have significance in appraising the re-
spondent's subsequent conduct. The present complaint covers only
events in and after May 1940.
B. Interference, restraint, and coercion
During June 1940, the freight drivers in the employ of the respond-
ent again evinced interest in affiliating with the American Federation
of Labor. Many of them joined the Union. On June 17, 1940,
Thomas J. Healy, the business representative of the Union, called at
the office of the respondent and, claiming to represent a majority of the
employees, requested the respondent to recognize the Union as the
sole collective bargaining agent. Harold Wilson, secretary and general
manager of the respondent, and Frank Hamby, its vice president, re-
quested proof from Healy that the Union did represent a majority
of the respondent's employees. Healy replied that the Union was
holding a meeting that night and that lie would return the following
day with such proof. On the night of June 17, a strike vote was taken
at the union hall, and on June 18, about 16 of the freight drivers em-
ployed by the respondent ceased working and began picketing the
Baltimore terminal of the respondent.
On the first day of the strike, Wilson and Hamby approached Henry
King, an employee, on the picket line and asked him what the strike
TIDEWATER EXPRES'S LSNES, INC. 797
was about. King stated that the men were dissatisfied and asked why
the respondent did not recognize the Union. According to King,
Hamby and Wilson replied that the respondent would close the shop
before it would recognize the Union. Both Wilson and Hamby ad-
mitted having conversations with King on the picket line. Wilson
testified that he never told King that the respondent would not "sign
up" with any union. Hamby testified that, in response to King's
questions as to when the respondent was going to sign a contract, he
said that he "didn't know when we would sign." Hamby denied
having stated that the respondent would go out of business before it
would sign a contract with the Union. We find, as did the Trial
Examiner, that Wilson and Hamby told King that the respondent
would close the shop before it would recognize the Union.
King also testified that while he was on the picket line John T.
Bennett, traffic manager for the respondent, told King that he thought
King was being tricked into joining the Union and that the respondent
would never recognize the Union, but would sell out first. Bennett
denied making these statements. We find that he made them.
During the strike, which lasted until about the last of July, the
respondent solicited the strikers to return to work. Thus, Wilson
testified that "the boys on the picket line" were asked several times
to return to work and to settle their grievances thereafter. Failing
in these efforts to get the strikers to abandon the strike, Wilson and
Hamby called a meeting of the drivers and platform men in,the latter
part of July. The record does not show what transpired at this
meeting, other than that Wilson discussed the matter of resuming
operations. Wilson testified that it was a meeting of "employees that
were working . . . and those that were not . . . just for the purpose
of finding out how many of them were willing to go back to work
even though they were still picketing." It is not clear from this
testimony whether or not strikers were invited to attend this meeting.
It appears doubtful that they were all asked to attend from Wilson's
further testimony that, "the next morning I talked to some that was
on the picket line . . . they had evidently heard about the meeting,
and our offering to resume a part of our operations, and they evidently
had decided in the meantime that it would be better to do as we
suggested, come back to work and settle anything that needed settling
later." Shortly thereafter the strikers returned to work. We find
that the respondent's individual solicitation of the strikers on the
picket line to return to work, coupled with its statement that the
respondent would not recognize the Union and its threats to go out
of business, constituted an attempt to discourage union membership
and activity by its employees.
After the men had returned to work, Clyde Hatt, one of the Union
members, held a, conversation concerning union membership with
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rickets, a milk driver, and Roy Wagner, a freight driver, on a lot
behind the respondent's garage in Baltimore. Hatt testified without
contradiction that he had his log book marked off for his lunch hour
and that he was not on the respondent's property. About 5 minutes
later he returned to the terminal where General Manager Wilson called
him over and, according to Hatt, threatened to discharge him "in
the future if he found any more of that soliciting during working
hours or on company property." Wilson denied threatening to dis-
charge Hatt. He testified that there had been an agreement at the
time the men returned to work after the strike that no soliciting
would be permitted by the Union or the Independent on the re-
spondent's property during working hours. He also testified that
Wagner had reported to him concerning Hatt's soliciting. The Trial
Examiner credited Hatt's testimony that he was not soliciting on the
respondent's time or property. We find that Wilson threatened to
discharge Hatt for soliciting union membership on company time
and property immediately after an incident when Hatt was soliciting
on his own time and off company property, and that the threat was
made for the purpose of putting a stop to all solicitation of union
members. We find that the respondent thereby discouraged union
membership and activity of its employees.
Lem Peters, a milk driver, testified that on June 23, Linwood
Clarke, an employee who was then promoting the Independent, asked
Peters, in the presence of Joseph Grimes, Peters' foreman, to attend
a meeting of the Independent scheduled for the following night.
Peters replied that he could not go, whereupon Clarke said, according
to Peters, "If you don't you'll get your pay check, won't he, Mr.
Grimes ?" Grimes replied, "Yes." Clarke did not contradict Peters'
testimony as to the substance of the conversation, but testified that
the remarks were made in a joking manner. Grimes denied the state-
ment attributed to him. Peters testified that by reason of the remarks
of Clarke and Grimes, he attended the meeting. His name, however,
does not appear on the list of employees present at the June 24 meet-
ing and Clarke denied that Peters attended. Moreover, it is evident
that Peters confused the June 24 meeting with the July meeting called
by Wilson and Hamby, which he attended, since he stated that Wilson
addressed the meeting. Wilson was not present at the June 24
meeting. Peters was not discharged, and is still employed on part;
time by the respondent. We credit Grimes' denial. The respondent
was not responsible for the statements of Clarke. The foregoing
remarks of Clarke do not therefore, warrant a finding that the re-
spondent thereby interfered with the rights of its employees to engage
in concerted activities.
We find that the respondent, by threatening to shut down opera-
tions or sell the business before recognizing the Union, by soliciting
TIDE'WATEiR EXPRES'S LINES, INC. 799
its striking employees individually to return to work while they were
on the picket line and thereby abandon the strike and repudiate the
Union, and by threatening to discharge Hatt for soliciting member-
ship in the Union in the manner set forth above, interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
C. Alleged interference with and domination and support of the
Independent
As stated above, some of the respondent's freight drivers went on
strike on June 18. The majority of the employees, however, did not
join in the strike. The operations of the respondent were curtailed
and the employees not on strike worked only part time.
The day after the strike started, Linwood Clarke, a mechanic in
the repair shop and the former president of the Association referred
to above, commenced organizing the non-striking employees into an
unaffiliated union. He talked the matter over with many of the
employees within 2 days after the strike was called. Clarke testified
that on June 18, the day of the strike, or the next day, he and Walter
Wright and Fleming had a conversation during which Clarke ex-
pressed the opinion that "if the company went into the A. F. of L.
it would mean a salary reduction" for him. He stated that Wright
and Fleming agreed with him, and that he based his position on his
understanding that the union wage scale for mechanics was less than
his salary with the respondent and that if the respondent signed an
agreement with the Union his wages would be reduced. During the
afternoon and evening of June 19 Clarke went to the respondent's
terminal at York, Pennsylvania, and also visited intermediate points,
for the purpose of inviting the employees to attend an organizational
meeting. The meeting to consider the proposed organization was
held the evening of June 20, at the home of Walter Wright, one of
the milk drivers employed by the respondent. Clarke and Edward
J. Colgan, Jr., an attorney whom Clarke had secured to assist in
launching the Independent,3 conducted the meeting. According to
the list of names attached to the minutes of the meeting, 42 employees
of the respondent attended. Of these 42, 3 were supervisory em-
ployees, namely, Norman T. Murray, the respondent's agent in charge
of its Frederick terminal; D. H. Brown, the agent in charge of the
York, terminal; and Joseph H. Grimes, the foreman in charge of the
respondent's milk routes. The evidence shows, however, that Brown,
Murray, and Grimes did not take an active part in the meeting. The
employees selected a committee of five to meet with Colgan for the
8 Clarke had first gone to Francis Key Murray , the respondent's attorney , for as-
sistance . Murray, however , declined to help him but suggested that Clarke consult Colgan.
The record does not show how Clarke happened to go to Murray in the first instance.
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purpose of drafting the organization's Articles of Association. Mur-
ray, the Frederick agent, was selected as a member of this committee
to represent the employees at the branch agencies.
On June 21, Grimes, foreman of the milk drivers, told Harold
Wilson, the respondent's secretary and general manager, that he had
attended the aforesaid meeting and that the purpose of the meeting
was to organize the employees into a labor organization. Wilson
inquired of him if any other men holding supervisory positions had
attended. Grimes informed Wilson that Brown and Murray had
been present. Wilson instructed Grimes not to attend any more such
meetings and not to talk to any of the employees as to whether they
should or should not belong to any particular labor organization.
On the following day, June 22, Wilson gave similar instructions
to Brown and Murray.
The committee which had been selected at the June 20 meeting to
confer with Attorney Colgan, met at his office during the afternoon of
June 24. Murray, although he had been selected as a member of this
committee, did not attend. The record does not show whether th(
respondent was aware that the employees were absent for this purpose
as stated above, the employees were then working only part time.
The second meeting of the Independent was held the evening of
June 24, at Wright's home. Articles of Association were adopted
and officers were elected. Forty-nine of the respondent's employees
attended this meeting and signed the Articles of Association, thereby
signifying that they became members of the Independent. Grimes,
Murray, and Brown, the three supervisory employees who attended
the first meeting, did not attend the second and the record fails to show
any participation by them in any of the subsequent activities of the
Independent. The following officers were elected : Gertrude Frazier,
president; Linwood Clarke, vice president; and A. W. Schelle, secre-
tary and treasurer.
Considerable evidence was adduced at the hearing regarding whether
Frazier, Clarke, and Schelle were supervisory employees. Several of
the Board's witnesses testified that, from the nature of their duties, they
considered Clarke to be the foreman of the shop and regarded Schelle
as foreman of the platform workers. The claim was made that Frazier
was the, confidential secretary to the officials of the respondent and
was in charge of the office employees.
In connection with its trucking business the respondent operates a
repair shop in which Clarke and two other mechanics are employed.
Until about August 1938 the respondent had employed a foreman in
the shop. According to Wilson and Hamby, William De Joy, the last
shop foreman, practically quit doing any mechanical work, apparently
because he felt it was beneath his title. As a consequence, the re-
TIDE'WAPER EXPRESS LINE'S,, M'C. sot
spondent dispensed with his services. All the mechanics perform simi-
lar work except that Clarke is subject to calls at night for road break-
downs.4 Clarke receives a salary of $30 a week; the other mechanics
receive $26 and $28 a week.
Edward De Joy, a son of William De Joy and a former truck driver
for the respondent, testified that in about October 1939 he asked Hamby
about having a truck fixed and was told "to see Linwood Clarke, he is
in charge of the shop down there." Clyde Hatt stated that "at any
time there is anything the matter with the truck you report to him
[Clarke] and he saw to it that it was repaired." Clifton Keller, em-
ployed in the shop at greasing trucks, testified that both he and Nichol-
son, a mechanic, took orders from Clarke, but Keller also stated that
he took orders from everybody, including truck drivers. Lemuel
Peters testified that he had heard Clarke'issue instructions to the other
mechanics. Raymond Liske stated that Clarke "works in the shop and
he orders parts in the shop," but Keller testified in this connection
that if any parts were needed "they still have to go up and see Mr. Wil-
son and get an OK to buy them parts."
Clarke denied that he had any supervisory authority and testified
that when he went to work in the machine shop Hamby told him that
he was not to be in charge. Nicholson testified that Clarke gave no
orders and that he had no more authority than any other mechanic.
Enos, a truck driver, corroborated this testimony. Hamby testified
that after the discharge of William De Joy he had assumed direct
supervision over the shop, that the mechanics receive their orders
from Hamby or Wilson and that they must receive the approval of
Hamby or Wilson before ordering repair parts. Clarke keeps no
time records nor does he report on the work of the other shop
employees.
Frazier is employed in the office of the Baltimore terminal. The
greater part of her time is taken up in operating the telephone switch-
board. She also keeps credit files and does other general office work.
She performs no confidential work for the company officials; there
is no evidence that she exercises any supervision over her fellow em-
ployees in the office. Either Hamby or Wilson is generally present
in or about the office, and it is a fair assumption that they are directly
in charge of the office force. Frazier receives a salary of $25 per
week; the four other women employees in the office receive from $14
to $20 per week. However, it appears that Frazier has been in the
employ of the respondent or its predecessor longer than the others. _
Schelle works on the freight platform, checking, receiving and
helping load freight. He receives, $25 per week, the same as Edgar
* Prior to the installation in Clarke's home of a telephone, another employee had re-
ceived the night calls. Hamby testified that this duty was assigned to Clarke because it
was thought unfair that one person should have it for a long period.
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lyon, another platform man. The other three employees on the
platform are paid $17 or $18 per week. However, Schelle is not paid
a bonus, as are the other employees. Clyde Hatt and James Scanlon,
two former truck drivers, testified that Schelle gave them instructions
as to what freight to pick up and what to load on the trucks.. Hatt
further testified that Schelle reports the conduct of drivers to Wilson
or Hamby. Lyon, who according to Wilson "has charge of getting
the trucks loaded out" after 5 p. m.,5 testified that he "always received
instructions from Mr. Schelle." James Scanlon testified that on one
occasion he solicited Schelle's membership in the Union and that
Schelle stated that "he was considered an official of the Company
and could not belong to a labor organization." Schelle denied having
made this statement. We credit his denial. Wilson's testimony is
uncontradicted that Schelle has no authority to hire or discharge
or to recommend such action. Enos, who is a truck driver but some-
times works as a helper, stated that Schelle gives no orders but does
call attention to shipments on the route which a driver happens to
be working that day. He testified that when he had a load he was
unable to handle he might ask Schelle to help and that Schelle's duties,
like those of the other platform employees, were to receive freight,
move it up on the platform and put it "in the different corners where
it is supposed to go." Wilson, Hamby, and Schelle testified that
Hamby is in charge of the platform and spends many hours a day
in active supervision thereof.
Upon a consideration of all the evidence in the record, we are of
the opinion and find that Frazier, Clarke, and Schelle do not possess
or appear topossess supervisory powers to a degree sufficient to charge
the respondent with responsibility for their acts in the formation
and administration of the Independent.
On June 25, the day after the Independent had been formally or-
ganized, Frazier wrote letters to the employees requesting that they
vote for their departmental representatives to the Independent's
board of representatives as provided in the Articles of Association.
She did part of the work in connection with these letters at the re-
spondent's office, using the respondent's mimeographing machine,
without the knowledge or consent of General Manager Wilson.
On June 26 Frazier, as president of the Independent, wrote to
Walter S. Wilson, the respondent's president, advising that the In
had been organized; she stated that more than two-thirds
of the employees had joined and requested that the respondent rec-
ognize the Independent as "the official and sole" collective bargaining
representative of the employees. Harold Wilson, the respondent's
secretary and general manager, replied by a letter dated June 27,
5 Schelle and two other employees work from about 8 a . in. to 5 p in ; Lyon and the
fifth platform man report at noon and continu> In work after 5 p. in.
TIDEWATER EXPRES 'S LINES, INC. 803
stating that the respondent was unable at that time to give a definite
answer to the request for recognition , but assuring Frazier "that we
will endeavor to do so in the immediate future." On June 28 Presi-
dent Wilson wrote to Frazier , recognizing the Independent as the
collective bargaining representative of the respondent 's employees.
According to-Frazier , the Independent did not meet with any offi-
cials of the respondent in connection with the demand for recognition;
she also testified that no evidence of majority status was submitted
prior to the grant of recognition . We accept , as did the Trial Ex-
aminer, Frazier's testimony in this regard, although General Manager
Wilson testified that the Independent Lad submitted a list of members
in conjunction with its demand for recognition. The evidence shows
that 49 of the respondent 's employees , out of a total of about 70, had
signed the Articles of Association at the June 24 meeting , thereby
becoming members of the Independent.
The record does not show what, if any , efforts the Independent made
to bargain with the respondent. The only meeting held after June
24 was the annual meeting in September , as provided in the Articles
of Association . At that meeting there was some discussion concern-
ing drafting a proposed contract . However, on the advice of Colgan,
attorney for the Independent , no proposals were prepared.
While the circumstances surrounding the organization of the In-
dependent raise some doubt as to its independence , we 'find that the
evidence is insufficient to warrant the conclusion that it is the creature
of the respondent . Since it has been found that Frazier, Clarke, and
Schelle, the officers of the Independent , are not supervisory employees,
the respondent cannot be charged with responsibility for their acts
in the absence of other evidence that these employees acted on its be-
half. So far as the record shows , Clarke and the other employees acted
on their own initiative . Although three admittedly supervisory em-
ployees attended the pre-organizational meeting, the evidence fails
to establish that they did anything at that meeting to influence the
employees or to assist in organizing the Independent . The evidence
is clear that within 2 days General Manager Wilson instructed them to
refrain from further participation and that they thereafter ceased to
be identified with the Independent. The haste with which the re-
spondent recognized the Independent , without proof of majority, at a
time when some of its employees were on strike and the Union was
claiming to represent a majority, while strongly suggesting that the
Independent is a dominated organization , is not sufficient to warrant
that conclusion . Although there is no showing as to what investiga-
tion the respondent may have made in the few days intervening be-
tween the Independent 's request for recognition and the respondent's
letter granting such recogition , it is fair to assume that it was influenced
by the comparatively small number of its employees engaged in the
448692-42-vol. 32--52
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strike. The failure of the Independent to seek to bargain collectively
after the strike, while a suspicious circumstance, is insufficient to alter
our conclusion.
Upon a consideration of the entire record, we find that the evidence
does not establish that the respondent has dominated or interfered
with the formation or administration of, or contributed support to, the
Independent. Accordingly, the allegations of the complaint in this
respect will be dismissed.
IV. TILE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III B above,
occurring in connection with the operations of the respondent described
in Section I above, have a close, intimate, and substantial relation to
trade, traffic, and commerce among the several States, and tend to lead
to labor disputes burdening and obstructing commerce and the free flow
of commerce.
THE REMEDY
Having found that the respondent has engaged in unfair labor prac-
tices, we shall order it to cease and desist therefrom and to take certain
affirmative action which we find necessary to effectuate the policies of
the Act.
We have found that the respondent has not engaged in unfair labor
practices within the meaning of Section 8 (2) of the Act. Our order
will provide that the complaint be dismissed in that respect.
Upon the basis of the foregoing findings of fact and upon the entire
record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. Freight Drivers and Helpers Local Union No. 557 and the Inde-
pendent Union of the Employees of Tidewater Express Lines, Inc.,
are labor organizations within the meaning of Section 2 (5) of the
Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of the
Act.
4. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (2) of the Act. -
TIDEWATER EXPRES 'S LINES, INC.
ORDER
805
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Tidewater Express Lines, Inc., Baltimore, Maryland its
officers, agents, successors, and assigns, shall :
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of the rights to self-
organization, to form, join, or assist labor organizations, to bargain col-
lectively through representative of their own choosing, and to engage
in concerted activities for the purpose of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post immediately in conspicuous places at its several terminals
and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating that the respondent
will not engage in the conduct from which it is ordered to cease and
desist in paragraph 1, above;
(b) Notify the Regional Director for the Fifth Region in writing
within ten (10) days from the date of this Order what steps it has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, in so far as it alleges that
the respondent has engaged in unfair labor practices within the mean-
ing of Section 8 (2) of the Act, be, and it hereby is, dismissed.
MR. EDwiN S. SMITH, dissenting in part:,
I dissent from the holding of the majority that the respondent has
not engaged in unfair labor practices within the meaning of Section
8 (2) of the Act. The Independent was formed -the day after the
respondent's officers had stated, during the course of the strike, that
they would not recognize the Union, and that the respondent would
go out of business before it would recognize the Union. Moreover,
the Independent was instigated by Clarke, the last president of the
Association, which was organized by the respondent in 1936 to fore-
stall activity by the Union. Clarke talked to other employees, and
on the afternoon and evening of June 19 went to ' the respondent's
terminal at York, Pennsylvania, and also visited intermediate points,
for the purpose of inviting employees to attend an organizational
meeting. On the following day, Clarke went to Francis Key Murray,
the respondent's attorney, for assistance. Murray, however, declined
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to help him but suggested that Clarke consult Colgan. Colgan was
retained as the Independent's attorney."
Three admittedly supervisory employees attended the first meeting
of the Independent. Although they were thereafter told to refrain
from any further activities in connection with the Independent, the
employees generally were not informed of that fact nor was anything
done to dissipate the impression created in the minds of the employees
by their presence at the meeting that the respondent favored the or-
ganization of the Independent.' A few days later the members of the
committee left work to confer with the Independent's attorney. The
evidence shows that no deductions in salary were made because of-
these absences. On June 25, the day after the Independent had been
formally organized, Frazier, the president of the Independent, wrote
letters to the employees requesting that they vote for their depart-
mental representatives to the Independent's board of representatives
as provided in the Articles of Association. Frazier did part of the
work in connection with those letters at the respondent's office, using
the respondent's mimeographing machine.8 Clarke and Schelle, two
of the officers of the Independent who actively participated in its
formation and administration, are, in my opinion, on the basis of the
evidence set forth in the- majority opinion, employees who, in the
6 See National Labor Relations Board v. Remington Rand, Inc, 94 F. (2d) 862 (C. C. A.
2), enf'g as mod ., 2 N. L. R B. 626 , cert. den., 304 U. S. 576; Cudahy Packing Co. V.
National Labor Relations Board, 102 F. (2d) 745 (C C. A. 8), enf'g as mod ., 5 N L R. B.
472, cert. den ., 308 U. S. 565 ; National Labor Relations Board v. Falk Corp., 308 U. S.
453, reversing 106 F. ( 2d) 454, modifying 102 F. (2d) 383 (C C. A. 7), and enf'g
6 N. L. R . B. 654.
7 See H. J. Heinz Co. v. National Labor Relations Board , 311 U S. 514, aff'g 110 F. (2d)
843 (C. C. A. 6), enf'g 10 N. L. R. B . 963, in which the Court stated: "The question
is ... only whether the Act condemns such activities as unfair labor practices so far as
the employer may gain from them any advantage in the bargaining process of a kind which
the Act proscribes. . . . This Is the more so here where petitioner , when advised of the
participation of his supervising employees In the organization campaign , took no step,
so far as appears , to notify the employees that those activities were unauthorized, or to
correct the impression of the employees that support of the Union was not favored by
petitioner and would result in reprisals . From that time on the Board could have found
that petitioner was as responsible for the effect of the activities of its foremen and group
lekders upon the organization of the Association as if it had directed them in advance."
See also National Labor Relations Board v. Link -Belt Co, 311 U. S 584, rev'g modification
of Board's order In 110 F. (2d) 506 (C. C. A. 7), and enf'g as mod. 12 N. L. R. B 854;
Westinghouse Electric and Manufacturing Co v. National Labor Relations Board, 312 U. S.
660, aff 'g (per curiam ) 112 F. (2d) 657 (C. C. A. 2), enf'g as mod 18 N. L R B. 300.
8 In National Labor Relations Board v. Christian Board of Publication , 113 F. (2d) 678
(C. C. A. 8), enf'g 13 N. L. R. B . 534, the Court stated: "The respondent contends that
the Board has seized upon trivialities in finding that respondent lent support to the
Employees Committee . Reference is made to the fact that the Board found that the re-
spondent permitted the use of a typewriter belonging to it to be used in the preparation
of the petition and that respondent granted the Committee the use of its assembly room
for the meeting of June 19 , 1937 Little need be said on this point . These acts of re-
spondent were but part of the general background upon which the Board reached Its con-
clusion that the respondent desired to encourage the Employees Committee . As isolated
instances of support they are not particularly important , but when considered with all
other circumstances they form an entirely adequate basis for the Board 's conclusion."
111IDEWATE'R EXPRESS LINES., 12NTC. 807
eyes of the remaining employees, represented management and for
whose actions the respondent is responsible.9 Moreover, Clarke was
the fast president of the Association, an organization formed by the
respondent in` 1936 to forestall activity by the Union.1°
The alacrity with which the respondent accorded recognition to
the Independent, such recognition having been granted without proof
of the Independent's right to represent a majority of the employees,
strongly indicates its desire to foster and perfect the organization
which it had subtly, but unmistakably, initiated." This action was
in such striking contrast to the treatment of the Unioli, which it
required to produce proof of its right to represent a majority,' 2 that
it could not have gone unheeded by the employees 13
' International Association of Machinists v. National Labor Relations Board, 311 U. S.
72, aff'g 110 F. (2d) 29 (App. D. C.), enf'g 8 N. L R B. 621 ; National Labor Relations
Board v. Link-Belt Co., supra., footnote 7; H. J. Heinz Co. v. National Labor Relations
Board, supra, footnote 7.
10 See International Association of Machinists v. National Labor Relations Board, supra,
footnote 9.
11 See National Labor Relations Board v. Link -Belt Co., supra, footnote 7 ; International
Association of Machinists v. National Labor Relations Board, supra , footnote 9 ; National
Labor Relations Board v. Falls Corp., supra , footnote 6; National Labor Relations Board
v. Christian Board of Publication, supra, footnote S; Hamilton-Brown Shoe Co. v. National
Labor Relations Board, 104 F. (2d) 49 (C. C. A. 8), enf'g as mod . 9 N. L. R. B. 1073;
National Labor Relations Board v. Lund , 103 F. (2d) 815 (C. C. A. 8), enf'g and remanding
6 N L. R . B. 423.
12 Such discrimination constitutes support of the company-preferred organization and
is a plain violation of the Act. See Continental Box Co, Inc . v. National Labor Relations
Board, 113 F. ( 2d) 93 (C. C. A. 5), enf'g 19 N. L R. B., No. 92; National Labor Relations
Board v. Bradford Dyeing Association, 310 U. S. 318, reversing and remanding 106 F. (2d)
119 (C. C. A. 1), which vacated in part and failed to enforce 4 N. L. R. B . 604; National
Labor Relations Board v. Somerset Shoe Go, 111 F. (2d) 681 (C. C. A. 1), enf'g as mod.
and remanding 5 N. L. R. B. 486 and 12 N. L. R. B. 1057; National Labor Relations Board
v Stackpole Carbon Co ., 105 F. (2d) 167 (C. C. A. 3) enf'g as mod . 6 N. L. R. B. 171, cert.
den. 308 U. S . 605 ; National Labor Relations Board v. Norfolk Shipbuilding and Drydock
Corp., 109 F. ( 2d) 128 (C. C. A. 4), enf'g as mod . 12 N. L. It. B. 886; Titan Metal Manu-
facturing Co. v. National Labor Relations Board , 1 06 F. (2d ) 254 (C. C. A. 3), enf'g 5
N. L. it. B. 577, cert. den 308 U. S. 615.
"In National Labor Relations Board v. Griswold Mfg. Co ., 106 F. ( 2d) 713 (C. C. A.
3), enf'g 6 N. L . R. B. 298, the Court stated :
It is because of its recognition that the employee is sensitive and responsive to
even the most subtle expression on the part of his employer , whose good will is so
necessary , that limitations have been placed upon the activities of the employer in
carrying out the principle of collective bargaining
It Is the intention of our labor legislation that labor organizations shall be truly
representative of the employees' Interests , and the language of Section 8 of the Na-
tional Labor Relations Act prohibiting domination or interference with any labor
organization must be broadly interpreted so as to cover any conduct on the part of
an employer which is intended to bring into being an organization which he has
reason to believe will be "friendly."
In International Association of Machinists v. -National Labor Relations Board, supra,
footnote 9, the Supreme Court of the United States stated: "Slight suggestions as to the
employer 's choice between unions may have telling effect among men who know the con-
sequences of Incurring that employer 's strong displeasure ." This language was quoted
with approval by the same court in National Labor Relations Board v. Link -Belt Co., supra,
footnote 7. See also Bethlehem Shipbuilding Corp v National Labor Relations Board,
114 F. (2d) 930 (C. C. A. 1), enf'g 11 N. L R B 105, cert. dismissed on motion of
petitioning company, 312 U. S. 710.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That the Independent, like its predecessor, the Association, was and
is the creature of the respondent, may also be inferred from the fact
that it has never sought to bargain collectively with the respondent.14
The respondent has once more, as in 1936, established a "social or-
ganization" to thwart its employees' desires for self-organization and
collective bargaining.
Upon all the evidence, I am of the opinion that the employees were
not free from employer influence and interference in the establishment
and selection of the Independent as their bargaining agent.15 Accord-
ingly, I would find that the respondent has dominated and interfered
with the formation and administration of the Independent, and would
require it to withdraw recognition from the Independent and to com-
pletely disestablish the Independent as the bargaining representative
of any of its employees.
14 See National Labor Relations Board v. American Manufacturing Co., 106 F. (2d) 61
(C. C. A. 2), enf'g as mod . 5 N. L. R. B. 443, aff'd 309 U. S . 629; National Labor Relations
Board v. Pennsylvania Greyhound Lines, Inc., et al., 303 U. S. 261, reversing modification
of Board' s order in 91 F. (2d ) 178 (C. C A. 3) and enf'g as mod. 1 N. L. R. B. 1; Titan
Metal Manufacturing Co. v. National Labor Relations Board, supra, footnote 12; National
Labor Relations Board v. Somerset Shoe Co., supra, footnote 12; Continental Box Co , Inc
v National Labor Relations Board, supra, footnote 14. The Independent's decision not to
seek collective bargaining was made at the advice of Colgan, its attorney, who, as noted
above, was suggested as an attorney for the Independent by the attorney for the respondent
15 In National Labor Relations Board v. Lint ; Belt Co., supra, footnote 7, the Supreme
Court of the United Slates stated:
It would indeed be a rare case where the finders of fact could probe the precise
factors of motivation which underlay each employee' s choice. Normally , the con-
clusion that their choice was restrained by the employer's interference must of neces-
sity be based on the existence of conditions or circumstances which the employee
created or for which lie was fairly responsible and as a result of which it may
reasonably be inferred that the employees did not have that complete and unfettered
freedom of choice which the Act contemplates
Here no one fact is conclusive But the whole congeries of facts before the Board
supports its findings.