Transway Corp.

National Labor Relations Board - Board Decisions

Aug 31, 1972

198 N.L.R.B. 1177 (N.L.R.B. 1972)

TRANSWAY CORPORATION 1177
Transway Corporation and Hawaii Teamsters & Allied
Workers, Local 996 . Case 37-CA-681
August 31, 1972
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On June 16, 1972, Trial Examiner George Christen-
sen issued the attached Decision in this proceeding.
Thereafter, the General Counsel filed exceptions and
a supporting brief, and the Respondent filed an
answering 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 and to adopt his
recommended Order. i
ORDER
represented a majority of the employees therein and
subsequently seeking to dissipate such majority status by
coercive interrogation of a unit employee. Transway
contends it lawfully refused to recognize the Union
without Board certification of the Union's majority status
within the unit following a secret ballot election, denies
that the person who conducted the allegedly coercive
interrogation was its agent and supervisor, denies that the
statements made by its alleged agent and supervisor were
coercive, and requests dismissal of the complaint.
All parties appeared by counsel and were afforded full
opportunity to introduce evidence, examine and cross-
examine witnesses, argue, and file briefs. Briefs were filed
by the General Counsel and the Company.
Based upon his review of the entire record, observation
of the witnesses, perusal of the briefs and research, the
Examiner enters the following:
FINDINGS OF FACT
I JURISDICTION AND LABOR ORGANIZATION
The commerce facts and the qualification at all pertinent
times of Transway as an employer engaged in commerce in
a business affecting commerce and the Union as a labor
organization within the meaning of Section 2(2), (5), (6),
and (7) of the Act are conceded. by the parties and the
Examiner so finds.
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the complaint herein be, and it hereby is,
dismissed in its entirety.
i The General Counsel in effect has excepted to certain credibility
findings made by the Trial Examiner It is the Board's established policy not
to overrule a Trial Examiner's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3) We have carefully examined the record and
find no basis for reversing his findings
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Trial Examiner: On March 7,
1972, the Examiner presided over a hearing at Honolulu,
Hawaii, to try issues raised by a complaint' issued on
February 7, 1972, based upon a charge filed on December
3, 1971.2
The complaint alleges that Transway Corporation3
violated Section 8(a)(1) and (5) of the National Labor
Relations Act, as amended,4 by denying Hawaii Teamsters
& Allied Workers, Local 996's,5 request for recognition as
the exclusive bargaining representative of an appropriate
unit of Transway's employees at a time the Union
i In the course of the proceeding the Examiner granted a motion to add
a subsection (d) to par VI of the complaint alleging that on or about
December 2, 1971, at a coffee shop located on Dillingham Boulevard,
Honolulu, William Kuritani threatened an employee that Respondent was
withholding wage increases because of its employees' union activities The
11. THE ALLEGED UNFAIR LABOR PRACTICE
A. Background and Issues
During the period pertinent to this Decision (November
and December), Transway was doing business as a freight
trucker. Transway and another trucker, Johnston &
Buscher, Inc. (hereafter J & B), were controlled by a third
trucker, Certified Corporation (hereafter Certified). John
Damore was the president of Certified; George Madden
was the vice-president of both Certified and Transway, and
actively managed the affairs of Transway as its general
manager. The management team under Madden at
Transway consisted of an office manager (Jim Matsukawa)
who supervised the office-clerical employees and an
operations manager and two supervisors who supervised
the warehousemen, drivers, and helpers. Transway also
employed a sales manager, William Kuritani, whose status
(whether or not he was a supervisor and agent of the
Company) is a major issue in this proceeding. Transway
additionally employed five office-clerical employees and
approximately 65 drivers, helpers, and warehousemen.
It is not seriously disputed that the Union secured signed
authorization cards from all of Transway's office-clerical
employees in early November and requested recognition as
their exclusive collective-bargaining representative in late
November, nor that Transway declined that request and
insisted on a Board election; the General Counsel relies on
threats allegedly uttered by Kuritani in a December 2
Respondent denied the amended subsection
2 Read 1971 after all subsequent date references omitting the year
J Hereafter Transway
4 Hereafter the ACT
5 Hereafter the Union
198 NLRB No. 185
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conversation with Lydia Amorin, one of Transway's office-
clerical employees, both to establish an 8(a)(1) violation
and as support for a bargaining order under the Gissel6
rationale.
The first issue, then, is whether or not on December 2
Kuritani was a supervisor and agent of Transway when he
spoke to Amorin. .,
B. Was Kuritani a Supervisor and Agent of
Transway of December 3
Kuritani was hired by Transway as a salesman in March.
His duties were to solicit new accounts and service existing
ones. There were no other sales employees. Kuritani did
not supervise any other employees and spent most of his
time outside the office. His office was located some
distance from the general offices, where the office-clerical
employees worked (through two doors). His occasional
letters and reports were typed by whatever office-clerical
employee was available when he came in with them. In
August, his title was changed to sales manager. This title
change was granted at Kuritani's request by Madden on
the basis of Kuritani's argument that he needed the title in
order to give him proper status when dealing with higher-
ranking officers and representatives of the larger compa-
nies whose freight-hauling business he was soliciting and
servicing. No change in duties was made, and no
additional salesmen were hired. Kuritani remained in this
status and with these duties through February of 1972,
when Madden relinquished and turned over to Kuritani
the job of general manager.7
During the period preceding February of 1972, the
office-clerical employees knew Kuritani only as a sales-
man. He did not direct or assign their work, since this was
done prior to August by Janet Ching or Chung, and after
August by Jim Matsukawa, who became office manager at
that time.8
During a limited period prior to Matsukawa's hire,
Madden directed Kuritani, Ching, and Darrel DeSilva, the
operations manager, to interview and screen prospective
employees. Among others, Kuritani interviewed office-
clerical employee Elizabeth Benedict in early August and
informed her she was hired.9 Kuritani did not conduct any
prospective employee interviews, or inform any employees
they were hired or fired, between the August hiring of
6 NLRB v Gissel Packing Co, 395 U S 575
r The findings in this paragraph are based upon the mutually
corroborative and uncontradicted testimony of Kuntam and Madden, and
partial corroboration by Lydia Amorm, one of Transway's office-clerical
employees
8 Lydia Amorm and Elizabeth Benedict , two of the five office-clerical
employees in Transway's employ on December 3, so testified
9 Anthony Troche, one of the Union's business representatives, on
hearing that Transway needed some experienced office-clerical employees,
recommended Benedict to Madden, Madden verified her experience with a
former employer, told Troche to have her see Kuntam for an interview and
told Kuntam to hire her if she had a car to get to work and did not have
school-age children to look after Troche told Benedict to see Kuritani, she
saw him, filled out an application and he , after ascertaining her availability
and satisfaction of the prerequisites set down by Madden, verified this to
Madden and told her she was hired These findings are based on the
substantially corroborative testimony of Kuritani, Madden, and Benedict
10 Kuritanis testimony to this effect is uncontradicted and is partially
corroborated by Amorin's testimony that she was hired in October by
Matsukawa
Matsukawa as office manager and his February 1972
appointment as general manager.10
Between the date of his hire in February and the date of
his appointment as general manager, Kuritani did not
formulate labor policy or process employee grievances,ii
schedule any employees' work or time off,12 or hire or fire
any employees.13
Kuritani was not directed by Madden or any other agent
or supervisor of Transway to speak to Amorin concerning
its labor policies on December 2 and did so on his own
initiative.14
Section 2(11) of the Act defines as a supervisor any
person with authority in the interest of his employer to
hire, transfer, suspend, lay off, recall , promote, discharge,
assign , reward, or discipline other employees or responsi-
bly to direct them, or to adjust their grievances, or
effectively to recommend such action, where the exercise
of such authority requires use of independent judgment; an
agent is one granted powers to act for his principal.
Under the foregoing definitions, the Examiner finds and
concludes that on December 2 Kuritani was not a
supervisor of Transway and possessed neither actual nor
apparent authority to speak as its agent in the remarks he
made to Amonn. By December 2, any previous authority
to hire or fire any of Transway's employees had ceased and
was not being exercised by Kuritani; he had no authority
at any time prior to February 1972 to direct the work of
any of Transway's employees or handle their grievances or
grant them time off, and exercised no such powers; prior to
February 1972 he was neither the recognized nor accepted
source for communication of Transway policy to employ-
ees; finally, he was never, prior to February 1972,
authorized by Transway to communicate its labor policies
to employees.
C. The 8(a)(1) Allegations
In view of the foregoing findings that Kuntani was
neither a supervisor nor agent of Transway when he made
the December 2 statements attributed to him in paragraph
VI of the complaint, the Examiner finds and concludes
that such remarks, if made, are not attributable to
Transway and he therefore shall recommend that those
portions of the complaint alleging that Transway violated
11 Union Agent Troche testified that sometime in 1971, during a
transitional period between the time Operations Manager DeSilva was
demoted and his successor installed , he asked Madden whom to see
regarding employee grievances and was told to see Kuntam . He further
testified he never did see Kuntani regarding any grievances and when he
asked Kuritani about the office-clericals, Kuntam told him Madden
handled labor, matters and to see Madden Madden and Kuritani testified
unequivocally that the former never authorized the latter to handle
employee grievances or labor policies prior to Kuntani 's appointment as
general manager Their testimony is credited , as it is supported by the way
grievances actually were handled and their forthright manner in testifying
i2 Kuritani's uncontradicted testimony that he asked Matsukawa's
permission to take Amonn out to coffee with him is credited
13 Kuritani s assignment to interview employees terminated in August
and during the short period of its exercise was limited to screening
applicants against criteria established by Madden
14 This finding is based upon the uncontradicted testimony of Madden
and Kuritani , which is credited and supported by Amorm's testimony that
in early November Matsukawa advised the office -clericals of the effect of
the wage freeze on its compensation policies
TRANSWAY CORPORATION
Section 8(a)(1) of the Act by Kuritani's December 2
remarks be dismissed.
D. The Alleged 8(a)(5) Violation
1. The unit
The complaint alleges, the answer admits, and the
Examiner finds that all of Transway's regular full-time and
regular part-time office-clerical employees, excluding
confidential employees, professional employees and all
other employees, guards, and/or watchmen and supervi-
sors as defined in the Act, constitutes a unit appropriate for
collective bargaining within in the meaning of Section 9(b)
of the Act.
2. The union majority
On November 11, Union Business Representative
Anthony Troche met with all the unit employees-five in
number-at a restaurant. All five-Lydia Amorin, Eliza-
beth Benedict, Judy Galanta, Emily Martin, and Winifred
Yokota-signed cards authorizing the Union to act as their
representative for the purpose of bargaining collectively
with Transway concerning their wages, hours, and working
conditions.
On the basis of the foregoing, the Examiner finds that on
November 11, the Union secured authorization from a
majority of Transway's employees within the unit de-
scribed above to represent them for collective-bargaining
purposes.
3. The alleged refusal to bargain
On November 22, Damore, Madden, Arthur Rutlege,
president of the Union, Claude Matsumoto, Rutledge's
assistant, and several other persons attended a meeting
scheduled for processing several grievances between
Certified and the Union.
After the grievances had been discussed for some time,
Matsumoto handed a folder to Rutledge containing the
five authorization cards from Transway's office-clericals15
plus a letter wherein the Union asserted its majority
representative status among Transway's office-clerical
employees and requested recognition as their exclusive
collective-bargaining representative. The letter also con-
tained a statement acknowledging receipt of the request
and granting it, with a blank for signature. Rutledge took
the five authorization cards from the folder and passed
them to Madden. Madden glanced at the cards, noted that
the top card contained the name of Lydia Amorin (know
to him as a Transway office employee), and passed them
on to Damore. Damore glanced at the cards and asked
Madden if the cards were from Transway employees.
Madden replied that they were. Damore asked Rutledge
15 Troche and Matsumoto testified that on November 12 Roche gave the
five cards he had secured from Transway's office-clericals on November I I
to Matsumoto
16 The findings in this and the preceding paragraph are based upon the
testimony of Madden, corroborated in part by Matsumoto
17 The findings in this and the preceding three paragraphs are based
upon the testimony of Madden, corroborated in most particulars by Troche
Troche's testimony that Madden in the December 16 conversation offered
1179
what Rutledge wanted him to do with the cards. Rutledge
handed Damore the letter described heretofore, stated the
cards had been signed by all the Transway office-clerical
employees, and said if Damore would sign the letter the
Union would give him a contract. Damore replied that
Transway's secretary-treasurer signed all documents and in
any event, he would have to refer it to his attorney.
Rutledge stated that Damore had recognized the Union by
looking at the authorization cards and if he did not sign the
letter the Union would call Transway's office-clerical
employees out on strike. Damore made no reply, placed
the letter in his briefcase, left the cards on the table, and
departed.16
On December 2, Transway filed an RM petition with the
Board, seeking an election to determine whether the Union
represented an uncoerced malonty of the employees within
the office-clerical unit.
On December 3, Union Representative Troche filed with
the Region the charge which led to this proceeding, and
delivered a copy of the charge to Madden. Troche asked
Madden what he was going to do about the Union's
November 22 request for recognition as the exclusive
collective-bargaining representative of Transway's office-
clerical employees. Madden replied that he wanted that
question resolved by a Board election. Troche pulled out
several pieces of paper and suggested an election be
conducted immediately. Madden stated he would have to
consult his attorney, and promised Troche that he would
contact him further after doing so.
On December 4, Damore and Madden met with
Rutledge regarding several matters (though not Transway).
In the course of the meeting Rutledge asked Damore what
he was going to do about the Transway office-clencals.
Damore stated that he wanted an election. Rutledge
replied that if that is what he wanted, the Union was
agreeable to it.
On December 7, Madden placed a call to Troch in order
to advise him that his attorney had advised him to decline
Troche's request for a private election and that Transway
desired a Board election. Troche was not in. Madden left
word for Troche to call him. Troche did not return his call.
On December 16, Madden and Troche met with regard
to a J & B-union contract grievance. Troche asked Madden
what his position was regarding recognition of the Union
as the representative of Transway's office-clericals. Mad-
den replied that he wanted a Board election. In subsequent
contacts between Madden and Troche, he consistently
insisted upon a Board election (and certification of the
Union by the Board as the duly designated representative
of a majority of the employees within Transway's office-
clerical unit) prior to Transway recognition of the Union as
the exclusive representative of its office-clerical employees
for collective-bargaining purposes.17
Troche a contract covering the Transway office-clericals with a 5-1/2
percent increase, provided Troche was assigned to represent all of the
union-represented employees of Certified, J & B, and Transway, is not
credited, in view of Troche's concessions (and corroboration of Madden's
testimony) that Madden queried him on how he could successfully organize
in view of the wage freeze and the Union 's consequent acceptance of a 5-
1/2 percent settlement at Hawaiian Hostess (which Madden stated was his
only reference to a contract and 5-1 /2 percent increase), and his
(Continued)
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has held that employer insistence upon a
Board election within a unit appropriate for collective-
bargaining purposes under Section 9 of the Act and Board
certification that the Union participating therein received a
majority of the votes cast by employees eligible to and
participating therein as a prerequisite to grant of the
Union's request for recognition as the exclusive represents'
tive of the unit employees for collective-bargaining
purposes is not violative of Section 8(a)(5) of the Act.18
That is what Transway did in this case. The Examiner,
therefore, shall recommend that those sections of the
complaint alleging violation by Transway of Section
8(a)(5) of the Act be dismissed.
confirmation that Madden consistently insisted on a Board election among
Transway's office-clericals, Madden's denial that he ever offered Troche a
contract covering Transway's office-clericals and testimony that he
consistently stated he wanted a Board election among them is credited both
for this reason and because of the general credibility of Madden's testimony
and his forthright and plausible testimony throughout
18 Linden Lumber Division, Summer & Co, 190 NLRB No 116
CONCLUSIONS OF LAW
1. At all times pertinent Transway was an employer
engaged in commerce in a business affecting commerce
and the Union was a labor organization within the
meaning of Section 2(2), (5), (6), and (7) of the Act.
2. Transway did not violate either Section 8(a)(1) or (5)
of the Act.
Upon the basis of the foregoing findings of fact,
conclusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, the Examiner enters the following
recommended: 19
ORDER
The complaint shall be dismissed.
19 In the event no exceptions are filed as provided by Section 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions , and recommended Order herein shall, as provided in
Section 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings , conclusions, and Order, and all objections thereto shall
be deemed waived for all purposes.