United Packing Co. of Iowa, Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1971

187 N.L.R.B. 878 (N.L.R.B. 1971)

878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United Packing Company of Iowa , Inc., and Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America , Local Union
No. 961 . Cases 27-CA-2796 and 27-RC-3680
January 15, 1971
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND BROWN
On June 25, 1970, Trial Examiner George Christen-
sen issued his Decision in the above-entitled proceed-
ing, finding that the Respondent had engaged in and
was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. He also found
that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and
recommended dismissal of these allegations. There-
after the Respondent filed exceptions to the Trial
Examiner's Decision. The General Counsel filed a
brief in answer to Respondent's exceptions and cross-
exceptions and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner as modified below.
We find, in agreement with the Trial Examiner, that
the Respondent violated Section 8(a)(1) of the Act by
promising employees specific improvements in wages
and working conditions if they rejected the Union in
the election held herein, and by threatening them with
economic reprisals if the Union should win.
The Trial Examiner also found that the Respondent
made good its preelection promises by instituting
specific wage and benefit improvements immediately
after the election, which the Union lost by one vote.
Those improvements were granted while objections to
conduct affecting the results of the election were
pending and unresolved and the possibility that the
i Accordingly, we shall include in our remedial order a provision that
the Respondent cease and desist from such conduct However , this is not to
be construed as a requirement that the Respondent rescind such benefits as
election would be set aside was indeed real. The Trial
Examiner inadvertently failed to evaluate these
postelection events and to determine whether such
conduct further violated Section 8(a)(1) of the Act, as
alleged in the complaint. We hold that it did. In this
case there has been no showing that the actual
granting of the promised benefits was governed by
factors other than the scheduling of the election here
in question. After careful review of the entire record,
we conclude that these benefits were granted as a
reward to employees for having rejected the Union
and as a further inducement to employees to vote
against the Union, should the opportunity again arise.
Thus the granting of postelection benefits constitutes
further interference, restraint, and coercion within the
meaning of Section 8(a)(1) of the Act.I
We also agree with the Trial Examiner's recommen-
dations that the Union's objections to the election be
sustained and that the results of the election held
herein be set aside. Further, we adopt the Trial
Examiner's conclusion that the Respondent refused
to bargain with the Union in violation of Section
8(a)(5) of the Act, inasmuch as we are persuaded that
the Respondent violated its statutory duty in this
regard by engaging in the unlawful conduct summa-
rized below and by refusing to recognize the Union as
majority representative of its employees. Finally, like
the Trial Examiner, we find it appropriate that the
Respondent be ordered to bargain with the Union at
its request as the exclusive collective-bargaining
representative of its employees. This remedy is
appropriate in light of the rationale of N.L.R.B. v.
Gissel Packing Company, 395 U.S. 575 (1969). Gissel
instructs us that we are to approach these cases by
assessing "the extensiveness of an employer's unfair
practices in terms of their past effect on election
conditions and the likelihood of their recurrence in
the future." Gissel, supra at 614.
Insofar as is relevant here, the Supreme Court, in
stating the general principles applicable to the
issuance of bargaining orders, agreed that the Board
has authority to issue a bargaining order to redress
unfair labor practices "so coercive that, even in the
absence of a § 8(a)(5) violation, a bargaining order
would have been necessary to repair the unlawful
effect of those [unfair labor practices ]."2 Additional-
ly, the Court approved the Board's authority to issue a
bargaining order "in less extraordinary cases marked
by less pervasive practices which nonetheless still
have the tendency to undermine majority strength
and impede the election processes." In the latter
situation, the Board is to examine the nature and
extent of the employer's unlawful conduct and
were granted
2 Gissel, supra at 615
187 NLRB No. 132
UNITED PACKING CO. OF IOWA 879
ascertain the likelihood that use of traditional
remedies would ensure a fair election.
In our opinion , a bargaining order is warranted on
the facts of this case under either of the above
standards . Thus, the Respondent 's unfair labor
practices began soon after the Respondent learned of
the Union's organizing campaign and continued even
after the election was held. They were substantial and
pervasive, and included: (a) the recurrent linking by
Supervisor Ewing of promises of benefit (conditioned
upon the Union' s defeat) with threats of job loss
(conditioned upon the Union's victory); (b) frequent
promises , especially as given voice by Ewing, involv-
ing terms and conditions of employment as to which
there was considerable employee dissatisfaction and
upon which the Union' s organizing drive had been
founded; and (c) Respondent 's apparent postelection
fulfillment of its preelection promises by granting the
promised benefits . Moreover, we note that Supervisor
Ewing, a responsible , policy determining officer of
Respondent , actively and willfully participated not
only in the decisions to pursue an unlawful course of
conduct but also in the commission of unlawful acts
pursuant to those decisions.
Taken together the actions of Respondent leave us
with no doubt that a fair and truly representative
rerun election is , at best , a slight possibility. Thus, the
principles set forth in Gissel impel us to conclude that
the unambiguous cards validly executed by a majority
of the employees in the unit represent a more reliable
measure of employee desires on the issue of represent-
ation than would a rerun election and that the policies
of the Act will best be effectuated by adopting the
Trial Examiner 's Recommended Order requiring that
the Respondent bargain , upon request, with the
Union here involved. Further, we find that the
Respondent ' s unfair labor practices were of such
nature that a bargaining order would be an appropri-
ate remedy even in the absence of a violation of
Section 8(a)(5).
In finding a violation of Section 8(a)(5) we have not
relied, as suggested by our colleague , on the Joy Silk
doctrine. We have adopted the Trial Examiner's
findings and recommendations only "as modified" by
the rationale set forth herein . Contrary to our
colleague , the Supreme Court in Gissel at no time
indicated that an employer may refuse recognition in
the absence of independent unfair labor practices or
where knowledge of the union's majority was ac-
quired "through a personal poll for instance." This
phrase and the question of knowledge to which our
colleague refers in footnote 4 of his opinion relate to
the Supreme Court's discussion of the positions taken
by the Board and the Union during oral argument.
N.L.R.B. v. Gissel, supra at 594-595. Although the
Court pointed out that under the Board' s current
practice Joy Silk had become "largely irrelevant," the
Court's own findings and conclusions with respect to
the duties and obligations imposed by the Act in
authorization card cases were considered in three
parts. In paragraph III, A(N.L.R.B. v. Gissel, supra at
595-600), the Court held that the 1947 amendments to
the Act did not, as contended by the Respondent,
restrict an employer's duty to bargain under Section
8(a)(5) to those unions which had been certified after
a Board election . The Court specifically affirmed its
decision in United Mine Workers v. Arkansas Flooring
Co., 351 U.S. 62 (1956), as follows at Gissel, supra, pp.
597-598:
Thus, in United Mine Workers, supra, we noted
that a "Board election is not the only method by
which an employer may satisfy itself as to the
union 's majority status," 351 U.S., at 72, n. 8, since
§ 9(a), "which deals expressly with employee
representation , says nothing as to how the employ-
ees' representative shall be chosen ," 351 U.S., at
71. We therefore pointed out in that case, where
the union had obtained signed authorization cards
from a majority of the employees , that "[i]n the
absence of any bona fide dispute [citing N.L.R.B.
v. Remington Rand, Inc., 94 F.2d 862, 868 (C.A. 2d
Cir. 1938), cert . denied 304 U.S. 576 ( 1938), for the
principle that an employer may lawfully refuse to
bargain with a union even if the union did
represent a majority if the employer had a good faith
doubt as to the union 's majority status ] as to the
existence of the required majority of eligible
employees, the employer' s denial of recognition of
the union would have violated § 8(a)(5) of the
Act." 351 U.S., at 69. We see no reason to reject this
approach to bargaining obligations now. . .
[Emphasis supplied.]
Our colleague asserts that a bargaining order is
warranted in the instant case only because the
Employer has committed violations of Section 8(a)(1)
of the Act. Apparently , he regards the Employer's
conduct in refusing to recognize the Union in this case
as less serious than the situation in Wilder, where the
employer had committed no independent unfair labor
practices . Apart from the fact that this approach is
contrary to the decision of the Supreme Court in
Gissel, it would seem anomalous to "dispense" with a
finding that an employer , who had committed serious
violations in an effort to destroy a union 's majority,
has not , in fact , unlawfully refused to bargain on the
ground that such a finding is "legally conclusionary"
and diverts the Board's attention from the employer's
other violations of the Act. Nowhere in the Court's
detailed analysis of an employer's duty to bargain
under Section 8 (a)(5) in Gissel is there a suggestion
that the Court regarded its finding as to such a
violation as "surplusage" or a transmutation of the
880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer's violations of Section 8(a)(1). It seems to us
the Court made it clear that the interrelationship
between Section 8(a)(1) and Section 8(a)(5) goes
primarily to the question of remedy rather than to the
substantive violation. The fact that the pervasive
nature of the Respondent's independent unfair labor
practices warrants a bargaining order, whether or not
a violation of Section 8(a)(5) has occurred, would not
seem to justify the dismissal of an allegation that the
Respondent has unlawfully refused to bargain. We do
not view the 8(a)(5) allegations in Gissel and the
Supreme Court's findings with respect to that issue as
"vestigial remnants of an earlier epoch in the
evolution of Board doctrine." Whether characterized
as "vestigial" or "long established," the Board's
historic practice of finding a violation of Section
8(a)(5) and entering a bargaining order where an
employer has unlawfully refused to bargain and has
committed serious violations of Section 8(a)(1)
remains very much alive, having been specifically
affirmed in Gissel, where the contrary judgment of the
Court of Appeals for the Fourth Circuit was reversed.
N. L. R. B. v. Gissel, supra at 620.
ORDER
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, as herein modified,
and hereby orders that the Respondent, United
Packing Company of Iowa, Inc., Denver, Colorado,
its officers, agents , successors, and assigns, shall take
the action set forth in the Trial Examiner's Recom-
mended Order, as modified below:
1. Substitute the following as paragraph 1(a) of the
Trial Examiner's Recommended Order:
"(a) Directly or indirectly threatening unit employ-
ees with economic reprisal for supporting the Union,
promising or granting them economic benefits for
desisting from such support, or otherwise interfering
with, restraining , or coercing them in the exercise of
their rights under Section 7 of the Act."
2. In footnote 10 of the Trial Examiner's Decision,
substitute "20" for "10" days.
3. Substitute the attached Appendix for the Trial
Examiner's Appendix.
CHAIRMAN MILLER, concurring:
I wholly agree that the Trial Examiner's Recom-
mended Order should be adopted in this case. I
3 The Trial Examiner concluded:
2. By the threats to employees of reprisal for supporting the
Union and promises of benefits for refraining from such support
Respondent violated Section 8(a)(l) of the Act
♦ s r • •
5. By the actions set out in 2, above, the Respondent failed and
refused to bargain in good faith with the Union , undermined the
Union 's majority representative status in the unit , and prevented a fair
disagree, however, that the remedial order to bargain
is properly predicated upon the finding that the
Respondent refused to recognize and bargain with the
Union in violation of Section 8(a)(5).3 My disagree-
ment springs from my conviction that the Board
should distinguish between remedial orders to bargain
which, as here, are required to remedy Section 8(a)(1)
and (3) unfair labor practices which have made our
election process less reliable than authorization cards
as an index of employee sentiment, and those which
are required because, as in Wilder Mfg. Co., 185
NLRB No. 76, an employer's refusal of recognition
violated Section 8(a)(5) without regard to the employ-
er's collateral conduct.
This is not a case where the Respondent withheld
recognition of the Union despite knowledge of its
majority status, nor is that the theory on which the
majority sustains the violation.4 Instead, the conclu-
sion that the Respondent unlawfully refused to
bargain is made to rest on inferences from Respon-
dent's seriatim violations of Section 8(a)(1) committed
(with unimportant exception) after the July 23 refusal
of recognition. Even at this once removed stage, the
inferences which are drawn do not focus on the point
of the Employer's knowledge of union majority status
at the time recognition was refused.
In this respect, my colleagues' apparent adoption of
the Trial Examiner's conclusion that Respondent
acted in bad faith to undermine the Union's majority
status is especially troublesome. Although I do not
question the accuracy of the finding, I seriously doubt
its relevance to any issue, now presented by this case.
In Gissel the Court explicitly noted that the employ-
er's motivation in refusing recognition is "largely
irrelevant," supra at 594. It seems even less relevant to
an accurate assessment of the impact on the employ-
ees of the employer's violations of Section 8(a)(1). I
therefore reject that conclusion, not only because it is
irrelevant, but also because it raises the spectre of Joy
Silk, 85 NLRB 1263, and of a policy which I
understand the Board to have abandoned.
Finally, and perhaps most important, I reject that
conclusion because I simply do not believe that the
remedy we impose is, in any practical manner, related
to the Respondent's refusal to recognize the Union
upon presentation of its authorization cards. We are
here remedying violations of Section 8(a)(1). We do so
either because those violations make a fair election
impossible or because we find that:
election, thereby violating Section 8 (a)(5) and (1) of the Act
4 N L R B v. Gissel Packing Co., 395 U S. 575, 594 In discussing this
general problem the Court indicates, and in my view correctly so, that an
employer may refuse recognition in the absence of 9(c) proceedings and so
long as no independent unfair labor practices are committed except where
the employer knows "through a personal poll for instance " that a majority
of his employees supported the union and the unit sought is appropriate
See Wilder Mfg Co, supra
UNITED PACKING CO. OF IOWA
. . . the possibility of erasing the effects of past
practices and of ensuring a fair election (or a fair
rerun) by the use of traditional remedies, though
present, is slight and that employee sentiment once
expressed through cards would, on balance, be
better protected by a bargaining order.... Gissel,
supra at pp. 614-615.
Our authority to remedy violations of Section 8(a)(1)
in the former instance , where egregious conduct has
made a fair election impossible, is well settled.5
In my view, Gissel confirms our like authority under
the latter circumstances, even in the absence of
findings that Section 8(a)(5) was violated. Although
Gissel arose on a complaint which included alleged
violations of Section 8(a)(5), the Court's discussion of
the bargaining order remedy is addressed almost
exclusively to the examination of employer conduct
violative of Section 8(a)(1) and (3). Indeed that
examination is the essence of Gissel and the 8(a)(5)
allegations and findings are, literally, vestigial rem-
nants of an earlier epoch in the evolution of Board
doctrine. That is illustrated, I believe, by the unstated
rationale of my colleagues who here find that Section
8(a)(5) has been violated. Unless that rationale is
bottomed on Joy Silk, supra (and I trust that it is not),
then it must approximate the following:
1. Respondent committed numerous and egre-
gious acts violative of Section 8(a)(1)
2. which caused the dissipation of the Union's
majority representative status
3. and would have prevented a fair rerun
election
4. thereby exhibiting a rejection of the princi-
ple of collective bargaining, in violation of Section
8(a)(5).
It seems perfectly plain to me that the fourth step is
derivative, and legally conclusionary, and adds
nothing to our analysis, to our decisions and orders, or
to our intelligibility. On the contrary, by distorting
our analysis, predication of these orders on Section
8(a)(5) diverts us from close and reasoned examina-
tion of the impact of the Employer's 8(a)(1) or other
violations, and impedes our efforts to effectuate the
policies of the Act. The legal incantations required to
transmute Respondent's violations of Section 8(a)(1)
into a violation of Section 8(a)(5) are, bluntly put,
surplusage and I would dispense with them.
' "The Board has long had a policy of issuing a bargaining
order , in the absence of a § 8(a)(5) violation or even a bargaining demand,
when that was the only available , effective remedy for substantial unfair
labor practices See, e.g, United Steelworkers of America v. N L R B
376 F 2d 770 (1967), J C Penney Co, Inc v NLRB, 384 F 2d 479,
485-486 (C A 10th Cir 1967)." N L R B v. Gissel Packing Co, 395 U S
575,614
881
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten that we will move our
operation from Denver to Sioux City or convert
our operation to a piggyback system between
Sioux City and Los Angeles if you vote for or
otherwise support Local 961, International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other union.
WE WILL NOT promise or grant you wage
increases or new or improved benefits if you vote
against or otherwise refrain from supporting Local
961, or any other union.
WE WILL NOT otherwise interfere with, restrain,
or coerce you in the exercise of your right to
engage in self-organization, to form, join, or help
Local 961, or any other union, to bargain collec-
tively through Local 961, or any other union of
your choice, to act together with other employees
for the purpose of bargaining collectively or for
other mutual aid or protection, or to refrain from
any of these actions.
WE WILL NOT fail or refuse to bargain collective-
ly in good faith with Local 961 at its request over
your wages, rates of pay, hours, and other
conditions of employment.
WE WILL at Local 961's request meet with its
representatives and bargain with it over your
wages, rates of pay, hours, and other working
conditions and reduce to writing and sign any
agreements we reach with Local 961 in these
matters.
UNITED PACKING
COMPANY OF IOWA, INC.
(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 compliance
with its provisions may be directed to the Board's
Office, Room 260, Federal Building, 721 19th Street,
U.S. Custom House, Denver, Colorado 80202, Tele-
phone 303-297-3551.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
GEORGE CHRISTENSEN, Trial Examiner: In Case
27-RC-3680, on July 22, 1969,1 the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local Union No. 961 (Union) filed a petition
with Region 27 of the National Labor Relations Board
(Board) seeking certification as the exclusive bargaining
representative of employees of United Packing Company of
Iowa, Inc. (Respondent), classified as over-the-road or line
drivers, excluding all other employees. Pursuant to a
subsequently executed stipulation, Region 27 conducted an
election by mail ballot, which the Union lost. The Union
subsequently (on September 16) filed objections to the
election, asserting that the Respondent dissipated its
majority representative status in the unit subsequent to the
filing of the petition by threatening employees with
economic reprisal for voting for the Union and by
promising employees economic benefits for voting against
the Union.
Case 27-CA-2796 commenced with the filing of a
September 19 charge by the Union alleging that the
Respondent's actions just described violated Section 8(a)(1)
and (5) of the National Labor Relations Act, as amended
(Act). On October 31 Region 27 issued a complaint based
on the charge alleging that through its manager, D. W.
Ranch, and its assistant manager, Delbert Ewing, Respon-
dent violated Section 8(a)(1) of the Act by various threats,
promises, and interrogation of employees and violated
Section 8(a)(5) and (1) of the Act by undermining the
Union's majority representative status subsequent to
achievement thereof by its threats, promises, and interroga-
tion.
Inasmuch as the complaint and the objections contain
common issues of fact and law, on October 31 Region 27
issued an order consolidating the two cases for hearing and
determination before and by the Examiner.
It is undisputed that the Union filed and Respondent
received the charge and objections outlined above, that the
jurisdictional facts and the interstate commerce and labor
organization conclusions asserted in the Complaint are
correct, that D. W. Ranch at all times pertinent was
Respondent's general manager, supervisor, and agent
acting on its behalf, and that a unit consisting of all the
Respondent's over-the-road or line drivers, excluding all
other employees, is an appropriate unit within the meaning
of Section 9 of the Act.
The issues remaining in dispute are:
1. Whether during July and August Delbert Ewing was
a supervisor and/or agent acting on behalf of the
Respondent.
2. If so, whether during July and August Ewing made
threats and promises to employees attributed to him and
interrogated an employee about his union activities.
3. Whether on or about August 6 Ranch made threats
and promises to employees attributed to him.
4. Whether on or before July 22 the Union represented
a majority of Respondent's employees in the unit.
5. Whether since July 23 the Respondent has failed
and/or refused to bargain collectively in good faith with the
Union concerning the wages, rates of pay, hours, and other
working conditions of the employees in the unit.
A hearing was held at Denver, Colorado, on January 27
and 28, 1970, at which the parties appeared by counsel and
were afforded full opportunity to adduce evidence, examine
and cross-examine witnesses, present argument, and file
briefs. Briefs have been submitted by the General Counsel
and the Respondent.
Based on his review of the entire record, observation of
the witnesses, and perusal of the briefs, the Examiner makes
the following-
FINDINGS OF FACT
1. JURISDICTION AND LABOR ORGANIZATION
The jurisdictional facts and the qualification of the
Respondent as an employer engaged in commerce in
operations affecting commerce and the Union as a labor
organization within the meaning of Section 2(2), (5), (6),
and (7) of the Act is conceded by the parties. The Examiner
therefore so finds and concludes.
11. THE UNFAIR LABOR PRACTICES
A. Preliminary
The stock of the Respondent corporation at all times
pertinent was 25 percent owned by D. W. Ranch, 25
percent by Louie Romoff, 25 percent by Sam Perricone,
and 25 percent by an auditor who was not identified by
name but presumably has some connection with Romoff
and Perricone. Romoff and Perricone (and presumably the
unknown third owner) were engaged in the operation of a
meat packing business with plants at Sioux City, Iowa, and
Los Angeles, California. They do not take an active role in
management of the Respondent, whose business was
conducted out of Denver by its general manager and 1/4
owner, D. W. Ranch. Ranch operated out of an office
which was across the street and 1/2 block away from the
terminal and shop where the Respondent's tractors and
trailers were parked and maintained.
The Respondent commenced its business operations in
the spring of 1969, hiring drivers as it acquired tractors and
trailers. Its major run was westward between the Sioux City
and Los Angeles meat packing plants operated by Romoff
and Perricone. The tractors and trailers were regularly
dispatched from Denver to Sioux City to pick up loads at
the Sioux City plant and deliver them to the Los Angeles
plant. Ranch's major problem, and the work he spent most
of his time on, was to secure east-bound loads, i.e., Los
Angeles-Denver and Denver-Sioux City loads.
The first group of men hired by Respondent started work
about April 1; i.e., Delbert Ewing, Robert Porter, Don
Fountain, Carl Landgraf, Herbert Brent, David Latham,
and Alvin Varra. Many of them had worked for firms
Ranch had formerly owned or managed; namely, Sharoff
Co. and Golden Bear.
The Union commenced its campaign to organize the
i Add 1969 to all further date references wherein the year is not stated
UNITED PACKING CO. OF IOWA 883
Respondent's drivers about 3 months after Respondent
went into operation. Between July 7 and July 21, 23 of
Respondent's drivers signed and submitted cards to the
Union authorizing it to act as their representative for the
purpose of bargaining collectively with the Respondent
concerning their wages, rates of pay, hours, and other
conditions of employment.
On July 22 the Union mailed a letter to Ranch which
informed him that a majority of Respondent's drivers had
authorized the Union to act as their collective-bargaining
representative and requested that he recognize the Union
and meet with it to negotiate a contract covering their
wages, hours, and working conditions. On the same date the
Union filed a petition with Region 27 seeking certification
as the duly designated bargaining representative of a
majority of Respondent's drivers. Shortly thereafter the
Respondent and the Union stipulated to a consent election
by mail ballot, the ballots to be mailed on August 27 and
returned by no later than September 10.
B The Alleged 8(a)(1) Violation By Ranch2
Sometime between the date Ranch received the Union's
recognition request (about July 23) and the date the ballots
were mailed out (August 27) drivers Lee Masters, David
(Gene) Latham, Gary Crowner, Ronald Anderson, Willard
(Moe) Jussel, and John (Jack) Bramley, while gathered at a
coffeeshop near the terminal, decided they might not have
been fair to Ranch in not seeking to learn what
improvements he intended to make in their wages and
conditions as the Respondent's business progressed and
improved before seeking the Union's help in securing
improvements. They decided to ask him, and prepared a list
of their three main concerns: (1) hospital and surgical
insurance coverage; (2) paid holidays; and (3) paid
vacations. They then went to Ranch's office in a body,
handed him the list, and asked him what he could do for
them in the three areas. They also complained about the
long delays they had been experiencing at Romoff's Los
Angeles plant, waiting to be unloaded. Ranch informed
them he could not negotiate with them in view of the
pending election, but stated he was willing to tell them what
he thought the Respondent would do later when it could
afford it, commenting that it was a new company and
couldn't afford immediate improvements. He went on to
tell them he believed the Respondent could and would
provide benefits of the three types listed to equal or exceed
those contained in the Union's contracts in the area.3
With regard to the unloading delays at Los Angeles,
Ranch indicated reluctance about contacting Romoff,
commenting that if the drivers voted for representation by
the Union, the Respondent's operations might either. (1) be
moved to Sioux City or (2) discontinued entirely and the
meat piggy-backed by railroad to Los Angeles. As support
for the prediction, Ranch stated that Sharoff had ceased
operations because the Union's contracts were too costly,
particularly the provision requiring a minimum mileage
guarantee.
After the meeting broke up, the drivers who attended the
meeting repeated Ranch 's observations to most if not all the
other drivers.
Had Ranch confined his remarks to answering the
drivers' questions concerning the possibilities of improving
their wages and conditions once the company 's operations
proved profitable , his answers might not have been
violative of the Act. The drivers , and not Ranch , initiated
the conference ; they, and not Ranch , demanded answers as
to what improvements the Respondent was prepared to
make in their wages , etc. Cf. Paradise Bowl-O-Mat, 180
NLRB No. 100; American Dredging Co., 180 NLRB No.
122, etc . However, when Ranch volunteered the view that
the Respondent might either switch to a piggy-back
operation between Sioux City and Los Angeles or operate
the business out of Sioux City instead of Denver (in either
case meaning a complete loss of drivers ' jobs for the Denver
drivers), he exceeded the limits within which the doctrine
contained in the two cases dust cited applies and violated
the Act. The threat contained in the volunteered comments
was unmistakeable-vote for representation by the Union
and you will be out of a job. The Examiner therefore finds
and concludes that by so threatening its drivers through its
agent and supervisor , Ranch , the Respondent violated
Section 8(a)(1) of the Act and inhibited their exercise of a
free choice in the subsequent election.
C. The Alleged 8(a)(1) Violations by Ewing4
1. Ewing's status
Ranch testified that Ewing was employed by him at the J.
A. Sharoff Company as his assistant manager and that he
and Ewing worked there for about 16 years. Ewing was not
in the bargaining unit represented by the Union at Sharoff
and was not covered by its contract with Sharoff. When
Ewing applied to Ranch for employment in Respondent's
operations, Ranch stated that he wanted to employ Ewing,
but that he would have to start out as a driver and wait until
the operation was larger before he could assume the status
he had occupied at Sharoff.
Ewing went to work for Ranch on April 1. In the early
months of his employment, he was occupied with picking
up new tractors and trailers and driving them to Denver,
organizing the shop and yard facilities, and interviewing,
testing, and hiring drivers to man the trucks.
Ewing's main function was to have tractors and trailers
ready to go when Ranch needed them, which included the
task of having a sufficient crew of drivers to man them.
Normally Ranch informed Ewing how many tractors and
trailers he needed, what loads they were to carry, and what
times the pickups and deliveries were to be made; Ewing
called the drivers, told them when to report and what their
loads and destinations were, and readied trucks and trailers
2 The findings under this heading are based upon the mutually
corroborative testimony of drivers Masters, Latham, Crowner, Jussel, and
Bramley and either partial corroboration or lack of denial by Ranch
3 Ranch attested to his familiarity with the Union's contracts through
his previous representation of management in the negotiation and
administration of contracts with the Union
4 Ewing did not testify The findings under this heading are based on
the uncontradicted testimony of General Manager Ranch, mechanic Brent,
and drivers Brookins, Davis, Horalek, Porter, Masters, Shottenkirk, and
Logan, and the mutual corroboration of Brookins-Davis and Shottenkirk-
Logan
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for departure at the scheduled time . As noted heretofore,
Ranch was across the street and in his office 1/2 block
away from the yard and shop securing the business and
Ewing was at the yard and shop carrying out the functions
just described. By July 1 most of the tractors and trailers
had been secured and Ewing was placed on a salary status
of $175 per week. The drivers were compensated on a
mileage basis , and the mechanic at the shop ( Brent) was
paid an hourly rate.
The 11 drivers who testified at the proceeding stated that
Ewing interviewed them and told them they were hired; in
some cases, they were informed by Ewing that they were
hired immediately upon applying (Ewing had driven
previously with many of them and knew their capabilities);
others were informed some time after their application to
Ewing that they were hired. In several instances, a second
driver was hired by Ewing simply on the recommendation
of the lead driver on a truck.
The drivers characterized Ewing as the "shop foreman"
or "ramrod" at the shop; they looked to him for directions
on when to report and what to do when trucks broke down
on the road or needed some work the Denver shop was
unable to perform. Ewing assigned drivers to trucks and
runs and transferred them from one truck to another. While
Ranch was ill, Ewing assumed his duties.
At the shop, in addition to dispatching the drivers, Ewing
moved tractors and trailers, washed and steamcleaned
them, painted, greased, and repaired them, and performed
many miscellaneous tasks.
No drivers were discharged or laid off during the period
April-August; while Ranch contended only he exercised
the power to hire, he conceded he placed great trust in
Ewing and never overruled a hire recommendation Ewing
made.
On these facts, the Examiner finds and concludes that
Ewing was Respondent's supervisor within the meaning of
Section 2(11) of the Act, which defines a supervisor as any
person with authority in the interest of the employer to
exercise independent judgment in the hiring, transfer,
assignment , or direction of employees, or to effectively
recommend such actions. Ewing clearly exercised such
judgment in the hire, transfer, assignment, and direction of
Respondent's drivers. Certainly, at the very least, Ranch
placed Ewing in such position vis-a-vis the drivers that he
possessed (and exercised) the ostensible authority to direct
their activities; the drivers accepted Ewing's authority
unquestioningly and Ranch never gave the drivers reason
to doubt that authority when Ewing hired drivers, assigned
them trucks and routes, transferred them from one truck or
crew to another, authorized outside repairs, or otherwise
directed their activities. In innumerable instances, the
Board has held a Respondent liable for the acts of such
persons as agents acting on its behalf. Heinz v. N.L.R.B.,
311 U.S. 514; Milk Wagon Drivers Union v. Meadowmoor
Dairies, Inc., 312 U.S. 287 ; International Association
Machinists v. N.L.R.B., 311 U.S. 72, etc. The Examiner
therefore further finds and concludes that in any event
Ewing was an agent acting on Respondent's behalf at all
pertinent times.
2. The Brookins-Davis incident
Shortly after the mail ballots were received by the drivers
(they were mailed August 27), Ewing approached drivers
Glen Brookins and Virgil Davis at Respondent's yard as
they were about to leave on a run and informed them that
Romoff had informed him that he was prepared to give the
drivers three paid holidays plus 9 cents per mile for solo
driving and a hospital and surgical plan as good as or better
than the Union's plan if the drivers voted against
representation by the Union. He also said that Romoff was
considering a profit-sharing plan and a vacation plan.
3. The Horalek incident
Sometime after he signed a card authorizing the Union to
represent him (July 9), and before the election (August 27),
driver William Horalek was approached by Ewing at the
yard and told that Romoff had informed Ewing that the
drivers would be offered profit-sharing, a yearly bonus, and
a better insurance plan than the Union's plan if they voted
against representation by the Union.
4. The Porter incident
About a week before the election (August 27), Ewing
approached driver Robert Porter at the shop and stated
that Romoff had informed Ewing that the Company
intended to cease the truck operation at Denver if the
drivers voted for representation by the Union, since he
could convert the trailers to piggy-backs at a cost of about
$125 each and sell the tractors. He also said that Romoff
had told him that the drivers would receive pay for holidays
worked and receive solo pay of 9 cents per mile if they
voted against representation by the Union.
5. The Masters-Waller incident
Shortly after the drivers received their mail ballots
(approximately August 28) and before they were to be
mailed in (September 10), Ewing had a conversation with
drivers Lee Masters and Bob Waller at the Valhi Cafe, near
Respondent's Denver terminal. Masters commented that he
wanted and needed more money, hospital and surgical
insurance protection, and better fringes than Respondent
was giving. Ewing responded with the statement that
Romoff had told him the drivers would receive a raise in
their solo pay, holiday pay, paid vacations, and insurance
but that the Company would cease operations if the drivers
voted for representation by the Union.
6. The Shottenkirk-Logan incident
On an undetermined date (obviously after the election
had been scheduled, in view of the tenor of the
conversation), Ewing had another conversation at the cafe
with drivers Clyde Shottenkirk and Bill Logan, in the
course of which he stated that if the drivers voted for union
representation the Company would cease to operate, but
that either Romoff or Perricone had told him (Ewing) that
the Company would buy insurance and provide other
benefits if the drivers voted against union representation.
UNITED PACKING CO. OF IOWA
7. Summary and conclusions
The testimony of the various drivers to the foregoing
Ewing statements was uncontradicted. The statements are
clearly consistent with the views expressed by Ranch in the
conference noted heretofore. The promise of benefit for
voting against union representation and the threat of
reprisal for voting for union representation are direct; they
are neither veiled nor subtle. Thus they clearly fall outside
the ambit of Section 8(c) of the Act and clearly interfered
with, restrained, and coerced the drivers in the exercise of
their Section 7 rights. The Examiner therefore finds and
concludes that by the statements attributed to Ewing above
the Respondent violated Section 8(a)(1) of the Act.
D. The Alleged 8(a)(5) Violation
There remains the question of whether the actions found
above are of a sufficiently substantial nature as to warrant a
bargaining order. N.L.R B. v. Gissel Packing Co., 395 U.S.
575, plus the usual questions of unit and majority status.
They shall be addressed seriatim.
1. The unit
In its July 22 letter and its July 22 petition the Union
sought recognition for a unit consisting of all of Respon-
dent's over-the-road or line drivers, excluding all other
employees. The Respondent admitted in its answer the
correctness of paragraph VI of the complaint stating that
"All over the road drivers (line drivers) employed by the
Respondent at its Denver, Colorado Transportation
Division, but excluding office clerical employees, guards,
professional employees and supervisors as defined in the
Act, and all other employees, constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act." Based on that
allegation and admission, the Examiner finds and con-
cludes that the unit set out in quotes above is appropriate
for the purposes cited.
2. The Union's majority status
The parties stipulated that the following employees were
in the unit on July 22:
I. Anderson, Ronald C. 11. Elkins, M. Dwight
2. Baumgartner, Don 12. Ewing, Delbert6
3. Bramley, John 13. Ewing, Robert D.
4. Brent, Herbert5 14. Fiorini, Ernest
5. Brookins, Glen 15. Hampton, Orrin
6. Catt, Buck 16. Hansen, Wilfred
7. Crowner, Gary 17. Hiles, Jacob
8. Davis. Virgil 18. Horalek, William
9. Doty, Delmar 19. Jussel, Willard
10. Elkins, Cecil 20. Landgraf, Carl
5 While Brent was on the voting list furnished by the Respondent prior
to the election, the evidence at the hearing discloses that Brent is employed
as a mechanic and only drove regularly in the early stages of his
employment and therefore should be excluded from the unit The question
is immaterial, however, inasmuch as the Union had an overwhelming
majority status within the unit whether or not Brent was included therein
on July 22
6 Ewing also was on the list The Examiner has entered findings,
21. Latham, David 28. Redding, Donald
22. Logan, William 29. Shottenkirk, Clyde
23. Masters, Lee 30. Swanson, Walt
24. Mumm, Ronald 31. Tupper, Paul
25. Overmyer, Bill 32. Varra, Alvin
26. Porter, Robert 33. Ward, Marvin
27. Redding, Clarence 34. Woodruff, Harlan
885
Between July 7 and July 21, Anderson, Baumgartner,
Bramley, Brookins, Catt, Crowner, Davis, Fionni, Hiles,
Horalek, Jussel, Latham, Logan, Masters , Mumm, Over-
myer, Porter, Donald Redding, Shottenkirk, Swanson,
Tupper, Ward, and Woodruff signed and delivered cards to
the Union authorizing it to act as their representative for
the purpose of bargaining collectively with the Respondent
concerning their wages, rates of pay, hours, and other
conditions of employment. The parties stipulated that the
signatures were authentic, and the validity of the authoriza-
tions was not challenged in any manner by Respondent.
The Examiner therefore finds and concludes that on July
22 the Union had been duly authorized to act as their
bargaining representative by 23 of Respondent's employees
within the stipulated unit consisting of 34 employees and
therefore represented a majority of Respondent's employ-
ees within that unit.
3. The alleged violation
Between the date (July 22) the Union, relying on the
above-noted authorization cards, made its claim of
majority representative status in the unit and requested
recognition as such from the Respondent and the date
(Sept. 11) Region 27 counted the ballots, the Respondent,
by its supervisors and agents, Ranch and Ewing, acting on
its behalf, threatened employees within the unit with
economic reprisals if they voted for union representation
and promised them benefits if they voted against union
representation.
The September I 1 tally as finally determined was 10 votes
for the Union, 11 votes against the Union, and 4 void
ballots, out of the 25 cast.
Subsequent to the election, the Respondent placed into
effect the following benefits: a solo mileage rate of 9 cents
per mile (formerly 8-1/2 cents); an insurance plan
providing for $2000 life insurance, $50 weekly sick benefit,
semiprivate hospital accomodations , a $1000 surgical
schedule, $20,000 major medical coverage, and the usual
accompanying benefits, all at Respondent's expense (after
the drivers protested a Ranch proposal for a contributory
plan); holiday pay for Christmas of 1969 and New Year's
Day, 1970; a reduction in the delay time experienced at
Romoff's Los Angeles plant.?
It is the teaching of the Gissel, supra, and related cases8
that the results of a Board-conducted election shall be
ignored and the Union's card-supported majority honored
however, that Ewing was a supervisor at all times pertinent and therefore
should be excluded from the unit Again , however, the matter is not
important insofar as the majority representation question is concerned
r Vacation schedules for 1970 had not been announced as on the date of
the hearing no drivers had completed 1 year of employment
s N L R. B v Katz, 369 U S 736, Franks Bros. v N L R B, 321 U.S
702, N L R B v. Lorillard, 314 U.S. 512
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
when the employer has demonstrated bad faith and
prevented a fair election by conduct clearly intended to
undermine the Union's majority status among its unit
employees.
The Examiner finds and concludes that by the threats
and promises voiced by Ranch and Ewing as set out
heretofore the Respondent did in bad faith undermine the
Union's July 22 majority status in the unit and prevent a
fair election and that it thereby violated Section 8(a)(5) and
(1) of the Act.
Ordinarily an employer's attempt to bargain individually
with unit employees concerning insurance plan premium
cost-sharing, his unilateral change of the employees' solo
mileage rate, and his unilateral institution of paid holiday
and hospital-surgical insurance benefit programs subse-
quent to the union's selection by a majority of the
employees within the unit as their representative constitutes
a violation of Section 8(a)(5) and (1) of the Act; the
Examiner desists from so finding, however, in the absence
of complaint allegations to that effect.
THE REMEDY
Having found that the Respondent interfered with,
restrained, and coerced its employees in the exercise of their
Section 7 rights under the Act, the Trial Examiner shall
recommend that the Respondent be ordered to cease and
desist therefrom and to post notices so indicating. Having
further found that by virtue of such interference, restraint,
and coercion the Respondent in bad faith undermined the
Union's majority representative status among its employees
in an appropriate unit and prevented a fair election, the
Trial Examiner shall recommend that the Respondent be
ordered to recognize and bargain with the Union at its
request as the exclusive collective-bargaining representative
of its employees in the unit concerning their wages, rates of
pay, hours, and working conditions and, if agreement is
reached concerning same, to reduce such agreement to
writing and sign it and to post notices so indicating. It shall
also be recommended that the Union's objections be
sustained and the election conducted by Region 27 among
Respondent's employees in August-September be set aside.
CONCLUSIONS OF LAW
1. The Respondent at all times pertinent 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. By the threats to employees of reprisal for supporting
the Union and promises of benefits for refraining from such
support found heretofore to have been uttered by its
supervisors and agents, Ranch and Ewing, Respondent
violated Section 8(a)(1) of the Act.
3. All over-the-road (line) drivers employed by the
Respondent at its Denver, Colorado Transportation
Division, excluding office clerical employees, guards,
professional employees and supervisors as defined in the
Act, and all other employees, constitute a unit appropriate
for purposes of collective bargaining under Section 9 of the
Act.
4. Since July 22 the Union has been the duly designated
exclusive collective-bargaining agent of Respondent's
employees within that unit.
5. By the actions set out in 2, above, the Respondent
failed and refused to bargain in good faith with the Union
as the duly designated exclusive collective-bargaining
representative of a majority of its employees in the unit,
undermined the Union's majority representative status in
the unit, and prevented a fair election, thereby violating
Section 8(a)(5) and (1) of the Act.
6. The above unfair labor practices affect commerce as
defined in Section 2(6) and (7) of the Act.
7. The Respondent did not violate the Act other than as
just set forth.
9 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the
findings , conclusions , recommendations , and Recommended Order herein
shall, as provided in Sec 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 In the event
RECOMMENDED ORDER
The Respondent, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Directly or indirectly threatening unit employees with
economic reprisal for supporting the Union, promising
them economic benefits for desisting from such support, or
otherwise interfering with, restraining, or coercing them in
the exercise of their rights under Section 7 of the Act;
(b) Failing or refusing to bargain collectively with the
Union as the exclusive bargaining representative of its
employees within the unit heretofore found appropriate.
2. Take the following affirmative actions designed to
effectuate the purposes of the Act:
(a) Upon request, bargain collectively in good faith with
the Union as the exclusive bargaining representative of
Respondent's employees in the unit heretofore found
appropriate concerning the wages, rates of pay, hours, and
other working conditions of such employees and execute a
signed agreement containing any understandings reached.
(b) Post at its premises in Denver, Colorado, copies of the
attached notice marked "Appendix." 9 Immediately upon
receipt of copies of the notice on forms furnished by the
Regional Director for Region 27, the Respondent shall
cause copies to be signed by an authorized representative
and posted and maintained in conspicuous places,
including all places where notices to employees are
customarily placed, for 60 consecutive days thereafter.
Reasonable steps shall be taken to insure that the notices
are not altered, defaced, or covered by other material.
(c) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of receipt of this
that the Board's 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 be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing
an Order of the National Labor Relations Board "
UNITED PACKING CO. OF IOWA 887
Decision, what steps the Respondent has taken to comply and the election in Case 27-RC-3680 is therefore set aside,
herewith.i° its results voided, the petition filed in that case dismissed,
The Union's September 16 objections to the August and all proceedings thereunder vacated.
27-September 10 election are sustained to the extent Any complaint allegations in Case 27-CA-2796 of
indicated in the findings and conclusions set out heretofore violations other than those found heretofore are dismissed.
10 In the event that this Recommended Order is adopted by the Board, Region 27, in writing, within 10 days from the date of this Order, what
this provision shall be modified to read "Notify the Regional Director for steps it has taken to comply herewith "