W. C. Hargis & Son, Inc.

National Labor Relations Board - Board Decisions

May 25, 1967

164 N.L.R.B. 1042 (N.L.R.B. 1967)

1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
W. C. Hargis & Son, Inc. and Local 144,
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America . Case 25-CA-2608
May 25,1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND BROWN
On March 31, 1967, Trial Examiner John P. von
Rohr issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that it cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief, and the General Counsel filed
limited exceptions to, and a brief in general support
of, the Trial Examiner's Decision.
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.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that Respondent, W. C. Hargis & Son,
Inc., Terre Haute, Indiana, its officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order,
with the following modifications:
1. Section 1(a) of the Order shall be changed to
read as follows:
"(a) Coercively interrogating employees with
respect to their union activities and sympathies;
engaging in surveillance of employees' union
meetings and activities; soliciting or assisting
employees in the withdrawal of their union
designations; and granting wage increases, bonuses,
or other monetary benefits to employees designed to
interfere with their organizational activities and to
influence their vote in representation elections."
2. The second indented paragraph in the Notice
shall be changed to read as follows:
WE WILL NOT coercively interrogate our
employees with respect to their union activities
and sympathies; engage in surveillance of union
meetings and activities; solicit or assist
employees in the withdrawal of their union
designations; or grant wage increases, bonuses,
or other monetary benefits to our employees to
interfere with their organizational activities and
to influence their votes in representation
elections.
I The General Counsel excepted to the Trial Examiner's failure
to recommend that Respondent cease and desist from granting
wage increases and bonuses to employees, which conduct the
Trial Examiner found was designed to interfere with its
employees ' organizational activities and to influence their votes in
representation elections We find merit in the General Counsel's
exception, and we shall modify the Trial Examiner's
Recommended Order accordingly.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOHN P. VON ROHR, Trial Examiner: Upon a charge filed
on September 8, 1966, the General Counsel of the National
Labor Relations Board, by the Regional Director for
Region 25 (Indianapolis, Indiana), issued a complaint on
November 2, 1966, against W. C. Hargis & Son, Inc.,
alleging that it had engaged in certain unfair labor
practices affecting commerce within the meaning of
Section 8(a)(1) and (5) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein called the Act. Thereafter
the Respondent filed an answer denying the allegations of
unlawful conduct alleged in the complaint.
Pursuant to notice, a hearing was held before me in
Terre Haute, Indiana, on January 17 and 18, 1967. All
parties were represented by counsel and were afforded
opportunity to adduce evidence, to examine and cross-
examine witnesses, and to file briefs. Briefs from the
Respondent and the General Counsel have been received
and they have been carefully considered.'
Upon the entire record in this case and from my
observation of the witnesses, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The Respondent is an Indiana corporation with its
principal office and place of business located in Terre
Haute, Indiana, where it is engaged in the business of
black topping and oiling roads and parking surfaces, and
related services. During the 12 months preceding the
hearing herein, the Respondent received goods valued in
excess of $50,000 which were shipped to it from points and
places located outside of the State of Indiana.
The Respondent concedes, and I find, that it is engaged
in commerce within the meaning of the Act.
' The Genera I Counsel's unopposed motion to correct the
transcript dated February 21, 1967, is hereby granted.'
164 NLRB No. 153
W. C. HARGIS & SON
H. THE LABOR ORGANIZATION INVOLVED
Local 144, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
The Union began an organizing campaign among
Respondent's truckdriver employees in or about the
month of June 1966.2 On August 17, during the course of a
representation hearing, the parties signed a consent-
election agreement, the terms of which provided that an
election was to be held on September 9. However, the
Regional Director subsequently approved the Union's
withdrawal of its representation petition and the election
was never conducted.
The testimony of employee witnesses in the instant
case, which for the most part is undenied, establishes that
the Respondent engaged in an extensive campaign
designed to prevent the employees from exercising the
rights guaranteed them in Section 7 of the Act. This course
of conduct, which started in the initial stages of the
organizing campaign and continued after the execution of
the consent-election agreement, is set forth as follows:
1. Interrogation; solicitation of employees to withdraw
from the Union
During the course of his testimony as a witness in the
instant hearing, Ward C. Hargis, president of the
Respondent, readily admitted that he questioned
employees concerning their union activities during the
period of the Union's organizing campaign. From the
undenied testimony of employee witnesses, I find that the
following incidents of such interrogation occurred:
(a) At the beginning of the campaign Hargis broached
employee Samuel F. Barnett, Sr., and asked what the
activity was about. Barnett replied that employee Cleve
Campbell had spoken to him about the Union but that he
did not want anything to do with it.
(b) On an evening in September, employee Barnett
encountered Hargis as he entered the company office.
Hargis pointed to the Board election notice on the bulletin
board and asked Barnett how he intended to vote. Barnett
said that he was not going to vote, that he did not want
anything to do with it. Hargis thereupon told Barnett he
had to vote, explaining that "yes" was "for the Union" and
that "no" was "for him [Hargis]."
2 Unless otherwise indicated , all dates hereinafter refer to 1966.
3 Vaughn signed a union membership application on July 18,
1966.
Concerning the statement which appeared on the paper,
Green testified "It was something about going against the union
or not having . about not coming in , something like that " In
view of Respondent 's entire activity in this regard , further of
which is subsequently set forth herein , it is clear and I find that
the statement which Anderson requested Green to sign was a
withdrawal or disavowal of his theretofore signed union
application It is also clear and I find, that Anderson acted as
Respondent 's agent in this matter
s The credited and undenied testimony of Ellinger Ellinger did
not recall the exact wording contained on the paper which Ariz
handed to him , but testified that it was "about not having a union
1043
(c) Employee Cleve Campbell signed an application for
membership in the Union on July 11. Several weeks later
Hargis asked Campbell if he had signed a union card.
Campbell replied that he had. Hargis asked why he had
signed and Campbell proceeded to give his reasons. It was
Campbell's further credited and undenied testimony that
at or about the same time Warren Artz, Respondent's vice
president, also asked him if he had signed a union card.
(d) About a week after having signed a union
membership application, Hargis broached employee
Vaughn McCammon and asked if he had signed a union
card.3 McCammon said that he had. Hargis then asked
what he thought about it. McCammon replied that he did
not think too much of the idea but that everyone else had
signed up for the Teamsters. He also told Hargis that he
did not think the Union would work and that he "wished he
hadn't done it." It was McCammon's further undenied
testimony that Vice President Artz also asked him if he
had signed a union card.
Other incidents of interrogation are intermingled with
Respondent's solicitation of employees to withdraw from
the Union. These occurred as follows:
(a) Employee Robert Green signed a union membership
application on July 16. Two or three weeks later Vice
President Warren Artz visited Green at his trailer and
asked if he had signed a union card. Green responded
affirmatively. Artz then asked if he "wanted to go through
with it." When Green replied that he did not, Artz asked if
he would sign a paper to that effect. Green said that he
would. A few days later Green entered the company office
where he was met by Ralph Anderson, Respondent's
bookkeeper. Anderson handed Green a paper, stating,
"here is that paper to sign." The paper bore a statement to
the effect that the signer wished to withdraw from the
Union.' Complying with Anderson's request, Green signed
the document and gave it back to him.
(b) In September 1966, Vice President Artz solicited
employee Henry Ellinger to sign a statement to the effect
that he wished to withdraw from the Unions
(c) Employee William F. Grimes testified without
contradiction that on September 22 Hargis broached him
on the parking lot and "asked if I would sign a paper not to
join the Union." Grimes replied merely that he already
belonged to the Union.6 It appears that he did not sign the
statement.
(d) Employees Harrison Jeffers, Jr., Garland
McCammon, and Vaughn McCammon testified that in
July, subsequent to their signing union membership
applications, Hargis came to their respective homes at
which time they gave him written statements to the effect
that they desired to withdraw from the Union. It was my
impression that Garland and Vaughn McCammon, when
come in " Ellinger testified also that Ariz told him that all the
other employees had signed a similar statement As indicated
hereinafter Hargis admitted that a number of such statements
came into his possession
' Grimes testified that this conversation terminated with Hargis
stating that "he would pay ten thousand dollars and file
bankruptcy to get the union out of there " Although Hargis
admitted engaging in much of the conduct involved herein, he
strenuously denied having made the foregoing statement to
Gnmes . I credit his testimony to this effect It may be noted that
during the hearing Hargis voluntarily asserted that the Union was
out to bankrupt him. It is possible that he may have made some
such statement to Gnmes and that it was misunderstood by this
employee.
298-668 0-69-67
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called by the General Counsel, were recalcitrant witnesses
and that they did not fully disclose all that transpired on
the occasion of Hargis' visit to their homes.' In any event,
the testimony of Jeffers and the McCammons reflects as
follows: Harrison Jeffers testified that Hargis came to his
home and asked if he had signed a card to join the Union.
Jeffers said that he told Hargis that he had signed but that
he "was not going to stick with it"; further, that he then
told Hargis, "If you don't believe I'm going to withdraw, I
will write a letter to them." Jeffers said that he thereupon
wrote out a letter of withdrawal, put it in an envelope, and
gave it to Hargis to mail. Garland McCammon testified
that one evening Hargis asked if he signed a union card
and that he replied affirmatively." Concerning further of
this conversation, McCammon testified, "Well, he asked
me if I would take my name off it, if I was going to, or
something like that. I don't know what it was. I told him
`yes."' Although McCammon at this point became very
evasive, the substance of his testimony was that he wrote a
letter to the Teamsters Union asking that his name be
removed and that he gave the letter to Hargis. Vaughn
McCammon testified that Hargis came to his home on a
Sunday and reminded him of his statement a week earlier
(as heretofore set forth) that he (McCammon) wished he
had not applied for union membership. McCammon
testified that Hargis then asked "if I would just fix a letter
to that effect." Continuing, McCammon said, "So I wrote
one, and wrote it, and put it in an envelope and sealed it,
and gave it to him to mail."
Concerning all of the foregoing, Hargis conceded that he
visited the homes of various employees and that they gave
him letters of withdrawal. Without testifying as to the
circumstances under which these letters were prepared,
Hargis merely testified that he turned them over to his
attorney.9
Turning now to my conclusions concerning this phase of
Respondent's activities, it is clear that Respondent
engaged in widespread interrogation of its employees
concerning their union activities and sympathies.
Considering the fact that such interrogations were not
isolated and that they occurred in the context of the other
unfair labor practices found herein, I find that by such
conduct Respondent violated Section 8(a)(1) of the Act.
There is also ample evidence to support the complaint's
allegation that Respondent unlawfully solicited employees
to withdraw from the Union. As has been indicated,
Respondent' s solicitation of employees Green, Ellinger,
and Grimes, as testified to by these employees, is
undenied. Consistent with Respondent's action in this
' Indeed, the evasiveness and recalcitrant attitude of Garland
McCammon became so apparent that I finally declared him to be
a hostile witness and permitted the General Counsel to ask him
leading questions.
6 When queried if the conversation occurred when Hargis came
to his home, McCammon testified , "I wouldn 't swear that , he did.
He might have He comes out to my house lots .. "
9 Hargis testified that he thought his attorney would transmit
the letters to the National Labor Relations Board.
10 Thus, Vaughn McCammon testified that Hargis asked that
he "fix a letter" (of withdrawal ) The testimony of Garland
McCammon that Hargis asked him "to take his name off it,"
under the circumstance indicated , is sufficient to warrant the
inference that Hargis likewise requested him to write a statement
of withdrawal.
11 The complaint also alleges that Respondent , by Hargis,
engaged in threats violative of Section 8(a)(1) of the Act. One such
incident on which the General Counsel relies has been dealt with
in footnote 6. As to other incidents of alleged threats, employee
regard. I find that the evidence also warrants the finding
that Hargis solicited and encouraged the two McCammons
to write letters of withdrawal from the Union. Thus, not
only were the letters procured by Hargis in the context of
his unlawful interrogation of these employees while at
their homes, but the testimony of these employees reflects
that Hargis indeed requested or suggested that the letters
be written.10 Accordingly, I find that Respondent's
solicitation of employees to withdraw from the Union
violated Section 8(a)(1) of the Act. 1i
2. Surveillance
The complaint alleges that Respondent engaged in
surveillance of a union meeting which was held on
September 4, 1966. The testimony of employee witnesses
concerning this matter is undisputed. Respondent's
employees received a notice through the mail that a union
meeting of all truckdrivers would be held at 10 a.m.,
Sunday, September 4 at the union hall, 125 South Eighth
Street, Terre Haute, Indiana. The testimony is undisputed
that one of the notices was posted on Respondent's
bulletin board in advance of the meeting.12 Henry Ellinger
and William Grimes were the only employees to show up
at the union hall on the date in question. There these
employees saw Hargis and Artz, each in his own car, drive
past the union hall at least two times during an
approximate 1-hour period that morning.13 It was observed
that on each occasion they slowed down to 5 to 10 miles
per hour and looked toward the hall as they drove by.
Further, at one point Artz parked his car one-half block
from the hall. The employees saw that he remained there
for 10 to 15 minutes gazing at the union hall. Admitting
that he drove past the hall that morning, Hargis gave no
explanation for his presence there other than to assert that
it was his privilege to drive on a public street. While
Hargis' privilege to drive where he pleases is
unquestioned , it remains that it was unlawful for him, as it
was for Artz , to engage in surveillance of a union meeting
of the employees. Under all of the foregoing circumstances
I think it clear that this was the purpose of these
Respondent 's officials on this Sunday morning and I so
find. Respondent thereby violated Section 8(a)(1) of the
Act.
3. Wage increases and bonuses
It is undisputed that the following monetary benefits
were granted by the Respondent during the period
following the Union's organizing campaign : On August 18
Ellinger testified that in August , Hargis told him "that the Union
would break him and he wouldn't go for it ." Although this
testimony is undenied , I find this statement too ambiguous to
support a finding that it contained a threat violative of the Act.
Employee Vaughn McCammon testified that Hargis told him that
he would quit before he would go union. However, McCammon
did not recall when the statement was made , it being his
testimony that it occurred at some point prior to the organizational
campaign . It therefore has not been established that this threat
was made during the 10(b) period. Accordingly, and in view of all
the foregoing , I shall recommend that the complaint 's allegations
pertaining to alleged threats be dismissed.
12 Apparently this was done by one of the employees.
19 Ellinger first observed this activity as he stood outside the
hall. A short while later the two employees observed this again
from a window inside the hall. Both employees credibly testified
that at the same time they also saw Bill King, Respondent's
salesman, drive past the hall in his car.
W. C. HARGIS & SON
Henry Ellinger received an extra $10 paycheck on which
was written the words "running the hy-lift." In the
following week he received an extra paycheck in the sum
of $20, said check bearing the notation "oil commission."
On September 1, 1966, Respondent granted a 20-cent-per-
hour increase to all employees who made night fuel oil
runs to Lawrenceville, Indiana. 14 At some point earlier in
September 1966, Respondent also granted a 20-cent-an-
hour increase to employees Garland and Vaughn
McCammon. These employees did not make the night run
to Lawrenceville.
It is well settled that wage increases, bonuses, or similar
benefits that are granted or accelerated for the purpose of
counteracting a union organizing campaign violates
Section 8(a)(1) of the Act.15 While it is not a per se violation
to grant wage increases during the course of an organizing
campaign, the Employer's motives must be assessed from
all the facts and circumstances. The facts in the instant
case persuade me that the granting of the monetary
benefits noted above were not bona fide benefits in the
sense that they would have been granted when they were
during the normal course of business. Thus, although
Ellinger had occasions to operate the by-lift on various
occasions during the years preceding the instant
organizing campaign, he had never received extra pay
therefor. Concerning the check for "oil commission,"
Ellinger testified that he does not sell oil. Respondent
offered no explanation for its unusual action in mailing
these extra paychecks to this employee.16 As to these
increases granted the two McCammons, Hargis testified
merely that such action was taken because these
employees had made a request to Artz for a wage increase.
Significantly, Hargis deliberately withheld entering these
wage increases on Respondent's pay records until he was
subsequently advised by his attorney that he do so.
Concerning the wage increases to the drivers who made
night runs to Lawrenceville, Hargis merely testified, "but I
did grant it [the wage increase] because I thought they
was worth it, the night hauls, and I thought they was worth
it." Although the night runs to Lawrenceville were nothing
new, Hargis offered no explanation for the timing of this
wage increase, coming as it did little more than a week
before the scheduled election.
In view of all the foregoing, it is abundantly clear that
the wage increases granted to the employees and the
bonus checks bestowed upon Ellinger were motivated by
the Union's organizing campaign and the forthcoming
election. Accordingly, I find that the granting of these
additional monetary benefits to the employees were
designed to interfere with their organizational activities
and to influence their vote in the forthcoming election, and
therefore violated Section 8(a)(1) of the Act.
B. The Refusal to Bargain
1. The appropriate unit and the Union 's status as exclu-
sive bargaining representative therein
14 As to the timing of this increase , it will be recalled that the
election was scheduled to be held on September 9
'I N L.R.B. v. Exchange Parts Company, 375 US. 405; The
Great Atlantic & Pacific Tea Company, Inc., 162 NLRB 1182; cf
T. L. LayPacking Company, 152 NLRB 342.
iS These paychecks came as an unexpectation to Elhnger
Later in August , Ellinger requested Hargis that he be regularly
granted a wage increase for the times when he operated the by-
lift. Hargis refused this request In his testimony at the hearing
Hargis admitted discovering that Elhnger was for the Union and
1045
The complaint alleges the appropriate unit to consist of
all truckdriver employees of Respondent employed at its
facility exclusive of office clerical employees, all guards,
professional employees, other employees, and all
supervisors as defined in the Act. Although the
Respondent's answer denies the appropriateness of the
unit as thus alleged, it is clear from Respondent's position
in the instant hearing and in its brief that it does not
seriously challenge the appropriateness of a unit
consisting of truckdrivers. Rather, it is Respondent's
contention, as opposed to that of the General Counsel, that
the three employees discussed below should be included
in the truckdriver unit. Additionally, Respondent would
exclude employee Garland McCammon from the unit as a
supervisor within the meaning of the Act.
The significant background relative to the unit question
herein began with the filing of the Union's representation
on July 21, 1966, in Case 25-RC-3277. The unit described
therein was set forth as "all truckdrivers employed at
Employer's establishment," with the usual exclusions. As
heretofore noted, the parties met on August 17, 1966, for a
representation hearing before a Hearing Officer for Region
25. The Respondent was represented at this hearing by
Attorney Gilbert W. Gambill. At the outset of the hearing,
the parties stipulated that the appropriate unit consisted of
all truckdrivers employed at the Employer's
establishment, excluding all office clerical employees,
guards, professional employees, and supervisors as defined
in the Act.17 In reaching this agreement, Respondent's
counsel stated, "The Company does not contest the
appropriateness of a unit classified as truckdrivers, only as
to what certain employees are classified as truckdrivers
and what fall within the unit." The hearing then proceeded
with Vice President Warren Artz being the sole witness to
testify. Following 58 pages of record testimony in which
Artz testified in some detail as to the duties of the
truckdrivers and alleged borderline employees, the parties
went off the record. After some further discussion, the
parties at this point executed an agreement for consent
election. 1B The appropriate unit set forth in this agreement
was the same as the parties had agreed to at the outset of
the hearing except that the words "all other employees"
were added to the exclusions. In addition, the parties
simultaneously agreed to an eligibility list of 13 employees
who were to comprise the unit and who were to vote in the
election.19 Although the agreement provided that the
election was to be held on September 9, 1966, the Union
subsequently "blocked" the holding of this election by
filing the charge herein on September 8, 1966.
The Respondent's principal defense to the 8(a)(5)
allegation is that the agreement of the parties in the
representation proceeding erroneously failed to include
three employees as properly being within the appropriate
(truckdrivers) unit . Suffice it to say at this point that if the
Respondent's position is upheld the General Counsel's
case must fall for lack of majority.
that he thereafter regarded Elhnger as his "enemy." During the
hearing he also referred to Ellinger as one of the "leaders of the
unrest."
17 Except for minor variances , this unit is the same as alleged in
the complaint.
18 This agreement was approved by the Regional Director on
August 19, 1966.
1e This list, which bore the names of the employees to be
included, was signed by the Union's attorney and by Ariz for the
Respondent.
1046 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The three employees now contended by the Respondent
to be included within the unit are James Dennis Griffin,
Ray Griffin, and James Walter Griffin. Preliminarily, it
should be noted that although the Respondent in the
representation proceeding agreed that these employees
should not be included in the unit, I permitted the
Respondent to litigate this issue in the instant proceeding
on the basis that the Board itself had not made a
determination of the unit question. I have found no case
where the Board has held that the execution of a consent-
election agreement estops the parties from contesting the
appropriateness of the unit in a subsequent unfair labor
practice case where a refusal to bargain is at issue.20
However, in assessing the weight to be given the testimony
and evidence offered by the Respondent concerning the
status of the employees at issue, I have taken into
consideration the record in the representation, this
particularly including the testimony of Artz and the
position taken by the Respondent therein.21
The record in this case shows that by letter dated
July 27, 1966, which was in response to a Board request for
certain information with respect to the filing of the
representation petition, Attorney Gambill, on behalf of the
Respondent, enclosed a list of employees which, the letter
stated, "we believe would fall within the bargaining unit
for truckdrivers." The list named 19 of Respondent's
employees. Gambill testified in the instant hearing that he
prepared this letter after consulting with Hargis and Artz.
Significantly, this list did not contain the names of the
three Griffins whom Respondent now asserts should be
included in the unit. Nothing further bearing on this
question transpired until the representation hearing at
which time the only testimony concerning the Griffins was
the one sentence statement of Artz, who testified,
"They're plant operators running an asphalt plant."22 It is
undisputed that at no point in the representation case did
the Respondent claim the Griffins to be within the unit; as
indicated above, they were not included in the agreed-
40 Cf. The Great Atlantic & Pacific Tea Company, Inc, 162
NLRB 1182 See also United Dairies, Inc, 144 NLRB 153,
154-155, wherein the Board stated.
The Trial Examiner rejected the Respondent 's contention
that its distributors were independent contractors and made
a determination on the merits that these distributors were
employees . We find it unnecessary to make a determination
as to whether on the evidence adduced the distributors were
employees or independent contractors Rather, we find that
since the Respondent in a consent -election agreement agreed
to the inclusion of these distributors as employees in a unit
appropriate for collective bargaining and did not challenge
the right of its distributors to vote in a Board - conducted
election, it cannot in the instant proceeding , in which it is
charged with a refusal to bargain with the Union as the
representative of these distributors , contend that they are not
employees or that they must be excluded from that unit The
Board has long refused to permit rehtigation in subsequent
unfair labor practice proceedings of issues determined
previously in representation proceedings This rule has been
applied both to cases in which the facts relating to
appropriate units have been determined by the Board upon
the record of a hearing and to cases in which the parties, in a
consent- election agreement , have agreed to the
determinative facts In refusing to allow litigation of a unit
agreed upon by the parties , the Board has recognized the
value of such agreements not only in saving the expenditure
of time and effort by the Government, but also because of
their tendency to stabilize labor - management relations and to
expedite the settlement of labor disputes The Respondent
here has offered no satisfactory explanation as to why the
upon eligibility list which was executed simultaneously
with the consent -election agreement. _
I turn now to the testimony in this case concerning the
status of the Griffins. The record discloses that
Respondent manufactures its own road mix which is
utilized by it in the building and repair of roads. This
material, which consists of hot and cold mix, is
manufactured in portable units known as "pug mills" or
"batch plants." Basically the hot- and cold-mix operations
involve the mixing of gravel with oil. Although the pug
mills are portable, the record reflects that they are seldom
moved. In fact, it appears that the two pug mills involved
in the testimony were not moved during the summer of
1966, which is the period relevant hereto. The hot mix is
manufactured in the batch plant located at Montezuma,
Indiana,23 which is approximately 23 miles from
Respondent 's place of business in Terre Haute, Indiana.
The cold mix is made in a pug mill plant which is located
near Turkey Run, Indiana, this is some 35-40 miles from
Terre Haute.24 As to the operation of the cold- mix plant,
James Griffin testified that he first picks up a semitanker
loaded with oil from Respondent's lot and drives it to the
cold-mix plant. At this point the tanker-trailer is hooked to
the pug mill, the oil is pumped into the mill, and the mill
mechanically mixes the gravel and oil. Griffin tends the
various gauges "and makes sure that everything is running
correctly on it." It is undisputed that he must stand by and
tend to his duties at all times when the plant is in
operation. The operation of the hot-mix plant is basically
similar to that of the cold mix. Ray Griffin described this
operation as "screening the gravel in the bin and running it
through a dryer, and the temperature is taken out of it. The
gravel is dried and moisture is taken out of the gravel; then
it is run on up into the pug mill where the oil is added to it,
and the mix has been made, and put out in the truck." The
hot-mix plant also requires the full-time attention of the
employee-operator when it is in operation.
There is no question but that the hot- and cold-mix
Board should now make a new determination as to the
composition of the unit rather than accept the unit which the
Respondent itself agreed to when it entered the consent-
election agreement with the Union and to which it did not
object at the time of the election.
However, the instant case differs from the cases cited above in
that here an election was not held and Respondent thus was not
afforded an opportunity to file challenges or objections
concerning issues it may have wished to raise and upon which the
Regional Director, in accordance with the consent agreement,
would be required to make a determination As to Board policy in
postelection cases of this nature , see also Stanley Aviation
Corporation, 114 NLRB 178; WinterSeal Corporation, 117 NLRB
659
21 Upon my direction, the transcript of testimony in the
representation has been incorporated in the instant proceeding.
The transcript was received in evidence as G C 's Exh. 13.
It is further noted that Attorney Gambill withdrew from the
case in or about early January 1966 The Respondent has since
been represented by Attorney Ronald R Allen.
22 Artz conceded in the instant case that this testimony referred
to the Griffins. They were not mentioned by name in the
representation hearing
22 Artz described this plant as consisting of coalbins , a dryer,
hot bins, and a pug mill mixer . The plant itself is stationed in a
gravel pit leased by the Respondent from the county Respondent
sells the greater portion of the hot mix to Parke County, with
whom it has a contract.
24 The cold mix or pug mill plant consists of a hopper, an
elevator, and a pug mill Artz testified that another such plant is
located in a gravel pit north of Clinton, Indiana.
W. C. HARGIS & SON 1047
operations are the primary responsibility of the three
Griffins.25 The only other employee qualified to operate a
pug mill is Cleve Campbell. Artz testified, however, that
Campbell spends less than 15 percent of his time in this
operation.26
The Griffins are under the direct supervision of Artz
who is also supervisor of Respondent's other employees,
including the truckdrivers.27 They, like the other
employees, wear uniforms furnished by the Respondent.
While the foregoing is relevant to the unit issue and had
been so considered, the crux of Respondent's argument is
that the Griffins are dual-function employees and that as
such they have a sufficient community of interest with the
truckdrivers so as to be properly included within the
truckdrivers unit . The argument thus posed requires
examination of the evidence pertaining to the duties of the
truckdrivers as compared to the batch plant operators. In
this connection, it should be pointed out first that 10 of the
13 truckdrivers do not spend 100 percent of their time
driving trucks.28 The record in the R case shows that when
not driving trucks these employees are engaged in such
jobs as garage mechanical work, laboring work, operating
motor graders and roller equipment, and operating the
rear end of oil distributors.29 As to the actual time spent in
driving trucks, the testimony of Artz reflects that the
truckdrivers listed on the eligibility list are so engaged as
follows:
1. William Grimes 100%
2. George McClure 100%
3. Billy McKechan 100%
4. Charles Daily 80%
5. Sam Barnett 75 to 80%
6. Cleve Campbell 60 to 75%
7. Harrison Jeffers 60 to 70%
8. Garland McCammon 60 to 70%
9. Vaughn McCammon 60 to 70%
10. Henry Ellinger 50 to 60%
11. Robert Greene 50 to 60%
12 Frank Stephens 50 to 60%
13. Everett Stevens 50%
It is undisputed that on occasion the batch plant
operators also spend some of their time driving trucks.
Leaving aside for the moment the amount of time spent in
such activity, James Dennis Griffin testified that he is
involved in driving on the following occasions: (1) when he
drives tankers of oil to the pug mill which he operates (this
oil is utilized in his operation of the pug mill); (2) when he
is not operating the pug mill, he at times drives a dump
truck and hauls gravel to wherever it is needed; and (3) on
some occasions when he is not operating the pug mill he
will deliver oil via a semitanker to a distributor.30
According to Griffin, once he has delivered the oil to the
distributor he may sit around for as much as 6 hours doing
nothing until the oil in the semitanker has been used. As to
the occasions when Ray Griffin drives a truck, it was his
testimony that: (1) he will drive a truck of rock and gravel
to the Montezuma batch plant (this material is utilized in
the operation of this plant); (2) on occasion he moves
machinery, this including Lo-boys, pavers, and rollers; and
(3) on occasion he drives tankers of oil to be used in blade-
mixing operations.
With respect to the amount of time spent in the above
operations which involve truckdriving, James Dennis
Griffin testified that this would take, "about 30 or 40 per
cent of the time, I would say," and Ray Griffin testified, "I
would say it would run 30 per cent." Upon the entire
record and from my observation of the witnesses, I am
convinced that the Griffins exaggerated their foregoing
testimony to the effect that they spend 30 percent or more
of their time driving trucks. There are several reasons for
so finding. First there are Respondent's records. These
records show that during a representative period of
Respondent's summer season (from July 8 to August 18)31
the Griffins spent practically 100 percent of their time
operating the pug mill or batch plant.32 Secondly, Artz
conceded that the truckdriving work engaged in by the
Griffins was of an irregular nature. This testimony leads to
a third point. Thus, it will be recalled that after
consultation with Artz and Hargis, Respondent's attorney
on July 27, 1966, wrote a letter to the Board in which he
named 19 employees whom the Respondent regarded as
truckdrivers. As previously noted, the names of the
Griffins were not included. During the representation
hearing, Artz testified that three of the employees named
in this letter spent only 25 percent of their time driving
trucks. These employees were R. C. Counterman, Robert
Dunkly, and James Kearney, Jr.33 Inasmuch as
Respondent clearly was familiar with the unit issue in the
representation hearing, it seems incredible that the
Griffins would not have been included on Respondent's
proposed list of truckdrivers, as were Counterman,
Dunkly, and Kearney, if in fact they spend 25 percent or
more of their time driving trucks.
In sum , and upon the entire record herein, I find that the
25 This was conceded by Artz as well as by the Griffins Ray
Griffin and his son, James Dennis Griffin, were called as
Respondent witnesses . Although James Walter Griffin, the
brother of Ray, did not testify, Ariz said that he performed the
same hot - and cold - mix operations as the other Griffins
26 At another point Ariz testified, "He [Campbell] would also
run one of these pug mills He has run one in Vermilhm County "
(Emphasis supplied) It was conceded by Respondent in the R
case that Campbell is primarily a truckdriver, that he spends
60-75 percent of his time driving trucks With respect to the
balance of this time , the majority of this is spent by Campbell in
performing work not related to the pug mill operation
27 In the R case, Ariz testified that he assigns the daily work
schedules and supervises the work done in the field.
28 In referring to "truckdrivers," I here have reference to those
employees whom Respondent conceded in the representation
case to be truckdrivers on the basis that they spend a majority of
their time driving trucks. They are named on the eligibility list, as
set forth below
26 This latter involves operating the equipment which
distributes oil spray over the road Although this work is normally
performed by an operating engineer , it appears that Respondent's
other employees sometimes assist in this work . The actual driving
of the distributor , however , is classified in the truckdriving
category.
31 The distributor is the same piece of equipment which, as
previously indicated , sprays oil on to cover the gravel
Si These are the only records referred to in the testimony
32 The only exceptions in this period were 2 or 3 days when
James Walter Griffin was engaged in hauling pug mill mix to
streets in the town of Rosedale and a few occasions when each of
the Griffins worked for the Vigo Blacktopper Company The latter
is an outside employer who paid the Griffins for the time thus
worked Unlike Respondent's truckdrivers, there are other
occasions when the Griffins perform work for and are paid by
Vigo Blacktoppers.
33 These employees were not included on the heretofore
mentioned eligibility list of truckdnvers which was signed by the
Respondent
1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
three Griffins are what they were described to be by Artz
in the R hearing; i.e., "plant operators running an asphalt
plant." Indeed, Artz conceded in the instant hearing that
the Respondent itself trained these employees so that they
were able to perform this work; and further, that they are
responsible for the performance of this work. Upon the
testimony discussed above, I am inclined to believe that
these employees spend less than 25 percent of their time
in driving trucks. In any event, it is clear that a large part
of this truck driving is directly related to their operation of
the mix plants.34 It is equally clear, and I find, that their
other driving duties are of an irregular and sporadic
nature. Accordingly, I find and conclude that James
Dennis Griffin, Ray Griffin, and James Walter Griffin, as
batch plant operators, should not be included within the
unit of truckdrivers.35 I further find that the heretofore
described unit of truckdrivers, as agreed to by the parties
and set forth in the consent-election agreement, is an
appropriate collective-bargaining unit for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
The Respondent also contends that Garland
McCammon is a supervisor within the meaning of the Act.
Again, this is contrary to Respondent's position in the
representation proceeding, for in the R case the
Respondent in effect agreed that McCammon was an
employee by stipulating that he be included on the
eligibility list. At no point in that proceeding did
Respondent take the position that he was a supervisor.
Indeed, the only testimony by Artz in the R case with
respect to McCammon was that he spends 60-70 percent
of his time driving a truck, the balance of his time being
taken up with the operation of a motor grader.
Neither does the testimony in the instant case establish
Garland McCammon to be a supervisor within the
meaning of the Act. It is undisputed that McCammon does
not have authority to hire, discharge, discipline, transfer or
promote employees, or to effectively recommend any such
action. The record does disclose that McCammon on
occasion tells the truckdrivers where to dump gravel and
that he takes the weight tickets from the drivers when
such loads are delivered to roads which are under
construction. However, he always receives written
instructions from Hargis or Artz as to the amount of gravel
to be delivered. Additionally, McCammon instructs new
employees how to set gauges on the spray bar at the rear
end of the distributor, he sees to it that gravel and oil are
properly mixed, and on occasion he "tells the employees to
operate graders."36 With respect to all of the foregoing,
the record reflects that three other employees act in the
same capacity as McCammon.37 This readily follows when
it is considered that Respondent may have three or four
road jobs under construction at the same time. Without
unduly belaboring the subject, it is clear that any
instructions given by these employees are of a routine
nature and do not require any responsible degree of
independent judgment. Indeed, in the R case these
employees were conceded by Artz to be "unit leaders,"
and there was no contention by him that they were
supervisors. In short, I find and conclude that the
evidence establishes Garland McCammon to be an
employee, not a supervisor within the meaning of the
Act.38
On July 21, 1966, the Union sent a letter to the
Respondent in which it stated that it represented a
majority of the employees in the above-mentioned
appropriate unit and requested that Respondent recognize
and bargain with it as the exclusive bargaining
representative of the employees in said unit. Hargis
admitted that this letter was delivered to the Company but
that he refused to accept it. It is undisputed that
Respondent has at all times since failed and refused to
recognize and bargain with the Union as the employee's
bargaining representative.
In accordance with the findings previously made herein,
I find that the unit as of July 21, 1966, consisted of 13
employees, these being the same employees whose names
appear on the eligibility list agreed to by the parties, as
hereinabove set forth.39 Since the evidence establishes
that on or before July 19, 1966, eight of these employees
had signed cards designating the Union as their collective-
bargaining agent'40 I find that the Union has represented a
majority of employees in the appropriate unit at all times
material hereto.
2. Conclusions as to the refusal to bargain
From the facts in this case it is clear, and the
Respondent so recognizes in its briefs, that the
Respondent's refusal to bargain with the Union was not
predicated upon any good faith as to whether the Union
represented a majority of the employees in the unit in
which the Union sought to bargain. Rather, with the
subsequently raised assertion that certain employees
34 I.e., as transporting oil and gravel to be utilized in the
manufacture of hot and cold mix
as The Respondent contends that the Griffins should be
included in the unit under the rule set forth inBerea Publishtnt
Company, 140 NLRB 516, wherein the Board held that part-time
or dual -function employees may have sufficient interest in the
unit's conditions of employment to be included in the unit.
(Emphasis supplied ) However, I find this rule not applicable here
since (1) the employees here spend substantially less than 50
percent of their time in truckdnvmg work , and (2) the
truckdnvmg work so performed is either of an irregular nature or
is performed as an integral part of their work as batch plant
operators.
36 This ambiguous testimony of McCammon was in response to
a leading question and was not developed further.
31 These include Harrison Jeffers, James Curney, and George
McClure
11 1 do not credit McCammon 's testimony that Hargis advised
him that he was a "supervisor" or "superintendent ." From my
observation of this witness , I do not believe that he was telling the
truth in this regard. Not only was this testimony not corroborated
by either Hargis or Artz, but McCammon conceded that his hourly
wage rate of $2 per hour was the same as other employees
engaged in similar work It may be further noted that Hargis, at
the outset of his testimony, stated that only he, Ariz, and the chief
mechanic had any authority to hire or fire or to effectively
recommend such action.
39 In view of the fact that the Union's demand was a continuing
one, and since Respondent has at all times refused to bargain with
the Union , it is immaterial that this agreement was not reached
until August 18, 1966, the date of the R hearing. All of the
employees who signed cards were in the employ of Respondent on
July 21 and remained employees as of August 18. The remedial
order herein would be the same whether the refusal to bargain be
held to have occurred on either of said dates.
40 The properly authenticated cards of these employees were
received in evidence
W. C. HARGIS & SON 1049
should be excluded from or included within the unit
composition, Respondent defends on the ground that the
Union does not have a majority in the appropriate unit.
However, as previously found, the issues thus raised have
been decided adversely to the Respondent.
As has been shown, the Respondent refused to accept
the Union's letter requesting recognition and bargaining
and has at all times since refused to recognize the Union as
the employees' duly designated bargaining representative.
Instead, upon learning of the organizing campaign,
Respondent engaged in an extensive course of conduct, all
of which has been heretofore described, designed to
undermine the Union and to dissipate the Union's majority
status. I find that by this course of conduct, Respondent,
without any doubt of the union majority, ignored and
evaded its obligation under the Act to recognize the
bargaining representative of its employees. I further find
that on and after July 22, 1966, the approximate date of its
refusal to receive the Union's initial demand for
recognition,'' Respondent has refused to bargain with the
Union and has thereby engaged in unfair labor practices
within the meaning of Section 8(a)(5) and, derivatively,
Section 8(a)(1) of the Act 42
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship 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.
V. THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices within the meaning of
Section 8(a)(1) and (5) of the Act, it will be recommended
that Respondent be ordered to cease and desist therefrom,
and to take certain affirmative action designed to
effectuate the policies ofthe Act.
Having found that the Respondent has engaged in acts
of interference, coercion, and restraint in violation of
Section 8(a)(1) of the Act, I shall recommend that the
Respondent cease and desist therefrom. Having further
found that the Respondent has unlawfully refused to
bargain with the Union and has thereby violated Section
8(a)(5) of the Act, I shall recommend that the Respondent
cease and desist from refusing to bargain and shall
recommend that the Respondent bargain upon the request
of the Union and, if an understanding is reached, embody
such understanding in a signed agreement.
Upon the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing
employees in the exercise of their rights guaranteed in
Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The following employees of the Respondent
constitute a unit appropriate for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act:
All truckdrivers employed by the Respondent at its
facilities in Terre Haute, Indiana, excluding all office
clerical employees, guards, professional employees,
and supervisors as defined in the Act, and all other
employees.
5. The Union at all times material has been and is the
exclusive representative of the employees in the aforesaid
bargaining unit within the meaning of Section 9(a) of the
Act.
6. By refusing on and since July 22, 1966, to bargain
collectively with the Union as the exclusive representative
of the employees in the aforesaid bargaining unit, the
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law, and pursuant to Section 10(c) of the
Act, I shall recommend that Respondent W. C. Hargis &
Son, Inc., Terre Haute, Indiana, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees with respect to
their union activities and sympathies; engaging in
surveillance of employees' union meetings and activities;
and soliciting or assisting employees in the withdrawal of
their union designations.
(b) Refusing to bargain collectively with Local 144,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the exclusive
representative of all employees in the appropriate
bargaining unit described hereinabove.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Upon request, bargain collectively with the above-
named Union as the exclusive representative of all
employees in the appropriate unit, and embody in a signed
agreement any understanding reached. _
(b) Post at its plant and facilities in Terre Haute,
Indiana, copies of the attached notice marked
"Appendix."43 Copies of said notice, to be furnished
'y the 'Regional Director for Region 25, after being
only signed by the Respondent, shall be posted by
41 Respondent's refusal to accept the Union 's letter requesting
recognition and bargaining is in itself evidence of bad faith . Filler
Products, Inc., 159 NLRB 1536. See also N.L.R B v. Columbian
Enameling & Stamping Co , Inc., 306 U S 292, 297.
42 Joy Silk Mills, Inc., v. N L R.B., 185 F.2d 732 (C.A.D.C.),
cert. denied 341 U S 914
41 In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
1050 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 25, in
writing, within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.44
44 In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse to recognize and bargain with
Local 144, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
as the exclusive representative of the employees in
the appropriate bargaining unit described below.
WE WILL NOT coercively interrogate our employees
with respect to their union activities and sympathies;
engage in surveillance of union meetings; or solicit or
assist employees in the withdrawal of their union
designations.
WE WILL, upon request, bargain collectively with
the above-named Union as the exclusive
representative of all the employees in the bargaining
unit with respect to rates of pay, wages, hours of
employment, and other conditions of employment,
and, if an understanding is reached, embody such
understanding in a signed agreement. The bargaining
unit is:
All truckdrivers employed at our facilities in
Terre Haute, Indiana, excluding all office clerical
employees, guards, professional employees, and
supervisors as defined in the Act, and all other
employees
W. C. HARGIS& SON, INC.
(Employer)
Dated By
(Representative ) (Title)
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.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis , Indiana
46204, Telephone 633-8921.