Walter Holm & Co.

National Labor Relations Board - Board Decisions

Dec 20, 1949

87 N.L.R.B. 1169 (N.L.R.B. 1949)

In the Matter of WALTER HOLM & COMPANY and INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, LOCAL UNION No. 310
Case No. 21-CA-134.-Decided December 20, 1949
DECISION
AND
ORDER
. On May 20, 1949, Trial Examiner William E. Spencer issued his In-
termediate Report in the above-entitled proceeding, 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 copy of the Interme-
diate Report attached hereto. Thereafter, the Respondent filed excep-
tions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing, and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in the
case, and hereby adopts those findings, conclusions, and recommenda-
tions of the Trial Examiner not inconsistent with our findings, con-
clusions, and order, hereinafter set forth.
The alleged discrimination in violation of Section 8 (a) (1) and (3)
The Trial Examiner found, as the complaint alleged, that the Re-
spondent discriminatorily shut down its trucking operations and dis-
charged its four drivers on January 129, 1948. Although we agree
with the Trial Examiner that the Respondent subsequently renewed
trucking operations under a new arrangement, we are not persuaded
that the Respondent violated Section 8 (a) (1) and (3) by shutting
down trucking operations and discharging its drivers.
' Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[Chairman Herzog and Members Houston and Reynolds].
.87 NLRB No. 134.
1169
877359-50-vol. 87-75
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In May 1947, the Respondent embarked upon a new venture-that
of operating four truck tractors and four refrigerator trailers that cost
approximately $64,000. The Respondent used the trucking equipment
to transport its product (prepackaged tomatoes) from its plant at
Nogales, Arizona, to various markets in the western and northwestern
States. The trucking phase of its business proved unprofitable for
the Respondent from its very inception. In conferences with the
Union's representatives in October 1947, Walter Holm, the Respond-
ent's president, stated that the Respondent was losing money on the
trucking operations, and that he was considering leasing his equipment
because of these financial losses; he also discussed generally the prob-
lems of the trucking industry with the representatives. Throughout
the fall of 1947, Walter Holm also discussed trucking operations with
several independent truckers, comparing methods of operation and so-
liciting suggestions in an effort to ascertain the reason for the Respond-
ent's losses. The advice most frequently received was that the Re-
spondent should sell or lease its trucking operations and "stick" to its
produce business. The Respondent lost over $19,000 in the approxi-
mately 9 months of trucking operations ending January 28, 1948. One
of the major factors contributing to the Respondents' losses was exces-
sive break-downs of the equipment, resulting in costly repair bills.
Nor was the Respondent receiving, so it thought, proper adjustments on
repairs from the manufacturer of the equipment.
The record also shows, in further support of the Respondent's eco-
nomic explanation for the shut-down, an absence of any interference
by the Respondent with its employees joining the Union and engaging
in activity in its behalf.
The Trial Examiner did not find that no economic justification for
the shut-down existed; he found, rather, that such alleged justification
was not the reason for the Respondent's conduct. The Trial Examiner
thereupon concluded that the Respondent's objective was to avoid
dealing with the Union. In reaching this result, he relied principally
on the seeming precipitate character of the Respondent's conduct in
relation to the Union's victory at. the polls, the circumstances suggest-
ing dilatory bargaining tactics in the filing of an employer representa-
tion petition,' and the manner in which the Respondent allegedly
brought about a change in its operations.
The question of discriminatory motive is a particularly close one in
this case. It is necessary first to resolve the subsidiary issues bearing
on the question of motive. Thus, the facts do not show that the
2 The Respondent filed a petition for determination of representatives on November 16,
1947 , after having negotiated with the Union during October 1947 without questioning its
representative status.
WALTER HOLM & COMPANY 1171
Respondent refused to bargain concerning a change in operations;
nor do we find, considering the matter separately and apart from other
aspects of the case, that the Respondent later discriminated against the
four drivers in question in regard to employment under the so-called
leasing arrangement.
It is true that a strong suspicion of causal relationship is raised
where a shut-down, or other economic action affecting employees, co-
incides with a union's success at the polls. or with other crucial phases
in the organizational life of employees. And in connection with other
probative evidence, such circumstances may properly sustain a finding
of unlawful motive., In the present case, however, the preponderance
of the evidence does not persuade.us, however suspect the timing may
be, that the Respondent's conduct in question resulted from the
Union's victory in the election. The record shows that a factory rep-
resentative from the truck manufacturer arrived at the Respondent's
plant on the morning of January 27 or 28, following a letter of com-
plaint from the Respondent concerning equipment, and that the
representative discussed the complaints with Holm. The factory
representative, in behalf of the manufacturer, disclaimed liability for
repair bills in excess of $2,500 and also refused to assume liability for
future repairs to the same extent as in the past. The representative
told Holm that the mechanical troubles were the results of negligent
treatment of equipment by the drivers and mechanics; he advised
Holm to get out of the trucking business; and he suggested, in this
connection, that Holm either sell his trucks or lease them. Holm tes-
tified that he decided "right then and there" to get out of the trucking
business and that he instructed his trucking foreman, on the morning
of either January 27 or 28, to notify the four drivers accordingly and
to discharge them. Thus, the record indicates that Holm's decision
was made and openly expressed before the election results were known,.
the ballots not having been counted until 4 p. m., on January 28, in
Los Angeles.
Although the matter is not entirely free from doubt, in view of the
Respondent's unprofitable experience in the trucking business and,
particularly, the incident with the factory representative, we are
unable to find more than coincidence between the election and the Re-
spondent's decision to shut down its operations. Accordingly, we
shall dismiss the complaint insofar as it alleges that the Respondent
8 See the portion of this decision entitled "The refusal to bargain in violation of
Section 8 ( a) (5) and (1)."
4 Goodyear Footwear Corporation., 80 NLRB 800.
a Even assuming that the filing of the representation petition was for purposes of delay,
we also cannot find that the Respondent did not shut down operations and discharge the
four drivers for the economic reasons discussed above.
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatorily shut down its trucking operations and discharged its
drivers in January 1948.6
The refusal to bargain in violation of Section 8 (a) (5) and (1)
We agree with the Trial Examiner that the Respondent refused to
bargain with the Union in violation of Section 8 (a) (5) and (1) of the
amended Act. Unlike the Trial Examiner, however, we do not base
this finding upon the Respondent's unilateral action in discontinuing
trucking operations and discharging its drivers on January 28 and 29,
1948. As stated earlier, we are not persuaded that the Respondent's
course of action on January 28 and 29 was for discriminatory reasons.
And Section 8 (a) (5) does not require an employer to consult with its
employees' representative as a prerequisite to going out of business for
nondiscriminatory reasons.T In any event, the Union did not request
the Respondent to bargain with it concerning the shut-down and
discharges.
After winning the consent election on January. 28, 1948, the Union
requested a conference with the Respondent to negotiate a contract
for its drivers. Although agreeing to meet with the Union, the Re-
spondent stated that it no longer had drivers in its employ. The
parties met on February 24, 1948. At this time negotiations were
broken off because of the Respondent's continued insistence that it had
no employees in the unit for which the Union was certified.
As stated above, the Respondent discharged its four drivers in Jan-
uary 1948. Thereafter several new drivers hauled the Respondent's
produce.. Britton commenced driving a tractor-trailer unit on Feb-
ruary 4, 1948, and Harker commenced about the middle of February
1948.' The Respondent contends that Britton and Harker leased the
tractors from Mexican Produce Company, and that they were trucking
for the Respondent as independent contractors. We disagree with
this contention. In resolving this issue, we do not consider it neces-
sary to. determine the nature or validity of the alleged lease arrange-
ments (either oral or written) entered into with Mexican Produce
Company by Britton, Harker, and Fleming. Although the question
of who furnishes the trucking equipment is a factor to be considered
in determining whether an independent contractual relationship exists,
it is not, standing alone, determinative of that relationship.8 There
9 The Hays Corporation, 64 NLRB 406.
7 See Mahoning Mining Company, 61 NLRB 792, 803.
8 The meaning of "independent contractor," as defined in Section 2 (3) of the amended
Act, has been fully considered and discussed in several prior cases. Alaska Salmon
Industry, Inc., 81 NLRB 1335; Morris and Julian Leslie Steinberg, d/b/a Steinberg and Co.,
78 NLRB 221 ; Southwestern Associated Telephone Company , 76 NLRB 1105 ; Kansas City
Star Co., 76 NLRB 384.
WALTER HOLM & COMPANY 1173
are other factors appearing in the record which affirmatively establish,
as the Trial Examiner found, that the lessees are "employees" of the
Respondent within the meaning of the Act. The lessees operated the
tractors for the Respondent only ; when the Respondent closed down
its plant during the summer of 1948, the lessees were required to store
the tractors upon the Respondent's lot; the lessees had to account to
the Respondent for all expenditures for gas, oil, and repairs incurred
on the road; the lessees were dependent upon the Respondent for funds
for living expenses as well as operating expenses; and the lessees
operated the leased vehicles only at the instigation, direction, and
desires of the Respondent. As detailed in the Intermediate Report,
the above factors, in conjunction with the additional limitations and
restrictions upon the lessees arising from the terms of the leases with
Mexican Produce Company and the retention of the trailers by the
Respondent, without which the tractors were rendered useless to the
lessees, vested the Respondent with such control over the lessees as
to make them employees.
As the Respondent had two employees in the appropriate unit in
its employ on February 24, 1948, when the Union requested it to bar-
gain a month after winning the election, and as the Respondent's
.position taken with the Union at that time was tantamount to a re-
fusal to bargain, we find that on and after February 24, 1948, the
Respondent violated Section 8 (a) (5) and Section 8 (a) (1) of the
amended Act.
ORDER9
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Walter Holm &
Company, Nogales, Arizona, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 310, as the exclusive bargaining repre-
sentative of all truck drivers employed by the Respondent at its
Nogales, Arizona, plant, excluding supervisors; and
"The Respondent has filed a motion requesting the Board to reopen the record for the
purpose of adducing evidence to show that, subsequent to the date of the hearing, all
trucking equipment has been disposed of, the lease arrangements terminated , and that all
of the Respondent ' s shipping is now done by public carriers and independent truckers. The
motion is denied. The Board does not require the Respondent to do a useless thing. Its
Order that the Respondent bargain with the Union relative to its employees, hereinafter set
forth , is conditioned upon the Respondent having in its employ employees in the appropriate
unit for which the Union has been certified . See Metal Textile Corporation, 47 NLRB
743, 744.
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Interfering in any other manner with the efforts of,, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local. Union No. 310, to negotiate for or to repre-
sent the employees in the aforesaid unit as their exclusive bargaining
representative.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act, as amended :
(a) Upon request, bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers . of
America, Local Union No. 310, as the exclusive representative of all
truck drivers at its Nogales, Arizona, plant, excluding supervisors,
with respect to rates of pay,, wages, hours of employment, or other
conditions of employment, and if an understanding is reached, embody
such understanding in a signed agreement;
(b) Post at its plant at Nogales, Arizona, copies of the notice at-
tached hereto marked Appendix A.10 Copies of said notice, to be fur-
nished by the Regional Director for the Twenty-first Region, shall,
after being signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof and maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Twenty-first Region.in
writing, within ten (10) days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent locked out and dis-
charged its drivers in violation of Section 8 (a) (1) and (3) of the
Act.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant- to a Decision and Order 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 engage in any acts in any manner interfering with
the efforts Of INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA, LOCAL UNION
"In the event that this Order is enforced by decree of a Court of Appeals there shall
be inserted in the notice , before the words : "A DECISION AND ORDER ," the words :
"A DECREE • OF THE UNITED STATES COURT OF APPEALS ENFORCING."
WALTER HOLM & COMPANY 1175
No. 310, to negotiate for or represent the employees in the bar-
gaining unit described below.
WE WILL BARGAIN collectively upon request with the above-
named union as the exclusive representative of all employees in
the bargaining unit described herein with respect to grievances,
labor disputes, wages, rates of pay, 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 truck drivers at the Respondent's Nogales, Arizona, plant,
excluding supervisors within the meaning of the Act.
WALTER HOLM & CO.
Employer.
By ------------------------
(Representative ) ( Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
Messrs. James W. Cherry, Jr., and George H. O'Brien, for the General Counsel.
Messrs. George C. Lyon, Los Angeles, Calif., and James V. Robins, Nogales,
Ariz., for the Respondent.
Mr. Ira Schneier, Tucson, Ariz., for the Union.
STATEMENT OF THE CASE
Upon a charge filed by International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local Union No. 310, Tucson, Arizona,
herein called the Union, the General Counsel of the National Labor„Relations
Board, called respectively the General Counsel and the Board, by the Regional
Director of the Twenty-first Region (Los Angeles, California), issued his com-
plaint dated October 26, 1948, against Walter Holm & Company, Nogales, Arizona,
herein called the Respondent, alleging that the Respondent had engaged in, and
was engaging in, unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of,the National
Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies
of the complaint and the charge were duly served on the Respondent and the
Union.
With respect to unfair labor practices, the complaint alleged in substance that
the Respondent:
1. On or about January 28, 1948, and thereafter, refused to bargain with the
Union, the duly designated representative of its employees in an appropriate unit.
2. On or about.January 29, 1948, locked out and discharged five named em-
ployees because of their membership and activities in behalf of the Union.
3. From on or about January 28, 1948, interfered with, restrained, and coerced
its employees by.making a pretended and fictitious transfer of certain equipment
for the purpose of avoiding its duty to bargain with the Union.
1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Because of the aforestated acts and conduct engaged in unfair labor prac-
tices in violation of Section 8 (a) (1), (3), and (4) of the Act.
In its duly filed answer, the Respondent admitted that a majority of em-
ployees in an appropriate unit designated the Union their bargaining repre-
sentative on a date between January 16 and 26, 1948, but alleged that since
February 1948, the Respondent has ceased, for economic reasons, to have em-
ployees in the said appropriate unit. It denied that it had engaged in any of the
alleged unfair labor practices.
Pursuant to notice, a hearing was held on January 11, 12, 13,. and 14, 1949, at
Nogales, Arizona, before the undersigned Trial Examiner duly designated by
the Chief Trial Examiner. All parties were represented by counsel, participated
in the hearing, and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues. After
the evidence had been taken, the undersigned granted, without objection, a
motion by the General Counsel's representatives to conform the pleadings to the
proof in matters not going to the substance of the issues. All parties waived
oral argument before the undersigned and Respondent availed itself of the
privilege granted to all parties to file a brief with the undersigned.
Upon the entire record in the case and from my observation of the witnesses,
I, the undersigned Trial Examiner, make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Walter Holm & Company, Prepackagers of Fancy Tomatoes, is an Arizona
'corporation, with its principal office and place of business at Nogales, Arizona,
where it is engaged in the purchase, conditioning, prepackaging, shipping, and
selling of fresh tomatoes, principally those grown in Mexico.
During the 9-month period ending March 31, 1948, the value of its purchases
of materials and supplies was approximately $1,000,000, approximately 100 per-
cent of which was purchased and shipped to its Nogales plant from points outside
the State of Arizona. During the same period, the value of its sales of finished
products and services was approximately $1,000,000, and approximately 90 per-
cent of its finished products was shipped to points outside of the State of
Arizona.
It is found that Respondent is engaged in commerce within the meaning of
the Act.
II. THE ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local Union No. 310, Tucson, Arizona, is a labor organization
affiliated with the American Federation of Labor.
III. THE UNFAIR LABOR PRACTICES
A. Narration of events
Walter Holm & Company, the Respondent of this proceeding, was incorporated
in December 1946.. Prior, to its. incorporation, Walter Holm, who owns control-
ling stock in both the respondent corporation and The Mexican Produce Company,
and is president and treasurer of both, purchased, in the name of the latter
company, four trucks and four trailers for the use of the respondent corporation.
WALTER HOLM & COMPANY 1177
This purchase was financed through a loan negotiated with a, local bank, the
equipment being mortgaged to the bank as security for the loan.
The Mexican Produce Company has for some years been engaged in the pur-
chase and handling on consignment of tomatoes and other produce originating
in Mexico. Holm described the business of the respondent corporation as a new
venture for him, inasmuch as he had not previously been engaged in the pre-
packaging and distribution of tomatoes in small packages to U. S. markets.
Also, previous to his purchase of the equipment referred to above, he had not
been engaged in the operation of trucks for hauling his own produce.
The plant for Respondent's operations was completed in May 1947, and the
truck-trailer equipment was put into operation in June, when Respondent em-
ployed drivers for this equipment. The drivers were paid on a mileage basis
at the rate of 6 cents a mile to be divided between the driver and his assistant.
Normally, Respondent's operations would shut down during the summer months
when domestic tomatoes are available to the markets, but the operations were
fairly continuous throughout 1947.
Certain of the drivers employed by Respondent in June were already affiliated
with the Union. Organizational activities among the drivers occurred in the
summer or early fall of 1947, and in September or October, after it had obtained
a majority, the Union sought a bargaining conference with Respondent.
Union representatives first visited Respondent's plant and asked to see Holm.
They were directed to see Thomas Gahagan, foreman of Respondent's trucking
operations. Gahagan stated that he knew the drivers were members of the
Union, but that it was his opinion that Respondent could not afford to pay them
higher wages than they were then receiving. He said that he had worked as a
driver but had never found it necessary to affiliate with a union. This meeting,
informal in character, could scarcely be termed a bargaining conference. There-
after, however, the Union's representatives succeeded in obtaining two conferences
with Holm and other officials of the Respondent.
. These meetings occurred in October, and took place in Respondent's office. It
is clear from all the testimony that the Union's representatives obtained these
conferences on their representation that the Union had been designated by the
employees as their bargaining representative, that the Respondent did not question
their representative capacity, and that the meetings were devoted to a discussion
of a contract covering the drivers.
. At the first of these meetings, which appears to have occurred early in October,
the Union's representatives submitted a contract proposal, and Holm ' requested
time in which to study it. The second meeting, held in response to a letter
written to Respondent by the Union, occurred on October 21, and at this meeting
there was discussion on the proposed contract. The testimony of.the witnesses
is in accord that agreement was reached on virtually the entire contract with
the exception of wages.' The Union proposed a mileage rate.of 7 cents, the
prevailing rate in union contracts on the West Coast, whereas, as previously
stated, Respondent was then paying 6 cents. There was also discussion of the
various problems encountered by Respondent in its trucking operations , such as
back-hauls, equipment, and losses that Respondent was incurring in its operation
of the trucks. Holm asked for further time to study the wage proposal , and said
that he would call at the Union's office in Tucson for a copy of union contracts
1 Holm testified : "It seems to me that the first time they [the Union's representatives]
gave us a copy of a proposed agreement, and the second time we went over that agreement
And we were in accord as to practically all of the points in that agreement."
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
then in force on the West Coast. Some 10 days after the October 21 meeting,
Rolm did in fact stop at the Union's office where he was given a copy of the
contract he wished to see.
Without further meetings with the Union's representatives, and without ever
having raised the question of their authority to represent the drivers, Holm,
after communicating by telephone with the Board's Regional Office in Los Angeles,
on November 19 filed a petition for an election with that office. By letter dated
November 21, 1947, the Board's Regional Office notified the Union of the filing
of the representation petition by Respondent. This was the first information
that the Union.had concerning Respondent's action?
On January 8, 1948, representatives of the parties met and entered into a
stipulation for a consent election. Balloting was by mail and the ballots were
opened and tallied in the Board's Regional Office, in the presence of representa-
tives of the parties, at 4 p. m. on January 28. Four out of five eligible voters cast
their ballots and all four voted for the Union.
It appears that only three of the four truck-trailer units were in operation on
January 28. Alden and Everett Everett, drivers in one of these units, returned
from a trip to Respondent's plant on the evening of January 28 or 29. Fred
Roy Brann and Kirby Reed, drivers respectively of the other two units, also
returned from trips on the evening of January 28 or 29. In each case, these
drivers, when they reported on the morning following their arrival back at the
plant, were informed that Respondent was discontinuing its trucking operations
and that they, therefore, were no longer employed. None of these drivers has
been employed by Respondent since.
Following receipt of its certification the Union, ..by letter dated February 3,
1948, requested that Respondent meet its representatives for "the purpose of
negotiating a working agreement" covering its drivers. Respondent replied
to this communication by letter, dated February 10, in which it offered to meet
the Union's representatives, but added:
We deem it advisable, however, to mention at this time that we are dis-
continuing our trucking operation, which, as you know, we have been con-
sidering for sometime now; and three of the tractors and trailers are
standing idle, one of which was in a wreck out of El Paso in December
and the other two have been parked. The fourth unit is due back from a
trip in the next day or so with the last driver we have in our. employ.
The meeting requested by the Union occurred at Respondent's office on Feb-
ruary 24. At this meeting, Respondent reiterated the position it had expressed
in its letter, i. e., that it was discontinuing its trucking operation, and there-
fore no basis existed for continued collective bargaining. The Respondent has
adhered to this position, and though at the hearing it again stated that it was
willing to meet with the Union's representatives, this clearly was and remains
but an empty gesture in view of its position that it no longer has drivers in
its employ.
. 2 Holm testified that in a telephone conversation he advised Winschanz of the filing of
the petition, and that the latter said it was not necessary inasmuch as the Union repre-
sented the employees. "He seemed annoyed at our having followed that course," Holm
testified. I am convinced, on the basis of the credible testimony of the Union's representa-
tives,. that the Union had no knowledge of the filing of the petition until they were notified
of it by the Board's office. The conflict in the testimony, however, is not very material
inasmuch as Holm admitted on cross-examination that his telephone conversation with
Winschanz on November 16 was tantamount to an announcement that Respondent would
refuse further bargaining conferences with the Union until after the. election had been
held.
WALTER HOLM & COMPANY 1179
B. The issues
1. The Union's representation of a majority in an appropriate unit
There is no dispute as to the appropriate unit. It is, as agreed upon by
the parties:
All truck drivers employed by the Respondent, excluding all other produc-
tion and maintenance employees, guards, professional employees, and super-
visors as defined in the Act.
The certification of the Union on the basis of a consent election in which all
the ballots cast were favorable to the Union, establishes the Union' s representa-
tive status, and is corroborative of the testimony of the Union's representatives
that the Union had been designated by a majority of Respondent's drivers
from a date in September or October 1947, when the Union first requested
recognition and collective bargaining of the Respondent. Accordingly, it is
found that at all times material herein the Union was the representative of
the employees in the appropriate unit, described above, for purposes of collective
bargaining.
2. The refusal to bargain
On the basis of the entire testimony, I am convinced that at no time, from
and including the date of the first conference between union and respondent
representatives in the fall of 1947, did Respondent have a bona fide doubt
of the Union's representative status. At the first meeting between union repre-
sentatives and Gahagan, Respondent's truck foreman, Gahagan told these repre-
sentatives that he knew the drivers were members of the Union. Holm ad-
mitted that Gahagan told him the drivers were members of the Union; that he
knew the drivers could not unload in certain markets unless they were affiliated
with a union, and that was how he "came to know that they were all members
of a union." Holm qualified this admission, 'however, by testifying, "Well, I
have always understood that they were members of a union, but I didn't know
whether it was the A. F. of L. or the C. I. O. or anything else." This testimony
is not credible.
The drivers' union affiliation appears to have been common knowledge, and had
Holni entertained any real doubt on the score of which union they were affiliated
with, he most assuredly would have raised the question with the Union's repre-
sentatives when they came to call on him. Not only did lie not raise the ques-
tion with them, but he actually entered into negotiations on a contract with
them. His denial, on cross-examination, that he ever actually recognized
the authority of the Union to represent the drivers, because they came "in a
rather mysterious and secretive manner," is belied by the fact that the two bar-
gaining conferences on the contract were held pursuant to the Union's written
request for such conferences and upon appointed dates, and the fact that actual
bargaining ensued, bargaining which resulted in agreement on all points of
the Union's proposed contract except the issue of wages.
These being the circumstances, Respondent's act in petitioning for an election,,
without ever having raised the question of the Union's bargaining authority
with it and after having negotiated with it on a contract, was patently a
"stalling" maneuver.
On the very day the ballots were counted, or the day after, without consulta-
tion with the Union, Holm instructed his truck foreman to release all drivers
then in Respondent's employ, and to notify them that Respondent was discon-
1180 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
tinning its trucking operations. Thereafter, ' when further negotiations on a
contract were requested by the Union, Respondent, while agreeing to meet with
the Union's representatives, refused further negotiations on the ground that it
was discontinuing its trucking operations. It is too well settled to require
comment that a more willingness to meet with representatives of the bargaining
authority does not constitute collective bargaining.
The remaining, and focal issue, is whether Respondent was justified in its
refusal, on and after January 28, 1948, to bargain with the Union.
3. Respondent's defense
. Respondent's defense to the refusal to bargain, is: (a) that on January 28,
1948, Respondent decided to discontinue its trucking operations; that it has
since discontinued its trucking operations ; that it no longer has drivers in its
employ, its trucking equipment now being operated by independent contractors
under lease agreements executed by The Mexican Produce Company and the
said alleged independent contractors; (b) that the said action was motivated
solely by economic considerations; (c) that the said action was an exercise of
managerial prerogative concerning which it was under no duty to bargain with
the Union.; and (d) that The Mexican Produce Company is a necessary party
respondent herein.
These matters will be discussed seriatim.
(a) As stated, when Respondent's drivers reported at Respondent's Nogales
plant on January 29, they were advised that Respondent was discontinuing its
trucking operations and were discharged.' Whether Respondent actually dis-
continued its trucking operations is one of the primary issues to be resolved.
In support of its position, Respondent introduced in evidence four documents
which are purported to be leases of three of the four trucks which Holm pur-
chased for the use of Respondent. These leases are dated March 30, 1948, and
run between The Mexican Produce Company, as lessor, and the following three
individuals, as-lessees: Jimmie Lee Britton, Robert C. Harker, and William B:
Fleming. It is Respondent's contention that, by virtue of their status as lessees
under these agreements, these individuals are independent contractors and
therefore not employees within the meaning of the Act. Consequently, Re-
spondent argues, the unit of drivers represented by the Union has ceased to
exist.
Britton was employed by Respondent as a driver from July 1947 to on or about
December 28, 1947. He testified that he quit on this latter date because he
could not get along with Gahagan, Respondent's truck foreman. In December,
he had approached Holm with a proposal that the latter purchase for his,
Britton's, use, a light-weight truck, but nothing came of the proposal at that
time. Britton saw Holm again on or about February 2, 1948, at which time
Holm told him that he was considering selling the trucks. On February 4,
Britton had a second conversation with Holm, in which the latter asked him
if lie could make a $1,500 down payment on the purchase of one of the trucks, to
which Britton replied that he could not, but that he "could take the truck, run
it, and ... work the truck out, let the truck pay for itself." "What did
he [Holm] say to that?" Britton was questioned on cross-examination, and
testified, "He said-well, he said, `Back it up to the dock and I will load it.' Is
8 January 29 is the date appearing on Respondent ' s pay -roll records of the termination
of employment of the four drivers, named above. - -
WALTER HOLM & COMPANY 11'$1
Britton left with- a load of Respondent's produce on February , 5 and was
gone; for approximately 2 weeks. It was agreed that he would be paid for
this trip on a basis of the poundage hauled.instead of the mileage rate which had
been the method of compensation paid by Respondent to its drivers prior to
January 29. The following is an excerpt from Britton's cross-examination :
Q. Was that your whole arrangement, you were to be paid on that trip
by the pound?
A. Yes, sir.
Q. Did that continue until you signed this lease agreement?
A. Yes, sir.
Britton later qualified this testimony by saying that there was an "oral arrange-
ment" for the purchase of the truck. -
Harker, who, according to Britton's testimony, accompanied Britton on this
February trip as the latter's assistant driver, was also a former employee of
Respondent. He left Respondent's employ on or about January 6, 1948, when
the truck he was driving was "taken over." by the Everett brothers, because, as
he testified, they were "older [in terms of seniority] drivers" than he was. Ac-
cording to Harker, he first talked to Holm about the purchase of one of the
tracks' on or about, February 15 or 16. Holm asked him if he could.make 'a
`$1,00 down payment, Cud,' later, ` Harker informed Holm that he could not
raise the money for a down payment but proposed that Holm let him have one
of the trucks for 90 days, on the same basis, apparently, as Britton was then
operating. A few days later Holm accepted Harker's proposal and Harker then
began driving one of the truck-trailer units. Holm agreed to pay Harker the
same rate that he paid independent truckers, and, according to Harker, they
had an agreement on the purchase or lease of the truck which "would be oral
from that time until we' did make a contract." Harker was paid by Respondent
on a poundage basis,'as was Britton.
Fleming, who had had no prior association with the Respondent except as
a driver for an independent trucker who handled some of Respondent's produce,
'talked'to'Holm in February about buying one of-the trucks. He later advised
Holm that he was unable to make a' down payment and asked for the same
"arrangement that had been made with Harker and Britton. On such an oral
arrangement, and at the same rate of compensation received by Harker and
Britton, he began trucking for Respondent on or about March 30. He did not
actually sign the lease agreement until about April 18 or 20, though it is dated
March 30.
From the foregoing, it is clear that Respondent shut down the operation of
its power units after January 28 for only a short time. Britton started driving
one of these units on February '5, Harker shortly thereafter, and Fleming in
March. These were the three units in operation at the time Respondent allegedly
decided to discontinue its trucking operations. The fourth unit had been idle
since a date in December when it was wrecked. It is also clear that, at least
until the execution of the leases which were dated March 30 but in the one
instance not executed until April 18 or 20, none of the three men had the status
of independent contractors, inasmuch as whatever oral agreement they may have
had concerning the contemplated sale or lease of the trucks, it was much too
tenupus and indefinite to constitute a contractual relationship. In fact, there
could hardly be said to have been any agreement at all in this respect, since ad-
mittedly several drafts of a lease agreement were prepared before one was
finally found to be mutually agreeable. The only real agreement was the rate
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of payment. Respondent exercised complete control over both the drivers and
its equipment, at least until the formal leases were executed, and for the said
period, at least, these drivers were its employees.'
It is apparent, therefore, that Respondent did not actually discontinue its
trucking operations on January 28. It merely shut down those operations for
such time as it took to arrange new terms of employment with a new set of
drivers. When Respondent met with the Union's representatives on February 24,
it then had in its employ at least two drivers, the leasing of the equipment had
not yet been effectuated, and regardless of its plans for future operations Re-
spondent was under a duty to sit down with the duly designated representative
of the unit of drivers and to bargain with it.
Next, it is to be seen whether the leases when executed gave the lessees the
status of independent contractors, thus taking them out of the Act's definition
of employees. It is on this basis that Respondent contends it has discontinued
its trucking operations.' Obviously, if Respondent merely changed its mode of
trucking operations, it was not thereby released from a duty to bargain.
The so-called leases, all dated March 30, 1948, cover only the trucks, sometimes
called tractors or truck-tractors, whereas a trucking unit is composed of both
truck and trailer. Under the agreements, the lessee contracted to pay $6,000 as
"rent" in monthly installments of $175 for the first year, and in' lesser amounts
on subsequent years, until the total was paid, at which time the lessee was given
the option of purchasing the truck for the sum of $1. The independent con-
tractor status of the lessee, however, is clouded by contractual limitations on
his use of the equipment which gives the Respondent virtually absolute control
over his operations.
Thus, the lessee "warrants and covenants that in operating said truck he will
carry merchandise only between the city of Nogales and other places in the
United States, and intermediate points and that each and every trip of said
truck shall begin and terminate at Nogales, Arizona, unless otherwise expressly
authorized by the Lessor." [Italics supplied.] It is further provided that the
leased equipment shall be used in the transportation "as a carrier of goods, wares,
merchandise and produce," and that the lessee shall pay to the lessor the net
amount of all moneys received from the operation of the equipment, the said
amounts to be applied against advances or loans, if any, made by the lessor to
the lessee, any balance remaining to be credited towards payment of the stipu-
lated "rental" on the equipment. At the end of each trip the lessee is required
to provide the lessor "with an itemized statement showing miles traveled and
destinations and operating and maintenance costs in detail." Finally, in a
supplemental agreement executed on June 11, 1948, it is provided that the leased
equipment "will be parked at Nogales, Arizona, until profitable operations can
be resumed"-that is, until Respondent resumed its operations after the seasonal
shutdown-and that "during the time that the tractor is parked it will not be
driven or operated by any other person."
4As Holm, himself, testified concerning his transaction with Britton, when Britton first
began trucking Respondent's produce : "I didn't know at the time whether it would be an
outright sale or what kind of a contract could he drawn up."
5It may be argued that this matter is not material to a resolution of the issues framed
by the complaint in this case, inasmuch as it is alleged that the transfer of equipment was
fictitious and undertaken in avoidance of the duty to bargain. If, on the other hand, the
lessees do not have the status of independent contractors but remain employees of the
Respondent, the so-called lease agreements leave the Respondent's duty to bargain un-
affected. In view of these considerations, an examination of the lease agreements is
indicated.
WALTER HOLM & COMPANY 1183
When the foregoing is considered in conjunction with such additional circum-
stances as Respondent 's retention of complete control over its trailers which it
"rents" to the lessees ; the lessees' financial dependence on Respondent for "ad-
vances" sufficient to cover the expense of each trip , including repairs on the equip-
ment; the fact that the license tags on the leased equipment are in the name of
Walter Holm & Company and gas permits are issued in the same name, and the
lessees have only chauffeur's licenses whereas if they were independent con-
tractors they would be required under State law to obtain permits as common
carriers and to post certain bonds ,' it seems clear that a no time has Respondent
actually discontinued or relinquished control over its trucking equipment. The
latitude allowed the lessees in " routing" their hauls is inconsequential inasmuch
as every trip must begin and end at Nogales, and may include only such "inter-
mediate points " as lie between Nogales and the destination to which Respondent's
produce is hauled. That Respondent has reserved to itself use of the "leased"
equipment to the degree that it deems desirable , is demonstrated by its retention
of the trailers without which the trucks could not haul produce unless other
trailers were obtained, and the supplemental agreement of June 11 , 1948, by which
the leased equipment is rendered idle during such times as Respondent's own
operations are at a standstill. The latitude allowed the lessees in the selection
of their own assistant drivers is an element to be considered , and has been con-
sidered, but of itself has insufficient weight to establish their independent con-
tractor status.' The basic test of independent status is whether the contractor
actually has control of the direction and carrying out of his operations ; such
control is signally lacking here.
Stripped to their essentials, the so-called leases are not leases at all but are
contracts of employment, by which the employee, by making the stipulated monthly
payments, may eventually acquire ownership of the equipment. Insofar as actual
payments for the so-called "rental" of the equipment are concerned, no such
payments have been made and Respondent has taken no steps to enforce the
said payments. As of the date of the hearing, outside of the matter of the stip-
ulated "rentals, " the lessees were indebted to the Respondent on advances made
to them, in the sum of several hundred dollars.
It is found that while purporting to do so, Respondent has not discontinued its
trucking operations but has merely changed its mode of operations, and that the
so-called lessees of its trucks are not independent contractors but Respondent's
employees and, as such, are fully accountable to Respondent for the trucking
of its produce and the operation of its truck-trailer equipment s
6 This finding is based on the credible testimony of Jack Buzzard , the director of the
Motor Carrier Division of the Arizona Corporation Commission. Buzzard admitted that
there were numerous violations of these requirements and that enforcement was lax due
to an insufficiency of funds. Respondent argues that inasmuch as Respondent never
complied with these regulations itself, it is immaterial that the lessees did not either.
But inasmuch as Respondent was trucking , mainly, its own produce , there may have
existed some reason for its belief that the requirements were not applicable to it ; no such
basis would exist for a similar conclusion on the part of the lessees , if they in fact
regarded themselves as independent contractors engaged in the trucking of produce for hire.
It appears that the lessees used assistant drivers only occasionally.
Britton ' s testimony is illustrative of the lessees ' own state of mind relative to their
status:
Q. Do you represent yourself there [ when crossing State lines ] as a contract hauler?
A. I do not.
Q. flow do you represent yourself?
A. I don't represent myself as nothing only a truck driver.
Harker testified concerning the gas permit required on entering a State, that it was
issued in the name of the "carrier ," Walter Holm & Company.
1 ,184 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
_(b) . It 4s needless to review .in detail all.of: the evidence on the profitableness,
or lack of it, of • Respondent's trucking operations. As testified by. Holm, the
purchase and operation of the truck-trailer units represented a "new venture"-
him, and it is accepted as fact that the venture did not prove profitable.
Back-hauls were fewer than had been anticipated, and a large expense was
incurred in the repair and maintenance of the units. The practical result was
that the Respondent's trucking operations showed a loss when compared to
the cost of handling the same produce through independent truckers. There
was, therefore, economic justification for Respondent's decision to change its
mode of operations. The manner in which the change was effectuated, however,
and the. timing of it, are factors which cannot be glossed over in a realistic
evaluation of the total situation.
Holm admittedly had been advised from the first to lease the power units
to the drivers and thus make them responsible for their repair and maintenance.
It was not, however, until he had been apprised of the Union's victory in the
bargaining, election of January 28,0 that he instructed his truck superintendent,.
Gahagan, to discharge the drivers and, a week later; let Gahagan go also. It
is accepted as fact that on or about January 27 he had been advised by repre-
sentatives of the White Motor Company, from whom the power units had been
purchased, that the said company would not bear the expense of repairs on
certain of the units inasmuch as it was the opinion of this company's repre-
sentatives that the damage to the units.was due to the negligence of the drivers.
This question had been raised previously, Gahagan contending, for the most
part, that the breakdowns were due to defects in the machines. It cannot be
said that Holm was taken by surprise by the company's refusal, on January 27,
to bear this expense." Furthermore, by his own admission, he had been con-
templating "discontinuing" his trucking operations as early as the fall of 1947
when he filed his representation petition with the Board's Regional Office, and
had been advised repeatedly to lease the equipment to the drivers. His pre-
cipitate action in shutting down his trucking operations on the very day
following the Union's victory at the polls, and refusal thereafter to bargain
with the Union, on the ground that he was discontinuing his trucking opera-
tions, convince the undersigned that he was not moved solely by economic
considerations but desired to have a "free hand" in dealing with his drivers.
This conclusion is strengthened by the fact that as of the date he discharged
his drivers he had reached no decision concerning his future mode of handling
his truck-trailer units, and within a few days had worked out a "deal" with
new drivers to keep certain of the power units in operation ^1 Still another
factor, bearing on his motivation, is his refusal to extend to those drivers who
Olt was Carl J. Winschanz' credited testimony that when the ballots had been counted
on the afternoon of January 28, Baxter, Respondent's representative at the polls, stated
that he would notify Holm of the results by telephone. Holm did not deny that he was
so advised on that date.
10 The White Motor Company had previously "made good" on certain repairs. However,
prior to January 27, this company's representative, Leslie M. Shaw, had advised Holm
that the company would not bear the expense of extensive repairs which Shaw attributed
to the fault of the drivers, and it was in protest of Shaw's attitude in the matter that
Holm demanded a further investigation which resulted in the presence of company rep-
resentatives at the Nogales plant on January 27.
.11 Respondent's indecision concerning the future disposition of its power units is shown
by Holm's efforts to obtain substantial down payments from prospective buyers, his tenta-
tive arrangements with Britton and Harker, and the whole congeries of incidents attending
the January 29 shutdown. He testified concerning his arrangement with Britton, "I didn't
know at the time whether it would be an outright sale or what kind of a contract could
WALTER HOLM & COMPANY 1185
voted in the bargaining election, any real consideration in arriving;at anagree-
ment with him for the further operation of the trucking equipment's
(c) It has been found that Respondent did not actually discontinue its truck-
ing operations on January 29, 1948, when it discharged its drivers, but shut down
the said operations for such time as was required to procure new drivers on
such terms as Respondent deemed desirable in its future operations. This action,
going to the very root of tenure and conditions of employment, was eminently a
bargainable matter. There is no merit, therefore, in Respondent's contention
that the said action was the exercise of managerial prerogative concerning which
it was not required to bargain.
(d) It is argued that The Mexican Produce Company is a necessary party
respondent herein, inasmuch, as the power.units here involved were purchased
by it and are registered in its name, and the leases of the said equipment, dis-
cussed herein, run between it and the individual lessees. I agree with Respond-
ent's counsel that The Mexican Produce Company is not the alter ego of the
Respondent. I do not agree that it is a necessary party respondent, although
it might properly have been joined as a respondent herein, in my opinion. It
was not so joined and. the time for service had elapsed at the time the General
Counsel, during the hearing, moved to amend the complaint by naming it a
respondent.
While the truck-tractor units were purchased by The Mexican Produce Com-
pany and have not been transferred to the Respondent, they, admittedly, were
purchased for the use of the respondent company and have continuously, when
and as needed, been used for the trucking of Respondent's produce. Inasmuch
as they were made in avoidance of Respondent's duty to bargain collectively, the
so-called lease agreements executed by The Mexican Produce Company and the
individual lessees, are void insofar as they would prevent or in any way impede
performance of its statutory duties.
It is noted that the lessees under these agreements are bound by its terms
to handle Respondent's produce when and as needed ; that the advances to the
lessees, which in fact amount to compensation for their services, are paid by
lie drawn up." Two excerpts from his cross-examination illustrate his own indecision
and confusion in the matter.
Q. . . . you have never offered them [the tractors] for sale to anyone?
A. No, I have, not.
Q. Or discussed that possibility?
A. No, I have not.
a s s s s e a
Q. Just when did you decide to sell the equipment with no down payment? -
A. Oh, it must have been around the first of March.
Q. Not until the first of March?
A. The latter part of February.
12 Everett Everett, after he had been discharged, approached Holm concerning the pur-
chase of one of the tractors. Holm said he would require a 25-percent down payment.
Everett later advised Holm by letter that he would be unable to accept this offer, but
added, "However if anything new should break I would like to be notified of it. Maybe
we could come to some kind of an agreement." Holm never replied to the letter. Brann
also approached Holm in the matter of purchasing one of the tractors, and was asked if
he could make a partial down payment. He replied that if the "deal" was right lie could
raise the cash. Holm said he would let Brann know "in a few days." Brann did not
thereafter hear from Holm, although he told Holm that he was going to work in his
father's machine shop which was situated less than a mile from Respondent's plant. In
marked contrast was Ilolm's ready acceptance of Britton's offer to take one of the power
units out, without any down payment, and his so-called leasing of the equipment which
has resulted in no payments whatever being made toward the purchase of the equipment.
877359-50-vol. 87-76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent, and that- such accounting of their operations as is required by
the leases, is made to the Respondent and duly entered on its books. It is clear
therefrom' that the Respondent-, and not The,Mexican Produce Company, stands
in the relation of employer to the lessees, under the said agreements.
Finally, it is clear that through Walter Holm, president, treasurer, and, by
his own definition, "practically" the sole owner of both The Mexican Produce
Company and the Respondent," Respondent is capable of executing such measures
as may be required for effectuating the policies of the Act"
C. Swmmary and Concluding Findings
After-at least two bargaining conferences with the Union's representatives in
October 1947, in which agreement was reached on virtually all of the Union's
proposals for a contract except the rate of pay, Respondent, without consultation
with or notification to the Union, filed with the Board's Regional Office in Los
Angeles, a petition for a bargaining election. This petition was not filed in good
faith for Respondent entertained no bona fide doubt of the Union's authority
to represent the drivers, and was even then, according to the admission of its
President, Holm, contemplating, the discontinuance of its trucking operations 16
A consent agreement for an election was executed by Respondent and the Union,
the election held, and ballots were counted in the presence of representatives of
the Respondent and the Union on the afternoon of January 28, 1948. Of five
eligible voters, four cast their ballots and all voted for the Union. On the
following day, without consultation with or notification to the Union, Respondent
discharged and locked out all its drivers, telling them that it was discontinuing
its trucking operations. Thereafter, when requested to do so by the Union,
it met with the Union's representatives but refused to bargain concerning its
drivers, on the pretext that it was discontinuing its trucking operations and that
the unit of drivers, represented by the Union, had ceased to exist.
With but short delay, and without affording an equal opportunity to the
drivers it discharged on January 29 to come to terms with it, Respondent entered
into tentative oral agreements with new drivers for trucking Respondent's produce
and later executed what were purported to be lease agreements, making the
drivers responsible for the repair and maintenance of the trucking equipment
but reserving to Respondent virtually absolute control over their operations.
Under the agreements, the lessees contracted to make. monthly payments as
"rental" on the equipment but no such payments have been made and Respondent
has taken no steps to enforce such payments. It has been found, contrary to
the Respondent's contentions, that the lessees under these agreements are not
independent contractors but employees of the Respondent, accountable to the
Respondent for their use and disposition of the equipment, dependent on it for
"advances" or loans without which they could not carry on their operations, and
13 Excerpt from Walter Holm's testimony on cross-examination
Q. Are you virtually the sole owner of these two companies?
A. Practically so.
11 Excerpt from Walter Holm's testimony on cross-examination
Q. Was the title to this equipment ever transferred over to the Walter Holm &
Company?
A. No, it hasn't been, but for all practical purposes it has belonged to the Walter
Holm & Company.
16 "Our experience shows, and it is common knowledge , that where an employer sincerely
doubts the majority status of a union that is claiming such status, the employer will
normally refuse to bargain with the union until the status is proved." Atlanta Journal
Company, 82 NLRB 832, decided April 7, 1949.
WALTER HOLM & COMPANY 1187
paid by it on a poundage basis. Respondent has not, therefore, as contended by
it, discontinued its trucking operations but has merely changed its mode of
operations.
Having suffered financial loss from its trucking operations, it was but natural
that Respondent should seek new methods of operation. But neither economic
loss nor threat of loss provides a justification for a refusal to bargain with the
employees' chosen representative. Assuming, therefore, that Respondent's pri-
mary motivation in changing its mode of handling its trucking operations was
economic in character, it nevertheless was under a duty not to act unilaterally
in the matter but to submit it to the orderly and frequently fruitful processes
of collective bargaining. In no event would it have been required to continue
a mode of operations which it bad found unduly costly and burdensome. It was
not required to reach an agreement with the Union in order to fulfill its duty
under the Act. It was required to submit bargainable matters to discussion
around the bargaining table, with an hopest desire to reach a solution of its
problems through collective bargaining. This it failed to do. And the under-
signed is convinced that it was in avoidance of this duty imposed on it by the
Act, that it summarily discharged its drivers on the day following the bargain-
ing election of January 28, 1948, and thereafter entered into the so-called lease
agreements with a new set of drivers. These agreements, made in avoidance
of Respondent's duty to bargain with the Union as the representative of its
drivers, must fall, to the extent that their maintenance would impede or pre-
vent the execution of such measures as are required to effectuate the policies
of the Act. This is true whether or not the lessees under the agreements are
deemed to have the status of independent contractors."
There was some evidence that Thomas Gahagan, Respondent's truck foreman,
made certain statements of a coercive nature. This evidence is not sufficiently
convincing, in the face of Gahagan's denials contained in his deposition, to
warrant a finding of independent violation of Section 8 (a) (1) of the Act.
I also find that Holm never voiced antipathy toward the Union. From this it
is argued that there is insufficient "background" of antiunion statements to
support findings of unfair labor practices. The fact is that Holm apparently
was willing enough to have his drivers affiliated with the Union, and to deal
with the Union as their bargaining representative, as long as this seemed ad-
vantageous to his interests. It was not because of any deep-seated antipathy
toward the Union, as such, that lie broke off bargaining in the fall of 1947 and
refused to renew it thereafter, but because he was unwilling to meet the Union's
demand for a wage increase, and wanted a "free hand," sans collective bargain-
ing, in working out a new and more profitable mode of trucking operations.
His actions, rather than his words, bespeak his true motivations.
On the basis of the entire record, it is found that Respondent by its unilateral
action on or about January 29, 1948, in discharging its drivers and shutting clown,
temporarily, its trucking operations, and by its refusal thereafter to negotiate
with the Union as the bargaining representative of its drivers in an appropriate
unit, violated Section 8 (a) (5) of the Act, thereby interfering with, restraining,
and coercing its employees, in violation of Section 8 (a) (1) of the Act.
It is found that on January 29, 1948, Respondent discharged and locked out
its employees, Alden Everett, Everett Everett, Fred Braun, and Kirby Reed
10 The principle established in a long line of cases dealing with contracts made between
an employer and a company-dominated union in avoidance of the employer's duty to bargain
with the employees' duly constituted representative, is applicable here.
1188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because of their membership in a labor organization and in avoidance of its
duty to bargain collectively, thereby discouraging membership in a labor or-
ganization, in violation of Section 8 (a) (1) and (3) of the Act.
It is alleged that Calvin Reed, a driver, also was discriminatorily locked out
and discharged. Calvin Reed was on the list of those eligible to vote in the
bargaining election, but he did not vote. Neither did he testify at the hearing.
Respondent's pay-roll records show that Calvin Reed's employment was ter-
minated on January 7, 1948. These being the circumstances, it will be recom-
mended that the complaint be dismissed as to Calvin Reed.
IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON COMMENCE
The activities of the Respondent set forth im Section III, above, occurring
in connection with the operations of Respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend'to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor prac-
tices affecting' commerce, it will be recommended that it cease and desist there-
from and take certain affirmative action which the undersigned finds is re-
quired in order to effectuate the policies of the Act.
The Respondent having on January 29, 1948, locked out and discharged its
employees Alden Everett, Everett Everett, Fred Brann, and Kirby Reed, be-
cause of their union affilation and activities and in avoidance of its duty to
bargain collectively, it will be recommended that Respondent offer to each of
them immediate and full reinstatement to his former or substantially equivalent
position,' without prejudice to his seniority and other rights and privileges,
and make each whole for any loss of pay he may have suffered by reason of
Respondent's discrimination against him, by payment to each of a sum of
money equal to the amount he normally would have earned as wages from
January 29, 1948, the date of the discharge, to the date of Respondent's offer of
reinstatement, less his net earnings during that period.18
It having been found that the Respondent, while purporting to discontinue
its trucking operations through the device of so-called lease agreements executed
by The Mexican Produce Company and certain individuals, has in fact.continued
to employ drivers, it will be recommended that the Respondent discharge these
drivers if that is necessary in order to provide for the reinstatement to their
former positions of the four employees named above.
It having been found that the Respondent on and after January 28, 1948,
refused to bargain collectively with the Union as the exclusive representative
of its employees in an appropriate unit, it will be recommended that, upon
request, Respondent bargain collectively with the Union as the exclusive repre-
sentative of such employees with respect to rates of pay, wages, hours, and other
terms and conditions of employment.
The nature and scope of the Respondent's unlawful conduct makes manifest
an underlying attitude of opposition to the purposes of the Act generally to
17 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827.
IS Crossett Lumber Co ., 8 NLRB 440.
0
WALTER HOLM & COMPANY 1189
foster and protect the legitimate activities of employees which have as their
objective collective bargaining through duly authorized representatives. The
preventive purposes of the Act will be thwarted unless the recommended order
is coextensive with the threat. In order, therefore, to make effective the inter-
dependent guarantees of Section 7, to prevent a recurrence of unfair labor prac-
tices, and thereby minimize industrial strife which burdens and obstructs com-
merce, it will be recommended that the Respondent cease and desist from in any,
manner infringing upon the rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 310, Tucson, Arizona, is a labor organization
within the meaning of Section 2 (5) of the Act.
2. All truck drivers employed by the Respondent, excluding all other produc-
tion and maintenance employees, guards, professional employees, and supervisors
as defined by the Act, constitute a unit appropriate for collective bargaining
within the meaning of Section 9 (b) of the Act.
3. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 310, Tucson, Arizona, was on January
28, 1948, at all times material herein has been and now is, the exclusive repre-
sentative of all the employees in the above-described unit for the purposes of
collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing on January 28, 1948, and thereafter, to bargain with the above-
named labor organization as the exclusive representative of employees in the
appropriate unit, Respondent has engaged in and is engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (5) of the Act.
5. By discriminating in regard to the hire and tenure of employment of Alden
Everett, Everett Everett, Fred Brann, and Kirby Reed, thereby discouraging
membership in a labor organization, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8* (a) (3) of the Act.
6. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (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.
8. Respondent has not discriminated in regard to the hire and tenure of em-
ployment of Calvin Reed.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, and upon
the entire record in the case, the undersigned recommends that the Respondent,
Walter Holm & Company, Prepackagers of Fancy Tomatoes, Nogales, Arizona,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, Local Union No. 310,
Tucson, Arizona, as the exclusive representative of its employees in the appropri-
ate unit described above;
1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Discouraging membership in the above-named union, or any other labor
organization, by discharging or refusing to reinstate any of its employees or by
discriminating in any other manner in regard to their hire and tenure of employ-
ment, or any terms or condition of employment ;
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organizations, to
join or assist the above-named union or any other labor organization, to bargain
collectively through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other mutual
aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds is required
to effectuate the policies of the Act :
(a) Upon request bargain with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local Union No. 310, Tucson,
Arizona, as the exclusive representative of all its truck drivers, excluding all
other production and maintenance employees, guards, professional employees,
and supervisors as defined by the Act;
(b) Offer to Alden Everett, Everett Everett, Fred Braun, and Kirby Reed
full and immediate reinstatement to their former or substantially equivalent
positions, without prejudice to their seniority or other rights and privileges, dis-
charging, if necessary, all drivers hired subsequent to January 29, 1948;
(c) Make whole Alden Everett, Everett Everett, Fred Braun, and Kirby Reed
for any loss of pay they may have suffered because of Respondent's discrimina-
tion against them, by payment to each of them of a sum of money equal to the
amount which he normally would have earned from the date of his discharge,
January 29, 1948, to the date of Respondent's offer of reinstatement, less his
net earnings during said period;
(d) Post at its Nogales, Arizona plant, copies of the notice attached hereto and
marked Appendix A. Copies of said notice, to be furnished by the Regional Di-
rector of the Twenty-first Region, shall, after being signed by Respondent's rep-
resentative, be posted by Respondent immediately upon receipt thereof and main-
tained by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said notices are not altered,
defaced, or covered by any other material ; and
(e) Notify the Regional Director for the Twenty-first Region, in writing,
within twenty (20) days from the receipt of this Intermediate Report, what
steps Respondent had taken to comply herewith.
It is further recommended that, unless Respondent shall within twenty (20)
days from the date of the receipt of this Intermediate Report, notify said Re-
gional Director in writing that it will comply with the foregoing recommendations,
the National Labor Relations Board issue an order requiring Respondent to
take the action aforesaid.
It is recommended that the complaint be dismissed insofar as it alleges that
Respondent discriminated in regard to the hire and tenure of employment of
Calvin Reed.
As provided in Section 203.46 of the Rules and Regulations of -the National
Labor Relations Board-Series 5, as amended August 18, 1948, any party may,
within twenty (20) days from the date of service of the order transferring the
case to the Board, pursuant to Section 203.45 of said Rules and Regulations,
file with the Board, Washington 25, D. C., an original and six copies of a state-
ment in writing setting forth such exceptions to the Intermediate Report and
WALTER HOLM & COMPANY 1191
Recommended Order or to any other part of the record or proceeding . ( including
rulings upon all motions or objections ) as he relies upon, together with the orig-
inal and six copies of a brief in support thereof ; and any party may, within
the same period, file an original and six copies of a brief in support of the Inter-
mediate Report and Recommended Order. Immediately upon the filing of
such statement of exceptions and/or briefs, the party filing the same shall serve
a copy thereof upon each of the other parties . Statements of exceptions and
briefs shall designate by precise citation the portions of the record relied upon and
shall be legibly printed or mimeographed , and if mimeographed shall be double
spaced . Proof of service on the other parties of all papers filed with the Board
shall be promptly made as required by Section 203.85 . As further provided
in said Section 203.46 should any party desire permission to argue orally before
the Board , request therefor must be made in writing to the Board within ten (10)
days from the date of service of the order transferring the case to the Board.
In the event no Statement of Exceptions is filed as provided by the aforesaid
Rules and Regulations , the findings , conclusions , recommendations , and rec-
ommended order herein contained shall, as provided in Section 203.48 of said
Rules and Regulations , be adopted by the Board and become its findings, con-
clusions, and order , and all objections thereto shall be deemed waived for all
purposes.
Dated at Washington , D. C., this 20th day of May 1949.
WILLIAM E. SPENCER,
Trial Examiner.
APPENDIX A
, NOTICE TO ALL EMPLOYEES
. Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT in any manner interfere with, restrain , or coerce our em-
ployees in the exercise of their right to self-organization , to form labor or-
ganizations , to join or assist INTERNATIONAL BROTHERHOOD of TEAMSTERS,
CHAUFFEURS , WAREHOUSEMEN AND HELPERS OF AMERICA , LOCAL UNION No. 310,
Tucson, Arizona , or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in concerted
activities for the purpose of collective bargaining or other mutual aid or
protection.
WE WILL OFFER to those employees listed below immediate and full re-
instatement to their former or substantially equivalent positions , without
prejudice to their seniority or other rights and privileges previously enjoyed,
and will make them whole for any loss of pay suffered as a result of the
discrimination.
Alden Everett Fred Brann
Everett Everett Kirby Reed-
WE WILL BARGAIN collectively upon request with the above-named union
as the exclusive representative of all employees in the bargaining unit de-
scribed herein with respect to rates of pay, hours of employment or other
conditions of employment , and if an understanding is reached , embody such
understanding in a signed agreement . The bargaining unit is:
1192 DECISIONS OF NATIONAL! LABOR I RELATIONS BOARD
All-truck -drivers, excluding all other production and' maintenance em=
ployees, guards, professional' employees, and supervisors as defined by the
Act.
All our employees are free to become or remain 'members of the above-named
union or any other labor organization. We will not discriminate in regard to
hire or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
WALTER HOLM & COMPANY, Prepackagers
of Fancy Tomatoes.
Employer.
Dated --------------------
By -------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.