Zanes Ewalt Warehouse, Inc.

National Labor Relations Board - Board Decisions

May 6, 1966

158 N.L.R.B. 708 (N.L.R.B. 1966)

708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Zanes Ewalt Warehouse , Inc. and Zanes Freight Agency, a part-
nership and Merchants Delivery Service, Inc. and Dallas Gen-
eral Drivers, Warehousemen & Helpers, Local Union 745,
affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America. Case No.
16-CA-P2516. May 6, 1966
DECISION AND ORDER
On March 16, 1966,, Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
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 brief, and the entire record
in this case and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed November 12, 1965, by Dallas General Drivers, Warehouse-
men & Helpers, Local Union 745, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called the
Union, against Zanes Ewalt Warehouse, Inc., Zanes Freight Agency, a partnership,
and Merchants Delivery Service, Inc., herein jointly called the Respondent, the Gen-
eral Counsel of the National Labor Relations Board, by the Regional Director for
Region 16, issued his complaint dated December 10, 1965, alleging the Respondent's
violation of Section 8(a)(5) and (1) of the National Labor Relation Act, as amended.
The complaint alleged the Union's certification as the exclusive collective-bargaining
representative of an appropriate unit of the Respondent's employees following a
secret-ballot election conducted under the supervision of the Regional Director, the
Union's subsequent request to the Respondent for collective bargaining on behalf of
these employees, and the Respondent's refusal to bargain pursuant to the request.
The Respondent's answer denied the foregoing allegations as well as numerous other
critical allegations in the complaint. The General Counsel thereupon filed a motion
to strike portions of the answer as "frivolous, false, and sham" and for a finding
that the allegations denied by these portions are true. The General Counsel also
moved that judgment be entered on the pleadings that the Respondent had committed
the statutory violations alleged in the complaint. These motions were referred to
Trial Examiner Thomas N. Kessel for ruling. I thereupon ordered that the motions
158 NLRB No. 73.
ZANES EWALT WAREHOUSE, INC., ETC. 709
be disposed of at a hearing to be held by the Trial Examiner to be designated to
conduct the hearing.
On February 8, 1966, I opened the hearing in the case at Dallas, Texas. All parties
were represented by counsel who were afforded opportunity to participate in the
proceeding. At the outset of the hearing the General Counsel renewed his motions.
During consideration of the motions counsel for the Respondent declared his willing-
ness to amend the answer and to substitute admissions for several of the denials
therein. These amendents were permitted. Thereupon I granted the General Coun-
sel's motion for judgment on the pleadings because the answer, as amended, raised
no triable issue to be resolved by the taking of evidence, and, in effect, constituted
an admission of the statutory violations pleaded in the complaint. The facts,
elaborated below, supporting the finding of Section 8(a) (5) and (1) violation herein
made, are derived from the pleadings and from the Board's official records in Case
No. 16-RC-3891. For purposes of ruling on the motions and for all purposes in
the case I have officially noticed these records.
From the record before me I make the following:
FINDINGS OF FACT
1. COMMERCE DATA
The complaint alleges that Zanes Freight Agency is a partnership engaged in the
business of freight forwarding and local cartage in Texas; that Zanes Ewalt Ware-
house Inc., is a Texas corporation engaged in the business of warehousing and freight
forwarding in Texas; that Merchants Delivery Service, Inc., is a Texas corporation
engaged in the business of warehousing and freight forwarding in Texas; that the
Dallas, Texas, facilities of the foregoing companies are the only facilities involved in
this proceeding ; that the foregoing companies at all times material in this proceeding
are a single, integrated enterprise engaged in the business of warehousing and freight
forwarding maintaining principal offices and place of business in Dallas, Texas. The
complaint further alleges that during the year preceding issuance of the complaint
the foregoing companies singly and jointly in the course of their business operations
derived in excess of $50,000 for services performed for customers outside the State
of Texas and that they singly and jointly handled goods moving in interstate com-
merce valued in excess of $50,000. The answer admits and I find from the foregoing
facts that the Respondent is an employer engaged in commerce within the meaning
of the Act and I further find that the purposes of the Act will be effectuated by the
Board's assertion of jurisdiction in this proceeding over the Respondent's operations.
II. THE LABOR ORGANIZATION INVOLVED
I find , as admitted in the answer, that the Union is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
On March 19, 1965, the parties in Case No. 16-RC-3891 signed a Stipulation for
Certification upon Consent Election which was approved by the assistant to the
Regional Director. The parties agreed therein that all truckdrivers, truckdriver
helpers, order fillers, forklift operators, and warehousemen employed at the Respond-
ent's 2606 Gaston Avenue and 209 Hawkins Street, Dallas, Texas, operations, exclud-
ing all other employees, guards , watchmen , and supervisors as defined in the Act
constitute a unit appropriate for the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
On or about April 22, 1965, a majority of the employees in the foregoing appro-
priate unit in a secret-ballot election under the Regional Director's supervision voted
against representation by the Union. Thereafter, the Union filed timely objections
to the -election which were considered by the Regional Director who, on or about
June 25, 1965, issued his Report on Objections recommending that the election be
set aside and a new election held for the reason that the Union's objection 4 was
sustained.1 Thereafter the Respondent filed timely exceptions to the Regional
Concernin! ,bjection 4 , the Regional Director stated In his report that the employer
(Respondent ) allegedly made a promise of benefits to the employees conditioned upon
rejection of union representation and thereby interfered w'th the exercise of their free
ch(,ice in the election . The promise in question contained in a speech which was read by
the Respondent to its employees was the following:
Once the Union is voted out , we can go back to running our business for a profit
and will be in a better position to share our profits with you In terms of wage In-
creases and other benefits.
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Director's report with the Board which on August 26, 1965, issued a Decision, Order,
and Direction of a Second Election adopting the Regional Director's recommenda-
tions and directing that a second election be held.
On or about September 15, 1965, a second secret-ballot election was conducted
under the supervision of the Regional Director in which a majority of the employees
in the aforedescribed appropriate unit voted in favor of representation by the Union
as their exclusive collective-bargaining representative. On or about September 23,
1965, the Regional Director certified the Union as such exclusive collective-bargaining
representative.
On November 2 and 3, 1965, the Union requested and still requests the Respondent
to bargain collectively with it for terms and conditions of employment for the
employees in the appropriate unit. The Respondent admittedly refused and still
refuses to accede to that request.
The Respondent acknowledged at the hearing that its only defense to its admitted
refusal to honor the Union's certificate and to bargain collectively with it is its
insistence that the Regional Director and the Board erred in their determination
that the election, first held in the representation proceeding and lost by the Union,
should be set aside because of the Respondent's conduct affecting the results of the
election. That conduct, as hereinabove stated, is related in the Union's objection 4
to the election. The Respondent maintains that the second election which resulted
in the Union's victory should not have been held and that the resultant certification
of the Union as exclusive bargaining representative of the appropriate unit is a
nullity because it should not have been issued.
The Board's determinations in the representation case are binding upon me in this
proceeding and may not be relitigated absent a showing by the Respondent that it
has newly discovered or previously unavailable evidence relevant to these determina-
tions. Pittsburgh Plate Glass Company v. N.L.R.B., 313 U.S. 140, 161-162; Ortronix,
Inc., 156 NLRB 3. The Respondent made no showing that it has such evidence.
Accordingly, the Respondent raised no permissible defense to the complaint allega-
tions either by its answer, as amended, or by argument on the General Counsel's
motion at the hearing.
From the foregoing I find that the Respondent on November 2, 1965, refused
and still refuses in violation of Section 8(a)(5) and (1) of the Act to bargain col-
lectively with the Union as the exclusive representative of its employees in the
appropriate unit hereinabove described.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices 1
will recommend that it be ordered to cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Zanes Ewalt Warehouse, Inc., Zanes Freight Agency, a partnership, and
Merchants Delivery Service, Inc., are employers within the meaning of Section 2(2)
of the Act and are engaged in commerce within the meaning of Section 2(6) and (7)
of the Act and together constitute a single integrated enterprise.
2. Dallas General Drivers, Warehousemen & Helpers, Local Union 745, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, is a labor organization within the meaning of Section 2(5) of the Act.
3. On c-id since September 15, 1965, the Union was and has been the representative
for purposes of collective bargaining of a majority of the Respondent's employees in
the appropriate unit hereinabove described. Said unit is appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive representa-
tive of the employees in the appropriate unit on or about November 2, 1965, and
thereafter, 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.
ZANES EWALT WAREHOUSE , INC., ETC . 711
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law, and upon the entire
record in this proceeding , I recommend that Zanes Ewalt Warehouse , Inc., Zanes
Freight Agency , a partnership , and Merchants Delivery Service , Inc., Dallas, Texas,
their officers , agents, successors and assigns shall:
1. Cease and desist. from refusing to bargain collectively with Dallas General
Drivers, Warehousemen & Helpers, Local Union 745 , affiliated with International
Brotherhood of Teamsters , Chauffeurs , Warehousemen & Helpers of America, as the
exclusive collective bargaining representative of their employees in the appropriate
unit hereinabove described.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Upon request bargain collectively with Dallas General Drivers, Warehousemen
& Helpers, Local Union 745, affiliated with International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America, as the exclusive representative of
all the employees in the appropriate unit hereinabove described with respect to rates
of pay, wages , hours of employment and other terms and conditions of employment,
and, if an understanding is reached , embody such understanding in a signed agreement.
(b) Post at their business plants in Dallas, Texas, the attached notice marked
"Appendix ." 2 Copies of said notice to be furnished by the Regional Director for
Region 16 shall, after being duly signed by an authorized representative of the
Respondent , be posted by it immediately upon receipt thereof and maintained by it
for a period of 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 Region 16, in writing , within 20 days from
the receipt of this Decision what steps it has taken to comply therewith.3
2 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 be entorced
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."
31n the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 16, In writing , within
10 days from the date of receipt of this Order, what steps the 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 Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL upon request bargain with Dallas General Drivers , Warehousemen
& Helpers, Local Union 745, affiliated with International Brotherhood of Team-
sters, Chauffeurs , Warehousemen & Helpers of America, as the exclusive
collective-bargaining representative of the employees in the appropriate unit
described below, 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 appropriate unit is:
All truckdrivers , truckdriver helpers, order fillers, fork lift operators,
and "arehousemen employed at our 2606 Gaston Avenue and 209 Hawkins
Strut, Dallas, Texas, operations , excluding all other employees , guards,
watchmen , and supervisors as defined in the Act.
ZANES EWALT WAREHOUSE , INC. AND ZANES FREIGHT AGENCY,
A PARTNERSHIP AND MERCHANTS DELIVERY SERVICE, INC.,
Em plover.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, Sixth
Floor, Meacham Building , 110 West Fifth Street, Fort Worth, Texas, Telephone No.
335-4211, Extension 2145.
W. R. Bean & Son, Inc. and International Brotherhood of Book-
binders, AFL-CIO, Local No. 96. Case No. 10-CA-6196.
May 6, 1966
DECISION AND ORDER
On January 17, 1966, Trial Examiner Thomas S. Wilson issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in certain unfair labor practices and recommending that
it cease and desist therefrom and take certain affirmative action, as
set forth in the attached Trial Examiner's Decision. Thereafter, the
Respondent filed exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board 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 Trial
Examiner's Decision, the exceptions, brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the modifications indicated
below.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, W. R. Bean & Son, Inc.,
Atlanta, Georgia, its officers, agents, successors , and assigns, shall
take the action set forth in the Trial Examiner's Recommended Order,
as so modified.
1. Delete paragraph 1(b) of the cease and desist portion of the
Recommended Order and substitute therefor the following new para-•
graphs 1(b) and (c) :
"(b) Interfering with, restraining, or coercing its employees by
creating the impression of surveillance of its employees union activi-
ties, and by threatening employees with layoffs and reductions in the
hours of overtime work available and by promises of, or threats of loss
158 NLRB No. 64.