Merchants Motor Freight, Inc.

National Labor Relations Board - Board Decisions

Aug 15, 1944

57 N.L.R.B. 1340 (N.L.R.B. 1944)

III the Matter Of MERCHANTS MOTOR FREIGHT, INC., and INTERNATIONAL
ASSOCIATION OF MACHINISTS, DISTRICT 77, A. F. OF L,
Case No. 18-C-1034.-Decided Ai qu,st 15, 1944
DECISION
AND
ORDER
On May 24, 1944, the Trial Examiner issued his Intermediate 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 Intermediate Report
annexed hereto. Thereafter, the respondent filed exceptions to,the
Intermediate Report and a brief. None of the parties has requested
a hearing before the Board for the purpose of oral argument, and none
has been held.
The Board has considered the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. , The Board has considered the Intermediate
Report, the, respondent's exceptions and brief, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following nmodifications:
The incident of February 1942, involving the exclusion of a union
organizer from company premises by the respondent's operating man-
ager, as related in the Intermediate Report in the section captioned
"Background," is treated by the Trial Examiner as evidencing an
attitude of union hostility on the part of the respondent. We do not
agree. We take no exception to a non-discriminatory application of
an employer requirement that a unioli organizer seek permission of
management as a condition to entry upon company premises for the
purpose of soliciting employees to join a labor organization. How-
ever, we 'agree with the Trial Examiner's conclusion that Manager
Judd's statement to the union organizer that "he (Judd) didn't need
any union to handle the labor relations" indicated a feeling of hostility
on the part of the respondent toward labor organizations. In any
event, since the time of the incident antedates March 1, 1944, the date
alleged in the complaint as the date on or about which the respondent
57 N. L. it. B., No. 204.
1340
MERCHANTS MOTOR FREIGHT, INC. 1341
began its unfair labor practices, we, like the Trial Examiner , regard
the incident only as background material for the purpose of evaluating
the respondent's acts and statements falling within the scope of the
complaint. ,
The respondent has excepted to the failure of the Trial Examiner
to credit the versions of its witnesses as to conversations of its super-
visors with employees Rawlings and Linde, who, as witnesses for the _
Board, testified in substance, that the respondent 's supervisors ques-
tioned them about union activities and issued warnings that union
organization would result in lesser earnings for the employees. The
respondent's foreman, Ira Mueller, admitted in testimony that he inter-
rogated Rawlings and Linde concerning their union activity while he
was investigating the cause of "slow-downs" in the shop. The, Trial
Examiner heard the witnesses testify and observed their demeanor on
the stand. We see no reason to disturb his resolution of the conflicting
testimony. The respondent argues that even if Foreman Mueller and
Manager Judd told Rawlings and Linde; as they testified, that earnings
would be lessened by unionization, such observations are expressions
of opinion rather than threats, and therefore privileged as free speech.
We hold to the contrary. When Mueller and Judd informed Rawlings
and Linde that union organization of the respondent's employees
would result in shortened hours and correspondingly lowered earn-
ings, they thereby expressed opposition to the organizational efforts
of the Union, coupled with a threat of economic reprisal to the em-
ployees in the event of the Union's success. We agree with the Trial
Examiner that such statements constitute a violation of Section 8 (1)
of the Act.'
The Trial Examiner found that Ray Purdy, an inspector and as-
sistant to Foreman Mueller, made similar statements to Rawlings and
attributed Purdy's statements to the respondent. We find it unnec-
essary to determine whether the respondent is responsible for Purdy's
statements and make no findings based upon such statements.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Merchants Motor Freight,
Inc., St. Paul, Minnesota, and its officers, agents, successors , and as-
signs, shall :
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right of self-organi-
zation, to form labor organizations, to join or assist International
1 See, for example , Peter J. Schweitzer, Incorporated v. N. L. R . B. 144 F ( 2d) 520'
(C A D C.).
`1342 DECISIONS; OF NATIONAL LABOR RELATIONS BOARD
Association of Machinists, District 77; A. F. of L., or any other labor
organization,-to bargain collectively through representatives of their
own choosing, and to engage in concerted activities, for the purposes
of collective bargaining •or other mutual aid or protection, as guarani-
teed in Section 7, of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post immediately in conspicuous places in its shop,at St. Paul,
Minnesota, and maintain for a-period of not less than sixty (60) , con-
secutive days from the date of posting, notices to its employees stating
that the respondent will not engage in the conduct from which it is
ordered to cease and desist in paragraph 1 of this Order;
(b) Notify the Regional Director for the Eighteenth Region;' in
writing, within ten (10) . clays from the date of this Order, what steps
the respondent has taken to comply herewith.
CHAIRMAN -MILLIS took no' part in the consideration of the above
Decision and Order.
INTERMEDIATE REPORT
Mr. Francis A. Helgesen, for the Board.
Mr. George E. Wiard, of St. Paul, Minn., for the respondent.
Mr. Stephen Fischer, of St Paul, Minn , for the Union
STATEMENT OF THE CASE ,
Upon a charge duly filed on March 30, 1944, by International Association of
Machinists, District 77, A. F. of L., herein called the Union, the National Labor
Relations Board, herein called the Board, by the Regional Director for the
Eighteenth Region (Minneapolis, Minnesota), issued its complaint dated April
29, 1944, against Merchants Motor Freight, Inc , St. Paul, Minnesota, herein called
the respondent, alleging that the respondent laid eng' ged in and was engaging
in unfair labor practices, affecting commerce, within the meaning of Section 8
(1) and Section 2 (6) and (7) of the Naitional Labor Relations Act, 49 Stat 449,
herein called the Act. 1
With respect to the unfair labor practices, the complaint alleged in substance:
(1) that from about March 1, 1944, the respondent, by its officers,, agents, and
representatives, warned and discouraged its employees against affiliation with,
or activities on behalf of, the Union; questioned its employees in regard to their
union affiliations ; offered them wage increases for the purpose of influencing
them to abandon their union membership and activity; made disparaging and
derogatory statements about the Union; and advised its employees that they
would not receive any benefits' through collective bargaining; and (2) that by
the foregoing acts the respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act..
Pursuant to notice, a hearing was held on May 11, 1944, at Minneapolis,
Minnesota, before W. P. Webb, the Trial Examiner duly designated by the Chief
Trial Examiner. The Board and the respondent were represented by counsel,
and the Union by its business representative. All parties participated in the
(J- .'MERCHANTS MOTOR FREIGHT, INC. 1343
hearing ' Full opportunity to'be heard, to examine and cross-examine witnesses, -
and to ii)troduce evidence bearing upon the' issues, was afforded all parties. ,
During the course of the' hearing, the respondent filed its answer, in which it
`admitted ceitain'allegations of the complaint in regard to its business, and that
the Union was a'labor`orgamzation, within the meaning of Section 2 (5) of the
Act, but denied all 'material averments of the complaint relative to the unfair-
labor prictices.
At the close of the Board's case, a motion by Board's counsel to conform the
,pleadings to the proof in respect to minor inaccuracies in regard to dates, the
Spelling of names, and other matters not related to the fundamental issues, was
,granted by the Trial Examiner without objection.
Opportunity to file briefs with the Trial Examiner was waived by the parties.
At. the conclusion of the hearing, counsel for the Board, and counsel for the
respondent argued orally, on the record, before the Trial Examiner.,
Upon the'entire record in the case and from his observation of the witnesses,
the undersigned makes the following;
FINDINGS OF FACT
I THE. BUSINESS OF THE RESPONDENT
The respondent,' Merchants Motor Freight, Inc., is a Minnesota corporation,
having its principal office and place of business in St. Paul, Minnesota. It is
engaged in transporting and delivering goods, wares, merchandise, and general
commodities by motor vehicles in and. through the States of Minnesota, Illinois,
Indiana, Iowa, Nebraska, Missouri, and Colorado. It operates as a common
carrier under permits issued to it by the Interstate Commerce commission. It
maintains and operates-various branch offices, terminals, and depots within the
aforesaid States, including its inain office terminal and shop,for repairing the
respondent's trucks, located at 2625 Territorial Road, St Paul, Minnesota'
During the, calendar year 1943 the respondent's gross revenue, derived from the
aforesaid business, was in excess of $1,000,000, of which more than 50 percent
was received from haulage in inteistate commerce About 70 percent of the
freight hauled is for war purposes The respondent admits, for the purposes of
the instant proceedings, that it is engaged in commeice within the meaning of
the Act.
II THE ORGANIZATION INVOLVED
International Association of Machinists, District 77, A. F of L., affiliated with
the American Federation of Labor, is a labor organization, admitting to mem-
bership employees of the-respondentz
Ill. THE UNFAIR LABOR PRACTICES
A Background
Prior to 1942, the respondent's shop employees, consisting of mechanics, greas-
ers and tire men, were unorganized 3 In February, 1942, Stephen Fischer, busi-
ness agent of Local 459, which is under the jurisdiction of District 77, called at
.1 The in proceeding is concerned only with the employees in the St Paul shop.
2 District 77 covets all the locals in the St Paul area Local 459 covers the respondent's
employees' • .
3 The drivers , warehouse and stock employees were organized at that time.
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent's main office in St Paul, at noon time, and began to talk to the
respondent's employees in the shop. He was soon approached byoreman'Her
bert Hanson., After informing Hanson that he was business agent of the Union
and that he wished to talk to the shop employees, he was told that lie would have
to get permission from the office. Hanson took him to the office of Vincent Judd,
the respondent's vice-president and operating manager In respect to his inter-
view with Judd,,Fischer's testimony, which is credited by the undersigned, was
as follows :
I went into the office and told Mr Judd who I was, and he says, "I handle
all the labor relations We don't need no union to handle the labor rela-
tions. Furthermore, you have got to have a permit from the office before you
can go in there." I asked Mr. Judd' whether he would give me the per-
mission to talk to the men during the noon hour, if I asked him for one.
He said, he replied again lie was well capable of handling his labor, relations
and he didn't need any union to handle the labor relations, 'and I told
him, "Then if I would ask you for peinnssion, you wouldn't give me any
permission anyway. If I go in without permission 1 have a few minutes
to talk before you come and throw me out." He bean showing me the
door. He said, "Out this way," pointing to the front door I told him I
had my car parked on the other side of the garage and that is where I
would go. He says, "This way out." He ivas determined "This way out
through the front door " I told him I had my car in back and that is where
I intended to go, so I went through the back'door. Just before I started
going, why he says, "1 get a coupe. of house detectii es" here " I replied
to him, "Don'-t worry, I won't bother your house detectives" and I went on
through the shop again and went to my cat. That was the end of the
conversation.
The Union made no further eifoi t to organize the shop employees until March
1944, at which time Fischer was informed by employee Glenn Dorsey that the
shop employees were dissatisfied and would be wiling to join the Union There
were 17 or 1S employees at the St Paul shop at that time who were eligible for-
membership in the Union On or about March 13, the Union held an organiza-
tional meeting foi the respondent's shop employees Six of them attended and
joined the Union Another such meeting was held on Match 17. Two or three
weeks later, a third meeting of the Union was arranged, but the attendance of
the shop employees was negligible.
B. Interfeieizce, restraint, and coercion
Douglas Rawlings was a mechanic and welder in the respondents shop from
Septeniber 1943 to April 17, 1944. On March 19 or 20, 1944, Foreman Ira Mueller'
told Rawlings that he had heard some of the employees were trying to organize
the shop, and he asked Rawlings what he thought of the union coming in. He
also told Rawings that if the Union got in, the work-week would be cut from
54 to 40 hours, which would mean a cut in pay Mueller also asked Rawlings
if in the event his pay was raised to $1.00 an hour, he would be satisfied and
forget about the Union.5
'4 The respondent admitted that Mueller was a foreman in the respondent' s St Paul shop.
s The findings as to this interview rest upon Rawlings' credible testimony The foreman
admitted that he called the employee to his office and that he queried him about the Union.
Re also admitted promising Rawlings a raise.
MERCHANTS MOTOR FREIGHT, INC. 1 345
In the latter part of March Ray Purdy. all inspector and assistant to Mueller,
told,Rawlings that if the Union came in, the employees would be cut clown to
40 Bouts a week,-as the respondent'vould'not-let them,work more,than,40;hours^
a week °
About March 18 foreman Mueller asked Robert Linde, a greaser in the shop,
what ,he thought of the Union. Linde replied that he understood, if the Un-on
came in, the employees would get time and a half for all work over 40 hours a
week, whereas they were then working 54 hours a week and getting only straight
time Mueller replied "`,'ell, if the union gets in, you will only get 40 hours
You will snake less money so you w'on't be gaining anything."
In the latter part of March, Linde was told by Foreman Mueller that Manager
Judd wanted to see bull in the office. Upon ailiving at the office, he was told
by Judd "I understand you are involved with the union." Linde replied in the
attiunative Judd then said "flow long has this been going on? . . . Are
am, of the. boys signed 'up or any,thing" Linde,replied that quite a sew- of
them had signed up Judd sand, "Well, I don't think you will gain anything by it
because you are working 54 bouts now, and if the union gets in you will work
only 40 hours, and you won't get no 40-no time and a half for over 40 hours
because you will only work 40 houi s " Judd further asked Linde what i ntet est
lie had in the Union.-and if lie had any grievances that would cause him to join
the Union Judd further said to Linde "I-don't think the Union will have much
of a chance because it,took the drivers three years to organize the union and
they got a union down in Des Moines that only works 40 hours, and they are
store Strict clown there, and in St Paul they are more lenient because we are
non-union."
Concluding Findings
The respondent's hostility toward the Union organizing the St Paul shop dates
from the initial effort of the Union in On, sprung of 1942 Fischer, the Union's
representative, was not permitted to enter the shop and talk to the employees.
Ile was informed by Manager Judd that he was quite capable of handling labor
relations and that lie did not need any union in the shop The Union ceased
i 1 s effoi is to organize the shop employees and no flu ther effort was made until
about 2 years later. Due to the conditions then existing in the plant, as deta led
by eniployee Linde, such as it 54-hour week at straight time, too many bosses,
discnnnnatimi in assigning the woik. and Sunday and night work with no over-
tune, some of the shop employees became dissatisfied and in March, 1944, signified
their desire to join the Union The respondent through its manager and
° This finding is based upon the undenied testimony of Rawlings Purdy did not testify
at the he•iring The record shows and the undersigned finds that in the latter part of
iI4icli 1044, Purdy was an inspector in the St Paul shop , and, in the absence of Foreman
Mueller, acted as foieman He assigned men to various lobs When not insp,'ctmg work
done-by other employees, of acting as foreman , Purdy sometimes worked in the shop the
same as other mechanics Ile was one of the oldest employees in seniority. Mueller
admitted that Purdy repoited to ham as to the conduct of employees The undeisigned finds
tLat Pm dy exercised supeivisoiy powers
7 This finding rests upon Linde s ci edible testimony Muelier denied that he made dis-
paiag ng ieniaike about the Union to Linde or that he advised the emplovee no benefits
won](] be i cceived "f. oni collective bar gaining ," but did not deny having asked the employee
what he thought about the Union of the specific rcmaiks attiibuted to him by Linde 1-1 e
admitted asking Linde what he knew about the Union organizing
° These find.ngs are based upon the credible testimony of employee Lirde Judd admitted
having questioned the enip:oyee . after Mueller had told him Linde was involved in organiz-
ing tl e Union
001248--45-vol 57 86
11346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
supervisors, promptly pointed out to certain shop employees that they would not
be benefited by joining the Union, queried them as to the extent of the union
organization in the shop, and by other remarks endeavored to discourage mem-
bership in the Union
In summary, the undersigned concludes and finds that by the aforesaid state-
ments and acts of Manager Judd, Foreman Mueller, and Inspector Purdy, the
respondent interfered with, restrained, and coerced its employees in the exercise
,,of the rights'guaranteed-in Section 7 of. the Act
IV. THE EFFECT -OF THE UNFAIR LABOr, PRICTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring in
connection' 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 commerce-and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in certain unfair
labor practices, it will be recommended that it 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, the undersigned makes the following:
CONCLUSIONS OF LAW
1 International Association of Machinists, District 77, A F. of L., is a labor
organization within the meaning of Section 2 (5) of the Act.
2 By interfering with, restraining, and coercing its employees in 'the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices, within the meaning.of Section 8 (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce, within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon' the basis of the above findings of fact and conclusions of law, the under-
signed recommends that the respondent, Merchants Motor Freight, Inc , St Paul,
Minnesota, its officers, agents, successors, and assigns, shall :
1 Cease and desist from : "
In any manner interfering with, restraining, or coercing its employees in
.the exercise of the rights of self-organization, to form, join, or assist labor
organizations, to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purposes of'collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the National
Labor Relations Act. ,
2 Take the following affirmative action which -the undersigned finds will
effectuate the policies of the Act :
(a) Post immediately in conspicuous places in its shop at St Paul, Min-
nesota, and maintain for a period of not less than sixty (60) consecutive days
from the date of posting, notice to its employees stating: (1) that the respondent
will not engage in the' conduct from which it is recommended that it cease and
desist in paragraph 1 of these recommendations ;
MERCHANTS MOTOR FREIGHT, INC. 113 47
(b) Notify the Regional Director for the Eighteenth Region in writing within
ten (10) days from the (late of the receipt of this Intermediate Report what
steps the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
nforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
-National Labor Relations Board, Series 3, effective November 26, 1943, any party
or counsel for the Board may within fifteen (15) days from the date of the
entry of the order transferring the case to the Board, pursuant to Section 32
of Article II of said Rules and Regulations, file with the Board, Rocliambeau
Building, Washington, D C, an original and four copies of a statement in writing
setting forth such exceptions to the Intermediate Report or to any other part
of the record or proceeding (including rulings upon all motions or objections) as
he relies. upon, together with the original and four copies of a brief in support
thereof Immediately upon the filing of such statement or exception and/or
brief, the party or counsel for the Board filing the same shall serve a copy
thereof upon each of the other parties and shall file a copy with the Regional
Director. As further provided in said Section 33, should any party desire permis-
sion to argue orally before the Board, request therefor must be made in writing
within ten (10) days from the date of the order transferring the case to the Board.
W. P. WEBS,
Trial Examiner.
Dated May 24, 1944.