Paterson Fire Brick Co.

National Labor Relations Board - Board Decisions

Apr 2, 1951

93 N.L.R.B. 1118 (N.L.R.B. 1951)

1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no other compensation from the Company than the gallonage rate
fixed in the agreement and do not share in any benefits granted to
salaried employees; 2 they pay all their own expenses; neither their
hours nor days of work are fixed by the Company; they determine
for themselves the order and manner in which their deliveries are
to be effected; their trucks all carry their names; the Company does
not account for those taxes which arise from an employment relation-
ship; and the truckers pay all taxes and license fees required in their
hauling operations.
Upon the foregoing facts and the entire record, we conclude that
the truckers petitioned for herein are independent contractors and not
employees within the meaning of the Act.' We shall therefore dis-
miss the petition herein.
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
2 The participation in a group life insurance plan by a few of the truckers is a holdover
from the period when they were salaried employees . It does not appear that the Company
contributes any part of the premium on their policies.
2 Nelson-Ricks Creamery Company, 89 NLRB 204 ; Spic kelmier Company, 83 NLRB 452.
Cf. Flint Oil Company, 88 NLRB 634 , and Standard Oil Company (Indiana ), 81 NLRB 1381
where the Board found petroleum haulers operating in a substantially different manner
to be employees.
PATERSON FIRE BRICK COMPANY and UNITED BRICK AND CLAY WORK-
ERS of AMERICA , AFL, PETITIONER . Case No. 6-RC-494. April 2i,
1951
Second Supplemental Decision and Order
On January 4, 1951, the Board directed that a hearing be held on
objections to conduct affecting the results of the election, filed herein
by the Petitioner,'- and that the hearing officer designated to conduct
the hearing should prepare and cause to be served upon the parties
a report containing resolutions of credibility of witnesses, findings
of fact, and recommendations to the Board as to the disposition of
said objections.
On January 30, 1951, and pursuant to the order of the Board, a
hearing was held before Lloyd R. Fraker, hearing officer. The Board 2
has reviewed the rulings made by the hearing officer and finds that no
prejudicial error was committed. The rulings are hereby affirmed.
I The revised tally of ballots showed that 28 votes were cast for, and 35 votes against,
the Petitioner.
2 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in connection with this case to a three -member panel [ Members Houston, Murdock,
and Styles].
93 NLRB No. 203.
PATERSON FIRE BRICK COMPANY 1119
On February 9, 1951, the hearing officer issued a report on objec-
tions, which was duly served upon the parties and a copy of which is
attached hereto. The hearing officer found that within a period of
3 days immediately before the day of the election the Employer,
through its supervisors, told many of its employees in the voting
unit that they should vote against the Union because the Employer
was indebted to a bank in the sum of $150,000, and that, if the Union
won the election, the plant would be closed. He also found that the
Employer told Ira Rider, a laid-off employee, to vote no in the election
and promised to call him back to work in a day or two if the Union
lost the election. The hearing officer concluded that the above acts
constituted threats of loss of employment and a promise of benefit,
and interfered with, restrained, and coerced the employees in their
free choice in the election; he recommended that the election be set
aside. The Employer filed timely exceptions to the hearing officer's
report on objections.
The record clearly supports the findings of fact made by the hearing
officer. However, the Employer contends, in effect, that the alleged
expressions and conduct neither contained threats of reprisal or force
or promise of benefits, nor did they, by themselves, interfere with,
restrain, and coerce its employees. The Board has found that state-
ments made by an employer indicating that its plant might be closed
if the union won the election per se interfere with the exercise of a
free choice of bargaining representatives.3 Furthermore, any promise
made to a laid-off employee that he would be returned to work if the
union lost the election is clearly a promise of benefit which similarly
interferes with a free choice of representatives. It is accordingly
unnecessary to inquire, as the Employer urges, into whether such acts
were effective in accomplishing the intended results.'
Upon consideration of the entire record in this case, the Board
finds, as did the hearing officer, that the Employer's employees have
been denied the right guaranteed them under the Act to select a
bargaining representative of their own free choice, and that they are
therefore entitled to a new election. Accordingly, we shall set aside
the election of June 23, 1950, and shall direct that a new election be
held at such time as the Regional Director advises is appropriate.
Order
IT Is IIEREBY ORDERED that the election held on June 23, 1950, among
the employees at Paterson Fire Brick Company, at Clearfield, Penn-
sylvania, be, and it hereby is, set aside.
3 Hobart Manufacturing Company, 92 NLRB 203, Schwas zenbach Huber Company,
85 NLRB 1490.
4Cf Hobart Manufacturing Company, supra, Wilson R Co, Inc, 88 NLRB 1, Lane
Drug Stores, IncasjIo ated, 88 NLRB 584, The Pure Oil Company, 73 NLRB 1.
1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hearing Officer 's Report on Objections to Election
Frank A. Whitsett, Esq, for Paterson Fire Brick Company.
Emil E. Nartek, Esq., for the Board.
Messrs. Alfred G. Wagner and J. C Gatehouse, for United Brick and Clay
Workers of America, AFL.
Pursuant to the Order of the Boai d dated January 4, 1951, directing a hearing
on objections' to conduct affecting the results of the election which was held
June 23, 1950, among certain employees of Paterson Fire Brick Company, here-
inafter called the Respondent, a hearing was held before the undersigned
hearing officer on said objections at Clearfield, Pennsylvania, on January 30,
1951.
All parties appeared, participated in the hearing, and were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues involved.
The hearing officer hereby reports the following findings, as to credibility
of witnesses, of facts, and recommendations as to disposition of the objections.
1. CREDIBILITY OF WITNESSES
The Petitioner offered as witness in support of its objections the following
named individuals : Charles E. Lunsford, Paul Palovesik, John C. Henry, Ira
Rider, Deroy Tubbs, Levis Read, Verdon Knepp, Wilber Warren, and Albert
Starr.
The Respondent failed to call any witnesses or to offer any evidence to refute
the testimony of the Petitioner's witnesses
All witnesses offered by the Petitioner appeared to be credible, none of them
were in any manner impeached, and the hearing officer therefore credits the
testimony of all of said witnesses.
II. FINIDING OF FACTS
On the whole record of the testimony adduced at the hearing, the hearing
officer makes the following finding of facts :
(a) Within a period of three days immediately prior to the day of the
election the Respondent, through its supervisors, told many of its employees in
the voting unit that they should vote against the Union because the Respondent
was indebted to a bank in the sum of $150,000, and if the Union won the election
the plant would he closed, and likewise told Ira Rider, a laid-off employee, to
vote no in the election and promised to call him back to work in a day or two
if the Union lost the election. (R. 18, 24, 41, 45, 47, 76, 77, 90, 91, 102, 103, and
117.)
(b) There is no evidence that the Respondent "corrupted the employees", or
"threatened certain employees with violence" as alleged in paragraphs number
3 and 4 of the objections. The hearing officer therefore finds that the Respond-
ent neither corrupted nor threatened employees with violence
(c) The hearing officer further finds that the acts of the Respondent detailed
in Section II (a), above, constituted threats of loss of employment and a promise
of benefit, and interfered with, restrained, and coerced the Respondent's em-
ployees in their free choice in the election.
I The objections were filed by United Brick and Clay Workers of America, AFL, the
Petitioner in Case No 6-RC-494, hereinafter called the Petitioner.
CRAWFORD CLOTHES. INC.
III. RECOMM ENDATIONS
1121
The hearing officer having found that the Respondent interfered with, coerced,
and restrained its employees in their free choice in the election, therefore recom-
mends that the objections be sustained and that the election be set aside.
Within 10 days after the receipt of this Report any party may file with the
Board in Washington, D. C. an original and six copies of exceptions thereto.
Immediately upon the filing of any such exceptions, the party or parties filing
same shall serve a copy thereof upon each of the other parties and shall file a_
copy thereof with the Regional Director.
CRAWFORD CLOTHES, INC. and CONGRESS OF INDUSTRIAL ORGANIZATIONS,
PETITIONER. Case No. 2-RC-2772. April 2,1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor-
Relations Act, a hearing was held before Lloyd S. Greenidge, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Reynolds and Murdock].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer'
3. A question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section 9^
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a single unit of office and clerical employees
employed in the Employer's principal and credit offices, excluding-
guards and supervisors as defined in the Act. The Intervenor opposes
the unit requested by the Petitioner and contends that the employees
of the credit office constitute a separate and appropriate unit, and that
separate units should be established for the credit office and the prin-
cipal office. The Employer agrees with the Petitioner that a single
unit of all office and clerical employees in both offices is appropriate.
The Employer, a New York corporation, is engaged in the manu-
facture of men's clothing, and in the operation of a chain of retail
'Distributive , Processing & Office Workers Union of America , District 65, herein called,
the Intervenor , was permitted to intervene upon the basis of an existing contractual
intei est
93 NLRB No 191
943732-51-72