Pullman Inc.

National Labor Relations Board - Board Decisions

Dec 30, 1965

156 N.L.R.B. 483 (N.L.R.B. 1965)

TRAILMOBILE DIVISION, PULLMAN INCORPORATED 483
Trailmobile Division , Pullman Incorporated and United Automo-
bile, Aerospace & Agricultural Implement Workers (UAW),
International Union , AFL-CIO. Case No. 16-CA-2401. Decem-
ber 30, 1965
DECISION AND ORDER
Upon a charge duly filed on July 13, 1965, by United Automobile,
Aerospace & Agricultural Implement Workers (UAW), International
Union, AFL-CIO, herein called the Union, against Trailmobile Divi-
sion, Pullman Incorporated, herein called the Respondent, the General
Counsel for the National Labor Relations Board, by the Acting
Regional Director for Region 16, issued and served upon the parties
a complaint and notice of hearing dated July 28, 1965. The complaint
alleges that the Respondent was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1) and (5)
and Section 2(6) and (7) of the National Labor Relations Act, as
amended.
With respect to the unfair labor practices, the complaint alleges,
in substance, that after an election on or about September 3, 1964, in
which a majority of the Respondent's employees in an appropriate
unit selected the Union as their bargaining representative, the Union
was certified by the Board 1 on or about June 28, 1965, as the exclusive
bargaining representative of the Respondent's employees in the unit;
that, at all times since June 28, 1965, the Union has been the collective-
bargaining representative of the unit employees; and that on
July 22, 1965, and at all times thereafter, the Respondent did refuse,
and continues to refuse, to bargain with the Union.
The Respondent's answer admits certain jurisdictional and factual
allegations of the complaint and the refusal to bargain with the
Union, but denies that the Union represents a majority of the employ-
ees. The answer alleges affirmatively that the Board erred in sustain-
ing the challenges to the election ballots of 14 individuals, that this
action constituted prejudicial error, and that, accordingly, the Board's
certification was erroneous and of no legal effect.
On or about September 15, 1965, all parties entered into a stipula-
tion wherein they agreed to transfer this proceeding directly to the
Board for findings of fact, conclusion of law, and order. The parties
waived a hearing before a Trial Examiner, the making of findings of
fact and conclusions of law by a Trial Examiner, and the issuance
of a Trial Examiner's Decision. They agreed that the stipulation,
together with the charge, complaint, notice of hearing, answer, and
the the record of proceedings in Case No. 16-RAI-270, constitutes the
1 Case No. 16-RM-270, not published in NLRB volumes.
156 NLRB No. 55.
217-919-66-vol. 156-32
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
entire record in this case. On September 23, 1965, the Board issued
an order approving stipulation and transferring proceeding to the
Board. Thereafter, the General Counsel and the Respondent filed
briefs which have been duly considered.
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 Fanning, Brown, and Zagoria].
Upon the basis of the stipulation of the parties, the briefs, and the
entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation, maintains its principal
office and place of business at Longview, Gregg County, Texas, where
it is engaged in the manufacture of trailers. In the course and conduct
of its business operations, the Respondent annually ships from its
Longview plant finished products valued in excess of $50,000 directly
to customers outside the State of Texas. The parties stipulated, and
we find, that the Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act. We further find that it will
effectuate the purposes of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
United Automobile , Aerospace & Agricultural Implement Workers
(UAW), International Union , AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Pursuant to a stipulation for certification upon consent election in
Case No. 16-RM-270, an election by secret ballot was conducted on
September 3, 1964, among the employees in the stipulated unit? The
tally of ballots showed that of approximately 360 eligible voters, 171
cast ballots for, and 168 against, the Union, 1 ballot was void, and
16 ballots were challenged.
On December 30, 1964, the Regional Director issued his report on
challenged ballots. He recommended, inter alia, that the challenges
to three balotts (of Weldon Denton, Edward Henry, and Lonzo
Higginbotham) be overruled, that the challenges to six ballots (of
2 The stipulated unit is as follows : All production and maintenance employees employed
by the Respondent at its plant in Gregg County, Texas, excluding office employees, plant
clerical employees, technical employees , timekeepers, guards and watchmen, office porters,
experimental employees , trainees , superintendents , assistant superintendents, general fore-
men, foremen , and other supervisory employees with the authority to hire, promote, dis-
charge, discipline , or otherwise effect changes in the status of employees or effectively
recommend such action , and all other employees.
TRAILMOBILE DIVISION , PULLMAN INCORPORATED 485
the night-shift leadmen) be sustained, and that a hearing be held to
resolve the challenges to the remaining seven ballots (of the day-shift
leadmen). The Respondent and the Union filed timely exceptions to
the Regional Director's report and supporting briefs.3
On February 3, 1965, the Board issued an order directing hearing,
finding that material issues of fact existed with respect to the eligi-
bility of the 13 leadmen and Lonzo Higginbotham, and ordering that
a hearing be held for the purpose of taking testimony to resolve the
issues with respect to the challenges to these individuals. A hearing
was held at Longview, Texas, on various dates between March 9 and
24 before Hearing Officer Billy M. Gibson, at which all parties
appeared and participated. On April 16, 1965, the Hearing Officer
issued his report on challenged ballots. The Hearing Officer found
that the 13 leadmen were supervisors within the meaning of the Act
and, accordingly, recommended that the challenges to their ballots be
sustained. He also found that Lonzo Higginbotham was an employee
of the Respondent at the time of the election and, accordingly,
recommended that the challenge to his ballot be overruled. Exceptions
to the Hearing Officer's report, and supporting briefs, were filed with
the Board by the Union and the Respondent.
On June 28, 1965, the Board issued a Decision and Certification of
Representative, finding, in agreement with the Hearing Officer, that
the leadmen were supervisors, as they had authority and responsibility
to change work assignments of employees and to discipline employees.
The Board, accordingly, sustained the challenges to the ballots of the
13 leadmen. Contrary to the Hearing Officer, the Board found that
Lonzo Higginbotham was not an employee of the Respondent at the
time of the election as Higginbotham's conduct during a leave of
absence prior to the election indicated that he had abandoned his
employment with Respondent. Accordingly, the Board sustained the
challenge to Higginbotham's ballot. Finding that the ballots of
Denton and Henry, the challenges to which had been overruled by
the Regional Director, could not affect the Union's majority, the
Board certified the Union as the exclusive collective-bargaining rep-
resentative of the Respondent's employees in the appropriate unit.
On June 30, 1965, John John, director of industrial relations of
the Respondent, composed and mailed a letter to the Union declining
recognition. The letter indicated that this refusal was based on the
Respondent's belief that the Board had erred in not counting the
ballots of the leadmen and Higginbotham. On July 19, 1965, Ben F.
Tyra, an International representative of the Union, composed and
mailed a letter to the Respondent requesting a meeting to negotiate
8 No exceptions were taken to the Regional Director 's recommendations to overrule the
challenges to the ballots of Denton and Henry.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a collective-bargaining agreement. On July 22, 1965, John John
mailed a letter to Ben F. Tyra declining recognition and refusing to
bargain.
In its Decision and Certification of Representative the Board, after
having considered the Respondent's exceptions and brief, decided to
sustain the challenges to the ballots of the 13 leadmen and Higgin-
botham. In its exceptions and brief to the Board herein, the Respond-
ent does not contend that there now exists relevant and material
evidence which was not available at the time of the representation
proceeding.
Accordingly, we find that the Union was duly certified as the
collective-bargaining representative of the employees of the Respond-
ent in the appropriate unit described above, and that at all times
since June 28, 1965, the Union has been the exclusive bargaining
representative of all employees in the unit within the meaning of
Section 9 (a) of the Act. We further find that since July 22, 1965, the
Respondent has refused to bargain collectively with the Union as the
exclusive representative of its employees in the unit, and that, by such
refusal, 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.
IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE
The acts of the Respondent set forth in section III, above, occur-
ring in connection with its operations 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 unfair labor
practices within the meaning of Section 8(a) (5) and (1) of the Act,
we shall order that it cease and desist therefrom and, upon request,
bargain collectively with the Union as the exclusive representative
of all employees in the appropriate unit, and, if an understanding is
reached, embody such understanding in a signed agreement.
CONCLUSIONS OF LAW
1. Trailmobile Division, Pullman Incorporated, is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. United Automobile, Aerospace & Agricultural Implement Work-
ers (UAW), International Union, AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
TRAILMOBILE DIVISION , PULLMAN INCORPORATED 487
3. All production and maintenance employees employed by the
Respondent at its plant in Longview, Gregg County, Texas, excluding
office employees , plant clerical employees , technical employees, time-
keepers, guards and watchmen , office porters , experimental employees,
trainees , superintendents , assistant superintendents , general foremen,
foremen, all other supervisors within the meaning of Section 2(11) of
the Act, and all other employees, constitute a unit appropriate for the
purposes of collective bargaining with the meaning of Section 9(b)
of the Act.
4. The Union is, and at all times since June 28, 1965, has been, the
exclusive representative of the employees in the appropriate unit
within the meaning of Section 9 (a) of the Act.
5. By refusing to bargain collectively with the Union on, and
at all time after, July 22, 1965, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (5) of the Act.
6. By the acts described in paragraph 5 above, the Respondent
has engaged 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.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended , the National Labor Relations Board hereby orders that
the Respondent, Trailmobile Division, Pullman Incorporated, Long-
view, Texas, its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with United Automobile,
Aerospace & Agricultural Implement Workers (UAW), International
Union, AFL-CIO, as the exclusive representative of its employees in
the above - described appropriate unit.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed by
Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the above-named Union
as the exclusive collective-bargaining representative of the employees
in the appropriate unit, with respect to rates of pay, wages, hours of
work, and other terms and conditions of employment, and, if an
understanding is reached , embody such understanding in a signed
agreement.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its Longview, Texas, plant, copies of the attached notice
marked "Appendix." 4 Copies of said notice, to be furnished by the
Regional Director for Region 16, shall, after being duly signed by
the Respondent's representative, be posted by the Respondent imme-
diately upon receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places where
notices to its 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
10 days from the date of this Decision and Order, what steps have been
taken to comply herewith.
* In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order " the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX
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 refuse to bargain collectively with United Auto-
mobile, Aerospace & Agricultural Implement Workers (UAW),
International Union, AFL-CIO, as the exclusive representative
of the employees in the bargaining unit described below.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their rights
guaranteed by Section 7 of the Act.
WE WILL, upon request, bargain collectively with the above-
named Union as the exclusive representative of all employees
in the bargaining unit described below with respect to rates of
pay, wages, hours, and other terms and conditions of employ-
ment and, if an understanding is reached, embody such under-
standing in a signed agreement.
The bargaining unit is:
All production and maintenance employees employed by
Trailmobile Division, Pullman Incorporated, at its plant
in Longview, Gregg County, Texas, excluding office employ-
ees, plant clerical employees, technical employees, time-
keepers, guards and watchmen, office porters, experimental
employees, trainees, superintendents, assistant superintend-
BLUE CAB COMPANY, ETC. 489
ents, general foremen, foremen, other supervisors within the
meaning of Section 2 (11) of the Act, and all other employees.
TRAILMOBILE DIVISION, PULLMAN INCORPORATED,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort
Worth, Texas, Telephone No. Edison 5-4211, if they have any ques-
tions concerning this notice or compliance with its provisions.
Blue Cab Company and Village Cab Company and General Team-
sters, Chauffeurs, and Helpers Local 782. Case No. 13-CA-
5736. December 30,1965
DECISION AND ORDER
On February 25, 1964, Trial Examiner Robert E. Mullin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ents had engaged in and were engaging in certain unfair labor prac-
tices and recommending that they cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. The Respondent thereupon filed exceptions to the
Trial Examiner's Decision, as amended.' The Charging Party and
the General Counsel submitted briefs in support of the Trial Exam-
iner 's Decision and briefs in answer to the Respondents' exceptions.
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 .2 The Board has considered the Trial
I Respondents ' motion to amend their answers to the complaint as amended at the
hearing is granted, and such amended answers are made part of the record of this case.
2 Respondents excepted to the admission into evidence, over their objections , of certain
depositions of John and Charles Ugaste taken in an action between the Union and Re-
spondent Blue Cab in the United States District Court for the Northern District of
Illinois . The depositions were admissible in part as admissions against interest and for
impeachment purposes , and their use has been so restricted in our consideration of them.
We find it unnecessary to pass upon Respondents ' contention that the depositions were
erroneously received as evidence in chief on the issue of commerce, as we find that,
regardless of the depositions , the General Counsel has established by other evidence that
Respondents are engaged in commerce within the meaning of the Act. Accordingly, we
do not find the Trial Examiner 's reliance on the depositions to be prejudicial error under
Rule 61 of the Federal Rules of Civil Procedure. Hoffman v. Palmer, 129 P. 2d 978
(C.A. 2), affd. 318 U.S. 109; Crown Corrugated Container Inc., 123 NLRB 318.
156 NLRB No. 67.