Union Transfer & Storage Co.

National Labor Relations Board - Board Decisions

Nov 7, 1961

134 N.L.R.B. 24 (N.L.R.B. 1961)

24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on employee rights under the Act. Accordingly , I shall not recommend the usual
"broad" cease-and-desist order.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, the Trial Examine? makes the following:
CONCLUSIONS OF LAW
1. By discriminating in regard to the hire and tenure of employment of Thomas
DeSantis, thereby encouraging membership in a labor organization , the Company
has engaged in unfair labor practices within the meaning of Section 8(a)(3) and
(1) of the Act.
2. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Union Transfer & Storage Company and General Drivers,
Warehousemen and Helpers Local Union No . 968. Cases Nos.
23-CA-1000 and 23-RC-1511. November 7, 1961
DECISION AND ORDER
On February 28, 1961, Trial Examiner John C. Fischer issued his
Intermediate Report in the above-entitled proceeding, finding that-the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the Intermediate Report attached hereto.
The Trial Examiner further found that the challenged ballots of the
alleged discriminatees were invalid. Thereafter, the General Counsel
and the Charging Party filed exceptions to the Intermediate Report
with supporting briefs. The Respondent filed a brief in support of the
Intermediate Report.
The Board' has reviewed the rulings made by the Trial Examiner
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in the case,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations, with the single exception 2 noted below.
[The Board dismissed the complaint.]
1 Pursuant to 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 McCulloch
and Members Rodgers and Leedom].
3 We do not adopt the Trial Examiner ' s finding that a Houston ordinance prohibited
smoking in the Respondent 's warehouse
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon charges filed by General Drivers , Warehousemen and Helpers Local Union'
No. 968 , herein called the Union , the General Counsel of the National Labor Re-
lations Board , by the Regional Director for the Twenty -third Region , Houston , Texas,
134 NLRB No. 4.
UNION TRANSFER & STORAGE COMPANY 25
issued his complaint , dated April 29, 1960 , against Union Transfer & Storage Com-
pany, herein called the Respondent . With respect to the unfair labor practices, the
complaint alleges in substance that Respondent ( 1) terminated on or about March 4,
1960 , the employment of Charles Odel Jones , Crabon Bush , Keffer Runnels, Charles
G. Mills, Hubert Williams, Consteen Johnson, Ned Haywood, Jr., Booker T. Horton,
Abe Stevens , Jr., and Richard Harden , and has failed and refused , and continues to
fail and refuse , to reinstate said employees for the reason that they joined or assisted
the Union or engaged in other concerted activities for the purposes of collective
bargaining or other mutual aid or protection , and (2 ) since on or about March 2,
1960, and continuing to date , Respondent has interfered with , restrained , and co-
erced , and is interfering with , restraining , and coercing , its employees in the exercise
of rights guaranteed in'Section 7 of the Act, by the following acts and conduct:
(a) interrogated employees concerning their membership in or affiliation with the
Union , (b) threatened employees with loss of employment if they became unionized,
(c) engaged in surveillance of union meetings attended by its employees , and (d) dis-
charged Billy Joe Reed, a supervisor, on or about March 4, 1960, because of his
prounion sympathies. In its timely filed answer, Respondent denied generally the
unfair labor practice allegations and pleaded affirmative defenses.
In accordance with a consent-election agreement , entered into by the Union and
Respondent Company, an election was held on March 25, 1960, in Case No. 23-RC-
1511, where the 10 alleged discriminatorily discharged employees (8(a)(3)'s) voted
challenged ballots. As a result of not counting these challenged ballots, the Union
lost the election. Out of 34 votes case, 10 voted for the Union and 13 against it, and
1 was void. Thus for further decision is the question whether these 10 individuals
were in fact terminated 'in violation of Section 8(a)(3). If it is found that these
individuals were so terminated, their ballots shall be opened and counted and a
revised tally of ballots shall be served upon the parties by the Regional Director.
Pursuant to due notice, a hearing was held before the duly designated Trial Ex-
aminer between the dates May 24 to 28, 1960, at Houston, Texas. All parties were
represented at the hearing and afforded full opportunity to be heard, to examine and
cross-examine witnesses , to introduce relevant evidence , to present oral argument at
the close of the hearing, and thereafter to file briefs as well as proposed findings of
fact and conclusions of law. All parties filed comprehensive briefs which have been
carefully considered. Motions by Respondent Company to reopen the hearing for
purposes of taking additional testimony and evidence were received , considered, and
rejected by the Trial Examiner.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is, and has been at all times material hereto, a corporation duly
organized under and existing by virtue of the laws of the State of Texas, having its
principal office and place of business at 2202 Nance Street in Houston, Texas, where
it is engaged in a public warehousing operation. Respondent, during the year 1959,
a representative period, performed services of a value in excess of $50,000 for
customers located outside the State of Texas for the handling of warehousing of
goods and materials which were transported to the State of Texas from points out-
side the State of Texas. Respondent is, and has been at all times material hereto,
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
General Drivers, Warehousemen and Helpers Local Union No. 968, hereinafter
referred to as the Union, is, and has been at all times material herein , a labor organi-
zation within the meaning of Section 2(5) of the Act.
IH. _THE UNFAIR LABOR PRACTICES
The Repondent Company operates a public warehouse in Houston, Texas. It
receives income from its customers from the performances of three distinct services.
The first is from charges for unloading the customers' merchandise from freight cars
or trucks and moving merchandise into and out of the warehouse to a loading dock
when requested by the customer. This source is referred to as "handling income."
The second type of income is that called storage which is a charge levied per case or
by weight for the length of time such item is retained in storage. The third source
of income is received from draying or trucking merchandise which has been handled
and stored with the Company from its warehouse to consignees in the local area or to
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rail or motor carrier terminals for transshipment. The owner of-Respondent Com-
pany, Fisher G. Dorsey, has been engaged in this type of business for some 50 years.
He was the founder and owner of several similar or ancillary enterprises. By reason
of age and illness and for other business reasons and at doctor's orders he had
divested himself of two companies by closing them down, i e., Blue Bonnet Freight
and Federal Rigging Companies, had sold his Patrick Transfer and Storage Co., and
for the year immediately preceding this case, had been negotiating for the sale of his
two remaining operations Patrick, Shipside Co. and Respondent Company because
of economic difficulties.
Respondent counsel, Saccomanno, in his exhaustive brief to the Trial Examiner,
correctly illustrates Dorsey's situation as shown in the case record:
One of his enterprises, Patrick Transfer and Storage, had been sold. Two others,
Blue Bonnet Freight Forwarding and Federal Rigging, have been closed down.
He had been negotiating for the sale of-the two remaining operations, Patrick
Shipside and the present Respondent, Union Transfer, in a package, but has until
now been frustrated by the poor financial record of Union Transfer. The other
of his two remaining enterprises Patrick Shipside, was unionized by the Long-
shoremen ten years ago. During that period there has been a Patrick no strike,
no grievance and no National Labor Relations Board complaint. The Long-
shoremen think sufficiently well of Mr. Dorsey to assent to his service on their
Welfare Committee.
Of substantial importance to the entire financial problem of Union Transfer
were the losses involved in the drayage operations. These operations were pe-
ripheral to the business, which is primarily warehousing. Until a few months
before the matters giving rise to the Complaint, the drayage had been contracted
out to a man named Robinson, who at the same time was also general manager
of the warehouse business. Robinson had quit and had gone into competition
with Union Transfer, taking a number of valued accounts. Union found itself
compelled either to find a new contractor in a hurry or undertake the drayage
itself. The latter course was chosen provisionally. However, the drayage did
not prove profitable, dissatisfaction with it was repeatedly expressed, and at-
tempts were made to secure a new contractor and eliminate this entire aspect of
Union Transfer's operations.
In the meantime, however, negotiations had been going on with one Robert
L. Harper relating to the sale of both Union Transfer and Patrick Shipside to
Mr. Harper or tb a syndicate of which he was a part. These began in November
of 1959. Until these negotiations were concluded, Mr. Dorsey was reluctant to
enter into any commitments, such as a new drayage contract, which would limit
the freedom of action of the prospective purchaser and perhaps render the
purchase less attractive. However, on February 29 Mr. Dorsey received word
that this transaction could not be completed. It was clear from the circum-
stances that the financial statement was a major factor in the failure of the sale
and that drastic reorganization was called for to improve the company's position.
The drayage losses were a significant part of the bad financial picture, and there
resulted a decision to take immediate action to eliminate them or to at least
reduce them. The only available step in this direction was to secure a-contractor
able to perform the services more economically and efficiently than could Union
Transfer. Thus the step previously discussed was taken.
Discharges incidental to the contracting out of the drayage operations account
for five of the ten employees named in Paragraph VII of the Complaint. This,
Respondent asserts to be a bona fide exercise of the rights of management taken
for valid economic reasons and unmotivated by anti-union bias or unlawful
purpose. Three of the remaining five men named in Paragraph VII, Respondent
asserts, were discharged by reason of lack of work, a valid economic motive,
and not by reason of bias or unlawful purpose. The remaining two, Consteen
Johnson and Ned Haywood, were discharged for valid disciplinary reasons.
They had violated a no-smoking rule of which they were admittedly aware, and
their discharge was proposed to Mr. Dorsey by a supervisory employee who did
not at the time know of the movement for unionization and who was not shown
to have any interest in it one way or the other This too Respondent asserts to
be a valid exercise of the rights of management without proper motivation.
The evidence which shows the financial picture which is so vital to the inter-
pretation of the facts of this case is as follows, and is shown by Respondent's
Exhibits 5, 6, 7, 8, 9, 10 and 13. In the calendar year of 1958 Respondent
showed an income of $306,421 77, total expenses of $293,739.96 for a net profit
of $12,681.81. (Exhibit R-7 ) In 1959 income dropped to $246,975.48 and
a net LOSS of $65,697.78. (Exhibit R-7.) The continuing need for corrective
I
UNION TRANSFER & STORAGE COMPANY 27
economic measures is illustrated by Exhibits R-8, R-9 and 9-10 which show that
in January 1959„the Company had a net loss of $5,033.80, in February it had a
net loss of $1,179.93 and in March a loss of $3,373.09 or a combined loss of
$9,586.82 for the first quarter of 1960. The projected loss for the entire year
would be a loss of $38,357.28.
The deterioration of the company is illustrated by Exhibit R-5 which is an
analysis of the drayage tonnage for 1958, 1959 and January and February of
1960. This exhibit shows that in 1958 the Respondent received an average of
213/4 0 per hundredweight for draying an average of 2,750,000 pounds per month
and that the total for the year was 33,163,835 pounds. In 1959 this had dropped
drastically to a monthly average of about 1,910,000 pounds and that the rate
dropped from an average of 213/40 to 203/40. For 1960 the monthly average
had dropped to less than, 1,500,000 pounds per month. From 1958 the monthly
average of 2,750,000 pounds had dropped by about 45% to less than 1,500,000
pounds.
Exhibit R-6 which is an analysis of the revenue handling earned by Respond-
ent for October, November, and December, 1959, and January, February, March,
and April, 1960 illustrates further the decline of the Respondent's business. It
shows that in this seven month period Respondent received into its warehouse
13,128,534 pounds of rice and received an average of $0.105 per hundred-
weight for handling it in and prepayment for moving it out. During the same
period Respondent received 21,108,422 pounds of other merchandise for which
it received an average of $0.128 per hundredweight. This difference of $0.023 per
hundredweight is what Mr. Dorsey meant when he said the rice was a lower
income account. (R. 724.) During these months the inbound movement was
as follows:
[Amounts in pounds]
Month Rice Other mer-
chandise
Total
October 1959-------------------------------------------- 2, 2.58, 140 3,216,345 5,474,495
November 1959- ---------------------------------------- 2,162,661 3,593,084 5,755,745
December 1959------------------------------------------ 2,288,907 2,702,736 5,591,643
January 1960 -------------------------------------------- 379, 176 2,742,718 3,121,894
February 1960-------- ------------------------------- 3,168,462 3,347,188 6,515,650
March 1960--------------------------------------------- 1,686.258 2,477,558 4,163, 816
April 1960----------------------------------------------- 584,930 3,028,793 3,613,723
Thus the tonnage for February was more than 3,000,000 pounds greater
than January and March was approximately 2,400,000 pounds less than Feb-
ruary while April was almost 3,000,000 pounds less than February and about
500,000 pounds less than March.
Mr. Dorsey testified that the reason for the heavy movement of rice in Febru-
ary was due to the "Cuban situation" (R. 720) and that is shown on Exhibit
R-6 in the increase from 379,176 pounds of rice in January to 3,168,462 in
February which decreased to 1,686,258 pounds in March and to 584,930 pounds
in April 1960
There are two additional pieces of background material necessary at this point.
One relates to the original unionization effort and the other deals with alleged
union animus on the part of owner Dorsey. Charles Odel Jones, one of the five
truckdrivers discharged at the time of the contracting out of the drayage incident,
testified that nearly a year before the events leading to this complaint, all of the
employees met with Foreman Brooks and asked him to discuss improving condi-
tions of employees with Dorsey. At that time Jones discussed possible unioniza-
tion with Teamster Union Organizer Ted Garcia, but being unable to get enough of
the employees to sign union cards, the organizational efforts were abandoned.
Jones testified that Dorsey called him into the office, told him he was a bad influence,
that his services were no longer needed, and that he, Dorsey, "didn't want no union
in his Company; he wasn't going to have no union there, and he would close up
first, before he let a union come in" and thereupon fired Jones Dorsey denied that
this conversation ever took place. These events having antedated the 6-month
statutory period of the alleged unfair labor practices in this case renders it unneces-
sary to resolve this credibility conflict. Suffice it to say that if Jones had been fired
on Thursday, he was rehired and put back on the job the following Monday. The
other incident concerns a statement allegedly made by Dorsey in the presence of
dischargee Billy Joe Reed in which Reed testified that on one occasion at lunch
with one A. D. Boone that Dorsey, when asked by Boone if he thought the Ccmpany
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would ever go union, replied that he felt that the men would not want a union and
that if the Union did try to move into Union Transfer, that he would contract out
his drayage, put the drivers out of work , clamp down , and clean house . Boone,
a witness for Respondent , and not connected with the Company, denied any such
luncheon meeting and denied that Dorsey said that if the Union ever did try to
move in , he would contract out the drayage and more or less clean house . Dorsey
denied making any such statement in the presence of Reed and Boone . The Trial
Examiner finds this denial supported by the disinterested witness , Boone.
Advent of the Union
The union organization effort became reactivated when Consteen Johnson and a
group of the employees met at Swan's Ice House on February 29 to again discuss
possibilities of unionizing. A meeting was scheduled after work on the evening of
March 2 at 6:30. Johnson stated that he had telephoned Teamsters Local 968
on March 1 and set up this meeting with Organizer Nick Howard at Teamsters
headquarters. Eighteen of the drivers and warehouse employees were present.
Before leaving for the meeting at the union hall, Johnson invited Office Manager
Reed to attend the meeting., When Reed finished his work that evening, he in turn
invited Warehouse Superintendent Kensinger to accompany him to the meeting.
Each one of the participants gave somewhat different versions of the incident. The
Trial Examiner finds, however, that Johnson invited Reed to attend the meeting,
that Reed accepted and, in turn invited Kensinger to accompany him to the meeting.
They drove over to the meeting in Kensinger's car where they stayed 10 or 12 min-
utes and "were treated as guests." Johnson's accepted testimony at the time of their
entrance into the meeting was as follows:
Well, Nick Howard was explaining to us the benefits of the Union and Mr.
Kensinger and Mr. Bill Reed walked in. And he [Howard] stopped talking.
And so, he asked me would it be all right-no, he asked me who was those
guys, and I introduced him to Mr. Kensinger and to Mr. Bill Reed, and told
him what position they held. And he asked me if I thought it was all right to
continue. I told him I thought it would be because Mr. Reed was in favor of
the Union. . . Well, I told him just normally, I said, "I think Mr. Reed is
in favor of the Union and you can continue with the conversation." . . .
Well he told us that signing a union card, Nick Howard told us signing a union
card did not make us a union member, and we could sign the cards with our
own free will if we wanted to. And he gave us some cards to sign, and said
sign them, and in signing those cards, some of the guys had trouble knowing
what position they held with the Company, putting it down on their cards, and
Mr. Kensinger helped one of the guys, which is Clarence Norman, fill out his
card, told him what to put on there, such as, warehouseman. And Mr. Bill
Reed was telling him some things to tell the guys, which positions they didn't
hold, not to tell them to put certain things on there they didn't hold. Then, after
that, they gave us a union badge and told us they thought it would be okay for
us to wear the badges on the job.
At the conclusion of this meeting, Kensinger drove Reed back to the warehouse
so Reed could get his truck and then Kensinger drove to the home of Company
Comptroller John Moyer. After discussing what occurred at the meeting Kensinger
decided to let Dorsey know what was going on and Kensinger related the events
to Dorsey, asking "what he thought he should do." He quoted Dorsey as saying
"forget about it." (Dorsey was ill with the flu and had not been to his office that day.)
Branscome Learns of Union Meeting
Branscome, assistant to owner Dorsey, testified that he first learned of the con-
templated union meeting:
As I was leaving the building that same incident [evening], of course, the
warehouse was already closed, so I could not go through the warehouse as we
usually do. I had to go out the front door and go around the building. And
outside is where I met Tommy Walker and he told me about this anticipated
meeting that evening, and that he had been invited or else it had been men-
tioned to him by Johnson, and that Johnson had asked him if he was going to
come with them or stay behind, or something to that effect.
Branscome stated that he did not contact Dorsey in any way that evening-rather
that his first conversation with Dorsey, relative to the information he had received
concerning the meeting, was the following morning after Dorsey got to the office
UNION TRANSFER & STORAGE COMPANY 29
between 9:30 and 10 o'clock, and after he had arranged a conference with a trucking
contractor named Sicola with the plan of contracting out Respondent's trucking op-
eration to Sicola. The Trial Examiner finds this to be the facts.
As previously indicated by the figures set forth in Respondent 's exhibits, the
drayage operation was shown to be a costly mistake-what with a decline in weekly
average of freight hauled of 182,000 pounds, and a corresponding reduction in
income down from 213/4 cents to 203/4 cents per hundredweight. This situation
would have been obvious to everyone involved in the business , from the owner
down through the veriest employee. Its effect on management would be to cause
officials to cast about for a method of eliminating fiscal losses , and the effect on,
employee personnel would be to undermine their morale.
Suffice it to say, upon learning on February 29 that Harper was unable to buy
Union Transfer and Patrick Shipside as a package deal, Dorsey told Branscome,.
"Let's do something-There is no use putting off any longer. Let's get something-
going." At this time there was no union activity of any kind in the picture. Dorsey
had been prodding Harper to give him an answer as to whether or not Harper's
syndicate would buy both businesses because Dorsey had some moves in mind
himself, and could not make any changes in operations until he got an answer
one way or another from Harper. These negotiations had run from the last part
of November until February 29. The record is bare of any activity the next day,
Tuesday, March 1, and Dorsey was at home ill on Wednesday, March 2. However,
the first thing Branscome did on Thursday, March 3, between 9 and 9:30 a.m., was to
call Sicola to come over and discuss taking over their drayage business. Sicola and
Branscome had known each other for some 10 years. In fact, in the preceding
November, Sicola at Branscome's request, had made certain drayage deliveries fox
Union Transfer. Sicola credibly testified in this connection that on March 3;
Well, Mr. Branscome called me and asked me if I was interested in a big
hauling deal, and I said I was if the price was right. And he said, "How soon
can you come up here and talk to me?" I said, "any time." He said, "How
about coming right away?" So I told him I could be there in the next 20 or
30 minutes. So I went to his office and we had a discussion about it. .
We had an open discussion about rates and how much tonnage was involved
and how many trucks it would take for the tonnage and how many man-hours
and the rates.
Sicola stated that the contract was consummated in the presence of Branscome,
Dorsey, and himself on March 3, but he was not certain whether it was signed that
day or the next, on March 4. When he went back to Union Transfer, he stated that
he agreed to give it a trial for 30 days: This contract was dated February 29, but
he stated that he signed it either 2 or 3 days after February 29. He noticed the
wrong date on it but did not pay any attention to it. He was given a copy of the
contract and thought Dorsey's signature was on it. He started working under the
contract on the following Monday. The contract reads as follows:
CONTRACT AGREEMENT
This agreement is between Fisher G. Dorsey Interests and Sicola Bros. Hauling.
It is agreed that Sicola Bros. Hauling will handle all drayage of freight
for Union Transfer'& Storage Company on a rate of .14 cwt. All motor equip-
ment of Union Transfer & Storage Company to be leased to Sicola Bros. Haul-
ing at rate of $25 00 per day based on a six (6) day week and at the end of
thirty (30) days Sicola Bros. Hauling has option to enter negotiations on pur-
chase arrangement for the equipment. This equipment is being turned over to
Sicola Bros. Hauling in good operating condition. All equipment maintenance,
property damage, liability, and cargo insurance , and operating expenses to be
handled by Sicola Bros. Hauling who will also furnish all labor necessary for
the operation of this equipment . This contract to be effective for one year be-
ginning March 7, 1960.
February 29, 1960.
-------------SE--Y -,---------
FISHER G. DOR
FISHER G. DORSEY INTERESTS.
-------------------------
CHARLES SICOLA,
SICOLA BROS . HAULING.
Branscome's testimony is similar to that of Sicola except that he stated positively
that the contract was signed on Thursday, February 3, during a conference between
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10 and 12 a. m. in Dorsey 's office. In his earlier conferences with Sicola , Branscome
had indicated that there would be approximately 750,000 pounds per week to be
hauled locally to consignees in Houston and to various carrier terminals . On Fri-
day, March 4, Sicola talked to the truckdrivers and asked them if they would drive
for him on a commission basis, but they all refused, preferring to work for wages.
Sicola staffed the trucks with his own drivers and Respondent terminated its five
drivers along with three warehousemen at the close of business.
At the end of the first week or in the beginning of the second week Sicola com-
plained vigorously that the tonnage was considerably below that which had been
anticipated and during the second week of performance , he discussed being let off
of his contract with Dorsey. Dorsey agreed that an error had been made in com-
puting the average haul and told Sicola that if he could make a profit at 14 cents a
hundred , he could go his way and Dorsey would go his. Sicola substantiated this
as follows:
Well, yes, he said that. But he wanted me to stay for a period of time until
such a time as he could get somebody else. I said I couldn't stay if I continued
to lose money , even if I had signed a contract , because I felt like the terms was
misrepresented to me and I didn't want to take a loss on the misrepresentation
. Well, he and Mr. Branscome both said they would see I did not take a
loss and would probably come out with some gain.
Dorsey released him from the contract at the conclusion of the second week, dis-
regarded his gasoline bill and waived the $25 per day equipment rental. Sicola was
thereby enabled to make a profit of $50 per week.
The contract was then given to Caesar Gray. It was an oral agreement except that
the equipment, consisting of two Chevrolets, one International, and a tractor-trailer
truck, was sold to Gray who took the responsibility of carrying the insurance, up-
keep, maintenance, and his own drivers' wages.
Caesar Gray, who relieved Sicola on the hauling contract, was an honest and
straightforward witness and undoubtedly able to handle economically a trucking op-
eration such as Respondent 's, but he was certainly not one who had a mind heavily
laden with figures and dates. As previously indicated , he has an oral agreement
under which he began operation in the middle of March-although in his testimony
he confused February and March. The Trial Examiner accepted his testimony im-
plicitly. Queried as to whether or not he was performing all of the local drayage
service for Union Transfer, his answer was "I think I am, yes." He testified that he
commenced providing his services: "I think it was around, somewhere around the
second week, I believe first or second week, in March, I believe it was." He stated
that he had a brother-in-law in the transfer business who suggested that Union
Transfer drayage was going to be up for contract, and that he had a friend who called
him and told him to go over and see Dorsey about the contract. (Incidentally, this
friend was Robert L. Harper who had been negotiating up until the last week in
February with Dorsey and whose negotiations fell through.) Gray's son is stationed
at Union Transfer terminal and dispatches and supervises the trucks acquired on a
purchase agreement from Union Transfer.
H. J. Colson, who had been employed with Red Arrow Freight Lines as district
salesman in Victoria, Texas, had his job abolished around February 10. Colson
had been in all phases of the warehouse business for nearly 25 years. He put in his
application in several places in Houston . In his search for reemployment he came
to Union Transfer and spoke to Dorsey who told him around February 25 to report
for work on Monday, March 1. He quoted Dorsey as saying: "I need a spare tire,
I would like you to learn my operation in the warehouse, stay down there a while
and come up in the office." Colson stated that Dorsey wanted him to learn every
phase of Union Transfer's operation in the warehouse:
Your job down there-[I] just want you to go down there and see what I got
in the warehouse, see if anything is'going on that is wrong, you know what is
wrong and what is right. If the men are loafing down there or anything, you
know what is supposed to go on in a warehouse. . . . You go on in and
introduce yourself to the superintendent, the shipping clerk, receiving clerk,
tell them who you are, that you are working for me. They might want to know
what you are doing around the warehouse.
Colson followed these instructions and worked for 30 days in the warehouse before
he was brought upstairs and immediately took Kensinger 's place as superintendent
when Kensinger left the Company.
The conclusion is inescapable that owner Dorsey, who made all the decisions
and issued the orders on everything of importance concerning his business affairs,
did not undertake nor engage in a scheme to thwart the unionization of his em-
UNION TRANSFER & STORAGE COMPANY 31
ployees-constituting himself and his official personnel a cabal for that purpose.
The Trial Examiner who heard the testimony, observed the witnesses demeanors,
read the record, and considered the arguments and contentions of counsel in their
comprehensive briefs, finds that the only motivation in- Dorsey's entire conduct was
to extricate himself from his uneconomical drayage dilemma . There was no union
animus involved in his successful effort to divest himself from a losing drayage op-
eration which he erroneously undertook when his nephew, Robinson, left him, taking
many of the most profitable contracts. Dorsey had successfully worked for 10 years
with two locals of International Longshoremen Association and was thought well
enough by them to be a member of their welfare committee . Like some manage-
ments, he doubtlessly felt that he could have gotten along better without them-
that they just "messed things up," but he lived with them in "peaceful coexistence."
The Trial Examiner is also of the opinion that from Dorsey 's long experience in
labor relations he was too intelligent and unionwise to have made some of the anti-
union statements attributed to him by certain of General Counsel's witnesses. (Cf.
8(a)(1) treatment hereinafter .) Some, in themselves , would have been implicit
unfair labor practices-such as threats of reprisal , etc., upon rank-and-file manual
laborers.
If not a hard task master , Dorsey was at least an exacting one, a man of few
words, a strict disciplinarian unsentimentally interested only in results . His order
to Branscome to do something about disposing of the unprofitable drayage operation
when informed of the inability of Harper's syndicate to purchase his two businesses
demanded immediate action . Branscome took such immediate action, and Sicola
was saddled with the responsibility without full knowledge of what he had under-
taken. The Trial Examiner is convinced that even though Branscome had heard
about employees meeting the previous evening to discuss unionizing, it played no part
in his efforts to carry out Dorsey's order. Even if Dorsey had been well, it is im-
probable that Branscome would have called Dorsey and injected this certainly un-
pleasant thought in Dorsey's then frame of mind-and it is even more improbable
that Branscome would have alerted Sicola to the fact that he, Sicola, might be con-
fronted with a Teamsters organizational problem. Kensinger 's conference with
Moyer immediately after having injudiciously attended the union meeting and tele-
phoning his sick boss at his home is illustrative of how he felt toward Dorsey.
Dorsey's response to this information was typical of his character, "forget it!"
(Dorsey had little confidence in Kensinger either.) There was also a time factor
which renders the improbability if not the impossibility of Dorsey's concocting a
plan to thwart the organizational activities of its drayage and warehouse employees.
Management officials had no opportunity to get together and make a plot against the
employees after Dorsey's arrival at work and before his conference with Sicola as is
illustrated by a time sequence chart prepared in his brief by Respondent Counsel
Saccomanno and attached hereto as an appendix . The suggestion that Sicola take
over his trucks and drivers negatives such a plot. The last thing that Dorsey would
want would be a fracas with the Union.
The sole concern of Dorsey was to rid himself of an unprofitable operation It is
understandable to the Trial Examiner that Dorsey, old and sick and desirous of
getting his business affairs in order, would have followed the practices in this
instance which evidently have characterized his entire successful business experience.
This case does not fall within the line of cases wherein an employer may be
ordered by the Board to reopen a farmed out department . Cf. Jay Foods, Inc.,
29 NLRB 690. Therefore , the Trial Examiner will recommend that the counts in
the complaint involving the alleged , discriminatory discharges of the five truck-
drivers and three warehousemen , excluding Consteen Johnson and Ned Haywood,
be dismissed . The cases of Johnson and Haywood are treated repeatedly hereinafter.
The Allegation of Surveillance
The allegation that Respondent engaged in unlawful surveillance of union meetings
and activities rests on the attendance of Reed and Kensinger at the meeting at
Teamsters headquarters on March 2 . These circumstances are detailed hereinbefore.
The invited attendance of a minor warehouse supervisory employee, Kensinger, and
a minor office managerial employee , Reed, does not constitute an act of surveillance
under the circumstances heretofore described , as the Board uses the term. Trial
Examiner Funke in Rural Electric Company, Inc., 130 NLRB 799, succinctly stated
the rule which is applicable in this case.
The vice in surveillance lies in the intrusion by management into the organiza-
tional activities of employees, the breach of their freedom to engage in con-
certed activity , and the necessarily coercive effect of espionage upon the
employees.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
None of these untoward elements was present , and management was unaware of the
meeting and attendance , and predicated no action thereon when they learned what
had transpired . Accordingly , the Trial Examiner will recommend that the count
in the complaint involving surveillance be dismissed.
Discharge of Reed
The allegation that Respondent discharged Billy Joe Reed, a supervisor, on or
about March 4, 1960 , because of his prounion sympathies is alleged as being violative
of Section 7 of the Act as having interfered with , restrained , and coerced employees
in the exercise of guaranteed rights. The facts of record show that Respondent sus-
tained its defense that Reed was discharged because of inefficiency as is evidenced by
the testimonies of office employee, Elvie Borens, Superintendent Branscome, and
owner Dorsey. In Borens ' estimation he "didn 't do any work" and "he spent a good
bit of time in the coffee shop just talking and drinking coffee." Branscome had had
heart-to -heart talks with Reed along the same lines. Dorsey testified that Reed
did not fit into the job, and that by reason of mechanization of office procedures
recommended by his professional mangagement counsel , Reed was not needed and
was accordingly discharged.
It is significant to the Trial Examiner that these discharges all came at a time
when reorganization of Dorsey 's entire business was being accomplished . Such re-
organization predated the union activities , and was the only factor in the discharges
alleged in the complaint. Also, there is no basis for finding that Supervisor Reed
should be offered reinstatement with backpay as argued by General Counsel. Under
the doctrine of N.L .R.B. v. Columbus Iron Works Company , 217 F . 2d 208 (C.A. 5),
even if Reed, a supervisor , had been discharged whether or not discriminatorily, no
violation of the Act would be involved . Even assuming , arguendo , that Dorsey had
fired Reed for union activities and attending union meetings, Reed would not be en-
titled to reinstatement. It is clear from the history of the Taft-Hartley legislation
that Congress intended to restore to employers the right and power to insist upon
the undivided loyalty of their supervisory personnel . The following observations of
Senator Taft especially illuminating:
The bill provides that foremen shall not be considered employees under the
National Labor Relations Act. They may form unions if they please, or join
unions, but they do not have the protection of the National Labor Relations
Act. They are subject to idscharge for union activity , and they are generally
restored to the basis which they enjoyed before the passage of the Wagner Act.
It is felt very strongly by management that foremen are part of management;
that it is impossible to manage a plant unless the foremen are wholly loyal to the
management.
The Alleged 8(a)(1)'s
The complaint alleged that Respondent interfered with, restrained , and coerced its
employees by interrogating employees concerning their membership in the Union,
threatening employees with loss of membership, engaging in surveillance of union
meetings , and discharging Supervisor Reed because of his prounion sympathies.
The first of these interrogations to be treated deals with employees Blakes and Mills.
Both testified that they were summoned to Dorsey 's office on March 11 when
Mechanic Walker told them that Mr. Dorsey wanted to see them . They stated that
after arrival in Dorsey 's office, he asked , them how they felt about the Union and
how other fellows felt about the Union . They stated that this meeting occurred
around 9 : 30 a.m . They also testified that Dorsey told them that there would be no
union at Union Transfer & Storage Company because before he would allow the
warehouse to go union he would close up or turn operations over to another party.
Dorsey's accepted testimony on this point is:
They came to my office and I asked them what they wanted. They said Tommy
Walker told them I wanted to see them . I corrected them I had not told
Tommy any such thing and then right away they said , "We came to tell you we
are on your side ; we don 't want any union ." And I stayed quiet and [they]
followed through on that , "We would like to have a little raise , though." Now,
that was Mills talking . I said, "First of all , if you are entitled to a raise, I
wouldn't give it to you because I would be accused of buying your votes." I
said , "That is all out."
Dorsey also similarly testified that he did not tell them that he would contract
out the drayage nor turn the warehouse over to someone to operate . Blakes and
UNION TRANSFER & STORAGE COMPANY 33
Mills also testified to another meeting in Dorsey's office on another occasion.
Blakes said that the second meeting was some weeks after the meeting of March 11.
Mills testified that the second meeting was before March 11. Dorsey testified that
there was only one meeting and that it occurred about 1 week before the election
which was March 25. The real crux of the conflicting testimonies of Blakes, Mills,
and Dorsey resolves into one question: Were there two meetings in Dorsey's office or
only one? Dorsey says there was only one. Blakes and Mills were confused as to the
times of the meetings but both agreed on the interrogation and threats. Blakes
stated that on the second meeting they went up there to boi row some money. He was
positive in his testimony as to facts occurring on or about March 11 but equivocated
and could not be pinned down nor remember questions propounded to him by Re-
spondent Counsel Saccomanno just a week before this trial. He stated that they
did not meet Branscome as they came up the stairs to Dorsey's office but did recall
meeting Kensinger. The versions given by Blakes and Mills are conflicting and un-
certain. Those given by Dorsey, Branscome, and Kensinger are certain. According-
ly, the Trial Examiner rejects the testimonies of Blakes and Mills and finds that
there was only one meeting, that being around March 11, and that their purpose
in coming up to Dorsey's office was to borrow money and assure him of their support
after the Union had filed its charges on March 8. The Trial Examiner concluded
that they, like other employees, had previously importuned Dorsey for loans, but
had gotten their stories mixed up on the occasion of this trial. Accordingly, the Trial
Examiner will recommend that the complaint be dismissed on this count of interroga-
tion and threats of reprisal.
Discharge of Johnson and Haywood for Smoking
Extensive testimony was heard and numerous exhibits of demonstrative evidence
were admitted dealing with the discharges for violating Respondent's no-smoking rule.
From the documentary evidence there are pictures showing no-smoking signs in the
warehouse. It is a matter of common knowledge that smoking is not allowed in
warehouses of the type of Respondent's in any city, and particularly not in Houston,
where city ordinance specifically forbids such smoking and provides punishment for
infraction of this law. Further it was brought out in the record that smoking was
forbidden except in front of-the dock door entrance. All of the witnesses agreed on
this fact, and when Johnson was once caught smoking by Dorsey in the warehouse,
Dorsey told him that he ought to fire him, and admonished him never to do it again.
Superintendent Branscome had reprimanded Johnson about smoking in the ware-
house. Dorsey credibly testified that he. had caught Haywood smoking in the ware-
house around the middle of February and Kensinger likewise testified that he had
seen Haywood smoking on two prior occasions, prior to the first of March. Haywood
denied this but the Trial Examiner resolved this credibility conflict in favor of Re-
spondent's witnesses.' The reasons behind the more objective testimony of Respond-
ent's witnesses was that they, with the exception of Dorsey, had less or nothing to
gain by fabricating facts. Accordingly, the Trial Examiner thus resolved evidentiary
conflicts against General Counsel's witnesses. _
The discharges of Johnson and Haywood were made by Colson. It will be recalled
that Colson made application for employment on February 18, was interviewed by
Dorsey on February 25, and went to work on March 1. His instructions from Dorsey,
as heretofore recited, were to find out everything possible that was wrong with
Dorsey's operation. The Trial Examiner came to the conclusion, after carefully ob-
serving Colson and studying his testimony in light of all other testimony, that he
carried out literally his instructions. Obviously Colson had no background of ex-
perience in Dorsey's operations and it is apparent on the face of the record that he
went about his job as an "eager beaver." His inspections drew the attention and
concern not only of Reed, but also of Kensinger as to which one of them Colson
might supplant. The Trial Examiner accepts Colson's testimony that he caught both
Johnson and Haywood smoking in the warehouse from March 1 through 4 when
they were discharged. He reported these facts to Dorsey and recommended their
discharge and was told to fire them. Accordingly, the Trial Examiner finds that
Johnson and Haywood were discharged for cause, and it will be recommended that
this count in the complaint be dismissed.
Based upon his observation of the demeanors of the testifying witnesses, their ob-
jectivity and the manner in which they gave their testimonies , the Trial Examiner came
to the conclusion that the witnesses for the Respondent were in the main reliable ;
whereas the'witnesses for General Counsel equivocated, became confused , were tripped up
on cross-examination , or made diffused assertions.
630849-62-vol. 134-4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Layoff of Horton, Stevens, and Hardin
Employees Horton, Stevens, and Hardin were laid off at the direction of Super-
visor Kensinger. Kensinger discussed with Branscome on March 4 about laying
off some of the employees stating: "I told him the workload was pretty well accom-
plished and I could get back in line with the payroll again." He stated that he
followed strict seniority in layoffs whenever possible, but that layoffs were matters
within his sole discretion. The evidence of record supports Kensinger's reasons for
laying these three men off at this time. Subsequent rehiring of other laborers is
accounted for by the increased number of carloads of rice to be unloaded. The
Trial Examiner implicitly accepts Kensinger's version and finds these layoffs not to
have been discriminatorily motivated.
The Union Button Incident
Considerable testimony was given with reference to the charge that management
interrogated employees on March 2 concerning the wearing of union buttons. These
actions were primarily attributed to Dorsey and are advanced by General Counsel as
being evidence of union animus which occasioned the discharges. This incident
occurred in the forenoon following the union meeting of the previous evening.
Undoubtedly several of the employees who had attended the union meeting openly
wore their buttons. There is no doubt but that the wearing of these buttons came
to the attention of supervisors, but the Trial Examiner finds that the wearing of the
buttons played no role in the decision of management to change the operation and
contract out the drayage as well as to curtail their personnel. In one incident Dorsey
is charged with having approached Johnson, inspected the button and asked him if
he did not know that the button was "hot." The Trial Examiner rejects Johnson's
version of this event and finds that remarks made by Dorsey, if any, were not in the
nature of threats of reprisal but rather would have been facetious. This incident is
found to be no violation of the Act.
Disposition of Challenged Ballots in Case No. 23-RC-1511
The Trial Examiner, having found that Johnson, Jones, Bush, Runnels, Williams,
Haywood, Horton, Mills, Stevens, and Hardin were not discharged for their union
activity, their challenged ballots need not be opened and counted nor a revised tally
of ballots be served upon the parties. The ballots are invalid.
Upon the basis of the foregoing findings of fact, and upon the record as a whole,
it will be recommended that the complaint be dismissed in its entirety and, further,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Union Transfer & Storage Company is engaged in and, during all times material,
was engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
2. General Drivers, Warehousemen and Helpers Local Union No. 968 is a labor
organization within the meaning of Section 2(5) of the Act.
3. The allegations of the complaint that Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act
has not been sustained by a preponderance of the substantial evidence.
[Recommendations omitted from publication.]
Pine State Creamery Company, Inc. and James Marshall
Hilliard and Howell L. Jones . Cases Nos. 11-CA-1710-2 and
11-CA-1730. November 7, 1961
DECISION AND ORDER
On July 12, 1961, Trial Examiner James A. Shaw issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and is engaging in certain unfair labor
134 NLRB No. 3.