A-1 Excelsior Van & Storage Co., Inc.

National Labor Relations Board - Board Decisions

Jun 15, 1967

165 N.L.R.B. 427 (N.L.R.B. 1967)

A-1 EXCELSIOR VAN & STORAGE CO., INC.
A-1 Excelsior Van & Storage Co., Inc. and
Local 544, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America . Case 18-CA-2246
June 15, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On November 29, 1966, Trial Examiner Arthur M.
Goldberg issued his Decision in the above-entitled
case, 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 attached Trial
Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision and a supporting brief. The Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner only to the extent they are consistent
with its Decision herein.
The complaint alleges that A-1 Excelsior Van &
Storage Co., Inc., Respondent herein, violated
Section 8(a)(1), (3), and (5) of the Act by interrogating
and threatening employees, by subcontracting its
local moving and storage work and discharging
employees engaged in such work, and by refusing to
bargain with Local 544, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, the Union herein, as exclusive
representative of a majority of its employees in an
appropriate unit. The Trial Examiner recommended
that the complaint be dismissed in its entirety.' We
disagree, for the reasons stated below.
The basic facts, to the extent they are
uncontroverted, are as follows: the Respondent, a
Minnesota corporation, has been engaged in long-
distance and local moving and storage in the
Minneapolis, Minnesota, area, since around
January 1, 1966. At all pertinent times, the sole
' In the absence of exception thereto, we adopt, pro forma, the
Trial Examiner 's recommendation that the complaint be
dismissed insofar as it alleged that Respondent interrogated and
threatened employees on or about June 6, 1966
' The Trial Examiner found , and the Respondent does not
deny, that this was an appropriate unit
427
officers and owners of the Respondent were Larson,
Johnson, and Proctor. Proctor hired Becker and
Ellwanger in February 1966, and Johnson hired
Jenkins in April 1966, to do local moving from
Respondent's Excelsior, Minnesota, location, which
is the only one involved in this proceeding. This
work was done with the use of two trucks owned by
the Respondent. Respondent also used owner-truck
operators to do long-distance moving. In early May,
apparently because of an increase in local moving,
Respondent advertised in the Minneapolis
newspapers for employees to do such work. In the
middle of May, Becker told Proctor that the men
should get a salary increase and, if not, he and the
men felt they should go to the Union. Proctor
replied: ". . . don't do that; you know we would
rather close our doors than have the union in there."
On June 3, 1966, Becker, Jenkins, and Ellwanger
signed cards authorizing the Union to represent
them. In the afternoon of Monday, June 6, the Union
wrote Larson, enclosing copies of the three signed
authorization cards, and a proposed contract, and
requesting recognition in a unit of local drivers and
warehousemen at the Excelsior, Minnesota,
location.2 Becker and Jenkins met Proctor in the
evening on June 7 and Proctor advised them that
they could only work through Friday, June 11,' as
Respondent was giving up its local business because
it was losing money. However, Proctor promised to
help the men find work, suggesting that they contact
Larson Transfer for work.4 Becker then told Proctor
that he knew that Respondent had received notice
from the Union; Proctor did not reply.
When Becker reported for work on June 8, he
noticed in the workbook in which local moving jobs
were listed, and from which employees took their
assignments for the day, that a number of local
moving jobs had been crossed through and marked
as leased to Austin Transfer. For the balance of the
week, employees worked fewer hours than in the
past. On June 10, Becker applied for a job with
Larson Transfer; Larson, in rejecting Becker's
application, said that he did not want trouble with
the Union and that his men were happy. The
employees reported to the Respondent for work on
June 13. Ellwanger was put tQ work helping in
loading, but Becker was advised to go to Larson
Transfer, and Jenkins was advised there was no
work for him. The next day, the Union filed the
charges in the instant case.
The Trial Examiner recommended that the
Section 8(a)(3) allegations of the complaint be
dismissed. He concluded that Respondent's decision
to subcontract local hauling work and to terminate
its employees was motivated solely by valid
' Respondent's workweek begins on Thursday and ends on
Wednesday Friday is payday
' Larson, one of Respondent's owners, also owns Larson
Transfer However, Larson and Respondent are separate
corporations, it is not alleged that they constitute a single
employer
165 NLRB No. 45
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
economic reasons, and was undertaken prior to the
advent of the Union.
The Trial Examiner initially found that
Respondent arranged to subcontract the local
hauling work on May 30, before it knew of the advent
of the Union. The Trial Examiner in this connection
noted that there was no evidence that Respondent
received the Union's demand for recognition, mailed
on June 6, before the evening of June 7, when
Respondent notified employees that it was giving up
its local business.
However, the Trial Examiner gave no weight to
the fact that in the middle of May, before the
subcontracting arrangement was allegedly made,
Respondent was made aware that employees were
considering going to the Union. Respondent's
response to this information was that it would shut
down the business rather than recognize the Union.
There is no direct evidence that Respondent knew
that its employees signed union authorization cards
on May 3. However, when Becker asserted that
Proctor knew that the Union had demanded
recognition, Proctor did not reply; this further
suggests that when Proctor announced to employees
that the work was being subcontracted, he knew that
employees had joined the Union.
Respondent's antiunion animus is evidenced by
Proctor's threat that he would shut down rather than
recognize the Union, and by Larson's statement on
June 10 to Becker that he didn't "want any trouble
with the Union."5
Also supporting the General Counsel's prima facie
case that the subcontracting was discriminatorily
motivated is Respondent's assertion that the
decision to subcontract was made on May 30, less
than 2 weeks after Respondent learned that its
employees were interested in the Union; and the fact
that this decision was for the first time transmitted
to employees on June 7, 3 days after they signed
authorization cards and 1 day after the Union mailed
its recognition demand.
Respondent's claim, which the Trial Examiner
accepted, is that the subcontracting was for valid
economic reasons; more specifically, Respondent's
officials testified that it had undertaken to use its
own employees for local trucking on a trial basis;
that early in May they had received an auditor's
report showing that in the January to April period it
was paying excessively high labor costs in its local
moving operation; that the three owners discussed
the report and decided to contract out the local
The Trial Examiner found that Larson was speaking in his
role as owner of Larson Transfer, however, the issue is not
whether Larson Transfer, not a respondent herein, violated the
Act, but rather whether Larson, an owner of Respondent, had
shown union animus We find that this statement clearly
establishes that he had The complaint does' not allege that the
statements by Proctor or Larson violated Section 8(a)(1)
" These employees testified that Proctor or Johnson told them
business or to eliminate as much of the business as
possible; and that, on May 30, Johnson arranged
with Warren Austin, a local trucker, that Austin
would handle Respondent's local trucking
operations.
We find this explanation for the subcontracting
unconvincing for a number of reasons.
The Trial Examiner is in error in stating that
Larson testified without contradiction that
Respondent was utilizing its own employees for local
hauling on a trial basis ; the three employees testified
that they in effect were told at various times that
their jobs were permanent .'' We consider highly
significant the fact that in early May, at the very time
Respondent, according to its assertion, had received
an unfavorable financial report from its auditors and
was allegedly discussing the elimination of its local
operations, Respondent was advertising in the
newspapers for employees to do local moving, a fact
not alluded to by the Trial Examiner.
We are also unpersuaded by Respondent's self-
serving testimony as to the contents of the auditor's
report. The auditor's report was not introduced in
evidence, nor did Respondent introduce any other
documentary proof showing that the local operations
were unprofitable. Also, Respondent failed to
produce any documentary evidence of the
arrangement allegedly made with Warren Austin at
the end of May. Respondent' s claim that it made the
decision to subcontract for economic reasons is
further undermined by the fact that the
subcontracting took place in June, which is at the
beginning of its busy season; indeed, at the hearing,
Larson admitted that he executed a pretrial
statement- stating that the fact that the "men had
gone to the Union hastened [his] decision to
subcontract out the work."
In view of the foregoing, and upon the record as a
whole, we conclude that Respondent knew or
suspected that its men were for the Union before the
decision to subcontract was made, and that this
decision was made in order to destroy the unit in
which the union activity was taking place. We
therefore find, in disagreement with the Trial
Examiner , that Respondent violated Section 8(a)(3)
by subcontracting its local hauling work and by
discharging its employees in order to discourage
union activity among its employees.?
The Trial Examiner found, and we agree, that on
and after June 3 the Union was the representative of
a majority of the employees of the Respondent in the
that their work would be steady and would last at least through
the summer , and Becker testified that he was promised a
promotion by Proctor
' In view of this finding, and as it would not affect the remedy
herein, we find it unnecessary to decide whether Respondent also
violated Section 8(a)(5) by unilaterally subcontracting its local
operations
A-1 EXCELSIOR VAN & STORAGE CO., INC.
appropriate unit : The record discloses that all three
of Respondent's local drivers had signed union
authorization cards on June 3." However, since the
Trial Examiner found that Respondent lawfully
decided to subcontract its local hauling work and to
terminate its employees, he also recommended that
the 8(a)(5) allegations of the complaint be dismissed.
Contrary to the Trial Examiner, we have found that
the subcontracting and the discharges violated the
Act; to remedy these violations, we shall order
Respondent to reopen the local moving and
warehouse department and to reinstate the
discharged employees. Although Respondent admits
that it received the Union's request for recognition
on June 10, at all times since that date it has failed to
bargain collectively with the Union. That such
failure to bargain was not in good faith, but rather
was designed to destroy the Union's majority status,
is made plain by Respondent's unlawful conduct in
discriminatorily subcontracting local hauling work,
thereby eliminating the unit in which the Union
sought to bargain. We therefore find, contrary to the
Trial Examiner, that Respondent violated Section
8(a)(5) by failing to bargain on and after June 10 with
the Union as exclusive representative of its
employees in an appropriate unit.
THE REMEDY
Having found that the Respondent has engaged in
conduct violative of Section 8(a)(1), (3), and (5) of the
Act, we shall order it to cease and desist therefrom
and take certain affirmative action to effectuate the
policies of the Act. Having found that Respondent
discriminatorily subcontracted its local hauling
operations and discharged its local drivers, we shall
order the Respondent to resume its local hauling
operations, and offer to all local drivers and
warehouse employees discharged on June 7, 1966,
reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges." We shall
also order that Respondent make these employees
whole for any loss of earnings suffered because of its
discrimination against them. Backpay shall be based
upon the earnings which they normally would have
received from the date of their discharge to the date
of Respondent's offer of reinstatement, less any net
interim earnings , and shall be computed on a
quarterly basis in the manner set forth in F. W.
Woolworth Company; I" such earnings shall also bear
interest at the rate of 6 percent per annum.''
We have also found that Respondent unlawfully
refused to recognize and bargain with the Union as
representative of its local warehousing and hauling
s While the appropriate unit allegedly included warehouse
employees , the record shows that at relevant times Respondent
employed no warehouse employees, except that local drivers
apparently also did warehouse work The record contains no
specific evidence as to the subcontracting of warehouse work.
H Herman Nelson Division , American Air Filter Company, Inc,
429
employees on and after June 10. We shall therefore
order the Respondent to bargain collectively with
the Union as the exclusive representative of those
employees and embody any understanding reached
in a signed agreement.12
Upon the basis of the foregoing and upon the
entire record in this case, the National Labor
Relations Board hereby makes the following:
ADDITIONAL AND AMENDED CONCLUSIONS OF LAW
3. By subcontracting its local warehouse and
moving operations and discharging its employees
engaged in such operations in order to discourage
union and other concerted activity, the Respondent
has discriminated, and is discriminating, in regard to
hire and tenure and terms and conditions of
employment of said employees, and is thereby
discouraging concerted activities of its employees,
and thereby has engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the
Act.
4. All local drivers and warehousemen employed
by the Respondent at its Excelsior, Minnesota,
location, excluding office clerical employees,
guards, professional employees, and supervisors, as
defined in the National Labor Relations Act, as
amended, constitute a unit appropriate for the
purposes of collective bargaining within the meaning
of Section 9(b) of the Act.
5. At all times since June 3, 1966, Local 544,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, the labor
organization herein, has been, and now is, the
exclusive representative of all the employees in the
above appropriate unit , for the purposes of collective
bargaining within the meaning of Section 9(a) of the
Act.
6. By refusing to recognize and bargain with the
above Union on and after June 10, 1966, 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.
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,
A-1 Excelsior Van & Storage Co., Inc., Excelsior,
Minnesota, its officers, agents, successors, and
assigns, shall:
127 NLRB 939, 940, American Manufacturing Company of Texas,
139 NLRB 815,819
11 90 NLRB 289.
i i Isis Plumbing & Heating Co , 138 NLRB 716.
i' Town and Country Manufacturing Co, Inc , 136 NLRB 1022,
1030
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from:
(a) Subcontracting its operations or discharging
its employees for discriminatory reasons, or in any
other manner discriminating against employees
because of concerted or union activities.
(b) Refusing to bargain collectively concerning
wages, hours, and other terms and conditions of
employment with Local 544, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, as the exclusive
representative of all its employees in the following
appropriate unit.
All local drivers and warehousemen employed by
the Respondent at its Excelsior, Minnesota, location,
excluding office clerical employees, guards,
professional employees, and supervisors as defined
in the National Labor Relations Act, as amended.
(c) In any other manner interfering with,
restraining, or coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act, except
to the extent that such rights may be affected by an
agreement conforming to the provisions of Section
8(a)(3) of the National Labor Relations Act, as
amended, requiring membership in a labor
organization as a condition of employment.
2. Take the following affirmative action designed
to effectuate the policies of the Act.
(a) Reopen its local warehouse and moving
department and offer to Bernard H. Becker, David
C. Ellwanger, and Harry Jenkins reinstatement to
their former or substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges, and make them whole in the manner
set forth herein in the section entitled "The
Remedy."
(b) Upon request, bargain collectively with the
above-named Union as the exclusive representative
of the employees in the above-described unit, and, if
an agreement is reached, embody such
understanding in a signed agreement.
(c) Notify the above-named employees if
presently serving in the Armed Forces of the United
States of their right to full reinstatement upon
application in accordance with the Selective Service
Act and the Universal Military Training and Service
Act, as amended, after discharge from the Armed
Forces.
(d) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records, social security payment records,
timecards, personnel records and reports, and all
other records necessary to analyze the amount of
backpay and other benefits due and the rights of
employment under the terms of this Order.
(e) Post at its establishment at Excelsior,
Minnesota, copies of the attached notice marked
"Appendix."" Copies of said notice, to be furnished
by the Regional Director for Region 18, after being
duly signed by an authorized representative, shall be
posted by it immediately upon receipt thereof, and
be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 18, in
writing, within 10 days from the date of this Order,
what steps have been taken to comply herewith.
i 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 you that*
WE WILL NOT subcontract any of our
operations or discharge employees for
discriminatory reasons, or in any other manner
discriminate against employees because of
concerted or union activities.
WE WILL reopen our local warehouse and
moving department and offer to Bernard H.
Becker, David C. Ellwanger, and Harry Jenkins
reinstatement to their former or substantially
equivalent positions, without prejudice to their
seniority or other rights and privileges, and
make them whole for any losses suffered
because of our discrimination against them.
WE WILL, upon request, bargain collectively
with Local 544, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America, and, if an understanding is
reached, embody such understanding in a
signed agreement.
The bargaining unit is:
All local drivers and warehousemen
employed at our Excelsior, Minnesota,
location, excluding office clerical
employees, guards, professional employees
and supervisors as defined in the National
Labor Relations Act, as amended.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of rights guaranteed in Section 7 of the
Act, except to the extent that such rights may
be affected by an agreement conforming to the
provision of Section 8(a)(3) of the National
Labor Relations Act, as amended, requiring
A-i EXCELSIOR VAN & STORAGE CO., INC. 431
membership in a labor organization as a
condition of employment.
A-1 EXCELSIOR VAN &
STORAGE CO., INC.
(Employer)
Dated By
(Representative) (Title)
Note: We will notify the above-named employees
if presently serving in the Armed Forces of the
United States of their right to full reinstatement
upon application in accordance with the Selective
Service Act and the Universal Military Training and
Service Act, as amended, after discharge from the
Armed Forces.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 316 Federal Building, 110 S. 4th St.,
Minneapolis, Minnesota 55401, Telephone 334-2618.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARTHUR M. GOLDBERG, Trial Examiner: Upon a charge
filed on June 14, 1966, by Local 544, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (herein called the Union or the
Teamsters), the complaint herein issued on August 31,
1966, alleging that A-1 Excelsior Van & Storage Co., Inc.
(herein called Excelsior or the Respondent), violated
Section 8(a)(1), (3), and (5) of the National Labor Relations
Act, as amended (herein called the Act). The alleged
8(a)(1) violations included interrogation of employees as to
their protected activities and the threat of subcontracting
the employees' work because of their affiliation with the
Union. Section 8(a)(3) was alleged to have been violated by
reduction of the employees' hours of work and subsequent
discharge because of their union adherence. Finally, by
refusal to bargain with the Union following its demand for
recognition and by its unilateral subcontract of the unit
work and discharge of the employees, Respondent is
alleged to have violated Section 8(a)(5). Respondent denied
the commission of any unfair labor practices.
All parties participated in the hearing conducted by
Trial Examiner Arthur M. Goldberg at Minneapolis,
Minnesota, on October li, 1966, and were afforded full
opportunity to be heard, to introduce evidence, to examine
and cross-examine witnesses, to present oral argument,
and to file briefs. Oral argument was waived and briefs
were filed by Respondent and General Counsel. Motions
by Respondent to dismiss the complaint and by General
Counsel for summary judgment, on which I reserved
ruling until issuance of this Decision, are disposed of in
accordance with my findings below.
Upon the entire record in the case, my reading of the
briefs, and from my observation of the witnesses and their
demeanor, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleged, the answer did not controvert,
and I find that A-1 Excelsior Van & Storage Co., Inc., is
and has been at all times material herein a Minnesota
corporation with its principal place of business at
Minneapolis, Minnesota, where it is engaged in long-
distance and local moving. During the 12-month period
ending July 31, 1966, in the course and conduct of its
business operations, Respondent furnished interstate
freight transportation services from which it received in
excess of $50,000 gross revenue.
Respondent is and has been at all times material herein
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act and meets the Board's
standards for asserting jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
Local 544, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Prior to the summer of 1965, William Don Larson, owner
of Larson Transfer Company, a commercial trucker in
Minneapolis, operated as well a one-man local moving
business on weekends and during the evening hours. In
the middle of 1965 Larson became associated with Harlan
Johnson and Fred Proctor, obtained the Greyhound
franchise for long-distance moving, and established
Respondent company, which was incorporated in January
1966,1 to perform both loner distance and local moving. In
February, Excelsior hired Bernard H. Becker and David
C. Ellwanger to work on local moving and in the
warehouse. Prior to their employment, Excelsior
contracted out some local hauling work to various trucking
companies and used part-time employees for the balance.
Harry Jenkins was added to the local moving work force in
April. Larson testified without contradiction that
Excelsior's use of its own employees, rather than
contracting out the local hauling work, was undertaken on
a trial basis. Labor for the long-distance moving was
supplied by the owner-operators of the moving rigs.
Although Respondent corporation never issued stock, it
appears that Larson, Johnson, and Proctor were equally
interested in the operation.' It was Excelsior's original
purpose to do long-haul moving which is more profitable
Unless otherwise indicated all dates hereinafter were in 1966
Apart from any proprietory interest in Excelsior, Proctor was
clearly Respondent 's agent and /or supervisor at all times material
herein Proctor hired Becker and Ellwanger and it was he who
informed the employees of the pending termination of their
services In addition, Proctor appears to have been Excelsior's
"Outside" or "front" man. Though not president of the Company
(Larson was president), Proctor assumed the title and role with
Larson's knowledge Larson agreed to this as he felt Proctor
might have need for the title of president when calling on an
account By the time of the hearing herein any interest Proctor
might have had in Excelsior had been purchased by Larson, and
Proctor had left town leaving no known forwarding address
Respondent 's counsel stated for the record that he had sought
unsuccessfully to locate Proctor to secure his testimony for this
proceeding
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than local work. However, short haul breeds long haul'
and in addition, Excelsior is required to do local moving,
not only to generate long-distance jobs, but also as Larson
testified, to fulfill its obilgation to see that the long-haul
jobs were delivered locally. For its local short-haul moving
business , Excelsior owns two rigs.
Over the course of time, the employees became
dissatisfied with the lack of paid holidays and what they
felt were low wages and long hours. It was customary for
some of the employees, Proctor and Respondent's
salesmen , to meet for breakfast at a local restaurant. On
one such occasion in the middle of May, Becker said that if
the men did not get a salary increase he felt they should go
to the Union in their search for higher wages and less
hours. Proctor told Becker not to do that because "[y]ou
know we would rather close our doors than have the union
in there .`4
On Friday, June 3, employees Becker, Jenkins, and
Ellwanger, while out on a local moving job, determined to
contact the Union. In response to the employees' call, the
Teamsters sent out two representatives who met with the
employees during their lunchbreak. After discussion of
their gripes, the employees, in each others presence,
signed cards authorizing the Union "to represent [him] in
all matters relating to wages, hours and working
conditions." I find that at all times , on and after June 3,
the Union was designated as the collective-bargaining
representative of all of Respondent's employees in an
appropriate unit.'
The following Monday, June 6, the employees paid
initiation fees to the Union. That same afternoon the
Teamsters sent to Excelsior an unequivocal demand for
recognition, enclosing in the same envelope photocopies of
the three authorization cards and copies of a collective-
bargaining agreement for Respondent to sign.''
Becker called the Union on June 7 to see if the demand
for recognition had gone out because nothing had been
heard from the Teamsters in Excelsior's office.
Tuesday evening, June 7, on their way home from work,
Becker and Jenkins, using the latter's car, dropped off
packing material at a customer's home. There Becker
found a message to call Proctor. Pursuant to Proctor's
request, Becker, together with Jenkins, met with Proctor
at a local restaurant. After explaining that Excelsior was
losing money on the local moving operation, Proctor told
the men that Respondent was giving up the local business.
Proctor offered to help the men find work with another
moving concern or opined that Don Larson might hire
them. Becker told Proctor he knew that Excelsior had
received notice from the Union. Becker recalled that
Proctor had nothing to say in reply. It was Jenkins'
7 Testimony of Larson
' The account of this incident is based on Becker's
uncontradicted testimony
s The complaint alleged, the answer admitted, and I find that
all local drivers and warehousemen of Respondent at its
Excelsior, Minnesota, location, excluding office clerical
employees , professional employees, guards, and supervisors as
defined in the Act, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9(b) of the
Act
" Pamala Chappie , secretary to the Union's secretary - treasurer,
credibly testified that at approximately 2 p.m on June 6, she
typed, signed , and personally mailed the demand for recognition
r On the basis of the employees ' worksheets , from which they
were paid, it appears that each worked the following hours on
each day of their last 2 weeks of employment:
testimony that Becker said the men were going to the
Union and Proctor replied he already knew about it.
Additionally, Jenkins quoted Proctor as saying that
"[m]ore or less it was a foolish move to make" as they
would never get the union in at Excelsior. As between
Becker's and Jenkins' versions of the conversation, I
credit that of Becker. Becker, who had been the leading
spirit in the union activity, was the more articulate and
gave a more detailed account of his activities. Jenkins was
led by General Counsel during most of his testimony,
including that pertaining to this incident. Moreover,
Jenkins' version of Proctor's remarks on June 7 does not
appear responsive to the occasion but seems instead to
corroborate Becker's account of the mid-May breakfast
conversation. Accordingly, I do not find that on June 7
Proctor acknowledged that Excelsior had by then received
the Union's demand for recognition.
Upon reporting for work on June 8, Becker noticed in
the workbook, in which Excelsior listed moving jobs to be
performed and from which the employees took their
assignments for the day, that a number of local moving
jobs had been crossed through and marked as leased to
Warren Austin Transfer. For the balance of that week the
employees worked fewer hours than in the past, though all
parties agreed at the hearing, June is the busy moving
season.
On June 8, Proctor again offered to secure employment
for the employees with another mover. This time Becker
turned down the offer, saying he was pushing for the Union
at Excelsior.
Becker and Jenkins were sent to Larson Transfer on
June 10 to pick up a truck to be delivered to an over-the-
road driver waiting uptown for the equipment. While
there, Becker told Larson he would like to work for Larson
Transfer. Larson rejected Becker saying, "I don't want
any trouble with the union . My men are happy.""
Though Proctor had only asked the men to work through
Saturday, June 11, all three reported to Excelsior on
Monday, June 13. At that time, Ellwanger was put to work
helping a local driver load; Becker was told to go to Larson
Transfer; and Jenkins was advised there was no work for
him. Thereafter, the instant charge was filed.
Johnson and Larson testified that early in May they had
received from Excelsior's auditor a profit-and-loss
statement covering the 4-month period, January through
April, which showed that 75 percent of each revenue dollar
derived from local moving was being paid out for labor as
against an industry expectation of 45 percent. This
auditor's report was not introduced at the hearing. The
three partners discussed the auditor's report and, Johnson
testified, decided to contract out the local business or
5/31 6/1 6/2 6/3 6/6
Becker 9% 15 13 12 10
Jenkins 9% 15 13 12 10
Ellwanger 9% 12 12 8% 2%
6/7 6/8 6/9 6/10 6/11
Becker 10 7 8 4 7t/x
Jenkins 10 7 8 4% 7%
Ellwanger 7i/ 7 8 4% 7
" Jenkins testified that he had seen Becker and Larson engaged
in conversation but had not overheard what had been said . Larson
testified but did not controvert Becker's account of the
conversation.
A-1 EXCELSIOR VAN & STORAGE CO., INC.
eliminate as much of such business as possible. On
May 30, Memorial Day, in a series of telephone
conversations, Johnson, subject to approval from Larson
and Proctor, arranged for Warren Austin`' to handle
Excelsior's local hauling for 70 percent of the billed price,
Excelsior to retain 30 percent of the sale. The two rigs
which Excelsior owned for use in the local moving
business were leased to Warren Austin. Thus, Respondent
argues, the decision to subcontract the local business was
motivated solely by economic considerations and was
arranged before the Union appeared on the scene.1'
Indeed, Johnson testified, the Union's demand for
recognition was not received until June 8 or 9 and not
opened until June 10 because the Union's letter was
addressed to Don Larson at Excelsior.
Conclusions and Findings
I find that General Counsel has failed to prove the
alleged unfair labor practices by a preponderance of the
evidence. Essentially the evidence disclosed two unrelated
series of events from which, because of their connection in
time, General Counsel urges a finding of violation.
However, the testimony of Excelsior's witnesses as well as
that of General Counsel stands uncontradicted on the
record. Neither Larson nor Johnson, either by their
demeanor or by any inconsistency in the evidence they
presented, gave me reason to discredit their unrebutted
testimony. Nor do I discern any inherent incredibility in
their account of the events leading to the contracting out of
Excelsior's local moving work to warrant substituting
inference of an illegal conspiracy for uncontradicted
evidence of economic motivation. Atlantic Metal Products,
Inc., 161 NLRB 919.
The complaint alleged as violations of Section 8(a)(1)
Proctor's interrogation of employees on or about June 6
concerning their union membership and activities and his
threats of subcontracting the unit work because of
employee protected activities. As to these allegations,
Becker and Jenkins testified to their restaurant meeting
with Proctor after work on June 7. However, their
evidence thus offered was that Proctor announced the
" Also referred to in the record as Shorty & Swedes, a local
trucker
11 General Counsel sought to establish during his examination
of Larson that the advent of the Union hastened the decision to
contract out the work This was done by means of questions
relating to Larson 's affidavit given during investigation of the
underlying charge The exchange follows-
Question by General Counsel Also on this date that I
interviewed you, Mr. Larson, didn't I ask you about the
financial, structure of the company when you said that
because of this accountant's report that you received that you
told Proctor he had to do something, move the company or
you would have to subcontract out the work? Didn't you also
say at that time that that plus the fact that the men had gone
to the union hastened your decision to subcontract out the
work 9 n
Answer by Larson Well, that wasn't my decision to
subcontract This was Proctor deciding , and I am just
reading what is going on in Proctor's mind
Q I am only asking you now, did you tell me that on
June 29th?
A Well, whatever my statement says, yes.
Q You are not denying that 7
A. I am not denying my statement
433
decision to contract out the work and the resulting
termination of their employees. Neither Becker nor
Jenkins recalled that Proctor related this announcement to
their union activities or that he even indicated awareness
of the Union's existence when discussing the planned
elimination of the bargaining unit . Proctor's disclosure
was of an accomplished fact not of a threat of future
action. Moreover, no evidence was offered of interrogation
at that time or on any other occasion. It was after Proctor
had apprised the men of their impending job loss that
Becker brought up the subject of the Union. It was
Becker's testimony" that Proctor did not even reply to
this injection of the union issue. Accordingly, I shall
recommend dismissal of the 8(a)(1) allegations of the
complaint for the failure of proof.
The alleged 8(a)(3) and (5) violations turn on whether the
contracting out of the local hauling work was impelled by
the employees' union adherence and the Teamsters
demand for recognition. To find that Excelsior was so
motivated, I must discredit the uncontradicted evidence
that Respondent was faced with a losing operation in its
local hauling business.12 In addition, to reach this result I
must discredit the equally unrebutted evidence that the
arrangement for Warren Austin to take over the unit work
was settled on May 30, days before the employees first
contacted the Union. In this connection, I note that
General Counsel had during his investigation of this case
taken an affidavit from Austin but failed to call Austin to
testify to rebut Respondent's recital of the circumstances
of the contract to subcontract. 13 It would then be
necessary for me to pile inference on inference to find the
violations alleged. First it would be necessary to infer that
Excelsior received the Union's demand for recognition on
June 7. While the Union's office girl credibly testified she
had placed the envelope with the demand in the mail about
2 p.m. on June 6, no evidence was offered as to when, in
the normal course of events, the Union's letter would have
been received by the Respondent in Excelsior, Minnesota.
It would then be necessary to infer, based on an inference
that the letter was received on June 7, that Excelsior then
contacted Warren Austin and made the agreement to
subcontract to him the unit's work, all in time to announce
this to the employees that very evening and to implement
Q. And you said that on June 29th when I asked you?
A. I probably did, yes
Larson was not shown his statement and asked to adopt its
contents nor was the statement introduced into evidence On this
equivocal exchange alone, I cannot find that union considerations
accelerated Excelsior 's subcontract of its local hauling work
i 1 As heremabove noted, I credit Becker's account of this
conversation rather than that of Jenkins for the reasons stated.
11 I do not find that in the circumstances of this case
Excelsior 's failure to introduce the actual profit-and-loss
statement warrants an inference that its contents would gainsay
the otherwise unrebutted evidence of loss. Had General Counsel
in any way rebutted Larson's and Johnson's testimony on this
point, Excelsior 's subsequent failure to come forward with the
auditor's report would then have supported an inference that its
contents were contrary to the oral evidence of its purport
However , General Counsel did not controvert their testimony
Moreover, General Counsel was aware of the financial
statement's existence long before the hearing herein and with his
subpena powers could have required its production to challenge
Respondent's presentation
1' In his brief counsel for Respondent points out that Austin
was present in the hearing room during trial of this matter and
thus available for rebuttal if rebut he could
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the arrangement the following day. 14 Having found nothing
in the record or the demeanor of the witnesses to discredit
the unrebutted evidence that the decision to subcontract
the local hauling work and to terminate the employees was
motivated solely by valid economic considerations and
undertaken prior to the advent of the Union, I shall
recommend dismissal of the allegations that Excelsior
violated Section 8(a)(3) and (5) of the Act.
There remains for consideration Proctor's breakfast
statement to the employees made in mid-May and
Larson's comment to Becker when the latter applied for
employment at the Larson Transfer Company. As to
Larson's remark that he did not want trouble with the
Union, it appears that he spoke in his role as owner of
Larson Transfer and Becker was at that time applying for
employment with that company. Larson Transfer is not a
party to these proceedings and there is no allegation or
evidence that Excelsior and Larson Transfer are a single
employer. Accordingly, as a remedial violation, this
incident is beyond the scope of these proceedings.
Proctor's comment that the Respondent would rather
close its doors than have the Union, appears to be beyond
the averments of the complaint and is in any event an
11 One could as easily infer from the small number of
employees involved and the close working relationship between
the employees and their employer that the employees had
obtained information of the plan to subcontract their work and
isolated remark not warranting a finding of violation and
insufficient for a remedial order, particularly in view of the
lawful dissipation of the bargaining unit.
On the basis of the foregoing findings of fact, and upon
the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. A-1 Excelsior Van & Storage Co., Inc., is engaged in,
and during all times material herein has been engaged in,
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is, and at all times material has been, a
labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent has not engaged in unfair labor practices
within the meaning of Section 8(a)(1), (3), and (5) of the Act.
4. The complaint should be dismissed in its entirety.
RECOMMENDED ORDER
It is recommended that the Board enter an order
dismissing the complaint in its entirety.
had thereafter gone to the Union in an effort to enlist its support to
preserve the status quo Cf Wiese Plow Welding Co , Inc , 123
NLRB 616