Cutter Boats, Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1960

127 N.L.R.B. 1576 (N.L.R.B. 1960)

1576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cutter Boats, Inc. and Local 215, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case No. 25-CA-1145 (formerly 35-CA-1145). June 29,
1960
DECISION AND ORDER
On March 24, 1960, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner further
found that the remaining allegations of the complaint were not sup-
ported by the evidence and recommended that they be dismissed.
Thereafter, exceptions were filed by the Respondent and the General
Counsel, and a brief was filed by the Respondent.
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
Intermediate Report, the exceptions and brief, and the entire record
in the case,2 and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the following modifications.
We agree with the Trial Examiner's conclusion that the Respondent
violated Section 8(a) (1), (3), and (5) of the Act. However, we find
merit in the General Counsel's exception to the Trial Examiner's
further conclusion that the Respondent rescinded the discriminatory
layoffs with no resultant loss of working time or earnings for any
employee. The evidence presented at the hearing does not clearly
establish that this conclusion is warranted. The testimony shows
only that a few days after the layoffs the Respondent's representa-
tive, Feix, said that the Respondent would assign work to the laid-off
employees as quickly as possible, and work was thereafter assigned to
them. Moreover, the record does not support the Trial Examiner's
finding that the General Counsel attempted to prove the amount of
working time discriminatorily lost by the laid-off employees, or that
he relied upon the logbooks of employee William E. James as proof
thereof .3 Accordingly, we shall issue our customary reinstatement
Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated
its powers in connection with this case to a three-member panel (Members Rodgers, Bean,
and Fanning].
2 The Respondent 's request for oral argument is hereby denied, on the ground that
the record adequately presents its position.
8 The record is clear that James was not advised and did not believe that he was laid
off; and his logbook does not show any discriminatory loss of working time.
127 NLRB No. 177.
CUTTER BOATS, INC. 1577
and backpay orders, and leave the question of the Respondent's com-
pliance with these provisions to the compliance stage of this
proceeding.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Cutter Boats,
Inc., Tell City, Indiana, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from :
(a) Discouraging membership in Local 215, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, by discriminating in regard
to the hire, tenure, terms, or conditions of employment of its
employees.
(b) Interfering with, restraining, or coercing its employees in the
exercise of the right to self-organization, to form labor organizations,
to join or assist Local 215, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection; or
to refrain from engaging in any or all such activities, except as
authorized in the Act.
(c) Refusing to bargain collectively with the above-named labor
organization as the exclusive representative of all its employees in
the appropriate unit with respect to rates of pay, wages, hours of
employment, and other terms and conditions of employment.
(d) Instituting changes in the terms and conditions of employment
of employees in the appropriate unit without first consulting and
bargaining with the above-named labor organization concerning such
matters.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Local 215, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of the employees
in the appropriate unit, and embody any understanding reached in
a signed agreement.
(b) Offer the employees unlawfully laid off on or about March 10
and 11, 1959, immediate and full reinstatement to their former or
substantially equivalent positions without prejudice to their seniority
or other rights and privileges, and make them whole for any loss of
1578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay suffered as a result of the discrimination against them, in accord-
ance with the Board's customary practices 4
(c) Preserve and, upon request, make available to the Board or
its agents, for examination or copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary or useful to an analysis of the amount
of backpay due under the terms of this Order.
(d) Post at its plant in Tell City, Indiana, copies of the notice
attached hereto marked "Appendix." 5 Copies of such notice, to be
furnished by the Regional Director for the Twenty-fifth Region,
shall be duly signed and posted immediately upon receipt thereof, and
maintained for 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken to insure that such notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Twenty-fifth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
IT Is FURTHER ORDERED that all allegations of the complaint not
specifically found to constitute violations be, and they hereby are,
dismissed.
4 For example , Gulf Bottlers, Inc., 127 NLRB 850; E & B Brewing Co., 122 NLRB
354, 356
5In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order"
the words "Pursuant to 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, we hereby notify you that :
WE WILL bargain collectively upon request with Local 215,
International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America as the exclusive representative of
all our employees in the appropriate unit described below with
respect to rates of pay, wages, hours of employment, and other
terms and conditions of employment, and embody any agreement
reached in a signed contract. The appropriate unit is :
All over-the-road truckdrivers employed at our Tell City,
Indiana, plant, excluding all other employees, guards, pro-
fessional employees, and supervisors as defined in the Act.
WE WILL offer the drivers unlawfully laid off on March 10 and
11, 1959, immediate and full reinstatement to their former or
CUTTER BOATS, INC. 1579
substantially equivalent positions without prejudice to their sen-
iority or other rights and privileges, and make them whole for
any loss of pay suffered as a result of the discrimination against
them.
WE WILL NOT unilaterally institute changes affecting the terms
and conditions of employment of employees in the bargaining unit
described above without first consulting and bargaining with
Local 215, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as their exclusive
representative.
WE WILL NOT discourage membership in Local 215, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization of our
employees, by discriminating in regard to their hire, tenure,
terms, or conditions of employment.
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of the right to self-organization, to form labor
organizations, to join or assist Local 215, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from engaging in
any or all such activities, except as authorized in the Act.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of any labor organization.
CUTTER BOATS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge and amended charges filed by Local 215, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein
called the Teamsters, the General Counsel of the National Labor Relations Board,
herein called the Board , by the Regional Director for the Ninth Region, issued his
complaint dated October 15, 1959, against Cutter Boats, Inc., herein called the
Respondent , alleging that the Respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8 (a) (1), (3) and
(5) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136,
herein called the Act. Copies of the complaint, the charges , and a notice of hearing
were duly served upon the parties . The Respondent's answer to the complaint in
essence denies the averments of statutory violations set forth therein.
Pursuant to notice a hearing was held at Tell City, Indiana, on January 19, 1960,
before Thomas N. Kessel, the Trial Examiner duly designated to conduct the hearing.
1580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All parties were represented by counsel or other representative . Full opportunity
to be heard , to examine and cross -examine witnesses , and to introduce evidence was
afforded all parties. After the close of the hearing the General Counsel and Re-
spondent filed briefs which have been carefully considered.
Upon the entire record in the case, and from observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. PERTINENT COMMERCE FACTS
The complaint alleges and the answer admits that the Respondent is an Indiana
corporation engaged at its plant in Tell City, Indiana, in the manufacture of fiber
glass boats, and that during the 12 months preceding issuance of the complaint the
Respondent shipped products which it manufactured valued in excess of $100,000
to destinations outside the State of Indiana. From these facts I find that the Re-
spondent is engaged in commerce within the meaning of the Act and that exercise
of the Board's jurisdiction over its operations will effectuate the purposes of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Charging Party is a labor organization admitting to membership employees
of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The relevant evidence
On March 9, 1959, a group of the Respondent's truckdrivers who had that day
failed to receive satisfaction from the Respondent when they sought certain mone-
tary adjustments invited a Teamsters representative to come to a meeting that night
at the home of one of the drivers. At that meeting and the next day 11 of the Re-
spondent's 18 truckdrivers signed cards authorizing the Teamsters to represent them
in collective bargaining with the Respondent. The complaint alleges that the
Respondent in violation of Section 8(a)(5) of the Act refused to recognize and
bargain with the Teamsters after it had made proper demand therefore as the repre-
sentative of the truckdrivers who by themselves comprised an appropriate bargaining
unit, and instead bypassed the Teamsters by unilaterally bargaining with the truck-
drivers and by granting them an adjustment of travel expense allowance and certain
fire insurance benefits. The complaint further alleges that the Respondent sought
to prevent unionization of its drivers by threatening them with economic reprisals in
violation of Section 8(a)(1) of the Act, and by laying off certain drivers because of
their union activities in violation of Section 8(a)(3) of the Act.
William T. Feix at the time of the alleged misconduct was the Respondent's
traffic manager and supervisor over the truckdrivers. It was from him that the
drivers on March 9, 1959, had unsuccessfully sought adjustments in their expense
allowances. When the drivers met that same night with the Teamsters representative,
one of them made a report to Feix and revealed the identity of each driver who
attended the meeting. By the next morning Feix had this information. According
to the General Counsel' s witnesses , Feix by word and deed quickly took action to
forestall the unionization of the drivers by the Teamsters.
James Howe testified that he had attended the meeting and had signed an authori-
zation card for the Teamsters. He related that about 2 or 3 days later he had
called Feix about a driving assignment and in turn had been asked to report to the
office. When he reported Feix took him to a back room and revealed that he knew
about the meeting and exhibited a list of all who had attended. Next, Feix told
Howe that according to his information he and drivers August Claise, Herbert Claise,
and Cletus Kreisle had been the instigators of the union activities and had contacted
the Teamsters. He asserted he was going to lay off the drivers as they reported
until he found out who were the instigators and declared that he would sell the trucks
before he would have the Teamsters in the plant. Howe deemed Feix's statement
to him as meaning he was then laid off. Although he did not receive a driving
assignment until 7 or 8 days later, he attributed this delay to the fact that through
no fault of the Respondent the truck which he customarily drove was during this
period being operated away from the plant by another driver. He conceded that
lapses of 4 to 6 days between trips was not unusual . Howe maintained that Feix
had laid off three drivers, but that 2 or 3 days after the conversation with him, Feix
had told the drivers in a meeting that the laid-off drivers could return to work and
it was thereupon believed by all that their differences with Feix were completely
resolved.
CUTTER BOATS, INC. 1581
August Bolin had also attended the March 9 Teamsters meeting and had signed
an authorization card. He testified that he had a conversation with Feix a day or
two later at which time Feix told him he would have to lay him off because of the
meeting. Bolin did not, however, believe he lost any working time because of his
layoff.
Maurice Shepard had not attended the March 9 Teamsters meeting but had signed
an authorization card the following day. He had that day returned from a trip and
when he checked in at the office Feix asked him whether he had been at the meeting
of the preceding night. Shepard explained that he had just returned from a trip
and had no knowledge of the meeting, whereupon Feix told him that the drivers
had met with the Teamsters and added that he could not "tolerate the Union and
wouldn't put up with it." He had a list of those who had attended the meeting and
named August Claise, Cletus Kreisle, and James Howe as the ones responsible for
arranging it. Furthermore, he threatened to fire those who attended the meeting
and had accepted the Union, and threatened also to sell the trucks. In addition he
stated that if the drivers joined the Union he would cancel the order for the new
trucks which had been placed.
August Claise testified that a day or two after the meeting with the Teamsters
which he had attended and at which he also had signed an authorization card Feix
told him he would have to lay off some of the drivers. In response to Claise's query
Feix told him he was included in this group. Nevertheless, Claise did not believe
he lost any working time because of his layoff. He recalled that at a March 13
meeting with the drivers at which their monetary demands were finally adjusted
Feix told them that they would go out on the road as quickly as the Respondent
could assign them.
On March 12, 1959, the Teamsters directed the local Western Union Telegraph
Office to send a telegram to the Respondent containing the following message:
Notifying you the majority of your truckdrivers made application for member-
ship in our Union. Authorize us to bargain for them relative to wages and
working conditions. Would like appointment for purpose of reaching an
agreement. Early reply appreciated.
While the Respondent's answer admits that this telegram was received by it on or
about March 12, 1959, it now takes the position that the date of receipt is question-
able. Counsel for the Respondent represented at the hearing that the telegram
received by the Respondent cannot be found. At the hearing the Respondent stipu-
lated that it had received the above message but would make no concession as to the
actual time of receipt. There is in evidence a confirming copy of the message sent
by the Teamsters which the local Western Union Office mailed to the Teamsters
pursuant to its request On this document appears the date, March 12, 1959, and
the time, 1026 A, on which the message was either received by Western Union from
the Teamsters, transmitted, or delivered to the Respondent. I can conceive of no
other meanings to ascribe to this data. In this circumstance, I shall impute to it
the meaning most favorable to the Respondent, and shall regard the message as having
been received by Western Union at 10:26 in the morning of March 12, 1959.
Common experience requires me to presume that a telegram filed with Western
Union for transmittal is communicated by it to the person for whom the message is
intended within a few hours at most from the time when the message is filed by the
sender. I therefore presume that the message was communicated to the Respondent
at some time during the day of March 12, 1959.1
Irvin Glenn Wilkinson, the Teamsters business representative who had attended
the March 9 meeting with the Respondent's drivers, testified that on March 13, 1959,
he had communicated with Feix by telephone and had told him that as representative
,of the majority of the Company's truckdrivers he was entitled to be present at the
meeting which Feix had scheduled for that evening with the drivers. According to
Wilkinson, Feix denied his request and told him that the matter was strictly between
'Appearing on the confirming copy of the message in evidence appears the rubber
stamp notation RECEIVED AUS 17 1959. The Respondent suggests that this unex-
plained notation may be related to the date of delivery of the telegram. The General
Counsel on the other hand explains that the letters AUS probably refer to the month
of August and that the date August 17, 1959, probably was stamped on the document
when it was received by the Board's Subregional Office together with the filing of the
*mended charge in this case. I do not believe that the stamped date was placed on the
document by Western Union, particularly as everything else contained therein is in typed
lettering More likely the stamp reflects the (late when the document was received by
the Board 's subregional office in connection with the filing of the amended charge.
1582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him and the drivers and that he had nothing in common or anything to talk about
with the Teamsters. Later that day Feix did meet with the drivers without a
Teamsters representative present and granted the drivers of sleeper cabs an adjust-
ment in their travel expense allowance.
Feix denied that he had ever threatened reprisals against the drivers for their
activities in behalf of the Teamsters or that he had ever laid them off for these
activities . He further denied ever threatening to sell the Respondent 's trucks, to
cancel the order for new trucks, or to farm out the Respondent 's trucking operations
to outside trucking firms in order to avoid recognizing or bargaining with the Team-
sters. He was admittedly discouraged when the drivers contacted the Teamsters on
March 9, 1959, just after they had spoken to him about the sleeper cab allowances
and acknowledged disappointment over the speedy resort of the drivers to the
Teamsters for help in securing the adjustments they had failed to get from him.
Feix related that by the morning of March 10 he had been informed by a driver
in attendance about the meeting held the preceding night, and that he had secured
from him a list of the drivers who had been present. He admitted that in his con-
versation with driver James Howe, which he recalled took place on March 11, he
had exhibited the list of names and permitted Howe to glance at it. He insisted he
had not intended this action to be a threat . He further conceded the possibility that
he might have mentioned to Howe knowing the instigators of the Teamsters ' activity,
but denied telling im he would fire them . He further disputed Howe's testimony
that he had told him he would discharge the drivers who had attended the meeting.
He claimed that he had instead told Howe that if he had been in charge and had
the authority he would prefer to get rid of the trucks or lease them to an outside
carrier. He maintained that he had advocated this policy before this occasion because
of his belief the Respondent could do its trucking faster though not necessarily
cheaper by such procedure.
Feix denied that he had told driver August Bolin that he was laid off. He recalled
that he had informed Bolin only about the new trucks which the Respondent had
ordered and had explained to him how these new and the old trucks would be assigned
to the drivers.
Feix could not recall the conversation on March 10 with Maurice Shepard about
which the latter had testified . He denied however having made the threatening and
coercive remarks ascribed to him by Shepard. This denial he based on his belief
that he would have remembered such utterances had he made them.
In explanation of his direct dealings with the drivers on March 9 and 13, 1959,
concerning the adjustment of sleeper cab allowances, Feix testified that he had met
with them twice on March 9. When he was approached by them in the morning
of that day, he told them he had no authority to grant their request but would see
what could be done. Later that afternoon he was again contacted by the drivers who
wanted to know what had been done about their request. Feix told them nothing
had yet been accomplished, that he would have to speak to Mr. Eugene Casey, the
plant manager , and to the Respondent 's Baltimore office to seek approval. He had
not had an opportunity to speak to Mr. Casey that day, and these things, he told
the drivers, took time. On March 12 Feix told driver Bolin that he would like to
confer with the drivers the next morning . On March 13 , before the meeting took
place, Feix received the call from Teamsters Business Representative Wilkinson.
According to Feix, Wilkinson told him the purpose of his call was "to attend the
meeting and to discuss the differences ," and that he replied to Wilkinson in effect
that he saw no reason for such discussion or his attendance at the meeting and that
the matter should be settled through the Board. Directly after this conversation
Feix told Bolin that so far as he was concerned there would be no meeting and that
if the drivers wanted to see him he would be in his office . Nevertheless , Feix did
hold the meeting from which he had excluded Wilkinson in his office the next day,
March 13 , and on this occasion granted an increase in the expense allowance for
sleeper cab drivers. Only three of the Respondent 's total complement of truckdrivers
operated sleeper cabs.
Feix claimed at the hearing that his refusal to grant Wilkinson permission to attend
the March 13 meeting and to confer with him was based upon his doubt that the
Teamsters represented the majority of the truckdrivers. This doubt he predicated
upon the fact that he had learned via the grapevine that some plant employees had
contacted the Industrial Union of Marine and Shipbuilding Workers of America and
had assumed that this union was going to organize all of the Respondent 's employees
including truckdrivers. He maintained that at this time he did not know that the
Board permitted representation by different labor organizations of more than one
unit in a single plant. Although in his direct testimony Feix implied knowing before
Wilkinson's telephone call that some of the truckdrivers had signed cards for the
Shipbuilders and that this influenced his refusal to meet with Wilkinson, in cross-
CUTTER BOATS, INC. 1583
examination he conceded first he could not honestly state when he was informed
that these cards had been signed and finally admitted he had not known of such
card signing before he spoke to Wilkinson. He then explained that rumors had
come to him from employees to the effect that the Shipbuilders were "going to get
the whole organization" and from this formed the impression that the truckdrivers
were encompassed by the organizing drive of that union. He declared he could not
under these circumstances grant the Teamsters permission to attend the March 13
meeting with the drivers without granting such permission to the Shipbuilders. In
cross-examination Feix further revealed that his refusal to permit Wilkinson's appear-
ance at the meeting and his insistence that Wilkinson go through the Board was
pursuant to the advice of counsel and had so informed Wilkinson. He added that
he had contacted the Respondent's attorney after learning of the meeting of the
drivers with the Teamsters representative. This he had been instructed to do by
Mr. Casey after Feix had told him on March 10 about the meeting the night before.
On March 13, 1959, the Teamsters filed a petition with the Board for certification
as representative of a unit of the Respondent's truckdrivers. On July 16, 1959, the
Board issued its Decision and Direction of Elections in Cases Nos. 35-RC-1643 and
35-RC-1661 finding two units of all the Respondent's employees appropriate for
separate representation and ordered an election among the employees of each. One
unit in which the employees were to vote to decide whether they wished to be repre-
sented by the Teamsters consisted of all the Respondent's over-the-road truckdnvers.
The other unit in which the employees were to vote to determine whether they desired
representation by the Shipbuilders consisted of all the Respondent's production and
maintenance employees with certain exclusions including the over-the-road truck-
drivers. No election was held in the truckdrivers unit, the Teamsters having elected
to proceed with the unfair labor practice charge in this case subsequent to its filing.
Upon request of the Teamsters for withdrawal of its petition the Board on December
30, 1959, issued an order dismissing the petition.
B. Findings
As noted, the testimony of employees Howe, Bolin , Shepard, and Claise is in
direct conflict with the account by Feix of the things said by him in his conversations
with these employees on March 10 and 11, 1959. I have resolved this conflict in
favor of the General Counsel's witnesses because they impress me as the more
truthful. Feix's version of these conversations are not convincing. His denial of
threatening conduct is unpersuasive in the face of his admitted exhibition of the
list of names supplied by his informer and his identification of the instigators
which I am satisfied was revealed and stated to the drivers for the purpose
of intimidating them. His version of the remarks about the orders for new trucks
and the farming out of the trucking is implausible. No logical explanation was
offered by Feix for the introduction of these subjects in conversations initiated by
him concerning the drivers' union activities. I do not believe that Feix aimlessly
raised these matters without intentionally connecting them to the union activities of
the drivers which prompted him to speak to them. Nor do I believe that he spoke
of these matters in the innocuous vein he described. I am satisfied that the inser-
tion of Feix of his comments about the trucks and the Respondent's trucking opera-
tions in a context of coercion was motivated by the same unlawful purpose which,
as I am finding, led to his other threats and acts of discrimination in the course of
his several conversations with the drivers. The reliability of Feix's testimony is.
further diminished by his unpersuasive and vacillating explanation for doubting the
Teamsters majority and refusing to permit Wilkinson's attendance at the March 13
meeting and to confer with him about the drivers. I formed the impression while
he was testifying that he was merely improvising explanations to conform to his.
claim of doubt. I find from the aforementioned credited testimony that the Re-
spondent violated Section 8(a)(1) of the Act by Feix's threats to the drivers to
lay off or to discharge them for instigating or supporting their organization by the
Teamsters, his intimidation of them in the exercise of their rights to engage in these,
activities by revealing to them knowledge of their attendance at a union meeting and
singling out the instigators of this activity, his threat to sell the Respondent's trucks
and to farm out its trucking operations, and to cancel an order for new trucks
in reprisal for their continued adherence to the Teamsters, and his declaration that
he would not tolerate the union or put up with it which meant simply that he would
not recognize or bargain with the Teamsters as the representative of the drivers.
The Respondent also violated Section 8(a)(3) of the Act by the layoff by Feix.
on March 10 and 11 of drivers for instigating or supporting unionization by the
Teamsters, notwithstanding Feix's subsequent rescission of this action by March 13
with no resultant loss of working time by any employee. In this connection I have
1584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
examined the logbooks of driver William E . James relied upon by the General
Counsel as proof of his loss of working time and am not convinced from the
record as a whole that such loss of time has been proved.
Finally, I find that the Respondent violated the Act by refusing without good-
faith reason to recognize and bargain with the Teamsters as the representative of a
majority of the over-the-road truckdrivers in a unit limited to such employees. That
a separate unit of such employees is appropriate for bargaining has already been
determined by the Board in its Decision and Direction of Election in Case No.
35-RC-1643 adverted to above. That the Teamsters by March 10, 1959, had been
authorized by a majority of the employees in this unit is evident from the testimony
of Business Representative Wilkinson showing he had by that date secured the
signed authorization cards of 11 of the 18 drivers in such unit. These cards are
part of the record. The Teamsters made a clear and unequivocal demand for rec-
ognition in bargaining which was communicated to the Respondent on March 12,
1959, and any doubt as to whether the Respondent was informed of such demand
by March 13 is eliminated by Wilkinson's request to Feix on that date for permis-
sion to attend a scheduled bargaining meeting as a representative of the drivers and
to confer with him in such capacity concerning their differences with the Respondent
which obviously meant concerning their terms and conditions of employment. In
the circumstances the Respondent was statutorily obligated to honor this demand
and to refrain from bypassing the Teamsters through direct bargaining with the
drivers absent a showing of justification for such conduct. The Respondent has
failed to make such showing.
The Respondent's contention that the Teamsters' demand was deficient because
it was not backed up with an offer to prove its majority is without merit. Such
contention would be valid had the Respondent entertained a good-faith doubt as to
the Teamsters' claim of majority. See Automotive Supply Co. Inc., 119 NLRB
1074, at 1094. Feix's refusal to permit Wilkinson's attendance at the March 13
meeting was unrelated to such doubt. He never expressed it to Wilkinson or re-
quested any proof from him to back up his claim. Moreover, he knew from his
informant that nine of the drivers had attended the meeting and I reject his
testimony as incredible that the informant who had accurately revealed the
identity of these drivers had told him they had not signed cards at the meeting.
In view of Feix's pipeline to the activities of the drivers I have no doubt that he
also learned that drivers Shepard and Howe signed cards on March 10, the day
following the meeting. But whether Feix had the actual count of card signers is
not the governing consideration. What controls is whether he had a bona fide doubt
that they constituted less than a majority when he spoke to Wilkinson. His bad-
faith conduct before then belies such honest doubt for he had before then by acts
of unlawful coercion and discrimination set out to destroy that majority. Had his
reasons for refusing the request to recognize and bargain rested upon such doubt
it is to be expected that upon assertion of that reason alone he would have withheld
recognition, and would not without such assertion have proceeded to dissipate the
claimed majority.
I do not believe that because Feix may have heard rumors of any impending
drive by another union a couple of weeks before the Teamsters organized the
drivers he doubted the Teamsters majority claim. All that he had was rumor and
no evidence at all of organizing activity. His good faith in this respect is impaired
by his troubled effort at the hearing, from which he ultimately receded, to support
his doubt with testimony that drivers had told him before March 9 that they had
signed cards for the other union. But most important he had clear evidence of the
strength of the Teamsters and none that the other union had any support.
If Feix directed Wilkinson to go through the Board, as he claimed he was told
to say by the attorney he consulted, I do not believe this was motivated by a
genuine doubt as to majority which Feix wished settled by a Board election.2 In-
2 Although not clearly spelled out either in its answer or brief, I sense that the Re-
spondent deems the filing by the Teamsters of its representation petition with the Board
so close in point of time to its demand for recognition and bargaining on March 12 or
13 as requiring the Teamsters to determine its representative status through a Board-
conducted election, and that the Respondent should therefore be exonerated in this pro-
ceeding for its refusal to recognize and bargain with the Teamsters Had the Teamsters
also included in its demand for recognition and bargaining a notification that it was
filing a petition with the Board for an election to ascertain whether the Respondent's
employees desired it as their representative the Respondent might reasonably have con-
strued this notice as a proposal for determination of the Teamsters' status by a Board
election, and might justifiably have awaited the outcome of such election before recog-
nizing the Teamsters and bargaining with it. See Joseph Solomon, an indivsdual, d/b/a
CUTTER BOATS, INC. 1585
stead, I regard it as a tactical maneuver to forestall recognition of the Teamsters and
bargaining for the drivers. It was a delaying tactic consistent with Feix's hasty ad-
justment of the drivers' demands which less than 4 days before he had declared
"took time" and would require authorization from Baltimore. It was an action
growing out of his unconcealed vexation with the drivers for turning to unioniza-
tion to settle their differences with him, and was part of a consistent pattern of
opposition to the Teamsters as evidenced by the unlawful threats and discriminatory
conduct which I have found were committed by him and his declaration to the drivers
that he would not tolerate or put up with the Teamsters. By the Respondent's
refusal on and after March 13, 1959, to recognize and bargain with the Teamsters
as the representative of its over-the-road drivers and by unilaterally granting the
drivers on March 13, 1959, an adjustment in their expense allowances in disregard
of its obligation to bargain with the Teamsters the Respondent violated Section
8(a)(5) of the Act.3
The record does not support the allegation of the complaint that the Respondent
violated the Act by granting on May 22, 1959, free insurance to its employees on
their homes and household effects. The contention that these benefits were uni-
laterally conferred at a time when the Respondent was statutorily obligated to
bargain with the Teamsters is refuted by the uncontroverted testimony of the in-
surance broker, John W. Evrard, that the Respondent had ordered a blanket in-
surance policy for its employees from him in January 1959, and that these insurance
benefits were not immediately conferred because of the broker's administrative
difiiculties in writing and placing an appropriate policy with an underwriter. So
far as the Respondent was concerned it had decided to confer these benefits long
before the advent of the Teamsters, and this action was in no way connected with
the Respondent's opposition to the Teamsters. I shall recommend dismissal of the
allegation that the grant of these benefits was unlawful.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a)(1), (3), and (5) of the Act I shall recommend that it cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act. It has been found that the Respondent has refused and still
refuses to bargain collectively with the Teamsters as the exclusive representative of
the employees in the appropriate unit described herein. It will therefore be recom-
mended that the Respondent bargain collectively, upon request, with the Teamsters
as the exclusive representative of the employees in the appropriate unit, and, if an
understanding is reached, embody such understanding in a signed agreement. It
wi'l also be recommended that the Respondent cease and desist from unilaterally
instituting any changes affecting wages or other terms or conditions of employment
of its employees without first consulting with and bargaining with the Teamsters
concerning these matters. While it has been found that the Respondent unlawfully
laid off certain employees because of their union activities it has also been found
that these employees were restored to employment by the Respondent without any
loss of earnings. Accordingly, it is not necessary to recommend the usual rein-
statement and backpay action required in cases of discriminatory layoff or
discharge.
Because the Respondent by its several acts of unlawful conduct violated funda-
mental rights guaranteed employees by Section 7 of the Act, the commission of
The Solomon Company, etc, 84 NLRB 226, and John H. McCann et at., d/b /a McCann
Steel Company, 106 NLRB 41, 50. The Teamsters' demands, both in the March 12
telegram and in the March 13 telephone request from Wilkinson to Feix, said nothing
about filing a petition and the Respondent did not have any knowledge of the Teamsters'
intention to file a petition before either of these demands was communicated to It. The
Respondent's refusal to bargain therefore occurred in the face of a clear and unequivocal
demand for bargaining. There is consequently no merit to the Respondent 's position as
I understand it
8 F H. Reeves and Sons , Inc, 121 NLRB 1280.
5 60940-61-vol 127-101
1586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other unfair labor practices may reasonably be anticipated . It will therefore be
recommended that the Respondent cease and desist from in any manner infringing
upon the rights guaranteed its employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Cutter Boats , Inc., is an employer within the meaning of Section 2(2) of the
Act and is engaged in commerce within the meaning of Section 2 (6) and (7) of
the Act.
2. Local 215, International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America , is a labor organization within the meaning of Section
2(5) of the Act.
3. All over-the-road truckdrivers employed by Cutter Boats, Inc., at its Tell City,
Indiana, plant excluding all other employees , guards, professional employees, 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.
4. On March 11, 1959 , and all times thereafter Local 215, International Brother-
hood of Teamsters, Chauffeurs , Warehousemen and Helpers of America, was, and
now is, the representative of the majority of the Respondent's employees in the
appropriate unit described above for the purposes of collective bargaining within the
meaning of Section 9 (a) of the Act.
5. By refusing on March 13 , 1959, and thereafter to bargain collectively with the
above-mentioned labor organization as the exclusive representative of all its em-
ployees in the above-described appropriate unit , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the
Act.
6. By unilaterally instituting the changes in the terms and conditions of employ-
ment of employees in the above-described appropriate unit as herein related, the
Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
7. By discriminating with respect to the tenure of employment of its employees
by laying them off in order to discourage the free exercise of rights guaranteed by
Section 7 of the Act and to discourage membership in behalf of the above-mentioned
organization , the Respondent engaged in unfair labor practices within the meaning
of Section 8 (a) (3) and (1) of the Act.
8. By the commission of other independent acts of interference , restraint, and
coercion of its employees in the exercise of the rights guaranteed in Section 7 of
the Act, as herein related , the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
1O..Any allegations of the complaint as to which specific findings of violation
have not been made in this proceeding have not been sustained.
[Recommendations omitted from publication.]
Frosty Morn Meats , Inc.' and Amalgamated Meat Cutters and
Butcher Workmen of North America , AFL-CIO. Case No.
15-CA-1508. June 29,1960
DECISION AND ORDER
On March 18 , 1960, Trial Examiner Reeves R. Hilton issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
' The name of the Respondent appears as amended at the hearing.
127 NLRB No. 175.