D & D Transportation Co.

National Labor Relations Board - Board Decisions

Aug 29, 1952

100 N.L.R.B. 920 (N.L.R.B. 1952)

920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. L. DEAN, D/B/A D & D TRANSPORTATION COMPANY AND J. L. DEAN
AND JOHN H. DOVE, A CO-PARTNERSHIP , FORMERLY D/B/A D & D
TRANSPORTATION COMPANY and INTERNATIONAL BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
LOCAL No. 991, AFL and TRuciK DRIVERS, WAREHOUSEMEN AND
HELPERS LOCAL UNION 728, AFL. Cases Nos. 15-CA-344 and
15-CA348. August 29,1952
Decision and Order
On January 8, 1952, Trial Examiner George A. Downing issued
his Intermediate Report in this consolidated proceeding," finding that
the Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the Intermediate Report attached hereto. The Trial Examiner also
found that the Respondents had not engaged in certain other alleged
unfair labor practices. Thereafter, the General Counsel, the charg-
ing Union, and the Respondents filed exceptions to the Intermediate
Report and the Respondents filed a supporting brief.
The Board 2 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 Inter-
mediate Report, the exceptions, and the entire record in the case, and
hereby adopts the findings,3 conclusions, and recommendations of the
Trial Examiner, with the following additions :
1. Case No. 15-CA-344 (Dothan). In this case the Trial Examiner
found that the Respondents violated Section 8 (a) (5) and 8 (a) (1)
of the Act by refusing on and after March 17, 1951, to bargain col-
lectively with Local 728 as the exclusive representative of the em-
ployees in the appropriate unit .4 The Respondents contend that they
i The above-named charging Unions are referred to as the Unions and as Local 991 and
Local 728, respectively.
2 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its
powers in respect to this case to a three-member panel [ Chairman Herzog and Members
Styles and Peterson).
8 Many of the Respondents ' exceptions relate to findings of material fact based upon the
Trial Examiner 's evaluation of the credibility of oral testimony . We have considered
such findings along with the consistency and inherent probability of the testimony and
are not convinced by the clear preponderance of all the testimony that his resolutions are
incorrect . Accordingly , we adopt them . Universal Camera Corp . v. N. L. R . B, 340 U. S.
474, and 190 F. 2d 429 (C. A. 2 ) ; Standard Dry Wall Products , Inc., 91 NLRB 544,
enfd 188 F . 2d 362 ( C. A. 3). Although a scrutiny of the record and the Report negates
the Respondents ' view that the Trial Examiner credited all the General Counsel's wit-
nesses and discredited the Respondents ', such fact would not alone warrant a finding
that the testimony upon which the Trial Examiner relied lacked substance . N. L. R B. v.
Pittsburgh Steamship Company, 337 U. S. 656, 659-660, quoting N. L. R. B . v. Robbins
Tire h Rubber Co., 161 F . 2d 798, 800 ( C. A. 5).
4 Like the Trial Examiner, we find that the parties agreed to an appropriate unit com-
posed of "all the road drivers of the Company 's Dothan, Alabama , plant, excluding all pro-
fessional employees , guards, and supervisors as defined in the Act."
100 NLRB No. 139.
D & D TRANSPORTATION COMPANY 921
were under no obligation to do so because the certification of the Union
on February 14, 1951, following the consent election conducted on
January 24 and 25, was invalid, in that the Regional Director (a)
erroneously declared employees of C & D 5 to be eligible to vote as
employees of the Respondents, and (b) was arbitrary and capricious
in dismissing its objections to the conduct of the election, without a
hearing. The Respondents further contend that they bargained with
Local 728 in good faith until an impasse, caused by the "impossible
conditions" laid down by the Regional Director's ruling consolidating
C & D with the Respondents, was reached.
On January 18, 1951, the Respondents and Local 728 executed an
"Agreement for Consent Election," providing for an election by secret
ballot to be conducted by the Board's Regional Director among all
over-the-road drivers of the Company. The agreement provided that
"the determination of the Regional Director shall be final and bind-
ing upon any question, including . . . the eligibility of voters, raised
by any party hereto relating in any manner to the election," and that
"The method of investigation of objections and challenges, including
the question whether a hearing should be held in connection therewith,
shall be determined by the Regional Director, whose decision shall be
final and binding." On the day of the election, the Regional Director,
after being apprised of the relation of C & D employees to D & D,
determined that C & D over-the-road drivers were employees of the
Respondent Company and therefore eligible to vote. The Employer
then procured a list of the C & D drivers who had driven for D & D
during the eligibility period. Although Field Examiner Brady stated
that any party could challenge anyone whom they thought ineligible,
Respondent Dove stated that he had no challenges and made none.
Immediately after receiving the official tally of ballots showing that
of 21 ballots cast, 11 were for the Union, the Respondents filed objec-
tions to the fact that 5 of the 18 voters whose ballots had been counted
were employees of C & D, not of D & D. The Regional Director
found that such objections were actually post-election challenges to
the eligibility of voters, and could not, under Board policy, be enter-
tained. The Respondents filed additional objections, arguing that
such ruling was erroneous, capricious, and unsupported by substan-
tial evidence. After investigation, the Regional Director again af-
firmed his position that the C & D employees were employees of the
Respondent Company. On March, 2 and 14, 1951, the Board refused
to intervene or to pass upon the objections, in view of the provisions
in the consent election agreement that the Regional Director's deter-
mination should be final and binding, not only on questions of eligi-
5 Clark and Danzey, a partnership , which leased trucks and drivers to D & D for opera-
tion under the latter 's ICC certificate.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bility but also on the granting of a hearing in connection with the
investigation of objections and challenges.
The Board's prohibition of post-election challenges has been ap-
proved by the Supreme Court as giving a desirable and necessary
finality to elections, yet affording interested parties a reasonable time
in which to challenge the eligibility of any voter. The Respondents
contend, however, that N. L. R. B. v. A. J. Tower Company, 329
U. S. 324, 331-335, does not govern the present situation, because the
Board agent conducting the election failed to challenge the ballot
of individuals allegedly not the employees of the Employer on the
eligibility date. The Tower case cites the cases upon which the Re-
spondents rely for the proposition that "an exception to the rule is
recognized where the Board's agents or the parties benefiting from
the Board's refusal to entertain the issue know of the voter's ineligi-
bilityand suppress the facts." 6 The circumstances of this case do
not fall within the stated exceptions. We perceive no equitable rea-
son for relaxing the protection afforded the democratic process by
the requirement that challenges to the eligibility of voters be made
before the actual casting of ballots, so that all uncontested votes may
be given absolute finality.
The terms of the consent agreement afford another ground for our
refusing to consider now the question of the eligibility of the C & D
over-the-road drivers. That agreement expressly authorized the Re-
gional Director to determine finally whether to grant a hearing on
any issue,' as contemplated by Section 9 (c) (4) of the Act.
Accordingly, we find that the Regional Director was not arbitrary
or capricious in dismissing the Respondents' objections to the consent
election and in certifying Local 728. We therefore find that when, on
March 17, 1951, the Respondents decided to grant a wage increase
without consulting the certified Union, they refused to bargain collec-
tively with the Union as the exclusive representative of their employ-
ees and thereby interfered with, restrained, and coerced their em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act, in violation of Section 8 (a) (5) and (1) of the Act.
2. In Case No. 15-CA-348 (Mobile), the Trial Examiner found
that the Respondents violated Section 8 (a) (5) and 8 (a) (1) of
the Act by refusing on an after February 22, 1951, to bargain col-
lectively with Local 991 as the exclusive representative of the em-
See Wayne Hale, 62 NLRB 1393 , and Beggs h Cobb, Inc., 62 NLRB 193, where the
Board set aside elections because the Board agent had permitted individuals to vote who
were not on the eligibility lists. See also Knox Metal Products, Inc., 75 NLRB 277, to
the same effect.. Here, all voters appeared on one or the other "eligibility" list.
T In Sidran Sportswear v. N. L. R . B., 181 F. 2d 671 ( C. A. 5), there was no express
waiver, as there was here.
D & D TRANSPORTATION ' COMPANY 923
ployees in the appropriate unit.8 The Respondents contend that
they did not refuse to bargain because they had never been requested
to do so.
On February 22, the Respondents received a letter from Alpert, the
secretary-treasurer and business representative of Local 991, officially
advising Dove that a majority of the employees at the Mobile ter-
minal had requested that organization to represent them in collective
bargaining relative to wages, hours, and working conditions. The
letter indicated the Union's willingness to meet at the earliest con-
venience for the purpose of discussing "the appropriate unit as is
provided by law," and Alpert expressed hope of hearing from Dove
in the very near future. The Respondents made no reply to this
letter. On February 23, the Union filed a representation petition
with the Board, of which the Respondents were notified on or after
February 27. However, beginning upon receipt of the letter from
the Board, the Respondents, as detailed in the Intermediate Report,
engaged in acts of interference, restraint, and coercion which would
have made a free election impossible.9 We believe that these unfair
labor practices, because of their nature and timing, color the Re-
spondents' intent on February 22. They indicate that the real reason
for the failure to reply to the Union's letter was to gain time within
which to undermine the Union's support, and that the Respondents,
in fact, never intended to bargain with the Union 10 Accordingly,
while we find that on and after March 10, by dealing individually
with their employees and unilaterally granting wage increases, the
Respondents independently violated Section 8 (a) (5), we agree with
the Trial Examiner's finding that the initial refusal to bargain oc-
curred on February 2211
Order
Upon the entire record in the case and pursuant to Section 10 (a)
of the National Labor Relations Act, as amended, the National Labor
8 In agreement with the Trial Examiner , we find that the appropriate unit consists of
all local pickup and delivery drivers, helpers , dockers, and checkers at the Employer's
Mobile, Alabama , terminal, excluding office employees , guards, professional employees, and
supervisors as defined in the Act.
Thus, Healy interrogated employees about their union interests Immediatley upon
receipt of the Board letter and granted a 10-percent wage increase without consulting the
Union and before the Respondent informed the Regional Director concerning its attitude
toward an election.
18 The Respondents ' brief indicates that they did not really regard this letter, and subse-
quent requests for information concerning their plans concerning Mobile, as limited to
securing a consent election . Thus, the Respondents assert that they told Alpert they
would "work out an agreement on the Mobile situation as soon as the Dothan matter was
settled. Alpert obviously agreed to this for the reason that the Dothan case involved all
of the over-the-road drivers of the Company. Whatever action which might be taken
concerning the over - the-road drivers would certainly affect the local drivers at Mobile.
Execution of a contract in Mobile , without an agreement for the over-the-road drivers, was
an impossibility."
11 Louisville Container Corporation, 99 NLRB 81, and cases cited therein, footnote 4.
924 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Board hereby orders that the Respondents , J. L. Dean and
John H. Dove, a co-partnership formerly d/b/a D & D Transportation
Company , and their agents and successors , including J. L. Dean, d/b/a
D & D Transportation Company, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Teamsters , Chauffers , Warehousemen and Helpers of America,
Local No. 991, AFL, and with Truck Drivers, Warehousemen and
Helpers Local Union 728, AFL.
(b) Discouraging membership in Truck Drivers, Warehousemen
and Helpers Local Union 728, AFL, or in any other labor organization
of their employees by discriminatorily discharging or refusing to re-
instate any of their employees, or by discriminating in any other
manner in regard to their hire or tenure of employment or any term
or condition of employment.
(c) Interrogating employees concerning their union membership
and activities; interrogating employees as to their vote in the election
and warning employees that they would ascertain how the employees
voted; warning and threatening employees with discharge and the loss
or withholding of benefits because of their union membership and
activities ; seeking and financing employee assistance to procure the
cessation of union activities by other employees; promising wage in-
creases to employees to settle the strike and withdraw from the Union;
and promising and granting unilaterally wage increases to their
employees.
(d) In any other manner interfering with, restraining, or coercing
their employees in the exercise of their right to self-organization, to
form labor organizations, to join or assist International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Local No. 991, AFL, and Truck Drivers, Warehousemen and Helpers
Local Union 728, AFL, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or
all such activities requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Make whole Dan Herring for any loss of pay he may have
suffered by reason of their discrimination against him , as herein found,
in the manner provided in the Intermediate Report.
(b) Offer to Houston Steele, upon his application on the termination
or abandonment of the strike, immediate and full reinstatement to his
former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges , as provided in the Inter-
D & D TRANSPORTATION COMPANY 925
mediate Report, and make him whole for any loss of pay he may suffer
by reason of the Respondents' discrimination against him in the man-
ner provided in said Report.
(c) Upon request, bargain collectively with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local No. 991, AFL.
(d)' Upon request, bargain collectively with Truck Drivers, Ware-
housemen and Helpers Local Union 728, AFL.
(e) Post in their main office and terminal warehouse at Dothan,
Alabama, in their terminal at Mobile, Alabama, and in their other
terminals, copies of the notice attached to the Intermediate Report and
marked "Appendix A." 12 Copies of said notice, to be furnished by
the Regional Director for the Fifteenth Region, shall, after being
signed by Respondents' representatives, be posted by Respondents
immediately upon receipt thereof and maintained by them for sixty
(60) consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable
steps shall be taken by Respondents to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for the Fifteenth Region in writ-
ing, within ten (10) days from the date of this Decision and Order,
what steps Respondents have taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is dis-
missed, to the extent that it alleges discrimination in relation to Louis
Danford and Calvin Clements.
1' This notice , however, shall be, and it hereby is, amended by striking from line 3
thereof the words "The Recommendations of a Trial Examiner " and substituting in lieu
thereof the words "A Decision and Order " 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
"Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States
Court of Appeals , Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
These proceedings, brought under Section 10 (b) of the National Labor Rela-
tions Act as amended (61 Stat. 136), were heard in Mobile and Dothan, Alabama,
on various dates from October 8 to 15, 1951, pursuant to due notice to all parties.
Separate complaints were issued on July 27, 1951, by the General Counsel of the
National Labor Relations Board,' based on charges filed by the respective Unions
and served on Respondents , and were consolidated by order of the Regional
Director on August 1, 1951.
In Case No . 15-344, the complaint 2 alleged in substance that Respondents had
committed unfair labor practices proscribed by Section 8 (a) (5) and (1) of
1 The General Counsel and his representatives at the hearing are referred to herein as
the General Counsel and the National Labor Relations Board as the Board. The Respond-
ents above named are referred to as Respondents and as D & D, and the charging Unions
above named as the Unions and as Local 991 and Local 728, respectively.
2 The summary of the pleadings conform to various amendments made at the hearing.
,926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Act by (1) refusing on or about February 29, 1951, and since to bargain with
Local 991, which since February 10, 1951 , had represented a majority of Respond-
ents' employees in an appropriate unit at Respondents ' Mobile terminal ; and
(2) engaging in various acts of interrogation and statements to discourage
membership in the Union , and promising and granting benefits to induce em-
ployees to cease their union activities. In Case No 15-348 the complaint alleged
in substance that Respondents had committed unfair labor practices proscribed
by Section 8 (a) (1), (3), and (5) of the Act by (1) refusing on or about Febru-
ary 14, 1951, and since, to bargain with Local 728, which on February 14 had been
certified by the Board 's Regional Director as the representative of Respondents'
employees in a unit of over-the-road drivers; (2) discharging discriminatorily
Dan Herring on January 28, 1951, Louis N. Danford on February 10, 1951, and
Houston Steele, Calvin Clements, and Jack Morris on March 19, 1951, and there-
after refusing to reinstate them; and ( 3) engaging in various additional
specified acts of interference , restraint , and coercion.
Respondents filed separate answers which admitted , the allegations of the com-
plaint regarding the nature of their business but denied the commission of unfair
labor practices . The answer in Case No . 15-344 denied that the alleged unit was
appropriate and denied that the Union made any request to bargain. The answer
in Case No. 15-348 also denied that the alleged unit was appropriate and denied
that the certification was legal because the Regional Director had included em-
ployees of another employer. That answer also averred affirmative defenses as
to the alleged discriminatory discharges that : ( a) Herring was laid off for lack of
work on or about January 28, 1951, had been offered work since and had refused
it; (b) Louis Danford was discharged for cause on February 10, 1951; (c) Calvin
Clements voluntarily resigned on or about April 7, 1951; (d) Houston Steele
went out on strike on or about March 19 and has never made application for
reemployment; that he was offered a position with the Company on October 12,
1951, and refused the offer; and (e) Jack Morris went out on strike on or about
March 19, 1951, and has never made application for reemployment ; that he was
offered a position with the Company on October 10, 1951, and refused the offer.
All parties were represented at the hearing by counsel or by other representa-
tives, were afforded full opportunity to be heard and to examine and cross-
examine witnesses , to introduce relevant evidence, to argue orally , and to file
briefs and proposed findings and conclusions . Briefs have been filed by all
parties.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF-RESPONDENTS
For several years prior to April 7, 1951, J. L. Dean and John H. Dove were
copartners operating a business under the trade name of D & D Transportation
Company (herein called D & D), with their principal office and place of business in
Dothan, Alabama. Since that date J. L. Dean has operated said business as a
sole proprietorship . Said Respondents were engaged in their said business in
hauling and transporting freight by motor truck over fixed routes to and from
points in the States of Alabama , Georgia, and Florida, under a certificate issued
.by the Interstate Commerce Commission. During the calendar year 1950, Re-
spondents received revenues for transportation of freight between States in
excess of $100,000.
It is therefore concluded and found that Respondents were engaged in
interstate commerce within the meaning of the Act.
D & D TRANSPORTATION COMPANY 927'
II. THE LABOR ORGANIZATIONS INVOLVED
Locals 728 and 991 are labor organizations admitting to membership employees
of Respondents.
III. VISE UNFAIR LABOR PRACTICES
A. Background; statement of main events and issues
Respondents operated a common carrier freight line with a main office and
terminal at Dothan and other terminals in Atlanta, Georgia, Mobile and Anda-
lusia, Alabama, and Pensacola, Florida. They owned and operated approxi-
mately 12 tractors (trucks) and 35 trailers. In addition they have leased for
2 or 3 years from 4 to 6 tractors (with drivers) from Clark and Danzey; another
Dothan trucking concern. The alleged unfair labor practices in Case No. 15-348
concerned Respondents' over-the-road drivers, who numbered approximately 18
and whose headquarters, with 1 exception, were at Dothan ; and in Case No.
15-344 concerned employees of the Mobile terminal. Organizational activities
began among the over-the-road drivers late in 1950, and later spread to the
terminal employees at Mobile, though there is no evidence that the 2 were in
any way connected, and there is little evidence which relates commonly to the
2 cases.
Local 728 filed with the Board's Regional Office at New Orleans on January 11,'
a representation petition covering Respondents' over-the-road drivers. Respond-
ents signed a consent-election agreement on January 18, and the election was
held on January 24 and 25. Six C & D drivers were permitted to vote in the
election, which fact directly accounted for the chief legal issues presented in
Case No. 15-348. On January 29, Respondents filed objections and exceptions to
the election, which had been won by the Union. On February 14, after investi-
gation, the Regional Director issued his report overruling the objections and
.formally certifying the Union. On February 21, respondents filed objections
and exceptions to said report and certification, and on March 2 an amendment
thereto. On March 8 the Regional Director issued a supplementary report
overruling Respondent's objections and exceptions. The Board declined to
intervene
Bargaining conferences were held on February 27 and on March 16, 17, and 18,
attended also by Morris Alpert, business representative of Local 991. On the
afternoon of the 18th, Respondents, acting unilaterally, granted a 10-percent
wage increase to its over-the-road drivers. A strike was called by the Union
on the morning of March 19, and Local 991 called a strike contemporaneously
at Mobile.
The General Counsel also offered evidence that Respondents had engaged in
various acts of discrimination and of interference, restraint, and coercion, much
of which was controverted by Respondents' evidence.
At Mobile, organizational activities began around the first of February, and
by letter of February 20, Local 991 wrote Dove claiming a majority and request-
ing a meeting. On February 23, the Union filed a representation petition in the
Regional Office, and on February 27 the Regional Director wrote Respondents at
Mobile notifying them of the fact. The General Counsel offered evidence that
upon receipt of the letter at Mobile, Respondents' terminal manager, Edgar
Healy, engaged in certain acts of interrogation and made statements of a coercive
nature, and that he later announced a 10-percent wage increase, approved by
8 Herein called C & D.- The drivers whom they supplied to D & D are herein referred to,
for convenience in identity, as C & D drivers.
All events herein occurred in 1951, except where otherwise stated.
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondents, which became effective on March 10. On March 20, the Union
requested withdrawal of the petition for representation, which request was ap-
proved by the Regional Director on March 23, without prejudice. The evidence
concerning the Mobile employees (Case No. 15-344) is not greatly in dispute, and
the issues are chiefly legal ; i. e., whether Healy's statements to and interrogation
of employees were violative of the Act, whether the announcing and granting of
the wage increase was violative of the Act ; and whether there was a request and
a refusal to bargain.
The issues in Case No. 15-348 are both factual and legal, and are considerably
more complex than those in Case No. 15-344 They include questions as to
whether Respondents engaged in various acts and statements which were attrib-
uted to them by the General Counsel's witnesses ; whether the discharges were dis-
criminatorily motivated ; whether Respondents were entitled to a hearing on their
various objections and exceptions to the election; whether the Regional Director
acted arbitrarily, capriciously, or unlawfully in his various rulings on Respond-
ents' objections ; and whether Respondents refused to bargain.
As the latter case furnished the bulk of the subject matter of these proceedings
and as the events occurred mainly at an earlier time, it will be first stated.
B. Case No. 15-CA-348
1. Interference, restraint, and coercion
Huei Henderson testified that a week or two before the election he had a con-
versation with Dean in the office at the terminal during which Dean asked him
about the Union, whether he had joined or signed, and why he had done so.
Henderson told Dean that some of his "buddies" had asked him to sign, and Dean
stated that he could not tell Henderson which way to go, but "there will be a
show-down and I will know which way you boys go, and if you go with your
buddies, with the Union, I am afraid you will have to keep going with them."
Henderson testified that he requested Dean to pay him double pay for a week's -
double shift which he had previously worked in lieu of allowing him a week off
and that Dean said, "You will need that, but I will wait and see which way you
go." Henderson also testified that thereafter on two or three occasions, both
before and after the election, Dean inquired of him, "How are you and your
buddies coming along?"
Dean admitted that he had asked Henderson "something about that I had
heard the boys was all joining a union, or something like that, or may have asked
him, that I heard that the boys wanted a union. I don't know what I said."
(Empasis supplied.) However, Dean denied specifically making the various
other statements which Henderson had attributed to him.
Louis Danford testified that on a Friday about 2 weeks before the election, Dean
questioned him at the terminal about whether he had signed up for the Union,
that he replied that he had, and that Dean inquired whether Danford knew he
(Dean) "wasn't going to have nobody such as that in his outfit." Dean further
inquired whether Danford wanted "to come out of the Union" and whether he
knew that only two or three others had signed with the Union.
Danford also testified that on the following Sunday, as he was preparing to
leave on the Atlanta run to which Dean had just switched him, Dean 'spoke to
him at the terminal, stating that Dean was depending on him to tell the Union 6
that he did not want any more to do with it. Dean also stated he could not
8 The incidents summarized hereunder occurred in and around Dothan except where
otherwise stated
The Union's headquarters were in Atlanta, and organizational activities had originated
there among the drivers.
D & D TRANSPORTATION COMPANY 929
guarantee anything, "but the guys that was in the Union wouldn't have no jobs if
he had anything to do with it"; that he was intending to give a raise, but would
not give it under the Union ; and that "we would have to come out of the Union
before he would talk about the raise." Danford testified further that in another
conversation at Clark and Danzey's, Dean stated that the employees were going
to be fired if they did not "come out of the Union," and that he was not going to
have any of that in his outfit again.
Danford testified further that a week or 10 days before the election, he had
a conversation with Dove in the Atlanta terminal during which Dove asked him
about the Union and during which Dove stated that the employees had "done
mighty dirty" by not applying to him for a raise without getting the Union to
seek an increase for them. Danford reminded Dove of a former occasion when
Stewart had asked Dove for a raise without success, and Dove replied that he
had done all he could and that since the Union had come in he was not going to
raise wages at all.
Dean and Dove denied holding the conversations which Danford testified to.
Dan Herring testified that the day before his discharge (on January 14) Dove
held a conversation with him about the Union and that Dean was also present
part of the time. Herring testified that Dove asked him and Pippen (another
driver) how they were doing about the Union and if they had signed with it.
Dove also questioned Herring about his opinion of the Union, whether he was in
favor of it, how he felt about it, and what experience he had had with a union.
Herring explained what he knew about how the Union operated and said that he
was 100 percent Union. Dean inquired how Herring could be a good union man
and a company man too. Herring testified further that Dove then inquired
whether Herring knew who had planned to join the Union, that Dove called off the
names of the drivers from a list, that Herring told him in each case whether the
driver had joined the Union, and that Herring made check marks on the list.
Dove denied holding the conversation which Herring testified to and denied
the statements and interrogation which Herring attributed to him, including the
inquiries concerning the union membership of the other drivers. Dean did not
testify in denial of Herring's testimony that Dean inquired during the conversa-
tion how Herring could be a good union man and a company man too, though
Dove denied that he had himself made such an inquiry.
Houston Steele testified that a few days before the election Dean asked Steele
why he went behind Dean's back to sign up with the Union. Steele also testi-
fied that on March 19, the day the strike began, Dove called Steele to his car
and in the presence of Calvin Clements inquired whether "we couldn't get
together on this and settle without going ahead with the Union" and that Dove
asked him to get the employees together and ascertain whether they would
"come to an agreement and pull out of the Union." Steele then discussed with
Dove the question whether the Company would be willing to give a raise and
how much, and suggested to Dove that the drivers should receive 5% cents a
mile instead of $45 a week, but Dove stated he did not think they were worth
that much.
Dove and Dean denied holding the conversations which Steele testified to.
Jack Morris testified that a few days before the election he had a conversa-
tion with Murray McKay (Dothan terminal foreman), during which McKay
asked him how he was going to vote in the election and asked him if he knew
that if he voted for the Union he would be fired within 30 days. McKay denied
the conversation.
Wtilliam^ H. Stewart testified that Dove had two conversations with him con-
cerning the Union. In the first one, at C & D's filling station, Dove inquired
whether he had signed a paper for the Union. When Stewart admitted he had,
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dove replied, "Well, that is all right. I just wanted to know. I ain 't going
to fire you. But I am going to fire Jack Morris and Houston Steele and Jack
Mallory." The second conversation was at Dove's home, with Mrs. Dove present.
Dove repeated, "I will say again I am going to fire Jack Morris and Houston
Steele and J'ack Mallory, and if anything comes up against us, I have got my
wife, two of us against you." Dove also stated that the drivers "were crazy
[because] they were making more money than they would if it was union."
Dove testified that he could recall no conversation concerning the Union with
Stewart at the C & D station. He did recall that at his home Stewart had
asked him something about the Union, the gist of which he did not remember.
Dove denied having said that he was going to fire Mallory, Steele, or Morris and
denied the other statements which Stewart attributed to him on the occasion.
Stewart testified further that early in January he had a conversation with
Dean at the terminal office during which Dean inquired whether Stewart had
started the Union and whether he knew who had done so. Stewart responded
negatively to both inquiries. Dean made no express denial of Stewart's fore-
going testimony.
Ste.vart testified that on the late afternoon of January 20, Dean engaged I im
at C & D's office in a lengthy conversation concerning the Union, during a part
of which Danzey was present. Danzey had produced a bottle of whiskey fri in
which the three of them took one or more drinks each. During the discussion
of the Union, Dean accused Stewart of having lied when he previously inform,-d
Dean he knew nothing of the Union, but Stewart reminded Dean that Dean hnd
inquired only if Stewart had started the Union or knew who had started It.
Dean suggested to Stewart that he talk to the drivers about the Union but
Stewart demurred, stating that the drivers would insult him if he attempted to.
Dean then referred to two drivers who lived in Eufaula (Clements and Pippen)
and requested Stewart to talk with them. - Stewart again demurred and point ad
out that he would be away when they came in to Dothan on Monday. Dean
replied, "Well, I got two Cadillac automobiles and a pick-up truck so you c in
go see them."
Stewart testified that they then left the office, and Dean handed Stewart
the keys to the pickup truck, which Dean had driven to the station. Stewart
asked Dean for $10 wihout stating why he wanted the money and Dean gave it
to him without inquiring. They then got into the truck, Stewart driving, and
went to Stewart's home so that Stewart might report to his mother that he
was going to Eufaula for Dean. After doing so, Stewart drove Dean to the
D & D terminal and there let him out. Stewart left sometime later allegedly
for Eufaula but never arrived there. Instead, he was involved in an automo-
bile wreck at a point between Louisville and Clayton (not on the road between
Dothan and Eufaula) as a result of which he was hospitalized for 8 months.
On cross-examination Stewart denied that he had asked Dean for the use
of the truck to go to see a girl and denied that he asked Dean for $10 to go
to Eufaula. He insisted that Dean had told him to go to Eufaula, that he
simply asked for $10, that Dean gave it to him, and that he was on Dean's
errand at the time the accident occurred. Stewart also denied that he told
Dean he wanted the money to pay up some bills on account of his mother's
illness.
Dean also testified at great.length concerning the pickup truck incident. He
admitted that the incident occurred in the setting and in general outline as
Stewart had testified, his account varying mainly on the content of the con-
versations. Dean also contended that Danzey was present for all except a
few minutes of the conversation in C & D's office. Under Dean's version
Stewart brought up the subject of the Union, and expressed concern sic to the
T) & D TRANSPORTATION COMPANY 931
wisdom of joining and as to the attitude of the other drivers toward him on
account of his assumed or indicated antiunion attitude. Stewart then stated
his intention of going to Eufaula to "straighten out" the drivers there about
the Union, and requested Dean to lend him Dean's car or truck for that purpose.
Dean refused.
Dean testified that they left the office and that outside Stewart asked Dean
to lend him $10 on account of expenses concerning his mother. Dean did so.
Stewart then noticed the pickup truck, peremptorily demanded permission to
drive it, and shouldered Dean away from the driver's seat. Dean had left the
keys in the ignition switch. As they started up, Stewart inquired whether
Dean objected to going by Stewart's house so that Stewart might report to his
mother that he would be out late. Dean agreed. Although he remained outside
in the truck, Dean testified he heard Stewart inform his mother within the
house that he would be late getting in. Stewart then drove Dean to the D & D
warehouse where Dean's car was parked, and Stewart began urging Dean to
lend him the pickup truck for the night so that he might visit a woman. Dean
refused because Stewart had been drinking.
The pickup truck was left on the terminal lot, apparently with the keys in
the ignition switch, and Dean drove home in his own car. McKay testified that
as Dean left, Stewart walked over to the end of the dock where McKay was
and said, "I have got the keys to the pickup tonight and do any of you boys
want to go juking." McKay refused the invitation, and Stewart shortly got
into the truck and drove away.
Danzey testified in corroboration of Dean's testimony that he was present
during all except a few minutes of the conversation in the office, that Stewart
several times requested the use of the pickup truck to go to Eufaula to see
some of the drivers about the election, and that Dean refused. Danzey was
busy closing up the office when the men walked out and heard none of the
Conversation on the outside.
Dean repeatedly denied that he gave Stewart permission to take the truck.
Though he refused to characterize Stewart's act as "stealing," he admitted that
Stewart had appropriated the truck to his own use and had wrecked it. Though
there was no collision insurance on the truck and though it was a total loss,
Dean did not seek Stewart's arrest, filed no suit against him, made no claim for
damages, and has not asked Stewart to repay the $10 "loan." Dean explained
his failure to file suit on the-ground that Stewart was without financial respon-
sibility. Stewart filed no claim for workmen's compensation as a result of the
.iccident, but did file a suit against D & D in the State court several months
before the hearing in the present proceeding.
Concluding Findings
As is seen above, six witnesses for the General Counsel attributed to Dean,
Dove, and McKay a variety of inquiries concerning union membership and voting
in the election, threats and warnings relating to union membership, and promises
of benefits conditioned on withdrawal from the Union. Though most of the
incidents were flatly denied, Dean and Dove admitted discussing the Union on
some of the occasions in question. For example, Dean admitted asking Hender-
son about the drivers joining a union or wanting a union. Furthermore, many
of the statements and interrogations were of similar character and content, and
the testimony of the General Counsel's witnesses may therefore be considered
as mutually corroborative. Corroboration was also supplied by evidence of
Respondent's "follow through," e g., the discriminatory discharge of Herring,
as hereinafter found, the discharge of Steele and Morris because of their partici-
2271260-53-vol. 100-60
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pation in the strike, and the bypassing of both Unions by the unilateral granting
of wage increases at Dothan and Mobile.
Special attention must be given, however, to Stewart's testimony surrounding
the pickup truck incident. Dean and Danzey testified that it was Stewart who
sought the truck for use in his own interest and that Dean refused it. The evi-
dence, taken in its entirety, supports Stewart's testimony that Dean solicited
Stewart's assistance in talking with the two drivers at Eufaula about the Union
and offered him the truck to go there. First, no reason appeared why Stewart
would seek Dean's assistance for the stated purpose of talking with the Eufaula
drivers about the Union as Dean and Danzey testified he did. The entire setting,
including the furnishing of the whiskey, the payment of $10, the delivery of the
truck, Dean's accompanying of Stewart to Stewart's home 7 and return with him
to the terminal, and Stewart's immediate statement to McKay at the terminal
that he had been given the keys to the truck, substantiates Stewart's version.
Dean's alternative version would support the conclusion that Stewart actually
stole the truck or appropriated it to his own uses, but that, conclusion is wholly
incompatible with the subsequent acts of the parties. Thus, it was Stewart,
not Dean, who brought suit, and Dean admittedly did not seek Stewart's arrest
or make claim or demand for damages to the truck or even for repayment of the
$10 loan. In its entirety, the incident plainly constituted a part of Respondents'
campaign of unfair labor practices to defeat the Union in the election. Though
the purpose of the request for the $10 was neither expressly stated nor acknowl-
edged, it was obviously to finance Stewart's trip to Eufaula on Dean's errand.'
It is concluded and found that the various incidents occurred and the various
statements were made substantially as testified to by the General Counsel's wit-
nesses. It is therefore concluded and found that Respondent engaged in inter-
ference, restraint, and coercion within the meaning of Section 8 (a) (1) by
questioning and interrogating their employees concerning their membership and
the membership of other employees in the Union ; warning and threatening their
employees with discharge and the loss or withholding of benefits because of their
union membership and activities ; interrogating their employees as to their vote
in the.election and warning their employees that they would ascertain how
they voted ; promising wage increases to employees to settle the strike and with-
draw from the Union, and seeking and financing employee assistance to procure
the cessation of union activities by other employees.
2. Discrimination
Dan Herring was hired late in December 1950 and was the youngest employee
in point of seniority. Respondent's records indicate that January 13 (a Satur-
day) was the last day of his employment.' Herring testified that on Sunday
afternoon when he reported at the terminal as per custom for an assignment to
a run, Dove informed him that due to lack of equipment he would be laid off
as the youngest man but would be called back as soon as possible. Herring
testified that the following week he learned of a truck that was available and
called Dove and asked for the vacancy, but Dove disclaimed knowledge of avail-
4 Dean's testimony that he heard Stewart's statement to the latter's mother inside the
house is incredible, since Dean remained in the truck which was stopped out in the yard.
8 The fact that the wreck occurred at a point from 30 to 35 miles distant from the direct
route to Eufaula, though possibly pertinent in the pending civil suit, is not material to the
resolution of the circumstances under which Stewart obtained the truck, since under both
versions ,the truck was to be used to go to Eufaula.
The pleadings specify January, 28 as the date of the discharge However, Herring tes-
tified that his discharge occurred about a week before the election ( January 24-25), which
is in substantial accord with the payroll records.
D & D TRANSPORTATION COMPANY 933
able equipment. Herring also testified that approximately 6 weeks after his
layoff, at a time he was working elsewhere, Dove offered him reinstatement;
that he informed Dove that if the offer was the Union's idea he would not accept
because it would be just a matter of a few days before he would be gone again;
that he had another job and was pleased with it. Dove stated it was the Union's
idea and Herring thereupon declined the offer. Herring admitted on cross-
examination that he understood Dove was making an unconditional offer of
work and that he also understood that the Union had requested D & D to rein-
state him.
Dove admitted that Herring called him after the layoff concerning some equip-
ment which had been left at Columbus but testified that he informed Herring that
Respondents had not gotten the truck back, and at that time they had more
men than trucks, but that they would give Herring a job as quickly as they had
an opening.
The evidence is not in conflict as to the circumstances surrounding Herring's
discharge or layoff nor as to the reason assigned. The issue is whether Respond-
ents acted through discriminatory motives rather than for the cause assigned.
Pertinent for consideration are the lengthy inquisition concerning union mem-
bership and activities to which Dove subjected Herring the day before the termi-
nation and the various other coercive statements and threats to discharge union
members which were made by Dean and Dove to other employees. These facts
establish conclusively that Respondents intended to discourage union member-
ship by ridding themselves of union adherents, but that fact does not establish
ipso facto that Respondents acted from such motivation in Herring's case.
Other undisputed evidence, however, disproves Respondent's affirmative de-
fense that it laid off Herring for lack of work or equipment. Thus the payroll
records disclosed that between the alleged layoff and the offer of reinstatement
Respondents hired four new drivers, the first on January 15, the day after
Herring's discharge. The hiring of an immediate replacement and the failure
to recall Herring when later vacancies developed, expose the lack of genuine-
ness in Respondents' defenses and serve to support the remaining evidence that
Respondents in fact discharged Herring because of his union membership and
activities, in violation of Section 8 (a) (3) and (1). It is so found. It is further
found that on or about March 1, Respondents offered unconditionally to rein-
state Herring and that Herring declined.
Louis Danford was hired in December 1950 and was discharged on February 10
for the asserted reason that he had negligently damaged a wheel on a tractor
on a run from Dothan to Pensacola. It is unnecessary to summarize in detail
the testimony-relating to the incidents which preceded the discharge because
the evidence is undisputed that the wheel was damaged and that that fact was
assigned as the cause at the time of the discharge. What is at issue is whether
that. was the real reason for the discharge or whether it was a mere pretext
which Respondents seized upon as cover behind which to jettison an adherent
of the Union. So much of the evidence as throws light on that issue will be
briefly recounted.
On his previous run to Pensacola, Danford had broken down about 12 miles out
of Pensacola because of trouble with a wheel on his tractor, apparently as a
result of running on a flat tire. Lugs had been broken, the spacer between the
twin wheels had been damaged, and the tires and tubes had been ruined, resulting
in total damage of approximately $300. Dean and Dove were both in Pensacola
when- the damaged equipment was pulled in there, and Dean took Danford to
task for his negligence in running on a flat tire.10 After repair of the damage
10 Danford admitted that Dean commented that "that tire had been flat a long time."
934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Danford made the return run to Dothan ; and Houston Steele, who alternated
with Danford in using the tractor, drove the same tractor on a round trip from
Dothan to Atlanta without incident. Danford then took the tractor and started
on his run to Pensacola.u Danford testified that immediately upon starting his
run he began to have trouble with the new wheel because the spacer and the lugs
were of the wrong size, that he was unable to keep the lugs tight, and that finally
from a point some 50 miles away he called back to Dothan for Respondents'
mechanic, an independent contractor.
Harper, the mechanic, testified that though a wide spacer and narrow lugs
were on the wheel, they complemented each other, that the lugs could have been
kept tight without difficulty, and that he reported to Dean and Dove that the
damage had been caused by "somebody's" (i. e., the driver's) carelessness. The
damage was of a similar character to that on Danford's previous run. Dean
and Dove also testified that had the driver exercised proper care and attention
the damage would have been avoided. The testimony of Respondents' witnesses
is credited in view of the fact that Steele had driven the return trip from
Atlanta with the new wheel without experiencing trouble of any kind.
Danford returned to Dothan and was there discharged by Dove because of the
damage to the wheel, and with the statement that his luck was too bad and that
be was costing the Company entirely too much money. Approximately 3 weeks
after the discharge, Danford and Elmore applied to Dove for Danford's rein-
statement. Dove refused, stating that he was afraid Danford might kill someone
on the truck.
The evidence summarized under a previous section of this Report establishes
Respondents' antiunion animus and their desire to rid themselves of union adher-
ents. But the existence of a discriminatory motive does not automatically
establish that Danford was discharged because thereof, nor does it preclude
Respondents from establishing that they in fact discharged Danford because of
his damage to equipment. For neither Danford's union activities nor Respond-
ents' attitude insured Danford against discharge for negligence or for other
cause, though Respondents may well have welcomed the opportunity of getting
rid of him. Cf. Lloyd A. Fry Roofing Company, 85 NLRB 1222; Chance Vought
Aircraft Division of United Aircraft Corporation, 85 NLRB 183; and McKinney
Lumber Company, Inc., 82 NLRB 38.
The evidence is without dispute that on two successive runs Danford's opera-
tion of the tractor resulted in substantial damage. Though Danford's testimony
is that he was without fault in either instance, his testimony is overborne by
that of Dean, Dove, and Harper. Furthermore, the General Counsel offered no
corroboration of Danford's testimony. That failure is significant in view of the
fact that Steele drove the same tractor between Danford's two trips but was
not questioned about the condition of the wheel, though he was called as the
General Counsel's witness on other matters. It is therefore concluded and
found that the General Counsel has not carried the burden of proof of establish-
ing that Respondents were illegally motivated in discharging Danford. W. C.
Nabors Company, 89 NLRB 538; Stafford Operating Co., 98 NLRB No. 181; and
Law v. N. L. R. B., 192 F. 2d 236 (C. A. 10).
The fact has not been overlooked that Danford was later employed as a truck
driver by a concern with which Dove is presently connected in an executive
capacity and that Dove has not procured Danford's discharge by the latter con-
cern. Though of some significance, that evidence is insufficient for two reasons
to overcome the clear preponderance of the evidence that Danford was discharged
31 Danford testified that when he got the truck back in Dothan there was a new wheel
on the side which he had previously torn up and that Steele informed him it had been
put on the tractor in Atlanta Dove, on cross-examination, confirmed that fact.
D & D TRANSPORTATION COMPANY 935
for cause by D & D : (1) Dove was not shown to have had supervisory authority
over drivers in the latter concern ; and (2 ) the quality of Danford 's performance
may well have improved.
Houston Steele testified that on the first day of the strike Dean inquired of him
and Calvin Clements whether they were going out on their runs . Steele replied
he would not do so until the strike was settled because he would not pull across
the picket line. Dean thereupon discharged him, stating that if Steele did not
take the truck out Dean did not need him any more. Steele testified that Clem-
ents responded that he also was not going to pull out if the other drivers did not,
and that Dean thereupon discharged Clements.
Clements did not testify . Dean denied having any conversation with Clements
and testified that Clements in fact continued working thereafter . Dean could
not remember "specifically" asking Steele "directly" whether he was going out
on big run , but conceded that if Steele so testified , then he "possibly did." He
denied specifically discharging Steele or telling Steele he did not need him
any more.
Steele's testimony is credited as to his own conversation with Dean, whose
statements on the occasion were approximately identical with those he used in
discharging Jack Morris over the telephone ( see infra ). It is therefore concluded
and found that Respondents discharged Steele because he joined in concerted
activities , I. e., the strike , and that they thereby committed unfair labor practices
within the meaning of Section 8 (a) (3) and (1).
Steele testified that he had made no application for reinstatement , that he
considered the strike as still going on, and that he would in fact not return
until the strike is settled and a contract signed. At the conclusion of the hearing
Respondents ' counsel represented that on October 12 and in the presence of
Elmore, the Union 's secretary -treasurer and business representative , he made an
unconditional offer of reinstatement to Steele and that Steele refused it, stating
he would not return to work as long as the strike was in effect.
The facts are undisputed that Jack Morris was discharged by Dean over the
telephone in Atlanta on Monday , March 19, because of his stated refusal to con-
tinue working on account of the strike and the picket line. It is concluded and
found that Respondents discharged -Morris because he joined in concerted activi-
ties, I. e., the strike , and that they thereby committed unfair labor practices
within the meaning of Section 8 ( a) (3) and (1).
Morris testified at the hearing that he considered the strike as still in effect
and that he had made no application for reinstatement . During the hearing
Respondents made an unconditional offer of reinstatement to Morris, who
refused it.
The only evidence that Calvin Clements was discharged was supplied by the
testimony of Houston Steele, supra , that Dean discharged the two of them to-
gether on March 19 because of their stated refusal to work until the strike
was settled . Dean denied having any conversation with Clements and testified
that Clements in fact continued to work until April 7, when he quit to take
another job. - Respondents ' payroll records , excerpts of which were introduced by
the General Counsel, corroborated the latter's testimony and it is credited. It is
therefore concluded and found that the General Counsel has failed to establish
by a preponderance of the evidence that Respondents discriminatorily discharged
Calvin Clements, or in fact that Clements was discharged at all.
3. Evidence and issues concerning the election
Before the question can be reached whether Respondents engaged in unfair
labor practices by refusing to bargain with the Union , it will be necessary to
dispose of the issue whether the Regional Director acted arbitrarily or capri-
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ciously or unlawfully in his handling of, or in his rulings on, Respondents' various
objections to the election, since the determination of the former question is
hinged in part upon the latter issues. The evidence which is relevant to those
issues will, therefore, be fully explored, including the circumstances surrounding
the negotiation of the consent-election agreement and other events which preceded
the actual holding of the election. Preliminarily, however, the facts concerning
C & D's business and the nature of its arrangement with Respondents will be
stated.
a. C d D; the lease arrangement '2
Clark and Danzey were a copartnership and for 3 years had operated an oil
and tire business and a trucking business at Dothan. In their trucking busi-
ness they were authorized by the Alabama Public Service Commission to act as
public carriers within the State of Alabama of concrete pipe and materials for
the manufacture thereof, and they also maintained a truck lease service. They
also sometimes hauled their own gasoline from Panama City, Florida, to Dothan.
They have no financial interest in or connection with D & D, and the latter have
none with them. Shortly after going into business, C & D began leasing trucks
to D & D under an oral agreement, but have also regularly leased trucks to other
common carriers, chiefly Maxwell Truck Line and P. C. White Truck Lines.
They also maintain an emergency lease service for produce trucks which may
break down.
The trucks were leased to D & D, with drivers furnished, for the stipulated
sum of 15 cents per mile. Settlements were made each Monday morning on the
basis of miles traveled. C & D received no compensation other than the agreed
mileage rate, and from it they paid all expenses of operation of the truck and
driver, such as wages, gas, oil, repairs, insurance, licenses, permits, and damages
occasioned by negligence of their drivers. C & D set and paid the wages of their
drivers without consultation with D & D, and made all deductions for social
security, unemployment compensation, and withholding taxes. The wages were
set uniformly at 3%/ cents a mile, with a minimum guarantee of 75 cents an hour,
regardless of the type of work the drivers may be engaged in" The drivers
applied to them-not to D & D-for increases in pay, and C & D granted
no increase when D & D did in March 1951. -
C & D ordinarily furnished from four to six trucks and drivers to D & D. The
trucks so furnished were lettered on their doors (under ICC regulations) as
follows :
Clark and Danzey, Owners
Leased to
D & D TRANSPORTATION COMPANY
DOTHAN,ALABAMA
When those trucks were used by 0 & D in their own driving, the lettering was
covered ; and when they were leased to concerns other than D & D, the lettering
was covered with a cardboard sign which was lettered with the -name of the
other lessee. C & D had no ICC certificate and were not subject to ICC regula-
v The findings hereunder represent a composite of the testimony of Dean, Dove, Clark,
and B H Mallory , and of Dove 's affidavit given during the Regional Director's Investiga-
tion, with such reconciliation where conflicts exist as s required by the preponderance
of the evidence Though the General Counsel refrained , during his case-in-chief, from
offering evidence going to the merits of the questions decided by the Regional Director and
though he periodically objected to evidence offered by the Respondents on those questions,
he entered into the litigation of the merits during his rebuttal by the testimony of the
witness Mallory.
13 In contrast , D & D drivers were paid flat salaries of $45 a week.
D & D TRANSPORTATION COMPANY 937
tions, other than the above lettering. When leased to D & D, their trucks operated
under the certificate of the latter, who were responsible for compliance with
ICC regulations, such as maximum driving hours, keeping of logs, etc.
Generally the same trucks and the same drivers were assigned to D & D, but
the drivers (and the equipment) were sometimes shifted to other hauling for
C & D or for other lessees during a particular week in order to average out the
drivers' earnings. However, the drivers who were assigned regularly to D & D
spent considerably more than 50 percent of their time on the D & D runs. Accord-
ing to Dove's affidavit given the field examiner, D & D's slow season was from
March through August, during which C & D's drivers and equipment were not
used so extensively, but during the remainder of the year Respondents used four
C & D tractors during about two-thirds of their operational time. Mallory, a
C & D driver, estimated that over a period of 2 years he had spent from 90 to 95
percent of his time pulling D & D trailers."
Occasionally C & D were unable to fill D & D's requests for service, in which
cases D & D waited for its own equipment to become available or leased trucks
and drivers from other sources. C & D retained full authority to hire, fire, and
discipline the drivers of their leased equipment, and D & D had no authority in
that regard, though they could and sometimes did report to C & D matters which
they considered to justify discipline. D & D used their own drivers and equip-
ment, where available, on scheduled runs, I. e., on regular routes, at certain
times, and on certain days each week. They called on C & D to supply tractors
and drivers for their "overflow" work on which the runs were nonscheduled.
The procedure was as follows :
Dove and Dean learned by telephone from their terminal managers outside
of Dothan how many extra trailers were to be moved, their numbers, and their
destinations. McKay, the Dothan foreman, was aware of the "overflow" re-
quirements there. The information was transmitted to Clark, along with the
manifests and other shipping documents, and Clark made the assignments and
delivered the papers to the drivers. Sometimes, however, the drivers picked up
the papers at the terminal office or found them in their tractors. The only re-
quirement as to driving time was that the driver leave in time to reach his
destination for the morning terminal opening. Though D & D specified the
routes to be driven, this was in obvious obedience to their ICC certificate, which
provided for fixed routes. Local stops between terminals were rarely made.
Upon reaching the destination (outside of Dothan) the driver customarily
reported to the terminal manager, delivered the shipping documents and his
driving log (required by 1CC), was informed what trailer, if any, was to be
driven back to Dothan, and picked up the shipping papers. If the terminal was
closed, the driver would find the papers in a box by the door provided for that
purpose for use by both C & D and D & D drivers.
In Atlanta the C & D drivers also used the same bunkhouse as the other drivers,
and the cost of maintenance was split by the two concerns. Occasionally when
there was no D & D trailer load available, the C & D driver would ride back to
Dothan with a D & D driver or would haul back trailers owned by other concerns
(though loaded with D & D freight). Infrequent occasions arose also when they
were sent on by Clark to other points to haul back to Dothan trailers for other
C & D customers.
14 Mallory had formerly worked for D & D but was discharged by Dean. He was imme-
diately employed by C & D and bhortly thereafter was assigned to pulling D & D trailers
regularly.
15 Mallory testified that though Clark gave him the bulk of his assignments in Dothan,
sometimes Dove or McKay would inform him which trailer to haul and would give him
the papers on it. That testimony was not denied and is credited.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following responsibilities were also those of C & D. On a trip from Atlanta
to Mobile, for example, Clark would have to decide whether to allow the driver
to drive all the way through or to switch drivers and tractors at Dothan. In case
of breakdowns en route it was C & D's responsibility (if the breakdown occurred
to the tractor) to see that the freight was moved to its proper destination.
However, if it was the trailer which broke down, the responsibility was D & D's.
C & D abruptly terminated the lease agreement with D & D at the final con-
ference between D &,D and the Unions on March 18, under circumstances re-
counted under "The bargaining conferences," infra. C & D then sold three of
their tractors but continued their arrangement with Maxwell Truck Lines, P. C.
White Truck Lines, and others. Approximately a month before the hearing, C
& D began again to lease an occasional truck to D & D in case of a breakdown or
other such emergency.
b. The agreement for the consent election; events precedeng the election
After procuring signed authorizations from what they considered to be 100
percent of the over-the-road drivers, officers of Local 728 filed with the Board's
Regional Office at New Orleans on January 11 a representation petition in Case
No. 15-RC--478. Contemporaneously the Union wrote Respondents requesting
recognition and requesting that they consent to an election on an enclosed form.
Respondents returned the form unsigned and thereafter Elmore and J. E.
Crumbley, of the Union, came to Dothan on or about January 18 and again
sought Respondents' consent to an election1e
Caso March, a field examiner for the Board, testified that in the meantime he
had been assigned to the case on January 15 and that he called Dove on that
date, explored the possibility of a consent election, and that between the 15th and
18th he had further telephone conversations with Dove and with Hardwick,
Respondents' local counsel, about the matter. Dove's attitude was mainly one
of concern that the election be held during such hours as would give all the
employees an opportunity to vote, and March agreed that the election should
be held during the nighttime hours. The agreement signed by Dove and
Crumbley on January 18, and approved by the Regional Director on January
19, originally set the election for January 22 and 23, from midnight until 7
a. in. The agreement contained in paragraph 6 the usual authorization to the
Regional Director to investigate all objections and challenges and to issue a re-
port thereon, and it provided further that "The method of investigation of ob-
jections and challenges, including the question whether a hearing should be held
in connection therewith, shall be determined by the Regional Director, whose
decision shall be final and binding." (Emphasis supplied.)
March testified that on Friday, January 19, after approval of the agreement
by the Regional Director, Dove called him again and informed him that Respond-
ents and the Union had agreed to hold the election on the 24th and the 25th from
6 p. in. to 6 a. m. March acquiesced in the change, advising Dove that
he and the union representatives should initial the corrections in the agreement
when the election examiner arrived to conduct the election. March testified
that Dove then, for the first time, raised the question as to the eligibility as
Ie Dean testified that the Union's representatives first sought to procure the execution
of a contract but later returned and requested that Respondents consent to an election.
Dean testified further that he then raised the question of the C & D drivers voting in the
election and that he signed the agreement only after Elmore assured him that only D & D
drivers would be involved. Elmore denied that the subject of C & D drivers arose, and
Dove testified that the subject was first discussed when Field Examiner Brady later came
to Dothan Furthermore, the agreement was signed only by Dove, not by Dean, and Dove
testified that no one else was present when he signed. Dean's foregoing testimony is there-
fore not credited.
D & D TRANSPORTATION COMPANY 939
voters of "some of his drivers [ who] were operating leased equipment, and
[who] weren 't on his payroll," and that Dove stated in his opinion those em-
ployees should have an opportunity to vote. March informed Dove that the
election order read, as he recalled it, "the employees of D & D Transportation
Company," but told Dove that he had been taken off the case, that Field Ex-
aminer Brady had been assigned to hold the election and had set up a preelection
conference at which time the eligibility of voters would be discussed. He in-
formed Dove that he was unable to discuss the eligibility list over the tele-
phone but that Brady ( who was then in New Orleans ) would discuss the mat-
ter the day before the election , and if Dove was then not satisfied with the
eligibility list as submitted to Brady, he could challenge voters when they ap-
peared at the polls to vote. March denied that he told Dove that the drivers of
leased equipment were not eligible to vote and should be left off the eligibility list.
He further denied that he told Dove at that time to get up a list only of drivers
on the D & D payroll.
Dove testified that the question of eligibility of drivers of leased equipment
first arose when Brady came to Dothan a couple of weeks before the election, but
that Brady did not know whether those drivers were eligible to vote and that
they together thereupon called the New Orleans Office and talked to March. Dove
testified that after his and Brady 's explanation of the lease arrangement, March
responded that the C & D drivers were not eligible and to keep them out.
Dove's testimony is not credited . He was obviously wrong both about the time
of Brady's visit and as to Brady's presence at the time of the telephone conver-
sation with March . March's testimony in comparison was by far the more im-
pressive in its inherent consistency and probability.
In the meantime Respondents had received and posted the official notice of
election in the usual form which contained , among other things, the following
statement :
CHALLENGE OF VOTERS
The challenge of a voter MUST be made before the voter has deposited
his ballot in the ballot box
The General Counsel did not establish by a preponderance of the evidence
that there were mailed to and received by Respondents along with the notices of
the elections , a form letter of transmittal and a form of instructions to election
observers ; and the proffered exhibits were rejected . The matter is immaterial,
however , in view of credited testimony as to instructions given the election ob-
servers by Field Examiner Brady and by Dove's comments to Brady, testified to
by Elmore and corroborated by Dove's affidavit , as hereinafter recounted.
On the day of the election Dove delivered to the Board 's representative a certi-
fied list containing 17 names of over-the-road drivers of D & D taken from the
payrolls of January 6. Two or three hours before the election was to start, the
Union 's representatives raised the question whether the C & D drivers were in-
cluded. Thereupon a call was placed to Regional Director LeBus in New Or-
leans, in which all parties participated . After listening to the account of the
C & D arrangement , the Regional Director stated that the drivers of the leased
equipment should be allowed to vote. Dove stated his objection or protest but
agreed that the election might proceed and agreed to get up from C & D payrolls
a list of drivers who had hauled for Respondents during the week of January 6.
He thereupon got such a list, which contained the names of 6 truck drivers, and
which was certified to by Clark of C & D.
Respondents ' observer at the election was J . D. Williams , and the Union's
observer was Houston Steele. Elmore testified that immediately before the
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election , Field Examiner Brady gave instructions to the observers in the
presence of Dove, Crumbley , and himself , and that Brady explained fully to the
observers their duties in conducting the election and as to the handling of chal-
lenged ballots , stating that either side was free to challenge anyone whom it
did not think eligible to vote. Elmore testified that Dove stated he did not have
any challenged ballots and that he wanted to, get the election over with that
night . Dove asked Elmore if the Union had any challenges and Elmore replied
that he could not answer at that time , that it was up to the observers at the
polls.
Dove's testimony was vague and indefinite as to whether Brady had given
instructions to the observers and particularly as to whether Brady had instructed
them in the handling of challenged ballots. Elmore ' s testimony was corroborated,
however , by an affidavit which Dove had given during the investigation, which
he affirmed on the stand , and which read in part as follows :
Immediately before the election began while Brady was giving the ob-
servers their instructions in the presence of myself , Elmore, and Crumbley,
another representative of the Teamsers ' Union, he told the observers that
any one whom they did not think was eligible to vote could be challenged.
I then said : "I haven 't got any challenges . I want to get this thing over
with tonight." We [ had given ] to Mr . LeBus a general picture as to the
relation of the C & D employees to D & D in our telephone conversation
about two hours earlier . After Mr. LeBus expressed his opinion they could
vote I then deemed that it was unnecessary to make any challenges. I
did not seek advice or obtain any advice from my counsel.
c. The election ; the objections and the Regional Director 's disposition thereof
The election proceeded without challenges on the part of Respondents , though
5 or 6 C & D drivers voted . The official tally of ballots showed that of 21 ballots
cast, 11 were for the Union , 7 against it , and that there were 3 challenged bal-
lots ( by the Union ). The respective observers , plus Dove for Respondents and
Crumbley for the Union, joined in certifying the accuracy of the counting and
tabulation and the secrecy of the ballots . The observers and Field Examiner
Brady, as the Regional Director 's agent, formally certified "that such balloting
was fairly conducted , that all eligible voters were given an opportunity to vote
their ballots in secret , and that the ballot box was protected in the interest of
a fair and secret vote."
Immediately following the election Dove instructed Hardwick to protest the
election because the C & D drivers had voted . Hardwick thereupon called March
in New Orleans, who testified that he received the call the day after the election,
that Hardwick informed him that the C & D drivers had voted, and that he did
not think they should have been permitted to vote. March replied that he was
surprised to hear Respondents took that position because Dove had previously
made the argument to him that they should vote. Hardwick wanted to know
what could be done about the matter , and March informed him that was up to
the Regional Director to determine under the consent -election agreemnt, but if
Hardwick thought there were irregularities in the election he should file ob-
jections to the election , making such allegations as he saw fit. March added,
however, that as one lawyer to another , he did not know how employees could
vote who were not on the payroll , but that was a matter for the Regional Director
to determine . He also added that though he sympathized with Hardwick, he had
nothing to do with the case and that Hardwick should get his objections in with-
in 5 days of the election.
Hardwick testified that he talked with the New Orleans Office two or three
times concerning the filing of objections , once with March and once with LeBus.
D & D TRANSPORTATION, COMPANY 941
Hardwick made no denial of March's testimony ; LeBus did not testify. Hard-
wick filed his first objections on January 29. He testified that the purpose of
filing the objections was to request a hearing, that he mentioned that request
in some of his telephone conversations, and that he expected a hearing to be
held. No rebuttal was offered to that testimony.
Respondents' objections were on the grounds (1) that 2 of the voters chal-
lenged by the Union had been wrongfully and illegally challenged and that their
ballots should have been counted as legal votes ; and (2) that 5 of the 18 voters
whose ballots had been counted were employees of C & D, not of D & D, and that
said employees were wrongfully and illegally permitted to vote.
No formal hearing was held by the Regional Director on those objections nor
on the succeeding objections to the report and certification; however, an inves-
tigation was conducted by a field examiner for the Board. Hardwick testified
that though he was not present at any time when the field examiner interviewed
witnesses who were sympathetic to the Union, the examiner did give him an
opportunity to substantiate the matters and things set out in his objections and
an opportunity to present witnesses. Hardwick testified that though no formal
examination was conducted of the witnesses whom he presented, he was present
during the interviews by the field examiner and injected himself fully into the
questioning of the witnesses in order to develop fully the important points he
thought should be brought out.
The Regional Director issued his report on objections and certification of
representatives on February 14, stating that he had investigated the objections
in accordance with Section 6 of the consent-election agreement. He disposed of
Respondents' objection (1), supra, on the ground that the ballots challenged by
the Union were not determinative of the results of the election, and disposed of
objection (2) on the following basis :
With respect to the six (6) alleged employees of C & D who voted in the
election, the investigation revealed that these employees, during the period
that they drive trucks under lease to the Employer, are subject to the com-
plete control of supervisors of the Employer as to which material shall be
transported, the destination of the trip, and the hours of work as far as
required by the assignment of the particular trip.
The undersigned thus finds that the employees in question are actually
employees of the Employer and thus eligible to vote in the election [citing
A. E. Blacklidge, 91 NLRB 222].
In further support of those rulings, the report found that the objections were
actually post-election challenges to the eligibility of voters, and could not, under
the Board's policy, be entertained (citing N. L. R. B. v. A. J. Tower Co., 329 U. S.
324; 60 NLRB 1414).
On February 21 Respondents filed objections and exceptions to the report
and certification on grounds which may be briefly summarized as follows : That
the Regional Director's ruling was capricious, that his findings and conclusions
were erroneous and were unsupported by substantial evidence ; specifically, that
the investigation did not support the findings above quoted, but to the contrary
supported findings that C & D had absolute control over the following 11 speci-
fied factors of employment :
a. Rate of pay.
b. The number of hours worked by each employee.
c. Disciplinary measures to be taken against each employee in case of mis-
conduct.
d. Physical managment and control of tractors, trailers, and vans.
e. Coverage of workmen's compensation insurance as to said six employees.
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
f. The hour the said employees reported for duty and place of reporting.
g. Control of dispatching drivers to specific routes and trips.
h. Withholding employment compensation and income withholding from
employees wages.
i. Payment of gas, oil , and repair to tractors.
j. Collision insurance on tractors.
k. The six employees in question are available to other companies.
Respondents ' objections further excused their failure to challenge the voters
at the election on the following basis : A representative of the Board was present
at the election and after a full explanation of the relationship of said employees
with D & D and C & D, the Board's representative permitted them to vote after
advising the observers that they were authorized to vote under the Rules and
Regulations of the Board, all of which Rules and Regulations were unfamiliar
and unknown to the observers.
By amendment on March 2 , Respondents added additional grounds that C & D
were not parties to the consent agreement or to the proceedings, did not con-
sent to the election , did not receive notice thereof , that its name did not appear
in the notice, that the notice of election was insufficient . and that the Board
did not give timely or sufficient notice to C & D drivers for them to give the
matter proper consideration , and that the findings and conclusions would com-
pel termination of the contract with C & D.
After further investigation the Regional Director filed his supplementary
report on March 8, 1951, overruling Respondent 's objections and exceptions,
with a finding that . the reinvestigation had clearly established that C & D
"completely controls the working conditions of the employees who drive the
tractors owned by Clark and Danzey and leased to C & D." The report then
made findings, seriatim, rejecting Respondents ' contentions on each of the 11
factors of employment specified in Respondents' objections.
The report also rejected Respondents ' amendment to objections as raising no
material issues, and found further that :
The evidence reveals, completely contrary to point 5 of the Employer's
exceptions , that the Board Agent handling the election fully explained to
the parties their right to challenge any employee about whom any question
existed as to his eligibility .. There is no doubt whatsoever that the
Employer understood this matter , as the Employer 's principal representative
immediately before the election stated that he did not intend to challenge
any employees. The undersigned , therefore, reaffirms his position as set
forth in his original report, that the decision in National Labor Relations
Board v. A. J. Tower Company, 329 U. S. 324: 60 NLRB 1414 , is controlling in
this matter in that, regardless of the merits of the situation , the objections,
as well as the exceptions , of the Employer are overruled inasmuch as they
are post-election challenges to the eligibility of certain employees.
In the meantime Respondents ' objections and exceptions to the report and
certification had been forwarded by the Regional Director to the Board at Hard-
wick's request , and on March 2 the Board wrote Hardwick that it would not
intervene or pass upon the objections in view of the provision in the consent-elec-
tion agreement that the Regional Director 's determination should be final and
binding. Subsequently the Regional Director also forwarded to the Board, at
Hardwick's request , Respondents' amendment to its objections , and on March
14 the Board wrote Hardwick that it would not pass thereon for the reasons
set forth in its previous letter.
D & D - TRANSPORTATION COMPANY 943
d. Issues and concluding findings
The issues which were raised at the hearing and by the briefs were -whether
the Regional Director acted arbitrarily , capriciously , or in excess of lawful
authority (1) by failing to hold a hearing on and (2 ) by overruling Respondents'
objections and exceptions to the conduct of the election.
(1) The failure to hold a hearing 17
Section 9 ( c) (4) of the Act, provides:
Nothing in this section shall be construed to prohibit the waiving of hearings
by stipulation for the purpose of a consent election in conformity with
regulations and rules of decision of the Board.
By its agreement for consent election , Respondents expressly agreed that the
method of investigation of challenges , including the question of whether a hear-
ing should be held in connection therewith , should be left to the final determina-
tion of the Regional Director . This was in conformity with Section 102.54 (a)
of the Board's Rules and Regulations. There was no evidence that Respondents
were in any way misled or deceived as to the purport of the provision , nor did
Hardwick so suggest when making his post-election requests for a bearing.
Those requests , therefore, certainly could not constitute a revocation of the
agreement.
In its present aspect this case is parallel to Carlton Wood Products Company,
95 NLRB 589, since the agreement signed by Respondents was identical to that
on which the Board based its decision in that case . It is unnecessary to repeat
the reasoning there adopted by the Board, which requires the finding here that
Respondents were bound by the terms of their agreement to abide by the Regional
Director 's determination of all questions arising out of the election , including that
of whether a hearing should be held. The investigation was apparently an ex-
haustive one ; certainly Hardwick's testimony showed that Respondents were
given full opportunity of presenting all evidence which supported their position.
These circumstances negate any claim that the Regional Director 's failure to
hold a hearing was arbitrary or capricious.
(2) The overruling of Respondents' objections
The Regional Director based his denial of Respondents' objections alternatively
on two main ultimate findings • ( a) The objections were in fact post-election
challenges and could not be entertained, and (b) the C & D drivers were actually
employees of Respondents.
There can be no question as to the correctness of the first finding. It was
wholly clbar from Dove's statements at the conclusion of Brady's instructions
to the observers that Respondents had decided to make no challenges and to
take their chances on the outcome. Indeed, only 5 days earlier, under March's
credited testimony, Dove was actively sponsoring the eligibility of the drivers
of leased equipment The evidence therefore disclosed that Respondents know-
ingly waived their right to challenge the votes of the C & D drivers, but after
the unfavorable outcome of the election they sought to raise, under the guise of
objections, post-election challenges to the eligibility of those drivers. It is
unnecessary to repeat here the distinction between objections and challenges
observed in a comparable setting by the Supreme Court in the Tower case, supra,
17 There, was no contention by the General Counsel that the Regional Director's Investi-
gation constituted a hearing , either formal or informal
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or the reasoning of the Court, which affords conclusive support for the Regional
Director 's finding . See also N. L. R. B. v. Worcester Woolen Mills Corporation,
170 F. 2d 13, 17- (C. A. 1), cert. den. 336 U. S: 903; Arthur J. . Wiltse, d/b/a The
Avert Arbor Press, 88 NLRB 391, 394; Westinghouse Electric Corporation, 91
NLRB 955; Price Spindle d Flyer Co., 67 NLRB 1130, 1133, footnote 5; Owens-
Corning Fiberglas Corporation , 61 NLRB 546 , 551-2; and American Granite
Finishing Co., 28 NLRB 739.
As the Regional Director 's ruling is thus found to be adequately supported on
the foregoing basis, it becomes unnecessary , strictly speaking , to consider
whether his further finding on the merits was made arbitrarily or capriciously.
The question will, however , be considered in view of the importance which it
was accorded in the Regional Director 's report, as well as during the hearing
herein and in the briefs of the parties.
It is clear that nothing short of arbitrary or capricious action by the Regional
Director will invalidate his decision which the parties had agreed to accept
as final. N. L. R. B. v. General Armature , Mfg. Co., 192 F. 2d =316 (C. A. 3),
enfg. 89 NLRB 654, and citing Sena-Steel Castings Co. v. N. L R. B., 160 F. 2d 388
lO, A. 8) ; N. L. R. B. v. Capitol Greyhound Lines, 140 F. 2d 754 . It is therefore
not enough for Respondents to show merely that the ruling complained of was
erroneous , for were it conceded that the Regional Director committed an "error
in judgment ," his determination must stand unless it be further found to be
arbitrary or capricious . Merrimac Hat Corporation, 85 NLRB 329, 331 . Indeed,
even though, the Board , might have reached a different conclusion , it deems
the Regional Director 's determination to be final in consent elections of this
character in the absence of fraud, misconduct , or such gross mistakes as to
imply bad faith."B McMullen Leavens Co ., 83 NLRB 948 , 955. However , though
the Trial Examiner and the Board will ordinarily refrain from making an
independent determination on the bare merits of questions so settled by the
Regional Director ( see Capitol Greyhound Lines, 49 NLRB 156, enfd. 140 F.
2d 754 ( C. A. 6), cert. den . 332 U. S. 764 ; Carlton Wood Products Co., supra, it is
necessary , nonetheless , to examine the evidence sufficiently to ascertain whether
his rulings reflected such gross mistakes as to imply bad faith on his part.
The evidence discloses no such gross mistakes here. The most that can be
said is that it is questionable whether the Regional Director correctly concluded
on the merits that the ' disputed drivers were Respondents' employees. Cf.
Sinclair Refining Co ., 93 NLRB 1115 ; J. Howard Smith , Inc., 95 NLRB 21;
N. L. R. B. v. Steinberg and Company , 182 F. 2d 850 ( C. A 5) ; Harrison v,
Greyvan Company , 331 U. S. 704 ; and United States v. Mutual Trucking Com-
pany, 141 F . 2d 655 ( C. A. 6). The Blacklidge case, cited in Regional Director's
report, and Walter Holm, 87 NLRB 1169 , and Gilchrist Timber Company, 73
NLRB 1197 , now cited by the General Counsel , do not, because of their dis-
parate factual situations , clearly support the Regional Director 's conclusion.
Nor do the many'cases -cited in the Union's brief include "one- which is squarely
in point here. Thus the decisions not only do honor to the trite maxim that
circumstances alter cases , but establish that in the field of employer -employee-
independent contractor relationships the factual situations are extremely varied.
Since in -this field -the problem of differentiating between the relationships has
long given much , difficulty ( Harrison v . Greyvan Lines, supra, at p. 713) and
has resulted in much confusion among the decisions , it cannot be,said that the
15 This principle has been many times recognized and applied by the courts in analogous
situations . See, foi example, United States v. Moorman, 338 U. S. 457 , 460,461 ; United
States v. Gleason, 175 U. S. 588 , 602; Kihlberg v. United States , 97 U. S. 398; and Chicago
etc. R . Co. v. Price, 138 U. S. 185.
D & D TRANSPORTATION COMPANY 945
Regional Director 's ruling constituted so gross a mistake as to imply bad faith,
tliough,the issues involved . was one..which . was susceptible of a contrary con-
clusion. Cf. Carlton Wood Products Co., supra.
4. The refusal to bargain
a. The appropriate unit; the Union's majority representation
The representation petition and the complaint herein specified as appropriate
a unit consisting of all over-the-road drivers of the Company , excluding all
professional employees , guards, and supervisors . As so defined the unit was,
under the evidence , obviously an appropriate one for the purposes of collective
bargaining . Respondent urges, however, that the said unit could not properly
include the drivers furnished by C & D because said drivers were employees
of C & D . But the unit as defined above included only Respondents ' employees,
and objections to the unit on the ground stated are without merit . Actually,
Respondents are: thus seeking to reraise ,as a unit question the Regional Direc-
tor's rulings on their objections to the election . Those questions were disposed
of under the preceding section of this Report. It is therefore concluded and
found that all of Respondents ' over-the-road drivers, excluding all 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.
It is further concluded and found , on the basis of the tally of ballots and
the Regional Director 's certification of representatives , that on February 14,
19111, and subsequent thereto, Local 728 represented a majority of the employees
in the above -described unit.
b. The refusal to bargain
(1) The bargaining conferences
The first bargaining conference was held at Dothan in Hardwick 's office on
February 27 and was attended by Elmore, Kruggel, and Alpert for the Union,
and Hardwick and Dove for the Respondent . Hardwick had filed on February 21
objections and exceptions to the Regional Director 's report and certification of
representatives , and he stated at the inception of the conference that he was
entering into negotiations without waiving his right to procure review and
reversal of the Regional Director 's findings . Kruggel had previously forwarded
copies of a printed pamphlet containing the Union 's standard form of contract
and that contract was discussed clause by clause in its entirety . There was
substantial disagreement over many of its provisions and as to their applicability
to Respondents ' operations , and no substantial progress was made toward reach-
ing an -agreement . It was agreed that a further meeting would be held after
the Board 's action on Respondents ' request for review.
As the conference was breaking up Alpert referred to the fact that he was
representing the terminal employees at Mobile and asked , "What are we going
to do about the employees in Mobile ?" Hardwick replied that the meeting had
been arranged to discuss an agreement covering the over-the -road drivers and
that Respondents would come to Mobile to discuss the situation there. Alpert
stated, "you had better come down there because you know I have the people
and we will discuss it behind the picket line."
After receipt of a copy of the Regional Director 's supplementary report, dated
March 8, Kruggel contacted Hardwick and arranged for a meeting on March 16.
That and the succeeding meetings were also held in Hardwick 's office. The
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union was represented by Elmore , Alpert, and Pendergast ( Kruggel having
become ill in the meantime ) and the Respondent by Hardwick and Dove. Again
the printed contract was discussed paragraph by paragraph , and there was
also discussion of a wage increase both in the light of the understanding or
assumption that a 10-percent increase was allowable under the Wage Stabiliza-
tion Board 's wage freeze and in the light of the Union 's demand for a wage rate
of $1.25 an hour but with a guarantee of 48 hours a week to the drivers.19 Agree-
ment was reached on a majority of the clauses but none on such subjects as in-
surance, welfare plan , checkoff of union dues , and wages ( credited testimony
of Alpert). The meeting adjourned to the next day with the understanding that
Dove would take up with Dean the question of the Union's wage demand.
Both Dean and Dove were present on the 17th and 18th but Pendergast had
left the negotiations . The meeting on the 17th was a short one. Hardwick
briefed Dean on developments and explained to Dean that the contract proposed
by the Union would cover the drivers of equipment leased from C & D. Dean
took the position that the effect was to merge the two concerns and that nego-
tiations could not proceed further without the presence of a representative of
C & D. The meeting thereupon adjourned to the next morning, when Clark
joined the negotiators.
Hardwick first briefed Clark on prior negotiations and on the manner in which
the proposed contract would apply to and affect the drivers he supplied to D & D
to operate the leased equipment . Clark immediately refused to consider such
an arrangement and announced that he was taking his trucks away from D & D.
The union representatives then left the conference for a few minutes while
Respondents' representatives discussed the matter further with Clark. When
the conference was resumed, Clark had left and the union representatives were
informed that Clark was standing by his threat to terminate the lease arrange-
inent and that it would be necessary for Respondents immediately to seek addi-
tional equipment either by purchase or lease. Respondents requested a 10-day
extension for that purpose, and Elmore stated he would report the request to his
superior officers and that he would inform Respondents later whether the exten-
sion was agreed to 2°
Alpert testified that at the conclusion of the conference he inquired ( as he had
on February 27) "What are we going to do about the people in Mobile?" and that
Respondents replied they were not going to do anything because of what had
happened to the drivers in Dothan. Alpert responded in effect "You know the
people I am interested in." Alpert denied that there was any discussion con-
cerning a consent election and testified that he was not referring to a consent-
election agreement but was seeking recognition and bargaining.
Dove denied that Alpert had mentioned the Mobile employees at the February
27 conference, and testified that on March 18 Alpert inquired whether Respond-
ents would consent to an election at Mobile and that they informed him they would
take the matter up after straightening out the over-the-road truck drivers. Dove
also denied that in any of the meetings Alpert had stated that unless considera-
tion was given to his claim in Moble he would talk through a picket line, but
testified that Alpert had made such statements to him in Mobile several times.
1° Respondents ' drivers were being paid a flat $45 a week regardless of hours worked.
The Union calculated that a $1 25 hourly rate would equal approximately a 10-percent
increase ; but the imposition of a guarantee of 48 hours a week would have meant a guar-
anteed minimum salary of $60 , in comparison with $49 50 if the current salaries were
raised a flat 10 percent.
20 Elmore testified that he agreed to notify the Respondents on Monday of the Union's
decision . This .was disputed by Respondents ' witnesses , and was not corroborated by
Alpert -
/I I
D k D TRANSPORTATION COMPANY 947
Hardwick, who was under the impression that Alpert had not attended the
February 27 conference, testified that Alpert did attempt to discuss the Mobile
situation near the end of the conferences on March 17 or 18 but that Respondents'
position was that the meetings were called to discuss the other matter. He
testified that Alpert handed him a form for a consent election and requested that
he advise immediately what his clients' position was with reference to signing it.
Hardwick admitted, however, that prior to that time Field Examiner Irving had
dealt wih him on the subject of signing a consent-election agreement and that he
had finally notified Irving by letter an March 13 that his clients had refused to
enter into such an agreement. Hardwick also testified that during the Dothan
conferences Alpert attempted to rush along the other negotiations, saying that he
wanted to discuss the Mobile situation, but that Respondents took the position
they had all they could do to discuss the over-the-road contract.
(2) Subsequent events; the wage increase; the strike
After the March 18 conference adjourned, Elmore and Alpert met with the
drivers and acquainted them with developments and with management's request
for an extension. Elmore testified that 10 or 12 drivers were present and that
their disposition, so far as expressed, was to strike. He testfied that
Alpert was opposed to the strike and so informed the men and that he and Alpert
outlined the possible harmful effect of a strike and attempted to persuade the
drivers against one. Reference was then made to the fact that Dean wanted to
meet with drivers at the terminal at 4 p in., and it was decided to suspend
until after Dean's meeting in order to learn what, if anything, Dean was going
to do.21 The drivers thereupon went to the terminal and there met with Dean
and Dove.' In the meantime Arthur Hughes had reported to Dean and Dove
that there was going to be a strike.
Dean informed the drivers that he and Dove had agreed to give them a 10-
percent raise from $45 a week to $49.50 to take effect in their next pay checks.
Dean testified that because of Hughes' report of an impending strike he and Dove
felt that they had done all they could do and that they felt the employees were
entitled to the 10-percent increase which they understood was permissible under
Wage Stabilization regulations. Dean testified that the Union had nothing to do
with Respondents' granting of the increase. Dove testified that he and Dean
had discussed the possibility of an increase since Saturday, had planned to
announce it to the men, and had decided not to seek the Union's approval before
granting it.
After the announcement of the increase some of the drivers returned to meet
with Elmore, who called. Kruggel in Atlanta, and reported the granting of the
increase. Kruggel thereupon authorized a strike, which was actually called at
7: 00 a. in. on Monday. Thereafter, as previously recounted, Dean discharged
Steele and Morris for refusing to work during the strike. They and Henderson
were the only drivers who actually participated in the strike.
(3) Concluding findings
The evidence does not establish that Respondents refused to bargain with Local
728 at any time prior to the conferences in March. The negotiations of February
21 Arthur Hughes, a nonunion member, testified as Respondents' witness that Alpert
and Rimore announced that a strike would be called immediately. His testimony is con-
trary to the clear preponderance of the evidence and is not credited
2' It was customary for the drivers to report at the terminal on Sunday afternoon to
pick lip their manifests and other papers and to receive nisti uctions and assignments to
their runs for the ensuing week.
- 227260-53-vol 100--61
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
27 were conducted with a reservation by Respondents of their right to procure
a review of the Regional Director's findings, and that meeting adjourned with
the agreement that further negotiations would await final disposition of the
objections to the election. And though the March conferences, standing alone, do
not show that Respondents' negotiations therein were not with a good-faith
intent to reach an agreement, Respondents' subsequent acts and statements dis-
close unmistakably that they intended to avoid an agreement. Thus, in the midst
of negotiations with the Union, Respondents met with the drivers and announced
and granted unilaterally a 10-percent wage increase. That increase had not
previously been offered the Union, and no impasse had been reached.
Indeed, Respondents' own testimony disclosed that they intentionally avoided
and bypassed the Union. Their excuses were obvious shams. The fact that the
increase granted may have been the maximum permissible under the Economic
Stabilization Act and that presumably the Union could not have obtained a higher
increase, did not, of course, relieve Respondents from the obligation to notify and
consult with the Union. Graham County Electric Cooperative, Inc., 96 NLRB 684.
And though they might have accepted Hughes' report of an impending strike, even
the actual occurrence of a strike would not have relieved them of their obligation
to bargain, since it is well settled that, even though an impasse in negotiations
has been reached, a strike effects a sufficient change of circumstances to break
the impasse. West Fork Cut Glass Company, 90 NLRB 944, and cases there cited.
Actually, as Dove's testimony disclosed, Hughes' report played no part in
Respondents' decision to grant the increase, since Dove and Dean had decided
on the 17th to announce it to the men without seeking the Union's approval.
Furthermore, Respondents continued their bypassing of the Union after the
strike began on Monday, by Dove's unilateral dealings with Steele, through whom
Respondents sought to reach an agreement with the men to withdraw from the
Union and to settle the strike.
The evidence does not remotely suggest that an impasse was reached on the
18th, as Respondents contend," nor do the cases which they rely on in their
brief (Bradley Washfountain Company v. N. L. R. B., 192 F. 2d 144 (.C. A. 7) ;
N. L. R. B. v. Crompton Highland Mills, 337 U. S. 217; N. L. R. B. v. Whittier
Mills, 111 F. 2d 474 (C. A. 5) ; J. I. Case v. N. L. R. B., 321 U. S. 332; and
Exposition Cotton Mills, 76 NLRB 1289) support their position here. Indeed, the
Crompton Highland case supports the contrary position. Furthermore, as found .
above, had an impasse existed, it would have been broken immediately by the
strike.
It is, therefore, concluded and found that on March 17 (on which date Respond-
ents decided to grant the wage increase without consulting with the Union),
it refused to bargain within the meaning of Section 8 (a) (5) and (1), and
that its said refusal has thenceforth continued. Reeder Motor Company, 96
NLRB 831; N. L. R. B. v. Union Mfg. Co., 179 F. 2d 511 (C. A. 5) enfg. 76
NLRB 322; N. L. R. B. v. Booker, 180 F. 2d 727 (C. A. 5) ; cf. Medo Photo Supply
Co. v. N. L. R. B., 321 U. S. 678, 683-5; and May Department Stores v. N. L. R. B.,
326 U. S. 376, 384.
C. Case No. 15-CA-344
The Mobile terminal , which was operated under the supervision of Terminal
Manager Edgar Healy, employed from seven to eight employees as city drivers
33 Respondents' brief asserts that an impasse was caused during the negotiations "by
the impossible conditions laid down by the Regional Director in his rulings." Respondents'
objections to those rulings have been elsewhere disposed of. Furthermore, the termina-
tion of the C & D arrangement during the March 18 conference effectively removed the
claimed impediment to further negotiations.
D & D TRANSPORTATION COMPANY 949
and helpers and as warehouse employees 24 Local 991 obtained its first signed
authorization on January 30 and by February 10 had procured a total of five.
On March 1 it obtained an additional authorization. On February 20, Alpert,
secretary-treasurer and business manager of Local 991, wrote Dove at Dothan
informing him that a majority of the employees at the Mobile terminal had
requested the Union to represent them and that :
We will be glad to meet at the earliest convenience with you for the
purpose of discussing the appropriate unit as is provided by law.
Hoping to hear from you in the very near future,
I remain
Dove received the letter on February 22 but did not reply. On February
23, the Union filed a representation petition in the Regional Office under Case
No. 15-RC--497, specifying a unit to include all local pickup drivers, helpers,
dockmen, and checkers, and to exclude all other employees. On February 27,
the Regional Director wrote D & D at Mobile and informed it that the petition
had been filed and of the unit claimed by the Union to be appropriate, that a
field examiner had been assigned to investigate the matter, and requested the
furnishing of certain information on an enclosed questionnaire which elicited
mainly an expression on the appropriate unit and information as to the con-
stituency of the unit.
1. Interference, restraint, and coercion
Healy received the above letter shortly after its date and immediately called
the employees together. Five employee witnesses for the General Counsel
testified that Healy informed them he had a letter from the Union and that he
questioned them about whether they had gone to the union hall and had joined
the Union. Bennie Jones spoke up in reply that they might as well tell the
truth and that all of them had gone to the union hall and signed membership
cards. Healy responded in effect, "That is all I want to know."
Healy admitted that he called the men together, but testified that he informed
them the letter was from the Labor Board, and that he read it to them and
asked them what it was all about so that he could answer the questions con-
tained on the questionnaire. As is seen the versions do not vary substantially.
It is concluded that Healy did in fact inform the employees the letter was from
the Board, but that be also questioned them directly about whether they bad
joined the Union. It was obviously that fact he wished to verify, since the
information sought on the Board's questionnaire did not relate to matters on
which the employees could give him help. In short, Healy's handling of the
conference and his questioning of the employees was designed to elicit from
them, if possible, the extent to which organization had proceeded among them.
Later the same day Healy called Dove in Dothan and reported to him receipt
of the letter and informed him that it appeared that all the men belonged to
or had signed cards for the Union.
A wage increase of 10 percent was put into effect at Mobile on March 10.
Healy testified that subsequent to February 27, Napier, the dock foreman, in-
formed him the employees wanted a raise and that he agreed to take the matter
up with Dove and Dean. Healy later called Dove about it, informed Dove he
had checked with a local lawyer and an industrial relations representative of
another concern regarding the amount of increase permissible under the Wage
u There were in addition a single clerical employee in the office and a dock foreman
(James E. Napier ), the latter of whom, contrary to the General Counsel 's contentions, pos-
sessed supervisory status , since for 50 percent of his time, or during the absence of Healy,
be was in charge of the terminal and of its personnel , except the clerical employee.
U50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stabilization wage freeze, and had been advised that a 10-percent increase could
be given. Dove then or shortly thereafter authorized the increase. Healy there-
upon called the employees together again and informed them that the increase
was being given. The evidence is also not in conflict that either at that time or
at other times subsequent to his first meeting with them, Healy informed the
employees that he was neither for nor against the Union, that he had no objec-
tion to them joining if they wanted to, but that he suggested they wait or hold
of until they learned whether the over-the-road drivers were " going union."
Alpert testified that on the morning of March 19, after the picket line was set
up, he held a conversation with Healy during which Healy, among other things,
admitted having given an increase to the men, that Healy stated that all the men
wanted was an increase in pay and that they did not care about the Union, that
the men had so informed him, and that was one of the reasons he had sought the
increase for them. One or two of the employees were present during the conver-
sation. Alpert also testified that he informed Healy that the strike had been
called because of the Union's failure "to get satisfaction out of Dothan" about
an agreement. Healy admitted holding the conversation, but testified that it
was in, a "kidding" vein on both sides. He admitted that it related to the strike
and that reference was made to the wage increase, but Healy could not recall the
specific details of the conversation as testified to by Alpert. Alpert's testimony
is credited.
It is concluded and found that by questioning and interrogating their employees
concerning their union membership and activities (see Joy Silk Mills v.
N. L. R B., 185 F. 2d 732, 743 (C. A. D. C.) cert. den. 341 U. S. 914, quoting with
approval from Standard-Coosa-Thatcher Company, 85 NLRB 1358, at p. 1362), and
by promising and awarding unilaterally wage increases to their employees (see
Dixie Culvert Mameafacturing Co., 87 NLRB 554), Respondents engaged in inter-
ference, restraint, and coercion within the meaning of Section 8 (a) (1)
2. The refusal to bargain
(a) The appropriate unit; the Union's majority
All local pickup and delivery drivers, helpers, dockers, and checkers at Re-
spondents' Mobile, Alabama, terminal, exclusive of office employees, guards,
professional employees, and supervisors, as defined in the Act, constitute a unit
appropriate for the purpose of collective bargaining within the meaning of
Section 9 (b) of the Act.
The above exclusions are obviously in order. A question was suggested at the
hearing whether Nelson, the single over-the-road driver stationed at Mobile,
should be included in the unit. The evidence establishes that he was not an
employee of the Mobile terminal, that he was carried on the Dothan payroll with
the other over-the-road drivers, and that he was listed by Respondents among
the employees eligible to vote in the election there. Furthermore, the evidence
does not show that there was a community of interest between the Mobile ter-
minal employees and Nelson or that there was any overlapping or exchange of
duties. To the contrary, Nelson's duties and interests were wholly analogous to
and compatible with those of the other over-the-road drivers.
At all times subsequent to February 10 (on which date five out of eight employ-
ees had joined the Union), Local 991 represented a majority of the employees in
the above unit.
(b) The request and the refusal to bargain
The question whether Respondent refused to bargain with Local 091 turns
largely on whether the Union made a request to bargain. Though its letter of
D & D TRANSPORTATION COMPANY 951
February 20 was no model of clarity and did not request that Respondents
bargain on all matters for which the employees had designated it as agent, it
did request a meeting to discuss one of such matters, i.e., the appropriate unit.
That the Union's intention was, and that it was in fact seeking, to bargain on
a broader basis was apparent from Alpert's attempts at Dothan to extend the
negotiations to the employees at the Mobile terminal;' and by his threat to talk
through a picket line unless Respondents promptly entered into negotiations.
The testimony of Dove and Hardwick that Alpert attempted only to procure
Respondent's consent to an election is not credited. In the first place, both
denied that Alpert had mentioned the Mobile situation in any respect on
February 27, but Elmore, who attended only that conference, corroborated
Alpert. Secondly, Hardwick admitted that he had notified Field Examiner
Irving on March 13 that Respondents refused to consent to an election. That
fact would have rendered pointless Alpert's alleged request on March 18 that
Respondent consent to an election. Furthermore the exchanges occurred in
a setting of negotiations for an agreement with Local 728, and Alpert's state-
ments disclosed plainly that he was seeking to extend similar negotiations to
Local 991. The entire evidence therefore disclosed that the Union was attempting
to bargain, and that Respondents so interpreted its actions.
The fact that Respondents refused to bargain is not seriously in dispute
under the evidence. Respondents ignored the Union's letter of February 20.
Immediately upon receipt of advice from the Regional Director a week later
that a representation petition had been filed, Respondents engaged in unfair
labor practices as above found. Though they verified through Healy the
fact that the Union represented the employees, they continued to ignore the
Union's request for negotiations, and in the Dothan conferences made their
refusal an express one."' Finally, bypassing the Union, Respondents granted
unilaterally a wage increase which was obviously designed, under Healy's
admissions to Alpert, to destroy the Union's majority. Respondents' actions
subsequent to receipt on February 22 of the Union's request for negotiations,
disclosed unmistakably that they had no intention of recognizing or bargaining
with the Union.
It is therefore concluded and found that on February 22, and from that
time on, Respondents refused to bargain collectively with the Union and that
they thereby engaged in unfair labor practices in violation of Section 8 (a) (5)
and (1) of the Act. Joy Silk Mills, 85 NLRB 1262, enfd. 185 F. 2d 732
(C. A. D. C.) ; Dixie Culvert Manufacturing Company, supra. And see cases
cited at page 948, supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondents set forth in section III, above, occurring in
connection with the operations of Respondents described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow thereof.
m Indeed, Hardwick testified that Alpert attempted to rush along the negotiations with
Local 728 so that he might discuss the Mobile situation.
"Were Respondents' contentions accepted that they refused at the Dothan conferences
to consent to an election at Mobile, such refusal could certainly not have been made in
good faith in view of their knowledge of the Union's majority. Under any view of the evi-
dence, therefore, Respondents' action were obviously motivated by their desire to gain
further time within which to undermine the Union's representative status
4P
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
It having been found that Respondents have engaged in certain unfair labor
practices, it will be recommended that they cease and desist therefrom and that
they take certain affirmative action designed to effectuate the policies of the
Act.
It having been found that Respondents engaged in certain acts of interference,
restraint, and coercion, it will be recommended that Respondents cease there-
from.
It having been found that from February 22, 1951, and thereafter, Respondents
refused to bargain collectively with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local No. 991, AFL, it
will be recommended that Respondents, upon request, bargain collectively with
said Union.
It having been found that from March 17, 1951, and thereafter, Respondents
refused to bargain collectively with Truck Drivers, Warehousemen and Helpers
Local Union 728, AFL, it will be recommended that Respondents, upon request,
bargain collectively with said Union.
It has been found that Respondents discriminatorily discharged Dan Herring
on January 14, 1951, and that on March 1, 1951, they made him an unconditional
offer of reinstatement which he declined. It will therefore be recommended
that Respondents make Herring whole for any loss of pay he may have suffered
by reason of Respondents' discrimination against him by payment to him of a
sum of money equal to the amount which he normally would have earned as
wages during the period from January 14, 1951, to March 1, 1951, inclusive,
less his net earnings during said period. Cf. Crossett Lumber Company, 8
NLRB 440, 497-8.
It has been found that Respondents discriminatorily discharged Houston
Steele and Jack Morris on March 19, 1951, while they were on strike. Neither
of said employees made an application for reinstatement, and Morris, during
the hearing, declined Respondents' offer of reinstatement. Steele, however, made
no absolute refusal of reinstatement but declined to return to work so long as
the strike was in effect. Under the foregoing circumstances the usual remedy
of back pay will not be recommended as to said employees, Coal Creek Coal
Company, 97 NLRB 14; Happ Brothers Company, Inc., 90 NLRB 1513, 1518;
Alside, Inc., 88 NLRB 460; and Globe Wireless Ltd., 88 NLRB 1262, 1268. It
will be recommended, however, that Respondents, upon application by Steele
at the termination or abandonment of the strike, offer him immediate and full
reinstatement to his former or a substantially equivalent position, without
prejudice to his seniority and other rights and privileges and that Respondents
make Steele whole for any loss of earnings which he may suffer from a date
5 days after his timely application for reinstatement, if any, to the date of offer
of reinstatement by the Respondents.
The violations of the Act which Respondents committed are, in the opinion
of the undersigned, persuasively related to other unfair labor practices pro-
scribed by the Act, and the danger of their commission in the future is to be
anticipated from Respondents' conduct in the past. The preventive purposes
of the Act will be thwarted unless the order is coextensive with the threat. In
order, therefore, to make more effective the interdependent guarantees of Sec-
tion 7, to prevent a recurrence of unfair labor practices, and thereby minimize
the industrial strife which burdens and obstructs commerce, and thus effectu-
D & D TRANSPORTATION COMPANY 953
ate the policies of the Act, it will be recommended that Respondents cease and
desist from infringing in any maner upon the rights guaranteed in Section 7 of
the Act.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case , the undersigned makes the following : -
CONCLU1IONs OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local No. 991, AFL, is a labor organization within the
meaning of Section 2 (5) of the Act.
2. All local pickup and delivery drivers, helpers, dockers, and checkers at
Respondents' Mobile, Alabama, terminal, exclusive of office 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.
3. At all times since February 10, 1951, the said Union has been and now is
the exclusive representative of all the employees in the aforesaid unit for the
purposes of collective bargaining within the meaning of Section 9 (a) of the Act.
4. By failing and refusing at all times since February 22, 1951, to bargain
collectively with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local No. 991, AFL, as the exclusive repre-
sentative of the employees in the aforesaid unit, Respondents have engaged in
and are engaging in unfair labor practices within the meaning of Section 8 (a)
(5) and (1) of the Act.
5. Truck Drivers, Warehousemen and Helpers Local Union 728, AFL, is a
labor organization within the meaning of Section 2 (5) of the Act.
6. All of Respondents' over-the-road drivers, excluding all professional em-
ployees, guards, and supervisors as defined in the Act, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
7. At all times since February 14, 1951, the said Union has been and now is
the exclusive representative of all the employees in the aforesaid unit for the
purposes of collective bargaining within the meaning of Section 9 (a) of the Act.
8. By failing and refusing at all times since March 17, 1951, to bargain col-
lectively with Truck Drivers, Warehousemen and Helpers Local Union 728, AFL,
as the exclusive representative of the employees in the aforesaid unit, Respond-
ents have engaged in and are engaging in unfair labor practices within the
meaning of Section 8 (a) (5) and (1) of the Act.
9. By discriminating in regard to the hire and tenure of Dan Herring, Houston
Steele, and Jack Morris, thereby discouraging membership in Truck Drivers,
Warehousemen and Helpers Local Union 728, AFL, Respondents have engaged in
and are engaging in unfair labor practices within the meaning of Section 8
(a) (3) and (1) of the Act.
10. By interfering with, restraining, and coercing their employees in the exer-
cise of rights guaranteed in Section 7 of the Act, Respondents have engaged in
and are engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
11. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union member-
ship and activities; interrogate employees as to their vote in the election
or warn employees that we will ascertain how they voted; warn and
threaten our employees with discharge and the loss or withholding of bene-
fits because of their union membership and activities ; seek or finance em-
ployee assistance to procure the cessation of union activities by other em-
ployees ; promise wage increases to employees to settle the strike and with-
draw from the Union; or promise or grant unilaterally wage increases to
our employees.
WE WILL NOT discourage membership in TRUCK DRIVERS, WAREHOUSEMEN
AND HELPERS LOCAL UNION 728, AFL, or in any other labor organization of our
employees by discriminatorily discharging or refusing to reinstate any of our
employees, or by discriminating in any other manner in regard to their hire
or tenure of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist INTERNATIONAL BROTHERHOOD OF TEAMSTERS,
CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL No. 991,
AFL, or TRUCK DRIVERS, WAREHOUSEMEN AND HELPERS LOCAL UNION 728,
AFL, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all of such activities except to the extent that such
right may be affected by an agreement, requiring membership in a labor
organization as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
WE WILL make whole Dan Herring for any loss of pay he may have suffered
by reason of our discrimination against him.
WE WILL offer to Houston Steele, upon his application on termination of
abandonment of the strike, immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to his seniority or
other rights and privileges, and make him whole for any loss of pay he may
suffer by reason of the discrimination against him.
WE WILL bargain collectively, upon request, with INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA,
LOCAL No. 991, AFL, as the exclusive representative of all our employees
in the bargaining unit described below with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and, if an
agreement is reached, embody such understanding in a signed contract.
The bargaining unit is :
All local pickup and delivery drivers, helpers, dockers, and checkers
at our Mobile, Alabama, terminal, exclusive of office employees, guards,
professional employees, and supervisors as defined in the Act.
WE WILL bargain collectively, upon request with TRUCK DRIVERS, WARE-
HOUSEMEN AND HELPERS LOCAL UNION 728, AFL, as the exclusive representa-
tive of all our employees in the bargaining unit described below with
THE HUNKIN-CONKEY CONSTRUCTION COMPANY 955
respect to rates of pay, wages, hours of employment, and other conditions
of employment, and if an agreement is reached, embody such understanding
in a signed contract. The bargaining unit is,
All our over-the-road drivers, excluding all professional employees,
guards, and supervisors as defined in the Act.
All our employees are free to become or remain members of INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF
AMERICA, LOCAL No. 991, AFL, or TRUCIZ DRivERs, WAREHOUSEMEN AND HELPERS
LOCAL UNION 726, AFL, or of any other labor organization, except to the extent
above stated.
J. L. DEAN, D/O/A D & D TRANSPORTATION COMPANY,
Employer.
By -----------------------------------------------------
(Representative) (Title)
Dated --------------------
J. L. DEAN & JOHN H. DOVE, A CO-PARTNERSHIP
FORMERLY D/B/A D & D TRANSPORTATION COM-
PANY,
Employer.
By -----------------------------------------------------
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
THE HUNKIN-CONKEY CONSTRUCTION COMPANY and STEWART LEROY
LIGHTFOOT
HOISTING , PORTABLE , SHOVEL ENGINEERS' AND FIREMEN 'S LOCAL UNIONS
Nos. 18, 18-A, 18-B, 18-C, INTERNATIONAL UNION OF OPERATING
ENGINEERS , AFL and STEWART LEROY LIGHTFOOT . Cases Nos.
8-CA-307 and 8-CB--35. August 29, 1953
Supplemental Decision and Order
On July 23, 1951, the Board issued a Decision and Order in the
above-entitled proceeding finding, inter alia, that by the discharge of
Stewart Leroy Lightfoot by the Respondent Company at the request
and demand of the Respondent Unions, the Respondent Company and
the Respondent Unions had violated Section 8 (a) (1) and (3) of the
Act and Section 8 (b) (1) (A) and 8 (b) (2) of the Act, respectively.
Thereafter, on August 2, 1951, the Respondents filed a motion for
reconsideration of this portion of the Board's Decision and requested
that the record be reopened to afford the Respondents the opportunity
to submit evidence which they contended would impeach the credi.
bility of Lightfoot.
On August 17, 1951, the Board issued an Order in which it re•
manded the instant case to the Regional Director of the Eighth
100 NLRB No. 138.