Five Transportation Co.

National Labor Relations Board - Board Decisions

Jan 15, 1960

126 N.L.R.B. 154 (N.L.R.B. 1960)

154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Five Transportation Company and Truck Drivers and Helpers
Local Union No. 728 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America. Cases
Nos. 10-CA-3768 and 10-CA-4070. January 15, 1960
DECISION AND ORDER
On September 2, 1959, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled consolidated proceedings,
finding that the Respondent had engaged in and was engaging in
certain unfair labor practices, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the copy of the Intermedate Report attached hereto. The Trial
Examiner further found that the Respondent had not engaged in
certain other unfair labor practices alleged in the complaint and
recommended that these allegations be dismissed. Thereafter, the
General Counsel filed exceptions to the latter finding and recommenda-
tion, and a supporting brief. The Respondent filed a brief in support
of the Intermediate Report.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Rodgers and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner 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 briefs, and the entire record in
the case and hereby adopts the findings,2 conclusions, and recom-
mendations of the Trial Examiner.3
ORDER
Upon the entire record in this case and pursuant to Section 10(c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Five Transportation Com-
pany, having its principal office in Brunswick, Georgia, its officers,
agents, successors, and assigns, shall:
1 In the absence of any exceptions to the Intermediate Report on the part of the Re-
spondent , we adopt , pro forma , the findings , conclusions , and recommendations of the
Trial Examiner with respect to those paragraphs in the complaint alleging violations of
Section 8 ( a)(1) and (5) of the Act
2 The Trial Examiner states in his Intermediate Report that employee Taylor joined
Local Union No. 728 after his discharge by the Respondent. The General Counsel, how-
ever, in his exceptions and brief, contends that Taylor joined the Union prior to such
discharge . The record establishes that Taylor made application for membership prior to
the date of his discharge and became an actual member subsequent to such date.
3 Yutana Barge Lines, Inc., 123 NLRB 1073.
126 NLRB No. 23.
FIVE TRANSPORTATION COMPANY 155
1. Cease and desist from :
(a) Refusing to bargain collectively in good faith concerning
wages, hours, and other terms and conditions of employment, with
Truck Drivers and Helpers Local Union No. 728, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, as the exclusive representative of all its employees in
the following appropriate unit: All city drivers at Savannah, Georgia,
terminal, excluding office clerical employees, guards, professional
employees, and supervisors as defined in the Act.
(b) Interrogating employees concerning their union membership
and activities, or from making threats of reprisal or promises of bene-
fit because of such activity.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form labor organizations, to join or assist the Union, or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or
to refrain from any or all of such activities.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the Union as the ex-
clusive representative of all employees in the aforesaid appropriate
unit v: ith respect to wages, rates of pay, hours of employment, and
other conditions of employment, and if an understanding is reached,
embody such understanding in a signed agreement.
(b) Post at its plant in Savannah, Georgia, copies of the notice
attached hereto marked "Appendix A." 4 Copies of such notice, to
be furnished by the Regional Director for the Tenth Region, shall,
after being duly signed by the Respondent's authorized representa-
tive, be posted by the Respondent immediately upon receipt thereof,
in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify the Regional Director for the Tenth Region, in writing,
within 10 days from the date of this Decision and Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed insofar as it
relates to Eugene R. Sikes and to William Edward Taylor.
4 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."
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL bargain collectively upon request with Truck Drivers
and Helpers Local Union No. 728, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
as the exclusive representative of all employees in the bargaining
unit described herein with respect to rates of pay, wages, hours
of employment, or other conditions of employment and, if an
understanding is reached, embody such understanding in a signed
agreement. The bargaining unit is:
All city drivers at Savannah, Georgia, terminal, excluding
office clerical employees, guards, professional employees and
supervisors as defined in the Act.
WE WILL NOT interrogate our employees concerning their mem-
bership in or activities on behalf of the above Union, or any other
labor organization, or make any threats of reprisal or promise of
benefit because of such activity.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist the above-named
Union, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all of
such activities. All employees of this Company are free to be-
come or remain or refrain from becoming or remaining members
of any labor organization.
FIVE TRANSPORTATION COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge duly filed by Truck Drivers and Helpers Local Union No. 728,
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, herein called the Union, the General Counsel of the National Labor
Relations Board, by the Acting Regional Director for the Tenth Region, issued a
FIVE TRANSPORTATION COMPANY 157
complaint dated January 30, 1959, in Case No. 10-CA-3768, against Five Trans-
portation Company, herein called the Respondent, alleging that the Respondent had
engaged in unfair labor practices within the meaning of Section 8(a)(1), (3), and
(5) and Section 2(6) and (7) of the National Labor Relations Act, as amended,
herein called the Act. The complaint in Case No. 10-CA-4070, dated May 4, 1959,
alleges that the Respondent had engaged in unfair labor practices within the meaning
of Section 8(a)(1) and (3) and Section 2(6) and (7) of the Act. By order of the
same date the Acting Regional Director for the Tenth Region consolidated Cases
Nos. 10-CA-3768 and 10-CA-4070.
The Respondent filed answers to both complaints, in which it admitted the jurisdic-
tional allegations of the complaints but denied the commission of any unfair labor
practices.
Pursuant to notice, a hearing was held at Savannah, Georgia, before the duly
designated Trial Examiner on June 30 and July 1, 1959. After the conclusion of
the hearing, the General Counsel and the Respondent filed briefs with the Trial
Examiner. The Respondent also forwarded to the Trial Examiner a letter, dated
July 24, 1959, with a copy to the General Counsel, which is in the nature of a
motion to correct the record. Since the General Counsel has not objected and since
the motion accords with the Trial Examiner's recollection of the testimony, the
motion is granted and the Respondent 's letter is received in evidence as Trial Ex-
aminer's Exhibit No. 1.
Upon the entire record in the case and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a Georgia corporation , having its principal office in Brunswick,
Georgia. It has terminals in Savannah and Brunswick , Georgia, and in Jacksonville,
Florida, where it is engaged in the transportation of freight During the period of
12 months before May 4, 1959, the Respondent received more than $50,000 in
revenue from the interstate transportation of freight.
The employees of the Savannah terminal alone are involved in this proceeding.
H. THE ORGANIZATION INVOLVED
Truck Drivers and Helpers Local Union No. 728, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organiza-
tion which admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events; interference , restraint , and coercion
During August 1958, the Respondent's truckdrivers decided to join the Union.
They contacted Lewis Robinson , assistant business agent of the Union , and a meeting
was arranged. The employees met with Robinson at the Union's office on about
August 17, 1958. Eugene Sikes, James Frazier, Edward Dewberry, and James
Jenkins, who were the only drivers employed by the Respondent at the time, signed
applications for membership in the Union that day. Eugene Turner, who was
employed by the Respondent on about September 15, 1958, also signed an applica-
tion for membership at a meeting of the Union which was held on September 30,
1958.
On October 1, 1958, Robinson went to the Respondent 's office and spoke to
W. Lee Whitaker, terminal manager at Savannah. He showed Whitaker the union
cards which had been signed by the employees, and requested that the Respondent
recognize the Union as the bargaining representative of the city drivers employed
at the Savannah terminal. He also requested that a date for a meeting be agreed
upon in order to commence negotiations for a collective-bargaining contract.
Whitaker looked at the union cards, but advised Robinson that since he had no
authority in the matter, all negotiations would have to be handled by A. E. Fiveash
at Brunswick, Georgia.' That same day and after the meeting Robinson sent
Whitaker the following letter, with a copy sent to Fiveash:
This will confirm meeting with you in your office on this, the above, date at
which time we, Mr. Ray Croslin sand I advised you that your City Pickup and
Delivery drivers had designated Truck Drivers and Helpers Local Union No.
'The record discloses that Fiveash was the Respondent ' s president,
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
728 as their bargaining agent and had appointed this office to represent them
in all association with the Company in negotiations as to wages and conditions
of work and other conditions of employment.
At this meeting you were shown the applications for membership and
authorizations signed by your Five City Pickup and Delivery drivers for mem-
bership into Local Union No. 728.
After careful examination of these applications, you returned them to me and
agreed that the signatures thereon were authentic, and advised me that this
would have to be handled with Mr. Fiveash at Brunswick, Georgia.
I returned to my office and called Mr. Fiveash at his office in Brunswick,
but was advised by the operator that he was out for the afternoon, most
probably, but would be in tomorrow; therefore, I will try again tomorrow,
October 2, 1958.
Whitaker called a meeting of the drivers after work on October 1, 1958. Con-
cerning this meeting Sikes testified that Whitaker said, "I want to know what this
is all about . I know I haven't been doing my duty the way I should, but I
think we should come to some kind of agreement, because it affects all of us. . I
know its more money you want. . I can get you a dollar and a half an
hour.. . I have always gotten what I asked when I asked for it. . . . If its more
money you want, looks like you would have went somewhere else to get it"; that
when he (Sikes) asked Whitaker if he could get them $2.47 per hour, he did not
reply; that Whitaker said that if they would withdraw from the Umon, Fiveash
"would come up here and we would figure out something. He'd give us $1 50 an
hour and better working hours"; and that Whitaker said that Fiveash would not
sign a contract with the Union, but would bargain with the employees. Dewberry
testified that Whitaker said that he had heard that all of the employees had joined
the Umon, and that "he thought sure it would be all right with Mr. Fiveash if he
guaranteed its $1.50 an hour"; and that Whitaker did not mention anything about
withdrawing from the Union. Jenkins testified, "[Whitaker] was just talking about
us joining the union. He said that . . . Fiveash . . . would talk to the men, but
he wouldn't talk to Mr. Robinson. That he wasn't going to sign any company
agreement. . Well we axed him about $1.50 an hour and he said he was pretty
sure he could get it for us. . Well, we discussed about the hours that we was
putting in Taking the interchange-the late hours we were taking interchange."
Frazier testified that Whitaker said that he had called Fiveash and told him that
the employees had joined the Union, and that Fiveash had told him "he'd negotiate
with the men but he wouldn't negotiate with no union. He was too old and wasn't
going to worry with it"; that Whitaker said, "I might as well pay a $1.50 an hour
if you withdraw"; and that when he (Frazier) asked Whitaker if they would be dis-
charged if they withdraw from the Union, Whitaker replied, "No, wouldn't nobody
get fired."
Concerning the meeting, Whitaker was questioned and testified as follows:
Q. Will you tell, for the sake of the record, what transpired at that meeting?
A. Well, I asked him what to do-I-and they told me they wanted shorter
hours and more pay. And I told them that I had no authority to negotiate
with them, but I said that they are putting us on an equal basis with Jacksonville
and I think you can get $1.50.
Q. Was it your information that the Jacksonville Terminal was paying $1 50
an hour at that time?
A. Yes, sir.
Q. Was there anything else in that conversation at that time that you can
recall?
A. Well, there was several questions about how-what we could do to
eliminate some of the hours and I reasoned with them that since we are taking
interchange in late afternoon, explained to them that we'd been working on
that and some of them agreed that there had been some changes made prior
to what we had been used to doing before that.
Q. Was there anything else in the conversation that you recall?
A. I don't recall any particular thing. Just talking in general. But I said I
thought I could get them $1 50, plus an equal basis with Jacksonville and Mr.
3It is undisputed that At the time mentioned above the drivers were paid weekly
salaries, ranging from $00 to $70 per week : there was no regular rate of pay for over-
time work ; they received "a couple of bucks" or "a little [money] now and then" for
overtime night work ; they did not receive any extra compensation for work on Saturday ;
and just before Christmas each year they received a bonus of $25
FIVE TRANSPORTATION COMPANY 159
Sikes spoke up and said, "Could you get us $2.47?" I believe he said-some-
thing like that. And I kind of laughed and I said, "I don't know about that."
Q. At this October first meeting, did you tell the drivers that you would get
Mr. Fiveash to come up and talk to them about their troubles?
A. I told them I would see if I could get Mr. Fiveash to come up and talk
to them.
Other than the above, Whitaker did not make categorical denials of the state-
ments attributed to him by Sikes, Dewberry, Jenkins, and Frazier. While there is
a contradiction between the testimony of Dewberry and that of Sikes and Frazier,
in that Dewberry testified that Whitaker did not mention withdrawal from the Union,
I am convinced and find that Whitaker made statements substantially the same
as those testified to by Sikes and Frazier. Whatever language Whitaker used, it is
clear that he conveyed to the employees the thought that an increase to $1.50 per
hour and a change in the working hours were conditioned upon their abandonment of
the Union. The subsequent conduct of the Respondent and the action taken by the
employees, hereinafter related, confirm this finding. Accordingly, it is found that
Whitaker's promises of benefit if the employees withdrew from the Union and his
threat to the effect that the Respondent would refuse to bargain with the Union
constitute violations of Section 8 (a) (1) of the Act.
On October 2, 1958, Robinson made several calls to Fiveash at Brunswick but
was unable to reach him. Although Robinson left his number for a return call,
Fiveash did not call him. Robinson then sent Fiveash a letter, dated October 2,
1958, in which he reviewed the above facts and requested an immediate meeting for
the purpose of negotiating a contract. By letter dated October 4, 1958, Fiveash
answered Robinson's letter. He stated in this letter, "It is impossible to set a
definite date for this meeting at the present time due to physical disabilities as
verified by the enclosed certificate from Dr. 'C. B. Greer. As soon as my physical
condition will permit, I will advise you in order that a meeting can be scheduled."
About October 3, 1958, Howard Neal Gilchrist, an officer of Respondent and
Fiveash's son-in-law, met with the employees. As to this meeting Sikes testified,
"Mr. Neal came in the office, introduced hisself as being over all the terminals, said
his name was Neal. He was over three terminals of Five Transportation Company
and that usually what he says goes. And he said that he wanted to know what was
going on here. That he didn't get to come up very often and he would like to know
what was happening. Said he could get us $1.50 an hour and that Mr. Fiveash would
agree with him-$1.50 an hour, and he said there would be no one fired for their
reasons for joining the union whatsoever. That we could withdraw from the union
and it wouldn't be held against us." Frazier testified, "I think [Gilchrist] said,
`I'm manager of Five Transportation.' . Said he was open for any sugges-
tions.. . . I think he said he'd give us $1.50 . . he did say withdraw from the
union.. . Somebody said they was working interchange too late. Mr. Neal
spoke about that. He said he was trying to work on that to cut the interchange
down . He said Mr. Fiveash would never negotiate with the union. . I
think Mr. Neal said we didn't have to make no decision now. Said, `Let me know
later on.' " Dewberry testified,
Well, Mr. Neal walked in and introduced himself to us and he said, "Well,
boys, I guess you all know why I am here" said he was going against something
he never had had before-he didn't know how to go at it-he didn't know how
to take it. Said he was quite sure that-that er might be something worked
out, that he'd heard we'd joined the union and er-it was a small outfit and
he didn't think that they could pay that union scale, at the time. He said he
would give us $1.50 an hour and put us on an equal base with the crew in
Jacksonville. He said if be had to pay the union scale he didn't know just how
long he could operate.
* * * * * * *
He said he might have to close down so if he did close down it would be a
year before they could make up their minds whether to sell and by that time
we'd all be starved to death.
Jenkins testified in this connection, "[Gilchrist] stated that the Company would
work out its own problems-said he didn't know whether Mr. Fiveash would go
union or not but he didn't think anything would come of it. . He said he'd
put us on the same pay rate as the Jacksonville Terminal. . . . He said eventually
we'd work [late interchange of freight] out."
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gilchrist admitted that, in answer to questions of employees , he spoke about
wages and working conditions . Concerning the meeting , Gilchrist testified as
follows:
Well, all of the men who were working for the company here other than
Mr. Whitaker and of course Mrs. Whitaker, we met in the company office, I
introduced myself which they knew anyway-they knew of me-and I told
them that I'd heard that there were complaints and that they would like to talk
to Mr. Fiveash but since he was not physically able, I thought possibly I might
come up and talk with them and carry the message back to him. And I asked
them to do the talking, so I would know what their complaints were-what
they wanted to talk to him about.
There were a number of questions asked and I tried to answer them to the
best of my ability. There were any number of questions, like I said, but I can't
tell what all was said-I didn't take them down in shorthand or any other way,
but its been said , I think, in testimony, that there were a number of promises
made. There was only one promise I made in reply to a question one of them
asked me-I don't know which one-and that was pertaining to union member-
ship and they asked if they wouldn't be fired if they withdrew from the union.
And I assured them that knowing Mr. Fiveash and being connected with him,
that I was sure that he would never fire anyone for such reasons.
They asked about being included-one of the complaints they had was the
difference between the Jacksonville and the other two terminals-the Savannah
Terminal primarily-and I told them that I did not have any authority to
promise anything in regard to that, but that I would talk to him about that . . .
I credit the above testimony of Sikes, Frazier, Jenkins, and Dewberry. As in the
case of Whitaker's speech to the employees, it is clear from the above testimony
that Gilchrist impressed on the minds of the employees that their wages would be
increased and their working conditions bettered if they withdrew from the Union.
While it does not appear that he made an explicit promise of benefits if they with-
drew, his speech as a whole leaves no question as to his intent. In one breath he
told them that he could get them an increase in wages; and in the next he said, ac-
cording to Sikes, "there would be no one fired for their reasons for joining the union
whatsoever. That we could withdraw from the union and it wouldn't be held
against us." Further, in case there was any question in the employee 's minds as to
the meaning of Gilchrist's statements, it was made crystal clear to them by the
Respondent's subsequent conduct, hereinafter related and found.
For the above reasons, it is found that Gilchrist promised benefits to the em-
ployees if they withdrew from the Union, and warned them that the Respondent
would not negotiate with the Union. Such conduct is found to be violative of Sec-
tion 8 (a)(1) of the Act.
About October 6, 1958, Whitaker spoke to employees Jenkins, Dewberry, and
Frazier. He told them "that if he was them he would get an attorney to draw up a
contract, take it down and get Mr. Fiveash to sign it. Said he wouldn't fire us for
joining the union ." About October 10, Whitaker told Frazier that those employees
who withdrew from the Union would receive $1.50 per hour "Now." Whitaker's
statement to Fraizer is found to be violative of Section 8(a)(1) of the Act.
It is undisputed that prior to 1958 the Respondent gave its employees a bonus of
$25 each year shortly before Christmas. At some undisclosed time before Christmas
1958, Whitaker told Dewberry that he, Jenkins, and Frazier should "get this thing
straightened out" because it was near "Christmas Time" and they "could use the
money"; and that they could "do without Sikes." 3 When Frazier asked Whitaker
about the 1958 Christmas bonus, he replied that he did not think the employees
would get one that year.
Turner was made assistant terminal manager about the middle of October 1958.
He withdrew from the Union about the time of his promotion Sometime after his
promotion, Turner asked Frazier why the employees did not withdraw from the
Union. When Frazier replied to the effect that withdrawal would be "too much of a
chance," Turner said that the employees could make "$100 a week" if they withdrew
from the Union At a later date he told Frazier that: The employees should "draw
up a contract"; he would "guarantee" that the employees were going to be discharged
if they did not withdraw from the Union; and "[Fiveash] was under the doctor, so
as long as he could get that doctor's certificate he would never be able to have an-
'The record discloses that Sikes was regarded as the leader and spokesman of the
employees.
FIVE TRANSPORTATION COMPANY 161
other meeting. Put if off indefinitely." When Frazier asked Turner if he thought
Fiveash would sign a contract with the Union, Turner replied that Fiveash would
not as he had "a smart lawyer and he was going to change the name of the
company."
It is found that Turner's promise of benefit if the employees withdrew from the
Union, his threat of discharge if they did not withdraw, and his warning that Fiveash
would not sign a contract with the Union, are violative of Section 8 (a)( I) of the
Act.
Robinson sent the following letter dated November 3, 1958, to Fiveash:
Your acknowledgement letter dated October 4, 1958, to my letter dated
October 2, 1958, was received, and I was sorry to hear that you were not well,
but I have heard nothing more since that date pertaining to a meeting, as
requested.
I do hope that your physical condition has improved and that you are in
position to meet with me, so that we may dispose of this matter as quickly as
possible.
Fiveash sent the following letter dated November 4, 1958, in reply:
This is to acknowledge your letter of November 3, 1958 concerning the pos-
sibility of setting a date for meeting with you.
I regret to advise that at the present time it is impossible to say when this
meeting can be arranged as I have been sick for the better part of the past two
weeks with a severe cold which has hampered my general physical condition.
As soon as the doctor advises me that my condition permits, I will advise you
accordingly in order that a meeting can be arranged.
Thereafter and as of the date of the hearing herein, neither Fiveash nor any other
officer of the Respondent communicated with Robinson with respect to a meeting for
the purposes of negotiating a collective-bargaining agreement.
During about the latter part of November 1958, Turner told Frazier, Dewberry,
and Jenkins, "If you all want to talk to Mr. Neal, I'll furnish the gas." At a later
date they obtained Whitaker's permission to use one of Respondent's trucks in order
to go to Brunswick. Some few days after Christmas 1958, Frazier, Jenkins, and
Dewberry went to Brunswick in order to meet with Gilchrist. They used Respond-
ent's truck without freight and were on company time during the trip. In sub-
stance, the employees told Gilchrist that they wanted to withdraw from the Union,
and that they wanted "to see what we could get out of it." Dewberry also asked
him if they would get their "Christmas bonus." Gilchrist told them that he could not
make "any promises at all" and that they would "just have to work along with him
and trust him."
A letter dated December 30, 1958, announcing their withdrawal from the Union,
was sent to Robinson by registered mail. The letter was signed by Frazier, Jenkins,
and Dewberry, and was notarized. It was typed by Whitaker' s son . Turner sug-
gested to the employees that they have their signatures notarized and that the letter
be sent by registered mail. About a week after they withdrew from the Union, the
above employees were paid a Christmas bonus of $25. About 2 weeks after they
withdrew, they received a wage increase to $1.50 per hour. About 11/z months
later they received another increase to $1.65 per hour. At some undisclosed date
after the employees withdrew from the Union the Respondent ceased accepting
"interchange of freight" after 4 p.m 4
B. The refusal to bargain
The complaint alleges the following unit to be appropriate:
All city drivers at Respondent's Savannah, Georgia terminal, excluding office
clerical employees, guards, professional employees and supervisors as defined
in the Act.
Although the Respondent's answer denies the above allegation of the complaint,
it did not offer any evidence in this connection at the hearing. I find the above unit
to be appropriate within the meaning of the Act.
The undisputed evidence shows that on and after September 30, 1958, the Union
had been designated as the collective-bargaining representative of all of the
employees in the unit described above. In its brief the Respondent points out that
in each of the three charges filed by Robinson with the Board the number of
4Interchange of freight had been accepted until 5 p.m previously
554461-60-vol. 126-12
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's employees is listed at 50, and therefore that "It was thus never clear
whether Robinson claimed to represent only the city pickup and delivery drivers
in Savannah or whether he claimed to represent all of respondent's employees." This
contention is rejected. When Robinson met with Whitaker on October 1, 1958,
he told Whitaker that he was requesting recognition as bargaining representative
"for his drivers," and the Union's designation cards which he showed to Whitaker
involved only the Savannah drivers. In his letter to Whitaker of the same date con-
firming the conversation, Robinson referred to "your City Pickup and Delivery
drivers." Any doubts of the Respondent as to the unit claimed by the Union were
dispelled, however, by Robinson's letter to Fiveash, dated October 2, 1958, wherein
he refers to "your City Pickup and Delivery drivers in Savannah, Georgia "
In brief, the evidence shows that Robinson requested the Respondent to recognize
and negotiate with the Union, sending -letters to Fiveash on October 2 and November
3, 1958, to this effect. Fiveash answered Robinson's letters promptly, claiming illness
as the reason why he could not meet with Robinson.5 At no time did Fiveash
question the majority status of the Union or the appropriateness of the unit sought.
Although in his last letter, dated November 4, 1958, Fiveash states, "As soon as
the doctor advises me that my condition permits, I will advise you accordingly in
order that a meeting can be arranged," Robinson did not hear from him again. In
the meantime, starting on the very day that Robinson first spoke to Whitaker, the
Respondent embarked on a course of unfair labor practices designed to cause the
employees to abandon the Union. It warned them that it never would negotiate or
sign a contract with the Union and promised them economic benefits if they withdrew
from the Union.
In defense of its position, the Respondent sets forth in its brief the following:
Instead of refusing to bargain Mr. Fiveash expressed a willingness to bargain
as soon as his health permitted. From the time of Mr. Fiveash's heart attack
in early December, 1958, until the Stockholders and Directors met in January,
1959, and gave Mr. Gilchrist additional authority there was no one with
authority to bargain for the Company. By the time Gilchrist was given authority
the company had received notice that the Local Union no longer represented a
majority of the local pickup and delivery drivers in Savannah.
This contention is rejected. Disregarding the question of Fiveash's health, the
Respondent was obligated to have its representative available for negotiation within
a reasonable time after the Union first requested a meeting. This the Respondent
did not do Further, the Union did not lose its majority status, since the defections
from its ranks were caused by the Respondent's unfair labor practices, as found
above. Accordingly, the Respondent still was legally bound to recognize and bargain
with the Union when Gilchrist allegedly was given the authority to meet and bargain
with the Union in January 1959
For the above reasons, I find that the Respondent on and after October 1, 1958,
failed and refused to bargain with the Union as the exclusive representative of all
the employees in the aforesaid appropriate unit. It is also found that the Respondent
violated Section 8(a)(1) and (5) of the Act by granting its employees economic
benefits without first advising or consulting with the Union, the designated bargaining
representative of its employees.
C. The discharge of Sikes
Eugene Sikes was hired as a truckdriver by the Respondent in August 1956. Dur-
ing his employment he received two wage increases, and was paid at the rate of
$70 a week at the time of his discharge. He worked as "warehouseman" for a
period of time prior to about May 1957, and again starting about August 1958.
As related above, he joined the Union on August 17, 1958. The other employees
appointed him as their "spokesman" in their contacts with Robinson.
About October 20, 1958, William Taylor went to the Respondent's office in order
to apply for a job, and had a conversation with Whitaker. In this connection,
Taylor testified credibly that: Whitaker asked him how he "felt" about the Union;
he replied that he did not know as he had never "been mixed up in any union";
Whitaker pointed out Sikes to him as the man whom he would replace; and Whitaker
told him at the time that Sikes would be replaced because he was "the ring-leader of
the union activities in Savannah." 6 It is found that Whitaker's interrogation of
5 Fiveash did not appear as a witness at the hearing
5 Whitaker denied that he told Taylor that he would replace Sikes He testified that
he hired Taylor to replace an unsatisfactory employee by the name of Willie Mims. His
denial is not credited.
FIVE TRANSPORTATION COMPANY 163
a prospective employee concerning his union sympathies and his threat to discharge
an employee because of his union activity constitute interference, restraint, and
coercion.
About the middle of October Frazier went to see Whitaker about overtime pay.
Whitaker told him, "Frazier, Sikes was in here this afternoon asking me for over-
time. . .. I'm tired of it. I'm paying for holidays. I'm tired of his asking. If
he keeps on, I'm going to fire him. I'm tired of this foolishness."
Sometime during October 1958, Sikes had a dispute with Turner. Turner asked
him to deliver some freight. Sikes replied, in substance, that as warehouseman he
was not supposed to deliver freight. Turner told him to go to the office and see
Whitaker. Sikes then spoke to Whitaker, telling him that as warehouseman he was
not supposed to deliver freight. Whitaker told him to make the delivery. Sikes
then performed the job.
About November 12, 1958, Sikes and employee Arthur Sheffield were in a small
room in the warehouse where the employees went on cold days in order to get warm.
Sikes failed to notice or hear a truck which had arrived with freight. Whitaker
sent Sheffield, who had left the room, to get Sikes. When Sikes appeared, rubbing
his eyes, Whitaker reprimanded him for "sleeping." 9 Later, Whitaker told Frazier
that he had caught Sikes "asleep," saying, "I could fire him right now but I don't
want to fire him."
Sikes was discharged by the Respondent shortly after the start of work on
December 10, 1958. Concerning his discharge, Sikes was questioned and testified
as follows:
Q. Now on the morning of December 10, 1958 what time did you get to
work? At Five Transportation Company?
A. I got to work at the usual time-6:30.
Q. What did you do when you arrived?
A. I started writing up the bills. Like I'd always done each morning. And
about 7 o'clock Turner came in.
Q. What time did Turner usually arrive?
A. About7.
Q. Were you unusually busy this, that morning?
A. No, sir; we had the usual amount of freight-there were a lot of bills.
Q. Now what happened when you arrived? What did you do?
A. I sat down and was writing up the bills.
Q. Where did you write them up?
A. On Mr. Whitaker's desk in the office.
Q. And where were you when Turner arrived?
A. Sitting at Mr. Whitaker's desk writing up the bills.
Q. What happened after Turner arrived?
A. He took the bills away-the ones that were written up-took them out to
the warehouse, put them on the freight-checking desk and I finished writing up
the bills-
Q. And what happened then?
A. I went out to the warehouse, put the rest of the bills I had on the desk
and Turner told me, said, says, "I'm going to check them this morning. I want
you to push that hand-truck." And I was still spreading my bills out, I said,
"How about me checking them: I wrote them up." And he says, "Are you
refusing to push the hand-truck?" I said, "No, I'm not refusing to push the
hand-truck " He says, "Well, you're fired." And he turns and goes into the
office and-
Q. Did you call Whitaker on the morning of December 10th?
A Yes, sir. I called Whitaker when Turner came back out of the office
he told me Mr. Whitaker said for me to wait and not do anything else but wait
till he got there. I then made a phone call to Mr. Whitaker.
Q. What did Whitaker say9
A. I asked Mr. Whitaker if I was fired and he said, "Well, you're not fired you
quit." I said, "No, sir. Turner fired me." He says, "Well, you just wait in the
office until I get there."
Q. What happened when Whitaker came?
A. Well, he came down to the terminal and I went in the office where he
was at and I asked him was I fired. And he said, "Well, Turner says you quit "
Sheffield testified that Sikes was asleep when he left the room Sikes denied that he
was asleep . There are conflicts between the testimony of Whitaker and Sheffield, both
called as witnesses on behalf of the Respondent , which I do not resolve since I do not
consider them to be material to the issues in the case
A
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I said "I didn't quit." And he says, "Mrs. Whitaker will have your pay wrote
up in just a minute."
Q. (By Mr. Gowen.) On the morning of December 10th, I ask you if Mr.
Turner didn't tell you to take a hand-truck and go and unload freight. Did he
tell you to do that?
A. Yes, sir. I was standing before the desk, checking the freight-
Q. And you told him you weren't going to do it?
A. No, sir.
Q. What did you tell him?
A. I told him that I couldn't push a hand-truck and check freight. That I
already had the bills on the freight. He said, "You're fired."
Turner testified in this connection: 8
Well, it was the policy since I've been at work there that Sikes had a key and
also myself and the first one that got to the terminal in the morning, opened
up, got the bills and started writing them up. And if the one that was writing
them up wasn't through at 7 o'clock, the other one would take the bills out,
spread them out and start checking the freight out. Then he'd finish writing
them up and bring additional bills out and check the freight.
So-that's what I was doing that morning. Sikes was writing the bills up.
He got there first. And when I came in just about a quarter of six, I finished
opening up the warehouse, finished opening up the trailer and I got the bills
that had been wrote up-quarter to seven.
And I got the bills and lined them up on the table and started checking them
and I believe I had one or two of three shipments on the trailer and he wound
his up at the same time and I was going to check them, and I hold him I said,
"You get the hand-truck and help on the dock." He said no, he was going to
check. I said, "No, go on out there and help check. I've done started and I
want to finish." He said no, he wasn't going to push any hand-truck. So, I said,
"If you can't push a hand-truck, like we told you to do, we don't need you."
Sikes told me, he said, "You didn't hire me. You can't fire me." I said,
"Well, I probably can't but I'll get somebody that can." And I went to the
phone and called Mr. Whitaker. Mr. Whitaker told me to tell Sikes the
same and so then Sikes called him and I don't know what their conversation
was about, but in a little while Mr. Whitaker came down.
Taylor and Jenkins were present when Sikes was discharged. Taylor testified,
"Mr. Turner and Mr. Sikes had a dispute over who would use the hand-truck and
who would check freight, and Mr. Turner was talking pretty loud-you could hear it
all around-and I heard him say-tell Sikes-`If you can't do it, you're fired."'
Jenkins testified, "Sikes came out with the bills and started writing on the bills and
Turner came out and told him to stop what he was doing-Turner told Sikes to start
pushing the hand-truck. . Sikes told him that Mr. Whitaker hired him to check
freight and he wasn't going to push no hand-truck."
The testimony of General Counsel's own witnesses, Taylor and Jenkins, tends
to support Turner's version of the discharge. I credit their testimony in this con-
nection. It is evident that Sikes put up an argument about pushing the truck and
that a dispute ensued. The fact remains that he did not push the truck as ordered.
As Turner admitted, Sikes said that he was not refusing, probably after Turner
told him he was discharged; but Sikes' whole attitude was tantamount to refusal.
It is to be noted that during October Sikes had a dispute with Turner over the
delivery of freight, as related above.
There can be no question but that the Respondent knew that Sikes was the leader
of the Union's organizational drive. Whitaker testified, "I knew Sikes would be the
leader because he was the only white driver we had. I think they appointed him
leader because he was the only white driver." Also, Whitaker's remarks to Taylor
about replacing Sikes have been related and found above. However, in my
opinion Sikes was guilty of insubordination; and aside from the question of his
union activity, there were legitimate grounds for his discharge. Accordingly, while
8 The General Counsel points out in his brief that Turner when confronted with his
affidavit admitted that Sikes had said that he was not refusing to push the handtruck
In this connection Turner's affidavit states, "He said, 'No, I'm not refusing.' I said,
'I don't know what you call it. I'm telling you to get the hand-truck and go to work as
hard as I can.' . . . Sikes had told me that he was not going to push a hand-truck,
that he was going to check freight"
FIVE TRANSPORTATION COMPANY 165
the Respondent's motive in the matter is highly suspicious, I find that Sikes was
discharged for cause and not in violation of Section 8 (a) (3) of the Act.
D. The discharge of Taylor
William Taylor was hired by Whitaker about November 17, 1958, as a driver
at $70 per week. Whitaker told him at the time that "as quick as things settled
down" he would be paid at least $1.50 and possibly $1.65 per hour. On December
10, 1958, after Sikes was discharged, Whitaker gave Taylor the key to the ware-
house, telling him that it had "Sikes written all over it" and "not to let Sikes rub
off" on him. Whitaker also told him that if he heard any more talk about the
Union among the employees, he should tell him or Turner "so he could head it
off," and that he should not consider it as "spying." Whitaker's request to Taylor to
engage in surveillance is found to be violative of Section 8(a)(1) of the Act.
During the month of February 1959, from talks with Frazier and Dewberry,
Taylor learned that the employees were thinking of "reactivating the union." About
the middle of February, after Taylor and Frazier had been talking about the
Union in the warehouse, Turner asked Taylor what they had been talking about,
saying, "Taylor, what's going on? I haven't had a man out here talking like this
since our union closed down." Turner asked him if they had been talking about the
Union, Taylor admitted it and asked Turner to meet him later that day in a restau-
rant. At the restaurant Taylor told Turner that the employees were going to join
the Union again. When Turner asked him how he felt about it, Taylor replied to
the effect that he did not know .9 Turner reported the above conversation to Whit-
aker. It is found that Turner's interrogation of Taylor concerning the employees'
union activities and sympathies constitutes interference, restraint, and coercion.
Shortly after the above conversation, Whitaker called Taylor to his office and
questioned him about the activity of the drivers. Taylor told him that "the truckers
wanted to reactivate the union." During this conversation or at a later date, Whit-
aker told Taylor that "anybody that supported or had union on his mind wouldn't
last long at Five Transportation Company." 10 The above interrogation and threat
of reprisal by Whitaker is found to be violative of Section 8(a) (1) of the Act.
Frazier testified that "one time" he heard Turner complain that Taylor took too
long to make deliveries.
The Respondent discharged Taylor on March 6, 1959. Concerning the reasons
for Taylor's discharge, Whitaker testified as follows: 11
Well, Taylor was a good, conscientious fellow. I thought a lot of Taylor.
He was a country boy, came here from Waycross looking for a job. After
talking with him I began to think maybe he could be made into a good freight
man. So, I promised him I would give him the next opening, which I did. And
he tried as hard as anybody I ever saw to try to do his work, but he would
just laugh about it and say, "I'm just new at it." I stayed with him and tried
to work with him and help him-help him route his bills-he would stop at this
place, and so on and then he'd go out and get confused-and cross about to
make deliveries, then he'd go clear across town again. He didn't follow-up
closely enough to be able to get rid of the freight. He just didn't think far
enough ahead to do it.
Well, I had talked to him on several occasions about moving some-I had
(always asked him to call in if he was held up somewhere. I said, "Call in
9 Taylor testified credibly to the above conversations. Turner testified, in substance,
that Taylor came to him and told him that he had "something important" that he
wanted to tell him ; that when Taylor said that he did not want to talk at the plant,
they arranged to meet at the restaurant; and that Taylor did not say anything to him
which indicated that he was thinking of joining the Union. I do not credit Turner's
testimony in this connection
io Taylor testified credibly to the above conversation with Whitaker. He did not testify
as to the date of the conversation during direct examination. On cross-examination he
testified that it took place "the next morning" after his talk with Turner Whitaker did
not deny specifically the statements attributed to him by Taylor However, Whitaker
testified that he did not have a conversation with Taylor the day after he received
Turner's report as he was ill at home "for several day after that " If this testimony
was meant as a denial of the statements attributed to him by Taylor, such denial is
not credited
"Turner testified that Taylor "was a lots slower than the other employees. . . . he
never had worked in freight before and he just . .. couldn't seem to get a hold of it."
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and then I 'll know you're held up" but the day he went out with the trailer,
the day he was dismissed , he left the terminal around 9:30 and I didn't hear
from him until about 3 o'clock and I did not know he had not been to lunch.
He called in and I thought he was picking up. I said, "I lost track of you,
you're so slow." I said, "While you're out there-get so-and-so." And he said:
"I haven't been to lunch yet." I said, "You'd better come over here and go
to lunch ." So he came on in and I talked to him about being gone all day and
he explained-he said he got held up. And I said , "Well, I just don't believe
you can do it." And he said, "I still think I can learn , I believe I can make
you a good man." So I let him go at that and he went on back to the ware-
house and went to work and then I decided that I might better let him go
because it looked to me like I was wasting too much time-and so then I called
him to the office and let him go.
Taylor testified that neither Whitaker nor Turner made any complaints about his
work, and that one time when he asked Turner about his work, Turner replied,
"You're coming along fine." Concerning his conversation with Whitaker at the
time of his discharge, he testified credibly, "[Whitaker] said `it just took too long
to unload that trailer and we can't have a trailer tied up that long on the street.'
I asked Mr. Whitaker . `Mr. Whitaker, are you sure that's the reason you are
firing me?' And he said yes, and then he told me he was firing me for another
reason. And he said, `Taylor, that all I can tell you.' " 12 Taylor also testified that
as a result of his conversations with Turner and Whitaker during February, "I was
afraid that Mr. Whitaker was fixing to fire me . . . so I contacted Mr. Robinson of
Truck Drivers and Helpers"; that he did not meet Robinson at the time but "at a
later date"; and that he signed an application card for membership in the Union.i3
As will be noted from the above evidence, it does not appear that Taylor was
active on behalf of the Union. In fact, the evidence indicates that he was active
against it until shortly before his discharge. He "contacted" Robinson, apparently by
telephone, but did not meet with him until some undisclosed later date. The evidence
shows that he joined the Union after his discharge. Both Jenkins and Dewberry
testified to the effect that Taylor did not engage in any union activity before his
discharge. Accordingly, the most that can be said for the General Counsel' s case is
that the Respondent may have suspected Taylor's union sympathies in view of his
conversations with Turner and Whitaker, found above. I do not believe that such
an inference is justified by the evidence. Therefore, I find that the General Counsel
failed to sustain the burden of proving that the Respondent discharged Taylor
"because of his membership in, and activities on behalf of, the Union, and because
he engaged in concerted activities for the purposes of collective bargaining and other
mutual aid and protection," as alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with its business operations described in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Truck Drivers and Helpers Local Union No. 278, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor or-
ganization within the meaning of the Act.
2. All city drivers at Respondent's Savannah, Georgia, terminal, excluding office
clerical 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.
is Whitaker did not deny the above statement attributed to him by Taylor.
13 The card was received in evidence and is dated April 1, 1959
WESTSIDE MARKET OWNERS ASSOCIATION 167
3. The Union was on September 30, 1958, and at all times thereafter has been,
and now is, the exclusive representative of all employees in the aforesaid unit.
4. By refusing to bargain with the Union on and after October 1, 1958, and by
its unilateral action in granting economic benefits to its employees after said date,
the Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Westside Market Owners Association ; Sam Wong, Jim Wong,
Roy Wong and Ben Sum, Individually and as Co -Partners
d/b/a California Market; G. R. Bailey and Lee R. Baiza, In-
dividually and as Co-Partners d/b/a Coalinga Market; F. A.
Motte, V. J. Motte , B. Motte and J. Motte , Individually and
as Co-Partners d/b/a B M Food Market; William H. Blalock
and Mary H. Blalock , Individually and as Co -Partners d/b/a
Corner Market; and State Market of Coalinga , Inc. and Re-
tail Clerks Union , Local 1288, Retail Clerks International
Association , AFL-CIO and Central Valley Market Employees
Association, Party to the Contract . Case No. A0-3. Janat-
aru 15, 1960
ADVISORY OPINION
A petition has been filed by Retail Clerks International Association,
AFL-CIO, Local 1288, herein called the Union, praying for an ad-
visory opinion by the Board as to whether it would assert jurisdiction
over the operations of State Market of Coalinga, California Market,
Corner Market, B M Food Market, and Coalinga Market, herein
collectively called Respondents. Said petition in relevant part alleges
that :
1. There is now pending before the Superior Court of the State of
California a suit numbered 105,598 in which State Market of Coalinga
(herein called State Market) and California Market are plaintiffs
and the Union and others are defendants.
2. Said action is the second suit brought by the same plaintiffs
against the same defendants in a California State court arising out
of the same labor dispute. The first suit, brought in the Fresno
County Superior Court, was dismissed by the court "on the ground
that exclusive jurisdiction was vested in the National Labor Relations
Board."
3. The National Labor Relations Board assumed jurisdiction of
two prior unfair labor practice charges arising out of the instant
dispute, but they are no longer pending before the Board as a result
126 NLRB No. 29.