Fuchs Transfer Co.

National Labor Relations Board - Board Decisions

Mar 24, 1961

130 N.L.R.B. 1516 (N.L.R.B. 1961)

1516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD'
3. A question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of
Section 9(c) (1) and'Section 2(6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for the purposes of collective bargaining within Section
9(b) of the Act:
All employees of the Employer employed at the East Stroudsburg,
Pennsylvania,' sanitary sewer project excluding the engineering staff,
office clerical employees, watchmen, timekeepers, master mechanics,
superintendents, assistant superintendents, general foreman, and all
other supervisors within the meaning of the Act.
[Text of Direction of Election omitted from publication.]
8 The Petitioner contends that the unit should embrace future projects in Pennsylvania,
New Jersey, and New York. The Employer would limit the unit to its present project.
The Employer has no other construction employees at this time. On the record we find
that a unit confined to the current project is the only feasible and appropriate unit for
collective bargaining. Arthur A Johnson Corporation, et at ., 97 NLRB 1466, 1467.
Fuchs Transfer Company and Brotherhood of Railway and
Steamship Clerks, Freight Handlers, Express and Station
Employees. Case No. 5-CA-1720. March 24, 1961
DECISION AND ORDER
On December 1, 1960, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report, together with 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 In-
termediate Report, the, exceptions and brief, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
'The Respondent 's request for oral argument is denied as the record, including the
exceptions and brief, adequately presents the issues and positions of the parties.
'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 • meniber panel
[ Members Rodgers, Leedom, and Fanning].
3 We agree with the Trial Examiner that Respondent independently violated Section
8(a) (1) of the Act by Interrogating Collins concerning his union activities and the union
130 NLRB No. 154.
FUCHS TRANSFER-.COMPANY - 1517
ORDER
Upon the entire record in the case and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Fuchs Transfer
Company, Baltimore, Maryland, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in the Brotherhood of Railway and
Steamship Clerks, Freight Handlers, Express and Station Employees
or in any other labor organization of its employees by discriminating
in regard to hire and tenure of employment or any term or condition
of employment.
(b) In any like or related 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 above-named Union
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection or to refrain.from any or all 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, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Vernon M. Collins immediate and full reinstatement to
his former or substantially equivalent position and make him whole
for any loss of earnings suffered in the manner set forth in the section
of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its
agents, all payroll records, social security records, timecards, and other
personnel records necessary to or convenient for a computation of the
amount of backpay due under the terms of this Order.
(a) Post at its plant in Baltimore Maryland, copies of the notice
attached hereto marked "Appendix." 4 Copies of said notice, to be
furnished by the Regional Director for the Fifth Region, shall, after
being duly signed by the Respondent, be posted immediately upon re-
ceipt thereof and maintained for a period of 60 consecutive days there-
after in conspicuous places including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be taken by
activities of other employees . In the absence of exceptions thereto, we adopt pro forma
the Trial Examiner's recommendation that no order be issued with respect to this
violation.
* 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."
1518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent to insure that said notices are not altered, defaced, or
covered by other material.
(d) Notify the Regional Director for the Fifth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent.
has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision°and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL offer Vernon M. Collins immediate and full reinstate-
ment to his former or substantially equivalent position without.
prejudice to his seniority or other rights and privileges previously
enjoyed and make him whole for any loss of pay suffered as a
result of the discrimination against him.
WE WILL NOT by discharging an employee, or in any like or re-
lated manner, .iiiterfere with, restrain, or coerce' our employees in
the exercise of their right to self-organization, to form, join, or
assist Brotherhood of Railway and Steamship Clerks, Freight
Handlers, Express and Station Employees or any other labor
organization, to bargain collectively through representatives of
their own choosing, to engage in concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities except to the. extent
that such'right.may`.he affected by an agreement.-requiring mem-
bership in a Tabor organization as a condition of employment as
authorized in Section 8(a) (3) of the Act, as modified by the
Labor-Management Reporting and Disclosure Act of 1959.
FUCHS TRANSFER 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-AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint was heard in Baltimore , Maryland, on November 2 and 3, 1960,
upon allegations that Fuchs Transfer Company, herein called. the Respondent, had
violated Section 8(a) (3) and . (1) of the National Labor Relations Act by inter-
rogating employees with respect to union activities and by discharging and failing
to reinstate Vernon M. Collins because of his union activity.
All parties were represented by counsel and were given full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence. Counsel
for the General Counsel and the Respondent argued the case after the close of the
FUCHS TRANSFER COMPANY 1519:: --
evidence. Right was reserved to the parties to file briefs on or before November
23, 1960, on which date one was received from Respondent. This has been care-
fully considered.
Upon the entire. record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS ; THE LABOR ORGANIZATION INVOLVED
It is alleged, admitted, and found that Respondent-is, and has-been at all material
times, engaged in commerce within the meaning of the Act. It is agreed and ac-
cordingly found that the Charging Party, Brotherhood of Railway and Steamship
Clerks,'-Freight Handlers, Express and. Station Employees, herein called the Union,
is a: labor` organization within-the'meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
This is another run-of-the-mill case, important of course to the individuals in-
volved, but adding not a whit to the body of the law which has been construed, as
it should be, with regard to the public interest in the multitude, of complied-with
Intermediate Reports and Decisions issued during more than a quarter of a century
past . The essential circumstances, which I find are supported by substantial evi-
dence contained in the admixture of fact and fancy constituting the record considered
as a.whole , are as follows.
Introduction
Prior to March 29, 1960, Respondent, a preexisting corporation, of which Maurice
H. Burman is president and general manager, arranged to purchase a warehouse
located' at Hillen and High Streets, Baltimore, referred to as, Warehouse 6, from
Western Maryland Warehouse Company, • herein called Western, a. subsidiary of
Western Maryland Railway Company. The transfer of the property took place
on Sunday, May 1, 1960. Western's warehouse employees, during all material times
prior thereto, were represented by the Union, Respondent's by Freight Drivers and
Helpers Local Union No. 557, an affiliated local union of the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein
called Local 557. On or about March 29, 1960, Arthur G. Fouche, whose official
position with the Union is general chairman for Western Maryland System Board
of Adjustment, No. 184, and Vernon M. Collins, then employed as a freight handler
and tow motor operator by Western, local chairman of the Union, a position similar
to that' of shop steward, requested Burman to recognize the Union. The latter de-
cliiied'to "doo so on the ground of Respondent's existing contract with Local 557.
Counsel stipulated that "on May 13, 1960, the Brotherhood of Railway Clerks
filed an RC petition, Case No. 5-RC-3129 with the Board for a unit covering all
clerks, freight handlers at the warehouse owned by Fuchs Transfer Company located
at Hillen and High Streets,_ Baltimore 2, Maryland. On June 18, 1960, a hearing
was held in Case No. 5-RC-3129. The matter is now pending before the Board."
Respondent objected to a motion of the Charging Party joined in by the General
Counsel; on' which ruling was reserved, to incorporate into the record of this case
the transcript of evidence given by three witnesses in Case No. 5-RC-3129. Apart
from certain references in the instant hearing to selected testimony of the same
witnesses in` the representation case; which is given due consideration insofar as in
general they affirmed such testimony before me, nothing else in that transcript was
offered to be shown by counsel to have relevance to the issues raised in'the complaint
and answer here. Therefore it seems pointless to extravagate and encumber the
present record with even more presumably pointless material than had already
crept into it, and I now deny the motion to incorporate.
Collins and five other warehouse workers who had been, up to the end of April,
employed by Western and whom Burman had previously advised that his company's
employees were represented by Local 557, whom he asked if they had signed up for
the Union 1 and to whom he had stated that in case they. were interested they
should apply for employment with Respondent and that if qualified they would be
hired, appear on Respondent's payroll as working at Warehouse 6 on May 2, 1960.
The Discharge and Interrogation of Vernon M. Collins
On the morning of May 2 while Collins, whose interest in the Union, as previously
noted, had been made known to Burman on or about March 29, was on a lift truck
1 When asked if he had asked people about their union affiliations after they had be-
come his employees , Burman replied , "I really believe I did not."
1520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the first floor when asked by the latter what he was trying to do and if he. had
signed a card to keep his union. When Collins answered in the affirmative Burman
inquired who else had signed, to which Collins replied that Burman would have to
ask the rest of the men themselves. Later in the morning when Collins was on the
fifth floor Burman introduced a representative of Local 557, one Stanley,? to him
saying that Collins tried to disrupt the place. When Collins asserted that all he had
done was to sign a card, Burman again asked him who else had done likewise. At
closing time Burman discharged Collins stating that as long as he was going to "keep
that union stuff in his head" he was going to have to let him go.
Discussion of the Discharge -
It is the position of Respondent that Collins was discharged because he was an
unsatisfactory employee. Testimony was offered endeavoring to show that Collins
spent considerable time talking during the only day he was employed by Respondent.
Burman testified that when he discharged Collins he just told him be did not need
him any more and that he might have made mention of the union part of it, that
he did talk to him at least three times on May 2 although not while they were on
the fifth floor, that the conversations were no more than one and two sentences
long and to the effect "Let's cut this out," "Let's go," and that he thinks it was on
May 1 when he asked Collins if he had signed the union card. He also avowed
that his testimony on June 18, 1960, that he spoke to Collins concerning the union
situation after May 1, 1960, and talked to him several times, is correct. When
asked if he mentioned the Union while talking to Collins on May 2, Burman testified
he said, "Why don't you do that sort of thing after work."
In addition to Burman 's testimony that Collins seemed to be drifting into conver-
sations with other persons, that he did not seem to want to be pushed, that Burman
saw him talking to everyone in the building,3 and that at approximately 9 o'clock he
saw Collins talking to one of the other employees, he does not know whom,4 there
was introduced certain testimony of other witnesses comprising a stockholder, a
strawboss, and three employees presently working for Respondent, seeking to sup-
port Burman's claim of a discharge for cause. Replete in this testimony and that
of Burman is such evidence as the following: On May 2 everyone was busy; there
was a lot of confusion in the warehouse getting things straight; Western was taking
its forklift trucks away; there were two sets of office people in the warehouse, a lot
,of people wanted to get some work done; there was screening of new employees and
showing them how the work was to be done; management had its hands full trying
to get business started, to organize the place and keep things going; the work volume
was-heavier than normal; the day was "doggone" messed, mixed up; a lot of extra
activity was going on in transfer of merchandise from one warehouse to another;
everyone was "off" and confused, progress was unsatisfactory; employees were
sometimes just standing around talking, taking what could be called breathers; there
was a lot of talking going on between the employees; there was somewhat of a mess
due to the taking over of a new operation; and it is not sure that Collins talked more
than most of the other employees.
Collins admitted that he did some talking both during working as well as non-
working time on May 2 and I have no serious doubt but that he engaged in rather
more conversation about both union and nonunion matters on that day than he
would have one believe. On the other hand, I am satisfied that the amount of time
he devoted to talking in the midst of the first day's confusion was not so great as
represented by some of the witnesses called by Respondent. No rule against talking
or solicitation of any kind was in existence. The testimony adduced from such em-
ployees as Baldwin and McNeal. witnesses called by Respondent, that a lot of con-
versation, standing around to talk with people and stopping to talk, goes on during
the entire day and the expression of uncertainty as to whether Collins engaged in
more of it than his fellow employees, goes far to negative the idea that Collins was
less attentive to his job than were his fellow workers. The testimony of the one
worker, the only other tow operator, who was with Collins considerably more than
any of the others, convinces me that Collins kept on his job relatively steadily and en-
gaged in no solicitation and no more than ordinary talking, at least while the two
Stanley was not a witness
There seem not to have been more than five men in addition to Collins laboring in
the warehouse on May 2
4 With respect to this alleged observation, Burman's testimony that "there again it is
an assumption on my part" is cryptic. Whether he assumed he saw Collins talking, or
that if he did see him so doing he assumed he was "talking up" the Union, is a question
'which I do not assume to answer.
FUCHS TRANSFER COMPANY 1521
were together. Indeed, it is. somewhat difficult to see why Collins had any reason
to solicit for, or "talk up," the Union on May 2. All of his fellow workers, except
McNeal, had applied for membership in the Union in March and reapplied on the
very day before May 2. McNeal had been a member of the Union for well over a
year while working part time for Western and in addition had signed an application
card as recently as March 1960.
Should doubt linger as to whether the ascribed reason for Collins' discharge was
pretextuous, it may readily be resolved by Burman's own testimony in the instant
hearing that "Collins did do a fine job" and that he was not qualifying his testimony
given on June 18, 1960, that "I think Mr. Collins did a very fine job up here." The
short space of 8 hours amid the disorder prevailing on May 2 is scarcely sufficient
time within which a new employee's capability or willingness to perform his work can
be so objectively tested as to merit the harsh penalty of a peremptory discharge. Col-
lins had, so far as this record discloses, been a satisfactory worker for Western,
J. H. Toomey and Son, and William Furlong for some 12 or 13 years. I am unable
to believe that he was suddenly discharged by Burman because during the course of
only 1 day's work he had proved himself unsatisfactory for longrun employment.
Rather, I am convinced and find that he was discharged for the reasons alleged by
the General Counsel, when Burman told him at the end of the day, "As long as you
are going to keep that union stuff in your head, I am going to have to let you go." 5
Burman's desire to avoid conflict between Local No. 557 and the Union is under-
standable. His concern was that Collins' continued employment would militate
against the chance that the employees might repudiate the Union. Therefore,. in
order to get rid of the Union's leader he discharged a man whose strawboss testified
be was, aside from one mixed-up, abnormal, unsatisfactory day on the part of
everyone, ordinarily a trustworthy and very good worker.
Discussion of the Interrogation
The evidence respecting this feature of the case is fragmentary,, being confined in
large measure to the three brief conversations already found to have taken place
between Collins and Burman on May 2. The record contains no substantial evi-
dence supporting the broad allegation of unlawful interrogation of employees other
than Collins on or about that date. Although I am disposed to regard the coercive
effect of the questions posed to Collins concerning his union affiliation and that of
others as minimal, I feel constrained by precedents in almost innumerable cases to
find they violated Section 8(a)'(l). As will be pointed out infra in the section on
this report entitled "The Remedy," however, I consider it inexpedient as effectuating
the policies of the Act to issue a restraining order with respect to this quite trivial
aspect of the case.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section II, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor practices it will be
ordered that it cease and desist in part therefrom and take certain affirmative action
designed to effectuate the policies of the Act. .
Having found that the Respondent has discriminated in regard to the tenure of
employment of Vernon M. Collins, it will be recommended that it offer to Collins
immediate and full reinstatement to his former or equivalent position without preju-
dice to his seniority and other rights and privileges previously enjoyed and 'make
him whole for any loss of earnings sustained by reason of the. discharge on May 2,
1960, by payment to him of a sum of money equal to the amount he would have
earned in Respondent's employ from, that date to the date of offer of reinstatement,
less his net earnings during that period. Backpay shall be computed in accordance
with the Board's Woolworth formula.6
It is to be noted that although Burman denied employing these precise words, he did
testify that he might have mentioned the union part' and told Collins "he was warning
him to let that sort of stuff go until after working 'hours." .
OF. W. Woolworth Company, 90 NLRB 289. - r '
597254-61-vol. 130-97
1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although it has been found that Respondent engaged in an independent violation
of Section 8 (a) (1) of the Act by interrogating Collins with respect to his activities
and the activities of other employees on behalf of the Union, the circumstances sur-
rounding such interrogation and its isolated and restricted character are not so con-
victive of a fixed determination on the part of Respondent to deprive employees of
rights secured by the Act as to justify a belief that its preventive purposes will or may
be thwarted unless an order to cease and desist from such interrogation be recom-
mended or issued.
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. Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and
Station Employees is a labor organization within the meaning of Section 2(5) of
the Act.
2. By discriminating in regard to the tenure of employment of Vernon M. Collins
the Respondent has engaged in an unfair labor practice within the meaning of Sec-
tion 8 ( a) (3 ) and (1) of the Act.
3. By the discharge of Collins and the interrogation of him concerning his union
activities and those of other employees, the Respondent has interfered with, re-
strained , and coerced its employees in the exercise of rights guaranteed in Section 7
of the Act and has thereby engaged in an unfair labor practice within the meaning
of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Community Shops, Inc. and United Bakery and Confectionery
Workers Union , Local 15, Chicago Joint Board , Retail , Whole-
sale and Department Store Union , AFL-CIO,' Petitioner
Community Shops, Inc. and United Bakery and Confectionery
Workers Union , Local 15, Chicago Joint Board , Retail , Whole-
sale and Department Store Union , AFL-CIO. Cases Nos.
13-IBC-6165 and 13-CA-3339. March 24, 1961
DECISION AND ORDER
On May 27, 1960, Trial Examiner Sydney S. Asher, Jr., issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other unfair labor prac-
tices and recommended that the complaint be dismissed with respect
to such allegations. The Trial Examiner further recommended that
the election conducted on August 21, 1959, be set aside, and that an-
other election be held during the customary season at such time as the
Respondent's interference with the election and unfair labor practices
have been remedied.
.. The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
1 Herein called Local 15.
130 NLRB No. 158.
1