T. E. Mercer Trucking Co.

National Labor Relations Board - Board Decisions

Nov 30, 1961

134 N.L.R.B. 859 (N.L.R.B. 1961)

T. E. MERCER TRUCKING CO. 859
Pollyanna standards for the conduct of workingmen but merely those that are
not incompatible with the normal employee-employer relationship.
The Posey incident , of which the Respondent was aware at least sometime prior
to the instant hearing, likewise militates against recommending Dillback's rein-
statement . The employee was at liberty to inform Posey about the Intermediate
Report in response to the latter 's inquiry , and about what was involved and about
the union activity and of the factual situation then existing . Without attempting
to prescribe precisely the ambit of legitimate expression in such circumstances, I
believe that the statement that the Company was going out of the furniture business
if it did not do well at the January furniture show exceeded the bounds of legitimate
comment by an employee on active duty for his employer and drawing wages
therefrom. There is nothing in the record to show that such a statement had any
basis in fact . As far as appears, Respondent 's labor problems were confined
to its drivers and not to its production and maintenance operations . Even if true,
the propriety of such a statement by an employee to a customer is not apparent.
The significance of such a remark to a customer , interested in having a reliable and
continued service of supply, is clear. The statement , purportedly by an insider,
is in the area of those statements in such cases as Jefferson Standard Broadcasting,
supra, where the employer's pioduct is depicted as shoddy and inferior . Here, the
productive capacity of the employer or its continuance was cast in substantial
doubt and the parlous state of the business was not ascribed solely to any difficulties
between the Company and the employee and his Union. There was a general
aspersion to the effect that the entire plant was turned upside down and that its
continuance was dependent upon the upcoming furniture show.58
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. By discriminating in regard to the hire and tenure of employment of Calvin
Belt, James Crane, Carvel Dillback, Howard Dunn, Daniel Hughes , and Clarence
Sims, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a) (3) of the Act.
4. By the above conduct , thereby interfering with, restraining , and coercing
employees in the exercise of rights guaranteed by Section 7 of the Act, the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (a)( 1 ) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices that affect
commerce within the meaning of Section Z(6) and (7) of the Act.
[Recommendations omitted from publication.]
es Respondent 's personnel manager, Holt , testified on the first day of the hearing He
resumed the stand on the second day and testified , inter alla, that after he had left the
witness stand on the preceding day, Dillback said to him , "That ' s a bunch of lies You
are the lyingest son-of-a-bitch I have ever seen " The Trial Examiner sustained the General
Counsel's objection to the testimony . The General Counsel ' s objection was based on the
assertion that the testimony was not relevant to the issues in the case In retrospect,
I am of the opinion that my ruling was in error While the evidence was not relevant to
the issue in the case which was the allegedly illegal terminations , it was relevant on the
question of remedy with respect to Dillback However , since In -view of my ruling at the
hearing the General Counsel made no effort to meet the particular evidence by recalling
Dillback In possible rebuttal or otherwise , I have not relied on this evidence in my recom-
mendation excluding Dillback from reinstatement.
T. E. Mercer Trucking Co. and Oil , Chemical and Atomic Work-
ers International Union , AFL-CIO. Case No. 23-CA-1231.
November 30, 1961
DECISION AND ORDER
On September 15, 1961, Trial Examiner John H. Dorsey issued his
Intermediate Report herein, finding that the Respondent had engaged
134 NLRB No. 85.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in and was engaging in unfair labor practices in violation of Section
8(a) (1) of the Act and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent did not commit other unfair labor practices.' There-
after, the Respondent filed exceptions to the Intermediate Report and
a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Leedom, Fanning, and Brown].
The Board has reviewed the Trial Examiner's rulings and finds no
prejudicial error. The rulings are hereby affirmed. The Board has
considered the Intermediate Report, the exceptions and brief, and the
entire record in this case, and adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
ORDER
The Board adopts the Recommended Order of the Trial Examiner
with the modification that provision 2(b) read: "Notify the Regional
Director for -the Twenty-third Region, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply
herewith." I
1 In the absence of exceptions to such findings, the Board adopts them pro forma.
2 Member Leedom would not adopt the Trial Examiner's finding that oral statements by
Mercer to employees on April 19, 1961, constituted threats of reprisal for union activity.
In his view, Mercer's testimony constitutes a prediction privileged under Section 8(c) of
the Act. As Mercer's testimony and the testimony of Foxworth, who gave a different
version of the statements, are conflicting, and as the Trial Examiner did not resolve this
conflict, Member Leedom would find that the evidence does not preponderate to establish
a violation with respect to such statements.
3 In the notice attached to the Intermediate Report as Appendix, the words "Decision
and Order" are hereby substituted for the words "A Recommended Order of a Trial
Examiner." 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
STATEMENT OF THE CASE
Charge was filed by Oil, Chemical and Atomic Workers International Union,
AFL-CIO, herein referred to as the Union. Complaint , alleging violations of Section
8 (a) (1) of the Act by T. E. Mercer Trucking Co., herein called Respondent , issued
June 16, 1961 . Answer, in the nature of a general denial , was filed by Respondent.
Hearing was held before the duly designated Trial Examiner , at Houston , Texas, on
August 1 , 1961 . Thereafter the General Counsel and Respondent each filed a brief.
Upon the entire record , and from my observations of the witnesses , I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Texas corporation having its principal office and place of business
in Fort Worth, Texas, and operates a terminal at Channelview, Texas, the facility
herein involved, where it is engaged in the business of transporting oil field equipment
T. E. MERCER TRUCKING CO. 861
and supplies, by motor trucks, under license by the Interstate Commerce Commission.
During the last calendar year, which is a representative period, it received in excess
of $50,000 for the interstate transportation of oil field equipment and supplies.
Respondent admits and I find that it is and has been engaged in "commerce" and
in operations "affecting commerce" as defined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that the Union is a labor organization within the meaning of Section 2(5)
of the Act.
M. THE ISSUES
1. Whether Respondent interrogated employees in violation of Section 8(a) (1)
of the Act.
2. Whether Respondent promised a wage increase in violation of Section 8(a)(1)
of the Act.
3. Whether Respondent threatened to close its plant in violation of Section
8(a)(1) of the Act.
4. Whether Respondent solicited a striking employee to return to work in violation
of Section 8(a)(1) of the Act.
IV. THE FACTS
A. The advent of the Union
The Union began to organize Respondent's employees on April 14, 1961.1
B. Respondent's interrogation of its employees
On Sunday, April 16, W. D. Davis, Respondent's terminal manager, approached
employee Cornelius Hawkins in the tire shop. Davis reached in his pocket, pulled
out a stub of one of the Union's authorization cards, and asked Hawkins "had I see'd
one and I said, 'No."' Also Davis asked Hawkins if he had "signed one." Davis did
not deny having such a conversation; but he testified it occurred on April 19 .2
Hawkins' testimony was corroborated by employee Hugh Alfred .3 I find the conver-
sation took place on April 16.
Manuel Joseph, employed by Respondent for about 10 years, testified that on
April 16, while he was working on the wash rack, he had the following conversation
with 1'2rminal Manager Davis:
He just asked me who belonged to the Union, and I just told him all that was
working there had a Union card, I didn't see any use to hide or anything like
that, because this was a free world, if you wanted to join a Union you could,
and if you don't, your didn't have to. I told him all of us had a Union card;
I still had the one I had, but I hadn't signed it; he signed it and gave it to me.
Joseph who does not read or write testified that a fellow employee, Joe Alfred, signed
his name to the Union's card.
Under cross-examination, Joseph testified that Terminal Manager Davis asked
him, "Do you know anything about that Union?" and asked him if he had "a Union
card." Joseph replied that he had a card-he was not for the Union-Alfred signed
his name to the card without having his consent.
Terminal Manager Davis admitted having a conversation with Joseph about the
card which he said occurred on April 19, but he did not "remember just what I
said to him."
I credit Joseph and find that the conversation as related by him occurred on
April 16.
Terminal Manager Davis admitted that he told Foreman Bewley to "ask two or
three of his men if they had signed their cards or had the union man signed them
for them."
James Harper, whose testimony stands uncontroverted, testified: ( 1) In June 1961,
Foreman Richard Bewley asked him if any union "boy" was asking him to join; and
1 All dates herein are in the year 1961 unless otherwise indicated.
z Davis testified, "I just asked him (Hawkins) if he had signed his card or did they
sign it and give it to him, and he told me he had no card "
3 Respondent sought to discredit the testimony of Alfred by attempting to show that he
was not in a position to overhear the conversation between Hawkins and Davis. I find
that he did overhear the conversation and credit his testimony as to the date which he
related to the termination of his employment on the following day.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) on May 16, at a barbeque supper given by Terminal Manager Davis for about 35
employees, Davis said, "We all have a right to vote the way we want to, for the Union
or against it . . . if we vote for the Union we might have to get out there and walk
ninety days or longer. . If you vote against it, you have a job as long as it's there,
but you vote for the Union and you are still going to bring men in, and still we
weren't going to sign anything the Union brings up." Bewley's question and Davis'
statement violated Section 8(a)(1) of the Act.
Respondent in its brief, argues that the interrogation of employees concerning
union application cards, admitted by Davis, is in the permissible realm of Blue Flash
Express, Inc., 109 NLRB 591, and the privileged inquiry permitted in Joy Silk Mills,
Inc., 85 NLRB 1263, because Respondent had reason to believe that some of the
cards had forged signatures and its inquiry was relative to the question of the Union's
representative status. Since Respondent first learned of the Union's demand for
recognition by a telephone call and receipt of a letter on April 18 or 19, and the
Union did not file a petition for representation until April 25, after the interrogations
by Davis as found above, the cases cited are inapposite.
In Blue Flash Express, Inc., the respondent, after receipt of a letter from the union
demanding recognition, questioned its employees, individually, as to whether they
had signed a union card so that respondent might know how to answer the union's
letter. Respondent did nothing to afford the employees a reasonable basis for be-
lieving that respondent might resort to reprisals because of their union membership.
This was held lawful.
In Joy Silk Mills, Inc., it was held that "An employer may question his employees
in preparation for a hearing but is restricted to questions relevant to charges of unfair
labor practices and of sufficient probative value to justify the risk of intimidation
which interrogation as to union matters necessarily entails; and that even such ques-
tions may not be asked where there is purposeful intimidation of employees." 185
F. 2d 732, 743 (C.A.D.C.).
It is to be noted that the instant case differs from Blue Flash Express, Inc, and Joy
Silk Mills, Inc., in that Respondent's interrogation of its employees occurred during
the Union's organizational campaign and before the Union had demanded recogni-
tion. Consequently, at the time Respondent interrogated the employees it was not
legally concerned whether the Union represented a majority of the employees. Only
after demand, by the Union, for recognition could interrogation of the employees
concerning their union membership, properly confined, be lawful. Cf. Lindsay
Newspapers, Inc., 130 NLRB 680.
I am satisfied that by conducting the interrogations Respondent sought to interfere
with, restrain, and coerce its employees in their organizational rights rather than to
discover whether the Union's authorization cards had been properly executed. I
conclude that by interrogating its employees about their union membership and
activity and that of other fellow employees, prior to a demand by the Union for
recognition, Respondent violated Section 8 (a) (1) of the Act. Cf. Lindsay
Newspapers, Inc., 130 NLRB 680.
C. The threat to close the plant-the promise of a wage increase
Respondent's president, T. E. Mercer, called the employees to his office on April
19, immediately after Respondent had received the Union's demand for recognition.
Concerning the meeting, Needan Foxworth, an employee, testified that Mercer,
. called us in there and he told us that he wouldn't tell us what to do, it
was a free country and we was twenty-one, and if we wanted to go Union,
to go Union, he wasn't telling us not to. But he said if we had come to him
before all of this started, we could probably have worked out something. And
he said if it did have to go Union, probably in 45 days, he would have to shut
it down on account of he couldn't pay these wages.
He (Mercer) said he had been thinking about-had been aiming to give us a
raise, is what he said, and was.
President Mercer admitted calling the employees into his office. As to what he
said to the employees, Mercer testified:
I had heard of some exhorbitant wages that had been talked about, up to $3.50
an hour, and the statement-I don't recall the exact words, but the statement
went something like that if the Union were to have a contract demanding those
type wages, that if our company attempted to pay those wages we would be out
of business in 45 days.
T. E. MERCER TRUCKING CO. 863
Concerning employee Foxworth's testimony about a wage increase , Mercer said that
he told the employees "if I wanted to give them a raise at the time , I couldn't because
the Union had more or less froze our scales by my receipt of that letter." 4
Under cross-examination Mercer was unable to identify the source of his informa-
tion that the Union would demand $3.50 an hour.
In its brief Respondent argues that Mercer 's statements are privileged (Section
8(c) of the Act); and, Respondent may predict coming events, based on its belief
and knowledge . It cites Glenn Koennecke d/b/a Sunset Lumber Products, 113
NLRB 1172; Safeway Stores, Inc., 122 NLRB 1369 ; N.L.R.B . v. Rockwell Manu-
facturing Company (DuBois Division ), 271 F. 2d 109 (C.A. 3). The case law prin-
ciple concerning privilege to utter predictions of coming events is not absolute.
Tobe applicable the prediction must be predicated upon facts , reasonably foreseeable
economic consequences , and devoid threat. If the prediction is uttered in such man-
ner and circumstances that it conveys a threat it is not privileged under Section 8(c)
of the Act.
Mercer's prediction was not predicated upon facts . He had not been informed by
the Union as to what it would seek as wages for the employees ; his reference to $3.50
an hour was unfounded . He knew, or should have known that , even if the Union
qualified as collective -bargaining agent , wages are a mandatory subject of collective
bargaining and could not be fixed unilaterally by the Union . Under the circum-
stances, I find that Mercer's statement about going out of business was a threat
in violation of Section 8(a) (1) of the Act.
Foxworth 's testimony that Mercer told the assembled employees that he "had
been aiming to give us (the employees ) a raise" is weighed against Mercer's testi-
mony that "I couldn 't because the Union had more or less froze our scales" by its
letter demanding recognition . I find no preponderance of the testimony favoring
either version.
D. Solicitation of a striking employee to return to work
On April 21, some of Respondent's employees went to strike and started picketing.
Charley Derrough, a striking employee, testified concerning three conversations he
had with Terminal Manager Davis while Derrough was walking the picket line.
The first conversation occurred the second week after the strike and Davis drove
across the picket line in his car and asked Derrough why he went out on strike and
then Davis said, "Why I didn't throw that board down and go on back to work."
The "board" refers to the picket sign carried by Derrough. The second conversation
took place the latter part of May as Davis entered the plant about 8:30 or 9 in the
evening. Derrough testified to the following conversation:
Yes, sir. He spoke and asked me, he said, "Hi, Charley." He says, "Haven't
the mosquitoes eaten you up out there yet?"
I told him, "Nope."
He said, "Why don't you throw that board down and come back to work?
You are going to starve to death out there."
I said, "Well, I am not ready yet, Mr. Davis."
And he drove on into the plant.
That same evening as Davis left the plant between 10:30 and 11 p.m., he engaged
in another conversation with Derrough as follows:
A. Yes, sir. He said, "You wells [sic] to come on back to work, you ain't
going to win nothin' out there because half of your men has already got jobs
and gone back to work and their votes won't count and you can't win nothin' no
how." And he said, "Be frank and tell me the truth," he says, "You know me
and you is too old to lie to one another."
I said, "Yes, sir."
He says, "Is they paying you to walk that picket line?"
I says, "Yes, sir, they pay me on the average of about twenty dollars a week,
and they pay my gas and light bill and the repair on my old car, and they also
furnishes my groceries."
Q. Was anything else said, or was that the extent of the conversation?
A. He said, "Well," he said, "You as well come on out, you are going to starve
to death out there; you ain't goin' to win nothin' no how because the boys that's
got jobs, their votes won't count."
* The letter referred to is apparently the Union's letter demanding recognition which
was received by Respondent on April 18 or 19.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I told him, "Yes, sir, a portion of them do have jobs, but they are out on the
jobs to help take care of us out here on the picket line everyday."
Terminal Manager Davis testified that "on two or three occasions I asked them
(the strikers) why they didn't throw that stick down and go back to work-not
come to work." Also that he had made such a statement to Derrough and had
asked Derrough if he was getting paid to walk the picket line.
Davis denied that he asked Derrough or any other striker to return to work.
He was certain he did not ask Derrough since at that time the jobs of all the
strikers had been filled; and, he denied telling Derrough that the Union would lose.
The resolution of the allegation that Respondent solicited striking employee
Derrough to return to work is dependent on a finding as to whether Terminal Man-
ager Davis said "come on back to work" or "go to work." Inasmuch as Davis'
testimony that all the strikers had been replaced is uncontroverted, I find that Davis
said "go to work." Consequently, I find that Davis did not solicit Derrough to re-
turn to work in violation of Section 8(a) (1) of the Act as alleged in the complaint.
CONCLUSIONS OF LAW
1. By coercively questioning employees concerning their union sympathies and
activities, and by threatening employees with reprisals, Respondent has interfered
with, restrained, and coerced employees in the exercise of the rights guaranteed
in Section 7 of the Act, in violation of Section 8 (a)( 1 ) of the Act.
2 The aforesaid unfair labor practices affect commerce within the meaning of
Section (6) and (7) of the Act.
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the Act, the Trial Examiner hereby issues the following:
RECOMMENDED ORDER
T. E. Mercer Trucking Co., its officers , agents, successors , and assigns , shall:
1. Cease and desist from coercively questioning employees about their union
sympathies and activities , threatening employees with reprisals because of such
activities , or in any like or related manner interfering with, restraining , or coercing
employees in the exercise of the right to self-organization , to form labor organiza-
tions, to join or assist Oil, Chemical and Atomic Workers International Union,
AFL-CIO, or any other labor organization , to bargain collectively through repre-
sentatives of their own choosing , and to engage in any other concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or to
refrain from any and all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Post at its establishment in Channelview , Texas, copies of the notice attached
hereto marked "Appendix ." Copies of said notice, to be furnished by the Regional
Director for the Twenty-third Region , shall, after being duly signed by an author-
ized representative of the Respondent , be posted by the Respondent immediately
upon receipt thereof, and be maintained by it for a period of 60 consecutive days
thereafter , in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Respondent to in-
sure that said notices are not altered , defaced, or covered by any other material.
(b) Notify the Regional Direction for the Twenty-third Region , in writing , within
20 days from the receipt of this Intermediate Report and Recommended Order,
what steps it has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Re-
lations Act, we hereby notify our employees that:
WE WILL NOT coercively question employees about their union sympathies and
activities, threaten employees with reprisals because of such activities, or in
any like or related manner interfere with, restrain, or coerce our employees
in the exercise of the right of self-organization, to form labor organizations,
to join or assist Oil, Chemical and Atomic Workers International Union,
AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other concerted ac-
SLATER SYSTEM MARYLAND, INC. 865
tivities for the purpose of collective bargaining or other mutual aid or protec-
tion, as guaranteed in Section 7 of the Act, or to refrain from any and all
such activities.
All our employees are free to become or remain or to refrain from becoming
or remaining members of Oil, Chemical and Atomic Workers International Union,
AFL-CIO, or any other labor organization.
T. E. MERCER TRUCKING Co.,
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.
Slater System Maryland , Inc.' and United Catering, Restaurant,
Bar and Hotel Workers Local Union 1064 affiliated with Re-
tail , Wholesale and Department Store Union , AFL-CIO, Peti-
tioner. Case No. 7-RC-4897. November 30, 1961
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Charles Fine, hearing officer.
The hearing officer's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed.
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 [Members Leedom, Fanning, and
Brown].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer 2
3. No question affecting commerce exists concerning the represen-
tation of employees of the Employer within the meaning of Section
9(c) (1) and Section 2(6) and (7) of the Act, for the following
reasons:
On March 21,1958, the Employer and the Detroit Local of the Hotel
and Restaurant Employees and Bartenders International Union,
signed a collective-bargaining agreement, to become effective June 1,
1958, covering the cafeteria employees at the Roosevelt Park Annex
Post Office in Detroit, Michigan. This contract provided that it would
continue in effect from year to year unless written notice of termi-
The name of the Employer appears in the caption as amended at the hearing.
2 Hotel and Restaurant Employees and Bartenders International Union, Local Joint
Executive Board, AFL-CIO, was permitted to intervene, at the hearing, subject to Board
review.
134 NLRB No. 82.
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