Town & Country Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Apr 13, 1962

136 N.L.R.B. 1022 (N.L.R.B. 1962)

1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Sheet Metal Works International Association , Local Union 566, AFL-CIO;
and International Brotherhood of Teamsters , Chauffeurs , Warehousemen and Help-
ers of America , Ind., are labor organizations within the meaning of Section 2(5)
of the Act.
2. By interfering with , restraining , and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the
Act.
3. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Town & Country Manufacturing Company, Inc., and Town &
Country Sales Company, Inc. and General Drivers, Chauffeurs
and Helpers Local Union No. 886. Cases Nos. 16-CA-1305 and
16-CA-1307. April 13, 1962
DECISION AND ORDER
On May 3, 1960, Trial Examiner Paul Bisgyer issued his Inter-
mediate 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 Intermediate Report
attached hereto. He also found that the Respondent had not engaged
in other unfair labor practices and recommended dismissal of the
complaint as to them. Thereafter, the Respondent and the General
Counsel filed exceptions to the Intermediate Report and supporting
briefs.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Intermedi-
ate Report, the exceptions and briefs, and the entire record in these
cases, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations to the extent that they are consistent with our
decision herein.
1. We find, as did the Trial Examiner, that the respondent violated
Section 8 (a) (1) of the Act by threatening employees with discontinu-
ance of operations or with discharge or other reprisals because of their
activities on behalf of the Union; by promising employees wage in-
creases and other benefits if they voted against the Union; by interro-
gating employees concerning the identity of supporters of the Union;
and by requiring employees to sign individual work agreements with
Respondent under threats of withholding work.'
' The Respondent concedes that if engaged in these violations of the Act and has, there-
fore, filed no exceptions to the Trial Examiner 's findings in this connection.
136 NLRB No. ill.
TOWN & COUNTRY MANUFACTURING CO., INC., ETC. 1023
2. The Trial Examiner further found that Respondent did not
violate Section 8(a) (3) of the Act by unilaterally terminating its
trailer hauling department and discharging its drivers, because Re-
spondent's decision to do so was not discriminatorily motivated. We
disagree with this finding.
Respondent manufactures mobile home trailers. Since 1956, Re-
spondent has maintained a hauling operation to deliver its trailers
to customers. Initially, Respondent used an independent contractor
who employed the drivers, owned the trucks, and supervised the opera-
tion. In July 1956, Respondent terminated this relationship, pur-
chased its own trucks, hired drivers, and assumed direct supervision
of the hauling. In July 1957, after learning that its trucking opera-
tions fell within the jurisdiction of the Interstate Commerce Commis-
sion, and were not in compliance with I.C.C. regulations, Respondent
changed its operating procedures to comply therewith. In 1958, the
operation was again changed. The Respondent sold its trucks, and
hired Dispatcher W. R. Sims to supervise the transportation of the
trailers. Under this revised procedure, the drivers and Sims had
actual ownership of the vehicles. However, to comply with I.C.C.
regulations, title to the vehicles was kept by Respondent. In July
1959, after further I.C.C. investigation, Respondent once again
changed operations by purchasing its own trucks and hiring the for-
mer owner-drivers to operate them. Sims remained as dispatcher to
supervise the trucking operation.2
With this latest change in operations, the drivers became dissatis-
fied with their new wage rates and employment conditions. The source
of dissatisfaction stemmed from the drivers' complaints, made to
Neely, Respondent's general manager and secretary-treaturer, regard-
ing wage inequities resulting from the manner in which Sims was
paid. The record discloses that Sims received a salary based on a
percentage of freight charges exacted on deliveries made by Respond-
ent's drivers. Believing that Sims' percentage was excessive and thus
affected their wages, the drivers discussed the subject of unionization
and, on July 27, contacted the Union and received authorization cards
for signature. After receiving signed cards, the Union sent Respond-
ent a telegram on August 1 notifying it that the Union represented a
majority of Respondent's drivers and requesting recognition. When
Respondent declined recognition, the Union petitioned the Board for
an election. This was held on September 24 and resulted in the
Union's certification on October 1.
2 The constant changes in methods of operation resulted from Respondent's failure to
satisfy I C C. regulations . Among the alleged violations were excess driving, falsifica-
tion of logs by drivers, failure to keep logs , improper maintenance records, and improper
supervision of logs by Respondent . Although Respondent was aware of these conditions,
it apparently never took steps effectively to remedy these practices.
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon learning of their drivers' interest in the Union on August 1,
and until shortly before it subcontracted its hauling work in early
November, Respondent embarked upon a campaign designed to thwart
their organization . As the Trial Examiner found , Neely visited Sims'
home on August 2 to discuss the Union's telegram. Not finding Sims
at home, Neely called on one of Respondents drivers ( who was the
father of another employee driver ) and questioned him concerning
his knowledge of the Union; stated that Respondent wanted no part
of the Union; and threatened that an independent carrier would be
retained to haul Respondent's trailers if the drivers chose the Union,
even though this would entail additional expense. Thereafter, Sims
warned the drivers that he was going to "get rid of the boys that went
Union;" that those who voted for the Union would be discharged but
those who voted against it would be retained; that Respondent would
hire a common carrier to do their hauling rather than deal with the
Union; that no driver could remain in Respondent 's employ unless he
signed an individual employment agreement which embodied existing
terms and conditions of employment; and that Sims had checked with
a representative of the I.C.C. who informed Sims that he could dis-
charge drivers for falsifying logs , and that this would give Sims a
legal excuse to discharge the union adherents.
Following its certification on October 1, the Union arranged a
bargaining meeting with Respondent for October 19. At this meet-
ing, Respondent stated that it was conducting an audit of its business
and that this would take 10 days to complete . At Respondent's re-
quest, the Union agreed to a 10-day suspension of negotiations. As
indicated above, and in the Intermediate Report, the Respondent
continued to engage in acts in violation of Section 8(a) (1) during
this period.
On October 27, Respondent summoned an I.C.C. investigator to
check the legality of its trucking operations .' On October 29, Re-
spondent informed the Union that its audit had not been completed
and that, because of an I.C.C. investigation , the Respondent was con-
sidering subcontracting its trucking department and using an inde-
pendent hauler , but that negotiations with the Union were not closed.
However, Neely admitted that he had contemplated terminating the
trucking department on October 28 or 29. On November 2, without
notice to the Union , Respondent contracted with a common carrier
to do its hauling and proceeded to discharge its drivers as they re-
turned from their trips. Respondent stated that it did not inform
the Union of this action because its decision to do so was solely within
IAs a result of this investigation , a. United States attorney filed a criminal information
against Respondent for failure to satisfy I CC. regulations This action, however, oc-
curred more than 2 months after the Investigation.
TOWN & COUNTRY MANUFACTURING CO., INC., ETC. 1025
management's prerogative. The Union protested the decision, but
to no avail .4
In dismissing the alleged violations of Section 8(a) (3), the Trial
Examiner concluded that it was more reasonable to infer that Re-
spondent discharged its drivers to avoid further I.C.C. violations,
than to infer that this action was taken to discriminate against them
because of the Union. To support this inference, the Trial Examiner
noted that it was to Sims' financial interest to maintain the status quo
without the Union because, if the Union came in and successfully
processed the drivers' complaints about wage inequities, Sims' salary
would be affected. He then apparently reasoned that, because of
this financial interest, Sims alone embarked upon a campaign to in-
sure the status quo, and that the Respondent had little if any interest
in opposing the Union. From these premises, the Trial Examiner
concluded that Respondent therefore must have closed its trucking
department because of its difficulties with the I.C.C. We do not be-
lieve that the recorded facts support this inference.5
As the record discloses and the Trial Examiner himself found, the
Respondent's general manager and secretary-treasurer, Neely, was
the first to receive the Union's telegram on August 1 informing the
Respondent of the Union's representative interest. The next day, and
prior to Sims' knowledge of the Union's recognitional demands, Neely
warned a driver (who was the father of another driver employed
by Respondent) that Respondent would not countenance unioniza-
tion and forecast that Respondent would retain an independent car-
rier to do its hauling if this came about, even though it would be
more expensive to do so. These threats to cease hauling operations,
uttered by a high-ranking official of Respondent, were made almost
3 months prior to the I.C.C. check on Respondent's hauling operations.
It was only after this expression of hostility to the Union that Sims,
the immediate supervisor of the drivers, repeated the same theme first
announced by his superior, Neely. In fact, Sims also stated that
'After terminating the trucking department on November 2, Dispatcher Sims remained
in Respondent's employ for approximately 2 weeks, after which he was retained as a dis-
patcher by the common carrier and continued to use Respondent's dispatching office
5 At the hearing and in its brief, the Respondent advanced the alternative defense to the
Section '8(a) (3) allegations that its decision to subcontract was impelled by economic
considerations Because the Trial Examiner found that this decision was occasioned by
its desire to rid itself of continued violations of I C C regulations, lie deemed it unneces-
sary to pass on this contention We are not convinced that the record supports this de-
fense The Trial Examiner found that Neely stated to a driver during the organizational
campaign that Respondent would subcontract its trucking operations in order to defeat
the Union even though additional costs would be entailed This prediction was made on
August 2 , 1959, more than 2 months before Respondent adjourned its bargaining meetings
with the Union to await the audit of Respondent's financial position. Moreover, while
Respondent may have suffered financial loss in its trucking business, the record indicates
that it -did not know at the time it subcontracted whether those costs would be thereby
lessened"en In fact, the subsequent cost as a result of the subcontract increased from 3 to
4 cents per mule, a cost which Respondent passed on to its customers
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent would subcontract its trucking business in the event of
unionization and even named the same independent carrier as did
Neely which would receive the subcontract. At no time prior to
October 29, when the Respondent first intimated to the Union that it
might have to subcontract its trucking operations because of I.C.C.
irregularities, did Neely, who was privy to the councils of Respondent,
mention that the subcontracting would be occasioned by any reason
other than the advent of the Union. Nor did Sims.
On this state of the record, and giving due weight to the foregoing
facts, we are convinced that the Respondent seized upon a pretext
when it assigned its I.C.C. difficulties as the reason for subcontracting
and discharging its drivers, and that its true motive for doing so was
because the men had joined and selected the Union as their bargaining
representative. Accordingly, we find that the Respondent discrimina-
torily discharged its drivers in violation of Section 8 (a) (3) when it
terminated their employment on November 2, 1959.
3. As we have found that the termination of Respondent's hauling
operations was motivated by its opposition to the Union, we find that
the Respondent thereby sought to disparage and undermine the Union
as majority bargaining agent for its drivers and that the termination
constituted a violation of Section 8(a) (5) for this reason.
The Trial Examiner also found that Respondent violated this sec-
tion of the Act, although he predicated his finding solely on the
ground that the Respondent unilaterally entered into the subcontract
without consulting the duly designated representative of its drivers.
We agree with the Trial Examiner that Respondent's unilateral action
in this regard, even if it was taken to avoid violations of I.C.C. regula-
tions or because of economic considerations, constituted an unlawful
refusal to bargain, for we believe that Respondent was under a statu-
tory obligation to bargain as to its decision to subcontract.
Neither Respondent's concern over its uncorrected violations of
I.C.C. regulations, nor its desire to operate its trucking department
more economically through subcontracting, created a license to vio-
late the Act. The drivers had designated the Union as their exclusive
bargaining representative in a Board election. This having been
done, the statute imposed on Respondent the mandatory duty to bar-
gain with that representative concerning the drivers' rates of pay,
wages, hours of employment, and other terms and conditions of em-
ployments Early in the administration of the Act, the Supreme
Court made it abundantly clear that an employer does not fulfill this
obligation where he takes unilateral action affecting these topics of
bargaining.'
eSections 8(a)(5), 9 ( a), and 8(d) of the Act . Cf. Telegraphers v. Chicago and
N W.R. Co., 362 U S. 330.
7 See N.L .R B. v. Mackay Radio & Telegraph Co., 304 U . S. 333, 348.
TOWN & COUNTRY MANUFACTURING CO., INC., ETC. 1027
In Fibreboard Paper Products Corporation,' the Board held that
an employer, which unilaterally subcontracts a portion of its opera-
tions for economic reasons, does not violate Section 8(a) (5) of the
Act by failing to notify and negotiate with the representative of its
employees with respect to this decision. The act of the employer was
deemed to constitute a management prerogative without impact on
the conditions of employment within an existing bargaining unit.
Accordingly, the decision to subcontract unit work was not a manda-
tory subject of bargaining and hence no discussion with the employees'
representative was required. Upon reconsideration of the Fibreboard
opinion, we are now the view that it unduly extends the area within
which an employer may curtail or eliminate entirely job opportunities
for its employees without notice to them or negotiation with their
bargaining representative. In our opinion, the precedents cited and
discussed by the majority and minority decisions in that case support
the conclusion that the elimination of unit jobs, albeit for economic
reasons, is a matter within the statutory phrase "other terms and con-
ditions of employment" and is -a mandatory subject of collective
bargaining within the meaning of Section 8 (a) (5) of the Act. More-
over, the duty to bargain about a decision to subcontract work does
not impose an undue or unfair burden upon the employer involved.
This obligation to bargain in nowise restrains an employer from
formulating or effectuating an economic decision to terminate a phase
of his business operations. Nor does it obligate him to yield to a
union's demand that a subcontract not be let, or that it be let on terms
inconsistent with management's business judgment. Experience has
shown, however, that candid discussion of mutual problems by labor
and management frequently results in their resolution with attendant
benefit to both sides. Business operations may profitably continue
and jobs may be preserved. Such prior discussion with a duly desig-
nated bargaining representative is all that the Act contemplates. But
it commands no less.'
Accordingly, even if Respondent's subcontract was impelled by eco-
nomic or I.C.C. considerations, we would nevertheless find that Re-
spondent violated Section 8(a) (5) by failing to fulfill its mandatory
obligation to consult with the Union regarding its decision to sub-
180 NLRB 1558 ( Member Fanning dissenting).
See Cox, The Duty to Bargain in Good Faith , 71 Harvard Law Rev. 1401, 1412:
"Participating in [collective bargaining ] debate often produces changes in a seemingly
fixed position either because new facts are brought to light or because the strengths or
weaknesses of the several arguments become apparent . Sometimes the parties hit upon
some novel compromise of an issue which has been thrashed over and over . Much is gained
even by giving each side a better picture of the strength of the other's convictions. The
cost is so slight that the potential gains easily justify legal compulsion to engage in the
discussion."
641795-03-vol . 136--66
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contract. To the extent that the majority opinion in Fibreboard holds
otherwise, it is hereby overruled.10
THE REMEDY
Having found that the Respondent engaged in violations of Section
8(a) (1), the Trial Examiner recommended that it cease and desist
therefrom. We adopt this recommendation.
The Trial Examiner failed to find that the Respondent engaged in
violations of Section 8 (a) (3) when it terminated its trucking oper-
ations and discharged its drivers because, in his view, this action was
not prompted by antiunion considerations. He therefore recom-
mended that no affirmative remedial order run against Respondent
with respect to this conduct. Although he did find that the Respond-
ent violated Section 8(a) (5) by unilaterally subcontracting its haul-
ing operations, he concluded that no useful purpose would be served
by issuing an affirmative bargaining order against Respondent. For
the reasons set forth below, we do not concur in his remedial treat-
ment of these aspects of the case.
At the expense of perhaps laboring the obvious, we deem it appropri-
ate to restate the guidelines which control the exercise of our remedial
authority under the statute which we administer. The National Labor
Relations Act, unlike some other Federal regulatory statutes, is not
self-executing. Section 8 of the Act charts the substantively pro-
1o The original dissenting opinion in Fibreboard was predicated upon the Supreme
Court's decision in Telegraphers v Chicago and N W R Co , 362 U S 330 In our opinion,
that Court made it patently clear that the elimination of unit jobs for economic reasons
was a "term or condition of employment" over which an employer must first bargain with
a duly designated union, and pointedly disagreed with the lower court's decision that "the
union's effort to negotiate about the job security of its members `represents an attempt
to usurp legitimate managerial prerogative in the exercise of business judgment with re-
spect to the most economical and efficient conduct of its operations' " (362 U S at 336-
337). While that holding was made in the context of the Railway Labor Act, it is well
settled that the parallel provisions of the National Labor Relations Act here applicable are
even more inclusive Inland Steel Company v NLRB, 170 F. 2d 247, 254-255
(C A. 7 ) , cert denied 336 U S 960 Unlike our dissenting colleague, Member Rodgers,
we are content to rely upon the pronouncement of the Supreme Court on this issue, and,
to the extent relevant, respectfully differ with the Courts of Appeals' decisions which
he cites
Like the majority in Fibreboard, we believe that an employer's duty to bargain in this
area also extends to such matters as employee benefits due at or after termination of their
employment.
Member Leedom agrees that Respondent violated Section 8(a) (5) by its unilateral
action in terminating its trucking operations without consulting the Union. However,
he bases this finding on the ground that, as the Respondent terminated its trucking
operations and discharged its drivers for discriminatory reasons, the drivers remained
Respondent's employees, and Respondent was accoidingly obligated to bargain with the
Union as their certified representative See Herman Nelson Division, American Air Filter
Company, Inc, 127 NLRB 939 In these circumstances, he sees no need in this case to
decide whether and to what extent the Respondent would have been obligated to bargain
if, contrary to fact, its decision to subcontract had been motivated by nondiscriminatory
considerations As his colleagues are nevertheless deciding that issue, Member Leedom
on that issue adheres to the majority decision in Fibreboard and does not join in over-
ruling it. I ` f
TOWN & COUNTRY MANUFACTURING CO., INC., ETC. 1029
scribed activities of employers and labor organizations which consti-
tute unfair labor practices. The legislative imprint on the Board's
remedial powers has, however, been lightly laid. Because the field
of national labor relations is ever changing, Congress did not attempt
to enumerate fixed remedies for each of the substantive violations com-
mitted. Nevertheless, it seems obvious that, in passing the Act,
Congress did not engage in the empty gesture of creating rights with-
out parallel remedies. As the Supreme Court has noted, "The relief
which the statute empowers the Board to grant is to be adapted to the
situation which calls for redress." 11
It is axiomatic that remedial action, if it is to afford an effective
redress for the commission of a statutory wrong, must be tailored to
restore the wronged to the position he would have occcupied but for
the action of the wrongdoer. Where employees have been discharged
in violation of Section 8(a)(3) because they chose union representa-
tion, the Board orders the offending employer to reinstate them and
make them whole for any loss of pay suffered from the date of their
discharge until their reinstatement. To accomplish reinstatement,
an employer may be ordered to dismiss replacements if necessary to
accommodate the discriminatees. Seniority and other benefits are
ordered restored. Only when such action is taken can it truly be said
that the wrong has been righted.
The situation is no different, and the need for a reinstatement
remedy is no less compelling, where an employer discriminatorily sub-
contracts work performed by its employees. In both cases, the em-
ployees have been punished for exercising their statutory rights
under Section 7 of the Act. In both cases, they are out of jobs. The
wrong is the same, and we can perceive no reason why the remedy
should not be the same as well. In order to effectuate the reinstate-
ment of employees who have been discriminatorily discharged through
subcontracting, the employer may be required to terminate his sub-
contract. We do not believe that such a requirement is unfairly im-
posed. But for the employer's violation of the Act, his employees
would have remained in his employ.
We have found that the Respondent discontinued its trucking de-
partment and discharged its employees on November 2, 1959, to
penalize them for having selected the Union as their bargaining agent.
This constituted u clear violation of Section 8 (a) (3). Manifestly, the
most meaningful way in which Respondent can remedy this wrong
would be to reinstitute its trucking operations and reinstate its
drivers.12 Accordingly, we shall order that the Respondent reestablish
11 See N L R B v. Mackay Radio & Telegraph Co , 304 U.S 333, 348 -
12 See NLRB v. Brown-Dunkin Company, Inc, 287 F. 2d 17, 20-21 (CA. 10), enfg.
125 NLRB 1379.
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its trailer hauling department and offer to all drivers discharged on
November 2, 1959, reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other
rights and privileges. We shall also order that Respondent make them
whole for loss of earnings suffered because of its discrimination
against them. Backpay shall be based upon the earnings which they
normally would have received from the date of their discharge to the
date of Respondent's offer of reinstatement, less any net interim earn-
ings, and shall be computed on a quarterly basis in the manner set
forth in F. W. Woolworth Company, 90 NLRB 289; N.L.R.B. v.
Seven-Up Bottling Company of Miami, Inc., 344 U.S. 344. However,
in accord with our usual practice, backpay will be tolled from the date
of issuance of the Intermediate Report to the date of this Decision and
Order.
We have also found that the termination of Respondent's trucking
operations was motivated by a desire to avoid dealing with the desig-
nated bargaining agent of its truckdrivers and violated Section
8(a) (5). As we have ordered resumption of those operations and re-
instatement of the drivers, we shall order that Respondent bargain
collectively with the Union as the exclusive representative of those
drivers and embody any understanding reached in a signed
agreement.13
We have further found that Respondent violated Section 8(a) (5)
by unilaterally subcontracting its trucking operations without bar-
gaining with the Union over its decision to do so. We shall therefore
order that Respondent cease and desist from making unilateral
changes in their terms and conditions of employment without con-
sulting their designated bargaining representative. It would be an
exercise in futility to attempt to remedy this type of violation if an
employer's decision to subcontract were to stand. No genuine bar-
gaining over a decision to terminate a phase of operations can be
conducted where that decision has already been made and imple-
mented. Here, too, the remedy must be "adapted to the situation
which calls for redress," and here, too, we would require an employer
to restore the status quo ante by abrogating its subcontract and ful-
filling its statutory obligation to bargain. Of course, where that
obligation has been satisfied after the resumption of bargaining, an
employer may lawfully subcontract unit work.''
In our opinion, it would be equally futile to direct an employer to
bargain with the exclusive bargaining representative of his employees
over the termination of jobs which they no longer hold. Since the
is In view of his position as expressed in footnote 10, supra, Member Leedom does not
subscribe to the last three paragraphs of the section entitled "The Remedy" of this
decision.
14 See N .L R.B. v. Crompton-Highland Mills , Inc., 337 U . S. 217 , 224-225.
TOWN & COUNTRY MANUFACTURING CO., INC., ETC. 1031
loss of employment stemmed directly from their employer's unlawful
action in bypassing their bargaining agent, we believe that a mean-
ingful bargaining order can be fashioned only by directing the em-
ployer to restore his employees to the positions which they held prior
to this unlawful action.15
In sum, even were we to find that Respondent terminated its truck-
ing operations for nondiscriminatory reasons, we would, in the cir-
cumstances of this case, order Respondent to abrogate its subcontract
and bargain with the Union over any future decision to subcontract
those operations. In addition, we would direct reinstatement of its
drivers with an appropriate backpay remedy.
ORDER
Upon the entire record in this case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Town & Country
Manufacturing Company, Inc., and Town & Country Sales Company,
Inc., Lawton, Oklahoma, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with General Drivers, Chauf-
feurs and Helpers Local Union No. 886, as the exclusive representa-
tive of all truckdrivers employed by Respondent at its Lawton,
Oklahoma, plant, excluding carpenters and helpers, electricians, cabi-
netmakers, welders, plumbers, painters, laborers, clerical and office
employees, guards, watchmen, and supervisors as defined in the Act,
and all other employees not listed as truckdrivers; and, from uni-
laterally changing their wages, hours, and other terms and conditions
of employment without prior consultation with the above-named
Union, or any other union which they may select as the exclusive bar-
gaining representative.
(b) Discouraging membership in the above-named or any other
labor organization of its employees by discharging any of its em-
ployees or otherwise discriminating in regard to their hire or tenure
of employment or any term or condition of employment.
(c) Threatening employees to discontinue any operations or de-
partments or to discharge any of them or to take other reprisals be-
cause of membership in, or activities on behalf of, the above-named
Union or other labor organizations.
(d) Promising employees wage increases or other benefits if they
vote against the above-named Union, or any other labor organization,
16 See West Bolyston Manufacturing Company of Alabama, 87 NLRB 808, 812-813.
Compare Piaseck, Aircraft Corporation v. N L.R B , 280 F 2d 575, 591-592 (C.A. 3) ;
Editorial "El Impartial" Inc. v. N.L R B., 278 F. 2d 184, 187 (C.A. 1).
1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in an election conducted by the National Labor Relations Board or
if they otherwise do not support such labor organization.
(e) Interrogating employees concerning the identity of members
or supporters of the above-named Union, or any other labor organ-
ization in, a manner constituting interference, restraint, and coercion
in violation of Section 8 (a) (1) of the Act.
(f) Requiring employees, under threats of withholding work, to
sign individual employment agreements in a manner constituting
interference, restraint, and coercion in violation of Section 8(a) (1)
of the Act.
(g) In any other manner interfering with, restraining, or coercing
employees in the exercise of their rights to self-organization, to form
labor organizations, to join or assist the above-named Union, or any
other labor organization, to bargain collectively through representa-
tives of their own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, and to refrain from any and 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) Reinstitute its trailer hauling department at its plant in Law-
ton, Oklahoma, and offer to L. L. Conlee, Jr., B. L. Reno, Sr., B. L.
Reno, Jr., R. Graves, and A. L. Hunter immediate and full reinstate-
ment to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, and make
them whole for any loss of pay suffered by them in the manner set
forth in the section above entitled "The Remedy."
(b) Upon request, bargain collectively with the above-named Union
as the exclusive representative of all the employees in the appropriate
unit in respect to rates of pay, wages, hours of employment, or other
terms and conditions of employment, and embody any understanding
reached in a signed agreement.
(c) Preserve and, upon request, make available to the Board and
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other records necessary or useful to determine the amount of
backpay due and the rights of reinstatement under the terms of this
Order.
(d) Post at its plant in Lawton, Oklahoma, copies of the notice at-
tached hereto marked "Appendix." 1B Copies of said notice, to be
le 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."
TOWN & COUNTRY MANUFACTURING CO., INC., ETC. 1033
furnished by the Regional Director for the Sixteenth Region, shall,
after being duly signed by the Respondent's representative, be posted
by 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 insure
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Sixteenth Region, in writ-
ing, within 10 days from the date of this Decision and Order, what
steps have been taken to comply therewith.
MEMBER RODGERS, dissenting :
On the facts found by the Trial Examiner, and for the reasons ,given
by him, I would adopt his finding that the Respondent terminated its
trucking operation for valid business reasons, and, accordingly did
not violate Section 8(a) (3) in laying off its drivers. I therefore dis-
agree with my colleagues' holding that the termination was discrim-
inatorily motivated.
I also disagree with my colleagues' holding that Respondent violated
Section 8 (a) (5) by failing to bargain with the Union over its decision
to terminate the trucking operation. In Fibreboard Paper Products
Corporation, 130 NLRB 1558, 1561, this Board stated, and correctly
so, that the statutory obligation to bargain is not "so broad and all
inclusive as to warrant an inference that the Congress intended to
compel bargaining concerning basic management decisions, such as
whether and to what extent to risk capital and managerial efforts."
Courts, too, have recognized that such decisions are within the realm
of managerial discretion and are not mandatory subjects of collective
bargaining." The decision of this Respondent to terminate its truck-
ing operation was, of course, such a managerial determination, and,
therefore, a prerogative exercisable without negotiation.
17 See Jays Foods , Inc, an Illinois Corporation v. N.L R B , 292 F 2d 317, 320 (C A 7) ;
NLRB. v. Rapid Bindery, Inc & Frontier Bindery Corp, 293 F 2d 170, 176 (C A 2) ;
see also N L R.B v. New Madrid Manufacturing Company and Harold Jones , d/b/a Jones
Manufacturing Company, 215 F 2d 908 , 914 (C A 8) ; N L R B v J M Lassinq, et al,
d/b/a Consumers Gasoline Stations , 284 F . 2d 781 , 783 (CA 6 ) , N.L R.B v The Houston
Chronicle Publishing Company, 211 F 2d 848 , 851 (C A 5) ; N L R.B. v The R C. Mallon
Company, 269 F 2d 44, 47 (C A 6) ; NLRB v Adkins Transfer Company, Inc, 226
F. 2d 324, 327-328 (C A. 6) ; and cases annotated at 152 A L.R 149
I note specifically that in the Jays Foods case, the court expressly approved the deci-
sion that my colleagues are here overrulingFibreboard Paper Products Corporation,
130 NLRB 161. See also Phillips v. Burlington Industries , Inc, 49 LRRM 2144 (U.S D C,
N D. Ga ).
My colleagues ' reliance upon Telegraphers v Chicago & N W.R. Co, 362 US 330, is
not justified . That case which turned on, among other things, a construction of the
Railway Labor Act, and the Interstate Commerce Act, and the duty of the Interstate
Commerce Commission , was found inapplicable to cases such as the instant one not only
by the Board in Fibreboard, but by the Court of Appeals for the Seventh Circuit in Jays
Foods, supra.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I must also disagree with my colleagues' view that an employer
when terminating an operation must bargain with the union over the
effects of that termination. As stated above, whether to continue or
terminate an operation is a prerogative of management not subject
to collective bargaining. To hold, therefore, that an employer can be
forced to bargain over the effects of a decision to terminate necessarily
renders that prerogative meaningless. For, obviously, to require an
employer to bargain over this aspect of his decision does not leave him
free to make the decision; in such a situation he is left, for all practical
purposes, in no better position than he would have been in had he
been required to negotiate with the union the whole subject of
termination.
For the foregoing reasons, I would find that the Respondent neither
violated Section 8(a) (3) nor Section 8(a) (5) in its termination of
its trucking operation.
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, as amended, we hereby notify our employees that :
WE WILL NOT refuse to bargain collectively with General
Drivers, Chauffeurs and Helpers Local Union No. 886, as the
exclusive representative of all truckdrivers employed by Respond-
ent at its Lawton, Oklahoma, plant, excluding carpenters and
helpers, electricians, cabinetmakers, welders, plumbers, painters,
laborers, clerical and office employees, guards, watchmen, and
supervisors as defined in the Act, and all other employees not
listed as truckdrivers.
WE WILL, upon request, bargain collectively with General Driv-
ers, Chauffeurs and Helpers Local Union No. 886, as the exclusive
representative of all the employees in the appropriate unit with
respect to rates of pay, wages, hours of employment, or other terms
and conditions of employment, and embody any understanding
reached in a signed agreement.
WE WILL NOT unilaterally make changes in the wages, hours,
and other terms and conditions of employment for the employees
in the above-stated appropriate unit without prior consultation
with General Drivers, Chauffeurs and Helpers Local Union No.
886, or any other union which they may select as their exclusive
bargaining representative.
WE WILL NOT discourage membership in the above-named or
any other labor organization of our employees by discharging any
of our employees or otherwise discriminate in regard to their hire
TOWN & COUNTRY MANUFACTURING CO., INC., ETC. 1035
or tenure of employment or any term or condition of employment.
WE WILL NOT threaten our employees to discontinue any opera-
tions or departments or to discharge any of them or to take other
reprisals because of their membership in, or activities on behalf of,
General Drivers, Chauffeurs and Helpers Local Union No. 886,
or any other labor organization.
WE WILL NOT promise our employees wage increases or other
benefits if they vote against the above-named Union, or any other
labor organization, in an election conducted by the National Labor
Relations Board or if they otherwise do not support such labor
organization.
WE WILL NOT interrogate our employees concerning the identity
of members or supporters of the above-named Union, or any other
labor organization, in a manner constituting interference, re-
straint, and coercion in violation of Section 8 (a) (1) of the Act.
WE WILL NOT require our employees, under threats of Withhold-
ing work, to sign individual agreements in a manner constituting
interference, restraint, and coercion in violation of Section 8 (a)
(1) of the Act.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their rights to self-
organization, to form labor organizations, to join or assist Gen-
eral Drivers, Chauffeurs and Helpers Local Union No. 886, or any
other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, and to refrain from any and all such activities,
except to the extent that such right may be affected by an agree-
ment 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.
WE WILL reinstitute our trailer hauling department at our plant
in Lawton, Oklahoma, and offer to L. L. Conlee, Jr., B. L. Reno,
Sr., B. L. Reno, Jr., R. Graves, and A. L. Hunter immediate and
full reinstatement to their former or substantially equivalent
positions without prejudice to any rights and privileges previously
enjoyed by them, and we will make them whole for any loss of
wages suffered as a result of the discrimination against them.
All our employees are free to become, remain, or refrain from be-
coming or remaining, members of General Drivers, Chauffeurs and
Helpers Local Union No. 886, or any other labor organization, except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employ-
1036 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
ment, as authorized in Section 8 (a) (3)- of the Act. We will not dis-
criminate in regard to hire or tenure of employment or any term or
condition of employment against any employee because of member-
ship in or activity on behalf of any such labor organization.
TOWN & COUNTRY MANUFACTURING COMPANY,
INC. AND TOWN & COUNTRY SALES COMPANY,
INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
, This notice must remain posted for 30 .days from' the date hereof,
and must not be altered, defaced, or covered by'any, other material.
Employees may communicate directly with the Board's Regional
Office, 300 West Vickery, Room 2093, Fort Worth 4, Texas, Telephone
Number, Edison 5-5341, Extension 284, if they have any question
concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding, with all the parties represented, was heard before Paul .Bisgyer,
the duly designated Trial Examiner, in Lawton, Oklahoma, on February 16, 17,
and 18, 1960, on complaint of the General Counsel and amended answer of Town &
Country Manufacturing Company, Inc., and Town & Country Sales Company, Inc.,
herein collectively called the Respondent. The issues litigated were whether the
Respondent violated Section 8(a)(1), (3), and (5) of the National Labor Relations
Act. At the conclusion of the hearing the parties waived oral argument. There-
after, the General Counsel and the Respondent filed briefs which have been care-
fully considered.
Upon the entire record, and from my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
I THE BUSINESS OF THE RESPONDENT
The Respondent , admittedly a single integrated enterprise , is engaged in Lawton,
Oklahoma, in the manufacture, sale, and distribution of mobile home trailers. Dur-
ing the past year, it purchased raw materials and equipment valued in excess of
$50,000, which were shipped to its plant from outside the State of Oklahoma. Dur-
ing the same period, it sold mobile home trailers valued in excess of $50,000, which
were shipped to points outside the State of Oklahoma.
Accordingly, I find that the Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies
of the Act to assert jurisdiction herein.
H. THE LABOR ORGANIZATION INVOLVED
The parties agreed, and I find, that General Drivers, Chauffeurs and Helpers Local
Union No. 886, herein called the Union, is a labor organization within the meaning
of Section 2(5) of the Act
III. THE UNFAIR LABOR PRACTICES
The events leading up to the unfair labor practices alleged against the Respondent
may be briefly summarized as follows: In June and July 1959,' the Respondent, in
an effort to take corrective measures necessitated by an investigation conducted by a
representative of the Interstate Commerce Commission , changed its method of deliv-
1 All events , unless otherwise indicated, occurred in 1959.
TOWN & COUNTRY MANUFACTURING CO., INC., ETC. 1037
ering its mobile home.trailers from an independent contractor arrangement to one
whereby employee -drivers would haul the trailers by means of company-owned
trucks. The drivers, who had previously hauled under the earlier arrangement, were
retained as employees of the Respondent.
Because of dissatisfaction with their wage rates and conditions of employment, a
number of truckdrivers invited the Union during the latter part of July to represent
them in bargaining with the Respondent . By telegram sent on August 1 , the Union
notified the Respondent of this fact . Thereafter , the Union requested recognition
with the Respondent refused to grant unless the Union was first certified by the
Board. The Union then filed a representation petition 2 with the Board and, pur-
suant to a consent agreement, an election was held. Having won the election, the
Union, was certified on October 1 as the exclusive bargaining representative of the
Respondent 's truckdrivers.
On October 19 the Respondent and the Union held their first bargaining confer-
ence. However , before the next meeting .and after an intervening investigation by
the Interstate Commerce Commission , the Respondent on November 2 unilaterally
terminated its trucking operation , discharged all but one 3 of its drivers as they
completed their deliveries , and hired an independent carrier to haul its mobile
home trailers.
The complaint alleges that following the Union's appearance in the plant, the
Respondent interfered with , restrained , and coerced employees in the exercise of their
statutory rights in violation of Section 8(a)(1) of the Act; refused to bargain collec-
tively with their certified representative in violation of Section 8(a)(5) of the Act;
and discriminatorily terminated its trucking operation and the employment of its
drivers because of their drivers ' union membership and activities . The Respondent
denies the commission of any unfair labor practices and affirmatively alleges that it
discontinued its trucking operation because of the results of an Interstate Com-
merce Commission investigation which uncovered serious violations of law and be-
cause of continuous financial loss experienced in operating this department.
A. Interference , restraint, and coercion
It is undisputed that on August 1 the Union notified the Respondent by telegram
that the drivers authorized it to represent them in negotiations concerning wages
and working conditions The next day , which was a Sunday , H. S. Neely, Jr., the
Respondent 's secretary-treasurer and general manager of all operations , went to the
home of W R . Sims, the Respondent ' s dispatcher and concededly a supervisor in
sole immediate charge of the trucking operations , to discuss the Union 's telegram.
Not finding Sims at home , Neely spoke to B. L. Reno , Sr.,4 one of the Respondent's
drivers who lived next door to Sims Reno, Senior , testified that Neely came to his
home on Sunday and told him that he had received the Union's telegram and asked
him what he knew about the Union . Reno, Senior , further testified that, after he
replied that the drivers wanted a living wage, Neely expressed the wish that the
drivers had first spoken to him before they took this action and added that he wanted
no part of the Union; that he would hire National Convoy , a common carrier, to
haul the Respondent 's trailers ; and that he would "set the [ Respondent 's] trucks up
against the wall and you boys will be out of a job ." Reno, Senior , also testified that
Neely said that Lawton was not a "union town" and that he was not troubled by the
additional cost entailed in using an independent hauler, a point that Reno, Senior,
raised.
Neely admitted on the witness stand that he asked Reno, Senior , what be knew
about the Union's telegram ; that Reno, Senior , complained about the wages paid
the drivers ; that he ( Neely) expressed his disapproval of the Union ; and that he did
not want it to represent any employees . Neely further testified that he was "pretty
sure that-[he] told-[Reno, Senior ], that if the Union solicited or bargained .
for a higher rate than . [ the Respondent] was then paying . . . [its ] drivers
where it was going to cost . . . [ it] more money , . . . [he] would use every recom-
mendation . . . [he] had . . . to dissolve . . . [the Respondent 's] drive-away
system and go to another type operation."
I am not convinced that Neely , who concededly was opposed to the Union, tailored
his words in his conversation with Reno, Senior , to avoid the plain implication that
2 Case No. 16-RC-2577 [ not published in NLRB volumes].
3 This driver , Joe Porter , Jr. was assigned to other work. The complaint names as
victims of the alleged discrimination , L L Coulee , Jr., B L. Reno , Sr., B L. Reno, Jr.,
Robert Graves , and A L Hunter.
4B L Reno , Sr., is the father of B L Reno, Jr, who was also employed by the Re-
spondent as a driver
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent would discontinue its trucking operations , if the drivers organized.5
On the other hand, I credit Reno , Senior's account of such warning, which I find is
more accurate.
According to the testimony of witnesses produced by the General Counsel , recited
below , Dispatcher Sims reacted substantially the same way as General Manager
Neely did when he learned that the drivers had authorized the Union to represent
them . Thus, Reno , Senior, testified that later in the day of his conversation with
Neely, he visited the home of his son , B. L. Reno , Jr., where he met Sims. Appar-
ently, Reno , Junior , and B . D. Kirkland , who were also employed as drivers by the
Respondent , and W. B. Kirkland ,e were present . Reno, Senior , further testified that
when ' he arrived , he found Sims there, "cussing and cavorting around as to what
he was going to do about the union , that we was all fired , we could bring our trucks
in the next morning and put them on the line out there . . . that we had joined
the union and that was all there was to it."
Lonnie L . Conlee, Jr., one of the Respondent 's truckdrivers who was instrumental
in bringing the Union into the plant , gave testimony to the effect that when he
reported for work Monday morning (August 3) Sims presented a document entitled
"Trailer Delivery Agreement" 7 to him and other drivers , which they refused to sign
because it did not provide a living wage, although Sims advised them that they could
not haul any trailers until they did sign . Conlee further testified that , when he later
informed the drivers in Sims' presence that Hyden , the Union 's business agent, in-
structed them not to sign the document and that Hyden was coming down to the
plant the following day, Sims expressed his indifference whether or not Conlee signed
but reiterated that he "could back . . . [his] truck against the fence and park it"
until he signed. 8
Conlee also testified that in the afternoon of that day (August 3) Sims approached
him and the drivers in the drivers' waiting room and again asked them if they were
ready to sign the "contract" and that when he (Conlee ) replied in the negative Sims
retorted that , whether he signed , he (Sims ) could "fire ... [him ] because he hadn't
received his telegram [ from the Union ], that . .. [Conlee] was the cause of the
whole trouble . . . with the union."
B. L. Reno , Jr., testified that on August 3 , while having coffee with Sims and
Johnnie Howell , a service station operator , at a restaurant called The Pig Stand,
Sims warned Reno , Junior , that the Respondent "wouldn 't go union . They would
park the trucks and have National [ an independent hauler] pull the trailers." Howell
corroborated this testimony.
Reno, Junior, furnished additional testimony concerning another conversation with
Sims which was held about August 5 before the election . He testified , in substance,
that Sims told him that any employee who voted for the Union would be discharged
but those who voted against it would be retained.
Robert Graves , another driver , testified that on August 3, Sims asked him if he
knew who signed cards for the Union and if he knew anything about the Union and
that, after he (Graves ) answered in the negative , Sims remarked to him that he was
going to "get rid of the boys that went union."
Reno , Senior, testified to a promise of a benefit that Sims made a few days before
the election which was concluded on September 24. He testified that Sims told him
about his efforts to get the drivers more money and that , in fact, he had succeeded
in getting them more money but "this here union deal came up , we've got a new
contract worked out in the office already framed ... and if it don't go union, you
boys will make good money."
Testimony was also received relating to other threats made by Sims shortly before
and after the election . Thus, Conlee testified that on a Monday or Tuesday before
the election Sims asked him how he though the election would go and that, when
he (Conlee ) expressed an optimistic opinion in favor of the Union , Sims again
warned that if the Union won, the Respondent would hire National Convoy to pull
the trailers . In addition , Conlee testified that after the election , some time between
October 5 and 12, Sims told him that he thought that Reno, Senior, and Junior, were
his friends but they voted for the Union after all he had done for them and that he
e Although I do not credit Neely's version of his conversation with Reno, Senior, where
in conflict with Reno , Senior ' s account , I later credit Neely ' s testimony relating to the
actual discontinuance of the trucking operations where corroborated by the circumstances.
O The record is not clear where W. B. Kirkland was employed by the Respondent at
that time.
It appears that this document set forth the existing terms and conditions of employ-
ment and provided a place for the driver ' s signature only.
8 Reno, Senior , similarly testified that on August 3 Sims asked him to sign the "contract"
and that no one could haul unless he signed one.
TOWN & COUNTRY MANUFACTURING CO., INC., ETC. 1039
was therefore going to discharge them. Reno, Senior, confirmed Conlee's testimony
regarding Sims' hostility to him. Reno, Senior, testified that a week or so after the
election, Sims came to his home and told him that he thought Reno, Senior, was
a friend but he lied to him (evidently by voting for the Union), and that he was
"out to get" him.
Finally, Robert Graves testified, in substance, that about October 29, Sims in-
formed him about an inquiry he had made of a representative of the Interstate Com-
merce Commission as to whether he could legally discharge an employee for keeping
incorrect logs of his trips. Graves further testified that Sims told him that he was
advised that he could and that incorrect logging would give him a legal excuse
to fire the union boys.
Sims' testimony concerning the foregoing incidents was not convincing. He im-
pressed me as an unreliable witness who was either deliberately evasive or suffered
from a faulty memory. Indeed, the Respondent's counsel conceded in his brief that
Sims certainly was not a strong witness in his own behalf. For this reason, it
would serve no useful purpose to recite Sims' testimony which I discredit. On the
other hand, I find that Conlee, Reno, Senior, Reno, Junior, Howell, and Graves were
truthful witnesses, and find that Sims engaged in the coercive conduct to which they
testified as discussed above.
The Respondent disclaims responsibility for Sims' conduct because he acted con-
trary to the Respondent's instructions and because General Manager Neely recognized
employee rights in a preelection letter to employees dated September 3 and stated
at a meeting with Union Business Representative Hyden and driver Coulee on August
4 that employees were protected by the Act and would not be discharged unless they
violated the Respondent's rules and regulations. The preelection letter in question,
which was relatively lengthy and antiunion in tenor, contained a statement that if
a majority of the drivers voted for the Union, the Respondent would negotiate with
that organization. I find no merit in the Respondent's contention. Not only were
the purported instructions to Sims private and not conveyed to the employees, but
Neely's other statements were plainly insufficient to dissipate the necessary coercive
effects of Sims' conduct, particularly as Neely himself, a top-ranking company official,
also made a similar threat.
In view of the foregoing, I find that the Respondent interfered with, restrained, and
coerced employees in the exercise of their self-organizational rights by Neely's and
Sims' threats to employees that the Respondent would discontinue its trucking oper-
ations in reprisal for their union membership and activity; by Sims' threats to dis-
charge employees because of their union membership and support; by his promise
of benefit to Reno, Senior, if employees voted against the Union in the then scheduled
election; by his interrogation of Graves concerning the identity of employees who
signed union cards; and by his conduct in requiring employees to sign the "Trailer
Delivery Agreement" in the context of his other coercive conduct.
B. Refusal to bargain
As indicated previously, the Union won a Board-conducted election on September
24 and was certified on October 1 as the exclusive representative of all the Respond-
ent's truckdrivers 9 for the purpose of collective bargaining with respect to rates
of pay, wages, hours of employment, and other conditions of employment. The
Respondent admits, and I find, that the foregoing unit is appropriate for bargaining
purposes and that the Union at all material times was the majority representative
of the employees in such unit.
Pursuant to the Union's request, the Respondent, represented by its attorney,
Warren F. Chrisman, and the Union, represented by E. V. Hyden, its business
representative, and Lonnie L. Conlee and B. L. Reno, Jr., truckdrivers then em-
ployed by the Respondent, met on October 19 to discuss a contract . At that meeting
the Union submitted a proposed contract. After preliminary discussions, tentative
agreement was reached on certain nonmonetary items. Chrisman informed Hyden
that the Respondent's trucking operations were then undergoing an audit and re-
quested approximately 10 days for its completion and to submit counterproposals
to the Union, at which time the next meeting would be scheduled. Hyden agreed
to this recess in negotiations.
On October 29, Chrisman wrote Hyden that he had not yet prepared his counter-
proposals because the audit had not yet been completed and because the Respondent
6 Specifically excluded from the unit are carpenters and helpers , electricians , cabinet-
makers, welders, plumbers, painters, laborers, clerical and office employees, guards, watch-
men, and supervisors as defined in the Act , and all others not listed as truckdrivers of
the Respondent employed at its plant.
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was disturbed by the numerous violations of Interstate Commerce Commission
regulations which an investigator had uncovered. Chrisman also indicated that, as
a consequence of such investigation, the • Respondent was seriously considering
terminating its trucking operations and using an independent trucking firm to haul
its trailers. He closed the letter with the statement that the Respondent would "be
very happy to discuss the situation with you at your convenience and furnish you
with any reasonable information that is at our disposal."
Although Chrisman also telephoned Hyden and stated that negotiations were not
closed, the Respondent on November 2 terminated its trucking operations and hired
a common carrier to haul its trailers. In so doing, the Respondent obviously did
not give the Union an opportunity to confer with it before finalizing its action.
In fact, General Manager Neely testified that he contemplated discontinuing the
trucking operations on or about October 28 or 29 but was only waiting for approval
of the board of directors which was given on November 2 or 3.
On November 6, Union Business Representative Hyden sent a letter to Attorney
Chrisman requesting a meeting at which General Manager Neely would be present.
A meeting was held on November 16 without the attendance of Neely who Chrisman
stated had a prior engagement. It is undisputed that at this meeting, Hyden com-
plained about the Respondent's failure to discuss with him the termination of its
trucking operations before it acted; that Chrisman justified its conduct as an exercise
of management 's prerogative to change operations ; and that the meeting closed
with no further negotiations contemplated.
The General Counsel contends, among other things, that the Respondent violated
Section 8(a) (5) of the Act by unilaterally discontinuing its trucking operations with-
out first negotiating with the Union. I agree.
It is settled law that an employers' obligation to bargain in good faith encom-
passes the duty to afford his employees' bargaining agent an opportunity to negotiate
about any contemplated change in any term or condition of employment. 10 Plainly,
the Respondent has not dont so here; instead, under the guise of management pre-
rogative, it presented the Union with a fait accompli, leaving nothing over which
the Union could bargain. Such action was a clear rejection of the collective-bargain-
ing principle and constituted conduct in derogation of the Union's status as the
majority representative of the Respondent's truckdrivers.
Accordingly, I find that the Respondent failed to bargain in good faith with the
Union concerning the termination of its trucking operations within the meaning of
Section 8 (a) (5) and (1) of the Act."
C Alleged discrimination
The General Counsel contends, in substance, that the Respondent's earlier coer-
cive conduct indicates that the Respondent discontinued its trucking department
and the employment of its drivers in reprisal for their union membership and
activities.12 He therefore argues that the Respondent discriminated against the
drivers named in the complaint in violation of Section 8(a)(3) of the Act. The
Respondent, on the other hand, denies that it was motivated by antiunion considera-
tions in abandoning its trucking operations On the contrary, it maintains that it
took this action because of the serious difficulties in which it found itself as a result
of numerous violations of Interstate Commerce Commission regulations uncovered
in an intervening investigation, which subjected it to criminal liability. In addition,
the Respondent urges, as a contributing reason for terminating the trucking depart-
ment, the continuous financial loss it had been sustaining in operating this department
The evidence presented at the hearing establishes the following undisputed facts:
Since at least April 1957, the Respondent had failed to comply with various re-
'° N L R B v. Crompton-highland Mills, Inc, 337 US 217, rehearing denied 337
U S 950).
n J. M Lassinq, et al. d/b/a Consumers Gasoline Stations, 126 NLRB 1041; Brown
Truck and Trailer Manufacturing Company, Inc, et at, 106 NLRB 999, 1000-1002. In
view of my determination herein, I find it unnecessary to consider the General Counsel's
other contention that the Respondent violated Section 8(a) (5) by engaging in surface
bargaining
121n his brief, the General Counsel suggests that the Respondent did not permanently
abandon its trucking operation The evidence clearly establishes the contrary and that
the Respondent sold its trucks For this reason, the present case is distinguishable from
Drennon Food Products Co , 122 NLRB 1353, relied upon by the General Counsel, where
the record showed that Drennon leased 'a certain' manufacturing department to another
company as a temporary expedient 'in its antiunion campaign and retained its right, inter-
est, and control over the leased machinery and the manufacture of the particular product
TOWN & COUNTRY MANUFACTURING CO., INC., ETC. 1041
quirements of the Motor Carrier Safety Regulations prescribed by Interstate Com-
merce Commission 13 Among the more flagrant violations,14 were excess driving,
falsification of logs by the drivers, their failure to keep logs, and improper mainte-
nace of records and supervision of logs by the Respondent. Indeed, the drivers
themselves testified to persistent falsification of logs and excess driving up to the time
the trucking operations were terminated, although they blamed the Respondent's
dispatcher, Sims, for the violations.
It is also clear from the record that, despite the fact that the Respondent was
investigated on several earlier occasions by a representative of the Interstate Com-
merce Commission and was instructed by him as to how to achieve and maintain
compliance with the Commission's requirements, the Respondent failed to do so. It
further appears that matters came to a critical head on October 26 or 27 15 when
a final investigation revealed no improvement in the Respondent's compliance status.
As a result of the violations thus found, the United States district attorney filed a
criminal complaint or information against the Respondent in the United States
District Court for the Western District of Oklahoma about 2 months later.
It is true, as the General Counsel argues, that the Respondent's earlier coercive
conduct casts doubt on the purity of the Respondent's motives for terminating its
trucking operations. However, an inference of discriminatory motivation for such
conduct may not mechanically be drawn but must rest upon an appraisal of the
entire situation.
I have carefully examined all the facts and circumstances in this case and I am
not persuaded that the record establishes that the Respondent was prompted to
terminate its trucking operations by its earlier demonstrated animosity to the Union
rather than by its subsequent difficulties with the Interstate Commerce Commission.
It is not enough to say, as does the General Counsel, that the Respondent's previous
disregard of the Motor Carrier Safety Regulations indicates that its reliance on its
present troubles with the Commission was merely a pretext to rid itself of the
Union. On the contrary, it appears to me that the Respondent's past conduct only
served to aggravate the seriousness of its continuing offenses and to dictate drastic
action. In these circumstances, whether the Respondent's noncompliance with the
Commission's requirements was due to willfulness, indifference, or personnel de-
ficiencies, it is at least lust as reasonable to infer that the Respondent terminated
its trucking operations to avoid further regulation by the Commission and possible
future violations as to infer that the Respondent terminated its trucking operations
to penalize its drivers for their union membership and support.
In reaching the above conclusion, I have considered the Respondent's earlier
coercive conduct. It is noted that, with one exception,hs the threats to discontinue
the trucking operations were made by Dispatcher Sims whose financial interest it
was to maintain the status quo without the Union The record shows that Sims
received as his salary a part of the freight charges based on the distance and type
of trailer hauled by each driver. The evidence also discloses that the truckdrivers
attributed their inability to make a living to what they regarded as Sims' excessive
share of the freight charges and complained to General Manager Neely about this
situation. It is thus apparent that it was to Sims' decided personal advantage to
prevent the drivers from joining or supporting the Union, which some of them in-
vited to bargain on their behalf with the Respondent. In these circumstances,
although the Respondent was responsible for Sims' threats under the doctrine of
respondent superior, nevertheless these threats, under the special facts and circum-
stances of this case, do not necessarily establish a predetermination by the Respond-
ent to abandon the trucking operations in the event the plant became unionized.17
In view of the foregoing, I find that the Respondent did not discriminate against
the truckdrivers named in the complaint who lost their jobs by reason of the dis-
continuance of the trucking operations and that therefore the Respondent did not
13 49 CFR 190 to 196
14 There were other violations at different times involving safety regulations and truck
ownership which the Respondent apparently remedied
1s This was during a recess in contract negotiations between the Union and the
Respondent.
19 The one exception was the isolated threat made by General Manager Neely the day
following receipt of the Union's telegraphic notification that it represented the Respond-
ent's truckdrivers
17 In view of my determination herein, I find it unnecessary to consider the Respondent's
further contention that its sustained financial loss experienced in the operation of the
trucking department contributed to its decision to terminate that department.
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
violate Section 8 (a)(3) of the Act. Accordingly, I shall recommend dismissal of
the complaint insofar as it alleges such a violation.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section 1, 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
of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. However, although I have
found that the Respondent took unilateral action in violation of Section 8(a)(5)
of the Act, I shall not recommend that it be ordered to bargain with the Union on
request as I have also found that the Respondent has not unlawfully terminated its
trucking operations. In the circumstances, it is apparent that an affirmative bargain-
ing order would serve no useful purpose.18
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. Town & Country Manufacturing Company, Inc., and Town & Country Sales
Company, Inc., are employers within the meaning of Section 2(2) of the Act.
2. General Drivers, Chauffeurs and Helpers Local Union No. 886, is a labor
organization within the meaning of Section 2(5) of the Act.
3. All truckdrivers of the Respondent at its Lawton, Oklahoma, plant, excluding
carpenters and helpers, electricians, cabinetmakers, welders, plumbers, painters,
laborers, clerical and office employees, guards, watchmen, and supervisors as de-
fined in the Act, and all others not listed as truckdrivers, constitute a unit appropri-
ate for the purpose of collective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times since September 24, 1959, the Union has been the exclusive repre-
sentative of all the employees in the aforesaid appropriate unit for the purpose of
collective bargaining within the meaning of Section 9(a) of the Act.
5. By unilaterally discontinuing its trucking operations without first bargaining
collectively with the Union as the exclusive representative of the employees in the
aforesaid appropriate unit, the Respondent has committed unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
6. By the foregoing conduct and by engaging in the conduct detailed in sec-
tion III, A, supra, the Respondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed them by Section 7 of the Act and
has thereby committed unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
7. The aforesaid unfair labor practices are unfair labor practices within the
meaning of Section 2(6) and (7) of the Act.
8. The Respondent did not violate Section 8(a)(3) of the Act by discharging the
employees named in the complaint.
[Recommendations omitted from publication.]
18 Of. J. M. Lassing, at at., d/b/a Consumers G asoline Stations, 126 NLRB 1041.
Hoyt Motor Company, Inc. and International Association of
Machinists , Lodge No. 1735, AFL-CIO. Case No. 19-CA-2216.
April 13, 1962
DECISION AND ORDER
On October 27, 1961, Trial Examiner Eugene K. Kennedy issued
his Intermediate Report in the above-entitled proceeding, finding
136 NLRB No. 97.