Southeastern Motor Truck Lines, Inc.

SOUTHEASTERN MOTOR TRUCK LINES, INC. 601 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 Respondents have violated the Act, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectu- ate the policies of the Act. I shall thus recommend, among other things, that the Respondents, jointly and severally, make Loy Gittings whole for any loss of pay suf- fered by reason of the discrimination against him, by payment to him of a sum of money equal to that which he normally would have earned from December 29, 1953, until he would have been laid off absent unfair labor practices, less his net earnings during this period. Back pay shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289. CONCLUSIONS OF LAW Upon these findings of fact, and upon the entire record in the case, I make the fol- lowing conclusions of law: 1. The Respondent Company is engaged in commerce and business activities which affect commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Local 25, International Association of Bridge, Structural and Ornamental Iron Workers, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By its interference with, restraint, and coercion of its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent Company has en- gaged in and continues to engage in unfair labor practices within the meaning of Sec- tion 8 (a) (1) of the Act. 4. By its acceptance of the Respondent Union's determination as to the identity of those who should be permitted to work for it, in the absence of any lawful contractual obligation to accept such a determination, the Respondent Company has engaged in and has continued to engage in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 5. By attempting to cause, and causing, the Respondent Company to discriminate against Loy Gittings, and thus to commit an unfair labor practice within the mean- ing of Section 8 (a) (3) of the Act, the Respondent Union has engaged in and has continued to engage in unfair labor practices within the meaning of Section 8 (b) (2) of the Act. 6. By its restraint and coercion of employees in the exercise of certain rights guar- anteed in Section 7 of the Act, the Respondent Union has engaged in and has con- tinued to engage in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 7. These unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Southeastern Motor Truck Lines , Inc. and Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union No. 327, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL, Petitioner. Case No. 10-RC-2769. May 5,1955 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On May 20, 1954, pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Tenth Re- gion, among the employees in the unit herein found appropriate. At 112 NLRB No. 78. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the conclusion of the election, a tally of ballots was furnished the parties. The tally shows that of approximately 20 eligible voters, 20 cast ballots, of which 10 were for, and 10 were against, the Petitioner. No ballots were challenged and none were void. On May 25, 1954, the Petitioner filed timely objections to the elec- tion, a copy of which was served on the Employer. The objections alleged that the Employer interfered with, restrained, and coerced its employees in the exercise of their rights and that the Employer made threats and promises to its employees, after the election agreement was signed, including such conduct within 24 hours preceding the election. In accordance with the Rules and Regulations of the Board, the Re- gional Director conducted an investigation of the objections and, on June 18, 1954, issued and served on the parties his report on election, objections to election, and recommendations in which he found merit in the Petitioner's objections based on threats and interrogation uttered by the Employer after the execution of the election agreement, and recommended to the Board that the election be set aside and a new election directed. Thereupon, on July 7, 1954, the Employer filed timely exceptions to the Regional Director's report. On September 23, 1954, the Board found that substantial and ma- terial issues had been raised and issued an order directing hearing and on October 26, 1954, a hearing was held in Chattanooga, Tennes- see, before Frank E. Hamilton, Jr., hearing officer. In accordance with the Board's Order, the hearing was limited to "alleged threats and interrogation by the -Employer uttered after the execution of the election agreement." On December 30, 1954, the hearing officer issued and caused to be served upon the parties his report on objec- tions to election. The hearing officer found that by certain conduct the Employer had created a situation and atmosphere in which a free election was impossible and, therefore, recommended that the elec- tion be set aside and a new election directed. On January 26, 1955, the Employer filed exceptions to the hearing officer's report on objec- tions to election. The Board has reviewed the rulings made by the hearing officer at the hearing and finds that no prejudicial error was committed. The hearing officer's rulings are free from prejudice and hereby affirmed. The Board has considered the hearing officer's report, the exceptions, and the entire record in this case, and hereby adopts the fuidings of fact and conclusions of law, and recommendation of the hearing of- ficer, and further finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organization involved herein claims to represent certain employees of the Employer. SOUTHEASTERN MOTOR TRUCK LINES, INC. 603 3. A question affecting commerce exists concerning the representa- tion of certain employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The following employees of the Employer constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All garage employees, namely, mechanics, servicemen, and parts clerks of the Employer at Nashville, Tennessee, excluding all office and office clerical employees, over-the-road drivers, pickup and delivery drivers, warehousemen; checkers and dockworkers, watchmen, guards, and supervisors as defined in the Act. 5. The Employer's conduct preceding the election (after execution of the election agreement) was as follows : The hearing officer relies upon nine incidents 1 in support of his recommendation that the election be set aside : The hearing officer finds that Fleet Superintendent Jacobs interro- gated employee Johnson on the morning of the election and solicited his vote against the Union; interrogated employee Regan on the pay- day preceding the election, calling attention to his raise 2 and the fact that the Company "had not been union," and asking him whether he would change his mind concerning the Union ; interrogated em- ployee Simmons on the Friday preceding the election concerning the Union and the election, calling attention to the raise in his paycheck, and threatening that if the Union won the election he would be out of a job; interrogated employee McCormack a day or two before the election concerning the election, and remarked that the Company had a way to find out how he felt about it; and interrogated employee McMurray a day or two before the election concerning his union sympathies and the need of a union. With respect to Hiett, a shop foreman, the hearing officer finds that he interrogated employee Simmons about a week before the election, threatening to close the body shop if the Union won the election; threatened employee McCormack, a few days before the election that he would be sorry if the Union were successful, that the Employer would "work hell out of the employees," and the practice of permitting the employees to do outside work on their own time would be discon- tinued; and stated to employee McMurray, a few days before the election, that the Employer would discontinue outside work if the shop went union. The hearing officer further finds that on the morning of the election, Swain, the labor relations director and coordinator of operations, 1 In addition , the hearing officer describes the interrogating of other employees than those referred to in these incidents , but does not rely upon them because of unclear testimony or for other seasons not stated. 2 The healing officer does not rely upon various raises given employees prior to the elec- tion as any basis for his recommendation to set aside the election. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stated to employee Regan that it was not too late for the employees to settle their differences at the chair where they were hired, after having previously stated that the place to get a raise without having to go through the Union is "the place where you are hired at." In its exceptions to the hearing officer's report, the Employer argues that, notwithstanding the evidence of its activities, it has not been established that any employee was effectively influenced to vote against the Union. However, it would be manifestly improper to inquire as to whether and why particular employees have voted against a union. The test to be applied is whether an employer's conduct reasonably tends, or is calculated, to interfere with employee rights to such an extent that a free election becomes impossible,3 and we so find. The Employer, in its exceptions, disputes the hearing officer's credi- bility findings, and further maintains that his findings generally are not supported by a preponderance of the evidence. We perceive no basis in the record for reversing any of the hearing officer's credibility findings. In addition, the Employer appears to be contending in effect that the hearing officer failed to assign sufficient weight to cer- tain mitigating aspects of its activities, and that, if the Board would do so, it would conclude, contrary to the hearing officer, that its activi- ties did not prevent a free election. We disagree. Even assuming Em- ployer's version of the evidence, we are satisfied that a free election was not possible. That employees rather than officials may have started certain of these conversations does not serve to alter the fact that there were interrogations and threats. Nor does the Employer's disclaimer to employees of its intention to influence the election 4 and its position that it was planning to make changes in working condi- tions in any event, detract from the interference with the election im- plicit in such interrogations and threats. Accordingly, we find no basis upon which to conclude that the hearing officer's findings are not supported by a preponderance of the evidence. In our view, the evidence clearly establishes that the employees were interrogated by company officials concerning their union sympathy and how they intended to vote at the election, and urged to reject the Union.' Moreover, the Company revealed its firm opposition to a union and threatened the loss of existing benefits if the Union won the election .6 Accordingly, we find that the interrogations conducted by Jacobs, Hiett, and Swain, and their threats to employees, substantially inter- fered with the employees' freedom of choice in the selection of a bar- gaining representative, and made a free choice impossible. We shall, 3 See Syracuse Color Press, 103 NLRB 377, 209 F 2d 596 (C A. 2) ; Blue Flash Empress, Inc, 109 NLRB 591 , Donnelly Garment Company, 50 NLRB 240 4 Graber Manufacturing Co , Inc, 111 NLRB 167 6 Cf General Shoe Corporation, 97 NLRB 499, 502 41 See Rem Company, 111 NLRB 537, cf General Shoe Corporation, supra. AMERICAN BROADCASTING COMPANY, INC. 605 therefore, order that the election be set aside and direct that a new election be held. [The Board set aside the election held on May 20,1954.] [Text of Direction of Second Election omitted from publication.] American Broadcasting Company, Inc.; Columbia Broadcasting System, Inc.; DuMont Television Network Division ; Allen B. DuMont Laboratories, Inc.; National Broadcasting Company, Inc.; General Tele-Radio , Inc.' and Television Authority, affil- iated with * the Associated Actors and Artistes of America, AFL, 2 Petitioner . Case No. 2-RC-2334. May 5, 1955 ORDER DENYING MOTION On February 18,1952, pursuant to a, Decision and Direction of Elec- tions,3 and an election conducted pursuant thereto, the Board issued an amended certification in the above-entitled proceeding, certifying American Federation of Television and Radio Artists as the exclusive representative of the following unit: All persons employed as talent on all live network television pro- grams originating in New York, Chicago, and Los Angeles, and broadcast over the network facilities of the Employers, including actors, masters of ceremony, quizmasters, disc jockeys, singers, dancers, announcers, sportcasters-play-by-play, assistant play- by-play, and colormen-specialty acts, walk-ons, television extras, and all other television performers, but excluding services ren- dered by such performers in the capacity of musician, and talent employed by Columbia Broadcasting System, Inc., in its west coast motion picture productions. On March 30, 1954, ABC filed a "motion to clarify decision and direction of election and certification of representatives," and, on May 26, 1954, the Board directed a hearing on this motion. On vari- ous dates between June 29 and October 14, 1954, the hearing was held before I. L. Broadwin, hearing officer. ABC, AFTRA, and the American Federation of Musicians, herein -called AFM, appeared and 'American Broadcasting Company, Inc, was merged on February 9, 1953, with united Paramount Theaties , Inc, and is now American Broadcasting-Paramount Theatres, Inc. ABC will be used herein to designate this Employer without regard to the time period involved. 2 On September 20, 1952 Television Authority was merged with the American Federation of Radio Artists , and the name of the combined union was changed to American Federation of Television and Radio Artists AFTRA will be used herein to designate the Petitioner in all instances 3 96 NLRB 815. 112 NLRB No. 83.