Tennessee Coach Co.

TENNESSEE COACH COMPANY 677 The dye clerk in the dyehouse: The Petitioner would exclude the ,dye clerk as a professional employee. This employee is the only em- ployee in the plant who has a degree in chemical engineering and he is the only employee who performs work in the laboratory of the dye- house. His primary duties are to determine dye formulae from his experiments and to dye samples from these formulae. In addition, he weighs dyes for dye runs and samples the dye runs. Although the dye foreman decides which colors are to be used, it is conceded that the dye clerk exercises some independent judgment in his work. We think it clear that the dye clerk is at least a technical employee of the type which, in absence of an agreement by parties to permit his inclusion, the Board excludes from production and maintenance units. Without deciding whether or not the dye clerk is a professional em- ployee, we shall, under the circumstances, exclude him as a technical employee.9 In view of the foregoing, we find that all production and mainte- nance employees of the Employer at its Columbus, Georgia, plant, in- cluding the mechanic in the boarding department, the plant clerical in the knitting department, the head cleaner, the needle instructor, and the salesclerk in the "Archer Shop," but excluding office clericals, the dye clerk in the dyehouse, watchmen, guards, full-fashioned knit- ting machine fixers, the assistant foreman of the shipping department, and all other supervisors as defined in the Act, constitute a unit ap- propriate for purposes of collective bargaining within the meaning of Section 9 (b) of the Act. [Text of Direction of Election omitted from publication.] MEMBER RODOERS took no part in the consideration of the above Decision and Direction of Election. BMooreevilie Mills, 90 NLRB No. 48 (not reported in printed volumes of Board Deci- sions- and Orders) ; Detroit Harvester Company, 79 NLRB 1316, 1319; also General Foods Corporation, Northland Dairy Division, 115 NLRB 263. Tennessee Coach Company and Division 1490, Amalgamated As- sociation of Street, Electric Railway and Motor Coach Em- ployees of America, AFL-CIO.' Case No. 10-CA-1918. March 2, 1956 AMENDED DECISION AND ORDER On September 2, 1954, Trial Examiner Sidney Feiler issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor I As the AFL and CIO have merged, we are taking notice thereof and are amending the Union's designation accordingly. 115 NLRB No. 97. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report. Thereafter, the Respondent and the Union filed exceptions to the Intermediate Report and supporting briefs. - On March 22, 1955, the Board issued its Decision and Order herein, adopting the findings of the Trial Examiner that the Respondent had violated Section 8 (a) (5) and (1) of the Act by refusing to bargain with the Union.2 The Board Order directed that the Respondent cease and desist from refusing to bargain with the Union, and in para- graph numbered 1 (b) thereof, enjoined the Respondent from: In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organ- ization, to form or join labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act, or refrain from any and all of 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. On November 9,1955, the Board issued a notice to show cause which proposed to modify the foregoing Order by striking paragraph num- bered 1 (b) therefrom and substituting therefor the following: (b) In any manner interfering with the efforts of Division 1490, 'Amalgamated. Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, to bargain collectively with it in behalf of employees in the appropriate unit. This notice also proposed to change the notices to be posted by the Respondent so as to reflect the foregoing changes in the Order. On November 25, 1955, the Respondent filed its response to notice to show cause. It opposes the proposed change on the ground that (1) there is no finding or evidence in the instant case of "interference" by the Respondent with the efforts of the Union to bargain collectively but only that the Respondent had refused to bargain, and (2) the Board has no authority to modify its Decision and Order sua 8ponte. Re- spondent further urges that, as the Union's certification is more than 1 year old, and as the employees, have repudiated the Union, the Board should-not.now require the Respondent to bargain with the Union but should direct a new election. As to the Respondent's first contention, the Trial Examiner found no independent violation of Section 8 (a) (1) of the Act. He did, however, find in his "Conclusions of Law" that, by refusing to bargain 2 111 NLRB 1045 TENNESSEE COACH COMPANY 679• with the Union, the Respondent violated Section 8 (a) (1) as well as 8 (a) (5) of the Act. This finding of a derivative violation of Sec- tion 8 (a) (1), which was adopted by the Board, is in accord with well-settled Board and court precedent, the rationale therefor being that an employer's refusal to bargain with the representative of his employees necessarily discourages and otherwise impedes the employ- ees in their efforts to bargain through their representative. It is this derivative violation of Section 8 (a) (5) which the proposed new language of paragraph numbered 1 (b) of the Order is designed to, remedy, and we believe it is appropriate for that purpose.' As to the Respondent's second contention, Section 10 (d) of the Act provides as follows : Until a transcript of the record in a case shall have been filed in a court . . . the Board may at any time, upon reasonable notice- and in such manner as it shall deem proper, modify or set aside, in whole or in part, any finding or order made or issued by it. As the transcript of the record in the instant proceeding has not been filed in any court, the proposed modification of the Order herein is clearly authorized by the foregoing language of the statute 4 The statute makes no distinction between modification of an Order by the Board sua sponte or upon motion of a party. We likewise find no merit in the Respondent's last contention.' We shall, therefore, modify the Order and notice to employees to read as follows : . 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, Tennessee Coach Company, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing upon request to bargain collectively with Division, 1490, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO, as the exclusive represen- tative of all its systemwide bus operators and maintenance employees, excluding all office and clerical employees, terminal employees, watch- men,,guards, professional employees, and supervisors as defined in the Act. (b) In any manner interfering with the efforts of Division 1490, Amalgamated Association of Street, Electric Railway and Motor See N L R B v Express Publishing Company, 312 U. S 426, 438. See National Carbon Division, Union Carbide and Carbon Corporation and National Carbon Company, Inc, 104 NLRB 416; At Massera, Inc , et at, 101 NLRB 837 E See N. L. R B v Waiien Company, Inc., 350 U S 107; Ray Brooks v. N. L R. B., 348 U. S 06 ,680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 'Coach Employees of America, AFL-CIO, to bargain collectively with it in behalf of employees in the appropriate unit. 2. Take the following affirmative action which the Board finds will -effectuate the policies of the Act : (a) Upon request bargain collectively with the aforesaid Union as representative of its employees in the appropriate unit described above with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment, and if an understanding is reached, -embody such understanding in a signed agreement. (b) Post at its offices and terminals in Knoxville, Tennessee, and in all other terminals and offices used by employees in the appropriate unit, copies of the notice attached hereto marked "Appendix." 8 'Copies of said notice, to be furnished by the Regional Director for the Tenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive -days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, defaced, or cov- ered by any other material. (c) Notify the Regional Director for the Tenth Region in writing, -within ten (10) days from the date of this Order, as to what steps it has taken to comply herewith. MEMBERS MURDOCK and BEAN took no part in the consideration of the above Amended Decision and Order. 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." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT refuse a request to bargain collectively with Divi- Sion 1490, Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO,- as the ex- clusive representative of all employees in the bargaining unit described below with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of em- ployment. The bargaining unit is: TRANSPORT COMPANY OF TEXAS, ETC. 681 All our systemwide bus operators and maintenance em- ployees, excluding all office and clerical employees, terminal employees, watchmen, guards, professional employees, and supervisors as defined in the Act. WE WILL NOT in any manner interfere with the efforts of the above-named Union to bargain collectively with us, or refuse to bargain with the said Union, as the exclusive representative of the employees in the bargaining unit set forth above. WE WILL upon request bargain collectively with the above- named Union as the exclusive representative of all employees in the bargaining unit above described and if an understanding is reached embody it in a signed agreement. All our employees-are free to become or remain or refrain from be- coming or remaining members of the above-named Union, or any other labor organization. TENNESSEE COACH COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Transport Company of Texas and Transport Company, Inc. and Truck Drivers Local Unions Nos. 657, 968, 577, 941, 568 and 47, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America, AFL-CIO. Case No. 39-CA- 449. March 5.1956 DECISION AND ORDER On September 22, 1955, Trial Examiner Henry SS. Sahm issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in and was not engaging in any unfair labor practices and recommending that the complaint be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. 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 ' The briefs of the Respondent Companies were in support of the Intermediate Report and of the exceptions which were to be considered if the Boaid did not affirm the Trial Examiner. 115 NLRB No. 100.