United Transports, Inc.

"668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain , or refrain from becoming or remaining, members of the above-named Union, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. PEASE OIL 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. United Transports, Inc. and Reece N. Smith and General Drivers, Salesmen and Warehousemen's Local Union No. 984, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America, Party to the Contract General Drivers, Salesmen and Warehousemen's Local Union No. 984, International Brotherhood of Teamsters , Chauffeurs, Ware- housemen and Helpers of America and Reece N. Smith and United Transports, Inc., Party to the Contract . Cases Nos. 32-CA-596 and 32-CB-50. April 8, 1959 DECISION AND ORDER On October 31, 1958, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in and were engaging in certain unfair labor practices, and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondents had not engaged in certain other un- fair labor practices as alleged in the complaint and recommended that these allegations of the complaint be dismissed. Thereafter, the General Counsel and the Respondent Union filed exceptions to the Intermediate Report and the latter filed a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with these cases to a three- member panel [Chairman Leedom and Members Bean and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the modifications noted be- low., 1In addition to the cases cited by the Trial Examiner In finding a violation of Sec- tion 18(b) (1) (A), we rely on Bernhard-Altmann Texas Corporation, 122 NLRB 12'99, 123 NLRB No. 60. UNITED TRANSPORTS, INC. ORDER 669 Upon the entire record in these cases and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that : A. The Respondent, United Transports, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Assisting or contributing support to Local 984 or to any other labor organization of its employees. (b) Recognizing Local 984, or any successor thereto, as the repre- sentative of its shop employees and auto checkers for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said labor organization shall have demonstrated its status as the majority representative of the aforesaid employees pursuant to a Board-conducted election. (c) Giving effect to the agreement of June 11, 1957, covering the shop employees and auto checkers, or to any superseding agreement, renewal, extension, or modification thereof, between the Company and the said labor organization. (d) Interfering with, restraining, or coercing its employees in any like or related manner, in the exercise of the rights guaranteed in Sec- tion 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold recognition from Local 984, or any successor thereto, as the representative of the shop employees and auto checkers at its Memphis terminal for the purpose of dealing with the Company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said organization shall have demonstrated its status wherein a majority of ithe Board held that the union's execution and maintenance of a contract recognizing it as exclusive representative of the employees involved, although it did not in fact represent a majority, violated that section of the Act. The General Counsel has excepted to the failure of the Trial Examiner to recommend that the Respondent Union be ordered to (a) cease and desist from interfering with the rights of employees under Section 7 of the Act (including the right to refrain from such activities) by picketing for recognition as exclusive bargaining representative when it does not represent a majority of the employees for whom recognition is sought and (b) cease and desist from restraining or coercing employees in any like or related manner. As such provisions are in keeping with the Board's usual remedy under present circum- stances, we shall so provide in the order herein. In addition, we shall order the Respond- ent Union to cease acting as exclusive bargaining representative of the shop employees and auto checkers until it shall have demonstrated its exclusive majority status pursuant to a Board-conducted election. See Bernhard-Altmann, supra. We shall also change the Trial Examiner's recommended "broad" order as to the Company to a "narrow " order. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as majority representative of the aforesaid employees pursuant to a Board-conducted election. (b) Post at its terminal in Memphis, Tennessee, copies of said notice attached hereto marked "Appendix A." 2 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by the Respondent Company be posted by it immediately upon receipt thereof, and maintained by it for 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. (c) Post at the same places and under the same conditions as set forth in (b) above, and as soon as they are forwarded by the Regional Director, copies of the Respondent Union's notice herein, marked "Appendix B." (d) Notify the Regional Director for the Fifteenth Region in writ- ing, within 10 days from the date of this Order, what steps the Respondent Company has taken to comply therewith. B. The Respondent, General Drivers, Salesmen and Warehouse- men's Local Union No. 984, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, its officers, rep- resentatives, agents, successors, 'and assigns, shall : 1. Cease and desist from : (a) Picketing for recognition as exclusive bargaining agent at a time when it does not represent a majority of the employees for whom recognition is sought. (b) Acting as the bargaining representative of the shop employees and auto checkers of United Transports, Inc., for the purpose of deal- ing with said Company concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment, unless and until said Union shall have demonstrated its status as ma- jority representative of such employees pursuant to a Board-con- ducted election. (c) Giving effect to the agreement of June 11, 1957, covering the shop employees and auto checkers, or to any superseding agreement, renewal, extension, or modification thereof. (d) In any like or related manner, restraining or coercing em- ployees of United Transports, Inc., in the exercise of the rights guar- anteed in Section 7 of the Act, including the right to refrain from engaging in any or all of the activities guaranteed thereunder, except to the extent that such rights may be affected by an agreement requir- ing membership in a labor organization as a condition of employment as authorized in Section 8(a) (3) of the Act. 2 In the event that this Order is enforced by a decree of a United State 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." UNITED TRANSPORTS, INC. 671 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post in conspicuous places at its business office, meeting halls, and all places where notices to its members are customarily posted, copies of the notice attached hereto marked "Appendix B." 3 Copies of said notice, to be furnished by the Regional Director for the Fifteenth Region shall, after being duly signed by an official repre- sentative of Local 984, be posted by the latter immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (b) Mail to the Regional Director signed copies of Appendix B, for posting by the Respondent Company at its Memphis, Tennessee, terminal, as provided above. Copies of said notice to be furnished by the Regional Director, after being signed by the Respondent Union's representative, shall be forthwith returned to the Regional Director for disposition by him. (c) Notify the Regional Director for the Fifteenth Region in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the complaint, insofar as they allege unfair labor practices not found herein be, and they thereby are, dismissed. MEMBER FANNING, concurring : I agree with my colleagues that the Respondent Employer violated Section 8(a) (1) and (2) of the Act by executing a contract on June 11, 1957, with the Respondent Union covering shop employees and auto checkers at a time when the Union did not represent a majority of these employees. I concur in the further conclusion that the Respondent Union violated Section 8(b) (1) (A) of the Act. My reasons for reaching this conclusion are, however, entirely different from those upon which the majority relies. As I have previously stated in several dissenting opinions (Andrew Brown Company, 120 NLRB 1425; Machinery Overhaul Company, Inc., 121 NLRB 1176), I do not believe that Section 8(b) (1) (A) was intended by Congress to prohibit peaceful picketing for recognition by a minority union. My views in this respect have recently been affirmed by the Court of Appeals for the District of Columbia, Drivers, Chauffeurs and Helpers Local 639, etc. (Curtis Brothers) v. N.L.R.B., 43 LRRM 2156. For reasons stated in my dissenting opinion in Bernhard-Altmann Texas Corporation, 122 NLRB 1289, I would not find that the mere execution of a collective- bargaining agreement by a minority union is similarly violative of this section of the Act. In the instant case, however, the Respondent a See footnote 2, supra. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union was party to a contract containing a union-security provision which required the Employer "to recommend" that all employees be- come members of the Union, that they maintain such membership, and that delinquent members pay their dues. The provision also re- quired the Employer "to refer" new employees to the Union. The "referral" of a new employee to the union steward or the "recom- mendation" that an employee become a member of a union, when made by his employer, can hardly be said to be that of an impartial or friendly observer. Such referral or recommendation carries with it the weight of the employer's economic power to terminate employ- ment or refrain from employing. In my opinion, this union-security provision was a thinly veiled requirement that all employees become and remain members of the Union. At no time was the Union the statutory representative of the shop employees and auto checkers and the contractual provision, in any event, exceeded the bounds of a lawful union-security clause. Accordingly, I find that the Union by executing an unlawful union-security provision restrained and coerced employees in violation of Section 8(b) (1) (A) of the Act. APPENDIX A 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 Labor Manage- ment Relations Act, we hereby notify our employees that : WE WILL NOT give effect to, perform, or in any way enforce our agreement dated June 11, 1957, with General Drivers, Salesmen and Warehousemen's Local Union No. 984, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, covering the shop employees and auto checkers, or any superseding agreement, extension, renewal, modification or sup- plement thereto, unless and until the latter labor organization shall have demonstrated its status as majority representative of such employees in a Board-conducted election. WE WILL withdraw and withhold all recognition of Local Union No. 984, or any successor thereto, as the representative of the aforesaid employees unless and until it shall have demon- strated its status as their majority representative pursuant to a Board-conducted election. WE WILL NOT interfere with the formation or administration of any labor organization or contribute financial or other support to it. WE WILL NOT, in any like or related manner, interfere with, re- strain, or coerce our employees in the exercise of the rights guar- anteed in Section 7 of the Act. UNITED TRANSPORTS, INC. 673 All our employees are free to become, remain, or refrain from be- coming, members of any labor organization, except to the extent that. this right may be affected by agreements in conformity with Section- 8 (a) (3) of the National Labor Relations Act. UNITED TRANSPORTS, INC., 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. APPENDIX B NOTICE TO ALL EMPLOYEES OF UNITED TRANSPORTS, INC., AND TO MEbI- BERS OF GENERAL DRIVERS, SALESMEN AND WAREHOUSEMEN'S LOCAL. UNION No. 984, INTERNATIONAL BROTHERHOOD OF TEAMSTERS,, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA Pursuant to a Decision and Order of the National Labor Relations. Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby give notice that : WE WILL NOT picket for recognition as exclusive bargaining agent at a time when we do not represent a majority of the em- ployees for whom recognition is sought. WE WILL NOT act as the bargaining representative of the shop. employees and auto checkers of United Transports, Inc., unless. and until we have demonstrated in a Board-conducted election, that we represent a majority of such employees. WE WILL NOT give effect to the agreement of June 11, 1957,. covering the shop employees and auto checkers, or to any renewal,, extension, or modification thereof. WE WILL NOT in any like or related manner restrain or coerce employees of United Transports, Inc., in the exercise of the rights. guaranteed in Section 7 of the Act, including the right to refrain from engaging in any or all of the activities guaranteed, thereunder. GENERAL DRIVERS, SALESMEN AND WARE- HOUSEMEN'S LOCAL UNION No. 984, IN- TERNATIONAL BROTHERHOOD OF TEAM- STERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, Labor Organization.. 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... 508889-60-vol. 123- 44 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended, 61 Stat. 136 (herein called the Act), was heard in Memphis, Tennessee, on August 4 to 7, and October 13, 1958, pursuant to an order of con- solidation and due notice to all parties. The complaint in Case No. 32-CA-596 alleged that the Company had violated Section 8(a)(1) and (2) of the Act. The complaint in Case No. 32-CB-50 alleged that the Respondent Local 984 had violated Section 8(b) (1) (A) of the Act. In its answer, the Company admitted the truth of all the allegations of the General Counsel and averred that it had been compelled to follow the course of conduct in question because of the coercive tactics of Local 984. In its answer, the Respondent Union denied the commission of any unfair labor practices. All parties were represented at the hearing by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevent evidence, to argue orally and to file briefs. A motion by Local 984 to dismiss, made at the close of the hearing, was taken under advisement. It is dis- posed of as appears hereinafter in this Report. Subsequent to the hearing, Local 984 submitted a brief which has been fully considered. On September 4, 1958, the Board having issued its decision in Ra-Rich Manu- facturing Corporation, 121 NLRB 700, on August 28, 1958, the Trial Examiner issued an order reopening the record, vacating all rulings made at the hearing re- garding the production of pretrial statements of the General Counsel, directing the General Counsel to make available to counsel for Respondent Union such pre- trial statements as came within the rule of the aforesaid case and permitting the latter party to move for a reopening of the hearing. Pursuant to a clarification of this order, issued on September 12, 1958, the Respondent Union moved to reopen the hearing. This motion was granted and on October 13, 1958, the hearing was reopened for this purpose. All parties were represented and counsel for the Re- spondent Union was afforded an opportunity to cross-examine those witnesses for the General Counsel whose pretrial statements had been denied him at the original hearing in August and whom he desired to interrogate further. At the close of this hearing all counsel present indicated that they did not desire to file any further briefs or memoranda. None have been submitted.' From my observation of the demeanor of the witnesses, and upon the entire record in the case, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY United Transports, Inc., a Delaware corporation, has its principal office and headquarters in Oklahoma City, Oklahoma, and terminals located in Tennessee, Ohio, Missouri, and Texas. The annual gross receipts of the Company approximate $3,000,000 of which in excess of 90 percent is derived from the transport of new automobiles in interstate commerce. Upon the foregoing facts the parties concede, and I find, that the Respondent Company is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 984, the Respondent Union, is a labor organization within the meaning of the Act. 1 Prior to the reopening of the hearing. on October 13, 1958, the General Counsel sub- mitted a lengthy motion to correct the transcript and the Respondent Union filed a motion in opposition thereto. Before the close of the hearing on October 13, and after the views of counsel as to the proposed corrections had been solicited, the motion of the General Counsel was granted in all but certain limited respects. This ruling appears in the transcript but the motions of the General Counsel and the Respondent Union do not. In order that the record be complete, copies of the motion of the General Counsel to correct the transcript and of the motion of the Respondent Union in opposition have been marked as Trial Examiner's Exhibits Nos. 11 and 12, respectively, and have been placed in the exhibit file of the case. UNITED TRANSPORTS, INC. 675 III. THE UNFAIR LABOR PRACTICES A. Background and sequence of events For several years Local 984 has been the bargaining agent for the drivers ( number- ing approximately 200) employed by the Company at its terminal in Memphis, Tennessee, the scene of the principal incidents involved in the present proceeding. Prior to May 1957, however, the 43 shop employees, 3 billing clerks (or office employees ) and 3 auto checkers ( or yard employees ) had no such representative and were unorganized . On about May 10, 1957,2 R. A. Farrell, president of Local 984, wrote to R. C. Cunningham , president of the Company, to demand that the latter recognize the Teamsters as bargaining agent for a unit consisting of the "yard employees , billing clerks , filing clerks [ and] auto checkers" at the Memphis terminal . By letter, dated May 13, the Company replied that it doubted the majority status of Local 984 in the above-described unit and suggested that the representation question be resolved by resort to the formal procedures of the National Labor Relations Board. In a letter , dated May 27, the Union stated that it was willing to prove its majority status in a unit of the "yard employees and office employees" by a card check or private election but that it would not agree to a Board election. By letter dated June 3, the Company stated to the Union that, because of doubts both as to the majority status of Local 984 and the appropriate- ness of the unit requested , it would insist on a Board election. On the afternoon of June 6, Farrell .visited the office of Terminal Manager John 0. Wigley, and announced that the Union was going to strike the Company and picket the premises . With this declaration Farrell left the building and proceeded to the street where pickets began to patrol the entrance to the company offices. When this occurred the three auto checkers in the Company 's employ 3 left their jobs and joined the pickets . A few minutes later Wigley went out on the street and engaged Farrell in a brief conversation . Upon asking Farrell why the Union had called a strike, the latter told Wigley that it was because of the Company's refusal to bargain . When Wigley reminded him that the Company had offered to have the Labor Board hold an election , Farrell answered "I am not going to have an NLRB election." For the next 24 hours the pickets patrolled only the office entrance to the terminal premises. During this period their placards read as follows: On strike United Transport Yard and Office employees, for better wages, hours, and working conditions , Teamsters Local 984, Memphis Tenn. [Emphasis supplied.] About midnight on June 7, or early on June 8, a picket line was also posted at the shop entrance to the terminal . For a short while the placards carried by those pickets read: On strike United Transport Yard and Office employees and shop employees for better wages, hours and working conditions. Teamsters Local 984, Memphis Tenn. [Emphasis supplied.] Sometime during the course of the following day, however , the signs carried by the pickets at the shop entrance were changed so that throughout the balance of the picketing some of the placards referred only to the shop personnel , and others referred only to the yard and office personnel . Not all of the pickets were working for the Respondent Company. There was credible and uncontradicted testimony that at least 2 of them were nonemployees .4 On June 11, the Company requested a meeting with the Union. That afternoon John O. Wigley and James Wrape, the latter being general counsel of the Company, met with Farrell. At the outset of the conference Wrape told Farrell that the Company was ready to sign a contract covering the auto checkers and billing clerks. Farrell then announced that unless the agreement also included the 43 shop employees as well as the checkers and clerks, Local 984 would not remove the picket line. This was the first demand for recognition that the Teamsters had made as to the shop employees. Wrape had not been authorized to negotiate an agreement for any 2 Unless otherwise noted all the events relevant to this matter occurred in 1957. S These were Riley E . Brown, Coleman V. Bartholomew , and Harold H. Lane. `This finding is based on the credited testimony of Reece N . Smith, Homer P. Mitchell, and Lathel K. Ball. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees other than the car checkers and billing clerks and immediately asked Farrell whether the Teamsters represented a majority of the shop employees. Farrell conceded that he did not know whether his union had such a majority but that in no event would the picket line be withdrawn until the Company signed a contract which included the shop employees. Mr. Wrape also testified, credibly and without contradiction, that at this point Farrell further stated that he would not agree to any kind of an election. The company representatives then conferred by telephone with President Cunningham who authorized them to sign an agreement which in- cluded the shop employees within its coverage. Both Wigley and Wrape testified that they did not think that Local 984 represented a majority of the shop employees, but that they acquiesced in the Teamsters' demand because the Company faced economic destruction if the picketing continued.5 In any event, the Company and Local 984 then signed an agreement covering the shop employees and the auto. checkers. In addition to a provision granting exclusive recognition to the Re- spondent Union as the bargaining agent of the aforesaid employees and other terms common to a collective-bargaining agreement, this contract also had a clause which,. because of the Tennessee prohibition on a union shop, read, in relevant part, as, follows: Article I. Union shop and Dues Section 1(f) In those instances where subsection (b) hereof may not be validly applied, the Employer agrees to recommend to all employees that they become: members of the Local Union and maintain such membership during the life: of this Agreement, to refer new employees to the Local Union representative, and to recommend to delinquent members that they pay their dues since they, are receiving the benefits of this contract. At the same time that the parties executed the foregoing agreement, Wigley signed' a letter granting the Union exclusive recognition of the billing clerks. A final agree- ment as to this latter group was not reached for some time. Mr. Cunningham testified, credibly and without contradiction, that the Union refused to agree that the billing clerks be included under the coverage of the contract for the shop em- ployees and auto checkers, and that, as a result, after negotiating about the matter for several months, on September 5, 1957, the parties signed a rider to their agree- ment covering the truckdrivers at the Memphis terminal pursuant to which the billing clerks would be subject to that contract. Both Cunningham and Wigley testified, however, that in practice all the terms and conditions of the agreement covering the auto checkers and shop employees have been applied to the billing clerks. That afternoon Local 984 withdrew all of its picket lines including not only those at the Memphis terminal but also others which it had established at the Company's headquarters in Oklahoma City and at the United terminals in St. Louis and Houston. The following day the Company distributed a written statement to all of its shop employees and auto checkers wherein it informed them as to the terms of its agree- ment with the Teamsters. President Cunningham and Mr. Wigley testified that since that time the Company has complied with all the terms and conditions of its contracts covering the aforementioned employees. Early in 1958, these con- tracts were reopened for wage negotiations and, as a result, revised rates were- embodied in agreements which were effective on March 1, 1958. Except for the changes as to wage scales, however, all of the other provisions remained as they were in the earlier contracts. Furthermore, the shop employees and the auto. checkers remained under one agreement and the billing clerks were again included under the coverage of the contract for the truckdrivers. B. The question of majority; contentions of the parties; analysis of the evidence and' conclusions with respect thereto On June 11, 1957, Local 984 did not represent a majority of the 49 employees covered by the agreements signed on that date. The General Counsel called as, witnesses some 35 of these individuals. From their testimony and the evidence in r, Wigley and Wrape testified that at this time the Company had over 1 ,000 new auto- mobiles at the Memphis terminal awaiting delivery by the Respondent Company to points in Texas , New Mexico, and Arizona and that on June 11, additional automobiles were about to arrive at the river dock and add to the already overcrowded conditions of their facilities . Moreover, that same day the chancery court in Memphis had denied a company petition for injunctive relief on the ground that the Tennessee State courts lacked juris- diction in the matter. UNITED TRANSPORTS, INC. 677 the record it is apparent , and I find, that prior to June 12 , 1957, only 18 employees in the categories involved here had signed cards authorizing the Respondent Union to represent them. These were the 3 billing clerks ,6 the 3 auto checkers ,7 and 12 of the shop employees .8 The remaining 31 employees, all of whom worked in the shop, had not signed cards. After the Company announced on June 12 that it had signed an agreement with Local 984, many of the shop employees who had not signed cards made a deter- mined effort to dislodge the Teamsters as their bargaining agent. Thus, on June 12, Reece N. Smith and Homer P. Mitchell, two of the lead mechanics , drafted a petition which stated that the signatories "do not want [the] union forced upon us by Co. or union officials." This petition was circulated both during and after working hours and the signatures of 35 of the 43 employees in the shop were obtained . Smith then took the petition to James Younger, an attorney in Memphis to seek his advice. Mr. Younger suggested that the petition be revised and reexecuted so that it could be used to support •a decertification proceeding. The revised petition read as follows: We, the undersigned employees of the United Transport , Inc., Memphis, Tennessee, do not wish Local Union No. 984 , International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, to represent us for the purposes of collective bargaining on wages, hours and other conditions of employment. Smith thereupon circulated the foregoing document among his coworkers and on this occasion secured the signatures of 36 of the shop employees .9 Shortly there- after some 36 of the shop employees paid $7.50 each as their share of counsel fees in the drive to oust Local 984 as their bargaining agent. On June 25 , 1957, Smith filed a decertification petition with the Regional Office of the Board. On about October 15, 1957, this petition was withdrawn. The Respondent Union contends that these petitions were inspired by the Company in that Smith and Mitchell , as lead mechanics , have supervisory status. The Company denied that there was any basis for such a conclusion . According to Wigley, the terminal manager , the lead mechanics 10 work under Lacy Crump, the shop superintendent, and when Crump is not present they take orders from the traffic supervisor on duty. There was no evidence that they have the power to hire, transfer, suspend, lay off, recall , promote, discharge , assign, reward or disci- pline any of the employees, or effectively to recommend such action. The lead mechanics work in the shop along with the other mechanics, but because of their greater experience , they have, as part of their duties , the obligation to assist the younger and less experienced repairmen . Wigley denied that they have the au- thority to direct the work of the other employees . He testified that the lead Le., Willie V. Rhodes, William E . Willard, .and Ted H . Williams. I.e., Coleman V . Bartholomew, Riley E . Brown, and Harold H. Lane. 8-I.e., Alton C. Brown , Gaylon D. Douglas , Clyde G. Edwards, H. F. Miller, Jesse J. Partee, Thomas C. Pugh , James L . Pierce, Carroll D . Ruth, Grover L. Shepherd , Bernard S. .James , Ellis E. Cooper, and Harold E. Evans. 8 The General Counsel called many witnesses to -testify as to the circumstances under which these petitions were signed . After 10 of these witnesses had testified and had been cross-examined at great length by counsel for the Respondent Union, counsel for the General Counsel stated that he intended to call many other witnesses on the same issue, but that in order to expedite the hearing 'and shorten the record he proposed that the parties agree on a stipulation which he then submitted . The latter contained a pro- vision, among others , that each of 27 named employees would testify , if called, that subsequent to June 11, 1957 , they had signed the two petitions which Smith and Dixon circulated and also had made a contribution to defray the legal expenses in connection with an -attempt to have Local 984 decertified. The General Counsel, the Company, and the Charging Party joined in the stipulation , but the Respondent Union, while expressing agreement with certain clauses , refused to join in this particular provision. Because the Trial Examiner was of the opinion that the testimony as to all issues with respect to these petitions had -reached the point where further testimony would be cumulative and needlessly burden the record , the stipulation was received in evidence , notwithstanding the objection of the Respondent Union . Borg-Warner Corporation, 113 :NLRB 152, 154, affd. -as to this point, sub nose., International Union, United Automobile, Aircraft and Agricultural Implement Workers of America v . N.L.R.B., 231 F. 2d 237, 242 (C.A. 7), cert. denied 352 U . S. 908. "I There were three . In addition to Smith and Mitchell, Cordell Dixon was also a lead mechanic . All three signed the petitions. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mechanics could assign work only to the extent that they relay to the employees the assignments which are made either by the traffic supervisor on duty or the shop superintendent. They are paid on an hourly basis, punch a time clock and receive 10 cents per hour more than the journeymen mechanics. No supervisors are covered by the collective-bargaining agreement with Local 984 but the lead mechanics are included within its scope and the Union has never objected to this coverage. The testimony of the three lead mechanics, all of whom were cross-examined at length on their duties and responsibilities, was in accord with the foregoing. On the other hand, there was some testimony that the lead mechanics were regarded as foremen by several of the rank and file in the shop. Harold F. Miller, a me- chanic, testified that on one occasion when Crump moved him to another shift that the superintendent told him that Dixon "would be the boss." Billy C. Parks testi- fied that at the time he was hired Crump told him that Smith would be his "boss." Gaylon Douglas testified that when he first went to work Crump told him that Smith and Dixon would be his superiors. Both Smith and Dixon, however, denied that either Crump or anyone else had ever introduced them to the new men as their "boss" or foreman. During the period in question Miller, Parks, and Douglas were all apprentices who had been hired shortly before the strike. There was an obvious tendency on the part of some of the newly hired shop employees to' regard all of the older and more experienced personnel as their supervisors.. Thus, Grover Shepherd who was hired in March 1957 as a greaseman and who described Smith as the "mechanic foreman," also referred to the billing clerk on duty during his shift (who was plainly a rank-and-file employee) as his superior and one from whom he took orders. Regardless of whether some of the employees thought that the lead mechanics were their foremen, the crucial question is whether the latter actually had the power responsibly to direct their fellow employees. On the basis of the foregoing findings it is my conclusion that even though some of the shop employees may have considered the lead mechanics as their supervisors, the record does not establish by a preponderance of the evidence that the latter actually had the authority responsibly to direct their coworkers "in the exercise of that independent judgment requisite to supervisory capacity." Stokely Foods, Inc. v. N.L.R.B., 193 F. 2d 736, 739 (C.A. 5). Since they admittedly had none of the other attributes of a supervisor as defined by Section 2 (11) of the Act, in substance, the authority to hire, discharge, promote, demote or effectively to recommend such action, it is my conclusion that the lead mechanics were employees and not super- visors within the meaning of the Act. Osbrink Mfg. Co. V. N.L.R.B., 218 F. 2d 341, 344 (C.A. 9); Precision Fabricators v. N.L.R.B., 204 F. 2d 567, 568-569' (C.A. 2); N.L.R.B. v. North Carolina Granite Corporation, 201 F. 2d 469, 470, (C.A. 4); and N.L.R.B. v. Beaver Meadow Creamery, Inc., 215 F. 2d 247, 251 (C.A. 3). The General Counsel contends that at no time prior to June 11, 1957, did Local 984 represent a majority of the shop employees, auto checkers, and billing clerks. The Respondent Company concedes that this was true and pleads that the threat of economic disaster which the Teamsters' picket line foreshadowed had compelled it to acquiesce in the demands of Local 984. At the hearing, counsel for the Respondent Union endeavored to prove that the unit which Local 984 had desired and which it had requested on June 11, 1957, was a unit consisting of all the com- pany employees in the Memphis terminal, viz, truckdrivers, as well as shop em- ployees, auto checkers, and billing clerks. The record, however, does not contain a scintilla of evidence to support this contention. The record is clear, and I find, that the Teamsters, by letter dated May 10, 1957, demanded recognition as the majority representative in a unit of "yard employees, billing clerks, filing clerks [and] auto checkers." This demand was renewed in subsequent correspondence. On June 6 the picket line was at first established only at the office entrance where the six employees in the unit requested were employed. Not until some 36 hours had passed was a picket line stationed at the shop entrance. On June 11, Farrell de- manded recognition of Local 984 as the majority representative of not only the 6, billing clerks and auto checkers but of the 43 shop employees as well. This was the first time the latter group was included in the union demand. Moreover, both- Wrape and Wigley testified that at no time during this conference did Local 984 seek to broaden the unit further by making a claim to represent a majority of all the employees in the iterminal. It is significant that subsequently, when Mr. Farrell was called to the stand, counsel for the Respondent Union asked him no questions as to his demands at the conference on June 11. On this record, there- fore, it is my conclusion that at no time during the period in question did Local 984 demand that the Company bargain with respect to a unit made up of all the employees at the Memphis terminal. The contention to this effect which the Respondent UNITED TRANSPORTS, INC. 679 Union made at the hearing was obviously an afterthought, totally lacking in evidentiary support.ii In its brief the Respondent Union contends that, in addition to a unit made up of all the employees at the Memphis terminal, various other groupings of the three categories of employees here involved would be appropriate. These alternatives, as set forth in the Union's brief, would be a unit of: (1) the drivers and mechanics, or (2) the yard and office employees, or (3) the yard employees, or (4) the office employees. Here, again, such argument is based on afterthoughts rather than the facts, for the bargaining history set forth in the record reveals that, apart from No. 2, above, none of the other suggested units served as the basis upon which the Union demanded recognition from, or bargained with, the Company. As found earlier, in May 1957, the Union demanded recognition as the bargaining agent of the yard and office employees (or of the car checkers and billing clerks as they are known throughout the record). On June 11, however, Local 984 demanded recognition as to the mechanics and shop personnel as well. The parties thereupon signed two agreements, one a complete contract covering the shop employees and the auto checkers, and the other a memorandum of agreement in which the Company recognized the Union as the majority representative of the billing clerks. The latter group was subsequently included under the agreement covering the truckdrivers by a rider signed on September 5, 1957. There has also been subsequent bargaining on the same unit basis, for in 1958 a new contract covering the shop employees and the auto checkers, to be effective on March 1, was executed. At about this time another contract was agreed upon for the over-the-road truckdrivers and, again, the billing clerks were included under this latter agreement. In view of the above findings as to the bargaining history between the Company and Local 984 it is unnecessary to consider the appropriateness of such a multitude of possible units as the Respondent Union proposes in its brief since, with the one exception noted above, none of the others actually served as the basis for any of its demands or any of the bargaining between the parties. At the same time it should be noted that the complaint of the General Counsel in Case No. 32-CA-596 assumes that the Respondents bargained as to a unit of shop employees, auto checkers and billing clerks. From the foregoing, however, it is apparent that for bargaining purposes, the Union and Company have treated the shop employees and auto checkers as one unit and the billing clerks and truckdrivers as another. The only issue as to the billing clerks, therefore, is whether the Respondents violated their rights under Section 7 of the Act when these employees were included within the coverage of the agreement negotiated for the truckdrivers. The drivers at the Memphis terminal had been represented by Local 984 for many years, but the billing clerks had never had any representation. The latter was plainly a fringe 'group which, pursuant to the holding of The Item Company, 113 NLRB 67, was entitled to a representation election on the question of whether the employees therein should be in the same unit with the drivers. Although it is true that the billing clerks were never accorded an opportunity at a Board election to express any preference on whether they cared to be covered by this contract, it is also clear that all three of them had signed authorization cards in Local 984 prior to June 11. Under these circumstances it does not appear that there was any violation of their rights of self- determination which the Act guarantees when the Respondents brought them under the existing agreement covering the truckdrivers at the terminal. The Item Com- pany, supra. See also Mohawk Business Machines Corporation, 116 NLRB 248,. 249.12 The history of the Respondents' bargaining as to the shop employees and the auto checkers, set out above, establishes that the parties treated these two categories as one unit. In its brief, the Respondent Union does not argue that this grouping of the employees constitutes an appropriate unit. Apart from this issue and assuming the appropriateness of such a unit, it is clear that Local 984 did not represent a majority of the shop employees and auto checkers when the Respondents executed u It should be noted that, in any event, the Board customarily excludes mechanics from a unit of truckdrivers because the interests, duties, and conditions of employment of the former are so different from those of the latter. Maas Brothers, Inc., 119 NLRB 568; Vanadium Corporation of America, 117 NLRB 1390, 1393 ; Jocie Motor Lines, Inc., 112 NLRB 1201, 1203-1204; Helms Motor Express, Inc., 107 NLRB 132, 134; Gate City Transit Lines, Inc., 81 NLRB 79, 80-81. "The Board's usual practice, however, is to consider billing clerks as office employees and exclude them from a unit of drivers. Helms Motor Express, Inc., 107 NLRB 132, 135 ; Associated Wholesale Grocers, Inc., 92 NLRB 542, 543. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the original contract of June 11, 1957. At that time there were 46 individuals so employed at the Memphis terminal and of this number only 15 had signed authoriza- tion cards in Local 984.13 The Respondent Union contends, however, that on June 8, 25 employees did not cross the picket line and that the majority status of Local 984 was thereby established. Even if this figure as to the number who honored the picket line on that day was accurate, and an examination of the record establishes that it is not,14 the Board has held that participation in strike activities is not determinative of the question as to the number of employees whom a union represents. Thus, in McGough Bakers Corporation, 58 NLRB 849, 853 (modified as to another point and enfd., 153 F. 2d 420 (C.A. 5)), the Board stated: In our opinion, the Union's striking and picketing activity did not conclusively settle the existing question concerning representation of the Respondent's employees. The failure of those employees, who were scheduled to work for the respondent during the brief period of the strike, to cross the picket line in front of the plant entrance does not necessarily mean that their participation in the strike indicated selection of the Union as collective bargaining repre- sentative. Employees may, and frequently do, refuse to cross the picket lines for reasons wholly unrelated to the merits of the particular labor dispute involved or to union membership and preference; often, for example, they are motivated by fear of personal violence, social ostracism, or being termed "scabs." It was necessary that the Union represent a majority of the employees of the Company in an appropriate unit for collective bargaining before the Respondents ,could execute a valid contract. From the foregoing findings it is apparent that Local 984, did not represent an uncoerced majority of the shop employees and auto •checkers or have a representative status as required by the Act at the time it executed the agreement,of June 11, 1957, with the Company.15 I so,find. For the Company to execute a collective-bargaining agreement with Local 984 when the latter did not represent an uncoerced majority of the shop employees and auto checkers and then -comply with its .terms constituted powerful support and assistance to the Respondent Union which is proscribed by the Act. The execution of such a contract with a minority union constituted even more significant support here because of those provisions, with which the Company admittedly complied, whereby the Employer agreed (1) to recommend to all employees that they become and remain members of Local 984, (2) to refer new employees to the business agent of the latter, and (3) to recommend to delinquent members that they pay their dues. By such conduct the Respondent Company violated Section 8(a)(1) and (2) of the Act. N.L.R.B. 'v. Gottfried Baking Co., Inc., 210 F. 2d 772 (C.A. 2); Red Star Express Lines of Auburn, Inc. v. N.L.R.B., 196 F. 2d 78, 81 (C.A. 2); Dixie Bedding Manufacturing Company, 121 NLRB 189; Coast Aluminum Company, 120 NLRB 1326; Max Factor and Company, 118 NLRB 808, 812-814; Atlantic Freight Lines, Incorporated, 117 NLRB 464, 470-471; Local 229, United Textile Workers of America, AFL-CIO, (J. Radley Metzger Co., Inc.), 120 NLRB 1700; County Electric Co., Inc., 116 NLRB 1080, 1081-1082; Robbie Shoe Corp., 113 NLRB 314, 316-317. 12 The -names of these 15 employees appear in footnotes 7 and 8, supra. Even if the 3 lead mechanics were excluded from the unit, as the Respondent Union contends, Local 984, with only 15 authorizations out of the remaining 43 employees, would still not have a majority. u It is true that, according to General Counsel's Exhibit No. 9, 25 of the shop, yard, and office personnel were not at work on Friday, June 8. Included within this number, however, was one (C. H. Holland) who was on vacation at the time, another (Vernal Williams) who was on a leave of absence to handle some personal affairs, four (Lathel K. Ball, M. L. Cordell, Homer P. Mitchell, and Reece N. Smith) who itestified that they had 'been absent that Friday because it was one of their regular days off, and six others •(T. A. Barber, O. B. McCandless, Lawrence Poole, Bobby Reddin, Dewel R. Spencer, and Arthur R. Wilcox) who credibly testified that they had crossed the picket line and re- ported for work on every day during that period when they had been scheduled to do so rand who, for this reason, may also be presumed to have remained at home because they had had the day off and not because they had chosen to honor the picket line. 15 Throughout the term of this agreement and that of the superseding contract signed in 1958, the latter of which is still in effect, there is no evidence that the Union ever attained the requisite representative status. From the record it appears that Local 984 had its greatest strength among the shop employees and auto checkers in January 1958. Even then, however, it had secured only 21 authorization cards from these employees, UNITED TRANSPORTS, INC. 681 The General Counsel contends that the Respondent Union, by its picketing for recognition, at a time when it did not represent a majority of the employees involved, violated Section 8(b)(1) (A ). As seen earlier herein, for a short while after the Union inaugurated the picketing its placards referred only to the billing clerks and auto checkers. This was plainly permissible for at the time it represented 100 percent of the employees in those two categories . On the night of June 7, however, the Union added a picket line at the shop entrance and thereafter changed its signs to include the shop employees within its demands. Furthermore , picket lines were also established at the company location in other cities . Finally, on June 11, it demanded that the Company include the shop employees in the new contract as the price it would exact for removal of the picket lines . The Union's .tactics forced the Company to capitulate and, as a result , the latter recognized Local 984 as the bargaining agent for the billing clerks and signed a contract covering a unit made up of auto checkers and shop employees. Since at that time Local 984, as found herein, was not the freely selected choice of a majority of the employees in the latter unit, the picketing which the Respondent Union conducted was coercive and a violation of Section 8(b)(1)(A). I so find. Shepherd Machinery Company, 119 NLRB 320. The object of the picketing as borne out by the chain of events described in this record was to compel the Company to recognize Local 984 even though the latter was a minority union . In so doing, Local 984 compelled the Company to commit an unfair labor practice. "This is not the kind of activity that the Act intends to protect." Curtis Brothers, Inc., 119 NLRB 232. The coercive character of this conduct forced the Respondent Company to execute an illegal bargaining agreement with Local 984 and thus compel its shop employees and auto checkers to be represented by a union which only a minority of their coworkers desired. This constituted restraint and coercion of the employees and in so doing the Respondent Union violated Section 8(b)(1)(A). Alloy Manufacturing Com- pany, 119 NLRB 307; Shepherd Machinery Company, supra; Curtis Brothers, supra. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in connection with the operations of the Company described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening nand obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondents have engaged in and are engaging in unfair labor practices I will recommend that they cease and desist therefrom and take. certain affirmative action designed to effectuate the policies of the Act. Since I have found that the Respondent Company, in violation of Section 8 (a) (1) and (2 ) of the Act, unlawfully assisted and contributed support to the Respondent Local 984, the effects of this interference, as well as the Company's continued recognition of that union as the bargaining representative of its shop employees and auto checkers constitute an obstacle to the free exercise by those employees of their right to self-organization and to bargain collectively through representatives of their own choosing. Further, having found that the Respondent Local 984 secured the foregoing contract after having violated Section 8 (b) (1) (A) of the Act by picketing for recognition of the aforesaid employees at a time when it did not represent a majority thereof and was neither the certified nor the statutory representative, I will recommend that the Company withdraw recognition from the Respondent Union as the representative of the shop employees and auto checkers and that the Company and Local 984 cease giving effect to the agreement dated June 11, 1957, covering those employees as well as all superseding agreements,16 renewals , exten- sions, or modifications thereof, unless and until Local 984 shall have demonstrated its exclusive majority representative status pursuant to a Board -conducted election among the aforesaid employees of the Respondent Company. Bowman Transporta- tion, Inc., 120 NLRB 1147. Nothing in this recommendation should be taken, how- ever, to require the Company to vary those wage, hour, and other substantive features of its relations with the employees themselves , if any, which the latter has established in the performance of this agreement. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: 11 As this word is used hereinafter , it specifically includes the contract , effective March 1, 1958 , covering these employees , which the parties executed in 1958. (682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. The Respondent Company is engaged in commerce and the Respondent Local '984 is a labor organization , all within the meaning of the Act. 2. By executing, maintaining , and enforcing the contract with Local 984 dated June 11, 1957, as well as the superseding agreement which was effective on March 1, 1958, the Respondent Company has given material aid and support to the Respondent Union and has violated Section 8(a)(2) and (1) of the Act. 3. By picketing for recognition of the shop employees and the auto checkers at the Company's Memphis terminal at a time when it was neither the majority representative, nor the certified or statutory bargaining agent of the aforesaid employees, Local 984 has violated Section 8(b)(1)(A ) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] International Shoe Company and United Shoe Workers of America, AFL-CIO, Petitioner. Case No. 14-RC-3482. April 8, 1959 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election, nan election was held under the direction of the Regional Director on October 16, 1958, among the employees at the Employer's Salem, Mis- 'souri, plant. Upon the conclusion of the election, a tally of ballots was issued and served upon the parties. The tally showed that, of 412 eligible voters, 182 voted for, and 187 voted against, the Petitioner, 3 ballots were void, and none of the ballots were challenged. On October 20, 1958, the Petitioner filed timely objections to con- duct affecting the results of the election. The Regional Director caused an investigation to be made of the Petitioner's objections, and on January 21, 1959, issued his report in which he found that the objections of the Petitioner did not raise substantial and material is- sues with respect to the conduct of the election. However, the Re- gional Director did find, in the course of his investigation, that the Employer had engaged in other described conduct which interfered with the conduct of the election and he recommended that the election be set aside and a new election directed. Thereafter, the Employer duly filed exceptions to the Regional Director's report. Upon the entire record in this case, the Board I finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner is a labor organization claiming to represent em- ployees of the Employer. 1 Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its 'powers in connection with this case to a three-member panel [Chairman Leedom and Members Bean and Jenkins]. 123 NLRB No. 83.