Alamo Express, Inc.

ALAMO EXPRESS , INC. AND ALAMO CARTAGE CO., INC. 89 Alamo Express, Inc. and Alamo Cartage Co., Inc. and General Drivers, Warehousemen & Helpers Local Union 968 and Gen- eral Drivers & Helpers Local Union No. 657, Joint Petitioners. Case No. 23-RC-1328. April 7, 1960 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted on June 11, 12, and 13, 1959, under the direction and supervision of the Regional Director for the Sixteenth Region, among the employees in the agreed-upon unit. Following the election, the Regional Director served upon the parties a tally of ballots which showed that, of approximately 294 eligible voters, 273 cast valid ballots, of which 114 were for and 159 were against the Joint Petitioners; 50 ballots were challenged; and 4 cast void ballots. The Joint Petitioners filed timely objections to conduct affecting the results of the election. The Regional Director thereafter investigated the challenges and objections and, on August 6, 1959, issued and duly served upon the parties his report and recommendations on challenged ballots and objections to election, and a correction thereto dated August 18, 1959. In his report the Regional Director recommended that 10 of the chal- lenges be sustained, and found it unnecessary to resolve the remaining challenges since they could not affect the results of the election; he further recommended that objections Nos. 2 and 5 be sustained and that the election be set aside and a new election held. The Employer filed timely exceptions only to the Regional Director's findings with respect to objections Nos. 2 and 5. The Board, after duly considering the matter, decided that the issues raised by objections Nos. 2 and 5 and the Employer's exceptions could best be resolved by a hearing. Accordingly, on September 11, 1959, the Board ordered that a hearing be held before a hearing officer to resolve such issues and referred the matter to the Regional Director for the Twenty-third Region for the purpose of conducting such hear- ing.' Pursuant thereto, a hearing was held on October 20 and 21,1959, before Joseph H. Solien, hearing officer. All parties appeared and participated at the hearing. The parties were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. 1 As no exceptions were filed to the Regional Director's findings and recommendations as to the challenged ballots and objections Nos. 1, 3, 4, and 6, the Board adopted his recommendations pro forma. 127 NLRB No. 14. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On November 19, 1959, the hearing officer issued his report on objec- tions to election in which he concluded that the Employer, by the acts described in objection No. 2, engaged in conduct which had the effect of interfering, restraining, and coercing employees in the exercise of their free choice of a bargaining agent.2 He therefore recommended that the election be set aside. Thereafter, the Employer filed timely exceptions to the hearing officer's report.' The Joint Petitioners filed limited exceptions thereto. 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 Rodgers and Bean]. The Board has reviewed the rulings made by the hearing officer at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. As stipulated by the parties, the following employees of the Em- ployer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All over-the-road drivers, city pickup and delivery men, dockmen, helpers, checkers, and mechanics at all of the Employer's Texas ter- minals, excluding office clerical employees, guards, watchmen, solici- tors, and supervisors as defined in the Act. 5. In his report, the hearing officer found that statements alleged in objection No. 2 to have been made to employees prior to the election by Henry Walker, manager of the Houston terminal, and James McNamara, sales manager, were in fact made by them and had a sufficient impact on the election to warrant setting it aside. The Employer excepted to the hearing officer's credibility findings and to conclusions as to the conduct of Walker and McNamara. How- ever, in our opinion, the exceptions raise no issues which would war- rant reversal of the hearing officer's findings and conclusions in these 2 Objection No 2 stated that during the period of time between the signing of the stipulated consent election agreement and the holding of the election , company officials engaged in illegal, individual, interrogation of employees , intimidating them against voting for the Joint Petitioners ; telling them that It made no difference if the Union won, that the Employer would never sign a union contract ; and telling the employees that if the Union won , the employees could look for other jobs and that the Company would go out of business. 3 The Employer also requested oral argument As the record and briefs adequately reflect the issues and positions of the parties, the request is denied. ALAMO EXPRESS, INC. AND ALAMO CARTAGE CO., INC. 91 respects.' We therefore adopt the hearing officer's recommendation to set aside the election on this basis. The hearing officer also found that the conduct of the Employer's solicitors or salesmen in making statements of similar purport to employees at the Houston terminal, while not attributable to the Employer, nevertheless, when considered in conjunction with the campaign carried on by the Employer's supervisors at this and other terminals, created a general atmosphere of confusion or fear of re- prisal such as to render impossible the free and untrammeled choice of a bargaining representative. The Employer, in its exceptions, contends that the issue as to the solicitors was outside the scope of the hearing, and that, in any event, as they were rank-and-file em- ployees and their statements could not be attributed to the Employer, their conduct did not constitute a basis for setting aside the election. The Joint Petitioners, in their limited exceptions, urge the Board to find that the solicitors were acting as agents of the Employer. We find, as did the hearing officer, that this conduct came within the scope of objection No. 2. However, we disagree with the hearing officer's conclusion that the solicitors' conduct was not attributable to the Employer.' In view of the record evidence that the solicitors were not employees within the unit; that shortly before the election they attended a meeting of officers and supervisors of the Employer at San Antonio at which the election campaign was discussed; that there- after they engaged in the coercive talks with the employees at the Houston terminal, which followed the same pattern as the antiunion campaign pursued by top management; that the solicitors engaged in such talks within sight of supervisors and officials of the Employer; and that one of such talks was joined in by Aycock, the Employer's general manager, we find that the coercive activity of the solicitors was an integral part of the Employer's antiunion campaign. Ac- cordingly, we conclude that this conduct was an additional basis for setting aside the election." [The Board set aside the election.] [Text of Direction of Second Election omitted from publication.] 4 We reject the Employer's contention that the statements found to have been made were isolated and without effect upon the election . We note particularly McNamara's testimony that he had similar talks with practically every man that worked on the dock for the Employer at Corpus Christi , Brownsville, Harlingen , Weslaco, McAllen , and other terminals 5 Member Bean finds it unnecessary to decide this issue . In his view, it is sufficient that the election was conducted in a general atmosphere of confusion and fear of re- prisal such as to render impossible the 'free and untrammeled choice of a bargaining representative. ° See L. C Ferguson and E. F. von Seggern, d /b/a Shovel Supply Company, 121 NLRB 1485. In view of your finding, we need not consider whether the rationale used by the hearing officer to supportithis conclusion is correct.