American Manufacturing Co. of Texas

AMERICAN MANUFACTURING COMPANY OF TEXAS 815 In view of all the foregoing, and on the basis of the entire record, it appears that the T & D supervisors are primarily concerned with the transmission of power from the Employer's generating plants to its customers, and that their other duties are merely incidental to this function, and are routine and not indicative of supervisory status re- quiring the use of independent judgment. In these circumstances, we find that the T & D supervisors are not supervisors within the meaning of the Act. Nor can we find that the T & D supervisors are managerial em- ployees. Although they receive a salary as compared to the hourly wages of field personnel, and although their fringe benefits are some- what higher than those of other employees, there is no evidence that they participate in the formulation of the Employer's policy matters or in any other manner qualify as managerial employees.6 As we have herein found that the transmission and distribution su- pervisors are neither managerial employees nor supervisors within the meaning of the Act, we shall include them in the unit heretofore found appropriate. ORDER IT IS HEREBY ORDERED that the certification issued in the above- captioned proceeding be, and it hereby is, clarified by specifically including in the unit all transmission and distribution supervisors. 6 The Connecticut Light and Power Company, supra. American Manufacturing Company of Texas and Local 47, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Case No. 16-CA-1386. Novem- ber 8, 1962 DECISION AND ORDER On February 6, 1961, Trial Examiner Robert E. Mullin issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. He also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint and recommended that these particular allegations be dismissed. There- after, the Charging Party and the Respondent filed exceptions to the Intermediate Report. The General Counsel also filed exceptions to the Intermediate Report together with a supporting brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The 139 NLRB No. 57. 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions, the brief, and the entire record in this case, and finds merit in certain exceptions of the General Counsel and of the Charging Party and accordingly adopts the findings, conclu- sions, and recommendations of the Trial Examiner only to the extent that they are consistent with the findings, conclusions, and order here- inafter set forth. 1. The Trial Examiner, found, and we agree, that the Respondent violated Section 8(a) (1) of the Act by Transportation Foreman Phifer's encouraging the drivers to negotiate directly with the Re- spondent rather than through the Union, by promises of efforts to secure a pay increase if the drivers would repudiate the Union, and by interrogation of employees as to their union affiliation in the con- text of threats that the Respondent would discontinue its trucking operations and sell its trucks if the drivers organized. 2. The Trial Examiner also found, and we agree for the reasons stated by him in his Intermediate Report, that the Respondent un- lawfully refused to recognize and bargain with the Union on April 14 as the representative of the employees in an appropriate unit-i.e., the "over-the-road drivers, city drivers and helpers." We find no merit in Respondent's claims that it had a bona fide doubt as to the Union's majority status and the unit the Union sought to represent. As to the Union's status, we note that Respondent's plant superintend- ent told Barnett, who was transportation foreman at the time the Union undertook its organizational campaign , that the Union had signed up all the drivers "lock, stock and barrel." We also note that Barnett's successor, Phifer, was told by several employees that nearly all of the drivers had signed authorization cards . We think it is clear that the Respondent did have knowledge of the Union's majority status. The record also refutes the Respondent 's assertion that it had a good- faith doubt about the composition of the unit. The Respondent here relies principally upon the following facts and contentions : (1) The Union's letter of April 11, 1960, requested recognition in a unit of all over-the-road and city truckdrivers employed at the Respondent's Fort Worth plant, while the Union's representation petition filed with the Board on this same date contained no such limitation; (2) the filing and processing of the representation petition evidenced the existence of a question concerning representation, therefore, there was no duty to bargain until that question was resolved by the Board; (3) at the representation hearing the Union reserved for its brief its final position on the composition of the unit ; (4) the unfair labor practice charge filed by the Union gave still another description of the unit-this being "employees at its Fort Worth plant, in its Trans- portation Department"; and (5) there is a variance between the unit AMERICAN MANUFACTURING COMPANY OF TEXAS 817 set forth in the complaint and the one described in the Union's letter of April 11, i.e., the letter includes "city drivers" while the complaint excludes them. Concerning the failure of the petition specifically to limit the unit to employees at the Fort Worth plant, it would not appear that this could have resulted in any confusion on the Respondent's part since, as the Trial Examiner found, all "over-the-road" drivers were stationed at this plant. Respecting the second item, the Board has held that the pendency of a representation petition does not furnish an employer with a defense to a refusal-to-bargain charge where the employer engaged in unlawful conduct (as did the Respondent here) to under- mine the Union's majority status.' As to the remaining three items, we need only note that recognition should have been accorded on April 14 in the unit described in the April 11 letter and received on April 14. The subsequent insubstantial variations on the requested unit are not available as a defense to the prior refusal to bargain? Accordingly, we find that by refusing to recognize and bargain with the Union on April 14, the Respondent violated Section 8(a) (5) and (1) of the Act. 3. The Trial Examiner did not find, as urged by the General Coun- sel, that the Respondent's discontinuance of its trucking operations and the termination of the drivers violated Section 8 (a) (3) and (1) . Instead the Trial Examiner determined that the Respondent's para- mount objective in eliminating its trucking operation was to avoid the sanctions of the Interstate Commerce Commission, and that the Gen- erail Counsel failed to established that the termination of the drivers violated Section 8 (a) (3). We disagree. Admittedly, as the Trial Examiner found, the Respondent during the period material here was in serious difficulties with the ICC, but the issue here is not whether the Respondent may have had a legiti- mate business reason for deciding to end its trucking operation; rather, the issue is whether that decision was motivated by this legiti- mate reason or by union animus. In our view, the preponderance of the evidence establishes that it was the latter that prompted the Re- spondent's actions.3 As noted in the Intermediate Report, shortly after receiving the Union's request for recognition, the Respondent replaced its trans- portation foreman with Lum Phifer. Although the claimed reason for giving Phifer this job was to secure compliance with ICC regula- tions, the record shows that Phifer neither ordered nor insisted upon 3 See, e.g., Rural Electric Company, Inc., 130 NLRB 799, 805 ; Laabs, Inc, 128 NLRB 374. a Laabs, Inc., supra. $ In finding, contrary to the Trial Examiner , that the Respondent was unlawfully moti- vated, we have not disturbed his credibility resolutions . Our disagreement is with his inferences and legal conclusions. 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD maintenance of daily drivers' logs. On at least one occasion, Phifer directed a driver to ignore the log-keeping requirements. We believe the real reason for Phifer's transfer to the foreman position was to defeat the drivers' efforts to obtain union representation. Thus, the record shows that Phifer's predecessor was told by Respondent's plant superintendent that Phifer was being given the transportation foreman's job because Respondent's president thought Phifer could break the Union's hold. Phifer's subsequent conduct evidences that such was the purpose of his move because, on becoming foreman, he immediately began a series of unlawful actions directed against those drivers who had signed union cards. As noted above, Phifer, among other things, threatened that the Respondent would discontinue its trucking operations and sell its trucks if the drivers organized. As also noted in the Intermediate Report, on May 17 General Manager Lott assembled the over-the-road drivers and announced a wage change and outlined a new trucking practice of doubling up- i.e., the assignment of two drivers to one truck, one to drive and one to rest. At this May 17 meeting, Lott warned the employees of the consequences of unionization. Lott stated that they had come to a fork in the road, that if the employees took the right-hand road, the Company would give all that the Union could offer, that if they took the left-hand road they would be fallowing the union course. Lott stated that the Company was not afraid of strikes-that it had rid itself of two unions before. Lott also stated that some of the drivers were too old to go out and get another job, and that if the Company ceased to make money on its trucks it would sell them. While the ostensible purpose of the May 17 changes was to obtain compliance with ICC regulations and at the same time satisfy cus- tomer requirements, the record demonstrates that Phifer did not there- after insist that the drivers keep daily logs. Again, as noted in the Intermediate Report, on April 1, Lott's attorney advised Respondent to discontinue its trucking operation and use a common carrier. On April 20, Lott arranged for a common carrier to transport products manufactured for the U.S. Government. But he made no effort at that time to ascertain whether all of the Respondent's products could be transported by a common carrier. The Respondent's delay in this regard negates the claim that the prime consideration for the June 17 decision to use a common carrier was the avoidance of ICC sanctions. When viewed against the background of Respondent's abortive campaign to defeat the Union, it is apparent that the real concern of the Respondent was the avoidance of dealing with the Union. Finally, it must be pointed out that the Respondent had been in trouble with the ICC before the period material here. In the past, the Respondent had not considered it necessary to end its trucking AMERICAN MANUFACTURING COMPANY OF TEXAS 819 operation to solve its problems. We consider it no coincidence that this time there was a union on the scene. The clear inference is that it was the presence of the Union that prompted the June 17 decision to terminate. For the foregoing reasons, we find, contrary to the Trial Examiner, that the termination of the trucking operation and the employment of the drivers was motivated by antiunion consideration and, there- fore, was in violation of Section 8(a) (3) and (1) of the Act. 4. We also agree with the Trial Examiner's finding that the Re- spondent further violated Section 8(a) (5) and (1) by its May 17 unilateral changes in terms and conditions of employment.4 5. We similarly agree with the Trial Examiner, and for the rea- sons stated in Town & Country Manufacturing Company, Inc., et al.,' that the Respondent's discontinuance of its trucking department with- out first discussing this matter with the Union was also violative of Section 8(a) (5) and (1).e THE REMEDY We have found that the Respondent discontinued its trucking oper- ation and discharged its drivers for reasons violative of Section 8(a) (3) and (1). To remedy this unlawful conduct, we shall direct that the Respondent resume its trucking operation and offer to all discharged drivers reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges. We shall also order that Respondent make them whole for loss of earnings suffered because of its discrimination against them.' Such loss of pay shall be computed on the basis of separate calendar quarters in accordance with the policy enunciated in F. W. Woolworth Company, 90 NLRB 289, and shall include an allowance for interest at 6 percent per annum to be computed in the manner set forth in Isis Plumbing ci Heating Co., 138 NLRB 716.$ We have also found that the Respondent unlawfully refused to recognize and bargain with the Union in a unit of over-the-road and city drivers. It appears from the unit description in the complaint that the Union would have the Board direct bargaining in a unit limited to over-the-road drivers and excluding city drivers. We find, 4 Rural Electric Company, Inc , supra. 6136 NLRB 1022. See also Fibreboard Paper Products Corporation, 138 NLRB 550 "Member Leedom agrees that Respondent violated Section 8 ( a) (5) of the Act in this respect, but only because he also finds , supra, that Respondent discontinued its trucking operations and terminated its drivers for discriminatory reasons See footnote 10 of Town & Country Manufacturing Company , Inc., supra. ' In accordance with the policy recently adopted by the Board , there shall be no tolling of backpay for the period between the issuance of the Intermediate Report and the Order herein A .P W Products Co, Inc, 137 NLRB 25 8 Member Leedom , for the reasons set forth in his dissenting opinion in Isis Plumbing, supra, would not direct the payment of interest on the backpay award. 672010-63-vol. 139 53 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as did the Trial Examiner, that a unit excluding city drivers is also an appropriate unit. In these circumstances, and to remedy the violation found, we shall direct bargaining in the smaller unit. We have further found that Respondent violated Section 8(a) (5) and (1) by certain unilateral changes, including the termination of its trucking operation, without bargaining with the Union over its decision to do so. We shall, therefore, order that Respondent cease and desist from making unilateral changes in the terms and condi- tions of employment of its over-the-road drivers without consulting their designated bargaining representative. As stated above, because we have found that Respondent violated Section 8(a) (3) and (1) in discontinuing its trucking operation and terminating its drivers, we are directing that Respondent resume that operation and reinstate its drivers. Even assuming, however, that the discontinuance of the operation was for nondiscriminatory reasons and the discharges not violative of Section 8 (a) (3), we would, in order to fully remedy the violation of Section 8(a) (5), direct resumption of the operation and reinstatement of the drivers with backpay 9 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, American Manu- facturing Company of Texas, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with Local 47, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all over-the-road truck drivers employed at the Respondent's plant in Fort Worth, Texas, excluding all janitors, guards, clerical employees, city drivers, yard drivers, supervisors, and other employees; and from unilaterally changing their wages and other terms and conditions of employment without prior consultation with the above-named Union of any other labor organization which they may select as their exclusive bar- gaining representative. (b) Discouraging membership in the above-named or any other labor organization of its employees by discharging any of its em- ployees or otherwise discriminating in regard to their hire or tenure of employment or any term or condition of employment. (c) Threatening employees to discontinue any operations or depart- ments or to discharge any of them or to take other reprisals because 0Town & Country Manufacturing Company, Inc ., supra; Fibreboard Paper Products Corporation, Supra. As reflected in his views expressed in the Town & Country case, Member Leedom subscribes to this Order only because of the finding that Respondent also violated Section 8 (a)(3). AMERICAN MANUFACTURING COMPANY OF TEXAS 821 of their membership in, or activities on behalf of, Local 47, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization. (d) Promising employees wage increases or other benefits if they withdraw their support from Local 47, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. (e) Coercively or otherwise unlawfully interrogating employees concerning their union activities or the identity of members or sup- porters of Local 47, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization. (f) In any other manner interfering with, restraining, or coercing its employees in the exericse of their right to self-organization, to form labor organizations, to join or assist Local 47, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- certed aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Local 47, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive representative of all over-the-road drivers in the aforesaid appropriate unit, and if an understanding is reached, embody such understanding in a signed agreement. (b) Resume trucking operations with its own employee drivers and offer to the employees listed in the notice marked "Appendix" imme- diate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay suffered by them in the manner set forth in the section above entitled "The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amount of back- pay due, and the rights of the employees under the terms of this Order. (d) Post at its plant in Fort Worth, Texas, copies of the attached notice marked "Appendix." 1° Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be main- 10 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 " 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tained by it for a period of 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to insure that said notices are not altered, dofaced, or covered by any other material. (e) Notify the Regional Director for the Sixteenth Region, in writing, within 10 days from the date of this Order, what steps Re- spondent has taken to comply herewith. MEMBER RODGERS, dissenting in part: I do not agree that Respondent's termination of its trucking opera- tion was unlawfully motivated and violative of Section 8(a) (3) of the Act; nor do I agree that the termination violated Section 8 (a) (5) of the Act. Respecting the Respondent's reasons for terminating the trucking operation, the record establishes the following : 2 years before the in- stant matter, the Respondent was convicted, fined, and placed on probation for failure to comply with Interstate Commerce Commis- sion regulations requiring its driver employees to make and keep drivers' daily logs. On March 30, 1960, when an agent of the Inter- state Commerce Commission called at the Respondent's plant to inspect its drivers' logs, no such logs were available for inspection because Re- spondent had not been keeping any. However, in an effect to secure compliance with this Interstate Commerce Commission requirement, the Respondent, on the following day, posted a notice requiring drivers to henceforth maintain daily logs. The Respondent also contacted its attorneys about the matter. They advised that the Interstate Com- merce Commission sanctions might be mitigated were Respondent to discontinue its trucking operations and use, instead, a common carrier. This advice was not heeded at the time, however, because the Re- spondent's customers were demanding immediate delivery of certain oil-rigging equipment, and the Respondent did not then know of a common carrier that could satisfy its requirements. After the above notice was posted, one of the drivers contacted the Charging Union herein. Union activity then began. During the following months, the Respondent patently attempted to work out the problems which arose from the Interstate Commerce Commission investigation. For one thing, General Manager Lott made arrangements whereby, effective April 20, the transportation of shell casings, manufactured by the Respondent for the U.S. Govern- ment, were delivered to their destination by a common carrier. Lott also sought to work out an arrangement whereby the Respondent would lease its trucks to its drivers, but discarded the plan on advice of counsel because of problems which the plan would cause. Lott next, on May 17, established a new operating procedure whereby two drivers were assigned to one truck, one to drive and one to rest. This proce- AMERICAN MANUFACTURING COMPANY OF TEXAS 823 dure, however, proved doubly unsuccessful. It did not supply cus- tomers fast enough; nor did it receive driver acceptance, because driving time was cut, wages were consequently diminished, and rest periods were inadequate. Sometime after the middle of May, Lott located a common carrier suitable to all the needs of Respondent's business. Lott then, on June 17, concluded an agreement with this common carrier for the transportation of its products. On the following day, he discontinued the Respondent's entire transportation department, terminating the employment of all employees therein save that of several drivers with seniority in other plant divisions who accepted transfer. The Re- spondent subsequently sold at a bona fide auction its 12 vehicles as well as all other equipment in its transportation department, including its stock of repair parts. The above sequence of events convinces me that the decision to use a common carrier was motivated by legitimate economic considerations. First, the Respondent's difficulties with the Interstate Commerce Commission were real and pressing, making it imperative that the Respondent find some solution to that problem. At the same time, it was also imperative that the Respondent provide its customers with fast delivery of its products. The actions taken by the Respondent were entirely consistent with its aim of achieving both compliance with Interstate Commerce Commission regulations and its customers' requirements. Thus, it was not the presence of the Unon which moved the Respondent to contract out its trucking work. It was, in fact, the inability of the Respondent to find a way to conduct its trucking operation economically and at the same time comply with In- terstate Commerce Commission regulations. Secondly, it was not the advent of the Union which set in motion the chain of events here-it was the appearance of a safety inspector for the Interstate Commerce Commission. It was not until after the Interstate Commerce Commission began its investigation, and after the Respondent posted its notice directing the drivers to main- tain logs, as Interstate Commerce Commission regulations required, that one of the drivers contacted the Union. I think it evident that the drivers were concerned over the prospect of having to work within the restrictive limits of Interstate Commerce Commission regulations and possibly lose earnings thereby. And I think it is unreasonable to relegate, as my colleagues have done, to a position of little or no importance the factor of the Interstate Commerce Commission, which obviously moved the Respondent, as well as the employees, to act to protect its respective interest. Just as the Interstate Commerce Com- mission investigation had a direct bearing upon the initiation of the union campaign, the wish to avoid Interstate Commerce Commission 824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sanctions also motivated the Respondent to ultimately contract out its trucking work." Finally, it is undisputed that the Respondent's disposition of its operating equipment was bona fide. In my view, this fact attests to the sincerity of Respondent's purpose. It shows that the Respondent was not through some sham or artifice seeking to avoid any obligation to bargain with the Union, but was in reality attempting to resolve a business problem unrelated to any issue raised by the presence of the Union. As to the alleged refusal-to-bargain allegation which is predicated on the termination of the trucking operation, I would find, for the reasons set forth in my dissenting opinions in Town & Country Manu- facturing Company, Inc., and Fibreboard Paper Products Corpora- tion, supra, that the Respondent did not here violate Section 8 (a) (5) of the Act. For the foregoing reasons, I would find that the Respondent did not violate either Section 8(a) (3) or Section (a) (5) of the Act by terminating its trucking operation. "Cf. N.L R B. Y. Houston Chronicle Publishing Company, 211 F 2d 848 (CA 5). Even assuming that in arriving at its solution to its Interstate Commerce Commission problem the Respondent considered the economic impact unionization would have upon its operation , determined that such would increase costs , and therefore resolved to use a common carrier , I would not find its decision unlawfully motivated . N L.R B v. J M Lassting et al. d/b/a Consumers Gasoline Stations , 284 F 2d 781 (CA. 6 ), cert. denied 366 U S. 909 ; Jays Foods, Inc, an Illinois Corporation v. N L.R B., 292 F. 2d 317 (CA. 7). APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify you that : WE WILL NOT threaten our employees to discontinue any oper- ations or departments, or to discharge any of them, or take other reprisals because of their membership in or activities on behalf of Local 47, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL NOT promise our employees wage increases or other benefits if they withdraw their support from Local 47, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. WE WILL NOT, coercively, or otherwise unlawfully, interrogate our employees concerning their union activities or the identity of members or supporters of Local 47, International Brotherhood AMERICAN MANUFACTURING COMPANY OF TEXAS 825 of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization. WE WILL NOT unilaterally make changes in the wages and other terms and conditions of employment of the employees in the appropriate unit without prior consultation with Local 47, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization which they may select as their exclusive bargaining representative. WE WILL NOT discourage membership in Local 47, Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization of our employees, by discharging any of our employees or otherwise discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. WE WILL, upon request, bargain collectively in good faith with Local 47, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, as the exclusive repre- sentative of all employees in the bargaining unit described below with respect to rates of pay, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, we will embody such understanding in a signed con- tract. The bargaining unit is : All over-the-road truckdrivers employed at the Fort Worth, Texas, plant of American Manufacturing Company of Texas, excluding all janitors, guards, clerical employees, city drivers, yard drivers, supervisors, and all other employees. WE WILL resume trucking services with our own employee drivers. WE WILL offer the following named employees immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges enjoyed by them and make them whole for the dis- crimination practiced against them by their discharge : Robert 0. Meador B. J. Lewis G. W. Edmonds H. R. Narramore C. R. Wallace Ben Barnett Don Weeks William C. Taylor Wayne H. Moore L. H. Bell, Jr. L. D. Carlile J. C. Floyd J. D. Jordan WE WILL NOT, in any other manner, interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Local 47, International Brotherhood of Teamsters, Chauffeurs, Ware- 826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD housemen and Helpers of America, or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted aid or protection, and to refrain from any and all such activities. All our employees are free to become, remain, or refrain from be- coming or remaining, members of Local 47, International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization. AMERICAN MANUFACTURING COMPANY OF TEXAS, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) NoTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Meacham Building, 110 West Fifth Street, Fort Worth 2, Texas, Telephone Number, Edison 5-4211, Extension 2131, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10(b) of the Labor Management Relations Act of 1947, as amended, 61 Stat. 136, 73 Stat. 519, herein called the Act, was heard in Fort Worth, Texas, on October 5 to 7, 1960, pursuant to due notice to all parties. The complaint, issued by the General Counsel of the National Labor Relations Board, and based on charges duly filed and served, alleged that the Respondent had engaged in unfair labor practices proscribed by Section 8(a)(1), (3), and (5) of the Act. In its answer, duly filed, the Respondent conceded that it was engaged in commerce within the meaning of the Act, but it denied the commission of any unfair labor practices. At the hearing all parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence and to argue orally. Oral argument was waived. Subsequent to the hearing, all counsel submitted briefs which have been fully considered. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent herein is a Texas corporation with its principal office and plant in Fort Worth, Texas, where it is engaged in the manufacture, sale, and distribution of oilfield equipment and related products. During the 12-month period prior to issuance of the complaint, the Respondent purchased steel and other raw materials valued in excess of $50,000, which were shipped from other States to the plant in Texas. During that same period, the Respondent sold and shipped finished products, valued in excess of $90,000, to points outside the State of Texas. On the foregoing AMERICAN MANUFACTURING COMPANY OF TEXAS 827 facts, the Respondent concedes, and I find, that the American Manufacturing Com- pany of Texas is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Local 47, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called Union , or Teamsters, is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction and sequence of events Early in April 1960 several of the truckdrivers in the Respondent 's transportation department joined the Teamsters. By April 10, 10 of these drivers had signed author- ization cards. Shortly thereafter the Union requested recognition as the bargaining agent for the Respondent's over-the-road drivers, city truckdrivers, and helpers in Fort Worth. At the same time the Teamsters filed a petition for an election in this unit. The request for recognition and bargaining conferences was never answered. On May 6, a hearing was held on the representation petition. American Manufac- turing Company of Texas, Case No. 16-RC-2711 (not published in NLRB volumes). During the months of April, May, and June, Lum Phifer, foreman of the transpor- tation department, had many conversations with the driver -employees which form the subject matter of the alleged violations of Section 8(a)(1). About March 30, 1960, the Interstate Commerce Commission began an investiga- tion of the Respondent's practices and record keeping. About the same time, the Wage and Hour Division of the Department of Labor likewise initiated an investiga- tion of the transportation department. About May 18, the Respondent effectuated several substantial changes in its mode of operations in that department. On June 18, it abolished the department and terminated all the drivers. These terminations are an issue in the instant case. In September 1960 the Respondent sold its tractors, ti ailers, and related equipment. On October 10, 1960, a criminal action was initiated in the United States District Court for the Northern District of Texas wherein the Respondent in this case was charged with numerous violations of the Motor Carrier Safety Regulations of the Interstate Commerce Commission.' B. The evidence as to the alleged violations of Section 8(a) (1) of the Act; findings and conclusions with respect thereto During the period in question and for many years prior thereto the Respondent, a major manufacturer of oilfield pumping equipment, maintained a transportation department for delivering to its customers the pumping units and related items which it produced for the petroleum industry. In the course of its operations the truck- drivers in this department made over-the-road deliveries to well sites in oilfields throughout the United States and Canada. These trips, of course , were subject to the regulations of the Interstate Commerce Commission and the trucks were duly licensed by that agency. The Company, however, was not certificated as a common carrier and could not haul any products other than its own. In November 1958 the Respondent encountered its first difficulties with the Inter- state Commerce Commission. In a criminal action initiated by that agency, the Re- spondent was convicted of violating section 195.8 of the Motor Carrier Safety Regula- tions and Section 301 et seq., Title 49, U.S.C., chapter 8, by failing to require that its drivers maintain daily logs. As a result of this conviction the Respondent was fined $1 ,000 and placed on probation for 1 year. On March 30, 1960, Benjamin R . McKenzie, a safety inspector for the Inter- state Commerce Commission, arrived at the Respondent's transportation depart- ment to conduct an inspection of the drivers' logs and other records. At that time Ben R. Barnett was the foreman of that department. Notwithstanding the prior criminal conviction of the Respondent noted above, Barnett acknowledged to McKenzie that the drivers had not been keeping logs and that, consequently , no such records were available for his examination. On April 1, and in a belated effort to get in compliance with the ICC regulations, the Respondent posted a notice to all "road drivers" that, effective on April 4, they would be required to log according to the manner prescribed by the Interstate Commerce Commission . This notice was signed by Barnett, as foreman, Frank Emmons, the plant superintendent, and J. E. Lott, the executive vice president and general manager. ' U.S. v. American Manufacturing Co of Texas, Case No. 10127, Criminal, filed Octo- ber 10, 1960. 828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Meanwhile the Respondent encountered difficulties with another Federal agency. During this period it had a contract with the U.S. Government for the manufacture of shell casings. For some while the transportation department had been trucking the finished products from the Respondent's plant to the Frankford Arsenal in Philadelphia, Pennsylvania. About March 30, and on the same day that the ICC launched its investigation, a representative of the Wage and Hour and Public Contracts Division of the Department of Labor arrived at the plant. The latter sought to examine the drivers' logs on the ground that the Respondent's operations in connection with the aforesaid contract came under the Walsh-Healey Act and that the Company might have violated that statute. Shortly thereafter, the Respond- ent discontinued all such trips and secured a common carrier to handle its shipments to Philadelphia. General Manager Lott testified that the discontinuance of the Philadelphia trips was pursuant to the advice of counsel and, further, that at the time of the instant hearing the Department of Labor was insisting that, in order to com- ply with the Walsh-Healey Act, the Respondent would have to make substantial wage payments to the drivers who participated in those hauls 2 During the week which followed the ICC investigation, many of the Respondent's drivers became interested in the Teamsters and by April 10, 10 of them had signed authorization cards in that Union. By letter dated April 14, 1960, the Teamsters re- quested that the Respondent recognize and bargain with it as the exclusive rep- resentative for the employees in a unit composed of "all over-the-road and city truck drivers and helpers in Fort Worth, Texas." Simultaneously with the dispatch of this letter, the Union filed a representation petition with the Board. American Manufac- turing Company of Texas, Case No. 16-RC-2711. The Respondent conceded that the Union's request for recognition was received on April 13 or 14. It was likewise undisputed that the Company never made any reply to the aforesaid request. About April 18, Lum Phifer replaced Ben Barnett as foreman of the transporta- tion department.3 Phifer had been employed by the Respondent since 1936 and for many years had been in charge of the truckdrivers. Early in 1959, and in anticipa- tion of the major steel strike which occurred that year, the Company had assigned him to duties as a scrap steel buyer and in the performance of that function he had no further connection with the transportation department until April 1960 when he returned to replace Barnett. The latter testified that in a conversation with Plant Superintendent Frank Emmons on the morning of April 8, Emmons told him that he was being relieved. According to Barnett, the following conversation then ensued: I said, "Well, Frank is there anything I have did? What have I did wrong?" He said, "Ben, did you know the union had signed up all the drivers?" and I said, "No, sir, I sure didn't." And he said, "Well, they have. They are signed up, lock, stock and barrel. .. And he said, "Lum is coming back up there taking over. . . Evidently the old man thinks he can break the union hold," or something to that effect. Emmons testified that he had had a conversation about Barnett's replacement at the time and place described by the latter, but he denied having made any references to the Union or to the "old man." 4 This conflict will be resolved later herein. April 18 was a Monday. Gene Edmonds, one of drivers, testified that on the preceding Saturday, Phifer and Gourley had driven up to where he was working and that Phifer 2 Lott's testimony in this connection was uncontradicted 3 The finding as to this date is based on the testimony of Barnett, who testified that on the morning of that day he was notified by Plant Superintendent Emmons that he was being relieved of his duties and that Phifer was to take his place. Barnett's testimony as to the date when Phifer replaced him was corroborated by Benny Gene Lewis and Gene Edmonds Emmons testified that he could not remember the exact date of the afore- said conversation with Barnett. Phifer testified that he received his assignment as fore- man of the transportation department in a conversation with Lott on April 1, and Lott testified that it was on the latter date he made the decision to replace Barnett with Phifer. On the other hand, he also testified that it was not until "some two or three weeks later" that he "placed Lum back in with his full responsibilities." Although Emmons testified that there had been a written notice on this reassignment, no such document was ever produced The notice to the drivers as to compliance with the [CC log regulations is the only notice which appears in the record This was dated April 1, 1960, and is signed by Barnett Consequently, on the basis of the foregoing evidence, it is my conclusion that Phifer did not formally replace Barnett until April 18 4 From the record , it appears that "the old man" was a frequent and commonly under- stood characterization of Mr. Gourley, president of the Respondent Company AMERICAN MANUFACTURING COMPANY OF TEXAS S29 left the car to engage him in a conversation. According to Edmonds, Phifer stated that he had heard that many of the drivers had signed union cards and wanted to know how many had done so. Edmonds testified that after he told Phifer that nearly all the men had signed authorization cards, the latter questioned him as to whether the men would quit the Union if he returned as trucking boss. According to Edmonds, he concluded the conversation by telling his questioner that he doubted that the proposed step would encourage the employees to quit the Union.5 Many of the drivers testified that after Phifer returned to be foreman of the transportation department he questioned them about the Union, advised them to with- draw from the Teamsters, told them he might be able to get them a pay raise if they did so, and voiced the threat that President Gourley would sell the trucks rather than recognize and bargain with the Union. Thus, Loran D. Carlile testified that immediately after his return, Phifer questioned him about the Union and urged Carlile to tell the other employees not to bring in the Union, that "he couldn't buck the union and ICC both and, if they did bring it in, we would be without a job, it would be kind of hard for fellows my age and boys older to get employment." Gene Edmonds testified that on the day Phifer returned as foreman he questioned Edmonds as to whether the men would continue with their organization efforts and when the latter replied in the affirmative, Phifer stated, "I can tell you one thing, the old man is not going to stand for it. . He will do what's necessary to keep the union out . . . sell the trucks before they would come in." According to Edmonds, about a week later Phifer again asked him about the Teamsters' activities and reiterated that "the old man was not going to be bullied around by the union." Harry Narramore testified that about this same time Phifer told him that "if you all go union, you will be out of a job." According to Narramore, Phifer also dis- cussed the pending representation case which the Teamsters had initiated and sug- gested that the drivers sign a letter which could be sent to the Labor Board "to get this election stopped." Narramore testified that Phifer further stated that if all the drivers signed such a letter he might be able to get them a cent-a-mile pay increase. Phifer also told Narramore that the Company could give no written -assurance of such benefits because if it did so "the Union will use it against us." Wayne Moore, an- other driver, testified that he had a similar conversation with Phifer during this pe- riod. Moore also testified that the foreman told him that in the event the drivers were organized Gourley might change the mode of operations . Moore further testified that about May 1 he had another conversation with Phifer on the subject of a letter to the Labor Board and on this occasion he told the foreman that the drivers might cooperate in this suggestion provided they were assured of a raise and were given a contract to that effect. According to Moore, Phifer told him that Gourley would never accept such a proposal. Finally, when, in response to an- other question, Moore told his foreman that about 100 percent of the drivers had joined the Teamsters, Phifer stated , "The old man will sell all of his trucks before he will have . . . the union in here" and mentioned two common carriers that were about to bid on the Respondent's hauling. James C. Floyd, another driver, testified that during the latter part of April, Phifer questioned him as to his views on the Teamsters and then stated: Well, I'll tell you, I don't think you boys want the union . . It won't be any good for you . . . I'll tell you one thing . if you all go ahead and go union . . . the old man, referring to Mr. Gourley, will sell all of the trucks and . . . you all will be out of a job . . Why don't you talk to some of the other boys . . . Talk to Hack Moore . . . I know he don't want no union. . . . You boys don't want no strikes. . Why don't you all talk it over among yourselves and get a letter written and send it in and get this elec- tion cancelled? I believe you would be a lot better off. William C. Taylor testified that about this time Phifer questioned him concerning the Union. According to Taylor, the foreman told him ". .. you're cutting your throat if you go ahead and go on through with it." Taylor further testified that Phifer con- cluded the conversation with the statement that if the drivers did not join the Union he might be able to get them a raise. Benny Gene Lewis testified that shortly after Phifer returned as foreman he questioned him about the Teamster movement and told him that if he (Lewis ) joined "you are just messing yourself out of a job." Accord- ing to Lewis, in another conversation with Phifer about May 1, the foreman told him "if all you boys do [join the Union], Mr. Gourley is going to sell the trucks and you will be out of a job." Lewis further testified that Phifer told him that if the drivers 6 Edmonds was a credible witness and his testimony as to this conversation was undenied. 830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD disavowed the Union by getting back their authorization cards he would try to secure a raise for them, but that otherwise he would be unable to give them any help. Narramore testified that he had a further conversation with Phifer about June 1 and that on this occasion the foreman asked what the drivers were going to do about the Union. When Narramore gave a noncommittal answer, Phifer stated, "Well, you better make up your rind. The old man is going to be here in a day or two, and you know, he will sell these trucks if you all go union." Taylor testified that about this same time Phifer asked him if the employees were still interested in the Union and when Taylor answered in the affirmative, Phifer told him, "You know that the old man is going to sell all of his trucks. . . . You should try to talk the other boys into not going union . . . you boys are just sticking your own necks out because the old man will sell his trucks." Gene Edmonds testified that about June 16, Phifer disclosed to him that Edmonds might be making his last trip and stated, "The old man is just not going to let it come in, can't afford to, can't have it. . He's not going to be bullied around . it would never work out here.... If we had a union, why somebody would be running down to the union hall just every time anything wasn 't just perfectly evened out on the trips in mileage and all. . . In fact, he wouldn 't keep the job if the union was in there on it." According to Edmonds, Phifer concluded their conversa- tion by suggesting that he seek out Gourley privately and tell him that he was with- drawing from the Union. The Respondent did not seriously contest the foregoing testimony of its drivers or dispute the above statements as to the substance of their conversations wih Phifer. The latter very frankly conceded that he had discussed the Union with most of the men and that during the course of such discussions he had probably made the state- ments which they attributed to him. He testified that he could not recall having discussed the subject with Lewis, but he admitted having had the conversations with the other drivers substantially as they testified. His only modification of their testi- mony was that he did not recall having told the drivers that Gourley would sell his trucks, but he did concede that he might have suggested that the Company would contract out the work of the transportation department. The testimony of the drivers, set forth above, was credible. In view of Phifer's concessions, I accept their testimony as true and find that the conversations in question occurred substantially as the employees testified .6 The Respondent contends that Phifer was not authorized to make the remarks attributed to him by the drivers and that any statements of the foregoing character which he might have made were only his personal opinion for which the Company should not be held responsible. Phifer himself testified that no superior had in- structed him to report back on the union activities of the men and that all of his remarks represented merely personal views of his own . The Respondent, however, did not dispute Phifer's supervisory status during the period in question. Con- sequently, it must be held responsible for the coercive and intimidating character of his remarks as to what the Company would do in the event the employees joined the Teamsters . On the basis of the foregoing findings, it is my conclusion, and I find, that the Respondent violated Section 8(a)(1) of the Act by (1) Phifer's threats that the Respondent would sell its trucks if the employees organized; and (2) his interrogation of the employees as to their union affiliations in the context of threats to discontinue the trucking department if they joined the Teamsters. The Respondent likewise violated Section 8 (a)(1) through Phifer's conduct in encourag- ing the employees to negotiate directly with the Company rather than through their bargaining agent. Medo Photo Supply Corporation v. N.L R.B., 321 U.S. 678, 684-685 Finally, the Respondent violated the same section of the Act when Phifer promised that he would endeavor to secure a pay increase for the drivers if they would withdraw their support from, and repudiate, the Union. Vac-Art, Inc., 124 NLRB 989, 990, footnote 3.7 81n view of this background I also accept, as the more credible, Barnett's version of his conversation with Emmons on the morning of April 18, 1960 7 At the hearing the Respondent maintained that Phifer's conduct could be excused, in part, because he had known most of the drivers for many years and was on cordial terms with all of them. This is no defense to the violations of the Act set forth above "As [Phiferl was admittedly a supervisor wtihin the meaning of the Act, it is immaterial that he maintained a friendly relationship with the employees " Star Cooler Corporation. 129 NLRB 1075, footnote 3. AMERICAN MANUFACTURING COMPANY OF TEXAS 83, C. The evidence as to the alleged violations of Section 8(a) (5); findings and conclusions with respect thereto 1. The appropriate unit By letter dated April 11, 1960, the Union requested the Respondent to recognize and bargain with it as the exclusive representative of all the employees in a unit made up of "all over-the-road and city truckdrivers and helpers in Fort Worth." On that same date the Teamsters filed a representation petition with the Board requesting an election in a unit composed of the foregoing group of employees. The complaint in the instant case alleges that "all over,the-road truckdrivers employed by Respondent at the Fort Worth plant, exclusive of all janitors, guards, clerical employees, city drivers, yard drivers, supervisors and other employees" constitute an appropriate unit. The Respondent contends that it has several classifi- cations of employees who perform over-the-road driving and that, in any event, because of the past bargaining history of the Fort Worth plant, the drivers should be in a production and maintenance unit made up of all the employees. During the period in question the Respondent did not have any employees classified as "over-the-road" drivers. It did, however, have a group known as "Class A drivers." At the hearing the Respondent supplied an exhibit which listed all class A drivers employed from April 1 to October 7, 1960. Harry Graham, Respondent's director of personnel, safety and security, stated that "our drivers that have a classifi- cation as Class A, normally, in most cases, do our hauling of our equipment, which I would assume is spoken of as over-the -road hauls." Graham also stated that some of those with that classification worked half or more of the time in the plant yard. However, that was not the credible and uncontradicted testimony of the 11 class A drivers who testified at the hearing and all of whom were listed on the aforementioned exhibits According to these witnesses, most, if not all, of their time was spent on over-the-road or long-haul driving.9 For this reason , it is my conclusion that, for the purposes of this case, it is fair to consider the Respondent 's class A driver classification as interchangeable with the category generally known as "over-the-road" driver. During the period in question all of the class A drivers were stationed in Fort Worth and all were under the supervision of the foreman of the transportation department. The Company offered a list of 14 additional employees who it contends should he included in any unit of over-the-road drivers. This exhibit contained the follow- ing names: Wayne C. Adams, Alfred D. Holt, Jasper Lewis, Earl Stephens, N. D. Roberts, Howard W. Jack, G. S. Fry, S. S. Sparks, M. A. Priester, A. D. Garner, D. D. Brush, Charles A. Webb, Jr., D. J. Smith, and G. L. Burgess. Not one of the foregoing was classified as a class A driver . Personnel Director Graham testi- fied that the first nine listed, viz, Adams, Holt, Lewis, Stephens, Roberts, Jack, Fry, Sparks, and Priester, are stationed at the Company's sales offices in Texas, Wyoming, New Mexico, Mississippi, and Kansas, and that they are classified as "sales and servicemen ." 10 As such they sell, deliver, and install the Respondent 's products. Although in the performance of these duties they may operate automotive equip. ment, it is obvious that this is only incidental to their primary work . Moreover, none of them are under the supervision of the foreman of the transportation de- partment. Of the last five names which the Respondent would include with the over-the-road drivers, Brush and Webb are classified as mechanics , Smith as a 6 These were L H Bell, Jr, Harry R Narramore, Wayne H Moore, Gene W Edmonds, James C Floyd, Robert Meador, Benny J. Lewis, William C Taylor, Ben Barnett, Don It. Weeks, and Loran D. Carlile 9 Thus, Carlile testified that he spent less than 2 days per month at yard work: Floyd testified that in the year before his termination he worked in the plant no more than 3 to 4 days and spent the rest of the time on over -the-road duties ; Edmonds testified that he worked in the plant less than 2 days during the entire year prior to his termina- tion, Taylor testified that he spent no more than 5 days at yard or plant work during the last year of his employment ; and Meador testified that he performed yard work no more than one-fifth of the time. The pay record of James A Sumpter, another class A driver who was employed for only 3 months during this period, disclosed that whereas his earnings as a long-haul driver totaled $919 95, his plant earnings for that time were only $30 59 10 Except for Lewis who is a warehouseman at the Respondent's sales office in Odessa, Texas Graham also testified that since about May 15, 1960, Adams has been working as a clerical employee in the Fort Worth plant 832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD transportation clerk, Garner as the transportation lubrication man, and Burgess as "truck driver yard" or city driver. These last five were under the supervision of the foreman of the transportation department during the time in question. Fi- nally, it is significant that when the Respondent abolished its transportation de- partment on June 18, 1960, it terminated all its class A drivers, and on June 20 it terminated Burgess, the city driver. Sometime thereafter the mechanics were also terminated, but Smith, the transportation clerk, was retained. However, none of the sales and service employees were affected by these changes. Truckdrivers are a group which the Board has frequently found may constitute either a separate unit or be part of a plantwide unit. Wilson d Co., Inc., 102 NLRB 769, 770, footnote 4. From 1945 to 1950 the Respondent had a collective-bargaining agreement with the International Association of Machinists, and from the latter date until 1954 it had a similar contract with the United Steel Workers. Throughout this entire period the Respondent and the majority representative bargained on the basis of a production and maintenance unit at the Fort Worth plant. Included within this unit were the classifications of "Truckdriver, Class A" and "Truckdriver, Yard." In view of this history the Board might find a similar plantwide unit appropriate for bargaining if the drivers were not seeking separate representation. International Smelting and Refining Company, Raritan Copper Works, 106 NLRB 223, 227; Drexel Furniture Company (Morganton Plant), 116 NLRB 1434, 1436; Swift and Company, 101 NLRB 33, 34. Since, in this case, however, the drivers endeavored to secure representation for a separate unit, it is my conclusion, on the record here, that unit made up of the class A (or over-the-road) drivers and the city drivers is appropriate for collective bargaining within the meaning of Section 9(c) of the Act. Overnite Transportation Company, 128 NLRB 723; Tennessee Egg Company, 110 NLRB 189, 191. Similarly, a unit made up only of the over-the-road drivers is likewise appropriate. Gluck Bros., 119 NLRB 1848, 1850; Jocie Motor Lines, Inc., 112 NLRB 1201, 1203-1204; General Electric Com- pany, 89 NLRB 726, 739. Furthermore, on the basis of the findings made earlier herein, it is my conclusion that from either of the above units there should be excluded all other employees such as sales and service personnel, mechanics, clericals, and supervisors. About April 14, 1960,11 the Respondent received the Union's request for recogni- tion as the bargaining agent for all over-the-road and city truckdrivers and helpers in Fort Worth, excluding supervisors. On that date the Respondent had in its employ 17 over-the-road drivers,ia 1 city truckdriver,13 and no helpers.14 Thus there were 18 employees in the unit which the Teamsters sought to represent. At that time 10 of these drivers had signed union authorization cards.15 Thus, the Union had a majority in an appropriate unit and, pursuant to the Act, the Respondent was obli- gated to bargain with the Teamsters in good faith as the employees' designated representative. 2 The refusal to bargain In its brief, the Respondent denies that the Teamsters ever requested recognition in the unit alleged in the complaint, that the Union shifted its position with respect to the unit it sought to represent, and that, in any event, the Company was never obligated to bargain with the Union during the period in question. There is, indeed, a variance between the unit which the General Counsel alleged in the complaint as the appropriate unit and the unit for which the Teamsters initially requested recog- 11 Counsel for the Respondent stated at the hearing that Mr Lott received the Union's letter of April 11, on either April 13 or 14. 12 These were : Bell, Narramore, Moore, Edmonds, Floyd , Meador, Carlile, Lewis , Wallace, Taylor, Jordan , Sumpter, Wilkerson , Weeks, Turner, Woodward , and Bateman. Ellis Hackler, another class A driver, resigned on April 12, 1960, and L. L Patton, a former employee , was not rehired until May 4, 1960 . Barnett was not properly part of the unit on April 14 because at that time he was still a supervisor. is Burgess. 14 At the representation hearing (the transcript of which was received as an exhibit in the present case ), Mr. Lott testified that the Respondent employed no helpers. He stated that a driver needs a helper in their operations infrequently and that, on such occasions, the necessary help was supplied by having an extra driver make the trip. 15 The names of these employees and the respective dates on which they signed Teamster authorizations were as follows : Bell (April 9 ), Narramore (April 4 ), Moore (April 8), Edmonds (April 10), Meador (April 7), Carlile (April 4), Lewis (April 10), Taylor (April 7 ), Jordan (April 7), and Weeks (April 4). AMERICAN MANUFACTURING COMPANY OF TEXAS 833 nition. To the question as to whether that variance was substantial we will now turn. In his complaint the General Counsel alleged that the Respondent had unlawfully refused to bargain with respect to a unit made up of "all over-the-road truckdrivers employed by Respondent at the Fort Worth plant excluding all janitors, guards, clerical employees, city drivers, yard drivers, supervisors, and other employees." The original request of the Union, set forth in its letter of April 11, 1960, sought recognition as the bargaining agent for the employees in a unit comprised of "all over-the-road and city truck drivers and helpers in Fort Worth." In the Union's representation election, filed that same date, it requested an election in the same unit and set forth as the exclusions "all janitors, guards, clercal [sic], supervisors and all other employees as defined in the Act as amended." At the close of the representation hearing, held on May 6, 1960, and after General Manager Lott had testified that the Respondent had no employees in the "helper" classification, the Union was asked to state its final position as to the unit question. Counsel for the Teamsters then stated: We would certainly participate in an election if the Board saw fit to include those drivers in a unit that are normally called city drivers and yard drivers. However, just for the purpose of limiting our unit in one form or another at the present time we will describe a unit only of all over-the-road drivers If the Board should see fit to include in a unit the city drivers or even the mechanics we would certainly participate in such an election and request the Board for an election in that unit if it deems it appropriate.16 Thus, while the General Counsel alleged as appropriate a unit made up only of the over-the-road drivers, the Union originally requested recognition as the bar- gaining agent not only for that category but also for the "city drivers and helpers." The question, therefore, is whether there were "minor variations" between the unit requested and the unit alleged (Barlow-Maney Laboratories, Inc., 65 NLRB 928, 944), or whether there was actually substantial variance from the requested unit. Cf. Brewery and Beverage Drivers and Workers, Local No. 67, International Brother- hood of Teamsters, et al. (Washington Coca-Cola Bottling Works) v. N.L.R.B., 257 F. 2d 194 (C.A.D.C.). As noted earlier, while the Respondent had 17 over- the-road drivers on the date in question, it had no employees classified as helpers and only 1 classified as a "city driver" (i.e., Burgess). Consequently, on these facts, I conclude and find that there was no substantial variance between the unit set forth in the Union's request for recognition and the unit alleged as appropriate in the General Counsel's complaint. Barney's Supercenter, Inc., 128 NLRB 1325. There is no evidence that the Respondent had any bona fide doubt as to whether the Union represented a majority of the drivers. On April 18, as found above, Plant Superintendent Emmons told Barnett that the Union had signed up the drivers "lock, stock and barrel." Moreover, there was a great volume of testimony that in the weeks thereafter Foreman Phifer interrogated a majority of the drivers as to their organizational activities and the extent of the Union's strength. There is cred- ible and undenied testimony that several of these employees 17 told their foreman that nearly all of the drivers had signed authorization cards. On this record it is apparent, and I find, that the Respondent had no real doubts as to the Union's majority among its drivers.18 Consequently, it was obligated to recognize and bargain with the Teamsters as the representative of the employees in the unit. This the Respond- ent did not do. It was undenied that the Company never replied to the Union's written request for recognition and bargaining. Accordingly, I find, on the facts 19 On August 9, 1960, the Board dismissed the petition for certification in Case No. 16-RC-2711, and stated, in so doing, that it was taking this action "by reason of the Regional Director's issuance of a complaint in Case No. 16-CA-1386, alleging that the Employer is in violation of Section 8(a) (5) of the Act with respect to the employees involved in this petition." 17 For example, Edmonds, Moore, and Taylor. 18 The Board has held: " . . In computing the Union's majority for purposes of deter- mining the refusal-to-bargain issues, the unit to be utilized is that claimed by the Union to be appropriate at the time of the request rather than that found appropriate at this time, assuming the two to be different in scope, and assuming also that the claimed unit is not essentially inappropriate." Smith Transfer Company, Inc., 100 NLRB 834, 835. In accordance with that rule, the finding that the Union had a majority is based upon its majority in the unit of "over-the-road and city drivers and helpers" for which the Teamsters sought to bargain in the demand received by the Respondent on April 14. 834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD set forth above, that this refusal on the part of the Respondent to recognize the Union and to meet with it constituted a violation of Section 8(a)(5) and (1) of the Act as alleged in the complaint . In this connection certain further incidents must be considered. About May 17, 1960, General Superintendent Lott held a meeting of all the over- the-road drivers at which he announced a change in operations and on this oc- casion discussed the union campaign . According to the credible and undemed testi- mony of Narramore, Lott told them that they had come to a fork in the road, that if the employees took the right-hand road the Company would give all that the Union could offer, whereas if they took the left-hand road they would be follow- ing the union course. Narramore testified that Lott stated that the Company was not worried about strikes, nor was it worried about unions since it had already rid itself of two. During the course of this same speech, Lott outlined a new method of opera- tion which the Respondent was effectuating immediately. This was known among the drivers as "running double" and involved the assignment of two drivers to each trip. In this manner one could be driving while the other rested in a sleeper compart- ment and the truck could be kept in constant operation. Edmonds testified that Lott told the men that this change would be accompanied by a little raise "even though the union was in the picture ." This raise was an increase of one-half cent a mile, plus certain other allowances for backhauls, for unloading a truck, and for layover time.19 Edmonds further testified that during the course of his speech Lott explained to the men that the change in their mode of operations was necessitated by the re- quirement that the Company operate within the ICC regulations. The inauguration of the system whereby the drivers worked in pairs on the long hauls, as well as the changes in the pay scale described above, were all accomplished unilaterally and without previous consultation with the Union. There were, very likely, sound business reasons for the Respondent's change in its mode of operating the trucks, for at the time it was hard pressed to comply with the requirements of the Interstate Commerce Commission and still meet the needs of its customers by mak- ing deliveries with all possible dispatch. Nevertheless, it was not free to ignore the drivers' designated bargaining agent as it did here . For this reason, it is my conclusion, and I find, that by effectuating the changes which Lott announced on May 17, unilaterally and without reference to the Union, the Respondent violated Section 8(a)(5) and ( 1) of the Act. Later, on June 18, 1960, the Respondent dis- continued its trucking department and terminated all the drivers . Here again, it admittedly made no effort to discuss with the Union that abrupt change in the terms and conditions of employment for those employees in the bargaining unit. Con- sequently, as to this matter, also, I find that the Respondent refused to bargain with the majority representative in violation of Section 8(a) (5). Eva-Ray Dress Manu- facturing Company, Inc., and Petite Tot Incorporated, 88 NLRB 361, 362, enfd. 191 F. 2d 850 (C.A. 5). Finally, the numerous efforts on the part of Foreman Phifer during the months of April and May to have the drivers disavow the Union and rely on his efforts to secure them a raise was in manifest derogation of the majority rep- resentative . I have already found that the Respondent must be held accountable for Phifer's actions. Accordingly, I find that his conduct in this regard constituted a further violation by the Respondent of Section 8(a)(5) and (1). N.L.R.B. v. Brown-Dunkin Company, Inc., 287 F. 2d 17 (C.A. 10). D. The evidence as to the alleged violations of Section 8(a) (3); findings and conclusions with respect thereto On June 18, 1960, the Respondent discontinued its transportation department and terminated all its over-the-road and city drivers. The General Counsel alleges that the Respondent resorted to this action because its employees had engaged in union and concerted 'activities. The Respondent, on the other hand, denies this charge and avers that the controverted step had no relation to the organizational efforts of its drivers. As found earlier herein, late in March, both the Interstate Commerce Commission and the Department of Labor initiated investigations of the Respondent 's trucking operations. The Wage and Hour investigation prompted the Company to discon- tinue the use of its own trucks for shipments to the Frankford Arsenal in Philadelphia and to rely instead on a common carrier. The ICC inquiry caused the Respondent to make immediate attempts to comply with the logging and hour requirements of 19 Prior to this time the drivers had received 6 cents a mile for "running single " The raise which Lott announced on this occasion gave them 61/2 cents a mile for single runs in the future and 7 cents a mile for running double On the latter type of operation, however, two drivers shared the 7 cents and, therefore , received only 3% cents each. AMERICAN MANUFACTURING COMPANY OF TEXAS 835 the Motor Carrier Act. In general, the latter require that a truck operator not drive more than 10 hours without stopping for at least 8 hours of rest, and further that he not exceed 60 hours of driving in 7 days or more than 70 hours in 8 days. "ICC, Motor Carrier Safety Regulations" (Revision of 1952 and amendments of Decem- ber 31, 1957), §§ 195.3 etseq. The record is clear that prior to April 1, 1960, neither the drivers nor the super- visory personnel for the Respondent made any serious effort to comply with the foregoing requirements. This was manifest not only from the testimony of Barnett and Edmonds, both of whom acted as foreman of the transportation department in the year prior to that date,20 but also from the testimony of the drivers. While the Company was interested in expeditious deliveries to its customers and the truckdrivers, paid on a mileage basis, were interested in the greatest possible income, little heed was given to the requirements of the Motor Carrier Act. Subsequent to April 1, how- ever, and with the prospect of a criminal suit being instituted by the ICC, the Re- spondent made a determined effort to abide by the log and hour regulations of that agency. General Superintendent Lott testified that during the following weeks the Respondent experienced great difficulty adhering to these requirements 21 This was due, in part, to the fact that the Company continued its customary practice of having only a single driver on a truck. Consequently, many of the drivers, ac- customed to long hauls, found it impossible to continue the practice of making uninterrupted trips and, for this reason, found themselves earning less money. Lott also testified that this new practice slowed deliveries and resulted in customer complaints and dissatisfaction. As found above, about May 18, Lott announced that thereafter the transportation department would start "running double." At the hearing he testified that this step was taken to meet the need for more expeditious deliveries to its customers and at the same time enable it to comply with the limitation on the number of hours a single operator could drive. According to Lott, this last move on the Respondent's part was not popular with the drivers because it created various hardships for all concerned without any compensating increase in pay. His testimony in this regard was corro- borated by that of several drivers who stated that they, and their fellow employees, did not like the new system. Lott testified that, as a result, after a short period of experience with the new mode of operation, the management reviewed the problem and concluded that the trucking department should be discontinued. Lott gave the following testimony with respect to the termination of the Respond- ent's truckdrivers on June 18: The nature of the industry and the competition of other manufacturers have made time of the essence in the delivery of the Company's products. In the past, scheduled common carriers were never avaialble to provide the necessary transportation of its products to the wellsite of the purchasers. As a result, the Respondent established a transportation department many years ago 22 which had for its sole objective the delivery of the Company's products to customers located in oilfields throughout the United States and Canada. However, this has always been an expensive operation because the Respondent's trucks were never licensed to haul anything except the Company's products and, for this reason, usually returned empty from their delivery trips. Lott testified that with the advent of the ICC investigation late in March he immediately contacted his attorneys, Mr. Richard Simon and Mr. Mueller (counsel in the present case), and that, apart from Mr. Simon's advice that the Respondent immediately get in compliance with the ICC regulations, Mr. Mueller advised that the Respondent withdraw from the transpor- tation field.23 According to Lott, Mueller advised him at that time that a common carrier could provide the needed transportation more economically, and also that the prospect of stringent ICC penalties might be less if the Respondent was no longer in the trucking business. This advice was not headed at the time. Some weeks thereafter, Lott queried Mueller as to the feasibility of leasing the trucks to the 20 Barnett was foreman from June 18, 1959, until April 18, 1960. At various times prior to the earlier date, Edmonds had acted as foreman while Pbifer was absent from the department. 2i Lott's testimony in this connection was corroborated by the testimony of several of the drivers , namely, Carlile, Edmonds , and Taylor 22 It had been in existence since about 1935. 22 Lott testified that his conference with Mueller took place on April 1. The notice to the employees that they adhere to the logging regulations of the ICC was posted that day. Narramore, one of the first to sign a union authorization card, testified that it was not until after this notice appeared that he went to the union hall to inquire about organizing the drivers. 672010-63-vol. 139-54 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drivers. Mueller advised against this step and renewed his original recommendation that the Company dispose of its trucks. According to Lott, Mueller continued to urge that the Respondent find a satisfactory common carrier to do its hauling. When the "doubles" operation proved unsatisfactory to the men, Lott began a search for such a carrier and found that the C & H Transportation Company of Dallas, Texas, a non- scheduled carrier of oilfield and heavy equipment, was available to provide the particularized type of haulage needed. Lott testified that he bad a conference with representatives of the latter concern on or about June 17 and, having secured a satisfactory bid, on June 18 he met with Mueller, Simon, and Gourley at which time the decision was reached that the Company would go out of the transportation business. Pursuant to that decision, on June 18, all the drivers in that department were terminated. Several of the drivers had seniority in other divisions of the plant and were offered transfers 24 A few of the mechanics were retained for the purpose of repairing and renovating the trucks preparatory to their sale. On September 20, 1960, the Respondent sold its tractors, trailers, and other equipment in the transportation department, including its stock of repair parts 25 Phifer testified that subsequent to June 18 the Company engaged in no over-the- road hauling and that all of its transportation has been provided by the C & H firm. According to Lott, none of the laid-off drivers has been rehired (with the exception of those noted above, footnote 24) and no other drivers have been employed. He further testified that in June 1960 the Company was not engaged in the hiring of additional personnel in any category and that at the time of the hearing the Respond- ent had about 50 employees on layoff status. On June 22, 1960, the Respondent notified the Interstate Commerce Commission that it had discontinued its entire trucking operation and converted to commercial carriers. As found earlier herein, on October 10, 1960, and as an outgrowth of the ICC investigation, a criminal proceeding was instituted against the Respondent in which it was charged on 20 counts of knowingly and willfully having failed to require certain named drivers to maintain daily logs during a 4-month period from November 1959 to February 1960.26 The information involved therein further alleged that all of these offenses had or-cured subsequent to the conviction of the Respondent on similar charges in November 1958. General Superintendent Lott testified that the Respondent's decision to discon- tinue its transportation department was dictated solely by the business considera- tions set out above and that it was in no way related to the union organization of its drivers. Lott denied that he had ever taken the position that the Company would go out of the transportation business or sell its truck fleet if the Union organized the drivers. As to Phifer, the Respondent contends that he was not privy to any of the management's plans, that he was not authorized to speak for the Company on these matters, and that any forecasts that he made to the employees could constitute no more than his own opinion. Under normal circumstances, the fulfillment of Phifer's prophecies as to the tenure of the drivers should they fail to heed his advice would be compelling evidence that the ultimate termination of these employees was discriminatory. I have al- ready found that the Respondent must be held responsible for the coercive and 23 Gene Edmonds, one of the alleged discriminatees , was among this number Edmonds was offered a transfer to drill-press operator but did not accept Two other class A drivers, Alvie Wilkerson and Porter L. Turner, exercised their seniority in other divisions and were retained as pumping unit assemblyman and lift-truck operator, respectively The three foregoing named had been employees of the Respondent for many years Appar- ently no other drivers had similar seniority rights. In any event, the General Counsel did not allege that any other drivers were denied the same opportunity to exercise what- ever seniority rights they had. , Z In his brief, the General Counsel points out that not all the equipment was sold at auction This statement is based upon Phifer's testimony that two tractors and three trailers which had been used on over-the-road hauls were transferred to a large ranch which Mr. Gourley operated. Whether Gourley purchased these from the Respondent Company at the time of the auction or made other arrangements for their transfer does not appear in the record In any event, these items represented only a small proportion of the Respondent's over-the-road equipment, for Taylor, one of the drivers, testified that prior to June 18, the Company had approximately 15 trucks which were used in over-the- road operations 20 Of the 12 drivers named in the aforesaid information, 9 are involved in the present proceeding: viz, Lewis, Meador, Jordan, Bell, Narramore, Taylor, Carlile, Floyd, and Edmonds AMERICAN MANUFACTURING COMPANY OF TEXAS 837 intimidatory character of Phifer's numerous comments on the organizational efforts of the drivers and the prospects that awaited them if they persisted in their adherence to the Teamsters. On the other hand, it must be kept in mind that Phifer, lately returned to the position of foreman of the transportation department, had some interest in maintaining that post and in that capacity obviously was personally opposed to doing business with a bargaining agent for the employees. It is clear on this record that throughout the period in question the Respondent was in serious difficulties with the Interstate Commerce Commission. Furthermore, the initiation of the investigations by the ICC and the Department of Labor antedated by several days the advent of the union campaign among the drivers. It is also clear that the subsequent effort of the Respondent to live within the ICC requirements did not meet with favor among the drivers. The Company may have welcomed the opportunity to avoid meeting with the Teamsters. It appears here, however, that the Respondent's paramount Objective was to avoid the sanctions of the ICC. It is this factor which distinguishes the instant case from those on which the General Counsel and the Union rely. Missouri Transit Company and its President, P. W. Fletcher, 116 NLRB 587, enfd. 250 F. 2d 261 (C.A. 8); Hugh Major, d/b/a Hugh Major Truck Service, 129 NLRB 322; Arnoldware, Inc., 129 NLRB 228; Brown- Dunkin Company, Inc., 125 NLRB 1379; Jays Foods, Inc., 129 NLRB 690. More- over, in this case there is no evidence that the disposition of the Respondent's oper- ating equipment was not bona fide, or that the work of the transportation depart- ment was shifted to another corporate entity or family arrangement under the con- trol or direction of the Respondent. Cf. Hugh Major, d/b/a Hugh Major Truck Service, 129 NLRB 322. Consequently, on the findings set forth above, it is my conclusion that the General Counsel has not proved by a preponderance of the evidence that the Respondent violated Section 8(a)(3) of the Act by the termina- tion of its drivers on June 18, 1960. I will, therefore, recommend that this allega- tion of the complaint be dismissed. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent 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 and obstructing commerce and the free flow thereof. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. However, notwithstanding the finding that the Respondent violated Section 8(a)(5) of the Act, I shall not recommend that it be ordered to bargain with the Union upon request since I have also found that the Company did not unlawfully terminate its trucking opera- tions. Accordingly, I shall not recommend the customary provision in the order which would require that the Respondent bargain with the Union as the exclusive representative of its employees. J. M. Lassing, et al., d/b/a Consumers Gasoline Stations, 126 NLRB 1041, enforcement denied, N.L.R.B. v. J. M. Lassing, et al., d/b/a Consumers Gasoline Stations, 284 F. 2d 781 (C.A. 6). Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organization, all within the meaning of the Act. 2. The unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act may consist of either (1) all over-the-road truckdrivers employed by the Respondent at its plant in Fort Worth, Texas, exclusive of all janitors, guards, clerical employees, city drivers, yard drivers, supervisors, and other employees, or (2) it may consist of all over-the-road and city drivers, at the same plant, exclusive of janitors, guards, clerical employees, supervisors, and other employees. 3. At all times since April 14, 1960, the Union has been the exclusive representa- tive, for the purpose of collective bargaining within the meaning of Section 9(a) of the Act, of all the employees in either of the aforesaid appropriate units. 4. By engaging in individual bargaining with its employees, by unilaterally grant- ing a wage increase, and by unilaterally discontinuing its trucking operations without 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD first bargaining collectively with the Union as the exclusive representative of its truckdriver employees, the Respondent has committed unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 7. The General Counsel has not proved by a preponderance of the evidence that the Respondent (1) violated Section 8(a) (3) of the Act by discharging.the employees named in the complaint, or (2) interfered with, restrained, or coerced its employees in the exercise of the rights guaranteed by the Act, except by the acts and conduct found herein to have been violative. [Recommendations omitted from publication.] T. O. Metcalf Company 1 and Local 3, Amalgamated Lithogra- phers of America, Petitioner. Case No. 1-RC-884. November 8, 1962 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Murray S. Freeman, hear- ing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 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 McCulloch and Members Leedom and Brown]. 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 em- ployees of the Employer.2 3. The Petitioner seeks to represent a unit of all lithographic em- ployees formerly employed by Williamson Offset Company and cov- ered by a collective-bargaining contract with the Petitioner dated May 19, 1960, with the usual exclusions. The Intervenor and Metcalf contend that the petition is barred by two contracts covering the em- ployees Petitioner seeks to represent. Of these two contracts one is between the Intervenor and Contract Employers-which includes Metcalf-of the Graphic Arts Institute of New England, Inc., and covers a unit of pressmen on a multiemployer basis including Metcalf's pressmen. This agreement was effective July 1961 and runs until December 1963. The other contract is between Intervenor' s sister 1 The Employer's name appears as amended at the hearing. Boston Printing Pressmen's Union No. 67, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, hereinafter called the Intervenor, was permitted to intervene at the hearing on the basis of a contractual interest. 139 NLRB No. 59.