Queen City Transports

964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, I recommend that the complaint as amended be dismissed in its entirety. I further recommend that the settlement agreement in Case No. 16-CA-1533 be reinstated. Cless B. Davis d/b/a Queen City Transports and Paul E. Merrill, its General Manager and Chauffeurs, Teamsters, Warehouse- men and Helpers, Barre, Vermont, Local Union No. 597. Case No. 1-CA-3786. March 28, 1963 DECISION AND ORDER On October 12, 1962, Trial Examiner John F. Funke issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. Thereafter the Respondent filed exceptions to the Intermediate Report and a supporting brief, and the General Counsel and Charging Party, herein called the Union, filed briefs in support of the Intermediate Report. 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 [Members Rodgers, Fanning and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and the briefs, and the entire record in this case,' and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following exception and modifications. The Trial Examiner concluded that the Respondent violated Section 8 (a) (5) of the Act by refusing to bargain with the Union which was the designated representative of a majority of the employees in an appropriate unit. This conclusion is in part predicated upon the Trial Examiner's finding that five winter drivers, who had been ter- minated a week prior to the bargaining request, should be included in the unit and their cards counted in determining the Union's ma- jority status. We disagree with the Trial Examiner's finding as to the winter drivers and, consequently, with his ultimate conclusion. It appears, and we find, that on March 15, 1962, Respondent dis- tributed letters to five winter drivers advising them that no work 1 Respondent's request for oral argument is denied as, in our opinion , the record, in- cluding Respondent's exceptions and brief , adequately presents the issues and the positions of the parties. 141 NLRB No. 84. QUEEN CITY TRANSPORTS 965 would be available for them after March 17, a Saturday. On that latter date, the seasonal employment of the five winter drivers was terminated 2 The next week, the Union requested recognition by letter. In the Madsen, Wholesale Co. case, 139 NLRB 863, in determining majority status in an 8 (a) (5) card-check situation, seasonal employees who were not working during the critical payroll period were deemed not within the unit. There, it was said that, in the card-check situa- tion, as in a representation case, "elegibility is determined by actual prior and continuing employment during the current season . . . and persons who may have worked in prior season, but have not yet been recalled are not properly includible" in the unit for the purpose of determining majority status. We believe the rationale in that case is controlling here, and therefore, exclude the five winter drivers from the appropriate unit.3 The Trial Examiner found that there were 45 4 employees in the appropriate unit and, of the 45, 25 had designated the Union to rep- resent them. However, without the authorizations of the 5 winter drivers discussed above, the Union represented only 20 of 40 employees in the unit, clearly not a majority. As we have excluded those five winter drivers from the unit, we find that the Union did not represent a majority of the employees. Accordingly, we find that the Respond- ent did not violate Section 8(a) (5) of the Act by refusing to accord recognition to the Union. 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 Respondent, Cless B. Davis d/b/a Queen City Transports and Paul E. Merrill, its general man- ager, their agents, successors, and assigns, shall: 1. Cease and desist from : 2 No discriminatory motive is alleged in this connection. 8In his dissent in the Madsen case, Member Rodgers would have found that three em- ployees who were not on the payroll during the "critical payroll period" should have been included in the unit. There, his position was based on evidence which indicated that two employees were regular seasonal employees ( demonstrated by their return over a number of years ) who had a substantial continuing interest in their employment conditions, and thus should be given a voice in determining their bargaining representative; the third employee had been given a short leave period to go deer hunting. Here , however, Member Rodgers agrees that the five winter drivers should be excluded from the appropriate unit as there is no evidence that these five employees returned from year to year, and thus had a continuing interest in their employment. 4 The Trial Examiner's computation of 46 employees in the unit included the name of "Merrill Douglas," which name does not appear anywhere in the record . The Trial Examiner probably is referring to Malcom Douglas, a winter driver, but his name appeared on the list submitted by the Respondent and is included in our computation. Not considered in computing majority status is Edward Ray, who was excluded by the Trial Examiner as he had voluntarily resigned March 17. No exception was taken to this exclusion , and we adopt the Trial Examiner's findings in this respect pro forma. 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) Soliciting their employees -to withdraw from participation in union activity and coercively interrogating their employees with respect to union activity, membership, or sympathy. (b) Dominating, interfering with, and assisting the Business Panel, and from contributing support to it or to any other labor organiza- tion, and from otherwise interfering with the representation of their employees through a labor organization of their own choosing in violation of Section 8 (a) (2) and (1) of the Act. (c) Recognizing, bargaining, or dealing with the Business Panel or any successor thereto, as the representative of any of their em- ployees concerning grievances, labor disputes, wages, rates of pay, or other working conditions. (d) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Withdraw and withhold all recognition from and completely disestablish the Business Panel as the representative of any of their employees for the purpose of dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other working conditions. (b) Post gat its terminals at Burlington, Bennington, Fair Haven, and Waterbury, Vermont, copies of the attached notice marked "Appendix." I Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof and be maintained for 60 consecu- tive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to see that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the First Region, in writing, within 10 days from the date of this Order, what steps the Respond- ent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges viola- tions of the Act other than those found herein, be, and it hereby is, dismissed. 5In 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." QUEEN CITY TRANSPORTS 967 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 our employees that : WE WILL NOT ask our employees to sign a petition disassociating themselves from Chauffeurs, Teamsters, Warehousemen and Help- ers, Barre, Vermont, Local Union No. 597, or any other labor or- ganization, nor will we interrogate our employees concerning their membership or activity in or sympathy for said labor organiza- tion or any other labor organization in a manner constituting coercion and restraint. WE WILL NOT dominate or interfere with the administration of the Business Panel or any other labor organization. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring member- ship in a labor organization as a condition of employment as au- thorized in Section 8 (a) (3) of the Act, as amended. WV HEREBY disestablish and withdraw recognition from the Business Panel as representatives of any of our employees for the purpose, in whole or part, of dealing with or discussing grievances, labor disputes, wages, rates of pay, hours of employment, or other working conditions. CLESS B. DAVIS D/B/A QUEEN CITY TRANSPORTS AND PAUL E. MER- RILL, ITS GENERAL MANAGER, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) 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, 24 School Street, Boston 8, Massachusetts, Telephone No. La- fayette 3-8100, if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE . Upon a charge filed by Chauffeurs , Teamsters , Warehousemen and Helpers, Barre, Vermont, Local Union No. 597, herein called the Teamsters or the Union, on April 20, 1962, the General Counsel issued a complaint against Cless B. Davis d/b/a Queen City Transports and Paul E . Merrill, its general manager, herein called 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Queen City or the Respondents. This proceeding, with the General Counsel, the Respondents, the Business Panel,' and the Charging Party all represented, was heard before Trial Examiner John F. Funke at Burlington, Vermont, on July 17, 18, and 19, and August 7 and 8, 1962. The complaint, as amended,2 alleged that the Respondents unlawfully interrogated, warned, and threatened their employees and solicited their withdrawal from the Union in violation of Section 8(a)(1) of the Act; formed, sponsored, and assisted the Business Panel, a labor organization, in violation of Section 8(a) (2); and refused to bargain with the Teamsters in violation of Section 8(a) (5). The amended answer denied the commission of any unfair labor practices. At the conclusion of the hearing the parties were given until September 10 to file briefs, later extended to September 17. Briefs, which have been exceptionally helpful, were received from all parties by September 17. Upon the entire record in this case and from my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENTS Cless B. Davis is an individual doing business under the trade name of Queen City Transports. Queen City has its principal office and place of business at Burling- ton, Vermont, where it is engaged in the transportation, sale, and distribution of petroleum products . It maintains other terminals at Fair Haven , Bennington, and Waterbury, Vermont. Annually Queen City ships petroleum products valued in excess of $50,000 from said terminals to places outside the State of Vermont. I find Queen City is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATIONS INVOLVED The Teamsters is a labor organization within the meaning of Section 2 (5) of the Act. The Business Panel is an employee representation committee or plan in which employees participate and which exists, in part, for the purpose of dealing with Queen City concerning conditions of work, as more fully described infra. Although the Business Panel did not seek to negotiate a contract with Queen City, nor did it present grievances through any formal procedure, I find that it meets the standards required by the Supreme Court in N.L.R.B. v. Cabot Carbon Company, etc., 360 U.S. 203, and that it is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The facts 1. Background Sometime in late December 1961, or early January 1962,3 Respondent Paul E. Merrill applied to the Interstate Commerce Commission for authority to purchase Queen City, then owned and operated by Respondent Cless B. Davis.4 On Feb- ruary 12 Merrill was granted a certificate of temporary authority by the I.C.C. to operate Queen City, assumed the management of the Company and took the title of general manager. Ownership of the Company was still legally Davis' who con- tinued as consultant at $100 per month. This was the situation from February 12 through and including the time of the hearing. At or about the time Merrill assumed the management of Queen City Transports the Teamsters began its organizing campaign among the drivers. On March 22 it wrote Queen City demanding recognition for a unit of all tank drivers,5 and on March 23 it filed a petition for a representation election with the Regional Director I Although not a party to this proceeding the Business Panel was named in the com- plaint and intervened in the proceeding at the hearing without objection. 2 The General Counsel moved to amend his complaint at the hearing to allege solicita- tion of withdrawal from union membership . The motion was granted and the hearing was recessed from July 19 to August 7 to permit Respondents to prepare their defense and amend their answer. 3 Unless otherwise specified all dates herein refer to 1962. 'Merrill was the owner and operator of Merrill Transport Company, a company which distributed fuel and petroleum products in Maine. 5 General Counsel's Exhibit No. 9. QUEEN CITY TRANSPORTS 969 of the First Region of'the National Labor Relations Boards A hearing was held on April 13 before a hearing officer designated by the Regional Director. (Case No. 1-RC-687.) Subsequently the petition in that case was withdrawn and on April 20 the unfair labor practice charges in the instant case were filed. 2. The Business Panel Merrill testified that at his operations in Maine the employees had formed "Busi- ness Panels" which met with him six times a year. After he had received a certificate of temporary authority to operate Queen City he visited the Company's terminals to become acquainted with its operations and with its personnel . These first visits took place on February 21 and 22 and Merrill testified that at the Fair Haven terminal he had a "get-together meeting" with the drivers who, so Merrill had been told, wanted to talk with him. Merrill told them it was difficult to "sit down with a mass group and arrive at any point of detail" and said he had worked in Maine with a business panel and "offered it for their consideration." Certain facts with respect to the Business Panel are undisputed . It was an informal organization, having no constitution, no bylaws, no officers or directors, and no treasury. The members of the Panel were drawn by lot. At the Burlington terminal Division Manager Howard Hazard notified the drivers that the drawing would take place on a Saturday. On this occasion Hazard placed the names of the employees in a hat and three drawings were held , one for the regular drivers, one for the winter drivers and one for the machanics. The three thus selected represented the Burlington terminal, and similar drawings were held at Fair Haven , Bennington, and Waterbury. Two meetings were held (they were then discontinued on advice of Merrill's counsel ), the first on March 6 and the second on March 23. Both meetings were held in a hotel in Rutland, the members of the panel who attended were given $5 for attending and Merrill paid for their dinners. I believe that the testimony of Merrill himself and documentary evidence in- troduced by the General Counsel sufficient to establish the character and purpose of the Business Panel . In his testimony Merrill summarized the first meeting between himself and the employees who formed the Business Panel as follows: A. Items of equipment , operation , of customers , customer relations , what the policies of the company were with respect to driving policies and rules and regulations, the inequities of some of our terminals with ability to get equipment inside, better recommendations for placing of equipment in various terminals, the matter of toll fees and waiting time for the drivers on breakdown time, the problem of pumping off, the types of pumps used, the pumps at various customer locations , the potentiality of better use of our equipment for better returns to the company and recommendations made for such by the employees, general operations as to what was going to what, what were the policies of the new man- agement with respect to repairing and service of equipment , the type of equip- ment that was used, whether the Waterbury terminal would be continued or dis- continued, whether any terminal would be continued or discontinued , whether there would be a new terminal in Fair Haven and when, what was going to be the outcome of Burlington of terminal facilities and equipment to work with, whether or not the company would be more interested in road asphalts and road oil hauling in the summer and would provide such equipment that drivers might obtain greater use for their services in the summer time, than in the past, and many other similar items; and, in the final analysis, they wanted to know what the policies were of the new management with respect to the wages and working conditions for the employees. Q. And wages and working conditions were also discussed? Mr. GOULD: What was that question? Mr. ELLIS: Wages and working conditions were also discussed. The WITNESS: The present wages and working conditions were discussed and any inequities that they felt were involved in, let's say. On or about February 21 Merrill issued to all employees of Queen City a notice 7 advising them of his acquisition of Queen City and setting forth his general methods of operation of Merrill Transport. Referring to the Business Panel at Merrill Transport the notice stated: The detail and policies which the panel operate [sic] under may be decided by its own Business Panel after they have been selected. The panel meets with 6 General Counsel's Exhibit No. 10. 7 General Counsel's Exhibit No. 2. 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD management several times a year and all types of subjects are discussed, but for better operation of the business, better employee working conditions, griev- ances on both sides, and, in short gives employee-management an opportunity to discuss their problems for everyone's best interests. After the first Business Panel meeting Merrill distributed a memo of the items discussed to his employees .8 This memo sets forth terms of working conditions in- cluding trip pay, vacations, travel expense, insurance, weekly guarantee, uniforms, safety bonus for drivers, mechanics' rates of pay, death benefits, sick pay, and profit sharing. Later Merrill issued on eight-page report of the first meeting to his employees 9 expanding on the prior memo. I think the foregoing evidence establishes that the Business Panel was a committee formed to deal with the Respondents herein "concerning grievances, labor disputes, wages, rates of pay, hours of employment or conditions of work," thus clearly meet- ing the language of Section 2(5). Respondent Merrill, as beneficial owner and general manager of Queen City sponsored the formation of the Business Panel and, by rewarding the employee members who attended with a payment of $5 and paying for the dinners which followed, unlawfully assisted it. In addition Division Manager Hazard notified the employees at Burlington when the drawings would be held, par- ticipated in the drawing to the extent of preparing it and Lyman Holcomb, found herein, infra, to be a supervisor, was named as employee representative from Bur- lington and attended both meetings. The record makes it clear that the Business Panel had no status as an independent labor organization and such status as it had was conferred upon it by Merrill.10 It was his creature and remained, for the brief period of its active life, his creature. I accordingly find that Respondents unlawfully dominated, interfered with, and assisted the Business Panel in violation of Section 8(a)(2) and (1) of theAct. 11 3. Independent violations of Section 8(a)(1) On the testimony, which I credit, of James Garrison and William McIntyre I find that they were asked by Lyman Holcomb to sign the petition (Intervenor's Exhibit No. 1) disassociating themselves from the Union.12 I likewise find that employees William McIntyre and David Parker were interro- gated by Cless Davis as to their union activities or interest in the Union. While these interrogations might be regarded as isolated incidents I believe they were too closely related to the establishment of the Business Panel and the notices issued respecting the Business Panel to be free from coercive effect. In addition I find that the inter- rogation of McIntyre contained a threat of loss of employment for continued union activity.13 As to other allegations of violation of Section 8(a)(1), I find them unsupported by credible testimony. 4. The refusal to bargain a. The demand and refusal It was stipulated that on March 22 the Teamsters demanded recognition as the collective-bargaining representative of Queen City truckdrivers by letter of that date, received by Queen City on March 24 as previously set forth.14 No answer was received. On March 23 the Teamsters filed a petition for a representation election with the Regional Director for the First Region of the National Labor Relations Board.15 The unit described therein included all tank truckdrivers and excluded all clerical and office employees, mechanics, supervisors, and guards. On the stipulated por- tions of the record in Case No. 1-RC-6876 and the record herein I find that Re- 8 General Counsel's Exhibit No. 3. 0 General Counsel's Exhibit No. 4. 10 No protest was made by the Panel when Merrill determined, on advice of counsel, to discontinue the meetings. 11 Dale Electronics, Inc., 137 NLRB 1212. 12I reject the testimony of Paul Kellett that he was requested to sign the petition by Holcomb. His testimony is lacking in specificity sufficient for the making of a finding. 131 shall not, however, make a separate and specific finding of violation based on this threat. I believe it suffices to find the interrogation embracing the threat coercive. 14 General Counsel's Exhibit No. 9, supra. 15 General Counsel's Exhibit No. 10, supra. QUEEN CITY TRANSPORTS 971 spondents at all times refused to recognize the Teamsters as the collective-bargaining representative of their employees.16 b. The appropriate unit The parties agree that a unit which includes the employees of all four terminals of Queen City is appropriate. All of these employees perform the same general duties, work under similar conditions of employment, and are subject to the general supervision of Merrill and Hazard. There is disagreement, however, as to certain classes of employees. The General Counsel and the Teamsters would include in the appropriate unit the so-called winter drivers on the ground that they are seasonal employees with a reasonable expectation of reemployment from year to year and work under the same conditions as the regular drivers. Respondents would exclude them as temporary employees. The General Counsel and the Teamsters would ex- clude four employees whom they designate as either dispatchers or terminal managers (one at each terminal) on the ground that they are supervisors within the meaning of the Act and would also exclude the mechanics at each terminal.17 Respondents would include both groups of employees. These contentions will be dealt with separately. Winter drivers: The distribution of. fuel oil is largely a winter occupation 18 and Queen City employed additional drivers each winter to perform its operations. The winter drivers worked under the same terms and conditions of employment as the regular drivers and were subject to the same supervision.18 They do not have regular tenure, being employed when needed and laid off when not; their employment is contingent upon the weather and the demand for fuel. The winter drivers were accorded representation in the Business Panel at the Burlington and Fair Haven terminals and this determination, since the Panel was formed by him, must have been made by Merrill. The decisions of the Board with respect to the eligibility of seasonal employees are confusing if not contradictory, a situation due to the fact that as the membership of the Board varies with a change of administration so does the thinking of its mem- bers. In its recent decision in California Vegetable Concentrates, Inc., 137 NLRB 1779, the Board found seasonal employees should be included in the unit with year- round permanent employees. I find the rationale of the Board in that case per- suasive here. We are unfortunately confronted in this case with a transition in management so that past policy is not controlling, and the testimony concerning both past and current policy is contradictory. I do, however, find evidence sufficient to support the findings already made that working conditions are similar for both winter and regular drivers. I think the evidence also supports a finding that winter drivers who performed satisfactory service would have more than a reasonable expectancy of employment, if sought, during succeeding winters and would become eligible for regular employment when vacancies occurred. I do not think it im- portant to establish a ratio or percentage factor indicating how many winter drivers were employed from year to year or how many eventually obtained status as regular drivers. It does seem unarguable that it was in the interest of the Employer to reemploy skilled and experienced drivers at the start of the winter season and that a policy which considered such skill and experience eligible would be a shortsighted one. Not only was a high degree of skill and experience valuable in driving high- powered and dangerous equipment through the mountains of Vermont and adjacent territory through ice and snow but it was also important according to credited testi- mony that the drivers know their customers and their specific wants and desires?u For these reasons I find that winter drivers should be included in the unit appropriate for the purposes of collective bargaining I shall include in this unit not only those to The Board has held that the failure of an employer to answer a request for bargaining in itself constitutes a refusal to bargain . Sussex Hats, Inc., 85 NLRB 399, 407. 17 The Teamsters have stated that they would accept any unit deemed appropriate by the Board. is The record discloses that some regular drivers were employed , when Davis owned and managed Queen City, to deliver asphalt to construction projects during the summer. 19 General Counsel's Exhibit No. 3, in which Merrill outlined the terms and conditions of employment for Queen City employees, does not distinguish between winter drivers and regular drivers except that the provision for payment of the safety bonus applied to regu- lar drivers with 1 year or over (of service ) or to regular winter drivers proportionately. 20 The brief of the General Counsel refers to the idiosyncrasies of the customers. The inhabitants of the State of Vermont have established for themselves a reputation for inde- pendence and individuality. In these times such qualities may be regarded as idiosyncratic but I do not find it necessary to adopt this language in making my finding. 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drivers who were still employed at the time the demand was made by the Teamsters but also those drivers whose employment had been terminated due to seasonal factors 21 Dispatchers-mechanics: At their main terminal at Burlington Respondents em- ployed Lyman Holcomb as superintendent of maintenance. Approximately 1 month after Merrill received his certificate of temporary authority from the I.C.C. he issued the following notice 22 to his employees: Effective at once I have named Howard Hazard Division Manager for the Vermont Division of Merrill Transport Company. He will be responsible for all operations of the company in this area. I have also named Lyman "Bud." Holcomb Superintendent of Maintenance for the Vermont Division of Merrill Transport Company. The responsibility for decisions with respect to maintenance and service will be his, and any program with respect to the same which we may develop will be his respon- sibility to follow through on. I believe this to be a designation of authority sufficiently clear to meet the re- quirements of Section 2(11) of the Act. While I credit the testimony that Holcomb actually performs repair work on the tractors and cabs stationed at Burlington there is also testimony that he exercises and did exercise the authority conferred by the above notice.23 At the three other terminals at Bennington, Fair Haven, and Waterbury there is either, as is claimed by Respondents, no direct and immediate supervision or there is supervision by Stanley Shaw at Bennington, Donald Parker at Fair Haven, and Robert Flanders at Waterbury. It is inconceivable to me that these terminals, where expensive equipment was operated under hazardous conditions, could operate without direct supervision. If the contentions of the Respondents are to be believed the only supervisor of this entire enterprise continuously present in the State of Vermont was Hazard, division manager. But someone at each of these terminals had to direct the drivers which runs to make and direct the repairs to be made. While I agree that each of these dispatchers spent by far the greater portion of his time engaged in mechanical labor this does not relieve him of supervisory status. I cannot, on the basis of the record herein, distinguish between the authority given these three men and I credit the testimony of the General Counsel's witnesses that they were actually hired by Shaw and Parker. Whether or not these hirings had to be cleared with Hazard or Merrill it is beyond doubt that they exercised the authority effectively to recommend hiring of employees and this is enough to qualify them as supervisors within the meaning of Section 2(11). It should he remembered that this section of the Act was proposed by and enacted on behalf of employers to exempt all supervisors and foremen from the protection of the Act and to insure their primary loyalty to management.24 I see no reason to depart from the ex- pressed intent of the Congress in this case and I accordingly find Stanley Shaw, Donald Parker, and Robert Flanders excluded from the appropriate unit by reason of their supervisory status. The mechanics: I would include the mechanics within the appropriate unit. Again the decisions are multitudinous and conflicting, but I would rest the determination on the fact that in an operation of this size performing one integrated function it makes little sense to establish an artificial dichotomy among the employees. It is true that the mechanics work under a different pay scale and wear, for very practical purposes, a different uniform but there is interchange as conditions require between 21 I do not accept the argument of counsel for Respondents and for the Business Panel that the cards of Edwin Elliott and Percy Densmore be rejected on the ground that they were regular employees of Gray's Express who took temporary employment with Queen City. I would hold that any seasonal employee is likely to quit and accept other employ- ment near the close of his season or even to have alternate seasonal employment. This does not establish that he will not be available for further seasonal employment or seek to obtain regular employment with either of his seasonal employees. A contrary conclu- sion would compel a finding that seasonal employees, to enjoy eligibility in the bargaining unit, must remain unemployed during the off season. This I reject as repugnant to the national interest and to commonsense. 22 General Counsel's Exhibit No. 6. 23 Holcomb received a salary of $120 a week, considerably higher than the proposed rate of $1.88 an hour for mechanics (General Counsel's Exhibit No. 3) ; he refused to let a driver make a trip because he was not fit to drive; he made assignments of work to drivers when driving work was not available ; he had authority to give time off to drivers when requested. 24 See Legislative History, Labor Management Relations Act, 1947, vol. 1, H. Rept. 245. QUEEN CITY TRANSPORTS 973 the two groups and the same supervision. All are engaged in the primary purpose of serving the Employer's fuel customers and I believe the interests of the Employer, the employees and the purposes of collective bargaining would best be served by the establishment of a single unit, particularly since no other labor organization is seeking to represent the mechanics. I think the Board has established a wise policy in the Kalamazoo Paper Box Corporation case 25 of resting unit determination with respect to truckdrivers on the facts and circumstances of the particular situation and the basic community of interest among the employees involved. I believe the facts here, both as to community of interest and overall homogeneity of function, indicate the appropriateness of a single unit. On the testimony herein I find that the appropriate unit for the purposes of ,collective bargaining is: All truckdrivers and mechanics, including winter truckdrivers and mechanics, em- ployed at the Employer's terminals at Burlington, Bennington, Fair Haven, and Waterbury, Vermont, excluding dispatcher-mechanics, office and clerical employees, .guards, and supervisors as defined by the Act. c. Majority status The General Counsel submitted 25 authorization cards and one membership card In support of his claim of majority status for the Teamsters. The membership card (General Counsel's Exhibit No. 8(j)) was submitted on behalf of Winter Driver George Rowland who had also signed an authorization card (General Counsel's Exhibit No. 8(z)). I accept the authorization card, dated February 17, as evidence of Rowland's designation of the Teamsters and reject the membership card and find totally irrelevant the interminable testimony with respect to it. I also reject from my computation of the Teamsters claimed majority the card of Edward Ray, dated March 19 on the ground that the records of Queen City Transports indicate he quit his employment on March 17.26 However I accept the cards of two employees who were not available to testify (General Counsel's Exhibits Nos. 8(x) and 8(y) ) and I also accept the testimony of William Ray that he signed an authorization card designating the Teamsters although the card could not be produced at the hearing 29 On the basis of the findings herein with respect to the unit the names of Flanders, Holcomb, Donald Parker, and Shaw must be stricken from the list of employees, thereby reducing the number of eligible employees from 44 to 40. On the other hand there should be added to the list the names of Edwin Elliott, Paul Densmore, George Rowland, Merrill Douglas, Harry Jipner, and David Wenz, raising the total of employees in the appropriate unit to 46. Of this number 25 had designated the Teamsters as their collective-bargaining agent prior to the demand for recognition on March 22. I therefore find that at the time the demand was made and also on the date (March 24) it was received the Teamsters represented a majority of the employees in a unit appropriate for the purposes of collective bargaining. The issue presented is whether the Respondents, under these circumstances, were justified in refusing to bargain with the Teamsters. It is true that a representation petition had been filed and that majority status is ordinarily best determined by an election by secret ballot. It is also true that there was disagreement between Respondents and the Teamsters respecting the unit, an issue which might best be determined by the Board after hearing. Again I believe that a Board decision and a Board election provide the best method of resolving both issues. In this case, however, Respondent had, prior to the time the demand for recognition was made and prior to the time the petition for an election was filed, engaged in unfair labor practices. Respondent Merrill had established and dominated a labor organization among its employees and Respondent Davis had coercively interrogated two of them. In view of these unfair labor practices and their inevitable effect on the majority status of the Teamsters I find Respondents violated Section 8(a) (5) of the ,Act 26 Re- spondents acted at their peril both in rejecting agreement as to the unit 29 and in re- fusing to accept the asserted majority status of the Teamsters.30 This may seem to be a harsh rule to impose upon an employer since the National Labor Relations Act pro- vides the administrative machinery for the resolution of these problems. There is, 0136 NLRB 134. ^ I accept as corroborative of the Company's record the Notice of Determination Issued by the New York State Department of Labor to Edward Ray (Respondent's Exhibit No. 13).. 11 Suburban Lumber Company, 3 NLRB 194. 28Joy Silk Mills, Inc. v. N.L.R.B., 185 F. 2d 732. 29 Tom Thumb Stores, Inc., 123 NLRB 833, 835. a°Art Metals Construction Company, 110 F. 2d 148 , 150 (C.A. 2). 974 DECISIONS OF NATIONAL LABOR RELATIONS BOARD however, another side to the coin. If an employer, by the commission of unfair labor practices, frustrates the right of his employees to designate a collective -bargaining agent or dissipates the majority status of a selected bargaining agent then I believe he must assume certain risks . Among them is the requirement that he be ordered to bargain with the labor organization selected by his employees if it can be established that it represented a majority in an appropriate unit. To hold otherwise is to permit the procedures established by the Act to be utilized to defeat its purposes. For these reasons I find the Respondents have violated Section 8(a) (5) of the Act. IV. THE REMEDY Having found the Respondents have engaged in certain unfair labor practices, I shall recommend that they be ordered to cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Upon the basis of the foregoing findings and conclusions and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Chauffeurs, Teamsters, Warehousemen and Helpers, Barre, Vermont, Local Union No. 597, and the Business Panel are labor organizations within the meaning of Section 2(5) of the Act. 3. By forming, dominating, and interfering with the Business Panel and by giving unlawful assistance and support to it, Respondents have engaged in and are engaging in unfair labor practices in violation of Section 8(a)(2) and (1) of the Act. 4. By refusing at all times since March 24, 1962, to bargain in good faith with Chauffeurs, Teamsters, Warehousemen and Helpers, Barre, Vermont, Local Union No. 597, as the exclusive bargaining representative of their employees in the unit found appropriate herein, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 5. The aforesaid labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] American Federation of Grain Millers , Local Union No. 16, AFL-CIO and Bartlett and Company, Grain. Case No. 17-OP- 16. March 29, 1963 DECISION AND ORDER Unfair labor practice charges were filed on behalf of Bartlett and Company, Grain, herein called Bartlett, on February 16,1962, against the Respondent, American Federation of Grain Millers, Local Union No. 16, AFL-CIO. Thereafter, on June 14, 1962, the General Counsel of the National Labor Relations Board, by the Regional Di- rector for the Seventeenth Region, issued a complaint and notice of hearing, alleging that the Respondent had engaged in and was engag- ing in unfair labor practices affecting commerce within the meaning of Section 8(b) (7) (C) and Section 2(6) and (7) of the Act, as amended. On July 3, 1962, all parties entered into a stipulation by which they waived a hearing or any other proceeding before a Trial Examiner; 141 NLRB No. 71.