Pullman Inc.

TRAILMOBILE DIVISION, PULLMAN INCORPORATED 483 Trailmobile Division , Pullman Incorporated and United Automo- bile, Aerospace & Agricultural Implement Workers (UAW), International Union , AFL-CIO. Case No. 16-CA-2401. Decem- ber 30, 1965 DECISION AND ORDER Upon a charge duly filed on July 13, 1965, by United Automobile, Aerospace & Agricultural Implement Workers (UAW), International Union, AFL-CIO, herein called the Union, against Trailmobile Divi- sion, Pullman Incorporated, herein called the Respondent, the General Counsel for the National Labor Relations Board, by the Acting Regional Director for Region 16, issued and served upon the parties a complaint and notice of hearing dated July 28, 1965. The complaint alleges that the Respondent was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section 2(6) and (7) of the National Labor Relations Act, as amended. With respect to the unfair labor practices, the complaint alleges, in substance, that after an election on or about September 3, 1964, in which a majority of the Respondent's employees in an appropriate unit selected the Union as their bargaining representative, the Union was certified by the Board 1 on or about June 28, 1965, as the exclusive bargaining representative of the Respondent's employees in the unit; that, at all times since June 28, 1965, the Union has been the collective- bargaining representative of the unit employees; and that on July 22, 1965, and at all times thereafter, the Respondent did refuse, and continues to refuse, to bargain with the Union. The Respondent's answer admits certain jurisdictional and factual allegations of the complaint and the refusal to bargain with the Union, but denies that the Union represents a majority of the employ- ees. The answer alleges affirmatively that the Board erred in sustain- ing the challenges to the election ballots of 14 individuals, that this action constituted prejudicial error, and that, accordingly, the Board's certification was erroneous and of no legal effect. On or about September 15, 1965, all parties entered into a stipula- tion wherein they agreed to transfer this proceeding directly to the Board for findings of fact, conclusion of law, and order. The parties waived a hearing before a Trial Examiner, the making of findings of fact and conclusions of law by a Trial Examiner, and the issuance of a Trial Examiner's Decision. They agreed that the stipulation, together with the charge, complaint, notice of hearing, answer, and the the record of proceedings in Case No. 16-RAI-270, constitutes the 1 Case No. 16-RM-270, not published in NLRB volumes. 156 NLRB No. 55. 217-919-66-vol. 156-32 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entire record in this case. On September 23, 1965, the Board issued an order approving stipulation and transferring proceeding to the Board. Thereafter, the General Counsel and the Respondent filed briefs which have been duly considered. 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 Fanning, Brown, and Zagoria]. Upon the basis of the stipulation of the parties, the briefs, and the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, maintains its principal office and place of business at Longview, Gregg County, Texas, where it is engaged in the manufacture of trailers. In the course and conduct of its business operations, the Respondent annually ships from its Longview plant finished products valued in excess of $50,000 directly to customers outside the State of Texas. The parties stipulated, and we find, that the Respondent is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. We further find that it will effectuate the purposes of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED United Automobile, Aerospace & Agricultural Implement Workers (UAW), International Union , AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES Pursuant to a stipulation for certification upon consent election in Case No. 16-RM-270, an election by secret ballot was conducted on September 3, 1964, among the employees in the stipulated unit? The tally of ballots showed that of approximately 360 eligible voters, 171 cast ballots for, and 168 against, the Union, 1 ballot was void, and 16 ballots were challenged. On December 30, 1964, the Regional Director issued his report on challenged ballots. He recommended, inter alia, that the challenges to three balotts (of Weldon Denton, Edward Henry, and Lonzo Higginbotham) be overruled, that the challenges to six ballots (of 2 The stipulated unit is as follows : All production and maintenance employees employed by the Respondent at its plant in Gregg County, Texas, excluding office employees, plant clerical employees, technical employees , timekeepers, guards and watchmen, office porters, experimental employees, trainees, superintendents , assistant superintendents, general fore- men, foremen , and other supervisory employees with the authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, and all other employees. TRAILMOBILE DIVISION , PULLMAN INCORPORATED 485 the night-shift leadmen) be sustained, and that a hearing be held to resolve the challenges to the remaining seven ballots (of the day-shift leadmen). The Respondent and the Union filed timely exceptions to the Regional Director's report and supporting briefs.3 On February 3, 1965, the Board issued an order directing hearing, finding that material issues of fact existed with respect to the eligi- bility of the 13 leadmen and Lonzo Higginbotham, and ordering that a hearing be held for the purpose of taking testimony to resolve the issues with respect to the challenges to these individuals. A hearing was held at Longview, Texas, on various dates between March 9 and 24 before Hearing Officer Billy M. Gibson, at which all parties appeared and participated. On April 16, 1965, the Hearing Officer issued his report on challenged ballots. The Hearing Officer found that the 13 leadmen were supervisors within the meaning of the Act and, accordingly, recommended that the challenges to their ballots be sustained. He also found that Lonzo Higginbotham was an employee of the Respondent at the time of the election and, accordingly, recommended that the challenge to his ballot be overruled. Exceptions to the Hearing Officer's report, and supporting briefs, were filed with the Board by the Union and the Respondent. On June 28, 1965, the Board issued a Decision and Certification of Representative, finding, in agreement with the Hearing Officer, that the leadmen were supervisors, as they had authority and responsibility to change work assignments of employees and to discipline employees. The Board, accordingly, sustained the challenges to the ballots of the 13 leadmen. Contrary to the Hearing Officer, the Board found that Lonzo Higginbotham was not an employee of the Respondent at the time of the election as Higginbotham's conduct during a leave of absence prior to the election indicated that he had abandoned his employment with Respondent. Accordingly, the Board sustained the challenge to Higginbotham's ballot. Finding that the ballots of Denton and Henry, the challenges to which had been overruled by the Regional Director, could not affect the Union's majority, the Board certified the Union as the exclusive collective-bargaining rep- resentative of the Respondent's employees in the appropriate unit. On June 30, 1965, John John, director of industrial relations of the Respondent, composed and mailed a letter to the Union declining recognition. The letter indicated that this refusal was based on the Respondent's belief that the Board had erred in not counting the ballots of the leadmen and Higginbotham. On July 19, 1965, Ben F. Tyra, an International representative of the Union, composed and mailed a letter to the Respondent requesting a meeting to negotiate 8 No exceptions were taken to the Regional Director's recommendations to overrule the challenges to the ballots of Denton and Henry. 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a collective-bargaining agreement. On July 22, 1965, John John mailed a letter to Ben F. Tyra declining recognition and refusing to bargain. In its Decision and Certification of Representative the Board, after having considered the Respondent's exceptions and brief, decided to sustain the challenges to the ballots of the 13 leadmen and Higgin- botham. In its exceptions and brief to the Board herein, the Respond- ent does not contend that there now exists relevant and material evidence which was not available at the time of the representation proceeding. Accordingly, we find that the Union was duly certified as the collective-bargaining representative of the employees of the Respond- ent in the appropriate unit described above, and that at all times since June 28, 1965, the Union has been the exclusive bargaining representative of all employees in the unit within the meaning of Section 9 (a) of the Act. We further find that since July 22, 1965, the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in the unit, and that, by such refusal, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act. IV. TIIE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The acts of the Respondent set forth in section III, above, occur- ring in connection with its operations 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 of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act, we shall order that it cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreement. CONCLUSIONS OF LAW 1. Trailmobile Division, Pullman Incorporated, is engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. United Automobile, Aerospace & Agricultural Implement Work- ers (UAW), International Union, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. TRAILMOBILE DIVISION , PULLMAN INCORPORATED 487 3. All production and maintenance employees employed by the Respondent at its plant in Longview, Gregg County, Texas, excluding office employees , plant clerical employees, technical employees, time- keepers, guards and watchmen , office porters, experimental employees, trainees, superintendents, assistant superintendents , general foremen, foremen, all other supervisors within the meaning of Section 2(11) of the Act, and all other employees, constitute a unit appropriate for the purposes of collective bargaining with the meaning of Section 9(b) of the Act. 4. The Union is, and at all times since June 28, 1965, has been, the exclusive representative of the employees in the appropriate unit within the meaning of Section 9 (a) of the Act. 5. By refusing to bargain collectively with the Union on, and at all time after, July 22, 1965, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By the acts described in paragraph 5 above, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Trailmobile Division, Pullman Incorporated, Long- view, Texas, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with United Automobile, Aerospace & Agricultural Implement Workers (UAW), International Union, AFL-CIO, as the exclusive representative of its employees in the above-described appropriate unit. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with the above-named Union as the exclusive collective-bargaining representative of the employees in the appropriate unit, with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and, if an understanding is reached , embody such understanding in a signed agreement. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its Longview, Texas, plant, copies of the attached notice marked "Appendix." 4 Copies of said notice, to be furnished by the Regional Director for Region 16, shall, after being duly signed by the Respondent's representative, be posted by the Respondent imme- diately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 16, in writing, within 10 days from the date of this Decision and Order, what steps have been taken to comply herewith. * 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 "a Decision and Order " the words "a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with United Auto- mobile, Aerospace & Agricultural Implement Workers (UAW), International Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed by Section 7 of the Act. WE WILL, upon request, bargain collectively with the above- named Union as the exclusive representative of all employees in the bargaining unit described below with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment and, if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All production and maintenance employees employed by Trailmobile Division, Pullman Incorporated, at its plant in Longview, Gregg County, Texas, excluding office employ- ees, plant clerical employees, technical employees, time- keepers, guards and watchmen, office porters, experimental employees, trainees, superintendents, assistant superintend- BLUE CAB COMPANY, ETC. 489 ents, general foremen, foremen, other supervisors within the meaning of Section 2 (11) of the Act, and all other employees. TRAILMOBILE DIVISION, PULLMAN INCORPORATED, 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, Sixth Floor, Meacham Building, 110 West Fifth Street, Fort Worth, Texas, Telephone No. Edison 5-4211, if they have any ques- tions concerning this notice or compliance with its provisions. Blue Cab Company and Village Cab Company and General Team- sters, Chauffeurs, and Helpers Local 782. Case No. 13-CA- 5736. December 30,1965 DECISION AND ORDER On February 25, 1964, Trial Examiner Robert E. Mullin issued his Decision in the above-entitled proceeding, finding that the Respond- ents had engaged in and were engaging in certain unfair labor prac- tices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. The Respondent thereupon filed exceptions to the Trial Examiner's Decision, as amended.' The Charging Party and the General Counsel submitted briefs in support of the Trial Exam- iner's Decision and briefs in answer to the Respondents' exceptions. 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 .2 The Board has considered the Trial I Respondents' motion to amend their answers to the complaint as amended at the hearing is granted, and such amended answers are made part of the record of this case. 2 Respondents excepted to the admission into evidence, over their objections, of certain depositions of John and Charles Ugaste taken in an action between the Union and Re- spondent Blue Cab in the United States District Court for the Northern District of Illinois. The depositions were admissible in part as admissions against interest and for impeachment purposes, and their use has been so restricted in our consideration of them. We find it unnecessary to pass upon Respondents ' contention that the depositions were erroneously received as evidence in chief on the issue of commerce, as we find that, regardless of the depositions , the General Counsel has established by other evidence that Respondents are engaged in commerce within the meaning of the Act. Accordingly, we do not find the Trial Examiner's reliance on the depositions to be prejudicial error under Rule 61 of the Federal Rules of Civil Procedure. Hoffman v. Palmer, 129 P. 2d 978 (C.A. 2), affd. 318 U.S. 109; Crown Corrugated Container Inc., 123 NLRB 318. 156 NLRB No. 67.