Great Southwest Warehouses, Inc.

GREAT SOUTHWEST WAREHOUSES, INC. Great Southwest Warehouses, Inc. and General Drivers, Warehousemen and Helpers , Local Union 745, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica. Cases 16-CA-3794 and 16-RC-5277. June 19, 1970 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION By MEMBERS MCCULLOCH, BROWN , AND JENKINS On April 3, 1970, Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding , finding that Respondent had engaged in certain unfair labor practices alleged in the com- plaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that certain conduct of the Respon- dent had interfered with the election held on Oc- tober 31 , 1969, in Case 16-RC-5277 , and recom- mended that the election be set aside and a second election held . Thereafter , the Respondent filed ex- ceptions to the Trial Examiner 's Decision with a supporting brief, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended , the Na- tional Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings , conclusions, and recom- mendations of the Trial Examiner.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby orders that Respondent, Great Southwest Warehouses, Inc., Dallas, Texas, its officers , agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.' IT IS FURTHER ORDERED that the election held on October 31, 1969, among the employees in the designated unit at Great Southwest Warehouses, 645 Inc., Dallas, Texas, be, and it hereby is, set aside, and that said case be, and it hereby is, remanded to the Regional Director for Region 16 to conduct a new election when he deems that circumstances permit the free choice of a bargaining representa- tive. [Text of -Direction of Second Election3 omitted from publication.] ' Respondent's exceptions are directed to the credibility resolutions of the Trial Examiner and are without merit The Board will not overrule the Trial Examiner's resolutions as to credibility unless a clear preponderance of all relevant evidence convinces us that they are incorrect On the entire record, such a conclusion is not warranted herein Standard Dn Wall Products, Inc , 91 NLRB 544, enfd 188 F 2d 362 (C A 3) Y Modify paragraph 2(a) of the Recommended Order to read as follows "Offer to John S Wilson immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him, in the manner set forth in the sec- tion herein entitled'The Remedy "' Modify the second indented paragraph of the notice to read as follows WE WILL offer to John S Wilson immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered as a result of the discrimination against him in order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their ad- dresses which may be used to communicate with them Excelsior Un- derk ear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Co, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, con- taining the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 16 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed TRIAL EXAMINER 'S DECISION and REPORT ON OBJECTIONS TO ELECTION WILLIAM J. BROWN, • Trial Examiner: This con- solidated proceeding under Sections 9 and 10 of the National Labor Relations Act, as amended, hereinafter referred to as the Act, came on to be heard at Fort Worth, Texas, on February 4, 1970, before the Trial Examiner. The petijion in Case 16-RC-5277 had been filed by General Drivers, Warehousemen and Helpers, Local Union 745, In- ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Charging Party-Petitioner,' on or about August 20, 1969,2 a stipulation for certification upon consent election approved September 12, and an election in Case Hereinafter sometimes referred to as the Union Dates hereinafter, unless otherwise indicated , relate to the calendar year 1969 183 NLRB No. 75 646 DECISIONS OF NATIONAL 16-RC-5277 conducted on October 3 On November 5, the Union filed objections to conduct affecting the results of the election and on the same day filed the original charge of unfair labor prac- tices herein, both filings relating to the alleged dis- criminatory discharge on October 10 of employee John S. Wilson, hereinafter referred to as Wilson." The complaint herein, issued December 24, alleged that the discharge of Wilson constituted an unfair labor practice within the scope of Section 8(a)(1) of the Act and consolidated the complaint and representation cases for purposes of hearing. The representation case also includes an objection to conduct affecting the results of the election based on the Company's preelection posting on a com- pany bulletin board of a copy of the Company's letter to Wilson, dated October 10, informing him of his discharge. At the hearing the parties appeared and par- ticipated as noted above with full opportunity to present evidence and argument on the issues. Sub- sequent to the close of the hearing all parties filed written briefs which have been fully considered. On the entire record herein and on the basis of my ob- servation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The pleadings and evidence indicate and I find that the Company is a corporation organized and existing under and by virtue of the laws of the State of Texas and engaged at its facility in Dallas in the business of warehousing and storage of household goods and general merchandise. During the calen- dar year preceding issuance of the complaint herein, the Company derived gross revenue exceed- ing $50,000 from storage and handling of goods transported to its Dallas warehouse directly from points outside the State of Texas. Although the Company's answer to the complaint has denied that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act, I find, as the Company has conceded in its stipulation respecting the election, that it is such an employer and that assertion of Board jurisdiction is war- ranted. II. THE LABOR ORGANIZATION INVOLVED The pleadings and evidence establish and I find that the Union is a labor organization within the purview of Section 2(5) of the Act. ' Results of the election were as follows Approximate number of eligible voters, 30, votes cast for the Union, 10, votes cast against the Union, 15, and challenged ballots, 3. ' Additional objections to the election were withdrawn prior to the bear- mg. ' The original charge herein also alleged the discriminatory layoff of Mrs Wilson, an allegation not contained in the amended charge on which the complaint herein issued. 11. LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO CONDUCT AFFECTING THE RESULTS OF THE ELECTION The Company's operations-transportation, packing, and storage-have been carried on for at least 10 years. The work force at material times numbered about 35 and worked under the supervi- sion of Company Vice President Harold T. Cook and Dispatcher Wendell Fisk, each of whom is a su- pervisor within the meaning of Section 2(11) of the Act. Wilson commenced working for the Company in February 1960 as a leased operator using his own equipment, receiving a percentage of company revenue from his efforts,' and paying his own operating expenses. This arrangement continued until March 12, 1969, when Wilson, tired of driv- ing, quit and ran his own nursery for a time until Fisk asked him and his wife to return to work for the Company as a man and wife packing team, an offer which they accepted, and were paid starting May 27 at hourly rates of $2.05, respectively, until his wife's layoff on September 205 and Wilson's transfer to.driving and helping6 where he remained until his termination on October 10. Sometime about the middle of March? a dozen of the older company employees came to Wilson and asked him to start efforts to secure union represen- tation. About August 1 Wilson communicated with the Union and thereafter secured signed authoriza- tion cards from three employees and urged others to attend union meetings. On August 19 the Union wrote the Company claiming majority status in a unit numbering 35 employees (G.C. Exh. 2), all of whom according to the undenied testimony of Wil- son attended the first union meeting and signed "slips."8 On October 10 Wilson was assigned to unloading work and finished about 5 o'clock. He punched out and was called to the office by Fisk where he was given his letter of discharge signed by Cook and terminating him for threatening and intimidating employees. Wilson read it and said that he un- derstood it. He apparently made no protest at the time. Shortly thereafter, and prior to the election, a copy of the discharge letter was posted on the com- pany bulletin board. The letter states that Wilson was discharged for threatening other employees with loss of their jobs if they did not join the Union and for trying to force employees to join the Union in order to work for the Company. It also states that any employee may engage in lawful union ac- tivity but not in threats and intimidation. Wilson received a $2 40 rate for driving and, presumably, a somewhat lower rate as a helper ' Since Wilson quit his leased operation setup on March 12 it is not clear whether he was a leased operator or operating his nursery at the time of the inception of self-organization among company employees ' It is not clear whether these were authorization cards or mere at- tendance slips. GREAT SOUTHWEST WAREHOUSES, INC. 647 Johnnie Davis, Sr., a warehouse packer and crater with 23 years' service with the Company, testified that in the period prior to the election Wil- son told him on three different occasions that if he did not join the Union he would have no job and that his new pickup could be splashed with paint. He testified that he reported these threats to Fisk. He also testified that the threats brought on ner- vousness and an ulcer for which he consulted a physician. Mrs. Evelyn Jane McKim, a driver-packer whose husband had left her and their four children during the union campaign, testified that a week before his discharge, Wilson, who had asked her twice to sign for the Union and who knew of her husband's de- fection, asked her why she had failed to attend a union meeting and, when she indicated her lack of interest in the Union, told her that the Union was coming in to the Company, no one would work with her, and the Company would be forced to release her. She testified that she reported this threat to Fisk. Jerry Thomas, who had told Wilson of his opposi- tion to the Union, testified that 3 weeks before his discharge Wilson told him at work that if he did not vote for the Union the union members would sit down when he came to work and make things so hard for him that he would have to quit. He testified that he reported the latter conversation to Fisk. Wilson generally denied threatening anyone and specifically denied the charges of Davis and McKim. I credit Wilson in his denials. His demeanor on the stand impressed me not only as that of a truthful witness but as one whose character would be totally inconsistent with the ac- cusations leveled against him by the company wit- nesses. I do not believe their accounts of threats; to the contrary I credit his denials of impropriety in his solicitations for the Union. There is no doubt that Wilson was the prime mover in bringing the union organizational effort into the warehouse and that he thereafter engaged in efforts to secure employee support for the Union. Neither can it be doubted that he thereafter solicited some employees to sign up for the Union and presented to others arguments in favor of union representation. Since he was discharged for alleged improprieties in his efforts on behalf of the union campaign and since , as I believe and find, he did not in fact engage in such improprieties, his discharge constituted an unfair labor practice within the scope of Section 8(a)(1) of the Act. N.L.R.B. v. Burnup and Sims, Inc., 379 U.S. 21. The discharge and the posting of the notice thereof also constitute cause for setting aside the election conducted herein. The National Heating Company, 167 NLRB 534. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, and there found to constitute unfair labor practices, occurring in connection with the Company's operations set forth in section I, above, have a close , intimate, and substantial relationship 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 In view of the findings set forth above to the ef- fect that the Company has engaged in unfair labor practices affecting commerce it will be recom- mended that it be required to cease and desist from such unfair labor practices and from like or related unfair labor practices, and to take such affirmative action, including the offer of reinstatement with backpay9 to John S. Wilson and the posting of ap- propriate notices, as will effectuate the policies of the Act. It will be recommended that the election heretofore conducted in Case 16-RC-5277 be set aside, severed, and remanded to the Regional Director for the conduct of a new election at such time as, in his judgment, the effects of the Com- pany's unfair labor practices and interference with the conduct of the election of October 31 have been dissipated. On the basis of the foregoing findings of fact and upon the entire record in this consolidated case, I make the following: CONCLUSIONS OF LAW 1. The Company is an employer engaged in com- merce within the meanniing of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By discharging employee John S. Wilson on the basis of participation in unlawful threats in the course of concerted activities whereas in fact no such unlawful threats were committed, the Com- pany has engaged in unfair labor practices within the scope of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. The unlawful discharge of John S. Wilson and the posting of notice thereof constituted inter- ference with the election held herein and the elec- tion should be set aside and a new election con- ducted herein as above indicated. 9 Backpay shall be computed in accordance with the remedial relief prin- ciples of F W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co , 138 NLRB 716 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that Great Southwest Warehouses, Inc., its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Discharging or otherwise disciplining em- ployees because of their participation in activities protected by Section 7 of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of rights guaranteed under the Act. 2. Take the following affirmative action which appears necessary and appropriate to effectuate the policies of the Act: (a) Offer John S. Wilson immediate and full reinstatement to his former or a substantially equivalent position and make him whole for loss of earnings as provided above in the section entitled "The Remedy." (b) 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 the amount of backpay due under the terms of this Order. (c) Post at its warehouse at Dallas, Texas, copies of the attached notice marked "Appendix."10 Co- pies of said notice, on forms provided by the Re- gional Director for Region 16, after being duly signed by an authorized representative, shall be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify said Regional Director, in writing, within 20 11 days from the receipt of this Decision, what steps have been taken to comply herewith. IT IS FURTHER RECOMMENDED that the election conducted herein on October 31 be set aside and that proceedings in Case 16-RC-5277 be re- manded to the Regional Director for the conduct- ing of a new election at such time as in his judgment circumstances will permit the free choice of employees respecting a collective-bargaining representative. 10 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings , conclusions, recommendations , and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify the Regional Director for Region 16 , in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or in any way dis- criminate against employees because of their peaceful participation in organizational activi- ties on behalf of General Drivers, Warehousemen and Helpers, Local 745, Inter- national Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization. WE WILL offer John S. Wilson immediate and full reinstatement to his former or a sub- stantially equivalent position and make him whole for lost wages by paying him backpay with interest. All our employees are free to join or assist General Drivers, Warehousemen and Helpers, Local 745, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization of their own choosing. GREAT SOUTHWEST WAREHOUSES, INC. (Employer) Dated By (Representative ) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or com- pliance with its provisions may be directed to the Board's Office, Room 8A24, Federal Office Build- ing, 819 Taylor Street, Fort Worth, Texas 76102, Telephone 817-334-2921.