Lexington Cartage Company, Inc.

LEXINGTON CARTAGE COMPANY, INC. 55 Lexington Cartage Company, Inc. and Teamsters WE WILL NOT in any like or related manner Local 651, affiliated with the International interfere with, restrain, or coerce employees in Brotherhood of Teamsters, Chauffeurs, Ware- the exercise of the rights guaranteed them in housemen and Helpers of America. Case 9-CA- Section 7 of the National Labor Relations Act, 15172 as amended. October 22, 1981 WE WILL recognize and, upon request, bar- gain in good faith with the above-named labor DECISION AND ORDER organization as the exclusive representative of all employees in the above-described unit. BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN LEXINGTON CARTAGE COMPANY, On March 19, 1981, Administrative Law Judge INC. Thomas R. Wilks issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- DECISION ceptions and a supporting brief. STATEMENT OF THE CASE Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- THOMAS R. WILKS, Administrative Law Judge: This tional Labor Relations Board has delegated its au- case was heard in Lexington, Kentucky, on January 12, thority in this proceeding to a three-member panel 1981, pursuant to an unfair labor practice charge filed by Teamsters Local 651, affiliated with the International The Board has considered the record and the at- Brotherhood of Teamsters, Chauffeurs, Warehousemen tached Decision in light of the exceptions and brief and Helpers of America, herein called the Union, on and has decided to affirm the rulings, findings, and April 7, 1980, and a complaint and notice of hearing conclusions of the Administrative Law Judge and issued by the Regional Director for Region 9 of the Na- to adopt his recommended Order. tional Labor Relations Board on May 23, 1980. The complaint alleges that Lexington Cartage Company, Inc., ORDER herein called Respondent, violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, Pursuant to Section 10(c) of the National Labor herein called the Act, by refusing to bargain in good Relations Act, as amended, the National Labor Re- faith with the Union, by not responding to telephone lations Board adopts as its Order the recommended calls from the Union, by not responding to bargaining Order of the Administrative Law Judge and proposals, by canceling a negotiation meeting, and by hereby orders that the Respondent, Lexington withdrawing recognition from the Union. Cartage Company, Inc., Lexington, Kentucky, its On May 15, 1980, Respondent filed a petition with the officers, agents, successors, and assigns, shall take Regional Director, which requested the Board to refrain the action set forth in the said recommended from processing this matter on the grounds that the Order, except that the attached notice is substituted Union does not represent a majority of employees, and for that of the Administrative Law Judge. that a remedial order would deprive Respondent and its employees of their constitutional rights. On June 10, Re- APPENDIX spondent filed its answer to the complaint denying the commission of unfair labor practices, and therein also al- NOTICE To EMPLOYEES luded to the aforesaid petition dated May 15, 1980, and POSTED BY ORDER OF THE further recited that it had instituted action in the United States District Court for the Eastern District of Ken- tucky seeking a declaratory order that it not be required An Agency of the United States Government to bargain with the Union and that the Union be en- joined from enforcing its bargaining demands. WE WILL NOT refuse to recognize and bar- On July 15, 1980, the said Regional Director referred gain in good faith with Teamsters Local 651, Respondent's May 15 petition to the Chief Administra- affiliated with the International Brotherhood tive Law Judge for ruling as a motion to dismiss pursu- of Teamsters, Chauffeurs, Warehousemen and ant to Section 102.25 of the Board's Rules and Regula- Helpers of America, as the exclusive bargain- tions, Series 8, as amended. On the same date counsel for ing representative of our employees in the fol- the General Counsel filed a motion in opposition to the lowing appropriate bargaining unit: motion to dismiss with supporting memorandum. The General Counsel argued therein that the complaint All truck drivers employed by us at our herein is premised upon an admitted refusal to recognize Lexington, Kentucky, facility, excluding all and bargain with the Union during the I-year period mechanics, office clerical employees, profes- wherein the Union was certified by the Board as collec- sional employees, guards and supervisors as tive-bargaining agent, and that, in the absence of any un- defined in the Act. usual circumstances, there can be no justification for said 259 NLRB No. 5 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refusal, citing Ray Brooks v. N.L.R.B., 348 U.S. 96 wherein it certified the Union as the exclusive bargaining (1954). Respondent's petition was treated by the Asso- representative of all employees in the following appropri- ciate Chief Administrative Law Judge as a motion to dis- ate unit: miss which he denied on November 24, 1980. It appears that all parties have intervened in the dis- All truck drivers employed by the Employer at its trict court action where the matter is now pending. Re- Lexington, Kentucky facility, excluding all mechan- spondent's petition to defer action was not thereafter re- ics, office clerical employees, professional employ- newed before me. Subsequent to the hearing in this ees, guards and supervisors as defined in the Act. matter, Respondent and the General Counsel filed briefs. Nowhere in argument or brief does Respondent set forth On November 27, 1979, Union Business Agent Rex a cogent argument supported by case citation as to why Edwards communicated by letter with Respondent the Board should or can cede to the district court its ex- wherein he requested a meeting on January 6, 1980, for clusive statutory jurisdiction over the alleged unfair the purpose of negotiating a collective-bargaining agree- labor practice. At no time did Respondent or employees ment. The first negotiation meeting occurred on January file with the Board a petition to revoke certification. As 18, 1980, between union representatives including Ed- stated by the Supreme Court in the above-cited Brooks wards and representatives of the parties including Gener- case: al Manager Frank Dean, Sr., and Attorney Robert Hou- lihan. Edwards submitted a proposed collective-bargain- If an employer has doubts about his duty to contin- ing agreement to Respondent's representatives who ue bargaining, it is his responsibility to petition the agreed to study them. Board for relief, while continuing to bargain in The next negotiating meeting occurred, on February good faith at least until the Board has given some 25, in Attorney Houlihan's office. At that meeting and at indication that his claim has merit. Although the meetings held on March 6, 13, and 28, Respondent sub- Board may, if the facts warrant, revoke a certifica- mitted to the Union no counterproposals orally or in tion or agree not to pursue a charge of an unfair writing. Rather, at each meeting commencing with the labor practice, these are matters for the Board; they meeting of February 25, Houlihan stated that it was the do not justify employer self-help or judicial interfer- position of Respondent that the Union did not represent ence. [348 U.S. at 103, emphasis supplied.] a majority of the unit employees and therefore it was not obliged to bargain with the Union. Edwards testified that Accordingly, I conclude that the processing of this he responded that he would file unfair labor practice case ought not be deferred. charges to compel bargaining. He conceded that he also Upon the entire record and the briefs, I make the fol- threatened that the Union would engage in strike activity lowing: to compel negotiations. Arguments then were engaged in between Edwards and Houlihan as to whether the Union was required by its International constitution and Local I. JURISDICTION bylaws first to conduct a strike vote before engaging in strike activities. No meetings were held after March 28. At all times material, Respondent, a Kentucky corpo- Edwards testified that he had made numerous efforts ration with an office and place of business in Lexington, to contact Respondent to arrange for meeting dates but Kentucky, has been engaged in the intrastate transport- that he was frustrated by the failure of Respondent to ing of freight in and around Lexington. During the 12- answer his messages, and by the unavailability of Attor- month period preceding the complaint, Respondent, in ney Houlihan. Edwards testified that on one occasion he the course and conduct of its business operations, pur- appeared at Houlihan's office for an arranged meeting chased and received goods and materials valued in excess only to be informed that Houlihan was called away for of $50,000, which were shipped to its Lexington, Ken- other business. Edwards' testimony in this regard was tucky, facility directly from points outside the Common- confused, uncertain, cryptic, conclusionary, and not re- wealth of Kentucky. lated to specific dates or events. He conceded on cross- It is admitted and I find that at all times material Re- examination that there were occasions when he was also spondent is and has been an employer engaged in corn- unavailable for meetings. Edwards' testimony is too merce within the meaning of Section 2(2), (6), and (7) of vague and uncertain to support any conclusions with re- the Act. spect to Respondent's failure to respond to telephone calls and with respect to the cancellation of one meeting. II. STATUS OF THE LABOR ORGANIZATION General Manager Dean testified that a "short time" It is admitted and I find that the Union is and has been after the Union was certified on October 30, 1979, he at all material times a labor organization within the was presented with a petition which bore the purported meaning of Section 2(5) of the Act. signatures of all the 14 unit employees then employed, and which stated, inter alia: "We the undersigned Peti- 111. ALLEGED UNFAIR LABOR PRACTICES tion Local 651 Teamsters Union to Drop their Effort to Organize the Drivers of Lexington Cartage Company." He also testified that he first became aware of such peti- On October 30, 1979, in Case 9-RC-12989, the Board tion "sometime prior to" October 26, 1979, but he did issued a Decision and Certification of Representative not explain the circumstances nor did he fix a date. LEXINGTON CARTAGE COMPANY, INC. 57 Dean further testified that on October 18, 1979, he had resentation, and that no strike vote was ever conducted observed and removed from the plant bulletin board a by the Union. Coates did not disclose precisely when a cartoon which had been extracted from Hustler maga- majority of employees signed the petition, nor did he dis- zine and which depicted two male persons, one of close the circumstances. whom, a political candidate, was engaged in an act of For reasons set forth below, I granted a motion to lewd obeisance to the other, a potential voter. Handwrit- strike, as irrelevant, Dean's testimony as to the receipt of ten on the cartoon was an identification of the two per- the employees' petitions and Mason's discharge. Coates' sons as General Manager Dean and employee truck- testimony was received as an offer of proof, as I ruled at driver Roosevelt Coates (identified at the hearing as the the hearing, that the substance of his testimony was also distributor of the employee petition). irrelevant. Dean concluded, after an investigation of handwriting samples later verified by a handwriting expert, that the B. Analysis handwritten portion was that of Thomas Mason. Dean assumed that, because he had seen Mason in possession Respondent argues that, despite the fact that its ad- of that particular issue of Hustler containing the cartoon mitted refusal to recognize and bargain with the Union shortly before the posting occurred, Mason was responsi- occurred during the certification year, it was justified in ble for the actual posting. Dean testified without elabora- so doing because of unusual circumstances. These cir- tion that during the preelection campaign Mason was cumstances consist of Respondent's belief that the em- "visible as the in-plant union organizer." Also Mason ap- ployees renounced the Union because of the opprobrius peared at the National Labor Relations Board Regional conduct of the leading employee union adherent who it Office in the company of the union agent for the sched- also expected was "slated" to become a shop steward. ' uled representation case hearing which however was Respondent contends that the employees' reputed desires aborted because of a voluntary election agreement. Addi- should be honored and that a bargaining order based on tionally, Mason served as the observer for the Union at a presumption of majority status would be contrary to the Board-conducted election. the employees' rights under the Act and an abridgement Mason was discharged on October 26, 1979, without of their first amendment right of freedom of association.2 further investigation. The Union was notified by letter of Although Respondent contends that the Union is re- his discharge. No unfair labor practice charge was filed sponsible for the conduct of Mason, a contention I find concerning his discharge. Respondent attempted to elicit untenable, Respondent does not argue that the circum- testimony from Dean as to his opinion of the impact of stances herein give rise to such a degree of union mis- Mason's discharge on the employees' mental attitude re- conduct as to obviate the possibility of a viable relation- garding continued union representation. Objection to ship at the bargaining table.3 Indeed, there was no evi- that inquiry was sustained, inter alia, on grounds that dence offered to demonstrate that the Union adopted or Dean was not competent to testify as to the employees' approved of Mason's conduct, or that it even requested state of mind. that he be reinstated. Rather, Respondent sought to On or about March 9, 1980, according to Dean, a adduce evidence of Mason's purported conduct solely to second petition was shown to him, dated March 9, con- establish employee motivation for its alleged disavowal taining the apparent signatures of all unit employees which was addressed "To the Teamsters" and which stated: The issues raised herein by Respondent have long been resolved. The Board has explicitly stated: We the Drivers of Lexington Cartage Co. Hear You Are Still Trying To Negotiate for us. We Do It is well settled that a Union's continued majority Not Want You To Do This. We Do Not Want is conclusively presumed to exist for I year from Your Union. We Want You To Leave Us Alone. the date of the certification and such an employee Like the first petition, Dean testified that the second pe- No evidence was sought to be adduced that Mason was "slated" to tition was presented to him by a group of three or four be a shop steward. He was discharged prior to any bargaining and was not a member of the Union's bargaining team. employees. 2 At the hearing Respondent explicitly disclaimed that its refusal to Truckdriver Roosevelt Coates testified that he pre- bargain was in any way premised upon the threat of the Union to engage pared, with his wife's clerical help, both of the employee in strike activity. petitions described above. He testified that he solicited Where a union has engaged in a campaign of extensive and egregious violence directed against an employer the Board has refused to require a each employee to sign the petitions. With respect to the bargaining order. Union Nacional de Trabajadores and its agent Arturo first petition he testified that he encountered some em- Grant (The Carborundum Company of Puerto Rico and Carboundum Car- ployee resistance, but that after Mason was discharged ibbean. Inc.), 219 NLRB 862 (1975); Allou Distributor Inc., 201 NLRB he "didn't have a bit of trouble" obtaining signatures. 47 (1973); Herbert Bernstein, Alan Bernstein. Laura Bernstein. a coparmner- ship d/b/a Laura Modes Company, 144 NLRB 1592 (1963). Coates identified Mason as the "one who tried to orga- I It can be argued that Respondent's proffered evidence in this regard nize," and stated that Mason's discharge "cut the head does not demonstrate that the employees' disapproval of Mason's alleged off" the organizing drive. Coates testified that he deliv- conduct motivated their change of loyalty, but rather that it was the fact ered both petitions to the Union. He further testified that that the chief union adherent was discharged which caused them to co- operate with Coates' antiunion efforts. Respondent's proffered evidence shortly after the second petition the employees all does not establish that the employee petition was executed by most em- "voted" at the union hall to renounce further union rep- ployees after the cartoon posting but before Mason's discharge. 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD petition does not constitute "unusual circumstances" Having found that Respondent refused to bargain with within Ray Brooks v. N.L.R.B., 348 U.S. 96 (1954). 5 the Union in violation of Section 8(a)(5) and (1) of the Act, on and after February 25, 1980, by failing and refus- In no case has the Board or the courts evaluated the motivation of employees' subsequent change of mind as ing to respond to the Unon's bargaining proposals and by withdrawing recognition of the Union as the exclu- an unusual circumstance. Indeed, the goal of industrial by withdrawing recognition of the Union as the exclu- sive bargaining representative of the employees in the stability sought to be achieved by the Board as affirmed appropriate unit, I recommend that Respondent be or- by the Supreme Court would be frustrated if a Board appropriate unit, I recommend that Respondent be or- certification based on a secret-ballot Board-conducted election could be speedily nullified by the informal Union as the exclusive representative of its employees in election could be speedily nullified by the informal that unit. mechanism of an employee-conducted petition. This is so particularly in the instant case where the motivations of In cases where an employer has refused to bargain during the certification year, the Board has normally, in the employees are speculative, and where the subsequent the r as the remedial order, construed the certification year as petition and renunications occurred after Respondent re- commencing on the date the the employer commences fused to recognize its bargaining obligations and thereby c o t fused to recognize its bargaining obligations and thereby good-faith bargaining. Eckerd Drugs of Georgia, Inc., 248 frustrated effective bargaining by the Union. 6 NLRB 151 (1980); Regal 8 Inn, supra. In certain circum- Accordingly, I reaffirm my ruling made during the stances the Board will merely extend the certification course of the hearing that the evidence proffered by Re- year less the amount of time when the parties engaged in spondent as to the Union's loss of employee support substantial good-faith bargaining. Deister Concentrator during the certification is irrelevant and inadmissible.7 I Company, Inc, 253 NLRB 358, fn. 2 (1980). When the conclude that Respondent has failed to adduce relevant, nature of the employer's bad-faith bargaining requires a exist- ,,nature of the employer's bad-faith bargaining requires a competent, and probative evidence to establish the exist- full year of bargaining in order to effectuate the policies ence of extraordinary circumstances to justify the with- of the Act, the Board has ordered a full year of bargain- drawal of recognition from the Union. I find that Re- ing during which no representation or decertification spondent breached its bargaining obligations under the elections can be held despite the fact that the employer's Act and failed to bargain collectively and in good faith bad-faith bargaining occurred in the last few months of with the Union, and violated Section 8(a)(5) and (1) of the certification year. Glomac Plastics, Inc., 234 NLRB the Act on and after February 25, 1980, by failing to re- 1309, fn. 4 (1978). Where an employer has withdrawn spond to the Union's bargaining proposals, and by with- recognition from a union during the certification year, drawing recognition from the Union as the exclusive bar- and where the union after a substantial period of bargain- gaining agent of employees in the appropriate bargaining ing sought to induce employees to engage in acts of van- unit. dalism against the employer in order to support its bar- gaining position and thereafter the employees renounced IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES the union, the Board held that it would not entertain the UPON COMMERCE processing of a decertification petition until after the em- The activities of Respondent set forth above occurring ployer commenced good-faith bargaining for a reason- in connection with its operations described above have a able period of time, but the Board did not extend the close, intimate, and substantial relationship to trade, traf- certification year for an absolute 12-month period. Lee fic, and commerce among the several States and tend to Office Equipment, supra. lead to labor disputes burdening and obstructing com- In this case, the Union did not engage in misconduct merce and the free flow of commerce. during a period of bargaining. Furthermore, bargaining herein did not effectively commence, because Respond- V. THE REMEDY ent withdrew recognition based on an employees' peti- tion that had been initiated prior to the certification. I recommend that Respondent be ordered to cease and Clearly, Respondent was aware of the petition prior to desist from its unfair labor practices and to take certain any bargaining demand, and was therefore not of a mind affirmative action designed to effectuate the policies of any bargaining from the outset of the certi- the Act. to engage in any bargaining from the outset of the certi- the Act. fication year. Under these circumstances, I recommend that the full certification year commence on the date that ' Affordable Inns, Inc. d/b/a Regal 8 Inn, 222 NLRB 1258 (1976). The Board therein cited Cocker Saw Company, Inc., 186 NLRB 893 (1970), Respondent commences to bargain in good faith, and enfd. 446 F.2d 870 (2d Cir. 1971); and Williams Energy Company, 218 that during such time no question concerning the Union's NLRB 180 (1975). See also Kenneth B. McLean, d/b/a Ken's Building majority status can be raised. Supplies, 142 NLRB 235 (1963), 333 F.2d 84 (6th Cir. 1964); Lee Office Equipment, 226 NLRB 826 (1976), enfd. 572 F.2d 704 (9th Cir. 1978), and CONCLUSIONS OF LAW cases cited therein. 6 This is not to say that an employer or employees are not without re- 1. The Respondent, Lexington Cartage Company, Inc., course to the Board processes at the appropriate time. After the expira- tion of the certification year employees and the employer may file new is an employer engaged in commerce within the meaning representation petitions. Under certain circumstances the Board will en- of Section 2(2), (6), and (7) of the Act. tertain petitions for revocation of certification during the certification 2. Teamsters Local 651, affiliated with the Internation- year; e.g., defunction of the Union or radical change in the bargaining Brotherhood of Teamsters, Chauffeurs, Warehousemen unit. a] Brotherhood of Teamsters, Chauffeurs, Warehousemen ' See N.LR.B. v. American Steel Buck Corporation, 227 F.2d 927 (2d and Helpers of America, is a labor organization within Cir. 1955), enfg. 110 NLRB 2156 (1954). the meaning of Section 2(5) of the Act. LEXINGTON CARTAGE COMPANY, INC. 59 3. All truckdrivers employed by Respondent at its 1. Cease and desist from: Lexington, Kentucky facility, excluding all mechanics, (a) Refusing to recognize and bargain in good faith office clerical employees, professional employees, guards with Teamsters Local 651, affiliated with the Internation- and supervisors as defined in the Act, constitute a unit al Brotherhood of Teamsters, Chauffeurs, Warehousemen appropriate for the purposes of collective bargaining and Helpers of America, as the exclusive bargaining rep- within the meaning of Section 9(b) of the Act. resentative of its employees in the following bargaining 4. At all times since October 30, 1979, the Union has unit: been and is the exclusive bargaining representative of the employees in the aforesaid appropriate unit within the All truck drivers employed by the Respondent at its meaning of Section 9(a) of the Act. Lexington, Kentucky facility, excluding all mechan- 5. On and after February 25, 1980, by failing to re- ics, office clerical employees, professional employ- spond to the Union's bargaining proposals and by with- ees, guards and supervisors as defined in the Act. drawing recognition of the Union as the exclusive collec- tive-bargaining representative of the employees of Re- (b) In any like or related manner interfering with, re- spondent in the aforesaid unit, Respondent has failed and straining, or coercing employees in the exercise of the refused, and is failing and refusing, to bargain collective- rights guaranteed them in Section 7 of the Act. ly in good faith with the Union as the representative of 2. Take the following affirmative action which is nec- its employees, and thereby has engaged in and is engag- essary to effectuate the policies of the Act: ing in unfair labor practices within the meaning of Sec- (a) Recognize and, upon request, bargain in good faith tion 8(a)(5) of the Act. with the above-named labor organization as the exclusive 6. By the aforesaid refusal to bargain, Respondent has representative of all employees in the above-described interfered with, restrained, and coerced, and is interfer- unit. ing with, restraining, and coercing, employees in the ex- (b) Post at its Lexington, Kentucky, facility copies of ercise of the rights guaranteed them in Section 7 of the the attached notice marked "Appendix." 9 Copies of said Act, and thereby has engaged in and is engaging in notice, on forms provided by the Regional Director for unfair labor practices within the meaning of Section Region 9, after being duly signed by Respondent's au- 8(a)(1) of the Act. thorized representative, shall be posted by it immediately 7. The aforesaid unfair labor practices affect commerce upon receipt thereof, and be maintained by it for 60 con- within the meaning of Section 2(6) and (7) of the Act. secutive days thereafter, in conspicuous places, including Upon the foregoing findings of fact, conclusions of all places where notices to employees are customarily law, and upon the entire record, and pursuant to Section posted. Reasonable steps shall be taken by Respondent to 10(c) of the Act, I hereby issue the following recom- insure that said notices are not altered, defaced, or cov- mended: ered by any other material. (c) Notify the Regional Director for Region 9, in writ- ORDER 8 ing, within 20 days from the date of this Order, what The Respondent, Lexington Cartage Company, Inc., steps Respondent has taken to comply herewith. Lexington, Kentucky, its officers, agents, successors, and IT IS FURTHER ORDERED that those allegations in the assigns, shall: complaint as to which no violations have been found are hereby dismissed. t In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the find- ' In the event that this Order is enforced by a Judgment of a United ings, conclusions, and recommended Order herein shall, as provided in States Court of Appeals, the words in the notice reading "Posted by Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu- become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an shall be deemed waived for all purposes. Order of the National Labor Relations Board."