Alamo White Truck Service, Inc.

National Labor Relations Board - Board Decisions

Jan 30, 1959

122 N.L.R.B. 1174 (N.L.R.B. 1959)

1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organization, to form,
join, or assist any labor organization, to join or assist Washington-Oregon
Shingle Weavers District Council, to bargain collectively through representa-
tives of their own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, and to refrain from
any or all such activities, except to the extent that such right 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 National Labor Re-
lations Act.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of the above-named or any other labor organization.
E.Z. PLY PANEL CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Alamo White Truck Service, Inc. and Lodge 36, International
Association of Machinists , AFL-CIO, and General Drivers
and Helpers Local 657, affiliate of International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
America. Case No. 39-CA-662. January 30, 1959
DECISION AND ORDER
On July 16, 1958, Trial Examiner John C. Fischer issued his
Intermediate Report in the above-entitled proceeding, finding that
it would not effectuate the policies of the Act for the Board to
assert jurisdiction in this case and that the Respondent had not
engaged in certain unfair labor practices and recommending that
the complaint be dismissed, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the General Counsel
filed exceptions to the Intermediate Report and a supporting brief.
The Respondent filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report,' the exceptions, the briefs, and the entire rec-
ord in the case, and finds merit in the General Counsel's exception.
Accordingly, it adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, only to the extent that they are con-
sistent with the findings below 2
The Board hereby deletes Appendix I, the Trial Examiner's Digest of Record, from
the Intermediate Report.
2 The complaint did not allege independent violations of Section 8(a) (1) of the Act,
and was not amended to do so. Notwithstanding, the Trial Examiner found such an
allegation and held that the General Counsel had not proved a violation of that section.
The Trial Examiner asserts that the allegation is based upon testimony that the service
122 NLRB No. 139.
. ALAMO WHITE TRUCK SERVICE, INC. 1175
1. Since July 1, 1957, the Respondent has engaged in the sale and
servicing of motortrucks at San Antonio, Texas, under a dealership.
agreement with The White Motor Company.' The Respondent's
receipts of merchandise from outside the State of Texas during the
12 months following July 1, 1957, were expected to be valued at
more than $500,000. During the first 6 months of operation the
Respondent sold 31 new and used trucks, all for use by commercial
firms. In addition, all the Respondent's service customers are com-
mercial establishments. In view of the foregoing, we find that the
Respondent is engaged in a nonretail enterprise 4 and that the value
of its annual inflow meets the Board's current jurisdictional stand-
ards.' Accordingly, contrary to the Trial Examiner, we find that
the. Respondent is engaged in commerce within the meaning of the
Act and that it will effectuate the policies of the Act to assert juris-
diction herein.6
2. We disagree with the Trial Examiner's finding that the Re-
spondent did not violate Section 8(a) (5) of the Act by refusing to
bargain with the Charging Unions.
. On June 20, 1957, following an election,' the Board certified the
Charging Unions as the collective-bargaining representative for a
unit of production and maintenance employees, including parts men-
at White's San Antonio operations. On June 24, 1957, the Charging
Unions requested White to bargain with them as exclusive bargain-
ing representative of the employees in the certified unit. The re-,
quest was made to Lloyd M. Cregor, Jr., White's San Antonio
branch manager. The parties thereupon agreed that contract nego
tiations would begin on June 27, 1957. A day after the bargaining
request, on June 25, Cregor notified the Charging Unions that White.
was terminating its San Antonio branch on June 30, 1957.
White ended its San Antonio operations as predicted in Cregor's
letter. However, prior to July 1, the Respondent, which was in-
corporated on June 19, 1957, with Cregor as its president and gen-
eral manager, executed a dealership agreement with White and
agreed to buy White's inventory of parts, tools, shop equipment,
and office equipment. In addition, the Respondent leased the loca-
tion occupied by White for 1 year beginning July 1, 1957. On July
1 and again on September 5, 1957, the Charging Unions requested
manager of Respondent ' s predecessor, White, interrogated and threatened several em-
ployees in connection with their union activities . This testimony was introduced only
in support of the alleged violation of Section 8(a) (3) of the Act. Accordingly , we dis-
agree with the Trial Examiner and find that the Respondent 's liability for White 's possible
violation of Section 8(a)(1) Is not an issue in this case.
3 Referred to herein as White.
4J. S. Latta & Son, 114 NLRB 1248; Treasure State Equipment Company, 114
NLRB 529.
s Siemons Mailing Service, 122 NLRB 81.
6 The Respondent 's motion to dismiss the complaint on jurisdictional grounds,is denied.
7The White Motor Company, 39-RC-1122 ( unpublished).
1176. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent recognize and bargain with them. The Re-
spondent's refusal of these requests is the basis for the alleged vio-
lation of Section 8 (a) (5).
. Before July 1, 1957, White's San Antonio branch was engaged
in the sale and servicing of new and used trucks. In addition to a
sales department it had a service department and a parts depart-
ment. The employees in the service and parts departments con-
sisted of three parts men supervised by a parts manager.
The Respondent is engaged in the sale and servicing of new and
used trucks at White's former branch location. Its service depart-
ment consists of 12 mechanics and 1 porter, supervised by the same
service manager formerly employed by White. The porter and six
of the seven mechanics with which the Respondent began its service
department had been employed as such by White until the change-
over. The seventh mechanic had been employed in White's parts
department. The five other mechanics have been newly hired. The
Respondent's service department furnishes the same repair and
maintenance service formerly supplied by White. The sole change
made by the Respondent was the abolition of the parts department.
The Trial Examiner found that the certificate issued to the Charg-
ing Unions was operative against White and not against the Re-
spondent which is a "new and different entity from White" and
therefore the obligation to honor the certificate did not extend to
the Respondent.
The Board has long held that a certificate runs with the employ-
ing industry and that a change of ownership does not absolve a
successor from the duty to bargain with the certified union.' In
Cruse Motors, Inc.,' the Board said:
A mere change in ownership of the employment enterprise is
not so unusual a circumstance as to affect the certification.
Where the enterprise remains substantially the same, the obli-
gation to bargain of a prior employer devolves upon his suc-
cessor in title. A purchaser in such a situation is a successor
employer....
In the present case, we find that the Respondent has taken over
substantially intact the business formerly operated by White, and
is a successor employer.
The Respondent further contends that the unit for which the
Unions were certified is substantially different from the present unit
because the parts department, which formerly employed three men,
has been discontinued, and that, consequently, it was not required
to honor the certificate. Of the three partsmen employed by White,
one has been retained by the Respondent as a mechanic and is in-
8 E.g., Investment Building. Cafeteria, 120 NLRB 38.
8 105 NLRB 242, 247.
ALAMO WHITE TRUCK SERVICE, INC. 1177
eluded in the unit. We find that this diminution of the unit is not
substantial enough to change either the certified unit or the em-
ploying industry.10 Accordingly, we find that the Respondent's
refusal to bargain with the Charging Unions was a violation of
Section 8(a) (5) and (1) of the Act."
3. We agree with the Trial Examiner's finding that the Re-
spondent's refusal to hire five former White employees-Wainscott,
Holub, Larkin, Bruels, and Hermes-was not discriminatorily mo-
tivated.12
The Respondent -commenced operations on July 1, 1957, with an
employee complement of former White employees chosen by Cregor
on June 27. The alleged discriminatees were the only White em-
ployees not retained by the Respondent. According to Cregor, he
did not hire these five individuals because of their conduct during
the. last month of White operations convinced him that they were
not the kind of employees "who would assist [him] in protecting
the investment [he] had made." This opinion was based on the
following uncontradicted facts :
In the latter part of May 1957, White instructed Cregor to re-
condition all used trucks on hand and get them sold before the end
of June, when White was to cease its operations at San Antonio.
White left to Cregor's discretion the amount of overtime to be given
the mechanics in readying the trucks for sale. In turn, Cregor
directed service manager Drumm not to stint on overtime in re-
pairing the trucks. Drumm's accepted testimony is that he asked
each of the employees to work overtime-even begged them to.
According to the credited testimony of Cregor, several of the alleged
discriminatees refused this request. Work records for the month of
June show that the alleged discriminatees averaged 8.5 hours of
overtime in that month, whereas the other service employees aver-
aged more than 5 times as much or 45.4 hours. During this time,
Drumm also told Cregor that the five alleged discriminatees were
"bunching" and off their jobs, that Bruels and Larkin considered.
themselves machinists and objected to working on general overhaul
and repair, and that Hermes was "passing the buck" to other
mechanics.
The Trial Examiner found that Cregor was a man of integrity
and credited his explanation for the refusal to hire the five alleged
discriminatees.
As against the foregoing, the General Counsel offered testimony
that the alleged discriminatees were the only members of the Un-
"Investment Building Cafeteria, supra. Cf. Electric Sprayit Company, et al., 67
NLRB 780, 783.
"Investment Building Cafeteria, supra.
12 Although excepting to the Trial Examiner's recommended dismissal of the 8(a)(3)
allegation, the General Counsel has not discussed this exception in his brief.
1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ion, that Hermes had acted as a union observer at the representa-
tion election conducted by the Board, and that, according to the
alleged discriminatees, on several occasions Drumm had threatened
economic sanctions and had expressed antiunion sentiments while
interrogating them about their union activities and sentiments. This
testimony about interrogation and threats was denied by Drumm.
The Trial Examiner has not expressly resolved the issue of credi-
bility involved. However, we note that the Trial Examiner dis-
credited the testimony of the alleged discriminatees that they had
never refused to work overtime, and credited that of Drumm on
this subject. Consistent with the Trial Examiner's crediting of
Drumm as against the alleged discriminatees in another connection
where their testimonies conflicted, we find that Drumm did not in-
terrogate the alleged discriminatees about their union sentiments or
threaten them with reprisals for union activities.
There remains to support an inference of discrimination only the
fact that all the discriminatees were members of the Union and
that one, Hermes, had acted as a union observer at the election.
There is, however, no evidence that the Respondent was aware of
the union activities of the other four alleged discriminatees.
Upon the basis of the entire record, we are not convinced that the
Trial Examiner erred in crediting Cregor's explanation for his
failure to hire the alleged discriminatees. Accordingly, we affirm
his finding that the Respondent did not violate Section 8(a) (3) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in and is en-
gaging in certain unfair labor practices, we shall order that it cease
and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
We have found that the Respondent has committed unfair labor
practices within the meaning of Section 8(a) (5) and (1) of the Act
by refusing to bargain collectively with the Charging Unions as the
exclusive representative of the employees in an appropriate unit.
We shall therefore order that the Respondent, upon request, bargain
collectively with the Charging Unions as the exclusive representative
of its employees in the appropriate unit concerning rates of pay,
wages, hours and other terms and conditions of employment, and,
if an understanding is reached, embody such understanding in a
signed agreement.
ADDITIONAL CONCLUSIONS OF LAW
1. Alamo White Truck Service, Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
ALAMO WHITE TRUCK SERVICE, INC. 1179
2. All production and maintenance employees employed at the
Respondent's operations at San Antonio, Texas, including parts
men, group leaders, mechanics, machinists, their leadermen, helpers,
and apprentices, janitors, and porters, but excluding all other em-
ployees, office clerical employees, professional employees, sales em-
ployees, service clerical personnel, stock records clerks, guards,
watchmen, and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
3. Lodge 36, International Association of Machinists, AFL-CIO,
and General Drivers and Helpers Local 657, affiliate of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, were on June 20, 1957, and at all times since have been,
the exclusive representative of all employees in the aforesaid ap-
propriate unit for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act. Respondent, Alamo White
Truck Service, Inc., from July 1, 1957, and at all times thereafter,
by refusing the bargain collectively with Lodge 36, International
Association of Machinists, AFL-CIO, and General Drivers and
Helpers Local 657, affiliate of International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, has en-
gaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
ORDER
Upon the entire record and pursuant to Section 10(c) of the Na-
tional Labor Relations Act, as amended, the National Labor Relations
Board hereby orders that Respondent Alamo White Truck Service,
Inc., San Antonio, Texas, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Lodge 36, International
Association of Machinists, AFL-CIO, and General Drivers and
Helpers Local 657, affiliate of International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, San
Antonio, Texas, as the exclusive representative of all its employees
in the appropriate unit described above.
(b) In any like or related manner interfering with, restraining,
or coercing its 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 membership in a labor organiza-
tion as a condition of employment as authorized in Section 8(a) (3)
of the Act.
1180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds.will
effectuate the policies of the Act:
(a) Upon request; bargain collectively concerning wages, hours,
and • other conditions of employment with Lodge 36, International
-Association of Machinists, AFL-CIO; and General Drivers and
Helpers Local 657, affiliate of International Brotherhood of Team-
. sters, Chauffeurs, Warehousemen and Helpers of America, as the
exclusive representative of all employees in the aforementioned
appropriate unit, and if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its service shop in San Antonio, Texas, copies of the
notice attached hereto marked "Appendix A." 13 Copies of said
notice to be furnished by the Regional Director for the Sixteenth
Region shall, after being duly signed by an authorized representative
or representatives of the Respondent, be posted by the Respondent
immediately upon receipt thereof and maintained by it fora period
of 60 consecutive days thereafter in conspicuous places, including
all places where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that such
.notices are not altered, defaced, or covered by any other material.
(c) Notify the said Regional Director in writing, within 10 days
from the date of this Order, what steps it has taken to comply
herewith.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
v In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
APPENDIX A
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 Labor Manage-
ment Relations Act, we hereby notify our employees that :
WE WILL bargain collectively, upon request, with Lodge 36,
International Association of Machinists, AFL-CIO, and Gen-
eral Drivers and Helpers Local 657, Affiliate of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as the exclusive representative of all our
employees in 'the unit described herein with respect to rates of
pay, hours of employment, and other conditions of employment,
and if an understanding is reached, embody such understanding
in a signed agreement. The bargaining unit is :
All production and maintenance employees including parts
men, group leaders, mechanics , machinists , their leadermen,
ALAMO WHITE TRUCK SERVICE, INC. 1181
helpers, and apprentices, janitors and porters; but excluding
all other employees, office clerical employees, professional
employees, sales employees, service clerical personnel, stock
records clerks, guards, watchmen, and supervisors as defined
in the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them in Section 7 of the Act, except to the extent
such rights may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as
authorized in Section 8(a) (3) of the National Labor Relations
Act.
All our employees are free to become, remain, or refrain from be-
coming members of the above-named Union or any other organization
except to the extent this right may be affected by an agreement in
conformity with Section 8(a) (3) of the Act.
ALAMO WHITE TRUCK SERVICE, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
These proceedings , brought under Section 10(b) of the National Labor Relations
Act, as amended (61 Stat. 136), herein called the Act , arose by reason of charges
filed by Lodge 31, International Association of Machinists , AFL-CIO, and General
Drivers and Helpers, Local 657, affiliate of International Brotherhood of Team-
sters , Chauffeurs , Warehousemen and Helpers of America , hereinafter jointly re-
ferred to as the Unions , or joint Union , under dates of July 3, 1957, and
December 30, 1957, that Alamo White Truck Service , Inc.,' hereinafter referred
to as Respondent , has engaged in and is now engaging in certain unfair labor
practices affecting commerce . The complaint , issued on January 28 , 1958, alleged
violation by the Respondent of Section 8(a)(1)(3 ) and (5) of the Act.
The original charge filed asserted violations of Section 8(a),(1),(3 ), and (5) of the
Act by White Motor Company of Cleveland and Respondent Alamo. A first
amended charge filed by V. M. Cameron on behalf of the Machinists and the
Teamsters on December 30, 1957, alleged violations of the same provisions of the
Act as to Respondent Alamo, only. (It is important to note at this point that the
charges herein mentioned were filed within the statutory 6-month period after
allegations of complaints were made. ) The Respondent , Alamo, filed timely answer
to the complaint , admitting certain allegations thereof but in substance denying the
allegations of violations of the Act on its part in the complaint . Respondent
Alamo set up an affirmative defense based on facts introduced at the hearing
1 Alamo White Truck Service, Inc., the Respondent herein, may sometimes be referred
to as Alamo; the General Counsel or his representative may be referred to as the General
Counsel ; the White Motor Company of Cleveland and the San Antonio branch of White
Motor will be or may be referred to as such ; and Lodge 36 of the International Associa-
tion of Machinists and General Drivers and Helpers Local 657, affiliate of International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of America,, may
hereafter be referred to as the Union.
1182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
saying that: "in any event conditions and circumstances have so changed since
Respondent began business that any proceeding involving the San Antonio retail
branch of the White Motor Company has no bearing or validity upon Respondent
and any certification in connection with such retail branch is no longer effective and
has no application insofar as Respondent is concerned."
On the issues thus framed by the complaint and the answer, this case came on
to be heard before John C. Fisher, the duly designated Trial Examiner at San
Antonio, Texas, on March 18 and 19, 1958. At the hearing, all parties were
afforded full opportunity to be heard, to examine and cross-examine witnesses, to
introduce relevant evidence, to argue the issues orally, and to file briefs and
proposed findings of fact and conclusions of law. (At the time of the hearing, the
Teamsters union had dropped out of the case.) Subsequent to the closing of the
hearing, and after oral argument at the hearing, counsel for the parties filed briefs,
which have been carefully considered by the Trial Examiner. The numerous cases
cited by counsel were examined and studied.
Upon the entire record in the case, and from my observation of the witnesses,
and in view of the controlling law, I make the following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
A. Facts Adduced at Hearing Concerning Jurisdiction
The following stipulations entered into between counsel at the hearing, which
the Trial Examiner considers binding on each party to this proceeding are neces-
sary for proper understanding and orientation of the case.
On May 7, 1957, at the request of the Unions, the National Labor Relations
Board (a) directed an election for the purposes of selecting a representative for
collective bargaining among the employees at the San Antonio branch office of the
White Motor Company, an Ohio corporation, with its principal offices and head-
quarters at Cleveland, Ohio (Case No. 39-RC-1122, unpublished). The appro-
priate bargaining unit comprised all production and maintenance employees at the
Employer's White Motor Company San Antonio, Texas, operations, including
parts men, group leaders, mechanics, machinists, their leader men, helpers, ap-
prentices, janitors, and porters, but excluding all other employees including office
clerical employees, professional employees, sales employees, service clerical per-
sonnel, stock record clerks, and guards, watchmen, and supervisors as defined by
the Act. The election resulted in a tally of votes showing that eight employees
were for the joint petitioning Unions (the Machinists and the Teamsters) and
seven against. It further was shown that: (a) on June 20, 1957, the National
Labor Relations Board certified the Unions as exclusive bargaining agent for em-
ployees of the San Antonio branch of the White Motor Company in the unit
described above; (b) on June 24, 1957, the Union requested .the San Antonio
branch of the White Motor Company to bargain with the Union as the exclusive
bargaining representative of its employees in the above-described bargaining unit;
(c) further, a date, June 27, was set for such bargaining on basis of and according
to instructions directed to San Antonio branch officials from Mr. R. C. Crotty,
labor relations director of the White Motor Company in Cleveland; (d) on June 25,
1957, the White Motor Company of Cleveland notified the joint Union that its
San Antonio branch was being terminated and closed; and (e) on June 29, the
San Antonio branch of the White Motor Company was terminated and closed, and
employment. of all employees of that branch office was ended as of June 30.
It was further stipulated and shown. at the hearing that on July 1, the Union,
having been notified that the San Antonio branch of the White Motor Company
was closed, requested that the newly organized Alamo White Truck Service, Inc.,
recognize and bargain with the Union as the exclusive bargaining agent for its
employees, but that such request was declined by the Respondent Alamo. Finally,
on September 5, the Union again requested that Respondent Alamo recognize and
bargain with it as the exclusive bargaining agent for the employees of Alamo. On
September 9, the attorney for Alamo answered in a letter addressed to the two
business agents of Local 657 and Lodge 36, representatives of the union bargaining
representatives, in which he stated:
GENTLEMEN: Alamo White Truck Service, Inc., has referred to us your
letter of September 5, 1957, requesting that you be recognized as the exclusive
bargaining agent for labor in that company's operations, and you refer to
Case No. 39-RC-1122.
ALAMO WHITE TRUCK SERVICE, INC. 1183
If you will recall, that case was against the White Motor Company at the
time White Motor Company was operating in San Antonio under a branch
office setup. Effective June 30, 1957, White Motor Company withdrew from
San Antonio. Effective July 1, 1957, Alamo White Truck Service, Inc., began
operations as a distributorship in San Antonio and is a completely separate
and distinct organization.
Pursuant to your prior complaint in this matter, it is now under investigation
by the National Labor Relations Board, Houston, Texas, Case No. 39-CA-
662,2 under the attention of Mr. Louis T. Roebuck. You are aware of this
fact and should realize that no action can be taken until that investigation is
completed and a report is made.
The letter was signed by T. W. Lewis, attorney for Alamo, the Respondent herein.
The Trial Examiner finds, as pointed out by the General Counsel, that on
April 26, 1957, the National Labor Relations Board did assert jurisdiction over the
San Antonio branch of the White Motor Company (Case No. 39-RC-1122). The
Trial Examiner takes official notice that after the resulting election in that case, the
Board, on June 20, 1957, certified the joint Unions, the Machinists and the Team-
sters, as the exclusive bargaining agent for the employees within the above-
described unit. The Trial Examiner also is cognizant of the fact that the Unions
on June 24, 1957, requested the White Motor Company, at its San Antonio branch
to recognize it or them as the exclusive bargaining agent of the employees within
the unit. The request was directed to Lloyd M. Cregor, Jr., San Antonio branch
manager for the White Motor Company. Cregor notified the Union by letter, as
noted, that the San Antonio branch of the White Motor Company was being
closed; and the parties do not question that on June 29 the White Motor Company
terminated the San Antonio, Texas, operations, and on June 30, 1957, the employ-
ment of all employees was terminated at that branch.
The record shows that Alamo was incorporated on June 19, 1957, with Lloyd
M. Cregor as its president, and that subsequent to this date, but prior to July 1,
Respondent executed a "contract to represent the White Motor Company of Cleve-
land in the sale of its products in the San Antonio area." In taking over, the
Respondent also bought from the White Motor Company the initial inventory of
parts, tools, shop equipment, and office equipment. The location in which the
White Motor Company had operated was leased to the Respondent for 1 year.
Since that time the Respondent has operated primarily as a service operation 3
for owners of trucks manufactured by the White Motor Company, and is a fran-
chised local dealer in White trucks.
At Dallas, Texas, the White Motor Company has and at all times material
hereto had a large and flourishing wholesale and retail sales and distribution
agency-in fact 10 times as large as Alamo or the San Antonio branch. (The
San Antonio branch of the Company was completely minor in the affairs of the
White Motor Company of Cleveland with respect to sales, distribution, and serv-
icing of its products as compared with the Dallas branch.) It was decided to close
the San Antonio outlet on June 30, and to transfer all sales and distribution of its
trucks to the Dallas branch. The obvious reason was that sales of trucks had
declined in 21/2 years from 85 in 1955 to 34 in 1957, with a corresponding drop
in income from $829,741 to $491,374. Also, San Antonio's two largest customers
had moved to Houston and El Paso.
At this time of decision, as indicated, Mr. Lloyd Cregor and Willard Boone
decided that they would undertake to set up an independent servicing and dealer
station for White trucks. To this end, they raised $50,000 by using their savings
and borrowing on their life insurance. That deal, the record shows, was made and
Alamo, headed by Cregor as president went into business on July 1, 1957, a
licensed Texas corporation. On that day, Alamo employed most of the former
employees of the White Motor San Antonio branch.
There is no question but that Respondent Alamo refused to deal with the Union
as certified as representative of its employees-contending that Alamo was not an
affected party. The General Counsel contended, as expressed at the hearing in
argument and in brief , that the mere fact that Alamo hired former employees of
a The instant case, No. 39-CA-662.
3 The General Counsel contends, however, that since July 1, 1957, the Respondent has
substantially continued the same industry in operation of the San Antonio branch of the
White Motor Company : "the said industry in operation being the sale and service of
White Motor trucks and products, with substantially the same employees as had been
employed by the White Motor Company."
1184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the White Truck Company must impel this Trial Examiner to find an illegal asso-
ciation or "deal" between White and Alamo. This inference, the Trial Examiner
cannot find, because it is so clearly apparent upon the record herein that the
White Motor Company intended to and did divest itself of all operations in the
San Antonio area, and that Cregor and his associates who formed the Alamo
corporation were willing to gamble on setting up a local retail operation to sell
and service trucks to the general public, manufactured by White or other manu-
facturers, and at the same time gamble on whether or not they could dispose of the
used White vehicles and other equipment acquired by them in the transaction
with the White Motor Company. Not only the business, but theofunctions changed.
The General Counsel erroneously contends that the shop operation of the Re-
spondent Alamo has in no way been altered from that of the White Motor
Company because it still provides the same services for automatic repair, mainte-
nance, and service "with the one exception that it no longer has a parts department
directly within the franchise operations of White-the only change is the reor-
ganization at the management level." The General Counsel goes further in at-
tempting to answer argument of Respondent Counsel Weiss. Weiss contended
that the operations of the Respondent Alamo are purely retail, rather than whole-
sale in nature. General Counsel argues that it makes no difference whether Alamo
sold I truck or 17 new or used trucks in determining whether or not the operations
of Alamo are wholly and completely intrastate.
The Trial Examiner, on the basis of the facts presented to him, is impelled to
find that the Respondent Alamo, on July 1, 1957, became an independent local
enterprise-an entirely different business. Having so found, it follows that Alamo
cannot be found subject to the contraventions of the Act, if any, which might
or may be charged to the White Motor Company during the time or the interim
of time set forth in the charges upon which the complaint herein is based. Cregor
and his associates who formed Alamo as a corporation, on the facts shown herein,
cannot be said to have inherited in any respect any alleged contraventions of the
Act. Alamo became a local, intrastate enterprise, engaged in the selling and
servicing of trucks manufactured by the White Motor Company of Cleveland,
Ohio, and other manufacturers, except that Alamo, for purely economic reasons,
did dispose of used trucks manufactured by White and owned by White at the time
that Alamo took over-locally and not otherwise. The parental relationship between
White and its San Antonio operation was abrogated-the umbilical cord had been
severed.
It has been shown that Alamo leased a part of the building where the old
San Antonio branch of the White Motor Company had been operating; that the
lease expired June 30, 1958, without option to renew (White has advertised it for
sale); that the White Motor Company canceled all of its insurance, liability and
otherwise, and Respondent Alamo had to make other contracts for insurance and
did so with other companies than those dealt with by White; and further, that the
Respondent Alamo did not in any respect benefit by any of the financial connec-
tions that the White Motor Company had in connection with financing or method
of purchase or control of purchase, nor did Cregor and associates have the financial
corpus of White Motor Company upon which to draw. In fact, Alamo was worse
off than San Antonio branch which lost its two largest customers and its only
possible wholesale purchasers by their removals to Houston and El Paso.
B. Concluding as to Jurisdiction
The Trial Examiner is bound by the prior decisions of the Board. On July 1,
1957, Alamo became a purely intrastate retail and servicing business for trucks.
If, as contended by the General Counsel, the business done by the White Motor
Company during the 6 months preceding the issuance of the complaint herein
may be projected on the basis of the sale of 1 or 17 trucks by Alamo, it clearly
appears that the jurisdictional standards of the Board have not been met, and the
complaint should be dismissed. Should the Board view, under present standards,
on a projection basis for the 6-month period preceding the issuance of the com-
plaint herein by the White Motor Company as supplemented by the business done
by Alamo after July 1, 1957, there is still a lack of showing of jurisdiction based
on dollar volume of business as enunciated by the Board in its last statement
(1957) Annual Report which requires a direct inflow of $1,000,000 for a retail or
service enterprise. Thus, the complaint should be dismissed.
For the reasons stated, it will be recommended that the motion to dismiss the
complaint upon jurisdictional grounds, made by the Respondent Alamo White
Truck Service, Inc., be granted.
ALAMO WHITE TRUCK SERVICE, INC. 1185
II. THE UNIONS INVOLVED
Lodge 36, International Association of Machinists, AFL-CIO, and General
Drivers and Helpers Local 657, affiliate of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, jointly referred to as the
Union, are labor organizations within the meaning of Section 2(5) of the Act ad-
mitting employees of Respondent into membership.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Although the Trial Examiner will recommend the dismissal of this complaint on
grounds of lack of jurisdiction by Board standards, it is possible that the Board
will assume jurisdiction of the case. Under common law and code practice, a
judge, particularly nisi prius , will not pass on the merits of a case if jurisdiction is
wanting. The applicable theory, long established, is that a properly constituted
court or tribunal can neither be vested with, if unentitled, nor ousted from juris-
diction, if entitled. Ordinarily, an order to dismiss would be entered by a nisi prius
judge-from which an appeal could then be taken. However, under the Admin-
istrative Procedure Act which controls the quasi judicial officers, designated Hearing
Examiners, no definitive ruling governing their plenary power has been handed
down. Nevertheless, the National Labor Relations Board, functioning under the
National Labor Relations Act, on June 12, 1958, handed down a decision-Com-
bined Century Theatres, Inc., 120 NLRB 1379, in which the Board held, apparently,
that a Trial Examiner should recommend only to the Board in his Intermediate
Report as to jurisdiction, but should then handle the case on the merits. The
Trial Examiner in this case , is so bound . Accordingly , he will not issue an order
dismissing complaint , but will file an Intermediate Report and Recommended Order
based on the merits and his findings of fact and conclusions of law.
There are three alleged violations of the Act charged against Respondent Alamo
in this case as hitherto set out, i.e., Section 8(a)(1),(3), and (5). The alleged viola-
tion of Section 8(a)(5) will be dealt with first. Section 8(a)(5) makes it an unfair
labor practice for an employer to refuse to bargain with a union which represents
the majority of his employees. In this case, it has been established that White
Motors Company had been directed by the Board to bargain with the certified
Unions. However, it has been found by the Trial Examiner that Alamo was a
new and different entity from White Motor and legally was not subject to the
Board's certification of the Unions. It is accordingly found by the Trial Examiner
that Alamo was under no obligation to bargain with the Unions. It will be recom-
mended, by the Trial Examiner , that the allegations of the complaint concerning
refusal to bargain be dismissed.
A. Alleged Violations of Section 8(a) (1)
The disposition of the allegations in the complaint dealing with alleged violations
of Section 8(a)(1) will next be handled by the Trial Examiner. The complaint
alleged and the General Counsel argued that his proof established violations of
Section 8(a)(1) of the Act in that Respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed by Section 7 of the
Act and did thereby engage in unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act. General Counsel bottoms this allegation on the fact that
the record reveals that, while the White Motor Company was still operating prior
to the Board-ordered election, Carroll Drumm, the service manager at the White
San Antonio branch , engaged in interrogation of employees concerning their union
activity and made expressed threats concerning wages and employment. The Trial
Examiner has already decided that any alleged unfair labor practices, if true,
committed by White Motor, are not inherited by Alamo. Under his finding, this
allegation does not constitute a cause of action against Alamo and. is subject to
demurrer, and the evidence should be demurred to as surplusage under applicable
rules of procedure and practice.
The cogent testimonies , anent this phrase of the case, are included in the at-
tached Appendix I, entitled "Trial Examiner 's Digest of Record " and are made a
part of the Intermediate Report by reference.
B. Alleged. Violations of Section 8(a)(3)
The resolution of the alleged violations of Section 8(a)(3) of the Act, charging
discrimination by Alamo against Leon F . Wainscott , Voyt J. Holub , C. F. Larkin,
Ray Bruels , and E . A. Hermes, present the last issues of this case for disposition
by the Trial Examiner.
505395-59-vol. 122 76
1186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleged that from June 29, 1957, to the present time Alamo did
and continues to discriminate against the above-named five employees in regard
to their terms or conditions of employment by refusing to employ them when
Respondent succeeded to the business of sale and service of White trucks formerly
owned and operated by White Motor Company; and that Respondent did refuse or
fail to employ the employees named for the reason that they joined or assisted
the Union or engaged in other concerted activity for the purposes of collective
bargaining or other mutual aid or protection, and thereby Respondent engaged in
unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act.
The Trial Examiner finds, on the basis of the whole record, that the General
Counsel failed to prove and establish these allegations of his complaint by a
preponderance of substantial evidence. Accordingly, it will be recommended to
the Board that these counts against Respondent Alamo be dismissed.
The facts as found by the Trial Examiner are these:
On May 7, 1957, pursuant to a Decision and Direction of Election issued by
the Board on April 26, 1957, an election by secret ballot was conducted in Case
No. 39-RC-1122. The tally of ballots shows that there were approximately 15
eligible voters but that 16 ballots were cast, of which 8 were for the Unions,
7 were against, and 1 was challenged. The Board certified the Unions on June 20,
1957, as the bargaining representative for the employees of the White Motor Com-
pany, San Antonio branch. Feelings and emotions ran high, and there was no
evidence at the end of the hearing before the Trial Examiner that conditions had
ameliorated. Threats of violence were bandied about at the hearing and are part
of the record.
White Motor Company had suffered business losses at its San Antonio branch
for several months and decided to close that operation. There is no charge nor
proof that this action was motivated to spite the Unions. In the latter part of
May, Branch Manager Cregor was instructed by White officials to recondition all
used trucks on hand and get them sold before the end of June. It appears that
White had a long-established policy of renovating and disposing of all used trucks
at the end of each quarter: March, June, September, and December. Cregor was
instructed by White "to be sure and sell every used truck before the end of June."
White Vice President Mosteller left to Cregor's discretion the amount of overtime
to be given the mechanics in accomplishing the directive. Cregor immediately
called in Carroll Drumm, the service manager, and ordered Drumm: "Carroll,
regardless of how much overtime the men have to take, we must get these trucks
out, and you tell the men they can have every bit of overtime they can possibly
put in. We have to get these trucks ready."
Queried by Counsel Weiss as to whether Drumm had any difficulty in getting
any employees to work overtime in this emergency, Cregor credibly testified: "I
checked with Mr. Drumm. On each day I checked with him beginning the fol-
lowing week and he reported back to me how many men were working and how
many weren't, and I asked him why the other men weren't working and he said
that they had told him they just had something else to do. I have never been
what you would call a hard boss, and I was very appreciative of the boys who did
work overtime, and some of them worked up until 1:00 or 2:00 or 3:00 o'clock
in the morning several nights in order to help The White Motor Company."
Cregor testified that several of the mechanics would not work overtime. Drumm's
accepted testimony is that he asked each of the employees to work overtime-
even begged them to.
The record indicates that the five alleged union discriminatees, Bruels, Hermes,
Holub, Larkin, and Wainscott worked relatively little overtime in this rush period,
while the employees retained by Alamo on July 1, averaged between six and seven
times more hours overtime than the average of the five union adherents not re-
tained. (See Respondent's Exhibit No. 3.) 4 Each challenged discriminatee testified
that he never refused to work overtime when asked. The Trial Examiner did not
believe their testimonies, and General Counsel's Exhibit No. 3 justifies his con-
clusion. They withheld their services for reasons of their own.
Cregor and Boone incorporated Alamo on June 19, but did not take over the
business until July 1. From the last week in May up to the last week ending
June 29, Cregor had an opportunity to observe all of White's employees operate
a rush program before he embarked on his own business adventure with a White
branch which had been losing money. He had been an observer during the pre-
4 The following list shows the hours total overtime 4 weeks (including inventory time)
from June 8 through June 29: Bruels-14.7, Cannon-70.6, Hermes-9.7, Holub-8.3,
Larkin-8.6, Lowry-62.3, Markum-36.3, Smith-62.8, Woods-41.7, Schupp-8.7,
Wainscott-1.1.
NEVILLE FOUNDRY COMPANY, INC . 1187
vious 2 or 3 months while the unionization campaign was being waged. He had
had reports from service manager Drumm that the five were "bunching," and were
off their jobs . Drumm reported to him that Bruels and Larkin had taken the
position that they had hired out as machinists and not as mechanics, and objected
to working on "the line" of general overhaul and repair . He had been told that
Hermes was "passing the buck" to other mechanics.
It was with these things in mind that Cregor sat down on June 28 , 1957, and
made his decision as to whom he would keep in his employ on July 1. Those
he would not keep were given 2 weeks severance pay by White Motors and were
given recommendations for use in securing other employment.
Upon the stand, Cregor gave his mental processes used in deciding whom to
employ. Cregor impressed the Trial Examiner as a man of integrity . I accept his
explanation of his reasoning hiring the men he did and find that Cregor was not
motivated by any union animus . He did the only sensible thing a man in his
situation could do-hire men of proven willingness to help out in emergency.
Cregor's controlling reason as stated under oath was: "I knew one thing, that no
company can succeed any greater than the employees want it to succeed. I knew
that every employee of my company would have to be willing to go an extra
mile, they had to be able to do anything in the . world to help us make a success.
That was the decision , the prevalent decision , and when I sat down there the
middle of that week I decided on the men I would pick, the men I felt who would
assist me in protecting the investment I had made ." Such reasoning does not
constitute illegal motivation.
It will be recommended that the allegation charging Respondent Alamo with
violation of Section 8(a)(3) and (1) be dismissed.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case , I make the following:
CONCLUSIONS OF LAW
1. Alamo White Truck Service , Inc., of San Antonio, Texas, is not engaged in
commerce within the meaning of Section 2(6) and (7) of the Act.
2. Lodge 36, International Association of Machinists , AFL-CIO, and General
Drivers and Helpers Local 657, affiliate of International Brotherhood of Teamsters,
'Chauffeurs, Warehousemen and Helpers of America , are labor organizations within
the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices within the meaning
of Section 8(a)(1)(3), and (5) of the Act.
[Recommendations omitted from publication.]
Neville Foundry Company, Inc. and Iron , Foundry & Molder
Workers' Union,' Petitioner. Case No. 17-RC-2811. Janu-
ary 30, 1959
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Harry Irwig, hear-
ing officer . The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.2
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Leedom and Members Bean and Jenkins].
The name of the Petitioner appears as amended at the hearing.
a The hearing officer properly excluded testimony bearing on whether or not the
Employer illegally assisted in the formation of the Petitioner . The Board will not
permit the litigation of an 8(a) (2) issue In a representation proceeding . David Max
and Company, 109 NLRB 1308.
122 NLRB No. 138.