Albuquerque Phoenix Express

National Labor Relations Board - Board Decisions

Jun 24, 1965

153 N.L.R.B. 430 (N.L.R.B. 1965)

430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT by discriminating against strikers or in any like or similar
manner interfere with, restrain , or coerce employees in the exercise of rights
guaranteed in Section 7 of the Act.
FLEETWOOD TRAILER CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other mater.al.
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California, Telephone No. 688-5204.
Albuquerque Phoenix Express and Chauffeurs , Teamsters and
Helpers, Local 492, affiliated with International Brotherhood
of Teamsters, Chauffeurs , Warehousemen and Helpers of
America (Ind.). Case No . P38-CA-1140. June 24, 1965
DECISION AND ORDER
On March 17 1965, Trial Examiner James R. Webster issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a supporting brief, and the General Counsel filed
an answering brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
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 this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations as modified herein.
In finding that Respondent's over-the-road drivers stationed at the
Albuquerque terminal constituted an appropriate unit for bargaining,
the Trial Examiner excluded from this unit Respondent's "bobtail"
truckdriver stationed in Hobbs, New Mexico, primarily because he was
a local pickup and delivery driver. We note, in addition, that Respond-
ent's president testified that the Hobbs driver does not ordinarily have
contact with the employees in Albuquerque, which is over 300 miles
from Hobbs; he is paid on a different basis than the Albuquerque
over-the-road drivers; and he is "pretty much" his own boss at Hobbs.
153 NLRB No. 47.
ALBUQUERQUE PHOENIX EXPRESS 431
These factors, and the differences in equipment and type of operation
involved, show that the Hobbs driver lacks a sufficient community
of interest to be included in the unit of Albuquerque over-the-road
drivers.
The Trial Examiner has found that the wage benefits unilaterally
withdrawn on September 20, 1964, following the filing of unfair labor
practice charges, like the unilateral granting of these benefits on Sep-
tember 7, 1964, was violative of the Act, and he recommended that
Respondent be ordered to make whole the employees for any loss they
suffered as a result thereof. However, the record shows that, on
November 20, 1964, Respondent reinstated the benefits retroactive to
September 1, when they were originally effective. In view of this
reinstatement, the General Counsel, in his brief, states that no backpay
remedy is being requested herein. We shall not, in these circumstances,
adopt the backpay requirement recommended by the Trial Examiner.
Also, inasmuch as Respondent has reimbursed the employees for any
loss they may have suffered as a result of its September 20 action, and
as we are finding and remedying 8 (a) (5) violations based on other
conduct, we deem it unnecessary, in order to adequately effectuate the
policies of the Act, to decide whether, on September 20, Respondent
further violated the Act as found by the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that the Respondent, Albuquerque's Phoenix
Express, Albuquerque, New Mexico, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Recom-
mended Order, as so modified :
1. Delete paragraphs 1(c) and (d) and substitute the following as
paragraph 1(c) :
"(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act."
2. Delete paragraphs 2(b) and (c) and renumber paragraphs 2(d)
and (e) as 2(b) and (c).
3. Make the following changes in the Appendix to the Recom-
mended Order (Notice to All Employees) :
a. Eliminate the second indented paragraph, beginning with the
words "WE WILL NOT discourage membership ..." and ending with
the words "condition of employment."
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Substitute the following paragraph for the third indented
paragraph:
I'VE WILL NOT in any like or related manner interfere with,
restrain , or coerce our employees in the exercise of their rights to
self-organization , to form labor organizations , to join or assist
said Union, or any other labor organization, to bargain collectively
with representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such
activities.
c. Eliminate the fifth indented paragraph, beginning with the
words "WTE WILL make all .. ." and ending with the words "in Sep-
tember 1964."
4. The telephone number for Region 28, appearing at the bottom of
the Appendix attached to the Trial Examiner's Decision, is amended
to read : Telephone No. 247-2505.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
This proceeding , with all parties represented , was heard before Trial Examiner
James R. Webster in Albuquerque , New Mexico , on January 12, 13, 14, and 15,
1965, on complaint of the General Counsel and answer of Albuquerque Phoenix
Express, herein called Respondent . The complaint was issued on October 30, 1964,
upon a charge filed September 8, 1964, and amended September 21, 1964 The
complaint alleges that Respondent has refused to bargain with Chauffeurs, Team-
sters and Helpers, Local 492, has bargained directly and individually with employees
and has made unilateral changes in wages and working conditions of employees in
violation of Section 8(a)(1), (3 ), and (5) of the National Labor Relations Act, as
amended, herein called the Act.
The General Counsel and the Respondent have filed briefs and they have been
carefully considered . Upon the entire record and my observation of the witnesses,
I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent is now , and has been at all times material herein , a corporation duly
organized under and existing by virtue of the laws of the State of New Mexico.
Respondent maintains its principal office and place of business in the city of Albu-
querque, New Mexico, where it is engaged as a common carrier in the transportation
of freight by trucks operating principally in the States of New Mexico and Arizona.
Respondent derives in excess of $50,000 annually for its interstate transportation
services and is an essential link in the transportation of commodities in interstate
commerce.
I find that Respondent is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Chauffeurs , Teamsters and Helpers , Local 492, affiliated with International Broth-
erhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America (Ind.),
referred to as the Union , is, and has been at all times material herein, a labor organi-
zation within the meaning of Section 2(5) of the Act.
ALBUQUERQUE PHOENIX EXPRESS
III. THE ALLEGED UNFAIR LABOR PRACTICES
433
A. Sequence of events and issues
On July 4, 1964, Union Organizer Roger Wallace had his first meeting with the
over-the-road drivers of Respondent. At that meeting, applications for membership
in the Union were signed by the following drivers: Ronnie D. Stone, Lewis A.
Winston, R. F. Box, Ben Feerer, Jr., E. T. Weaver, and Lawrence L. Cooley. An
application was also signed on that date by driver J. C. Pope, and one was signed
on July 28, 1964, by driver J. W. Hester, the vacation relief driver.
In letter dated July 29, 1964, the Union requested recognition of Respondent and
forwarded the membership cards for Respondent's inspection. In part, the letter
stated as follows:
Enclosed please find signed applications from a majority of your over-the-
road truck drivers designating us as their representatives for the purpose of col-
lective bargaining.
This Local Union is seeking to represent your employees in a unit of all over-
the-road truck drivers employed at your Albuquerque, New Mexico terminal
located at 4500 McLeod Rd., N. E., but excluding all other employees.
We ask that you consider these signed cards by your employees as our proof
of majority.
This Local Union, Chauffeurs, Teamsters and Helpers Local 492, would like
to direct your attention to Article (2), Section (3) "Scope of Agreements" and
"Non Covered Units" of the National Master Freight Agreement: "This Agree-
ment shall not be applicable to those operations of the Employer where the
employees are covered by a collective bargaining agreement with a Union not
signatory to this Agreement or to those employees who have not designated a
signatory Union as their collective bargaining agent. At such time as a major-
ity of such employees in an appropriate bargaining unit designate, as evidenced
by a card check, a signatory Union as their collective bargaining agent, they
shall automatically be covered by this Agreement and applicable Supplemental
Agreements. In such cases the [sic] parties may by mutual agreement work
out a wage and hour schedule."
We ask that you set an early meeting date at which time we can discuss the
wages, hours of work, and other conditions of the employees in the unit requested
by us.
The letter was opened at Respondent's general offices by Secretary Mildred
Daugherty. She read the letter and noticed that a number of approximately 3- by
5-inch cards were enclosed and held together by a rubber band. During the day she
had occasion to talk by long distance telephone with Duncan McLeod, president and
general manager of Respondent. She informed him of the receipt of the letter,
and he instructed her to send it to Respondent's attorney, Leonard Pickering. She
put the letter and the cards back into the envelope and gave it to another employee
to deliver to Attorney Pickering. She did not look at or examine the cards nor
did anyone at Respondent's offices do so. Pickering also did not examine the cards.
By letter dated August 3, 1964, Pickering replied to the Union's letter as follows-
I wish to acknowledge receipt of your letter of July 29th addressed to Mr.
McLeod of Albuquerque Phoenix Express. Mr. McLeod is out of town and
will be for several days. I will take your letter up with him and be back in
touch with you after his return.
In your letter you state you are seeking to represent Apex employees "in a
unit of all over-the-road truck drivers employed" at the Albuquerque terminal
and excluding all other employees. Next you call attention to an article you
quote from the "National Master Freight Agreement which states in essence
that when a majority of employees in an appropriate unit designate the Team-
sters as their bargaining agent that they should automatically be covered by this
National Master Freight Agreement and applicable supplemental agreements.
Thus I find your letter somewhat contradictory and confusing, and in the inter-
est of clarification while awaiting Mr. McLeods return, it would be helpful if
you would advise:
1. Whether it is your understanding or contention that Albuquerque
Phoenix Express is a party to this National Master Freight Agreement to
which you have referred.
796-02 7-66-vol 153-29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. If so, is it your contention that the provision which you have quoted
in your letter as being from this National Master Freight Agreement applies
in this particular situation and that the over-the-road drivers would thereby
automatically be covered by this National Master Freight Agreement?
3 If your answer to my second question is "Yes", would you please
advise what items or areas would be open for negotiation if you are, and are
recognized as, the collective bargaining representative of the subject employ-
ees.
4. If it is your understanding or contention that Albuquerque Phoenix
Express is a party to and bound by the said National Master Freight Agree-
ment, would you please advise upon what basis you have such understand-
ing or make such contention.
5. Or is it your position on the other hand that Albuquerque Phoenix
Express is not a party to the National Master Freight Agreement and that
the employees in the unit that you are requesting would not automatically
be covered by said agreement and that the entire matter of wages, hours
and working conditions would be subject to negotiations if you are and are
recognized as the collective bargaining agent for the subject employees?
You enclosed a packet of cards which you ask in your letter that we con-
sider as proof of your majority. Inasmuch as I do not know at this time
whether or not Mr. McLeod would want to examine these cards for the pur-
pose of determining whether or not you represent a majority of his over-the-
road drivers, I am returning the same to you unexamined and ask that you do
not mail or otherwise submit them to the company unless we request you to
do so and agree to make a card check. As both you and I aie aware, certain
complications and inferences could arise if an agent of the company made an
examination of these cards, therefore I am declining to so examine them at this
time in Mr. McLeod's absence.
I will appreciate an early reply to my questions in order that I may be pre-
pared to discuss this matter with Mr. McLeod immediately upon his return to
this city.
On August 17, 1964, the Union dispatched another letter to the Respondent
requesting recognition and bargaining for all over-the-road drivers and again enclosed
the membership cards. This letter acknowledged receipt of Pickering's letter of
August 3, but did not reply to the questions he presented. A carbon copy of this
letter (without membership cards) was sent to Pickering and was opened and read
by him. The letter stated in part as follows:
It has since come to my attention that you in fact may not at this time be a
party to the National Master Freight Agreement. In view of this, this Local
Union, Chauffeurs, Teamsters & Helpers Local #492 again request that you
recognize it as the majority representative of your employees consisting of a
unit of "all over-the-road drivers employed at your Albuquerque, New Mexico
terminal located at 4500 McLeod Rd., N. E.; but excluding all other employees".
The envelope containing the original letter and the membership cards was not
opened by Respondent but was sent to Pickering unopened.1
On August 18, 1964, the Union filed a petition in Case No. 28-RC-1247, seeking
an election in a unit including all over-the-road drivers of Respondent employed in
Albuquerque, New Mexico.
By letter dated August 27, 1964, from Attorney Pickering, Respondent informed
the Union of its receipt of a copy of the representation petition, and stated as follows:
I wish to advise that we agree that it would be best to have the NLRB conduct
a secret ballot election to determine the true wishes of the employees involved.
I further wish to advise that the Company doubts that a majority of its employ-
ees desire Union representation. Further, regardless of the number of employ-
ees that your Union may have had signed up on cards, the Company has infor-
mation from some employees to the effect that they were pressured into signing
the cards and did not at the time, and do not now, desire to be represented by
your Union.
As to your sending some cards to the Company the second time after I
returned them to you and requested that you not submit them again unless
I This envelope, unopened, was offered in evidence by Respondent as Respondent's
Exhibit No. 22, and a photostatic copy of the face of the envelope was substituted for
the original.
ALBUQUERQUE PHOENIX EXPRESS 435
requested , I wish to advise that your letter, apparently containing the same,
remains in my possession unopened . We have never agreed to make a card
check and do not believe at this time that this would be the best or proper way
to ascertain the true wishes of our employees.
The General Counsel contends that shortly after receiving the Union's letter of
July 29 requesting recognition, Respondent began bargaining directly with employ-
ees, individually and in groups. As a consequence of thes econferences with employ-
ees in August and early September 1964, Respondent made changes in the rates of
pay and working conditions of the over-the-road drivers, effective September 1, 1964,
as follows. These changes were announced to employees by letter dated Septem-
ber 4, which was discussed with the employees, and copies were handed to them at a
meeting of drivers called by Respondent on September 7, 1964. The letter listed
the following changes:
1. Albuquerque to Phoenix 2 man $30.00 per man per manifest, with or
without drops. [Before the change, drivers received $30 00 with drops--deliv-
ery or pickup of freight-and $27.50 without drops.]
2. Mileage rate regular 2 man , 61/4¢ per mile per man. [Before the change,
drivers received 51/2 0 per mile per man.]
3. Mileage rate, explosives , 63/40 per man per loaded mile, empty miles at
regular mileage rate. [Before drivers received 51/2 ^ per mile per man, whether
loaded or empty.]
4. HEARM loads 2 to be paid on basis of explosive rate. [A change from
the rate of 51/2 ¢ per mile to 63/4 ¢ per mile ]
5. Single operation, 101/40 per mile. [A change from 83/4¢ per mile]
6 Layover time will be paid at $3.07 per hour per man, after twelve hours.
[A change from $1.171/2 per hour.]
7. In figuring pay on manifest between Albuquerque and Phoenix, extra
miles will be paid at the rate of 61/2¢ per mile for excess miles, using the $30 00
as a base for the regular 460 miles. [Before it was 51/2¢ per mile.]
8. On escort or security runs where you are required to wait or are delayed
in transit due to escort officers, you will be paid for delay time in excess of two
hours, accumulated on entire run at layover rate. [Before drivers received no
extra compensation for delays of this sort.]
9 Layover time to be accumulated at intermediate points as well as terminal
point, and the excess of 12 hours will be paid at the layover rate. [Before lay-
over time was not cumulated from point to point.]
Another complaint of drivers regarding air conditioning in an apartment in
Phoenix used on layovers was taken care of by Respondent effective September 1,
1964, and drivers concerned were notified by letter dated September 2, 1964.
The meeting of all over-the-road drivers on September 7 was held by Respondent
at Eby's Restaurant in Albuquerque. Pickering was present and each item of the
above-listed changes was discussed, and the agreement or acquiescence of the drivers
was secured. On the following day Respondent dispatched the following letter to
the drivers:
Supplement to our letter of Sept. 4 re new wage scale.
Breakdown time in transit to be paid at layover rate less two hours , until you
are able to go off duty. Off duty time to be paid at one-half layover rate. The
one-half rate hours to be accumulated as layover time for complete run. The
excess over twelve hours to be paid at layover rate.
The original charge herein was filed on September 8, 1964. On October 28, 1964,
the Union withdrew its petition in Case No. 28-RC-1247. On September 20, 1964,
Respondent held another meeting of employees and announced that the wages and
changes in working conditions granted earlier in the month would be withdrawn.
Pickering addressed the group of drivers and stated that. It appeared to him that
"evidently somebody about broke his neck getting down to the Labor Board or the
Union with this letter" containing the wage increases, since the Union has filed a
charge against the Company complaining of the wage increases as an unfair labor
practice, Respondent would have to withdraw them until the matter is straightened
out; if the matter could be straightened out, the increases would be reinstated;
otherwise the increase could be delayed in litigation for approximately 2 years.
2A HEARM load is a load of high explosive radioactive material transported for the
Atomic Energy Commission.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pickering announced to employees that Respondent had always tried to stay in
line with other companies as to union scale Employee Winston asked why Respond-
ent was against the Union if this was the case. Pickering replied that most companies
preferred to operate without a union. At this meeting the following letter was
handed to each driver:
As you know, in our letter to you of September 4th which was presented to
you at our Company meeting on September 7th at Eby's Restaurant, we
announced certain pay increases in keeping with past Company policy for
periodic adjustments to keep your pay approximately the same, or a little bet-
ter, than that provided by our competitors. As you know, this has always been
our policy.
As you will recall, we announced that such changes would be effective Sep-
tember 1, 1964. Prior to making this announcement we checked with our
Attorney as to whether or not it was proper for us to go ahead and make these
adjustments as we had done in the past inasmuch as the Teamsters Union had
recently filed a Petition asking the NLRB to conduct an election among our
over-the-road drivers [sic] to determine whether or not the majority of you
desired to be represented by the Teamsters Union We were advised that it
would be proper for us to go ahead and make these adjustments as we had
planned in view of our past practices in doing so, and that therefore our purpose
in going ahead should not be misinterpreted.
We want you to know that the NLRB Petition filed by the Teamsters had
nothing whatsoever to do with our making these adjustments. They would
have been made even if we had not heard the word "Teamsters" mentioned.
We feel sure that you know this based upon our past performances in making
periodic adjustments. As times change, the cost of living goes up, and employ-
ees of our competitors received wage adjustments, we have always tried to
remain competitive and intend to continue to do so in the future regardless of
any union question.
Since making this announcement we have had charges filed against us by the
Teamsters Union. They have alleged that we would be in violation of the law
if we go ahead as we planned and put these changes into effect. Therefore, we
regret we have to advise you that in view of this Teamsters' charge filed with
the National Labor Relations Board, we will not be able to go ahead with the
announced adjustments as we had planned, pending the investigation and out-
come of this charge. If it is determined by the NLRB, upon completion of
their investigation and handling of this charge, that it is proper and permis-
sible for us to go ahead with the adjustments as planned, and as we have done
in the past, then we will be able to go ahead and give you the benefit of these
adjustments as announced. In the meantime, until this charge can be disposed
of, we are forced to maintain the status quo, that is, we will have to hold up
from placing into effect the adjustments we planned.
We sincerely regret that the Teamsters Union has elected to take this course
of action in making such an unfair charge. Again we want to make it clear
that we did not plan and announce these adjustments in any attempt to try to
sway or persuade you in connection with the question as to whether or not you
would want the Teamsters Union to represent you or to attempt to influence your
vote in the matter. We recognize that it is our employees legal and moral right
to decide for yourselves whether or not you wish to be represented by the Team-
sters Union, or any other labor organization, in your dealings with us. In that
connection we also know that under the law we cannot make any promises of
benefit to attempt to persuade you to vote one way or the other, and we have
no intention of trying to do so. However, we also believe that we have a legal
right to make wage adjustments as announced, and as properly indicated, con-
sistent with our past practices. We trust and hope that the NLRB will agree with
our position in that connection and dismiss the charge which the Teamsters Union
has filed in an attempt to prevent us from making the announced adjustments.
On the following day, September 21, the Union filed an amended charge adding
that the Respondent's action in rescinding and discontinuing the wage increases and
changes in terms and conditions of employment constituted a further unfair labor
practice. Later, in November 1964, after issuance of complaint herein, Respondent
reinstated the wage increase previously announced to the employees. This was
announced to the drivers by the following letter dated November 20, 1964:
Since our letter to you of Sept. 19th advising that we were being forced to hold
up on certain pay increases and changes because of the Teamsters' filing some
ALBUQUERQUE PHOENIX EXPRESS 437
charges with the NLRB, the NLRB has issued a Complaint against us basically
taking the position that they want APEX to recognize and negotiate with the
Teamsters Union as your representative without your having any chance to vote
on whether of not you want to be represented by them. Thus, it appears that
these charges may be involved in litigation for some time.
In view of this turn of events, we are now placing all of the announced changes
into effect. It is our position that our employees should not be made to suffer
because of the positions of the Teamsters Union and the National Labor Rela-
tions Board. Thus, in this, we feel justified in keeping our word to you and
making these changes retroactive to the September 1st date as originally
announced.
Your regular pay check this time includes these changes, and we are also
issuing a supplemental check to all concerned to cover these additional amounts
for the period from Sept. 1, 1964 covering all pay periods from such date up to
the present check.
If you have any questions we will be pleased to try to answer the same, and if
anyone feels there has been any mistake made in making the adjustment calcula-
tions, please bring them to our attention.
The issues in this case are as follows:
(1) Is the unit that the Union seeks to represent an appropriate unit for bargaining
purposes?
(2) Did the Union represent a majority of the employees in the unit involved?
(3) Was the Union's request for recognition and bargaining an adequate and
appropriate request?
(4) Was Respondent's questioning of the Union's majority made in good faith?
(5) Regarding the conferences with employees, individually and collectively, in
August and September 1964, were they violations of the Act in the face of Respond-
ent's request for recognition and bargaining, or were they not violations of the Act
on the grounds that they were held pursuant to Respondent's past policies?
(6) Did Respondent's actions in granting and later withdrawing wage increases
in September 1964 constitute violations of the Act?
B. The appropriate unit
Respondent has terminals in Albuquerque and Roswell, New Mexico, and Phoenix,
Arizona. In July and August 1964 all over-the-road drivers, with one exception,
worked out of the Albuquerque terminal. Respondent had 13 over-the-road drivers
in Albuquerque, and 1 stationed in Reserve, New Mexico, as follows.
Albuquerque:
R. F. Box Charles Morgan John Hobaugh
Roscoe Cook Jim Pope Herman Weaver
Lawrence Cooley Ronnie Stone Charles Condrey
Ben Feerer Emmet Weaver
James Hester Lewis Winston
Reserve:
Earl Robertson
Drivers Hobaugh and Robertson are lease drivers-that is, by lease agreements
with Respondent, they furnish, foi a set rate, tractors and drivers to carry freight
for Respondent. The trailer on which the freight is carried is owned by Respondent
or other trucking companies interlining through Respondent's operations. Herman
Weaver and Charles Condrey are drivers furnished by Hobaugh in addition to himself.
There is an issue as to whether or not lease drivers are employees of Respondent
or independent contractors. Out of the fee paid by Respondent to Hobaugh, he
reimburses Weaver and Condrey, but Respondent has the general supervision of all
drivers and maintains personnel files on lease drivers "just as any other line driver."
Respondent tells them where they are to drive. where they are to make pickups and
deliveries, and how they are to perform their duties. Lease drivers who operate
out of Albuquerque have the same duties and functions for Respondent as Respond-
ent's nonlease drivers and are subject to the same rules and regulations. Lease
driver Herman Weaver was terminated by Respondent for the reason that his employ-
ment with Respondent violated a company rule prohibiting the employment of rela-
tives of other employees, Herman Weaver is a brother of Emmet Weaver, another
over-the-road driver. Respondent does not carry workmen's compensation on the
lease drivers On one or two occasions, Respondent has employed Hobaugh and
Herman Weaver as temporary extra drivers on Respondent's tractors, on these
occasions they were remunerated separately from the lease agreement Lease driver
Earl Robertson, who resides in Reserve, New Mexico, and who drives between
438 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
Reserve and Datil, New Mexico, and Springerville, Arizona, with intermediate stops,
is a "combination [freight] agent driver" for Respondent in that area He is paid
in a different manner than the other drivers, and operates on his own in that area.
Since the time involved in this proceeding, Respondent has employed a driver in
Hobbs, New Mexico, who is a combination customer pickup and delivery (local)
driver and an over-the-road driver He drives a "bobtail" truck lather than an over-
the-road tractor and trailer. He delivers and picks up between Hobbs and Roswell,
New Mexico, and vicinity. He is paid on a different basis than the over-the-road
drivers, his pay is "based on time plus his pickup and deliveries." General Manager
McLeod stated that "he delivers freight and picks up freight all over the place,
whereas our regular line drivers drop off at our terminals and stations " He was
not employed by Respondent until after the time involved in this proceeding.
Respondent takes the position that Hobaugh, H. Weaver, Condrey, Robertson, and
the driver in Hobbs are in the appropriate unit as employees The General Counsel
in his brief takes no position on Ilobaugh, Weaver, and Condrey, contends that Rob-
ertson does not belong in the unit, and does not indicate a position as to the Hobbs
driver except to state that he was not employed until after the critical period involved.
As stated by the Board in Checker Cab Company and its Members, 141 NLRB
583, "In determining whether lease drivers are employees or independent contractors,
the Board applies the `right of control' test Where the person for whom the serv-
ices are performed retains the right to control the manner and means by which the
result is to be accomplished, the relationship is one of employment; but where control
is reserved only as to the final results, the relationship is that of an independent
contractor." In the decisions of the Board in Hugh Major Truck Service, 124 NLRB
1387, the Board held that the lease drivers involved were independent contractors
and not employees on the facts that they may refuse to haul a particular load, have
latitude in the selection of their hours of work, and assume responsibilities and risks
normally associated with entrepreneurs rather than employees.
I find that an appropriate bargaining unit for the purposes of bargaining under
Section 9(b) of the Act would include all over-the-road drivers employed by
Respondent and would exclude salesmen, freight agents, local pickup and delivery
drivers, dock employees, clerical employees, guards and watchmen, and all super-
visors as defined in the Act 3
The records of Respondent show that on July 29, 1964, and in August 1964, there
were 13 over-the-road drivers in the employ of Respondent at its Albuquerque
terminal. Seven of these drivers signed union membership cards on July 4, 1964, and
the eighth, Hester, signed one on July 28, 1964. I find that at the time of the Union's
request for recognition on July 29, 1964, and at the time of Respondent's expressed
refusal to grant recognition, August 27, 1964, the Union represented a majority of
employees in the aforementioned appropriate unit.
C. The Union's request for recognition and bargaining
Respondent contends that the Union has made no clear and unequivocal demand
for "bargaining," as the Union, with its demand, has indicated that if recognition is
granted, the employees involved would automatically be covered, and Respondent
bound, by an existing contract-a National Area Agreement
I question the validity of Respondent's contention Union Representative Wallace
testified that he was of the opinion that in July 1964, Respondent and another local
of the Teamsters Union in Phoenix, Arizona, had a contract covering the dock
employees of Respondent in that city and that by the terms of that agreement, if
the Respondent recognized a unit of employees in Albuquerque, New Mexico, then
the same contract would extend and cover the Albuquerque unit as well as the unit
in Phoenix. He stated that he did not know whether there was then or now a
contract between a Teamsters local and Respondent in Phoenix and did not know
whether legally that contract could be extended to cover a unit in Albuquerque In
his second letter of August 17 he expressed these doubts
I find that the Union has made an adequate request for recognition and bargaining
of Respondent in its letters of July 29 and August 17, 1964, and that these con-
stitute a request for recognition and bargaining The description of the unit is
adequately and clearly set forth in the Union's letters and the Respondent's conten-
tion that the Union seeks recognition "without bargaining" is without merit
D. Respondent's dealings with employees and unilateral changes
During the middle and latter part of August 1964 McLeod called most of his over-
the-road drivers into his office individually and in small groups and inquired of
aI would exclude the Hobbs driver as piimarily a local pickup and delivery driver
ALBUQUERQUE PHOENIX EXPRESS 439
them as to their complaints. He talked with James Pope by telephone and told
him that he understood there was dissatisfaction among the employees and that he
was trying to get it straightened out. He told Winston and Stone that he under-
stood that they wished to be represented by the Teamsters Union They answered
in the affirmative and he stated, "I've talked to some of the other employees and
heard their gripes and I would like to hear yours and see if we can get it straightened
out." They told him of their complaints regarding the lack of adequate air condi-
tioning in the layover room used by the drivers in Phoenix, Aiizona, of the trouble
they had with a "whipping" action of the double trailers, of the lack of layover time
and delay en route in the HEARMS loads, the loads of high explosive radioactive
material McLeod told them that he would take care of these matters, and in their
presence he made a long-distance telephone call to Phoenix iegarding the air condi-
tioning and made a call to the representative of the Fruehaut Trailer Company in
El Paso, Texas, regarding the whipping action of the double trailer. As to the
HEARMS loads, he told them he would woik this out. In August 1964 McLeod
asked Feerer what he thought was wrong that the employees were dissatisfied.
Feerer replied that he thought they were not being paid like the other lines on the
HEARMS loads. About August 18, 1964, McLeod asked Cooley and Emmet
Weaver, "What are the gripes?" They informed him of their complaints including
the run to Phoenix, the problem of the double trailers, and the HEARMS loads.
McLeod then stated to them that "If this stuff is straightened out, well everything will
be all right." -
As a result of these conferences, the changes previously mentioned in this decision
were announced to the employees at a meeting on September 7. At a meeting on
September 20 it was announced that these increases would be withdrawn "until we
could get this deal settled one way or the other." In November 1964 the increases
and changes were reinstated.
Respondent contends that the dealings with the employees in August and Septem-
ber 1964 and the resulting wage increases and changes of working conditions were
made pursuant to an established company policy. McLeod testified that the Com-
pany's policy was to get information as to wages paid by its competitors, most of
whom had bargaining relations with the Union or other Teamsters locals, and also
to talk with employees from time to time and get information as to their complaints
and their desires, and then to make changes in wages and working conditions as
deemed appropriate. From time to time over the years, meetings were held with the
drivers, and with all employees, at which meetings such matters as safety, working
conditions, and a company profit-sharing plan were discussed The last such meeting
held prior to Respondent's meeting with employees in September 1964 was held in
January 1964. At this meeting James Pope, who had been chosen as spokesman for
the drivers, urged Respondent to increase the flat rate for runs between Albuquerque
and Phoenix from $55 to $60 for each round trip The Respondent shortly there-
after agreed to give the employees an increase to $60 per run where there were
stops, or drops along the way, and to increase the wage to $57 50 for a round trip
where no drops or stops were made.
The Teamsters locals in the area negotiated a new contract with certain employers
which became effective July 1, 1964. Respondent, with knowledge of this fact, con-
tacted two of its competitors in early July in an effort to learn what pay changes
might have been made, but was unable to get this information until the latter part of
August 1964, for the reason that there was a delay in the printing and distribution
of the new contract and apparently the local representatives of the competitors con-
tacted did not have the information until that time
Respondent contends that its dealings directly with employees in August and
September 1964 were pursuant to its past policy, and that in view of rate increases
by its competitors effective in July 1964 its past policy warranted changes in wages
and working conditions which were made in September 1964.
I find that Respondent did over the years of its operations have a policy of getting
information as to wage scales paid by union truckhnes with the idea of keeping
competitive and of keeping its employees; and I find that over the years Respondent
has periodically, but without regular schedule, met with employees to discuss work-
ing conditions, wages, safety, etc. but, I am sure this is no more than most con-
scientious and alert employers would do where there is no bargaining representative
to speak on behalf of the employees. Once, however, the employees have designated
a bargaining representative, the general rule is that an employer is under an obliga-
tion to cease bargaining and dealing directly with employees and to cease making
unilateral changes in working conditions, wages, etc., as he may have been doing
in the past 4
'Michael Benevento et at , d/b/a M. Benevento Sand it Gravel Co., 131 NLRB 358,
affil 316 F 2d 224( CA 1), and C. J. Glasgow Co., 148 NLRB 98.
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E Conclusions
Normally, an employer who has been served with notice of filing of a representa-
tion proceeding may decline to grant recognition to a union until such time as the
union has established its majority status in a repiesentation election But where an
employer demonstrates that he does not have a good-faith doubt of majority and
engages in unfair labor practices to destroy that majority, then the employer cannot
gain by his own misconduct and thereby obviate the responsibility to deal with the
bargaining representative chosen by a majority of his employees.5
In this case, the Union having twice presented its signed membership cards to
Respondent as proof of its majority status, Respondent scrupulously sought to avoid
knowledge of this fact by refusing to look at the cards. During the ensuing weeks,
Respondent set about to ascertain the complaints of the drivers as General Manager
McLeod understood that the drivers "wish to be represented by the Teamsters
Union" and he wanted to get their complaints "straightened out." After meeting
with the drivers individually and in groups and ascertaining from them their com-
plaints, Respondent met and bargained directly with them regarding increases in
wages and improvements in working conditions; and on securing their acquiescence
in the changes proposed, they were announced to be effective as of September 1,
1964.
I find that on July 29, 1964, and at all times thereafter, the Union did represent
a majority of Respondent's employees in an appropriate unit; that on July 29 the
Union made a clear and adequate request for recognition and bargaining. I find
that Respondent's questioning of the Union's majority was not made in good faith
but was made for the purpose of giving Respondent the opportunity to make changes
in wages and working conditions which were calculated to pacify the employees
and dissuade them from union affiliation.
I find that at all times since July 29, 1964, the Union has been the representative
of the employees in the unit described above, and by virtue of Section 9(a) of the
Act has been, and is now, the exclusive representative of all the employees in said
unit for the purposes of collective bargaining with respect to rates of pay, wages,
hours of employment, and other terms and conditions of employment, and Respond-
ent, by its refusal to recognize and bargain with the Union, by its unilateral changes
in wages and working conditions, and by its bargaining directly with employees, has
engaged in unfair labor practices proscribed by Section 8(a) (5) and (1) of the Act.
As to the withdrawal on September 20, 1964, of the wage increases and changes
previously announced, the General Counsel contends that it is a violation of Section
8(a)(3), (1), and (5). Respondent contends that it cannot be guilty of an unfair
labor practice in both granting wage changes and in withdrawing them
The Board can, and has, ordered an employer to withdraw unilateral changes and
return to "status quo" as a remedy for violations of the Acts The question here is
one of motive or objective: were the changes withdrawn by Respondent in an
attempt to avoid an unfair labor practice, or as a retaliation for the filing of an
unfair labor practice charge and as a means of coercing its withdrawal.7 Respondent,
in its letter of September 19 and in statements of Pickering, on September 20, placed
emphasis on the Union as the villain and cause of the loss of increased wages to the
employees, rather than on a desire on the part of Respondent to correct any possible
unfair labor practices it may have committed. Respondent apparently did not ques-
tion the propriety of its own action in granting the increase. In its letter of Septem-
ber 19 Respondent states "we regret we have to advise you that in view of this
Teamsters' charge filed with the National Labor Relations Board, we will not be able
to go ahead with the announced adjustment as we had planned, pending the inves-
tigation and outcome of the charge. . . . We sincerely regret that the Teamsters
Union has elected to take this course of action in making such an unfair charge. . . .
6 Medo Photo Supply Corporation v N L R .B, 321 U S. 678; Joy Silk Mills, Inc, 185
F 2d 732 (C A D C ) ; Arts & Crafts Distributors, Inc, 132 NLRB 166 ; Galloway Mann-
facturin q Corporation, 136 NLRB 405, affil 312 F 2d 322 (C A 5).
9 John W . Bolton & Sons, Inc, 91 NLRB 989 ; but normally , as stated by the Board
in Beacon Piece Dyeing and Finishing Co., Inc, 121 NLRB 953 , where a return to the
status quo "might not be to the advantage or satisfaction of the employees ," a restora-
tion order is conditioned "upon the affirmative desires of the affected employees" as ex-
pressed through their collective -bargaining representative In the instant case, the Union
notified Respondent by letter of September 21, 1964 , that Respondent was "free to go
ahead with the adjustments in wages and conditions as planned by you "
7 The drivers were due to receive their first paychecks containing the increase on the day
the withdrawal was announced ; therefore, the withdrawal was effective from Septem-
ber 1, 1964.
ALBUQUERQUE PHOENIX EXPRESS 441
However, we also believe that we have a legal right to make wage adjustments as
announced, and as properly indicated, consistent with our past practices. We trust
and hope that the NLRB will agree with our position in that connection and dismiss
the charge with the charge which the Teamsters Union has filed in an attempt to
prevent us from making the announced adjustments."
I conclude and find that Respondent withdrew the increases as a retaliation for the
filing of an unfair labor practice charge and as an effort to discourage activities of
employees protected by Section 7 of the Act. Respondent having withdrawn the
changes without bargaining on the matter with the Union and having thereby dis-
criminated against employees in regard to terms and conditions of employment for
the purpose of discouraging union activities, I find that Respondent has engaged in
violations of Section 8(a)(5),(3), and (1) of the Act.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, occurring in connection
with the opeiations of Respondent described in section 1, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce.
V THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it is
recommended that it cease and desist therefrom, that, on request, it baigain collec-
tively with the Union, that it makes employees whole for any loss of pay they may have
suffered by reason of the discrimination against them by payment to each of them
of a sum of money equal to the amount which each normally would have earned as
wages in the absence of the discrimination from the date of September 1, 1964, the
effective date of the withdrawal of wage increases, to the effective date of reinstate-
ment of said increases, less net earnings of each employee during said period, with
interest to be computed on the amount so determined in accordance with Isis Plumb-
ing & Heating Co., 138 NLRB 716
It is also recommended that Respondent post appropriate notice to employees as
provided in the Recommended Order set forth below, which is found necessary to
remedy the unfair labor practices and to effectuate the policies of the Act
Upon the basis of the foregoing findings and conclusions and upon the entire record
in this case, I make the following.
CONCLUSIONS OF LAW
1. Albuquerque Phoenix Express, Respondent herein, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. Chauffeurs, Teamsters and Helpers, Local 492, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America
(Ind.) is a labor organization within the meaning of Section 2(5) of the Act
3. All over-the-road drivers of Respondent, employed at its Albuquerque, New
Mexico, terminal, excluding salesmen, freight agents, local pickup and delivery drivers,
dock employees, guards and watchmen, and all supervisors as defined in Section 2(11)
of the Act, constitute a unit appropriate for the purpose of collective bargaining
within the meaning of Section 9(b) of the Act.
4. The Union has been at all times material herein, and is now, the exclusive
representative of all employees in the aforesaid appropriate unit for the purpose of
collective bargaining within the meaning of Section 9(a) of the Act.
5 Commencing on or about August 3, 1964, and continuously thereafter, Respond-
ent has refused to recognize and to bargain collectively with the Union as the
collective-bargaining representative of the employees in the aforesaid appropriate
unit, thereby violating Section 8(a) (5) of the Act.
6 In August and September 1964, Respondent bargained and dealt directly with
employees and made unilateral changes in their working conditions and wages,
thereby violating Section 8(a) (5) of the Act 8
7 By withdrawing on or about September 20, 1964, wages and improvements in
working conditions previously granted to employees, Respondent has discriminated
against employees because of their union activities and because of the filing of an
unfair labor practice charge, thereby violating Section 8(a)(3) of the Act.
8 Unilateral changes were made in both the granting and in the withdrawing of wage
increases and improvements in working conditions
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. By conduct described in this decision, Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of the
Act, thereby violating Section 8 (a) (1) of the Act.
9. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions, and upon the entire
record in this case, and pursuant to Section 10(c) of the National Labor Relations
Act, as amended, it is recommended that Respondent, Albuquerque Phoenix Express,
Albuquerque, New Mexico, its officers, agents, successors, and assigns, shall.
1. Cease and desist from
(a) Refusing to bargain collectively with Chauffeurs, Teamsters and Helpers,
Local 492, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Ind ), as the exclusive representative of all
over-the-road drivers employed at Respondent's Albuquerque, New Mexico, terminal,
excluding salesmen, freight agents, local pickup and delivery drivers, dock employees,
guards and watchmen, and all supervisory employees as defined in the Act.
(b) Dealing and bargaining directly with employees, and making unilateral
changes in matters of wages and working conditions without prior consultation and
bargaining with the above-named Union, as the exclusive collective-bargaining
representative.
(c) Discouraging membership in or activity on behalf of the Union, or any other
labor organization of its employees, by withdrawing wage increases and improve-
ments in working conditions, or in any other manner discriminating against employ-
ees in regard to any terms or conditions of employment.
(d) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action in order to effectuate the policies of
the Act:
(a) Upon request, bargain collectively with Chauffeurs, Teamsters and Helpers,
Local 492, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America (Ind ), as the exclusive representative of all
employees in the above-described bargaining unit, and, if an understanding is
reached, embody such understanding in a signed agreement.
(b) Make all over-the-road drivers whole for any loss of pay which they may
have suffered as a result of the withdrawal of wage increases granted in September
1964 in the manner and to the extent set forth in the section of this Decision entitled
"The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze and
compute the amounts of backpay due under the terms of this Recommended Order.
(d) Post at its Albuquerque terminal copies of the attached notice marked
"Appendix." 9 Copies of said notice, to be furnished by the Regional Director for
Region 28, shall, after being duly signed by a managing representative of Respond-
ent, be posted by Respondent immediately upon receipt thereof, and maintained by
it for a period of 60 consecutive days thereafter in conspicuous places including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Diiector for Region 28, in writing, within 20 days from
the date of the receipt of this Decision, what steps it has taken to comply herewith to
It is further recommended that unless, within 20 days from the date of the receipt
of the Trial Examiner's Decision, the Respondent shall notify the said Regional
Director, in writing, that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring Respondent to take the
aforesaid action.
e In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words, "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order".
101n the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read, "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith 11
WESTINGHOUSE ELECTRIC CORP., ETC. 443
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify you that:
WE WILL NOT deal or bargain directly with employees nor institute changes
with respect to terms and conditions of employment of our employees in the
appropriate unit defined below, without bargaining with the Chauffeurs, Team-
sters and Helpers, Local 492, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America (Ind.).
WE WILL NOT discourage membership in said Union or in any other labor
organization of our employees, or discourage the filing of charges under the
National Labor Relations Act, by withdrawing wage increases or other benefits
granted to our employees, or in any other manner discriminating in regard to
their hire or tenure of employment or any term or condition of employment.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist said Union, or any other labor organization, to
bargain collectively with representatives of their own choosing, and to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activities.
WE WILL, upon request, bargain collectively with Chauffeurs, Teamsters and
Helpers, Local 492, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America (Ind.) as the exclusive
representative of all the employees in the appropriate unit defined below, for
the purposes of collective bargaining with respect to rates of pay, wages, hours
of employment, and other terms and conditions of employment, and if an
understanding is reached, embody such understanding in a signed agreement.
All over-the-road drivers, employed at our Albuquerque, New Mexico,
terminal, excluding salesmen , freight agents , local pickup and delivery
drivers, dock employees, salesmen, guards and watchmen, and supervisors
as defined in the Act.
WE WILL make all over-the-road drivers whole for any loss of pay which they
may have suffered as a result of the withdrawal of wage increases granted in
September 1964.
All our employees are free to become, remain, or refrain from becoming or
remaining, members of any labor organization of their choice.
ALBUQUERQUE PHOENIX EXPRESS,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1015
Tijeras Avenue, NW., Albuquerque, New Mexico, Telephone No. 243-3536, if they
have any question concerning this notice or compliance with its provisions.
Westinghouse Electric Corp ., Bettis Atomic Power Laboratory
and United Steelworkers of America , District 15, AFL-CIO.
Case No. 6-CA-2756. June 24, 1965
DECISION AND ORDER
On February 25, 1964, Trial Examiner Eugene E. Dixon issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in certain unfair labor practices alleged in the complaint
153 NLRB No. 33.