American Freightways Co., Inc.

National Labor Relations Board - Board Decisions

Jul 16, 1959

124 N.L.R.B. 146 (N.L.R.B. 1959)

146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, I hereby notify my employees that:
I WILL NOT interrogate my employees as to their union activities , interests,
or affiliations , in a manner constituting interference , restraint , or coercion in
violation of Section 8(a) (1) of the Act.
I WILL NOT threaten my employees with reprisals , including loss of employ-
ment, if they engage in union or other concerted activities.
I WILL NOT in any other manner interfere with , restrain , or coerce my
employees in the exercise of the right to self-organization , to form labor
organizations , to join or assist International Hod Carriers', Building and
Common Laborers ' Union of America , Construction General Labor & Material
Handlers' Local Union No. 1058, AFL-CIO, or any other labor organization,
to bargain collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bargaining or
tither mutual aid or protection , and to refrain from any or all of 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 Act.
Jul) L. SEDWICK , DOING BUSINESS AS ARMSTRONG
COUNTY LINE CONSTRUCTION,
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.
American Freightways Co., Inc. and Office Employees Inter-
national Union , Local 153, AFL-CIO. Case No. 2-CA-5745.
July 16, 1959
DECISION AND ORDER
On February 13, 1959, Trial Examiner Sydney S. Asher, Jr., i ssued
his Intermediate Report in the above-entitled proceeding, finding
that the Respondent had not engaged in the unfair labor practices
alleged in the complaint and recommending that the complaint be
dismissed in its entirety, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the General Counsel filed excep-
tions to the Intermediate Report and a supporting brief; the Re-
spondent 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 Inter-
mediate Report, the exceptions, the briefs, and the entire record in
the case, and finds merit in certain of the General Counsel's exceptions.
Accordingly, the Board adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the modifications set forth
below.
124 NLRB No.1.
AMERICAN FREIGHTWAYS CO., INC. 147
On October 4, 1957, Forman, the Respondent's president, held a
meeting of the office employees whom both unions were attempting to
organize . At this meeting, Forman announced the following changes
in policy, alleged to be violations of the Act :
(a) In response to a complaint, Forman agreed to post a list of
holidays which the employees were to receive as days off. Thereto-
fore, the employees had not known, until the day before, what days
off they were going to receive, except for Christmas Day and New
Year's Day; after the meeting, a list of holidays was posted. The
Trial Examiner found that the only change involved was one of prior
announcement, which did not constitute a "wage increase" or an
"economic benefit." We do not agree. The advance posting of holi-
days, where it had not been done before and where such posting makes
holidays certain that would otherwise be uncertain until the day be-
fore such holiday, constitutes at least a change in the terms of em-
ployment, Accordingly, we find, for the reason stated hereafter with
respect to the change in overtime pay, that the Respondent violated
Section 8 (a) (1) of the Act by granting this change in the terms and
conditions of employment at a time when the Union was seeking to
organize the employees.
(b) Another employee complained that when someone worked over-
time on a day falling in a holiday week, no overtime rate was paid
unless that person had worked more than 40 hours in that week. The
record supports the finding that this was the Respondent's policy up
to that time. In response to this complaint, the policy was changed
to the payment of an overtime rate for work in excess of 8 hours on
any day in a holiday week.
The Trial Examiner found that this change constituted an economic
benefit granted during an organizing campaign; with this we agree.
However, he found no violation because the General Counsel had
failed to prove that the Respondent had been motivated by a desire
to cause the employees to accept or reject a bargaining representative.
We do not agree with the test applied by the Trial Examiner. It is
well settled that the test of interference, restraint, and coercion under
Section 8 (a) (1) of the Act does not turn on the employer's motive or
on whether the coercion succeeded or failed. The test is whether the
employer engaged in conduct which, it may reasonably be said, tend
to interfere with the. free exercise of emplnyee rights under the Act.'
Applying this t we find that oy announcing its change in overtime
policy during the course of the organization campaign among office
employees, the Respondent violated Section 8 (a) (1) of the Act.
(c) On his own motion Forman announced a change in the Re-
spondent's previous policy with respect to leave. In addition to their
I N.L.R.B. v. Illinois Tool Works, 153 F. 2d 811 (C.A. 7). See also Coaco Products
Company, 123 NLRB 766.
148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vacation, all office employees had been allowed 5 days' emergency
leave with pay each year. Up to the date of this meeting, such paid
leave could be taken only on Tuesday, Wednesday, or Thursday. At
the meeting, and by notice thereafter, Forman announced that, until
the next summer, employees could take their emergency leave on any
day of the week.
The Trial Examiner found that this change did not constitute an
economic benefit because it did not affect the number of days leave
but only the days of the week when such leave could be taken. We
do not agree. At the very least, this new policy made possible "long
weekends" without loss of pay where they had not previously existed,
and, as such, constituted a beneficial change in the terms and condi-
tions of employment. Accordingly, we find, for the reason aforemen-
tioned, that the Respondent violated Section 8(a) (1) of the Act by
changing its policy with regard to emergency leave.
The Trial Examiner found, and we agree, that Supervisor Reustle's
statement to employee Tuliszewski that the employees would lose
certain privileges if a union succeeded in organizing them, constituted
a threat in violation of Section 8 (a) (1). The Trial Examiner further
found, however, that the threat was an isolated one and insufficient,
standing alone, to require a remedial order. In view of our findings
herein concerning other violations of Section 8(a) (1), we shall in-
clude this violation in our remedial order.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, as set forth above, which have
been found to constitute unfair labor practices, occurring in connec-
tion with the operations of the Respondent, described in the Inter-
mediate Report, 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.
ADDITIONAL CONCLUSIONS OF LAW
1. By granting certain benefits to its employees, and by changing
certain terms and conditions of employment, including the advance
posting of holidays, payment of overtime in a holiday week, and the
changing of its emergency leave policy, at a time when the unions
were seeking to organize the employees involved, the Respondent has
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, in violation of Section
8(a) (1) of the Act.
:2. By threatening an employee with loss of certain privileges if a
union succeeded in organizing the employees, the Respondent has
AMERICAN FREIGHTWAYS CO., INC. 149
interfered, with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act, in violation of Sec-
tion 8 (a) (1) of the Act.
3. The Respondent has not violated Section 8(a) (3) and (1) of the
Act, except as found in conclusions 1 and 2, above.
THE REMEDY
Having found that the Respondent as engaged in unfair labor prac-
tices, we shall require it to cease and desist therefrom and to take
certain affirmative action designed to effectuate the policies of the Act.
We shall order the Respondent to cease and desist from threatening
its employees with loss of privileges if they select a union. We shall
also order the Respondent to cease and desist from interfering with,
restraining, or coercing its employees in the exercise of the rights
guaranteed under Section 7 of the Act by granting economic benefits
to its employees and by changing the terms and conditions of employ-
ment. However, nothing herein shall be construed as requiring the
Respondent to vary or abandon any economic benefit or any term or
condition of employment which the Respondent has heretofore
established.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that American Freightways Co., Inc.,
New York, New York, its officers, agents, successors, and assigns, shall :
1. -Cease and desist from :
(a) Interfering with, restraining, or coercing its employees in the
exercise of rights guaranteed in Section 7 of the Act by threatening
them with loss of privileges if a union successfully organized them;
by granting them economic benefits ; or by changing the terms and
conditions of their employment : provided, however, that nothing in
this Order shall be construed as requiring the Respondent to vary or
abandon any economic benefit or any term or condition of employment
which it has heretofore established.
(b) In any like or related manner interfering with, restraining, or
coercing 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 organization as a con-
dition of employment, as authorized by Section 8(a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its offices, in conspicuous places, including all places
where, notices to employees are customarily posted, copies of the notice
150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attached hereto marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall, after
being duly signed by Respondent's representative, be posted by the
Respondent immediately upon receipt thereof and maintained by it
for 60 consecutive days thereafter. Reasonable steps shall be taken
by the said Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for the Second Region in writ-
ing, within 10 days from the date of this Order, as to what steps
Respondent has taken to comply therewith.
MEMBER FANNING, concurring:
I concur in my colleagues' conclusion that the Respondent violated
Section 8(a) (1), but did not violate Section 8(a) (3) of the Act. In
so doing, however, I think it most important that the Trial Examiner's
rationale with respect to the discharge of Rose McMahon be corrected
rather than adopted.
The record shows that the Respondent's president, Forman, had been
informed specifically that McMahon was one of four employees
campaigning on behalf of the Union. Acting upon this information,
Forman and McMahon's immediate supervisor interrogated her con-
cerning her union activity. She denied such activity. The inter-
rogators, as witnesses, testified that they had believed McMahon 's
denials. The Trial Examiner thereupon held that : (1) The sub-
jective opinion of Forman involved an issue of credibility; and (2)
the issue having been resolved in his favor, the General Counsel had
failed to prove that the Respondent "knew of or suspected McMahon's
interest in the Office `Yorkers." In my opinion, the Trial Examiner
has incorrectly applied the test of an employer's knowledge or sus-
picion of an employee's union activity as a prerequisite to finding a
violation of Section 8 (a) (3). Self-serving declarations of motive or
opinion incapable of contradiction do not generally, and should not,
fall within the category of credibility resolutions. See Pacific Tele-
phone and Telegraph Company, 107 NLRB 1547, 1551. Moreover,
the evidence that an employer has been informed that a particular
employee has been engaged in union activity should be sufficient to
find that the employer had reason to suspect such activity, despite the
employee's denials. The quantum of proof to support a finding of
suspicion obviously need not reach the level of knowledge. Accord-
ingly, I would find that the Respondent had reason to suspect Mc-
Mahon of union activity. However, the evidence, in my opinion, is
otherwise insufficient to warrant the conclusion that she was dis-
charged in violation of Section 8 (a) (3).
2 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."
AMERICAN FREIGHTWAYS CO., INC. 151
MEMBER RODGERS, dissenting in part :
I would affirm the Trial Examiner and dismiss the complaint. The
evidence relied upon by my colleagues to reverse the Trial Examiner
and to support their conclusion that the Respondent violated Section
8(a) (1) of the Act consists of the adjustment of two minor griev-
ances presented by employees to Respondent's president and an in-
significant change in leave regulations occurring during an organiza-
tional campaign. These so-called "benefits" are so trifling that they
could have had no substantial impact upon the employees' organiza-
tional rights. Nor do these "benefits," in my opinion, convert an
otherwise admittedly isolated instance of a supervisory threat into
a violation of the Act.
MEMBER JENKINS took no part in the consideration of the above
Decision and Order.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed in Section 7 of the Act
by threatening them with loss of privileges if a union successfully
organizes them; by granting them economic benefits; or by
changing the terms and conditions of their employment : pro-
vided, however, that nothing in this Decision and Order requires
us to vary or abandon any economic benefit or any term or con-
dition of employment which has been heretofore established.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
All our employees are free to become, to remain, or to refrain from
becoming or remaining, members of any labor organization of their
own choosing.
AMERICAN FREIGHTWAYS CO., 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.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
This case involves allegations that: American Freightways Co., Inc., New York,
New York, herein called the Respondent, has interfered with, restrained, and
coerced its employees in certain specified respects since on or about August 20,
1957; it discharged employee Rose McMahon on or about February 14, 1958, and'
has since failed and refused to reinstate her, because of her membership in, and
assistance to, Office Employees International Union, Local 153, AFL-CIO, the
Charging Party, herein called the Office Workers; and it transferred employee Harold
Peterson from the traffic department to rate clerk on or about October 1, 1957, and
from rate clerk to salesman on or about November 1, 1957, because of his activities
on behalf of, and his adherence to, the Office Workers, in order to discourage mem-
bership in or adherence to the Office Workers, and to prevent, hinder, or impede him
in supporting the Office Workers. It is alleged that this conduct violated Section
8(a)(1) and (3) of the National Labor Relations Act, as amended (61 Stat. 136),
herein called the Act. After the issuance of a complaint by the General Counsel'
and the filing of an answer by the Respondent, a hearing was held before me from
August 4 to 7, 1958, inclusive, at New York, New York. All parties were represented
and participated in the hearing. At the close of the hearing, the Respondent moved
to dismiss the complaint in its entirety on the ground that the General Counsel
"failed . to sustain the burden of proof with respect to the material allegations of
the complaint and failed to establish the allegations by a preponderance of the
credible evidence." The motion was opposed by the General Counsel; ruling thereon
was reserved. Although all parties were given an opportunity to file a brief, no
party has done so.
On August 28, 1958, the Respondent moved to reopen the hearing. This motion
was granted. The Respondent later requested permission to withdraw this motion,
with prejudice. On October 16, 1958 the Respondent's request to withdraw its
motion was granted, with prejudice, and the record was closed.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
There is no dispute, and it is found, that the Respondent is, and at all material
times has been, engaged in commerce within the meaning of the Act and its opera-
tions meet the Board's jurisdictional standards,2 and that the Office Workers, and
Local Union No. 707, Highway and Local Motor Freight Drivers and Helpers, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, herein
called the Teamsters, are, and at all material times have been, labor organizations
within the meaning of the Act.
A. Sequence of events
In August 1957, the Office Workers began to organize the office employees of the
Respondent. On August 20, 1957, the Office Workers filed with the Board a peti-
tion seeking recognition as bargaining agent for the Respondent's office and clerical
employees.3 Shortly after that the Teamsters also sought to organize the Respond-
ent's office employees .4 The Respondent sent letters to its office employees informing
them of their right to designate either of the rival unions as their bargaining agent
and their right to refuse to designate either. On October 4, 1957, Norman Forman,
the Respondent's president, addressed the office employees on company time and
property. The contents of this speech will be described in more detail below. Fol-
lowing a hearing the Board, on February 10, 1958, issued a Decision and Direction
of Election (unpublished) directing an election among the Respondent's "office and
'The designation "General Counsel" refers to the General Counsel of the National
Labor Relations Board and his representative at the hearing.
3 The Respondent is a New York corporation engaged in the business of providing and
performing common carrier services by truck, and related services. It maintains its
principal office and place of business in New York, New York, and facilities in various
other cities in the State of New York. During the year immediately prior to the issuance
of the complaint herein, the Respondent derived an income exceeding $100,000 from
trucking operations performed for various enterprises, each of which annually produces or
handles and ships goods valued at more than $50,000 out of the State in which the said
enterprise is located.s
Case No. 2-RC-9093.
6 The Teamsters already represented the Respondent's drivers, helpers, and platform
men for collective-bargaining purposes.
AMERICAN FREIGHTWAYS CO., INC. 153
office clerical employees" to determine whether or not they desired to be represented
by the Office Workers for purposes of collective bargaining .5 On February 14, 1958,
the Respondent discharged Rose McMahon , an office employee who had been active
on behalf of the Office Workers . On February 17, 1958, the Office Workers filed
the charge herein.
B. The discharge of Rose McMahon
Rose McMahon , an office employee of the Respondent, was discharged on
February 14, 1958, and has not been reemployed . The complaint alleges that the
Respondent 's discharge of McMahon , and its failure to reinstate her, were "because
[she] joined and assisted [the Office Workers] and engaged in other concerted activi-
ties for the purpose of collective bargaining or mutual aid or protection , and because
Respondent believed her to be a sponsor of the organizing campaign " of the Office
Workers. In support of his contention that McMahon 's discharge was designed
to influence the pending Board election adversely to the Office Workers, the General
Counsel points, among other things, to McMahon 's activities on behalf of the Office
Workers, and the timing of her discharge soon after the issuance of the Board's
Decision and Direction of Election . The answer admits the discharge and refusal
to reemploy, but denies that they occurred for the reasons set forth in the complaint.
The Respondent contends that McMahon was discharged for excessive lateness,
excessive absence , and inattention to duty, especially a 20-minute personal telephone
conversation on February 6, 1958. The Respondent further maintains that it did not
know or suspect that McMahon was supporting the Office Workers at the time of
her discharge . The General Counsel maintains that either the alleged 20-minute
telephone conversation did not occur at all, or if it did, it was seized upon by Forman
as a pretext to conceal the real reason for the discharge.
There can be no doubt , and it is found , that McMahon was an active supporter
of the Office Workers from early in the campaign . But was this fact known to the
Respondent?
Late in August or early in September 1957 , Forman was informed that four office
employees (Rose McMahon , Harold Peterson , Phyllis Tuliszewski , and Alfred
Talaly ) were engaged in the Office Workers' campaign . Forman summoned
McMahon to his office , told her that he had heard that she was active on behalf
of the -Office Workers , and added that he had no objection , provided she would con-
fine her union activities to nonworking time. McMahon , raising her hand, replied:
"Mr. Forman , I am a good Catholic. I raise my right hand . I swear I had nothing
to do with union activities ." 6 McMahon then left Forman 's office, returned to her
place of work , and repeated the entire conversation to John Reustle , her immediate
superior . Reustle remarked that he knew that Forman had McMahon "pegged
as the instigator . who had called the union in." McMahon then assured
Reustle that "she had nothing to do with the union ." Forman testified credibly
that from that time on he had-no knowledge or suspicion that McMahon "had any-
thing to do with the union ." He further testified credibly and without contradiction
that it was he and he alone who decided to have McMahon discharged , and that he
directed Reustle to do so . Reustle testified credibly that he "formed no opinion
one way or another" as to whether McMahon was an adherent of the Office Workers.
He further testified credibly and without contradiction that when he discharged
McMahon on instructions from Forman , McMahon said she thought she was being
discharged because of her support of the Office Workers, and that he (Reustle)
assured her "that it had nothing to do with the Union."
It seems clear , and I find, that McMahon 's false protestations to Forman allayed
his suspicion that she was an adherent of the Office Workers.? Nothing else is
shown to have occurred between that interview and the discharge-a period of 5
months-to revitalize Forman 's original suspicion . Accordingly I find that the
General Counsel has failed to prove that , at the time of McMahon 's discharge,
Forman knew of or suspected McMahon's interest in the Office Workers. It follows
that it has not been demonstrated that he violated Section 8(a)-(1) and ( 3) of the
Act when he ordered her discharged.
But even assuming, contrary to the above , that Forman was unconvinced by
McM•ahon's assurances that she was not an adherent of the Office Workers, it does
5 Sometime later , the Board amended this to include the name of the Teamsters on the
ballot. Because of the instant unfair labor practice charge, the election has not yet
been held.
O The finding of fact with respect to McMahon' •s reply is based on Forman 's credited
testimony , corroborated by McMahon's admission.
7 Speaking of McMahon, who had been in the Respondent 's employ since the fall of 1955,
Forman testified credibly and without contradiction : "I respected her and trusted her."
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not follow that her discharge was discriminatory. For while the quality and quan-
tity of McMahon's work was good, she had a poor record for lateness, absence, and
,inattendance to duty-especially when Reustle was out of town. Thus, between
February 1, 1957, and February 1, 1958, she had been late 47 times, absent 24
times (excluding vacation) and had left work early 3 times. During the same :12-
month period she was reprimanded by Reustle at least four times for inattention to
duty and making personal telephone calls. On December 20, 1957, Reustle warned
her that if her lateness and absenteeism continued, the Respondent would have no
alternative but to dismiss her. And on February 6, 1958, while Reustle was out of
town, Forman overheard her make a lengthy personal telephone call from the
office on working time.8 Annoyed, he determined to have McMahon discharged.
On February 10, 1958, as he was leaving town, he telephoned to the Respondent's
office from the airport and told Reustle (who by then was back in New York) of
McMahon's lengthy personal call. On February 14, 1958, when he returned to New
York, Forman discussed the matter with Reustle and directed him to discharge
McMahon for excessive lateness, absence, and inattention to duty, culminating in a
20-minute personal telephone call during working hours.9 Reustle did so, telling
McMahon the reasons given by Forman. After her discharge, McMahon applied
to the New York State Department of Labor for unemployment compensation. She
was advised that benefits would be withheld for 6 weeks because "your lateness
provoked your discharge." McMahon did not appeal this determination.
While it is true that McMahon received a wage increase in January 1958, this
does not indicate-as the General Counsel argues-that her past record was for-
given and overlooked. As Forman credibly testified, she had not had a pay raise
for more than a year, her lateness and absence record apparently had improved since
the reprimand in December, and he believed the raise would provide McMahon with
an incentive to continue this improvement. Moreover, had Forman been anxious
to rid the Respondent of McMahon because of her support of the Office Workers,
he had ample opportunity on December 20, 1957, but refrained from doing so at
that time.1° Finally, the fact that McMahon received a.wage increase shortly before
her discharge may well indicate a lack of animus against her.
In view of McMahon's bad record for lateness, absence, and inattention to work,
the many warnings given her, and the lengthy personal telephone call of February 6,
I conclude that McMahon was discharged for cause unconnected with her union
activities.
C. The transfer of Harold Peterson
1. The transfer to rate clerk
Harold Peterson began to work for the Respondent in 1951 as rate clerk. After
about a year, he was transferred into the traffic department. He was one of the.
employees most active in contacting and supporting the Office Workers, and Forman
learned of this. Early in September 1957, Forman summoned Peterson and told him
that he was received a wage increase. He added that he was aware of Peterson's
union activities and had no objection as long as those activities were not conducted
on company time.
In mid-September 1957 the Respondent selected its then rate clerk, Murray
Antler, to fill a vacancy in the operating department. Benjamin Masef, the
Respondent's traffic and sales coordinator, summoned Peterson, told him that Antler
was going to be transferred to the operations department, that Peterson "was the
logical person to take his place" as rate clerk, and that the change would take effect
the following Monday. Peterson replied that he did not think he was capable pf
doing the job of rate clerk. Later, Peterson went to Forman and protested the
change, again stating that he did not think he could do the work. The transfer was
nevertheless effected. For a while, Antler aided Peterson with the rate clerk's
8 Forman testified that the call lasted 20 minutes. McMahon denied that she made any
personal call from the office which lasted that long. I do not deem it necessary to deter-
mine the exact length of the call.
There is evidence, and I find, that the Respondent had a long-standing rule forbidding
personal telephone calls during working time.
91 credit Forman's testimony that his decision to have McMahon discharged was made
on February 6, but the actual discharge postponed because of his own and Reustle's
absence from New York. But even if the decision had not been made until February 14,
as the General Counsel contends , my ultimate conclusion regarding Forman's motive
would be unchanged.
10 Compare Ceilich Tanning Company, 122 NLRB 1119.
AMERICAN FREIGHTWAYS CO., INC. 155
work . Peterson's hours as rate clerk started at noon and ended "anywhere from
9 o'clock in the evening to midnight"; his hours in the traffic department had been
from 8:30 a .m. to 5:30 p.m. The transfer involved no change in pay. Both jobs
were within the unit later found appropriate by the Board.
The complaint as amended at the hearing alleges, and the answer denies , that the
Respondent transferred Peterson from the traffic department to rate clerk on or about
October 1, 1957, "because of his activities on behalf of and his adherence to [the
Office Workers], and for the purpose of discouraging membership in or adherence to
[the Office Workers], and to prevent , hinder or impede . . . Peterson in his support
and activities on behalf of" the Office Workers. The General Counsel contends that
Peterson was transferred "to a position where he worked longer hours , performed
more arduous work and removed him from the possibility of talking to other em-
ployees" 11 at a time when he was known to be a strong adherent of the Office
Workers. But Peterson had served as rate clerk for approximately a year in 1951
and 1952 and therefore was, as Masef stated, the logical one to take Antler's place.
Indeed, the General Counsel did not attempt to name any other likely candidate for
the position . Moreover , only a short while before the transfer , Peterson had
received a wage increase at a time when his support of the Office Workers was
known ; consequently no finding of punitive motive is justified. I conclude that the
General Counsel has failed to prove that the transfer of Peterson from the traffic
department to rate clerk was related in any way to his union activities or was other
than the result of a legitimate business decision.
2. The transfer to salesman
Late in October 1957 Forman called Peterson to his office and showed him a pile
of photostatic copies of errors Peterson had made as rate clerk , remarking that it
seemed that Peterson was making mistakes intentionally and was not doing a very
good job. Peterson replied that he had told Forman when he took the job as rate
clerk that he could not handle it. Forman then said that it would be best to put
Peterson in another job, and gave him his choice of four available positions: file
clerk ( involving a salary cut ), two office jobs (otherwise unidentified ), and salesman..
Peterson chose the salesman position because, as he expressed it, that one "seemed
best for me." He is still so employed. The transfer from rate clerk to salesman
involved no change in salary. In his capacity as salesman , Peterson was required
to be away from the plant a substantial part of the day.
The complaint as amended at the hearing alleges, and the answer denies, that the
Respondent transferred Peterson from rate clerk to salesman on or about November
1, 1957, "because of his activities on behalf of and his adherence to [the Office
Workers], and for the purpose of discouraging membership in or adherence to [the
Office Workers], and to prevent , hinder or impede . Peterson in his support and
activities on behalf of" the Office Workers. The General Counsel argues that,
when made a salesman , "Peterson was transferred completely out of the appro-
priate unit ." This is not accurate . The Board , in a footnote to its Decision and
Direction of Election , left Peterson 's unit status undetermined , permitting him to
vote under challenge. And while it is true that in October Forman did not offer
Peterson back his old job in the traffic department , this may well have been because
the traffic department position had meanwhile been filled by Al Gordon and another
employee ( identified only as Frank ). In view of Peterson's poor showing in the
rate clerk job, and the choice of other jobs (within the unit ) Forman offered him,
I conclude that Peterson 's transfer from rate clerk to salesman was not shown to
have been motivated in any way by his known activities on behalf of the Office
Workers. It therefore was not proved to have been violative of Section 8(a)(1)
or (3) of the Act.
D. Alleged interference , restraint , and coercion
1. Alleged favoritism to the Teamsters
The complaint alleges, and the answer denies, that from on or about August 20,
1957 , the Respondent permitted "agents and adherents [ of the Teamsters ] to solicit
members among Respondent 's employees , during working time and on company
premises, while refusing to permit agents and adherents of [the Office Workers]
to engage in similar activities."
11 While performing the functions of rate clerk, Peterson was located in a spot more
removed from areas where he could contact other office employees than when he worked
in the traffic department.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support of his contention that the Respondent showed favoritism to the Team-
sters, the General Counsel introduced evidence tending to show that Mike Walker,
a driver employed by the Respondent and shop steward for the Teamsters , solicited
some of the Respondent 's office employees on behalf of the Teamsters , in the plant
during working hours. Moreover , McMahon testified that Forman , in late August
or early September 1957, after warning her not to solicit for the Office Workers
during company time, added that he could fire her, but would not do so. The General
Counsel maintains that the record therefore shows disparate treatment of the
Teamsters ' organizers , on the one hand, and the Office Workers' adherents on the
other. I cannot agree . Forman had a right to ban solicitation on working time, as
long as he laid down the same rules for both rival unions . 12 And the mere fact
that Walker engaged in solicitation on the Teamsters ' behalf during working hours
does not prove that he did so with the knowledge or consent of the Respondent.
Indeed, Forman testified credibly and without contradiction that in September 1957
he told Walker that he would not give him permission to solicit the office employees,
and that Walker should not count on Forman "for any assistance whatsoever."
The General Counsel further introduced testimony tending to show that when
Forman addressed the assembled office employees in October 1957, he told them
he could not prevent the Teamsters from soliciting them during working time
because the Teamsters had a contract with the Respondent . But Forman denied
that he made this statement to the assembled office employees . He impressed me
as a sincere and forthright witness and I credit his denial.
Finally, the General Counsel produced evidence tending to show that a notice
of a meeting of the Teamsters was posted on the time clock used by the office
employees, but that when the Office Workers held a meeting, no similar notice was
posted in the plant. However, this does not indicate any favoritism, for the General
Counsel did not show that the Office Workers sought permission to post a notice
and were refused , or that the Teamsters ' notice was posted with the consent of the
Respondent . On the contrary , Forman testified credibly and without contradic-
tion that he did not learn of the posting of the Teamsters ' notice until after it had
been taken down.
The record convinces me that Forman was just as opposed to having the Respond-
ent's office employees represented by the Teamsters as he was to having them
represented by the Office Workers. I can find no persuasive evidence that he
favored the Teamsters at the expense of the Office Workers.
2. Alleged granting of economic benefits
The complaint alleges, and the answer denies, that from on or about August
20, 1957, the Respondent promised its employees , and granted to them, "wage
increases and other economic benefits for the purpose of discouraging membership
and activity in" the Office Workers.
In support of this allegation , the General Counsel introduced evidence tending
to show that , when Forman addressed the assembled office employees in October
1957, one of the employees complained that they never knew what holidays they
were getting until the day before, and that thereafter a list of future holidays was
posted. In evaluating this evidence, it must be remembered that no change was
allegedly made in the number of holidays-the only change alleged is a change in
prior announcement . Assuming , without deciding , that this occurred as related by
the General Counsel 's witnesses , and that the purpose was to discourage union activi-
ties, the violation alleged in the complaint would still not have been proved, for the
mere advance announcement of holidays would not have constituted a "wage in-
crease" or "other economic benefit" within the meaning of the complaint. The
same may be said of the General Counsel 's attempt to prove that the Respondent
changed its rules so that its office employees were permitted to take their leave 13
on any day of the week , rather than only on Tuesdays , Wednesdays , and Thursdays,
as previously . Such a change , if it did occur, would not have affected the number
of days' leave , but only the days of the week in which it could be taken. Accordingly,
it would not have constituted a "wage increase " or other "economic benefit," but at
most would have been a mere convenience.
The General Counsel also produced evidence tending to show that , in the same
speech , at the request of employee Frances Rebecca, Forman announced a change
12N.L.R .B. v. Avondale Mills, 242 F . 2d 669 , 671 (C .A. 5) affd. 357 U.S. 357; Lily-
.Tulip Cup Corporation, 113 NLRB 1207 ; 1269; and The Texas Company, 80 NLRB
862, 865.
is In addition to vacation , each employee received annually 5 days' leave with pay.
AMERICAN FREIGHTWAYS CO., INC . 157
in the overtime policy as follows: Previously, when a holiday fell in a week, no
overtime was paid an employee unless he worked more than 40 hours excluding the
holiday, but in the future the holiday would be included in computing the 40 hours,
and all time in excess would be paid for at overtime rates. According to the General
Counsel, the purpose of this change 14 was to discourage union activities and
adherence.
It is true that the announcement, if made at all, was made during the campaigns
of two rival unions, and constituted an economic benefit. But the granting of eco-
nomic benefits during a union's organizational campaign is not per se violative of the
Act. As the Board has said, "What is unlawful under the Act is the employer's
granting or announcing such benefits [although previously determined upon bona
fide] for the purpose of causing the employees to accept or reject a representative
for collective bargaining." [Emphasis in original.] 15 The only evidence of For-
man's purpose was his desire, expressed in the same speech, that the office employees
would not choose either union to represent them in bargaining. This is not enough..
As was said in the Avondale Mills case: "Nor does the fact alone that the company
was opposed to the union, as was its lawful right, furnish substantial evidence of
an unlawful and discriminatory purpose." 16 It is accordingly found that the General
Counsel has failed to prove that the announcement regarding the change in overtime
policy, if 'made, was designed to discourage support for the Office Workers.
It has already been related that McMahon received a pay raise in January 1958,
and that Peterson was given a wage increase in September 1957. The General
Counsel contends that these were granted for discriminatory reasons. With regard
to McMahon, it has previously been determined that from September 1957 on,
Forman neither knew of nor suspected her activities on behalf of the Office Workers.
Hence, the increase given her could not have been discriminatorily motivated. More-
over, as pointed out above, Forman had nondiscriminatory reasons for granting
McMahon an increase. So far as Peterson is concerned, he was notified of his
raise at the same time Forman revealed his knowledge of Peterson's union activities.
But, as Peterson admitted, Forman also stated in the same conversation that he
had no objection to Peterson's activities on behalf of the Office Workers so long
as they were confined to nonworking time. Moreover, Peterson had not received
a raise for some time. I conclude that the General Counsel has failed to prove
that the pay raise given Peterson in September 1957 was designed to persuade him
to abandon his activities on behalf of the Office Workers, or was in any way con-
nected with such activities, or was motivated by other than business considerations.
3. Alleged coercive interrogation
The complaint alleges, and the answer denies, that from on or about August 20,
1957, the Respondent interrogated its employees "as to their union membership and
activities, in a manner constituting interference, restraint and coercion." Several
witnesses for the General Counsel testified that, in his talk to the assembled office
employees in October, Forman stated that he knew every employee who had signed
up with the Office Workers and could discharge all of them and hire a completely
new staff, but would not do so. Forman denied telling the assembled employees that
he could discharge them for signing an authorization card. His denial is credited.
McMahon testified that in his interview with her in September 1957, Forman,
after stating that he heard she had been soliciting for the Office Workers on com-
pany time, added that he could discharge her but would not do so. It is clear that
the alleged statement was, at most, a threat of reprisal if union activities were carried
on during working hours.17 Such a threat, if made, was within Forman's rights.
Alfred Talaly, at that time a file clerk in the Respondent's employ, testified that
his immediate superior, Masef, told him in November or December 1957 that when
the Teamsters first organized the Respondent's drivers, the drivers "took a decrease
in pay" and that "that could happen to the office employees, too." Assuming that
Masef made the statement attributed to him by Talaly, I consider it a mere pre-
diction of what could happen, protected by Section 8(c) of the Act, rather than
a threat of reprisal.
14 There is some indication that the policy might always have been as Forman an-
nounced, and that Rebecca's failure to receive overtime pay on that basis was an error..
However, for the purpose of deciding this issue, it will be assumed that the announce-
ment constituted a change.
'b Hudson Hosiery Company, 72 NLRB 1434, 1437.
le N.L.R.B. v. Avondale Mills, 242 F. 2d 669, 671 (C.A. 5), affd. 357 U.S. 357.
17 Compare The Texas Company, 80 NLRB 862, 865.
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Phyllis Tuliszewski, an office worker employed by the Respondent, testified that
in October, November, or December, 1957, Reustle, her immediate superior, stated
that if a union (apparently either one) came in, the employees would lose their
radio privileges, coffee breaks, and "things like that." Assuming, without deciding,
that Reustle made such a statement, it constitutes at most an isolated threat by a
minor supervisor, insufficient standing alone to require a remedial order.
4. Alleged claim to know the Office Workers' adherents
The complaint alleges, and the answer denies, that since on or about August 20,
1957, the Respondent informed its employees "that it knew the names of all sup-
porters of [the Office Workers], in a manner constituting interference, restraint
and coercion." As related above, there is testimony that in addressing the assembled
office employees in October 1957, Forman claimed that he knew every employee
who had signed up with the Office Workers. The General Counsel contends that
this "tended to . . . make the employees apprehensive, to frighten employees as
to future activities on behalf of" the Office Workers. But in the same speech For-
man stated that he did not care if the employees solicited for either union, so long
as it was not done on company time, which interfered with work; and that they had
a right to join a union if they wanted to do so. Moreover, Forman had earlier sent
the employees a letter stating, among other things: "The laws protect your right
to designate a union." In the context of these assurances, Forman's statement
that he knew the identity of all supporters of the Office Workers, if made, was
harmless; whatever coercive effect it might have had was adequately neutralized.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. American Freightways Co., Inc., is, and at all material times has been, engaged
in commerce within the meaning of Section 2(6) and (7) of the Act.
2. Office Employees International Union, Local 153, AFL-CIO, and Local
Union No. 707, Highway and Local Motor Freight Drivers and Helpers, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, both
are, and at all material times have been, labor organizations within the meaning of
Section 2(5) of the Act.
3. The General Counsel has failed to establish by a fair preponderance of the
evidence that the Respondent committed any unfair labor practices within the mean-
ing of Section 8 (a) (1) or (3) of the Act.
[Recommendations omitted from publication.]
Shoreline Enterprises of America , Inc. and International Union
of United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America , AFL-CIO. Cases Nos. 10-RC-2995 and
1219-CA-9. July 17, 1959
SUPPLEMENTAL DECISION, ORDER, AND REVOCATION
OF CERTIFICATION OF REPRESENTATIVES
On May 19, 1957, the Board issued its Decision and Order in Case
No. 12-CA-9,1 in which it found that the Respondent had refused
to bargain in good faith with the Union as the exclusive bargaining
representative of certain of its employees, in violation of Section
8 (a) (5) and (1) of the Act. In so finding, the Board affirmed the
validity of the prior proceedings which had resulted in the Union's
certification.2
2117 NLRB 1619.
2 The Board had issued its Decision and Certification of Representatives on October 26,
1955. Case No. 10-RC-2995, 114 NLRB 716.
124 NLRB No. 18.