Bayliss Trucking Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 276 (N.L.R.B. 1969)

276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Bayliss Trucking Corp., and Bayliss Fuel Oil Corp.
and Coal, Gasoline , Fuel Oil Teamsters,
Chauffeurs, Helpers, Oil Burner Installation,
Maintenance , Servicemen and Helpers, Local 553,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America and Amalgamated Local Union 355,
Intervenor . Case 29-CA-1462
June 30, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On May 12, 1969, Trial Examiner Abraham H.
Mailer issued his Decision in the above-entitled
proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. Thereafter, the Respondent
and the Intervenor filed exceptions to the Trial
Examiner's Decision, with supporting briefs and the
General Counsel and the Charging Party filed briefs
in support of the Trial Examiner's Decision.
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.
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 exception, the exceptions
and briefs, and the entire record in this case, and
hereby adopts the findings, conclusions,' and
recommendations of the Trial Examiner, with the
following limited modification.
THE REMEDY
In order to insure that the employees in the
appropriate unit will be accorded the services of
their selected bargaining agent for the period
provided by law, we shall construe the initial year of
certification as beginning on the date the
Respondent commences to bargain in good faith
with the Union as the certified bargaining
representative in the appropriate unit. See: Mar Jac
Poultry Company, Inc., 136 NLRB 785; Commerce
Company d/b/a Lamar Hotel , 140 NLRB 226, 229,
enfd . 328 F.2d 600 (C.A. 5), cert . denied 379 U.S.
'Although we agree with the Trial Examiner 's conclusion , we do so
because an evaluation of all objective considerations establishes that the
ballot used in the election did not constitute grounds for invalidating the
results thereof
817; Burnett Construction Company, 149 NLRB
1419, 1421, enfd . 350 F.2d 57 (C.A. 10).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board herby adopts as its Order the
Recommended Order of the Trial Examiner, and
hereby orders that the Respondent, Bayliss Trucking
Corp., and Bayliss Fuel Oil Corp., its officers,
agents, successors , and assigns , Brooklyn, New
York, shall take the action set forth in the Trial
Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ABRAHAM H. MALLER, Trial Examiner: On September
18, 1968, Local 553, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen, and Helpers of
America, herein called the Teamsters, filed a charge
against Bayliss Trucking Corp., and Bayliss Fuel Oil
Corp ., herein collectively called the Respondent.' Upon
said charge, the Regional Director for Region 29 of the
National Labor Relations Board, herein called the Board,
on September 25, 1968, issued on behalf of the General
Counsel a complaint against the Respondent, alleging that
the Teamsters had been certified as the exclusive
collective-bargaining representative of the employees of
the Respondent in an appropriate unit and that the
Respondent had refused to bargain collectively with the
Teamsters, in violation of Section 8(a)(5) of the National
Labor Relations Act, as amended (29 U.S.C. Sec. 151, et
seq.) herein called the Act.' In its duly filed answer,
Respondent denied the commission of any unfair labor
practices and affirmatively alleged that it had filed timely
objections to the conduct of the election pursuant to which
the Teamsters had been certified, that the Regional
Director had caused an investigation of the objections to
be made , that said objections had raised substantial
material and factual issues and that the Respondent had
requested a hearing upon said objections, that in violation
of due process and of the rights and remedies of the
Respondent, the Regional Director and the Board had
overruled said objections without conducting such hearing.
A brief statement of the background, including an
antecedent representation proceeding , is necessary in order
to put the subsequent proceedings in the instant case in
their proper perspective. The Respondent and
Amalgamated Local Union 355, herein called
Amalgamated, had had a collective bargaining
relationship for at least 7 years. Pursuant to a petition
filed by the Teamsters under Section 9(c) of the Act, in
Case 29-RC-989, and after a hearing, the Regional
Director directed an election to determine whether the
employees desired to be represented for
collective-bargaining purposes by the Teamsters or by
Amalgamated, or by neither. An election by secret ballot
'As found, infra , both companies operate as an integrated enterprise and
constitute a single employer.
'The complaint also alleges generally that the Respondent interfered
with , restrained , and coerced its employees in violation of Sec. 8(a)(1) of
the Act However , no evidence of any independent violations of Sec.
8(a)(1) of the Act was offered in evidence.
177 NLRB No. 89
BAYLISS TRUCKING CORP.
was conducted on June 6, 1968, in a unit of all drivers,
servicemen, the dispatcher, and the mechanic employed by
the Respondent at its Ronkonkoma , New York, location
as of the payroll period ending May 1, 1968, excluding all
office clerical employees, guards and supervisors as
defined in the Act. The tally of ballots showed that there
were 13 eligible voters, and that seven had voted in favor
of Teamsters and five in favor of Amalgamated.
Thereafter, Amalgamated filed timely objections to the
conduct of the election, alleging that the ballot improperly
listed Teamsters in the left position of the ballot, despite
the fact that the parties had agreed, and the Board had
approved, before the election that Amalgamated should
have that position; that Amalgamated had notified its
adherents among the voters of the fact that it would
occupy the left side of the ballot; that the change of
position on the ballot caused confusion among the voters,
a confusion which was compounded by the similarity of
the numbers of the two local unions, viz, 553 and 355.
The Respondent joined in the objections of the Intervenor.
After an investigation , the Regional Director on July 31,
1968, overruled the objections and certified Teamsters as
the exclusive bargaining representative. On August 5,
1968, Amalgamated filed "exceptions" to the Regional
Director' s Supplemental Decision and Certification of
Representative, and on August 19, Respondent requested
review of that decision . On August 30, 1968, the Board
denied the Amalgamated' s "exceptions" and Respondent's
request for review as not raising substantial issues
warranting review.
In the instant proceeding , following the filing of
Respondent' s answer , the General Counsel on November
1, 1968, filed a motion for summary judgment and for
judgment on the pleadings . In essence , the basis of the
motion was that the matters raised in the Respondent's
answer related to the certification of the Teamsters, had
been litigated in the representation proceeding , and could
not be relitigated in the instant proceeding . Respondent
filed a statement in opposition , and Amalgamated asked
and was given leave to intervene , and filed an answer and
an affidavit in opposition to the motion for summary
judgment . Both the Respondent and the Intervenor
contended that the ex parse overruling of the objections to
the election violated due process . The Charging Party filed
a letter in support of the motion for summary judgment;
and the General Counsel filed a response to
Amalgamated' s opposition.
The General Counsel' s motion was assigned to Trial
Examiner Frederick U. Reel who, on December 18, 1968,
issued an order denying the motion , together with an
accompanying opinion . On January 17, 1969, the General
Counsel took an appeal from the order denying the
motion for summary judgment . On January 29, 1969, the
Board issued an order denying the General Counsel's
appeal from the order denying the motion for summary
judgment.
Pursuant to notice a hearing was held before me at
Brooklyn, New York, on March 3 , 4, 5, and 6, 1969. The
General Counsel, the Charging Party, the Respondent,
and the Intervenor were represented and were afforded
full opportunity to be heard, to introduce relevant
evidence , to present oral argument and to file briefs with
me. Briefs were filed by all parties . Upon consideration of
the entire record' and the briefs, and upon my observation
of each of the witnesses , I make the following:
'The parties have filed a stipulation that the record be corrected in
certain particulars . Upon consideration thereof, it is hereby ordered that
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RFSPONDFNT
277
At all times material herein, Bayliss Trucking Corp.,
and Bayliss Fuel Oil Corp., have maintained their
principal office and place of business at 355 Ronkonkoma
Avenue, in the Town of Ronkonkoma, New York, herein
called the Ronkonkoma plant, where Bayliss Fuel Oil
Corp., is engaged in the retail sale of fuel oil and Bayliss
Trucking Corp., is engaged in performing delivery of fuel
oil services primarily for Bayliss Fuel Oil Corp. Bayliss
Trucking Corp., and Bayliss Fuel Oil Corp., are, and at
all times material herein have been , affiliated businesses
with common officers, ownership, directors and operators,
and constitute a single integrated business enterprise; the
said directors and operators formulate and administer a
common labor policy for the aforesaid companies,
affecting the employees of said companies. During the
year immediately preceding the filing of the complaint
herein , which period is representative of its annual
operations generally, Bayliss Fuel Oil Corp., in the course
and conduct of its annual operations, derived gross
revenues therefrom in excess of $500,000. During said
year, which period is representative of its annual
operations generally, Bayliss Fuel Oil Corp., in the course
and conduct of its business, purchased and caused to be
transported and delivered to the Ronkonkoma plant, fuel
oil and other goods and materials valued in excess of
$50,000, of which goods and material valued in excess of
$50,000 were transported and delivered to it, and received
from other enterprises, located in the State of New York,
each of which other enterprises had received said goods
and materials in interstate commerce directly from states
of the United States other than the state in which it is
located. Accordingly, I find and conclude that Bayliss
Fuel Oil Corp., and Bayliss Trucking Corp., are an
integrated enterprise constituting a single employer and
are engaged in commerce within the meaning of the Act
and that it will effectuate the policies of the Act for the
Board to assert jurisdiction here.
II. THE LABOR ORGANIZATION INVOLVED
Coal, Gasoline, Fuel Oil Teamsters, Chauffeurs,
Helpers, Oil Burner Installation , Maintenance,
Servicemen and Helpers, Local 553, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America is, and has been at all times
material herein, a labor organization within the meaning
of Section 2(5) of the Act.
Ill. THE ISSUE
Whether the reversal of the positions of the rival unions
on the election ballot caused such confusion among the
eligible voters as to render the election untrustworthy.
IV. RESPONDENTS REFUSAL TO BARGAIN
If the foregoing issue is decided in the affirmative, then
the complaint herein must be dismissed. On the other
hand , if the issue is decided in the negative, it
automatically follows that the Respondent has violated
Section 8(a)(5) of the Act, as it admittedly refused to
bargain with the certified Union.
the record be corrected as set forth in the stipulation.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The Appropriate Unit
In the representation proceeding , Case 29-RC-989, the
Regional Director found that the following employees of
the Respondent, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All drivers, servicemen , the dispatcher , and the
mechanic employed by the Respondent at its
Ronkonkoma , New York, location , excluding office
clerical employees, guards and supervisors as defined in
the Act.
Although the Respondent in its answer to the complaint,
denied the appropriateness of the foregoing unit, that
issue was not litigable in the instant proceeding. The
Board and the courts have held that in the absence of
newly discovered or previously unavailable evidence,
issues which were or could have been raised in the
related representation proceeding may not be litigated
in an Infair labor practice proceeding. State Farm Mutual
Automobile Insurance Company, 163 NLRB No 94;
United States Rubber Company , 155 NLRB 1298, 1300;
Collins & Aikman Corp., 160 NLRB 1750, 1752;
Pittsburg Plate Glass Co., v. N. L. R. B., 314 U. S.
146, 158. Furthermore, Respondent at the outset of
the hearing herein, conceded that the issue as to the
appropriate unit was not litigable in the instant proceeding
in view of the Regional Director's determination in the
representation case, but stated that it had raised the
issue solely for the purpose of preserving its position
should this case go to the Court of Appeals. I therefore
find and conclude that the unit described above is an
appropriate unit for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
B. The Election
On May 15, 1968, a preelection conference was held at
the office of Region 29. Although there is some dispute as
to precisely what occurred at that conference, there is
agreement that Amalgamated received the choice of
position on the ballot and chose the left side. Thereafter,
on May 28, 9 days before the election, the Regional
Director sent to all parties and their attorneys an official
notice of election containing a sample of the ballot to be
used in the election . On the sample ballot the positions of
the two Unions were inadvertantly reversed and appear as
follows:
MARK AN "X" IN THE SQUARE OF YOUR CHOICE
COAL, GASOLINE, FUEL OIL TEAMSTERS,
CHAUFFEURS, HELPERS, OIL BURNER
INSTALLATION, MAINTENANCE, SERVICEMEN
AND HELPERS LOCAL 553, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA
(Local 553, International Brotherhood of Teamsters)
Although no party raised an objection to the form of the
ballot prior to the election, it is the contention of the
Respondent and the Intervenor that the change of
positions caused confusion in the minds of the voters,
resulting in an invalid election.
When the notice of election , containing a sample of the
ballot, was received by the Respondent , it was posted
above the dispatcher's window on the Respondent's
premises . Respondent's Vice President Schiliro admitted
that the notice was posted "a few days" before the
election . Adjacent to the notice of election , Schiliro also
posted his own notice requesting all of the employees to
read the Board 's notice and to sign Respondent's notice to
indicate that they had done so . Some seven or eight
employees signed their names on Respondent's notice.
Henry Stirt, representative of the Amalgamated,
notified employees Frank Topputo , Theodore Bunin, and
Walter Hoff that Amalgamated would appear on the left
side of the ballot.' According to Stirt , his conversation
with Topputo occurred one morning "right after" the
preelection conference of May 15 , 1968. Topputo,
however , testified that this conversation occurred on the
morning preceding the election . Considering the fact that
the Regional Director had mailed to Amalgamated, as
well as the other parties , a copy of the notice of election
and sample ballot , it is difficult to understand why Stirt
should have told Tupputo the day before the election that
Amalgamated would appear on the left side of the ballot,
NEITHER
AMALGAMATED LOCAL
UNION 355
or if, as Stirt claims , the conversation occurred "right
after" May 15, why he did not correct the information he
had given to Topputo as well as to any other employee
that he may have so told.
The balloting was conducted on June 6 , 1968, between
5 and 6 p.m., in Respondent ' s warehouse . Immediately
prior to the election , the Board agent conducting the
election exhibited the ballot to the employees then present,
explicitly pointing out that the Teamsters union was on
the left side of the ballot, "neither" in the center, and
Amalgamated was on the right side.'
Stirt also testified that he so notified employee Carmine Della Sala, and
Topputo testified that he likewise had informed employees Howard
Goldman and William Skoch of this fact However , employees Della Sala,
Goldman , and Skoch denied being told this by anyone . I credit their
denials
'The credited testimony of employees Saulle , LaPorte, Pernice, Della
Sala, Goldman , Buteau, and Skoch. Goldman 's testimony is not affected
by an inadvertent error in his pretrial statement to the effect that "Local
553 (Teamsters) was on the left, neither in the middle , and Local 553 was
on the right." The error, he explained , is attributable to his haste caused
by his child's illness at that time . In addition , Employee Buteau testified
that he arrived at the warehouse between 5:15 and 5:30 p .m , was given a
ballot by the Board agent who explained to him that Teamsters was on the
left side, and Amalgamated was on the right side I do not credit the
contrary evidence . Topputo, the observer for the Intervenor, testified on
behalf of the Intervenor that the Board agent failed to explain the
composition of the ballot. Although he testified in his direct examination
that he saw the ballot for the first time when he himself voted, after most
BAYLISS TRUCKING CORP. 279
Of the 12 employees who voted in the election, 11
testified at the hearing . I am satisfied , after a careful
review of the evidence, that none of the employees who
voted was confused by the positions of the unions on the
ballot. All of the employees were literate. During the
hearing , the parties , their counsel , and the witnesses
referred to the Unions by their local numbers, viz, 553
and 355. It must be conceded that the striking similarity
of the numbers of the two locals, in itself , might result in
some confusion . However, this result would obtain, in any
event , even if there had been no reversal of the positions
of the unions on the ballot . Nevertheless , the essential fact
is that the two unions did not appear on the ballot only by
their local numbers. As indicated above, the full names of
the Unions were used . In the case of Teamsters, the full
name of the Union appears on the ballot : "COAL,
GASOLINE, FUEL OIL TEAMSTERS,
CHAUFFEURS, HELPERS, OIL BURNER
INSTALLATION, MAINTENANCE, SERVICEMEN
AND HELPERS, LOCAL 553, INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS,
WAREHOUSEMEN AND HELPERS OF AMERICA
(Local 553, International Brotherhood of Teamsters)."
Similarly , in the case of Amalgamated , its full name,
which is much shorter than that of the Teamsters,
appeared : "AMALGAMATED LOCAL UNION 355."
Furthermore , since Amalgamated had represented the
employees for more than 7 years, it is difficult to believe
that they would be unfamiliar with its name . Thus, the
probability of confusion by similarity of numbers was
substantially diminished , if not completely eradicated.
Seven employees who voted in the election testified on
behalf of the General Counsel: Saulle, LaPorte, Pernice,
Della Sala, Goldman , Buteau, and Skoch . It is clear from
their testimony that the reversal of the positions of the
two unions did not cause any confusion in their minds
when they voted. Of the seven, the Intervenor claims that
Della Sala, Skoch, and Goldman were told that
Amalgamated would appear on the left side of the ballot.
I have noted above that these three employees
unequivocally denied being told this by anyone. But
assuming , arguendo , that they had been so informed, it is
clear from their testimony that they were not misled
thereby when they voted. All three had read the notice of
election which included a copy of the ballot. All three
testified that the Board agent had explained the positions
of the eligible employees had voted , he admitted on cross examination that
the Board agent did show the ballot to the employees and instructed them
how to fold it. Employee Bunin , another witness for the Intervenor, could
not recall the time he arrived at the polling place , but testified that he
received no instructions concerning the ballot from the Board agent prior
to his voting . Employee Hoff, testifying for the Intervenor , could not recall
whether the ballot was shown to the employees or whether the respective
positions of the unions on the ballot was pointed out. Amalgamated's
Representative Stirt admitted that he "wasn't in hearing distance because I
was on the othersideof the table . . talkingtomaybe one of the men there."
He admitted that the Board agent had exhibited the yellow ballot.
Respondent ' s Vice President Schiliro testified that he did not see or hear
the Board agent point out the position of the unions on the ballot, but
admitted on cross-examination that he did not recall a single thing the
Board agent said to anybody prior to the opening of the polls, because he
was totally involved in setting up the warehouse for the election during this
entire period . Attorney Mandelker, representing the Respondent , testified
that no explanation was given to the employees while he was in the polling
area . However, Attorney Mandelker admitted that he left the polling area
at 4 57 p.m., when all persons except eligible voters, were asked to leave
the premises . It is quite conceivable that the Board agent's instructions
were given to the employees after Attorney Mandelker left the premises
and before the voting began.
of the Unions on the ballot prior to the election. In
addition, Skoch testified that he read the ballot before he
voted. I therefore find and conclude that none of these
seven employees was confused by the change of position
of the Unions on the ballot.
We now turn to a consideration of the testimony of the
employees called as witnesses by the Intervenor. Employee
Frank Topputo, a high school graduate and an observer
for Amalgamated, testified that he did not recall looking
at the ballot when he went into the polling booth,
presumably because "I was instructed on position of the
ballot." However, Topputo admitted on further
questioning that "I only went by the numbers." This
would negate his earlier testimony that he presumably
went by the positions of the unions on the ballot. And if,
as he said, he went only by the numbers, than obviously
he was not confused by the change of positions. I
therefore find and conclude that the change of the
positions of the unions on the ballot did not confuse
Topputo.
Employee Theodore Bunin , called as a witness by the
Intervenor, testified that he had been told by
Amalgamated Representative Stirt that Amalgamated
would appear on the left side of the ballot. However, he
testified further that when he went in to vote, he found
that the ballot was not as it was supposed to be that "it
was sort of confusing ... I was told one thing and I find
it another way." He testified further that he "looked it
[the ballot] over good and I signed it where I wanted to."
I therefore find and conclude that Employee Bunin was
not confused by the change of the positions of the unions
on the ballot.
Employee Walter Hoff testified that he was confused
when he voted because he had been told one thing, and
found it to be the opposite, that "it made me think a little
bit." Hoff admitted reading the ballot before he went into
the polling booth. Furthermore, Hoff admitted in a
pretrial statement that "I went into the voting booth, read
the ballot and saw that Local 553 was on the left, neither
in the middle and Local 355 on the right-hand side. I
placed an "x" in the box of my choice and knew exactly
who I voted for. It was clear on the ballot, the difference
between the 2 unions." In sum, I find and conclude that
Hoff was not confused by the change of positions of the
unions on the ballot.
John McDowell, Respondent's dispatcher, was called as
a witness by the Intervenor. Although he testified that
Amalgamated Representative Stirt had- spoken to him
before the election about the positions of the unions on
the ballot, he was not sure what Stirt had told him and
"didn't expect to see it in any particular place."
McDowell testified further that he came in to vote in the
midst of a period of illness and that he was "confused"
because of his illness. In addition, he testified that he was
in a hurry to get it over with and "possibly" picked the
wrong box and did not read the ballot. McDowell
admitted that he saw "something like" the notice of
election containing the sample ballot posted above the
dispatcher's window at Respondent's premises. From all
the foregoing, I find and conclude that while McDowell
may have been confused at the time he voted, whatever
confusion he experienced , if any, stemmed from his illness
and not from the change of the positions of the unions on
the ballot.
The Intervenor and the Respondent rely principally
upon the case of Dedman Foundry & Machine Company,
52 NLRB 609. That case is factually distinguishable from
the instant proceeding. In that case , the ballots were
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incorrectly printed and listed three unions instead of two.
The union appearing in the left-hand column was not
involved in the election. In order to correct the ballots, the
union fisted in the left-hand column was crossed out
before the ballots were given to the voters. The union
listed in the third column filed objections, alleging that
some of the voters were lacking in sufficient education to
ballot accurately by the use of printed instructions, and
that in order to avoid any possible misunderstanding on
the part of the employees, it had instructed them to
designate and vote in the second square; that a substantial
number of the employees faithfully followed these
instructions, and, notwithstanding the fact that the first
square on the ballot had been scratched through, such
employees checked the second square which contained the
name of the rival union. In these circumstances, the Board
held that there was no way to be certain that some of the
employees were not confused or misled by the corrected
ballots. These circumstances did not exist in the instant
case. As previously noted, all of the employees were
literate. In addition, the names of the two unions
appearing on the ballot were completely dissimilar, and
the employees should have been familiar with the name of
Amalgamated which had represented them for more than
7 years.
The more recent case of V. LaRosa & Sons, Inc., 121
NLRB 671, is much closer to the facts of the instant case.
In that case, the rival unions on the ballot had the
identical local number (not merely similar as in the instant
case). The petitioning union had sought its name on the
ballot with the local number following its affiliation, viz,
American Bakery and Confectionery Workers
International Union, Local 492, AFL-CIO. Instead, the
Board printed the ballot with the local number preceding
the affiliation, viz, Local 492, American Bakery and
Confectionery Workers International Union, AFL-CIO.
The Intervenor was known by its local number preceding
its affiliation, viz, Local 492, Bakery and Confectionery
Workers International Union of America. The petitioner
claimed that this printing error caused voters to choose
the intervenor when, in fact, they meant to choose the
petitioner. Three employees submitted affidavits that they
had voted for the wrong union because of the printing
error. In addition, the petitioner claimed that 17 of the 76
voters could not read or write English. The Board refused
to set aside the election, noting that the notices of election
were posted in the plant sufficiently in advance of the
election for all eligibles to familiarize themselves with the
respective choices on the ballot (as here), that other than
the local numbers, the names of the unions were dissimilar
(as here), that no issue was raised by the petitioner
concerning the alleged error until after the election (as
here),, that no voter requested aid from the Board agent to
read or interpret the ballot (as here), that all observers
signed the certification of conduct of election (as here),
and that the voters were not unduly rushed or
handicapped in casting their ballots (as here).
In sum, I find and conclude that the election was fairly
conducted and that none of the employees was confused
by the reversal of positions of the unions on the ballot. As
the Teamsters was properly certified as the exclusive
bargaining representative of the Respondent's employees
in an appropriate unit, the Respondent was required to
bargain with it and, failing to do so, violated Section
8(a)(5) and (1) of the Act.
'The language of par. 1(b) of the Recommended Order follows that
prescribed by the Supreme Court of the United States in N.L.R.B. v.
Express Pub. Co., 312 U.S. 426, 439.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMFRCF
The activities of the Respondent set forth in section IV,
above, occurring in connection with the operations of the
Respondent set forth in section I, above, 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 thereof.
VI. THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(5) and ( 1) of the Act, I shall recommend that it cease
and desist therefrom and that it take certain affirmative
action designed to effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the basis of the above findings of fact and
conclusions of law and upon the entire record in the case,
I recommend that the Respondent, its officers , agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing , upon request, to bargain collectively with
Coal, Gasoline, Fuel Oil Teamsters, Chauffeurs, Helpers,
Oil Burner Installation, Maintenance, Servicemen and
Helpers, Local 553, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America as the exclusive representative of all employees in
the following appropriate unit:
All drivers, servicemen, the dispatcher, and the
mechanic employed by the Respondent at its
Ronkonkoma, New York, location, excluding all office
clerical employees, guards and supervisors as defined in
the Act.
(b) In any manner interfering with the efforts of the
above-named Union to bargain collectively with the
Respondent on behalf of the employees in the
above-described unit.'
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively with Coal,
Gasoline, Fuel Oil Teamsters, Chauffeurs, Helpers, Oil
Burner Installation, Maintenance, Servicemen and
Helpers, Local 553, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America as the exclusive representative of the employees
in the appropriate unit with respect to rates of pay, wages,
hours of employment and other conditions of employment,
and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its Ronkonkoma, New York, facility copies
of the attached notice marked "Appendix."' Copies of
said notice, on forms provided by the Regional Director
for Region 29, after being duly signed by an authorized
representative of the Respondent, shall be posted by the
Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
'In the event that this Recommended Order is 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
BAYLISS TRUCKING CORP. 281
not altered, defaced, or covered by any other material.
(c) Notify the Regional Director, in writing, within 20
days from the receipt of this Decision, what steps the
Respondent has taken to comply herewith.°
event that the Board ' s Order is 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."
In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 29 , in writing, within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
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
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT refuse, upon request, to bargain
collectively with Coal, Gasoline, Fuel Oil Teamsters,
Chauffeurs, Helpers, Oil Burner Installation,
Maintenance, Servicemen and Helpers, Local 553,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America as the
exclusive representative of all employees in the
following appropriate unit:
All drivers, servicemen, the dispatcher, and the
mechanic employed by us at our facility at
Ronkonkoma, New York, excluding office clerical
employees, guards and supervisors as defined in the
Act.
WE WILL NOT in any manner interfere thewith efforts
of Coal, Gasoline, Fuel Oil Teamsters, Chauffeurs,
Helpers, Oil Burner Installation, Maintenance,
Servicemen and Helpers, Local 553, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America to bargain collectively as the
exclusive representative of the employees in the
bargaining unit described above.
WE WILL, upon request, bargain collectively with
Coal, Gasoline, Fuel Oil Teamsters, Chauffeurs,
Helpers, Oil Burner Installation, Maintenance,
Servicemen and Helpers, Local 553, International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America as the exclusive representative
of the employees in the appropriate unit with respect to
rates of pay, wages, hours of employment, and other
conditions of employment, and, if an understanding is
reached, embody, such understanding in a signed
agreement.
Dated By
BAYLISS TRUCKING CORP.
BAYLISS FUEL OIL CORP.
(Employer)
(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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 16 Court Street,
Fourth Floor, Brooklyn, New York 11201, Telephone
596-3535.