Bonded Armored Carrier, Inc.

National Labor Relations Board - Board Decisions

May 25, 1964

147 N.L.R.B. 100 (N.L.R.B. 1964)

100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE REMEDY
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, I shall recommend that Respondent cease and desist
from the unfair labor practices found, and from any other invasions of employee
rights. under the Act, and cease and desist from carrying out the provisions of the
certain terms in the collective-bargaining agreement and in the trust agreement which
have been found violative of the Act. The breadth of the order seems appropriate as
discrimination as to job -tenure goes to the heart of the Act and hence suggests a
predisposition to invade the rights of employees in other respects. N.L.R.B. v.
Entwistle Mfg. Co., 120'F. 2d 532, 536 (C.A. 4). Affirmatively, I shall recommend
that Respondent makes whole employees John Hill and John Downing for loss of
earnings between April 8, 1963, until April 18, 1963, and makes employees Hill and
Downing whole for the difference between what they would have earned had they
been employed on the 56th Street job and what they earned while employed on the
Shadwell from April 18 to May 29, and make them whole for loss of earnings there-
after they may have had by not working at the 56th Street job. In addition I will
recommend that Respondent notify Employer and all other signatories to the
collective-bargaining agreement involved that it has no objection to their hiring em-
ployees Hill and Downing in the future. All of the make-whole remedy will be in
accordance with the formula set forth in F. W. Woolworth Co., 90 NLRB 289, and
Isis Plumbing & Heating Co., 138 NLRB 716, in which 6 percent interest is called
for. I shall also recommend the posting Of an appropriate notice.
CONCLUSIONS OF LAW
1. Employer is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
3. Respondent engaged in an unfair labor practice affecting commerce within the
meaning of Section 8(b)(1)(A) and (2) and Section 2(6) and (7) of the Act by
the following:
(a) By attempting to cause and causing the discharge of John, Hill and John
Downing on April 18, 1963, for the reason they were nonmembers of Respondent and
their loss of membership was due to something other than their failure to tender their
periodic- dues.
(b) By attempting to cause and causing the Employer not to hire John Hill and
John Downing on April 18, 1963, and thereafter, for work at Employer's job on
56th Street for the same reason as in paragraph (a) above.
(c) By entering into and maintaining•in force a collective-bargaining agreement
with Employer which (1) required the payment of assessments to maintain member-
ship in good standing; (2) permitted Respondent to attempt to cause and cause the
discharge of employees who lost their membership in good standing for reasons
other than failure to tender their periodic dues.
(d) By entering into and maintaining a trust agreement providing for benefits
to be paid solely to union members.
[Recommended Order omitted from publication.]
Bonded Armored Carrier, Inc. and Truck Drivers and Helpers
Local Union No . 355, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America. Case
No. 5-CA-2485., May 05, 196.E
DECISION AND ORDER
On January 10, 1964, Trial Examiner Arthur E. Reyman issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had not engaged in the unfair labor practices alleged in the com-
147 NLRB No. 14.
BONDED ARMORED CARRIER, INC. 101
plaint and recommending that the complaint be dismissed in its en-
tirety, as set forth in the attached Decision.' Thereafter, the General
Counsel filed exceptions to the Decision and a supporting brief, and
Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the Act , the Board
has delegated its powers in connection with this case to 'a three-member
panel [Chairman McCulloch and Members Leedom and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error has been committed.
The rulings are hereby affirmed. The Board has considered the De-
cision, the exceptions and brief, and the entire record in the case, and
hereby adopts the findings and conclusions of the Trial Examiner
only to the extent that they are consistent with the Decision herein.
1. The Trial Examiner found that President Smith's speech to em-
ployees on May 25, 1963, was not unlawful because it was protected
by Section 8(c) of the Act. We do not agree. President Smith as-
sembled the employees on May 25 to tell them about a pending transfer
of operations to new quarters and some of the changes that would be
made. After a few introductory remarks, Smith said, according to
the Trial Examiner's credited account, ``. .. you boys want a union
in here . . . I'm going to take some economy measures...." He
then announced that the jobs of employees Wildberger and Moffitt
were being eliminated and turning to employee Vaught said:
I know you have been seen riding around in a white Cadillac
with Union officials . . . [Y] ou have been having off on Fridays
,and Saturdays and you do hairdressing . . . from now on you
will work Fridays and Saturdays and you will be off on Tuesdays.
Although the Trial Examiner found, and we have adopted this
finding, that Wildberger -and Moffitt were terminated for nondiscrimi-
natory reasons , the announcement of the terminations following on
the introductory remark ". . . you boys want a union in here .. .
I'm going to take some economy measures ..." tended to create
the impression among employees that the union activity was the cause
of the terminations and thus restrained and coerced employees in
violation of Section 8(a) (1). Further , President Smith's remarks
to Vaught clearly indicated that because Vaught had been seen riding
around with a union offcial, his hours of employment were being
changed so as to deprive him of the opportunity of doing hairdress-
ing on weekends . This, too, was calculated to have a coercive impact
upon employees.
Accordingly, we find, contrary to the Trial Examiner, that the
May 25 speech was not an expression of "views, argument , or opinion"
protected by Section 8 (c) of the Act, but was coercive and in violation
of Section 8 (a) (1) of the Act.
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition, the record contains undenied testimony, not referred to
by the Trial Examiner, that on October 2, 1963, Thomas M. Starkey,
Respondent's vice president, told employee Walter Thomas that "the
company had definite proof that there is three agitators ..." that
he wanted Thomas to ascertain who they were, and that Respondent
was "going to get rid of them before this thing gets out of hand."
The following day Starkey told Thomas "you didn't give us any in-
formation," that Respondent had "decided to fire [him]," and that
Respondent would get to the "bottom of this thing" if they had "to
fire every man here."
We find that by the foregoing statements of Starkey to Thomas,
Respondent coercively interrogated and threatened employees with loss
of employment in violation of Section 8 (a) (1).
2. Although the issue is not free from doubt, we adopt the Trial
Examiner's finding that Respondent discharged employees Albert P.
Wildberger and Robert J. Moffitt for economic reasons.
3. We do not adopt the Trial Examiner's finding that the discharge
of employee Thomas was also lawful. In assigning reasons for the dis-
charge of Thomas on October 4, 1963, President Smith at the hearing
not only referred to the quality of Thomas' work, but also to the fact
that he was a "complainer." On cross-examination, Smith testified as
follows :
Q. I believe you testified further on direct examination that you
told Thomas the men were using him as a tool. He was being used
as a tool by the other men?
A. That is correct.
Q. What did you mean by that?
A. Well, in every organization when you have more than three
men, you have always one man who is a complainer, call it what
you 'like. I wouldn't use the word agitator, but Thomas being
one of the susceptible types.to complaining, and being a com-
plainer himself, he falls right in line with that.
Q. I ask, you the question, what did you mean he was being
used as a tool by the other men?
A. To keep things stirred up.
Q. What things?
A. Things about the schedules, the fact that men check their
own truck or check the other trucks in. _
Q. You mean the other men were telling him to complain about
the working conditions at the company?
A. I would say that is the whole sum and substance of it.
The' above testimony indicates plainly that one of the factors ad-
mittedly entering into Respondent's decision to discharge Thomas was
his role in complaining about working conditions in behalf of himself
BONDED ARMORED CARRIER, INC. 103
and his fellow employees. In so acting, Thomas was engaging in pro=
tected, concerted activities and his discharge in whole or in part for
this reason was therefore violative of Section 8 (a) (1) of the Act. We
so find.
4. Contrary to the Trial Examiner, we find that Respondent dis-
criminated against employee Ralph Vaught because of his union activi-
ties. At the May 25 meeting, President Smith told Vaught that he
had been seen riding in an automobile with union officials and added,
"You have been having off on Fridays and Saturdays and you do
hairdressing ... from now on you will work Fridays and Saturdays
and you will be off on Tuesdays." 1 We find, on the basis of the fore-
going testimony, that Respondent changed employee Vaught's days
off because of his union activities, thereby violating Section 8(a) (3)
and (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor prac-
tices, we shall order it to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies of the Act.
Having found further that Respondent unlawfully terminated
Walter L. Thomas on October 4, 1963, we shall, in accordance with
established Board policy, order that Respondent offer him immediate
reinstatement to his former or a substantially equivalent position,
without prejudice to his seniority or other rights and privileges, and
make him whole for any loss of. pay suffered as a result of the dis-
crimination against him by payment to him of a sum of money equal
to the amount he normally would have earned from the date of the
discrimination to the-date of an offer of reinstatement 2 Backpay will
be computed in the manner established by the Board in F. W. Wool-
worth Company, 90 NLRB 289, with interest at the rate of 6 percent
per annum computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716.
Although Ralph Vaught did not suffer any loss of pay from Re-
spondent as the result of the discriminatory change in, his work hours,
he presumably did suffer a loss of earnings thereby because of his in-
ability to do hairdressing work on weekends. We shall order Re-
spondent to restore him to his former work hours, if he so desires, and
i Employee Wildberger 's account of Smith's remarks to Vaught Is of the same tenor but
more explicit than employee Moffitt's account , which Is reported by the Trial Examiner.
According to Wildberger, Smith said:
. . . he turned to Mr. Vaught and he said , "Mr. Vaught," he said, "you were seen
In Salisbury In a Union official car, a white Cadillac." He says, "also on Baltimore
Street you were seen." He said , "Is that right?" He said , "Yes, sir," so he said in
turn, "You are off every Friday and Saturday . You dress hair on Friday and Satur-
day." He said , "Yes, sir ." He said , "In the future you are off every Tuesday and
you work Friday and Saturday. Do you understand that ?" and he said, "Yes, sir."
2A.P.W. Products Co., Inc., 137 NLRB 25.
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to make him whole for any loss of income suffered as a result of the
discrimination against him.' Interest on moneys due Vaught will be
computed at the rate of 6 percent per annum in the manner set forth in
Isis Plumbing c' Heating Co., supra.
As the record indicates that Respondent's unfair labor practices go
to the heart of the Act, we shall issue a broad cease-and-desist order.
Upon the basis of the foregoing and the entire record in this case,
the National Labor Relations Board hereby makes the following
additional :
CONCLUSIONS OF LAW4
3. By coercively interrogating employees about union matters,
and by threatening to discharge, or giving the appearance of dis-
charging employees because of their activity on behalf of or in-
terest in the Union, Respondent has interfered with, restrained,
and coerced employees in the exercise of the rights guaranteed in
Section 7 of the Act.
4. By discharging Walter L. Thomas for engaging in protected,
concerted activity, Respondent has interfered with, restrained,
and coerced employees, and thereby engaged in unfair labor prac-
tices proscribed by Section 8 (a) (1) of the Act.
5. By changing Ralph Vaught's day off because of his union ac-
tivities, Respondent has engaged in discrimination to discourage
membership in the Union, thereby engaging in unfair labor prac-
tices proscribed by Section 8(a) (3) and (1) of the Act.
6. The aforesaid unfair labor practices affect commerce within
the meaning of Section 2 (6) and (7) of the Act.
7. Respondent 'did not terminate the employment of Albert P.
Wildberger and Robert J. Moffitt and thereafter refuse to recall or
reinstate them because of their union activity in violation of Sec-
tion 8(a) (3) of the Act.
ORDER
Pursuant to Section 10 (c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby orders that Re-
spondent, Bonded Armored Carrier, Inc., its officers, agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in Truck Drivers and Helpers Local
Union No. 355, International Brotherhood of Teamsters, Chauffeurs,
a El Mundo, Inc., 92 NLRB 724 The Trial Examiner indicated that Vaught "has been
returned to work by the Company." As the` record indicates that he never left Respond-
ent's employ, we hereby correct this error.
4The'Trial Examiner's "Conclusions of Law" numbers (3) and (4) are deleted.
BONDED ARMORED CARRIER, INC. 105
Warehousemen and Helpers of America, or in any other labor organ-
zation of its employees, by discriminating in regard to hire or tenure of
employment or any term or condition of employment.
(b) Discharging, threatening to discharge, or giving the appear-
ance of discharging employees for exercising rights guaranteed in
Section 7 of the Act.
(c) Interrogating employees about union activities in a manner
constituting interference, restraint, or coercion in violation of Section
8 (a) (1) of the Act.
(d) In any other manner interfering with, restraining, or coercing
employees in the exercise of the right to self-organization, to form,
join, or assist Truck Drivers and Helpers Local Union No. 355, Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, and to refrain from any or all such
activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition
of employment, as authorized in Section 8(a) (3) of the Act, as
amended by the Labor-Management Reporting and Disclosure Act
of 1959.
2. Take the following affirmative action which the Board finds is
necessary to effectuate the policies of the Act :
(a) Offer to Walter L. Thomas immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him whole in the
manner set forth in the section of this Decision and Order entitled
"The Remedy."
(b) Restore Ralph Vaught to his former working hours, if he so
desires, and make him whole in the manner set forth in the section of
this Decision and Order 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, timecards, personnel records and reports,
and all other records necessary to analyze the amount of backpay
due.
(d) Post at its place, of business in Baltimore, Maryland, copies of
the attached notice marked "Appendix." 5 Copies of such notice, to be
furnished by the Regional Director for the Fifth Region, shall, after
being duly signed by an authorized representative of the Respondent,
5In the event that this 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 "
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be posted immediately upon receipt thereof, and be 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 by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for the Fifth Region, in writing,
within 10 days from the date of this Decision, what steps Respondent
has taken to comply herewith.
It is further ordered that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent discriminatorily dis-
charged Robert J. Moffitt and Albert P. Wildberger.
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, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in Truck Drivers and
Helpers Local Union No. 355, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America,
or in any other labor organization of our employees, by discrimi-
nating in regard to hire or tenure of employment, or any term or
condition of employment.
WE WILL NOT interrogate, discharge,- threaten to discharge, or
give the appearance of discharging our employees for exercising
rights guaranteed in Section 7 of the Act.
WE WILL NOT interrogate employees about their union activities
in a manner constituting interference, restraint, or coercion in
violation of Section 8 (a) (1) of the Act.
WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist Truck
Drivers and Helpers Local Union No. 355, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, 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 other mutual aid or protection; and to refrain from any or all
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as
a condition of employment, as authorized in Section 8(a) (3) of
the Act, as amended by the Labor-Management Reporting and
Disclosure Act of 1959.
BONDED ARMORED CARRIER, INC. 107
WE WILL offer to. Walter L. Thomas immediate and full re-
instatement to his former or substantially equivalent position,
without prejudice to any seniority or other rights previously en-
joyed, and make him whole for any loss of pay suffered as a re-
sult of the discrimination against him.
WE WILL restore Ralph Vaught to his former working hours,
if he so desires, and make him whole for any loss of earnings
suffered as the result of our discrimination against him.
All our employees are free to become, remain, or to refrain from
becoming or remaining members of the above-named or any other
labor organization.
BONDED ARMORED CARRIER, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title),
NoTE.-We will notify the above-named employee, if presently serv-
ing in the Armed Forces of the United States, of his right to full re-
instatement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces.
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, Sixth Floor, 707 North Calvert Street, Balltimore, Maryland,
Telephone No. 752-8460, Extension 2100, if they have any question
concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This is a proceeding under Section 10(b) of the National Labor Relations Act, as
amended , 29 U.S.C., Sec. 151, et seq., herein called the Act.
Truck Drivers and Helpers Local Union No. 355, International Brotherhood of
Teamsters ; Chauffeurs, Warehousemen and Helpers of America, herein sometimes
called the Union or Local No. 355, on June 13, 1963, filed a charge and on Octo-
ber 16, 1963 , an amended charge, against Bonded Armored Carrier, Inc., herein
sometimes called the Respondent or the Employer , asserting violations of Section
8(a)(1) and (3) of the Act. The General Counsel of the National Labor Rela-
tions Board, on behalf of the Board , by the Acting Regional Director for the Fifth
Region , on October 16, 1963,. issued an amended complaint and amended notice
of hearing , the complaint setting forth alleged violations by the Respondent of Sec-
tion 8 (a) (3) and ( 1) of the Act. The Respondent had filed answer to the complaint
on or about September 30, 1963, effectively denying violations of the Act, and the
denials set forth in the original answer are permitted to stand " to the allegations
of the amended complaint.
Pursuant to notice , this case came on to be heard before Trial Examiner Arthur
E. Reyman , at Baltimore , Maryland , on November 4, 1963. At the hearing each
party was represented by counsel and was afforded full opportunity to be heard,
to examine and cross -examine witnesses , to present pertinent evidence , to make
oral argument, and to file briefs or proposed findings of fact or conclusions of law,
or both . A brief was filed on behalf of the Respondent.
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon- the entire record in the case, and from my observation of'the witnesses,
I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
The Respondent , Bonded Armored Carrier, Inc., is, and at all times material
herein has been , a corporation duly organized under and existing by virtue of the
laws of the State of Maryland , having its principal office and place of business in
Baltimore , Maryland, where it is engaged in operating an armored car business.
The .Respondent , in the course and conduct of its business operations , during the
12-month period immediately preceding the issuance of the amended complaint
herein, a representative period , received in excess of $50,000 in revenues for per-
forming services in transporting money, valuables , and securities for other business
concerns, directly across State lines. During the same representative period the
Respondent received in excess of $50,000 in revenues-for performing services for
other business concerns , including the Federal Reserve Bank of Richmond , Virginia,
each of which said concerns annually receives money, valuables , securities , goods,
and materials valued at in excess of $50,000 from points outside the State in which
they are located, and annually ships money , valuables , securities , goods, and ma-
terials to points outside the State in which they are located . During the same
representative period the Respondent received in excess of $50,000 in revenue for
performing services in transporting money, valuables , and securities for other business
concerns , which in turn transported said money , valuables, and securities to businesses
outside the State in which they are located.
. The Respondent is, and has been at all times material herein , engaged in commerce
within the meaning of Section 2(6) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Truck Drivers and Helpers Local Union No. 355, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organiza-
tion within the meaning of Section 2 (5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Specifically, the complaint alleges in substance that the Respondent, through
responsible agents, on various dates beginning on or about May 18, 1963, interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act; that the Employer's vice president, Thomas M. Starkey, and
its president , Truman Smith , interrogated employees concerning their union activities
or sympathies and the union activities or sympathies of other employees; that Smith
and Starkey threatened employees with economic reprisals if they selected the Union
as their collective-bargaining representative; on or about May 29, 1963,' terminated
the employment of Albert P. Wildberger and Robert J. Moffit and on or about
October 3 terminated the employment of Walter L. Thomas; and on or about May 18
and on various dates thereafter changed the hours, terms, and conditions of employ-
ment of Ralph Vaught; and that by the foregoing acts the Respondent discouraged
and is discouraging membership in a labor organization by discrimination in regard
to hire and tenure of employment or terms and conditions of employment and by
said acts and conduct did engage in and is engaging in unfair labor practices within
the meaning of Section 8(a)(3) of the Act; and that by said acts is also engaging
in unfair labor practices within the meaning of Section 8(a)(1).
Moffitt, Wildberger, Vaught, and Thomas all testified at the hearing. Each one
of these employees had signed a union authorization card and admittedly were
union adherents.
President Smith called a meeting of employees on Saturday night, May 25, and
the substance of the testimony of the above-named employees is contained within
that of Moffitt, who testified on direct examination:
Q. (By Mr. NASDOR_) What happened at this meeting?
A. Well, the meeting opened. Mr. Smith, the president of the Company,
he said, "I know why you are here." He said, "I want you to know you are
being paid to be here. That is more than the Union would 'do for you." .
Q. Did Mr. Smith say anything else? Tell us what happened at the meeting?
A. Well, he started the meeting off, he said; "You boys want a union .in here."
' Unless hereinafter specifically noted all dates hereinafter mentioned are for the
year 1963.
BONDED ARMORED CARRIER, INC. 109
He said, "I'm going to take some economy measures ." He started off, he said,
"Mr. Wildberger , as of the first of June," he said; "I am'eliminating your job."
He turned to me and said, "Mr. Moffitt , as of the first of June I am doing
away with all repair work," he said , "I am farming the work out . Your job
is eliminated," and he turned to Mr . Vaught and he said, "I know you have been
seen riding around in a white Cadillac with Union officials," and he knows
he has been going to Salisbury , seeing Mr. Gray. He says, "You have been
having off on Fridays and Saturdays and you do hairdressing ," he said, "From
now on you will work Fridays and Saturdays and you will be off on Tuesdays."
A. He said to Mr. Gray, he said, "Mr. Gray I know you have been waiting
to come to Baltimore to work" and he pointed out a couple of guys and said,
"You have a job opening in Salisbury if you want it,-Mr. Gray is coming to Bal-
timore to work." Then he turned to Mr. Adams and said, "Mr. Adams, I
know you have been wanting ,off-the-corn run." He said, "As of Monday you
don't come in Monday morning ." He said, "Monday night you report on the
night run ." Mr. Adams said , "I didn't want that." There was a little argu-
ment there and Mr. Adams said-Mr. Smith said, "You are under the influence
of whiskey."
The Company was founded in 1956 by President Smith and operated its business
from 7518 Harford Road, Baltimore, from that time until June 30, when it moved
to its present location at 8510 Old Harford Road, its new quarters having been
designed and erected under the direction of President Smith.
According to the testimony of Smith, a meeting similar to the one held on May 25
was held at least ,once or twice a year and in the particular instance of the meeting
of May 22, it was specifically called for the purpose of informing the employees
of the changes that would be made because of the impending move to the new
quarters and of certain changes in payroll and procedure which would follow the
move from the old quarters to the new quarters.. There is a considerable amount
of detailed testimony within the record here showing the economic benefits to be
derived by the Company and improved handling of valuables from trucks at the new
quarters . From example , at the old quarters only one truck could unload in front
of the Company 's vault at a time, whereas in the new quarters facilities were made
for the placing of four or five trucks, if necessary, before the vaults. Prior to, the
move, there was one checker at the vault to take care of one truck . After the move
if two or more trucks were there arrangements were made for the two-man crew of
one truck to check the receipts or cargo of the truck driven by another two-man
crew who in turn checked another truck. This resulted in the elimination of the
job of the one checker.
At the meeting of May 25, after mentioning these changes in plans and schedules,
Smith notified Wildberger and Moffitt that their jobs would be terminated. He
also testified that he told Vaught that his shift would be changed . The meeting
lasted approximately 30 to 45 minutes . During the ,transition period and shortly
thereafter the Company felt it necessary to- terminate the employment of one Harry
Classon and Marvin Rogers, on the basis that their employment was no longer
necessary due to the changes in the Respondent 's ;operation. Smith discharged
Thomas on October 3 because of his poor work and attitude.
On or about May 22, the Union filed ,a petition with the Regional Director of the
Board alleging that a substantial number of the Respondent's employees had af-
filiated themselves with the Union and that this group of employees -constituted an
appropriate bargaining unit and that the Union wished to be certified as a bargain-
ing representative for the employees within the alleged appropriate unit. It is my
understanding that the petition was dismissed by the Regional Director - on his find-
ing that the claimed appropriate unit was not appropriate for collective bargaining
purposes.2 -
I turn now to the alleged discriminatory discharges:
Albert P. Wildberger was engaged by the Company on June 1, 1961 , as a vault
man.' _At this time the Company was located at 7518 Harford Road. Duties of
Wildberger at the time of his hire included checking the drivers as to the amounts
of money or securities or other valuables taken from or deposited in the vault of the
14 President Smith had been advised by counsel that under Section 9(b) (3) of the Act
the Union could not be certified as bargaining representative for the employees unless it
was a union consisting solely of guards. Consequently , it is, argued on behalf of the Re-
spondent that Smith could not have been motivated in his remarks as reported made by
him at the May 25 meeting because of his apprehension that the Union might be certified
as representative for employees in the claimed appropriate unit.
110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company and his job and sole function was that of a checker. At that time, only
one truck could come in at a time and only one man was needed on the job. When
the Company decided to move to new quarters, into the building designed by Smith,
the premises were laid out so that the loading platform adjacent to the vault would
have (as mentioned above) sufficient room for at least four trucks to load or unload
at the same time. Thus, to avoid the necessity to employ a checker for each one of the
two, three, four, or five vehicles being loaded or unloaded, the system mentioned
above was installed whereby ,the driver and guard of one truck checked in the driver
and guard of another truck being unloaded, thus allowing simultaneous unloading of
several trucks and the checking of their cargoes without the employment of addi-
tional men.
At times during the course of his employment Wildberger performed certain runs
involving the picking, up of books, ledgers, deposit slips, and other similar light-
weight items, the runs being made in a panel truck with Starkey. These runs were
eliminated as of the time of the move from the old quarters of the Company to its
new quarters, and the pickups formerly made by Wildberger are now made during
the run of a regular armored car. .
The testimony shows that Smith expected to occupy the new quarters on June 1,
and it was not until he had made arrangements for rescheduling of drives and runs
that he learned of a delay occasioned by the wiring of vault doors according to mis-
taken specification. Consequently, the move from the old quarters to the new
quarters was postponed.until June 15 and, it is said, in fairness to Wildberger, and
the other men who were to be displaced, that Smith made the announcement he did
in regard to prospective changes in personnel to be made at the time of the move.
This applied particularly to Wildberger. On the so-called light runs made by
Wildberger, he was often assisted by Starkey. I place no especial significance on
this fact since the record clearly shows that the Company had worked out a plan
whereby it could render more efficient service to its customers at greater economy by
dispensing with several jobs including that of Wildberger.
Robert J. Moffitt was engaged as a truck repair mechanic on or about Novem-
ber 7, 1960. His duties then, as truck repair mechanic, also were intended to make
him -available for work as a "fill-in driver-guard." During the year 1960, the Re-
spondent operated seven trucks. As the business of the Company improved and it
purchased more trucks to carry on its business, the maintenance of trucks became a
larger problem than at the time Moffitt was hired. In going over maintenance costs,
Smith began to compare some of his prior records with the present records then
kept on maintenance, and decided that there had been many times when it had be-
come necessary to have trucks worked on by Moffitt sent back for repair either for
re-repair by Moffitt or to an outside shop. Starkey agreed with Smith that at the
time the Company moved to its new building they would discontinue the position of
mechanic. Their decision was predicated not only upon the economic view but also
prompted by the fact that for security purposes the new building was kept under
constant A.D.T. (American District' Telegraph) alarm system. The active moving
of trucks in and out. of the building required repairs which would impair the security
provisions and requirements of the new building. In the new building, as of the
time of this hearing and according to credible testimony, the only work done on the
trucks is routine greasing and oiling performed by one of the drivers 2 days a week
on what normally would be his day off.
I observed Moffitt on the witness stand and concluded I would not accept his testi-
mony in full, although I have quoted him above at length in regard to the state-
ments of President Smith at the May 25 meeting. There is no contradiction that his
work habits were not conducive to the work to which he was assigned, and I accept
the testimony of Smith that he felt Moffitt required constant supervision and that
many of the trucks he had worked on had to have the same work done over; that
he reported to work under the influence of alcohol; that he worked on cars of other
employees as well as purchasing parts for those cars in the company name; in his
collection of dues and performance of other union activities on company time and
property justified the complaints made against him to Smith and through Starkey
and others.
Walter L. Thomas was hired by the Respondent in the month of August 1961, and
worked at his job as driver-guard until October 4, 1963, when he was discharged.
Thomas testified at the hearing, and according to his testimony, admittedly he
was responsible for (a). on July 3 losing a complete manifest which was never
found; (b) on August 13 losing another bag containing securities; (c) on Septem-
ber 9 losing a shipment of securities or money from a supermarket (Food Fair)
shipment ; and (d) on October 1 losing another Food Fair shipment . His negligence
BONDED ARMORED CARRIER , INC. 111
in these respects was fully proven. Another complaint submitted in defense by the
Respondent was that Thomas was a constant complainer, "took it upon himself to
carry the complaints and grievances of other employees to Mr. Smith and Mr.
Starkey" to vent personal complaints about pay and a lack of a new uniform. I have
examined carefully the testimony of Thomas and place no credence on the conten-
tion that he was discharged for union activity . I believe his discharge was com-
pletely within the prerogative of management.
Ralph Vaught, who complained of a change in shift, engaged in his off hours in
the hairdressing trade on his part-time days or his full days off. He was not an im-
pressive witness. Called as a witness for the General Counsel he conceded that
changes in shift could be a normal procedure and occurrence in an operation such
as the one carried on by the Company. I do not believe that the mere fact he was
seen riding in an automobile with a union official was the immediate cause for the
change in hours given to him. There is no question in my mind that Vaught, after
he had found hairdressing not too profitable, has been returned to work by the
Company , has received an increase in salary , and that it is his desire to remain as
an employee of the Company.
CONCLUDING FINDINGS
1. The General Counsel has failed to sustain the case alleged by him in the com-
plaint herein. The testimony and the preponderance of evidence, and from my ob-
servation of the witnesses, shows well-justified grounds for job eliminations, dis-
charges, and changes in shifts insofar as the allegations of violations of 8(a ) ( 3) are
concerned. Insofar as the statements made by President Smith at the meeting of
May 25 are concerned, I feel they are protected statements within the meaning.of
Section 8(c) of the Act. I cannot find any indication of threat, intimidation, or
coercion in his remarks as reported most favorably above in my quote from the
testimony of Moffitt.
2. Since the charge against the Employer is derivative as to Section 8 (a)( I) of
the Act, from the allegations concerning violations of Section 8(a) (3), I cannot find
that the Employer, as alleged in the complaint, violated this section of the Act. I
have not examined the record in the representation case in which the Regional
Director dismissed the petition of the Union but I well understand the provisions
of the Act which prompted the Regional Director to dismiss the petition of the
Union, since guards under the Act are required to be contained within a separate
bargaining unit . It is not my province nor my right to go beyond the finding of the
Regional Director in regard to deciding what is an appropriate unit for the purpose
of a representation proceeding. I do not think that here the matter is too important.
The importance attached to this case is whether or not the Employer interfered with
or attempted to coerce employees in concerted union activity. After careful exami-
nation of the record , after observation of the witnesses , I feel that the General
Counsel has not proved his case.
I say this because at the hearing the only former employees who testified that the
Respondent or its supervisors had any knowledge of the union activities was through
Moffitt and this knowledge was obtained only because Moffitt admittedly had been
collecting dues and handing out union cards on company time. What the Company
could do about this would be questionable had it taken more affirmative action;
instead, however, the Company took' no action with respect to antiunion activities
and the so-called interrogation of employees as to their union activities in this case
is so light and so innocuous that I cannot find any interference with the activities of
the guards to organize themselves with any union of their own choice . See Section
9(b)(3), which I shall not go behind.
CONCLUSIONS OF LAW
1. Bonded Armored Carrier, Inc., is an employer within the meaning of Section
2(2) of the Act.
2. Truckdrivers and Helpers Local Union No. 355, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. The Respondent , Bonded Armored Carrier , Inc., is not engaged in unfair labor
practices as alleged in the amended complaint herein.
4. The complaint as amended should be dismissed.
RECOMMENDED ORDER
It is recommended that the amended complaint herein be dismissed in its entirety.