Dixie Gas, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1965

151 N.L.R.B. 1257 (N.L.R.B. 1965)

DIXIE GAS , INC. 1257
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, we hereby notify you that:
WE WILL NOT question employees concerning their union sympathies or the
sympathies of fellow employees nor will we threaten employees with closing of
the plant or reduction of the work force in the event the Boilermakers becomes
recognized as the representative of employees.
WE WILL NOT engage in surveillance of union activities nor will we change
wages and hours to influence employees in their decision to assist or refrain
from assisting union.
WE WILL upon request, bargain collectively in good faith with the Interna-
tional Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers
and Helpers , AFL-CIO, as a representative of all employees in the bargaining
unit set forth below with respect to rates of pay, wages, hours and terms or
conditions of employment, and, if agreement is reached, we will embody it in a
written signed contract.
The bargaining unit is
All production and maintenance employees of Smeco Industries, Inc.,
employed at its plant at 4800 South Hoyne Avenue exclusive of office and
clerical employees, guards, professional employees, outside truckdrivers,
field construction employees, and supervisors defined in the Act.
WE WILL offer James Heilman immediate and full reinstatement to his former
or an equivalent job without prejudice to his seniority and other rights and
make him whole for loss of pay suffered as a result of our discrimination against
him.
All our employees are free to become, or remain, members of the above-named
labor organization or any other labor organization.
SMECO INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the
Armed Forces of the United States of his right to full reinstatement 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, 881 U. S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois,
Telephone No. 828-7572, if they have any question concerning this notice or com-
pliance with its provisions.
Dixie Gas , Inc. and General Drivers, Salesmen and Warehouse-
men's Local Union No. 984 , affiliated with International
Brotherhood of Teamsters, Chauffeurs , Warehousemen &
Helpers of America. Case No. 26-C-4-1746. March 29, 1965
DECISION AND ORDER
On October 30, 1964, Trial Examiner Robert E. Mullin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices in violation of Section 8(a) (5) and (1) of the National Labor
151 NLRB No. 126.
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Relations Act, as amended, as set forth in the attached Trial Exami-
ner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Decision and a supporting 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 Brown and
Jenkins].
The National Labor Relations Board has reviewed the rulings
made by the Trial Examiner at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision, the exceptions
and brief, and the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and recommendations only
to the extent consistent herewith.
On August 26, 1960, in an election conducted pursuant to a stipula-
tion for certification upon consent election, a majority of the
employees in an appropriate unit of truckdrivers designated the
Union as their exclusive representative.' Thereafter, the Respondent
filed objections to the election, and the Union filed charges alleging
violations of Section 8(a) (1) and (3) by the Respondent. On Febru-
ary 14, 1962, the Board, in a consolidated proceeding, overruled the
objections, certified the Union, and found that the Respondent had
committed violations of Section 8 (a) (3) and (1) of the Act .2 The
Board's Order was enforced by the Court of Appeals for the Fifth
Circuit on October 1, 1963.3 The Respondent offered reinstatement
to the discriminatorily discharged employees on January 9, 1964,
and posted notices on January 13, 1964.
By letter of February 3, 1964, virtually 2 years after the certifica-
tion, the Union for the first time requested that the Respondent begin
collective-bargaining negotiations. The Respondent denied the re-
quest by letter of February 4 on the grounds that it had been in-
formed that a decertification petition was to be filed with the Board
by more than half of its employees and that it therefore doubted
that the Union still represented a majority of the employees. -A
decertification petition was filed on February 5, 1964, and the
Respondent filed an RM petition on February 10. Subsequent writ-
ten requests for bargaining were made by the Union on April 27 and
May 5, which the Respondent refused on the same grounds.
The Trial Examiner found that the Respondent violated Section
8(a) (5) and (1) of the Act by refusing to bargain with the Union
on or after February 4, 1964. It was the Trial Examiner's view that
the Union's bargaining request was timely, as meaningful collective
1 Case No. 26-RC-1457.
2 135 NLRB 1051.
1 N L R.B. v. Dixae Gas, Ire, 323 F 2d 433 (C A. 5)
DIXIE GAS, INC. 1259
bargaining could not have taken place while the Respondent's unfair
labor practices remained unremedied, and that, therefore, the Union
was entitled to a reasonable opportunity for bargaining, after the
company had complied with the court decree, free from any challenge
by the Respondent to its majority status. We do not agree that the
Respondent has unlawfully refused to bargain in the circumstances
of this case.
It is well established that an employer may, without violating the
Act, refuse to bargain with a certified union after the certification
year has elapsed if the employer has a good-faith doubt with respect
to the Union's majority status.4 Whether the employer has ques-
tioned the Union's majority status in good faith is a question of fact
to be determined by all of the circumstances in the particular case.-'
In the instant case, there is no contention that the Respondent was
not acting in good faith when it raised the issue of the Union's
majority status. Moreover, in view of the passage of 2 years since
the certification, during which period the Respondent had heard
nothing from the Union with regard to bargaining, and in view of
the information the Respondent had received that more than half
the employees were supporting the filing of a decertification petition,
we find that the Respondent had reasonable grounds for questioning
the Union's continued majority status.
Nor do we agree with the Trial Examiner that the Respondent
could not raise the issue of the Union's majority status because of
the Respondent's unremedied violations of Section 8(a) (3) and (1)
of the Act. In cases in which the Board has applied the principle
that the existence of unremedied violations entitles the union to an
"extension" of its certification year,6 those violations have occurred
during the certification year and have directly served to deprive the
union of the fruits of its certification. Here, however, all of the
company's violations which had been involved in the earlier proceed-
ing had occurred prior to the beginning of the certification year, and
there is no contention or evidence that the Respondent committed
any further violations of the Act between the date of the certification
and that of the request to bargain. Because of the Union's failure
to request bargaining at any time during the certification year, there
is no basis for concluding that meaningful collective bargaining could
not have taken place during the year. Nor in the circumstances of
this case are we able to infer that any loss of majority the Union may
4 See, e g, Ray Brooks v. N.L R.B. , 348 U.S. 96 ; and Rohiik , Inc, 145 NLRB 1236, 1240.
5 See, e.g, Celanese Corporation of America , 95 NLRB 664 , 665, 673.
6 See, e.g, N.L.R B. v. John S Swift Company, Inc, 302 F. 2d 342, 346 ( C A. 7) ;
Mar-Jac Poultry Company, Inc., 136 NLRB 785, where respondents ' violations of Section
8(a) (5) were held to have prevented meaningful collective bargaining so long as they
remained unremedied ; and, hence , the certification year was extended.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have sustained during the period of more than 3 years that elapsed
from the date of the election to the date of its bargaining demand
was more attributable to the Respondent's unremedied unfair labor
practices than to the Union's 2-year failure after its certification
to so much as attempt to perform its responsibilities as a collective-
bargaining representative.7
In view of all the circumstances of this case, therefore, we find no
warrant for the Trial Examiner's conclusion that the certification
period was effective at the time of the Union's bargaining request.
Accordingly, in view of the Respondent's good-faith doubt as to the
Union's continuing majority, we find that the Respondent has not
violated Section 8(a) (5) and (1) of the Act; and we shall dismiss
the complaint in its entirety.
[The Board dismissed the complaint.]
7 Franks Bros. Company v. N L.R B., 321 U.S 702, relied on by the Trial Examiner to
discount any possible loss of majority status , is inapposite as, inter alia, the union in
that case , unlike here , lost its majority after the respondent refused the union's request
to bargain.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on February 11, 1964, by General Drivers, Salesmen and
Warehousemen's Local Union No. 984, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of America, herein called Team-
sters, or Union, the General Counsel of the National Labor Relations Board, by the
Regional Director for Region 26, Memphis, Tennessee, issued a complaint, dated
April 28, 1964, against Dixie Gas, Inc., herein called Respondent or Employer. The
complaint sets forth the specific respects in which it is alleged that the Respondent
violated Section 8(a) (1) and (5) of the National Labor Relations Act, as amended,
herein called the Act. The Respondent duly filed an answer in which it conceded
certain facts with respect to its business operations, but denied all alleged unfair
labor practices with which it is charged.
Pursuant to due notice, a hearing was held before Trial Examiner Robert E. Mul-
lin at Greenville, Mississippi, on June 8, 1964. All parties appeared at the hearing
and were given full opportunity to examine and cross-examine witnesses , to intro-
duce relevant evidence, to argue orally at the close of the hearing, and to file briefs.
Oral argument was waived On July 6, 1964, briefs were submitted to the Trial
Examiner by the General Counsel and by the Employer. These have been fully
considered by me.
Upon the entire record in the case, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Mississippi corporation with its principal office and place of
business at Leland, Mississippi, is engaged in the wholesale distribution of liquefied
petroleum products. During the course of the 12 months prior to issuance of the
complaint, it purchased and received products and materials valued in excess of
$50,000 directly from points outside the State of Mississippi. Upon the foregoing
facts, the Respondent concedes, and I find, that Dixie Gas, Inc., is engaged in com-
merce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondent concedes, and I find, that the Union is a labor organization within
the meaning of the Act.
DIXIE GAS, INC.
III. THE ALLEGED UNFAIR LABOR PRACTICES
1261
A. Introduction and sequence of events
The General Counsel contends that since February 4, 1964, the Respondent vio-
lated the Act in having refused to bargain with the Union. At the hearing and in its
brief the Respondent contended that it had a good-faith doubt as to the Union's
majority and that it was not obligated to engage in collective bargaining during the
period in question. Essential to an understanding of the issues in this case is the
chronology set forth below.
On August 26, 1960, pursuant to a stipulation for certification upon consent elec-
tion, in Case No. 26-RC-1457, the Regional Director conducted a representation
election at the Respondent's terminal. At this time a majority of the employees
designated the Union as the bargaining representative of a unit composed of all
truckdrivers employed at the Respondent's terminal excluding all other employees,
mechanics, mechanic helpers, watchmen, guards, and supervisors, as defined in the
Act.' On February 14, 1962, the Board issued its certification of the Union as the
exclusive bargaining agent for the aforesaid unit. Dixie Gas, Inc., 135 NLRB 1051,
1053.2 On that same date and in the same decision, the Board held that the
Respondent had discriminatorily discharged three employees in the bargaining unit
within a month after the election in 1960 and that the Employer also had committed
various independent violations of Section 8 (a) (1) of the Act during the same period.
The decision of the Board in the unfair labor practice case was affirmed and
enforced by the Court of Appeals for the Fifth Circuit on October 1, 1963. N.L.R.B.
v. Dixie Gas, Inc., 323 F. 2d 433 (C.A. 5), rehearing denied December 9, 1963.
On January 9, 1964, the Respondent reinstated two of the three employees whom it
had discriminatorily discharged on September 21, 1960.3 On January 13, 1964, the
Respondent posted at its terminal, for the first time, the notice to its employees which
the decree of the court required that it maintain on all its bulletin boards for 60 days.
By letter dated February 3, 1964, M. R. Holliday, secretary-treasurer of the
Union, wrote Curry W. Holland, vice president of the Respondent. After alluding
to the final disposition of the unfair labor practice case, Holliday requested that the
Company begin collective-bargaining negotiations with its employees' representative.
In a written reply, dated February 4, counsel for the Respondent stated that during
the preceding week the company officials had learned that over half of the employees
were about to file a decertification petition with the Board and that, in view of this
fact, the Respondent seriously doubted that the Union any longer represented a
majority of the employees and would not, therefore, grant the request for bargaining
conferences. By letters dated April 27 and May 5, the Union renewed its demand
that the Company begin negotiations. In a letter dated May 6, counsel for the
Respondent stated that its position remained the same as set forth in its earlier letter
i The Respondent concedes, and the Trial Examiner finds, that the above-described
unit Is, and has been, at all times material, appropriate for collective bargaining.
3 The lapse of time between the election and final certification resulted from the con-
solidation of the representation proceeding and the unfair labor practice case in the
following sequence: After the election in August 1960, the Respondent filed timely objec-
tions A short time later the Union filed an unfair labor practice charge alleging that
the Company had violated Section 8(a) (3) by discharging three employees, and Sec-
tion 8(a)(1) by other acts and conduct. Subsequent to the issuance of a complaint on
the basis of this charge (designated Case No. 26-CA-962), a hearing on these allegations
was held before a Trial Examiner in December 1961. In February 1962 the Board
directed a hearing on certain objections which the Respondent had made to the election
conducted in Case No. 26-RC-1457. Thereafter, the parties stipulated that the Trial
Examiner might resolve the factual issues raised by the objections in the last numbered
case on the basis of the record made at the hearing in Case No. 26-CA-962. The stipula-
tion was approved by the Board and by order dated March 29, 1961, it transferred the
representation case to the Trial Examiner and directed that he make findings on the
objections in question . On June 27 , 1961, the Trial Examiner Issued his decision in
which he recommended dismissal of the objections in the RC case and in the CA case
found that the Respondent had discriminatorily discharged three employees and engaged
in various other acts of interference, restraint, and coercion. The Board Decision, Issued
on February 14, 1962, affirmed the findings of the Trial Examiner in the unfair labor
practice case and certified the Union in the RC matter.
3 The third employee involved apparently elected not to accept reinstatement.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of February 4, and that in view of its belief that the Union did not represent a major-
ity of employees in the unit, the Respondent did not feel obligated to recognize or
bargain with the Teamsters.
An attempt to decertify the Union was initiated immediately after the Teamsters
sought the first bargaining conference. On February 5, 1964, a decertification peti-
tion was filed by several employees (Case No. 26-RD-105). On February 10, the
employer itself petitioned for an election (Case No. 26-RM-161). On February 11,
and on March 6, the Union filed unfair labor practice charges alleging, inter alta,
that the Respondent has unlawfully refused to bargain on February 3 (Cases Nos.
26-CA-1746 and 26-CA-1746-2). On March 13, the Regional Director dismissed
the charges in the last numbered cases. On April 15, and after a hearing on the
RD and RM petitions, the Regional Director issued his decision and directed that
an election be held at the Respondent's terminal. Thereafter, on an appeal to the
General Counsel by the Union, the General Counsel sustained the appeal, in part,
and directed that a refusal-to-bargain complaint be issued in Case No. 26-CA-1746.
The Regional Director thereupon vacated his decision and direction of election in
the RD and RM proceeding 4 and on April 28, 1964, issued the complaint in the
present case.
B. The refusal to bargain; contentions of the parties and conclusions
with respect thereto
The General Counsel contends that in the circumstances present in this case the
Respondent was obligated to accord full force and effect to the Board certification
of the Teamsters issued on February 14, 1962, and that the Employer had no valid
basis for refusing to bargain when the Union made the initial request for negotia-
tions on February 3, 1964. The Respondent, while conceding that it refused to bar-
gain, contends that when it received the Union's bargaining request, almost 2 years
after certification, it was justified in asserting its good-faith doubt of the Union's
majority.
In the same decision wherein the Union was certified in February 1962, the Board
also found that shortly after the election the Company had discriminatorily dis-
charged three employees and engaged in various other conduct violative of the Act.
As noted earlier, enforcement proceedings instituted by the Board resulted in a deci-
sion of the court of appeals on October 1, 1963, affirming the Board's findings. The
Company, however, did not initiate compliance with the decree enforcing the
Board's order until January 1964 when it offered reinstatement to the discriminatees
and began the posting of the appropriate 60-day notices.
M. R Holliday, as a witness for the General Counsel, testified that in February
1962, when the Teamsters were first certified, the union leadership felt that "it would
be useless and meaningless to meet with this company due to the attitude that they
had shown by discharging the three ... strong union members that we had there."
He further testified that: "After a decree was handed down by the Board and the
Courts, we felt that it was now a better atmosphere at this place of business and
that the fear of discharge was now lifted with the people and that we could meet
with the Company and negotiate a fair agreement for all concerned."
The law "is now settled that an employer must bargain with the certified repre-
sentative for a period of 1 year from the date of the Board's certification, even if
the Union loses its majority status through no fault of the employer." N.L.R.B. v.
U.S. Sonics Corp., 312 F. 2d 610, 616 (C.A. 1). In the leading case on this point
the Supreme Court, in setting forth the reason for a definite and mandatory bar-
gaining period, stated that such a requirement guarantees a union "ample time for
carrying out its mandate on behalf of its members" while it discourages the employer
from assuming "that if he dillydallies or subtly undermines, unions strength may
erode and thereby relieve him of his statutory duties ...... Ray Brooks v. N.L.R.B.,
348 U.S. 96, 100. Of course, it has long been established that an employer cannot
justify a refusal to bargain on the ground of loss of majority which is attributable to
his own unfair labor practices. Franks Bros. Company v. N.L.R.B., 321 U.S. 702,
705-706; Medo Photo Supply Corporation v. N.L.R B., 321 U.S. 678, 687.
The General Counsel contends that since the Board will not conduct an election
among employees until the effects of an employer's unfair labor practices have been
dissipated (Midwestern Instruments, Inc., 133 NLRB 1132, 1143), no election could
4 On June 22, 1964, the Board denied the Employer's request for review of the Regional
Director's order vacating the direction of election and dismissing the petitions in Cases
Nos. 26-R1I-161 and 26-RD-105.
DIXIE GAS, INC. 1263
have been held at the Respondent's terminal on February 3, 1964, when the Union
first requested bargaining . There is merit to this argument , for in February 1964
the Respondent had still not effected full compliance with the court decree, the
required notices on its bulletin boards having been posted for only a portion of the
mandatory 60 days. In Flanks Bros . Company v. N.L R.B , supra, at 705, the
Supreme Court stated , ". . . a bargaining relationship once rightfully established
must be permitted to exist and function for a reasonable period in which it can be
given a fair chance to succeed " Here, collective bargaining had been accorded no
such opportunity , for throughout the period from the original date of the certifica-
tion on February 14, 1962, until January 1964 , the Employer did nothing to remedy
the effects of its unfair labor practices.
In those cases where an employer engages in violations of the Act during the cer-
tification year, and thus interrupts bargaining with the ensuing litigation , the Court
of Appeals for the Seventh Circuit has held that because the intervention of the
unfair labor practices prevented the certified agent from enjoying a free period of a
full year after certification for bargaining , the Union is entitled to resume its free
period when the litigation is at last terminated . N.L.R B. v. John S. Swift Company,
Inc, 302 F. 2d 342, 346 (CA. 7).5 Even more relevant to the present case is
Mar-Jac Poultry Company, Inc., 136 NLRB 785. There , shortly after being cer-
tified , the Union filed a refusal-to-bargain charge against the employer which resulted
in the latter entering into a settlement agreement . Thereafter , the employer resumed
bargaining with the union but at the end of 6 months , and on the ground that over a
year had elapsed since the certification , it ceased bargaining and filed an RM peti-
tion. The Board denied the employer's petition and, in its decision , with reference
to the refusal to bargain that preceded the settlement agreement , the Board stated
that, at 787:
It [employer] has, largely through its refusal to bargain , taken from the Union
a substantial part of the period when Unions are generally at their greatest
strength-the 1-year period immediately following certification . Thus to permit
the Employer now to obtain an election would be to allow it to take advantage
of its own failure to carry out its statutory obligation , contrary to the very
reasons for the establishment of the rule that a certification requires bargaining
for at least 1 year. We shall , therefore, in this and in future cases revealing
similar inequities, giant the Union a period of at least I year of actual bargain-
ing fioin the date of the settlement agreement . [Emphasis supplied.]
It is significant that the Mar-Jac Poultry doctrine recently had judicial affirmance by
the Court of Appeals for the Fifth Circuit in N.L.R.B. v. Commerce Company,
d/b/a Lainar Hotel, 328 F . 2d 600 , 601 (C.A 5).
Subsequent to the election which resulted in the Union 's certification , the Respond-
ent here involved engaged in extensive violations of Section 8(a)(3) and ( 1) of the
Act, as the Board and the Court of Appeals both found . This conduct remained
unremedied throughout the period following the certification when , as the Board
stated in Mar-Jac Poultry, the Union was at its greatest strength . Obviously, mean-
ingful collective bargaining could not have taken place during the original certifica-
tion year when the Respondent 's unremedied unfair labor practices had cast upon
the employees and their bargaining agent a pall of unlawful coercion and restraint.
While the Respondent was still in the process of complying with the notice posting
requirements of the court decree and less than 1 month after the union adherents
who had been discriminatorily discharged were reinstated , the Teamsters requested
that the Respondent meet to negotiate a contract . On the facts present here, it is
the conclusion of the Trial Examiner that this is a case in which the Union should
be accorded a reasonable opportunity for actual bargaining subsequent to the entry
of the court decree in the unfair labor practice case, just as in Mar-Jac Poultry the
Board held that because of the Employer 's malfeasance the certification year should
date from the settlement agreement there involved . For this reason , it is the con-
clusion of the Trial Examiner that at all times material herein , the Union has been,
by virtue of Section 9(a) of the Act, the exclusive representative of all employees in
the appropriate unit described earlier in this Decision ,s for the purposes of collective
5 Earlier, that same court held that the period of time during which an employer was
obligated to bargain with a certified representative was exclusive of any intervening
period during which negotiations were suspended because a dispute between the parties
had been submitted to another agency (the War Labor Board) for disposition Superior
Engraving Company v V.L R B , 183 F. 2d 783, 792-793, cert. denied 340 U S. 930.
6 Footnote 1, supi a
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining with respect to rates of pay, wages, hours, and other conditions of employ-
ment. Accordingly, the Union's request for negotiations on February 3, 1964, was
timely and the Respondent was not free to challenge the Union's representative status,
either then or at any time during the effective period of the certification.? The Com-
pany having declined the Union's request to bargain in the certified unit on Febru-
ary 4, 1964, the Trial Examiner finds that on that date and at all times thereafter
the Respondent has refused to bargain collectively with the Union as the exclusive
representative of its employees in an appropriate unit in violation of Section 8(a) (5)
of the Act and has thereby 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) thereof.8
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices by refus-
ing to bargain collectively with the Union as the exclusive representative of its
7 During the course of the hearing on the RD and RM petitions , held on April 7,
1964, the Union did not renew a motion , made earlier , to dismiss the representation peti-
tions on the ground that there was an outstanding certification of the Union still in
effect The Respondent now contends that the failure in April 1964 of the Charging
Party to urge the continuing validity of the 1962 certification constituted a waiver of
its right to proceed with the refusal to bargain charge against the Employer in the
present case . In support of this contention a portion of the transcript in the RM and
RD hearing was proffered by the Respondent . Apart from the fact that nowhere in
this transcript does there appear the terms of the purported waiver in "clear and un-
mistakable language " ( Tide Water Associated Oil Company , 85 NLRB 1096, 1098) this
argument overlooks the principle that even if the Union participated in the representation
proceeding this participation would not constitute a waiver of unfair labor practices
previously committed N.L R.B. v Model Mill Company, Inc., 210 F. 2d 829, 830 (C A.
6). Finally, even assuming arguendo that there had been such a waiver as the Respond-
ent imputes to the Charging Party, in protecting the public rights guaranteed by the
Act, as distinguished from whatever private rights the parties may have, the General
Counsel would not be bound by such a waiver N.L.R B. v. General Motor Corporation,
116 F. 2d 306 , 312 (C .A. 7) ; N.L.RB. v. Federal Engineering Company , Inc., 153 F. 2d
233, 234 ( CA. 6) ; Wine, Liquor t Distillery Workers, Union, Local 1, etc . ( Sehenley
Distillers Corporation ), 78 NLRB 504 , 505 Cf, National Ltieortce Company v. N .L.R.B,
309 U.S. 350, 362.
s In its brief , as well as at the hearing, the Respondent has argued that the complaint
must be dismissed on the ground that at the time it was issued the Board was still
processing the petitions in the RD and RM cases . This argument finds no support in
either Board or court opinions . As outlined earlier, at the time the Regional Director
issued the complaint herein he had already dismissed the RD and RM petitions and on
June 22 , 1964, the Board denied the Respondent ' s petition to review the Regional Direc-
tor's order vacating his earlier Decision and Direction of Election in those cases. This
action by the Board constituted, in effect , a holding that neither then , nor at any time
material , had the RD and RM petitions raised a question concerning representation.
Poole Foundry and Machine Company , 95 NLRB 34 , 37 (footnote 7), enfd. 192 F 2d 740
(C.A. 4), cert. denied 342 U.S. 954 . In any event the Company appeal in the rep-
resentation matter accords the Respondent no defense to the refusal -to-bargain charge
here involved . See N.L .RB v. Sanson Hosiery 'Mills, Inc ., 195 F. 2d 350 (C.A. 5),
cert. denied 344 U . S. 863, where the court held that an employer may not, in justifica-
tion of its refusal to negotiate further with a certified union, vicariously raise the
question whether the Board had arbitrarily refused to consider a decertification peti-
tion which the employees had filed. In so holding , the court stated, at 352, "If, as
respondent asserts, the Board has arbitrarily or unjustifiably refused to consider the
employees ' petition for a change in their bargaining representative , it is the employees
who are harmed , not the employer . Any controversy arising over the question of repre-
sentation would be one between the bargaining agent and the employees with which the
Employer is not concerned . Such a controversy is wholly extraneous to the issue here
presented , which is whether or not the Respondent has unjustifiably refused to further
recognize and deal with the duly certified representative of the employees ." Accord
N.L R B. v E. A. Taormina, et at., d/b/a Taormina Company, 207 F. 2d 251 , 255 (C A.
5) ; N.L.R.B. v. Poultry Enterprises, Inc, 207 F. 2d 522, 525 ( CA. 5) ; Lucas County
Farm Bureau Cooperative Assn., etc., 128 NLRB 458, 471-472 , enfd. 289 F . 2d 844, cert.
denied 368 U.S. 823; Poole Foundry and Machine Company , 95 NLRB 34, 35-36, enfd.
192 F. 2d 740 ( C.A. 4), cert. denied 342 U.S. 954.
DIXIE GAS, INC. 1265
employees in an appropriate unit, the Trial Examiner will recommend that the
Respondent be ordered to bargain collectively , upon request , with the Union.
Upon the basis of the above findings of fact , and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSION OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organization,
all within the meaning of the Act.
2. All truckdrivers employed at the Respondent 's terminal located at Leland, Mis-
sissippi , excluding all other employees , mechanics and mechanic helpers, watchmen,
guards, and supervisors , as defined in the Act , constitute an appropriate unit of
Respondent 's employees for the purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
3. At all times since August 26 , 1960, and continuing to date, the Union has been
the exclusive representative of all employees in the appropriate unit for the pur-
poses of collective bargaining within the meaning of Section 9(b) of the Act.
4. By refusing to bargain collectively with the Union as the exclusive representa-
tive of the employees in the appropriate unit on February 4, 1964, and thereafter,
the Respondent has engaged and is engaging in unfair labor practices within the
meaning of Section 8 ( a) (5) of the Act.
5. By said acts the Respondent has interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act , thereby
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III , above, occurring in con-
nection with the operations described 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
of commerce.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions , and the entire record, and pursuant
to Section 10(c) of the Act, it is hereby ordered that the Respondent , Dixie Gas, Inc.,
its officers , agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with General Drivers , Salesmen and Ware-
housemen 's Local Union No. 984 , affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of America, as the exclusive rep-
resentative of its employees in the appropriate unit described below:
All truckdrivers employed at the Dixie Gas , Inc., terminal located at Leland, Mis-
sissippi , excluding all other employees , mechanics and mechanic helpers, watchmen,
guards, and supervisors , as defined in the Act.
(b) Interfering with the efforts of the aforesaid Union, to negotiate for or repre-
sent the employees in the said appropriate unit as the exclusive bargaining agent.
2. Take the following affirmative action which is necessary to effectuate the poli-
cies of the Act:
(a) Upon request , bargain collectively with the aforesaid Union as the exclusive
bargaining agent in the appropriate unit with respect to rates of pay, wages, hours
of employment , or other conditions of employment , and, if an understanding is
reached, embody such understanding in a signed agreement
(b) Post at its terminal in Leland, Mississippi , copies of the attached notice marked
"Appendix." 9 Copies of said notice , to be furnished by the Regional Director for
Region 26 , shall, after having been duly signed by an authorized representative of
BIn the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner " in the notice In the further event that the Board 's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United
States Court of Appeals , Enforcing an Order" shall be substituted for the words "a
Decision and Order."
7 8 3-13 3-6 6-v o l. 151-81
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent, be posted by it immediately upon receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to its dispatchers are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, defaced, or cov-
ered by other material.
(c) Notify the Regional Director for Region 26, in writing, within 20 days from
the date of this Recommended Order, what steps have been taken to comply here-
with.'°
10 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the Regional Director for Region 26, in writing, within
10 days from the date of receipt of this Order, what steps the 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 Labor Management
Relations Act, we hereby notify our employees that:
WE WILL bargain collectively, upon request, with General Drivers, Salesmen
and Warehousemen's Local Union No. 984, affiliated with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the
exclusive representative of all the employees in the bargaining unit described
below, with respect to rates of pay, wages, hours of employment, or other con-
ditions of employment, and, if an agreement is reached, embody it in a signed
contract. The bargaining unit is:
All truckdrivers employed at our terminal located at Leland, Missis-
sippi, excluding all other employees , mechanics and mechanic helpers,
watchmen, guards and supervisors as defined in the Act.
WE WILL NOT interfere with the efforts of the aforesaid union to negotiate
for, or represent , the employees in the appropriate bargaining unit.
DIXIE GAS, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 746 Fed-
eral Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No.
534-3161, if they have any question concerning this notice or compliance with its
provisions.
Screen . Print Corporation and Textile Workers Union of America,
AFL-CIO. Case No. 1-CA-4539. March 30, 1965
DECISION AND ORDER
On December 9, 1964, Trial Examiner A. Norman Somers issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in certain unfair labor practices as alleged in
the complaint and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Trial
Examiner's Decision. The Trial Examiner also found that the
Respondent had not engaged in certain other alleged unfair labor
151 NLRB No. 119.