General Truckdrivers Union, Local 980

National Labor Relations Board - Board Decisions

Jun 30, 1969

177 N.L.R.B. 579 (N.L.R.B. 1969)

GENERAL TRUCKDRIVERS UNION, LOCAL 980
General Truckdrivers, Warehousemen and Helpers
Union , Local 980 International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Glen W . Thornton
Landis Morgan d/b/a Landis Morgan
Transportation and General Truckdrivers,
Warehousemen and Helpers Union , Local 980,
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America , Petitioner . Cases 20-CB-1825 and
20-RC-7982
June 30, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY CHAIRMAN MCCULLOCH AND MEMBERS
Fanning and Jenkins
On April 2, 1969, Trial Examiner Martin S.
Bennett issued his Decision in the above-entitled
:onsolidated proceedings, finding that Respondent
Union had not engaged in certain unfair labor
practices alleged in the complaint and
recommending that these allegations be dismissed.
He also found, in Case 20-RC-7982, that certain
acts of sabotage committed by unknown persons
prior to the election of March 23-24, 1968,
frustrated "a rational uncoerced expression of
choice"' in the election. He therefore recommended
that the results of the election be vacated.
Thereafter, the Union filed exceptions to the Trial
Examiner's Decision and a supporting brief and the
Employer filed cross-exceptions and a brief in
support thereof, and an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with these cases 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
entire record in these cases, including the Trial
Examiner's Decision, the exceptions and the briefs,
and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.
Additionally, the Board directs that a new election
be held.
ORDER
Pursuant to the provisions of Section 10(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board hereby adopts as
its Order the Recommended Order of the Trial
Examiner, and orders that the complaint in Case
'Al Long, Inc, 173 NLRB No 76
579
20-CB-1825 be, and it hereby is, dismissed in its
entirety.
IT IS FURTHER ORDERED that the election
conducted in Case 20-RC-7982 on March 23 and 24,
1968, among certain employees of Landis Morgan
d/b/a Landis Morgan Transportation at its Ukiah,
California, establishment be, and it hereby is, set
aside.
(Direction of Second Election 2 omitted from
publication.]
' in order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their
addresses which may be used to communicate with them Excelsior
Underwear Inc, 156 NLRB 1236, N L R B v Wyman-Gordon Company,
394 U S 759, decided April 23, 1969 Accordingly , it is hereby directed
that an election eligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 20 within 7 days after the date of issuance of the
Notice of Second Election by the Regional Director The Regional
Director shall make the list available to all parties to the election No
extension of time to file this list shall be granted by the Regional Director
except in extraordinary circumstances Failure to comply with this
requirement shall be grounds for setting aside the election whenever proper
objections are filed
TRIAL EXAMINER'S DECISION
STATEMENT OE THE CASE
MARTIN S BENNETT, Trial Examiner This matter was
heard at Ukiah, California on January 22 and 23, 1969.
The complaint, issued October 7, and based upon a charge
filed March 28, 1968, by Glen W. Thornton, an individual '
alleges that Respondent Union, General Truck Drivers,
Warehousemen and Helpers Union, Local 980,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America had engaged in
unfair labor practices within the meaning of Section
8(b)(1)(A) of the Act This alleged conduct includes, in an
election context, attempting to stage a fight with employer
representatives in the presence of employees about to vote;
pushing and shoving an employee about to vote and
directing him to vote for the Union; predicting that trucks
operated by employees opposed to the Union would be
damaged; and blocking the entrance to the polling area.
By order dated October 7, 1968, the Regional Director
for Region 20 ordered consolidated with the foregoing a
hearing on objections to an election conducted in Case
20-RC-7982 in a unit of all truckdrivers, mechanics,
lubemen and tiremen, with certain exclusions Pursuant to
a Stipulation for Certification upon consent election, this
election was held on March 23 and 24, 1968, and won by
the Union, 22 to 18. Objections to conduct affecting the
results of the election were filed by the employer and
over-ruled by said Regional Director. Exceptions thereto
were filed by the Employer and, on September 6, 1968,
the Board held that certain of the objections raised
substantial issues of fact and directed a hearing.' It also
directed that a determination be made as to "the union
affiliation and union representative or agent status, if any,
of employee Delbert Lee Rand."'
And an employee of the employer, Landis Morgan d/b/a Landis
Morgan Transportation
'There were also four challenged ballots The Regional Director
sustained one challenge and recommended that no resolution be made of
the remaining three The Board's order is silent as to this aspect, and I
deem that issue not to be before me
'Identified in the transcript as James Rand
177 NLRB No. 51
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Regional Director noting that the two cases
involved a single overall controversy and in part the same
conduct, duly ordered the cases consolidated . Briefs have
been submitted by the parties . A motion by the General
Counsel to correct certain minor errors in the transcript is
hereby granted.
Upon the entire record in the case , and from my
observation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Landis Morgan d /b/a Landis Morgan Transportation,
a sole proprietorship with its principal place of business at
Ukiah, California , is engaged in the general statewide
drayage of lumber and plywood and performs services
valued in excess of $50,000 per annum for concerns
located outside the State of California . I find that the
operations of the Employer affect commerce within the
meaning of Section 2 (6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
General Truck Drivers , Warehousemen and Helpers
Union , Local 980 , International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and Helpers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
The Employer has approximately 50 employees,
operates 38 to 40 trucks and was unorganized prior to the
period material herein.Its president and direct operator is
Landis Morgan . Organizational activity was undertaken
by Respondent Union and a petition for an election was
filed in Case 20-RC-7951 on a date variously fixed herein
as January 18, 19, or 23 , 1968. This was withdrawn for
reasons not definitively established in the record and an
identical petition , that involved herein , was filed on
February 8. The conduct attacked by the General Counsel
and the Employer took place in the period prior to the
election held on March 23 and 24 which the Union won
by a margin of 22 to 18.
B. The Alleged Representative Status of Jim Rand
Basic to the positon of the General Counsel in the
unfair labor practice case is the establishment of union
responsibility for the conduct under consideration herein.
Reliance is placed here on the acts of Jim Rand, an
avowed union supporter for, as noted , the Board has
directed that a determination be made as to his "union
representative or agent status."
Rand was a driver for the Employer and was active in
the distribution and procurement of union authorization
cards . There is not an iota of evidence that he was on the
payroll or the Union or that he was reimbursed for his
efforts; indeed, the record demonstrates otherwise. The
General Counsel has relied on several incidents in support
of his position.
(1) Joseph Day,' a night dispatcher for the Employer
who was excluded from the voting unit , testified that
within 1 week preceding the election , Organizer Kenneth
Gillie of the Union visited his home in search of a fellow
worker named Dugan who lived with Day. Gillie made
some comments about the benefits of unionization and
stated that many dispatchers belonged to the Union. Day
joined in the talk and Gillie told Day that an attorney for
the Union could assist him with a personal problem.
Some 15 or 20 minutes after Gillie ' s departure, Jim
Rand appeared at the Day residence . He entered laughing
and announced that Gillie had just visited his, Rand's,
home and commented that he , Gillie , "figured you guys
were shook up." Rand then added that he, accordingly,
had decided to pay Day and Dugan a visit "and shake you
up a little bit more."
This talk demonstrates that Gillie and Rand, on the
latter ' s statement , were in contact with each other. This
Gillie freely admitted , testifying that he held conversations
with Rand during the course of the campaign . And it is
clear that Rand was active in organizational activities.
However, Gillie further testified, and there is no evidence
to the contrary , that Rand was never authorized to
represent the Union , that he was paid no money and that
he, Gillie , would have had to clear such an arrangement
with the executive board of the Union , something he had
not done . Rand testified similarly as to the lack of
authorization and the absence of payments . I find no
evidence here to support the position of the General
Counsel.
(2) Bobby Sullivan , a driver for another concern, would
on occasion meet Rand at truck stops . On one such
occasion , prior to the election , according to Sullivan,
Rand stated that "Finally, we are going to get the union
in at Landis." Again, after the election, Rand announced
that "finally we got the union in"; that he , Rand, was
responsible for this ; and that he had done likewise at
another named concern.
Rand admitted telling Sullivan , after the election, that
"we" won the election , but denied assuming any
responsibility therefor , particularly inasmuch as he was
not on the union payroll . He denied taking credit for the
organization of the other employer and claimed that all he
had done in this area while in its employ was to sign a
card.
In sum , even on the face of the testimony for the
General Counsel , there is presented what amounts at best
to bragging about one' s purported role in an
organizaitonal campaign . Moreover , it is readily apparent
that agency may not be established solely on the basis of
naked conclusory statements by a purported agent.
N.L.R.B. v. Sea-Land Service Inc., 356 F.2d 955 (C.A.
1); Taxi-Drivers Union (Morse Taxi and Baggage
Transfer, Inc.), 174 NLRB No. 1; and Carpenters Local
Union No. 944 , (Interstate Employers Association), 159
NLRB 563, 566.
(3) Richard Wade, a driver for the Employer , similarly
testified that he learned of the union organization
campaign about January 18 . Together with other drivers
of the employer , he was waiting to load lumber when
Rand commented that Wade was likely to vote against the
Union . Later that day, at a restaurant , Rand announced
to a group of drivers that "he had got the cards ," that he
was "responsible" for obtaining the signatures and that he
had forwarded them to the Union.
Wade also testified that Rand repeatedly told him that
he knew Wade would vote against the Union and that he,
Rand, had "helped to organize" two other named plants.
Here as well, and for the reasons previously stated, I see
no support for the position of the General Counsel.
GENERAL TRUCKDRIVERS UNION, LOCAL 980 581
Treated below is the issue whether certain alleged acts of
sabotage have, per se, independently of union sponsorship
or direction, destroyed the ideal laboratory conditions for
a free, objective and uncoerced choice of a bargaining
representative
(4) Similarly, testimony attributing to Rand in early
January the statement that he had joined the Union and
had obtained a number of authorization cards was
presented by Charles Grivette who also testified that he
heard Rand telephone representatives of the Union on
three or four occasions. Further examination of Grivette
ultimatley diminished his claim to one telephone call prior
to the election from Grivette's home by Rand to an
unidentified union representative in another community
Grivette's driving license had been suspended and in this
call Rand declared that if Grivette's license was not
retrieved, he, Rand, "would throw the vote the other
way." Grivette has not seen Rand engage in any other
discussions with union representatives. Here as well, I see
no probative evidence of agency
I find, therefore, that Rand did not enjoy "union
representative or agency status" with the Union at the
time material herein. If the term " union affiliation" is
construed to mean union membership, it is undisputed
that Rand had been a member of the Union for some
years, although more recently on a withdrawal card. If the
term is construed to mean that he was an agent in any
way of the Union, in the terms of the issues considered
herein, there is no evidence to support this theory. And,
there is no evidence of union ratification of any of his
conduct.
Treated hereinafter are the Employer's objections to
conduct affecting the results of the election, the first of
which relates to "union predicted acts of sabotage " As
will appear, there was sabotage but these alleged
predictions emanated solely from Rand and the evidence
with respect to him has been detailed above. I find,
therefore, at this point, that there were no "union
predicted acts of sabotage."'
C. The Giiiie-Brewer Incident
The General Counsel has relied upon four allegations in
the unfair labor practice case, one of which took place at
a preelection conference on March 23, 1968, some minutes
before the polls opened. The scene was a separate parts
room inside the shop area. This room had a door and
window, the ballot box was located therein and employees
intending to vote formed a line in the shop area.
Present at this meeting were Board Agent Phillips;
Landis Morgan , president of the Employer, David Miller
'Employee Charles Grivette testified that at the second union meeting, 1
or 2 weeks before the election, Secretary-Treasurer Maxwell of the Union
told the assemblage that those who voted against the Union would not be
around very long as "they could blackball them from the union " and they
would not be driving While placing substantially all the employees as
present, including Organizer Gillie, his testimony is silent as to Rand's
presence
Rand testified that he attended only one meeting and that on this
occasion Maxwell announced that it was unlawful for the Union to
interfere with an election , that employees had the right to cast a negative
vote and that the Union was required to accept them as members
Maxwell testified similarly that he spoke at two meetings and told the
employees that with a union shop , the Union would represent all
employees and not j ust adherents He denied threatening loss of
employment to antiunion voters While Maxwell was corroborated by
Rand, I deem a resolution of the conflict unnecessary, because on either
version I see no support for an argument that it demonstrates Rand's
agency
and Lee Brewer of the Redwood Employers Association,
John Hempsmyer, then the purchasing agent for the
Employer and its observer; Kenneth Gillie, an organizer
for the Union and its agent ; and employee Arthur
Swayze, observer for the Union.
They discussed the election and Gillie asked if the
Employer would stipulate that four named employees were
eligible to vote; Morgan replied that he would not Gillie
asked the same question of Brewer and he also replied in
the negative. This refusal angered Gillie who threw down
upon a desk a clipboard he was holding, advanced upon
Brewer and offered to fight him. Brewer merely stared at
Gillie, replied that Glllie was lucky and Agent Phillips
intervened at this point.`
As Respondent Union points out, an evaluation of the
incident should be made in the context of the physical
capabilities of the participants. Gillie was 61 years of age,
less than 6 feet in height, manifestly not in the best of
physical condition and substantially - blind. More
specifically, he is blind in his left eye and, at the time, had
marginal vision in the other because of a cataract. And, as
Gillie uncontrovertedly testified, Brewer was aware of the
state of his vision. As Gillie put it, and there is no
evidence to the contrary, he could neither read nor drive.
Gillie knew who was in the room, but' could not see
their faces, inasmuch as anything more than 15 inches
distant was a blur. Indeed, he needed a companion to
escort him to the polling area. One might well speculate
that he barely knew in which direction he was rushing.
Brewer, who did not testify, was a much taller and heavier
person under 40 who had played professional football.
This perhaps underlines Brewer's comment that Gillie was
"lucky" he had not carried out an attack upon Brewer. In
any event, Gillie apologized to the Board agent
immediately after the incident.
Employee Glenn Thornton and several other employees
were working in the shop and at least several employees
were also waiting in or entering the shop area to vote.'
The thrust of this allegation is that prospective voters
might have been intimidated had they observed the
incident. But, on balance, this dispute ended quickly And
there is some question as to the extent this was heard or
seen, because of a partially blocked doorway from the
parts room and because of shop noise. Moreover, in view
of the briefness of the incident and the obvious mismatch,
I view the potential for intimidation of a seasoned group
of truckdrivers waiting to vote as indeed remote. I shall,
therefore, recommend the dismissal of this allegation.
D Other Incidents
Of the three remaining allegations, one is that James
Rand, as agent for Respondent Union, told employees
that the equipment of any employee who did not support
Respondent Union would be damaged. There is conflicting
evidence as to statements made by Rand which I deem
unnecessary to resolve at this point. For, as found, there is
no substantial evidence to support a finding that Rand
was an agent of Respondent Union or that the Union
authorized or ratified any conduct or threats by him
'This finding is based upon the testimony of Morgan , Glllie, Thornton,
and Hempsmyer which does not differ in basic details Hempsmyer, in
particular , no longer in the employ of the Employer , impressed me as an
objective witness
'Morgan placed four employees , including Thornton , as working in the
shop prior to the incident, but , directly thereafter, only one, Edward
Jennings, was present According to Thornton , Jennings was servicing a
truck
S82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Evidence was introduced concerning two other
incidents. One allegation was that on March 23,
Respondent Union, by its agents Leonard Powell and
Grover Door, pushed and shoved an employee waiting to
cast his vote near the polling area and directed him to
vote for the Union. The other allegation involved conduct
on March 24 by alleged Agents Powell and Guy Richison'
which threatened employees by blocking the entrance to
the polling area.
Totally apart from a consideration of the facts, there is
a complete failure of proof that any of these three were
agents of Respondent Union. Each was an employee of
the Employer and apparently eligible to vote in the
election. They were not employees of the Union, or on its
payroll and there is no evidence of authorization or
ratification of their conduct by Respondent Union.
The General Counsel has argued that the conduct by
these three employees resulted from the "continuing
effect" of Gillie's abortive fight prior to the opening of the
polls. Stated otherwise, ostensibly coercive conduct by
employees who supported the Union was the "natural
outgrowth" of the Gillie incident at the preelection
conference and Respondent Union is therefore responsible
for the conduct of its supporters in the polling area during
the election. Addressing myself to the unfair labor
practice case, I find this boot-strap theory far too tenuous.
I shall therefore recommend that these allegations be
dismissed. In view of the foregoing findings, I shall
recommend that the unfair labor practice case be
dismissed in its entirety.
IV. THE OBJECTIONS
The Board directed a hearing on Objections 1, 4, 5, 6,
7, and 8 by the Employer . At the hearing , I granted a
motion by Respondent Union to dismiss Objection 5 for
failure of proof that a named employee , Jennings, had
been coerced and threatened in the exercise of his right to
vote.
Objection 7 relates to the abortive Gillie-Brewer
encounter before the opening of the polls and has been
treated above . As noted , the incident was quickly ended
and it impresses me as relatively minor and
inconsequential in nature . Moreover , the picture of an
elderly near blind man challenging an ex -professional
athlete who towered over him would more likely tend to
impress an observer as ludicrous rather than coercive and
would hardly tend to improperly influence him in the
exercise of his franchise . I find that this objection has no
merit.
Objection 8 relates to an inadvertent attempt by Gillie
and Business Manager Shannon of the Union to enter the
polling area on March 24 shortly before the scheduled
close of the polls at 10 a . m. Glen Thornton , a mechanic,
who had no official role in the election , but was
apparently not enamored of the concept of union
representation , was at work in the shop. He testified that
he observed Gillie and Shannon enter the shop at 14
minutes to 10 and approach the parts room where the
voting was taking place . Thornton hastened to them and
explained that the polls had not closed . Gillie replied that
his entrance was timely , according to his watch . Thornton
suggested that he check the clock on the wall, but this
Gillie could not see. Thornton then told Gillie that he
would have to leave , took him by the arm and escorted
him out the door . Gillie and Shannon left , entered their
'Appearing in the transcript as Richardson
vehicle some distance away and awaited the close of the
polls. On the way out, Gillie did greet some employees
who were milling about the entrance and the entire
incident took but several minutes.
Thornton testified, erroneously as will appear, that an
employee was casting his vote and that another was
entering to vote. Thornton was substantially corroborated
by comechanic Roy McKee who was also at work as to
Gillie's entrance and departure but not as to any pending
voting.
The testimony of employer-observer John Hempsmyer
who was not at work, unlike Thornton and McKee,
impresses me as more reliable as to the status of the
voting He testified that Gillie returned to the polling area
some 5 to 7 minutes early. The Board agent pointed this
out to him and Gillie immediately left, commenting only
that the results would be known in a few minutes.
Hempsmyer further testified that the plywood window of
the parts room was closed and visibility out from the
balloting area was obtainable only through the door. He
further testified, significantly, that all but two employees
had then voted and that 35 to 40 minutes had elapsed
since the last ballot was cast. These two employees never
did vote and Landis Morgan observed one of them, Ray
Russell, standing outside with a group of men after the
close of the polls on this day. It is undisputed that there
was no one waiting in line to vote.
Shannon testified that he drove Gillie to the polls for
the counting of the ballots, Gillie's visibility preventing his
driving . As they entered, they were met by a man,
apparently Thornton, who pointed out that the polls
would not close for 2 minutes. Gillie basically agreed with
Shannon , noting that when their attention was directed to
the clock on the wall, he, Gillie, could not see it.
As is apparent , there was no argument on this occasion
and the union representatives left promptly upon request.
Moreover, all those who cast ballots had previously voted.
While one of the two nonvoters was outside, the record is
silent as to whether or not he was a union supporter, an
antiunion employee, or was even desirous of voting. There
was no interruption of the balloting; indeed, there was no
further balloting. This impresses me as a technical
violation at best , with no obvious effect on the balloting
and no tendency to affect it. I shall therefore recommend
that this objection be overruled.
Damage to and Sabotage of Company Equipment
and Products
As a predicate to a consideration of Objection 1, it is
noted that the Employer regularly services its trucks in its
own shop. Oil is changed every 3 weeks and lubrications
are performed weekly on a schedule not publicized to the
drivers.
These trucks contain oil in three areas: (1) the main
transmission (2) an auxiliary transmission and (3) the rear
end. Each of these has a fill plug, a drain plug, and an
inspection plate plug. During normal servicing , the drain
and fill plugs are removed but not the inspection plate
plug.
All servicing of this equipment is done by Edward
Jennings who works evenings, Saturdays and Sundays.
Prior to January 1968 and subsequent to the election,
Jennings encountered no problems with these plugs.
Commencing in January, he discovered loose inspection
plate plugs on two occasions, loose drain plugs six or
seven times, and one or two loose fill plugs. The
inspection plate plug is normally not touched ' during
GENERAL TRUCKDRIVERS UNION, LOCAL 980
servicing. As for the other plugs, he noticed excessive
dripping of oil and discovered that these were loose. Had
any of the trucks departed on,their long runs they would
have rapidly lost oil and extensive permanent damage
would have been inflicted.
According to mechanic Glen Thornton, a number of
unusual occurrences took place in the latter part of
January. Having encountered difficulty with the auxiliary
transmission of Truck 21, his investigation disclosed that a
steel stud 1-1/2 inches long and 3/8 of an inch in
diameter foreign to the transmission had been inserted.
This was forced between the gears and some teeth from
the gears had broken off. This perforce had been inserted
through the opening normally used for lubrications.
On the following day, the driver of Truck 22 reported
that he had lost all his grease. The bolt on the inspection
plate plug had come out and this bolt is normally not
touched, during servicing. Its removal requires considerable
effort and the use of a wrench. This repair required new
bearings and replacement of the top main shaft. In his
years as a mechanic, he had not previously encounterd
this.
In I~ebruary, the transmission of Truck 31 was
"caught" or frozen. Inspection revealed that an additive
had been put in the grease causing it to break down. This
required replacement of three gears in the main shaft.
Three or four days later, the rear end of the same vehicle
went out; inspection disclosed that an additive was present
causing the grease to turn to rubber and it was necessary
to use a torch to remove this.
Mechanic Roy McKee, who has many years of
experience, testified how Truck 28 lost its oil drain plug in
December., By coincidence, he had previously attempted
to remove this plug with a 15-inch wrench and it did not
budge. The extent of the damage on this occasion is not
disclosed.
During January, he was working on Truck 28 and
noticed that oil was running out. Investigation disclosed
that the plug was finger loose and ready to fall out. This
plug is normally loosened for an oil change, but it was 2
weeks since the previous oil change and the truck had
been run daily; the oil on this occasion would have been
run out in 15 minutes. The gauge would not reflect the
loss of oil and the engine would have promptly burned out
for lack of oil when the truck was taken out.
President Morgan testified how on January 18 the
engine of Truck 18 "froze up." Inspection revealed that
the rings were broken and that there was a foreign
substance in the oil. On several occasions thereafter,
foreign substances were found in the oil.
Morgan also testified generally that from January 18
on, eight engines broke down and that in four or five
cases a foreign additive smelling like pine tar was found in
the oil. No more than several of these could be termed a
normal number inasmuch as some of the trucks had been
recently overhauled. The cost of a major overhaul is
$2,000 to $2,500 per truck. The repair for Truck 21 cost
$400 to $450. The cost of Truck 22 was $300 to $350. The
front differential repair on Truck 31 cost $600 to $650
and the transmission cost was approximately $500.'
'It is not clear , but this appears to have occurred at the outset of the
organizational campaign.
'1 am not unaware that at least some of these incidents preceded the
filing dates of the petitions and I also deem it unnecessary to determine
whether the first or second is to control . But they were a matter of
discussion among the employees during the crucial postpetition period.
And, as the Board recently pointed out, "While we agree with the Hearing
Officer that the rule in Ideal Electric and Manufacturing Company. 134
583
Underlying the foregoing is the fact that the Employer
normally, in addition to maintenance, builds trucks from
scratch. In the first quarter of 1967, it built two, whereas
in the corresponding period in 1968 the men were forced
to devote all their time to maintenance because of
excessive breakdowns.
.There was also specific direct testimony concerning the
sabotage of equipment of drivers who refused to commit
themselves favorably to union organization and this
became common knowlege throughout the company.
Driver Dick Wade testified, and I find, that Rand
spoke to him on January 18 in the presence of 6 or 7
drivers and referred to him as a "no vote." One or two
weeks before the election, according to Driver Charles
Grivette, he heard Rand say to a group of drivers that he
knew the identity of the drivers who would vote no in the
election and that he would "get them.""
The company trucks consist of a tractor and two
trailers. Each trailer is equipped with an air brake and it
is necessary to use them to stop loaded equipment. The
brakes on the trailers are adjustable by valves on the
trailers and are adjusted by the driver upon loading,
according to his load. They are normally not checked
again and no one else has any duty or function with
respect to them.
Between March 13 and the election, the following took
place. On a Friday, Wade drove to a mill, loaded his
truck for a trip to Los Angeles and duly adjusted the
brakes on the trailer. He left the truck in the Company
yard in Ukiah and had a day off; no one used the truck
during this interval. On the following morning, he
departed on his trip intending , however, to initially have
coffee at a truck stop 3-1/2 miles south of the outskirts of
Ukiah.
It is necessary to make a sharp right turn to enter these
premises. He applied his brakes as he did so, but
discovered that they would not stop the truck in time.
Wade ultimately brought the vehicle to a halt and
discovered that two valves feeding air to the trailers had
been turned off. He opined that had this happened on a
down hill grade he would have lost control of the vehicle.
The truck gauges do not reflect the loss of pressure to the
trailer. After this incident, Wade promptly reported it to
all drivers he encountered as well as the personnel in the
employer's truck yard.
Mac Uptain uncontrovertedly testified, and I find, that
a week or 10 days before the election, Rand asked him to
sign a union authorization card and Uptain refused. He
was also solicited at this time by employee Arthur Swayze
who later was an observer for .the Union at the election.
Uptain in essence refused, stating that he knew no one
who wanted to sign and that his vote in the election was
his own business.
After these conversations and prior to the election on
March 23 and 24, the following incident took place.
Uptain drove his truck to Eureka and put on a load of
lumber. He checked and adjusted his brakes on this
NLRB 1275, 49 LRRM 1316, forbids specific reliance upon pre-petition
conduct as grounds for objecting to an election , such conduct may properly
be considered insofar as it lends meaning and dimension to related
post-petition conduct ." Stevenson Equipment Co, 174 NLRB No. 128.
"Rand denied threatening Wade, but admitted that he had heard such a
rumor He admitted that Wade asked if he , Rand, had threatened to
sabotage his truck and Rand, on this occasion, denied authoring the
statement . According to Wade, this took place on March 13 or 14 and
Rand stated that anyone who voted against the Union deserved to have his
equipment sabotaged . Wade did state that anyone who approached his
truck would be shot by him.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
occasion, returned to the Company yard and left his rig
there. On the following day, he departed on his trip. Some
minutes later, Uptain was in a left turn lane preparing to
enter the freeway on the outskirts of Ukiah and
discovered that his brakes did not function. Fortunately,
there was no vehicle in front of him or passing at that
moment on the freeway and he managed to turn into the
freeway, although his left front wheel did strike a concrete
divider.
The vehicle ultimately rolled to a stop and he
discovered that the air valves had been shut off to the
trailers, in the same manner as those on the Wade truck.
Uptain had heard of another such incident and testified
that the men discussed among themselves the incidents of
sabotage outlined above.
The record also discloses that Uptain, subsequent to his
first contact by Rand, asked Rand for a card, signed and
mailed it in. It does not reveal whether he took the step
after he had trouble with his brakes.
Driver William Quasne was solicited several times to
join the Union by Swayze. On each occasion, Quasne
would not agree to do so and replied that he would use his
own mind and that it was each person's choice.
Thereafter, and apparently on February 28, Quasne was
entering the freeway with a very heavy load of lumber on
two trailers. He had previously checked the equipment
and ascertained that everything was in operating order.
On this occasion, he realized that the back trailer was
pushing against the tractor. He managed to stop the
vehicle and discovered that the air valve had been turned
off in the rear trailer.
Having rectified this, he delivered the load and, on his
return trip, ostensibly ran out of gas. He had previously
checked the truck and ascertained that both tanks were
full. His inspection revealed that someone had turned the
crossover switch so that one tank had been depleted but
that the other was full. Quasne reported to a number of
drivers what had been done to his truck. There is evidence
that these drivers and other drivers upon learning of these
incidents thereafter regularly checked their air valves on
each trip, contrary to past practice.
While I do not find that union agents engaged in this
conduct, it is significant that these incidents involved
drivers who refused to commit themselves to the Union."
The types of sabotage engaged in were vicious in that
equipment was damaged, great potential existed for
complete loss of expensive equipment and merchandise
and, more particularly, the drivers could have been
seriously injured or killed. And this conduct was rapidly
and extensively publicized among the employees and the
potential electorate. To dispose of this on the theory that
agency was not established invites a finding that the
Employer or his well wishers deliberately sabotaged this
equipment in order to have a basis to upset a union
victory. But, our industrial society has long since
progressed beyond the era of the agent provocateur.
Stated otherwise, there is a most viable presumption that
"There is one alleged exception Rand testified that on his return from a
trip to Los Angeles he experienced a vibration in the gear box When it
was drained , metal shavings were found therein
an employer who is making a living through the use of
expensive equipment does not sabotage it in order to taint
a union ' s cause in a Board election.
It is true that all but two eligibles voted . But the issue
is how coerced were the votes of the others. And, in
relative terms , it would certainly seem that this type of
sabotage would be more apt to taint and influence the
prospective voter than peaceful electioneering which the
Board now recognizes as having such an effect . Milchem,
Inc, 170 NLRB No. 46.
To conclude , I believe that this conduct prevented an
election "in an atmosphere conducive to a determination
of the uninhibited preference of employees ." Rebmar,
Inc., 173 NLRB No. 215. It likewise frustrated "a
rational uncoerced expression of choice ." Al Long, Inc.,
173 NLRB No. 76. As has been pointed out, certain
elements, regardless of their source , may make an
impartial choice impossible and thus invalidate an
election . N.L.R.B . v. Staub Cleaners , Inc., 357 F.2d 1
(C.A. 2).
Realistically speaking , and in order to near if not arrive
at the highly desired laboratory conditions for an election,
this is the most workable approach . Parties to an election
and their well wishers are thus put on notice that
prohibited conduct engaged in by anyone may forfeit an
election . This then will serve to put a premium on proper
deportment by all parties . Because of the foregoing
considerations , I find merit to this objection and shall
recommend that it be upheld.
In view of the findings made above , I deem it
unnecessary and superfluous to treat with other alleged
acts of sabotage such as nails driven into plywood, an
instance of not protecting a load against a sudden rain
and traffic violations . I similarly deem it unnecessary to
treat with certain instances of electioneering allegedly
falling within the policy enunciated by the Board in
Milchem, Inc., supra . But cf. Harold W Moore & Sons,
173 NLRB No. 191, and Marquil International Security
Service , 173 NLRB No. 192.
CONCLUSIONS OF LAW
1. Landis Morgan Transportaion is an employer whose
operations affect commerce within the meaning of Section
2(6) and (7) of the Act.
2. Respondent Union, General Truck Drivers,
Warehousemen and Helpers Union, Local 980,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor
organization within the meaning of Section 2(5) of the
Act.
3. Respondent Union has not engaged in unfair labor
practices within the meaning of Section 8(b)(1)(A) of the
Act.
RECOMMENDED ORDER
In view of the foregoing findings of fact and
conclusions of law, it is recommended that the unfair
labor practice complaint be dismissed in its entirety.
It is further recommended that the results of the
election conducted on March 23 and 24, 1968, among the
employees of the employer be vacated.