H. W. Lay & Co., Inc.

National Labor Relations Board - Board Decisions

Feb 12, 1959

122 N.L.R.B. 1386 (N.L.R.B. 1959)

1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the facts related above in connection with the discharge of
Russell, the Trial Examiner expressly finds that Russell was discharged for cause
.and that no remedy is available to him under the Act by reason of his discharge
from the employment of the Company.
Upon the basis of the findings of fact, and upon the entire record in the case,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of Fluor Company, Ltd. constitute trade, traffic , and commerce
among the several States, within the meaning of Section 2(6) of the Act.
2. International Union of Operating Engineers , Local 150, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
3. The Respondent , International Union of Operating Engineers , Local 150,
AFL-CIO, has not engaged in unfair labor practices within the meaning of Section
8(b)(1)(A) or (b)(2) of the Act, as alleged.
[Recommendations omitted from publication.]
H. W. Lay & Company , Inc. and Truck Drivers and Helpers
Local Union No. 728 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America, Peti-
tioner. Case No. 10-RC-4035. February 12, 1959
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election,
an election was conducted on January 4, 1958, under the direction
and supervision of the Regional Director for the Tenth Region,
among certain employees in an agreed-upon unit. At the close of
the election, the parties were furnished a tally of ballots which
showed that there were approximately 12 elegible voters, that 7 cast
votes for the Petitioner, and that 5 cast votes against the Petitioner.
There were no void or challenged ballots.
Thereafter, the Employer timely filed objections to conduct af-
fecting the results of the election. In accordance with the Rules and
Regulations of the Board, the Regional Director investigated the
objections and on -larch 3, 1958, issued and duly served upon the
parties his report on objections, in which he recommended that the
objections be overruled. Thereafter, the Employer timely filed
exceptions to the Regional Director's report. On April 15, 1958, the
Board issued an order directing hearing with respect to the Em-
ployer's objection No. 2, which alleged an offer of financial assistance
to an employee in exchange for his vote for the Petitioner. The
Board stated that this issue "may best be resolved by a hearing" and
ordered that a hearing be held before a hearing officer who should
prepare and serve upon the parties a report containing resolutions of
the credibility of witnesses, findings of fact, and recommendations to
the Board as to the disposition of this issue.
122 NLRB No. 162.
H. W. LAY & COMPANY, INC. 1387
The hearing was held on June 10, 11, and 24, 1958, before Hearing
Officer Charles M. Paschal, Jr. All parties appeared and participated
at the hearing. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.' On Novem-
ber 19, 1958, the hearing officer issued and duly served his report on
objections in which he recommended that the Employer's objection be
overruled. The Employer filed timely exceptions to the hearing
officer's report.
Upon consideration of the entire record in this case, the Board'
finds:
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.
2. The Petitioner is a labor organization claiming to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of the employees of the Employer within the meaning of Sec-
tion 9(c) (1) and Section 2(6) and (7) of the Act.
4. In agreement with a stipulation of the parties, we find that the
following employees of the Employer constitute a unit appropriate
for the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All over-the-road drivers working out of the Employer's Chamblee,
Georgia, plant, excluding all city drivers, garage service employees,
shipping and receiving employees, office and clerical employees, pro-
fessional employees, guards and watchmen, all other employees, and
supervisors as defined in the Act.
5. The Petitioner's objection to the election are essentially as
follows :
Objection No. 1: The Employer alleged that several days prior to
the election, Carl P. Cook, assistant business agent of the Petitioner,
stated to an employee eligible to vote in the election, in the presence
of other eligible voters, that the Employer's attorney had been heard
to make a statement to William B. Oliver, the Employer's vice pres-
ident, that Oliver should wait until the employee in question re-
turned from a driving trip before firing him. The Employer
contended that no such statement was made by its attorney and that
the falsity of this statement allegedly made by Cook prevented the
employees from exercising their free choice in the election.
In his report on objections, the Regional Director found that Cook
did not make the statement attributed to him and that even if the
3 We agree with the hearing officer 's rejection of the Employer 's proffered evidence with
respect ,to objection No. 1, as the hearing was limited to the receipt of evidence dealing
with objection No. 2.
2 Pursuant to the provisions of Section 3 (b) of ,the National Labor Relations Act, the
Board has delegated its powers in connection with this proceeding to a three -member
panel [Chairman Leedom and Members Bean and Jenkins].
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement was made as alleged by the Employer, it did not interfere
with the election because no reference was made to the employee's
union adherence or activities as being the cause of his future dis-
charge. Accordingly, the Regional Director recommended that this
objection be overruled. Without deciding whether or not Cook
made the disputed statement, we agree with the Regional Director's
alternate finding that the remark was not of such a character as to
interfere with the employees' free choice of a bargaining repre-
sentative.
Objection No. 2: The Employer alleged that on the morning of the
election, some employees who were union adherents promised another
employee financial assistance in connection with a threatened garnish-
ment proceeding in exchange for his vote for the Petitioner. While
the Employer does not contend that any officer or agent of the Pe-
titioner engaged in, or gave prior authorization for such conduct,
it does contend that the Petitioner, by the subsequent acts of its
assistant business agent, ratified and condoned the incident and
thereby became responsible for the alleged improper conduct. The
Employer further argues that the incident was of such a nature as
to have unduly affected the results of the election, irrespective of
the Petitioner's responsibility. The Petitioner, on the other hand,
contends that no employee was promised financial assistance in ex-
change for his vote and that, in any event, if such promise was
made, the Petitioner had no knowledge of, or participated in, such
action by way of prior authorization or subsequent ratification.
As detailed in the hearing officer's report, the record shows that
on the morning of the election held on January 4, 1958, but before
he voted in the election, Hugh Clark engaged several of his fellow
employees in conversation on the Employer's parking lot. He ad-
vised them that he might lose his job because one of his creditors
was going to garnishee his wages. Jack Cummings, a fellow em-
ployee, offered Clark his financial or other assistance to avoid the
garnishment proceeding. Cummings solicited and secured oral prom-
ises of assistance from two other employees, John Hooks and Hoil
Winn, who were also present. The group arranged to meet at Cum-
mings' home on the following Monday to discuss the matter further.
Thereupon, Clark and others who were present went into the plant
to the polling area and voted in the election.
Approximately 3 or 4 days before the election, Clark received
notice that one of his creditors was going to garnishee his wages.
His wages had been garnisheed on other occasions in the past 8 years
of Clark's employment with the Employer. About a month before
H. W. LAY & COMPANY, INC. 1389
the election, Clark was warned by an official of the Employer that
he would be fired if he became involved in any more garnishment
proceedings. During the Petitioner's organizing campaign among
the Employer's employees, Clark evinced as much interest in the
campaign as any of the other interested employees and was just as
active. He attended all union meetings, including one held a few
days before the election and at no time expressed opposition to the
Petitioner. In fact, Clark had boasted to his fellow employees that
he was instrumental in the initial organization of Local 728 of the
Petitioner, while he was working for another company. The record
also shows that Clark had borrowed money from fellow employees on
many other occasions and that Cummings had loaned him as much
as $50.
The hearing officer rejected Clark's version that on the morning
of the election, after he told Cummings about the garnishment prob-
lem and that he was afraid he would lose his job if he voted for the
Petitioner, he was told by Cummings "we'd take care of it for you"
and for Clark to "go along" with Cummings and the other employees
who offered to help, "on the vote." In this regard, the hearing
officer credited the testimony of Cummings, Winn, Hooks, and an-
other employee who was present during the conversation, whose
combined version was to the effect that although Clark was con-
cerned about his job regardless of how he voted, at no time did
Cummings or any other employee who was present ask Clark to vote
for the Petitioner. On the basis of the entire record, we agree with
the hearing officer's finding that the offer to assist Clark was not
made in exchange for his vote for the Petitioner, but as a friendly
gesture on the part of his fellow employees.' Accordingly, we find
no merit in the Employer's objection. As we have found that the
offer of assistance to Clark was not improper, we deem it unnecessary
to consider whether any subsequent action 'on the part of the Peti-
tioner ratified or condoned the conduct of Clark's fellow employees.
Having found the Employer's objection to be without merit and
as the Petitioner has received a majority of the valid ballots cast
in the election, we shall certify it as the collective-bargaining repre-
sentative of the employees in the appropriate unit.
[The Board certified Truck Drivers and Helpers Local Union
No. 728, International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America as the designated collective-
bargaining representative of the employees in the unit hereinabove
found appropriate.]
Cf. Lobue Bros., 109 NLRB 1182.