Lowery Trucking Co.

National Labor Relations Board - Board Decisions

Jun 26, 1969

177 N.L.R.B. 13 (N.L.R.B. 1969)

LOWERY TRUCKING CO.
Lowery Trucking Co. and Ace-Alkire Freight Lines,
Inc. and Meat and Highway Drivers, Dockmen,
Helpers and Miscellaneous Truck Terminal
Employees Union Local No. 710 ; affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America . Case 18-CA-2626 (Formerly
13-CA-8357)
June 26, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND ZAGORIA
On April 1, 1969, Trial Examiner George Turitz
issued his Decision in the above-entitled proceeding,
finding that the Respondents had engaged in and
were engaging in certain unfair labor practices, and
recommending that they 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 Respondents had not
engag•.-d in certain other unfair labor practices
allege i in the complaint and recommended dismissal
as to them. Thereafter, Respondents filed exceptions
to the Trial Examiner's Decision and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings, conclusions,' and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) 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 Respondents, Lowery Trucking Co.,
'In essential agreement with the Trial Examiner we conclude that the
Respondents violated Sec . 8(a)(5) of the Act by refusing to recognize and
bargain with the Union as the majority representative of their employees in
an appropriate unit and thereafter embarking upon a campaign of unfair
labor practices to thwart the Union . Respondents , in fact, were successful,
for a majority of employees signed a petition revoking the Union's
authority to bargain for them . Clearly those unfair labor practices had the
effect of undermining the Union ' s majority and their nature was such as to
preclude the holding of a fair election. Accordingly, we find that
Respondent violated Sec 8(aX5) and ( I) of the Act, and that the policies
of the Act will best be effectuated through a bargaining order as a remedy
for such conduct . N L.R.B. v. Gissell Packing Co., 398 U S. 336.
13
Council Bluffs, Iowa, and Ace-Alkire Freight Lines,
Inc., Des Moines, Iowa, their officers, agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Decision.
IT IS HEREBY FURTHER ORDERED that the complaint
herein be, and it hereby is, dismissed insofar as it
alleges violations of the Act not found herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
GEORGE TURITZ, Trial Examiner: Upon a charge filed on
April 1, 1968, by Meat and Highway Drivers, Dockmen,
Helpers and Miscellaneous Truck Terminal Employees
Union, Local No. 710, affiliated with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Local 710) and served on April
2, 1968, upon Respondents, Walter Lowery and Ruth
Lowery, partners, doing business under the name Lowery
Trucking Co. (Lowery Trucking) and upon Respondent,
Ace-Alkire Freight Lines, Inc. (Ace), the General Counsel
of the National Labor Relations Board (the Board),
through the Regional Director for Region 18 on
September 16, 1968, issued an amended complaint and
notice of hearing against Respondents. Ace and Lowery
Trucking filed their respective answers in which each
denied that it was the employer of the employees involved
and denied all allegations of unfair labor practices. A
hearing was held on November 14, 15, 18, and 20, 1968,
at Council Bluffs , Iowa , before the Trial Examiner named
above. The General Counsel and Respondents were
represented by their respective counsel at the hearing; the
Charging Party was represented by its organizer. The
General Counsel and Respondents have filed briefs with
the Trial Examiner.
Upon the entire record' and from his observation of the
witnesses the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENTS
Respondent Ace-Alkire Freight Lines, Inc., is a
Missouri corporation having its principal place of business
in Des Moines , Iowa , and having eight freight terminals in
various States of the United States, including terminals in
Des Moines, Iowa, Minneapolis , Minnesota , and Omaha,
Nebraska . It is engaged as a motor carrier in the
interstate transportation of commodities pursuant to
certificates granted by the Interstate Commerce
Commission (the ICC). Ace annually receives in excess of
$50,000 for the interstate transportation of goods. It is
found that Ace is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
National Labor Relations Act (the Act).
Respondent Lowery Trucking Co. is a partnership, the
co-owners of which are Walter Lowery and Ruth Lowery,
his wife . It has a terminal and shop in Council Bluffs,
Iowa, where it is engaged in the business of leasing trucks
to motor carriers certificated by the ICC. Lowery
Trucking annually receives in excess of $250,000 for
leasing its trucks to carriers engaged in the interstate
'Pursuant to Respondent Ace's unopposed motion , it is ordered that the
transcript of testimony be corrected as indicated in Appendix A annexed to
this Decision [Omitted from publication.]
177 NLRB No. 7
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transportation of commodities . It is found that Lowery
Trucking is an employer engaged in commerce within the
meaning of Section 2 (2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Meat and Highway Drivers, Dockmen , Helpers and
Miscellaneous Truck Terminal Employees Union, Local
No. 710, affiliated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of
America , is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
furnish and bear the expense of license plates, running and
maintenance, fuel and maintenance of refrigeration units
hauled by the leased tractors, including fuel for units it
did not own, was to pay bridge and road tolls, fines
resulting from violation of speed , weight, ICC, or other
regulations , and was required to provide itself with public
liability and property damage insurance covering such
times as the leased equipment was not in use by Ace. The
lease provided that the 32 cents per mile was
"compensation to the lessor for the use of the equipment
and driver r i v e r .
B. The Relationship Between Respondents and the
Employees
The principal issues litigated at the hearing were: (a)
whether Respondents each coerced the employees; (b)
whether each Respondent was an employer of the
employees involved; (c) whether they were joint employers;
(d) whether the employees involved constituted an
appropriate unit; and (e) whether a demand for bargaining
communicated only to Ace was a sufficient basis upon
which to predicate a finding of a refusal to bargain in
violation of Section 8(a)(5).
A. The Relationship Between Ace and Lowery
Trucking
On June 30, 1967, Ace Lines, Inc. merged with Alkire
Truck Lines, Inc. (Alkire), into Ace-Alkire Freight Lines,
Inc., the present Respondent, Ace. Effective July 1, 1967,
Ace took over the operation of Alkire freight terminals,
including the Omaha terminal . The terminal manager,
Myers, was retained but the dispatcher was replaced. Ace
continued the operation of the various Alkire routes,
among them the hauling of raw meat in refrigerated
trailers from some eight packing plants in Omaha to their
respective customers in Chicago. The great bulk of the
meat was hauled in equipment leased to Alkire by Lowery
Trucking , a relationship that began in 1962 , and Ace dealt
with Lowery Trucking on the basis of the latter's lease
agreement with Alkire. The tractors bore the legend,
"Walt Lowery leased to Ace-Alkire Freight Lines,"
together with Ace's ICC permit numbers. Except for the
leasing of equipment by Lowery Trucking to Ace, there
was no business or other connection between the two firms
or their respective owners . Lowery Trucking leased
tractors and trailers to approximately seven companies
and had some 100 trucks leased out.
On October 1, 1967, Lowery Trucking and Ace
executed a new lease having the same terms as the Alkire
lease except that Lowery Trucking' s compensation was
increased from 31 cents to 32 cents per mile. The lease
applied to 14 tractors and 16 trailers, each specifically
identified in the lease by serial and title numbers. Among
the provisions were the following : After 30 days the lease
was subject to termination by either party upon 90 days'
notice . Lowery Trucking delivered complete possession
and control of the leased equipment to Ace for use
wherever Ace was authorized to haul property by the ICC
or other regulatory body, and all shipments were to be
handled , billed and delivered in Ace' s name . Ace was to
pay for telephone calls authorized by its personnel and for
weighing-scale fees for gross loads in excess of 33,000
pounds . It was to maintain "all necessary insurance
coverage" when property was transported with its
authority, and it was to furnish workmen's compensation
insurance covering the drivers . Lowery Trucking was to
Hiring: Lowery Trucking hired drivers only for specific
tractors on lease; the jobs were referred to as "seats." It
had a separate payroll for the drivers assigned to each
lessee . Wolf, who did the hiring, testified credibly that
Lowery Trucking received written applications from
potential drivers for the Ace run, interviewed them, and
made preliminary checks. He stated that when a man met
Ace's minimum requirements - 3 years' over-the-road
driving, 25 years of age and suitable character - he was
sent, along with a copy of his application,2 to Ace which
had the final word as to hiring a driver for the particular
run involved. However Ace never rejected a driver sent by
Lowery Trucking. Wolf ascribed this to his care in
meeting Ace's requirements. The driver was also required
to bring to Ace a copy of the report on his ICC-required
physical examination; if he did not have one sufficiently
up-to-date, Wolf instructed him to have such an
examination and to bring the report to Ace. Ace had no
payroll for the drivers of the Lowery trucks. Some men
first applied for jobs directly to Ace, but whenever the job
involved driving the Lowery equipment, Ace sent them to
that firm to file their applications . Lowery Trucking also
received applications without regard to particular lessees.
When a suitable seat was open, Wolf got in touch with the
applicant and sent him to Ace or whatever other lessee
had the opening.
Finances: The Lowery drivers who worked for Ace
received all direct monetary compensation and
reimbursement from Lowery Trucking. This included their
basic wage , which was based on mileage covered, and
also, when it was granted , a $5 payment which was made
upon presentation of a hotel receipt when drivers had to
remain overnight in Chicago. The mileage payment was
Lowery Trucking's obligation to the employees; the
layover payment was Ace's obligation, and Lowery
Trucking was reimbursed by Ace.' All these payments, as
well as the rental payments, were made on the basis of the
drivers' manifests which, with attached vouchers, showed
the mileage covered and the incidental expenses . Lowery
Trucking included its Ace drivers in its hospitalization
insurance program . When Ace took over the Alkire
operation, Lowery Trucking was paying 8 cents per mile.
When the new lease was discussed by Walter Lowery and
Easter , president of Ace, in September 1967, Lowery told
Easter that he wanted his mileage rate increased so that
he could increase the drivers' pay. The increase from 31 to
32 cents per mile was agreed to and Lowery Trucking
then increased the drivers' pay to 8-3/4 cents per mile.
'For reasons not apparent in the record some drivers were required to
make out additional applications for Ace
'For a short time Ace recompensed the drivers at the rate of $2.50 per
hour for unloading in Omaha , but the record is not clear as to whether the
LOWERY TRUCKING CO. 15
Duties: Pursuant to ICC regulations Ace used no
drivers unless within 3 years they had been certified as
physically fit by a licensed physician or osteopath. Ace
required the Lowery drivers to maintain and turn in to
Ace a daily log required by the ICC showing times and
points of departures, arrivals, fueling stops, and layovers,
and also showing all periods of consecutive driving, as
well as cumulative driving hours on a 24-hour and 8-day
basis. These logs were reviewed by Ace, which reported to
the ICC any violations they disclosed . Ace's safety
director periodically issued safety literature to the Lowery
drivers , and from time to time he discussed safety matters
with various drivers directly. In about May 1968 Ace
issued a safety bulletin addressed to "all road drivers,"
which included the Lowery drivers, instructing them:
That it will be his responsibility, when dispatched, to
notify the dispatcher whether or not he can accept a
particular run and to make this trip without being in
violation of the ICC rules. You are not to accept a
dispatch if you do not have the hours of service
[available] and cannot perform your duties under the
prescribed rule ....
Ace's insurance carrier operated road patrols which
reported to Ace violations of regulations by the drivers.
Ace's dispatcher would notify a driver by telephone where
and when he was to pick up his next load. Normally 2 to
4 hours' notice was given . After picking up his tractor at
the Lowery terminal the driver drove to the Ace terminal
for the manifest and to the shipper for his already loaded
trailer, and then left for Chicago. Drivers were expected to
make the trip within a maximum of 11 hours; Ace would
request Lowery Trucking to replace a man who
consistently failed to meet that maximum. Upon arrival in
Chicago the driver reported to the Ace terminal there his
manifest number , his time of arrival, and the temperature
of the meat. He reported again after his cargo was
unloaded, after which he proceeded to a truck stop known
as Truckers' Paradise, where his truck was refueled and
the trailer steamed. When that was completed, the driver
again reported to the Chicago terminal and received
instructions as to a return load, including the pickup time,
the delivery point in Omaha, and, usually, whether the
trailer could simply be dropped there or had to be
guarded by the driver until turned over to the persons who
were to unload . In Omaha, after disposing properly of the
loaded trailer, the driver returned the tractor to the
Lowery terminal and delivered his manifests to Lowery
Trucking, which mailed a copy to Ace. He then went
home to await his next dispatch . Maintenance work on
the tractor was performed by Lowery personnel; drivers
reported to Lowery Trucking any need for repairs. Ace
required drivers to perform additional duties , such as
monitoring the refrigeration units en route and defrosting
them from time to time ; helping unload their trailers in
some cases on the return trip; and moving trailers from
point to point in the Omaha area.
Termination of employment: Myers, Ace's terminal
manager , testified that Ace had a working arrangement
with Lowery Trucking that the latter would remove from
the Ace operation any employee whose performance was
proved unsatisfactory . However, on September 10, 1968,
Myers gave a Lowery driver a note warning him that the
Ace dispatcher would discharge him if he again failed to
follow the dispatcher's instructions . In early November
1968 Myers told Slotten, a Lowery driver whom he saw
fighting with the dispatcher, that he was through, and
men received the money directly from Ace or through Lowery Trucking.
when Slotten asked whether that meant he was fired,
Myers said yes." Slotten drove his truck to the Lowery lot
and reported to Wolf, asking whether Myers had called.
Told that he had, he told Wolf he would remove his
personal property from the tractor the next day, which
Wolf assented to, and Slotten left. Slotten told Walter
Lowery that he had been fired and asked what he could
do about it, saying that he did not know what he would
do for a job. Lowery replied that Slotten had brought it
on himself, that he could do nothing, and that if Ace fired
him he was automatically out of a job. Subsequently the
dispatcher and Slotten adjusted their dispute and Myers
called Slotten back to work. He went out on his next turn
with no loss of assignment. In August 1968 Ace was
informed that one of the Lowery drivers had a woman
with him in his cab. Ace called Wolf and told him the
man was not working any more.
Concluding findings as to the employment
relationship
Ace: The Lowery drivers performed virtually all their
duties pursuant to detailed instructions from Ace, not
Lowery Trucking. Moreover, while they could select the
particular roads they traveled between Chicago and
Omaha, this did not mean that they were not under Ace's
control while on those trips. Ace limited them to a certain
maximum time, and it was Ace that had, and exercised,
the responsibility for encouraging safe driving habits and
requiring the drivers to adhere to speed and weight
regulations, as well as the ICC regulations designed to
maintain their driving ability. In addition, it was Ace that
specified to the drivers when and where loads were to be
picked up both in Omaha and Chicago, that, after
completion of the return runs, required the drivers to
move various trailers about in Omaha, to guard certain
loads, and in some cases to assist in unloading , and it was
Ace that decided whether they were to be paid extra for
these services. All these things were done by Ace with a
view to maintaining its own, not Lowery Trucking's,
standing with its customers , its insurance carrier , and with
the ICC. Plainly Ace' s control, in its own interest, of the
drivers' day-to-day operations was that of an employer
over his employees. Ace also had substantial control,
again in its own interst, of the employees' tenure of
employment. While it never rejected a driver hired by
Lowery Trucking, it had the right to do so; the Trial
Examiner does not credit Myers' testimony that Ace could
not reject a driver sent by Lowery Trucking. Moreover
Ace did terminate two Lowery drivers and it issued a
written warning of possible discharge to a third. It is
found that the relationship between Ace and the Lowery
drivers working for it was that of an employer and
employees. See Troupe Leasing Co. and Chemical
Leaman Tank Lines, Inc., 174 NLRB No. 37; cf. also
Local No. 24, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America v.
N.L.R.B., 266 F.2d 675 (C.A.D.C.), denying enforcement
of 120 NLRB 1103.
Lowery Trucking: While Lowery Trucking's interest in
and control of the drivers' day-to-day work was not so
extensive as Ace's, it was substantial. The drivers were
required to report to Lowery Trucking any repairs that
were needed. It was Lowery Trucking's expensive
equipment that was entrusted to the men's care, and it
The Trial Examiner has credited Slotten ' s version of the incident over
Myers'.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was Lowery Trucking that would have borne the cost of
poor driving that resulted in wastefulness or in damage to
the equipment , as well as the cost of fines for violations of
speeding, overweight, and other regulations . It must be
inferred that these considerations played an important
part in Lowery Trucking' s decision as to whether or not
to hire a driver for an Ace seat. Most important , Lowery
Trucking determined and bore the cost of wages. In view
of Lowery Trucking' s control on its own behalf of these
important aspects of the employment relationship, it is
found that its relationship with the drivers was that of
employer and employees.
Both Respondents had a direct interest in and
responsibility for the drivers' performance as regards
speeding , overweight regulations , and en-route
maintenance of refrigeration equipment . Both participated
in the hiring process, Lowery Trucking directly and Ace
by reviewing employment applications and through its
power to reject and/or immediately discharge any driver.
Moreover, while Respondents purported to separate the
control of the drivers' labors from control of their
compensation , such separation does not realistically
represent the actual situation . Thus, as discussed below,
when Lowery sought an increase in mileage rates in
September 1967, he explained to Easter that it was to
be used in large part to increase the wages of the men
working for Ace; and Ace itself increased the drivers'
wages when it consented to pay them for unloading, a
task formerly included in the work performed in return
for the mileage rate . In view of their sharing of control
over labor policies affecting the employees in the
appropriate unit, it is found that Ace and Lowery
Trucking were joint employers of said employees. See
Manpower, Inc., of Shelby County and Armour Grocery
Products Co., a Division of Armour and Company, 164
NLRB No. 37.
C. Sequence of Events
1. Organization of the employees and seeking of
recognition
In August 1967 Mischan , a Local 710 organizer, began
to solicit designation cards from Ace's meat haulers at the
Truckers' Paradise Truckstop in Chicago. As found
below , on February 29, 1968 , and thereafter he had cards
from a majority. That day he informed Richard Wynant,
Ace's vice president, that Local 710 represented the meat
haulers and that he wished to speak with someone having
authority to negotiate and sign contracts for Ace . Wynant
instructed Mischan to contact the Motor Carriers Labor
Advisory Council (the Council), stating that that
organization was Ace' s "labor representative" and that
after Mischan spoke to them , they would contact Ace.
Mischan telephoned the Council the same day and the
next day, March 1, he met with John and Frank Bridge
the two officers who administered its affairs. Frank
Bridge arranged a meeting for March 8 but, with Local
710's consent, he rescheduled it to March 15 . Mischan
appeared for the March 15 meeting and spoke with John
Bridge , but no official of Ace appeared . Bridge told
Mischan that Ace did not want to meet because the men
were not Ace employees, and he said that Ace had a
contract with two other Teamster locals . Bridge wrote to
Ace on March 15 as follows:
Referring to our telephone conversation of this
morning , the officers of Local 710 in Chicago have
offered to show us the signed cards of all the Lowery
drivers - fourteen total - moving perishable products
on Ace-Alkire equipment, either leased or owned, into
and out of the Chicago area.
You may, if you decide to do so, elect to ask the
National Labor Relations Board for a supervised
election and, if the majority of the men who have signed
the cards vote to have Local 710 in Chicago represent
them in negotiations, you will be obligated to recognize
the officers of that local and proceed with negotiations
designed to work out a contract, subject to certification
by the Board.
If you refuse to negotiate, it would be my
recommendation that you discontinue hauling the meat
and other perishable products.
On Wednesday, March 20, 1968, Local 710 received a
letter from Ace refusing its request to negotiate a contract
on the grounds that the drivers were employees of Lowery
Trucking, not Ace, and that Ace did not believe that
Local 710 represented "a majority of employees in an
appropriate unit." It suggested that a petition be filed
with the Board.
On Monday, March 25, 1968, Local 710 picketed the
Ace trucks at the Truckers' Paradise and at all places in
Chicago where they stopped to load or unload. Apparently
all the meat coming from Omaha was delivered, but no
loads were taken on, and all the trucks in Chicago that
day returned to Omaha empty.' On March 26 Ace filed a
charge in Case 13-CP-173 alleging, inter alia , that Local
710 was picketing with an object of forcing or requiring
Ace or Lowery Trucking to bargain with it. Ace
suspended the meat-haul operation; it was not resumed
until April 9.'
2. Interference , restraint , and coercion by Ace
On Wednesday, March 27, the meat-haul drivers
assembled at the Lowery terminal and met with Lynn
Easter, Ace's president , his son , Richard , its operations
manager, and Phillips, Ace's attorney. Walter and Ruth
Lowery and Truman Wolf, Lowery Trucking's
"dispatcher ," were also present . The record does not show
who initiated the meeting .' Before meeting with the drivers
Easter had a conversation in the office with Walter
Lowery. Either in that conversation or in another
conversation with Lowery that same day Easter said that
. he didn't know how, maybe, he could afford to run
it if it went union."
The Ace officials went outside, where all the drivers
were assembled. Easter indicated that he understood that
the men wished to discuss some problems . At some time
'Ace attempted to prove that its trucks were physically blocked by Local
710 pickets. There is no competent evidence that any truck was blocked
and several drivers testified positively that their trucks were not hindered in
any way from moving at will.
'The Regional Director refused to include in the Complaint any
allegation , as charged by Local 710, that the suspension was
discriminatory . In sustaining such refusal the General Counsel did not
adopt the reasons given by the Regional Director , but stated that , in view
of the perishable cargo involved , the burden of establishing that the
shutdown was due to nonbusiness considerations could not be sustained
'Most drivers who testified stated that they heard about the meeting
from other drivers . Slotten testified that Womble told him that Easter
wanted to meet with the men. Gates testified, "Truman told us that Mr.
Easter was coming to Omaha to talk with the fellows ." Easter testified
that Myers had told him the day before that four or five drivers had asked
if he could come. Myers did not testify about any aspect of the meeting.
Wolf testified, "the drivers called this meeting," but he gave no indication
of who the particular drivers were or what the basis was for his statement
LOWERY TRUCKING CO.
during the ensuing discussion Mutchie stated that all the
men had signed cards for Local 710, and this statement
was not controverted. In the welter of complaining
discussion focused on two items, namely, the fact that the
men received nothing extra when Ace required them to
remain overnight in Chicago awaiting a return load, and
the fact that they had to spend much time in Omaha in
connection with' loading and unloading, for neither of
which'they received extra compensation or reimbursement.
Easter said that he thought they were being paid $5 for
each layover in Chicago, and he expressed surprise when
told that it was not being received by the men. Easter said
that the meat-haul "operation" was a new one for Ace
and that he was "taking a good look at this." He said, "if
it doesn't start doing better, we are still sending a lot
trucks back empty as we aren't able to get them loaded.
We are going to close it up."
During the time that Ace's officials met with all the
employees there was so much simultaneous talk as to
make most of the discussion unintelligible, and the
officials withdrew to the Lowery office. Shortly thereafter
Womble, Ayers, Mutchie, and Hunt, at Wolf' s suggestion,
went in to discuss matters further under less confusing
circumstances.' The substance of the discussion in the
office concerning working conditions was similar to that
outside. However, Easter was able to discuss with the men
what compensation for loading would cost Ace. Ayers,
Hunt, and Mutchie testified, but Easter denied, that
Easter said that he would close the operation down before
dealing with Local 710. Womble testified that he did not
recall that statement, but he did recall Easter saying that
he was taking "a close look" at the operation. Mutchie
testified that the reason given by Easter was that Ace was
already dealing with a union in Des Moines and would not
negotiate with a Chicago union . Ace's attorney cautioned
the employees that it should be very clear to the drivers
that Ace was not threatening to shutdown any operation
and that it was not making any promises of any kind to
the drivers. Ayers, Hunt, and Mutchie testified as to
Easter's statement convincingly. Moreover, their version
receives a degree of corroboration from Lowery's
testimony that on that same day Easter told him ".
that he didn't know how, maybe, he could afford to run it
if it went union." It is found that Easter did tell Ayers,
Hunt, and Mutchie, and possibly Womble,' that he would
close the operation down before dealing with Local 710,
and that he said that Ace was already dealing with a
union in Des Moines and would not negotiate with Local
710.
Meanwhile some of the employees had left the lot, but
most remained. The employees who had spoken to Easter
emerged and informed them that Easter was ready to deal
with the Des Moines local on their behalf but would not
deal with a Chicago local since he did not want to have to
go to Chicago every time a labor dispute arose. After the
meeting two of the drivers, Gates and Womble, discussed
the situation. Gates testified, "We got to discussing it and
just between me and him, we thought maybe that if we
had a petition, . . . maybe we could ... drop 710, because
were we afraid that if we didn't Mr. Easter was going to
'They were not elected but went in either on their own initiative or at the
suggestion of other employees ; and not all went in at one time. During part
of the time Womble gave a statement to Phillips about the events in
Chicago on March 25
'It is possible that Womble failed to hear this threat because he was
busy conferring with Phillips when that particular statement was made It
is also possible that he was being less than frank ; he impressed the Tnal
Examiner unfavorably as to credibility.
17
pull the trucks off and everybody would be out of a job."
On March 29 they consulted Wolf, who, at their request,
drafted the following language:
March 29, 1968
TO WHOM IT MAY CONCERN
THIS IS TO ADIVSE ALL PARTIES CONCERNED, WE, THE
UNDERSIGNED DO HEREBY DEMAND THAT OUR NAMES BE
WITHDRAWN FROM A PETITION WHICH WE SIGNED WITH
TEAMSTER LOCAL NO. 7 10.
With Wolf's acquiescence they asked a clerical employee
of Lowery Trucking to type it up and she did so. Wolf
cautioned the men not to disclose that he had composed
the petition. Womble, usually accompanied by Gates,
approached the various drivers and solicited their
signatures, urging that that would be a means of keeping
their jobs and getting back to work. Ten of the 14 drivers
signed the petition by about March 31. Womble then
mailed it to Ace in Des Moines, where it was received on
April 1 or 2.10
Walter Lowery testified that he discussed with Easter
the question of layover pay the day of the meeting with
the employees, but, he said, "there was nothing that came
out of it at that time." In a conversation shortly before
the April 9 resumption of operations, he testified, Easter
said to him, "Well, we thought we had been paying it all
the time," to which Lowery replied that he had not known
it was supposed to be paid and that Ace had never been
billed. He said that he told Easter he would pay it
thenceforth. Lowery testified further as to that
conversation as follows:
All I remember about it, we were trying to make
everybody as happy as we could on the operation. When
you get your trucks down for two weeks like myself and
I am not making any money, it cost me eight or ten
thousand for my trucks sitting on the lot, so I am
interested in getting back to work and the drivers were
surely interested in getting back to work. I tried to talk
and get everything done I could get done.
During the first few days of April Myers told various
Lowery drivers that when operations were resumed they
would receive $5 when laying over in Chicago and $2.50
per hour for unloading in the Omaha area. Shortly after
April 9, when operations were resumed, drivers did receive
the unloading and layover pay, and their mileage was
increased by Lowery Trucking to 9 cents per mile." At
least some of the drivers first heard from Myers about the
mileage increase.
Concluding findings as to interference restraint and
coercion by Ace.
The evidence is uncontradicted that Easter told the
employees at the outside meeting on March 27 that he
would close down the meat-haul operation. While the
warning may not have been expressly coupled with a
reference to Local 710 and its bargaining demand, the
circumstances were such as necessarily to imply such
coupling. Easter knew that Local 710 represented the
employees, he was refusing to negotiate with Local 710,
"G C Exh. 8. Womble testified that he also gave a copy of the signed
petition to Wolf, but Wolf, as well as Walter Lowery, denied ever receiving
it.
"The unloading payments were discontinued on April 22, 1968 Further
facts as to the mileage increase are set forth below in subsection 3.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and he had charged the day before that Local 710 was
picketing his trucks for recognition. The employees had
never been informed of any possibility of shutdown before
Local 710 came into the picture. Thus Easter was letting
the employees know that because they had chosen to
bargain collectively through Local 710 their jobs were in
danger. Plainly he was seeking to undermine Local 710
and destroy its majority by telling the employees that
Respondent had the power to, and would, deprive them of
employment if they persisted in attempting to bargain
collectively through a representative of their own
choosing. When Easter spoke inside to Mutchie, Hunt,
Ayers, and possibly Womble, he was more explicit; he
stated in so many words that he would close down rather
than negotiate with Local 710. This message was duly
conveyed to the other employees, as Easter expected. It is
found that Ace warned the employees that it would shut
down the meat operation before dealing with Local 710. It
is further found that Respondent thereby interfered with,
restrained and coerced the employees in exercise of their
rights under the Act and sought to undermine Local 710's
majority, all in violation of Section 8(a)(1) of the Act.
Easter's statements to the employees on March 27 that
he thought they were already receiving layover pay, and
his apparently serious discussion with some about the
costs that would be involved in granting unloading pay,
may have seemed to imply to the employees that these
benefits were distinct possibilities. Nevertheless he made
no promise. This was made especially clear as to the
layover pay by Walter Lowery, who testified that on
March 27 Easter insisted that the layover money was
supposed to be paid all along but that "nothing ... came
out of it at that time." Moreover such promises would
have contained a degree of implication that Ace was going
to continue the meat operation, which would have run
counter to Ace's main purpose at that time of impressing
upon the employees that their jobs were in jeopardy.
Subsequently, after Ace had in its possession the
revocation petition which demonstrated that 10 drivers
had responded to its threat of shutdown by withdrawing
from Local 710, Easter did instruct Lowery to start
reimbursing employees for layovers, and Myers informed
the various employees of the institution of that benefit as
well as the unloading pay.12 It is found that Ace promised
and instituted payment for layovers and for unloading in
order to induce the employees to abandon, and refrain
from resuming, their efforts to bargain collectively and
that Ace thereby violated Section 8(a)(1).
3. Interference , restraint, and coercion by Lowery
Trucking
While most of the general discussion on March 27 both
inside and outside was with Easter, the men also spoke
with Ruth and Walter Lowery, and one of the drivers told
Lowery that all the men had signed union cards in
Chicago. Ayers and Mutchie asked Walter Lowery if they
could be placed on other runs. Ayers testified that Ruth
Lowery replied that they did not want to place him
elsewhere because he was a union sympathizer and might
start the same thing again. Ruth Lowery's version of her
"it is found that Ace did not authorize layover payments prior to the
organizational activities As Ace did not inform the men that they were
entitled to the payments and as no adequate reason appears why Lowery
Trucking would have withheld the payments or their announcement if in
fact they had been authorized , the Trial Examiner has credited Lowery's
testimony over that of Easter.
reply was that Lowery Trucking could not fire other
drivers to give them jobs. Ayers impressed the Trial
Examiner as credible and it is found that Ruth Lowery
made the statement as he testified." Robbins testified that
the day before or after the March 27 meeting he dropped
in at the Lowery coffee room and saw, among others, Mr.
and Mrs. Lowery. He stated that during a general
discussion of the shutdown and of whether Ace would
continue the meat run, Ruth Lowery said that if Ace
discontinued the meat operation, ". . . the Alkire drivers
may as well look for another job because they won't have
a job in their trucks." Ruth Lowery did not testify about
any remarks she might have made in Robbins' presence.
While Ruth Lowery's statement standing alone is
susceptible of a noncoercive interpretation," the placing of
five or six drivers during the shutdown establishes that it
was more sweeping in both substance and tone than called
for if its purpose had been only to point out the actual
probabilities as to employment. In view of this fact, and
in light of Mrs. Lowery's statement to Ayers, it is found
that her statement to Robbins was calculated to threaten
reprisals against the employees for insisting upon their
right to bargain collectively. It is found that Lowery
Trucking warned employees that drivers favoring Local
710 would not be given work with other customers.
Robbins also testified that on the occasion already
referred to Walter Lowery". . . said before he ... [would]
put up with this kind of stuff, he would pull his trucks
off." Lowery failed to deny what Robbins testified to.
However, in view of Robbins' vagueness as to the exact
context of the remark, it is found that the General
Counsel has failed to establish thereby that Walter
Lowery threatened to shut down the Omaha-Chicago, or
any other, run before dealing with Local 710. Brittain
testified, and Lowery denied, that during the outside
meeting on March 27 Lowery said that "he would take his
trucks off . . . if it went union ." In the absence of
corroboration, and in view of the extreme confusion at the
outside meeting, it is found that the General Counsel has
failed to establish that the statement was made. Slotten
testified that about December 15, 1967, he heard a
non-Ace driver ask Walter Lowery if he would put some
newly acquired trucks on a union run, and that Lowery
replied that he would take them off first. This was denied
by Lowery, who pointed out that three of his customers,
which he named, were unionized. Slotten's testimony as to
the incident was vague and the Trial Examiner has
therefore credited Lowery's denial. It will be
recommended that paragraph 12 of the Complaint be
dismissed.
Walter Lowery's discussion with the drivers about the
possibility that Ace would permanently shut down the
meat operation contained no threat of reprisal by Lowery
Trucking. There is no evidence that Lowery, rather than
the men, initiated these discussions. Moreover the men
already knew from Easter that Ace was threatening such a
shutdown; the possibility was an established fact. It will
therefore be recommended that paragraph 14 of the
Complaint be dismissed. Compare United States Rubber
Company, 160 NLRB 661, 666, fn. 11.
"The Trial Examiner has noted that Mutchie testified that he recalled no
conversation about the Union when Mr and Mrs . Lowery were both
present
"Walter Lowery admitted discussing with various drivers the fact that if
Ace shut down , Lowery Trucking would probably be unable to place
drivers elsewhere but he said that the reason he gave was that it had no
customers using the particular kind of equipment used by Ace.
LOWERY TRUCKING CO. 19
Lowery testified that shortly after the men went back to
work he, with no suggestion from Easter, decided to
increase their compensation to 9 cents per mile. He
testified, "and I told Mr. Easter I was doing this. The
drivers should be a little more happy and everything else if
we give them a little more money." He also testified that
.. the events that took place," such as the March 27
meeting, had nothing to do with his decision, and that the
reason he gave the increase was that his other drivers were
receiving 9 cents per mile and that he "thought the boys
at Alkire deserved the same as the rest " This
testimony cannot be credited. Lowery testified that the
other drivers' pay had been increased to 9 cents
"somewhere like" November 1967. It will be recalled that
Lowery had increased the Ace drivers' pay to 8-3/4 cents
in October 1967. Plainly Lowery Trucking's policy had
been to maintain a wage differential; it was only when
Lowery decided to cooperate with Easter in persuading
the men to renounce and stay out of Local 710 that he
decided to have the Ace drivers' pay to catch up with the
others'. That these were the considerations that motivated
him is disclosed by Lowery's own testimony, quoted
above, of what he told Easter. It is found that Lowery
Trucking granted the employees a wage increase for the
purpose of discouraging membership in Local 710 and of
discouraging resort by the employees to collective
bargaining. It is further found that Lowery Trucking
thereby violated Section 8(a)(1) of the Act.
D. The Refusal To Bargain
1. The appropriate unit
The Complaint alleges that all over- the-road drivers
operating driving equipment under lease agreement
between Lowery Trucking Co. and Ace-Alkire Freight
Lines , Inc., on Omaha-Chicago runs , excluding all other
employees, guards, and supervisors, constitute an
appropriate unit. Both Respondents denied the
appropriateness of that unit.
Lowery Trucking maintained a separate payroll for the
drivers working for each of the 7 companies to which it
leased its approximately 100 trucks. However all the
drivers , as well as its clerical employees, were covered by
its hospitalization insurance program.
Ace used 62 drivers working out of its Des Moines
terminal , 22 working out of the Minneapolis terminal, and
approximately 24 working out of the Omaha terminal.
Included were 17 who operated Ace-owned equipment, 2
in Omaha and 15 in Des Moines and Minneapolis. While
the record is not clear , it would appear that these were all
the drivers regularly used by Ace in all its operations.
From time to time it also "trip - leased" cargo; i.e.,
engaged trucks for single trips.
The Des Moines and Minneapolis drivers included six
city men ; the rest drove over the road , hauling building
materials , steel articles , and farm machinery . The six city
men and nine of the over-the-road men drove Ace-owned
equipment; the rest of the Des Moines and Minneapolis
drivers were owner-operators.
At the Omaha terminal during the first half of 1968
there were 14 drivers of Lowery equipment, 5 or 6 drivers
of equipment leased to Ace by one Ira Irwin, 3
owner-operators , and I other driver for one of the 3
owner-operators . 16 All these were over-the-road drivers. In
addition there were two local, or city , drivers , both of
whom drove Ace-owned equipment. On their outbound
runs all 14 Lowery drivers hauled raw meat, including
frozen meat, exclusively; they hauled general merchandise
on the return runs to Omaha. The equipment leased by
Lowery Trucking to Ace was especially adapted to the
Omaha-Chicago meat runs; Lowery Trucking used
somewhat different equipment for hauling meat to the
West Coast. Irwin's equipment included a single
refrigerated trailer. Turner, an Irwin driver, normally
hauled meat to Chicago in that trailer, being dispatched
by Ace in rotation from the same list and in the same
manner as the Lowery drivers. Irwin's other drivers
working for Ace hauled hides, grain, and live hogs to
Chicago, and from to time Turner was taken off the meat
run in order to haul hogs to Chicago. The three
owner-operators and the driver for one of them did not
haul meat. Irwin was paid on the same basis and the same
amount as Lowery Trucking, namely, 32 cents per mile.
The various owner-operators working in the Ace system
were paid 65 percent of the amount received from Ace's
customers, 49 percent specifically stated to be for rental of
equipment, and 26 percent for drivers' wages.
At one time Ayers drove an Irwin truck hauling meat
for Alkire. When Irwin discontinued the lease of that
truck, Ayers applied to Lowery Trucking, which for about
1 month gave him fill-in assignments hauling meat for
Alkire, then assigned him to a meat-hauling truck leased
to another of its customers, and finally accepted his
application for an opening on a Lowery truck at Ace.
During the shutdown Lowery Trucking placed five or six
of the Ace drivers with others of its lessees. There is no
other evidence of transfers of drivers between Ace's
various lessors or Lowery Trucking's various lessees.
The Lowery drivers working out of Ace's Omaha
terminal constituted a readily identifiable group, carried
by Lowery Trucking on a separate payroll. Ace habitually
referred to the meat hauling as an "operation." The
drivers were also a homogeneous and comprehensive
group, having exactly the same skills and duties, including
the specialized duties of monitoring refrigeration
equipment and seeing to the steaming out of trailers in
Chicago. They made the same Omaha-Chicago-Omaha
run, carrying the same cargo on the outbound trips, and
substantially the same cargos on the return trips. They
were subject to the same uncertainties as to waiting for
return loads, sometimes having to overnight in Chicago,
and as to waiting for the discharge of their return loads in
Omaha. While subject to the same supervision as nonunit
drivers, they were dispatched on the basis of a single
rotation list which, except for Turner, discussed below,
included no other drivers. Normally they did not transfer
to other jobs at the Ace terminal or with other lessors or
lessees. In view of the foregoing, and particularly since
their basic wages were controlled by a different employer,
the meat-haul drivers had interests which, to an important
degree, were separate from those of the other drivers
working out of Ace's Omaha terminal. Similarly, since
their day-to-day work was almost entirely under the
immediate direction and control of Ace, they had interests
which to an important degree were separate from those of
the other Lowery drivers. Significantly, until impelled by
the pressure of their self-organization, Lowery Trucking
paid them a different wage.
Except for the fact that he was hired and paid by a
different lessor-employer, and occasionally hauled live
hogs instead of meat, Turner's principal interests were the
"About June 1968 Ace dispensed with the services of the four trucks and
drivers last referred to
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
same as those of the Lowery drivers." The relationship to
Irwin, however, was significant. To that extent Turner had
important interests in common with the four or five other
Irwin drivers and working out of Ace's Omaha terminal
and different from those of the Lowery drivers. It is
unnecessary to decide whether a unit including Irwin's
meat-haul driver would be appropriate or inappropriate,
or would be more appropriate than a unit including only
the Lowery drivers. Since he was on the payroll of a
different lessor, his exclusion from the unit alleged in the
complaint does not render that unit inappropriate."
Moreover Local 710 at no time indicated that it would
refuse to include Turner in the unit, and his inclusion
would have had no effect on Local 710's majority. Even if
he should be in the unit, that minor variance would not
have rendered Local 710's bargaining request inadequate.
See The Hamilton Plastic Molding Company, 135 NLRB
371, 373, enforcement denied in relevant part on other
grounds 312 F.2d 723 (C.A. 6).
It is found that the unit alleged in the complaint is
appropriate.
2. Majority
General Counsel's Exhibit 14 lists the 13 employees in
the appropriate unit on February 29, 1968; i.e., the drivers
who on that date were driving Lowery trucks leased to
Ace. General Counsel's Exhibit 15, which also contains 13
names, purports to list all employees in the unit on March
19, 1968 . However the latter list omits Edward Gates,
who drove a Lowery truck on the Ace meat-hauling run
from March 6, 1968, on. It is found that there were 13
employees in the appropriate unit from February 29, 1968,
to March 6, 1968, and 14, including Gates, from March 6,
1968, to at least April 9, 1968."
The General Counsel offered in evidence 15 Local 710
designations which bore the duly authenticated signatures
of unit employees" and which were also authenticated as
to dates . Three designations had been executed in January
1967 before a 7-month hiatus in Local 710's
organizational efforts and were rejected by the Trial
Examiner as stale . See The Grand Union Company, 122
NLRB 589, 590. Of the 12 cards received in evidence 10
had been signed between December 4 , 1967, and February
26, 1968, by unit employees on the February 29 list."
Between February 29 and March 19 two unit employees,
Wood and Morris, both card signers, were separated, and
three men , namely, Gates, Gale, and Hager were
employed in the unit, of whom only Gates, who signed a
card on March 7, designated Local 710. Accordingly, nine
of the cards received in evidence had been signed between
December 4, 1967 and March 7, 1968, by unit employees
on the March 19 list.
The three authenticated cards rejected as stale had been
"The record does not show Turner's rate of pay However , the Trial
Examiner would reach the same result in this case even if the proof had
established that his pay was the same as that of the Lowery drivers.
"Ace, in refusing to meet with Local 710, did not base its refusal on the
failure to include Turner. Its claim in this connection was on the general
ground that the unit was inappropriate and that the drivers were employees
of Lowery Trucking ; Irwin was not mentioned.
"In view of the temporary nature of the shutdown of Ace's meat-hauling
operation between March 25 and April 9, the mere fact that some drivers
were placed elsewhere by Lowery Trucking did not , without further proof,
remove them from the unit
"He also placed in evidence a card signed by Turner on March 25
"Ayers, Benton, Brittain, Hayes , Hunt, Morris, Shurtleff, Slotten,
Womble , and Wood
signed by Robbins, Mutchie, and Lyons. Slotten testified
without contradiction that during the meeting on March
27 Mutchie told the Ace representative "that we had all
signed" cards for Local 710. This statement of Mutchie's
at an open meeting plainly implied acknowledgement and
reaffirmation of his own designation of Local 710. It
rebuts the inference that because of the lapse of time and
the Union's inaction Mutchie's January 1967 designation
of Local 710 had lost its vitality. It is therefore found that
at all times material Local 710 was Mutchie's duly
designated bargaining representative. It is further found
that Local 710 had been designated by 11 of the 13 unit
employees as of February 29, and by 10 of the 14 unit
employees as of March 19.
Ace contends that all the cards are invalid as evidence
of designation of Local 710 because, inter alia, they were
secured by representation that the purpose of the cards
was to secure an election, and under the further
representation that they were to be used for the restricted
purpose of bargaining only with Ace, and not with Ace
and Lowery Trucking as joint employers. The cards read
in part as follows:"
MEAT AND HIGHWAY DRIVERS, DOCKMEN, HELPERS
AND MISCELLANEOUS TRUCK TERMINAL
EMPLOYEES UNION, LOCAL NO. 710
4217 S. Halsted St. Telephone
Chicago , Illinois 60609 CLiffside 4-3200
Date
APPLICATION AND AUTHORIZATION
Although I am aware that I am not required to sign
any dues check-off assignment, or any membership
application card, or any other Union form,
nevertheless, I desire voluntarily to sign this form and
hereby apply for membership in Local 710.
Employed by
Your Name Starting Date
Home Address Class of Work
City State S S
I am not a member of any Local Union of the I.B. of
T. Q
I am a member of Local Union No. Book
No. and I request a transfer to Local Union No.
710. It is my understanding that I am now employed
"The omitted text consists of a checkoff authorization . Ace contends
that the authorization is invalid under an Iowa statute , and that the cards
are therefore inoperative as designations of Local 710 This contention is
without merit
LOWERY TRUCKING CO.
under the jurisdiction of this Local Union and this request
is being made in accordance with the Constitution of the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America [art. xviii, Sec.
3(a)]. If agreeable to Local 710, approval of acceptance
by Local No. 710 attached hereto.
(Your Signature)
This copy is to be retained by Local Union No. 710
In support of the first claim Ace cites the testimony of
Hunt and Womble. On direct examination Hunt testified
that when he signed the card, Mischan did not tell him
anything in particular; and when pressed, Hunt replied,
"Well, I don't really recall what he did say." On
cross-examination he testified in part as follows:
Q. Did he say anything about a vote of the drivers?
A. I believe he did ask for a vote, I am not sure ....
Q. Do you remember anything else being said by him
except the vote? A. Not really, no.
Q. So that is what you remember most clearly about
your conversation that a vote was mentioned by Mr.
Mischan? A. As near as I can remember. Now, what
the vote was for, I don't know, I didn't even understand
what he was talking about when he said it, to tell you
the truth.
Q. You didn't understand what the card was about?
A. Yes, I knew what the card was for ....
Womble testified that he did not recall what Mischan had
told him about the card he signed but that he signed ".. .
with the understanding that most of the other drivers had
signed it and it was to be a vote, that this card, I was not
joining the Union or anything like that, it was to be a
vote amongst the drivers to see if we was going to join the
Union." On several occasions he answered in the
affirmative when asked if he understood that the cards
were "to get a vote," but he said that he was not referring
to a vote at the Labor Board. Mischan testified that he
told each employee that the card was an application
and authorization for membership in Local 710, and that
a majority was needed in order to get a contract. His
statements as to the purpose of the card were testified by
various employees to have been, "... for a union contract
with Ace-Alkire" (Ayers); " . . we wanted to get a
contract with Ace-Alkire . . ."(Slotten); ". . for union
representation" (Benton); "Well, he was going to try to
get a union in there, I believe" (Hunt); "... so he could
represent us in the Union . . .," and " . . so the Union
could represent [us] . . ." in dealing with Ace (Brittain);
11. . . authorizing his union to represent[me] ... with ..."
Ace (Gates). Five of the 10 cards of unit employees
received in evidence indicated that the signers were
already members of Local 710's International, 3 in
withdrawal status.
There is no evidence that Mischan represented to any
employees that the cards were for the purpose of securing
a Board election; and the Trial Examiner does not credit
Womble's testimony to the extent that he indicated that
he himself understood that the purpose of the cards was to
secure an election or any kind of vote or poll." It is found
that Mischan made no representation to the employees
that the purpose of the cards was to obtain an election or
that they would be used solely for such purpose. It is
further found that by signing the cards the employees
intended to and did designate Local 710 as their
bargaining representative.
"Such understanding , even if held, would not negate Womble's overt
action of having signed a card designating Local 710 as bargaining agent.
21
With respect to Ace's second contention, each card
received in evidence showed Ace as the signer's employer;"
and Mischan testified that in soliciting the cards . the
employer he mentioned was Ace. He stated that normally
the ICC permit holder is the company dealt with and that
he did not tell the employees that he would use the card to
seek bargaining with Ace and Lowery Trucking on a joint
basis. As to this last, he explained, "To them it is not
important." The various items of information called for
on a union membership application or authorization card
are normally intended to serve as aids to the union in
carrying on its operations; they are not intended as
limitations of the union's authority. A change with respect
to any item does not, per se, cut off the union's authority.
Thus, it is hardly arguable that a change in an employee's
home address to a nearby location would terminate the
union's authority. On the other hand, his move to a
distant place might, in appropriate circumstances, warrant
the inference that his designation of the union was no
longer operative. The same would be true of changes in
work classification or employer one has to examine all
the circumstances in order to determine whether a
designation has ceased to be effective. To the extent, if
any, that there may be any limitation on the reach of an
employer's designation of a bargaining representative, it
would be with respect to a particular job; and even then
such limitation would be found not in what is written on
the card but in all the surrounding circumstances. In
many, but by no means all, cases a change of employer
would indicate a different job, and a determination would
have to be made as to whether, in the circumstances
present, a designation had thereby lost its effectivenes.
Assuming that some designations may be limited to the
jobs filled at the time the employees signed, it is plain in
the present case that the employees were authorizing
Local 710 to bargain about their then current jobs. Ace
ascribes to Local 710 a "disdain for the statutory rights of
employees" because Mischan testified that the question
was not important to the employees. This contention of
Ace is unsound. What was in fact important to the
employees, and their purpose in signing the cards, was to
obtain the benefits of collective bargaining , whether with
Ace, with Lowery Trucking, or with both, about the jobs
they then held. This conclusion is not negated by the fact
that most of the employees considered only Ace their
employer.
It is found that on February 29, 1968, and at all times
thereafter, Local 710 was, and it still is, the exclusive
representative of the employees in the appropriate unit for
the purpose of collective bargaining with Ace, with
Lowery Trucking, and with both jointly, within the
meaning of Section 9(a) of the Act."
3. The request and refusal
It is undisputed that on February 29, 1968, Local 710,
offering to prove its majority, requested Ace to enter into
negotiations and that it continuously thereafter sought to
meet with Ace. The record also establishes that Ace
refused to meet with Local 710.
See Joy Silk Mills. Inc. v N.L R.B. 185 F 2d 732, 743 (C.A.D.C.), cert.
denied 341 U S 914.
"Benton 's card showed "Alkire."
`The revocation petition does not affect this finding. It was signed after,
and as a result of, Ace's illegal refusal to bargain and threat of shutdown.
See Frank Brothers Company v. N.L.R.B., 321 U.S. 702, 704.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ace contends , inter alia , that its refusal to bargain
"was based on its doubt that the Union was majority
representative of the drivers ." Ace made the Council its
agent for purposes of dealing with Local 710 at least with
respect to recognition . There is no evidence that the
Council had , or claimed to have, any doubt that Local
710 represented a majority of the employees . It raised no
question of majority with Mischan , and its letter to Ace of
March 15 gave no inkling of any such question; it
suggested a Board election as a right that Ace had rather
than as a means of resolving a doubt . Nor is there
credible evidence that Easter had doubt as to Local 710's
majority . At the March 27 meeting , with all employees
present, he was told that the men had all signed cards and
no one contradicted the statement ; and nothing Easter
said or did indicated the slightest doubt as to its accuracy.
On the contrary , he told the employees explicitly that he
would not bargain with their union , and that if they
insisted , they would have no jobs , all this without any
mention of the question of majority or of the desirability
of determining majority through an election . It is found
that Ace had no good - faith doubt of Local 710's majority.
Ace also contends that its refusal was based on doubt
as to the appropriateness of the unit . Here again none of
Ace's actions indicate a good-faith doubt as to such
appropriateness . It did not raise that issue in the
discussions which took place prior to its letter of March
19 finally refusing to meet with Local 710. The Trial
Examiner is convinced , and finds , that this claim was not
made in good faith . It is noted that even a good-faith
doubt as to appropriateness of unit is not a defense to a
refusal to bargain . Tom Thumb Stores , 123 NLRB 833;
see also N. L.R.B. v. My Store , Inc., 345 F.2d 494, 498,
2 (C.A. 7 ), cert . denied 382 U.S. 922 . Ace contends,
further , that it refused to bargain because the Lowery
drivers were not its employees . Like the question of
appropriateness of unit, this is basically a legal question
so that an employer refuses to bargain on such ground at
his peril, even if acting in good faith . N.L.R.B. v.
Keystone Floors , Inc. d/b/a Keystone Universal Carbon
Company, 306 F . 2d 560 (C.A. 3), enfg . 130 NLRB 4.
Finally , Ace contends that it did not violate Section
8(a) (5) because no request to bargain was made which
included Lowery Trucking . As they were joint employers,
a demand on either was sufficient to charge both. See
Cussins & Fearn Co., Inc . d/b/a Buckeye Mart , and Fir
Shoe Corporation , 165 NLRB No. 9, fn . 15 (TXD), enfd.
405 F .2d 1211 (C.A. 6); see also Ref-Chem Company and
ano., 169 NLRB No. 45 . Distinguish Lane Drug
Company v . N.L.R.B., 391 F.2d 812 (C.A. 6), cited by
Respondents, where the failure to name some operating
corporations in a request to bargain was held by the court
to result in a failure to indicate a desire to bargain
concerning the employees of such corporations. In any
event, this is a belated contention ; Ace took no steps to
have Lowery Trucking brought in to participate in the
negotiations but simply disclaimed all obligation to
bargain . Its letter of refusal and its actions on March 27
made plain that any attempt by Local 710 to attempt to
arrange joint negotiations would have been futile and,
further, that Ace's various protestations as to its reasons
for refusing to negotiate lacked good faith . It informed
the employees that if they insisted on bargaining through
Local 710, they would be out of jobs ; it entered into direct
negotiations with employees to explore the costs involved
in compensation for loading ; and it ultimately promised
and granted such compensation and compensation for
layovers without giving the employees ' bargaining
representative an opportunity to discuss the matters.
Plainly , after such procedures , the Board election to which
Ace sought to relegate Local 710 could not have been a
fair one.
As already stated , the request to bargain directed to
Ace, followed by Ace ' s refusal to bargain , made Lowery
Trucking , as a joint employer , responsible for the
violation of Section 8(a)(5). See Cussins & Fearn Co.,
Inc., supra . However , Lowery Trucking ' s violation was
more direct . By March 27 Lowery knew that a majority
of his Ace drivers had signed cards for Local 710 and that
Local 710 was seeking to bargain collectively on their
behalf. Moreover , on April 3 he had received a copy of
the charge in this case in which Local 710 alleged that it
was the drivers ' exclusive bargaining representative but
that Lowery Trucking , as well as Ace , had refused to
bargain . Nevertheless , shortly after April 9, 196$, without
notifying Local 710 of his intention or making any effort
to negotiate about the matter , he changed the employees'
wages. Local 710 had not waived its right to bargain for
the employees with Lowery Trucking and Lowery had no
reason to think so . In this connection the Trial Examiner
notes that Lowery Trucking filed an answer in this case in
which it admitted that Local 710 had requested both
Respondents to bargain . For these reasons it is found that
Lowery did not refrain from broaching the question of a
wage increase to Local 710 because it believed that Local
710 had waived its bargaining rights or because it believed
that such approach would be futile. This finding is
strengthened by the fact , already found , that Lowery
Trucking granted the increase for the specific purpose of
discouraging membership in Local 710 and of
discouraging resort by the employees to collective
bargaining . Indeed , Lowery' s own testimony as to his
conversations with Easter about layover pay and the
mileage increase-"... we were trying to make everybody
as happy as we could on the operation . . .-make it
apparent that the mileage increase was part of an effort
by Lowery Trucking to join with its co -employer, Ace, in
granting the already threatened employees benefits in
order further to coerce them not to attempt to bargain
collectively . Plainly Lowery Trucking ' s action in bypassing
Local 710 when granting the wage increase in April 1968
was a violation of its obligation to bargain as required by
the Act.
It is found that Respondents refused to bargain with
Local 710 that such refusal was based upon their rejection
of the principle of genuine collective bargaining by
employees through representatives of their own choosing.
It is further found that by refusing to bargain with Local
710 on February 29, 1968, and thereafter , by bargaining
with the employees directly on March 27, and by
instituting changes in April 1968 with respect to mileage
payment, compensation for loading , and reimbursement
for layover expenses , without bargaining about such
matters with Local 710 , Respondents violated Section
8(a)(5) of the Act. See Cussins & Fearn Co., Inc., supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
It is found that the activities of the Respondents set
forth above in section III, occurring in connection with
their operations described in section I, 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.
LOWERY TRUCKING CO. 23
V. THE REMEDY
As it has been found that Respondents have engaged in
certain unfair labor practices , it is recommended that the
Board issue the Recommended Order set forth below
requiring them to cease and desist from said unfair labor
practices and to take certain affirmative action which will
effectuate the policies of the Act.
It has been found that the acts of interference , restraint
and coercion engaged in by both Respondents were
specifically calculated to undermine Local 710 and destroy
its established majority . Merely requiring Respondents to
cease and desist in the future from such conduct would
not suffice to restore the situation to what it was prior to
those unfair labor practices . If an order were so limited,
such restoration could be accomplished only by means of
a repetition by Local 710 of its organizing campaign,
under the added burden , moreover , of residual effects of
Respondents' coercive actions; and in the meantime
Respondents would enjoy the advantages flowing to them
from their illegal actions. But a responsibility to restore
the situation to what it was prior to the unfair labor
practices , to the extent that such restoration is reasonably
possible , rests upon the Board . As Respondents were
under a duty to bargain with Local 710 before their
respective acts of interference , restraint , and coercion on
March 27 and thereafter , the appropriate remedy for the
effects of those acts apart from their violation of Section
8(a)(5), is that Respondents be required to bargain with
Local 710, and it will be so recommended . This remedy is,
of course , also appropriate to remedy Respondents'
violations of Section 8(a)(5) of the Act.
Respondents' unfair labor practices, so specifically and
calculatedly directed at the employees' basic right to
bargain collectively , indicate a disposition on their part
not to comply with the requirements of the Act . For this
reason it is recommended that Respondents be required to
cease and desist from infringing in any manner on the
rights of employees guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and of
the entire record in this case , the Trial Examiner makes
the following:
CONCLUSIONS OF LAW
1. Respondents , Walter Lowery and Ruth Lowery
doing business as Lowery Trucking Co., and Ace-Alkire
Freight Lines, Inc., are each engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. Respondents are, and at all times material have
been , each an employer within the meaning of Section
2(2) of the Act.
3. Respondents are, and at all times material have
been, each an employer of the employees in the
appropriate unit, within the meaning of Section 8(a)(5) of
the Act.
4. Meat and Highway Drivers, Dockmen , Helpers and
Miscellaneous Truck Terminal Employees Union, Local
No. 710, affiliated with International Brotherhood of
Teamsters , Chauffeurs, Warehousemen and Helpers of
America, is a labor organization within the meaning of
Section 2(5) of the Act.
5. All over-the-road drivers operating driving equipment
under lease agreement between Lowery Trucking Co. and
Ace-Alkire Freight Lines, Inc. on Omaha -Chicago runs,
excluding all other employees , guards, and supervisors as
defined in the National Labor Relations Act, as amended,
constitute a unit appropriate for the purpose of
collective-bargaining within the meaning of Section 9(b) of
the Act.
6. At all times since February 29, 1968 , Local 710 has
been, and it still is, the exclusive representative of all the
employees in the appropriate unit for the purpose of
collective bargaining in respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment, within the meaning of Section 9 (a) of the
Act.
7. By refusing to bargain collectively with Local 710 as
the exclusive representative of all their employees in the
appropriate unit, Respondent have each engaged , and are
engaging , in unfair labor practices within the meaning of
Section 8(a)(5) of the Act.
8. By interfering with , restraining , and coercing
employees in the exercise of rights guaranteed in Section 7
of the Act, Respondents have each engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
9. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and
conclusions of law , and upon the entire record in this case,
and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, Respondents, Walter Lowery
and Ruth Lowery, doing business under the name Lowery
Trucking Co., and Ace-Alkire Freight Lines, Inc., and
their respective officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Unilaterally changing the compensation or other
terms or conditions of employment of employees in the
appropriate unit without first offering Meat and Highway
Drivers, Dockmen, Helpers and Miscellaneous Truck
Terminal Employees Union ,-Local No. 710, affiliated with
International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America , opportunity to
negotiate concerning such matters.
(b) In any other manner -refusing to bargain collectively
with Local 710 as the exclusive representative of the
employees in the appropriate unit with respect to rates of
pay, wages, hours of employment, or any other terms or
conditions of employment. The appropriate bargaining
unit is:
All over-the-road drivers operating driving equipment
under lease between Lowery Trucking Co. and
Ace-Alkire Freight Lines, Inc., on Omaha-Chicago
runs, excluding all other employees, guards, and
supervisors as defined in the Act.
(c) Threatening employees with loss of employment for
joining, remaining members of, or seeking to bargain
collectively through, Local 710 or any other labor
organization.
(d) Promising or granting employees additional
compensation to induce them not to become or remain
members of, or to seek to bargain collectively through,
Local 710 or any other labor organization.
(e) In any other manner interfering with , restraining, or
coercing employees in the exercise of their rights
guaranteed in Section 7 of the Act.
2. Take the following affirmative action which, it is
found , will effectuate the policies of the Act:
(a) Upon request, jointly meet and bargain collectively
with Local 710 as the collective-bargaining representative
of the employees in the appropriate unit, and, if an
24 DECISIONS OF NATIONAL
understanding is reached , embody such understanding in a
signed agreement.
(b) Post at their respective offices and places of
business located in Council Bluffs , Iowa, and Omaha,
Nebraska , copies of the attached notice marked
"Appendix B."' Copies of said notice , on forms provided
by the Regional Director for Region 18, after being duly
signed by Respondents ' respective representatives , shall be
posted immediately upon receipt thereof, and be
maintained by them for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted . Reasonable steps shall
be taken to insure that said notices are not altered,
defaced , or covered by any other material.
(c) Notify the Regional Director for Region 18, in
writing , within 20 days from the receipt of this Decision,
what steps Respondents have each taken to comply
herewith."
IT IS ALSO RECOMMENDED that the allegations that
Respondent Lowery Trucking threatened to discontinue
supplying trucks to Respondent Ace and that it told
employees that Respondent Ace would shut down the
Omaha-Chicago run before dealing with the Union be
dismissed.
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Respectively notify said Regional
Director, in writing , within 10 days from the date of this Order , what steps
Respondents have each taken to comply herewith."
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
After a trial at which all parties had the opportunity
to present their evidence , a Decision has been issued
LABOR RELATIONS BOARD
finding that we violated the law and ordering us to post
this notice and actually do what we say in the notice.
WE WILL , upon request , meet with and bargain
collectively with Local No. 710, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , as the collective-bargaining
representative of the employees in the appropriate unit,
and if an understanding is reached , embody the
understanding in a signed agreement . The appropriate
unit is:
All over-the-road drivers operating driving equipment
under lease between Lowery Trucking Co. and
Ace-Alkire Freight Lines , Inc. on Omaha -Chicago
runs , excluding all other employees , guards, and
supervisors as defined in the National Labor
Relations Act, as amended.
WE WILL NOT unilaterally change your compensation
or any other term or condition of employment without
first offering Local 710 opportunity to negotiate
concerning such matters.
WE WILL NOT threaten you with loss of employment
for joining, remaining members of, or seeking to
bargain collectively through Local 710 or any other
labor organization.
WE WILL NOT promise or grant you additional
compensation to induce you not to become or remain
members of, or seek to bargain collectively through,
Local 710 or any other labor organization.
WE WILL NOT in any other manner interfere with,
restrain , or coerce you in the exercise of your right to
self-organization , to bargain collectively through
representatives of your own choosing , and to engage in
any other concerted activities for the purposes of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
Dated By
[FIRM NAME]
(Employer)
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting , and must not be altered,
defaced , or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board ' s Regional Office , 316 Federal
Building , 110 South Fourth Street , Minneapolis,
Minnesota 55401 , Telephone 612-334-2611.