McAllister Transfer, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1953

105 N.L.R.B. 751 (N.L.R.B. 1953)

McALLISTER TRANSFER, INC 751
and hereby adopts the findings , conclusions , and recommend-
ations of the Trial Examiner.
Upon the entire record in the case, the Board makes the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce withinthe mean-
ing of the National Labor Relations Act.
2. Textile Workers Union of America , CIO, is a labor organi-
zation admitting to membership employees of the Respondent.
3. Upon a consideration of the entire record,2 the Board in
agreement with the Trial Examiner finds that the evidence
here, though raising a strong suspicion of discriminatory
motivation , 3 fails to constitute the preponderance necessary to
establish that the Respondent was illegally motivated intermi-
nating the employment of and in refusing to reemploy Mary
Gabrish and Dorothy Gingery . We shall therefore dismiss the
complaint in its entirety.
[The Board dismissed the complaint.]
2In reaching its conclusions herein, the Board has taken administrative notice of its Deci-
sion and Order in Western Fishing Lines Co ., 103 NLRB 1408 , in which the Respondent was
found to have engaged in conduct violative of Section 8 (a) (1), (2 ). and (3) of the Act. Ac-
cordingly , the motion of the General Counsel to remand the instant case to the Trial Ex-
aminer for such purpose is denied . See Mission Oil Company, 93 NLRB 1215.
3 The Board has held that suspicion alone is not sufficient evidence on which to base a
finding of illegal discrimination . Strachan Shipping Company, 87 NLRB 431.
McALLISTER TRANSFER , INC., Petitioner and INTERNA-
TIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS,
WAREHOUSEMEN & HELPERS OF AMERICA , GENERAL
DRIVERS AND HELPERS LOCAL NO . 554, AFL , AND IN-
TERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUF-
FEURS, WAREHOUSEMEN & HELPERS OF AMERICA,
CHAUFFEURS , TEAMSTERS AND HELPERS LOCAL NO.
608, AFL , AND INTERNATIONAL BROTHERHOOD OF
TEAMSTERS CHAUFFEURS , WAREHOUSEMEN & HELPERS
OF AMERICA , TRUCK DRIVERS AND HELPERS LOCAL NO.
784, AFL. Case No . 17-RM - 70. June 25, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Martin Sacks,
hearing officer . The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby af-
firmed.
Pursuant to the provisions of Section 3 (b) of the Act, the
Board has delegated its powers in connection with this case to
105 NLRB No 116
7 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a three-member panel[Members Houston, Styles, and Peter-
son].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the mean-
ing of the Act.
2. The labor organizations involved claim to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
The Employer, operating from its home terminal in York,
Nebraska, is engaged in the trucking business, and derives
most of its revenue from the interlining of interstate freight
shipped to and from Omaha and Lincoln, Nebraska.
On February 4, 1953, the Unions sought recognition from the
Employer as bargaining representatives of its employees,
which the Employer denied. At the hearing, the Unions dis-
claimed majority representation, stating that they did so
because the Employer had dissipated their majority status by
alleged unfair labor practices.'
The Employer contends that the Unions' disclaimer did not
eliminate the question concerning representation because the
Unions were concurrently pursuing conduct inconsistent with
a disclaimer. Over the objection of the Unions, the Employer
testified, in substance, that when the Unions first sought
recognition they admitted they did not represent any of its
employees but stated that if the Employer did not sign a
contract with them in a week or so, its interline freight would
be cut off; that it has not recognized or signed a contract with
the Unions; and that since February 13, 1953, and up to the
time of the hearing, members of the Unions employed at the
Omaha and Lincoln, Nebraska, terminals, under instructions
from the Unions, have refused to load or unload freight for the
Employer's trucks.2 The Unions did not controvert this testi-
mony and their motion to strike it was denied by the hearing
officer. This they contend was error, on the ground that evi-
dence of alleged unfair labor practices is inadmissible in a
representation case. We reject this contention and uphold the
hearing officer's ruling, as the disputed testimony was elicited
not to prove unfair labor practices on the part of the Unions
but to show conduct rendering their alleged disclaimer inef-
fective to remove the question concerning representation.3
'Shortly after the hearing , onMarch23 , 1953, the Unions filed charges against the Employer
in Case No . 17-CA-639 On April 16 , 1953, the Regional Director approved a settlement
agreement in which the Unions would not join , and no appeal was taken from his refusal to
issue a complaint.
2In this connection , on March 9 , 1953, in Case No. 17-CC- 18, the Employer filed charges
against the Unions alleging an unlawful boycott which charges it waived as an objection to the
election sought herein . A complaint was authorized on April 7, 1953, and a decree for an in-
junction under Section 10 (1) of the Act was entered by the United States District Court for the
District of Nebraska, Lincoln Division , on April 22, 1953.
3Cf. Morganton Full Fashioned Hosiery Company , etc , 102 NLRB 134
HOWARD-COOPER CORPORATION 753
A disclaimer of representation must be clear and equiv-
ocal . When a union engages in conduct inconsistent with its
express disclaimer, the Board holds such disclaimer to be
equivocal and therefore ineffective to remove the question con-
cerning representation in an employer petition.' Accordingly,
as it appears in the instant case that the Unions' activity in
cutting off the Employer ' s interline freight business was due
to, and remained an affirmation of, their original demand for
recognition, we find their alleged disclaimer ineffective.5 The
Unions' motion to dismiss the petition on the ground of their
disclaimer is therefore denied.
4. We find that all over-the-road truckdrivers, city drivers,
and helpers, and dockmen and helpers employed by the Em-
ployer at its York, Nebraska, terminal, excluding clerical
employees and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining.6
[ Text of Direction of Election omitted from publication.]
4Kimel Shoe Company, 97 NLRB 127, and cases cited therein.
5 Cf. Coca-Cola Bottling Co. of Walla Walla, Washington, 80 NLRB 1063.
6 This is the unit set forth in the petition . The Unions took no position as to the appropriate
unit.
HOWARD-COOPER CORPORATION' and GARAGE EMPLOY-
EES UNION LOCAL NO. 44, INTERNATIONAL BROTHER-
HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN
AND HELPERS OF AMERICA, A.F. of L., Petitioner. Case
No. 19-RC-1297. June 25, 1953
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Donald D.
McFeely, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby
affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the
Board has delegated its powers in connection with this case
to a three-member panel [Members Murdock, Styles, and
Peterson].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organization involved claims to represent
certain employees of the Employer.
3. A question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) (1) and Section 2 (6) and (7) of the Act.
i Name appears as amended at the hearing.
105 NLRB No. 118