Merritt Packing and Crating Service, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1968

172 N.L.R.B. 1731 (N.L.R.B. 1968)

MERRITT PACKING AND CRATING SERVICE INC. 1731
Merritt Packing and Crating Service , Inc., and
Western Moving and Storage , Inc. and Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America, Local
Union No. 146. Case 27-CA-2254
August 27, 1968
DECISION AND ORDER
By CHAIRMAN MCCULLOCH AND MEMBERS FANNING
AND ZAGORIA
On February 13, 1968, Trial Examiner Martin S.
Bennett issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in certain unfair labor practices within the meaning
of the National Labor Relations Act, as amended,
and recommending that it cease and , desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
The Trial Examiner further found that Respondent
had not engaged in certain other unfair labor prac-
tices alleged in the complaint, and recommended
that those allegations be dismissed. Thereafter, the
General Counsel filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief. Respon-
dent filed an answering brief in support of the Trial
Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional 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 no prejudi-
cial error was committed. The rulings are hereby
affirmed. The Board has considered the entire
record in this case, including the Trial Examiner's
Decision, the exceptions, and the briefs, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner to the extent consistent
herewith.
The Trial Examiner found and we agree that Ter-
ry's (Respondent's vice president and branch
manager of Merritt) speech to his employees on
March 6 included statements, which gave the im-
pression of surveillance of union activities, and
threats which resulted from these employees' union
activity and thereby violated Section 8(a)(1);
further the Trial Examiner found, and we agree,
that the carrying out of these threats thereafter vio-
lated Section 8(a)(3). However, unlike the Trial
Examiner, we tina that Terry's interrogation of em-
ployee Cox on April 3 constituted an additional
violation of Section 8(a)(1).
172 NLRB No. 202
We agree with the Trial Examiner that Respon-
dent's illegal conduct herein is "not of such a
character as to reflect a purpose to evade an obliga-
tion to bargain"' and accordingly dismiss the
8(a)(5) allegation,' without reaching the question
whether the Union had a valid majority at pertinent
times.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as itc Order the Recom-
mended Order of the Trial Examiner as modified
below and hereby orders that Respondent, Merritt,
Packing and Crating Service, Inc., and Western
Moving and Storage, Inc., Colorado Springs,
Colorado, its officers, agents , successors, and as-
signs , shall take the action set forth in the Trial Ex-
aminer 's Recommended Order, as so modified:
1. Insert in paragraph 1(b), following the words
"union activities ;" (the first time mentioned) The
phrase "unlawfully interrogating employees about
their union activities;".
2. In the notice make the following change:
(a) Insert in the third indented paragraph, fol-
lowing the words "union activities," (the first time
mentioned) the phrase "unlawfully interrogate em-
ployees about their union activities,".
' Hammond & Irving, Incorporated, 154 NLRB 1071
2 Member Zagora would dismiss the alleged 8(a)(5) violations on the
ground that the Order issued herein will remedy the effects of Respon-
dent's unfair labor practices and thereby allow a fair election to be held
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Trial Examiner: This matter
was heard at Colorado Springs , Colorado, on
November 28 and 29, 1967. The complaint, dated
September 1 and based upon charges filed April 12
and May 26, 1967, alleges that Merritt Packing and
Crating Service, Inc., and Western Moving and
Storage, Inc., herein jointly called Respondent, had
engaged in unfair labor practices within the mean-
ing of Section 8(a)(1), (3), and (5) of the Act. Ex-
tensive briefs have been submitted by the General
Counsel and Respondent.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Merritt Packing and Crating Service, Inc., herein
called Merritt, and Western Moving and Storage,
1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inc., herein called Western , are Colorado corpora-
tions maintaining offices at the same location in
Colorado Springs, Colorado, where they are en-
gaged in the business of packing , crating , transport-
ing, storing , and receiving household goods. These
affiliated businesses have a common chairman of
the board and the same person serves as a director
of Merritt and as executive vice president of
Western . Each company is an agent for three van
lines, consistent with regulations of the Interstate
Commerce Commission , and their owners, officers,
and managers formulate and administer a common
labor policy . There is substantial interchange of
personnel between the two corporations , this con-
sisting actually of working time being allocated
between the two.
Respondent furnishes services valued in excess of
$100,000 per annum to the United States Air Force
Academy , ENT Air Force Base , and to the United
States Army at Fort Carson , Colorado . These ser-
vices constitute 90 percent of the business of
Respondent and have a substantial impact on na-
tional defense . I find that the operations of Respon-
dent affect commerce within the meaning of Sec-
tion 2 ( 6) and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Local Union No. 146, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction: The Issues
The employees of Respondent , and more particu-
larly Merritt , totaled some 23 in number at the time
material herein and were unorganized prior to the
events treated below . This installation is headed by
Phillip Terry , who is both vice predisent and branch
manager of Merritt.'
Interest in unionization developed among these
employees and President and Business Manager L.
H. Myers of the Union met with 12 of them on
Saturday , March 4 , at the home of employee Wil-
liam DuHaime . Eleven authorization cards were
signed and collected on this occasion , one of which
was returned upon request ; five more were ob-
tained during the weekend and turned over to
Myers late on March 5 . The complaint alleges that
because of these union activities Branch Manager
Terry, on March 6 , ( 1) unlawfully created the im-
pression of surveillance of union activities; (2)
threatened employees with the loss of coffee and
beer drinking privileges ; ( 3) threatened employees
that previously excused purchases of uniforms
would not be excused after April 1; and (4)
threatened employees with less hours and the loss
of overtime . It is further alleged that on April 3 he
interrogated an employee concerning his union ac-
tivities.
The complaint also alleges that Respondent,
because of discriminatory motivation , thereafter
denied employees coffee and beer drinking
privileges and did provide less employment, as
threatened .2 The complaint further alleges that, on
and after March 7 , 1967, Respondent refused to
bargain collectively with the Union as the represen-
tative of its employees in a described appropriate
unit.
B. Interference, Restraint, and
Coercion; Discrimination
1. The facts
Terry testified that he received unsolicited and
separate telephone calls on March 4 from em-
ployees Henry Madden , Larry Madden , Charles
Caswell , and William Murphy, variously informing
him that a union meeting was being held or had
been held and that authorization cards were signed.
The record discloses that 12 employees attended
the meeting and that all but Larry Madden signed
cards, Madden not signing until March 5. While
one of the telephone callers gave Terry a list of
those present, Terry allegedly did not record their
names . This was his first knowledge of union activi-
ties.
Terry admitted that he spoke with his employees
at 7:30 a.m. on Monday , March 6 . Although he
claimed that he addressed them approximately
every 2 weeks, there is substantial evidence that
these meetings are few , involve a special situation,
and take place only when a problem warrants his
addressing them . Indeed , Terry admitted that the
last previous meeting was held 2 or 3 months be-
fore.
Terry told the assemblage that he had received
some telephone calls, that he had been advised that
a meeting of some employees had been held on
March 4, that he believed it improper that all em-
ployees had not been contacted , and that he would
mention no names . He told them that this was their
right , but that he knew what was going on and that
the men were " not pulling the wool over my eyes."
Terry announced that he no longer would
prepare coffee for the men though they contributed
to its purchase .' He stated that they could
' These employees are basically on the payroll of Merritt and Western
normally has only clerical help Employees are assigned to Western and
placed on the payroll of that concern when business conditions warrant
' A further allegation that Respondent enforced its uniform purchase
requirement on April I was dismissed at the hearing for failure of proof,
the record disclosing that Respondent did not enforce this requirement.
' It would seem that Terry prepared the coffee, was not entirely success-
ful in collecting proportionate shares of the cost from the men , was on oc-
casion stuck for the balance, and also cleaned up behind the drinkers
whose housekeeping left something to be desired
MERRITT PACKING AND CRATING SERVICE INC.
thereafter obtain their coffee during their cof-
feebreaks from a canteen truck which regularly
made a stop across the street at the premises of
another concern.
Respondent has adduced evidence that Terry had
previously encountered a balance of payments
deficit , as well as coffeepot scouring , and that this
coffee custom had been previously stopped. How-
ever, it was resumed and it is clear that the problem
was not current on March 6 . Terry did resume
making the coffee about 3 weeks after March 6
and, indeed, made it on April 5, the date of the
election described below.
Terry also announced that there would be no
more beer drinking on the premises. This adverted
to a policy of the men providing their own and
drinking beer several times a week , after working
hours, in a certain designated area of the plant.
While there had been a problem of empty beer cans
and bottles being discarded in this area, where they
could be observed by government inspectors of the
operations of Respondent, the record warrants the
conclusion that the problem was not a current one,
the last incident occurring 2 or 3 months before.
Stated otherwise, I find that the March 4 meeting
triggered this announcement by Terry concerning
the beer and coffee situation.
Terry further announced that the men would
have to wear uniforms by April 1. The record dis-
closes that 99 percent of the men either owned or
leased uniforms, that Terry had attempted in vain
to get the other men to wear them before, and that
a specific date had not previously been set. The
April 1 deadline passed without enforcement of the
rule.
Terry further told the men that he would not try
to make work for them as in the past. His custom
had been, when work was slow, to assign them to
yard or clearing work, the preparation of boxes,
and the cleaning of trucks, in order to provide a 40-
hour week. He further stated that they would not
be given overtime. This had involved giving them
some hours of work at Western. According to Ter-
ry, this meant that a job would not be created at
Western for one who had worked a short workweek
at Merritt. Terry claimed herein that this was the
slow season of the year, with little overtime, and
that work did not pick up until the end of March or
later. He also admitted that thereafter he stopped
making or creating work for the men by having
them sweep or rake the yard in order to make up a
40-hour week, consistent with his past practice.4
A determination cannot be made from the record as to the extent this
policy resulted in lessened earnings The record discloses only Terry's ad-
mission that he did so In the event the Board upholds this finding, the ex-
tent thereof can be resolved at the compliance stage Iowa Industrial
Hydraulics, Inc , 169 NLRB 205
s Employee Freda Cox testified that Terry asked him on April 3 how he
felt about the Union and if he would vote for or against it Cox replied that
2. Conclusions
1733
I find that, although Terry did not actually en-
gage in surveillance of the union activities of these
employees , he gave them the impression that he
had. His statement that he was aware of the union
meeting , had been duly notified by a number of em-
ployees, and knew that all employees had not been
notified warrants this conclusion . This demon-
strates, and I similarly conclude, that the threat to
deprive them of coffeemaking and beer drinking
privileges , and the requirement as to uniforms,
although not enforced, stemmed from their union
activities on March 4 and constituted a reprisal
therefor. Moreover, in the absence of any other as-
signed reason, I can only conclude that the threat
to no longer provide a full workweek and overtime
was clearly predicated upon their union activities. I
find, therefore, that in the above-stated respects,
Respondent has, as contended by the General
Counsel, interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed
by Section 7, within the meaning of Section 8(a)(1)
of the Act.
These threats were actually implemented after
March 6 by the temporary ban on coffeemaking;
denial of beer drinking privileges; and by denying
the men an opportunity to work a full workweek or
overtime, contrary to past practice. I find that by
such conduct Respondent has discriminated with
respect to terms and conditions of employment
because of union activity and has thereby engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(3) and, derivatively, Section 8(a)(1) of
the Act.'
C. Alleged Refusal To Bargain
1. Introduction
On March 7, Terry received a letter from the
Union asserting a claim of majority representation
in the unit below found appropriate and offering to
prove its majority. Terry telephoned President Mer-
ritt in Denver and read the letter to him. Merritt
told him that he, Merritt, would handle the matter
and that Terry should maintain silence on this top-
ic. Terry did so, except for the Cox incident on
April 3.
The Union also filed a petition for an election on
March 8, 1967, in Case 27-RC-3193. Forwarded
with the petition were the 15 authorization cards
he did not know and would talk it over with the rest of the men. Terry
testified that as he passed Cox in the plant he asked him "What is your feel-
ing on Wednesday [April 51"" While Terry's explanation that he was not
interested in how Cox would vote leaves something to be desired, the fact is
that it was an isolated incident approximately I month after his speech on
March 6. 1 therefore make no finding adverse to Respondent based upon
this incident DierAs Forests, Inc v N L R B , 385 F 2d 48 (C A 8)
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received in evidence herein. On March 9, counsel
for Respondent telephoned President Myers of the
Union, commented upon the receipt of the petition,
and stated his view that the matter should go to an
election for resolution. A covering letter was sent
on March 10, taking the position that the Union
did not have a majority and that the matter should
be resolved by an election. The request to bargain
was rejected until such time as the Union was cer-
tified.
The election was held on April 5 and 23 ballots
were cast, 9 for the Union with a 10th challenged.
Eleven votes were cast against the Union and two
challenged. A revised tally was issued on June 28,
1967, the challenges were disposed of, and the
Union lost 10 to 13. Thereafter, on August 31,
1967, the Regional Director set aside the election,
relying in essence on most of the conduct described
above.
2. Appropriate unit
The complaint alleges, Respondent does not
dispute, and I find that all truckdrivers, over-the-
road van drivers, packers, craters, warehousemen,
and forklift operators employed at the Colorado
Springs, Colorado, location of Respondent, exclud-
ing office clerical and professional employees, sol-
icitors , salesmen , janitors , watchmen , guards and
supervisors , constitute a unit appropriate for the
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act.
3. Majority representation in the appropriate unit
The complaint alleges that commencing on and
after March 7, 1967, Respondent refused to bar-
gain with the Union. It is undisputed that there
were 23 employees in the above -described unit dur-
ing the week ending March 11 with no personnel
changes that week . In support of his claim of
majority representation , the General Counsel has
introduced in evidence 15 signed authorization
cards . These cards authorize the Union to represent
the signer in negotiations for better wages, hours,
and working conditions and are manifestly single
purpose cards . All were signed on March 4 and 5,
1967, and all were in the hands of President Myers
of the Union by March 5 . Respondent has attacked
a number of these cards, claiming that they may be
validly relied on as evidence of union majority.
As noted , 12 of the 23 employees in the unit at-
tended the meeting on March 4 . President Myers of
the Union addressed them and distributed cards.
He testified that he told them "We could go for an
election but not with less than 51 % of the cards"
and also that with over 51 percent of the cards "if
the company agreed , we could go into negotiations
without having to go to an election." Myers ex-
plained that the card was voluntary and that he
preferred that they not sign "if they didn't want the
union." Cards were turned in by 11 of those
present; the 12th, Larry Madden, signed a card on
the following day, as described below.
Myers personally observed five of those present
sign cards. As for the others, he personally col-
lected the signed cards he had previously dis-
tributed. Respondent attacks the latter group, con-
tending that Myers' failure to observe the actual
signing vitiates the cards . It is readily apparent that
this personal distribution and prompt collection
from a small group of named persons imbues the
cards with reliability and none of the group
presented any testimony basically controverting this
testimony by Myers.6
Indeed, Myers was supported by other testimony.
Clyde Murphy, whose signature was not directly
witnessed by Myers, testified that- Myers said that
the purpose of the card was to ask Respondent to
bargain directly with the Union or to hold an elec-
tion. William DuHaime testified that Myers told
them that the purpose of the card was to authorize
the Union to represent them.
Freda Cox admitted that the purpose of the card,
as told to them, was to authorize the Union to
represent the men and that the card was more or
less to help them vote for the Union. Cox did not
consider the sole purpose of signing the card to be
for an election. He also testified that he was told
that signing the card would make them eligible to
vote or give Respondent and the Union "a chance
to negotiate before a vote came in."
Harry Harker, whose signature was not wit-
nessed, testified similarly that they were told the
cards were to be used in negotiations with Respon-
dent and also for an election if negotiations were
unsuccessful. Dana Steele testified initially that
they were told they would get enough cards so they
would have an election and were not told of any
other possible use for the cards; he did not recall
Myers saying that the cards could be presented to
Respondent. He then testified, however, that they
were told that if the Union had a certain majority it
"could go to the warehouse and negotiate and hold
an election."
The evidence strongly preponderates and I find
that Myers explained that the Union would seek
recognition based upon the cards and, in the event
this failed, would use them for an election. At the
most, Myers discussed the possibility of an election
if voluntary recognition was denied and he did not
represent that the sole purpose of the cards was for
an election. I find that the General Counsel has
made a prima facie showing of the reliability of
these 10 cards, those of Lynn Campbell; Freda
Cox; William DuHaime; Carol Elrod; William
' It is noted that one card signer , Henry Madden , asked for his card back
shortly thereafter , and his card is not relied on by the General Counsel
MERRITT PACKING AND CRATING SERVICE INC.
Gutierrez; Harry Harker; James Larreau; Tony
Marquez; Clyde Murphy; and Dana Steele.'
Five other cards were received in evidence.
These, obtained by employees William Gutierrez
and Clyde Murphy on March 5, were the cards of
Larry Madden, Clinton Fadness, Adolph Riehl,
Arvid Thomas, and Joseph Nunez who had not at-
tended the March 4 meeting.
As for Clinton Fadness, who did not testify,
Murphy testified that he told Fadness there
probably would be an election and that there could
be immediate bargaining if Respondent agreed.
Murphy personally was "pretty much determined"
that there should be an election, but apparently did
not so state to Fadness. Murphy realized that recog-
nition could be demanded and obtained without an
election . He later testified that Fadness told him,
when signing , that he would like to see an election.
Arvid Thomas, who also did not testify, was con-
tacted by Murphy and Gutierrez. According to
Murphy, he told Thomas of the meeting and that
Myers had said the card would authorize the Union
to bargain with Respondent "or to hold an election
to see if we wanted a union ." Murphy further
testified that Thomas was hesitant to sign and that
Murphy explained that he and Gutierrez "felt there
should be an election and some of the others did....
I guess you might say we sold him into signing
one," testifying further that "This [an election] is
what we wanted...." Gutierrez testified that he ex-
plained his understanding to Thomas, as well as
another, that the card gave the Union the right to
represent the men in legal bargaining but that there
would be an election. Other portions of his
testimony lack specificity or reflect his beliefs and
not his conversations with the card signers.
Adolph Riehl had been hospitalized for surgery,
apparently major in nature , and was visited on
March 5, the day after his operation. He testified
that Myrphy and Gutierrez told him that they
wanted a union meeting , that everyone had signed
cards, and that if everyone signed there could be "a
meeting or election." Riehl did not read the card
and signed, stating that he would go along with the
rest of the men, "if they are going to have an elec-
tion and we will either vote it in or vote it out." He
was also told that the card obligated him in no way.
His card is treated more specifically below.
Lawrence Madden testified that the group was
told by Myers at the March 4 meeting that signing
the card would give the men a chance for an elec-
tion and to either accept or reject the Union. Myers
told them that 51 percent of the men had to sign
for an election. Madden did not know of the possi-
bility of recognition without an election when he
signed and his intention was to call for a vote; his
later action with respect to his card is set forth
' Other contentions raised by Respondent with respect to some of these
cards are treated below
" The Board has recently taken the position that similar statements are at
1735
below. He admitted also that he understood the
cards would be presented to Respondent before an
election was held. I have previously found that the
remarks of Myers clearly set forth the possibility
and alternative of recognition without an election.
Murphy testified that he told Madden on March
5 that the other men had signed and that if Madden
wished he also could.' Knowing that Madden had
attended the meeting of March 4, Murphy did not
explain the purpose of the card.
Gutierrez testified that he told Madden that the
card would give him a chance to vote-for or against
the Union. He apparently included Madden in his
general testimony that he told signers that the card
would bring about an election, that there would be
an election unless Respondent decided not to have
one, and that he presented nothing more than the
proposition that the card would bring about an
election.
The last in this group is the card of Joe Nunez
who did testify herein ; as Respondent observes with
commendable candor, his testimony was not as
definitive as it might have been. Murphy visited
Nunez on March 5 and, according to Nunez, stated
that "We had to sign this card in order to be eligi-
ble to vote to have a Union"; Nunez allegedly
signed in order to bring about an election . Murphy
also said that if Nunez did not sigh he would not be
able to vote for or against a union.
In his affidavit to the General Counsel, Nunez did
depose that he understood that the card authorized
the Union to represent him in negotiations with
Respondent and that Murphy told him that if 50
percent signed an election could be arranged. The
General Counsel has also adduced evidence of
prior union membership by Nunez; his interest in
organization of Respondent some years back; and
evidence of his more recent interest in unioniza-
tion. Indeed, the Union had provided Nunez with
authorization cards which he did not distribute.
Stated otherwise, the inference is warranted that
Nunez knew the full potential of an authorization
card which was clear on its face.
Nunez then both attempted to support his af-
fidavit as well as to shade his testimony. He claimed
that the affidavit did not accurately depose what he
had told the agent of the General Counsel, even
denying his statement that Murphy had expressed
the need for a 50-percent signup; in short, he was
an unhappy witness.
Murphy testified that he solicited the card of Nu-
nez, telling him that everyone had signed. Nunez
looked over the card and signed . Murphy denied
telling Nunez that the card was for an election. As
noted, he admitted that, as with other cards, he told
Nunez that the cards would be sent to the Board
and that if Respondent refused recognition based
on the cards there would be an election.
best harmless sales talk or puffing and do not overcome the overt act of
signing the card G A Truck Line, Inc., 168 NLRB 846
1736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Nunez signed his card , after reading it.
Consistent with his experience in unionization, he
grasped its implications in the fullest and recog-
nized that it authorized the Union to bargain for
him, with or without an election.
Other testimony adduced by Respondent attacks
the reliability of four of the cards . As noted, 15
cards are in evidence and 12 would be a majority of
the 23. Three cards , those of Lawrence Madden,
Dana Steele , and James Larreau , fall into one
category . The fourth is that of Adolph Riehl.
Lawrence Madden testified that , shortly after
signing, he was informed by coworkers that there
need not be an election if 51 percent of the em-
ployees had signed . On Monday, March 6, he and
his brother Henry, whose card is not involved,
visited President Myers of the Union. They an-
nounced that if an election was not being held they
desired the return of their cards. Myers replied
that there would be an election and Lawrence
Madden , relying on this statement , abandoned
his request for the return of his card.
Dana Steele testified that he was similarly ad-
vised by coworkers of the potential use of the card
and accompanied the two Maddens on this visit to
Myers . He told Myers that he had assumed the card
was solely for an election and that he wished the
return of his card if there was not to be an election.
Myers promised that there would be an election
and all three agreed that if such was the case the
cards could stay in.
Myers basically admitted the foregoing , though
placing this about March 8. The three visitors
stated that they wanted their cards returned if there
was not to be an election . Myers told them that he
had previously stated an election was unnecessary if
Respondent voluntarily granted recognition, but
that if their wish was for an election the Union
would go ahead with the election . The men then
abandoned their request for the return of their
cards.
Myers also testified that a fourth employee ap-
proached him with an identical request and that he
handled it in the same manner . He was not certain,
but he believed that this was James Larreau who
did not testify . He recalled also that it was a person
who attended the March 4 meeting and Larreau
had. I find that this was Larreau and that he so
visited Myers on March 6 or 8.
The three cards of Lawrence Madden , Steele,
and Larreau fall into the same category . All three
had heard Myers ' statement on March 4 as to the
potential dual usage of the cards . Nevertheless, on
March 6 and March 8, they visited Myers and
sought to impose a restriction or limitation upon
the use of their cards . Upon being assured by Myers
that the cards would be so restricted and that an
election would be held, they abandoned their
request for their return . Stated otherwise, they
sought to impose a restricted use on the cards; the
Union agreed and they relied on this commitment.
While it appears to be current Board policy that
only a representation at the time of signing a card
that the sole purpose of a card is for an election will
vitiate the use of the card in a card check, another
factor has been introduced here.
The General Counsel has contended that this
change of heart by the three men perforce stemmed
from Respondent's unfair labor practices; i.e., Ter-
ry's remarks on the morning of March 6. But these
three men did not repudiate their cards. They
rather sought to restrict their use solely to an elec-
tion context. They received such a commitment
from the union president, relied on same, and
withdrew their request for the return of the cards. I
believe and find that these cards are therefore
tainted and may not be relied on by the General
Counsel as evidence of union majority in a non-
election context. This, of course, reduces the cards
purportedly establishing the union majority from
15 to 12 in number. See N.L.R.B. v. S.E. Nichols
Co., 380 F.2d 438 (C.A. 2). Cf. Intl. Union, UAW
[Preston Products] v. N.L.R.B., 392 F.2d 801
(C.A.D.C.).
There is a remaining problem with respect to 1 of
the 12 cards, that of Adolph Riehl. As noted, Riehl
was visited the day after undergoing surgery, ap-
parently major in nature, and signed a card which
had been filled out for him by his visitors. He did
not read the card.
Despite his testimony that he was told that sign-
ing the card would result in a meeting or an elec-
tion, he later testified that no alternative other than
an election was expressed to him, that he was told
the card meant that the Union could come in and
have an election, and that this was his purpose in
signing the card.
Riehl explained that he had been in the military
service for 20 years before coming to work for
Respondent, that he knew nothing about unions,
that the two men told him that the card was to
bring about an election, and that he said "I will sign
the card if it don't obligate me for nothing else." As
noted, he also testified that the two men told him
that the card meant "nothing other than letting the
Union come down and have the election." One or
two weeks later, after leaving the hospital, and on
his own initiative, he decided that he was not in-
terested in unionization and contacted Terry about
getting his card back. Terry merely told him to do
as he pleased and that he would have an opportuni-
ty to vote in the election. This apparently satisfied
Riehl.
Recent court decisions appear to dictate that a
consideration of all the surrounding circumstances
is necessary to a decision whether card signers in-
tend to have a labor organization represent them
for bargaining or whether they desire to sign the
card solely to procure an election. N.L.R.B. v.
Swan Super Cleaners, Inc., 384 F.2d 609 (C.A.6),
and Crawford Manufacturing Co.,Inc. v. N.L.R.B.,
386 F.2d 367 (C.A.4). And the Board seems to en-
MERRITT PACKING AND CRATING SERVICE INC.
tertain such evidence. I.T.T. Semi-Conductors, Inc.,
165 NLRB 716.
Considering the circumstances under which this
particular card was signed, namely, in the hospital 1
day after major surgery, with the signer not reading
the card and filling in only his name, and in view of
his own limited appreciation of the purpose of the
card, I am unable to conclude that the evidence
preponderates that the card was signed for a pur-
pose other than an election.
True, his solicitors gave testimony that another
purpose was suggested, but this is affected by their
own admitted preference for an election. In sum,
the evidence preponderates that Riehl was under a
misapprehension, obviously because of his condi-
tion and the attending circumstances, as to the pur-
pose of the card. The inference is at least equally
warranted that a sick man or captive audience
signed in order to placate or humor his visitors. I
find that his card may not be relied on by the
General Counsel.
4. Conclusions
The net result of the foregoing is perhaps the
conduct of an election via what may be termed as
the slow and lengthy route. I find that the General
Counsel has but 11 valid cards for the 23 em-
ployees in the unit and that the Union was not the
majority representative in the above-described ap-
propriate unit at the time material herein, within
the meaning of Section 9(a) of the Act.
I deem it unnecessary, therefore, to treat with the
further issue whether, assuming a union majority,
the conduct of Respondent was sufficient to con-
stitute a refusal to bargain, viz, did Respondent en-
tertain a good-faith doubt of the union majority and
did its conduct thwart the possibility of a fair elec-
tion . Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732
(C.A.D.C.), cert. denied 341 U.S. 914.
The Board has pointed out that not all conduct
violative of Section 8(a)(1) will support a refusal-
to-bargain order. Aaron Brothers Company of
California, 158 NLRB 1077. And, in the present
case, the statements on April 6 by Terry antedated
the filing of the representation petition and the de-
mand for recognition. While in an unfair labor
practice proceeding, unlike a representation case,
the petition date apparently is not a barrier,9 the
General Counsel has relied on the implementation
of the threat not to increase hours of work or give
overtime in the ensuing period. As noted, the
record contains only the admission of implementa-
tion to an undisclosed and unspecified extent dur-
ing a period preceding Respondent's busy season
and this perforce affects the qualitative weight of
the evidence in this area. In view of the foregoing, I
See N L.R B v Consolidated Rendering Co d/h/a Burlington Rendering
Co, 386 F 2d 699 (C A 2) Cf Goodyear Tire and Rubber Company, 138
NLRB 453
1737
find that Respondent has not refused to bargain
within the meaning of Section 8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with its opera-
tions described in section I, above, have a close, in-
timate , and substantial relationship to trade, traffic,
and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in
unfair labor practices, I shall recommend that it
cease and desist therefrom and take certain affir-
mative action designed to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact,
and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. Respondent, Merritt Packing and Crating
Service, Inc., and Western Moving and Storage,
Inc., is an employer within the meaning of Section
2(2) of the Act.
2. International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Amer-
ica, Local Union No. 146, is a labor organization
within the meaning of Section 2(5) of the Act.
3. By giving the impression of surveillance of
union activities, by threatening employees with
restrictions on coffee and beer drinking and less
hours of work and overtime, and by stating that
uniforms must be worn, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1) of the Act.
4. By implementing the foregoing restrictions on
coffee and beer drinking, hours of work, and over-
time, Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(3) of the
Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
6. All truckdrivers, over-the-road van drivers,
packers, craters, warehousemen and forklift opera-
tors employed at the Colorado Springs, Colorado,
location of Respondent, excluding office clerical
and professional employees, solicitors, salesmen,
janitors, watchmen, guards and supervisors, con-
stitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b)
of the Act.
354-126 O-LT - 73 - pt. 2 - 38
1738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. At all times material herein, the Union was
not the representative of the employees in the
above-described appropriate unit within the mean-
ing of Section 9(a) of the Act.
8. Respondent has not engaged in unfair labor
practices within the meaning of Section 8(a)(5) of
the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact
and conclusions of law, it is recommended that
Respondent, Merritt Packing and Crating Service,
Inc., and Western Moving and Storage, Inc.,
Colorado Springs, Colorado, its officers, agents,
successors, and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in International
Brotherhood of Teamsters, Chauffuers,
Warehousemen and Helpers of America, Local
Union No. 146, or any other labor organization of
its employees, by discriminating with regard to
hours of work or terms or conditions of employ-
ment, except to the extent authorized under Sec-
tion 8(a)(3) of the Act.
(b) Giving employees the impression of surveil-
lance of union activities; threatening employees
with loss of coffee and beer privileges and loss of
hours or overtime; requiring that uniforms be worn;
or threatening other reprisals for engaging in union
activities.
(c) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of their right to self-organization, to form
labor organizations, to join or assist the above-
named or any other labor organization, to bargain
collectively through representatives of their own
choosing, to engage in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, and to refrain from any or all
such activities, except to the extent that such right
may be attected by an agreement requiring mem-
bership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of
the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Make whole its employees for any loss of pay
suffered by loss of hours or overtime.
(b) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Recommended Order.
(c) Post at its offices at Colorado Springs,
Colorado, copies of the attached notice marked
"Appendix."' Copies of said notice, on forms
furnished by the Regional Director for Region 27,
shall, after being duly signed by Respondent, be
posted by it immediately upon receipt thereof and
be maintained for a period of 60 consecutive days
thereafter, in conspicuous places , including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 27,
in writing , within 20 days from the receipt of this
Decision, what steps have been taken to comply
herewith."
10 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order " shall he 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 Ap-
peals Enforcing an Order " shall be substituted for the words " a Decision
and Order "
11 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read " Notify said Regional Director, in
writing , within 10 days from the date of this Order, what steps Respondent
has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board
and in order to effectuate the policies of the Na-
tional Labor Relations Act, as amended, we hereby
notify our employees that:
WE WILL NOT discourage membership in In-
ternational Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
Local Union No. 146, or any other laobr or-
ganization of our employees, by discriminating
in regard to hours of work or terms or condi-
tions of employment, except to the extent
authorized by Section 8(a)(3) of the Act.
WE WILL make whole our employees for any
loss of pay or overtime suffered by reason of
our discrimination against them.
WE WILL NOT give employees the impression
of surveillance of union activities, threaten em-
ployees with the loss of coffee or beer
privileges or the loss of hours or overtime,
require that uniforms be worn, or threaten
other reprisals for engaging in union activities.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-or-
ganization , to form labor organizations , to join
or assist the above-named or any other labor
organization, to bargain collectively through
representatives of their own choosing, to en-
gage in concerted activities for the purpose of
collective bargaining or other mutual aid or
protection, and to refrain from any and all
such activities, except to the extent that such
MERRITT PACKING AND CRATING SERVICE INC. 1739
right may be affected by an agreement requir- Dated By
ing membership in a labor organization as a (Representative ) (Title)condition of employment , as authorized in Sec-
tion 8 (a)(3) of the Act. This notice must remain posted for 60 consecu-
tive 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
MERRITT PACKING AND notice or compliance with its provisions , they may
CRATING SERVICE , INC., communicate directly with the Board 's Regional
AND WESTERN MOVING Office, 2240 New Custom House , 721 19th Street,
AND STORAGE , INC. Denver , Colorado 80202, Telephone
(Employer) 303-297-3551.