St. John Trucking

National Labor Relations Board - Board Decisions

Jul 19, 1991

303 N.L.R.B. 723 (N.L.R.B. 1991)

723
303 NLRB No. 107
ST. JOHN TRUCKING
1 On November 1, 1987, the Teamsters International Union was readmitted
to the AFL–CIO. Accordingly, the caption has been amended to reflect that
change.
2 The judge made several inadvertent factual errors throughout his decision,
some of which were the subject of exceptions filed by the parties. For clarity,
we shall correct the more obvious errors: The dates of the hearing were April
17 and 18, 1990, not 1989; counsel for the Intervenors is Brown, not Morgan;
counsel for the Intervenors, not counsel for the Respondent, presented the 10
employee witnesses at the hearing; complaint par. 7(b) was amended at hear-
ing to allege that the Respondent had refused to recognize and bargain with
the Union since July 25, 1989; Michael Chestnut left the Respondent’s employ
on January 13, 1990, not July 13, 1990; the witness employed at Berry Mate-
rial Stone Quarry is named William Richard Jr., not Richardson; employee
Roger Richardson testified that he told Jerry St. John that he ‘‘didn’t think
we needed the union,’’ not that ‘‘we need the union’’; G.C. Exh. 2 is a list
of 14 employees, not 13, who were in the Respondent’s employ as of June
21, 1989, not April 18, 1990; Roger Richardson is a truckdriver, not a me-
chanic; and the Respondent should be referred to as ‘‘Employer’’ in the notice
to employees. A new notice is attached. None of these errors affect the out-
come of the case.
3 The Respondent and Intervenors have excepted to some of the judge’s
credibility findings. The Board’s established policy is not to overrule an ad-
ministrative law judge’s credibility resolutions unless the clear preponderance
of all the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We
have carefully examined the record and find no basis for reversing the find-
ings.
With respect to the specific exception that the judge erred in crediting em-
ployee Richardson’s affidavit over his testimony at the hearing, we note that
this action is well within settled Board precedent. See Alvin J. Bart & Co.,
236 NLRB 242 (1978).
4 The judge concluded that the Respondent violated Sec. 8(a)(1) by interro-
gating or polling the employees about their union sentiments, relying in part
on Texas Petrochemicals Corp., 296 NLRB 1057 (1989). Chairman Stephens
agrees with the judge’s conclusion here, but does so based on the analysis set
forth in his concurring opinion in Texas Petrochemicals. Members Devaney
and Raudabaugh also agree with the judge, but find it unnecessary to rely on
Texas Petrochemicals.
The General Counsel excepts to the judge’s failure to find that the Respond-
ent was precluded from raising objective considerations as a defense to the
withdrawal of recognition charge because the circumstances in which the de-
fense arose were not free from unfair labor practices. We agree with the Gen-
eral Counsel that an assertion of doubt as to a union’s majority status based
on objective considerations ‘‘must be raised in a context free of unfair labor
practices.’’ Impressions, Inc., 221 NLRB 389, 403 (1975). Nu-Southern Dying
& Finishing, 179 NLRB 573 fn. 1 (1969). Here, the judge found that the Re-
spondent violated the Act by interrogating or polling its employees. In light
of this type of unlawful conduct, we agree with the General Counsel that Re-
spondent was not privileged to raise a doubt as to the Union’s majority status.
We note, however, that if we were to reach this issue, we would agree with
the judge that the Respondent failed to establish that it had a good-faith doubt
based on objective considerations as to the Union’s majority status prior to
withdrawing recognition from the Union.
Inasmuch as we adopt the judge’s discrediting of Jerry St. John’s testimony
concerning employees’ purported statements about the Union in July through
September 1989, we do not rely on the judge’s alternative finding in the anal-
ysis and conclusions section of his decision that even if such statements were
made, all were made after the Respondent withdrew recognition from the
Union and therefore could not support the Respondent’s defense of good-faith
doubt of the Union’s majority status. We note that in the course of making
this finding, the judge inadvertently put the date of the Respondent’s with-
drawal of recognition at June 25, 1989, rather than July 25, 1989. We never-
theless agree that the asserted statements, if made, could not support the Re-
spondent’s defense, because the statements indicated not that the employees
did not want the Union to represent them, but merely that the employees
should have the right to decide whether they wanted to be represented by the
Union.
St. John Trucking, Inc. and Chauffeurs, Teamsters,
Warehousemen and Helpers, Local Union No.
135, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America, AFL–CIO.1 Case 25–CA–20121
July 19, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On September 28, 1990, Administrative Law Judge
Elbert D. Gadsden issued the attached decision. The
Respondent filed exceptions and a supporting brief, the
Intervenors filed exceptions, and the General Counsel
filed limited cross-exceptions and a brief in support.
The General Counsel also filed a brief in support of
the judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,2 findings,3 and con-
clusions4 and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, St. John Trucking Inc.,
North Vernon, Indiana, its officers, agents, successors,
and assigns, shall take the action set forth in the Order,
except that the attached notice is substituted for that of
the administrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT interrogate or poll you about your in-
terests, activities, or sympathies on behalf of the
Union.
WE WILL NOT unlawfully withdraw recognition of,
or refuse to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of
employment with Chauffeurs, Teamsters, Warehouse-
men and Helpers, Local Union No. 135, a/w Team-
sters, Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO, as the exclusive bargaining rep-
resentative of our employees, in the bargaining unit de-
scribed below:
All truck driver employees at Employer’s North
Vernon, Indiana facility; BUT EXCLUDING all
office clerical employees, all professional employ-
ees, all other employees, all guards and super-
visors as defined by the Act.
724 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL on request, bargain with the Union as the
exclusive bargaining representative of all employees in
the appropriate unit and, if an agreement is reached,
embody such agreement in a signed contract.
ST. JOHN TRUCKING, INC.
Richard J. Simon, Esq., for the General Counsel.
Ron Morgan, President (Southeastern Employers Association,
Inc.), of Bristol, Virginia, for the Respondent.
Steven J. Chestnut (Chauffeurs, Teamsters, Warehousemen
and Helpers, Local Union No. 135), of Indianapolis, Indi-
ana, for the Charging Party.
Robert J. Brown, Esq., of North Vernon, Indiana, for the In-
tervenors.
DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. Upon a
charge of unfair labor practices filed on August 31, 1989, by
Chauffeurs, Teamsters, Warehousemen and Helpers, Local
No. 135, a/w International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America against St.
John Trucking, Inc. (the Respondent), a complaint and an
amended complaint were filed on October 10, and April 9,
1989, respectively, by the Regional Director for Region 25,
on behalf of the General Counsel.
The amended complaint alleges that Respondent has failed
and refused to recognize and bargain with the Union as the
exclusive collective-bargaining representative of its unit em-
ployees, in violation of Section 8(a)(1) and (5) of the Act.
Respondent filed an answer on October 20, 1989, denying
that it has engaged in unfair labor practices as alleged.
The hearing in the above matter was held before me in
Vernon, Indiana, on April 17 and 18, 1989. Briefs have been
received from counsel for the General Counsel and the rep-
resentative of the Respondent, which have been carefully
considered.
FINDINGS OF FACT
I. JURISDICTION
Respondent is now, and has been at all times material, a
cooperation duly organized under, and existing by virtue of
the laws of the State of Indiana, where it maintains a place
of business at North Vernon, Indiana (the facility), where it
is engaged in the business of interstate and intrastate trans-
portation of freight, commodities, and related services.
During the pass 12 months, Respondent, in the course and
conduct of its business operations provided services valued
in excess of $50,000 to L. P. Cavett Co., Force Construction
Co., Inc, and Kentucky Stone Co., d/b/a Berry Materials.
At all times material, L.P. Cavett Co., has maintained its
principal office and place of business in Lockland, Ohio, and
places of business in the State of Indiana, where it has been
continuously engaged as a contractor in the business of con-
structing roads. During the pass 12 months L. P. Cavett Co.,
purchased and received at its jobsites products, goods and
materials valued in excess of $50,000 directly from points lo-
cated outside the State of Indiana.
At all times material, Force Construction Co., Inc. has
maintained its principal office and places of business in Co-
lumbus, Indiana, where it is, and has been continuously en-
gaged as a general contractor. During the pass 12 months,
Force Construction Co., Inc., purchased and received at its
Indiana jobsites products, goods, and material valued in ex-
cess of $50,000 directly from points located outside the State
of Indiana.
At all times material, Kentucky Stone, Co., d/b/a Berry
Material, has maintained its principal office at Louisville,
Kentucky, and places of business in the Commonwealth of
Kentucky and in North Vernon, Hayden, and Versailles, Indi-
ana, where it is and has been continuously engaged in the
sale of stone and related products. During the pass 12
months, Kentucky Stone Co., sold and shipped from its fa-
cilities in the State of Indiana products, goods, and materials
valued in excess of $50,000 directly to points located outside
the State of Indiana.
The complaint alleges, the parties and Respondent stipu-
lated, and I find that Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the parties stipulated, and I find
that Chauffeurs, Teamsters, Warehousemen and Helpers,
Local Union No. 135, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica are, and have been at all times material, labor organiza-
tions within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Information
Respondent was formed in 1962, and since that time has
engaged in the transportation of freight, commodities, stones
and sand from various suppliers, and delivers them to speci-
fied jobsites. The company hired two employees in 1964 and
more in 1967. In 1989 there were 12 trucks and 12 drivers.
The parties stipulated that at all times material, the fol-
lowing named persons occupied the positions set opposite
their respective names, and are now, and have been at all
times material, supervisors of Respondent within the meaning
of Section 2(11) of the Act and agents of the Respondent
within the meaning of Section 2(13) of the Act:
George St. John Treasurer and Owner
Jerry St. John Vice-President
The parties further stipulated that the following unit is ap-
propriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All truck driver employees at Respondent’s North
Vernon, Indiana facility; BUT EXCLUDING all office
clerical employees, all professional employees, all other
employees, all guards and supervisors as defined by the
Act.
725ST. JOHN TRUCKING
1 The facts set forth above are not in conflict in the record.
The Respondent admitted that since 1980, the Respondent
has entered into collective-bargaining agreements with Team-
ster Local 135, the most recent of which agreement expired
in April 1989 (G.C. Exh. 3). Respondent also admits that in
April 1989, Respondent agreed with the Union to extend the
current contract for 30 days (G.C. Exh. 4).
In response to the allegations in the complaint, the Re-
spondent affirmatively alleged in its answer that ‘‘the Em-
ployer has refused to recognize the Union since all unit em-
ployees of the Employer wish to vote as to their desires.
There is pending before the Regional Director for Region 25,
an R.D. Petition filed by the employees (see 25-RD-1052)
and an R.M. Petition filed by employer (see 25-RM-557). In
addition, Local 135 picketed employees and all employees
crossed the picketed line and went to work. This would ap-
pear good-faith doubt as to whether Union represents em-
ployees. Current contract terminated April 30, 1989. Union
has not been certified by NLRB.’’1
B. Documentary Correspondence and Testimonial
Conversations Between the Union and Respondent
Respondent’s Treasurer and Owner, George St. John, testi-
fied that on April 24, 1989, Union Representative Ron Hud-
son called his office at 8:45 a.m. and asked for him. Since
he was not there, Hudson asked to have George St. John call
him. George called Hudson at 9:25 a.m. and got the answer-
ing machine. George called Hudson again at 11:25 a.m. and
Marilyn answered the phone.
When Hudson finally called him, George refused to sign
a heavy and highway agreement but offered the current con-
tract in effect. However, the parties could not reach an agree-
ment and George told Hudson that was his final offer. Al-
though George never signed the heavy and highway agree-
ment, he has negotiated a miscellaneous contract with the
Teamsters and he admitted he did not engage in further ne-
gotiations with the Union after May 2, 1989.
Shortly after George St. John made his final offer to the
Union on May 2, 1989, he turned his negotiations over to
Ron Morgan, but stated he personally has never refused to
meet with the Union.
Union Representative Ron Hudson died on May 6, 1989,
and later during the month of May he was succeeded by
David Young, current business agent for Edinburgh, Indiana
and the Respondent’s employees.
In a letter dated June 7, 1989, from the Union (David
Young) to Respondent (G.C. Exh. 7), the Union advised as
follows:
This letter will serve to notify you that the Union by
and through its duly authorized representative is re-
questing to meet with you in order to negotiate a new
collective bargaining agreement. If you are refusing to
comply with this request, we would appreciate a re-
sponse from you stating the reason why.
This Union is also requesting an explanation from
you as to why you refused to accept the grievance filed
by Mr. Michael Goodpaster protesting his discharge.
We will expect a reply from you no later than June
15, 1989.
David Young testified that he telephoned George St. John,
on the same date (June 7, 1989), introduced himself as David
Young, the business agent of Local 135, and informed him
that Business Agent Ron Hudson had passed away, and he
(Young) was assuming Hudson’s union duties. He said he
also told St. John the contract had expired and he (Young)
wanted to commence negotiations for a new collective-bar-
gaining agreement. George St. John said okay, he could not
meet this week but asked him to call him next Monday or
Tuesday.
Based on rumors since the summer of 1989 from employ-
ees Bill Garrity, Roger Richardson, Jim Brunner, Galyean
Derringer, Ross Collins, Evans, Malcomb, Hubert, and Eddie
Megel that employees wanted to vote on whether they want-
ed to be represented by the Union, George St. John said he
(George) filed an RM petition on June 19, 1989 which was
withdrawn.
Young testified that on or about June 12, 1989, he called
George St. John and asked him about meeting to negotiate.
George told him Ronald Morgan, Respondent’s representa-
tive, would handle the negotiations for him. The following
day (June 13, 1989) Young said he called Morgan, intro-
duced himself as business agent for Local 135 and Respond-
ent’s employees, and informed him that Respondent was ob-
ligated to meet and negotiate with him. They discussed brief-
ly the miscellaneous contract, the heavy and highway con-
tract, and they agreed to get together at a later date.
Young further testified that he sent a letter to Respondent
(George St. John) on July 25, 1989 (G.C. Exh. 5) as follows:
This letter will serve to notify you that Teamsters
Local Union No. 135 is requesting to meet with you in
order to negotiate a new Agreement.
I would appreciate your response as soon as possible
and am offering the following as possible meeting
dates: Monday, July 31; Tuesday afternoon, August 1;
or Friday, August 4, 1989.
Please contact me regarding the above matter to
schedule a meeting time and date.
George St. John acknowledged he received the Union’s
July 25, 1989 letter of request to meet and negotiate for a
new agreement (G.C. Exh. 5).
A letter dated August 9, 1989 (G.C. Exh. 6) from the
Southeastern Employer’s Association, Inc., signed by Ronald
Morgan, President, to the Union (David Young) was advised
by Respondent that there existed a good-faith doubt as to
whether the Union represented the employees of the Re-
spondent; that Respondent has noted that the Union was not
certified by the NLRB; and that the Association (Respond-
ent) would suggest a petition for an election to clarify the
question.
In a letter from the Union (David Young, G.C. Exh. 8) to
Respondent (George St. John) dated August 21, 1989, the
Union stated:
On June 25, and July 25, 1989, correspondence was
sent to you requesting meeting dates to negotiate a new
agreement. As of this date, I have not received a phone
call nor letter from you.
It is imperative that we meet as soon as possible to
bring this contract to an honorable conclusion and re-
solve these differences.
726 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I will expect to hear from you no later than Friday,
August 25, 1989.
The Union proceeded to picket St. John Trucking at the
L. P. Cavett job, September 1989, but not Cavett, because
Respondent had not signed a contract. The picket line was
established the first part of September 1989. Hubrecht was
on the picket line in the Bloomington area. He (David
Young) told Hubrecht he did not know all of the St. John
employees and that was because he bumped into some of
them in the street. Young acknowledged that he had the au-
thority to negotiate miscellaneous contracts provided he se-
cured the signature on the heavy and highway contract.
In his affidavit to the Board dated September 26, 1989,
(G.C. Exh. 10), Respondent (George St. John) acknowledged:
I have not bargained with the Union after I received
the Unions July 25, 1989 letter because I had a good
faith doubt that the Union represented a majority of my
employees.
C. Did Respondent Interrogate or Poll Its Employees
About Their Union Sympathies?
Roger Richardson, a truckdriver employed by Respondent
11 or 12 years, testified to subpoena that he gave an affidavit
to the Board July 20, 1989; and that about 6 or 7 weeks
prior thereto, on or about June 5, 1989, while in the shop,
Bill Garrity approached him in the presence of Jerry St.
John, vice president of Respondent. Both he and Garrity
asked Jerry St. John why could they not hold their own elec-
tion on whether or not they wanted a union. Jerry asked him
(Richardson) how he felt about the Union and if the employ-
ees had an election what would he do. Richardson said he
told Jerry he did not think the employees needed a union be-
cause the Union never did anything for him. He said Jerry
St. John told them they should be able to hold an election—
they had a right to hold one. Richardson said Jerry St. John
also told him he had asked other employees how they felt
about the Union. Although, truckdriver William Garrity testi-
fied that Jerry St. John did not ask him how he felt about
the Union, it is particularly noted that Garrity did not testify
that Jerry St. John did not ask Roger Richardson how he felt
about the Union.
Counsel for the General Counsel asked Richardson did
Jerry St. John ask him (Richardson) about the subject of an
election first, or did he (Richardson) raise the question to
Jerry St. John about employees’ holding an election to deter-
mine whether they wanted the Union. When Richardson said
he could not remember and was confronted with his affidavit
given to the Board July 20, 1989, Richardson reluctantly ad-
mitted that Jerry St. John came to him and asked him ‘‘how
I felt about the Union, and if they had an election what
would I do?,’’ as Richardson previously stated in his affi-
davit. Richardson also acknowledged that his recollection
was possibly better in July when he gave his affidavit to the
Board than it was when he testified in this proceeding April
1990.
On cross-examination Respondent’s representative (Mor-
gan) interrogated Richardson about the Government’s taking
his affidavit, and Richardson proceeded to testify that he was
tried when his affidavit was taken and that he did not read
the affidavit before he signed it; that the Government’s rep-
resentative who took his affidavit did not read the affidavit
to him (Richardson); and that he (Richardson) later told Gen-
eral Counsel before the trial that paragraph 6 of his affidavit
was not typed the way he told the story to the Government
representative.
I do not credit Richardson’s testimony in this regard be-
cause I was not persuaded by his demeanor, in the face of
his signed affidavit, that he was testifying truthfully. More-
over, it is particularly noted that in his affidavit, Richardson
acknowledged he read his affidavit before he signed it. Con-
sequently, I credit Richardson’s statements in his affidavit as
being more truthful, reliable, and consistent with other cred-
ited evidence of record, infra. Although Jerry St. John testi-
fied that he only talked to Richardson and other employees
about the Union whenever they asked him questions about
the Union, I was not persuaded by the demeanor of Jerry or
the self-serving nature of his statement that his latter state it
was truthful.
With respect to the above-discussed conversation between
Jerry St. John and employees Richardson and Garrity, Jerry
St. John, vice president of Respondent, testified that he
talked to Richardson and other employees whenever they
came to him and asked questions about the Union. However,
it is noted that in his affidavit given to the Board September
26, 1989, Jerry St. John did not deny that he asked employ-
ees questions about the Union, but only stated he did not re-
call going to them and asking such questions. In view of
other statements in his affidavit which are not consistent with
his testimony that he was testifying truthfully, I discredit
Jerry St. John’s testimony in this regard, and credit Roger
Richardson’s testimony. I also attribute greater credibility to
Richardson’s account of the conversation over Jerry St.
John’s, because Richardson is still in the employ of Re-
spondent. Coca Cola Co., 196 NLRB 892, 893 fn. 5 (1972).
Consequently, based on the foregoing credited testimony,
I find that Jerry St. John did ask Richardson and other em-
ployees how they felt about the Union. In doing so, Re-
spondent’s interrogation or polling of employees coerced
them in the exercise of their protected rights, in violation of
Section 8(a)(1) of the Act.
D. Respondent’s Contended Doubt of Majority Status
In support of its contention that it had a good-faith doubt
that the Union did not represent a majority of its employees,
Respondent introduced the following evidence.
George St. John testified that he filed the RM petition be-
cause there were rumors that the men wanted to have a vote
on ‘‘this.’’ George first stated he heard the rumors during the
summer of 1989, and on further examination, said it was late
March to mid-April. He said he heard the rumors from no
certain individual, and later he named most of the employees
in the unit.
George St. John stated in his affidavit of September 21,
1989, that employees Richardson, Garrity, Derringer, Ross
and other unnamed employees said other employees told
them, at some time or another, that they did not want to be
represented by the Union but they wanted to vote on it.
However, it is noted that Ross and Derringer specifically tes-
tified that they told George and/or Jerry St. John they
thought the employees should have the right to vote on
whether or not they wanted to be represented by the Union.
Neither said they told either of the St. Johns that they did
not want the Union to represent them and other employees.
727ST. JOHN TRUCKING
Employee Garrity testified that he told the St. Johns he
thought the employees had the right to vote and when he was
asked whether the St. Johns asked him how he would vote,
he said they did not ask him how he would vote, and if they
had asked him, he would not have told them. It would appear
from this answer by Garrity that he did not tell either of the
St. Johns that he did not want the Union to represent him.
Consequently, I discredit the testimony of George St. John
that the aforenamed four employees told him they did not
want to be represented by the Union, and that other employ-
ees told them they shared in their view. Notwithstanding,
even if either of the four employees told the St. Johns that
other employees told them they did not want to be rep-
resented by the Union, such hearsay assertions about what
other employees said cannot constitute sufficient objective
considerations to support either a withdrawal of recognition
of the Union, or a reasonable doubt that the Union did not
represent the majority of the employees. Louisiana-Pacific
Corp., 283 NLRB 1079 (1987).
Jerry St. John identified General Counsel’s Exhibit 2 (a
letter dated June 21, 1989) addressed to the Board’s Regional
Office, which states that:
A majority of the employees on this list came forth and
said they wanted to vote on whether or not to belong
to the Union. This list includes all of our employees
with the exception of owners of a company.
Jerry further testified that each of the employees named on
the list had come to him prior to June 21 and informed him
they thought they should have the right to make a decision
on whether they wanted to be represented by the Union. He
said he told them they should have that right and he also told
Garrity to check with the NLRB in Indianapolis.
However, Jerry St. John denied that in late May or early
June 1989, he polled or interrogated employees concerning
union membership, activities or sympathies. Truckdriver Wil-
liam Garrity testified that Jerry St. John did not conduct a
poll of the employees about their union interests and sym-
pathies. Jerry St. John acknowledged he gave an affidavit
(G.C. Exh. 9) to a Board agent on September 26, 1989, and
that he read and signed it.
In his affidavit, Jerry St. John stated on page 2, paragraph
3:
After obtaining this information from Richardson and
Garrity, I do not recall going to other employees and
asking them whether or not they wanted to vote on
whether or not to be in the Union. I do not presently
recall doing so.
At the bottom of the page of his affidavit, he said ‘‘none
of the employees told me that they didn’t want to be rep-
resented by a union.’’ Since the date the contract expired
(April 30, 1989) to date, no employee has told me that he
does not want to be represented by a union at all, Teamsters
or any other, or words to that effect.
Also, on page 3 of Jerry St. John’s affidavit (G.C. Exh.
9) he said:
Although I have never heard all of the employees say
that they didn’t want the Union, nor have I heard all
of them say they wanted to vote on whether or not they
should belong to the Union.
Bill Garrity testified that he sent a letter (G.C. Exh. 2) to
the Board which he and all of Respondent’s employees
signed to vote on whether or not they wanted to belong to
the Union. He acknowledged he is paying counsel (Morgan)
for representing the employees who signed the list and that
they can pay him or not pay him, if they so choose. Garrity
stated that he does not belong to Local 135 although he used
to belong to it for 6 or 7 years. When he has problems he
said he talks to George St. John and that the Union has never
done anything for him. He did not picket and the pickets
were not employees of the Respondent, but were mostly
strangers to them.
Garrity admitted he has known George St. John for many
years and that he had contacted Jerry St. John and asked him
how could he get in touch with the NLRB. Jerry told him
he thought the NLRB would help the employees, if that was
their position. Before the employees signed the petition, he
said he did not want the Union to represent him; and that
he only talked to Roger Richardson before he went to Mor-
gan’s office to have him draw up the petition. The petition
was his (Garrity’s) idea, and he did not talk to the other em-
ployees beforehand. Nonetheless, all of the employees went
to Morgan’s office and signed the affidavit. He did not talk
with any of them after they signed.
Paragraph 7(b) of the complaint was amended as para-
graph 9(b) as follows:
As of April 18, 1990, the following employees except
Leonard Ross and Joseph Defibaugh signed the list
(General Counsel’s Exhibit 2) and were in Respond-
ent’s employ:
1. Timothy Collins Truck Driver
2. Kelly Combs Truck Driver
3. Raymond Derringer Truck Driver
4. Kyle Evans Truck Driver
5. Bill Garrity Truck Driver
6. Donald Galyean Mechanic
7. Hubert James Truck Driver
8. Warren Malcomb Mechanic
9. Edward Megel Dozer Operator
10. Roger Richardson Mechanic
11. Leonard Ross Truck Driver
12. Ronald Rowlett Truck Driver
Joseph D. Defibaugh, Michael Chestnut, and Albert
Symons no longer worked for Respondent after the summer
of 1989, ending in October 1989. They were all truckdrivers.
Analysis and Conclusions
It is established by the uncontroverted evidence that the
Respondent and the Union have been parties to collective-
bargaining agreements since 1980, and the Union has been
so recognized as the collective-bargaining representative of
Respondent’s truckdriver employees. The last contract be-
tween the parties was by its terms in effect until April 1,
1989. However, that agreement was extended by agreement
of parties through April 30, 1989 while the parties continued
negotiations unsuccessfully for a new agreement.
728 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
When a negotiator for the Union, Ron Hudson died May
6, 1989, his negotiating duties with the Respondent were as-
sumed later in May by David Young.
Business Agent Young contacted Respondent by letter and
telephone on June 7, 1989 and informed it of the death of
Hudson; that he (Young) was assuming Hudson’s negotiating
duties; that the contract had expired April 30, and he was re-
questing an opportunity to meet with Respondent to com-
mence negotiations for a new contract. The parties agreed to
meet or communicate on or about June 12 and 13 to nego-
tiate or establish a time to negotiate.
However, during the interim, the credited evidence estab-
lished that Respondent (Vice President Jerry St. John) ap-
proached truckdriver Roger Richardson, and asked Richard-
son how he felt about the Union, and if the employees had
an election what would he do. Jerry St. John also told Rich-
ardson he had asked other employees the same questions.
When Richardson— said ‘‘we’’ need the Union, truckdriver
William Garrity, who had appeared during a part of a con-
versation, asked Jerry could the employees hold their own
election on whether or not they wanted to be represented by
the Union. Jerry said he had no problem with the idea, that
he thought they should have the right to vote on whether or
not they want the Union.
When the parties communicated again on June 12, they
discussed the miscellaneous and heavy and highway con-
tracts but no agreement was reached. Respondent said they
would be getting together again, but 6 days later, Respondent
filed an RM petition Case 25–RM–554.
Jerry St. John stated in his letter of June 21, 1989, that
a majority of Respondent’s employees said they wanted to
vote on whether the employees wanted to be represented by
the Union (G.C. Exh. 2). It was established at the hearing
in June 1989, that 3 of the employees named on the list of
13 employees were not truckdrivers. Notwithstanding, the
letter does not state that the employees informed St. John
they did not want to be represented by the Union, but simply
that they wanted to vote on whether they wanted to be rep-
resented by the Union. However, when the St. Johns gave
the above testimony or statements of what the employees
told them, it is clear that a majority of employees did not
tell him they did not want to be represented by the Union.
Under these circumstances, I find that the employees’ state-
ments to George or Jerry St. John do not constitute sufficient
objective considerations to support Respondent’s withdrawal
of recognition of the Union, because the employees did not
want to be represented by the Union, or a reasonable doubt
that the Union did not represent a majority of the employees.
Laverdiere’s Enterprises, 297 NLRB 826 (1990); Byran Me-
morial Hospital, 279 NLRB 222 (1986).
On July 25, 1989, the Union (Young) again requested Re-
spondent to meet to negotiate a new agreement on any days
between July 31 and August 4, 1989.
The Respondent withdrew its request for its RM petition
and the withdrawal was approved the same day and dis-
missed. In a letter dated August 9, 1989, Respondent in-
formed the Union that there existed a doubt whether the
Union represented its employees; and that the Union is not
certified by the NLRB. Respondent suggested a petition for
an election to determine the representative status of the
Union.
Although the Union sent another letter to Respondent
dated August 21 requesting a meeting to negotiate a new
agreement, it did not receive a response from Respondent.
An RD petition was filed with the Board by truckdriver Wil-
liam Garrity on August 30, and the Union filed the charge
herein on August 31, 1989.
The Union called Respondent (Morgan) September 11 and
requested a meeting to negotiate a new agreement. Respond-
ent (Morgan) informed the Union it had nothing to say be-
cause of the decertification petition.
Although Jerry St. John stated in his affidavit of Sep-
tember 26, 1989 that in July 1989, employees Richardson
and Garrity asked him if they had any say in whether or not
they were union or nonunion, and that Richardson said there
were more than just himself who thought they should have
the right to decide; that on or about September 18, 1989, em-
ployee Derringer asked him (Jerry) if the employees’ were
going to be able to decide that question; or that during July
and August 1989, he heard every unnamed employee at one
time or another, tell him or each other, that they should have
the right to decide whether they want to be represented by
the Union; and that he (Jerry) could only recall 3 of 10 em-
ployees stating they should have the right to decide.
Based on the foregoing uncorroborated testimony and de-
meanor of Jerry, I do not credit his testimony, and I find that
none of the unidentified employees told Jerry St. John, nor
did Jerry over hear any of said employees unequivocally
state that they did not want to be represented by the Union.
In any event, even if employees made such statements to
Jerry St. John, whose testimony or statements I do not credit,
it is especially noted that the statements attributed to the em-
ployees were all made after the Respondent withdrew rec-
ognition of the Union on June 25, 1989. Jerry St. John’s
statements and testimony are not supported by any employee
witnesses. Such alleged statements by employees do not sup-
port a defense of objective-considerations. Louisiana-Pacific
Corp., 283 NLRB 1079, 1080 (1987); Laverdiere’s Enter-
prises, supra.
It is clear from the credited testimony, supra, that on or
about June 15, 1989, Jerry St. John, vice president and super-
visor of Respondent, came to Richardson and asked him how
he felt about the Union and if they (the employees) had an
election what would he do; and that he, Jerry, had asked
other employees the same questions. At the time of the
above conversation on or about June 15, 1989, the record
does not show that Respondent had, or expressed it had, a
good-faith doubt about the Union’s continued majority status.
Nor did Respondent present any objective considerations
about the Union’s majority status on or before its letter of
June 21, 1989. Consequently, I find that Respondent’s (Jerry)
interrogation or polling of employee Richardson and other
employees constituted an interference with, restraint upon,
and coercion against the exercise of employees’ protected
rights, in violation of Section 8(a)(1) of the Act. Texas Pe-
trochemical Corp., 296 NLRB 1057 (1989).
Respondent (George St. John) admitted that since it re-
ceived the Union’s July 25, 1989 letter requesting a bargain-
ing meeting, it has not bargained with the Union because it
had a good-faith doubt that the Union represented a majority
of its employees. Respondent reiterated its refusal to bargain
with the Union for the same reason in its August 9, 1989 let-
ter to the Union. Additionally, Respondent also asserted in
729ST. JOHN TRUCKING
its answer and in its testimony at the hearing that it has re-
fused to recognize and bargain with the Union since its re-
ceipt of the Union’s August 9 request to bargain because it
had a good-faith doubt whether the Union represented a ma-
jority of its employees.
However, the Board has long held that a contractually rec-
ognized bargaining representative of employees’ enjoys an
irrebuttable presumption of majority status during the life of
the contract, and a rebuttable presumption of majority status
after the contract expires. Bickerstaff Clay Products, 286
NLRB 295 (1987); Base-Wyandotte Corp., 276 NLRB 498
(1985).
There is no dispute that the contract in the instant case ex-
pired April 30, 1989. Since it is unequivocally established by
the evidence that Respondent has refused to recognize and
bargain with the Union only 11 weeks after the contract ex-
pired, its refusal occurred during the effective period of the
Union’s rebuttable presumption of majority status. Under
these circumstances, Respondent’s doubt of majority status
must be based on objective considerations.
It has been long held that an employer may lawfully poll
its employees about their continued support for an incumbent
union, as well as it may withdraw recognition from an in-
cumbent union whenever it makes a prerequisite showing of
sufficient objective considerations on which an employer can
base a reasonable doubt about the Union’s continued major-
ity status. United States Gypsum Co., 157 NLRB 652, 653
(1966).
In addition to evidence supporting a reasonable doubt, the
employer must also provide the union with reasonable ad-
vance notice of the time and place of the poll, and that the
poll itself must be conducted in accordance with the proce-
dural safeguards set forth in Struksnes Construction Co., 165
NLRB 1062 (1967), as follows:
(1) the purposes of the poll is to determine whether
the Union enjoys majority support;
(2) the purpose is communicated to the employees;
(3) assurances against reprisals are given to the em-
ployees;
(4) the employees are polled by secret ballot; and
(5) the employer has not engaged in unfair labor
practices or otherwise created a coercive atmosphere.
In the instant case, the Respondent probably did comply
with safeguard (1), in that its polling of the employees was
to determine whether the Union still enjoyed majority status.
Respondent did not comply with safeguard (2) because the
evidence does not show that Respondent communicated the
purpose of its poll to employee Richardson or other employ-
ees.
The evidence fails to show that Respondent complied with
safeguard (3) because it is not shown that Respondent (Jerry
St. John) gave Richardson or any other employees whom he
asked about the Union, assurances against reprisals. He mere-
ly told them they should have the right to decide whether or
not they wanted to be represented by the Union.
Nor does the evidence show that the employees were
polled by secret ballot as is required by safeguard (4).
The credited evidence has not only failed to show that Re-
spondent did not engage in unfair labor practices or other-
wise created a coercive atmosphere, but instead, has estab-
lished that Respondent created a coercive atmosphere when
it interrogated or polled employee Richardson and other em-
ployees, by asking them how they felt about the Union and
how would they vote if the employees held a union election.
No assurances were given them against reprisals. Such poll-
ing or interrogation of employees is coercion against employ-
ees’ Section 7 protected rights, and are in violation of Sec-
tion 8(a)(1) of the Act. Struksnes Construction Co., supra.
Respondent’s Contended Objective Considerations
In an effort to show that employees did not want the
Union to represent them, Respondent introduced the testi-
mony of the following employees:
Warren Malcomb, a mechanic in Respondent’s employ 16
years, testified that he is not and never has been a member
of the Union (Teamsters) and he was never asked to become
a member.
Ronald Rowlett was in the employ of the Respondent 2
years as a truckdriver. He testified he is not and never has
been a member of the Local or the Teamsters. He denied
Jerry St. John said anything to him about the Union and he
did in fact drive his truck across the picket line.
Kyle Evans was in the employ of the Respondent 11 years
and is a friend of George and Jerry St. John. He testified that
Jerry St. John never talked to the employees about the Union
and that he (Evans) drove through the picket line. He also
said he does not know the Union’s business agents.
James Brunner has been a truckdriver with the Respondent
since 1974. He testified that he did not know the Union’s
business agents.
Timothy Collins was employed by the Respondent as a
truckdriver. He testified that he had never talked to Jerry St.
John about the Union and he acknowledged he saw David
Young, business agent for the Union on the picket line with
other strangers.
Kelly Combs, employed by the Respondent as a truck-
driver, testified that Jerry St. John never contacted him about
union affairs. He said he drove through the picket line.
Raymond Derringer, employed by the Respondent nearly
2 years, testified that he was not a member of the Teamsters
or the Local and that he never talked to any member of the
Union. He further testified he talked to Jerry and probably
to George St. John about employees having a right to deter-
mine whether they wanted to be represented by the Union.
He said he started the conversation.
Donald Galyean, a mechanic, testified he never talked to
the Union’s business agents and he never talked to Jerry St.
John about the Union.
Edward Megel was in the Respondent’s employ 12 years.
He testified he crossed the picket line and that the St. Johns
never talked to him about the Union.
Leonard Ross employed as a truckdriver for one year, tes-
tified he was not a member of the Local and that he had
never discussed the Union with the St. Johns.
The parties stipulated that Michael Chestnut left the em-
ploy of the Respondent on July 13, 1990; Danny Defibaugh
left the employ of the Respondent November 18, 1989, and
that Al Symons left the Respondent’s employ November 25,
1989.
William Richardson, Jr. has been employed at Berry Mate-
rial Stone Quarry in Hayden 13 years where employees are
represented by Local 135. He testified that as a front-end
loader, he saw a picket at Berry Material, when Business
730 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Agent Young told him on three occasion not to load a St.
John’s truck because the Union was putting a picket up
against St. John trucking; and that as a Teamsters’ member,
he (Richardson) was not to load; that his contract said it was
alright to refuse to load St. John’s trucks. Richardson said he
told Young he would have to talk to his boss and the Union
steward, Dan Hgue.
Conclusion
It is particularly noted that the testimony of 10 of the
above-named employees is interesting and not at all corrobo-
rative of Jerry’s testimony. Only four of the employees wit-
nesses testified they were not a member, nor has ever been
a member of the Union. However, such a statement does not
indicate that either of the four employees did not want the
incumbent Union to represent them.
Four of the above-named employees testified that they
crossed the Union’s picket line, two testified they did not
know the Union’s business agent, but neither said they no
longer wanted the incumbent Union to represent them.
Seven of the 10 above-named employee witnesses said
Jerry St. John never said anything to them about the Union,
and one of the same 7 employees (Evans) said he is a friend
of the St. Johns’ (Respondent). Although I would not credit
all seven of the employees’ testimony in this regard, it is ir-
relevant whether their testimony is credited or not, because,
neither of the seven employees testimony in this regard may
be construed as indicating they did not want the Union to
represent them.
Only employee Derringer testified that he probably initi-
ated a conversation with George St. John about the employ-
ees having a right to determine whether they wanted to be
represented by the Union. While I credited this undisputed
testimony by Derringer, it is not an unequivocal statement
that Derringer actually did not want to be represented by the
Union. Even if it could be construed that he was asking for
an election, or had indicated he no longer wanted to be rep-
resented by the Union, he is only 1 of the 10 employees who
so testified. As such, his single expression could not be at-
tributed to a majority of the employees.
Nor can employee Richardson’s testimony that he refused
to comply with union agent Young’s instructions not to load
a truck, constitute an indication that he did not want to be
represented by the Union.
Respondent’s Reliance on John Deklewa & Sons
The Respondent also argues that Respondent is engaged in
the building and construction industry, and pursuant to John
Deklewa & Sons, 282 NLRB 1375 (1987), it was privileged
to withdraw recognition of the Union herein on expiration of
the contract (Apr. 30, 1989).
The above argument does not appear to be available to Re-
spondent as a defense because the Board has specifically
held that an employer who delivers material such as concrete
to building sites is not an employer engaged in the building
and construction industry. J. P. Sturrus Corp., 288 NLRB
668 (1988). In the instant case, Respondent acknowledged it
is engaged in the transportation of materials (stone and sand)
to jobsites for contractor customers.
In further support of the above conclusion, it is noted, as
counsel for the General Counsel points out, that the expired
contract between Respondent and the Union does not contain
clauses that are characteristic of prehire agreements in the
construction industry. In the instant case, the union-security
clause has a 30-day grace period for union membership,
while the standard period for membership in the construction
industry contracts is 7 days. Consequently, based on the evi-
dence in this record, I find that the Union is a Section 9 bar-
gaining representative and not an 8(f) bargaining representa-
tive. J. P. Sturrus Corp., supra, to which the Deklewa case
might apply.
I therefore conclude and find on the foregoing credited
evidence and cited legal authority, that Respondent has failed
to establish a good-faith doubt of the Union’s majority by
sufficient objective considerations to rebut the rebuttable pre-
sumption of the Union’s majority status. Having failed to es-
tablish actual loss of majority or rebutting presumed majority
status of the Union, I further find that Respondent unlawfully
interrogated or polled employees about their union sym-
pathies and unlawfully withdrew recognition of the Union,
and by doing so, Respondent failed and refused to bargain
with the Union in violation of Section 8(a)(1) and (5) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations described
in section I, above, have a close, intimate, and substantial re-
lation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practice conduct in violation of Section 8(a)(1)
and (5) of the Act, I shall recommend that it be order to
cease and desist and take certain affirmative action designed
to effectuate the policies of the Act.
CONCLUSIONS OF LAW
1. The Respondent, St. John Trucking, Inc., is an employer
engaged in commerce, and in operations affecting commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. Chauffeurs, Teamsters, Warehousemen and Helpers,
Local Union No. 135, a/w International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica is a labor organization within the meaning of Section 2(5)
of the Act.
3. The following unit of truckdrivers employed by Re-
spondent constitute a unit appropriate for purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act:
All truck driver employees at Respondent’s North
Vernon, Indiana facility; BUT EXCLUDING all office
clerical employees, all professional employees, all other
employees, all guards and supervisors as defined by the
Act.
4. At all times material, the Union has been, and is now,
the exclusive representative of all employees in the aforesaid
731ST. JOHN TRUCKING
2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
3 If this Order is enforced by a judgment of a United States court of appeals,
the words in the notice reading ‘‘Posted by Order of the National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
bargaining unit for purposes of collective bargaining within
the meaning of Section 9(a) of the Act.
5. By polling and interrogating its employees about their
union interests, activities, and sympathies, the Respondent
has interfered with, restrained and coerced it employees in
the exercise of their protected Section 7 rights, in violation
of Section 8(a)(1) of the Act.
6. By withdrawing recognition and refusing to recognize
and bargain with the Union, the exclusive representative of
the bargaining unit employees, concerning rates of pay,
wages, hours, and other terms and condition of employment,
Respondent has engaged in unfair labor practice conduct
within the meaning of Section 8(a)(5) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, St John Trucking, Inc., North Vernon, In-
diana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating or polling its employees concerning their
interests, activities or sympathies for the Union.
(b) Engaging in unfair labor practice conduct within the
meaning of Section 8(a)(1) of the Act.
(c) Unlawfully withdrawing recognition of the Union and
failing and refusing to recognize and bargain with the Union
as the collective-bargaining representative of the employees.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request recognize and bargain with the Union as
the exclusive representative of all employees in the afore-de-
scribed appropriate unit with respect to rates of pay, wages,
hours, and other terms and conditions of employment, and if
an understanding is reached, embody such understanding in
a signed agreement.
(b) Post at Respondent’s North Venon, Indiana facility
copies of the attached notice marked ‘‘Appendix.’’3 Copies
of the notice on forms provided by the Regional Director for
Region 25, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notice is not al-
tered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.