Transamerican Freight Lines, Inc.

National Labor Relations Board - Board Decisions

Jan 21, 1959

122 N.L.R.B. 1033 (N.L.R.B. 1959)

TRANSAMERICAN FREIGHT LINES, INC. 1033-
ante with the formula and method prescribed by the Board in F. W. Woolworth-
Company, 90 NLRB 289, to which the parties to this proceedings are expressly
referred.
Upon the basis of the foregoing findings of fact , and upon the entire record in.
this proceeding , I make the following:
CONCLUSIONS OF LAW
1. Western Corrugated, Inc., is, and has been at all times material to this pro-
ceeding, an employer within the meaning of Section 2(2) of the Act.
2. Warehouse Union Local No. 12, International Brotherhood of Teamsters, is,
and has been at all times . material to this proceeding , a labor organization within,
the meaning of Section 2(5) of the Act.
3. By discriminatorily discharging Harlow I. Sauer, as found above , the Re-
spondent has engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8(a)(3) of the Act.
4. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act, as found above , the said Re-
spondent has engaged in and is engaging in unfair labor practices within -the-
meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com -
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Transamerican Freight Lines, Inc. and Automotive Mechanics-
Lodge No . 510, International Association of Machinists , AFL---
CIO. Case No. 13-CA-2534. January 01, 1959
DECISION AND ORDER
On September 10, 1958, Trial Examiner Charles W. Schneider-
issued his Intermediate Report in the above-entitled proceeding,.
finding that the Respondent had engaged in and was engaging in
certain unfair labor practices in violation of Section 8(a) (1), (3),
and (5) of the Act and recommending that it cease and desist there-
from and take certain affirmative action, as set forth in the copy of
the. Intermediate Report attached hereto. Thereafter, the Respond-
ent filed exceptions to the Intermediate Report and. a supporting-
brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Bean, and Fanning].
The Board has reviewed the rulings of the Trial Examiner made-
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report,' the exceptions, the brief, and the entire recordz
I The name of the Respondent 's district manager is incorrectly spelled "Cleveland" in
the Intermediate Report. The correct spelling is "Cleaveland." The report Is corrected
accordingly.
2 The Respondent's request for oral argument Is hereby denied as the record, exceptions,
and brief adequately present the issues and the positions of the parties.
122 NLRB No. 126.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the' case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.3
ORDER
Upon the entire record in the case and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations, Board= hereby orders that the Respondent, Transamerican
Freight Lines, Inc., Milwaukee, Wisconsin, its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Automotive Mechanics Lodge
No. 510, International Association of Machinists, AFL-CIO, or in
any other labor organization of its employees, by discriminating in
regard to hire or tenure of employment or any term or condition of
employment.
(b) Failing and refusing to bargain collectively with the exclu-
sive bargaining representative of its employees in the appropriate
unit.
(c) Interfering with, restraining, or coercing employees in the
exercise of their right to self-organization, to form labor organiza-
tions, to join or assist Automotive Mechanics Lodge No. 510, Inter-
national Association of Machinists, AFL-CIO, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection,
or to refrain from any and all of such activities, except to the extent
that such right may be affected by an agreement requiring member-
ship in a labor organization as a condition of employment, as au-
thorized in Section 8(a)(3) of the Act.
(d) Requiring applicants for employment to answer any question
concerning their union -membership.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Offer to Frank Matteoni and James Getchell immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights or
privileges, and make them whole, in the manner set forth in section V
of the Intermediate Report entitled "The Remedy."
8 We agree with the Trial Examiner's finding that the inclusion of an interrogatory as
to union membership on the employment application form violated Section 8(a) (1) of
the Act. However our finding is based not on the per se violation theory of the Trial
Examiner, but on the fact that in the context of the unfair labor practices committed
the interrogatory had a coercive effect. Sebastapol Apple Growers Union, 118 NLRB
1181. The Trial Examiner found that the oral interrogation of certain employees by
the Respondent's supervisors did not violate Section 8(a) (1) of the Act. As no exceptions
,were filed to,this finding, we, adopt it pro forma.
TRANSAMERICAN FREIGHT LINES, INC. 1035
(b) Preserve and make available to the Board or its agents, upon
request, for examination or copying, all payroll records, social se-
curity payments records, timecards, personnel records, reports and
all other records necessary to analyze the amounts of back pay due
under the terms of this order.
(c) Upon request, bargain collectively with Automotive Mechanics
Lodge No. 510, International Association of Machinists, AFL-CIO,
as the representative of the employees in the appropriate unit, with
respect to rates of pay, wages, hours of employment, and other
conditions of employment, and, if an agreement is reached, embody
it in a signed contract.
(d) Post at its terminal and garage at Milwaukee, Wisconsin,
copies of the notice attached to the Intermediate Report marked
"Appendix A."' Copies of said notice, to be furnished by the Re-
gional Director for the Thirteenth Region shall, after being signed
by a duly authorized representative of Transamerican Freight Lines,
Inc., be posted by the Respondent immediately upon receipt thereof
and maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Re-
spondent to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for the Thirteenth Region in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply therewith.
4 This notice is amended by substituting for the words "The Recommendations of a
Trial Examiner" the words "A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals , there shall be substituted for
the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT -OF THE CASE
A charge and amended charge having been duly filed and served, a complaint and
notice of hearing thereon having been issued and served by the General Counsel
of the National Labor Relations Board, and an answer having been filed by the
above-named Respondent Company, a hearing involving allegations of unfair labor
practices in violation of Section 8(a)(1) and ( 3) of the National Labor Relations
Act, as amended ( 61 Stat. 136), was held in Milwaukee , Wisconsin , in April and
May 1958, before the duly designated Trial Examiner.
As to the unfair labor practices , the complaint alleged in substance , and the
answer denied, that the Respondent : ( 1) refused to bargain collectively with the
Union; (2) discharged Frank Matteoni , and transferred James Getchell and sub-
sequently laid him off, because Matteoni and Getchell had joined or assisted the
Union or engaged in concerted activity ; and (3 ) interrogated employees concerning
their union activity.
All parties were represented at the hearing, were afforded opportunity to be
heard , to examine and cross-examine witnesses , to introduce evidence pertinent to
the issues , to argue orally upon the record , and to file briefs and proposed findings
of fact and conclusions of law . Briefs have been received and considered.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record, and from observation of the witnesses, L make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Transamerican Freight Lines, Inc., a Delaware corporation having its principal
office at Detroit, Michigan. Transamerican maintains terminal garages and/or
other facilities for the interstate carriage of goods in approximately 24 States where
it is now, and at all times material has been, engaged as a common carrier trans-
porting freight and merchandise by motor truck between and among the various
States of the United States. Among other terminals maintained by the Respondent
is one at Milwaukee, Wisconsin, the facility here involved.
In the course and conduct of its- business during the calendar year 1957 the
Respondent transported freight and merchandise between Wisconsin and other
States of the United States, for which it received in excess of $500,000.
It is conceded and found that the Respondent is engaged in commerce within
the meaning of the Act.
IT. THE LABOR ORGANIZATION INVOLVED
Automotive Mechanics Lodge No. 510, International Association of Machinists,.
AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Respondent is a common carrier transporting interstate and local freight by
truck in some 24 States. In connection therewith the Respondent maintains freight
terminals, and generally garages, in approximately 27 cities, including Milwaukee.
The Milwaukee terminal and garage have been at all times material under the
management of Mr. Jerome L. Cleveland, district manager.
At the Milwaukee terminal the Respondent employs an office force, a crew of
drivers and freight dockmen, and garage personnel. The garage is responsible for
the maintenance of operating equipment, including tractors and trailers used both
over the road and locally, and of terminal dock equipment, such as lift trucks.
It is the situation at the garage and the persons there employed, specifically in
April and May 1957, which give rise to the questions in issue. The other per-
sonnel are not involved. A brief reference to events prior to April 1957 is
necessary.
Beginning in the latter part of 1955 the Respondent embarked upon a program
of modification and renovation of its rolling equipment in conformance with certain
Interstate Commerce Commission directives. In that connection the Respondent
increased its garage staffs on a countrywide basis from 121 in January 1956 to a
high of 140 in April 1957. At around the same time the Respondent also began
to add new or later equipment to its rolling stock, replacing older vehicles. At
the time of hearing it was anticipated that by July 1, 1958, some $ 6 million in
new equipment would have been added; making possible economies in operation
and maintenance.
In November 1956 District Manager Cleveland hired Frank Matteoni, a me-
chanic, at the Milwaukee terminal, at first on a part-time basis, but after several
weeks on a full-time basis. When Matteoni was hired he indicated, in response
to a question on the Respondent's employment form, that he held a withdrawal
card from the charging union. Noting this, District Manager Cleveland asked
Matteoni whether he had to belong to the Union. After some hesitation Matteoni
said no, but that if he were "caught" working in the shop, he would have to be
reinstated. Cleveland further told Matteoni that the garage was not union, and
that he "would like to keep it so." On the following day Cleveland telephoned
Matteoni and offered him employment, which Matteoni accepted.
On April 30, 1957, District Manager Cleveland received a memorandum from
the Respondent's home office at Detroit, over the signature of William Bailey, the
Respondent's director of maintenance. In this memo Bailey cautioned Cleveland
against excessive overtime, stating that continuance of overtime as in the past would
make it necessary to reduce force. The substance of Bailey's memorandum is
as follows:
It has become necessary in several of the other terminals to reduce the
working force in the shops. Your terminal is not, at this time, being asked to
reduce the number of employees employed, but it is very essential that the
TRANSAMERICAN FREIGHT LINES' INC. " 1037
overtime 'be kept to an absolute minimum and should 'this overtime continue
at is has in the past several months it will be necessary to have a reduction
in the working force at your terminal.
On May 8, 1957, District Manager Cleveland responded to Bailey's communica-
tion by memo in which he stated, in sum, that every effort was being made to
curtail overtime, but that reducing force would hamstring operations and result
in loss of business. The substance of Cleveland's reply to Bailey is as follows:
This is to acknowledge receipt of your letter of April 30 and to advise that
we have been watching the overtime as closely as possible and in every in-
stance have been trying to reduce it.
We think that we are getting as much production as we can out of our men
but nevertheless, George 1 and I will review that again this week to see if
there is any possible way to get more on straight time or possible to adjust
the hours so that when a man works on Saturday we may have to cut him off
some time during the week.
To reduce the force, however, would only mean that much important work
could not be done and some of our freight operations would be hamstrung.
Our back is up against a wall now with our only having 6 road semis at
Milwaukee and if we have to hold up any trailers for repairs, it would mean
a reduction in business.
P.S. For the payroll week ending May 3 our shop overtime for the four
men totaled 51 hours. The week previous totaled 7'h hours, of which 51
hours was on Saturday.
On May 18, 1957, four persons were employed in the Milwaukee garage:
George Gage, foreman, concerning whose supervisory status there is dispute, re-
solved hereafter; Frank Matteoni, Melvin Olson, and James Getchell. Getchell
was first employed on the dock about 1950 and transferred to the garage sometime
later. The others were hired for the garage in the first instance.
For some time the Respondent has had contracts with the Teamsters Union
covering its drivers and dockmen. The Charging Union is also under contractual
agreement with other trucking employers in the area covering garage mechanics.
However, up to May 1957, the time of the principal events herein, the Milwaukee
garage employees of the Respondent were unorganized. District Manager Cleve-
land's comment to Matteoni concerning unionization in the garage has been related
heretofore.
On May 18, 1957, Matteoni, Getchell, and Olson went to the union office in
Milwaukee where they signed cards applying for membership in the Union. On
May 20, Julius Drozewski, business representative of the Union, sent a letter to
the Respondent at the Milwaukee terminal, informing the Respondent that a ma-
jority of its mechanics at the terminal had authorized the Union to represent them
for purposes of collective bargaining. Drozewski further requested an early con-
ference for the purpose of discussing a collective-bargaining agreement. This letter
was received by the Respondent on May 21, 1957, at about 8 or 8:30 a.m.
District Manager Cleveland saw it, according to his testimony, about 3 or 3:30 p.m.
Between 4 and 4:30 p.m. Cleveland summoned Matteoni to the office and, without
prior notice, permanently terminated his employment. The explanation given to
Matteoni by Cleveland was that he had orders to cut expenses and therefore had
to lay Matteoni off.2
Within the next 2 days Foreman Gage asked employees Olson and Getchell
whether they had joined the Union, and when informed that they had, indicated his
disapproval. District Manager Cleveland also questioned Olson concerning his
union status, and told Olson that he could back out if he wanted to, that it was
not too late.
On May 24, having received no response to his letter to the Respondent, Business
Representative Drozewski called on District Manager Cleveland at the terminal.
Drozewski told Cleveland that the Union represented a majority of the garage
employees. Cleveland questioned the Union's majority and suggested that Drozewski
identify the individuals who had designated the Union. Drozewski gave him the
names of Matteoni, Getchell, and Olson. At the same time Drozewski proffered
1 George Gage, foreman of the garage.
S The finding that Matteoni was terminated between 4 and 4 :30 p.m . Is based on the
credited testimony of Matteoni, Foreman Gage , and James Getchell.' District Manager
Cleveland was uncertain as to the exact time. In view of the evidence , I find untenable
the suggestion that the action occurred in the morning.
1038 DECISIONS OF NATIONAL LABOR RELATIONS -BOARD
for Cleveland's inspection the signed application for membership cards of the three
men. Cleveland replied, according to Drozewski, that he "doubted that they were
mechanics,"; and said that he had. "only, one mechanic .., . . Mr. Gage," whom
Cleveland identified as "the supervisor." Cleveland did not look at the applica-
tion cards.
Drozewski submitted a draft of a proposed collective-bargaining contract. As
to this, Cleveland said that he had no authority to execute such a document without
home office approval. Drozewski suggested that Cleveland contact the home office
and arrange a .meeting for the following week, and the conversation concluded
with Cleveland agreeing to contact Drozewski further. The testimony does not
indicate that Cleveland informed Drozewski that Matteoni had been terminated, or
that any other personnel changes were anticipated. This was on Friday.
On the following Tuesday, May -28; Cleveland, again without prior notice, .trans-
ferred Getchell from the garage to the dock, thus taking him out of the garage
unit. The reason asserted by the Respondent for eliminating Getchell from the
garage was to reduce garage expense by reducing employment; the reason for
transferring him to the dock to reduce dock expense, by eliminating overtime.
Getchell's credited testimony is that at the time of the transfer Foreman Gage
said to him, "If you guys would have come and talked it over with me first, you
never would have been transferred." s
On Wednesday, May 29, the day following Getchell's layoff, Business Representa-
tive Drozewski, having heard nothing further from Cleveland, called upon J. C.
Williams, president of Hillside Transit Company, a local hauler. Williams is a
past president of the American Trucking Association, and associated with an em-
ployers organization which deals and contracts with the Union. At Drozewski's
.suggestion Williams telephoned District Manager, Cleveland to -allay any."apprehen-
sion" which Cleveland might have had concerning the Union or the contract.
Cleveland told Williams that the Union had no majority. Williams asked whether
that was not the result of Cleveland's action in transferred or discharging em-
ployees. Cleveland responded in the affirmative but stated that he had "other
reasons" for so doing. More specifically, Cleveland said that the company had
written asking him to eliminate unnecessary expense and overtime on the dock, and
that he had therefore transferred a man to the dock from the garage. Williams
indicated doubt as to the economics of such a solution; Cleveland responded that
those were a matter for debate. Williams then questioned the propriety and
legality , of the, action in view • of the Union's • pending request for recognition.
Cleveland told Williams that he had considered the matter but that he felt that
"this was the best way out because then there would be no labor problem." The
conversation concluded with the request by Cleveland that it be kept confidential.
Later the same day Business Representative Drozewski telephoned District Man-
ager Cleveland and attempted to arrange a meeting for the following Friday.
Cleveland suggested a date of June 3, assigning as a reason the intervening Memo-
rial Day and his desire to have a home office representative present. Drozewski
acquiesced.
The meeting was held on June 3d. The participants were Cleveland for the
Respondent and Drozewski for the Union. Drozewski suggested a consent -election
under the auspices' of the Wisconsin Employment Relations Board;. and presented
the appropriate forms. Cleveland suggested the N.L.R.B. instead, to'. which
Drozewski agreed. Drozewski then presented his list of eligible voters, containing
the names of Matteoni, Getchell, and Olson. At this point Cleveland stated that
Matteoni was no longer an employee and that Getchell had been transferred to
the dock; thus leaving, he said, only Gage and Olson as eligible voters. Drozewski
indicated his belief that the Respondent was evading its responsibilities under the
law, there was some further fruitless discussion, and the 'meeting concluded.
Subsequently the Union filed the instant charges of unfair labor practice.
During the calendar year 1957, because of increase in expenses, the Respondent's
net profit was substantially lower than in 1955 and 1956, though its gross revenues
were substantially larger.
Between April 1957 and December 1957 the number of mechanics, systemwide,
declined from 140 to 134, a reduction of 6. Between December 1957 and
April 11, 1958, the latest period for which we have statistics, there was a further
reduction of 11, from 134 to 123.
a Subsequently, in November 1957, Getchell was laid off in a reduction in force on the
dock. There is no contention that that layoff was actuated by discriminatory motives.
TRANSAMERICAN FREIGHT LINES, INC. 1039
Conclusions
In his complaint the General Counsel charges the Respondent with three basic
unfair 'labor •practices:'=- (1,)- unlawful- refusaF to bargain • with the` Union;' (2) un-
lawful discrimination in the termination of Matteoni and the transfer of Getchell;
and (3) unlawful interrogation of employees regarding union activities. The Gen-
eral Counsel also contends that George Gage is a supervisory employee.
The Respondent denies all the unfair labor practice allegations; and denies that
Gage is a supervisor. It contends that Matteoni was permanently laid off and
Getchell transferred in a bona-fide reduction of force in the garage; and that as
a consequence the Union had no majority and the Respondent under no obligation
to treat with it.
There-is^ no- dispute'as to the -propriety of the bargaining unit-alleged, in--the-
complaint, substantially consisting of mechanics and helpers in the garage, and
more specifically described hereinafter. The said unit is found to be appropriate
within the meaning of Section 9(b) of the Act.
It is further found that on May 20 and 28, 1957, and at all intervening times
the Union was the duly designated collective-bargaining representative of the em-
ployees in the appropriate unit, within the meaning of Section 9(a) of the Act.
Whether the Union continued to be such representative and the Respondent required
to recognize it are substantial issues here.
We turn now to a resolution of the disputed questions . First, the issue of the
supervisory status of George Gage.
Supervisory Status of Gage
GeorgerGage is.,in charge,,of all garage 'work-at the Milivaukee-termidali- Gage'
was described by District Manager Cleveland as "working foreman" of the garage.
In his testimony on behalf of the Respondent, Gage identified himself as the "boss,"
"foreman," or "supervisor" of the garage, and was similarly identified by employee
witnesses.
Gage directs the work of the garage employees, assigns them jobs, determines
what materials are required and purchases them. Until relatively recently, when
the office force took over the task, Gage also performed some clerical tasks neces-
sary in connection with garage work orders.
Gage inspects the work of the garage employees, and acts as the conduit of
any orders. from above respecting the garage, specifically from District Manager
Cleveland or from William Bailey, the Respondent's director of maintenance, whose
headquarters are at the home office in Detroit. Gage is responsible for the proper
operation of the garage and for the performance, criticizing work and reprimanding
employees where necessary. Gage's testimony suggests that employees are expected
to bring their grievances either to Gage or to Cleveland for discussion.4
Gage is employed on an hourly basis, punches a time clock, and does some
manual work estimated by Matteoni (who gave the only specific testimony on the
point) at 10 percent to 25 percent of his time. Gage's hourly rate is higher than
that of the other employees and, in addition, he is guaranteed a minimum employ-
ment .of 44 hours per week. The regular workweek is 40 hours, without guarantee.
Though he is supposed to. clear such matters with District Manager" Cleveland,
Gage grants employees permission to be off from work.
Gage does not hire or discharge employees. However, he is consulted by Dis-
trict Manager Cleveland with respect to these matters, interviews applicants for
employment, and makes recommendations which, though not always followed by
Cleveland, seem generally effective.
Saturday work is sometimes required in the garage. Though expected to clear
with District Manager Cleveland if possible on such occasions, Gage has, and
exercises authority to order Saturday work and to direct which employees should
report.
The Respondent, at its expense, has had a telephone installed at the place where
Gage lives. The Respondent pays the cost maintaining this service, which is for
the convenience of itself and Gage.
Gage appears to have authority to determine what disposition should be made
of jobs coming into the garage, that is, whether they should be performed there
4 Thus Gage testified that when he learned that Getchell and Olson had gone to the
Union he told them :
If there was something wrong, if you weren't satisfied, why didn't you say some-
thing. . . . Why didn't you come to me or Mr. Cleveland?
1040 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or done outside, or referred to the Respondent's major maintenance shops at
Chicago and Detroit.
It has been seen that when Union Business Representative Drozewski spoke to
District Manager Cleveland on May 21, Cleveland told Drozewski that Gage was
the supervisor.
On the basis of these record facts I conclude that George Gage responsibly
directs and assigns employees and makes effective recommendations respecting their
.employment, and that in so doing he exercises independent judgment. These I be-
lieve to be attributes of substantial supervisory status. I therefore find Gage to be
a supervisory employee within the meaning of Section 2(11) of the Act.
The Refusal To Bargain and the Discrimination
Serious question is raised at the outset as to whether the action of the Respond-
ent in effectually liquidating the appropriate unit by unilateral action at the time
-when, and with notice that, the Union was the representative of a majority of the
employees therein is not, without more and without regard to the Respondent's
:motives, a refusal to bargain. That question, however, it is unnecessary to decide.
.As we have seen, while the request for recognition was pending the Respondent
:reduced the appropriate unit to one employee if Gage is a supervisor, and to two
employees if he is not. In the former case no appropriate bargaining unit remains
(See International Salt Company, Inc., 74 NLRB 1253, 1256 and cases there cited.)
In the latter case the Union has no majority, representing only one of the two
employees in the unit, Olson.
An employer may decline to recognize a union as a majority representative and
Insist upon an election and certification, if he has good-faith doubt as to the
Union's status as such representative. However, a certification by the Board is not
a prerequisite to an employer's duty to bargain. Where there is a majority repre-
sentative, "The employer is obligated to recognize the designated union." United
Mine Workers of America v. Arkansas Oak Flooring Co., 351 U.S. 62, 71-2;
Concrete Joist & Products Co., Inc., 120 NLRB 1542. In that respect the Second
Court of Appeals recently said in the case of N.L.R.B. v. Sunrise Lumber & Trim
'Corp., 241 F. 2d 620 (C.A. 2):
it is the duty of an employer to bargain with the majority representative
of its employees whether or not that representative has been certified.
Indeed, the Board has held that the pendency of a petition for certification does
not excuse a refusal to bargain when the facts disclose no ground to doubt the
-majority claim and the circumstances indicate that the employer was not concerned
-with the Union's majority. Lewis Karlton, d/b/a Consolidated Frame Company,
-91 NLRB 1295.
To comply with statutory responsibilities the refusal to recognize must be in
good faith and the result of "bona fide doubt as to the Union's majority" (Joy Silk
Mills, Inc., 85 NLRB 1263, 1264). It may not be used with purpose to delay or
frustrate bargaining. As the Court of Appeals for the District of Columbia said
in granting enforcement of the Board's order in that case: (185 F. 2d 732, 741,
-cert. denied 341 U.S. 914):
It has been held that an employer may refuse recognition to a union when
'motivated by a good faith doubt as to that union's majority status. .
When, however, such refusal is due to a desire to gain time to take action
to dissipate the union's majority, the refusal is no longer justifiable and con-
stitutes a violation of the duty to bargain set forth in Section 8(a)(5) of
the Act.
'This view was reiterated by the Board in the case of A. L. Gilbert Company, 110
NLRB 2067, 2069. See also KTRH Broadcasting Company, 113 NLRB 125.
Whether the expressed doubt is sincere or insincere must be determined from
all the relevant facts and circumstances in the individual case. Joy Silk Mills,
supra, 1264; A. L. Gilbert Company, supra, 2069. In the instant situation I am
persuaded that the relevant facts and circumstances reflect a refusal to bargain in
good faith within the meaning of the Joy and Gilbert decisions. And see E. V.
Prentice Machine Works, Inc., 120 NLRB 417.
As we have seen, on May 18, 1957, three of the four individuals employed in
-the garage designated the Union as their collective-bargaining representative. On
May 21 the Respondent was notified by letter, of the fact that the Union claimed
a majority, and request was made for recognition and a contract. The Respondent
TRANSAMERICAN FREIGHT LINES, INC. 1041
made no apparent response, other than to terminate Matteoni, the most likely
member of the Union. Despite that action, however, the Union still retained a
majority by reason of the designations of Getchell and Olson.
No further changes in the bargaining unit occurred until May 28, when Getchell
was transferred. In the meantime, on May 24, Business Representative Drozewski
called upon District Manager Cleveland, reiterated the Union's claim to majority,
and again requested bargaining. What transpired at that meeting has been related
heretofore and need not be repeated. Suffice to say that when Cleveland inquired
as to which employees had designated the Union, Drozewski identified them by
name and submitted their signed cards for Cleveland's inspection. The Respondent
could now be sure of the extent and identity of the Union's majority. Neither
Cleveland's statements at the time, nor his testimony, disclose any basis for doubt
as to the authenticity of the designations. No reasonable ground is apparent now
and none is suggested by the Respondent.
It thus seems unlikely that Cleveland could have had any genuine question as
to the Union's majority after this meeting. In any event the Respondent could
have had no uncertainty after Gage and Cleveland had questioned Olson and
Getchell concerning whether they had joined the Union, and been informed that
they had.
In this posture of affairs it becomes necessary to examine the reasons offered
by the Respondent for Matteoni's severance and Getchell's transfer, as bearing on
its good faith.
The Respondent's contention is that these actions were taken for economic
reasons, namely, reduction of force in order to curtail expenses. It says that with
the completion of the modification program and the acquisition of newer equipment
it required fewer maintenance employees, and that consequently it reduced force
in 1957, not only at Milwaukee but throughout the system. Additionally the
Respondent urges that District Manager Cleveland acted under the pressure of
reduction of profits in 1957.
None of these factors, however, seem adequate to explain the displacement of
Matteoni and Getchell. That valid reasons might justify a reduction in force-or
even that such a reduction occurred-is of no significance if those reasons were
not the moving cause of the action under inquiry. And the circumstances indicate
that they were not. The grounds for this conclusion are as follows:
First, the loss of profits in 1957 may serve to explain the reductions which took
place between December 1957 and April 1958, and it seems reasonable to me
that they do; but it will scarcely explain those in May 1957. Secondly, there was
no pressure on District Manager Cleveland by the home office to reduce garage
employment. The request was to reduce overtime. Reduction in force could
hardly achieve that result; in fact, it would seem to tend to increase overtime.
Finally, though there was some reduction in garage employment systemwide in
1957, it does not seem sufficient, in the light of the circumstances, to explain the
action at Milwaukee in May.
Thus the statistics disclose a net reduction of two garage employees throughout
the system over the entire calendar year. The Respondent began the year with
136 garage employees; it ended the year with 134. Its average employment over
the year was 135, with a high of 140 in April and a low of 132 in October. Four
terminals actually increased net garage employment over the year.
Only six garages reduced net employment over the year, and only two of them,
Detroit and Milwaukee, reduced more than one employee. Detroit, which does
major overhaul work for the entire system, cut from 40 to 37. This is to be
compared with Milwaukee's cut from four to two. No terminal but Milwaukee
reduced as much as 50 percent.
The drop in employment in 1958, reflecting the less favorable profit report in
1957, can have no relation to the displacement of Matteoni and Getchell.5
When viewed against the background of District Manager Cleveland's protest to
Maintenance Director Bailey on May 8 against reduction in force, and the total
5In view of the statistics, the statement in Bailey's memorandum of April 30 to
Cleveland that "It has become necessary in several of the other terminals to reduce the
working force in the shops" is puzzling . The records In evidence show that from
January 1956 to April 1957 garage employment rose steadily in each quarter from
121 to 140; and while it decreased In 4 of the 27 terminals in the first quarter of 1957,
it Increased In 5 of them. Perhaps this was merely Bailey's way of insuring compliance
with his request.
505395-59-vol. 122-67
1042 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
absence of any direction to cut force , the fact, the timing, and the degree of the
reduction suggest that other than economic factors were involved.
For Cleveland 's action is not attributable to orders from Detroit. At no time
did Director of Maintenance Bailey direct or suggest that District Manager Cleve-
land reduce personnel . The idea was exclusively Cleveland's . Bailey had no ad-
vance notice of it; in fact Bailey was unaware of Getchell's transfer until informed
of it at the hearing. Cleveland 's actions could not therefore have been related to
any companywide program for reduction of force or curtailment of expenses.
It is also evident that Cleveland 's actions represented an abrupt change in his
previous views. On May 8, only 13 days before the severance of Matteoni, he
wrote to Bailey warning Bailey that "freight operations would be hamstrung" by
a reduction in force, and saying that deferment of repairs because of lack of
garage labor would mean "a reduction in business ." No explanation , is offered
by the Respondent for this about -face in less than a fortnight.
As has been indicated heretofore , it would seem that the elimination of Matteoni
and Getchell could only aggravate the condition of which Cleveland wrote to
Bailey. There is credible evidence that for a period of time after the reduction,
maintenance at Milwaukee was inadequately carried on , as Cleveland had predicted
it would be.6
In the context of all these circumstances , I am persuaded that the true explana-
tion for District Manager Cleveland 's action with respect to Matteoni and Getchell
is to be found in Cleveland 's statement to J. C. Williams in their telephone conver-
sation of May 29; namely , that the termination of Matteoni and the transfer of
Getchell were "the best way out " of the situation presented by the Union 's request
for recognition , "because then there would be no labor problem ." In view of the
Joy Silk Mills and A. L. Gilbert decisions , supra , there would seem little question
that the termination or transfer of employees for such reasons , and the consequent
destruction of an appropriate bargaining unit, and refusal to bargain with a
majority bargaining representative during the pendency of its request for recogni-
tion, constitute unfair labor practices . That is my conclusion here.
Upon all the facts and circumstances in the case it is therefore found that the
Respondent discharged Frank Matteoni , refused to recognize the Union as majority
representative , and transferred James Getchell , in order to dissipate the Union's
majority, to destroy the appropriate bargaining unit, and to evade bargaining with
the Union . It is further found that by such conduct the Respondent discriminated
in regard to tenure and conditions of employment , discouraged membership in the
Union, failed and refused to bargain collectively with the Union , and interfered
with, restrained , and coerced employees in the exercise of rights guaranteed in
Section 7 of the Act.
We turn now to ' the allegations of unlawful interrogation.
Interrogation
The: employment application forms used by the Respondent at the Milwaukee
terminal contain .the following interrogatory as to union membership:
Do you belong to a Union ? Local No --- ---- City -------------
District Manager Cleveland requires this question to be answered by applicants:
for employment . His colloquy with Matteoni concerning it has been set out
heretofore.
The complaint alleges that by that practice and action and by Foreman Gage's
interrogation of Olson and Getchell in May 1957 as to whether they had joined
the Union , and by District Manager Cleveland 's questioning of Olson in the same
month as to his union status , the Respondent violated Section 8(a)(1) of the Act.
The inquiries by Gage and Cleveland directed to Olson and Getchell have been
referred to heretofore.
An employer 's interrogation of employees as to their union membership is neither
lawful nor unlawful per se. The test of illegality is whether, "under all the cir-
cumstances ,- the interrogation reasonably tends to restrain or interfere with the
employees in the exercise of the rights guaranteed by the Act." A. L. Gilbert
"There also seems an inconsistency involved in the supposition that by transferring
Getchell from the garage to the dock , overtime and expense would be reduced in both
departments . For if addition of; Getchell to the dock would reduce overtime and expense
there, his subtraction from the garage unit ought to increase them in the garage. If
additional manpower was the solution to the overtime problem on the dock, the same
would seem to be true of the garage.
TRANSAMERICAN FREIGHT LINES, INC. 1043
Company, 110 NLRB 2067, 2071. See also N.L.R.B. v. T. A. McGahey, Sr., etc.,
233 F. 2d 406 (C.A. 5); Blue Flash Express, Inc., 109 NLRB 591.
No adequate and probable explanation is supplied by the Respondent for the
written interrogatory concerning union membership. The suggestion by District
Manager Cleveland, in his testimony, that he might thereby check the "honesty"
of the applicant is not persuasive. There is no discernible valid ground for the
question. In the absence of disclosed and legitimate reason therefor, interrogation
of applicants for employment as to their union membership tends, in my judgment,
to suggest to them that membership or nonmembership in a labor organization will
affect their eligibility for employment; and is thus coercive. I am therefore of the
opinion, and find, that the reasonable effect of the written interrogatory in the
instant case is to interfere with, restrain, and coerce employees in the exercise of
rights guaranteed in Section 7 of the Act.
I find differently, however, with respect to the oral inquiries by Gage and
Cleveland directed to Getchell and Olson. I find no such or similar coercive
circumstances there present, and will therefore recommend that in this respect the
complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, it will
be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
It has been found that the Respondent discriminatorily discharged Frank
Matteoni and discriminatorily transferred James Getchell, thereby discouraging
union membership. It will be recommended that the Respondent offer Matteoni
and Getchell full reinstatement to their former or substantially equivalent positions,
without loss of seniority or other rights and privileges, and make them whole for
any loss of pay they may have suffered, in a manner consistent with the Board's
usual reinstatement and back-pay policies.
It will be further recommended that the Respondent bargain collectively with
the Union upon request.
Whether (and if so when) had they not been discriminated against, Matteoni and
Getchell might eventually have been terminated or transferred for genuine eco-
nomic reasons and without illegal motivation, are matters to be determined at the
compliance stage of the proceedings, if raised. J. S. Brown Corp.-E. F. Olds
Plumbing & Heating Corporation, 115 NLRB 594, 598; East Texas Steel Castings
Company, Inc., 116 NLRB 1336, 1339; Keco Industries, Inc., 118 NLRB 317, 342.
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. Automotive Mechanics Lodge No. 510, International Association of Ma-
chinists, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
2. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a)(1) of the
Act.
3. By discriminating in regard to tenure and conditions of employment and
discouraging membership in a labor organization, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8(a)(3)
of the Act.
4. All mechanics and helpers at Respondent's Milwaukee terminal garage, ex-
cluding office clerical employees, guards, professional employees, supervisors, and
all other employees, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.
5. At all times since May 18, 1958, Automotive Mechanics Lodge No. 510,
AFL-CIO, has been the exclusive representative for purposes of collective bargain-
ing of all employees in the appropriate unit.
1044 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. By failing and refusing to bargain with the Union the Respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Sec-
tion 8(a) (5) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
8. The Respondent did not engage in unfair labor practices by the interrogation
of employees in May 1957 by George Gage and Jerome L. Cleveland.
[Recommendations omitted from publication.]
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommendations of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT discourage membership in Automotive Mechanics Lodge No.
510, AFL-CIO, or in any other labor organization of our employees, by
discriminating in regard to their hire or tenure of employment or any term
or condition or condition of employment.
WE WILL NOT interfere with, restrain , or coerce our employees in the exer-
cise of the right to self-organization , to form labor organizations , to join or
assist Automotive Mechanics Lodge No. 510, AFL-CIO, or any other labor
organization , to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection ; or to refrain from any and all
such activities , except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of
employment , as authorized in Section 8(a)(3) of the Act.
WE WILL offer to Frank Matteoni and James Getchell immediate and full
reinstatement to their former or substantially equivalent positions without
prejudice to their seniority and other rights or privileges , and will make them
whole for any loss of pay incurred as a result of the discrimination against
them.
WE WILL upon request bargain collectively with Automotive Mechanics
Lodge No. 510, AFL-CIO, as the exclusive collective bargaining representative
of the employees in the appropriate bargaining unit, and if an understanding
is reached embody such understanding in a signed agreement.
All our employees are free to become , remain , or refrain from becoming or
remaining, members of the above-named union or any other labor organization,
except to the extent that this right may be affected by an agreement in conformity
with Section 8(a)(3) of the Act.
TRANSAMERICAN FREIGHT LINES, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered , defaced, or covered by any other material.
Cummer-Graham Company and International Woodworkers of
America, AFL-CIO. Case No. 39-CA-608. January $6, 1959
DECISION AND ORDER
On July 15, 1958, Trial Examiner Thomas N. Kessel issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
122 NLRB No. 134.