United Moving & Storage, Inc.

National Labor Relations Board - Board Decisions

Apr 2, 1965

151 N.L.R.B. 1413 (N.L.R.B. 1965)

UNITED MOVING & STORAGE, INC.
APPENDIX B-Continued
1413
(1) (2) (3) (4 ) (5) (6)
Employee Wage rate Contract Wage Term
Employed on rate on increases Comments
7/25/63 8/1/63
60 Titus, Jimmy------------- 6/30/61 2 85 2 75 8/20 (1 ) -
Titus, Kenneth ----------- 7/22/63 2 50 1 80 _ Part-time.
62 Valera, Moses _____________ 7/15/63 2 00 1 8o --------------
63 Ver Hagen , Clem--------- 7/ 3/63 2 74 2 75 8/2 2 85 ---_-__
64 Walling , Richard 7/22/63 2 50 1 80 8/2 2 60 9/25/63
65 Webster, Chas ------------ 10/19/61 3 05 2 75 -------------- ----------
66 Willard, Vinson ----------- 7/16/63 2 50 ----------- -------------- -- 7/18/63
67. Williams , Albert ---------- 7/17/63 2 50 ___________ ______________ 7/18/63
1 Salaried.
United Moving & Storage , Inc. and Kenneth D. Maier. Case
No. 9-CA-3114-2. April 2, 1965
DECISION AND ORDER
On November 30, 1964, Trial Examiner John H. Eadie issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices,)
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Decision . In his Deci-
sion the Trial Examiner also made findings and recommendations
with respect to Case No . 9-RC-5752. Inasmuch as the election in
that case was conducted pursuant to an agreement for consent elec-
tion, and inasmuch as the Regional Director 's report on election,
objections to election , order consolidating cases and notice of hearing,
dated May 8, 1964 , provided that, upon issuance of the Trial Exami-
ner's Decision , the representation case be referred to the Regional
Director for further proceedings , the Board , on December 8, 1964,
severed the cases. The Trial Examiner also found that Respondent's
discharge of employee Kenneth D. Maier was not violative of Section
8(a) (3) of the National Labor Relations Act, as amended, and
recommended dismissal of this allegation . Thereafter , the General
Counsel filed limited exceptions , with a supporting brief, to the Trial
Examiner 's Decision , and an answering brief was filed by
Respondent.
Pursuant to the provisions of Section 3(b) of the Act , the National
Labor Relations Board has delegated its powers in connection with
this case to a three -member panel [ Chairman McCulloch and Mem-
bers Fanning and Brown].
1 Although the Trial Examiner did not specifically state that the Respondent was con-
tinuing to engage in unfair labor practices, this finding is implicit in his conclusion that
the unfair labor practices which he found had been committed had not been remedied.
151 NLRB No. 137.
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
Decision, the exceptions and brief, and the entire record in this case,
and hereby adopts the Trial Examiner's findings, conclusions, and
recommendations.2
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order , the Order recom-
mended by the Trial Examiner and orders that Respondent , United
Moving & Storage, Inc., Columbus, Ohio, its officers , agents, succes-
sors, and assigns , shall take the action set forth in the Trial Exami-
ner's Recommended Order.
MEMBER BROWN , dissenting in part :
In my view the evidence herein establishes that Respondent was
discriminatorily motivated in the discharge of Kenneth D. Maier and
thereby violated Section 8(a) (3) and (1) of the Act.
Respondent's union animus and its knowledge of Maier's union
adherence are established by the incidents of interrogation, threats of
reprisal, and other conduct found herein to have violated Section
8(a) (1) of the Act. That this animus was also the motivating
cause for Respondent's conduct in discharging Maier is demonstrated
by the circumstances of that discharge and Respondent's subsequent
actions with respect thereto.
It appears from the record herein that, when dispatching employ-
ees in working teams, Respondent has a policy of accommodating
such assignments to the personal preference of individuals if possible
and that on numerous occasions it has adjusted such pairing of
employees in deference to specific requests resulting from personality
conflicts. Ostensibly, Maier was discharged on February 11 for a
refusal to work with his brother-in-law, a fellow employee, Edwin
Ott.
The occasion for Maier's objection to working with Ott grew out
of several incidents occurring during the previous few days. Thus,
when Ott returned to Columbus from Florida on the night of Febru-
ary 7, Maier showed him a list of all the employees who either had
joined or were about to join the Union in the then current campaign.
2 We do not believe that our dissenting colleague has given full effect to all the facts
relied upon by the Trial Examiner in reaching the conclusion that Kenneth Maier's dis-
charge was not violative of the Act. While the Trial Examiner concedes that Respond-
ent's antiunion attiude was clearly evidenced , and that it was aware of Maier 's union
sympathies , the fact remains that Maier not only refused an assignment , an offense for
which Respondent had discharged two employees during the preceding year , but also that
he refused it in a gratuitously offensive way. In these circumstances, and in view of
the further fact that it is nowhere suggested that the incident which caused the discharge
was contrived , we find that the Trial Examiner ' s determination with respect to Maier's
discharge is clearly supported by the evidence. Accordingly, we adopt it
UNITED MOVING & STORAGE, INC. 1415
The following morning, over coffee in "the kitchen" above Respond-
ent's office, Ott supplied Respondent's secretary, Joseph Moore, with
the organizational information obtained from Maier the previous
evening including the names of employees who had joined the Union
and those expected to pay their initiation fees that night, listing
them on a napkin for Moore. Maier and another employee happened
by and, overhearing the latter part of this conversation, walked into
"the kitchen." Moore took the napkin and left the room and Maier
accused Ott of "doing a little singing up here."
On February 11 Moore assigned Maier and Ott to work together
on a job. After working for a short time, Maier returned to Moore
and requested that some other employee be assigned to work with
Ott. Moore asked Maier what was troubling him. There ensued the
conversation in which Maier indicated the reason was "because of
bad feelings on this [the Union]" and also expressed dissatisfaction
with Moore's activities with respect thereto. Moore then asked Maier
whether he refused to work with Ott, and when Maier replied that
he did, Moore discharged him.
Contrary to common practice, Moore made no attempt to obtain a
substitute for Maier on the job with Ott. Only after he punched out
Maier's timecard and wrote "separation" on it did Moore attempt to
obtain a replacement for the assignment. In contrast, on at least
three earlier separate occasions employees who refused assignments
were not disciplined for it. Also, in filling the very assignment
involved, Moore did not insist, under pain of discharge, upon ac-
ceptance of the assignment without consideration of the employee's
wishes and at least an attempt to accommodate.3 Such disparate
treatment is itself, in my opinion, cogent evidence of discriminatory
motivation.
The real motive for Maier's discharge is also apparent from
Moore's other conduct. Thus, after the November 8 "kitchen" inci-
dent with Ott, and while interrogating Maier, and threatening to
"close the gates" before he would "have the Union in," Moore stated,
"Kenney, you are cutting your own throat ... the Union brought it
all on. They want seniority and that is how we are going to get it."
After discharging Maier, and a few minutes after obtaining a
replacement on the assignment with Ott, Moore met Maier in "the
kitchen" and said to him, "This union has cost you more already than
you will ever get out of it . . . I'm going to show you that the Union
can't help you as much as you think . . . ." Subsequently, Moore
3 After discharging Maier, Moore went into the warehouse and asked employee Kool
to work with Ott. When Kooi expressed his preference not to accept such assignment,
Moore , without insisting or forcing him to state a refusal , requested employee Hanna.
Hanna took refuge in his place on the seniority list pointing out that Kooi was next
in line Moore then persuaded Kooi to accept the job
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inquired of Ott concerning Maier and told Ott to have Maier come
in and talk about returning to work "after the Union deal was settled
and straightened out."
By taking the initiative to reestablish the employment relationship
so soon after the discharge and without any intervening events,
Respondent itself inferentially has indicated, in my opinion, that
Maier's discharge was not caused by his refusal to work with Ott.
If this discharge had been merely a reprimand for Maier's conduct,
there was no need to delay reemployment until after the question
of union recognition was settled. I am satisfied that Respondent
discharged Maier because of the latter's union activities and that
Respondent thereby endeavored "to show [Maier] that the Union
can't help you as much as you think."
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon charges filed on February 24 and March 5, 1964, the General Counsel of
the National Labor Relations Board issued a complaint, dated April 14, 1964, in Case
No. 9-CA-3114-2 against United Moving & Storage, Inc., herein called the Respond-
ent, alleging that the Respondent had engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and (3) and Section 2(6) and (7) of
the National Labor Relations Act, as amended, herein called the Act. On April 27,
1964, the Respondent filed an answer in which it denied the commission of any unfair
labor practices. On May 8, 1964, the Regional Director for Region 9 issued an order
consolidating Case No. 9-RC-5752 with Case No. 9-CA-3114-2.
A hearing was held at Columbus, Ohio, on June 10 and 11, 1964, before Trial
Examiner John H. Eadie. After the conclusion of the hearing the Respondent filed a
brief with me.
Both from the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation with a warehouse and place of business
located at Columbus, Ohio, where it is engaged in the business of interstate and intra-
state transportation and storage of household goods.
During the period of 12 months preceding the date of the complaint herein, the
Respondent received in excess of $50,000 gross revenue from its interstate transporta-
tion and storage of household goods shipped in interstate commerce. During the
same period, the Respondent received revenue in excess of $85,000 for services
performed for personnel of the various branches of the United States military service.
The complaint alleges, the Respondent's answer admits, and I find that the
Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Columbus Drivers & Warehousemen 's Union, Local 3027, AFL-CIO, herein called
the Union , is a labor organization which admits to membership employees of the
Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The status of Lawrence Price
The complaint alleges that Price at the times material herein was a supervisory
employee within the meaning of the Act. The Respondent's answer denies this
allegation.
Kenneth Maier testified that: Price was in charge of the warehouse; Price gave
orders to employees when they were assigned to help him in the warehouse; Joseph
Moore dispatched the employees; during mornings when Moore was absent from the
UNITED MOVING & STORAGE, INC. 1417
plant, Price acted as the dispatcher, using the "dispatcher book" which was prepared
by Moore the night before; and on such occasions if Price saw "fit to change [the
drivers and helpers] around to suit himself, he would do that. If a job came in and
nobody was there to send it out, he would send it out."
Employee Jack Mashburn testified that, during about March or April 1964, Price,
after he had called him, met him at the plant and gave him his paycheck. Concern-
ing Price's duties, Mashburn testified that he was in charge of the warehouse; that
he gave orders to employees when they helped him in the warehouse; and that "Mr.
Moore fixed the orders up at night and put the names in the book, and at times, Price
would come in of a morning, and he would dispatch them out. If the driver or helper
didn't show up, he would change it over, put somebody on in his place."
Employee Kenneth Taynor testified that Price was "over the warehouse"; that
Price gave orders to employees who were assigned to help him in the warehouse;
that Joseph Moore dispatched the employees; that occasionally Price dispatched the
employees, using the list made up by Joseph Moore the night before; and that "some-
times" he got his paycheck from Price.
Concerning his duties, Price testified, "I am a warehouseman .... I containerize
shipments for storage. I load crates for outbound and I load crates for inbound,
unload boxcars, weigh trucks and just whatever they have to do." He testified that:
He had been employed by the Respondent for approximately 18 years; he had not
dispatched any employees since on or about the middle of January 1964, when
Curtis Moore came to the Respondent's Columbus establishment; before that time
Joseph Moore dispatched by setting "the book up at night"; at times when Joseph
Moore was absent in the morning he dispatched the employees by handing them "their
jobs and their cards"; before he made any changes in the assignments, he called
Joseph Moore; he had acted as dispatcher "maybe five or six times" during the course
of his employment; Joseph Moore assigned employees to help him in the warehouse;
and he did not give or have authority to give orders to such casual help.
Joseph Moore, secretary of the Respondent, testified to the effect that he set up all
of the dispatching orders the night before; that on some occasions prior to January 1,
1964, when he either was late for work or absent, Price acted as the dispatcher; and
that on such occasions if an employee did not report for work, Price called him to
ask for instructions before changing the assignments. As to Price's other duties and
authority, Moore testified to the following:
His chief job is the warehousing. He has complete charge of the flowing of
tonnage into the warehouse, packing it into containers, putting it away for perma-
nent storage, checking lots into storage, checking lots out of storage, taking in
transit lots coming inbound and handling transit lots outbound. In addition to
this, if there are difficulties arising on a particular move, such things as pianos
stuck on the second floor, and things of that nature, he will hop into a piece of
equipment, run out and help them move it. Any time he is needed in any way,
he fills in. His jobs are numerous. He handles the scale, the weighing of
trucks. He has performed packing jobs, preliminary packing, part of the load-
ing of shipments.
As far as the company itself is concerned, he has no authority other than what a
normal truck driver would have, and that is this: that if a driver has a helper
assisting him and this helper is not qualified, then he has the right to send him in,
or to notify the company. The same thing is true with Mr. Price in the ware-
house. If he has people who are not qualified or who would not be of value
in containerizing shipments, he can notify the office and say, "I can't use this
man any longer." He has no authority to hire or fire as such.
Employee George Geng testified that Price "has charge" of the warehouse; that
at times Price dispatched the employees in the morning; and that on such occasions
Price either followed the orders written up the night before or got "the orders over
the phone from the dispatcher."
From all of the evidence it appears that insofar as the warehouse was concerned
Price had no more supervisory authority than a driver had over his helper. The
evidence shows that prior to January 1, 1964, Price performed some dispatching work
when Joseph Moore was absent. However, it is clear that he merely followed the
orders set up by Moore the night before, and that he did not change such orders until
he was authorized to do so by Moore. I find that Price was not a supervisory employee
within the meaning of the Act.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The discharge of Kenneth D. Maier; interference , restraint , and coercion
Maier was employed by the Respondent for about 2 years before his discharge on
February 11, 1964. He joined the Union on or about February 8, 1964.
The Union filed a petition in Case No . 9-RC-5752 on January 31, 1964. On or
about February 1, Maier had a conversation with Joseph Moore. Several other
employees were present at the time . Moore asked Maier why he had refused to
drive truck "number 98 ," and said that he had heard that Maier had said that he
would "take the bus line " before he would drive that truck . Moore then said that
"a lot" of the employees would be "riding the bus lines" if he got "any more telegrams
from Kenneth Castle." 1 Either during this same conversation or about the same
time, Moore told employee Jack Mashburn that if the Union got in the plant, the
employees would "be walking out the front for a long time."
It is found that the above statements of Moore constitute threats of reprisal and,
as such, are violative of Section 8 (a) (1) of the Act
Some few days after the above conversation , Maier had another conversation with
Joseph Moore . Several other employees were present Moore said , in substance,
that most of the Respondent 's business came from Government contracts ; that he
"wouldn't mind going into the union , providing the other companies went "; and that
if the Union organized the Respondent 's employees , the Respondent "would go broke
and go out of business " since it would not "be able to compete with other companies."
Moore asked Maier how he felt about the Union . Maier replied , "The majority went
with the union . That is the way I am going."
It is found that Moore 's interrogation of Maier was violative of the Act.
Employee Edwin Ott, a brother-in-law of Maier , returned from a trip to Florida
on February 7. That night he met with Maier. Maier showed him a list of the
employees who either had paid or Maier hoped would pay the Union 's initiation fee
of $10.
When Ott reported for work on February 8, he went to "the kitchen " above the
Respondent 's office where he met Joseph Moore . As they were sitting at a table
having coffee , Moore asked him if he knew which employees were "involved with
the union." Ott replied that he did and listed the names of employees on a napkin.
Moore questioned Ott as to each employee and placed a mark beside the names of
employees which they decided between them were not for the Union. Ott also told
him that either Abrose Hayden or Roy Hanna was going to pay the Union's initiation
fee of $10 that night. About this time Maier and Taynor 2 entered the room Moore
left, taking the napkin with him. Maier then accused Ott of "doing a little singing up
here" and told him, "You didn 't have to talk about everybody that was on that list I
showed you ." Moore returned to the room . He asked Maier how he was going to
vote. Maier replied that he would have "to go the way the boys wanted " and that he
would "have to straddle the fence ." Moore said that he would "close the gates" before
he would "have the union in ," and that he would be "the meanest son of a " if
the Union did "get in " He explained that with the Union the Respondent could not
compete with other companies because it would have to raise its rates. When Maier
complained about the work and stated that he was "starving now ," Moore told him,
"Kenny, you are only cutting your own throat . . . . The union brought it all on.
They want seniority and that is how we are going to get it." Maier replied, "I didn't
start the union , but I paid my ten dollars."
It is found that Moore 's interrogation and threats of reprisal were violative
of the Act.
On February 1 t Carl Moore , a brother of Joseph Moore , asked Joseph Moore for
two men to move his office furniture and equipment to his home Joseph Moore
assigned Ott and Maier to the job. Ott and Maier went to the office and started
packing the equipment in cartons . Maier worked for a short time and then returned
to Joseph Moore. He told Moore that he did not want to work with Ott and asked
him if he had another employee to take his place Moore said that the job would not
take long and that he should "bear" with Ott . He asked Maier what was troubling
him Maier replied, "Nothing, I don't want to work with Eddie Ott because of bad
feeling on this I am getting tired of this G D crap you are spreading around."
Moore asked him if he refused to work with Ott. Maier answered , "I do ... That is
right " Moore then said , "Okay, if that is the way you want it , then you have had
i Castle was a representative of the Union
2Maier testified that before he entered the room , he heard Moore sav, "Who e]ee1"
several times and heard Ott mention the names of several employees . Taynor testified
that before he entered the room he heard Ott tell Moore that Hayden was "in with the
boys "
UNITED MOVING & STORAGE, INC. 1419
it." He punched out Maier's timecard and wrote "Separation" on it. Moore and
Maier then went to the basement where Moore asked employee Kooi to work on the
job. Kooi answered that he "would rather not." Moore then asked employee Hanna.
When Hanna pointed out that Kooi should take the job since Kooi was ahead of
him "on the seniority list," Moore again asked Kooi if he would work with Ott.
Kooi agreed to take the job. As Maier started to leave the room, Moore asked him
for his "gate key." Maier said that he did not have the key with him and that he
would either send it or bring it to the office. Moore then asked him to drive a truck.
Maier replied, "What is this? First you fire me one minute, and then you want to
have me drive a truck the next." Moore did not reply.
Some few minutes later Maier met Joseph Moore in the kitchen. Moore said,
"This union has cost you more already than you will ever get out of it .... I am
going to show you that the union can't help you as much as you think. How much
money did you make last year9" Maier replied that he did not know. Moore
obtained a record of Maier's earnings from the office and compared this with the
union scale. When Maier's earnings did not compare favorably to the union scale,
Moore left the room "in a huff."
Before Maier left the Respondent's premises, he received his check and was told
once again to return the gate key.
Several times after Maier was discharged, Moore asked Ott how Maier "was doing"
and told him "to have Kenny to come and talk . . . about going back to work or
discussing this situation ... after the union deal was settled and straightened out."
During February and after Maier's discharge, Joseph Moore had a conversation
with Mashburn and employee Terry Miller. Moore and Miller talked about the
Union. Moore then said to Mashburn, "I hope you know what you are doing."
When Mashburn replied that he knew what he was "doing," Moore said, "You will
never get another job in the State of Ohio, with a moving company."
It is found that Moore was referring to Mashburn's activity or suspected activity
on behalf of the Union and that his threat of reprisal was violative of the Act.
The Board conducted an election among the Respondent's employees on March 10.
On or about March 3 or about a week before the election, Joseph Moore asked Ott,
"Can I still depend on you for a no vote against the union?" Ott answered, "Yes, you
-can." I find that Moore's interrogation was violative of Section 8(a)(1) of the Act.
The above findings are based upon credited portions of testimony of Maier, Mash-
burn, Ott, Taynor, and Joseph Moore. Testimony contrary to the above is not
credited.
Maier testified that: "On numerous occasions" employees had refused to work with
fellow employees; to his knowledge the employees involved had not been reprimanded
for their refusals; he could not remember any such incidents when Joseph Moore was
acting as dispatcher; when an employee refused to work, "[the employer] would try
to either talk them out of it, and if not, if it was bad enough that they couldn't get
along, he would try to change it around first. If not, if he didn't have no other help,
he would say, `Well, it is only for one day; you can get along"'; during 1963 employee
Harry Frazier refused "to go on a truck with an out-of-town driver"; Frazier was
discharged; "the last occasion" that he could recall involved Taynor and driver Roy
Hanna; Taynor refused to go with Hanna because "they had some kind of an argu-
ment", and Price arranged for another employee to take Taynor's place.
Taynor testified that: At some time during 1964 he refused to work with Hanna
because of "an argument in the yard"; another employee was assigned to take his
place; "nothing" happened to him (Taynor); when he refused, he was not "too polite";
"I was just mad when I come in [to the office], and after I was there a few minutes, I
cooled off, and then I talked polite"; and Moore said he would put another employee
in his place.
Mashburn testified that: On one occasion Moore asked him to work with "an out-
of-town driver" who was not an employee of the Respondent; he told Moore that he
"would rather not go with him"; Moore asked him for a reason; he replied, "No, sir.
I just don't want to work with an out-of-town driver"; and he was not disciplined over
the incident.
Price testified, in substance, that when he acted as dispatcher, employees at times
refused to work with one another; and that on such occasions he changed the
assignments after getting authorization. Concerning the refusal of Taynor to work
with Hanna, Price testified to the following:
one morning Mr. Hanna and Mr. Taynor was assigned to a job, and Mr.
Taynor went out on the lot and pretty soon he came back through there and like
to tore the door down and said, "You better send somebody else with him. There
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
will be trouble if I have to go with him." He was pretty hot .... I didn't feel I
should send him out there to a man's house moving furniture feeling that way.
I don't know what the argument was.
As to the incidents involving Mashburn and Taynor and the Respondent's policy
on the question, Joseph Moore was questioned and testified as follows:
Q. Do you recall an incident upon which Mr. Mashburn refused to work
with an out-of-town driver when he was assigned to do so?
A. No incident that I can remember. To be perfectly honest, there is only
one time that I have ever had a man refuse to work - I am sorry, two times, and
that man - in fact, both instances, they were released from the employment of
the company.
Now, I have had men request - they would come up to me and say, "Joe,
look, if you don't mind, I don't like to carry with him because he rocks," or
something of that nature. "Have you got anyone else that you can use?"
Which I have always went ahead and tried to work it out to the best of each
person's ability.
Q. On those occasions upon which someone requested a change of assignment,
was it ever true that it was impossible, due to lack of replacement, to grant that
request9
A. Yes.
Q. So you have refused to grant these requests?
A. I have.
Q. And on occasions when you have refused to grant these requests other
than the two occasions you have referred to, were there any other times when
the men flatly refused to take the assignment?
A. No.
Q. Was one of the occasions of the refusal to work on February 11 regarding
Mr. Maier which you have described previously?
A. Yes.
Q. What was the other occasion?
A. It was about seven and a half months ago. I had an employee by the
name of Dillow who was a helper. He refused to work with a driver; because
of this, he was let go.
Q. Do you know anything about that incident where Mr. Taynor may have
refused to work with Mr. Hanna?
A. Yes, that was the morning that I was in Riverside Hospital, and Mr. Price
had asked-if I remember how the whole thing worked out-Mr. Hanna
and Mr. Taynor were to do a local moving job. I had set it up the night before.
The WITNESS: Mrs. Salser, who is the assistant dispatcher, told me when I
came in from the lab that there had been some difficulty and she explained to me
what had happened, that Mr. Taynor had refused to work with Mr. Hanna.
She said-I asked her if any other arrangements had been made and she said
she believed there had. I talked to Mr. Price and he told me the same thing.
Mr. Taynor did not refuse to work for me as such, in my presence.
According to Maier's own testimony, he refused to work with Ott and did it in an
insubordinate manner. Even when it appears that Moore changed his mind about
the discharge by asking Maier to drive a truck, Maier again gave an insubordinate
answer.
Insofar as the incidents testified to by Taynor and Mashburn are concerned, it does
not appear that flat refusals were involved.3
The record shows that Moore interrogated employees and made coercive state-
ments, that he knew that Maier was an adherent of the Union, and that he attempted
to dissuade Maier from his union beliefs after the discharge. On the other hand, the
record discloses that two employees, Frazier and Dillow, were discharged during 1963
because of their refusal to work with other employees. Accordingly, although Moore's
motive in the matter is questionable, I find that the discharge was not violative of the
Act.
C. The Union's objections
The Union's objections to the election are as follows:
1. The employer has discharged employees for Union activity.
3 In this connection I credit the above testimony of Price.
UNITED MOVING & STORAGE, INC. 1421
2. Employer offered to refund $10.00 initiation fee to certain employees if
employees would change vote.
3. Employer stated to employees that if he received another letter from Union
representative, Kenneth Castle, "that there would be some new faces at the bus
sto 4.' Employer threatened that Company would be forced to "close gates" if
Union won.
5. Employer told long distance drivers that if Union came in the trucks would
be put on lease bases and there would be no long distance work for them.
6. Shortly before election employer signed lease papers with driver, Ed Ott,
and Company stated that they would pay the down payment and deduct it from
earnings.
7. Company raised hourly rates of certain employees.
8. Employer stated that he would raise wages of one or more other employees
after election.
The evidence with respect to objections Nos. 1, 3, and 4 has been found above.
Objections Nos. 3 and 4 are sustained and objection No. 1 is overruled. There is no
evidence in the record to support objections Nos. 2, 5, 7, and 8. Said objections,
therefore, are overruled.
Edwin Ott testified that: After on or about April 9, 1964, his wages were based on
a "percentage" rather than an "hourly rate"; the Respondent still owns the tractor
and trailer; "the company ... explained" to him that "I would run this truck that I
am operating now, under 40 per cent, until the new truck comes in. The company
will go ahead and license it, and everything, in their name, then they take 10 per cent
of my line haul on each shipment as a payment on the truck. Then, when the truck
is paid for, they turn around and give me the clear title ..."; no other employee work-
ing out of the Respondent's Columbus establishment has such an arrangement with
the Respondent; he discussed such an arrangement "about two years ago" with Curtis
Moore; he first raised the subject with Joseph Moore during a telephone call from
Miami, Florida, on Wednesday, February 5, 1964; 4 Joseph Moore never made any
promise to put him on a lease basis provided that the Respondent won the election
or depending upon his vote; on either February 10 or 11 he again raised the question
of "going lease or running under percentage" during a conversation with Joseph
Moore; Moore told him that he would have to go under a lease arrangement as he
could not be transferred; about 3 days before the election he spoke to Moore "about
leasing the truck"; he spoke to Moore about it again shortly after the election; and
at this time Joseph Moore told him that the matter would have to be taken up with
"the board members." 5
The conversation between Ott and Joseph Moore on or about March 3 concerning
Ott's vote in the election has been related and found above.
Joseph Moore did not deny the above testimony of Ott. Moore was questioned
and testified as follows:
Q. Now, would you explain what change was made and why?
A. Well, the change was that Ed Ott became a lease driver. The reason for it
is that the road expenses of the men, while traveling on the highway, is increasing
all of the time. Now, I don't mean necessarily personal expenses, I mean over-
all, gas, oil, and so forth, and it is very easy for an hourly rated employee to haul
his load of household goods and come right back without making any attempt
to call the dispatching offices to obtain return loads, whereas a lease driver will
take a little more time and make an effort to obtain return loads. My one
a Concerning this conversation, Ott testified credibly as follows:
Before Saturday, and I called Joe and told him I was loading for Columbus, Georgia,
and Atlanta, Georgia, and he went ahead and agreed to that, and so he said, "How
are you and Buck Castle getting along?" And I said, "Who is Buck Castle" I
don't even know him." He said, "I have got a petition here that the boys are going
to loin the union ," and I said, "As far as I know, there is nothing I know of it."
And I said, "If they are," I said, "I want some arrangements made either to be
transferred out of here or go ahead and fix up some kind of a thing through a
lease or something else," and Joe said, "If the union goes in, that would be the only
thing you can do, go ahead and go leased, because," he said, "we can't transfer
you either to Cleveland or Dayton."
5 Ott at first testified that during his conversation before the election Moore told him
that "they would check with the Board." Later he testified that Moore made this state-
ment after the election and not before.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
brother in Cleveland, Ohio, Curtis Moore, prior to his coming to Columbus had
five of these drivers. He found them to be advantageous for the company, and
for themselves, because they seemed to be able to make money. That is good.
Well, Mr. Ott has had a good background in household goods moving, in
holding down his damages, in holding - rather cooperating with other dispatch-
ing companies, and has been able to obtain return loads when he would take
the effort and he approved me and I in turn approved Curtis, and Curt requested
that I talk with him. Eddie did, and from that day became a lease driver.
Q. How long had he been discussing the possibility of going on a leased basis9
A. Well, I know that Eddie has been talking for over two years about going
on a lease basis.
Q. Did this change have anything whatever to do with Mr. Ott' s union or
anti-union activities or with the election?
A. None.
Q. Before the recent change-over in the personnel in the management at the
Columbus branch, what was management's attitude in Columbus toward leased
drivers?
A. They were dead-set against it.
Q. After the change in management of the Columbus office and terminal,
was there any change in this attitude?
A. Yes.
Q. What was that change? Why was there a change?
A. Well, I think the primary reason for it was, prior to the change, the one
brother, Earl Moore, had never had an association with leased drivers. We have
had actually two changes. We have had one brother leave Columbus by the
name of Bert Moore and go to Cleveland. We have had one brother, Earl
Moore, come to Columbus, and Earl Moore had never had relationship with
leased drivers. Therefore, he didn't like the idea and he was against it. After
that, there was another change, and Curt Moore came from Cleveland, Ohio, to,
Columbus, Ohio, and he was for leased drivers, and the change then happened.
From the above I find that Joseph Moore, by implication, before the election
promised Ott that he could work on a percentage or lease basis if he would forgo the
Union and vote against it in the election. Accordingly, the Union's objection No. 6
is sustained.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in connec-
tion with the Respondent's operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and commerce among the
several States and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and that it take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce within the meaning of
Section 2(2) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. The discharge of Kenneth D. Maier was not violative of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, it is recommended that the Respondent, United Moving &
Storage, Inc., its officers, agents, successors, and assigns, shall:
UNITED MOVING & STORAGE, INC. 1423
1. Cease and desist from:
(a) Interrogating its employees concerning their membership in or activities on
behalf of the Union, or of any other labor organization, or making threats of reprisal
because of such activity.
(b) In any other manner interfering with, restraining, or coercing its employees
in the exercise of the right to self-organization, to form labor organizations, to join
or assist the above-named labor organization 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 or all such activities, except to the extent that
such rights may be affected by an agreement requiring membership in a labor organi-
zation as a condition of employment as authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which I find will effectuate the policies
of the Act-
(a) Post at its plant in Columbus, Ohio, copies of the attached notice marked
"Appendix." 6 Copies of said notice, to be furnished by the Regional Director for
Region 9, shall, after being duly signed by the Respondent or its authorized repre-
sentatives, be posted by Respondent immediately upon receipt thereof and maintained
by it for a period of 60 consecutive days thereafter in conspicuous places including
all places where notices to employees are customarily posted. Reasonable steps shall
be taken to insure that said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 9, in writing, within 20 days from
the date of the receipt of this Trial Examiner's Decision, what steps it has taken to
comply herewith.?
It is further recommended that the election held on March 10, 1964, be set aside.
IIn the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning membership in or their
activities on behalf of Columbus Drivers & Warehousemen's Union, Local
#3027, AFL-CIO, or of any other labor organization, or make threats of
reprisal because of such activity.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Columbus Drivers & Warehousemen's Union,
Local #3027, AFL-CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted activities
for the purposes of collective bargaining or mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such rights 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, as modi-
fied by the Labor-Management Reporting and Disclosure Act of 1959.
All our employees are free to become, remain, or refrain from becoming or remain-
ing members of any labor organization, except to the extent that this 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.
UNITED MOVING & STORAGE, INC.,
Employer.
Dated------------------- By----------------------- -----(Representative) (Title)
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Room
2023 , Federal Office Building, 550 Main Street , Cincinnati , Ohio, Telephone No.
381-2200 , if they have any question concerning this notice or compliance with its
provisions.
Building Service Employees International Union , Local No. 105
[Industrial Janitorial Service, Inc.] and Charles R. Johnson.
Case No. 27-CC-126. April 5, 1965
DECISION AND ORDER
On July 7, 1964, Trial Examiner Howard Myers issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent
had engaged in certain unfair labor practices alleged in the complaint
and recommending that it cease and desist therefrom and take cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief, and the entire record
in this case, and hereby adopts the Trial Examiner's findings, conclu-
sions,' and recommendations with the following modification.
Like the Trial Examiner, we find that the Respondent picketed at
the Denver U.S. National Bank, the purpose being to threaten,
coerce, or restrain the Bank with an object of forcing or requiring
it to cease doing business with Industrial Janitorial Service, Inc.,
and that the Respondent thereby violated Section 8(b) (4) (ii) (B)
of the Act.
We do not agree with the Trial Examiner, however, that the
cessation of work by Denver city policemen, who were employed on
a part-time basis by the Bank as guards, evidences, in the circum-
stances herein, inducement or encouragement of these employees to
engage in a strike or a refusal to perform services for the Bank. The
'The Trial Examiner concluded that the Respondent was responsible for the picketing
and handbilling herein. We agree . In addition to the "admissions" of such responsibility
by the attorney for the Respondent at the hearing, which form the basis for the Trial
Examiner's conclusion on this point (see 9 Wigmore, Evidence § 596 (3d ed.)), we note
that the handbills specifically named the Respondent as being responsible therefor and
that these handbills were often distributed by the pickets themselves.
151 NLRB No. 138.