Walker's Midstream Fuel & Service Co.

National Labor Relations Board - Board Decisions

Jan 7, 1974

208 N.L.R.B. 158 (N.L.R.B. 1974)

158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walker's Midstream Fuel & Service Co. and Marine
Officers Association , Local 54, an affiliate of
International Brotherhood of Teamsters , Chauf-
feurs, Warehousemen and Helpers of America and
Plant Bargaining Committee . Case 9-CA-7649
January 7, 1974
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELI.O
On August 9, 1973, Administrative Law Judge
Melvin J. Welles issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and the
brief and has decided to affirm the rulings, findings,
conclusions, and recommendations of the Adminis-
trative Law Judge to the extent consistent with this
Decision.
The Administrative Law Judge found that Respon-
dent violated Section 8(a)(2) and (1) by recognizing
and signing a contract with the Plant Bargaining
Committee. We disagree and find, contrary to the
Administrative Law Judge, that the complaint should
be dismissed in its entirety.
The pertinent facts are as follows. During October
1972, Respondent's president, Paul Walker, talked
with some of his employees concerning a wage
increase and other benefits. Due to the nature of
Respondent's business, few employees were present
at Respondent's facility at any given time. Conse-
quently, Walker initiated the idea of an employee
committee which, if selected by the employees,
"could work out some kind of an agreement" with
him. On or about November 1, 1972, one of
Respondent's dispatchers, Richard Birch,' told em-
ployees Charles Amis, Candy Blair, and Frank
Murphy that "We are getting up a committee to go
up and talk to Mr. Walker about a raise." Although
the record shows that initially the committee was to
be made up of five employees including Birch, only
the three above-named employees selected by Birch
actually served as spokesmen. A meeting between
Walker and the "Committee" had been prearranged
by Birch.
I There is no probative evidence in the record to indicate that he was a
supervisor
2 The record shows that the employees bad been talking about
attempting to get a raise during the month of October, and before any
Shortly after their selection, the three employees
went to Walker's office to discuss a raise .2 According
to Murphy, they also suggested "some things" with
regard to working conditions at that meeting. Walker
testified that "they said they represented the people
and I negotiated with them." The record shows that
Walker then drew up an agreement which was posted
in the dispatch office for approximately 10 days. The
three "Committee" members, as they were referred
to by Birch, spoke with many of Respondent's
employees during the posting period. Murphy stated
that "some were for it and some weren't. . . . I
thought the biggest majority was for it so I signed
it.-3 No objective evidence, however, was presented
to show that the "Committee" represented a majority
of the employees. The contract, which was signed by
the three "Committee" members and by Respondent,
was for a term expiring April 2, 1974.
Since the execution of that agreement, the Team-
sters has filed a petition to represent the employees
herein. No election has been directed, and whether
one will be so directed is dependent upon whether
this contract is a bar. Walker testified that while
attempts by outside unions to organize his employees
was "a continual thing and nothing unusual," he
"had no knowledge that any concentrated effort was
being made." Willard Massingell , a General Counsel
witness, testified that, prior to November 1972, he
spoke with a number of Respondent's employees to
determine their feelings about a union coming into
the plant. However, Massingell stated that he did not
mention the name of the union until "they got this
little old contract started. . . ." Murphy testified
that at some point Walker told him that a union was
trying to get in, and that he "would do anything in
his power to keep [a union] out." The Administrative
Law Judge, however, was unable to conclude from
the record that this statement was made during the
critical period.
While the Administrative Law Judge did not find
that the General Counsel had proven that Respon-
dent established or assisted the Plant Bargaining
Committee on or about November 1, 1972, he did
find that Respondent violated Section 8(a)(2) and (1)
of the Act first by granting the "Committee"
recognition, and then by executing and maintaining
a collective-bargaining agreement with it. In so
finding, the Administrative Law Judge noted that (1)
President Walker "knew, or should have known, that
the committee was only a spokesman" on the single
meeting with Walker took place.
3 The record shows that Murphy spoke to 15 or 20 of the approximately
33 employees about the contract
208 NLRB No. 26
WALKER'S MIDSTREAM FUEL & SERVICE CO.
issue of a wage Increase and not a functioning labor
organization;4 (2) no real bargaining took place
between the employees and Walker; and (3) Walker's
desire "to keep any and all outside unions on the
outside" represents the true motivation for his
preparation and execution of the aforementioned
agreement. Since there was "no actual proof" that
the "Committee" did represent a majority of the
employees, and "insufficient evidence from which to
find, or infer, that it did not," the Administrative
Law Judge did not rely on any lack of majority status
in making his unfair labor practice findings.5
Contrary to the Administrative Law Judge, we
believe that the complaint must be dismissed in its
entirety because of the General Counsel's failure to
meet his prima facie burden of establishing the Plant
Bargaining Committee's lack of majority. In a recent
case, American Beef Packers, Inc.,6 the Board held
that it is General Counsel's burden to prove that the
union did not in fact represent a majority at the
relevant time. In the instant case, the General
Counsel did not introduce any evidence to support
his allegation that the Plant Bargaining Committee
did not represent a majority of the Respondent's
employees. Therefore, under the circumstances of
this case, we can find no violation of Section 8(a)(2)
in the recognition of the Union by Respondent.
Accordingly, we shall dismiss the complaint in its
entirety.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the complaint
herein be, and it hereby is, dismissed in its entirety.
'' The record shows that the "Committee" was an informal one without
any structure in that it had no officers , no dues, no constitution or bylaws,
and it never had an employee meeting or election
5 It was alleged in the complaint that the "Committee did not represent
the majority of Respondent 's employees for collective bargaining purpos-
es "
6 187 NLRB 996.
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Paducah, Kentucky, on June 26, 1973, based
on charges filed March 14, 1973, and an amended
complaint issued June 5, 1973, alleging that Respondent
violated Section 8(a)(1) and (2) of the Act. Respondent has
filed a brief.
i This is Walker's testimony Willard Massingell, a General Counsel
witness who was clearly hostile to Respondent , confirmed the fact that the
employees had been talking about trying to get a raise in October, before
any meeting took place with Walker.
2 Other than the fact that he was a dispatcher , the only testimony
159
Upon the entire record in the case, including my
observation of the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT AND THE
LABOR ORGANIZATION INVOLVED
Respondent is a Kentucky corporation engaged in the
service, repairing and fueling of river barges and other
vessels at its facilities at Paducah, Kentucky. During the 12
months prior to the issuance of the amended complaint,
Respondent furnished services valued in excess of $50,000
to customers outside the State of Kentucky. I find, as
Respondent admits, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act. The Charging Party and the Plant Bargaining
Committee are labor organizations within the meaning of
Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Facts
Some time in October 1972, Paul Walker, president of
Respondent, had talked with a number of his employees
about "some of the benefits they were receiving and also
they wanted to discuss a raise ." I Because of the nature of
Respondent's business , very few employees were present at
the facility at any one time . Accordingly, Walker told them
that if they selected a representative committee, "we could
work out some kind of an agreement." About November 1,
Richard Birch, one of Respondent's dispatchers,2 spoke
with Charles Amis, Candy Blair, and Frank Murphy.3
Birch told them, as Amis testified, "We were getting up a
committee to go up and talk to Mr. Walker about a raise."
Birch said there would be five on the committee to see
Walker, including Birch himself, but only Amis, Blair, and
Murphy agreed to go . Blair testified to the same general
effect, that Birch said, following "all kind of talking about
another raise," "we had a committee going up there to talk
to Mr. Paul about a raise ," and "we were the only three
that would go up there and talk to the man." Murphy
testified that the matter had been worked out in advance
by Birch, after having been talked about down on the
dock.
Amis, Blair, and Murphy then went to President
Walker's office. They then talked about the raise, and
about working conditions, to Walker. The three employees
"suggested some things-what benefits," according to
Murphy. Walker testified that "They said they represented
the people and I negotiated with them." Walker then drew
up an agreement, copies of which were apparently left in
the dispatch office, or posted there for the next 10 days or
so. The three committee members (Birch called them the
"Committee" when he selected the three to see Walker),
spoke to many of the employees during that period. As
Murphy put it, "some were for it and some weren't ... I
concerning Birch was that of employee Charles Amts, who testified that
Birch "was supposed to be one of the bosses down there ... he calls us on
the radio and gives us orders."
3 Apparently , he spoke with Amis and Blair in the office , at the same
time, but spoke with Murphy at the dock.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thought the biggest majority was for it so I signed it."
Murphy had himself spoken to some 15 or 20 of the
approximately 33 employees about the contract . Thereaft-
er, about November 10, 1972, the contract was signed for
the Company by Paul Walker and Charles Walker , Jr., and
for the employees by Frank Murphy , Charles Amis, and
Candy Blair.
General Counsel witness Willard Massingell testified
that pnor to November 1972 he talked to a number of
employees to see how they felt about a union coming into
the plant , but never mentioned the name of any union "up
until they got this little old contract started ." Murphy
testified that at some point Walker told him that a union
was trying to get in and he would do anything in his power
to keep it out . Murphy's recollection as to this event and
his placement of it in reference to the events of October
and November 1972 were so vague that I am unable to
conclude that Walker made any reference to a union trying
to get in during the critical period , particularly in the light
of Massingell 's aforementioned testimony.
B. Discussion
The sole issue in this case is whether Respondent
unlawfully aided , assisted , and supported the so-called
Plant Bargaining Committee by the acts described above.
including granting it recognition and executing and
maintaining a collective-bargaining agreement with it. The
General Counsel neither filed a brief with me nor did he
express his theory of the case to me orally, so I must of
necessity glean his theory from the complaint itself. The
operative paragraphs thereof state that the unlawful aid,
assistance and support consisted of "arbitrarily establish-
ing and granting recognition to the Plant Bargaining
Committee . . . notwithstanding the fact that the Plant
Bargaining Committee did not represent a majority of
Respondent's employees"; and "preparing, executing, and
... maintaining a written collective bargaining agreement
with the Plant Bargaining Committee . . . at a time when
the . . . Committee did not represent the majority of
Respondent's employees for collective bargaining purposes
As I read these allegations , the questions to be
decided are whether the committee was in fact established
by Respondent , and whether the proof shows that the
committee did not represent a majority when it was
recognized and when the contract was executed.
The first question must be answered in the negative. The
testimony of all the witnesses shows that the employees
had been discussing a possible raise with Respondent's
president. Paul Walker, and that a committee was selected
to see Walker about a raise , with dispatcher Birch
instrumental in the selection of Amis, Blair , and Murphy to
serve on the committee . There is no probative evidence in
the record that Birch was a supervisor . Amis' testimony
that Birch "was supposed to he one of the bosses down
there" hardly suffices to establish Birch as a statutory
supervisor, nor does Arms' "he calls us on the radio and
gives us orders " establish supervisory status, in the light of
the fact that Birch was a dispatcher . And dispatchers, the
Board has consistently held, are not , solely by virtue of
dispatching functions , supervisors . Vangas, Inc., 167
NLRB 805, 806 , Fresno Auto Auction, Inc., 167 NLRB 878,
879; Norfolk, Baltimore, and Carolina Lines, Inc., 175
NLRB 209, 210.
Thus, there is no reason to assume that when Birch said
"We were getting up a committee ...." (emphasis
supplied), he was referring to management rather than to
the employees. Furthermore , the testimony shows that
Birch and the other employees had been discussing the
matter prior to Birch 's "selection" of Amis, Blair, and
Murphy as the committee to see President Paul Walker,
and, indeed , Birch had originally contemplated being on
the committee himself . As noted above, Massingell , plainly
hostile to Respondent, nevertheless testified that he heard
the men talking for some weeks prior to the committee's
meeting with Walker about trying to "get one up." Thus,
Paul Walker's testimony that he had talked to many of the
employees about their desire for a raise , and that he told
them to select a committee because of the difficulty of
getting together with the full group, is not disputed, but
rather confirmed , by the testimony of the General
Counsel's witnesses . In all these circumstances , I find that
the General Counsel has not proven that Respondent
established or assisted the Plant Bargaining Committee on
or about November 1, 1972.
On the other hand, although the suggestion to form a
"committee" may have been only to facilitate discussion of
the employees' desires as to a wage raise , with the nature of
the operation precluding any sort of mass meeting of the
employees with management, Walker's own testimony
makes it clear that he knew, or should have known, that the
committee was only a spokesman , and scarely purported to
be a functioning labor organization acting as the statutory
exclusive bargaining representative of the employees.
Indeed, the "Committee" had no officers , no dues, no
constitution or bylaws, had never had an employee
meeting or an election , had no minutes , and had no
structure at all, formal or informal.
It is also clear from all the testimony that there was no
real bargaining between the three employees and Walker at
the November 1 meeting. Rather, Walker prepared a
contract , and he told the committee at the next meeting,
the contract already completed, to take the contract down
to the men and let them read it . The contract was for a
term expiring April 2, 1974. Walker's testimony indicates
that the Teamsters filed a petition for his employees
subsequent to the execution of that contract , and that no
election has been directed , with whether one is to be held
apparently depending on whether the contract is a bar.
It is a far cry from an informal committee acting as
spokesman for the employees on the single issue of a wage
increase to Respondent 's preparing and executing a full
collective-bargaining agreement for a fixed term , without
any bargaining , and then utilizing that agreement to
attempt to prevent any election being conducted by the
Board on a representation petition by another labor
organization . In this context , the fact that the labor
organization in question had made no overt organizational
moves prior to the signing of the contract is less significant
than Walker's testimony that outside unions' attempts to
organize his employees was "a continual thing and nothing
unusual ," although he "had no knowledge that any
concentrated effort was being made."
WALKER'S MIDSTREAM FUEL & SERVICE CO.
When asked why he recognized and entered into an
agreement with the Plant Bargaining Committee. Walker
responded as follows:
Well, there are so many things other than hourly
wages to bring before the employees-the fringe
benefits, vacation, insurance benefits, other working
conditions. The only way that they will-it's a guide
book so to speak as any contract would be. That's my
purpose for putting it together so they will have an
understanding of what I intend to do for them. At the
same token, I know that they know what they can do
and can't do.
There is much to be said for reducing to writing existing
wages, hours, working conditions, etc., so that employees
understand them, and, indeed, putting them out in some
sort of personnel manual or employee handbook. But to do
that in a document called "Agreement," and one which
contains a "Representation" provision, stating that the
Plant Bargaining Committee shall represent the employees,
goes far beyond the stated purpose. I am satisfied, in these
circumstances, that Walker's motivation was to keep any
and all outside unions on the outside, and that Murphy's
testimony that Walker said he "would do anything in his
power to keep [a union ] out," whenever it was said,
4 Although there is no actual proof that the committee represented a
majority of the employees, there is insufficient evidence from which to find,
161
represents the true reason for the preparation and
execution of that agreement. I find, accordingly, that
Respondent violated Section 8(a)(1) and (2) by recognizing
the committee as the exclusive bargaining representative of
the employees and executing a contract with the commit-
tee.
CONCLUSIONS OF LAW
1. The Teamsters and the Plant Bargaining Committee
are labor organizations within the meaning of Section 2(5)
of the Act.
2. By recognizing and signing a contract with the Plant
Bargaining Committee, Respondent has engaged in and is
engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(l) and (2) and Section
2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action to
effectuate the policies of the Act.
[Recommended Order omitted from publication.]
or infer, that it did not, and I therefore do not rely on any lack of majority
status in making my unfair labor practice findings herein