Weirton Ice and Coal Supply Co.

National Labor Relations Board - Board Decisions

Mar 20, 1953

103 N.L.R.B. 810 (N.L.R.B. 1953)

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than of a technical or engineering, nature; and that they are separately
supervised, lead us to conclude that these employees have work in-
terests which are essentially dissimilar from those of the engineering
department employees and should therefore be excluded from a bar-
gaining unit of those employees.
We find that all engineering department employees at the Em-
ployer's Phoenix, Arizona, radio and television station, including
studio and transmitter engineers and operations supervisors and the
AM transmitter supervisor,6 but excluding directors, writers, an-
nouncers, and other production department employees; the staff artist
and other facilities department employees; office employees; janitors;
guards; all other employees; and supervisors as defined in the Act,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
[Text of Direction of Election omitted from publication in this
volume.]
9 The parties stipulate that the two operations supervisors are not supervisors as
defined in the Act, and should therefore be included in the unit ; they are unable to
agree , however, with respect to the status of the AM transmitter supervisor. The
operations supervisors spend 80 to 90 percent of their time performing work similar
to that of other engineers and the remainder in the routine direction of engineers,
in the course of which they assign engineers in accordance with a daily operations
schedule and direct them to make equipment adjustments The AM transmitter su-
pervisor, responsible for the technical operation of the transmitter , spends 50 per-
cent of his time performing work similar to that of the other transmitter engineers and
the remainder in nonroutine technical operations , including the making of weekly field
strength measurements , as required by the Employer ' s operating license. The operations
supervisors and the AM transmitter supervisor , by virtue of their greater experience and
responsibilities , receive $25 and $55 more per month , respectively , than the employees
with whom they work They have no power to hire, discharge , or transfer employees,
and their recommendations concerning employees are subject to independent investiga-
tion. We find that they are not supervisors as defined in the Act and shall include them
in the unit. The Fort Industry Company, 88 NLRB 527; Wodaam Corporation, 83 NLRB
335.
WEIRTON ICE AND COAL SUPPLY COMPANY and INTERNATIONAL
BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA, LOCAL UNION No. 428, AFL. Case No.
6-CA-401. March 200, 1953
Decision and Order
On September 11, 1952, Trial Examiner Earl S. Bellman issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices within the meaning of the Act, and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
103 NLRB No. 76.
WEIRTON ICE AND COAL SUPPLY COMPANY 811
The Trial Examiner also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint, and
recommended dismissal of those allegations. Thereafter, the Gen-
eral Counsel filed exceptions to the Intermediate Report and a support-
ing brief. The Respondent filed a brief in support of the Interme-
diate Report.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the Trial Examiner's findings, conclu-
sions, and recommendations, with the following additions and mod-
ifications.2
1. The General Counsel excepts to the Trial Examiner's failure to
find that the Respondent violated Section 8 (a) (5) of the Act. We
find no merit in this exception.
However, in adopting the Trial Examiner's finding in this respect,
we do not rely upon his rationale-namely, that the Respondent acted
in good faith in questioning the Union's majority status. We do not
believe it is necessary to reach this good-faith issue, as we are not
satisfied that the General Counsel has established by the preponder-
ance of the evidence that on January 8, 1951, when the Union first
requested the Respondent to bargain with it, or at the time of any
later request before the hearing, the Union in fact represented a ma-
jority of the employees in the appropriate bargaining unit.
While we find, as did the Trial Examiner, that on January 8 the
Union had obtained signed authorization cards from 45 of the ap-
proximately 60 employees in the unit, we do not, in view of the spe-
cial circumstances of this case, regard these cards as reliable evidence
of the desires of the employees. These cards were obtained on Janu-
ary 6 and 8, 1951, in the midst of rival organizational campaigns by
the Union and United Steelworkers of America, CIO. Only a few
days earlier, 40 of the employees had signed authorization cards for
the CIO .3 Included among these 40 signers of CIO cards were 35
employees who, during the next few days, signed cards for the Union.
As the Board recently said in Sunbeam Corporation: 4
1 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 [ Chairman Herzog and
Members Styles and Peterson].
2 The General Counsel did not except to the Trial Examiner 's findings in footnote 47 of
the Intermediate Report that the Respondent was not responsible for certain alleged
coercive remarks of Standardi, a supervisor. Accordingly , those findings are adopted
without comment.
8 Thirty-six of the CIO cards were signed on January 3, three on January 2 , and one
was undated
4 99 NLRB 546. See also Midwest Piping and Supply Company, 63 NLRB 1060, 1070.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This Board has also long recognized that authorization cards
are a notoriously unreliable method of determining majority
status of a union . . . where competing unions are soliciting
cards, because of the duplications which then occur.
If we exclude from consideration the 35 employees who signed cards
for both unions, the remaining 10 employees who signed cards only for
the charging Union would not be sufficient to constitute a majority .5
As the record contains no other evidence tending to establish the
Union's majority status 6 at any material time herein, we find no
unlawful refusal to bargain by the Respondent.'
Order
Upon the entire record in this 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, Weirton Ice and
Coal Supply Company, Weirton, West Virginia, its officers, agents,
successors, and assigns shall :
1. Cease and desist from :
(a) Giving aid, assistance, and encouragement to the Truck Drivers'
Committee, interfering with its formation or administration, con-
tributing financial or other support thereto, and dominating Truck
Drivers' Committee, or any other labor organization, including any
successor to the Committee.
(b) Interrogating its employees with respect to union matters, or
conducting polls of its employees with respect to their desires as to
representation.
(c) In any like or related 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 International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 428, AFL, or any other labor organization,
to bargain collectively through representatives of their own choosing,
to engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection or to refrain from any and all
6 Although, as asserted by the General Counsel , the CIO did not at any time make any
demand upon the Respondent for recognition , that fact does not aid us in determining
which union was the true choice of the majority of the employees on January 8, when
the charging Union made Its initial request for bargaining.
"While the Trial Examiner found it unnecessary to reach, or determine , the Issue of
majority status , he observed that the "detailed evidence developed at the hearing as to
the overlapping CIO and AFL authorization cards signed almost simultaneously by the
drivers, creates very substantial doubt as to whether the record now contains adequate
proof of the Union 's majority."
' Attached to the Respondent 's brief was a motion to reopen record, requesting that the
record be reopened for the purpose of permitting the introduction In evidence of a con-
tract executed, after the hearing in the instant case, by the Respondent and the Union.
As we have overruled the General Counsel 's exceptions to the Intermediate Report, no
useful purpose would be served by granting this motion , and It is therefore denied.
WEIRTON ICE AND COAL SUPPLY COMPANY 813
such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a con-
dition of employment, as authorized by Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from and completely
disestablish Truck Drivers' Committee, as the representative of any
of its employees for the purpose of dealing with the Respondent con-
cerning grievances, labor disputes, wages, hours of employment, or
other conditions of employment, and withhold all such recognition
from any successor to the Committee.
(b) Post at its garages and office at Weirton, West Virginia, copies
of the notice attached to the Intermediate Report marked "Appendix
A." 8 Copies of said notice, to be furnished by the Regional Director
for the Sixth Region, shall, upon being duly signed by the Respond-
ent's representative, be posted by it immediately upon the receipt
thereof, and maintained by it for a period of sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for the Sixth Region, in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondent has violated Section
8 (a) (5) and (1) of the Act by refusing to bargain with the Union,
and Section 8 (a) (1) thereof by threatening its employees with
economic reprisals or by making offers or promises of economic
benefits.
8 This notice shall he amended by substituting for the words "The Recommendations of
a Trial Examiner" in the caption thereof , the words "A Decision and Order ." In the
event that this Order is enforced by a decree of the United States Court of Appeals, there
shall be substituted for the words "Pursuant to a Decision and Order " the words "Pur-
suant to a Decree of the United States Court of Appeals , Enforcing an Order "
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge duly filed on January 11, 1951, and an amended charge duly
filed on June 22,1 by International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local Union No. 428, AFL, herein called
the Union, the General Counsel of the National Labor Relations Board, by the
Regional Director for the Sixth Region ( Pittsburgh , Pennsylvania)' issued
1 Where the year is omitted hereinafter in giving dates, it will be understood to be 1951
2 The General Counsel and his representative at the hearing will hereinafter be called
the General Counsel , the National Labor Relations Board , the Board ; and the Regional
Director for the Sixth Region , the Regional Director.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his complaint dated September 13, 1951, against Weirton Ice and Coal Supply
Company, Weirton, West Virginia, herein called the Respondent, alleging that
the Respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (a) (1), (2), and (5)
and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
61 Stat. 136, herein called the Act. Copies of the complaint, notice of hearing,
charge, and amended charge were duly served on the Respondent, the Union,
the Truck Drivers' Committee, herein called the Committee, and its chairman,
Thomas D. Thornton.
With respect to the unfair labor practices, the complaint alleged in substance
that: (1) On and after about January 8, 1951, the Respondent, in violation
of Section 8 (a) (1) and (5) of the Act, refused to recognize and to bargain
with the Union which was the duly designated representative, in an appro-
priate unit, of all drivers working out of the Respondent's garages at Weirton,
West Virginia, and vicinity; (2) on and after about January 9, the Respondent,
in violation of Section 8 (a) (1) and (2), interferred with, supported, and
dominated the Committee; and (3) from on or about January 6, by statements
and expressions tending to discourage concerted activities and membership
in the Union, interrogation of drivers, threats of economic reprisal, offers of
economic benefits, a poll of its employees, and assistance in the formation of
the Committee, the Respondent interferred with, restrained, and coerced its
employees, in violation of Section 8 (a) (1) of the Act.
The Respondent's answer, duly filed pursuant to an extension of time granted
by the Regional Director, admitted the allegations as to its operations and the
appropriateness of the unit. As amended at the hearing, the answer specifically
denied that Respondent had engaged in any of the unfair labor practices alleged
in the complaint. Extensive averments in the Respondent's answer, among
them that it failed to recognize the Union because of "genuine doubt" as to the
Union's majority, are, insofar as material, considered subsequently herein.
Pursuant to the notice, and an order postponing the hearing which was
duly issued and served by the Regional Director, a hearing was held from
October 15 through October 19, 1951, at Steubenville, Ohio, before me, the
undersigned duly designated Trial Examiner. The General Counsel and the
Respondent were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence bearing on the issues was afforded all parties. During the hear-
ing the complaint and the answer were amended in certain minor respects
without objection.
At the close of the hearing, the parties were afforded opportunity to argue
orally and to file briefs or proposed findings of fact and conclusions of law, or
both. The General Counsel and the Respondent argued orally on the record.
Pursuant to an extension of time to November 26, 1951, granted by the Chief
Trial Examiner, the Respondent filed a brief which has been duly considered.
On November 14, 1951, I received a letter, dated November 13, from counsel
for the Respondent enclosing copies of a letter, dated November 6, from the
Board stating that it had sustained the Regional Director's dismissal of the
Respondent's petition in Case No. 6-RM-73. The Respondent's letter of No-
vember 13 states that the General Counsel and the Respondent are "both agree-
able" that the record herein be supplemented by the inclusion of the Board's
letter of November 6. Accordingly, the aforesaid letters have been placed in
the formal file and are made a part of the record in the instant matter.
Upon the entire record in this case, and from my observation of the witnesses,
I make the following :
WEIRTON ICE AND COAL SUPPLY COMPANY 815
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Weirton Ice and Coal Supply Company, the Respondent herein, is 1 of 4
corporations known as the Starvaggi Companies. The other 3 are the Pitts-
burgh and Weirton Bus Company, Weirton Construction Company, and Penn-
weir Construction Company. The 4 Starvaggi Companies, which are separate
corporations, share a common office and office staff, located in Weirton, West
Virginia. Mike Starvaggi is the president of all 4 companies. Anthony Bat-
taglia is the secretary and treasurer of each of the Starvaggi Companies.
The Respondent, a West Virginia corporation, is engaged in truck transpor-
tation and in buying and selling building supplies. It is licensed by the Inter-
state Commerce Commission for interstate transportation. During the 12-month
period preceding October 15, 1951, the Respondent purchased for use at its
Weirton place of business, raw materials, equipment, and supplies valued in
excess of $100,000, of which approximately 90 percent was shipped to its place
of business from points outside the State of West Virginia. During the same
12-month period, the Respondent sold and shipped products valued in excess of
$350,000, of which approximately 10 percent was sold and shipped to points
outside the State of West Virginia. The Respondent hauls coal and other
products on a contract basis for the Weirton Steel Company, Weirton, West
Virginia. It has approximately 180 employees in Weirton, West Virginia, about
,60 of whom, at times here material, were truck drivers working out of the
Respondent's Weirton garages. The Respondent concedes and I find that it is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 428, AFL, herein called the Union, is a
labor organization affiliated with the American Federation of Labor. The Union
admits to membership employees of the Respondent who drive trucks in the
vicinity of Weirton, West Virginia.
III. THE UNFAIR LABOR PRACTICES
A. Some general considerations
There is a large amount of flatly contradictory evidence in this case, and
any attempt to discuss all conflicting testimony and credibility evaluations would
greatly protract this report. Hence such matters are detailed only where major
conflicts are involved. While some of my findings will be stated without detailing
the credible evidence in the record considered as a whole upon which they are
bottomed, nevertheless in reaching the finding and conclusions which follow, I
have carefully weighed all of the evidence and considered all contentions of
the parties.
It should be noted at the outset that practically all of the actions of the
Respondent which are in issue took place in January 1951. Rumors had reached
the Respondent during December 1950 that the Weirton Independent Union,
which represents employees of the Weirton Steel Company, was signing up its
truck drivers. Early in January 1951, a majority of the Respondent's truck
drivers in the admittedly appropriate unit signed cards for United Steelworkers
of America, affiliated with the Congress of Industrial Organizations, herein called
the CIO. A few days later, a majority of those same drivers also signed appli-
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cation blanks for the Union , sometimes also called herein the AFL.' The organ--
izational activities among the drivers, about which the Respondent had quickly
received reports, evidently reached its peak during the first week in January
and was accompanied by substantial loss in production because various drivers
were stopping their trucks to talk with one another .` It was at this juncture that,
within a period of a few days , the Respondent held three meetings of its drivers ;
the Union sought and was refused recognition ; and the Committee was formed.
In order to appraise various legal contentions which stem largely from events
occurring between January 6 and 10 , it is necessary to establish what actually
did take place on several occasions about which there is sharp dispute as to the
facts. But before determining those facts from the highly conflicting evidence,
it will be helpful to note first certain other general factors in this case.
The record as a whole shows that the 4 Starvaggi Companies , whose corporate
jurisdictions and lines of managerial authority are not too clearly differentiated
in the minds of the employees , revolve around Mike Starvaggi , president of all
4 companies , and Anthony Battaglia , secretary -treasurer of all of them.' Presi-
dent Starvaggi , whose activities form a major portion of the issues in this case,
speaks somewhat broken English , with an accent which makes it difficult for
some of his employees to understand him." It was obvious from Battaglia's
appearance as a witness , his fluency in the use of English , and his testimony as
to his duties, that he customarily plays an important role in the activities of the
Starvaggi Companies , including the Respondent . However , illness removed
Battaglia almost entirely from the picture during much of January 1951 ° I am
satisfied , from my study of all the evidence , from my observation of them as
witnesses , and from the roles which they played as hereafter shown , that Albert
P. Bundy and John Sorrenti , who both speak English fluently and were the
highest paid employees in the Weirton office, served as Starvaggi 's right- and left-
hand men during Battaglia 's hospitalization , and that the Respondent is respon-
sible for their actions hereinafter detailed e
It should be noted that Starvaggi has had dealings with unions . In fact, two
of the corporate associates of the Respondent, Penn-Weir Construction Company
and Weirton Construction Company, have contracts with United Mine Workers
of America. It should also be noted in connection with the general problem of
credibility that repeated study of the conflicts in the evidence heightens my
9 These overlapping authorizations are subsequently discussed in greater detail. It
need only be noted now that most of the 40 CIO cards hear the date January 3 , 1951 ; that
most of the 45 applications for the AFL were signed on January 6, 1951 ; and that 35
drivers signed both CIO and AFL cards.
4 The inherent probabilities of the situation , and testimony of drivers called as wit-
nesses, lend credence to the testimony of President Starvaggi that production went down
about 25 to 35- percent.
I In addition to their common office and office staff under Battaglia's supervision, the
4 companies use Identical checks, which carry the names of each of the 4 companies as
subheadings under the caption , "STARVAGGI COMPANIES."
6 For instance , one of the drivers called as a witness by the General Counsel, Clarence
Moore , testified that it was difficult to understand Starvaggi , and that Starvaggi was not
nearly as good a "speaker as Mr . Sorrenti ," whose activities are also in issue
T Battaglia testified that he first returned to the office about January 15 after some 10
or 12 days in a hospital , and that he gradually resumed his duties , spending only "an
hour or two" a day at the office "for a week or two after that "
8 Normally Battaglia is the immediate superior of both Bundy and Sorrenti whose duties
and responsibilities distinguish them from mere clerical employees , although Battaglia
testified that both were clerks in the office The Respondent admits Its responsibility for
the activities of Bundy but denies that those of Sorrenti are chargeable to it Sorrenti,
who is on the payroll of the Pittsburgh and Weirton Bus Company , is the buyer for all
Starvaggi Companies of maintenance , repair , and operating supplies and equipment, and
has no supervisory authority over the truckdrivers.
WEIRTON ICE AND COAL SUPPLY COMPANY 817
feeling that if certain extreme statements attributed by some of the General
Counsel's witnesses to representatives of the Respondent had actually been made,
such bald threats would have come to light before the consent election, which
was held on January 31, 1951. This is true because I am not persuaded that
the drivers were gripped by any such paralysis of fear as is urged in explaining
why none of the drivers had contacted G. C. Soisson, president and business agent
of the Union, about such matters sooner. In any event, although the matter is
not entirely free from doubt, on balancing all of the evidence and the reasonable
inferences therefrom, it is my considered judgment that the Respondent, who
incidentally did not secure counsel until September 1951, has acted concerning
matters in issue in an essentially improvised and spontaneous manner, rather
than with any clever design contrived to thwart the purposes of the Act.
Before turning to a consideration of the controverted facts and issues, it will
be helpful in orientation to set out chronologically those major events not too
much in dispute.
B. Chronology of events
About 4: 30 on the afternoon of Saturday, January 6, 1951, pursuant to
arrangements previously made, Soisson and a former business agent of the
Union, James R. Joyce, went to the Blue Dahlia, a tavern about 2 miles from
the Respondent's Weirton office, to sign up the truck drivers involved herein.'
Soisson and Joyce were told by a few drivers that the drivers were going to be
detained by a meeting called that afternoon by Charles Pauling, the Respondent's
truck dispatcher and foreman. The conflicting and contradictory testimony as
to what actually took place at that meeting is subsequently considered. In any
event, after Pauling's meeting, Joyce and Soisson, who had waited at the Blue
Dahlia, secured the signatures of 40 drivers to union-application blanks, which
designated the Union as "sole bargaining agent" ; identified the employer as
"Starvaggi Companies" ; and authorized the employer to check off "all union
dues and assessments." 10
About noon on Monday, January 8, Soisson, in response to a telephone call,
met and signed up 5 additional drivers at Ethel and Jack's, a "beer stop" about
3 miles from the Respondent's Weirton office. Having thus signed up a majority
of the drivers, although he was then uncertain as to the corporate identity of
their employer, Soisson, whose union office is in Steubenville, Ohio, prepared
and mailed 2 documents on January 8. One was the original petition for cer-
tification of representatives in Case No. 6-RC-760, sent to the Regional Director,
which claimed a unit composed of "all drivers" working out of the Weirton
garages of "Starvaggi Companies and/or Weirton Ice and Coal Supply Co.,
Weirton Construction Co., and Penn-Weir Construction Co." The other docu-
ment, a registered letter which was mailed special delivery, read as follows :
° Soisson testified that a committee of four employees , not identified in the record, had
made the arrangements with Joyce the day before. It is not clear why the drivers, a
majority of whom had but recently signed up with the CIO, became interested in joining
the Union.
10 These blanks contain no statement of revocation of any previous authorizations. It
should be noted that the previously signed CIO cards had included both a designation of
collective bargaining agency and a checkoff authorization . While all of the 25 applica-
tions witnessed by Joyce, who did not testify, are dated January 6, 1950, rather than
January 6 , 19511, as are 14 cards witnessed by Soisson , I accept testimony , including that
of Soisson, that the 25 cards witnessed by Joyce were actually signed on January 6, 1951,
and were inadvertently dated 1950. I also accept Soisson 's testimony that a fortieth
signed blank which was witnessed by Soisson but which bears no date, was also signed on
January 6, 1951
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
JANUARY 8, 1951
MR. MIKE STARVAGGI,
STARVAGGI COMPANIES AND/OR WEIRTON ICE AND COAL SUPPLY CO., WEIRTON
CONSTRUCTION CO., PENN-WEIR CONSTRUCTION CO.,
Pennsylvania Ave., Weirton, W. Va.
DEAR MR. STARVAGGI : This is to advise you that, as of Saturday, January 6,
1951, a majority of your employees who are eligible to membership in General
Teamsters' Union No. 428, have joined the union and have designated it as
their bargaining agent relative to signing a contract embodying wage rates
and working conditions.
The geographical jurisdiction of Teamsters' Union No. 428 embraces
Brooks and Hancock counties, in West Virginia, and Jefferson county, in
Ohio.
Our purpose in writing you is to formally request a meeting with you
and/or your designated representatives to sign the agreement currently in
effect between our union and the several companies located within our juris-
diction and engaged in businesses similar to yours.
May we hear from you by return mail or by telephone as to your suggestion
of an appropriate time and place when and where the officials of the union
may meet with you and/or your designated representatives to sign the work-
ing agreement.
Very truly yours,
G. C. SorssoN, President,
General Teamsters' Union No. 428.
On the evening of January 8, President Starvaggi held a meeting with a group
of older drivers who had been with the Respondent for 3 years or more. The
contradictory evidence as to what then took place is considered in another
section of this report.
On the morning of January 9, Starvaggi received and read the Union's above
quoted letter of January 8.' On the evening of Tuesday, January 9, a meeting
of the Respondent's drivers, which had originally been posted for the evening
of January 8, but which had been postponed because the hall had proved to be
unavailable for Monday night, was held at the Weirtonian Club." The con-
tradictory testimony concerning numerous aspects of this meeting is subsequently
considered. It is clear, however, that several people made talks at the January
9 meeting, among them Starvaggi and Sorrenti, who had arranged the meeting
upon Starvaggi's instructions; that a ballot of the drivers was conducted which
resulted in a vote of 34 for "No Union" and 14 for "Outside Union" ; and that
the Committee, considered in detail in a subsequent section of this report, was
formed that evening after the ballot.
On the morning of January 10, pursuant to instructions received from Starvaggi
about 8 o'clock, Bundy telephoned Soisson and arranged a meeting between
representatives of the Respondent and the Union which took place at the Re-
spondent's office about 10 o'clock that morning. Disregarding for the present a
number of contradictions in the testimony of Soisson, Starvaggi, and Bundy as
to what took place at this meeting which lasted possibly as much as an hour
u This registered letter had been delivered to the plant after office hours on January 8
and signed for by Sorrenti, who is not authorized to open mail. I credit the consistent
and plausible testimony of Starvaggi and Sorrenti as establishing that the letter was not
actually received and read by Starvaggi until the morning of January 9.
12 The consistent testimony of Sorrenti, a past president of the club which is some 3
blocks from the garage , and of Starvaggi as to the postponement of this meeting is credited.
WEIRTON ICE AND COAL SUPPLY COMPANY 819
and a half," it is clear that Soisson claimed to represent a majority of the drivers ;
that the Respondent said that it was not satisfied as to the Union's majority;
that the Respondent refused to recognize the Union without a Board election ;
and that Starvaggi and Bundy, in explaining the Respondent's position, stated
substantially what is set out below in a letter dated January 10, which Bundy,
shortly after the meeting, addressed to Soisson in compliance with a request
made by Soisson at the meeting that the Respondent's position "be put in writ-
ing." This letter, on the stationery of the Weirton Ice and Coal Supply Com-
pany and signed by Bundy on behalf of the Respondent, was received by Soisson
on January 11. The body of this letter, as to the accuracy of which as a state-
ment of the Respondent's position on January 10 Soisson did not register any
exception, read as follows :
In reply to your letter dated January 8, 1951 and the meeting we had with
you this morning, it was our understanding originally, that the Weirton
Independent Union had signed up the majority of our truck drivers, and too,
that the CIO had signed up the majority of our truck drivers ; and now,
according to your letter, you have signed up the majority of our truck
drivers.
Several of our truck drivers had requested a meeting with the manage-
ment and last night we had a meeting at the Weirtonian Hall in Weirton
and at that meeting there were forty-eight (48) drivers present who decided
that they wanted to see how the majority of those present wanted to vote
and elected their own judges of election and a secret ballot was had where-
upon it was found that fourteen (14) drivers wanted representation by
outside bargaining agents and thirty-four (34) wanted no union whatsoever.
It is not known who voted for outside bargaining agents and who voted
for no union whatsoever ; however, the names of those who attended the
meeting and names of judges of election are known and can be furnished if
necessary.
In view of the above information and vote taken by the drivers at the
meeting last night, it is the opinion of the undersigned that our truck drivers
are not in favor of any outside bargaining agents and, therefore, we feel
that we would be doing an injustice to our drivers if we signed an agreement
with you.
On January 11, Soisson filed the original charge in the instant matter which
alleged violation of Section 8 (a) (1) and (3) of the Act, but specified only
the discharge of one of the truckdrivers, David C. Boyd." It should be noted
that while this charge was filed after Soisson's conference with the Respondent
on January 10, no mention was made of any refusal to bargain ; that the only
reference to 8 (a) (1) aside from the alleged discriminatory discharge was
the general phrase "and by other acts and conduct"; and that the charge
identified the employer by the same "and/or" multiple choice designation set
out above, which had been used in filing the petition.
On January 12, over Bundy's signature, the Respondent sent a letter to the
Regional Director which acknowledged receipt of a letter from the Regional
Director in Pittsburgh, dated January 10, giving notice that the Union had
13 It should be noted that a fourth individual present at this meeting, a business agent
of another union whom Soisson had asked to accompany him, did not participate in the
discussion or testify at the hearing.
14 Since there is no issue in this case as to Boyd 's discharge , it will not hereinafter be
referred to again, although it is mentioned in some of the correspondence subsequently
discussed.
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filed Its representation petition. Said letter from the Regional Director was
addressed in the "and/or" fashion in which the employer had been designated
in the petition. Bundy made no reference in his reply to this multiple-choice
employer designation. However, to indicate the Respondent's position, Bundy
enclosed in his reply to the Regional Director a copy of his letter of January 10
to the Union, the body of which has been set out above in full. On its face,
Bundy's letter of January 12 to the Regional Director, like Bundy's letter of
January 10 to the Union, was written on behalf of the Respondent in reply to
a letter addressed in multiple-choice fashion. It is my opinion that the replies
of January 10 and 12, respectively, admittedly acts of the Respondent, consti-
tuted tacit admissions that the Respondent was the employer of the drivers
involved in the Union's claim as to representation.
On the afternoon of January 15, according to his unimpeached testimony
which I credit, Starvaggi found in his car which had been parked on a street
in Weirton, a bundle containing 40 signed CIO authorization cards. These 40
cards were placed in evidence by the Respondent. Each of these printed and
evidently official cards actually is a double card, authorizing bargaining agency
and a checkoff. Each card bears what appears to be the same genuine original
signature in 3 different places of 1 of the Respondent's drivers, 38 of whom
were still on the Respondent's payroll of January 13, used in the consent election.
One of these cards is undated ; 2 are dated January 2, 1951; and 37 are dated
January 3, 1951.
Several of the drivers called respectively by the General Counsel and the
Respondent admitted signing such CIO cards. No witness was produced who
denied his signature as appearing on any one of these cards. Battaglia testified
creditably that he had, at Starvaggi's request, verified the authenticity of all
of the signatures on the 40 cards by comparing those signatures with known
original signatures of the drivers on documents in the Respondent's possession.
Said documents were furnished for the General Counsel's inspection at the
hearing. No explanation accompanied these cards which Starvaggi found in
his car, and the CIO has not otherwise either claimed or disclaimed repre-
sentation as to the drivers. I am satisfied, on all of the evidence, that on
January 15, for reasons not shown by the record, some unidentified individual
deposited 40 signed authorization cards of United Steelworkers of America,
CIO, in Starvaggi's car, and that said cards had previously been signed by 40
of the Respondent's drivers.
On January 19, 1951, the Union filed its amended petition and also entered
into an agreement for consent election with the Respondent. This amended
petition correctly named the Respondent as the only employer of the drivers
in the unit which the Union claimed to represent 18 The consent-election agree-
ment, which was signed by Bundy for the Respondent and Soisson for the Union,
resulted from a meeting arranged by a field examiner of the Board. The Union's
then pending charge was not discussed at this meeting, during part of which
'6 The fact that the amended petition , correctly naming the employer , was not filed until
January 19, would appear to lend some credence to the testimony of Bundy that it was
at the conference held on that date that the question of what corporation actually was
the employer of the drivers was first discussed . Bundy denied the testimony of Soisson
that this matter was cleared up at their meeting on January 10. Whether this matter
was first discussed on January 10 or January 19, in any event , as has been found above,
the Respondent 's letter of January 10 to the Union was a tacit admission by the Respondent
on that earlier date that it was the employer, and I am satisfied from everything which
transpired that the Respondent was not uncertain at any material time as to what drivers
the Union was seeking to represent , although the Union was uncertain for a time as to
which of the Starvaggi Companies employed those drivers.
WEIRTON ICE AND COAL SUPPLY COMPANY 821
Starvaggi was also present . The payroll date agreed upon was January 13;
the date for the election was set as January 31; the Respondent was desig-
nated as the employer ; and the agreed unit of Weirton drivers was spelled out
in the same terms as appear in the complaint in the instant matter . This agree-
ment, recommended by the field examiner and approved by the Regional Di-
rector on January 22, vested final decision in such matters as challenges and
objections in the Regional Director.
The tally of ballots in the election conducted on January 31, as certified by
Soisson for the Union and Sorrenti for the Respondent , shows that of the
57 valid votes cast by the approximately 60 eligible voters, 19 were cast for the
Union and 38 against it.
On February 5, objections to the election were filed by the Union with the
Regional Director. These objections were to the effect that the Respondent
had bargained with the Committee after the petition had been filed ; had
granted a wage increase effective about January 15; and had held a meeting
at which it had made threats and promises of benefits with respect to the
Union. In a letter to the Regional Director dated February 7, the Respondent
took issue in considerable detail with the Union's objections and asked that
"the election be certified and approved."
On April 28, while the Union's objections to the election were pending, a
meeting was held at the Respondent's office at which Soisson and Joyce repre-
sented the Union and Starvaggi and Battaglia represented the Respondent.
Soisson asked the Respondent to recognize the Union for the drivers. Starvaggi
stated that since there had been no decision with respect to the Board election
he did not know whether he could "talk to you people." Battaglia questioned
the Union's right to make a demand for recognition in view of the results of
the two elections, the "private" one and the one conducted by the Board. Dur-
ing the discussion, Soisson made a remark to the effect that the Union might
picket the trucks of the Respondent at the gates of the Weirton Steel Company,
to which the Respondent was then delivering concrete. Whether or not such
picketing thereafter actually took place, it is clear that the Respondent did not
agree to recognize the Union at that meeting.
On June 22, the Union filed its amended charge in the instant matter, adding
the 8 ( a) (5) charges of refusal to bargain , and the 8 ( a) (2) charges as to
the Committee. On June 26, the Respondent wrote the Regional Director a
letter which in substance denied the Union's charges. This letter admitted
meeting with the Committee but denied domination thereof, and stated that "it
would be unfair to the employees" to accept the Union as the bargaining agent
since the election on January 31 did not show that the employees desired the
Union as their representative.
On August 16, 1951, the Acting Regional Director issued his "Report on Ob-
jections," a copy of which is in evidence. In substance, that report sustained
the objections of the Union ; 36 set the election of January 31 aside ; and stated
that a new election would be conducted upon notice thereafter to be issued.
By a letter dated August 23, the Acting Regional Director notified the Re-
spondent that he had approved the Union's "withdrawal without prejudice" of
the petition in Case No. 6-RC-760 but that Case No. 6-CA-401 was still pending.
11 Since this is not a consolidated proceeding, I deem it immaterial to a determination
of any of the issues before me that some divergence between the findings contained herein
and those in that report will appear upon comparison of the two documents. In other
words, the scope of the instant matter does not include any review of the representation
case, although various phases of that case form an integral part of some of the develop-
ments in issue herein.
257965-54-vol. 103-53
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint in the instant matter was thereafter issued by the Regional
Director on September 13.
On October 5, 1951, the Respondent filed a petition in Case No. 6-RM-73,
seeking an election among its drivers in the same appropriate unit above de-
scribed. By letter dated October 9, the Regional Director notified the Respond-
ent that he was dismissing its representation position in view of the 8 (a) (5)
allegation in the complaint. On October 16, the Respondent filed with the Board
a petition for review of the Regional Director's dismissal of its representation
petition. On November 6, the Board notified the Respondent that it was sustain-
ing the Regional Director's dismissal of the Respondent's petition in Case No.
6-RM-73 because of the refusal-to-bargain issue in the complaint case.
C. The alleged refusal to bargain
Upon analysis, the principal contentions of the Respondent, as to its alleged
refusal to bargain with the Union for the truckdrivers in the admittedly appro-
priate unit, appear to be, in essence, that: (1) The Respondent was under no
obligation to bargain with the Union during the pendency of the representation
case which the Union, prior to any meeting with the Respondent, initiated by
mailing its petition to the Regional Director on January 8, 1951, simultaneously
with its mailing to the Respondent of its claim as to representation and request
for a meeting; (2) by proceeding with the consent election on January 31,
the Union waived any prior unfair labor practices which the Respondent may
have committed and about which the Union must have had knowledge; 17 (3) that
the Union's belated filing of its 8 (a) (5) charge on June 22, 1951, demonstrates
that such charge of refusal to bargain was really an afterthought on the part
of the Union; (4) "the Union did not have a clear majority status," in view of
the fact that 35 of the 45 drivers who signed cards for the Union had "less
than a week earlier signed CIO cards"; 18 and (5) because of reports reaching
the Respondent about rival organizational activities among its drivers, the Re-
spondent reasonably entertained a genuine doubt as to the Union's representation
of a majority of its truck drivers, which doubt it expressed to the Union both
orally and in writing on January 10.
The above "Chronology of Events" gives the setting of the refusal- to-bargain
issues. I have carefully studied all factors in this case, including the unfair
labor practices hereinafter found, and all contentions of the parties in the light
of applicable Board policy as indicated in numerous decisions .19 I find no pre-
11 In this connection , I have also considered the General Counsel's contention that to
apply any such waiver doctrine , under the circumstances of this case, would be erroneously
to permit the actions of a private party to override the Board 's obligation to enforce the
public policy of the Act.
18 In evaluating this contention , among cases other than those cited in the Respondent's
brief which have been considered , are Sunbeam Corporation, 99 NLRB 546, and various
cases cited therein. In this recent Sunbeam decision , which discusses Board policy bear-
ing on situations created by the presence of rival labor organizations, the following
language is particularly pertinent :
This Board has also long recognized that authorization cards are a notoriously un-
reliable method of determining majority status of a union as a basis for making a
contract where competing unions are soliciting cards, because of the duplications
which then occur.
19 Among these decisions , which include some cited by the parties and some only re-
cently issued, the following should be compared with the facts in this case : James Thomp-
son & Co ., Inc., 100 NLRB 456; Longview Furniture Company , 100 NLRB 301; Stewart
Oil Company, 100 NLRB 4; E. H. Sargent and Co., 99 NLRB 1318; Geigy Company, Inc.,
99 NLRB 822; Sunbeam Corporation, 99 NLRB 546; Rehrig-Pacific Company, 99 NLRB
163; International Broadcasting Corporation ( KWKH), 99 NLRB 130 ; Lewisville Co*-
WEIRTON ICE AND COAL SUPPLY COMPANY 823
vious decision which is controlling because of various divergent factors in the
instant matter. However, it does appear from the decisions that the refusal-
to-bargain allegation herein must fail if the weight of the credible evidence as
a whole warrants the conclusion that the Respondent reasonably entertained a
genuine doubt that the Union represented a majority of its drivers, which doubt
it did not advance merely to gain time to disrupt the Union's majority. While
the matter is not without some troublesome elements of doubt, it is my con-
sidered opinion that, all circumstances fairly weighed, the record will not sup-
port a finding that the doubt as to the Union's majority, which the Respondent
clearly expressed from the beginning, was not advanced in good faith.
Several factors contribute to the foregoing conclusion. In the first place, a
highly unusual and significant factor differentiating this case is the actual pres-
ence of practically simultaneous organizational activity being carried on by
unions affiliated with the traditionally rival AFL and CIO. The Respondent cer-
tainly had heard, prior to receipt of the Union's claim of majority, that both
the CIO and the AFL had signed up a majority of its drivers." and the evidence
now in the record shows that that actually had taken place. Further, the
Union's simultaneous mailing of its petition and its claim for recognition, another
unusual factor, indicates that it was the Union's own knowledge of that fact
rather than any bad-faith doubt on the Respondent's part which led the Union
to initiate the representation proceeding prior even to receiving any reply from
the Respondent.
Whatever may have transpired in detail at the meeting of January 10
between the Respondent and the Union," I am satisfied and find that the Re-
spondent then advanced one valid reason for doubting the Union's majority,
the rival organizational activity and claims which had come to its attention.
In my opinion, this constituted a valid reason for doubting such majority, in
spite of the fact that the CIO had not demanded recognition.' Nor does the
fact that the Respondent also cited its own poll of January 9, found hereinbelow
to have been violative of the Act, as an additional reason for doubting the
Union's majority, robbed its first stated reason of legally effective genuineness.
In my opinion, it was this actually existing and known rival organizational
activity which lead not only to the Respondent's loss of production but also to
its decision to liquidate its uncertainty as to what its employees wanted by
conducting a poll of its drivers, with the intention of getting the matter settled
so that production would return to normal. Further, it is significant that the
Respondent forthwith put its position, first stated orally to the Union at the
January 10 meeting, into writing at the Union's request in its letter of Jan-
uary 10, a copy of which it sent to the Regional Director.
tamer Corporation, 99 NLRB 812; Celanese Corporation of America, 95 NLRB 664;
Howell Chevrolet Company, 95 NLRB 410; Sam Zall Milling Co., 94 NLRB 1749; M. H.
Davidson Company, 94 NLRB 142; Joy Silk Mills, Inc., 85 NLRB 1263; John Deere Plow
Company, 82 NLRB 69; H. D. Holmes Company, Ltd., 81 NLRB 753; Asrcraft Hosiery
Company, 78 NLRB 333; Chamberlain Corporation, 75 NLRB 1188; and Roanoke Public
Warehouse, 72 NLRB 1281. Court decisions involving some of the foregoing Board cases
have also been considered.
2° See footnote 28, below.
211 consider it unnecessary to resolve certain contradictory evidence as to this meeting.
However, I am satisfied that the Union did not urge a cardcheck, and that the Respond-
ent's position was that the Board should determine the question of Union' s majority by an
election.
22 See the Sunbeam decision quoted above. There is nothing in the record to warrant
any inference that the Respondent had any way of knowing that the CIO would not later
demand recognition.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
From my study of Board precedent , it appears that those cases wherein the
Board has held that surrounding unfair labor practices negative the possibility
that the majority question was raised in good faith, generally involved more
serious and numerous unfair labor practices than are found hereinafter to have
been committed by the Respondent . In fact , however much the Respondent may
have preferred an inside union and have been legally in error in its assistance
to the Committee, the unexplained receipt by it of the package of 40 signed
CIO authorization cards about January 15 could scarcely have contributed
anything to dispelling the Respondent's doubt as to whether its drivers wanted
the Union as their representative. It is noteworthy that shortly thereafter, on
January 19, the Respondent entered into a consent-election agreement, without
seeking counsel, and without any such delaying tactics as attempting to get
the Committee or the CIO on the ballot, or insisting on a formal hearing.
As earlier indicated, it is my conviction, considering all of its facts, that this
case presents a pattern more consistent with believing that the Respondent
blundered into unfair labor practices because of honest doubt as to whether
its drivers wanted the Union as their representative than with believing that
the majority question was raised in bad faith to gain time to destroy a majority
about which no real doubt actually existed. This is particularly true since
the previously detailed evidence developed at the hearing as to the overlapping
CIO and AFL authorization cards signed almost simultaneously by the drivers
creates very substantial doubt as to whether the record now contains adequate
proof of the Union's majority were it necessary actually to reach that question.
Accordingly, I find that the Respondent's timely questioning of the Union's
majority status was not done in bad faith despite surrounding unfair labor
practices. Hence it will be recommended below that the complaint's alleged
violation of Section 8 (a) (5) be dismissed"
D. Interference, restradnt, and coeroion
1. Pauling's meeting of January 6
The meeting of the drivers which the Respondent's truck dispatcher and
foreman, Charles Pauling, called on the afternoon of January 6 was held in the
Respondent's garage shortly after 5 o'clock. This meeting, a relatively short
one, was attended by 45 or 50 drivers and by Pauling and his assistant, Frank
Dasta, who appears to have taken no part in the meeting. While the meeting,
evidently called on very short notice, took place while Soisson and Joyce were
waiting to sign up the drivers, it also took place at the end of a week during
which there had been extensive union discussion among the drivers and a sub-
stantial loss of production in their trucking operations.
In essence, the General Counsel contends that at this meeting, the Respond-
ent violated Section 8 (a) (1) of the Act because Pauling, an admitted super-
visor, interrogated the drivers as a group concerning their union activities and
threatened the drivers that if they joined the Union, the overtime which they
were then receiving by working substantially in excess of 40 hours a week,
would be eliminated.
When called as a witness by the Respondent, Pauling specifically denied that
he had told the drivers that if they joined a union they would not get over 40
hours a week , or that he had said that he would have to send them home instead
of giving them work. The substance of Pauling's testimony about his knowledge
28 In view of the disposition of the refusal-to-bargain issue on the above ground, various
other contentions, all of which have been duly considered in evaluating this problem, need
not be passed upon or further discussed.
WEIRTON ICE AND COAL SUPPLY COMPANY 825
of union activities at the time he called the meeting, was that for about 2 weeks
"the production had been down" ; that he had learned before the meeting that
the CIO had signed some 40 drivers ; and that he had not learned about the ac-
tivities of the AFL until after the meeting. Pauling's explanation of why he
called the meeting and of what thereupon took place was as follows :
Then on Saturday the fellows were congregating and talking along the
highway and different parts of our work. So I thought I better call the fel-
lows in and find out what was really going on. So on Saturday afternoon
when the men got done working, I asked them to go upstairs, I wanted to
have a little meeting. So then when I got the group together, I asked the
fellows what was wrong ; what seemed to be the trouble, if something was
bothering them, because they were congregating along the highways and
different parts of our jobs. So then nobody would say anything about it,
nobody would ask any questions or give any answers. So I mentioned the
fact to them, I said if they had something on their mind they didn't want to
tell me, they could see Mr. Starvaggi and he would be glad to talk to the
men any time. And I said if it was a Union they wanted, it would still be all
right, he would still talk to them, they could talk to Mr. Starvaggi about it.
And I said if one fellow was afraid to go by himself, to take four or five or
six, they could get together and meet with him, that I was pretty sure he
would take time to meet with them.
And then I couldn't get any answer out of anybody yet, so then I had
a list of the Truck Drivers' names that had been employed with us for some
time, and I asked them-I read off some names, how much time they had
been making, and asked them why they were dissatisfied, was there any
reason, maybe it was on account of me, or otherwise. And nobody would
answer. So then I decided, I told the fellows that I would go out of the
room for five or ten minutes and they, by that time, might be ready to talk
and maybe somebody would get up and speak for them. So I left the room.
And shortly after, a fellow came to the door and he said, "All right, they
are ready." So I walked back into the back of the building there, and this
Donald Weekley said, "We want a Union." Then all of a sudden it seemed
like everybody took off. I didn't get any more answers from anybody.
In general, the above testimony of Pauling, which was given in a convincing
manner, was corroborated by that of 6 drivers called by the Respondent"
although some of their testimony was incomplete or vague as to details. On the
other hand, the 6 drivers who gave testimony as to this meeting as witnesses
for the General Counsel 2 flatly contradicted the Respondent's witnesses in
several respects. However, the General Counsel's witnesses were also conflicting
and inconsistent among themselves, and in some cases gave uncorroborated testi-
mony as to details which appear, upon reflection, quite likely to be only their
own rationalizations rather than actual memory. No purpose other than pro-
tracting this report would be served by detailing this conflicting and inconsistent
evidence, which I have carefully analyzed in the light of the record as a whole
and the credibility of witnesses. Hence I will present only certain general con-
clusions concerning Pauling's above-quoted explanation, based upon my analysis
of the testimony of all 12 drivers.
"Thomas Thornton, Kenneth Shook, General Copley, Oscar Main, Burl Taylor, and
William Redding.
75 Glenn Davis, Lawrence Howard, Edward Shore, Harold Winrod, Ernest Shields, and
Clarence Moore.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'While there is some testimony to the contrary on the part of drivers called by
the General Counsel, I am satisfied from admissions in their testimony and from
the consistent testimony of drivers called by the Respondent, that Pauling
opened the meeting by pointing out that the drivers had been stopping their
trucks and congregating and not getting their work done, and that he wanted to
know what it was all about and what was on their minds. The testimony as a
whole indicates that thereafter Pauling tried to get the drivers to tell him what
their grievances were,2' including whether or not it was anything he had done.
And there appears to be no doubt that the men refused to give Pauling any
explanation.
There is some conflict in the evidence as to what next happened. Testimony
of witnesses for the General Counsel, insofar as it is clear, is about evenly
divided as to whether Pauling read off names of several individual drivers and
their earnings before leaving the meeting or after he had returned to it. There
is, however, no dispute that such names were read at some point in the meeting,
and the testimony of the Respondent's witnesses is uniform that this was done
before Pauling and Dasta left the room. In fact, two drivers called by the
Respondent, Copley and Main, who testified about the reading of some drivers'
names at the meeting, also testified credibly that they left the meeting at the
time Pauling went out, and that they did not return thereafter.
I am satisfied from the weight of the credible evidence that Pauling read off
the earnings of the drivers before he left the meeting ; that he accompanied his
reading of overtime and average earnings with remarks to the effect that the
men were getting good time and that he did not see why they would want a
union ; 27 that Pauling, as he testified, told the men that if they wanted a union
they could see Starvaggi about it; that when Pauling could get no response
from the drivers, he left the meeting so that they could discuss it among them-
selves ; that upon being called back into the meeting, Pauling was told by
Weekley that the men wanted a union ; and that the drivers thereupon left and
the meeting ended.
In flat contradiction to testimony adduced by the Respondent, the testimony of
the General Counsel's witnesses, while couched in varying language, is uniformly
to the general effect that during the course of the January 6 meeting Pauling
stated that if the drivers organized, they would get only 40 hours of work a
week. While the matter is not without doubt, I am not convinced that the
weight of the credible evidence warrants finding that Pauling actually made such
a statement. It seems to me more likely, all things considered, that the drivers
who testified that Pauling so stated, were superimposing later developments,
and inferences drawn from their knowledge of union contract provisions, on
their memory of Pauling's discussion of the overtime then being worked. In
any event, I believe that Pauling did not threaten, in violation of Section 8 (a)
(1) of the Act, to eliminate overtime but rather tried, within limits protected
by Section 8 (c) of the Act, to persuade the drivers that their earnings were good
when overtime factors were included.
As to illegal interrogation on January 6, I do not believe that the evidence
warrants such a finding. The evidence does not show that Pauling questioned
any individual driver about any union or union activities, or about his intentions
or desires with respect to concerted activities. Such group questioning as took
x The term "grievance" appears several times in the testimony of Redding, a driver
called by the Respondent.
21 In accord with the weight of the evidence , I am convinced that Pauling made no
reference to the AFL although there is testimony to that effect.
WEIRTON ICE AND COAL SUPPLY COMPANY 827
place concerned what the drivers' grievances were and what they wanted. In
short, from the nature of Pauling's questioning and the circumstances surround-
ing it, which circumstances I believe were essentially those stated in Pauling's
credible testimony, I find that the activities of Pauling at the meeting of Jan-
uary 6 did not contravene Section 8 (a) (1) of the Act as interrogation, within
the meaning of a long line of Board decisions.
2. Starvaggi's meeting of January 8
There is no dispute that Starvaggi met for a little while on Monday evening,
January 8, in a room in the back of the garage with some 12 or 15 drivers who
had been with the Respondent 3 years or more. The General Counsel con-
tends that Starvaggi's remarks on that occasion involved interrogation and
threats, violative of Section 8 (a) (1) of the Act. I accept the testimony of
Starvaggi and Sorrenti that this meeting was arranged on short notice by Sor-
renti and Pauling at Starvaggi's request, after Sorrenti reported on Monday
afternoon to Starvaggi that he could not get the Weirtonian Hall for a meeting
of all of the drivers which it had originally been decided that Monday morning
to hold that same evening. And credited testimony of witnesses for the Re-
spondent leaves no doubt that Starvaggi had learned before determining to call
the original meeting, for which the Monday evening meeting appears to have
been a fill-in, that a substantial proportion of the drivers had signed up with the
Union.2B However, as to what actually transpired at this meeting, there are in-
consistencies and contradictions between the testimony of Starvaggi and the 6
driver witnesses who testified about this meeting for the Respondent" and the
1 driver who testified on behalf of the General Counsel, Glenn Davis.
This, in essence, was Davis' unprompted recollection on direct examination of
what transpired at the meeting. Starvaggi, the only management representative
present, stated that he could not "understand why we were wanting to go into
the AFL Union," Starvaggi also said that "if we went into the Union that
forty hours a week would be all we would get" ; that he "could do just as good
as the Union would do for us"; and that he did not want "anybody between him
and the employees."
Upon being asked by the General Counsel if anything had been said about
employees having a union of their own, Davis testified :
Well, he [Starvaggil said, he referred to the Weirton Steel Company
being an independent Union and he said he did a lot of business with the
Weirton Steel Company and it would be the best for us to have an inde-
pendent Union. I believe that is the way he said it.
28 Pauling testified credibly that on that Monday morning , January 8, 2 or 3 drivers told
him that "some of them had signed up with the AFL," and he told Starvaggi that Monday
morning that he "had heard some of the fellows had signed up with the CIO and some
with the AFL." Sorrenti testified credibly that on that Monday morning, apparently
about the beginning of work, Starvaggi told him about receiving an anonymous telephone
call Sunday to the effect that the drivers were signing union applications ; that Starvaggi
had complained about the way the drivers had been congregating and losing time; and
that Starvaggi told him to arrange a meeting of all of the drivers some place or of com-
pany property so he could find out exactly what they wanted . Starvaggi testified credibly
that he had received a telephone call Sunday afternoon , January 7 , from someone who
did not identify himself (Starvaggi at first attributed the call to Soisson ), telling him
that on Saturday evening the AFL had signed up 40 or 45 drivers ; that he had also heard
that the CIO had "our men practically all signed up"; that he talked with everybody to
find out what's going on, if it's true or not" ; and that he told Sorrenti about 8: 30 a. m.
Monday to arrange a meeting of drivers off of company property.
m Except that Earl Archer replaces Taylor , these witnesses are the same as those who
testified about the January 6 meeting.
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Later, while testifying about a change in his hourly rate of pay, Davis spon-
taneously gave the following additional testimony as to what Starvaggi said at
the meeting of January 8:'0
Back in the meeting that Mr. Starvaggi had that night. See, they were
paying a bonus at that time, we got a bonus every three months. And he
told us that night that he would give us a ten-cent increase and take the
bonus off. We didn't promise for sure that night, but later it came through
the Committee they have there, word came through that we got it through
them.
Davis' testimony on cross-examination was not Inconsistent with his direct
examination. He testified that Starvaggi started by saying that he heard the
men were going into the AFL and wanted to know why ; that Starvaggi said he
would give the men a 10-cent hourly increase, but that "the bonus would have to
be dropped" ; 0' and that while Starvaggi told the drivers it was up to them to
do what they wanted to, they should "bear in mind that if they took the AFL
Union, forty hours a week was all they could get," and that there would be "no
overtime." Davis further testified that he did not remember Starvaggi saying
anything about the men congregating on the roads, and that Starvaggi had read
from a list of names, the names of the drivers that Pauling had read, and their
average earnings, including overtime.
Starvaggi's version of this meeting was substantially that he did not talk
"very much" ; that he first said they could not go on very long "losing so much
production" as they had in the last 3 weeks; that he asked that they "get
together and find out what's the trouble, see if we have to go out and get
organized with somebody, or what we have to do," that he could not "get any
answers from the fellows" as to "what was going on' 9; that inasmuch as nu-
merous drivers who had been with them for many years had "never had any
part with a labor organization," he tried to explain how things operated once
a union contract was signed ; and that he pointed out that "we got to run
according to the contract which we signed with any union organization.""
Starvaggi specifically denied that he had promised the drivers a 10-cent pay
increase if they did not have a Union, and that he told them "it would be best"
for them to have an independent union.
While the testimony of the 6 driver witnesses called by the Respondent shows
considerable variation, 5 of these witnesses denied that Starvaggi promised a
wage increase and all 6 denied that Starvaggi said that he did not want a union.
80 It should be noted that Davis did not attend the meeting on January 9, discussed
below, at which Starvaggi also spoke.
ai It is clear from the record as a whole that this bonus varied considerably and had
been for a long time a source of irritation among the drivers.
a' In elaborating on this last point, Starvaggi gave the following testimony, which inci-
dentally appears after a question to which there was objection, as to whether Starvaggi had
said that if the Union got in the drivers "would be cut down to forty hours." While that
specific question was not thereafter readdressed to Starvaggi, I am satisfied that Starvaggi's
explanation now quoted is tantamount to a denial of Davis' testimony on that point :
Well, I try to give them an explanation that most any Union organization that they
have in the Contract, take like the United Mine Workers, thirty-six and a quarter
hours a week , or seven hundred and fifteen minutes a day, and if you try to work like
we used to do, work a man, a shovel operator , we used to work them ten hours a day,
in the place where two men do the two shifts , now we have to have three men. And
that's the reason that the Union , any Union organization , that tell to you in their
Contract , forty hours a week , forty-four hours a week , what you have. Naturally
they interested in getting membership , more men you have on the payroll is better for
any Union organization . And that's the reason I try to give them an explanation, if
we sign up with any Union organization we have to try to live with the Contract.
WEIRTON ICE AND COAL SUPPLY COMPANY 829
There were, however, no denials that the desirability of an independent union
had been discussed. While the full versions of these drivers, some of which were
rather sketchy, need not be detailed, there are a number of things in their
testimony which shed light on the probable tenor of the meeting. These will
now be summarized.
Thomas Thornton, who became chairman of the Committee which was selected
the following evening, testified that Starvaggi told the drivers on January 8
that if they wanted a union "it was all right with him." Thornton also testified
that without naming individual drivers, Starvaggi indicated that the men were
"getting real good time" ; that Starvaggi explained that a contract with the
Union would call for 40 hours work a week ; and that Starvaggi said that he had
tried to give the drivers all the time he could and had gone out and "scratched
around a lot of times to get work for us on Saturday" when he was "going in the
hole" to give the drivers such work.
Kenneth Shook testified that Starvaggi wanted to know why the drivers were
"ganging up along the roads" when they were "getting good time and he was
treating us all right" ; that Starvaggi explained that a contract with the Union
would call for 40 hours work a week and he did not know "why us fellows
wanted to join the Union" ; and that Starvaggi said "if we wanted a Union" we
could have one, and if we didn't, we could just decide it among ourselves."
General Copley testified that Starvaggi "wanted to know whether or not we
wanted a Union" and said that "we should come to him and let him know what
we wanted instead of going behind his back." Earl Archer testified that Star-
vaggi said that he "wanted the guys not to go behind his back" and to come out
and "tell him what they wanted, whether they wanted a Union or no Union."
Oscar Main summarized Starvaggi's remarks at the January 8 meeting as
follows :
Well, it is the same old story, he wanted to know why the boys went behind
his back to talk about the Union when he had told them different times that
they could have any Union they wanted at any time. And he explained to
them that the hours they were getting, with the overtime, made them, in
reality, more money than if they worked for the Union, and that the Union
scale, or hourly scale would have been approximately forty hours, where
we were getting anywhere from forty-five to fifty-five hours a week.
William Redding gave the substance of Starvaggi's remarks in the following
testimony :
Well, he wanted to know if the men wanted a Union or just what the griev-
ances were, what was causing so much shortage in their work, and if they
wanted to say so then and there and get it over with, if they wanted a
Union, say so.
There are some minor inconsistencies and conflicts in the evidence as to the
January 8 meeting which need not be discussed in answering the significant
questions concerning it, namely, whether or not Starvaggi engaged in illegal
interrogation ; promised a wage increase in lieu of the bonus ; threatened to
cut hours to 40 a week, thus eliminating overtime ; or told the employees it
would be best to have an independent union. Before turning to these questions,
it should be noted that in this January 8 meeting with a small group of his older
drivers, Starvaggi, in contrast to Pauling on January 6, already knew that the
AFL was in the picture. Also it is my opinion that Starvaggi put his cards on
88 Throughout this report, capitalization of Union in all quotations merely conforms to
the transcript.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the table more frankly with his older drivers than he did the following evening
in the general meeting. That this is so, is apparent from a careful consideration
of the testimony of the Respondent's own witnesses as to these 3 successive
meetings and is in accord with what might reasonably be expected to have
taken place 34
In my judgment, above-quoted testimony of Respondent' s own witnesses, par-
ticularly Starvaggi, Shook, Copley, and Redding, warrants finding that at this
meeting Starvaggi interrogated the drivers as to whether and why they "would
have to go out and get organized with somebody." While Starvaggi may not
have engaged in individual questioning of the drivers as to their union prefer-
ences, he undoubtedly tried to get this small group of older drivers to tell
him, even if not too successfully, whether or not they wanted a union. Star-
vaggi also chided them for going behind his back in their union activities and
tried to find out from them why they wanted a union and, as Redding testified,
"what the grievances were." In spite of the Respondent's loss of production
which was evidently mentioned at this meeting, the foregoing conduct of
Starvaggi, realistically appraised in its total setting, constituted probing and
interrogation about matters of self-organization and was, in my opinion, violative
of Section 8 (a) (1) of the Act, within the meaning of Board decisional policy
on such matters.
As to any promise of a wage increase , I am satisfied from Davis' spontaneous
testimony that there was some discussion by Starvaggi of his being willing to
consider substituting a pay increase for the bonus, which Starvaggi must have
known had been for a long time a source of dissatisfaction among the drivers.
However, in view of Starvaggi's specific denial that he then promised a pay
increase, and Davis' testimony that Starvaggi did not "promise for sure that
night," I do not believe that willingness to consider this matter, which Star-
vaggi evidently indicated, was violative of Section 8 (a) (1) of the Acts`
As to threatening to reduce hours to 40 a week, Davis' testimony that Starvaggi
stated that if the drivers went into the Union, 40 hours a week would be all
they would get, may well be more inference than memory. Credibly given
explanations in the testimony of Starvaggi, Thornton, and Shook were to the
effect that Starvaggi discussed the point that a contract with the Union would
call for 40 hours a week, a subject which it was permissible for Starvaggi to
discuss. It is also evident from the testimony of several drivers that Star-
vaggi emphasized that they were getting good time. For instance , according
to Main, Starvaggi said that they were making "more money than if they
worked for the Union," as they were getting 45 or 55 hours a week. In addition,
the testimony of Thornton that Starvaggi explained that he "scratched around
a lot of times to get work" for the drivers on Saturdays, "going in the hole"
to do so, might well raise doubt as to whether he would continue to do so if
the drivers were organized. However, considering all of the testimony and the
circumstances and despite some doubts, I am not persuaded that Starvaggi's
remarks to the older drivers on January 8, fairly appraised, actually involved
any threat to reduce hours to 40 a week thus eliminating overtime if the
drivers joined the Union, or that Starvaggi' s remarks exceeded the protection
afforded employer discussion by Section 8 (c) of the Act.
84 In other words , I am satisfied that the three consecutive meetings were actually less
similar than some of the apparently confused or distorted testimony would tend to Indicate.
35 In appraising this phase of the matter , it should be borne In mind that Starvaggi had
not yet read the Union's letter claiming to represent a majority of the drivers, and that the
undoubted loss of production, stemming from discontent among the drivers, presented a
management problem for Starvaggi's solution Under such circumstances, expressed will-
ingness to consider a grievance cannot be equated with an illegal promise of benefit.
WEIRTON ICE AND COAL SUPPLY COMPANY 831
We now come to the last question, whether Starvaggi told the drivers that
it would be best to have an independent union. Davis' testimony concerning this
matter has been set out above in full. While I believe that some of Davis'
testimony was not free from conclusions and confusion, I do believe that Davis
was not the type of witness who would have invented an episode. Moreover,
Davis' forthright testimony on this point impressed me as memory rather than
rationalization or inference, and the plausibility of Starvaggi having made such
observations to a group of his older and presumably more trusted drivers is
buttressed in several ways.
Thus while Starvaggi denied saying "it would be best" to have an independent
union, neither Starvaggi nor any other witness for the Respondent denied that
the subject of an independent union was discussed on January 8. In fact, the
testimony of Starvaggi, set out in the margin, denying that he had discussed this
subject on the following night, indicates that the subject had been discussed on
earlier occasions 36 Further, Starvaggi testified that the drivers had previous
been included for some years in a "Company Union" which had also included
other employees of the Starvaggi Companies.87 And it is significant that several
of the Respondent's witnesses, whose memory of details was limited, remembered
that Starvaggi chided them for going behind his back. Thus it appears likely,
in view of the "Company Union" background, that Starvaggi would have dis-
cussed with his older drivers, along with such subjects as "the good time" they
were getting without the Union, and their major grievance, the bonus, the de-
sirability of having some way to get "together and find out what's the trouble"
without the drivers "having to go out and get organized with somebody.""
An additional factor persuasive as to the substantial accuracy of Davis' testi-
mony, that Starvaggi gave his blessing to an independent union at the meeting
of the older drivers on January 8, is the way in which the Committee other-
wise would seem to have "sprung full born" out of nowhere on the night of
January 9. In short, it is my conviction that a strong impetus to the formation
of the Committee, considered in the next section of this report, was furnished
by remarks, in line with Davis' testimony, made by Starvaggi on January 8."
3. The Weirtonian Club meeting of January 9
The general meeting of drivers which Starvaggi had instructed Sorrenti on
Monday morning to arrange, and which had first been noticed for Monday eve-
ning was held Tuesday evening, January 9, at the Weirtonian Club. A notice
signed "The Management," which was posted near the box where the drivers
deposited their time slips, advised of this meeting for all truck drivers. Drivers
who made inquiry as to whether their attendance was required were informed
that the "boss" wanted everybody there, and arrangements were made to fur-
nish meals at the Respondent's expense to several drivers who lived so far from
Weirton that it would have been difficult to eat at home and return in time for
88 Concerning the January 9 meeting , Starvaggi testified :
No, not that night because we have been talking for last three or four years on it,
if they like to have Union of their own, they can have it. But we never talk on that
particular night on January 9.
87 According to Starvaggi , this organization , which he referred to as a "Company Union,"
included "all employees" of the Respondent and "also some of the associate Companies" ;
it was formed "early in 1947" ; and after 234 or 3 years "they give up."
88 These two quotations are from Starvaggi 's own testimony.
88 No finding is made that such remarks constituted a violation of Section 8 (a), (1), nor
do I understand the General Counsel so contends. The factual findings are made at this
point merely as a matter of chronological convenience and coherence.
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the meeting .10 About 50 drivers, along with a number of representatives of
management later discussed , attended this meeting . It started at approximately
8 o'clock with opening remarks by President Starvaggi.
The testimony as to what Starvaggi said is sharply contradictory and will be
partially summarized . We start with the substance of the testimony of the
three drivers called by the General Counsel. Lawrence Howard testified that
Starvaggi said that he did not "see why we wanted a Union, that we was all
getting good time and wages, he was paying the best wages between Charleston
and the upper end of the Panhandle" ; that Starvaggi told the drivers that "if
the Union got in we would only get forty hours a week, in place of fifty or sixty
hours a week" ; and that Starvaggi said that "before he would recognize the Union
he would sell his hot slag trucks to the drivers and he would pay them twenty-five
cents a ton, and he'd take ten percent of what the truck made until it was paid
for." Howard also testified that Starvaggi said that he "would do away with
the bonus" and give the drivers a "ten cents raise."
Ernest Shields testified that Starvaggi "wanted to know what they was
wanting" and said that he did not "know if we was wanting the AFL" ; that
Starvaggi told the drivers "if they got the AFL he'd close the doors, as far as
that is concerned, and if we wanted to buy the hot slag trucks he would sell them
to the drivers" ; and that Starvaggi stated that "there was only going to be forty
hours a week if we got the Union." Clarence Moore recalled Starvaggi speaking
on one subject which Moore reiterated in several ways. The following are typical
of remarks Moore attributed to Starvaggi :
He went ahead and stated something, more or less, if we go into the Union,
why, get one among yourselves ; why give it to an outside head, stuff like that,
similar to that-that you could have your own private Union of your own
if you wanted it.
Well, as I have stated, he said, "You know that it would be much better for us
if we had an independent Union."
Starvaggi testified in substance that he told the drivers that the meeting had
been called because of the trouble in "the last three weeks" with the men
"stopping and talking" ; that he wanted "to find out once and for all if it is true
what I been hearing, they sign up with the CIO, now we found out you sign up
with AFL, and I hear you been sign up with WIU" ; 41 that he wanted the drivers
to tell him the truth in a secret vote on ballots which Sorrenti had prepared ; and
that what they voted for was what they were "going to get." Starvaggi spe-
cifically denied threatening to sell his hot slag trucks, or to cut hours to 40 a
week, or that he promised a pay increase. Starvaggi was uncertain as to whether
or not he had also made any explanation at the January 9 meeting which involved
40 hours a week with respect to having to live up to any labor agreement which
might be signed, as he had done the night before.
There were 11 witnesses for the Respondent, in addition to Starvaggi, who
testified about various phases of the January 9 meeting. These witnesses included
8 truck drivers." Also included were Bundy and Sorrenti, already identified, and
w Foreman Pauling testified credibly that these meals were furnished pursuant to the
Respondent's customary practice with respect to official evening meetings.
41 This quotation is from Starvaggi's direct examination . On cross-examination he testi-
fied that he "never mentioned any labor organization." It is possible that at that point
Starvaggi was referring to the wording of the ballot, although there are a number of points
in his testimony where it is difficult to tell whether he was confused or his language was
confusing.
"All of the seven drivers previously identified as giving testimony about the earlier
meetings, and Joseph Sciarrino.
WEIRTON ICE AND COAL SUPPLY COMPANY 833
Frank Standardi, the dispatcher of the Pittsburgh and Weirton Bus Company,
Who is employed by that company and has power to hire and fire its bus drivers
but not the Respondent's truckdrivers. However, Standardi purchases all of
the tires for the Respondent's trucks. In general, and to the extent that their
testimony covers Starvaggi's remarks, the testimony of these 11 additional wit-
nesses supports that of Starvaggi and contradicts that of the General Counsel's 3
witnesses.
More specifically, Bundy testified that Starvaggi said that the drivers could
have a union if they wanted one ; that it was "immaterial to him" ; that he
"wanted this congregating on the roads to stop because they weren't getting the
job done" ; and that he "wanted to find out if they did or didn't" want a union.
Standardi testified that Starvaggi told the drivers that he "was wondering what
was wrong with them, that he could see that there was a friction somewhere
through lack of production" ; that "if anything was wrong that he could correct,
that he would gladly correct it"; and that he had heard that some men were
talking about the CIO and some about the AFL, so he wanted to "find out what
the men really wanted." Sorrenti testified that Starvaggi, who "repeated himself
two or three times" told the drivers that he was confused and wanted to find out
exactly how the men stood ; that he wanted to "cut out this congregating on the
road" ; that it was time to find out whether or not the drivers "wanted an outside
union" ; that if they did he would sign a contract when he found out what union
they wanted ; and that regardless of the outcome of the vote that night , he wanted
"no double crossing tomorrow morning" and "wanted everybody to forget about
ft." Bundy and Sorrenti each denied that Starvaggi said anything about selling
the hot slag trucks or made any promise of a pay increase . Sorrenti also denied
that Starvaggi said anything about the drivers not getting over 40 hours a week
if they had an outside union or made any mention of an inside union.
The testimony of the 8 drivers as to Starvaggi 's remarks on January 9 was
in many respects rather sketchy . While it need not be detailed in full, much
of it should be noted. Thornton testified that Starvaggi talked about the
ballot and tried to explain the Union to the men ; said that it was all right if
they wanted a union ; and explained that he could not understand why the
drivers, who were getting such good time, as much as 48 to 55 hours a week,
wanted a union contract which called for only 40 hours . Thornton denied that
Starvaggi threatened to sell the hot slag trucks, or to give the men only 40
hours a week if the Union came in, or that he promised a pay increase, or that
Starvaggi said anything about a committee . Shook testified that Starvaggi
said the men were getting such good time that he did not see why they wanted
to join the Union ; that they could have a union if they wanted it and should
"just vote the way your heart is"; and that Starvaggi "never threatened" with
respect to a 40-hour week but explained that the Union 's contract called for
40 hours. Copley testified that Starvaggi said that he had called a meeting
to find out what the drivers wanted and told them to vote as they "thought
in their heart they wanted to do." Copley denied that Starvaggi threatened
to sell the hot slag trucks; to "shut down the place"; to give the drivers less
time than previously; or to raise their pay.
Sciarrino testified that Starvaggi said that it was up to the drivers whether
or not they wanted the Union, and denied that Starvaggi threatened to sell
the hot slag trucks or to close down or that he promised a pay increase. Main
testified that Starvaggi said that the men could have any union they wanted,
and Taylor testified that Starvaggi said to vote "the way it suited us" and that
"whichever way it went he was going to be for it." Both Taylor and Main
denied that Starvaggi promised an increase in pay or threatened to close down
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or to sell the hot slag trucks, as did also driver Redding. In addition, Redding
testified that Starvaggi did not suggest an independent union," and that Star-
vaggi said that "he would cooperate" with whatever the drivers decided in
the vote they wanted to do. Archer testified that Starvaggi said that he wanted
to get it "straightened up" as to whether the drivers wanted a union and "get
the trucks going, instead of stopping along the road talking all the time," and
that he would abide by whatever the men wanted. Archer denied that Starvaggi
suggested an independent union or made remarks about selling the hot slag
trucks, closing down, or giving a pay increase.
A careful appraisal of all the testimony as to Starvaggi's remarks on January
9, in the light of the record as a whole and the credibility of the witnesses,
convinces me that a composite of the testimony of the Respondent's 12 witnesses
more accurately reflects the nature and intent of Starvaggi' s remarks upon that
occasion than does the testimony of the 3 drivers called by the General Counsel.
While it would appear futile to attempt to reconstruct Starvaggi's remarks
with any dergree of precision, I am convinced that Starvaggi did not threaten
to close down or to sell the hot slag trucks. Not only were the numerous above-
recited denials on these matters by the Respondent's witnesses convincing, but
the testimony of the 2 witnesses for the General Counsel, who attributed such
remarks to Starvaggi, is inherently inconsistent. Under Shield's version, Star-
vaggi threatened to "close the doors" and to sell the hot slag trucks to the drivers.
In sharp contrast, under Howard's version, there was no mention of closing
down, but rather of some details of a plan attributed to Starvaggi whereby the
drivers would pay for the trucks out of profits resulting from their continued
operation.
As to any threat to limit hours to 40 a week if the Union got in, also attributed
to Starvaggi by Howard and Shields but repeatedly denied by witnesses for the
Respondent, I believe that no such threat was made. However, it does appear
that Starvaggi made an explanation on January 9, similar to that made the
night before to the older drivers, about the Union's contract calling for 40 hours
a week, and also remarked about how the drivers were getting such good time
that he could not see why they wanted to work under a contract with the Union.
There is no evidence that Starvaggi, who that morning had read the letter from
the Union asking him "to sign the agreement currently in effect between our
union and the several companies located in our jurisdiction and engaged in
business similar to yours," in any way misrepresented the nature of the Union's
standard contract " Starvaggi's remarks now under consideration apparently
raised a question in the minds of some of the drivers as to how much overtime
they might receive under a contract with the Union. I do not believe, however,
that the weight of the evidence warrants any finding that those remarks fall
outside the protection of Section 8 (c) of the Act, under all of the circumstances
of this case.
It has been found above that there was some discussion of substituting a pay
increase for the bonus and of the desirability of an independent union, during
u The transcript at page 594 shows that to the next question , "Did he suggest the men
form a Committee ?" that Redding answered , "No, he did that downstairs." There is no
doubt that the drivers did form the Committee downstairs, after the meeting upstairs at
which Starvaggi spoke. When the above answer was read to Redding on cross-examina-
tion, he disclaimed it, and counsel for the Respondent suggested that Redding had actually
answered, "We did that downstairs ." While the matter is not without doubt, I am not
convinced that the disputed answer is accurately reflected at page 594 , line 9, of the
transcript.
" It should be noted that the Union 's letter, dated January 8, rather than asking for a
meeting "to bargain" made the request quoted above.
WEIRTON ICE AND COAL SUPPLY COMPANY 835
the meeting of January 8 which Starvaggi held with a group of the older drivers.
$owever, as to any promise by Starvaggi on January 9 to substitute a pay in-
crease for the bonus, the denials of Starvaggi and nine other witnesses for the
Respondent are credited rather than the testimony of Howard, which stands
alone on that point. Similarly, the above-recited denials of witnesses for the Re-
spondent that Starvaggi suggested that an independent union be formed are
accepted rather than Moore's uncorroborated testimony on that subject. On the
other hand, there can be no doubt from all of the testimony that Starvaggi told
the drivers on January 9 that be could not see why they would want an outside
union, and presented arguments to support that view. It is noteworthy that no
such arguments were advanced by Starvaggi against an independent or inside
union, and that the drivers, as discussed above, had formerly been included in
such an organization.
We turn now to a consideration of remarks made by Standardi and Sorrenti.
While it is clear that they spoke after Starvaggi, the evidence is in conflict as
to their remarks. The testimony of the three drivers called by the General
Counsel will be considered first.
Moore testified that Standardi talked "exactly like he was against the Union"
because of time lost by "strikes and so forth, all over the country" and that
Standardi said that:
. . . as Purchasing Agent of tires, that he had got the employees tires at
wholesale, at cost and so forth, and if we brought in a Union we would have
to look to the Union for tires and such things as that. And he also brought
up the subject of notarizing papers or making out income tax, and getting
your driver's license, something to that effect, for no more than just exactly
at cost without any trouble, you know-otherwise we would have to look to
the Union for that effect. In other words, if we voted in the Union they
were through, they wouldn't get them no more for us.
When asked about Sorrenti's remarks, Moore answered :
Yes, he made a little speech along about the same line as Mr. Standards,
about similar to the favors and so forth. And he thought, to the best of the
boys' interest, that they should have an independent Union and not be
affiliated with any outside Union and so forth.
Howard and Shields corroborated Moore's testimony only to the extent that
both testified that Standardi talked about his favors in getting tires and parts
for the drivers' personal cars and said that "if the Union got in," they would
have to go to the Union for tires and parts. Howard did not remember what
Sorrenti said and Shields could not recall whether or not Sorrenti said anything.
The only testimony by the Respondent's witnesses as to what was said is that
of Standardi and Sorrenti45 Standardi testified that he had been buying all of
the tires ; that for the 10 or 12 years during which he had been purchasing equip-
ment for the Starvaggi Companies, "everytime any employees of the Starvaggi
enterprise needed any material or tires I would buy them at a discount" ; that
he had been doing this for all employees of the Starvaggi Companies, including
employees who were members of the United Mine Workers as well as for non-
union employees such as the Respondent's truck drivers ; that the employees had
always thanked him "for saving them a little money" ; and that he had reminded
the drivers that "the fellow to thank for everything I was doing for them was
Mr. Starvaggi" ; and that Starvaggi had instructed him that, "if there is a pos-
4 Drivers Taylor and Archer testified that Standardi said a few words which they could
not remember, and Archer testified that he did not think that Sorrenti said anything.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sible chance of saving them any money in any way," he was to do it. Standards
flatly denied that he had said that if the drivers joined the Union "they would
no longer get the benefit of those favors" he had been doing for them. Standardi
explained that he volunteered his remarks because he wanted the men to see
what kind of "boss they were working for." Standardi also testified that he did
not remember what Sorrenti said but that Sorrenti did not say "very much."
Sorrenti testified forthrightly as follows, on direct examination , concerning
his remarks :
I talked to the fellows and told them that I had been with this Company
for ten years and we had all worked together for so long-and I was frank
about it-I told them I couldn't see why all this disorder in this family, and
they shouldn't follow anything like sheep-the way I put it, something like
that, they should think something over before they do it. And I reminded
them that I fill out their Income Tax papers, chauffeur's license applications,
just like I do for any other Company, and they come to me with their
troubles. And I said, "Before you fellows do anything you should give it
some serious thought, regardless of how you feel about it. And after you
have given it serious thought, if you feel you are still right, then go ahead
and do it."
Sorrenti flatly denied that he had "threatened to discontinue to perform his free
service" if the Union got in.
On cross-examination, Sorrenti gave, in a convincing manner , the following
summary of Standardi's remarks :
Yes, he [Standardi] spoke-he reminded the fellows that he got some tires
for their cars at cost, and went on in detail about how he gets them for them.
And he told them that when he does get them tires, when he gives them tires,
they thank him for them and so forth, and he told them that he was being
given instructions by Mr. Starvaggi to do that, and if they want to thank
anybody, they should thank Mr. Starvaggi and not him. That was what
he said.
In giving more details on cross-examination as to his own remarks, Sorrenti
explained that he had helped employees, without distinction and on his "own
time and free of charge," with their income tax returns, their chauffeur's license
applications, and their "marital problems," because he took an "interest in
people." Sorrenti also stated, with evident conviction, that he had told the
drivers on January 9, "We are one big happy family, let's try to forget anything
about any discord and let's get this thing settled one way or the other tonight."
When asked to explain why he had told the drivers that, Sorrenti frankly
answered:
I wanted to remind them that they are following three or four instigators
who mean nothing to the Company, who come and go, and the follows that
had been with us for years had been led to believe that the grass was greener
on the other side of the fence.4°
The issues raised by the remarks of Standardi and Sorrenti, in view of some
of the contentions of the Respondent, present a number of questions. However,
46 It should be noted that Sorrenti's testimony scarcely warrants finding that be actually
gave the above-quoted explanation to the drivers at the meeting, although it is obvious
from Sorrenti's further cross-examination that he did feel that they had "got along so
well without instigators causing confusion ," and that the "instigators confusing the minds
of the employees" were union organizers.
WEIRTON ICE AND COAL SUPPLY COMPANY 837
assuming, contrary to the Respondent's contentions, that the Respondent was
liable for the remarks of both Standards and Sorrenti because of Starvaggi's
presence at the meeting which had admittedly been called by the Respondent,
and assuming further that , under those circumstances , any threat to withdraw
Standardi's purchasing for the drivers of tires and parts at cost, regardless of
what might be said as to Sorrenti's various types of free assistance to employees,
would constitute a threat of economic reprisal in violation of Section 8 (a) (1)
of the Act, I am not convinced that the General Counsel has met the burden of
proving by the weight of the credible evidence that Standardi or Sorrenti actually
said anything which, fairly construed, constituted a threat to withdraw their
services. Their denials that either of them made such threats were unequivocal.
And while the three witnesses for the General Counsel testified that such threats
were made , I am satisfied that the testimony of each of those witnesses in some
other respects was unreliable. I believe that each of these witnesses tended to
mistake his own inferences and conclusions for memory as to facts , and it seems
evident that Moore 's testimony on this subject ascribed some of Sorrenti's re-
marks to Standards. Further, the versions of Standardi and Sorrenti, which
were forthrightly given, appear consistent with what I believe actually did take
place at the January 9 meeting. At the meeting the night before, Starvaggi had
in effect placed his approval on an inside union. At the opening of the January
9 meeting, Starvaggi had, among other things, questioned the wisdom of turning
to the AFL in view of its contract provisions and the good time the drivers were
getting. In my opinion, Standardi's and Sorrenti's remarks, viewed in their
total setting and in the light of the credibility of witnesses , were in the nature
of arguments advanced to show how favorable the drivers' conditions then were,
and while undoubtedly couched in "happy family" phraseology which must
have given impetus to the formation of the Committee, I find that their remarks
did not constitute threats violative of Section 8 (a) (1) but rather arguments
protected by Section 8 (c) of the Act''
It is evident that before the drivers cast their ballots on the evening of Jan-
uary 9, at least two of the older drivers, who had met the night before with
Starvaggi , addressed remarks to their fellow drivers. Sorrenti testified that
the drivers who spoke said that "they wanted to see that thing get settled, too,
because they were confused ." Assuming that such remarks were made by some
drivers on January 9 , I am convinced that Redding and Thornton made some
additional remarks. From Redding's testimony , I am satisfied that he admon-
ished the drivers for not having spoken out and presented their grievances to
their employer on former occasions . Thornton, who had previously signed up
with both the CIO and the AFL, told the drivers, to use his own words, that he
had "joined the Union the same as they did" ; explained that he had "been think-
ing it over" and had changed his mind ; and asked them "to vote against it"
41 It will expedite matters to dispose now , rather than in chronological sequence, of a
similar issue concerning a later remark attributed to Standardi . Driver Davis testi-
fied that on January 311, the day of the consent election , he asked Standardi "how he
thought the election was going to go"; that Standards answered that "he didn 't know,
but he knew how it better go"; and that Standardi added that "if the men wanted any
favors from the Company they better stick with the Company ." While Standardi did
not testify specifically about this incident , he denied that he had at any time said that if
the men voted for a union , favors "would be taken away from them." Assuming without
finding , because of the relative balance as to credibility , that Standards upon being ques-
tioned by Davis made some such remark as Davis testified , it is my opinion that such re-
mark , isolated in point of time , and made out of the presence of any official of the
Respondent , cannot be charged to the Respondent simply because Standards holds an ad-
mittedly supervisory position in another one of the interrelated Starvaggi Companies.
257965-54-vol. 103-54
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so that they "could form our own Committee and deal with the Company our-
selves, rather than have an outside Union." 48
4. The ballot conducted on January 9
Following the above-discussed talks, the vote which Starvaggi had stated
would be held to settle matters was conducted by means of previously prepared
ballots which had been typed up by Sorrenti, pursuant to Starvaggi's instruc-
tions. These ballots were white slips of paper, approximately 11/2 by 5 inches,
which contained only the following typed lines :
No Union
Outside Union
These 2 alternative choices had finally been decided upon by Starvaggi and
Sorrenti, after discussing a ballot with a 3-choice alternative, namely, AFL, CIO,
and No Union, which Sorrenti had first drawn up.48 The ballots had been
brought to the hall by Sorrenti, along with a pad later used in tabulating the
ballots and an improvised ballot box, a cardboard box with a slot in the lid.
Sorrenti passed out bunches of ballots to several drivers who volunteered to
pass them out to the remaining assembled drivers. Before the actual balloting
took place, Sorrenti and Bundy both made explanations as to how the ballot was
to be conducted. While there are some bits of testimony which raised doubts as
to just what they said, the weight of the evidence indicates that neither Sor-
renti nor Bundy then said anything which amounted to electioneering for either
choice but rather explained that the ballots were to be secret and unsigned, and
that the marked ballots, using an "X" to indicate the choice, were to be placed in
the ballot box on a table located at one end of the hall. On the whole, these
instructions appear to have been followed. While 1 ballot was signed and a few
ballots may have been marked in positions where others could have observed the
choices indicated, the vote evidently was predominantly a secret one as to in-
dividual choices, although the Respondent kept a list of the 48 drivers who cast
ballots. It should be noted that those in the room during the voting included
Starvaggi, Sorrenti, Standardi, Bundy, and Pauling, although none appears to
have been close to the table upon which the ballot box was located and at which
most of the ballots apparently were marked.
When the voting was concluded, 2 of the drivers, Copley and Main, were se-
lected to count the ballots b0 In addition, Standardi was selected to keep a
tally of the ballots. He prepared the tally sheet, which all 3 signed as "Elec-
tion Commissioners," upon completion of the tally" While the tally sheet, which
is in evidence, and the testimony pertaining thereto indicate that there may well
have been confusion as to whether the choice being voted upon was really between
an inside union and an outside union, a confusion undoubtedly augmented by
Thornton's remarks shortly before the ballots were passed out, the actual
marked ballots (which were placed in evidence) show a vote of 14 for "Outside
48 It is my opinion that it was Thornton 's above statement which Moore had in mind
when he testified that one of the speakers that night said that if they "had an independent
Union they could form a Committee right there that night."
49 Sorrenti testified that Starvaggi thought that the three choices would be "too much
of a confusion" and that it would give the men "a fairer break" if the AFL and CIO were
voted for in "one place," to be indicated as "Outside Union."
8o Sorrenti testified that he could not remember exactly how their selection occurred,
whether he "picked them or they were hollered out by the group."
m As to how he was selected, Standardi testified that somebody hollered, "Get Fudgie
here, he is neutral." When Starvaggi was questioned about Standardi 's role, Starvaggi
answered , "He supervise when they was counting."
WEIRTON ICE AND COAL SUPPLY COMPANY 839
Union" and 34 for "No Union," the same vote which Standards testified his tally
sheet recorded.`x In any event, the testimony of 1 of the 2 drivers who counted
the ballots, Copley , a witness called by the Respondent , indicates that Copley
interpreted the vote as actually being a choice between an inside union and an
outside one.
During the tally, most of the drivers went downstairs where beer and sand-
wiches were being served. According to Copley's credited testimony, he first
announced the vote and Sorrenti announced it afterward. From all of the
testimony and the surrounding circumstances, I believe and find that Copley
announced the vote, upon completion of the tally, to the relatively few in-
dividuals, including some drivers and Sorrenti, who had remained upstairs, and
that Sorrenti, who obviously had been responsible, pursuant to Starvaggi's in-
structions, for all preparations for the ballot and who thereafter retained the
marked ballots and the tally sheet for safekeeping, announced the results to
those who had preceded him to the basement as he himself came down the
stairs. Further, I am convinced that the vote was generally interpreted, if not
actually announced, as rejection by the drivers of an outside union and approval
by them of an inside union 63
That the vote on January 9 was determined upon by the Respondent and was
executed under its supervision, using ballots devised and furnished by it, is pat-
ent from the foregoing facts.' And it is obvious that this poll was intended
to, and actually did, probe the desires of the drivers as to representation by an
outside organization. I do not believe the decisions cited by the Respondent in its
brief,b6 or any of the unusual circumstances in this case excuse this clear in-
vasion by the Respondent of rights of its employees, which the Board has re-
peatedly held to be protected from employer interrogation and probing.
Certainly the Respondent was not confronted with conflicting demands by
two or more unions which it had no legal way to resolve . While there had
63 There is no doubt that the signed tally sheet shows a total of 14 votes under a column
clearly headed "Out," and that the figure 34 appears under a disputed heading which the
General Counsel contends is "In," and which , on its face , has that appearance . However,
Standardi made a fairly plausible explanation to the effect that what looks like the word
"In" is actually the letter "n," standing for no union , with an inadvertently misplaced
tally mark in front of it.
63 Among numerous factors leading to the conclusions in the last two sentences above,
the following are particularly worthy of note. Copley testified that in addition to his
own announcement , which appears to have been couched in outside versus inside union
terms, Sorrenti also announced the results . It is evident that an announcement would
have to be made downstairs after the one upstairs , as most of the drivers had gone down-
stairs by that time. Sorrenti, who had clearly been acting for Starvaggi in conducting
the ballot, was the logical person to announce the results . Sorrenti's uncertain testimony
on this point was one of the relatively few places where his testimony impressed me as
evasive. On the other hand , the unequivocal testimony of driver Moore , who on various
other points did not impress me as reliable , to the effect that Sorrenti announced the
results of the poll while coming down the stairs as a victory for the Company and asked if
the drivers "wanted to form a Committee right now," had the ring of truth to it and is
consistent with all of the circumstances, including Sorrenti 's testimony as to his own
feelings , and his and Starvaggi's statements to the drivers earlier that evening about get-
ting things settled that night. It is particularly significant , as appears more fully in the
next section concerning the Committee, that Sorrenti, on his own testimony , no sooner
entered the basement than he was engaged in writing down the names of the men being
selected by the drivers as their representatives on the Committee.
64 It can scarcely be disputed that Sorrenti , at least, was acting in this matter as the
Respondent's agent under Starvaggi 's instructions , whatever might otherwise be held as
to his normal duties as an employee on the payroll of the Pittsburgh and Weirton Bus
Company.
66 J. Wise If Sons Company, 12 NLRB 601 ; Diamond T Motor Co. v. N. L. R. B., 110 F.
2d 978 (C. A. 7) ; and N. L R. B v. Kingston, 172 F. 2d 771 (C. A. 6).
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been organizational activities by more than one union, only one had demanded
recognition, and the Board's processes were readily available to resolve such
doubts as the Respondent had as to that union 's majority . There was no
pending strike , the threat of which would have been dissipated by speedy
determination. There were no pressing economic decisions, such as pending
contracts to be let, which might hinge upon whether or not costs would be
increased by demands which a union might make.
Finally, while it is true that production had been adversely affected by or-
ganizational activity on the part of the drivers, there was nothing in the Act
to prevent the Respondent from insisting that its drivers confine their organi-
zational activities to nonworking time. In any event, however honest the Re-
spondent 's desire to get the matter settled and production fully restored, the
Respondent clearly invaded protected rights of its employees by insisting that the
matter be settled then and there, once and for all, on the basis of choices drawn
up by it. Everything considered, I find that the poll, which Respondent con-
ducted on January 9, was violative of Section 8 (a) (1) of the Act, and that
no theory of "waiver" bars making the foregoing finding."
E. The formation and activities of the Committee; conclusions as to the
Committee
The findings which follow are made upon my analysis of the testimony of 12
witnesses. On some matters, the facts are clouded by confusing and incon-
sistent testimony ; on others by contradictory testimony. On the whole, and
contrary to what is largely true as to earlier events, I find the testimony of the
7 witnesses for the General Counsel 67 more persuasive with respect to the Com-
mittee than that of the 5 witnesses for the Respondent," particularly as to
whether the Respondent recognized and dealt with the Committee.
It will be recalled that Starvaggi had expressed preference to the older drivers
on January 8 for an independent union, and that Thornton, before the poll on
January 9, had urged the drivers to vote against the Union so they could form
their own committee to deal with the company. The sequence of events on
January 9 has been developed hereinabove to the point where Sorrenti came down
the basement stairs with his announcement of the results of the poll. It was
this announcement which triggered the actual formation of the Committee.
There is no dispute that immediately upon entering the basement, Sorrenti
became engaged in recording the names of the 7 drivers who were forthwith
selected to represent the various trucking departments. From all of the testi-
mony, it is clear that the selection was oral and informal, and that Sorrenti
se In my opinion , the fact that a consent -election agreement was entered into subsequent
to the Union 's and the Regional Director's receipt of the Respondent 's above-quoted letter
of January 10, relating that this poll had been conducted, does not bar the above finding
on any theory of waiver. The facts , as stated in that letter , were misleading as to the
total circumstances . Moreover , the other unfair labor practices , particularly the subse-
quent formation and continued assistance to the Committee , including changes in condi-
tions of employment granted through it, as discussed hereinafter, were neither included
in the letter nor known to the Regional Director, so far as the record shows , even if some
of them may have been known to the Union . Cf. The May Department Stores Company,
61 NLRB 258, 275; Hope Webbing Company , 14 NLRB 55 , 75; Wickwire Brothers, 16
NLRB 316, 325; Houde Engineering Corporation, 42 NLRB 713 , 724; and Radio Corpora-
tion of America, 74 NLRB 1729, 1732.
sT Drivers Howard, Shields , Moore, Shore , Winrod , Davis, and Thornton the Committee's
chairman , who testified about the Committee as a witness of the General Counsel.
51 Sorrenti , Starvaggi , Bundy, Battaglia, and Standards.
WEIRTON ICE AND COAL SUPPLY COMPANY 841
presided to the extent that any organized procedure was involved" And the
record leaves no room for doubt that the 7 representatives were selected in the
presence of Starvaggi , Pauling, and Bundy , undisputedly representatives of the
Respondent, in a relatively small room , approximately 20 by 20 feet . The Re-
spondent paid for the use of the hall and for the refreshments , consisting of beer
and sandwiches , which were served to the drivers , some of whom remained after
the selection of the Committee until approximately midnight.
The Committee , which has no constitution or bylaws , has 2 elected officers,
Chairman Thornton and Financial Secretary Paul Orban. Meetings of the Com-
mittee were at first held as often as twice a week, but later have been held
every 2 weeks. The members of the Committee are paid by the Respondent for
time spent in attendance at committee meetings. The meetings of the Committee
itself are held, without cost to it, on the Respondent's property, usually in "a
little room up in back of the garage." Upon invitation, Sorrenti has attended
several meetings of the Committee. As appears more fully below, Sorrenti has
processed requests and proposals of the Committee, usually taking them up
directly with Starvaggi. On one occasion in June, Starvaggi met with the Com-
mittee concerning a subsequently discussed modification of vacation provisions.80
Although it has no membership requirements. general meetings of the drivers
are conducted by the Committee about once a month. These meetings are usually
held at the Weirtonian hall, which is secured for the Committee by Sorrenti,
the nominal charge for "cleaning it up" being paid by the Committee out of its
own funds. Officials of the Respondent are usually invited to attend but not
to participate, except to stay for beer and refreshments after the business meet-
ing. Foreman Pauling has been present at one meeting. Sorrenti has been in
repeated attendance. In fact, Sorrenti, as he testified, introduced the Com-
mittee to the drivers at the first such general meeting "a couple weeks" after
the Committee's selection on January 9. The normal order of business, pre-
ceding the social period includes asking the drivers "if they have any gripes or
complaints" or think they are "not getting treated right," matters which the
Committee takes "right to the company." 61
The Committee originally obtained funds by passing "a hat" at the first two
general meetings. This proved unsatisfactory as there were complaints that
some drivers were "putting nickels and dimes in and drinking a dollar 's worth
60 Variation in the testimony as to whether there was an actual voting is illustrated by
these summarized versions :
Sorrenti-As he was coming down the stairs, someone hollered, "Let John Sorrenti write
them down." One fellow would nominate , another would second, they would all vote "with
a voice vote," and Sorrenti would write down the names of the respective representatives
thus elected.
Thornton-As to the actual voting, essentially like Sorrenti 's version , except that
Thornton depicted Sorrenti somewhat more definitely in a presiding role.
Starvaggr-There was some confusion among the approximately 50 people in the room.
The election was not secret ; " just a talking, raising bands," with drivers calling out names.
Howard , Shields, and Moore were in essential agreement that there was no voting on
names hollered out before Sorrenti would write them down, although some nominations
were seconded.
60 Starvaggi testified that be "met with the Committee only once ," and identified that
occasion as the above one "sometime in early June." I note but make no findings on testi-
mony of Moore and Winrod about statements attributed to Starvaggi at meetings of
drivers which were not shown to have been held by the Committee . Moore placed a state-
ment by Starvaggi "thanking the boys for this vote and cooperation" as being made at a
meeting about a week after the vote at the Weirtonian Club. Winrod testified that after
the Board election on January 31, Starvaggi thanked the drivers at a meeting , telling them
that "he appreciate it, that the election went In his favor."
61 The quotations are from Chairman Thornton's testimony.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of beer." There were also some deaths which involved sending "baskets of
flowers." So the drivers, at their third meeting during the latter part of
March, voted unanimously to have the Respondent deduct 1 dollar a month
from the pay of each driver. No individual deduction authorizations were
signed by any of the drivers. However, Sorrenti, who was present and saw
the vote taken, considered that "enough of an authority" from the drivers."
Sorrenti, one of whose duties is to "supervise the deductions on the payroll,"
thereupon had "the girl that handles the deductions to deduct a dollar" from
each driver's pay. At the end of each second pay period, checks were issued
to the Committee. These Sorrenti would deposit in a checking account, which
he had opened for the Committee at its request, turning the deposit slips over
to either one of the Committee's two officers, who jointly sign all checks
drawn.
There appear to have been some protests lodged by drivers about these deduc-
tions. In any event, apparently during July, Battaglia asked Sorrenti about
these deductions and whether he had "any authorized signature cards for that
purpose." When Sorrenti explained that he had "proceeded to authorize the
deductions on the strength of the vote taken," Battaglia told him "to notify
the Committee that there wouldn't be any more deductions made unless they got
cards signed." There is no indication that any attempt was made to secure
signed cards authorizing deductions, and the dollar a month deductions from the
pay of the truck drivers were stopped about August 1951.88
The first benefit secured by the Committee for the drivers was the substitution
of a straight 10-cent-an-hour pay increase for the long disliked bonus, which
had varied a great deal from period to period and from driver to driver. This
bonus, designed to stimulate safe driving, had been paid only once every 3
months. It had been based on an involved formula, not clearly understood
by the drivers, which included general trucking profits and individual driver
efficiency. At a meeting on January 10, attended by Sorrenti, the Committee
voted to ask for the substitution of a 10-cent guaranteed hourly increase.04
This request was presented to Starvaggi by Sorrenti on January 11. Starvaggi,
who had for some time felt that the involved procedure used in calculating the
bonus was too costly, immediately approved the substitution of the hourly
increase. This agreement by Starvaggi with the Committee's proposal was later
that same day reported back to the Committee. The committeemen thereupon
reported to the individual drivers that the change was being made. This in-
creased hourly rate went into effect, beginning with wages earned during the
pay period of January 7 to 20, for which checks were actually received by the
drivers on February 2,1951 Be
°' Sorrenti estimated that at least 45 or 50 drivers were present.
m The quotations in the above two paragraphs are all from the testimony of Sorrenti,
whose testimony checks essentially with that of Thornton and Battaglia except that
Thornton referred to the deductions as "negotiated ," and that Battaglia placed the end
of deductions as August or September, while Sorrentl placed them as July or August. The
findings as to these deductions are a composite , following principally Sorrenti 's forthright
testimony on this subject, and are not in essential conflict with any testimony except that
witness Winrod believed that the deductions were still in effect. It should be noted that
Chairman Thornton testified that he knew that the deductions had been stopped but that
he had "never asked why."
°' Sorrenti testified that this matter was "the first thing the Committee ever took up"
and that he thought "they had it in mind before they ever got together."
m I credit the consistent testimony of the Respondent 's witnesses as to the dates involved,
although there is testimony to the effect that the request was made somewhat later and
that actual payment was received earlier. In any event, there is no doubt that the Com-
mittee informed the drivers of this change before the Board election.
WEIRTON ICE AND COAL SUPPLY COMPANY 843
The Respondent contends that it has never made a calculation to determine
whether this change actually resulted in any increase in the total income of
its drivers. It probably affected individual drivers differently but this is imma-
terial. Clearly the drivers preferred a certain income every 2 weeks to an un-
predictable one every 3 months. This change in working conditions, which the
Respondent granted through the Committee, eliminated the major grievance of
the drivers, which all of the evidence demonstrates had long been a "bone
of contention" and a constant source of irritation and discontent. Clearly this
change, the possibility of which had been foreshadowed in Starvaggi's discussion
with the older drivers on January 8, constituted assistance to the Committee,
whether or not it increased total driver income.
Credited testimony of driver witnesses uniformly establishes that the Com-
mittee was understood by the drivers to be their representative in matters
variously expressed as handling "grievances," fixing up "troubles," or taking
up whatever the drivers had "to bitch about." The evidence shows that the
Committee handled some problems pertaining to seniority and time received by
older drivers. These were taken up with Foreman Pauling.8° Also modifica-
tion of the vacation plan was taken up by the Committee with Starvaggi because
the drivers wanted the change. This vacation modification, made effective as
of the last week in July 1951, consisted in reducing the period of employment
required in order to secure 1 week's paid vacation, from the previously required
3 years to only 1 year of service. Prior to the announcement of the change,
Starvaggi met with the Committee at its request and agreed to the improved
vacation plan. The Respondent's brief admits that "an improved vacation plan
was announced to the men through the Committee." Since I am satisfied from
the testimony of Chairman Thornton that the change was originally requested
by the Committee and agreed to by Starvaggi, it is immaterial that the same
improved vacation provision was also extended to the employees of the Starvaggi
Companies, other than the drivers represented by the Committee.
The Respondent's answer states that the Committee "may or may not be a
labor organization" within the meaning of the Act. In my opinion, the facts
above found as to the Committee's structure, purpose, and activities so clearly
demonstrate the labor organization status of the Committee as to render super-
fluous any further discussion of this point.
From all of the evidence, it appears that the Respondent has not entered into
any signed agreement with the Committee ; has not, by any single act, ex-
tended formal recognition to the Committee ; and did not ask that the name of
the Committee be placed on the ballot in the consent election. However, I con-
clude and find, on all of the facts considered in their total context, that the Re-
spondent has dealt with the Committee as the representative of its truck drivers ;
that the Respondent has orally agreed to several proposals of the Committee,
which have thereafter been put into effect ; and that the Respondent's conduct, as
a whole, has been tantamount to formal recognition of the Committee as the col-
lective-bargaining agent for its drivers. As bearing on these conclusions, cer-
tain testimony should be discussed and the role of Sorrenti further clarified.
Both Chairman Thornton and Committeeman Shields testified credibly that
the Respondent recognized the Committee. And while Bundy, who purportedly
handles the Respondent's labor relations, and who actually did handle the cor-
respondence detailed in an earlier section of this report pertaining thereto, tes-
tified that he had "never okayed any Committee," Bundy also testified that the
"Committee functioned along with Mr. Sorrenti," and that "they took their
0 See the testimony of Thornton and Shields.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gripes to Mr. Sorrenti, who later carried them through for them." Battaglia,
normally the immediate superior of both Bundy and Sorrenti, who testified
that both were clerks, also testified that the Committee would not come under
his but rather under Starvaggi's jurisdiction. Sorrenti, who repeatedly met with
the Committee, testified that they "discussed working conditions." Clearly Sor-
renti, who was not on the payroll of the Respondent and who had no super-
visory authority over the drivers, took the Committee's proposals to Starvaggi for
action. Starvaggi testified that the Committee came to him "through" Sorrenti
and that he knew that the Committee "was talking" for the drivers. When asked
specifically if Sorrenti "was the authorized representative dealing with the Com-
mittee," President Starvaggi replied, "Well, of course, in such a way, yes, he have
to bring it over to me, and if I approved it, all right ; if No, it's not."
It is my considered judgment that the activities of Sorrenti with respect to
the Committee cannot be dismissed as errand boy functions performed by a
kindly clerk at the Committee's request. It has been found in an earlier section
of this report that Bundy and Sorrenti served as Starvaggi's right- and left-
hand men during Battaglia's hospitalization. It is now further found, on the
basis of all of Sorrenti's actions with respect to the Committee viewed in the
light of the record as a whole, that Sorrenti has not been merely an unauthor-
ized "go between" but that he actually serves directly as Starvaggi's agent in
dealing with the Committee, just as he did in conducting the poll on January 9.
As such agent of the Respondent's president, Sorrenti represents the Respondent
in dealing with the Committee, subject to the final approval of Starvaggi to
whom he reports directly.
That the Respondent gave aid, assistance, and encouragement to the Com-
mittee, interfered with its formation and administration, and contributed finan-
cial and other support thereto, as alleged in the complaint, can scarcely be
questioned upon a review of the facts heretofore detailed. In addition, I am
persuaded that the Respondent's conduct, considered in toto, amounts to its
domination of the Committee. In this connection, only some of the more salient
points need be recalled.
The Committee was actually chosen in the presence of admitted supervisors
of the Respondent, at a meeting called and financed by the Respondent and just
after an illegal poll had been conducted by the Respondent. The Committee,
which is without constitution, bylaws, membership requirements, general mem-
bership, or dues, receives free quarters for its meetings from the Respondent.
Its committeemen are paid by the Respondent for time spent in attendance at
committee meetings. An agent of the Respondent attends many of the Com-
mittee's meetings. For a considerable period, the Committee relied for funds
to finance its general activities among the drivers upon assistance granted by the
Respondent in the form of an illegal checkoff. The Respondent, in spite of the
Union's pending demand for recognition, has recognized the Committee, dealt
with it, and extended benefits through it to the drivers, including an improved
vacation plan and a wage increase which was substituted for the long disliked
bonus.
When such factors are considered in the larger frame of reference above spelled
out, the conclusion is warranted and I find, contrary to the Respondent's posi-
tion,87 that the Committee is so completely the creature of the Respondent
that its disestablishment is required to dissipate the Respondent's domination
thereof.' I further find that, by the totality of its conduct with respect to the
er In its brief, the Respondent contends that, at most, it may have given "assistance" to
the Committee which constituted "a technical" violation.
68 The Carpenters Steel Company, 70 NLRB 670, 673; see also The Fifteenth Annual
Report (NLRB), page 101.
WEIRTON ICE AND COAL SUPPLY COMPANY 845
Committee, the Respondent has engaged in and is engaging in unfair labor
practices, within the meaning of Section 8 (a) (1) and (2) of the Act°B
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occur-
ring in connection with the operations of the Respondent described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce 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 and is engaging in
certain unfair labor practices, I shall recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate the policies of
the Act.
It has been found that the Respondent has given aid, assistance , and encourage-
ment to the Committee ; has interfered with its formation and administration ;
has contributed financial and other support to it; and has, by the totality of
its conduct, dominated the Truck Drivers' Committee. It will therefore be
recommended that the Respondent cease and desist from all interference with
and support of the Committee, and further that the Respondent disestablish the
said Committee as the representative of any of its employees for the purpose
of dealing with it concerning grievances, labor disputes, wages, hours of em-
ployment, or other conditions of employment, and that the Respondent refrain
from recognizing the Committee, or any successor thereto, for any of the fore-
going purposes.
On the basis of the above findings of fact, and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. The operations of Weirton Ice and Coal Supply Company, Weirton, West
Virginia, occur in commerce, within the meaning of Section 2 (6) of the Act.
2. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local Union No. 428, AFL, and Truck Drivers' Committee,
are labor organizations within the meaning of Section 2 (5) of the Act.
3. By giving aid, assistance, and encouragement to the Committee, interfering
with its formation and administration, contributing financial and other support
thereto, and by dominating said Truck Drivers' Committee, the Respondent has
engaged in and is engaging in unfair labor practices, within the meaning of
Section 8 (a) (2) of the Act.
4. 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
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
commerce, within the meaning of Section 2 (6) and (7) of the Act.
6. The Respondent has not violated Section 8 (a) (5) and (1) of the Act by
refusing to bargain with the Union, or Section 8 (a) (1) by threatening its em-
60 I deem it unnecessary to determine whether such benefits as changes in conditions of
employment and recognition of the Committee were violative of Section 8 (a) (1), aside
from their context as assistance to the Committee , as the General Counsel appears to
contend.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees with economic reprisals or by making offers or promises of economic
benefits.40
[Recommendations omitted from publication in this volume.]
10 The 8 (a) (1) allegations not sustained appear in subparagraphs ( c) and ( d) of para-
graph 4 of the complaint . My failure to find also that the Respondent has not violated
the Act by "statements and expressions tending to discourage concerted activities," as
alleged in subparagraph ( a) of paragraph 4 of the complaint , stems principally from the
fact that I am treating subparagraph ( a) as a generalized allegation which apparently
encompasses several more specific subparagraphs of paragraph 4 of the complaint.
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 interfere with the formation or administration of TRi cH
DRIVERS' COMMITTEE, give aid, assistance, or encouragement thereto, contrib-
ute financial or other support thereto, or dominate said Committee, or any
successor thereto, or any other labor organization.
WE WILL NOT interrogate our employees with respect to union matters or
conduct polls of our employees with respect to their desires as to represen-
tation.
WE WILL NOT in any like or related 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 INTERNATIONAL BROTHERHOOD OF
TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL
UNION No. 428, AFL, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted activi-
ties for the purposes of collective bargaining or other mutual aid or protec-
tion, 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 hereby disestablish TRUCK DRIVERS' COMMITTEE as the representative
of any of our employees for the purpose of dealing with us concerning griev-
ances, labor disputes, wages, hours of employment, or other conditions of
employment, and we will not recognize said Committee, or any successor
thereto, for any of the foregoing purposes.
All of our employees are free to become or remain, or to refrain from becoming
or remaining, members of INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUF-
FEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, LOCAL UNION NO. 428, AFL, 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.
WEIRTON ICE AND COAL SUPPLY COMPANY,
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.