World Carpets, Inc.

National Labor Relations Board - Board Decisions

Jun 24, 1969

176 N.L.R.B. 954 (N.L.R.B. 1969)

954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
World Carpets, Inc. and Truck Drivers and Helpers,
Local 515, Affiliate of the International
Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America Cases
10-CA-7421, 10-CA-7492, and 10-RC-7450
June 24, 1969
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND ZAGORIA
On March 27, 1969, Trial Examiner Lloyd
Buchanan issued his Decision 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 National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial
Examiner's Decision. 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 such allegations.
Thereafter, the Respondent filed exceptions to the
Trial Examiner' s Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
Trial Examiner's findings, conclusions, and
recommendations, as modified herein.
1. We agree with the Trial Examiner's findings
that the Respondent violated Section 8(a)(1) of the
Act and interfered with the election by making
threats and promises as well as by bargaining
directly with the employees.
On June 15, 1968, just 2 days after the petition
for election was filed, controller Farmer,
accompanied by dispatcher Edwards, addressed the
unit employees who had gathered at the company
garage in response to employer notice on the plant
bulletin board. He lead a general discussion
concerning wages and working conditions. Initially,
he acknowledged that the Company had received
two letters from the Union (the demand letters) and
he stated, in reference to the Union, that "he did
not want outsiders coming in and telling him how to
run the company." He also stated that if the
Company were obliged "to pay as much as union
scale, they could ship the carpet cheaper by
piggy-backing it than they could by paying the full
union scale ." We agree with the Trial Examiner's
finding of an 8(a)(1) violation with respect to this
176 NLRB No. 138
threat to the jobs of the unit employees.
Similarly, we concur with the Trial Examiner's
finding that Respondent interfered with the election
and violated Section 8(a)(1) by bargaining directly
with the employees at a series of meetings on
August 24, 25, and 26, whether or not Respondent
was at that time under an obligation to bargain with
the Union. Here again, the truckdriver employees
gathered at the plant in response to a bulletin board
notice and this time conferred with President
Shaheen as well as with controller Farmer over
wages and working conditions. On the morning of
Saturday, August 24, Shaheen mentioned, among
other things, that the Company was looking into the
10-cent-per-mile increase which the Respondent had
refused the men in May prior to the advent of the
Union. There had been no discussion of the 10-cent
increase between the time it was first proposed by
the men in May and the meeting held on August 24.
At the completion of this meeting, Shaheen told the
drivers to come to some sort of an agreement
among themselves as to what their demands were
and then to return to another meeting with him that
same afternoon. A more specific list of demands
was thereafter furnished to the Respondent by the
men at the second meeting that day. Farmer told
the men there were some things that Shaheen could
go along with and others that he would not find
agreeable. Thereafter, the men or their spokesmen
on at least three more occasions on the 24th, 25th,
and 26th, conferred with Farmer who had promised
to inform them immediately of President Shaheen's
reaction or answer to their demands. On the 26th,
Farmer furnished the men with a copy of Shaheen's
memorandum which was in fact the Respondent's
answer to their demands. We agree with the Trial
Examiner that this direct negotiation with the unit
employees which occurred while the Union's
demand for recognition and the election petition
were pending restrained and interfered with
employees' exercise of rights guaranteed by Section
7 of the Act and thereby violated Section 8(a)(1) of
the Act.
Finally, the distribution of the Shaheen
memorandum of August 26 constituted an
aggravated violation of Section 8(a)(1). This
memorandum which was distributed to the men
through Farmer simultaneously promised benefits
and threatened loss of jobs and constituted a
calculated attempt to dissipate the union majority
dust prior to the election. The Company here
campaigned with a list of promised benefits to
persuade the employees that they did not in fact
need a union, among which was the long sought
after 10-cent-per-mile wage increase, an increase in
the amount of per diem payments for overnight
layovers, and coverage under a profit sharing plant.
As the promises ended, the threats began: "I think
the . . . suggested changes in the drivers' mileage
scale and benefits are as far as we can go with or
without the union. If we are faced with costs any
WORLD CARPETS, INC. 955
greater than this, then I think we should seriously
consider discontinuing our trucking operation
altogether." Significantly, the changes in wages and
benefits were to go into effect immediately after the
time for filing objections had passed without any
objections having been filed if the Union lost the
election. Conversely, if the Union were to win the
election, the memorandum specifies plans to be
implemented immediately in the event the Union
refused to accept the detailed benefits and decided
to strike. This total, balanced employer package of
effective promises and threats was designed to and
did in fact interfere with the election and thus
violated Section 8(a)(1) of the Act.
2. In agreement with the Trial Examiner, we find,
on consideration of all the circumstances of this
case, that Respondent's refusal to recognize the
Union as the exclusive representative of its
truckdriver employees violated Section 8(a)(5) and
(1) of the Act.
The Union's efforts to organize Respondent's
employees began about June 1, 1968, and came to
Respondent's attention almost immediately. By
letter dated June 3, the Union gave the Respondent
its first notice demanding recognition which
inadvertently designated an incorrect unit. This
mistake was corrected in the perfected bargaining
demand made on June 11. The Respondent denied
recognition, expressed doubt of the Union's
majority, and stated that if the Union did not file a
petition for an election, the Respondent would. On
June 13, the Union did file a petition, and within 2
days the Respondent commenced its overt effort to
discourage its employees from selecting the Union
as their representative. On June 15, Respondent
assembled the unit employees in the company
garage and threatened their jobs when it informed
them that the Company would switch to piggyback
operations rather than pay union scale . On August
24, 25, and 26, at a time when the demand for
recognition and the election petition were pending,
the Company negotiated directly with the
employees. On August 26, the Respondent caused a
memorandum to be transmitted to the employees
which simultaneously promised benefits if the Union
lost the election and threatened loss of jobs if the
Union won the election . On August 30, the Union
lost the election as the result of a tie vote.
It is plain from the foregoing recital of events that
Respondent resorted to a consistent and insistent
campaign of unfair labor practices in its effort to
thwart the union organization drive . Respondent's
contention that its unfair labor practices are
insubstantial within the rule of the Hammond &
Irving' decision is without merit. Threats of job loss
and promises of substantially increased benefits for
the purpose of subverting the election process can by
no stretch of the imagination be deemed
insubstantial interferences with employee exercise of
Section 7 rights. The timing of Respondent's unfair
labor practices, commencing almost immediately
after the organizational drive began and persisting
up to the time of the election, persuades us that the
unfair labor practices were calculated to, and did,
dissipate the Union's majority. Clearly Respondent's
unfair labor practices rendered the election timely
held on the union petition an inaccurate register of
employees' desires as to union representation and
tended to preclude the holding of a fair election
within a reasonable time thereafter. Accordingly, as
there is no question that the Union had been validly
designated by a majority of its truckdriver
employees as their representative at the time it made
its bargaining demand,2 we find that, by engaging in
the foregoing conduct, Respondent violated Section
8(a)(5) and (1) of the Act, and that the policies of
the Act will be effectuated by the imposition of a
bargaining order as a remedy for such conduct.3
CONCLUSIONS OF LAW
1. The Respondent is an employer within the
meaning of Section 2(2) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All truckdrivers, including the spotter,
employed at the Company's Dalton, Georgia, plant,
but excluding the mechanics and all other
employees, guards, 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.
4. On June 11, 1968, and at all times thereafter,
the Union has been and is the exclusive
representative of all employees in the aforesaid
appropriate unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the
Act.
5. By refusing on and after June 11, 1968, to
bargain collectively with the Union as the exclusive
bargaining representative of the employees of
Respondent in the appropriate unit, Respondent has
'154 NLRB 1071.
'We agree with the Trial Examiner that a majority of the unit composed
of 32 employees executed valid designations of the Union as their
collective-bargaining representative . Respondent, while not disputing the
authenticity of the employees ' signatures on the 21 union-authorization
cards introduced into evidence , has excepted to the validity of certain of
these cards, exceptions which are based on the testimony of 5 individual
card signers; namely, Russell , Peden , Reynolds, Henry, and Edmonson.
The Trial Examiner specifically discredited Peden and imphedly discredited
Russell by "citing" him as one "who would impel to an acceptance of the
opposite of what he told us," because of "the very evident disregard for the
truth in what he allegedly recalled and did not recall, and his patently
evasive manner " Even if the other three contested cards were invalid, the
Union would have a majority (18 of the 32 unit employees .) However, the
Trial Examiner also partially discredited the testimony of the other three
and, in any event, found that their cards were not invalidated based
principally upon the credited testimony of other witnesses; namely, Hughes
and H. F. Farmer . On the basis of our careful review of the record we
conclude that the Trial Examiner 's credibility resolutions are not contrary
to a clear preponderance of the relevant evidence . Accordingly, we find no
basis for disturbing these findings. Standard Dry Wall Products, Inc, 91
NLRB 544, enfd . 185 F.2d 362 (C.A. 3).
'N L R B. v. Gissel Packing Co Inc, 396 U .S. 869 ; Sinclair Company
v. N L R B, 395 U.S. 575.
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in and is engaging in unfair labor practices
within the meaning of Section 8(a)(5) and (1) of the
Act.
6. By bargaining directly with the employees and
by making threats or promises of benefits
Respondent has interfered with, restrained, and
coerced its employees in the exercise of their rights
guaranteed by Section 7 of the Act and has engaged
in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices within the meaning of Section 2(6)
and (7) of the Act.
FINDINGS OF FACT (WITH REASONS THEREFOR) AND
CONCLUSIONS OF LAW
1. THE COMPANY S BUSINESS AND THE LABOR
ORGANIZATION INVOLVED
The facts concerning the Company ' s status as a
Georgia corporation , the nature and extent of its business,
and its engagement in commerce within the meaning of
the Act are admitted ; I find and conclude accordingly. I
also find and conclude that , as admitted , the Union is a
labor organization within the meaning of the Act.
If. THE UNFAIR LABOR PRACTICES
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, World Carpets,
Inc., Dalton, Georgia, its officers, agents,
successors , and assigns , shall take the action set
forth in the Trial Examiner's Recommended Order.
TRIAL EXAMINER'S DECISION AND
REPORT AND RECOMMENDATIONS ON
OBJECTIONS TO ELECTION
LLOYD BUCHANAN, Trial Examiner: As will be noted in
the section on refusal to bargain , this case lends itself to
consideration of the principles and practical problems
involved in reliance on card majority for an order to
bargain after interference with protected concerted
activities.
The complaints herein (issued September 3 and October
23, 1968 ; charges filed July 18 and September 13, 1968,
respectively) allege that the Company has violated Section
8(aX3) of the National Labor Relations Act, as amended,
73 Stat. 519, by discharging Oliver Pierce on July 10,
1968, because of his union membership and protected
concerted activities; Section 8 (a)(5) of the Act by refusing
to bargain collectively with the Union as exclusive
representative of employees in an appropriate unit, by
bargaining directly with employees in the unit, by
promises conditioned on rejection of the Union, by a
threat in connection with collective bargaining, and by
dispatching drivers so that they were unable to vote in a
Board -conducted election ; and Section 8(a)(1) of the Act
by said acts and by a threat based on union activities. The
answers , as amended , deny the allegations of appropriate
unit, designation by a majority of the employees, and
unfair labor practice.
Consolidated for hearing and determination with the
trial on the above issues was a hearing with respect to
three objections to the election , filed by the Union. It was
early agreed that the issues in connection with the
objections are covered by the unfair labor practice
pleadings.
The case was tried before me at Dalton, Georgia, on
January 7 through 9, 1968, inclusive. Briefs have been
filed by the General Counsel and the Company, the time
to do so having been extended.
Upon the entire record in the case and from my
observation of the witnesses, I make the following:
A. The Alleged Violation of Section 8(aX3)
Pierce was employed by the Company as a truckdriver
for 7 years. On June 24, 1968, he was dispatched with a
truckload of carpet rolls, most of it destined for the
Company's warehouse near Chicago, but approximately
40 percent to be dropped off at Murphy Carpet, a
customer located a few miles from the warehouse. With
the expectation that delivery would first be made at the
warehouse, its carpet was loaded at the rear of the truck,
where the unloading would commence.
Pierce testified that he arrived at the warehouse at
approximately 1:30 or 2 p.m. on June 25; that the
unloading began one-half to three-quarters of an hour
later; that the man doing it was slow; that the warehouse
portion was unloaded about 4:30; that with the need to
place the Murphy rolls at the tail of the truck so that they
could be unloaded at Murphy, they were first removed
from the front of the truck and placed on the ground; and
that it was now 5 p . m. This suggest a speed in unloading
the Murphy carpet quite in conflict with Pierce's other
testimony concerning the rate of progress . I credit the
testimony below that by 4:30 all of the Murphy carpet
had been unloaded and some of it returned to the rear of
the truck.
Pierce told us further that about 3:30 or 4 he asked one
of the warehouse employees to call Murphy to find out
when it closed, and that he was then told that it would
remain open for the delivery as late as 5:30, but not later.
(He assumed that it normally stayed open until 5. In fact,
it normally closed at 4:30.)
Pierce thereupon told the warehouse night shift
foreman, Doris, that he did not see how the drop could be
placed back on the trailer and delivery made by 5:30; and
he suggested that it be left there so that he would not have
to lay over in Chicago until the following day when the
next truck could make the drop. Pierce did not know that
another truck would be arriving the next day but he
assumed so since trucks were going to the Chicago
warehouse about every day. (The next truck arrived on
June 28.) The foreman signed the manifest for the drop
and, after some coffee and a bit of talk, Pierce left about
5:15, returning to Dalton about noon on June 26.
Pierce also told us that, while he was not told that the
drop had to be made that day, a rush marking may be
placed on the manifest or the roll, but that the driver does
not look at the manifest, which is in an unsealed envelope.
Whatever is to be made of this (counsel have not adverted
to it), the responsibility for the drop was Pierce's. Murphy
sent its own truck later that evening to pick up a roll of
525 pounds and, as we shall see , the remainder of the
drop was delivered by an independent trucker the next
WORLD CARPETS, INC. 957
day.
Rizzi, the warehouse day foreman , testified that he told
Pierce that "the drop had to be made that night." Rizzi's
time estimates were markedly inconsistent with his loading
breakdown per roll and with the rate of progress described
by Sias, who unloaded the truck . But the variance went so
far beyond even Pierce ' s expectation as to indicate that
the attempted breakdown , while indicating the General
Counsel ' s ingenuity , was wholly unreliable and lacking in
probative value since it betokened a delay which even
Pierce did not suggest.
Templin , the warehouse employee whom Pierce had
asked to inquire how long Murphy would remain open,
testified that he was told that someone would be there
until 5 : 30, that he told Pierce "that there would be
somebody there to accept the drop ," and that no question
was raised whether Pierce could make it . Templin told us
further that the truck had been completely unloaded and
two or three Murphy rolls placed back on it 5 or 10
minutes before he left at 4 : 30; and that the reloading
could have been completed in approximately 15 minutes.
Sias testified that about 4:25 (this was after Templin
had relayed to Pierce the message that Murphy would
stay open ; if before , Pierce did not thereafter correct his
statement to Sias ) Pierce told him and Doris , his foreman,
that Murphy would close at 4:30, and there was no time
to make the drop . Doris thereupon told Sias to take off
the truck those Murphy rolls which he had reloaded (14 or
15 by that time and quite consistent with Templin's
testimony ) because there was no time to make the drop. It
does not appear that Doris knew of the telephone call to
Murphy and the extension of time for receipt of the
carpet . It was Doris who apparently signed the manifest
for the Murphy carpet.
I find , from all of the testimony, pro and con, and on
the basis of the demeanor of the witnesses as they
testified , that Pierce could have made the drop on June 25
and that he was told that Murphy would remain open
later . The picture portrayed is that of a driver who was
reluctant and even unwilling to make the drop, which
necessitated another stop and delay for unloading, and
who did not inform the foreman who gave the order
finally to unload at the warehouse that Murphy would
remain open later ; and that Pierce was thus able to have
the reloaded rolls removed from his truck . Shoemaker,
Pierce ' s second driver , had a secondary role; the
responsibility was Pierce's.
But beyond the failure to make the Murphy drop,
Pierce was guilty of a serious breach in not having the
manifest properly signed . Neither Doris nor Rizzi had
authority to sign a manifest . A signed manifest is more
than a receipt or acknowledgment that material has been
delivered : It relieves the driver of all responsibility, even
for the condition of the load ; it indicates not only that
delivery was made , but that it was made as called for; and
it authorizes him to proceed free from further
accountability of any kind. From the testimony, there
appears to be a distinction between a receipt for carpet
delivered and a release of the driver from responsibility,
which requires the manifest to be signed by an authorized
agent , as noted.
Driver Hughes testified that he had never been
criticized for leaving a drop at a warehouse when he was
unable to make it as directed . Driver Fariss expanded on
this as he testified that in such a situation he calls for
instructions and speaks to someone with authority to give
instructions . It stands uncontradicted that only certain
warehouse officials , who know the customer 's needs, are
empowered to sign a manifest ; that where none is
available , Edwards , the dispatcher , is available to give the
driver instructions by telephone ; and that, while Edwards
had never informed Pierce of such a rule , the latter having
been hired several years before Edwards came on the
scene , it has been followed by the drivers , including
Pierce , who had himself called Edwards previously for
release . Shoemaker testified similarly that it is the
practice to call Edwards when it is too late to make a
drop . Beyond the matter of receipt or release for carpet
destined for a warehouse , our concern is with a release for
a drop left at a warehouse instead of the indicated place
for delivery . There is no question but that , where drops
could not be made on time , they have been left at a
company warehouse . The issue is whether this is first
authorized , and by whom . Whatever his authority over
warehouse employees , it stands uncontradicted that a
warehouse foreman is not authorized to release a driver.
Excluding this instance involving Pierce and except
when Edwards released a driver from a drop, not an
instance was cited of carpet to be dropped at a customer's
but being left at a warehouse on release by someone other
than the warehouse manager , the administration manager,
and the latter ' s assistant . One employee had previously
been discharged for failing to make a pickup , and we are
told that a drop is more important . Whether or not we
assume that the manifest was signed for the warehouse
carpet by an authorized representative (this was not
brought out ), we recall that Pierce testified that the
warehouse foreman signed the manifest "for this drop."
To the extent that any such finding is necessary in view
of Pierce' s violation of the requirement with respect to
dropoffs not made , I find also that Pierce did not take or
seek to take advantage ' of the extension of time allowed
when Murphy agreed to accept delivery after its normal
closing time . Some light is cast on this by spotter
Williams' uncontradicted testimony that , before leaving
for Chicago on June 24 , Pierce said that "he didn't know
whether he would make the drop or not."2
It is not for us to determine the reasonableness of the
action taken against Pierce because of this offense; it
cannot be held to be so unreasonable as to indicate
discriminatory intent . The Company was moved by the
information which it had and which reasonably indicated
that the drop could have been made ; by the additional
expense incurred in having an independent trucker pick up
the load on the morning of the 26th after Murphy sent for
one roll the evening before ; by understandable concern
with respect to its customer; and by Pierce 's violation of
the rule with respect to the manifest . I find and conclude
that the discharge was not violative . It does not appear
that Pierce even denied or disclaimed knowledge of the
arrangements made for late delivery when , prior to his
discharge , he was shown by Edwards a letter which stated
that he had refused to make the delivery although
arrangements had been made for Murphy to accept a late
arrival.
That Murphy needed and was insistent upon immediate
delivery appears from the fact that it did send for one roll
of carpet on the evening of June 25 , the remainder of the
'To speed delivery of the dropoff , the warehouse carpet rolls , which had
to be removed from the truck first , were placed on the floor instead of
directly into the warehouse bins
'While this reflects on Pierce ' s motive and explains his acts, it does not
appear to have been communicated to the Company or to have been
considered in connection with the discharge.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
drop being made the following morning . Quite as evident
is the Respondent Company' s concern as indicated by the
latter prompt delivery, aside from whatever testimony
might properly have been offered to show possible loss of
business with Murphy as a result of the incident with
which we are concerned.
If Rizzi ' s attempt to break down the time which Pierce
spent at the warehouse and his ingenuous attempts at time
study proved unreliable , the fact remains that Pierce did
not follow the required procedure which he had himself
previously followed ; and the Company sustained a
financial loss and was understandably concerned over its
relations with its customer . Self-serving and hearsay
statements aside , we have serious departure from company
rules and procedure with respect to dropoffs , evidence of
delay and expense incurred , and proof of company
concern when it discharged Pierce.
Nor should we overlook in all of this that Pierce could
not have been selected (no action was taken against
Shoemaker) because he was or was believed to be an
active, much less leading , union protagonist . His activities
were limited to the signing of a union card (20 other
drivers signed ), which was not brought to the Company's
attention . Hughes was the moving spirit throughout; we
need not now detail his activities. He testified that he gave
some cards to Pierce.
The sole basis suggested for company suspicion of
union activity by Pierce lies in his reply to Farmer "that
he already knew of all of [the men ' s] grievances or had
already heard them ." This was made at the end of a
meeting with the drivers (one of several such called by the
Company ) about the middle of June , and in response to
Farmer's call for suggestions , comment, or grievances. By
contrast, at a meeting on June 1 when Farmer announced
a small increase , Hughes replied that it was "an insult." If
no others said anything when Pierce did, various others
spoke up at other meetings.
As for complaints, virtually all of the drivers expressed
grievances with respect to the low mileage rates , absence
of a profit-sharing arrangement, too many delays, and too
many drops . In the latter connection, Williams, after a
leading question and in a too obvious attempt to
"strengthen the case " against Pierce for willful refusal,
testified that , while other drivers complained also, he
"would say" that Pierce complained more than the other
drivers . Considering that such complaints may have
constituted concerted activity , it does not appear that any
such excess by Pierce was communicated to the Company
by Williams, a rank-and-file employee.
B. The Alleged Independent Violation of Section
8(a)(1 ) and the Objections to Election
It stands uncontradicted that , whatever the Company's
ability to grant an increase (this could be tested during
negotiations ), Farmer , its controller, warned the drivers on
June 15 at a meeting , which it had called and within a few
days after the Union 's request for recognition and its
filing of a representation petition , that the Company could
shift to piggyback operation if compelled to pay the union
scale . I find and conclude that this threat in connection
with union activities violated Section 8(axl) of the Act.
The General Counsel is at least perserverant in his
claim , by brief, "that the Trial Examiner erred in not
permitting General Counsel to explore this area which was
the subject of a specific allegation in the complaint in
Case 10-CA-7421." Without any intent to instruct him, it
may be pointed out that, if his reference is to the
allegation considered immediately above, it had been
testified to by his witness and, as noted, without
contradiction. Were he referring to anything else 3 he
would be going into matters not covered in direct
examination of the Company' s witness , and apparently
not even within the allegations of the complaint . The issue
being Farmer's threat, which the General Counsel
recognizes and argues in his brief and which at that point,
the close of the Company' s case , had not been (here for
the third time) contradicted, it would in any event be
supererogatory to cite Pierce ' s comment and then again to
elicit Farmer ' s threat (conceivably now eliciting a denial
of any threat!) as "that which prompted the comment."
With respect to any attempt to introduce new matter on
cross-examination of a company witness (we do not know
whether there had been an oversight or whether the
General Counsel had no witness of his own ), it is not
"better practice"' to permit a party to play ducks and
drakes with proper procedure and the right of another
party to a fair hearing. To whatever extent this is
discretionary with the trier of the facts, I exercised my
discretion to limit any attempt, if made . This extended
reference may clarify on review what appears to be clear
enough but for the extended argument submitted at the
hearing and continued in the brief.
With the election scheduled for August 30, the
Company called a meeting of all of the drivers on
Saturday, August 24.' President Shaheen and Farmer at
length discussed with the drivers such matters as rates of
pay, other terms of payment, and "conditions in general."
At Shaheen ' s suggestion , it was agreed to meet again that
afternoon. The Company's activities in connection with
this meeting and two others which followed that day and
the next are not to be condoned because two employees
had requested a meeting . Not only was the purpose
declared to be "to get this thing straightened out" and to
"see if some way [they] could get this election set aside,"
but although prompted by only 2 employees, the
Company called a meeting of all drivers, and 16 or 17
attended . With the men making various requests , Shaheen
suggested that they "get together" and meet again later
that day.
A second meeting was held in the office that afternoon,
only four or five drivers attending. One of them, Estes,
submitted a list of their demands or desires , the Company
replying correctly that it was not allowed to make any
promises but that the proposals would be studied and a
further meeting arranged for the following week.
That evening Estes telephoned Farmer and told him
that a group of the men would like to meet with him. It
was arranged to meet at Estes' home the next afternoon.
Four of the men then met with Farmer, they went over
the proposal of the day before item by item, and Farmer,
without acceding to any, said that he would try to get the
Company's position on each. As it had previously
recognized the two drivers as spokesmen for all in
arranging the August 24 meeting, the Company now dealt
with Estes later that day and again with the drivers
'It appears from the General Counsel' s brief that his plaint relates to
further questioning concerning that uncontradicted threat. Perhaps because
I would not believe that , it seemed to me at the trial that he was seeking to
inquire concerning new matter.
'Kpbride d/b/a Abbot Construction Company, 162 NLRB 516. Cf 3
Wigmore, Evidence Sec. 1873.
'Hughes and another driver had asked Farmer to arrange a meeting to
see whether they could get the imminent election "set aside."
WORLD CARPETS, INC. 959
directly while the issue of representation was pending.
While there were considerable confusion and
discrepancies in the versions submitted by Hughes and
Estes, it is clear that proposals were called for by Shaheen
and that a list was submitted by Estes at the second
meeting on August 24. Whether or not the Company was
at that time under obligation to bargain with the Union,
its request for proposals by the drivers and the several
discussions on August 24 and 25 impeded a fair election
and interfered with employees' protected concerted
activities; I so find and conclude.'
As a sequel, Farmer met with Hughes and Estes late in
the afternoon of Monday, August 26, and submitted to
them a memorandum which included Shaheen's
"decision" with respect to rate increases, payments
generally, and a profit-sharing plan. Whether Farmer
handed the memorandum to the others or whether he put
it on the table before them is unimportant; similarly
whether or not it was expressly said that it would be
submitted to the other drivers. There was no limitation in
the latter respect. There could hardly be any in view of
the acknowledged purpose of the document and the
discussions held. While addressed to Farmer, this
memorandum was not only to be made available to the
drivers, but it was issued as promised by Farmer as a
statement of the Company's position in response to their
proposals. The memorandum was the Company's proposal
to the drivers and was declared to be in response to "the
requests ... from the drivers themselves." Whether or not
and to what extent there was actual interference (Estes
testified that the memorandum was thereafter shown to 10
or 12 other drivers), the tendency to interfere, which is the
basis for finding this violation, is clear.
If Shaheen had earlier been "working on" increases, no
such indication of that had been given to the employees
prior to the advent of the Union as to necessitate or
justify the direct negotiations. The Company was here
campaigning with promises of benefits to persuade the
employees that they did not need a union, and was
thereby guilty, I find and conclude, of violative
interference. There is no basis for distinction in this
respect between announcement or promise, and actual
grant.' This finding supports the second objection to
election, which is hereby sustained.
Finding of interference in the instant case is supported
by the majority opinion in the recent Primco Casting case,'
where a union had campaigned with benefits and where,
in the attempt to distinguish that from action by an
employer, it was declared that "the presence of an implied
threat of future [sic] reprisal cannot properly be found to
be present [sic] where a union takes [the] action" cited.
(Perhaps it should be noted that even if there could be no
"threat of future reprisal" by a union, there can be a
promise of benefit, equally violative and equally impairing
a free choice in an election.)
Nor is a contrary finding here indicated in the
dissenting opinion in Primco by Board Member Zagoria
who was evidently moved by the not at all naive belief
that if we would enjoin the goose, we should not
encourage the gander.
In his memorandum of August 26 Shaheen also
declared that the benefits which he was suggesting were as
'Fairchild Camera & Instrument Corporation, 169 NLRB No. 11.
'Hudson Hosiery Company, 72 NLRB 1434, 1435; Waycross
Sportswear, Inc., 166 NLRB No. 14; Casey Manufacturing Company, 167
NLRB No. 13; Fairchild Camera & Instrument Corp., supra
'Primco Casting Corporation, 174 NLRB No. 44.
far as the Company could go with or without the Union,
adding : "If we are faced with costs any greater than this,
then I think we should seriously consider discontinuing
our trucking operations altogether. From the survey we
have taken, I was surprised to learn that many of our
competitors do not truck their own goods." This was no
statement of fact or prophecy but, with an election
imminent , a warning of adverse consideration by one who
could act thereon, issued in anticipation of greater
demands. I find and conclude that this was another
violative threat.' I also sustain the third objection to
election.
Of a different nature is interference alleged in the
dispatching of drivers on trips of such distance that they
were unable to return to the plant in time to vote in the
election held on the afternoon of August 30. The first
election objection referred recites interference with four
drivers, Fariss, Hughes, Page , and Smith. The objection is
overruled and the allegation dismissed as to the latter two,
the Regional Director having declared that they were not
available for interview, and no testimony concerning them
having been received at this trial.
Hughes testified that on August 27 he and Fariss had
been dispatched to make deliveries in Falls Church,
Virginia; Plainfield, New Jersey; and Westbury, on Long
Island in New York. (Fariss was himself a first driver.
But his truck had been in an accident, and Hughes now
asked that Fariss be permitted to go with him, no other
driver having been assigned . Edwards agreed.) On the way
back they were to stop at a pier in Brooklyn to pick up
some machinery.
After he had testified concerning the deliveries and the
problem which developed, and in response to a suggestion
that he had mentioned this to Edwards on the 27th,
Hughes told us that, on receipt of the assignment from
Edwards, he had said that they could not make the
various stops for deliveries and the machinery pickup and
be back in time for the election (Fariss did not take part
in the conversation; he testified that he "didn't object" to
making the trip); that Edwards had replied that he would
speak to Farmer; and that at 10:30 that night Edwards
telephoned and told him to "go on and deliver the
carpet." Hughes again told Edwards that they wanted to
be back in time . According to this version, the pickup was
left in the air, not being mentioned at that point although
it was the reason for Edwards' calls to Farmer and then
to Hughes; and despite this alleged indefiniteness, Hughes
attempted on the 29th, as we shall see, to make a contact
for permission to make the pickup later. He thereafter
called Edwards to tell him that he had been unable to
make that contact, not to ask the question which had
allegedly been left open, whether the pickup had to be
made - although he did now again express the desire to
be back to vote - but to tell him that he would be unable
to get through the pier gates in time.
According to Edwards, when the assignment was made,
about 2 or 3 p.m. on August 27, Hughes expressed doubt
that, with the election on the 30th, the trip could be
completed on time ; but that he had replied that there
would be plenty of time; that Hughes returned about 4
p.m. and asked whether they had to pick up the
machinery, Edwards replying that he would find out; and
that the trailer was hooked to the tractor, ready to go out,
at that time. Although Edwards told us that he reached
Farmer about 5:30 (Farmer said that the pickup had to be
'Cf. T M. Duche Nut Co., Inc, 174 NLRB No. 72, where there was no
context of mterference.
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made to avoid a dock charge of $400-$500 for another
month ), it was about 7 p.m. when he called Hughes and
told him that the pickup had to be made . It is agreed that
Hughes and Fariss left at midnight.
Hughes testified first that the Westbury delivery was
completed at 1:30 p.m. on August 29. When he called to
say that he would be too late at the pier , Edwards gave
him the telephone number of a man in Brooklyn who
could arrange for a later loading ; Hughes called the
number but without the area code , called Edwards again
and got the code , and finally reached the man , who told
him to come down to the pier . Hughes and Fariss arrived
there about 3 p.m. and were admitted , but a problem of
credit developed , and "the man" told them that they could
not be loaded until the next morning . Hughes testified
that he did not call Edwards again at this point, the latter
having told him to lay over until the next day if he could
not get loaded . The drivers returned to Dalton on August
31, after the election.
It appears from documents which we shall further
consider and from possible reconciliation of those
documents with testimony on which both sides rely that
the men had laid over in Westbury for 31 or 12 hours.
Whatever the explanation for this, an earlier departure for
Brooklyn would have gotten them to the pier in time,
without any calls for an extension, and would have
enabled Hughes and Fariss to pick up the machinery
without a layover there and to return to Dalton in time to
vote.
With respect to objection 1, which is covered by this
allegation of interference, the Regional Director, while
referring it for hearing and determination , tentatively
declared that "Hughes and Fariss had no opportunity to
vote , through no fault of their own . . . ." While I have
found , on the basis of the evidence at the trial , that the
drivers were at fault both in leaving Dalton late and in
further delaying their departure from Westbury , the cases
cited by the Regional Director in his Supplemental
Decision are helpful.
T;►e principle stated in Yerges is that , without
assessment of responsibility , an election is to be set aside
where an employee "had no opportunity to vote through
no fault of his own but because at the time of the election
he was away from the plant in the usual course of his
duties for the Employer ." In Alterman it was held that an
opportunity to vote is not subject to waiver by the
employer or the union , the opportunity and right to vote
being the employees'. But an employee , to whom the right
belongs, may lose it through his own fault as the Board
evidently recognized when it used the phrase "through no
fault of his own" in Yerges . A different holding would
provide a built- in opportunity for any employee to
invalidate an election . The finding declared below that
Hughes and Fariss were at fault indicates that objection 1
be, and it is, overruled.
A finding with respect to the objection to the election in
this connection or in connection with the violation charged
does not appear under the cases or in principle to depend
on whether the employees immediately involved are pro or
antiunion . Nor is any offense aggravated if more than one
employee is thus involved; and to that extent we need not
reflect on the fact that it was Hughes who suggested that
Fariss, presumably a union supporter , be his second driver
although that might be a consideration to minimize or
lessen the offense of interference, if any.
"Yerges Van Liners , Inc, 162 NLRB 1259; Alterman-Big Apple, Inc.,
116 NLRB 1078.
We consider now the issue whether the Company
violated the Act when it dispatched Hughes and Fariss.
Since employee fault is recognized in connection with
objection to election, the employer must a fortiori be
absolved of interference under such circumstances. Were
the delay in return attributable to the drivers either
because they delayed their departure or because they
dawdled en route, I would not hold the Company
responsible and liable. Whatever the rule with respect to
conduct of elections and the annulling effect of unforeseen
circumstances (and the annulling power of employees
unless their own fault be proved ?), to find interference in
such a case would be to make the employer the guarantor
of the employees ' return regardless of the employer's
carefulness and the employees ' indifference or even willful
absence or other fault (each of which can be seen here).
Even were the election set aside because of the
assignment , it would not necessarily follow that such
assignment constitutes a violation of Section 8(a)(l).
Indeed the General Counsel , relying on the two cases cited
and ignoring the element of employee fault , argues for too
much when he overlooks such possibilities among others
as an assignment which , although when made permitted a
timely return , was extended by unforeseen or unexpected
circumstances . Such a situation, supporting an objection
to election , would not be chargeable to the employer as a
violation.
Was Hughes, as he testified, to be told later whether he
had to make the trip ; or, assigned to the trip , whether he
had to make the pickup in Brooklyn? I credit the latter
version, testified to by Edwards and supported by the
testimony that Hughes had suggested that Fariss
accompany him and that Edwards had agreed . It is less
likely that the question of assignment of Hughes and
Fariss or of other drivers was left open after the explicit
request by Hughes and the agreement and assignment by
Edwards. The assignment, I find , was definite ; whether the
pickup had to be made was at first left open.
Hughes and Fariss were free to leave on the trip at any
time and, if really concerned with getting back in time to
vote, could have telephoned Edwards while en route later
that day or the 28th , or even the 29th as Hughes did from
Westbury. If this be so , it matters not that Hughes
decided that he would go home, there to await Edwards'
call, and that he so told Edwards. The latter testified
without contradiction that he leaves it to the drivers to
decide when to depart on trips. The dual assignment
made, the responsibility for making the trip and starting
on time was the drivers'.
Having found that Hughes and Fariss could have left
many hours before they did, I further note their log
records and reject Hughes' admittedly unreasonable
explanation , which I do not credit . These records indicate
a layover of 31 hours at Westbury. Aside from any
charitable aspect in accepting the logs prepared by Hughes
and Fariss as required by regulations , they can be deemed
objectively reliable - or should we accept an oral
contradiction on the basis of alleged unreliability of such
records?
According to the logs and to Edwards , who relied on
them, the men arrived in Westbury at 2 a.m. on August
29 and were off duty a total of 31 hours. Whether 31
hours or not, they had plenty of time. Clearly, had they
taken less time before leaving for the pier in Brooklyn,
they could have returned to Dalton in time to vote in the
election . Their delay in returning is not chargeable to the
Company. Indeed, had they left Westbury earlier, it would
WORLD CARPETS, INC.
not have been necessary to make the telephone call to
someone in Brooklyn for permission to load the
machinery after 3 p.m. Even with the misunderstanding
and loss of considerable time as Hughes made calls to
Edwards in Dalton and several attempts to • reach "the
man" in Brooklyn , the drivers arrived at the pier
"around" 3 o'clock according to Fariss (perhaps before
the hour since they did get past the guardhouse).
Quite as clearly, had Hughes and Fariss left Dalton
earlier , as they could have, they would have made the
Brooklyn pickup in time to return and vote in the election.
Whether we rely on log entries which show a layover of 31
hours" in Westbury , or on the arrival time shown as 2
a.m. on August 29, which would suggest that the drivers
were there some 12 hours since we were told in detail of
their departure about 2 p.m., the testimony is such that it
can most charitably be called unreliable.
At one point , the General Counsel as charitably does
not insist that the oral testimony concerning arrival time
in Westbury must be credited . I shall therefore say only
that I do not credit that oral testimony . But in accepting
the departure time from Westbury as testified to, we must
not overlook the fact that , but for the prior layover, there
would have been no problem concerning the machinery
pickup . I do not credit the testimony that only 2 to 2 1/2
hours were spent in Westbury.
Nor do I accept the General Counsel ' s argument that,
having allegedly falsified the logs, Hughes "at great
personal risk" now "admitted" their inaccuracy. He had
every motive to claim late arrival in Westbury (if the
reason for late arrival were overlooked ) to support the
claim that the fault was the Company ' s. (Now the risk is
indeed Hughes' as the General Counsel - even if he did
not anticipate the denouement when he questioned Hughes
concerning the logs - belabors the point with a reference
to Hughes' "risk of admitting violation of the law ....")
It is at least as easy to believe that falsification occurred
in the efforts made to prevail in this case as that it
characterized the logs which were prepared in the face of
the declared desire to return early . It was contrary to the
drivers ' interest in an early return to prepare logs which
showed an unnecessary and inordinately long layover.
The Company did not prompt any delay in starting on
the trip or en route . The assignment was lawfully made,
and it was not the Company's responsibility thereafter to
police the departure or to monitor the trip so that,
whatever Hughes and Fariss did before or after they left
Dalton , it could be looked to as guarantor of an early
return . I find and conclude that this allegation of
interference has not been proved.
It is not by hindsight that this after-the-event decision is
made that the deliveries , pickup , and return could have
been effected in plenty of time . We have here followed the
various steps and seen that the time actually required
supports the Company 's judgment and lawful action in
dispatching the truck on August 27. Unlike this analysis,
however , that judgment was not ex post facto, but was
based on experience and expert knowledge; it was
vindicated by the subsequent events. If an employer's
activity must be limited insofar as dispatching drivers is
concerned , there is no warrant for attacking a reasonable
limitation or for finding that it must be unreasonably
extended . Although Hughes testified that , while he was
not paid for the pickup , he did not mind and did not try
"It was not clear to me at the trial that the 31 hours listed included time
after the drivers had evidently (if it be not reckless to use that word in the
light of such testimony ) left Westbury and had arrived in Brooklyn.
961
to get out of it, one could fairly conclude that he delayed
willfully in or before he arrived at Westbury since the
time sequence testified to suggests further that , despite the
earlier procrastination , he could have reached the pier well
before the 3 p.m. deadline had he been minded to and had
he not spent time for the various telephone calls.
Somewhere it may be noted that Hughes' alleged
concern over getting back in time to vote was in marked
contrast to his complacency in waiting Edwards ' telephone
call on the 27th and leaving 1-1/2, 5, or 8 hours later than
he could have left. Similar contrast is provided by the
long layover en route and Hughes' telephone calls on the
29th in which he told Edwards and repeated, "You know
that we want to be back" for the election. The apparent
concern, prior to completion of the Westbury delivery,
over the time factor and the need to make the pickup is
compatible with realization that there was plenty of time.
Nowhere does it appear that, even with the late departure,
the trip could not have been completed before the election.
C. The Alleged Violation of Section 8(aX5)
I find and conclude that , as found in the representation
proceeding and herein alleged , the following is an
appropriate unit within the meaning of Section 9(b) of the
Act:
All truckdrivers , including the spotter, employed at the
Company' s Dalton , Georgia, plant, but excluding the
mechanics and all other employees , guards, and
supervisors as defined in the Act.
There were 32 employees in the unit on June 1, 1968.
Twenty-two signed union authorization cards , most of
them on June 1 and the last on June 9. Despite leading
questions directed toward denial of the validity of the
cards, the designations were valid . Indeed, checkoff
authorizations and assignments were executed at or before
the time when cards were signed , Henry, a company
witness testifying that he signed the latter on June 1 as a
paper to get the majority of the drivers . (Some statements
allegedly made and elicited at the trial to destroy the
validity of the cards were made while or after they were
signed .) Certainly checkoff authorizations contemplate (I
refer to the documents themselves and intent as indicated
by them ) membership in the Union (as do the signed
cards), not a request for election.
Were we to emphasize an alleged statement that a
purpose in signing a card was to have an election
"because it didn ' t look like we would get a raise from the
Company"; ignore driver Reynolds' further testimony that
the cards were good for a year, within which period they
could call off the election or "get the company to give
[the men ] a raise"; and overlook leading by counsel, we
could invalidate the card signed by Reynolds.
As has been noted , elements of unreliability appear in
the testimony of witnesses for each side; but the testimony
as a whole and from all leaves little doubt concerning the
findings to be made . For example , Henry , who testified in
response to a leading question that Test ,' 2 the Union's
business agent , told the men that the cards didn't mean
anything until they had an election ," had earlier testified,
also in response to a leading question , that concerning
"[t]he purpose of the cards , we wanted a union ." Because
of the very evident disregard for the truth in what he
"Test told us that there was no meeting as testified to by Henry.
"this does not negate an application for membership and designation of
representative , dependent on the election result.
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allegedly recalled and did not recall, and his patently
evasive manner, I am led to cite the witness Russell who
would impel to an acceptance of the opposite of what he
told us.
With respect to the other drivers who signed cards but
testified to their limited effect, Peden testified that he was
called to Hughes' house "to sign an application," and that
he went and did sign the application and also a checkoff
authorization. I do not credit Peden's picture of extreme
casualness in signing the documents without reading them
or even the large print. I credit employee H. F. Farmer's
and Hughes' testimony concerning examination of the
cards and what was said.
Aside from the question whether anything was said
concerning an election when driver Edmondson signed his
card, he claimed only that he was told that a certain
percentage was needed for an election and that he would
be under no obligation to vote either way. If this could be
construed as a disclaimer of authorization, the card and
Edmondson's action in filling it out and signing it are
more convincing. As for Poteet, called by the Company to
testify concerning his card, nothing that he said impaired
its validity.
Despite my finding with respect to the assignment of
Hughes and Fariss on August 27, 1 find from the
testimony pro and con and from my observation of these
witnesses, all of them literate, that Hughes' testimony
concerning the various cards is credible and reliable.
Under detailed questioning, his answers with respect to
the cards were straightforward, consistent, and equally
detailed.
Analysis of all of the testimony concerning the cards,
made both as it was received and since, indicates their
validity and sufficiency. I find and conclude that a
majority of the employees in the unit executed valid
designations of the Union as their collective-bargaining
representative.
Also before us is the issue of request by the Union and
refusal by the Company to bargain. By letter dated June 3
the Union notified the Company that it represented a
majority of the Dalton employees "including
Over-the-Road Drivers," and requested recognition and
bargaining. The Company replied on June 10, questioning
the Union's claim of majority and suggesting a
Board-conducted election. On June 11 the Union
corrected its earlier claim, now stating that it represented
a majority of the over-the-road drivers; it also declared
that it was petitioning the Board for an election.
There is no inconsistency between a request for
recognition and the filing of a petition for an election. The
second letter, for correction, did not nullify or withdraw
the request for recognition. That request was a continuing
one, as was again made manifest in the complaint and at
the trial; maintaining that the Union lacked a majority in
an appropriate unit, the Company refused and has
continued to refuse recognition. Demand and refusal are
established; I so find and conclude.
The Regional Director, sustained by the Board, has
found that there is no separate classification of
over-the-road drivers. He grouped all of the truckdrivers,
as noted above, and included the spotter. Aside from the
reasons which he declared and his decision to include the
spotter in the unit of truckdrivers, outright addition of
that employee to the unit would not constitute a
substantial variance so as to vitiate the request and justify
the refusal.
We come now to the question of remedy for the refusal
to bargain. It has been found that the Company on June
15 and August 26 made threats in connection with
unionization ; that it bargained directly with its employees
on August 24 and 25; and that on August 26, shortly
before the election, it campaigned with promises. Were
our purpose punitive or merely preventive, the Company
would be effectually estopped from complaining about an
order to bargain. But beyond this and aside from any
tendency to interfere, our concern now is with actual
interference and whether it warrants a direction to
bargain: with the rights of employees to be represented or
not, as they prefer. We must consider not only the sins of
the employer but the rights of the employees.
Elsewhere and more than once I have expressed my
concern over an order to bargain where it has not been
sufficiently shown that the employees involved desired the
representation. (The question is, what is "sufficiently
shown," by direct proof or through inference?) In such a
situation, even if the employer, because of its violations
and indicated or inferred bad faith," is estopped from
questioning the union's majority, its acts and bad faith do
not serve to deprive employees of their right to designate
or to refuse to designate a collective- bargaining agent; and
such an agent is not to be imposed upon them or to be
denied them.'s Beyond the question of employer's bad
faith, we should consider actual dissipation of possible
majority and frustration of employees' desires.
If no hard and fast formula can be invoked which could
automatically and conveniently decide the issue in this and
other cases, we can here narrow the focus as we consider
the card majority, the interference, and the tie vote." The
facts clamor for an order to bargain. The Company
maintains that it did not interfere; I have found the
contrary. It cannot reasonably be maintained that the
interference was innocuous . This is not a Hammond &
Irving" situation, where the election tally and the
violations found indicate or warrant the inference that the
latter were not sufficient to have changed the outcome.
The alternative being to ignore the well-established
principle that the interference found may support and
warrant a bargaining order, I am impelled to find that,
but for the Company's last-minute attempts to circumvent
the Union by bargaining directly with the employees, and
its threats and promises, the election would have ended,
not in a tie, but in a majority for the Union: The card
majority in this case is a reliable one and more accurately
represents the employees' choice than does the
postinterference election tally. We may reasonably infer"
from the circumstantial evidence that the interference
influenced some employees - in this case even one to
vote against the Union.
The Company may not, by its violative conduct which
is here directly chargeable to top management, delay or
deny to the employees their right to be represented by the
agent of their choice. The interference found negates any
claim of good-faith doubt of majority, and the
circumstances warrant an order to bargain.
"Joy Silk Mills, Inc, 85 NLRB 1263, enfd as modified on other
grounds 185 F.2d 732 (C.A D.C.), cert. denied 341 U S. 914.
"Cf. Stayer's Johnsonville Meats, Inc, 174 NLRB No 94, where with
seven cards among nine employees , an order to bargain was based on a
great deal of interference , despite a one to seven vote, against the union
"Cf. The Goodyear Tire & Rubber Company 174 NLRB No 167,
where the circumstances included a majority of one , lapse of 6 months, and
turnover in the unit
"Hammond A Irving, Incorporated, 154 NLRB 1071.
"See N L R B v Clement Brothers Company, Inc, 407 F 2d 1027
(C.A. 5).
WORLD CARPETS, INC.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law, and upon the entire record in the case,
I recommend that the Company, World Carpets, Inc.,
Dalton , Georgia , its officers , agents , successors, and
assigns , shall:
1. Cease and desist from:
(a) Threatening or promising benefits to employees in
connection with protected concerted activities.
(b) Bargaining directly with employees in the
appropriate bargaining unit.
(c) Refusing to bargain collectively with the Union as
exclusive representative of all employees in the
appropriate unit with respect to rates of pay, hours of
employment , or other conditions of employment.
(d) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request , recognize and bargain collectively
with the Union as the exclusive representative of the
employees in the appropriate unit, and embody in a signed
agreement any understanding reached.
(b) Post at its place of business in Dalton , Georgia,
copies of the attached notice marked "Appendix.""
Copies of said notice , on forms provided by the Regional
Director for Region 10, shall be posted by the Company,
after being duly signed by its representative, immediately
upon receipt thereof , and be maintained by it for 60
consecutive days thereafter , in conspicuous places,
including all places where notices to its employees are
customarily posted . Reasonable steps shall be taken by the
Company to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 10, in
writing , within 20 days from the receipt of this Decision,
what steps have been taken to comply herewith.''
I FURTHER RECOMMEND that the complaint be dismissed
insofar as it alleges violation of Section 8(aX3) of the Act.
I FURTHER RECOMMEND that the election in Case
10-RC-7450 be set aside and the petition dismissed."
"In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board ' s Order is enforced by a decree of a United States
Court of Appeals , the words "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order."
"In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 10 , in writing , within 10 days from the date of this Order, what
steps Respondent has taken to comply herewith."
"Ruling on the objections to election (the second and third objections
having been sustained and the first overruled , above) thus becomes
immaterial.
963
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended , we hereby notify our
employees that:
WE WILL NOT threaten or promise benefits to
employees in connection with protected concerted
activities.
WE WILL NOT bargain directly with employees in the
appropriate bargaining unit.
WE WILL NOT in any like or related manner interfere
with , restrain , or coerce our employees in the right to
self-organization , to form labor organizations , to join
or assist Truck Drivers and Helpers, Local 515, affiliate
of the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, or
any other labor organization , to bargain collectively
through representatives of their own choosing, and to
engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities.
WE WILL recognize and bargain , upon request, with
Truck Drivers and Helpers , Local 515, affiliate of the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America , as the exclusive
representative of all employees in the bargaining unit
described herein with respect to rates of pay, hours of
employment , or other conditions of employment, and
embody in a signed agreement any understanding
reached . The bargaining unit is:
All truckdrivers , including the spotter , employed at
the Company' s Dalton , Georgia , plant, but excluding
the mechanics and all other employees , guards, and
supervisors as defined in the Act.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of Truck
Drivers and Helpers, Local 515, affiliate of the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, or any other labor
organization.
WORLD CARPETS, INC.
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board ' s Regional Office, 730 Peachtree
Street, NE., Atlanta, Georgia 30308, Telephone
404-526-5760.