Bewley Mills

National Labor Relations Board - Board Decisions

Mar 1, 1955

111 N.L.R.B. 830 (N.L.R.B. 1955)

830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It has been found that the Respondents have refused to bargain collectively with
the Chemical Workers as the exclusive representative of the employees in the ap-
propriate unit described above. It will be recommended that the Respondents bar-
gain collectively , upon request , with the Chemical Workers as the exclusive repre-
sentative of the employees in the appropriate unit and, if any understanding is
reached, embody such understanding in a signed agreement.
The Respondents ' violation of the Act, herein found , are related to other unfair
labor practices proscribed by the Act, and the danger of their commission in the
future is to be anticipated from Respondents ' conduct in the past. The preventive
purposes of the Act will be thwarted unless the remedial order is coextensive with
the threat . In order, therefore , to make effective the interdependent guarantees of
Section 7 of the Act, and to prevent a recurrence of unfair labor practices , it will
be recommended that the respondents cease and desist from infringing in any man-
ner upon rights guaranteed employees by Section 7 of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. Morris Seidmon , Goldie Seidmon , Harry Henkin and Leonard Seidmon,
d/b/a Southwester Co., are, and at all times relevant herein were, engaged in com-
merce within the meaning of Section 2 (6) and (7) of the Act.
2. International Chemical Workers Union, AFL, on December 18, 1952, was,
and at all times since has been, the exclusive representative of all production and
maintenance employees at the Respondents ' Chicago, Illinois, plant, excluding office
clerical employees , watchmen , professional employees , and supervisors as defined
in the Act, for purposes of collective bargaining within the meaning of Section 9
(a) of the Act.
3. By refusing on and after December 27, 1952, to bargain with the Chemical
Workers as the exclusive representative of the employees in the appropriate unit,
the Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (5) of the Act.
4. By discriminating in regard to the hire and tenure of employment of Hans
Eelmae and Lembit Piiroja to discourage membership in the Chemical Workers,
the Respondents have engaged in and are engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
5. By interfering with, restraining , and coercing their employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in
and are engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
7. The Respondents have not engaged in any unfair labor practices by reason
of the termination of employment of Endel Torim, Karl Aavik, and Walter Reinaru;
by reason of furnishing employees food and beverages on March 9 and 10, 1953;
and by reason of alleged defacement of election posters.
[Recommendations omitted from publication.]
BEWLEY MILLS and GENERAL DRIVERS, WAREHOUSEMEN & HELPERS OF
AMERICA, LOCAL UNION 968, AFL. Case No. 39-CA-389. March
1, 1955
Decision and Order
On November 8, 1954, Trial Examiner John H. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the In-
termediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report.
111 NLRB No. 137.
BE«TLEY MILLS 831
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 Inter-
mediate Report, the exceptions, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner with the following additions.
We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (5) and (1) of the Act. The facts upon which this
finding is based are not in dispute. Briefly, they show that the Re-
spondent delayed almost 7 weeks before submitting a counterproposal
to the Union; that, contrary to a promise made at the initial bargain-
ing conference, the Respondent designated as its bargaining repre-
sentative an individual who had no authority to negotiate a contract,
in fact had so little authority he could not give a copy of written
counterproposals to the Union without receiving the advance ap-
proval of the Respondent's top officials; that, despite repeated requests
therefor, the Respondent failed for about 4 months either to give its
designated negotiator authority to negotiate a contract or to name
another individual with such authority; that, after the negotiator was
finally given the requisite authority and had negotiated a contract
which was reduced to writing, the Respondent for the first time, after
almost 5 months of negotiations, requested that the unit be modified
and that the Union's International and the American Federation of
Labor be made parties to the agreement, although neither had been
certified as bargaining representative, and thereafter refused to sign
the contract. Finally, when, after the General Counsel had issued his
complaint, the Respondent's president and its general counsel met
with the Union's representative to continue negotiations and the latter
expressed his understanding that an agreement had been reached and
that only the signing remained to be accomplished, the Respondent's
attorney replied that no agreement whatsoever had been made and
proceeded to discuss the proposed contract article by article. In short,
after 6 months of negotiations, the Union was confronted with a de-
mand that it begin negotiations de novo. We find that the Union was
justified in not pursuing negotiations any further, because the entire
pattern of those negotiations shows that the Respondent approached
the bargaining table not "with an open mind and purpose to reach an
agreement," l but rather with an intention to protract the negotiations
until they collapsed. Accordingly, we find that the Respondent did
not bargain in good faith with the Union and that it thereby violated
Section 8 (a) (5) and (1) of the Act.2
1 Majure Tt anspoi t Co. v. N. L. R. B, 198 F 2d 735, 739 (C. A. 5)
N L. R B v. The International Furniture Co, 212 F. 2d 431, 433-4 (C A. 5). In
reaching the conclusion that the Respondent did not bargain in good faith , we have con-
sidered as a factor , but not the sole factor, the lack of authority possessed by the Re-
spondent 's negotiator , Haas. Cf. Lloyd A. Fig Roofing Co . v. N. L. R. B., 216 F 2d. 273
(C A 9).
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Bewley Mills, Fort Worth
and Houston, Texas, its officers, agents, successors, and assigns, shall :
1. Cease and desist from refusing to bargain collectively in good
faith with General Drivers, Warehousemen & Helpers of America,
Local Union 968, AFL, as the exclusive representative of all employees
in the appropriate unit in respect to rates of pay, wages, hours of
employment, or other conditions of employment.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with the aforesaid Union,
as the exclusive representative of all employees in said unit with
respect to rates of pay, wages, hours of employment, or other condi-
tions of employment and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its place of business in Houston, Texas, copies of the
notice attached to the Intermediate Report and marked "Appendix
A." 3 Copies of said notice, to be furnished by the Regional Director
for the Sixteenth Region, shall, after being duly signed by the Re-
spondent, be posted by it immediately upon receipt thereof and main-
tained 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 Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for the Sixteenth Region in
writing, within ten (10) days from the date of this Order, what steps
it has taken to comply herewith.
s This notice shall be amended by substituting for the words "The Recommendations of
a Trial Examiner ," the words "A Decision and Order ." In the event that this Order is
enforced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals , Enforcing an Order "
Intermediate Report
STATEMENT OF THE CASE
Upon a charge duly filed by General Drivers , Warehousemen & Helpers of
America, Local Union 968, AFL , herein called the Union , the General Counsel of
the National Labor Relations Board , by the Acting Regional Director for the Six-
teenth Region ( Fort Worth , Texas ), issued a complaint dated June 11, 1954 , against
Bewley Mills , herein called the Respondent, alleging that the Respondent had engaged
in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1)
and (5 ) and Section 2 (6) and (7) of the National Labor Relations Act, as amended,
herein called the Act.
With respect to the unfair labor practices , the complaint alleges that on or about
December 1, 1953, and at all times thereafter, the Respondent refused to bargain
BEWLEY MILLS 833
collectively with the Union as the exclusive representative of its employees in an
appropriate unit.
On about June 17, 1954, the Respondent filed an answer in which it admitted the
jurisdictional allegations of the complaint in part, but denied the commission of
any unfair labor practices.
Pursuant to notice, a hearing was held on July 27, 1954, at Houston, Texas,
before a duly designated Trial Examiner. The General Counsel and the Respondent
were represented by counsel, and the Union by its representative. At the start of
the hearing the General Counsel moved to amend the complaint. The motion was
granted without objection. At the close of the case, the General Counsel moved
to conform the pleadings to the proof as to names, dates, and other minor variances.
The Respondent joined in the motion. The motion was granted. The Respondent
moved to dismiss the complaint. Ruling was reserved. The motion to dismiss is
disposed of as hereinafter indicated. After the hearing, the General Counsel and
the Respondent filed briefs with the Trial Examiner.
Upon the entire record in the case and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation organized under and existing by virtue of the
laws of the State of Texas. It has its general offices and a processing plant in Fort
Worth, Texas, where it is engaged in the processing of grain into flour, corn meal,
and other allied feed products. It maintains warehouses in Dallas, Waco, San
Antonio, Harlingen, Corpus Christi, and Houston, Texas, and in New Orleans,
Louisiana. This proceeding is concerned only with the Respondent's warehouse
located at Houston.
During the period of 12 months before the date of the complaint, grain having
a value in excess of $1,000,000 was shipped in interstate commerce to Respondent's
Fort Worth plant. During the same period of time, the Respondent shipped from
its Fort Worth plant to points outside of Texas flour, corn meal, and allied feed
products having a value in excess of $1,000,000. All of Respondent's sales from
its Houston warehouse are made and delivered to customers located within the
State of Texas.
It is found that the Respondent is engaged in interstate commerce within the
meaning of the Act.
II. THE ORGANIZATION INVOLVED
General Drivers, Warehousemen & Helpers of America, Local Union 968, AFL, is a
labor organization which admits to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The appropriate unit and representation of a majority therein
The complaint alleges that "all employees of respondent employed at its Houston,
Texas, warehouse, exclusive of office clerical employees, guards, watchmen, and
supervisory employees," constitute a unit appropriate for the purposes of collective
bargaining. The Respondent's answer denies this allegation. The complaint alleges
and the answer admits that on or about October 9, 1953, a majority of the employees
in the above unit designated or selected the Union as their representative for the
purposes of collective bargaining. At the hearing the parties stipulated that on
October 19, 1953, the Board certified the Union as collective-bargaining representa-
tive of the employees in the unit described in the complaint. At the hearing herein
the Respondent adduced no evidence which showed or tended to show the unit alleged
in the complaint to be inappropriate.
I find that all employees of Respondent employed at its Houston, Texas, warehouse,
exclusive of office clerical employees, guards, watchmen, and supervisory employees,
constitute a unit appropriate for collective bargaining within the meaning of the
Act; and that on and after October 9, 1953, the Union represented a majority of
the employees in said unit for the purposes of collective bargaining.
B. The negotiations
Shortly before December 19, 1953, the Union requested the Respondent for a
bargaining conference. A conference lasting several hours was held in Houston on
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
December 19. Almond Smith, the Union's business agent, and Kenneth Word rep-
resented the Union at the meeting. The Respondent was represented by Mr. Bomar,
its president, Mr. Haas, manager of the Houston warehouse, and J. A. Gooch, its
general counsel. -At the start of the meeting, the Respondent's representatives in-
formed the Union that after the first conference the negotiations "would have to be
carried on by Mr. Haas, who had authority to negotiate a contract . subject,
however, to the proviso, that any agreement reached by Mr. Haas on behalf of
Bewley Mills would have to be submitted to the Board of Directors of Bewley
Mills for approval or rejection before it became a binding contract." The Union's
representatives at the same time informed the Respondent that any agreements
reached would be subject to the approval of the union members involved. The par-
ties then discussed the proposed contract submitted by the Union, and tentatively
agreed to a number of its provisions. The Respondent stated that it would submit
a counterproposal, but no date was agreed upon for the next meeting.
During January 1954, Smith called Haas "once or twice a week" in an attempt
to arrange another meeting. Each time Haas told him that the Forth Worth office
had not sent him the Respondents' counterproposal. On January 28, 1954, the
Union filed a charge with the Board, alleging that the Respondent had refused to
bargain. Thereafter, and on about February 8, Haas met with Smith at the Union's
hall. Concerning this meeting Smith was questioned and testified credibly and with-
out contradiction as follows:
Q. All right.
Will you tell us as well as you can remember what transpired at that meeting?
A. Yes, sir.
Mr. Haas come in and we started talking on the contract, and I asked if he
had his counter-proposal and he told me yes, so he got his counter-proposal
out, and read it off to us, what it was, and everything. And he didn't-it was
just out of line with our thinking, so we couldn't agree on that, and I asked him
about changing some of it, and he couldn't-he said he couldn't vary from that
counter-proposal any, that that is what he got out of Fort Worth, and that is
what he would have to go by, so I told him we couldn't negotiate a contract
on that; that he'd have to get somebody who had authority to change it.
Q. Did you ask Mr. Haas what authority he had to change that contract?
A. Yeah, I asked him if he had authority to negotiate the contract. He
said yeah. Then, he tells me he couldn't vary from that counter-proposal he had.
Q. I see.
Did you ask Mr. Haas for a copy of counter-proposal?
A. Yes, sir.
Q. Did he give you a copy?
A. No, sir.
Q. Did he tell you why he couldn't give you a copy?
A. He said he couldn't give it to me.
Q. Did he tell you why?
A. Yes, he told me he couldn't give it to me until he found out from Fort
Worth it would be all right for him to give it to me.
Smith sent Haas the following letter, dated February 24, 1954:
DEAR StR: Some three (3) weeks ago we met with you in an attempt to ne-
gotiate a contract, and you advised us that you had no authority to make any
concession beyond the counter proposal.
We advised you at that time we wanted someone in here immediately with
authority to negotiate this contract. You advised us this would be done imme-
diately but as to this date we have heard nothing concerning this matter.
Please advise immediately.
At Smith's request, Haas again met with Smith at the Union's hall on about
March 1. He told Smith that he did not have authority to change any of the pro-
visions of the Respondent's counterproposal. Smith replied to the effect that the
meeting would serve no useful purpose under the circumstances, and requested that
the Respondent send someone from Fort Worth who had authority to negotiate a
contract. Haas answered that no one would be sent from Fort Worth and that he
himself was going to negotiate the contract. _
At Smith's request, another meeting was held between Smith and Haas at the
Respondent's office-on about March 15. Hass' secretary was present and took notes
of the meeting. Haas agreed to supply Smith with a copy of the notes when they
were reduced to writing. Haas again stated that he did not have authority to de-
viate from the Respondent's counterproposal, but agreed to send proposed changes
to Fort Worth for approval . Some 3 or 4 days after the meeting Smith asked Haas
BEWLEY MILLS 835
for a copy of the notes. Haas refused, saying that the Fort Worth office had advised
him against it
Smith and Haas had several meetings during April and May at the latter's office.
They reached agreement on the terms of the contract at one of these meetings,
including a general wage increase of 10 cents per hour. Smith reduced the contract
to writing and gave Haas three copies.' At about the end of May, Haas met with
Smith and informed him that he could not sign the contract as the Fort Worth
office wanted some changes made. He told Smith that the Respondent wanted
salesmen excluded from the unit, and that the International Union and the American
Federation of Labor should be made parties to the contract. Smith agreed to elimi-
nate salesmen from the unit, but stated that he could not agree to the other change.
Haas then told Smith that the Fort Worth office would not let him sign the contract
at that time. No arrangements were made for another meeting.
On June 18, 1954, Haas called Frank Mercer, the Union's vice president and
business representative, and asked him to meet the following day with Bomar and
Gooch.2 As requested, Mercer met with Haas, Gooch, and Bomar at the Respond-
ent's office. Mercer stated that he had been informed that all articles of the contract
had been agreed upon, and asked the Respondent's representatives if they were ready
to sign it. Gooch replied that Mercer's information was wrong and that there had
been no agreement whatsoever. The parties then discussed the contract's articles,
with Gooch pointing out the clauses to which the Respondent would agree. Gooch
stated that he would like to have the International Union and the American Federa-
tion of Labor as parties to the contract, but did not press the subject further after
Mercer stated that the Union could not agree to this demand. Mercer then agreed
to a number of changes in the contract which were asked for by the Respondent.
The parties were unable to agree on a number of issues, including hours of work,
holiday pay, vacations, and wages. The Respondent did not offer the wage increase
which previously had been agreed to by Haas, and it appears that Mercer did not
mention it. Mercer told the Respondent's representatives that he would report their
demands for changes in the contract to the Union, and that he would advise them
of the Union's attitude. The Union thereafter did not notify .the Respondent of its
position on the proposed changes in the contract, or otherwise attempt to bargain
with the Respondent.
C. Conclusions
It is found that the Respondent failed to bargain in good faith with the Union.
The record conclusively shows that the Respondent engaged in dilatory tactics after
the first bargaining conference Further, the record discloses that Haas was nothing
more than a messenger between the Union's representative and the Fort Worth
office. It does not appear that he had any authority to engage in give-and-take
bargaining, except possibly during his last few meetings with Smith. On every issue
raised, however minor, he had to get the approval of the Fort Worth office before
giving an answer to Smith. Smith protested this procedure orally and by his letter
to Haas on February 24. Despite these protests, Haas alone represented the Re-
spondent during the negotiations until the final meeting on June 19.
In its brief, the Respondent points out that it made counterproposals at the final
meeting, that the union representative stated that he would notify the Respondent of
the Union's position on the proposals, and that the Respondent did not hear from
the Union thereafter. In effect, the Respondent contends that the Union was not
diligent in its efforts to bargain with the Respondent 3 This contention is rejected.
The uncontradicted testimony of Smith shows that he and Haas reached full agree-
ment on all issues, including wages, at the next to the last meeting between them.
At their final meeting, Haas stated that the Fort Worth office would not let him
sign the contract, and for the first time presented demands that salesmen be excluded
from the unit and that the International Union and the American Federation of
Labor be made parties to the contract. As related above, Smith accepted the former
but rejected the latter. That this was not a bona fide impasse is shown by reason
of the fact that Gooch dropped the issue at the final meeting. Finally, at this meeting
the Respondent repudiated the agreements reached between Haas and Smith. After
months of bargaining, it appears that the parties were no nearer to consummating a
contract than they were at the beginning, although the Union had acceded to many
of the Respondent's demands in an attempt to reach agreement. Under the circum-
1 The spaces provided for wage rates for the various classifications and for the dates of
the contract term were left blank
Smith no longer was in the Union's employ at this time.
J. B Wood, an Individual, d/b/a Wood Manufacturing Company, et at, 95 NLRB 633.
344056-55-vol 111-54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stances, I believe that it would have been futile for the Union to have continued
the negotiations further.
For the above reasons I find that the Respondent failed and refused to bargain
with the Union within the meaning of Section 8 (a) (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in con-
nection with its business operations described in section I, above, have a close, inti-
mate, and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow thereof.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. General Drivers, Warehousemen & Helpers of America, Local Union 968,
AFL, is a labor organization within the meaning of Section 2 (5) of the Act.
2. All employees of Respondent employed at its Houston, Texas, warehouse, ex-
clusive of office clerical employees, guards, watchmen, and supervisory employees,
constitute a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
3. The Union was on about October 9, 1953, and at all times thereafter has been,
and now is, the exclusive representative of all employees in the aforesaid unit for
the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act.
4. By failing and -refusing to bargain collectively with the Union on and after
December 19, 1953, as the exclusive representative of its employees in the afore-
said unit, the Respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (a) (5) of the Act.
5. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed by 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.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our employees that:
We will bargain collectively upon request with General Drivers, Warehouse-
men & Helpers of America, Local Union 968, AFL, as the exclusive represen-
tative of all employees in the bargaining unit described herein with respect to
rates of pay, wages, hours of employment, or other conditions of employment
and, if an understanding is reached, embody such understanding in a signed
agreement . The bargaining unit is:
All employees at our Houston, Texas, warehouse, exclusive of office clerical
employees, guards, watchmen, and supervisory employees.
BEWLEY MILLS,
Employer.
Dated- --------------- By----------------------------------------------(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date hereof,
and must not be altered , defaced , or covered by any other material.