Cotter & Co.

National Labor Relations Board - Board Decisions

Sep 26, 1985

276 N.L.R.B. 714 (N.L.R.B. 1985)

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cotter & Company and General Drivers, Ware-
housemen and Helpers Local Union 745, affili-
ated with International Brotherhood of Team-
sters, Chauffeurs , Warenousemen and Helpers
of America . Cases 16-CA-10873 and 16-CA-
10929
26 September 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 28 September 1984 Administrative Law
Judge Robert A. Gritta issued the attached deci-
sion. The General Counsel, the Charging Party,
and the Respondent filed exceptions and supporting
briefs, and the Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative
law judge is ' adopted and the complaint is dis-
missed.
I The General Counsel and the Charging Party have excepted to some
of the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
The judge characterized the General Counsel's contentions regarding
the Respondent's refusal to transfer employees to its new facility in Cor-
sicana , Texas, - and its change to a lease-driver arrangement for trucking
operations at the Corsicana facility as attempts to raise 8 (a)(5) issues that
were not alleged in the complaint We understand the General Counsel's
contentions on these matters to be that the Respondent's actions consti-
tuted discrimination within the meaning of Sec 8(a)(3) of the Act
Whether or not these contentions were within the scope of the com-
plaint, we find that under either an 8(a)(5) or an 8(a)(3) theory the evi-
dence here fails to establish a violation of the Act
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (Teamsters or the Union) on
January 26 and February 23, 1983, and a consolidated
complaint issued by the Regional Director for the
Region 16 of the National Labor Relations Board on
August 11, 1983.1 The' complaint alleges that Cotter &
Company (Cotter or Respondent) violated Section
8(a)(1), (3), and (5) of the Act by discouraging employee
transfers from its closed facility in Dallas, Texas, to its
new facility in Corsicana, Texas, and by refusing to bar-
gain in good faith over the effects of the relocation. Re-
spondent's timely answer denies the commission of any
unfair labor practices.
All parties hereto were afforded full opportunity to be
heard, to examine and cross-examine witnesses, to intro-
duce evidence, and to argue orally. Briefs were submit-
ted by the General Counsel and Respondent. The Gener-
al Counsel filed a somewhat unorthodox brief in that it
contained 78 interrogatories addressed to me. In foot-
notes the General Counsel did address the record evi-
dence and offer an evaluation of testimony and exhibits.
The General Counsel ended her brief with conclusions to
be drawn from the evidence. However, included within
the interrogatories, footnotes, and conclusions are argu-
ments on issues specifically precluded by his complaint
and my rulings at the trial. Also included are misstate-
ments of the law directed at issues not in this case as
well as issues raised by the General Counsel's complaint.
I will not attempt to answer the General Counsel's inter-
rogatories nor consider arguments of fact and law which
are directed to issues not raised by the General Counsel's
complaint albeit I will point out certain aspects of the
General Counsel's brief as they relate to a better under-
standing of this decision. I will consider, for decisional
purposes, all arguments of fact and law dealing with the
issues raised by the General Counsel's complaint. To do
otherwise would unduly protract the length of this deci-
sion and possibly result in an unwarranted confusion of
the case.
On the entire record in this case and from my observa-
tion of the witnesses and their demeanor on the witness
stand, and on substantive, reliable evidence considered
along with the consistency and inherent probability of
testimony, I make the following
FINDINGS OF FACT
Norman W. Eckhardt, Esq., and Olivia Garcia, Esq., Fort
Worth, Texas, for the General Counsel.
Hershell L. Barnes, Jr., Esq., and Kathryn C Mallory, Esq.
(Haynes & Boone), Dallas, Texas, for the Respondent.
James S. Prda, Dallas, Texas, for the Charging Party
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, Administrative Law Judge. This
case was tried before me on September 19-23 and 28-30,
and October 3-4, 1983, in Dallas , Texas, based on
charges filed by General Drivers, Warehousemen and
Helpers Local Union 745, affiliated with International
1. JURISDICTION-STATUS OF LABOR
ORGANIZATION-PRELIMINARY CONCLUSIONS OF
LAW
The complaint alleges, Respondent admits, and I find
that Cotter & Company is a Delaware corporation en-
gaged in the manufacture and wholesale distribution of
hardware and related items in Dallas, Texas. Jurisdiction
is not an issue. Cotter & Company, in the past 12
months, in the course and conduct of its business oper-
ations purchased and received at its Dallas facility goods
and materials valued in excess of $50,000 directly from
points located outside the State of Texas. I conclude and
I All dates herein are in 1983 unless otherwise specified
276 NLRB No. 75
COTTER & CO
find that Cotter & Company is an employer engaged in
commerce and in operations affecting commerce within"-
the meaning of Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and 'I con-
clude and find that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
II BACKGROUND AND RULING ON MOTION TO DEFER
Cotter is a cooperative owned by the -members who
are independent hardware dealers. The member-owners
operate hardware companies under the banner True
Value Hardware. Each member store is supplied with in-
ventory from one of 11 distribution centers such as the
Dallas facility involved herein. The distribution centers
are located throughout the country and all except one
are organized by a union. The Teamsters 'are present in
all centers except one and service in total 14 collective-
bargaining agreements. - In addition other labor organiza-
tions are under contract to Cotter. -
Most contracts include a recognition clause which
limits the jurisdiction of the contract to a radius of miles.
The clauses were designed to make the recognition and
the contract effective if a- center was closed and re-
opened within the stated radius. In the.event the stated
radius was exceeded, the recognition 'and contract were
null and void. In recent years several centers have been
closed and reopened, both within and without the stated
radius. With respect to those reopened within the stated
radius, the Union and contract moved to the new loca-
tion. Where the stated radius was exceeded, the new lo-
cation operated without union representation unless and -
until a union gained majority status among the employ-
ees.
The Dallas facility under scrutiny here has a 50-mile
radius clause in its -contract. The new location, Corsi-
cana , is in excess of 50 miles from the former location in
Dallas. Thus the stated radius has been exceeded. Not-
withstanding the contract language, the Teamsters filed
an unfair labor practice charge against Cotter for refusal
to bargain in good faith concerning the move of the
center to Corsicana. The 'Teamsters shortly thereafter
filed a grievance contending that Cotter's refusal to con-
tinue recognizing the Teamsters at Corsicana and refus-
ing to 'apply the extant contract to the Corsicana facility
violated the existing collective-bargaining contract. Ad-
ditionally, Cotter's refusal • to allow employees to auto-
matically transfer from Dallas to the Corsicana facility
was 'grieved as a violation of the seniority provision of
the Dallas contract. A second unfair labor practice
charge was filed against Cotter. Throughout the griev-
ance Cotter maintained that it was not obligated by
either statute or contract to recognize the Teamsters in
Corsicana or give any continuing effect to the Dallas
contract. -
The grievance was heard, on an expedited basis, while
the unfair labor practice • charges vacilated in administra-
tive procedures The arbitrator found no contract viola-
tion by Cotter and, therefore, his award denied the
grievance. -
'Following the arbitrator's award a consolidated com-
plaint against Cotter was issued by the Board's Regional
Office and on Septembers 19 the unfair labor practices
715
went to trial . At' the outset of the, trial Cotter moved to
defer the issues raised by the several complaints to the
prior arbitration proceeding pursuant to the Board's
policy enunciated in several' cases2 and to dismiss the
consolidated complaint I denied the motion to defer and
heard the evidence of the several alleged unfair labor
practices 3
Subsequent to trial and receipt of briefs, wherein Re-
spondent reurged its motion to defer, the Board rendered
its decision in Olin Corp., 268 NLRB 573 (1984), modify-
ing its approach to deferral and further explaining the
standards set forth in Spielberg. Because my trial ruling
had obviated any further argument by the General Coun-
sel and particularly with reference to the new burden of
Olin, I asked for additional briefs-and argument in light
of Olin prior to consideration of Respondent's renewed
motion in its original brief.
After reconsideration of written presentations in the
record and supplemental briefs filed by the General
Counsel and Respondent, I am of the view that Respond-
ent's motion to defer and dismiss the complaints must
again be denied. There is some parallel between the con-
tractual issues decided by the arbitrator and the unfair
labor practice issues framed in the General Counsel's
complaints. However, the General Counsel's complaint
allegations rest on subjective conduct of Respondent, not
the objective language of the contract. The arbitrator
squarely considered- whether Respondent violated the
contract by 'refusing recognition of the Union at, by re-
fusing to give effect to the contract at, and'by refusing
to automatically transfer employees to, the new distribu-
tion center in Corsicana. His decision was based entirely
on the language of the contract. Indeed, the arbitrator
specifically stated, "I only interpret the contract not the
external law." Thus, the arbitrator did not and would not
have considered the unfair labor practice. In addition,
the facts relevant to resolution of the unfair labor prac-
tices were not presented to the arbitrator. It is true that
the arbitrator couched his opinion in terms of "no vile or
insidious conduct" on the part of Respondent but he did
so without'facts presented, either pro or con. It is also
true that the parties to the contract did not contemplate
that unfair labor practice disputes should be resolved by
the contract grievance arbitration machinery because the
contract, though exhaustive in citing various bases for
discrimination, is silent in regard to employees' Section 7
rights as defined in the National' Labor Relations Act.
Further, the General Counsel does not contend that
Respondent must recognize the Teamsters in Corsicana
or that the Dallas contract applies to the Corsicana dis-
tribution center or that Respondent must transfer or hire
Dallas employees at Corsicana, i.e., the General Counsel
accepts the contractual determination that no such oblt-
2 Spielberg Mfg Co, 112 NLRB 1080 (1955 ), Collyer Insulated Wire
Co, 192 NLRB 837 (1971), Suburban Motor Freight, 247 NLRB 146
(1980) '
3 My ruling was based on the written presentations contained in the
record The grievance and the transcript of the arbitration proceeding (R
Exhs 20 and 21 ) offered by Respondent were rejected Based on the
General Counsel's request and my subsequent consideration I reverse my
ruling on receipt of R Exhs 20 and 21 and admit them into the record
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gations exist for Respondent.4 Thus General Counsel's
case does not rest on contractual issues but rather rests
solely on the single statutory obligation imposed on Re-
spondent in these circumstances. Namely, not to dis-
criminate against. its employees or their Union when bar-
gaining upon the effects of moving the Dallas distribu-
tion center to Corsicana. Accordingly, and 'in view of
the above, I reaffirm my trial ruling and deny Respond-
ent's motion to defer to arbitration and to dismiss the
General Counsel's complaint.
III. ISSUES5
The issues Respondent presented are:
A. Whether Respondent, through its supervisors and
agent Bill Tarazewich, interfered with, restrained, and
coerced employees by making several statements to em-
ployees respecting their prospective employment at the
new warehouse location.
B. Whether Respondent discriminated against its em-
ployees by discouraging them from applying for employ-
ment at its new warehouse location.
C. Whether Respondent discriminated against its em-
ployees by refusing to employ them at its new ware-
house location.
D. Whether Respondent unlawfully refused to provide
the Union with requested, information during "effects"
bargaining.
E. Whether Respondent refused to bargain in good
faith concerning the effects of a relocation of its Dallas,
Texas warehouse to Corsicana, Texas.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Statements by Tarazewich
James Fogelman , a driver, testified that he was present
for part of the speech that. Dan Cotter gave to the em-
ployees informing them of the need for a new ware-
house . Cotter told the employees that the Company was
expanding to a variety distribution and increasing the
size of the hardware. The Dallas facility was not big
enough A new facility was to be built in Corsicana. The
Company would not be taking any employees with it but
if everyone worked hard , filled out applications , and the
Company wanted them , the Company would take them.
Fogelman left the meeting at that time while Cotter was
speaking.
On October 7, 1982, Fogelman was, present in the
warehouse and went to Tarazewich 's office. He went in
and closed the door . Fogelman asked Tarazewich what
were his chances of going to Corsicana. Tarazewich said,
"Very slim." He then asked Tarazewich , "Well, if I got
out of the union, what are my chances of going to Corsi-
4 The General Counsel's mutually exclusive use of a disjunctive in
complaint pars 8 and 9 relating to "transfer to" or "employment at its
new warehouse " is singly considered by me as "a discriminatory refusal
to employ " The General Counsel's stated theory is one of motivation,
not an attack on Respondent 's action taken Had the General Counsel ex-
pressed a theory that Respondent was required to transfer or hire em-
ployees at the new location , I would have deferred that issue to the arbi-
tration proceeding and taken no evidence at the teal
5 My statement of the issues emanates from the General Counsel's
complaint and numerous statements of the case theory found in the
record transcript
cana." Tarazewich again said , "Very slim." Fogelman
stated that he asked Tarazewich about getting out of the
Union because he had thought the Company was against
the Union since he heard the Dan Cotter speech. He
wanted to know Tarazewich's feelings about the Union
albeit Tarazewich had never said anything or suggested
anything to Fogelman that would lead him to believe
Tarazewich was opposed to the Union. Fogelman'then
asked, "What would I have to do to get a job at Corsi-
cana?" Tarazewich said that Fogelman would have to
quit Cotter; work at least 3 months for a nonunion com-
pany; and put an application in for Corsicana and he
might be accepted. Fogelman said, "No thank you.
Never mind. Forget it." Fogelman was later told by the
Company that if he accepted employment elsewhere he
could still get severance pay if he gave Cotter 2 weeks'
notice. Fogelman gave the required. notice, got his sever-
ance pay, and began employment with. Union Carbide
the next day.
Carroll J. Wichman testified that he was hired as a
driver at Cotter in June 1973.
In January 1983 Wichman was in the breakroom with
Tarazewich. He asked Tarazewich if he was giving out
applications. Tarazewich responded, "Well, you are not
eligible," turned and walked to the other end of the
building. There was no further conversation: In the fol-
lowing 2 months Wichman heard the other drivers talk-
ing about making application for Corsicana employment.
On two separate occasions during the same 2-month
period he asked for and received a letter of recommenda-
tion and an application for employment. Wichman filled
out the application and tendered it in mid-March. In
April he heard that Cotter was intending to utilize lease
drivers in Corsicana although he did not hear officially
from the Union or the Company. Wichman did not,
prior to making application or subsequent to hearing
about lease-drivers, discuss the situation with his union
steward or his business agent. Wichman did not consider
it necessary for Cotter to contact him with regard to his
application once he heard that Corsicana was to use
lease-drivers but in any event he did not follow up on
the status, of his application. Wichman left Cotter's
employ on May 13.
Harold Dean Tinney testified that he was a driver for
Cotter from May 1975 to May_ 1983. He learned in Octo-
ber 1981 that Cotter was going to close the warehouse in
Dallas and move to-another town. Within days Tinney
asked his dispatcher, Brogdon, if what he had heard was
true Brogdon confirmed the fact and' stated that he
probably would not be dispatching at the new.location.
In February 1982 Tinney received a letter about the pro-
posed move of the warehouse which notified the drivers
not to negatively discuss the move with cooperative
member stores. Tinney stated that no supervisor ever in-
dicated to him that he had a right to apply for a job at
Corsicana but on February ,9 he went to Tarazewich's
office. The transcript testimony of the conversation is as
follows:
A. I went to Mr. Tarrazewich' office.. He was
getting ready to leave the offices for the end of the
COTTER. & CO
day, and I could see he was closing up. He had
been busy.
So, when he started to getting ready to leave that
office, I approached him at his office door, which
was a glass-encased office in the middle of the
room. I asked Mr Tarazewich if Cotter & Compa-
ny was taking applications for truck drivers in Cor-
sicana.
Q.'All right.
A. He replied-I asked him if they was taking
applications, and if so, could I get one.
And he said they were taking applications, I
could have one. Because, he replied, he hadn't had
no problem with me and no reason that I couldn't
have one, see.
But he said, "If your union do not go to- Corsi-
cana." So, I don't understand-
Q. Excuse me. Did he say anything more than
that at that point?
A. He said, "Do not go to Corsicana because you
won't like it down there."
And I said I'd worked, you know, union and
nonunion, and "I don't understand the reason for
working down there without it."
Q. Excuse me. I didn't hear you
A. He told me- '
Q. Well, what did you say, though. I didn't hear
what you said.
A. I told him that I had worked both union and
nonunion and I couldn't understand what the differ-
ence would be.
And he told me because they was going to have
their own set of rules in Corsicana. '
Q. And did you say anything after he said that?
A., I said, "Well, I'd like to stay with Cotter &
Company and keep my seniority."
Q. And could you try to quote him, if you can?
A. He said, "You cannot do that. You got to
start from day one like a new hand in Corsicana."
Q. All right. What, if anything, else was said on
that occasion?
A. I asked him who I had to see and where I
could get this application, and he told me to. see
Judy Craig -
Q. All right. Did you say anything before that
concerning employment? Or, go ahead from where
you are.
A He told me to see Judy Craig, and she'd al-
ready gone for the day.
So, when the first chance I got coming back
from a trip, I go and catch her there, I approach
her and- ask for one. And she gave it to me. Gave
me a letter of 'recommendation from the company
and gave me a card, some type of bonding card.
Q. I'm asking you, though, do you recall any-
thing else that you said during the course of this-
conversation after Mr. Tarazewich - said, "You
cannot do that. You have to start over from day
one as a new hand." Did you say anything immedi-
ately after that?
A. Right now, I can 't recall.
Q. Just try to think.
717
A (By the witness) Let's see. 'He told- -
Q. (By Mr Eckhardt) Don't think out loud if you
can avoid it Just take it easy and try to think'if
you've covered everything that was said in that
conversation. .
(Pause.)
Do you recall anything said shortly before Mr
Tarazewich said-that you could get an application
from Judy Craig?
A. (By the witness) Well, he told me, to'get one
and go ahead and fill it out and turn it in
Q. (By Mr. Eckhardt) Yes, but I'm referring to
something that was said immediately after Mr. Tar-
azewich said, "You cannot do that," meaning you
can't have your seniority, that you have to start,
over "from day one as a new hand."
Did you question that at all? That you'd have to
start over?
See, I don't want to put words in your mouth if
you're able to think. of them yourself, you see.
JUDGE GIUTTA: General Counsel is asking, Mr
Tinney, if you made any response to Mr. Tar-
azewich when he made the statement to you that
you would have to start over as a new hand in Cor-
sicana with no seniority from Dallas.
Do you recall making any response to him when
he made that remark?
THE WITNESS: I've come up with a blank.
[Q. By Mr. Eckhardt] All right. Do you recall if
anything was-said during the course of this conver-
sation concerning present employees-
A. Oh, okay.
Q. Go ahead.
A. I said, "Well, you are going to give the people
that work for Cotter & Company now,. here in
Dallas division, first option," in other words, being
in line , "at a chance at a job in Corsicana "
And he very definitely replied, "Oh, yes."
I was after a seniority position if it was going to
be available.
Q. All right.
Then what was the next thing that you recall that
was said? I think you've probably' covered it, but I
want to get it in sequence -
What happened immediately after he said, "Yes."
A. I asked- him where I could get the-who and
where I could see to get this application because I
had no knowledge of this in the past.
And he informed me to see Judy-to get one
from Judy Craig, to fill it out and turn it in. And I
did this as soon as I could.
In early February, 50 to 60 Cotter employees had a
union -meeting chaired by Business Representatives James
Prda and Michael Kline at the union hall. After a discus-
sion which included Attorney Hicks about the move,
Prda advised all employees present to make application
for work in Corsicana. Later in the month Tinney picked
up an. application from secretary Judy Craig Several
days later he took the completed application back to
Craig and at that time she handed him a letter of recom-
mendation from Cotter. Tinney had not asked for the
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letter nor did' he ask any questions about it after he got
it. At the time, other employees were around her desk
and she had a letter for others as well. Tinney only ap-
plied for driver work at Corsicana and did-not learn that
lease-drivers would be used in Corsicana until May 13,
the last day he worked for Cotter. There had been
rumors among the employees but nothing official.
Tinney has been a -member of Teamsters 745 since
1970 and has 33 years' driving experience. While driving
for Cotter Tinney was never subjected to any adverse
treatment by his supervisor and he was never in the
office to file a grievance.
Alvina Montelongo testified she began employment
with Cotter in-June 1977. She remained employed until
May 13, 1983, and has been a Teamsters member
throughout her employment. Montelongo attended the
October 1981 meeting where Dan Cotter spoke to about
150 employees. Dan Cotter told the group that the Com-
pany would be moving to a new warehouse that was to
be built in Corsicana. He did not know, how long, maybe
a year or two to build it, but he would notify the em-
ployees when it was. going, to be built. Dan Cotter said
he was not going to take anybody with him but Bill Tar-
azewich. The new facility was going to be bigger and
more modernized
In February during a meeting Bill Tarazewich told all
employees they could submit applications to. work in the
new Corsicana facility. In approximately March 1983 all
employees assembled in the lunchroom for a meeting.
Dick Lynn spoke to the group of employees. He said the
Company was processing the move to Corsicana. Monte-
longo testified, "He came and told us that they were
moving, and that we would go-if you want to go to
Corsicana, that you had to start. all over again. He said
the only thing you would carry would be your vacation
and your retirement. I can remember `that you would
have .to start all over.' If you wanted to, you can put in
your application." At some time during this penod the
Union suggested to the employees that those who
wanted to consider going to Corsicana should put in an
application for work at Corsicana.
On March 22 Montelongo filled out an application for
work in Corsicana. At the end of the day she gave it to
Tarazewich in his office. Tarazewich took the applica-
tion ' and thanked ' her. In-'mid-April Montelongo talked
with Tarazewich about her application. The transcript
testimony is as follows:
A. I went into his' office and I said, "Mr. Bill,
may I-Mr. Bill Tarazewich, may I speak to you?"
And he said,."Yes."
Q. Now, -take it kind of slow if you will.
A. Okay. He said, "Yes, ma'am. Come on in and
sit down." So, 'he showed me in his office and he
closed the door".
He said,. "What can •I do for you?" I said, "Mr.
Bill, I put in an application for to work in Corsi-
cana." He said, "Yes, I have received your applica-
tion. I have'it- here." .
He said, "Well, do you know that going to Corsi-
cana, it' will be a different thing." He said, "It will
be a completely different working things like not
here in Dallas."
I said, "Mr. Bill," I said, "What if I-I want to
ask you one thing. If I work-if I'd go six months
or a year from now to Corsicana, would you give
me a job?"
Q. If you what? I couldn't hear you.
A. "If I'd go to Corsicana six months from now
or a year from now, when the place close, would
you give me a job?"
He said, "Yes." He said,."If I had any openings.
you could put in your application and I'll think
about it if I have any openings." And then he said,
"Have you applied anywhere?" I said, "No." I said,
"I've called different places and I've got it in my
mind where to go."
And then he said, "Alvin?" And I said, "Yes,
sir." He said, "Over there, there are not going to be
no classifications of work. They're going to be-
you'll be doing different things. You may be loading
trucks. You might be sweeping floors. You' might
be filling orders."
He said, "It's going. to be a completely different
ballgame than what you're doing here in Dallas."
I said, "Mr. Tarazewich." I said, "You know
what I've been doing all these years?" He said,
"Yes, you've been in relay." I said, "Yes, sir."
He said, "Well, relay is not going to be the same
up there. You're going to have different things up
there." He said, "But I can't guarantee-
Q..You're going-,to have different what?
A. Different ways in relay. He said, "I, can't
promise you that you'd be in relay." And then he
said, "I- have your application here." 'I said, "Yes."
He said, "Would you like to take it back?" I said,
"No, Mr. Bill."
Q. You said, "No, Mr. Bill"?
A. "No, Mr. Bill, I would not. I'd like for you to
keep it."
Q All right. -
A. And then he said, "'It's best for you, you
know. It's going to be hard to get adjusted to differ-
ent ways of production over there. We're going to
be on production with the change."
He said, "We're going to be on production. On
pulling lines, it's not going to be like here in
Dallas." And then I said, "Well, that's what I
wanted to know. I just wanted to know if you had
reviewed my application." And he said, "Yes." And
-he said, "Ms. Montelongo?" And I said, "Yes." He
said; "If you'd like to have your application, you're
welcome to have it." -
And I said, "No, Mr. Bill. I don't want it."-And
then later on, he - said- I said, "Well, Mr. Bill,
that's all' I came in here for, to ask you about it."
And then he said, "You know, Corsicana is a dif-
ferent place of living." And I said, -"Well, Mr. Bill,
I come from a small town." And he said, "Well, ev-
erything is going to be so different."
I said, "Well, that's all I wanted to talk to you
about, if you had seen my application." He said,
_' AWL-- ,
COTTER & CO
"Yes." And I said , "Well, thank you for your time."
And he said, "Well, thank you."
And when I got up, he said, "Ms. Montelongo,
you're welcome to have your application " I said,
"No "
He said, "Well, here's my business card. If you
need any recommendation, you'd be free to call me
in Corsicana anytime you want to And I'll give a
recommendation because you have a good working
record."
I said , "Thank you," and I walked out of the
room.
The transcript testimony on cross:
Q. In that meeting, did Mr. Tarazewich describe
for you the fact that there would be no job classifi-
cations in Corsicana?
A. Yes.
Q. Did he explain to you, ma'am, that in the
warehouse in Corsicana, the employees would be
required to perform a whole bunch of jobs rather
than a regular job that you would do every day,
such as you did in Dallas?
A. Right He told me that I wouldn't be doing
the same that I was doing in Dallas. It would be
different things. There won't be no classifications in
Corsicana.
Q. Okay. Did you know that before you had this
meeting with Mr. Tarazewich9
A. No
Q. Was that information helpful to you in terms
of trying to decide whether or not you wanted to
go to Corsicana?
A. Well I didn't know at the time, but to me it
didn't make, you know-what I understand, I
thought they were going to Corsicana. They were
going to be doing the same thing which we were
doing in Dallas. But he made it clear to me, "No,
that you would not be doing the same thing."
Q. So, would it be a fair statement that he clari-
fied some confusion in your mind about it?
A. Yes, because I asked him for relay and he
said, "There will not be no relay."
Q Okay.
A. There would be relay but it would not be
classified there.
Q. All right. In Dallas, did you ever have an oc-
casion, as an example, to perform any sort of truck
loading or unloading?
A. No, no.
Q In Dallas, did you ever have an occasion to
perform any forklift operation?
A. No.
Q. Were you willing to work in Corsicana if you
had had to assist in truck loading and unloading?
A. No.
Q. You would not have taken a job on that basis?
A. No.
Q. In this same conversation with Mr Tar-
azewich, Ms. Montolongo, did upon your asking
about the type of work or at least you and Mr. Tar-
azewich discussing the type of work, did I under-
719
stand you correctly that Mr Tarazewich told you
on that occasion that he could not promise you that
you would be in relay work all of the time?
A No He didn't promise me He said he
couldn't promise nothing.
Q. He said he could not promise you
A. He could not.
Q Okay
A. All he kept telling me was there was no classi-
fication of jobs there.
(Pause.)
Q. There was another area that I was confused
about, Ms. Montelongo, and I believe you can prob-
ably help me with it
Did you ask Mr. Tarazewich if you wanted to
come down to Corsicana six months later after it
was opened and go to work, would you be consid-
ered?
A Yes
Q Is that basically what you asked him?
A. Yes.
Q. Did he say you would be considered?
A. He said if he had any openings, he would con-
sider me. He said I had to go apply for a job.
Q. Okay And, let's see, the Corsicana facility
hasn't been opened six months yet, has it?
A. No, it hasn't.
Q. Okay.
A. I said six months to a year if I went down
there, and he said if he had any openings he would
consider me but I had to put it in an application.
Q. And, of course, you had already put in the ap-
plication, hadn't you?
A. Yes. That's why I asked him about my appli-
cation
John Earl Gray testified that he applied for employ-
ment at Cotter's Corsicana facility on April 13. He was
among a group of 13-15 people filling out applications in
the upstairs breakroom. After the others completed their
applications, Tarazewich said he would be going over all
the applications to pick the best qualified people to do
the work. Tarazewich said he would be looking for re-
lated experience and longevity with previous employees.
The others then turned in their applications while Gray
finished his. Tarazewich told Gray when he finished to
bring the application into his office. Tarazewich re-
viewed Gray's application and remarked that Gray had
been with the same company for 15 years before moving
to Corsicana. He said you meet all the requirements of
what I'm looking for here but Corsicana wages cannot
match Dallas wages. Gray's record response was:
And I said, "Well, sir, I pretty well didn't expect
anyone to for quite a period of time, this company
or any other." Just general things like that he was
speaking of, and then he said, "Can you pass a
physical?"
I said, "Well, sir, I don't believe I'd have any
trouble passing a physical of any kind." He said,
"Okay. When we get through here, I'll let you go
over to see Joyce and she'll give you the form to
720 DECISIONS OF NATIONAL: LABOR RELATIONS BOARD
go to the doctor's office and have a physical. And if
you pass that, you can report in the morning."
I said, "Okay." And Mr. Tarazewich said, "I
want to tell you a little bit about the company.
We're a good company here. He said, "In Dallas,
we had expanded to the point that our facilities in
Dallas were no longer, adequate to supply the needs
of our stores."
He said, "In Dallas, the employees were union."
He said, "By the way, were you union with
Safeway in the warehouse complex?" I said, "Yes,
sir." He said , "What union was you with9" And I
said, "Teamsters Local 745." He said, "What's your
opinion of unions?"
And I said, "Well, sir, my opinion of unions is
that they have a lot of good points"-I said not "a
lot."
I said , "They have good points and they have
bad points." I said, "With all due respect, sir, every-
thing I left in Dallas is in the past, and I'm here to
rebuild in Corsicana, my life."
I said , "With all due respect, I'd like to leave it at
that." He said, "Okay." He said-he explained a
little bit about our insurance, qualification period,
expectations of the employee And he also explained
that the employees were union in Dallas but here, it
would be non-union in Corsicana.
Q. Do you remember his exact words?
A. That was about it at the time.
Q. I mean his exact words concerning the last
remark you've mentioned.
A. Oh, he just said, "The employees were union
in Dallas, but this facility here won't have union
labor." That's what he meant.
MR. BARNES' I object. That's not what he said. I
move the answer be stricken. Mr. Eckhardt asked.
him specifically what did he say, and the witness
testified as to what he meant. The witness can't
know what Mr. Tarazewich meant.
By MR. ECKHARDT (Resuming): Q. What do you
mean by, "That was what he meant"?
JUDGE GRiTTA: Don't ask the witness that ques-
tion. What you can testify to is only observable
facts. And that is what you heard the man say.
Don't interject any characterization of what your
understanding was. Now, go back over that bit of
testimony because of Counsel's objection. Tell us
what Mr. Tarazewich said.
THE WITNESS: Well, Mr. Tarazewich asked me
my opinion of unions, and I told him like I just said.
Okay. And he said, "The employees in Dallas were
union , but this will be a-the employees down here
will be non-union."
Q. MR. ECKHARDT: (Resuming) All right. Did
you ever have any-was anything else said in that
conversation?
A. Basically, no. He just sent me to the doctor
and I passed the physical and went to work the
next day.
Q. Okay. What job were you applying for?
A. Well, the only-he explained to me-I was
applying for a job to work in the warehouse in any
capacity.
Q. Well, now can you go into-was anything
said between-by you or Mr. Tarazewich about the
exact-about the job that you were applying for in
this conversation?
A. Yeah, he said-
Q. Will you tell us about that?
A. He said, "We're not going to have any classi-
fications down here. You might be on a forklift.
You might be pulling orders later on. You might be
stocking. You might be on receiving. You might be
on shipping. Just basically, wherever we feel your
best qualities would be."
Q. And what did you say? Did you have any
comment?
A. Well I just said, "Yes, sir. Okay. Just wherev-
er you see fit to have me work."
Q. Do you recall whether or not Mr. Tarazewich
mentioned that you might be loading trucks?
A. Well, he said "shipping."
Q. And you understood that to mean-to include
loading trucks or unloading them?
A. Uh-huh. Well, receiving would be-I think
that receiving would be unloading.
Q. And how long did you-did you go to work
for Corsicana Cotter & Company?
A. Yes, sir. 6
Gray worked at Corsicana from April 14 until August 1.
While he worked in the warehouse he did not see a
female employee loading any trucks.
About the second week in May James Murphy, ware-
house superintendent , interrupted the employees' lunch-
break . He told the employees that things were going
good but employees had to police the break area better
after eating, and no tennis shoes could be worn in the
warehouse and any shorts that are worn "must be
decent ." Men could not wear the short tank tops or the
netting type of tank top . Murphy told them that some
overtime could be expected in the coming weeks and for
those people who have asked , there will not be any
women on the shipping and receiving dock . He then re-
minded employees if problems occur see your supervisor
first , then if need be see Murphy . "If it can 't be worked
out we ' ll go to Tarazewich ." Murphy thanked the em-
ployees for their time and apologized for interrupting
their lunch.
Gray testified further:
Q. Do you remember if he mentioned the union
during this speech?
A. Yes, sir, he did . He mentioned that the ware-
house facilities in Dallas, the employees were union,
and that the employees in the Corsicana facility
were not union.
On cross-examination Gray stated that Tarazewich said , " It was our
intent to be nonunion in Corsicana " Tarazewich also asked Gray why he
quit a company with such good benefits Gray replied his quitting was
due to personal reasons
COTTER & CO
He said, "We don't think that we need a third
party to where you have to pay union dues, and the
third party to be a burden to us." He said , "All of
-us can do better in the years to come if there's not a
third party involved, as far as pay raises, benefits,
and insurance."
Q. Do you recall anything else that Mr. Murphy
said concerning anything about the union or a union
in this talk?
A. No, sir. I'm sorry.
Q. All right. After that time, and I think you
said-about what date was that, what time frame?
A. That was about the second week in May.
Q. Of this year?
A. Yes, sir, 1983.
Q. All right. After that time, do. you -recall
whether or not any supervisor or management offi-
cial ever mentioned the union in your presence?
A. Yes, sir.
Q. When was the next time that that occurred?
A. It was on the morning that the picket line
went up in front of Cotter & Company in Corsi-
cana.
Q. What picket line are you referring to?
A. Teamsters Local 745. -
Q. Do you know about when the picket line
came up for the first time at the Corsicana facility
of Cotter & Company?
A. It was right at or about the 17th of May.
Q. Of this year?
A. Yes, sir.
Q. All right. Will you proceed, please? How did
this meeting come about?
A. It was-the thing that was happening in the
mornings at this particular time was that there
would be a group meeting of the employees under
each supervisor
Q. You say there was or would be?
A. There,would be every morning.
Q. Well, was there at that time?
A. Yes, sir.
Q. Would you tell us how this conversation or
these comments that you heard came about?
A. The supervisor I was working for, Mr. Jack
Cartwright, walked up to where we were.
Q. All right. Now who is "we"?
A. The other employees under him-
Q. That would-
A.-that morning.
Q. be? Pardon me?
A. That morning.
Q. That would be what group? Can you define
them as a department?
A. It was the people who worked in Department
C, D and F.
Q. And approximately how many employees are
you referring to?
A. At that time, about 15 -or 16.
Q. At the time that you're about to relate, what
was your job? What was your job?
A. At that particular time, we were-my particu-
lar job was the stocking.
721
Q. All right. Who was present-well, go ahead
with what you were going to say.
A Mr. Cartwright came back there that morning
and he said, "Boy, we had some excitement this
morning, didn't we?" And he said, "I want to tell
you all something. I have a lot of mixed feelings
about them being here. I know them all," refer-'
ring-he said, "I know them all. I worked with all
of those people in Dallas."
Q. Who was he referring to?
A. The people carrying the picket signs that
morning •
Q. All right.
A. "I worked with all those people in Dallas. I
have a- he said it again. "I have a lot of mixed
feelings about what's happened out there." He said,
"Now, there wasn't any incident this morning." He
said , "You know, when we leave here this after-
noon, if anyone tries to stop you or in any way tries
to keep you from going out on the street to go
home, report it to us. Let us know that this sort of
thing has taken place."
.He said, "If-when you leave, if you will, roll up
the windows on your car. You don't have to talk to
those people. We don't want you to. If they try to
give you something, don't take it. And just go in
and out of the gate -until they go on their way. And
don't show-"
He said , "Don't shoot them the finger or do any-
thing like that, that might provoke them to breaking
your windshields out like they do up north," And,
he said, "That's about all I've got to say," and then
he started making work assignments for the morn-
ing for the workday.
Q. All right. After that meeting , did you ever-
were you ever present where a supervisor men-
tioned the union?
A. Yes.
Q. At the Cotter Company in Corsicana?
A Yes, sir.
Q. Tell us when the next occasion was. The first
occasion would be about what time of day or night?
A. Oh, it was about-
Q. The one that you're talking about
A. -five minutes after 7:00 in the morning that
the pickets went up.
Q. All right. When was the next occasion that a
supervisor mentioned the union?
A. It was that same day about 3:00• o'clock in the
afternoon. We were all called to go upstairs to the
break room.
Q. All right. What, if anything, was said? How
did the meeting-excuse me. Approximately how
many employees, if any, were present of the Cotter
& Company other than supervisors?
A. I would guess about-including the office per-
sonnel-about 90, 92 or three, something like that I
don't know.
Q. All right. Now, how did the meeting begin?
A. The meeting began by Mr. Tarazewich-he
said, "May I have your attention, please?" And he
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
said , "As you know , we have some uninvited guests
outside our front gate this morning. This caused a
lot of conversation."
He said , "These people out there picketing are
the former employees of Cotter & Company from
Dallas. They don't have a job They probably won't
be out there more than two or three days."
He said , "Most of them are more than likely
drawing unemployment , and- they don't have any-
thing else to do with their time besides come down
here and cause problems for us."
Mr. Tarazewich said, "As you know, the people
in Dallas were union . We're not union here. We're
not going to be union here " He said , "If they try to
give you any problems going out the gate this after-
noon or coming in the gate tomorrow morning, or
whatever , let us know about it . We want to know if
they cause you any problems whatsoever."
Mr. Tarazewich said , "If-when you're going
out, if they try to give • you something , don't take
it." Mr. Tarazewich went on to say, "If they try to
stop you and talk to you, you don't have to talk to
them. If any of them try to meet with you like
down at the Cisco's 'or a coffee shop or the court-
yard, while you all are off work, you don't have to
talk to them . If any of them come to your home,
you have every right to slam the door in their face
and call the police , if you want to. If any of them
try to call you on the telephone, you don't have to
talk to them. But above all, if they try to get you to
sign_ something , don't do it " He said, "There's a
good chance that if you sign something , you're
going to be out there with them."
He said , "We're a good facility here in Corsi-
cana." He said , "I feel that we are the best compa-
ny in Corsicana , and we want to keep it that way."
He said , "It'd be a good idea that if you go out
the gate, to roll your windows up." He said,
"Whatever you do, don't aggravate them . We don't
want the"-He said , "You all know what happens
up north with all these strikes and things-Ohio,
Pennsylvania , all these northern places where wind-
shields get busted out, car tires slashed, people get
beat up We don't want any violence or anything
like that here . So, don't bother those people out
there in any way."
He said , "I think we 're all doing a real good job
here ." He complimented everybody on their work.
He said , "You all go ahead and get your things to-
gether. And then when you go out , I'll be out there
watching to make sure , there's no incidents So, you
all go ahead and get your things and line up and go
on home," basically.
Q. All right. After that occasion , do you recall
whether or not any supervisor or management rep-
resentative ever mentioned the union in your pres-
ence?
A. After that, yes, sir.
Q. When would be -the next occasion , or if you
can remember the time frame , I'd like to have that?
A. I would say the last few days of May or the
first few days of June. I don't remember. It was
right in there somewhere
Q. All right. Now, how did the meeting begin?
A. Well, the meeting began by Mr Tarazewich
asking for our attention . He said , "We have a guest
this morning, and that the guest would like to speak
a few words with us."
Mr. Lynn complimented us on doing a good job
at Cotter & Company at Corsicana He said we
were all good people. He thought the best of the
applicants that were submitted were hired
He said , "We have a good facility here It'll
probably be here 80, 90, 100 years, so there's going
to be a job for everyone who wants it for a long
period of time to come "
And he said, "I know that there's a lot of ques-
tions about the activities outside, the picketers " He
said, "As you know in the United States, everyone
is free and everyone can carry a sign , if they desire
to do so." He said, "Anyone can get a sign and put
on it , `I'm a communist,' and walk around with it,
as long as they don 't do it-as long as they do it on
public property."
He said , "You can get a sign and put on it that
'I'm a Nazi,' if you want to do that type of thing."
And he said, "As you know, the employees in
Dallas who were union are no longer with the com-
pany, We're all-all the people in this facility are
not members of the union . They don't have to pay
dues, and that in the long run it would be beneficial
to the company and the employees for a third party
not being here to interfere."
And he said , "I'd like to try to explain to you the
history of Cotter & Company " And he explained to
all of us how it started , how it developed, pro-
gressed , and how over a period of time it would-
its expansion into other areas.
And he was giving a general description of the
history of the company. And he said, " In some
areas, we would buy a warehouse facility to distrib-
ute our merchandise to our member, stores And as
it turned out, when we bought out a company, the
employees that were already with the company,
who were union , we inherited and the problems
that went with the union."
And he got on up to the Dallas expansion when
Cotter & Company bought the facilities in Dallas.
And he said, "When we bought it in Dallas, they
were union and we were stuck with the union and
the problems that go along with it. But over a
period of time, business got better .' We expanded.
We've expanded as far as we can go in Dallas We
had to find a bigger facility for our operations, and
that 's why we chose Corsicana."
And that was just a history of things to where it
had gotten to where we were in Corsicana. And he
complimented us on doing a good job. We're proud
that Cotter & Company had hired ' us. 'And that was
the general theme of his speech that morning. Then
we were released.
COTTER & CO
Q. All right. Do you recall anything else that Mr.
Richard Lynn said in this talk about a union or the
subject of a union?
A Yeah.
Q All right.
A. He said something. He said that when he was
speaking about the picketers being out there, "That
the problems would be handled by lawyers and in
the courts and, of course, we're going to win."
Q. All right. Would you tell us how long the
picketing continued by the Local 745 from the time
it began until you no longer knew about it?
A. Well, I no longer knew about it when I left
Cotter & Company.
Q. But when did it start and when did you notice
it going on?
- A. Well, I noticed it the first day that it began,
on or about the 17th of May.
Q. Of this year?
A. Yes, sir.
Q. And was it your testimony that it continued
from then until you quit? Or did you quit?
A. Yes, sir, I did. '
Q. All right. Is your memory-well, I first
should ask you, do you recall anything else-
whether or not anything else was said about-with-
draw it.
Do you recall anything else being said in this
meeting by Mr: Lynn concerning either the union
or the pickets? Or the employees?
A. (Whereupon, the witness shook his head nega-
tively) -
Q. You have to make your-
A. No. -
Q. All right. Do you recall the word " allegiance"
being used during the speech by Mr. Lynn?
A. Yes, sir.
Q. Would you tell us now, does this refresh-your
recollection?
A. Yeah.
Q All right. Would you tell us now, after -your
recollection is refreshed, what you recall was said,
if anything, concerning "allegiance"'? -
A. It was in reference to allegiance to the compa-
ny.
Q. All right. "Well, give us the complete-what
you. recall Mr. Lynn said on that subject.
A. Well, he said, "We expect our employees to
be here on time every day, to work until the day is
completed, to do the best job possible, to do it ac-
curately and efficiently as best we know how to do
it," the talk speaking about the job. And our alle-
giance was important to the company.
Gray also stated that the last of June all employees were
called to the breakroom where Murphy introduced the
new operations manager Van Buskirk who replaced Tar-
azewich. Gray testified:
A. He said that he had come from Indianapolis, I
believe. And he was the new Operations Manager
with Cotter & Company in Corsicana.
723
He said, "I want to be a-people-person." I want
to be the type of person that when you have a
problem, you can come to me and my door will be
open. And we can discuss whatever problem there
may be. And feel free- if you see me out on the
floor anywhere, to approach me and I'll answer any
question or any problem you have, we'll try to find
a solution to it." -
He said , "I know there 's problems outside that
have caused a lot of you concern." He said, "Let
me assure you that the picketers who were the em-
ployees in the location in Dallas will not be here.
All of this will be resolved in the courts, and the
people here will have a job for as long -as Cotter &
Company is in Corsicana. And that will be a long
time. -
And he said that he would like to get to know all
of us and to be available to us . It was basically a
thing where he was introducing himself to the
people and trying to say, "I'm a people-person. If
you've got a problem, come to me."
Q. Do you- recall if he said anything else?
A. No. ,
Q. Pardon me. Do you remember anything else
that Mr. Van Buskirk"said on this occasion?
A. Yeah. He said something about-"that the
people in Dallas were union. We're not union here."
We'd heard this story. It sounded like the same
thing coming out from all of them.
Q. Well, just do the best you can.
A. He said, "That the people in Dallas were
union. We're not union down here. Because of it,
we don't have the third-party interference that we
had in Dallas. We think that it'll be more beneficial
to the people of Corsicana and to the company in
the long tun for a third party not to be here."
Q. All right. Do you recall whether or not a su-
pervisor ever mentioned the union in your presence
after this meeting?
A. Well, sir , I would-from time to time, I
would hear little things, a conversation between one
employee and a - supervisor that was already in
progress. And I'd walk by and I would hear them
talking about the picketers out there, but I kept on
going . I didn 't have anything-any comments to-
or I didn 't have any comments about what was
going on outside . I didn't stop to listen to their con-
versations. .
Q. Do you recall whether or not any speech or
speeches were made 'where the union was men-
tioned after the occasion that you've just related, at
the time of Mr. Tarazewich's departure, which you
indicated was sometime in June? - -
A. The only other time that I was involved in a
conversation with anyone in management about the
union was when I left.
Q. All right. Was the conversation you-was the
speech you just related , was that sometime, in June
when Mr. Tarazewich- left?
A:, Well, to the best of my knowledge. It might
have been early July, but I don't know. To the best
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of my knowledge. I didn't write down dates or
nothing
Q. Well, that's all we expect, the best of your
knowledge.
When after that, if any, did you have any further
conversations with any supervisors where the union
was mentioned after that or not?
A. Yes, sir. It was when I went up to Mr. David
Van Buskirk's office:to quit.
Q. All right. When, approximately, was that?
A. The first of August, 1983.
Q. All right. Would you tell us where this con-
versation occurred and about when during the day,
if you know?
A. I would say it was about 8:30 on a Monday
morning in his office alone with him.
Q. All right. What was said in this conversation,
either by yourself or by Mr Van Buskirk?
A. I said, "Sir, I really don't know you and I
really don't know who you are. I know your posi-
tion with the company, but it's my intent to leave
Cotter & Company and leave now.",
He said-I had my badge in my hand. And he
said, "If you would, pull up a chair." I said, "Sir,
it's useless . There's no reason for me to do that."
He said, "I'd like to talk to you for just a
minute." I said , "Okay." So, I sat down in the chair.
And he said, "Is there any problem that has
brought-with anyone that has brought this on?" I
said, "No." He said, "Just, for my knowledge, I'd
like to know why you're leaving."
I said , "Well, I'll tell you the truth. And the truth
is that maybe I had too good of a job for too many
years, sir, to waste my time and talents for a compa-
ny and its supervisors that don't care about people."
I said, "Maybe why I'm leaving is' because I
don't like the things that I've seen in Cotter &
Company." I said, "There's no future here for any
of those people out there. You know it; I know it;
and they know it."
I said, "There's many others who_ work for you
or for the.company that intend to do the same thing
I'm doing right now. They're going to leave this
place as soon as they find something decent. And in
time they will. But for the ones that have to stay,
sir, the only hope they have is for that union out
there to win, because you all just run over them all
day long. You mistreat them. You don't do what
you say you're going to do. You tell us one thing
and exactly opposite is- done out there in the ware-
house."
I said , "I could go on and on but it's useless, sir.
I just want to go."
He said, "Well, I'm sorry'you feel that way." I
said, "Well, sir, I'm going to be flat honest with you
and tell you the truth. I leave with no bitterness. I
leave with no animosity towards the company. I
leave with no hatred, but I do want to go. But I'm
going to tell you the same thing I told you a minute
ago. The only hope these people have out here is
for them to be able to bring the union in to help
them. They get smushed all day long every day "
Q. "Smushed?"
A. "Smushed."
Q. All right. What else was said,' if anything?
A. He said that, "That would never happen." I
said, "Well, there's nothing that I can do about that.
I've got to go," and I left.
Q. Do you harbor any grudge against the compa-
ny?
A. No, sir.
Q. The Cotter & Company?
A. I don't harbor any grudge or any bitterness or
any hatred or any anything towards Cotter & Com-
pany. I feel sorry for the people that still have to
work there.
David Lee Brimage testified he was hired as a ware-
house employee in Dallas December 1970. In October"
1978 Brimage became a truckdriver and drove for Cotter
until May 13. During his entire employment with Cotter
he was a member of Teamsters 745. Brimage did not
attend the. union meeting in February that was partially
devoted to discussion of the employees filing an applica-
tion for work at Corsicana but he had heard that Prda
and Kline suggested that all employees do it
In February Brimage saw a blank job application on
his dispatcher's desk. He asked the dispatcher what the
form was for. Brogdon, the dispatcher, told Brimage it
was for Nicki Fisher to apply for work in Corsicana.
Brimage asked Brogdon to get him one and Brogdon
said to just take the one, on his desk. Brimage took the
application, filled it out at Brogdon's desk, and turned it
in. Brogdon told Brimage he would give it to Tar-
azewich Brimage 's application was for driver at Corsi-
cana. Although Brimage stated he would have accepted
any warehouse work at Corsicana he did make that fact
known to any Cotter supervisor or manager. The next
month there were rumors among the employees that
Corsicana would only use lease drivers.
Later in April, after coming in from a run, •Brimage
was going upstairs as Tarazewich was coming down. As
they passed, Brimage asked Tarazewich if he had re-
viewed his application. Tarazewich responded, "Yes, I
threw it in the trash." Both men continued walking the
stairs. Brimage did not thereafter talk with Tarazewich
about his application, nor did he believe that the applica-
tion had been thrown -in the trash. About May 1 Brimage
learned that the Corsicana facility would' employ leased
drivers rather than own• and operate its own trucks..
The Dallas warehouse shut down Friday, May 13. The-
following Monday several Teamsters members began
picketing the Corsicana facility Brimage was among
them. While Teamsters picketed in late June, Tarazewich
came out to the line. Brimage asked him if he had seen
his application and why Tarazewich had not given him a
job. Tarazewich told Brimage that the application was
given to John Potts, the manager of Lease Way Trans-
portation.7 On June 13 Potts hired Brimage as a driver.
' Lease Way Transportation is the company that supplied the lease
drivers for Respondent's Corsicana facility from its inception
COTTER & CO
Brimage worked 4 days,' then was back on the picket line
until July 11. On July 11 Brimage was called again by
Potts for work and remained employed by him.
During Brimage's stint as a driver for'Cotter, he'had
several accidents that were avoidable for which he re-
ceived letters of warning. In addition, he received sever-
al letters of warning for speeding. Although he never
lost any worktime from the warnings, Brimage was told
by Brogdon, when receiving an accident warning letter
in mid-1982, that Tarazewich had preferred terminating
him rather than giving a warning letter.
Floyd Clemmons testified that he was hired as a truck-
driver by Cotter January 12, 1979. He worked as such
until May 13, • 1983. On February 8, Clemmons asked
Brogdon if he had any applications for driving jobs at
Corsicana. Brogdon said he did not have one but he
would get one. Brogdon got one and gave it to Clem-
mons. Clemmons filled it out and handed it back to
Brogdon.
In mid-Apnl Clemmons was passing Tarazewich's
office and he asked him if the application for Corsicana
had been processed yet. Tarazewich was sitting at his
desk and looked up momentarily without saying any-
thing. He then looked back down at his desk. Clemmons
said nothing more and walked off. Several weeks later
Clemmons saw Tarazewich in his office and Clemmons'
record testimony is as follows:
Q. Now will you kind of take it slow. Go ahead.
A: He was sitting there. I asked him if he was
going to take any drivers to Corsicana warehouse.
He said, "No."
Q. Can you quote him now if you are able?
A. He said, "No, we are going to go with lease-
nonunion lease drivers."
Q. Was anything else said in that conversation?
A. I said, "I hope you all good luck.` '
Q. Was anything else said that you recall?
A. Then I left.
Q. Excuse me?
A. Then I left there.
Q. All right. Do, you recall what time of the day
or night this was that you had this conversation?
A. it was-I usually got in around-between
12:00 and 1:00,on them runs.
Q. Was that when.you had the conversation?
A. In the day, yes, sir.
Clemmons only applied for a driver job in Corsicana
because that was the only job he wanted: Clemmons had
been a driver for 28 years and a member of Teamsters
745 since 1968.
Cecil Gurno testified that he was hired by Cotter as a
driver in September 1970. Gurno attended, along with
100 other employees, the meeting of all employees in
which Dan Cotter informed them • of Cotter's plan- to
close'the Dallas warehouse and move to'a new location.
Gurno could not recall when it took place nor could he
recall what was said. He did recall that Cotter said the
warehouse was going to move to Corsicana but the
Company was not going : to take any of its employees
with-it. ' Cotter then said if any employees were interested
in jobs in Corsicana they should fill out applications to
725
work in Corsicana, but it did not mean that we would be
hired if we were chosen. Cotter also stated that employ-
ees who went to work in Corsicana would lose their se-
niority. Gurno did not stay for all the meeting and could
not recall if anyone else spoke or not. Gurno stated he
left in a state of shock:
In late September or early October 1982 Gurno asked
Bill Tarazewich for an application to work in Corsicana.
Tarazewich said he did not have any to distribute yet.
Gumo told Tarazewich when he started giving them out
that he wanted one. At some point after his seeking an
application, Gurno was in the lunchroom with several
other drivers. Tarazewich was present and told Gurno
and the others that the Company was going to utilize
lease drivers in Corsicana. Later in April 1983 Gurno
filled out an application for a driver job at Corsicana and
specifically did not apply for a warehouse job because he
did not want a warehouse job. Gurno had previously
asked for a letter of recommendation from Tarazewich
and he had said he would supply one and on November
29, 1982, Gurno received his requested letter of recom-
mendation.
Wayne Granger Lawson testified that he was hired by
Cotter in May 1970 to work in the warehouse. During
his employment he did stocking, receiving, 'order filling,
and relay work. Lawson was a leadman when he per-
formed other than stocking of inbound freight. The
Dallas warehouse was having problems filling 'orders and
he went to stocking. Lawson became a Teamsters 745
member when he was employed and for the last 2 years
of his employment he was the chief union steward.
In October 1981 Lawson attended the Dan Cotter
meeting . Tarazewich spoke first and told the employees
that Dan Cotter was going to give the information on
the move. The employees knew that the Dallas facility
was antiquated and a new facility was needed so rumors
had been rampant about where or when a new facility
would be selected. Cotter began by saying he was going
to settle the rumors. Cotter said a site had been found to
build a warehouse and it was Corsicana. He said the
facts that Corsicana was central to the region, the price
of land, the taxes, and highway accessibility for trucks
were several factors that led to. choosing Corsicana.
Cotter said they were going to hire from within down
there and that no Dallas employees were going to be
able to transfer there. One employee asked if that meant
no employees or all employees were not going to be able
to go. Cotter said, "No," the only ones that they' were
going to take would be the management , buyers, and su-
pervisory help. Any other employee in the warehouse
would be entitled to fill out an application and would be
considered along with everyone else as a new employee
under a whole neW setup. Cotter then described the dif-
ference in living conditions between Dallas'and Corsi-
cana. He described Dallas-as city life and Corsicana" as
country life. Cotter's speech lasted about 20 minutes and
Lawson was present for the entire speech.
On July 21, 1982, after a meeting between the Compa-
ny and the . Union, Lawson was back in the warehouse.
As'he passed Tarazewich's office he saw Tarazewich and
James Murphy inside. Lawson went in and said to Tar-
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
azewich, "I would like to ask you a question." Tar-
azewich said, "Sure," and Lawson said, "Bill, what is
this out of the meeting that you have to come up and fill
out another application for Corsicana?" Lawson added
he did not understand, any such application would be no
different than what he had filled out 10 years ago.
Lawson stated that he did not think that was right. Tar-
azewich said, "Well, that is just the way they want it."
Lawson did not make any application to work in Corsi-
cana. His refusal to do so was more or less a semiprotest.
In early February 1983, Lawson attended a union
meeting where James Prda, the business agent, advised
all Cotter employees who wished to go to Corsicana to
make application for employment there. After the actual
move was made not all supervisors , managers, or buyers
were transferred to Corsicana. Some did not go and
others could have retired.
Margaret Sue Lloyd testified she was hired at Cotter
in February 1972 to work in the warehouse. During her
employment she performed receiving, quality control,
stockman, order filling, and for her last 3 years did relay
stocking. Lloyd became a Teamsters 745 member on her
employment and remained a member throughout . She at-
tended the Dan Cotter meeting in October 1981 but does
not recall much that was said. Lloyd also attended the
company meeting in April 1982 where Lynn told all em-
ployees they could make application to work in Corsi-
cana. About March 20, 1983, she had a conversation
with Tarazewich in his office. Lloyd said she wanted to
apply for work in Corsicana and asked if any "relay
stockman" jobs were open. Tarazewich said, "Yes," and
asked if she would be willing to relocate. Lloyd said she
had not been to Corsicana and before she further com-
mitted herself she wanted to go down and look the place
over. Tarazewich suggested to Lloyd that she take a
weekend in Corsicana to see if she liked it. Tarazewich
told Lloyd if she needed help in finding a place to live
he could give her the name of a Corsicana realtor. On
March 22 Lloyd applied for a "relay stockman" job in
Corsicana.
The following month, on April 29, Lloyd told Tar-
azewich she wanted a yes or no answer on her applica-
tion. Tarazewich replied that he would be in touch with
her. Lloyd worked until May 13 at the Dallas ware-
house. Around May 16 or 17 Tarazewich called Lloyd at
home. Lloyd stated that Tarazewich told her the only
openings in Corsicana were that of loading trucks. Tar-
azewich added that the facilities in Corsicana were en-
tirely different than in Dallas and employees would be
expected to meet a quota each day. Lloyd asked Tar-
azewich if all the people he had hired in Corsicana were
experienced in that type of facility. Tarazewich said they
all had experience in that type of building. Lloyd told
Tarazewich that she would like to have some time to
think it over. Lloyd next received a letter from Tar-
azewich asking for a reply concerning employment at
Corsicana. On May 20 Lloyd called the, Dallas ware-
house for Tarazewich but was unable to talk with him so
she left the message that she was unable to take the truck
loading job because she was not qualified and make sure
Tarazewich received the message. `
In June Lloyd received an accounting of her sever-
ance pay and thereafter did receive her severance pay.
She was aware of the severance provisions but did not
understand that on receiving severance pay she was
giving up a chance to work in the Corsicana facility.
Thomas D. Mann testified that he was a Corsicana
native and presently employed by Intermountain Truck
Lines. He has been a member of Teamsters 745 since
1969. In 1980 he was a casual driver for Cotter in Dallas
for about 4 months. When he learned of the move in
March 1983 he called Glen Brogdon, the Cotter dis-
patcher. Mann asked Brogdon if there would be any
driver openings in Corsicana . Brogdon said he was not
going to Corsicana and that I would have to talk to Jack
Meadows in Corsicana. Mann asked Brogdon if he
would give a recommendation to Meadows and Brogdon
said he would. Several days later Mann went to Corsi-
cana to see Meadows. Meadows was busy at the time so
Mann asked for and got an application. He filled it out
while he waited for Meadows. Mann applied for a driver
job and listed his previous Cotter employment. When
Meadows returned to the office Mann gave him the ap-
plication and said that Brogdon had recommended him
for Corsicana employment. Meadows looked the applica-
tion over and told Mann if Brogdon recommended him
as a driver he probably would not need the application.
Meadows stated that Brogdon would not waste the time
of them both . Meadows said that at this time Cotter does
not know if they will employ company drivers or lease
drivers but the decision will be made shortly. Meadows
said he had warehouse openings at $5.60 an hour. Mann
asked if there were any openings in management. Mead-
ows said that everyone starts at $5.60 an hour. After
working for a while all employees will be evaluated and
the supervisors will be picked from the employee group.
Mann did not accept any warehouse employment, Mead-
ows ended the conversation by saying when he had an
answer on the driver situation he would call. Mann said,
"Thank you," and left. Mann did not receive any call
from Meadows subsequently.
Don Wayne Owens testified he was hired at Cotter in
January 1979 as a driver and remained employed
through May 13, 1983. Owens filled out his original ap-
plication at Cotter and his union membership card at the
same time and has been a member of Teamsters 745 since
his employment with Cotter. In the last week of Febru-
ary Owens got an application for employment at Corsi-
cana, filled it out, and within a couple of days turned it,
in. About a month later he was talking with Brogdon
about Corsicana applications and Brogdon said he had
turned in four names of drivers to be hired in Corsicana:
Owens, Clemmons, Giles, and Stovall. Owens asked why
just four and Brogdon said because they were good driv-
ers when he wanted us to be. Owens stated that he had
several conversations with Brogdon about Corsicana em-
ployment in an off-handed way and the last was about a
week before the Dallas facility, closed. Brogdon at that
time reaffirmed to Owens that Brogdon had recommend-
ed Owens and Clemmons for driving jobs at Corsicana.
Owens did not question the reduction of four names to
two since he knew that Stovall had previously quit.
COTTER & CO
Owens had previously heard that lease dnvers would be
used at Corsicana but he did not discuss it with Brogdon
or anyone else. He was just more or less waiting to see
what happened. -
Betty Payne testified she was hired by Cotter in De-
cember 1971. During her employment she worked as a
packer, order filler, receiving clerk, stocker, and other
odd jobs. She did not do any loading, unloading, or
drive a tow motor or forklift: Although Payne had heard
that some woman loaded and unloaded trucks in Dallas
she had not actually seen any do so. Payne in 1983
trained an employee, Michael Cook,-as a stocker. Cook
later went to work in the Corsicana facility. In early
April she made application for work in Corsicana as a
stocker or relay. Payne turned the application in to Tar-
azewich several days later. As she gave Tarazewich the
application she asked him what possibilities there were
that she could go to Corsicana. Tarazewich told her that
he did not know but he would get back to her. Several
days later Tarazewich called Payne on the phone. Tar-
azewich went into details to explain that there would be
no separate classifications in Corsicana. Tarazewich said
the employees would be unloading trucks, receiving mer-
chandise, and would have a quota of cartons to unload
each day. Payne understood that she was being offered a
job in "Receiving" unloading trucks but she did not
question the job content when she was talking to Tar-
azewich. Payne told Tarazewich that she was too old
and not physically able to unload trucks. Tarazewich
said that is what it is like when you get 60 years old.
Payne is 55 years old. Payne told Tarazewich she would
have to have a couple of days to think it over. Payne
and a coworker, Margaret Sue Lloyd, went to Corsicana
to see the new warehouse, look the town over, and
check the rental property situation . On May 17 Payne re-
ceived a letter from Tarazewich asking for her decision
on working at Corsicana by the close of business on May
20. On May 20 Payne called the Dallas office and asked
the secretary if she was in contact with Tarazewich. The
secretary said she was and Payne asked that the secre-
tary tell Tarazewich that she decided not to take the job
'in Corsicana. Payne was a member of Teamsters 745 for
her entire employment with Cotter.
Shirley Livingston testified that she was hired at
Cotter in April 1969 as a stocker. During her employ-
ment Livingston worked as a stocker, relay, shipping, re-
ceiving, order filling, inspector, and the last 3-1/2 years
she functioned as a leadperson over about 10 employees.
Livingston, while employed, was never disciplined for
her work performance but she was praised on doing a
good job frequently by her supervisor' Murphy and
Marvin Richeson , personnel manager . Livingston also
was a member of Teamsters 745 throughout her employ-
ment with Cotter.
Livingston attended the Dan Cotter speech of October
1981. Tarazewich introduced Cotter saying he was going
to talk about the move. Cotter said they were going to
move to Corsicana and nobody from Dallas was going
and if anyone filled out an application for Corsicana they
did not have to be hired. He said the hiring would be up
to Bill (Tarazewich). Cotter said nobody but Bill was
going. Cotter said Corsicana was a small town and there
727
was a new life style down there. He added that there.
was not many places to live in Corsicana. One employee,
Juanita Tumey, asked Cotter if any of the leadpersons,
foremen , or supervisors would have their jobs in Corsi-
cana . He replied, "No." Red Evans asked if Murphy had
his job in Corsicana but Livingston did not hear the
reply. Cotter ended by stating that the wages in Corsi-
cana would be minimum.
In March during worktime Murphy approached Liv-
ingston and asked, "Aren't you going to Corsicana with
me?" She replied , "Yes." Murphy said , "I will put you
on salary over the Relay department down there." Nei-
ther person said more . A couple of days later Tar-
azewich came by and asked how the relay department
was going . Livingston responded, "Fine," and asked Tar-
azewich if he was going ' to take any of the people from
Dallas to Corsicana with him. Tarazewich said that ev-
eryone he had talked to did not want to make the move
to Corsicana and asked Livingston if she would make the
move. She replied, "Yes." That's all that was said. Liv-
ingston also during this month attended the meeting of
all employees wherein Lynn told the employees that
anyone who wanted to go to Corsicana should file an ap-
plication. Livingston did not inquire of Murphy or Tar-
azewich at any time about her employment status in Cor-
sicana . She did however receive her severance pay and
returned the release to the Company.
About a week later Murphy brought Terry Ford, an
employee from a distant Cotter facility, to the relay de-
partment and introduced him to Livingston stating that
he was the relay man for Corsicana. Murphy told Liv-
ingston to let Ford do the• jobs that she did not have
time to do. In the next 3-week period, Livingston trained
Ford in the work tasks involved in the relay department.
Ford left the Dallas facility for the Corsicana facility
after the training period.
In late April Livingston overheard a single remark
made by Tarazewich who was talking to a group of men
in the front office. Tarazewich said that nobody from
Dallas was going to Corsicana. Livingston did not ask
Tarazewich at any time if what she heard was true. Liv-
itigston did not fill out an application to go to Corsicana
because she did not think that she had to.
About a week before the Dallas shutdown a Dallas
employee, Phillip Matthews, who had been working at
both locations, left permanently for Corsicana. Tar-
azewich put a notice on the bulletin board that Matthews
was promoted and put on salary in Corsicana. Craig
Kelly, a 10-year employee in Dallas, was promoted to-
buyer and placed on salary. Livingston also stated that
Cindy Bivins, a Dallas employee , was seen in a super-
market with a supervisor, Murphy, at•a time 5 or 6 years
ago. Murphy was married at the time Bivins was later
hired at the Corsicana facility. On at least one occasion
when Bivins was off the clock, Livingston accompanied
her to a store to buy beer which was placed in Murphy's
car at the warehouse . Livingston also testified that Bivins
told her on one occasion that Bivins wanted to get out of
the union. Livingston did not know if Bivins told anyone
else about her desire and until her testimony Livingston
never told anyone what Bivins had said.
-728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sharon Janine Autry testified that she was hired by
Cotter in January 1974. Her employment history at
Cotter included work as packer, stocker, order filler, in-
spector, receiving, and unloading. of trucks. Autry was a
member of Teamsters 745 throughout her Cotter em-
ployment and 3 years ago was assistant steward for the
Union.
In early 1983 at a union meeting , James Prda advised
all employees to make application for work in Corsicana
if they were interested in going to Corsicana.
In late February or March Autry made application for
work at Corsicana doing order filling,, packing, inspect-
ing, stocking, or receiving. Cindy Bivins filled out her
application the same day. Both applications were re-
turned in March 9, but not, at the same time . When com-
pleted Autry took her application to Tarazewich. The
transcript testimony is as follows:
Q. Will you tell us where.you handed the appli-
cation-job application to Mr. Tarazewich?
A. In his office. -
Q. What if anything was said when you did that?
A. I walked into his office, and I handed Bill
Tarazewich like this-which I had my' application
in my hand.
He said, "What is this9"
Q. What did you say if anything?
A. I told him this was, my application' for Corsi-
cana.
So Bill Tarazewich 'said, "So you are willing to
relocate to Corsicana?"
I said , "Yes, if I ain hired."
He said,, "What about your husband"-William
Autry who had applied earlier too for a job in Cor-
sicana?
I told him, "What about him?"
He said , "I understand that he has obtained a
job.
I said , "No, sir . He has not obtained a job.yet so
I do not have anything , binding me' to stay in
Erving."
He said , "Have you gone down to Corsicana and
looked the town over?"
I told him , "Yes, I have."
That my husband and. I . had driven down there
one weekend and looked things over.
Then Bill Tarazewich asked me,, "So did you like
what you saw?" .
I told Bill, "I didn't have any complaints about
the town."
He told me that he would look . my application
over, and that he would get back to me.
Q. Did he? _
A. No, he didn't.
Q. After that conversation did Tarazewich ever
get back to you like he said he would?
A No, he did not.
Q. Did you ever get back to. him?
A. Yes, I did. •
,Q. When did you say that conversation occurred?
What time of day or night? "
A. It was the morning before I had went to
work, somewhere around the first couple of weeks
in March. ,
Q. What do you mean by the morning?
A. Before 8:00 that morning.
Q. How much before 8:00?
A. About 15 or 20 minutes before so it would
have been around 7.30 at the earliest.
Q. Back to the question. Did you ever contact
Tarazewich' after the time that you had your con-
versation that you just related?
A. Yes, I did
Q. When was that?
A. It' was approximately about a month later,
which would have made it' around the end 'of
March or the first of April.
Q. What year?
A. 1983.
Q.; Where did this occur?
A: In his office.
Q. Who was present?
A. Bill Tarazewich
Q. And yourself?
A. Right. '
Q. Was anyone else present?
A. No, there wasn't.
Q. Was anything said on that occasion?
A. I had asked Mr. Tarazewich had he consid-
ered my application for employment.
Q. You said you had asked. You did ask?
A. Yes, I did ask him . "Had" in the past tense.
I asked Mr. Tarazewich if he had- considered my
application for employment in Corsicana at which
time he told me he was still-
Q. If you can quote him, please do so.
A. He said , "I am considering all applications for
Corsicana; and when I go over them, I will get
back with you,"
Q. Did you say anything or not?,
A. I told him, "Okay," and left.
Q. After that occasion did you ever follow up
again on the progress or the status of your job ap-
plication with Cotter?
A. Yes.
Q. For Corsicana?
A. Yes, I did.
Q. When was the next time you had any conver-
sation;with any company representative concerning
that application?
A. April 29, 1983.
Q. Now how do you place it as April 29th?
A. Because it was the day of the first big layoff
at Cotter, and this was Bill Tarazewich's last day at
Cotter & Company.
Q. You mean where?
A. In Dallas.
Q. Will you-was there a conversation at that
time or not?
A. Yes, there was. .
Q: How did the conversation come about?"
A. I went to Bill Tarazewich's office.
COTTER & CO 729
Q. Then what happened.
A. I asked him if he had-
Q. Apparently he was there?
A. Yes.
I asked Bill Tarazewich if he had-
I said , "Have you decided whether or not you
are going to hire me in Corsicana?"
Bill Tarazewich told me the applications had al-
ready been sent to Corsicana; and that, quoting him,
"I and James Murphy will go over the applications
sometime next week. When we decide who is best
qualified for the positions that are now available, I
will get back with you."
I told him, "Okay."
Q. What happened then?
. A. I left.
Q. After that conversation with Tarazewich on
April 29, 1983, did you ever hear anything from
Tarazewich or any other company representative.
about the status or about your job application?
A. No, I did not.
Q. Did you have any conversation with any com-
pany representative on April 29, 1983, after your
conversation with Mr Tarazewich?_
A. Yes, I did.
Q. Will you tell us how that conversation came'
about, starting with about what time of day or night'
it occurred?
A. This was approximately around 6:00 that
afternoon. I and Cindy Bivings, which was a fellow
employee, had been outside talking.
We had noticed James Murphy and Jack Cart-
wright walking out `of the building so we walked
over to them. •
I asked Murphy, " I guess I will say my goodbyes
now."
James Murphy had told me already in the day
that this would 'be his last day at Cotter & Compa-
ny in Dallas.
He told me, "It won't be goodbyes because I will
be back before you all are laid off." Referring I sup-
pose to me and Cindy.
So I told him , "Just in case I don't get a chance I
would like to tell you that even though you and I
had had a few disagreements that I still thought that
you were the best boss that I had ever had."
Murphy's' reply to this was, "I have nothing
against you personally, but if I had handled this
move, I would have handled things differently.
There are several good people in this warehouse I
would have loved to take to Corsicana -with me."
I told him that I understood his feelings towards
the situation, and that I knew where he stood in it;
and that if I didn 't see him again , that I just wanted
to be sure that he knew how I felt about him.
That was the end of the conversation. I left for
home.
During the first week in April about 3 p.m., Autry at-
tended a meeting in which a representative of the Texas
Employment Commission talked with all warehouse em-
ployees. The Texas Employment Commission representa-
tive,explained the procedure for applying for unemploy-
ment insurance to the employees. After.the meeting Tar-
azewich said all employees except "H" department were
free to go home. Autry worked in "H". department and
became angered at what Tarazewich said because'her de-
partment 'had been rushed to get work out before the
meeting and now they would have to finish without ad-
ditional help She shouted to'Tarazewich in front of all
the employees, "You can't do this." Tarazewich repeated
that all could go except "H" department. Autry left to
go to her unfinished work. Upon arriving in her depart-
ment she found that the unfinished work had in fact been
finished by otheis while the employees were in the meet-
ing. She went upstairs to apologize to Tarazewich.
Autry's record testimony is:
A. When I got. upstairs to Bill Tarazewich's
office, I asked him if I could speak to him.
He said, "Sure."
I said, "Bill, I am sorry about the blowup that I
did to you and what I had said in front of all those
people . I realize I cannot take it back now because
those people are not here."
I explained to him that when I had gotten down-
stairs that the work was done
He said, "Well, that is' what comes when you
have an attitude problem," which was a famous
saying of his. So I said, "I do not have an attitude
problem. I have a temper." There is a difference be-
tween an attitude and- a temper.
At which time I let my temper get out of hand.
He said he did realize this.
I told Mr. Tarazewich that I was very pleased
with my work; that I had no attitude when it came
to my work. I was always willing to do my job, but
that I did not see that it was fair for him to push
more on me than he would anyone else, which
there was an extreme amount of work. I told him I
felt it was, unfair that he had put me in this situa-.
tion. He had no way of knowing that he had done
the work. Had he had any way of knowing that
they had done the work he would not have said ev-
eryone except the H Department.
I said to him that some days I had given him 100
percent. Some days.I had given him even more.
Bill Tarazewich told me that he was sure that I-
since I was that positive about my job record; that
he was sure that I was a good employee; and that
he knew there were several good people in the
warehouse that he would like to take to Corsicana
with him. ,
I told him I thought there was too.
This is the end of the conversation.
Q. Are you sure that he said "several"?
A. I believe his exact words were "approximately
200 people" that he would like to take with him.
Q. Why?
A. I recall him saying approximately 200 people,
but to me this wouldn't make sense.
Q. Regardless of what he said made sense, we
only want to know what he said with respect to
how many people.
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. To quote him exactly : "There is -about 200
people in this warehouse I would like -to take with
me to Corsicana" was his exact words.
Q Is that all that you recall that he said or that
you said ? Did you say anything after that?
A. Not other than what I had stated previously.
Q. Then what happened?
A. I left I' told him that I was sorry , and I went
on
Autry described herself as a guinea pig. She was
braver than most employees and she would on 'occasion-
do things not ordinarily done or that were unknown in
terms of repercussions When employees would learn
that she had done it and did not get into trouble they
would do it.
Autry did request a letter of recommendation from the
Company but could not pinpoint the date other than it
was after she, had applied for work in Corsicana and
before she saw Murphy for the last time on April 29.
Autry also was caught up in the Company's progressive
discipline system due to absenteeism. Her final warning,
which would precede automatic termination , included a
3-day suspension and was issued on March 16, 1983. The
suspension was effective March 18 through 21. Autry did
not file a grievance because of her discipline. which re-
sulted from absences. Autry was never told by any
Cotter representative why she was not hired for the Cor-
sicana facility nor did she ever "ask any Cotter represent-
ative why she was not hired'for the'Corsicana facility.
William P. Autry, Sharon Autry's husband, testified
that he filled out 'two applications to go to work in Cor-
sicana One in January 1983 and the other when Sharon
did hers the first week in March. He had to fill out a
second because-the first had been lost. William Autry
talked to Tarazewich on filing the first application' at the
time he turned it in. Tarazewich looked the application
over and asked if Autry' had thought about moving to
Corsicana. Autry said he would if he was hired Tar-
azewich then said he would not hire anyone with a
Dallas address. William Autry's application" does not
have a Dallas address
James L. Hicks testified that his law firm represents
Teamsters 745 and in-the early fall of 1981 the Union in-
formed him that Cotter announced to them that the
Dallas facility was to be moved. Although the Hicks
firm represented the Union in negotiations it is not repre-
senting the Union in this litigation.
Hicks did on occasion represent the Union in negotia-
tion with Cotter as-did James Prda and Michael Kline,
business representatives of Teamsters 745. Cotter. was
represented by House Counsel Richard Lynn and Gener-
al Manager Bill Tarazewich. The Union and the Compa-
ny had several alternates who attended from time to
time Chief Steward Wayne Lawson for the Union and
Charles Full, corporate personnel officer for the Compa-
ny. One such meeting that Hicks attended and at which
he took notes was the meeting of July 21, 1982. Another
meeting attended and recorded by Hicks was January 21,
1983.
The July meeting began with an amicable discussion of
a pending grievance. It was followed by a discussion of
the severance package which was a continuance of that
started by Prda and Kline Lynn then expressed the will-
ingness of the Company to give employees time off to
find other work and to permit Dallas employees to apply
in Corsicana as new hires Hicks asked Lynn if Cotter
would allow Dallas employees to, transfer to Corsicana
and Lynn said, "No." Lynn said that Cotter was moving
to a new city and had established good relations with the
city and did not want to harm that relationship with an
injection of all Dallas employees. Cotter felt an obliga-
tion to the people of Corsicana. Hicks asked Lynn if
Cotter had an obligation to its Dallas employees and
Lynn responded that Cotter had no obligation to permit
them to transfer.
Hicks then proposed a settlement of all issues between
the parties. He proposed, in order to avoid litigation, that
both the contract and the Union's certification follow to
Corsicana; that those Dallas employees transferring be
red circled at their existing rates; that they.agree to ne-
gotiate a new contract with a new wage level for new
hires; that the contract term through April 30, 1983,
would subsist and if the Union had not signed a majority
of employees by July 1, 1983, it would disclaim any fur-
ther interest in the group. Lynn stated he would take it
to his principals and added that he and Hicks differed on
the law" with regard to according the union recognition
in Corsicana. Hicks told Lynn that the Union would
fully litigate the Union's right to recognition in Corsi-
cana . Hicks also told Lynn that Cotter's acceptance of
the settlement offer included the Union's acceptance of
Cotter's severance proposal. Lynn then asked how many
Dallas employees actually wanted to transfer to Corsi-
cana. Prda gave Lynn a percentage of employees. Lynn
had been given a percentage figure before in negotiations
and he asked why the present figure was larger. The un-
employment situation in Dallas was then' discussed at
length. The employees were never polled about their de-
sires on transfer.
Lynn then offered the circumstances in which Cotter
had closed and moved facilities in other cities, such as
Philadelphia, Chicago, and Harvard, Illinois, and Los
Angeles. The Philadelphia move was about 70 miles and
the Company, contrary to the 50-mile clause in the con-
tract, recognized the Union at the new location and had
charges filed with the National Labor Relations Board.
Los Angeles entailed a move of only 20 miles. Chicago
and Harvard involved two moves with one in excess of
50 miles and one not. In the excess case the Union was
not accorded continued recognition; in the lesser case the
Union was recognized. Each move involved the 50-mile
radius clause of the contract that requires Cotter to con-
tinue recognition if the move is within the 50-mile radius:
Lynn in response to union questions said that the Cor-
sicana facility was to perform the same functions as the
Dallas facility and he did not know,-if management offi-
cials were moving to Corsicana. Lynn stated that wheth-
er management officials moved to Corsicana was none of
the Union's business . Lynn also responded that some
equipment from Dallas would.be moved to Corsicana.
Kline asked Tarazewich if he was going and Tarazewich
COTTER & CO. 731
said he had been told by company officials that he was
going . The meeting then-ended.
Within a few` days Hicks called Lynn and, told him
that' Hicks was withdrawing 'the settlement proposal
made on July 21, 1982. Lynn" acknowledged the with-
drawal and said he understood.
Hicks was present for the January 21 meeting in which
alternate Lawson augmented the union team and alter-
nate 'Charles Full augmented the company, team. The
meeting opened with the Union asking if there was any
additional information concerning. when Dallas would
close and Corsicana would open. Lynn said Dallas
should close the first or.second week of May and Corsi=
cana should open between May 20 and June 1. Hicks
asked if anyone had been hired for the Corsicana facility.
Lynn responded that some management and supervisory
personnel would be. moving from Dallas to Corsicana
and that some positions in Corsicana had been filled. In
further response Lynn stated that there were 20-rank-
and-file employees and supervisors already hired and that
they were being trained in Dallas for work in Corsicana.
Lynn said the Company's position was that they could
not legally take the contract and recognize the Union at
Corsicana. Hicks stated that if the 'Company would rec-
ognize the Union in Corsicana and apply the contract,
the Union would save the. Company harmless and defend
any lawsuit arising from such recognition and/or con-
tract. Hicks said the contract is- being honored until it
terminates., Hicks again . asked if, the Company would
consider transferring Dallas employees to Corsicana.
Lynn answered, "No," but "they are" eligible to apply
as new hires in.Corsicana. Lynn stated that the compli-
ment of Corsicana would be about 150 employees and
they would likely open the-facility with 140. Lynn was
asked how many Dallas employees had. submitted appli-
cations for Corsicana and Lynn said two and their appli-
cations were being processed. Hicks asked for a caucus
at this point. -
Hicks returned from-the caucus and said he thought
they were-at'loggerheads. Hicks said he'felt it was essen-
tial that the legal issues between them be resolved before
any meaningful baigaining could take place. The 'Union '
was not refusing to meet further but it did not appear
that more negotiations would be fruitful. The Union was
going to file a grievance for arbitration and charges with
the Labor Board.- It was the Union's position that the
grievance was- independent of-the charges. The Company
agreed to expedite'the grievance and have an-early arbi-
tration. Lynn asked permission' to explain the'severance
package to the employees to avoid confusion but Prda
said , "No," that the Union would meet -with the employ-
ees. Hicks asked Lynn if the employees could be assured
that they .would receive nothing less than the Company's
proposal that was on the table. Lynn 'assured the Union
that it could so. advise the'employees.-The' existing con-
tract did not'. contain any severance benefits clause and
Lynn added that' irrespective of whether any 'other
agreement was reached between the parties, the Compa-
ny's proposal on severance remained viable. Hicks left
the meeting at this point and Prda, Kline, and Lynn dis-
cussed several pending grievances.
Hicks stated that in the arbitration hearing the Compa-
ny' said it ' would allow bridging of seniority for any
Dallas employee who was -hired to work in Corsicana
with r̀egard to vacations and pensions . Also Dallas em-
ployees ' date of hire would be the date they applied
rather than when they actually went to work in Corsi-
cana . Hicks said seniority had not been discussed before
between the parties because the Union considered the se-
niority secondary to transfers and wanted -to finalize the
transfer first . He did acknowledge that he was aware of
a company proposal including bridging of seniority made
prior to the arbitration hearing . Hicks also explained that
the Union 's request for transfers of employees did not
mean an automatic transfer of all employees but rather a
transfer of those employees desiring to go to Corsicana
and carrying with ' them some indicia of past seniority
and wage benefits although the ,parties never got to the
point of defining "transfer" as he was using it. Hicks, al-
though representing the Union , did not stay abreast of
the negotiations unless Prda or Kline specifically called
on him for something . Hicks 'testified as follows:
Q. Mr. Hicks , you have generally I suppose fa-
miliarized yourself with 'the union 's position in these
negotiations that occurred , the six , seven or eight
sessions . Whatever it was.
A. In general . I cannot tell you what the union's
position is on the elements of the severance pay
package.
Q. I understand, sir.
Could you tell me what the union 's position has
been on the question of recognition of the union in
Corsicana?
A. Before the arbitration? -
Q. Yes, sir, at any time . If it has changed, I
would certainly be interested in knowing that.
A. We were of the view-the union was of the
view prior to that time , based upon my advice, that
the contract permitted-arguably permitted, argu-
ably required • recognition at the Corsicana facility
based upon the 50 mile radius clause.
Q.' Was this premised , Mr. Hicks , upon a belief
that the movement-the closing of the Dallas facili-
ty and the opening of the Corsicana facility would
occur during the life of the contract?
A. It is premised on several things . It is premised
-on the notion-
Q. Was "it premised in' part on 'a belief that this
closing and opening would occur during the life of
the agreement?
A. It was premised upon the existence of the
agreement and the recognition language. It was pre-
mised upon the possibility that we had ' never had an
opportunity to explore that if in fact the majority of
the employees might transfer.
It was premised upon the notion that at least
given the proximity of these facilities that this could
be a legal accretion for which we were entitled to
the presumption of 'majority status . All of those
things.
Q. All right,- sir. ' ,
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The contract recognition clause was, as you ac-
curately pointed out, held for naught b}% the arbitra-
tor; but it also became meaningless upon the termi-
nation of the contract, did it not?
A. Well,'the union recognizes that in losing that
arbitration whatever rights we had under that con-
tract to recognition. are extinguished.
When this local 'union loses, it loses and goes
about its business on that point.
Q. Yes, sir, I would agree with that.
Has the union ever moved off of 'its demand for
recognition at the Corsicana facility, the arbitration
case notwithstanding?
A. Obviously we would still like* to. be recog-
nized there, but given the fact that the factors that I
indicated, including the' opportunity for a majority
of employees to transfer has been extinguished by
the company's conduct. By the fact therefore that
we have no vehicle to an accretion determination
and given the' fact that we have lost the contract
language issue, we recognize at this point that we
have no vehicle to attach to.
If that constitutes abandonment, we have aban-
doned that position.
Q. When did you abandon your position, if you
have abandoned your position, that there should be
a contract-a collective bargaining agreement ap-
plied to the folks down at Corsicana?
A When we lost the arbitration.
Q. So is it your testimony then, Mr. Hicks, that
you have abandoned both those positions as a result
of the arbitration decision?
A. I am not sure abandonment is the right term.
We recognize at this juncture that we have no legal
vehicle to ride on either of those issues, but we
view those as being separate from, the issue of the
rights.of employees to-transfer.
Q. Would it be then a fair statement, Mr. Hicks,
that you maintain that position, and- that you have
never moved, from that position, that is, recognition
and application of-contract through every' bargain-
ing session if the bargaining ended on March 25,
1983?
A. The union still continued to press' what it
thought were its rights in that sense until we lost
them. `
Q. So the answer is yes?
A. Independently we continued to press for the
rights of employees to, transfer.
Q. Yes, sir. So the answer is yes.
A. That is why we,are here....
Q. The answer is yes?
A. As limited by my statement.
Q. Did you testify on direct, Mr. .Hicks, that
when "you made your-proposal to Mr., Lynn to re-
solve all issues , that you were not particularly ac-
quainted with nor aware of the benefits that the
company had put in its severance proposal;, that is,
the benefits that are certainly not required by the
collective bargaining agreement?
A. Specifically was I aware of them?.They had
been told to me, but can I recite them -now, no.
t
Q. All right.
You knew generally the company, had made con-
cessions regarding severance pay and other type
benefits, is that a fair statement?
A. I knew that they had made a package propos-
al, and that there had been discussions about it.
How they got there-through whose concessions,
Mr: Prda and Mr. Kline will have to tell you that. I
'don't know. •
Q. I understand.
Whatever those benefits were though, they were
satisfactory if the company had recognized the
union in Corsicana, isn't that fair?
A. I am not sure that I understand. Did we ever
talk about whether' or -not for those who didn't
want to transfer and'stay in Dallas was this sever-
ance package acceptable if we 'were recognized? It
was never talked about in my presence in that con-
text. '
Q. You testified on-direct, didn't you, Mr. Hicks,
that you told Mr. Lynn that if he- would follow
your proposed resolution, which you were subse-
quently unable tb-you had to withdraw.
A. That is right. •
Q. But if. he 'would accept that, the severance
package' then existing-and that was back in July of
1982-was satisfactory? -
A. That was my proposal, and my client would
not accept what I had proposed as a means to re-
solve it.
James Wilson, an associate of the law firm which rep-
resents.Teamsters 745,-testified that he was present at the
negotiating session of March 24. Wilson kept notes on'
what transpired during the session..At this meeting Dan
Burns joined the company- team and Chief Steward
Lawson joined the union team. An additional union
member Cecil Gurno joined the afternoon session on
behalf of the Union. The meeting opened, with Wilson
asking Lynn if the Company could ' apply the existing
contract to the Corsicana facility or in the alternative if
the Company would bargain with the Teamsters for a re-
newal contract to be applied to the Corsicana facility'.
Lynn said the Company would do neither because both'
would violate Section 8(a)(2) of the Act. Lynn did say
that the Company was prepared to continue discussion
on the effects of the closing of the Dallas facility. Kline
offered.a. union proposal for a renewal contract at the'
.Corsicana facility but Lynn declined to discuss it for the
reason.he previously stated. Wilson then asked Lynn if
the Company would, permit Dallas' employees to transfer
to the new Corsicana facility. Lynn stated that the Com-
pany would not do so for three reasons: (1), the Compa=
ny had no obligation to permit Dallas employees to
transfer to Corsicana; (2) differing conditions in Corsi-
cana prevented red" circling, that is, permitting Dallas
employees 'to transfer to Corsicana with the same terms
and conditions of employment; and (3) in his view per-
mitting Dallas employees to make application for eni-
ployment at 'the new Corsicana facility was the"same
thing as permitting them to transfer from Dallas to Cor
sicana without application.' Lynn said the Company
COTTER & CO
would accept applications from. Dallas employees and
had already offered employment to two Dallas appli-
cants, R. L. Roberson and Cynthia Bivins. Lynn stated
that at this point in time the Company.had not rejected
any Dallas applicants but such a rejection.could occur in
the future. Also any Dallas applicant who accepted em-
ployment in Corsicana would carry his or her full Dallas
seniority to Corsicana for two purposes, namely, pension
and vacation.
The parties next discussed severance. Wilson asked
Lynn if the Company was willing to bargain with the
Union regarding severance pay for Dallas employees
whose employment at Cotter & Company might termi-
nate as a result of.Cotter's move from Dallas to Corsi-
cana . Lynn replied that the Company was willing to do
so. Lynn then made a proposal referred to as "effects of
closing subjects," prefaced with the fact that the Compa-
ny was negotiating with a driver leasing , organization
and assuming that a contract was consummated, the
trucking operation out of Corsicana warehouse would be
their responsibility.
The Company offered, severance of 1 week's pay for
each complete year of service and a prorated amount for
incomplete years to all employees whose employment
terminated asa result of ,the moving of the warehouse.
Lynn added-that he expected the Dallas facility to close
between May 5 and 25. Any employee who applied for
work in Corsicana and was accepted would not get sev-
erance pay; however, any Dallas employee who applied
for Corsicana and was not'accepted would be eligible for. -
severance pay. With regard to early separation, Lynn
said that employees who voluntarily quit or were dis-
charged for cause would not-receive severance pay but
an employee who resigned within 30 days of the facili-
ty's terminal date to accept other employment and who
had given 2 weeks' notice to Cotter would receive the
severance pay.
Lynn then proposed that the Company would pay em-
ployees for unused vacation pay at the rate of 'one-
twelfth of their regular rate of. pay for each full month of
service since their last anniversary date. Next the Com-
pany offered to pay all employees, for any accrued but
unused sick pay up to their date-of termination. Disabil-
ity pay was discussed next with the Company stating
that an employee 's rights to disability pay under the con-
tract would be honored until the date the employee actu-
ally terminated . Wilson suggested that disability pay
should continue beyond the date of termination' which
results from the closing of the Dallas facility. Lynn said
he would have to consider payments beyond the closing
date. Lynn did state that the Company would not con-
test any employee 's application for unemployment bene-
fiis whose employment terminated as a result of the clos-
ing. - -
Lynn also offered that, any employee that required
time off without pay to seek other employment would be
approved up to a maximum of two employees per day. If
more than two asked on a given day, approval would be
based on seniority. All requests would have to be a day
in advance . The Company- also stated that it would co-
operate with the Texas Employment Commission and
any prospective employer to the extent that Cotter em-
733
ployees would be available for employment as a result of-
the closing-of the Dallas facility.
After lunch Lynn said the Company was willing to
agree that any employee receiving disability payments
under the contract could receive the maximum of 13
weeks having started. the disability prior to closing of
Dallas. Insurance for pregnant employees was discussed
with the Union wanting coverage to continue through-
out the pregnancy without regard to Dallas closing. The
Company offered benefits for the remainder of the
month in which employment terminated. The subject of
employees' converting their health insurance coverage
after termination was discussed but Lynn said he would
have to check with the career for the mechanics of such
a conversion.
• Lynn offered to put all the proposals on effects of
closing in a written summary and present it to the Union.
Wilson stated- that he wanted the Company to under-
stand that any agreement of the Union to-the proposals
were without prejudice to any rights or positions that
the Union had taken in any pending arbitration or any
pending unfair labor practice. Lynn replied that the com-
pany proposals were not contingent on withdrawal of
any pending grievance or unfair labor practice charge.
The meeting ended. -
Michael Kline, business representative of Teamsters
745, testified that the events which occasioned the-clos-
ing of the Dallas facility began with .a meeting among
himself, James Prda, Dan Cotter, and Bill Tarazewich on
October 22; 1981. Cotter said the Company was going to
move the warehouse from Dallas to Corsicana and that
the law would not permit the contract to follow the
work or permit the Company to take employees to Cor-
sicana. Cotter then said he' wanted to discuss a severance
pay allowance. Kline told Cotter that the news of the
move was too much of a shock at this point and the
Union was not going to discuss severance at this time.
Cotter explained that the 'Chicago facility which
moved 70 miles did so without moving the employees.
He said the .,move from 'Dallas to Corsicana would
reduce the prevailing wage rate by $1.25 an hour. Tar-
azewich .said some employees would be disqualified from
working in Corsicana because of absenteeism , tardiness,
production problems, and employee records.. He said he
would pick and choose who he wanted and those with
bad records he would not take. Kline asked, "Are you
telling us that the contract and the employees can't go?"
Cotter said, "That is correct." The laws wouldn't permit
it." Cotter said that in order for the Union-to be recog-
nized in Corsicana, the Union would have to resign the
employees once the move was made. .
The Company and the Union began bargaining about
the move on March 17, 1982. Kline, Prda, and Charles
Haddock represented. the Union and Dick Lynn repre-
sented the 'Company. Lynn had specifically requested
that Haddock be at the meeting. For the first hour Kline
kept notes. -The meeting began discussing the office cleri-
cal unit for which there was no contract. A prior verbal
agreement between Lynn and 'the Union set up a proce-
dure whereby the Union would keep Lynn informed of
problems in the unit. Prda told Lynn that Murphy, ware-
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
house superintendent ;. was on the girls too much because
the girls were not informing Murphy when ' Prda was on
the company property . Murphy was also upset because
Chief Steward Lawson was meeting with Prda :whenever
a visitation occurred . Prda explained that grievances
were not being processed properly because Tarazewich
believed . everything that his subordinates told him `and
nothing the Union told him. Tarazewich was being told
a lot of lies by Murphy and Brogdon , and that fact was
creating more grievances . There was also a discussion of
recent work rules which were causing problems among
the employees . One such . rule was the rule on absentee-
ism. Another was, the rule on tardiness .- The rules were
being enforced without any excusable reasons . Prda said
Brogdon had lied about an incident involving the falsifi-
cation of a driver 's logbook Prda said the people in the
warehouse felt. that the rules were designed to get rid of
them before the move to Corsicana . Prda said the prob-
lem with settling the grievances arose, because the Com-
pany did not ' address . ,the merits but rather addressed
timeliness , proper filing, or some procedural defect in the
grievance . In all, nine grievances .. were discussed.,-and
Prda withdrew two because of lack of ment.. Lynn took
notes on all ' the grievances 'and vowed to investigate
each and get back to Prda.
Haddock asked Lynn if the Chicago move had been
worked out . Did-the Union have a contract at the new
location? Lynn replied that the Union did have a new
contract at the new location some -70 miles ' distant. Had-
dock had known about the Chicago move beforehand.
At this point Haddock asked how the construction was
going - in Corsicana., Lynn said the land - was -being
cleared . Lynn stated that he thought the parties' posi-
tions were clear. The Union felt that the contract 'and
the employees should go to Corsicana . The Company
felt that, under the preseni . laws, they were not obligated
to assume the contract or' all the employees in Corsicana.
Lynn said the Company was not inflexible and since the
employees were unsettled maybe the parties could re-
solve some of the differences and work something out
for Corsicana . Lynn said he wanted to know what the,
Union considered necessary to complete the move to
Corsicana and take the ' people with the contract, 'al-
though Lynn - cautioned that he did not feel he was under
an obligation to actually negotiate abouttaking-
e mploy=e s to Corsicana . Haddock said it was only 'right that
long-term employees be allowed to go'to Corsicana. He
thought a ' situation whereby the employees could keep
their `fringes ; their benefits , and their pay , could be
worked out and a lower wage structure could be negoti-
ated for new hires if the Company needed additional em-
ployees . Haddock asked about the drivers ' rates in Corsi-
cana , then -added that -- a lower rate may • be negotiated.
Haddock explained that the union position was.that any
Dallas employee making the move would keep his or her
rate of pay . Kline, in response to a -question , said he
thought about 30 percent of the people would want to
go- and all 19 regular . drivers probably would go. Kline
explained that with unemployment constantly changing
and rumors abounding , the actual number of people will-
ing to go to Corsicana could not be determined . 'Because
it could 'not be determined, it was impossible to' know
how many vacancies would be left for new hires and the
amount of savings to the Company . Kline asked what
rate of pay drivers would receive and Lynn said that
would not,be a problem.
Haddock reiterated the Union 's position that the older
people should be allowed to follow the work . He said it
would not be right to take anything from them. The
Company could save money on new hires . Lynn said,
"Okay , I will get with Dan Cotter and I will give-you a
call back."' Haddock told Lynn , "No sir . That is why I
have got James Prda and Mike Kline on the payroll. You
give them a 'call back , and you all ' work out all the de-
tails." At this point the meeting adjourned.
The parties next met on April 29 , 1982, and Kline was
present with Prda , Lynn , and Tarazewich .: Lynn started
by asking for a list of all'the items that ' the Union wanted
to negotiate for over the move. Lynn explained that al-
though he did not have to negotiate 6n-the move itself,
he` wanted ' the Union 's thoughts to review with-Dan
Cotter. Kline said that he and Prda would prepare such
a list and get back in 2 or 3 hours . This -list was an exten-
sion of- the prior meeting on March ` 17 to formulate all
the conditions that the Union wanted to talk about re-
garding the move. The parties then took a break. During
the break Prda and -Kline together compiled a list of 13
items and had Lawyer Hicks review them before presen-
tation 'to Lynn. Hicks approved the list . The meeting re-
convened that same afternoon but Kliiie did not have -an
independent recollection ' of its substance , but he did
recall that he verbalized the 13 items to Lynn and Lynn
recorded them.
The next meeting occurred on. June..16, 1982, with
Kline, Prda, and Lawson present for the Union and
Lynn and Taraiewich for the Company . The meeting
began with the ' Company agreeing to discuss certain
items among the 13 from the previous meeting and de-
clining to discuss others . The items and the Company's
responses are: - -
1. Union recognition in Corsicana. Lynn said
Corsicana required recertification.
2.. Union right to renegotiate on any condition
beyond those listed : Lynn said no, the current con-
.tract terminates when Dallas closes:
pro rata for those not relocating.
6.' Unibn wanted a sick pay allowance based upon
each month worked until the Dallas facility closed.
Lynn. said company . would pay all accrued sick
leave and .that disability would terminate the day of
closing.- ' '
" 3. No waiver of rights not contemplated. Lynn-
such was the Union 's right but it was non-negotia-
ble anyway.
4. Union wanted all -non-monetary items in con-
tract to apply to Corsicana . Lynn-No, the contract
does not apply to Corsicana.
5. Union wanted all employees desiring reloca-
tion to maintain all current vacation benefits and
those' benefits become part of Corsicana ; those not
desiring relocation get pro rata . Lynn did not agree
to employees desiring to relocate but did agree` to
COTTER & CO 735
7. Union wanted employees relocating to keep-
current holidays, jury duty, and funeral pay bene-
fits. Those employees not relocating get an addi-
tional holiday paid upon the facility closing.
Lynn-denied because only could occur after recer-
tification.
8. Union wanted grievance-arbitration of current
contract to apply to Corsicana. Lynn denied since
recertification required
9 Union wanted all time limits in contract ex-
tended two times and substitute arbitration • for an-
impartial grievance committee Lynn denied since
recertification required.
10. Union wanted employees relocating to keep.'
contract benefits of hospitalization and insurance in-
cluding disability; those employees not relocating be
given six months coverage beyond closing. Lynn
only agreed to payments for all employees to last
day of month of their employment.
11. Union wanted employees relocating to keep
their current wage rate for an additional month to
allow union time to negotiate old and new rates in
Corsicana ; those employees -not relocating be, given
severance pay within two weeks prior to termina-
tion at a rate of two weeks pay for each year of
service. Lynn said -no to the wage rates and no to
prior payments. All employees, not relocating would
get one week's pay for each year of service.
12. Union wanted the disciplinary record of all
employees relocating , to be invalidated at the time
of transfer Lynn denied.
13. Union wanted all employees relocating -to be
.reimbursed for' all moving expenses . Lynn-the
company would give time off to employees to look.
for work and would assist in a job placement pro-
gram. ,
Kline stated that Lynn's agreement only to the items
dealing with employees not relocating had shocked
them . Kline asked Lynn if he was reneging on his prior
agreement with Haddock on March 17, 1982. Lynn said
there was never any agreement. Kline asked Lynn if the
Chicago move of 70 miles discussed previously had been
worked out. Lynn said yes, that the Union had a new
contract at the new location. Lynn said the same circum-
stance prevailed in Manicotto, Pennsylvania. Lynn then
asked to explain the company proposals to the employ-
ees. Kline and Prda told Lynn that they were the em-
ployees' representatives and would not agree to any
company meetings with employees. Lynn said the Com-
pany would-not do it. Lynn then attempted to present to
the Union a document which Lynn said contained em-
ployees not desiring to relocate to Corsicana: The Union
refused to accept it. Kline did not look at it because he
thought Lynn was trying to trick him. Lynn expressed
concern that the employees were upset and confused and
wanted to know when the Union would meet with the
employees to communicate the proposals. Kline and,
Prda said they would meet with employees as soon as
they could get it set-up
On cross, Kline stated that he was the person who
contacted Johnny Gray. He asked Johnny to talk to Eck-
hardt about what he might possibly know that would
help this case in relation to his testimony. Gray had pre-
viously called Ray Monk, the business representative for
Safeway employees, and told him that Gray was work-
ing at Cotter in Corsicana. Monk in turii gave Gray's-
phone number to Prda and Kline for the Union's use if
Gray was needed. Kline also stated that the Union's posi-
tion throughout negotiations was that the Union be rec-
ognized as the representative of Corsicana employees
and either the Dallas contract applied at Corsicana or a
new contract was to be negotiated. Kline said on the
Union's position, "We were unflexible"
James S. Prda testified that he represented the Union
in effects negotiations with Cotter. Prda- was aided in ne-
gotiations by Mike - Kline and on occasion by Wayne
Lawson, chief steward. Prda was present at all negotia-
tion sessions.
Prda attended and kept-notes of the March 24 and 25,
1983 meetings. Attorney James Wilson also attended the
March 24 meeting. Wilson opened the meeting by asking
Lynn if the Company had a, proposal on transferability.
Lynn said the Company's position-that the contract not
apply in Corsicana and the employees not transfer-had -
not changed. The Union asked why was there no change
in the Company's position and Lynn stated because-the
Company was not obligated to do so. Lynn stated that
the Union's proposal to red circle employees was unlaw:
ful. Lynn added that ,all Dallas employees could apply
for a job in Corsicana. Of those applying at this point,
some were offered employment and none had been re-
jected. Lynn specifically named R. L. Roberson and
Cynthia Bivings as having applied and been offered em-
ployment in, Corsicana. -Lynn- said that all Dallas employ-
ees employed at Corsicana would retain their full seniori-
ty for pension and vacation purposes. Wilson asked Lynn
if the Company refused to recognize an employee's right
to transfer without a new application and Lynn an-
swered' affirmatively. Wilson then asked if it was possible
for the -Union to bargain for the employees at Corsicana.
Lynn said, "Sometime in the near future the present
agreement will terminate and we're here to discuss the
effects of the closing . Renewal proposals are inappropri-
ate at this time." Wilson asked if any conditions would
allow the Company to agree to, employees' transfer
rights. Lynn said that transfer rights were inappropriate
because of conditions in Corsicana and certain employees
would not be acceptable due' to tardiness, production,
and absenteeism problems in their work records. Lynn
asked Wilson if the Union expected the current contract
to follow the work. Wilson replied, "Yes," and asked if it-
was appropriate to discuss severance-as a result of the
Dallas facility closing. Lynn said, "Yes,"-the Company
was prepared to make a proposal on severance as well as
all subjects that need to be covered. Wilson asked for
any such-.proposal to be put on the table. Lynn gave a
verbal proposal recorded by the Union and the Union
thereafter caucused. The proposal on severance was- 1
week's-pay for each complete year of service and prorat-
ed for fractional years. Any employee could grieve his
or her amount and the termination date-for employees
would be between May 5 and 25. Employees, to qualify,
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must stay until closing or give a-2 weeks' notice or less
based on circumstances. After discussion, the Union pro-
posed April 1 as- a cutoff. date for severance eligibility.
without any need to give notice. Lynn proposed earned
vacations would-be paid plus one-twelfth for each calen-
dar month completed since the last anniversary. All ac-
crued unused sick pay would be honored. Disability pay
would continue until the termination date of the employ-
ee- and the Company would not contest any unemploy-
ment compensation claims. All employees had the right
to apply for employment at Corsicana but any employee
accepted for employment at Corsicana would -waive' all
severance pay and retain full seniority - for pension and
vacation benefits.,Lynn also said that the Company was
about to enter into a contract with a driver-lease corpo:
ration for the trucking operation at Corsicana. Wilson
asked if vacations in Corsicana would be the same as in
Dallas. Lynn replied that Corsicana would not have a 3-
or 4-week vacation period but any Dallas employee
would continue receiving what he had been getting re-
gardless. Kline asked if the Company would put the va-
cation concession in writing for all employees wishing to
go to Corsicana and Lynn replied that the Company
would. Lynn stated that the Company would do what-
ever it could to help people find jobs including running a
newspaper ad. Wilson asked if pregnant employees
would continue receiving insurance benefits beyond their
employment termination. Lynn said he would have to
check with the carrier. The Union. asked that the con-
tract be extended to cover employees until they were ac-
tually terminated and for gnevances 'use the joint-area
grievance committee instead of arbitration. Wilson asked
that the severance package be reduced to writing so the
Union could take it to the membership, but any accept-
ance ' of the package did not prejudice the Union 's posi-
tions in 'arbitration ' or the Labor Board charges respect-
ing the Company's decision'to relocate. Lynn agreed to
reduce the proposal to - writing and respected ,the -Union's
positions-before arbitration and the Board. The meeting
ended.
The same parties met the next day, March 25. Lynn
responded _to the Union -request on health insurance by'
saying the Company would agree to maintain coverage,
of terminated employees for the full month in which ter-
mination occurred,- and employees could individually,
assume coverage thereafter including pregnant women.
If any employee had assumed individual coverage and
was later employed by some company, the employee
could cancel the Cotter coverage and receive a -refund.
Lynn proposed April 8 as , the cutoff date for sever-
ance eligibility without necessity of giving notice and
agreed to extend the contract until the Dallas facility ac-
tually closed , but ' to eliminate contract classifications on
May 1 and use the drivers to haul inventory and goods
to Corsicana . Lynn- also agreed that grievances be han-
dled by the joint area- committee, but discharges for
cause would still have to go to arbitration . Kline asked
how the employees would be selected for termination as
the facility neared closing . Lynn said all terminations
would -be by` seniority from the bottom up. Lynn stated
that the Company ' would attempt to have each employ-
ee's money ready the day he or she left and each would
receive three checks: one for the last weeks pay, one for
vacation and sick leave pay, and one for severance pay.
All employees would also be notified prior to termina-
tion of their retirement accrual and when they could get
it if- that was their wish . Lynn agreed to check whether
an employee who was within 2 to 3 months of vesting
on retirement could be allowed to vest after the closing.
Prda'asked for all the company proposals to be put in
writing to facilitate the Union presenting them-to the
membership . Throughout this meeting Kline repeatedly
attempted to get Lynn to negotiate on a renewal con-
tract at Corsicana but each time Lynn refused Kline's re-
quest . The contract proposal was the • same as that of-.
fered in writing by the Union on February 23 with its
notice to modify the existing agreement or, failing any
negotiated modification , to allow the ' current contract to
terminate. -
Prda reflected on all the negotiations and stated-that
throughout the sessions the .Company expanded on its
offers and made new proposals in an effort to reach an
agreement . Up to and including the last meeting of the
parties on March 25 , the Company had, made eight new
proposals to the Union. Prda-acknowledged that in the
10=years he had known Richard Lynn that there was no
occasion which Prda could describe as an antiunion bias -
by Lynn or any instance where Lynn discriminated
against an employee because of his union membership.
Prda stated that the Union 's position throughout bargain-
ing was for the Union to be recognized in 'Corsicana.
Prda also recalled that in the March • 17, _ 1982 bargaining
session wherein Haddock , Kline , and Prda made several
proposals, Lynn stated - that he would take the proposals
to management and get back to the Union with a compa-
ny -position.
Richard Lynn testified that he has been with Cotter
for 11 years and presently is vice president and general
counsel . He and Dan Cotter have the responsibility for
all labor relations . Cotter is a cooperative composed of '
member stores , 7000 in all , and each store owner is a
stockholder owning 10 shares at $100 par . All stock is"
owned by the 'members except 10 shares owned by
Cotter senior. The board of directors are nominated and
elected by the stockholders and the board in turn elects a
chairman. The board selects officers to run and manage
the corporation . All officers are responsible to the board.
Member owners are independent businessmen and are,-
not answerable to the officers or the board , nor do the
members have any responsibility for management of the
corporation . There are no scheduled visitations of mem -
bers by the corporation officers other than semiannual
merchandise markets held in the fall and the spring. In
addition to supplying merchandise by volume purchas-
ing, the corporation manufactures paint ,. lawnmowers,
wheelbarrows, and space heaters, for distribution to
member stores. . '
The -Dallas distribution center had, outgrown itself 5
years ago and' an addition of 120,000 square feet was
constructed bringing the warehouse to 320,000 square.,
feet. That addition took all the available space. The
warehouse employees numbered approximately 115-130.
During 1981 • the Company began injecting variety mer-
COTTER & CO. 737
chandise into its, inventory and Dallas again .was too • 10 percent; therefore the Union would not have a major-
small. With low ceilings, poor lighting, and no.,available
room to expand further, the Company decided that the
most economical solution was to find another location
and build a new warehouse to accommodate the in-
creased ,inventory and . the new warehousing concepts
such as flow-racking (storage bins that are automatically
refilled as items are removed). Dallas.had static bins that,
when emptied, had to be refilled by hand. _,Corsicana,
Waco, Abilene, Brownwood, and several other towns
were under consideration in August 1981. President Dan
Cotter, on October 22, 1981, met with the union repre-
sentatives and, in a separate meeting, met with the Dallas
employees. Cotter told the Union and the employees that
the Dallas facility was antiquated and would be closed.
°On October 26 Lynn contacted Representative Prda
about negotiating on the effects of the closing. Prda in-
formed Lynn that there was nothing to negotiate and the
Union would do everything in its power to disallow the.
Company to close the Dallas facility and move to a new
location without taking the contract and the employees.
Lynn, who was unable to travel due to open heart sur-
gery, offered fo send an alternate to Dallas to discuss the
closing with the Union or to meet with the Union him-
self in Chicago. The Union iejected both offers and
ity status. Prda said more like 20 percent would go to
Corsicana. Lynn said the Company would not red circle
employees, would not allow the contract to 'follow the
work, and would not recognize the Union in Corsicana.
because to do so would be unlawful. Lynn said what the
parties should do is negotiate the effects of closing
Dallas and moving to Corsicana on the employees and
then if-the Union organizes 'the employees in Corsicana
they can negotiate a contract for Corsicana. Lynn said
the alternative would be to go to war. Haddock said if,
they go to war the 'Union may not win but it would not
lose. 'Lynn said he would consult with Dan Cotter about
the Union's proposal but he stated he. would not recom-
mend, the proposal to Cotter. Lynn told Haddock he
would get back with him when he had management's
ariswer' but Lynn said he would be unavailable for 2 to 4
weeks. Haddock told Lynn not to contact him but rather
get with James Prda. The meeting ended.
Lynn did report to Prda that Haddock's proposal was
not acceptable and bargaining on the effects of-the clos-
ing should begin. Sometime later a meeting was set for
April'29, 1982.
On April 29, the meeting was held. Lynn and Tar-
azewich represented the Company and Prda, Kline, and
Chief Steward Lawson represented the Union. The meet-
in b an with T nn r rti th ve o rio ri s
through its counsel Hicks offered 'to meet with Lynn .
when he was able to-get to Dallas. During this interim,'
n a p g e anceg y IF- ngCorsicana was selected as the site for the new ware-, g-
which he investigated. Lynn asked for the union propos-
ho seu .
The parties first met informally on March 17, 1982, in
Lynn's motel-room in Dallas. Lynn had requested that -
Haddock attend since he had never met Haddock. Had-
dock was present with Prda and Mike Kline. Lynn sug-
gested they establish guidelines to follow in negotiating
the effects- of the closing! The meeting actually began
with Prda discussing several pending grievances involy-
ing Supervisors Murphy and Brogdon."Prda Tasked' Lynn
to. make an independent investigation of the circum-
stances suggesting that both Murphy and' Brogdon were
too closed-minded. Lynn recorded the substance of the
grievances and agreed to look into them.'
Haddock then asked when- construction of the new
warehouse would be completed in Corsicana. Lynn of-
fered March 1 to April 15; 1983, as a completion date.
Haddock said that Corsicana was not particularly a
prounion town. Lynn responded that he had heard such
remarks made by others Haddock then offered-to Lynn
the Union's position on the anticipated closing and move.
He said the current Dallas contract will follow the work
and all noneconomic language would remain unchanged.
All Dallas employees who elected to move to Corsicana
would have their wages and benefits red circled and the
parties would negotiate new wages for all new hired em-
ployees. Lynn responded that what Haddock suggested
was unlawful: The Dallas contract had a 50-mile radius
clause and the Company had previously allowed a con-
tract and recognition to follow a move of another ware-
house in excess of 50 miles and was charged with a vio-
lation of Section 8(a)(2) by the National Labor Relations
Board since the Union did not have a majority status in
the new location. Lynn stated that the Company's esti-
mate of employees willing to go to Corsicana was- only
als, demands, requirements, or suggestions for negotiat-
ing- the effects of the closing. The. Union had not pre-
pared any proposals so Lynn asked them, to do so as a
point of reference to begin negotiations. The Union,
agreed to do so and caucused for that purpose but before
adjourning Kline cautioned Lynn that any union propos-
als did not affect the Union's right to continue its dis-
agreement with the Company's position to move the.
warehouse without taking the contract. Later that after-
noon the-parties reconvened. Lawson asked if employees
attending classes could be. excused from overtime work
and Lynn agreed that they could. Kline then orally listed
the Union's proposals and Lynn recorded them. (Lynn
stated that the proposals as testified to by Kline were ac-
curate.) After recording the entire proposal, Lynn said -
he would consult with management and the Company
would respond, point by point. The meeting ended.
During the interim, the parties agreed to meet again -
on June'-16, 1982, and did so. Lynn opened the meeting
by detailing the reasons for' closing Dallas and relocat-
ing, and. suggested that the Union make the reasons
known to their members to dispel any doubts among the
employees. Lynn then responded to each proposal made
by the, Union. Lynn said, "no" to union 'recognition in
Corsicana because the Company felt that was unlawful.
Lynn said "no", to extending the -Dallas contract to
cover the Corsicana facility for the same reason, unlaw-
ful, and that the Dallas contract would terminate by its
own terms. Lynn's response to the vacation proposal was
to -pay all earned but unused vacation plus one-twelfth
for' each complete month as prorated vacation. Any em-
ployee applying for Corsicana and being accepted would
simply continue his -'employment. The Company pro-
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posed to pay all earned but unused sick pay. Disability
pay benefits, would terminate with the contract unless an
employee was already receiving such pay in which event
the contractual maximum would apply. The health plan
benefits were proposed to expire on the last day of the
month in which the employee terminated . The Company
agreed to give a maximum of two employees each day
time off without pay to seek. other employment and if
more than two sought the same day, seniority would
decide. The Companyy also offered to counsel employees,
contact placement services, contact prospective employ
ers, place ads in newspapers, and aid the Texas Employ-
ment Commission in servicing the employees. The Com- -
pany proposed full credit of -seniority including that
earned with'Cotter's predecessor, Walter H. Allen Com-
pany, for severance pay purposes with a payment of 1
week's pay for each year of service. But any employee.,
applying for a job in Corsicana who was accepted and
employed in Corsicana would not receive severance pay.
In addition,, any employee separating employment before
being released by the Company would not receive sever-
ance pay. The Union said they would consider the pro-
posals 'but Kline said no way will the Union accept- a
proposal whereby the people cannot transfer or the con-
tract does not move with the work.
At this point Lynn- asked permission to explain the
proposal to the employees but the Union said ,' "no."
Kline said the only portions acceptable was that on vaca-
tion and sick pay but they would get back to the Compa-_
ny with an answer.
Prda did get back to Lynn and a meeting was set for
July 21, 1982. At the July 21 meeting, the Union. was
represented by Prda, Kline, and Attorney Hicks. Lynn
and Tarazewich'again were present for the Company.
The meeting began'with settlement discussions on a prior
grievance and how to- make it effective. Lynn then re-
capped the prior meetings for Hicks ending with a
review of the Company's present proposal. Hicks said he
viewed the "effects of closing " as two separate issues.
One, the severance arrangements for those employees
not transferring which would be the responsibility of
Prda and Kline . The other was the issue of transfer
rights, - certification , and the application of the contract at
Corsicana which he assumed the responsibility for. Hicks
asked- how employees would be allowed to apply for
work in Corsicana. Lynn said any Dallas employee who
applied and was not disqualified by a poor work record
was to be considered with other applicants and if accept-
able would be offered a job in Corsicana. Lynn explained
that any employee caught up in the progressive disci-
pline system would be .disqualified for work in Corsi-
cana.
Hicks said he had a tenable position regarding the.
right of employees to transfer, certification, and that the'
contract should follow the work. Lynn responded that,
he totally disagreed with Hicks' interpretation of the law
and that the Company had no such obligations.
Hicks asked when the Company anticipated opening in
Corsicana and Lynn replied mid-April to mid-May.
Hicks-then repeated the proposal first made by Haddock
but added: that -if the Union did not have a majority
signed up by.July 1, the Union would disclaim any fur-
ther interest- in Corsicana. Lynn again- expressed his in-
terpretation of the law adding that it'would result in liti-
gation for Cotter as it had in Allentown, Pennsylvania.
Hicks said the Union would take full responsibility for
the litigation only requiring cooperation from the Com-
pany-if employees "bucked." ' Hicks asked about other
moves 'the Company had made and what equipment was'
involved in those and what would be involved in Dallas.
Lynn detailed the moves and equipment involved.
Kline said the severance package was unacceptable be-
cause the Union was, not sure of the Company's position.
Hicks then said he wanted'to add to his proposal but he
did not have the authority of his client to make his pro-
posal. He was hoping his client would go along. Hicks
then added if the Company accepts his proposal and
gives the Union 4 months to attempt to gain a majority
in Corsicana, the Union, would accept the Company's
severance package. Lynn said he would convey the pro-
posal to management and get back to the Union. Hicks
said he would contact Lynn as to whether his client
agreed . to-the union proposal.
Hicks asked why the Company was resisting en masse
transfer of employees . Lynn responded that the terms
and conditions of employment between Dallas and Corsi-
cana were different and the Company felt that the Dallas
employees needed to show an interest for working in
Corsicana. Also the Company wanted to' look at the em-
ployment records of the employees applying to weigh
their applications against other applicants. If an insuffi-
cient number of Dallas employees applied then the Com-
pany should hire Corsicana residents since it was a viable
member of that business community. Lynn also respond-
ed to Hicks that the operation in Corsicana would be
functionally identical to that in Dallas but Corsicana,
would not have , the separate classifications that Dallas
had., Lynn said he would take the union proposal back to
Chicago and present it to management . The meeting
ended without another meeting being scheduled.
On August 4, 1982, Hicks called Lynn and told him
that the union proposal of July 21 was withdrawn be-
cause his client would not authorize it. Lynn then sug-
gested since the parties were back to. square one that'
they,both take a breather and walk away from it for
now. He and Hicks agreed that one or the other would
call sometime after Labor Day to set the date for an-
other, meeting. Lynn was on vacation when Prda at-
tempted to call him and no contact was made. On Sep-
tember 24, Lynn wrote • Hicks suggesting that Prda and
himself set a meeting date. Prda and, Lynn, did make con-
tact to. set several arbitrations of grievances but Prda was
not of a mind to meet for negotiations again. Lynn sug-
gested that the Union talk about a meeting and get one
set. Lynn did not hear from the Union so he went
through his file and recapped the events and put them in
a letter to Prda. He sent the letter certified on November
15, 1982 . Lynn included in the letter a deadline of De-
cember 1, 1982, for.the Union to respond or the Compa-
ny would assume negotiations are concluded and imple=
ment its last offer in detail with the employees. Hicks re-
sponded by letter to Lynn in which he stated-that the ef-
fects negotiations, although hindered by- the opposed
COTTER & CO. -
views - of the law , have been conducted to the satisfaction
of the Union and the Union was'not refusing to meet for
further negotiations . Hicks suggested that a meeting.date
be selected . A meeting was subsequently scheduled for
January 21, 1983.
The parties met on, January 21 in Dallas. Hicks opened
the meeting by asking if the actual date for the closing
and move were decided ., Lynn said the Dallas facility
would close right after May 1 and the Corsicana facility
would open right after - May 20 . Hicks asked if any eni-'
ployees had been hired to work in Corsicana and Lynn
replied , "yes," approximately 20 employees were already
hired . Hicks asked if any of those new Corsicana em-
ployees were working in the Dallas facility . Lynn said
that some of those new employees were working in
Dallas . Hicks said he thought it was inappropriate for
such new employees to be working in the Dallas facility.
Lynn said if that procedure offended the Union the
Company would terminate it. It did offend the Union so
Lynn had the procedure stopped . The parties' again dis-
cussed the basis for the move with Lynn again outlining
the: Company 's reasons . Lynn ended by reminding the
Union that an operation like'this has generally a life of
20-40 years so it is permanent . Lynn again said that
Dallas employees who apply-for work ' in -Corsicana will
be considered eligible for employment if their work
records do not contain progressive discipline ' involve-
ment . Those eligible will be considered along with other
applicants and offered jobs. Hicks commented that the
Company should be more loyal to the Dallas employees
than Corsicana people . Lynn said the Dallas people can
apply and will be hired if they are eligible . Any vacan-
cies left should be filled through advertisement among
the people in the new community into which the Com-
pany has moved.
Kline told Lynn that he committed to Haddock that-
the employees could transfer from Dallas to Corsicana.
Lynn stated that at no time had the - Company said the
employees could transfer from Dallas to Corsicana.
Prda then asked of the employees who had applied for
Corsicana how many were hired at this ' point in time.
Lynn . said one Dallas employee -had been hired. The
Union then caucused. The meeting resumed with Hicks
stating the Union 's position . Lynn's record testimony is,'
as follows:
Mr. Hicks said here 's what we intend to do.
The only way to resolve this is to go to the
Labor Board-for us , namely the union, to go to
the Labor Board ,. because the issue is sufficiently
joined. We're going to do it and we 're going to do
it promptly.
Hicks said the second thing we're going to.do is,
the first part of next week we 're going to file a
grievance to determine the meaning of the recogni-
tion clause and the-.- 50-mile radius provision in that
recognition clause.
And Hicks said the reason we're going to take
this position in this action is that we need to get
some definitions and guidance because there 's abso-
lutely no reason to go forward. He said we're at
loggerheads , and although we're not refusing to dis-
739
cuss anything , we believe that going forward is
futile- when parties are at loggerheads the.way we
are at this time.
Hicks asked if the company would agree to pro-
ceed on an expedited basis according-as far as the
arbitration was concerned.' .
Lynn said absolutely . He'd be happy , to, in other
words, waive the intermediate steps. 'Just have Mr.
Prda or whomever file the grievance and we 'll skip
all the first three or four 'steps, whatever we have in
the contract , and we'll go right on and arbitrate the
case as . soon as we can get it done.
Lynn said to'Mr . Hicks that he thought it was-
and had - mentioned this - many times before. He'd
.been refused every time , but we are getting to the
point 'now that we 're some four months or so away
from opening . And he felt the people were just
being deprived of an opportunity to understand
what was going on between the parties and asked
for the opportunity to talk to , the people and tell
them what 's happening , but if the union denied that,
he felt it was their obligation, their moral obligation
to, tell -the people what was going on, to avoid
rumors. -
Hicks said-, we've met . with the ' people already.
and had told them everything they needed ' to know,
-but maybe they didn 't listen.
.
Mr. Hicks asked a question . At this point in time
he said could he tell the people or could anyone
from the union tell the people that what we had of-
fered , our last proposal, severance proposal so to,
speak, was the bottom line. Lynn asked what he
really meant by that.
Ricks said that that was the minimum - that they
were going to get . Lynn said the company was per-
fectly willing to let them do that , that he could tell
'everyone that was the bare minimal that people
would get upon closing , providing that he did make.
it clear- to the people that anyone who left prior to
being released, voluntarily , or who left involuntarily
by--way of, for instance , a discharge for cause,
would lose that package of severance pay.
Hicks said yeah, he understood that . _ That's fine.
The only thing we did the rest of the meeting
was' we talked about an arbitration ' date. ' We
couldn't really, you,know, get one' that day that
made any sense: And we said we'd 'try to get it
done as quick as possible.
We had a discussion concerning arbitrators and`
arbitration dates , 'and we kind of had some sugges-
tions but we didn 't agree on anything , as to what
arbitrator and what date for the recognition clause'
interpretation arbitration.
Mr. Hicks asked who had -negotiated the arbitra-
tion-excuse me-the clause , the recognition clause,
50 mile radius clause in the contract. Mr.' Prda
guessed that it`was Mr. Winston McNutt , who was
the' distribution center ' manager years ago, and' cer-
tainly at the time of the takeover of Walter H.
Allen. Lynn guessed it' was Dan Cotter. He didn't.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
know but thought that that was a pretty good
guess.
Mr. Hicks asked when the first Cotter contract
with Local 745 was. Mr. Prda and Lynn each said
1965, which was the correct answer. And Mr.
Hicks asked who would'be handling the arbitration,
and Lynn said he really wasn't sure.
The meeting ended.
The parties next met on March 24, 1983. In addition to
Prda, Kline, and Lawson, Attorney Wilson represented
the Union Lynn also had an additional company lawyer,
Daniel Burns. Wilson opened the meeting by taking up
the issue of transfer. Lynn repeated. the Company's posi-
tion on en masse transfers adding that making application
was akin to transfer. Lynn then proposed that those
Dallas employees who made application for Corsicana
and who were accepted would have their seniority
bridged for purposes of 'pension and vacation. Since
these employees would . not receive 'severance they
needed something. Lynn also told the Union that offers
of employment had been made to R. L. Roberson and
Cynthia Bivings, two Dallas employee applicants. Lynn
then'asked the Union how many employees have a desire
to transfer. The Union replied that they did not know.
At this point in time approximately 50 employees had
been hired for the Corsicana facility.
Wilson asked if the Company was "not willing to dis-
cuss renewal of the existing contract because it was un-
lawful. Lynn said, "yes," especially in view of estimates
of only 10-20 percent of the people wanting to go to
Corsicana. Wilson again asked 'if it was'still the Compa-
ny's position that the employees cannot transfer. Lynn
said, "yes," due to the fact that we wished to consider
all applications in order to pick the best qualified work
force in Corsicana.. Lynn then asked Wilson if the
Union's position remained, that the contract follows the
work. Wilson replied, "yes," we definitely take that posi-
tion.
Wilson .asked if the Company had a proposal. Lynn
answered affirmatively and asked for a caucus. When the
meeting -,resumed the Company made an "Effects of
Closing Proposal" to the Union. Lynn told the Union
that April 29 was the final shipping day for Dallas and
the first shipment from Corsicana would be May 23;
therefore, time was short. The Company had now final-
ized a lease arrangement for the trucking operation in
Corsicana. The Dallas contract would terminate on April
30 and would not be extended to 'Corsicana in any sub-
stance. Lynn then added a prorated payment to the sev-
erance pay to cover incomplete years. Lynn repeated the
eligibility for severance pay explaining that the Company
needed uninterrupted service of employees until the day
of the move, but added that any employee leaving within
30 days of the announced closing date of April 29 would
receive severance pay if he or she gave 2 weeks' notice
and the leaving was for other employment, not to go
fishing or to fool around. There was a discussion of sev-
erance pay actually being paid after the April 30 terminal
date of the contract and Lynn agreed that any employee
who disagreed with his severance'pay computation could
grieve the amount as if the contract was in effect. Lynn
repeated the company' offers on vacations and sick leave
and added that any employee receiving disability pay
before the closing date., would continue to receive it
within the contractual limits and not be cut off the day
of closing. Lynn then repeated the company offer on
health insurance payments, vacation eligibility, bridging
of seniority for pensions and vacations, the job fair con-
cept including the Texas Employment Commission cri-
tique at the warehouse, and the. ad in the Dallas paper.
Kline said, "Why don't you take these people if they're
so good? You're trying to pass off your bad employees
on other employers." Lynn replied, "You folks couldn't
care less about our employees and their future. All you.
care about is your union and getting certification in Cor-
sicana. We really-do care about the future of our em-
ployees "
Prda asked about a pregnant employee who delivers
after the closing date and Lynn said the coverage would
not be there. Prda then asked if the delivery occurred
before the 'move and complications later set in, would
they be covered and Lynn said in that instance, coverage
would continue. The parties then caucused. After the
caucus, Prda asked that the deadline for severance pay
be April 1 rather than 30 days-before closing. Prda also
asked that past grievances be handled by the Dallas com-,
mittee rather than the contract clause. Wilson suggested,
that since some cleanup employees would still be on the
payroll after April 29 that the-contract be extended until
their work was finished. Wilson also asked for the sever-
ance package in writing to take to the employees and
added that any acceptance of the severance did not oper-
ate to.prejudice the Union in either its arbitration over
the move or its unfair labor practice charge with the
Board. Prda also asked that if the Company could do
something. extra for any pregnant employees it would
surely be appreciated. The parties discussed a caucus or
adjournment and decided to adjourn to the following
day.
The final meeting between the parties occurred on
March 25. Prda, Kline, and Lawson represented the
Union and Lynn, Tarazewich , and Burns attended for
the Company. Lynn began' the meeting by modifying the
Company's previous health insurance proposal to allow .
employees a full additional month of coverage. Lynn
proposed April 8 as the cutoff date for employees eligi-
ble for severance pay if notice was given and the em-
ployee 'did 'in 'fact have work. One employee, Jerry Blan-
kenship; who had already committed himself to take an-
other job on April 4, was declared to be eligible for sev-
erance pay notwithstanding his separation date was out-
side the prior and present proposal. Blankenship was a
member of Teamsters 745 and on checkoff. The Compa-
ny accepted the Union's proposal to' use the joint area
grievance committee for postexpiration grievances in-
cluding severance pay grievances but excepting dis-
charges which would continue under arbitration. All
preexpiration grievances would be handled according to
the contract. The Company agreed to extend the con-
tract past - its terminal date to cover the cleanup period
but to abolish all classifications of work since everyone
would be engaged in a single cleanup function. Lynn
COTTER & CO.
agreed that pregnant women could extend their coverage
for an additional month beyond the month of their termi-
nation . Lynn expressed the view to the Union that this
was the Company's last and final offer and expected it on
acceptance to settle all the differences between them.
Lynn asked if there was any preference-on how the pay-
checks were processed. The Union said three checks-
one for severance pay, one for vacation and sick pay,
and -one for final wages. The Union asked that all em-
ployees receive a breakdown of their pension account
and the Company agreed to provide that. Prda asked
that the proposal be put in writing and, if Haddock ap-
proved they would present it to the employees. Lynn
agreed to reduce the proposal to 'writing. Kline told
Lynn that he would be in Corsicana to organize the em-
ployees because the Union could not let the Respondent
get away with this. Lynn responded, "Mike, now you're
talking because that's the way it should be." The parties
exchanged handshakes and the meeting ended.
Lynn had the Company's final proposal reduced to
writing and prepared for transmittal to Attorney Hicks,
but before-it could be mailed Lynn received a rejection,
of the proposal from the Union. The Company, on April
6, held an employee meeting and explained the Compa-
ny's final proposal in detail. The following day a letter
containing the same substance was mailed to all employ-
ees. In mid-May Hicks informed the Company that the
proposal could be implemented with the exception of the
Company's clause that acceptance settles all disputes be-
tween the parties. Hicks' telegraphic notice specifically
stated that the Union's request was without prejudice to
its pending arbitration and unfair labor practice cases.
Lynn, in response to counsel, detailed the prior moves
that Cotter had made in other locations'which had been
the subject of discussion during several bargaining ses-
sions and in which the 50-mile radius clause was extant
except the one move in California where the clause was
based on county boundaries.
1973 Move facility from Cleveland to Westlake,
Ohio, 16-17 miles distant. Employees, Teamsters
392, and contract moved to new location.
1976 Move facility of 135 employees from Philadel-
phia to Fogelsville, Pennsylvania, with 125 em-
ployees, 60 miles distant. Twenty two employees
moved; neither Teamsters 169 nor the contract
moved . Teamsters grieved the 50-mile radius
clause and won. Arbitrator ruled company had to
recognize Teamsters even -though Teamsters did
not have a majority at new location . Parties nego-
tiated a new contract .. Unfair labor practice
charge was filed and complaint issued . Case set-
tled by withdrawal of recognition of Teamsters
and voiding of the contract. A different union or-
ganized the employees and, currently represents
employees.
1979 Move facility from Santa Fe Springs, Califor-
nia to Pomona, California , 23 miles distant but still
within the county. Employees, Union, and con-
tract moved to new location.
741
1981 Move facility from Cary , Illinois to Harvard,
Illinois , 18-20 miles distant . Employees , Union,
and contract moved to new location.
1982 Move facility from Chicago, Illinois to Har-
vard , Illinois , 67 miles distant . Neither employees,
Union, nor contract moved to new location.
Within two months the Union organized employ-
-ees and was recognized by Cotter after a card
check. -
Lynn further detailed the organized status of the 11
Cotter warehouses. One, Corsicana, is not organized.
There are 10 organized and 9 of those are under contract
with the Teamsters. The other is under contract to the
Laborers Union. In all the Teamsters service 17 con-
tracts with Cotter employee units. Other unions service
five to six contracts with Cotter employee units.
Lynn stated that Jack-Meadows, traffic manager from
the Indianapolis center, was transferred to Corsicana.
Brogdon, the prior, traffic manager at Dallas, chose not
to make the move. The first shipment out of Corsicana
occurred on May 24. .
The first employee hired for Corsicana, was either in
December 1982 or January. 1983 with the full comple-
ment of 116 employees being reached on May 16. Ten
Dallas employees had applied for work -in Corsicana.
Nine of those applying were considered eligible and _ of-
fered employment. Of the nine, only two employees ac-
cepted the job.offer in Corsicana. The one employee
considered ineligible was Sharon Autry because she was
involved in the progressive discipline system in Dallas..
David Van Buskirk testified that he was employed by
Cotter in Indianapolis in November 1982 and on June 23,
1983, became the operations manager at Cotter's Corsi-
cana facility replacing Bill Tarazewich. For the 4 weeks
prior, he was in charge of the closing of the Dallas facili-
ty. Approximately 70-80 employees were working and
of that number 2- or 3 asked him if they could work in
Corsicana. Van Buskirk stated that according to his in-
structions they should go to Corsicana and fill out job
applications. Van Buskirk was introduced to the Corsi-
cana employees by.Dan,Cotter the day he arrived at the
warehouse. All employees were assembled and Van Bus-
kirk briefly told them he was glad to be in Corsicana and
looked forward to working with them. Van Buskirk
denied telling the employees he wished for Corsicana to
remain a nonunion operation. Van Buskirk stated that
warehouse employees in Corsicana are not classified
other than warehouse . persons and all are expected to do
any job in the warehouse that needs doing. All employ-
ees are assigned to a supervisor to whom they report
each morning for the day 's work assignments . The ware-
house does keep a-record of job functions performed by
each employee to facilitate the maintenance of labor dis-
tribution reports for cost-accounting purposes. -
Van Buskirk stated that Terry Ford, a Corsicana su-
pervisor, was previously an hourly employee in Cotter's
Mankato, Minnesota - facility and was a member of the
local union. Craig Kelly, presently a buyer in Corsicana,
was a stockman in the Dallas,facility and was a member
of Teamsters 745. Philip Matthew, a Corsicana supervi-
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sor, was formerly a stockman in the Dallas facility and
was a member-of Teamsters 745.
Van Buskirk recalled a single encounter with Johnny
Gray on August 1. About 10:20 a.m. Gray came into
Van Buskirk's office and laid his employee badge on the
table and said he was quitting. Van Buskirk asked if
there was any specific reason and Gray replied', that • he
did not like his job. Gray said. the job was boring be-
cause he liked being around people but in the warehouse
he worked by himself in the aisles . Gray commented that
he would rather work in an ice cream store where he
was around people all day long than work alone in ware-
house aisles . Van Buskirk wished Gray good luck and
Gray left. He clocked ' out at 10:25 a.m. The treatment
that Gray or any other employee received from Cotter
was not mentioned in the conversation nor was the word
union mentioned. Van Buskirk mailed Gray's final pay
checks of $200 to him but the checks were returned by
the post-office unclaimed. Van 'Buskirk initiated a check
to Gray's address which Gray confirmed' by phone and
stated he simply had not gotten around to picking up. the
mail: Gray, when asked, stated he would pick the pay-
check up at the warehouse but to this point in time he
had-not done so. - -
Van Buskirk testified that since he has been in charge
the shipping and receiving functions have-been manned
by male employees and seldom are additional employees
needed in either department. All ' warehouse 'employees
get the same wage rate in Corsicana. The maintenance
men and mechanics are paid a different hourly rate. All
employees receive incremental wage increases within-
constant time periods. -
B -Analysis and Conclusions
The General Counsel's case rests entirely on Respond-
ent's closing of the Dallas facility and implementing its
move to the new 'location in Corsicana. The case is de-
veloped around several conversations between employ-
ees and supervisors which the General Counsel contends
establishes the necessary union animus on the part of Re-
spondent for a discriminatory motive to be inferred from
Respondent's conduct. Although not alleged , the Gener-
al Counsel seeks an unfair labor practice finding based on
Dan Cotter's speech given in October 1981. -Because the
speech is not alleged in the complaint and would be ex-
ceedingly' remote to any allegation in the complaint, I
will not consider the substance of the speech as an unfair
labor practice. I will, however, consider the speech as
background to evince the intent of Respondent for ac-
tions • taken thereafter. The General Counsel also con-
tends- that Respondent's failure to transfer'-Dallas em-
ployees to Corsicana is included in his general refusal-to-
bargain-in-good-faith allegation and seeks a separate find-
ing of a violation of Section 8(a)(5) based -on-Respond-
ent's admitted refusal to transfer Dallas employees -to
Corsicana. The General, Counsel's theory being one of
Respondent's motivation and -his having attempted to
amend the complaint during trial to include the failure to
transfer employees in paragraph :17 of his complaint,
which he.withdrew, I shall not consider.the failure of
Respondent to transfer employees from Dallas to Corsi-
cana as a refusal to bargain in good faith nor will I make
an. unfair labor practice finding in that' regard. In addi-
tion to insufficient pleading on the part of the General
Counsel there is' no support for, such a finding in that Re-
spondent had no statutory nor contractual obligation-to
transfer the Dallas employees to Corsicana. Respondent
does have a. statutory obligation not to discriminate
against its employees because of their membership in a
union or their lack of membership in a union I shall con-
sider -Respondent's nondiscriminatory obligation as it
would relate to its motivation for its actions. Moreover,
if the General Counsel had articulated at, trial or alleged
a contractual obligation on Respondent to transfer the
Dallas employees to Corsicana, I -would have deferred
resolution of such an issue to the -arbitration case in-
volved.with the relocation of the facilities. The General
Counsel further, without a complaint allegation to,sup-
port it, contends that Respondent's cessation of its truck-
ing operation in Dallas and its-incorporation of a leased-
driver concept in Corsicana constitutes a unilateral
change in'violation of Section 8(a)(5). I will not consider
such. change as an unfair labor practice unto itself for
two reasons. Neither the General Counsel's theory of the
case nor the complaint raises ,such an issue and even if
either or both did raise such an issue, under the facts of
this case there could be no such finding because Re-
spondent has no statutory' nor contractual- obligation to
bargain with the Union over the working conditions in
Corsicana. In addition, had the General Counsel's com-
plaint or representations at tnal included such an issue
based 'on an alleged contractual obligation, I would have
deferred resolution to the decided arbitration case be-
tween the parties.
Much of the General Counsel's brief and argument is
based on a premise that Respondent had either a continu-
.ing obligation to bargain with the Union over working
conditions in Corsicana or that the Union's contract ap-
plied at both-the Dallas and Corsicana locations. Without
belaboring-more such tangential and nonjusticiable issues,
-suffice it to say, the General Counsel at trial unequivo-
cally stated that Respondent's recognition of the Union
at -Corsicana was not in the case or the complaint; Re-
spondent's only obligation was not to discriminate.
The General Counsel's case thus comes down to one
of motivation, i.e., Respondent's action taken to imple-
ment 'the closing of Dallas and -the relocation to Corsi-
cana, though appearing to be a legitimate exercise of its
rights under the law and its contract with the Union was
nonetheless unlawful because its latent motivation was to
rid itself of the Union at Dallas and prevent union orga-
nization at Corsicana. As the General Counsel put it, Re-
spondent seized on the pretext of needing to build a new
facility- to rid itself of the Union and discouraged any
union employees from attempting to become employed
at the new location. The General Counsel claims that the
entire process, from October 22, 1981, through May 24,
1983, was a sham. -
The General Counsel, in support of-a discriminatory
motivation, argues that Respondent's reasons given for
its actions do not constitute substantial business justifica-
tions or -good business judgments thereby requiring an in-
ference of an unlawful motive. What is at issue -here is
COTTER & CO' 743
not whether business considerations advanced by Re-
spondent were or were not adequate to justify its actions.
The Act imposes no requirement that an employer exer-
cise good business judgment and exacts no penalty be-
cause it exercises bad business judgment. Moreover, the
Board cannot and does not substitute its evaluation of
business judgments for those of any employer , nor does
the Board have any control whatsoever over an employ-
er's policies , including its policy concerning tenure of
employment . An employer may hire and fire at will for
any reason , or for no reason , so long as the motivation is
not violative of the Act. What the General Counsel must
establish to prevail is that Respondent 's actions taken
were not motivated by its business considerations but
rather by its determination to visit reprisals upon its em-
ployees because of their union membership and union
sympathies . The complete lack of any business justifica-
tion , even if established , does not carry the day for the
General Counsel. The complaint must be. supported by
affirmative evidence that the motivating reason for' Re-
spondent 's actions was one proscribed by the Act and
the evidence must show animus or hostility of Respond-
ent toward the Union or its employees based on their
union membership or sympathies . In conjunction there-
with the General Counsel must show a causal relation-
ship between the employees ' protected activities and the
actions taken by Respondent which detrimentally affect
its employees ' continued employment . Without an affirm-
ative showing of animus toward the Union or its employ-
ees' union membership , a discriminatory motivation
cannot be inferred . The burden of proof rests with the
General Counsel and she must preponderate based on all
the evidence , in the record.
The General Counsel alleges in paragraph 7 of the
complaint several statements attributed to Bill Tar-
azewich , the Dallas warehouse manager and later the
Corsicana warehouse manager . Witness Fogelman 's testi-
mony of remarks attributed to Tarazewich is equivocal. I
can be no more sure of the chronology of the conversa-
tion than he was. Neither can I be sure of who actually
authored the remarks he testified to. The entire substance
of Fogelman 's testimony does not suggest that Tar-
azewich was antiunion in manner or speech . It does
show that Fogelman injected union membership into the
conversation . Also Fogelman did not appear to be single
of heart which may account for his equivocation be-
tween direct and cross . In any event , I do not credit his
version of the conversation , particularly the statements
he attributed to Tarazewich about how a job could be
secured in Corsicana . I therefore conclude and find that
Tarazewich did not make the statements alleged in para-
graph 7 (b) of the General Counsel 's complaint.
Wichman 's testimony that Tarazewich said , "Well,
you are not eligible " in response to the question, "Are
you giving out applications?" is not substantial enough
standing alone to constitute a coercive remark, particu-
larly in view of the allegation that the remark was ut-
tered to other employees . The whole of Wichman's testi-
mony shows that there was no eligibility requirements
for obtaining an application and further , if the remark
were made as Wichman recalled and if Wichman took
umbrage to'the remark , he did not demonstrate such in
his subsequent conduct for he did not seek advice from
his union or other employees . He did , however,'on hear-
ing other drivers talking about making application for
Corsicana , simply secure an' application and filled it out.
The remark obviously was out of context or was not
made as stated . I cannot , based on such terse testimony
of a single remark , find the remark to be coercive. I
therefore conclude and find that Tarazewich did not
coerce Dallas employees by telling them they were not
eligible for employment at Corsicana . Thus paragraph
7(c) shall be dismissed.
Witness Tinney 's conversation with Tarazewich on
February 9 clearly showed that Tarazewich was accom-
modating the employee to apply for work in Corsicana.
Tarazewich 's response to Tinney 's desire to stay with
Cotter and keep his seniority is not coercive but merely
stating the working condition facts of Corsicana . Tinney
may not have understood the circumstances between the
parties preceding his conversation but Tarazewich had
been present in negotiations and knew employees would
not be allowed to retain their prior seniority if they were
employed in Corsicana . Tinney did however , with or
without an understanding , subsequently asked for and re-
ceived an application for Corsicana . I do not find that
Tarazewich's remark about seniority discouraged em-
ployees from seeking and filing applications to work in
Corsicana . Accordingly , I conclude and find that para-
graph 7(e) is not supported by substantial evidence. Fur-
ther , in my view , the allegation as formed does not make
out a violation of the Act.
Montelongo 's conversation with Tarazewich in mid-
April is not specifically included in the General Coun-
sel's complaint . However , it obviously was offered to
show that Respondent attempted to discourage employ-
ees from applying for work at Corsicana . It is clear from
her testimony that she was only filling out an application
to be kept on file . She was not of a mind to go immedi-
ately to Corsicana . What she was seeking was availabil-
ity for hiring in Corsicana 6 months to a year later. Tar-
azewich may have suggested she take her application
back but he was not discouraging her seeking employ-
ment in Corsicana because he told her if she came in
later and he had a vacancy he would hire her. What he
was telling her was that she did not • need to submit an
application now. What she sought was outside the pur-
pose of the application at that time and Tarazewich, in
the conversation, told her as much. The two discussed
the difference in the working conditions of the two
warehouses with Tarazewich explaining that classifica-
tions , such as hers in relay , would not exist in Corsicana.
Tarazewich told Montelongo that she had a good work
record and offered his business card to her so she could
contact him at her convenience . Montelongo 's testimony
cannot support a proposition which , from her testimony,
did not exist . I therefore find that the General Counsel
has not supported paragraph 7(d) of the complaint.
The record does not contain any evidence relating to
paragraph 7(a). I shall therefore dismiss the allegation as
unsupported by any evidence.
Bill Tarazewich, although under subpoena to the Gen-
eral Counsel , was not called to testify. The General'
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel stated that she had not determined whether she
would call Tarazewich to testify Although I do not
intend to utilize the "missing, witness" rule since Tar-
azewich was a former supervisor of Respondent and - a
strict interpretation of the rule may dictate application
only to Respondent with regard to an adverse inference;
however,' I do express chagrin over the General Coun-
sel's failure to call a witness that may have been able to
explain much that is in this record.
Five Dallas drivers testified that they asked for and
obtained applications to apply for work at Corsicana.'All
five applied for a driving job only because none desired
warehouse work Brimage stated that when he later
asked Tarazewich about his application on file Tar-
azewich said he threw it in the trash. Tarazewich's state-
ment came at a point in time after Cotter had decided to
use the lease-driver concept in Corsicana but Brimage
testified that he had no knowledge of the lease-driver de-
cision. With or without the knowledge, Brimage did not'
believe that Tarazewich had thrown his application
away Brimage accepted it for what it was, "shop
humor," and let it go. Later, after the Dallas facility had
closed and Brimage was on the Teamsters picket line in
Corsicana, he again asked Tarazewich about his applica-
tion Tarazewich told Brimage that he gave the applica-
tion to the manager of the lease-driver company, John
Potts. Brimage was subsequently hired by Potts. .
After the decision to use lease-drivers was made,
Clemmons asked Tarazewich if he was going to take any
drivers to Corsicana. Tarazewich said, "no," we are
going to go with lease-nonunion drivers. Clemmons re-
sponded, "I hope you all good luck." Although I do not
specifically discredit Clemmons, I am convinced that the
Freudian slip and pause-in' his testimony and the lessened
vigor of the testimony shows that the phrase "non-union
lease-drivers" was his contribution to the conversation,
not' that of Tarazewich. Clemmons, who had been a
Teamsters member since 1968, would hardly have
wished Tarazewich -good luck if union membership had
been thrown in his face with regard to his continuing
employment. ' ' -
The other three driver witnesses asked for and re-
ceived applications for Corsicana without incident. Each
was a• Teamsters member and among five who had ap- '
plied -for Corsicana and were recommended' for hire at
Corsicana by Traffic Manager Brogdon before the lease-
driver concept had been decided as the operation for
Corsicana. Considering the 'entire testimony of each
driver,.I conclude and find that no driver was discour-
aged from applying for work in Corsicana -nor was Re-
spondent's refusal to employ them, after having made ap-
plication, discriminatory. The lawful change from com-
pany drivers in Dallas to the lease-driver concept in Cor-
sicana, coupled with the fact. that no driver wanted or
applied for warehouse work, was the only reason the
five drivers were not offered employment.
Witness Livingston's testimony shows clearly that she
`was asked to work in Corsicana by her supervisor but
apparently declined.. She knew that employees desiring
employment in Corsicana had to fill out an application-
(probably the absence of her application on, file prompt-
ed her supervisor to inquire) but she chose not to apply
Her expectations of working in Corsicana notwithstand-
ing, she was not coerced or discouraged from applying
for work in Corsicana. Rather, the contrary is shown be-
cause her union membership was known to. her supervi-
sor when he suggested to her that he would like to have
her continue working with him in Corsicana. - -
Witnesses Payne and Lloyd both asked for and re-
ceived applications for work in Corsicana. Each filled
them out and turned them in. On several separate, occa-
sions, both ladies asked Tarazewich about their applica-
tions and had a discussion with Tarazewich 'about the
difference in the work between Dallas and Corsicana
Payne said Tarazewich explained the difference in detail
between working with classifications and-working with
none. Lloyd said Tarazewich only talked about loading
trucks but did offer to recommend a realtor if she was
thinking of moving. Payne testified she understood that
the new job would be in receiving unloading trucks but
she was not actually told that nor did she question the
job content when she was talking with Tarazewich.
Lloyd was sure that Tarazewich was only offering her a
job loading trucks. Both ladies stated that they `could not
and did not intend loading or unloading trucks in Corsi-
cana. Their testimony is 'clear that their convictions
against loading and unloading were not the result of the -
conversation with Tarazewich, but represented their ,de- -
sires ' over the years Yet both went to Corsicana to
check out the living conditions after their _conversation
with Tarazewich and after asking for time to think about
his job offers. Both 'ladies were impressionable and I am
convinced that the disorder of no classifications in Corsi-
cana, coupled with the possibility- of receiving or ship-
ping work, caused each confusion in her own mind. I am
just as convinced that Tarazewich did not offer either of
the ladies a job loading trucks in Corsicana. Neither lady
spoke to Tarazewich to'decline employment in Corsicana
which gave no one a chance to alter the confusion about
the job offer. I therefore conclude and find that neither
Lloyd nor Payne was discriminatorily discouraged from'-
seeking employment in Corsicana by the offer of "a
truck loading job only" `by Tarazewich: Further, Re-
spondent's failure to employ either Payne or Lloyd was
due only to their stated declinations of the job offers.
The sum total of Sharon Autry's testimony is that she";
asked for and received an application for Corsicana; on
March 9 she turned in the completed application to Tar-
azewich and asked Tarazewich later on several occasions -'
if he had considered her application and was told all ap-
plications are being considered and when they have been
gone over he, and Murphy would' decide who was best
qualified for the positions ,available; she was braver than
most employees and she would, on occasion, do things
not ordinarily done or that were unknown in terms of re
percussions; she was caught up in the Company's pro-
gressive discipline system due to absenteeism and her
final warning, which would precede automatic termina-
tion,. included a 3-day suspension effective March 18 '
through 21, 1983. There is nothing in Autry's testimony'
to. suggest that she was discouraged from applying for
work in Corsicana, nor that Respondent discriminatorily
refused to employ her in Corsicana. The record shows
COTTER & CO
that Autry was the 1 employee of the 10 employees ap-
plying for work in Corsicana that was declared ineligible
because of her prior work history. In view of the above,
I conclude and find that Respondent has not violated the
Act by refusing to employ Sharon Autry in Corsicana
William Autry's testimony was at best confusing. He
stated he filled out two job applications because the
Company had lost the first. Only one application was
presented at the trial and Autry was unable to identify
which application it was. Autry stated that he spoke
with Tarazewich in January when he filed the first appli-
cation. Tarazewich asked Autry if he thought about
moving to Corsicana and Autry responded he would if
-hired. Autry said Tarazewich then stated he would not
hire anyone with a Dallas address. Autry's address was
Irving, Texas, which is contiguous to Dallas. The import
of this testimony escapes me but if it is the restriction oh
hiring imposed by Tarazewich, there is nothing discrimi-
natory about it that is cognizable by the National Labor
Relations Act. Accordingly, I find that Respondent's re-
fusal to hire William Autry for work in Corsicana does
not constitute a violation of the Act, nor is it supportive
of any allegation in the General Counsel's complaint.
Several witnesses offered background evidence on the
speech given to employees by Dan Cotter on October
22, 1981. Most of the witnesses could only recall a few
points made by Cotter but all recalled that the Dallas
employees would not be going to Corsicana. One re-
called that Cotter said he was only taking Bill (Tar-
azewich) with him and Bill would decide who else.
would go. Another recalled that Cotter said all employ-
ees could apply for work in Corsicana but the Company
did not have to hire them. One witness, Chief Steward
Lawson, had a more complete recall. Cotter was in
Dallas to give employees information rather than rumors.
He reminded the employees how antiquated and ineffi-
cient the Dallas facility was and that a new facility
would be built. Cotter said no Dallas employee, other
than management , buyers, and supervisors, would be able
to transfer to Corsicana but all other employees would
be entitled to fill out an application and be considered
along with everyone else as a new employee under a
whole new setup. Cotter then described the difference in
living conditions between Dallas and Corsicana.
Cotter and Tarazewich, on the same day, met with the
Teamsters representatives. Cotter told the Union that the
Company was going to move the warehouse operation
from Dallas to Corsicana and the law would not permit
the Dallas contract to follow the work or permit the-
Company to take employees to Corsicana. Tarazewich
added that some employees would be disqualified from
working in Corsicana because of absenteeism, tardiness;
and production problems in their records. Tarazewich
said he would pick and choose who he wanted and those
with bad records he would not take.
Witness Gray's- testimony clearly shows that Tar-
azewich's hiring practices were to hire the best qualified
person for the job without regard for union application;
and particularly Teamsters 745. Tarazewich, with full-
knowledge of Gray's membership in Teamsters 745,
completed the interview and hired Gray for a warehouse
job. The nature of the warehouse function, i.e., no - classi-
745
fications, was fully explained to Gray during the inter-
view.
Gray stated that Tarazewich, Murphy, Lynn, and Van
Buskirk, on several occasions, told the employees that
Corsicana was not union and it was the Company's
intent to remain nonunion in Corsicana, both before and
after Teamsters 745 established the picket line at the
Corsicana warehouse approximately May 17. Several
meetings of employees were held by supervisors to ex-
plain the picket line and what-was expected of employ-
ees. The employees were told to go about their business
and not to provoke the pickets. To facilitate easy en-
trance and exit from the warehouse, the employees were
told to keep their windows up and not to engage in a
dialogue with the pickets. The employees were requested
to report any incidents with the pickets to their supervi-
sors.
In late June, Taraze_wich left Cotter's employ and Van
Buskirk replaced him. Van Buskirk met with the employ-
ees and gave a little speech in which he described him-
self as. a people-person and 'stated he wanted to work
with the employees to make everybody's job better and
more problem-free.
Gray worked in- the warehouse until August 1 when
he quit. In his exit interview with Van Buskirk, Gray
stated that the • only hope the employees in the ware-
house had was for the union picketing (Teamsters 745) to
win. "The only hope these people have out here is for
them to be able to bring the Union in to help them."
Van Buskirk said he was sorry Gray felt that way.
Gray. said he did not harbor any grudge against the
Company but opined that he felt sorry for the people
who still had to work there. Gray's final paychecks to-
taled approximately $200 but he did not pick them up in
the, mail nor did he return to the warehouse to claim
them.
It is not inconsequential to me that each conversation
or speech with a supervisor that Gray testified to, he_had
to be reminded by his counsel that something more had
occurred. On each of these prompted occasions that
something missing from his recall was statements that the
Company was nonunion in Corsicana and was not going
to have a union 'in Corsicana In effect, Gray testified to
the events from his memory then, after prompting by the
General Counsel, added antiunion substance to the
speech or conversation in an amount -that equaled or sur-
passed his prior testimony. Gray clearly demonstrated a
prounion bias on the stand and clearly demonstrated an
ambivalence when testifying. It was as if he genuinely
recalled the - speech or conversation in full but then
added the missing antiunion portions with a mental vehe-
mence. It is unexplainable to me how a witness, who ob-
viously has a deep-rooted union sentiment, could miss
adverse union statements when attempting to recall
recent events. In view of the obvious significance of
these matters, I find it unlikely that Gray would have
failed to include the antiunion statements in his initial re-
statement of the facts as he recalled them had they not
been subsequently imagined as an aid to the Union's case
against the Company. Even the positive assertions of a
witness can be so diluted and qualified by other testimo-
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ny of the same witness as to render such assertions of no
probative value. I conclude and find that Gray's asser-
tions of antiunion sentiments and particularly the state-
ments he attributes to Tarazewich, Murphy, Lynn, and
Van Buskirk in the various speeches and conversations to
be noncredible. My credibility resolution of Gray finds
further support in Union Representative Kline's testimo-
ny and Gray's admissions where it is shown clearly that
Gray had contacted Teamsters Agent Monk to let him
know he was working behind the Teamsters picket line
at Corsicana and Monk suggested he stay there at the
warehouse. Monk then alerted Agent Kline to Gray's
presence in Corsicana. Kline contacted Gray just a day
before his testimony to come to Dallas and supply what
he might possibly know that would help the Union's
case. It is inescapable that Gray was intent on helping
the Union case and did so by diluting his testimony with
fabrications and embellishments.
The facts in the record of what transpired at the "ef-
fects" negotiation sessions are substantially undisputed. It
is clear that the Union approached the negotiations with
a concerted effort to vitiate the recognition clause of the
contract and to effectuate an en masse transfer of Dallas
employees to Corsicana The repeated efforts by Lynn to
ensure that any Dallas employee who desired employ-
ment in Corsicana fill out an application lends credence
to the Company's stated purpose for requiring the appli-
cation. The Union's failure' to accept any movement of
employees less than en masse transfer explains the reti-
cence of the employees to seek applications. The Union
did finally inform the employees in February that to pro-
tect their employment which was to end in a scant 2
months, they should apply for work in Corsicana. As
Hicks put it, "We told them what they needed to know
but maybe they didn't listen." Whatever attention the
employees gave to the Union' s suggestion was only.one
factor determining their action for all employees had
known since October 1981 that they could file an appli-
cation to work in Corsicana and was reminded by the
Company on several occasions to do so. Employee wit-
nesses, almost to a person,- testified that- rumors were
rampant about the 'move and employees talked among
themselves about filing applications. For reasons known
only to them, the vast majority of Dallas employees
chose not to file applications for work in Corsicana.
There is no substantial evidence in this record that any
employee was discouraged from filling out an application
to work in Corsicana. There is, however, evidence in the
record that employees were encouraged to file an appli-
cation if they desired to work in Corsicana. In addition
the record evidence shows that applications were offered
to employees and the completed applications were ac-
cepted by the Company without regard to-the union af-
filiation of the employee. There is no substantial evi-
dence that the applications of employees accepted by the
Company were not accepted in good faith or that subse-
quent job offers to the applicants were not made in good
faith. It is undisputed that, of the 125 Dallas employees,
10 made application and 9 of those were offered posi-
tions in Corsicana. Only two of the nine accepted the
Corsicana employment. The refusal of Respondent to
offer employment to Sharon Autry was clearly based on
her dubious work record in Dallas in accord with the
Company's expressed policy since October 1981 and to
which no objection was ever raised by the Union during
negotiations or otherwise. Kline's remark about Cotter
pushing its bad employees off on other employers could
hardly be termed an objection since it is a tacit accept-
ance of the basis for the Company's policy of hiring
Dallas employees for Corsicana. There are no facts in
evidence with regard to the bargaining that took place
between the parties on which a bad-faith bargaining vio-
lation could be found.
Although the General Counsel's brief and argument'
contain various suspicions and innuendos, there is no sub-
stantial credible evidence in the record to establish union
animus on the part of Respondent. The record evidence,
however; does establish that employees, union members
or not, were treated the same and without regard to
union affiliation. Without a demonstrated union animus
on the part of Respondent, an inference of discriminatory
motivation cannot be drawn from the surrounding cir-
cumstances. Moreover, the circumstantial evidence found
in this record and on which the General Counsel would
rely to support such an inference would, in my view, be
more supportive of an opposite inference, i.e., that no
discriminatory motive on the part of Respondent existed.
The hesitation, delay, and ultimate failure of the Dallas
employees to desire employment in Corsicana and to ac-
tually file an application to manifest that desire can-be
traced directly to the Union and its stance in the "ef-
fects" negotiations. The Union had no intent of allowing
the employees to work in Corsicana of their own voli-
tion for to do so would have been detrimental to their
position on recognition and bargaining in and for Corsi-
cana . Accordingly, I shall dismiss the allegations in the.
complaint alleging discrimination against the Dallas em-
ployees and their employment rights in Corsicana found
in paragraphs 8 and 9. Further, I shall dismiss the allega-
tion of bad-faith bargaining found in paragraph 17 of the
General Counsel's complaint.
On February 9, during the negotiations on effects of
the Dallas facility closing, the Union requested certain
information be supplied relating to land acquisition in
Corsicana and any agreements with any entity or group
in Corsicana. The Union's request would place an obliga-
tion upon Cotter to supply such information if the
Union's Dallas contract applied to Corsicana and Cotter
had a continuing obligation to recognize the Union as
the representative of its employees in Corsicana. The
mere pursuing of such a position by the Union in negoti-
ations however does not make it so. The parties here
were engaged in "effects" bargaining only and only the
"effects" of the closing of the Dallas facility. There was
neither a statutory nor a contractual obligation for
Cotter to bargain over any conditions in Corsicana.
Indeed, the General Counsel's complaint alleges none
nor does the General Counsel attempt to prove any such
obligation. In the absence of an obligation to produce
there cannot be a violation for failure to produce. I con-
clude and find that the General Counsel' s allegations in
paragraphs 13 and 14 are unsupported by evidentiary
facts and the law and I shall dismiss them.
COTTER & Co.
The Union made a further request for information on
March 2 seeking the names, rates of pay , position applied
for, position hired for, the hire date , and the anticipated
starting date for all individuals hired to work in the Cor-
sicana facility and including all Dallas employees accept-
ed for employment in Corsicana . On March 17 , the Com-
pany supplied the requested information to the Union.
The Union objected that not all the information request-
ed had been supplied . The Company responded that no
further information would be supplied unless the Union
detailed a substantial reason for the request.
'A review of the objective evidence in the record
evinces a reasonable request by the Union on March 2
based on the Respondent 's expressed hiring practices
during effects bargaining . A further review shows that
the Company complied with the Union's request within
the confines of the defined bargaining unit . Under the
particular circumstances of this case , particularly the
lack of any representative status of the Union in Corsi-
cana, I conclude and find that Cotter fully complied with
the Union 's request and further response would be unrea-
sonable and without support in decided cases . I shall
747
therefore dismiss the General Counsel 's allegations in
paragraphs 15 and 16.
ADDITIONAL CONCLUSIONS OF LAW
The General Counsel has failed to sustain his burden
of proof that Respondent discriminated against its Dallas
employees or that its "effects" bargaining , including sup-
plying information sought by the Union, was motivated
by discriminatory intent or bad-faith bargaining.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed"
ORDER
It is ordered that the complaint is dismissed in its en-
tirety.
8 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall , as provided in Sec. 102.48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.