Earl C. Smith, Inc.

National Labor Relations Board - Board Decisions

Feb 21, 1986

278 N.L.R.B. 664 (N.L.R.B. 1986)

664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Earl C. Smith, Inc. and International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and
Helpers of America , Local Union No. 20. Case
8-CA-16037
21 February 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 24 August 1984 Administrative Law Judge
Thomas A. Ricci issued the attached decision. The
Respondent filed exceptions and a supporting 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 brief and has
decided to affirm the judge's rulings, findings, a and
conclusions and to adopt the recommended Order
as modified.2
The Respondent unilaterally refused on 1 April
19823 to pay its employees a 47-cent-per-hour cost-
of-living increase due them under the 1979-1982
collective-bargaining agreement . On 15 May the
Respondent convened a meeting at Pontiac, Michi-
gan, of all its employees from five different cities
and invited the agents of various locals which rep-
resented one or another bargaining unit of the Re-
spondent's employees. The Charging Party's repre-
sentative of employees in the Respondent's Toledo,
Ohio facility did not attend. At the meeting, the
Respondent asked the employees to ratify a pro-
posed "rider" to the collective-bargaining agree-
ment which would lower wage rates under the
agreement by more than $1 per hour. The employ-
ees voted to approve the rider, which was put into
effect by the Respondent about that date. The
' In the judge's discussion of the arbitration procedure to which the
parties resorted, he made various assumptions concerning a 1982-1985
National Master Freight Agreement. No such agreement was introduced
into the record We disclaim any reliance upon the above assumptions,
which are not critical to the outcome of this case
2 In the remedy section of the decision, the judge recommended that
the Respondent be ordered to make whole its employees from I April
1982 "until such time as [the Respondent] bargains in good faith with [the
Charging Party]" concerning the wages previously denied them. Re-
spondent's vice president Ingham testified without contradiction that the
Respondent began paying its employees about 16 August 1982 the 47-
cent-per-hour cost-of-living increase due them on 1 April 1982 under the
1979-1982 National Master Freight Agreement. We shall therefore re-
quire the Respondent to pay its employees the 47-cent-per-hour increase
only for the period from 1 April through 15 August 1982, with interest as
computed in Florida Steel Corp, 231 NLRB 651 (1977)
We shall also modify the recommended remedy to require the Re-
spondent to make whole its employees for its unilateral reduction in their
base wages for the period from 15 May 1982 until, on request, the Re-
spondent has bargained in good faith over this issue with the Charging
Party to agreement or to a valid impasse Interest on the Respondent's
payments shall be computed in the manner set forth in Florida Steel
Corp, supra.
3 All subsequent dates refer to 1982
Charging Party never bargained for nor consented
to the changes in the rider applied to its unit em-
ployees.
The Charging Party filed a grievance according
to the contractual procedure. At the second step of
that procedure, the Ohio Joint State Committee
issued the following decision: "Company to
comply with contract 1982-1985. Unanimous." The
Respondent's employees have received no backpay
on the basis of this grievance.
The judge found, and we agree, that the General
Counsel has proven that the Committee's decision
is "clearly repugnant" to the Act. The Respondent
admittedly engaged in unilateral modifications of
the collective-bargaining agreement, direct dealing
with the employees, and failure to bargain with the
Charging Party. Under no interpretation consistent
with the Act could the Committee have resolved
these violations of Section 8(a)(5) merely by order-
ing compliance with a successor contract not even
at issue or in effect at the time of the Respondent's
conduct. Because the Committee's decision is "pal-
pably wrong," we find it to be clearly repugnant to
the Act, and consider deferral to the decision inap-
propriate. Spielberg Mfg. Co., 112 NLRB 1080
(1955).4
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Earl C. Smith, Inc., Toledo, Ohio, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the Order as modified.
1. Substitute the following for paragraph 1(e).
"(e) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act."
2. Substitute the following for paragraphs 2(b)
and (c).
"(b) Make whole, with interest, all of its employ-
ees in the bargaining unit described above for loss
of wages resulting from the Respondent's failure to
pay the cost-of-living raise due them on 1 April
1982 for the period from that date through 15
August 1982.
"(c) Make whole, with interest, all of its employ-
ees in the bargaining unit described above resulting
from the Respondent's failure to pay the regularly
established rates of pay from 15 May 1982, until
such time as the Respondent negotiates in good
faith with the Union to agreement or impasse."
4 See also Olin Corp., 268 NLRB 573 (1984)
278 NLRB No. 100
,EARL,. SMITH,, INC..,--
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT refuse to bargain with Internation-
al Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, Local Union
No. 20, as the exclusive representative of all em-
ployees in the appropriate unit as follows:
All city truck drivers and dock employees em-
ployed by us at Toledo, Ohio, excluding all
office clerical employees and professional em-
ployees, and all guards and supervisors as de-
fined in the Act.
WE WILL NOT deal directly with our employees
represented by the Union as their established bar-
gaining agent.
WE WILL NOT fail to pay our employees their
contractually guaranteed rates of pay without first
bargaining with their bargaining agent.
WE WILL NOT reduce the established rates of pay
of the employees without first bargaining with
their bargaining agent as the statute commands.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL recognize and, on request, bargain col-
lectively in good faith with the Union as the exclu-
sive representative of the employees in the appro-
priate unit described above, with regard to -rates of
pay, hours of employment , and other terms, and
conditions of employment and, if an understanding
is reached , embody such understanding in a signed
agreement.
WE WILL make whole , with interest , all of our
employees in the above -described bargaining unit
665
for loss of wages resulting from our failure to pay
the cost-of-living raise due them on 1 April 1982
for the period from 1 April 1982 through 15
August 1982.
WE WILL make whole , with interest , all of the
employees in the above-described bargaining unit
resulting from our failure to pay the regularly es-
tablished rates of pay from 15 May 1982 until we
have bargained in good faith over this issue with
the Union to agreement or to a valid impasse.
EARL C. SMITH, INC.
Richard H. Mack, Esq., for the General Counsel.
Terrance K Jolly, Esq. (Matheson, Bienman, Parr, Schuler
& Ewald), of Bloomfield Hills, Michigan, for the Re-
spondent.
Mr. Paul Toney, of Toledo, Ohio, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
THOMAS A. Ricci, Administrative Law Judge. A hear-
ing in this proceeding was held on May 29, 1984, at
Toledo, Ohio, on complaint of the General Counsel
against Earl C. Smith, Inc. (the Respondent or the Com-
pany). The complaint issued on November 26, 1982, on
complaint of International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local Union No. 20, filed on August 26, 1982. The issues
presented are whether the Respondent violated Section
8(a)(5) of the statute by taking unilateral action with re-
spect to the employment conditions of its employees, dis-
regarding its obligation to bargain with their exclusive
majority representative. Briefs were filed by the General
Counsel and the Respondent.
On the entire record and from my observation of the
witnesses, I make the following
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Earl C. Smith, Inc., a corporation, with a place of
business in Toledo, Ohio, is engaged in the interstate
transportation of freight. Annually, in the course of its
business, it derives gross revenues in excess of $50,000
for the transportation of freight and commodities from
the State of Ohio directly to points outside the State. I
find that the Respondent is an employer within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
I find that International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
Local 'Union No. 20 is a labor organization within the
meaning of Section 2(5) of the Act.
666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
There were only two witnesses at this hearing-Paul
Toney, the business representative of Teamsters Local
No. 20 and Victor Ingham, vice president in charge of
operations for the Respondent, Earl C. Smith, Inc. The
Respondent also uses the name Magra for this business,
but that it is a single, continuous trucking company oper-
ation that is involved is unquestioned. Early in 1982 the
employees of the Respondent were covered by a con-
tract with the Teamsters Union, called the National
Master Freight Agreement and Central States Area
Local Cartage Supplement Agreement. The contract
covered the period 1979 to March 31, 1982. In the
course of the hearing the only two persons who spoke
for the Respondent-Ingham, as a witness, and his
lawyer, who made many factual statements in the course
of his arguments but did not testify. Both men made
many conclusionary assertions about contracts, riders to
contracts, agreements reached with other Teamsters offi-
cials, which are not supported by any objective evidence
or documentary proof. Indeed, what can be called evi-
dence here-limited, of course, to sworn statements by
witnesses and documents received in evidence-tell a
very precise, limited story. However the parties may
have chosen to try the case, and whatever their reasons
for not producing documents to which they passingly re-
ferred, decision here will rest on the evidence as pro-
duced according to the rules, and nothing more.
The union contract which was due to expire on March
31, 1982, provided that on April 1, 1982, the covered
employees would receive a 47-cent-per-hour cost-of-
living increase. Something happened later, on May 15,
which will be discussed below. But that the Respondent,
without a word to the Union or advance notice of intent
to anybody, failed to pay that raise on April 1 is admit-
ted. That Local 20 was still then the bargaining agent of
these employees is also conceded. The complaint alleges
that failure to pay that cost-of-living raise was a unilater-
al change in conditions of employment by the Employer
and therefore a violation of Section 8(a)(5) of the Act.
Apart from general protestations of right by Ingham, I
see two contentions advanced in defense of this part of
the complaint. When the Teamsters Master Freight
Agreement was made, in 1979, this Company was repre-
sented at the negotiations by the Motor Carrier Employ-
ers Association, which signed the contract on behalf of
this Company and many other companies. Ingham testi-
fied that in January 1982 he resigned his membership in
the Motor Carrier Employers Association. Because the
General Counsel did not dispute that assertion, I accept
it as a fact. Respondent's counsel argues that because of
that one fact-separation from his paid negotiator-the
Respondent was from that day on no longer bound by
the contract he had signed. Does a man get out of any
kind of a contract obligation merely by dismissing the
persons who acted as his agent 2 years before when he,
the client, agreed to be bound by the contract to a third
party-the Union? It is an argument that merits no com-
ment at all, for it has no merit.
The second defense is that because the cost-of-living
raise was not due to take effect until April 1, the day
after the contract by its terms was due to expire, the Re-
spondent was not obligated to live up to its written
promise. One asks: Why was the provision put into the
contract? Would the Teamsters Union have signed the
agreement, back in 1979, if it knew the Employer could
ignore it? What did the Employer gain in the overall ne-
gotiations in 1979 in return for that one contractual com-
mitment? That clause, like any other one in the total con-
tract, became a condition of employment which the Em-
ployer was not free to change, without bargaining about
it with the exclusive representative of its employees.
Anyway, the Board had ruled this defense as untenable.
Hen House Market No. 3, 175 NLRB 596 (1979), enfd.
428 F.2d 133 (8th Cir. 1970). See also NLRB x Southwest
Security Equipment Corp., 736 F.2d 1332 (9th Cir. 1984).
I find that by failing to pay the 47-cent-per-hour raise
to all of its employees covered by the Teamsters con-
tract on April 1, 1982, and continuing to do so thereaf-
ter, the Respondent committed unfair labor practices in
violation of Section 8(a)(5) of the Act. The money must
be paid to the employees now, retroactively, from that
day forward, until such time as a proper compliance in-
vestigation shows reason for cutting off the normal
make-whole period.
The second part of the complaint alleges that the
Company, again acting unilaterally and without proper
bargaining with the Union, reduced the wages of all its
employees to a level below that which was in effect
when the contract expired on March 31, 1982. It was a
substantial cut in pay, something from $13.40 per hour,
as called by the expiring agreement, to about $12.07 per
hour, which the Company then began paying. Exactly
when that action was taken is a little bit blurred on the
record, in part because of an affirmative defense ad-
vanced. For sure it was done by May 15, 1982, as admit-
ted by the Respondent.
Here the defense assertions are not clear. Is it that the
Company did bargain with the Union, successfully,
before implementing the change in wages? Is it that the
Union-Local 20-refused to bargain on request, and
therefore the Company had a right to act unilaterally? I
do not know for sure. So, to test the legality of the Re-
spondent's conduct, the best approach is simply to set
out the facts and apply Board law.
Although the complaint does not clearly say so, the
bargaining unit involved in this case is limited to the em-
ployees of the Respondent stationed at Toledo, Ohio,
represented during the period in question by Local 20.
That unit is as follows:
All city truckdrivers and dock employees employed
by Earl C. Smith, Inc., in Toledo, Ohio, excluding
all office clerical employees and professional em-
ployees, guards and supervisors as defined in the
Act.
On May 15, 1982, the Company called a meeting of all
its employees-a total of about 180-from all its places
of business, including Toledo where Local 20 is the bar-
gaining agent, and 4 other cities, where other locals of
the Teamsters represent its employees. The gathering
was held at Pontiac, Michigan. The Respondent invited
the representatives of the various locals to attend also.
EARL C. SMITH, INC.
The officers of Local 20 refused to participate in that
mass meeting; the other four locals did send their repre-
sentatives. Exactly what happened there, this record
does not show. All I know is what Ingham related at the
hearing. He said he presented to the employees a written
document, which was received in evidence. It consists of
four sheets; the first one has only this written on it:
RIDER TO
NATIONAL MASTER FREIGHT
AGREEMENT
AND
CENTRAL STATES AREA LOCAL
CARTAGE
SUPPLEMENTAL AGREEMENT
COVERING:
Employees of Earl C. Smith, Inc.
International Brotherhood of Teamsters
Chauffeurs, Warehousemen and Helpers
of America, Truck Drivers' Local
Union Number 's: 20, 299 , 332, 339 & 614
AND
EARL C. SMITH, INC.
The other three sheets set out detailed conditions of
employment, comparable to the usual collective -bargain-
ing agreement , listing subjects such as rates of pay for
hous or milege , holidays , sick pay, fringe benefits, etc.
The rates of pay there listed are more than $1 per hour
lower than what the employees had been receiving under
the Teamsters contract which h .ad expired a month and a
half earlier.
All this , record shows of what took place at that meet-
ing is that there came a time when Ingham asked the em-
ployees whether they were willing to work under the
conditions he had detailed in that document . As to what
arguments he advanced-certainly he must have urged
them to accept it , what discussions took place with the
officers of the other locals , whether there was any give
and take-not a word at the hearing in this case. Ingham
referred to the document as a "rider ," "a contract," etc.
He said he asked the employees to vote , and they did.
About 80 percent of the 180 men present voted that they
accepted his terms. Of the approximately 20 percent of
the employees present who rejected the Respondent's
proposals , how many were from the Toledo union, rep-
resented by Local 20 , and involved in this case? In its
posthearing brief the Respondent says only that "sever-
al" of its Toledo employees were there . There is no
answer to the question whether the employees represent-
ed by this Union agreed with Ingham.
Is the fact Ingham did what he said he did sufficient to
justify the reduction in pay he imposed on these employ-
ees? I think not . It is a simple case of an employer skirt-
ing the union, appealing directly to the employees to
make a deal with them, as though the bargaining agent
did not exist, an unfair labor practice as old as the hills.
The employee meeting of May 15 was by no means
the equivalent of negotiations with the employees'
chosen bargaining agent , or agents. The reason why men
select a representative organization to talk on their
behalf with their employer is so they can speak with one
667
voice-sometimes called solidarity. They also favor a
union in order to benefit from the bargaining experience
and skill of the professional spokesmen . That an employ-
er violates the fundamental proscription of this Act when
it ignores the bargaining agent and makes a deal directly
with its employees instead is now so well established a
principle as to require no citation of authority. When
Ingham gathered 180 employees , and talked to them, he
was bypassing the Union and violating Section 8(a)(5)
without question . The mere presence of one or two
agents of the various other locals is hardly enough to
change the employer-employee character of that meet-
ing.
I suppose one can say that since it is the employees
who are the real principles of any deal, what is wrong
with an employer talking with them directly? But the ar-
gument has been made time and time again, and always
found wanting , because the technique has been used too
often as a device to remove the union as an effective
voice in labor relations. In Borg-Warner Corp., 113
NLRB 1288 (1955), the employer insisted that the deal it
had made with the union agents must first be voted on
by the employees involved before it would be bound to
honor it. The union there objected. The Board found the
employer's position to be unlawful. Apparently in the
case at bar the business representatives of other locals
did not object; having been- present I must assume they
did not mind the employer dealing directly with the em-
ployees they represented . Whether or not a contract was
made, even with respect to those other employees, I do
not' know . The only thing in evidence is the detailed
statement listing the conditions of employment Ingham
wanted to put in effect. It bears no signature by anyone.
Merely because the Respondent added a cover sheet
reading "Rider" to the National Master Agreement does
not make it a contract at all.
But in any event , Local 20, the labor organization rep-
resenting these employees, was not present . As to the em-
ployees involved in this case, therefore, Respondent was
dealing with them, or "several" of them, and only them,
literally bypassing their Union. As stated above I do not
even know whether a majority of these employees agreed
to the reduced pay proposed by the Employer. But even
if they did, absent the statutorily required bargaining
with their established representative , the Respondent was
not free to change the existing conditions of employ-
ment. The parties agreed that on May 15, 1982, the Com-
pany put the "rider"conditions in effect; it very substan-
tially reduced the take -home pay of its employees in
Toledo. I fmd that by such conduct the Respondent vio-
lated Section 8(a)(5) of the Act. Struthers Wells Corp.,
262 NLRB 1080 (1982). It must reimburse each of the
employees so- affected who were represented by Local
20 for any reduction in pay they have suffered, begin-
ning on May 15 , 1982, and continuing until such time as
the Respondent in fact bargains in good faith with their
union representative . There is some indication yin the
record that the Respondent may have put the reduced
schedule in effect earlier, on April 1, 1982. If it did, the
make-whole remedy will start on April 1 instead of May
15. That matter will be resolved by .examination of the
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company's records during the compliance stage of the
proceeding. ,
When Paul Toney, the business representative of
Local 20, learned from some of the employees that the
Company was paying them less than they had for some
time been receiving, he filed a grievance. It reads: "Com-
pany is not paying the contract rate." The grievance was
processed strictly in accordance with the procedure set
out in the 1979-1982 contract between the parties. On
June 22, 1982, at what the contract calls the second-step
stage, the Ohio Joint State Committee issued its decision
on the grievance. The only thing written on the decision
by the panel is: "CO. To comply with the 1982-85 con-
tract."
The Respondent moved for dismissal of the complaint
in its entirety on the basis of that committee's decision,
citing Collyer Insulated Wire, 192 NLRB 837 (1971). The
motion is denied.
Insofar as this record shows, at the time of these
events, this Company was not party to any contract with
the Teamsters Union-National, Area, or Local. What it
called the "rider"-the document in evidence-is not a
contract at all; it is not signed by anyone. In January the
Company had resigned from the Motor Carrier Employ-
ers Association. -Therefore, any bargaining that may have
taken place thereafter between the Teamsters Interna-
tional and the multiemployer groups had nothing to do
with this Company. I know, from reading the newspa-
pers, that the Teamsters did make a new National Agree-
ment with the trucking industry in America generally. I
also assume, again with no evidence on this record, that
the new National Agreement had the same grievance
procedures spelled out as did the one that expired on
March 31, 1982. Was this grievance processed under the
terms of the old contract? Was it processed under the
terms of the new National Agreement? I do not know.
The matter becomes even more confused, again be-
cause the parties chose to offer no objective records,
when one looks at what was offered in evidence as the
grievance panel's decision in the grievance involved
here. In its decision, the grievance was only answered
with the phrase: "company to comply with 1982-1985
contract." The Respondent offered nothing to explain
what contract- the panel was talking about. There was
agreement among the parties at this hearing that the em-
ployees, on whose behalf the, grievance had been filed,
received not one cent in backpay as a result of the griev-
ance. Does this mean the "1982-85" contract, to which
others were a party but not this Respondent, called for
the same rates of pay as this Company's proposals which
its employees voted to accept on May 15? Does it mean
the panel was of the opinion the "rider," as the` Respond-
ent calls it, agreed to between the Company and its em-
ployees directly without participation by the Local 20
representatives, was nevertheless a binding 1982-1985
contract? Or does it mean that the panel , members,
Teamsters officials on a broader area of authority, in-
cluding the State of Ohio and Central Conference of
Teamsters, having buckled under to this Company's eco-
nomic pressure for concessions, felt that Local 20 had no
the Company could impose its demands by direct deal-
ings with its employees?
The only light about the purported arbitration appears
in another document in evidence, notes made at the
meeting of the Ohio Joint State Committee. It contains
the following statement relative to this one grievance:
Case No. 82-84-P. Toney I.B. T. Local 20 vs. Magra
Cartage-Member was present.
Union Rep.-P. Toney
Company Rep.-V. Ingham
Company-Point of Order-Improper before com-
mittee. Company has rider approved by employees
held by company at J.A.C. Union-Did not agree
to mutual hold at J.A.C.-aware of company hold
at J.A.C. In executive session it was decided this
case is not improper before the committee and
would be heard on its merits. Union: forty-seven
cent increase not paid April 1, 1982. Members voted
to approve rider without approval of Local 20.
Rider paying $12.07 per hour. Local 20 do not ap-
prove. Company: Invitations to locals and employ-
ees in Pontiac, MI to establish rider. Vote approved
82% in favor; thus rider went into effect immediate-
ly. It is a company rider.
Decision: Company to comply with contract 1982-
1985. Unanimous.
The old Spielberg' rule having been modified, at the
moment Board law is stated in Olin Corp., 268 NLRB
573 (1984), which holds that the Board will defer to an
arbitrator's decision provided it is not "clearly repug-
nant" to the Act, and which then clarifies "clearly re-
pugnant" as also meaning "palpably wrong." Whatever
else may be implied in that decision, this language suf-
fices to remove the arbitration in this case as an impedi-
ment to the complaint.
To start with, the panel ignored the very contract
under which it is authorized to function. I can hardly
doubt the 1982-1985 National Master Freight Agreement
compares exactly with the 1979-1982 one concerning the
language which speaks of "riders being negotiated by
Local union and employers." More precisely in point,
another clause-in both contracts, I assume-reads: "The
employer agrees not to enter into any agreement or con-
tract with its employees, individually or collectively."
In the face of this contract language, and where, as its
own notes reflect, Local 20 had not "negotiated" any
rider with the Employer, the panel nevertheless said the
"rider went into effect." More blatant is the statement,
also in the minutes of the arbitration meeting, that 82
percent of the employees had yielded to the Employer's
demand. What became of the contract language between
the two sides of the panel-management versus labor-
that there would be no bargaining directly between Em-
ployer and employees? The total picture indicates a sense
of superiority exercised by the higher officials of both
sides of the bargaining process, telling the lesser
right to insist on its statutory privilege to bargain before ' Spielberg Mfg. Co., 112 NLRB 1080 (1955).
EARL C. SMITH, INC.
people-like the business representative of a small local
union-to abide by the economic decision made by his
superiors.
In addition, it was not an arbitration case at all. The
grievance did not raise any question about the interpreta-
tion of contract language, proper or improper reading of
any of its terms. It asserted only that the Employer had
ignored it all together, and there was no question about
that having happened, for the Company admitted the
fact-both at the time of the events and at the hearing in
this proceeding. In sum, all that was presented to the ar-
bitration panel was a straight unfair labor practice, and
the panel chose to do'nothing about it. If ever the phrase
about an arbitration decision being "repugnant to the
Act" fits a given state of facts, this is it.
IV. THE REMEDY
The Respondent must be ordered to cease and desist
from repeating the unfair labor practices found to have
been committed. And, of course, it must make whole the
employees for all wages denied them from April 1 or
May 1982 until such time as it bargains in good faith
with their union, Local 20, on this subject. Again I must
refer to an unexplained statement on the subject of the
appropriate remedy in this case that appears this time in
the General Counsel's posthearing brief. She says the
cost-of-living increase that was wrongfully denied its em-
ployees on April 1, 1982, must be paid "until on or about
August 16, 1982." Insorfar as this record shows, there is
no reason for cutting off the make-whole period at that
time for this part of the remedial order. If it means the
parties did bargain in good faith after the events, and
reached satisfactory agreement as to the unfair labor
practices committed, good! But this Order stands without
limitation, until such time as a compliance investigation
shows that proper, lawful bargaining has, or will occur.
Because of the severity and extent of the unfair labor
practices committed, the Respondent must also be or-
dered to cease and desist from in any other manner vio-
lating the statute.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, occurring in connection with its operations
described in section I, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
CONCLUSIONS OF LAW
1. By refusing to bargain with International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, as Local Union No. 20, as the rep-
resentative of its employees in the appropriate unit de-
scribed above, the Respondent has violated and is violat-
ing Section 8(a)(5) of the Act.
'2. By dealing directly with its employees, while by-
passing their established bargaining agent, and asking
them to agree to changes in their conditions of employ-
669
ment, the Respondent has violated -Section 8(a)(5) of the
Act.
3. By failing, on April 1, 1982, and thereafter, to pay
to its employees the cost-of-living raise called for in'the
collective-bargaining agreement covering their employ-
ment, the Respondent had violated and is violating Sec-
tion 8(a)(5) of the Act.
4. By reducing the rates of pay of all its employees on
May 15, 1982, without first bargaining with their estab-
lished collective-bargaining agent, the Respondent had
violated Section 8(a)(5) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
ORDER
The Respondent, Earl C. Smith, Inc., Toledo, Ohio, its
officers , agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local Union No. 20 as the ex-
clusive representative of the employees in the appropri-
ate unit as found above.
(b) Dealing directly with its employees represented by
the Union as their established bargaining agent.
(c) Failing to pay its employees their contractually
guaranteed hourly rates of pay without first bargaining
with their bargaining agent as to that mandatory subject
of collective bargaining.
(d) Reducing the established rates of pay of the em-
ployees without first bargaining with their bargaining
agent as to that mandatory subject of collective bargain-
ing.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively in
-good faith with the Union as the exclusive representative
of the employees in the appropriate unit described above,
with regard to rates of pay, hours of employment, and
other terms and conditions of employment and, if an un-
derstanding is reached, embody such understanding in a
signed agreement.
(b) Make whole all of its employees in the bargaining
unit described above for loss of wages resulting from the
Respondent's failure to pay the cost-of-living raise due
them on April 1, 1982, and thereafter.
(c) Make whole all of its employees in the bargaining
unit described above resulting from the Respondent's
failure to pay the regularly established rates of pay from
May 15, 1982, and thereafter.'
2 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 thereto shall be deemed waived for all purposes
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll, records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Toledo, Ohio, place of business copies of
the attached notice marked "Appendix."s Copies of the
3 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the' Re-
spondent has taken to comply.