Feed and Supply Center, Inc.

National Labor Relations Board - Board Decisions

Apr 19, 1960

127 N.L.R.B. 276 (N.L.R.B. 1960)

276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
It will be recommended that the Respondent offer Jordison immediate and full
reinstatement to his former or substantially equivalent position, without loss of
seniority or other rights and privileges, and make him whole for any loss of pay
he may have suffered by payment to him of a sum of money equal to that which
he would normally have earned as wages from the date of the discrimination to
the date of the Respondent's offer of reinstatement, less his net earnings during
said period, and in a manner consistent with Board policy set out in F. W. Woolworth
Company, 90 NLRB 289, and Crossett Lumber Company, 8 NLRB 440.
Since the violations of the Act which the Respondent committed are related to
other unfair labor practices proscribed by the Act, and the danger of their commis-
sion in the future is reasonably to be anticipated from its past conduct, the preven-
tive purposes of the Act may be thwarted unless the recommendations are coex-
tensive with the threat. To effectuate the policies of the Act, therefore, it will be
recommended that the Respondent cease and desist from infringing in any manner
upon the rights guaranteed employees by the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. District Lodge 71, International Association of Machinists , AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of employee
Verle E. Jordison, thereby discouraging membership in the above-named labor
organization , the Respondent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a) (3) of the Act.
3. By interfering with, restraining , and coercing employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Feed and Supply Center, Inc. and General Teamsters, Ware-
housemen & Helpers Union, Local No. 483. Case No. 19-CA-
1803. April 19, 1960
DECISION AND ORDER
On October 27, 1959, Trial Examiner William E. Spencer issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Leedom and Members Bean and Jenkins].
127 NLRB No. 43.
FEED AND SUPPLY CENTER, INC. 277
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions, and the entire record in this case, and hereby adopts
the findings, conclusions, and recommendations of the Trial Examiner
except as modified herein.
1. As set forth in the Intermediate Report and reflected in the un-
controverted testimony in the record, the Respondent made no effort
to negotiate with the Union although the Union, following its certi-
fication by the Board, had requested such bargaining in the latter part
of 1958. It was not until the Union filed charges on December 18,
1958, with the Board, alleging a refusal to bargain, that the Respond-
ent submitted a wage offer to the Union. The wage offer was subse-
quently rejected by the employees. Thereafter, in February, the
Respondent through its attorney submitted a new wage offer to the
Union, and informed the Board agent who was apparently investi-
gating the charges that there seemed to be little dispute about other
terms and conditions of employment. The Union accepted the new
wage offer, and the Respondent's attorney at the March 26 negotiating
meeting promised to draft a contract embodying the terms agreed
upon, and to talk to his client, and reiterated his earlier promise to
submit for the Union's inspection the Respondent's health and welfare
plan upon which the parties had been bargaining but had not reached
agreement. Subsequently, notwithstanding the Union's repeated re-
quests, the Respondent failed to draft a contract, to submit the health
and welfare plan, or to resume negotiations with the Union.
In view of the foregoing, and on the record as a whole, we find that
the Respondent refused to bargain with the Union in good faith,
thereby violating Section 8(a) (5) and (1) of the Act. Further, we
find that Respondent's refusal to submit for inspection its health and
welfare plan was in itself a violation of Section 8(a) (5) and (1) of
the Act.'
2. To remedy the unfair labor practices, the Trial Examiner recom-
mended, among other things, that the Respondent reduce to writing
and execute a contract incorporating the terms and conditions previ-
ously agreed upon in the negotiations between the Respondent's at-
torney and the union representative. As we are of the opinion that
the parties had not reached full and complete agreement on all the
terms of the contract, for this reason, and apart from other considera-
tions, we shall not adopt that portion of the Trial Examiner's recom-
mended remedy.' In the circumstances, we find that the customary
order prescribed herein will effectuate the policies of the Act.
I See Shoreline Enterprises of America , Inc., 117 NLRB 1619, 1620 , reversed on other
grounds 262 F. 2d 933 ( CA 5). Also see Stowe-Woodward , Inc., 123 NLRB 287
' Cf. North Carolina Furniture , Inc., 121 NLRB 41, 42; Westinghouse Electric Supply
Company, 96 NLRB 407, footnote 6
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Feed and Supply
Center, Inc., Twin Falls, Idaho, its officers, agents, successors, and
assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with General Teamsters,
Warehousemen & Helpers Union, Local No. 483, as the exclusive bar-
gaining representative of all millworkers, mixermen, merchandisers,
truckdrivers, and warehousemen employed at its Twin Falls, Idaho,
plant, excluding all office clerical employees, professional employees,
managers and assistant managers, guards, and supervisors as defined
in the Act, concerning rates of pay, wages, hours of employment, and
other conditions of employment.
(b) Refusing to submit to the Union a copy of its health and
welfare plan.
(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of the right to self-organization,
to form labor organizations, to join or assist General Teamsters,
Warehousemen & Helpers Union, Local 483, or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
,organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act, as modified by the Labor-Management Reporting
and Disclosure Act of 1959.
2. Take the following affirmative action designed to effectuate the
policies of the Act :
(a) Upon request, bargain collectively with General Teamsters,
Warehousemen & Helpers Union, Local 483, as the exclusive repre-
sentative of all employees in the certified unit described above, con-
cerning rates of pay, wages, hours of employment, and other condi-
tions of employment, and if an understanding is reached, embody such
understanding in a signed agreement.
(b) Upon request, furnish to said Union a copy of its health and
welfare plan.
(c) Post at its plant at Twin Falls, Idaho, copies of the notice
attached hereto marked "Appendix."' Copies of said notice, to be
furnished by the Regional Director for the Nineteenth Region, shall,
3In the event that this Order is enforced by a decree of a United States Court of
Appeals, there than be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
FEED AND SUPPLY CENTER, INC. 279
after being duly signed by Respondent's representative, be posted by
the Respondent immediately upon receipt thereof, and maintained by
it for a period of 60 consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Nineteenth Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that :
WE WILL, upon request, bargain collectively with General
Teamsters, Warehousemen & Helpers Union, Local No. 483, as
the exclusive representative of our employees in the certified bar-
gaining unit described below with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and
if an understanding is reached, embody such understanding in a
signed agreement. The bargaining unit is :
All millworkers, mixermen, merchandisers, truckdrivers, and
warehousemen employed at our Twin Falls, Idaho, plant,
excluding all office clerical employees, professional employees,
managers and assistant managers, guards, and supervisors as
defined in the Act.
WE WILL, upon request, submit to the Union a copy of our
health and welfare plan.
WE WILL NOT by refusing to bargain or in any like or related
manner interfere with, restrain, or coerce our employees in the
exercise of their right to self-organization, to join or assist Gen-
eral Teamsters, Warehousemen & Helpers Union, Local No. 483
or any other labor organization, to bargain collectively through
representatives of their own choosing, or to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such activi-
ties, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain, or refrain from
becoming or remaining, members of the above-nalned Union or any
other labor organization except to the extent that this right may be
affected by an agreement in conformity with Section 8(a) (3) of the
Act, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
FEED AND SUPPLY CENTER, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding was heard before the duly designated Trial Examiner of the
National Labor Relations Board, herein called the Board , in Twin Falls , Idaho,
September 22, 1959, on the complaint of the General Counsel of the Board and
answer of Feed Supply Center, Inc., herein called the Respondent or the Employer.
The issues litigated were whether the Respondent violated Section 8 (a) (1) and (5)
of the National Labor Relations Act, 61 Stat . 136, herein called the Act, by
refusing to bargain in good faith with General Teamsters , Warehousemen & Helpers
Union , Local No. 483, herein called the Union , the duly designated representative
of Respondent 's employees in an appropriate unit There was an oral statement
of the positions of the parties , respectively , at the close of the evidence . No briefs
have been filed.
Upon the entire record in the case and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Idaho corporation, whose office and plant is located in Twin
Falls, Idaho, is engaged in processing and selling of feed. Its sales for the year
1958 were in excess of $500,000. During this same period it made sales in excess
of $50,000 for shipment to points outside Idaho.
IT. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
On August 28, 1958, pursuant to the results of a Board directed election, the
Union was certified as bargaining representative of employees in the following
appropriate unit: All millworkers, mixermen, merchandisers, truckdrivers, and
warehousemen at the Employer's Twin Falls, Idaho, plant, excluding all office
clerical employees , professional employees , managers and assistant managers , guards,
and supervisors as defined by the Act.
The appropriateness of the unit and the Union's representative capacity are
admitted
In September or October 1958, the Union submitted a contract proposal to the
Employer and thereafter the Union's negotiator, Frank T. Baldwin, on several
occasions met with Attorney Eli A. Weston, the Respondent's representative No
actual negotiations ensued, however , until after the Union . on or about December
18, filed a charge with the Board alleging a refusal to bargain. Concerning this
period, Baldwin testified:
Well, I would keep talking to Mr. Weston and he would come back and say
he would talk to his client and so on and so forth, so we just finally got tired
and filed the charge . He just kept dragging it out and dragging it out.
FEED AND SUPPLY CENTER, INC. 281
Following the filing of this charge, Weston , on behalf of the Respondent, made
a wage offer . The Union submitted this offer to the employees it represented
and they voted to reject it . This vote was taken about January 19, 1959. In Feb-
ruary, Weston made a new contract proposal. Concerning this offer , Weston by
letter dated February 24, advised a field representative of the Board who ap-
parently had been investigating the Union 's charge against the Respondent:
Further with reference to our conversation , I talked to Mr. Baldwin again
this noon and offered to pay 6¢ an hour for six months with an additional 6¢
after six months or pay 8¢ at this time plus union security provisions for a
one-year contract.
There doesn 't seem to be much dispute about vacations , holidays, etc., and
he is to let me know if this offer is acceptable. Otherwise we will negotiate
further.
Weston's proposal was submitted to a vote and employees represented by the
Union voted to accept the offer of 6¢ with an additional 60 after 6 months. On
about March 26 Baldwin advised Weston of the acceptance of his offer , and re-
quested Weston to draft a contract for the parties to sign According to Baldwin,
Weston said that he would draw up the contract proposal and talk to his client.
During the negotiations leading up to Weston's offer, it had also been agreed that
Weston would submit the Respondent 's health and welfare plan, which , according
to him, was better than the one proposed by the Union . It appears that this was
the only item of substance on which agreement had not been reached, and agreement
on it was qualified only by Baldwin 's reservation of the right to inspect the Em-
ployer's plan and determine for himself whether it was equal to or better than the
plan proposed by the Union . Weston's letter of February 24 acknowledges, in
effect that further negotiations would be required only if the Union rejected the
Respondent 's wage offer.'
Apparently negotiations following the Union 's filing of a charge of unfair labor
practices convinced the Union that the Respondent was now bargaining in good
faith for it requested permission to withdraw the charge and on March 17 the
charge was dismissed by the Board 's Regional Office. The Respondent , however,
did not honor its commitments to the Union. Despite repeated requests by the
Union , Weston did not submit the Respondent 's health and welfare plan for the
inspection of the Union , did not draft a contract incorporating the wage increase
and other items agreed upon , and there was no resumption of bargaining nor the
effectuation by the Respondent of the wage increase or other items agreed upon.
Weston now advised Baldwin that while he would recommend that his client execute
a contract incorporating matters agreed upon , he had no authority to execute such
a contract until it had been approved by his client . Obviously no such approval
was forthcoming and the stalemate occasioned thereby has continued to the present
time. By way of explanation , Weston advised Baldwin of various and sundry
financial difficulties in which the Respondent was involved . Concerning those
difficulties no evidence was presented.
It is obvious that there has been no good-faith bargaining by this Respondent.
The Union was unable to obtain any negotiations on a contract until after it had
filed a charge of unfair labor practices , and no sooner had this charge been dis-
missed than the Respondent refused to honor the commitments made on its behalf
by its sole negotiator , Weston, and broke off all further negotiations with the Union.
It may well be that Weston was attempting in good faith to negotiate a contract on
behalf of his client but the fact remains that any such efforts on his part were
nullified by that client's refusal either to meet face to face with the Union 's nego-
tiator or to abide by any agreements reached in the course of bargaining between
Weston and the Union.
Is the Respondent bound by agreements reached by Weston, acting as its nego-
tiator, and the Union ? I think it is. When Weston made his wage offer on about
'Harold W . Reynolds , the Union 's business representative , testified that it was his
understanding that Weston was to draw up a contract embodying Respondent ' s wage offer
and all other contract proposals submitted by the Union except welfare and sick-leave
clauses , these to be negotiated at a later date. Reynolds did not himself participate in or
attend the negotiations with Weston , and whatever understanding he had in the matter
was conveyed to him by Baldwin Baldwin testified that on Weston 's representation that
the Respondent ' s health and welfare plan was better than the Union 's, he withdrew the
Union's proposal for sick leave , and, further , that he understood the Respondent's vaca-
tion plan was better than that proposed by the Union.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 24, the Union reasonably believed that this was a bona fide offer made on
behalf of the Respondent ; had it not believed this to be a binding offer it would
not have submitted the proposal to a vote of employees . In fact, I can find nothing
in the circumstances under which Weston made his contract proposal from which
the Union might reasonably have inferred that this was anything but a firm and
binding proposal . In his February 24 letter to the Board, Weston in no way qualifies
his offer as a tentative one which would have to be cleared with his client before
it could be advanced as a bona fide and binding offer, and it is obvious that he made
no such qualification in presenting his proposal to the Union. His attempted
qualifications appear to have come after the Union's acceptance of his proposal. As
a matter of fact, it is 'entirely unlikely and hardly credible that he would make an
offer of such definiteness after extended negotiations and on what appears to have
been the only unresolved issue of substance between the parties , and record that
offer in a letter to an agent of the Board , without having consulted with his client
and without having received that client 's approval . We do not have the benefit
of his testimony nor of that of any witness for the Respondent and therefore we can
draw only such inferences as appear to be required on the basis of the evidence that
is before us. That evidence leads to but one reasonable conclusion - that the Re-
spondent through its negotiator , under the stress of having a charge of unfair labor
practices pending against it, made certain contract proposals , including a wage offer,
and when the Union accepted its offer and the charge against the Respondent was
dismissed , reneged on its offer and refused further negotiations.
We can only speculate on the basis of what Weston told Baldwin that the Respond-
ent was laboring under economic stresses , and of course this may have been a primary
motivation in its efforts to back out of an agreement already consummated, but no
evidence was offered in the matter and in any event, the decisions of the Board and
the courts have long held that economic difficulties provide no escape from an em-
ployer's duty to bargain in good faith with the duly designated representative of its
employees . It is also established by authority of long standing that once an agree-
ment has been reached, it is a violation of Section 8(a)(5) for either of the bar-
gaining principals to refuse to reduce the said agreement to writing and to execute it.
It may be contended that inasmuch as certain contract proposals were left open
at the time negotiations were broken off, there was no final and binding agreement
on a contract and therefore the Respondent was under no obligation to reduce to
writing and execute such portions of a contract as were agreed upon. I think such a
contention would be without merit. Respondent 's failure and refusal to reduce to
writing and execute a contract incorporating matters agreed upon is not attributable
to the fact ,that health and welfare proposals were left open at the time Respondent
broke off negotiations . Such proposals were left unresolved because the Respond-
ent failed and refused to submit for the Union 's inspection its own health and wel-
fare plan represented by its negotiator to be more liberal than the Union 's own pro-
posals. This action of itself constituted an unfair labor practice for it further and
independently demonstrated the lack of good faith in Respondent 's dealings with the
Union. I think the Respondent may not avoid its obligation to execute a contract
embodying its wage offer as accepted by the Union , and other matters agreed upon,
by pleading unresolved issues, when it made agreement on such unresolved issues
impossible because of its own unfair labor practices.
It is found that the Respondent refused to bargain in good faith with the Union
within the meaning of Section 8(a)(5) of the Act, and thereby interfered with, re-
strained , and coerced its employees within the meaning of Section 8(a) (1) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The actiyjties of Respondent, set forth in section III, above, occurring in connec-
tion with the operations of Respondent, as described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States and such of them as have been found to constitute unfair labor prac-
tices tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Having found that the Respondent has refused to bargain with the Union, inter
alia, by refusing to reduce to writing and to execute a contract incorporating a wage
increase and other contract proposals agreed upon by the Respondent and the Union
as a result of collective bargaining, it will be recommended that the Respondent
forthwith execute a contract incorporating the aforesaid wage agreement and all
EDWARD SMALL PRODUCTIONS, INC. 283,
other matters agreed upon by the Respondent and the Union during the course of
collective bargaining and preceding the date when the Respondent broke off negotia-
tions with the Union.
Having found that the Respondent's whole course of conduct from the date of
the certification of the Union is the antithesis of good-faith bargaining, it will
further be recommended that on request and with respect to matters not already
agreed upon and incorporated in a contract pursuant to the recommendation above,
the Respondent bargain with the Union as the representative of its employees in an
appropriate unit and if an understanding is reached, embody such understanding
in a written and duly executed agreement.
It is further recommended that the Respondent forthwith furnish to the Union a
copy of its health and welfare plan.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
2. All millworkers, mixermen, merchandisers, truckdrivers, and warehousemen
employed at the Respondent's Twin Falls, Idaho, plant, excluding all office clerical
employees, professional employees, managers and assistant manager, guards, and
supervisors as defined in the Act, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act.
3. The Union was on August 28, 1958, and at all times since has been, the exclu-
sive representative of all employees in the aforesaid appropriate unit for the pur-
poses of collective bargaining within the meaning of Section 9(a) of the Act.
4. On March 26, 1959, the Union and the Respondent reached an agreement on
wages and other matters covering the employees in the above-described appropriate
unit.
5. Since March 26, 1959, the Respondent has refused repeated requests by the
Union to execute a contract incorporating matters agreed on as of March 26, 1959.
6. By its refusal to execute the said agreement, and by an entire course of con-
duct that is the antithesis of good-faith bargaining, the Respondent has refused to
bargain collectively with the Union as exclusive representative of employees in the
above-described appropriate unit, and has thereby engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (5) of the Act.
7. By the said refusal to bargain the Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed them in Section 7 of
the Act, and thereby has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Edward Small Productions , Inc. ; 1 Vogue Pictures, Inc. ; Peer-
less Productions, Inc.; Premium Pictures, Inc. and Musicians
Guild of America , Petitioner. Case No. 21-RC-5778. April 19,
1960
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Max Steinfeld, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
i The name of the Employer appears as amended at the hearing.
127 NLRB No. 36.