Food Service Co.

National Labor Relations Board - Board Decisions

Mar 30, 1973

202 N.L.R.B. 790 (N.L.R.B. 1973)

790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Food Service Company and General Drivers, Ware-
housemen & Helpers Local Union No. 968,
affiliated with International Brotherhood of Team-
sters , Chauffeurs, Warehousemen & Helpers of
America . Case 23-CA-4203
March 30, 1973
DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On October 27, 1972, Administrative Law Judge
Paul Bisgyer issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge
and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Food Service Company, Houston,
Texas, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order
DECISION
STATEMENT OF THE CASE
PAUL BISGYER, Administrative Law Judge: This proceed-
ing, with all the parties represented, was heard on May 15
through 19, 23, and 24, 1972 in Houston, Texas, on the
complaint of the General Counsel issued on March 24,
1972,1 as subsequently amended, and the answer of Food
Service Company, herein called the Respondent or
Company. In general, the questions presented for decision
are whether the Respondent failed to bargain in good faith
i The complaint is based on original and amended charges filed by the
Union on January 6 and February 24. 1972, respectively, copies of which
were duly served on the Respondent by registered mail on the respective
filing dates
L Sec 8 (a)(I) of the Act makes it an unfair labor practice for an employer
"to interfere with , restrain, or coerce employees in the exercise of the rights
guaranteed in Section 7 " Insofar as pertinent , Sec 7 provides that
"[e]mployees shall have the right to self-organization , to form , join, or assist
labor organizations, 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
Sec 8 (a)(3) of the Act , with certain qualifications not material herein.
prohibits an employer " by discrimination in regard to hire or tenure of
202 NLRB No. 107
with General Drivers, Warehousemen & Helpers Local
Union No. 968, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, herein called the Union, as the exclusive
representative of the Company's employees in an appropri-
ate unit; whether the Respondent unilaterally changed its
employee insurance program and imposed notification and
registration conditions for the reinstatement of strikers;
whether it denied the Union relevant information and
access to payroll records; whether the Respondent discrim-
inatonly denied striking employees reinstatement on their
unconditional application; and whether, by the foregoing
conduct, it violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act, as amended.2 At the close
of the hearing, the parties waived oral argument, but,
thereafter, the General Counsel and the Respondent filed
briefs in support of their respective positions.
Upon the entire record, and from my observation of the
demeanor of the witnesses, and with due consideration
being given to the arguments advanced by the parties, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Texas corporation, with its principal
office and place of business in Houston, Texas, is engaged
in the wholesale distribution of food and related products
In the regular course and conduct of its business, the
Respondent annually purchases goods valued in excess of
$50,000 which are shipped directly to its facility from
sources outside the State
It is admitted, and I find, that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act
If. THE LABOR ORGANIZATION INVOLVED
There is no question that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Bargaining history; chronology of events
For some 15 years the Union has been the duly
recognized bargaining representative of the Respondent's
employees in a concededly appropriate unit3 pursuant to
successive contracts. Apparently, the relations of the
employment or any term or condition of employment to encourage or
discourage membership in any labor organization
Sec 8(a)(5) makes it an unfair labor practice for an employer "to refuse
to bargain collectively'with the representatives of his employees, subject to
the provisions of Section 9(a)" The latter section provides that the
representatives selected by a majority of the employees in such unit "shall
be the exclusive representatives of all the employees in such unit for the
purposes of collective bargaining in respect to rates of pay, wages. hours of
employment or other conditions of employment "
S This unit, as defined in the complaint and the most recent ontract,
consists of "[a III employees employed by the Respondent at its Houston
Texas, facility, but excluding office clerical employees, salesmen, guards.
watchmen and supervisors as defined in the Act "
FOOD SERVICE COMPANY 791
parties during this period were amicable and harmonious
and free of any strikes. The last contract was for a 3-year
term due to expire on September 18, 1971, absent 60-day
advance notice of a desire to change, modify, or terminate
the agreement. In accordance with this provision, the
Union, by letter dated July 8, 1971,4 served timely notice
on the Respondent to renegotiate the expiring contract.
About August 26, John A. Goffney, Sr., the Union's then
business representative,-5 delivered the Union's proposed
contract to Allen D. Rosenthal, the Company's president.
This was a comprehensive document which consisted of 41
articles embodying some 200 provisions far in excess of the
approximate 80 provisions contained in the 10 articles in
the predecessor agreement. However, wage proposals were
tentatively omitted from this document.
From August 31 through March 20, 1972, the parties
held 15 collective-bargaining sessions.6 At the first five
meetings President Rosenthal conducted the negotiations
on behalf of the Company, as he had done when the
previous contract was negotiated with other union officials.
However, after the September 28 meeting, the Company
retained legal counsel7 and, in the ensuing negotiations,
Attorney Duke assumed Rosenthal's function as the
Company's principal negotiator. Rosenthal, nevertheless,
continued to attend all but the last two of the meetings.
Representing the Union at most of the bargaining sessions
was Goffney who was superseded at several meetings as
the Union's chief spokeman.8 Also in attendance at various
meetings were two employee union committeemen and
other company officials.
As will be fully discussed below, negotiations did not
produce agreement. At the December 3 meeting, the
Respondent made a final offer to the Union, which the
employees rejected the next day. On December 6, the
employees went on strike and picketed the plant until
about March 10, 1972. In the intervening period, the Union
unsuccessfully attempted to secure the reinstatement of the
striking employees, although it appears that at the time of
this case, a number of them had already returned to work.
There was also a resumption of contract negotiations on
February 2, 1972, but these, too, ultimately broke down on
the following March 20 when the Respondent for the first
time required proof of the Union's majority status before
proceeding with the negotiations. As the Union declined to
comply with this condition, no bargaining has taken place
since that date.
In essence, it is the General Counsel's position that the
Respondent bargained in good faith until September 28,
but that, since Attorney Duke's subsequent appearance in
All dates refer to 1971 unless otherwise indicated
5 Goffney became a business representative in November 1970 and
continued in that capacity until March 1972, when he was appointed a
trustee and ceased representing employees
F The dates of these meetings are, as follows August 31, September 8,
14, 21, 28, October 28, November 4, 8, and December 3, 1971, February 2,
9, 16, March 7, 14, and 20, 1972
7 In the negotiations for the previous contract , Rosenthal did not utilize
legal counsel
8 Goffney attended all the meetings except the last two
9 It was Goffney's general practice during the negotiations to record on
his copy of the Union's proposed contract after the parties had discussed a
particular item their disposition of that item by noting alongside the
provision "O K ," if Rosenthal accepted it, or "pass" and, in a few instances
"open ," if agreement was not reached, and inserting the date of the
the negotiations, it failed to discharge its statutory
obligation; that such unlawful conduct, at least in part,
caused and prolonged the strike; and that the Respondent
thereafter discriminatorily denied reinstatement to a
number of employees who, as unfair labor practice strikers,
were entitled to reinstatement on their unconditional
application. We turn to the evidence.
2. August 31-September 28 negotiations
As indicated above, there is no question that the
Respondent's president, Allen Rosenthal, bargained in
good faith with the Union's chief negotiator, John
Goffney, at the five sessions held during this period. At
these meetings, the Union's proposed contract was exten-
sively reviewed and discussed clause by clause seriatim,
with the object of ascertaining the points of agreement and
differences between the parties It was the parties'
procedure to cover as many provisions as possible in one
meeting and to carry over the remaining clauses for
consideration at subsequent sessions . As a result of these
discussions, the parties by the close of the September 28
meeting managed to reach agreement on a substantial
number of items, both with and without modification of
the Union's proposals, leaving open for further considera-
tion those items on which there was disagreement,9
including the Union's separate wage proposals 10 and other
economic items. In addition to the concededly agreed-
upon and disputed items, there were other provisions in the
Union's proposed contract which became the subject of
controversy at subsequent meetings as to whether or not
Rosenthal had previously accepted them and thereafter
withdrew agreement when Attorney Duke replaced him as
the Company's chief negotiator. It is upon the alleged
withdrawal of agreement, which will be considered below,
that the General Counsel relies to a great extent as
evidence of bad-faith bargaining. -
3. The Respondent's employment of legal counsel
to represent it in the negotiations;
the October 28 meeting
Evidently finding a need for legal representation in the
contract negotiations with the Union, Rosenthal, in the
noddle of October, retained a law firm for such purposes
and Attorney Duke, an associate in the firm, undertook to
handle the negotiations for the Respondent. In fact, this
action does not appear to have been unanticipated since on
one or more occasions during the earlier discussion of
disposition Although these notations were not shown to Rosenthal at the
time they were made , I find that , with certain exceptions , they generally
reflect the correct disposition of the clauses Indeed, the notations
correspond with the disposition of many items indicated in the Company's
counterproposal which was submitted by Attorney Duke on November 4
Rosenthal also "scribbled" some notes on his own copy of the Union's
proposal, which according to him and Duke, was lost
10 During these initial negotiations , Goffney orally proposed a $1-an-
hour across - the-board wage increase for the first year and additional $1
hourly increases thereafter He testified that he was not aware whether the
wage proposal was permissible under phase I of the Price - Wage Freeze in
effect at that time Observing that the Union's wage demands were quite
large , Rosenthal stated that he would submit his wage offer after reviewing
all the cost items
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain proposed contract clauses , Rosenthal indicated to
Goffney that he was having some difficulty understanding
them and that he intended to consult legal counsel. In
preparation for the next bargaining session, Duke reviewed
with Rosenthal the prior negotiations in an effort to learn
what items in the Union 's proposed contract were agreed
upon and which ones were still open and in dispute.
Although Duke conceded that he was unable to secure a
clear picture of the status of the negotiations from his
conversation with Rosenthal or from Rosenthal 's marked-
up copy of the Union 's proposed contract , he questioned
the wisdom of Rosenthal 's admitted acceptance of certain
provisions . Specifically , Duke pointed out to Rosehthal
that the "successors" clause 11 in the opening section of the
Union ' s proposed contract would hinder the Company in
selling its business should it desire to do so. In addition, he
expressed disapproval of the Union ' s proposed subcon-
tracting provision (art. 26) 12 for the reason that it would
limit or even prevent the Company's use of casual labor
which it customarily employed. Neither clause was
contained in the parties' last contract . Acting on Duke's
advice, Rosenthal decided to withdraw his consent to those
clauses, although Duke informed him that it was not his
policy to retract prior agreements and that such action
could ultimately reflect adversely on the Company 's good-
faith bargaining.
On October 28, Duke , accompanied by Rosenthal, met
with Goffney and the employee committeemen for the first
time After being introduced as the Company 's principal
spokesman , Duke requested to be briefed on the areas of
agreement and disagreement resulting from the prior
negotiations . Utilizing the Union 's proposed contract, the
parties reviewed all the clauses 13 with Duke making notes
of the parties ' positions . With respect to most of the items,
Goffney and Rosenthal identified the clauses on which
there was agreement and those which were still unresolved
items. However, Goffney and Rosenthal were seriously at
odds as to whether Rosenthal had previously accepted
other items in the Union 's proposed contract . Goffney
argued in the affirmative while Rosenthal insisted that no
agreement had been reached on them and Duke declared
that , under those circumstances , he would treat those items
as open questions The foregoing is in essence what
transpired at this meeting.
4 The November 4 meeting
At this meeting, Attorney Duke presented the Compa-
1 i The Union's proposed clause provided that "[t Ibis Agreement shall be
binding not only upon the parties hereto but upon their successors and
assigns " This provision was agreed to on August 31
12 Art 26, entitled "Subcontracting," provided, inter ala, as follows
Section 26 1 The Employer agrees that no work or services presently
performed or hereafter assigned to a bargaining unit covered hereby will be
subcontracted or transferred to any outside company except as permitted by
local agreement Also contained in this article was sec 262 which
dealt with subcontracting store deliveries to a common or contract carrier
These provisions were agreed to September 14
I S It is unnecessary to resolve a conflict in testimony whether, during the
earlier negotiations between Goffney and Rosenthal , there was also a
recapitulation of the items agreed upon and those which remained in
dispute
14 This finding is based on Duke's testimony which was corroborated by
Rosenthal While Goffney denied that Duke gave a reason for the
ny's proposed contract to the Union. This document
embodied most of the Union 's proposed clauses which
Rosenthal had accepted in the early negotiations but
omitted the "successors," "subcontracting" and "30-day
seniority" provisions, even though they had previously
been agreed upon In addition, the Company's proposed
contract excluded other unacceptable union provisions
upon which no agreement had been reached or modified
them as the Company's own proposals. After Goffney and
the employee committee read the Company's proposed
contract and compared it with the Union's, Goffney
protested the omission of the successors , the subcontract-
ing, and other provisions proposed by the Union, insisting
that they had previously been accepted by Rosenthal. This
led to a discussion of these clauses between Goffney and
Duke. Duke conceded that Rosenthal had previously
agreed to the successors clause. However, Duke explained
that the clause was not acceptable because it could hinder
the Company' s sale of the business should it decide to take
that action. He further stated that he would have given that
advice to Rosenthal had he entered the negotiations
sooner.14 With respect to the subcontracting provisions,
(art. 26) which , like the successors clause , were not
embodied in the parties' expired contract , Duke stated that
the Company withdrew its prior consent because for years
it had been relying heavily on casual help primarily for
unloading boxcars and that the subcontracting clauses
would restrict this employment practice.15 Although
Goffney testified that Duke was reluctant or unwilling to
discuss the Company's withdrawal of agreement on these
and other assertedly accepted provisions , it appears to me
from a careful consideration of all the negotiations that
actually there was vigorous discussion of these clauses with
Duke obstinately adhering to the Company's new position
and with Goffney being equally inflexible in his position
that the Company was obligated to accept those provi-
sions
There is another clause, section 12.2, which the Respon-
dent admits Rosenthal had agreed to on September 8.
However, it asserts that that clause was inadvertently
omitted from the Company's proposed contract and that it
did not learn of the omission until long after the event
when a Board agent called Duke's attention to it . Section
12 2 is the part of article 12 entitled "Discharge or
Suspension" and includes two other sections, 12.1 and 12.3,
which deal extensively with the procedures to be followed
in discharge and suspension cases It is undisputed that
there was no consensus on these two sections when they
withdrawal of agreement on the successors clause in response to his inquiry,
I find it difficult to believe that Duke , an experienced labor negotiator,
would not furnish this rather obvious justification for not agreeing to the
clause in question
15 1 credit Rosenthal 's testimony that this was the reason given at the
bargaining table In his brief. General Counsel questions whether this
reason was actually given, and the Company 's good faith at the bargaining
table because of the existence in the Union's proposed contract of sec 33
find no basis for this contention That clause provided , among other
things for the application of wages, hours, and working conditions under
the contract to casual employees as well as to full -time and part-time
employees However this item was left open at the September 14 meeting,
after Rosenthal refused to agree to it Consistent with its position, the
Company included in its proposal a sec 33 1 which omitted, among other
things, the phrase "casual employees "
FOOD SERVICE COMPANY 793
were discussed on September 8. Section 12.2 is a single
sentence clause which provides for the issuance of
"[r]eprimands, written warning notices and/or disciplinary
action-no later than fourteen (14) days after the occur-
rence." According to Rosenthal's testimony, section 12.2
was never mentioned in the negotiations after October 28,
although section 12.1, which obviously was the most
important provision in article 12, was discussed by the
parties at great length. Goffney testified that he did inquire
of Duke about the omission of section 12.2 and that Duke
simply stated that another provision, step 4C in article 10,
which also deals with the grievance procedure in discharge
and suspension cases, reflected the Company's position.
However, Goffney did not note the omission of section
12.2 on his copy of the Company's proposed contract, as he
had done with respect to other omissions. Considering that
section 12.2 is only a small part of article 12, I am inclined
to believe that its omission from the Company's proposal
was inadvertent and not called to Duke's attention during
negotiations.
In addition to the foregoing items, the General Counsel
alleges that the Respondent on November 4 withdrew
agreement on other provisions in the Union's contract
proposal which Rosenthal had previously accepted, there-
by betraying the Respondent's purpose to avoid conclud-
ing a contract with the Union. As related below, the
Respondent strenuously denies that Rosenthal had previ-
ously agreed to those provisions.
(a) Section 2.1(c)(1) and (2)i6
These provisions are part of the Union's proposed article
2 entitled "Union Shop and Dues" but were left out of the
Company's proposed contract. Among other things,
section 2.1 provides for a union shop or, if prohibited by
state law, an agency shop. It is undisputed that those
provisions were not agreed upon on August 31 when
Goffney and Rosenthal discussed them, nor were they
included in the parties' last contract. Goffney testified,
however, that on August 31 Rosenthal agreed to subpara-
graphs (1) and (2) of section 2.1 (c) (the agency-shop
provision), although he refused to accept the other
provisions in section 2.1(c) Indeed, Goffney also testified
that while article 2 was under discussion Rosenthal was
troubled by the legal aspects of the union-security clauses
and requested an opportunity to consult legal counsel.
Moreover, although Goffney's copy of the Union's
16 Sec 2 1(c) provides
If during the life of this agreement State Law prohibits a Union Shop
then the following Agency Clause shall apply to the extent permissible
under the applicable State Law
I Membership in the Union is not compulsory Employees
have the right to join, not join, maintain, or drop their
membership in the Union as they see fit Neither party shall
exert any pressure on or discriminate against an employee as
regards such matters
2 Membership in the Union is separate, apart and distinct
from the assumption by one of his equal obligation to the extent
that he receives equal benefits The Union is required under this
Agreement to represent all of the employees in the bargaining
unit fairly and equally without regard as to whether or not an
employee is a member of the Union The terms of this
Agreement have been made for all employees in the bargaining
unit and not only for members in the Union and this Agreement
has been executed by the Employer after it has satisfied itself
proposal contains a notation in the margin that subpara-
graphs (1) and (2) were approved on August 31, it also has
a large question mark immediately below it. According to
Duke, when Goffney asserted at the October 28 meeting
that the two subparagraphs in question had been previous-
ly agreed to, Rosenthal took issue with him. In view of the
foregoing, including the fact that the heart of article 2
providing for a union shop or, in the alternative, an agency
shop, was undeniably in dispute, I am not convinced that
Rosenthal had really agreed to the subparagraphs in
question.i7
(b) Sections 3 1, 3.2, and 3. 3 (stewards)
Here, the dispute centers about the Union's demand in
section 3.1 i8 that the Respondent recognize its right to
designate more than one steward, although in the past the
Union had only one steward to perform that function.
Sections 3.2 and 3.3, which describe the authority of
stewards, are involved only with respect to the use of plural
terminology. There is no question concerning their sub-
stance.
Goffney testified that on August 31 Rosenthal agreed to
all the sections in article 3.19 He further testified that on
November 4 he objected to the provision in the Company's
proposal, also designated 3.1, which provided for the
appointment of only one steward; that he argued with
Duke that he needed at least another steward on the night
shift to handle problems there; and that Duke adhered to
his position that the Company saw no necessity for more
than one steward. Rosenthal, on the other hand, testified
that he had previously agreed to all the sections of article 3,
except 3.1, and that he insisted on one steward in all
subsequent negotiations with Goffney even to the extent of
protesting the Union's appointment of a named individual
as steward on the night shift. Goffney, however, testified
that Rosenthal's objection to the second steward was of a
personal nature. Rosenthal's testimony concerning the
absence of agreement on section 3.1 derives support from
Duke's testimony that on October 28, there was no
disagreement between the parties that that provision was
an unresolved issue.
All things being considered, I am not convinced that the
question of the number of stewards had been unequivocal-
ly resolved in the initial negotiations between Rosenthal
and Goffney.
that the Union is the choice of a majority of the employees in
the bargaining unit
A notation on Goffney's copy of the Union's proposal shows that another
paragraph in "2" was "deleted by Union 10-28 "
11 In his brief, the General Counsel characterized these subparagraphs as
"innocuous, and certainly not vital to the Union "
id Sec 3 I provides that the "Employer recognizes the right of the Union
to designate job stewards and alternates at the Employer 's respective
locations from the Employer's seniority list" It appears from Goffney's
notes that the "s" in "locations" was deleted on November 4 Goffney
testified that this was done at the insistence of Rosenthal who stated that the
Company operated at only one location
19 In addition to the above sections , art 3 has two other sections, 3 4 and
3 5 Goffney's copy of the Union's proposed contract contains separate
notations in the margin alongside all the sections , except 3 I , indicating they
were approved on August 31 There is no marginal notation for 3 1
Agreement on sees 3 4 and 3 5 was withdrawn by the Respondent on
February 9, 1972, under circumstances later discussed
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Section 5 1 (seniority)
In section 5.1, the Union proposed that an employee
should be entitled to seniority after the completion of 30
days of service. Since the parties have always been in
accord that the number of days prescribed in the seniority
clause and the number of days prescribed as a probationary
period should be the same, the Union in section 2.5 of its
proposed contract also provided for a 30-day probationary
period. Both proposals were departures from the parties'
last contract which provided for a 45-day period for
seniority eligibility and probation.
There is no question that on August 31 the parties first
discussed the Union's section 2 5 and were unable to reach
agreement, passing it for further future consideration
Although Goffney testified that the obstacle to agreement
on that clause was the limitation therein placed on the
Company's use of false information in an employee's
application to terminate the employee,20 Goffney conced-
ed that there was no discussion with respect to the Union's
proposed 30-day probationary period Later in the negotia-
tions on August 31, Rosenthal admittedly accepted the
Union's proposed section 5.1 with its 30-day seniority
eligibility period. Controversy, however, arose on Novem-
ber 4 when Duke submitted to Goffney the Company's
proposal which provided in section 5.1 a 45-day seniority
eligibility period and in section 2.5 the same probationary
period. Goffney expressed his objection to the Respon-
dent's failure to honor its prior agreement on section 5.1,
while Duke attempted to justify the 45 days on the ground
that he was only conforming the seniority clause to the 45-
day probationary period the Company proposed in section
2 5 on which there admittedly had never been agreement.
Goffney, on the other hand, argued the reverse, asserting
that the Respondent was bound to adopt the 30-day
probationary period in its section 2.5 by reason of the
Respondent's prior acceptance of the 30-day seniority
period in the Union's section 5 1 This issue remained
unresolved at this bargaining session.
(d) Section 11 2 (a) and (b) (picket line
and struck goods)
These provisions21 were embodied in article II (Protec-
tion of Rights) of the Union's proposed contract. Goffney
testified that article 11 in its entirety was agreed to on
September 8 by Rosenthal after a "somewhat limited"
consideration. Rosenthal, however, contradicted Goffney,
20 The Union's proposed sec 2 5 provided, in addition to a 30-day
probationary period, that the "[e Imployer shall not use any information
pertaining to an employee's application against him in any way after he has
completed thirty (30) days of service unless the information pertains to a
criminal conviction "
2i These provisions read, as follows
Section 112 Picket Line and Struck Goods, Notwithstanding the
provisions of Section I 1 1 by which the Union agrees to refrain from
interference with or interruption of the Employer's business by the
Union or its members, it shall not be a violation of this Agreement and
it shall not be cause for discharge or disciplinary action if
(a) An employee refuses to enter upon any property involved in a
lawful primary labor dispute, or refuses to go through or work behind
any lawful primary picket line, including the lawful primary picket line
of the Union. party to this Agreement, and including lawful primary
picket lines at the Employer's place of business
(b) An employee refuses to perform any service which the Employer
testifying that he only agreed to section II I (No Strike,
No Lockout), and section 11.3 (Grievances) but not to
section 11.2 (a) and (b) on which there was much
discussion. He further testified that he told Goffney that he
wanted to consult an attorney about the provisions in issue.
Goffney testified that Rosenthal had expressed a desire to
speak to an attorney but that he could not recall whether it
was with respect to section 11.2.
At the November 4 meeting, Goffney complained to
Duke about the omission of section 11.2 (a) and (b) from
the Company's proposed contract, contending that those
provisions had previously been accepted. Duke denied
Goffney's claim and affirmed the Company's rejection of
those clauses.
It appears to me that the "Picket Line and Struck
Goods" clauses were of such a technical nature, that it is
quite likely that an employer would seek legal advice, as
was done here. Accordingly, I credit Rosenthal's testimony
that he withheld agreement on section 11.2 (a) and (b) so
that he could consult legal counsel, even though the
parties' last contract had a picket line clause22 which
manifestly was less complicated than the one in issue.
(e) Sections 32.1 and 32.3 of article 32 (guarantees)
There is a serious conflict in testimony whether the
Union's proposed section 32.1,23 which provided for a 40-
hour guaranteed workweek, had been agreed to before the
Respondent submitted its proposed contract on November
4. Goffney gave the following account of the discussions
respecting this clause: At the September 14 meeting,
Rosenthal at first rejected the Union's proposed 40-hour
guaranteed workweek and offered to continue the 43-hour
workweek prescribed in the parties' last contract. Accord-
ingly, Goffney noted on his copy that the item was passed
for future consideration. 24 Thereafter, at the same meeting,
Rosenthal changed his mind and accepted the clause and
Goffney noted "o.k." on his copy of the Union's proposals
and crossed out "pass." On October 28, Duke's first
bargaining session, the subject of the 40-hour guaranteed
workweek arose and Duke stated that it was not a
previously agreed-upon item. As a result, Goffney deleted
the "o k." on his copy of the Union's proposed contract
and inserted a question mark and "open-pass 10-28." At
the November 4 meeting, Goffney again raised the 40-hour
undertakes to perform for another employer or person whose
employees are on strike and which service, but for such strike, would be
performed by the employees of the other employer or person on strike
22 Art VI, sec 7 of the expired contract provided
No employee shall be required to cross a picket line which has been
officially recognized by the Union Before the Union gives official
recognition to any picket line it will discuss such action with the
Employer
23 Sec 32 1 provided that "[a III full-time employees who report for work
as required by their department schedule are guaranteed forty (40) hours in
work days as shown on the bid, which shall be five (5) days or less"
Goffney testified that at the September 14 meeting the word "consecutive"
was inserted before "days "
21 The various notations on Goffney's copy of the Union's proposed
contract add to the confusion regarding the status of sec 32 I at any
particular time
FOOD SERVICE COMPANY 795
question when Duke submitted the Company's proposal
without any guaranteed workweek specified 25 In response,
Duke repeated the Company's position that a 40-hour
guaranteed workweek had never been agreed to. Duke was
also not persuaded to change his mind by Goffney's
argument that the Union's proposal was needed to satisfy
the employees' complaints about long hours and other
matters Either at this or another meeting, Duke expressed
his inability to understand the Union's preference for a 40-
hour guaranteed workweek to a 43-hour one.
Rosenthal denied that he ever acceded to the Union's 40-
hour proposal in his initial discussions with Goffney but
testified that he offered a 43-hour week with a gradual
reduction to 40 hours over the term of the contract. 26 It is
undisputed that at the December 3 negotiations the
Company accepted the 40-hour guaranteed workweek
The foregoing evidence regarding discussions of the
guaranteed workweek leaves me in doubt whether in the
earlier negotiations Rosenthal had unequivocally accepted
the Union's proposed section 32 1.
Turning to section 32.3, which involves limitations on the
guarantees set forth in the contract, it is not clear whether
the General Counsel still relies on it as an item on which
agreement was retracted. This section was listed by him at
the hearing but was not mentioned in his brief. In any
event , the Union's section 32 3, for all practical purposes, is
the same as section 32.2 in the Company's proposal
submitted at the November 4 meeting. The Company's
proposal was accepted by the Union on November 8 with
an inconsequential addition.27
It is clear from the evidence that the discussions at the
November 4 bargaining session were not confined to the
items upon which agreement had allegedly been reached.
The record discloses that there actually was an exchange of
views with respect to numerous other provisions in dispute,
as there was during the earlier negotiations between
Rosenthal and Goffney. The record further indicates that
at the November 4 session neither party showed a
discernible disposition to recede from its position or to
make meaningful concessions. Moreover, consideration of
several monetary matters was deferred until the Respon-
dent presented its wage proposals. Since it obviously is not
the Board's function to judge the relative merits of the
parties' positions, it would serve no useful purpose to detail
the discussions on specific subjects.
5 The November 8 meeting
Duke presented the Company's so-called "Package
Proposal" which, according to Goffney's testimony, Duke
declared was negotiable. The package proposal consisted
15 Sec 32 I in the Company's proposal stated that "(a) All full-time
employees who report to work as scheduled by the Company are guaranteed
the number of hours agreed upon in this Agreement " Rosenthal testified
that he wanted the number of guaranteed hours finally agreed upon to be
inserted in another part of the contract , as was done in the expired contract
26 In the appendix of the last contract , provision was made for the
reduction of the workweek from 46 to 43 hours over the 3-year contractual
term
27 It also appears that the last sentence in the Union 's sec 32 3 was
deleted at the Union 's request
28 Specifically, the Company desired that job classifications should
remain the same , that rates would be "minimums", that hourly rates would
be increased 10 cents every 6 months during the term of a consummated
of 14 articles and sections in the Company's proposed
contract, which had previously been rejected by the Union,
and a statement of the Company's position with respect to
job classifications , minimum rates , periodic wage increases,
and a guaranteed workweek.28 The meeting was then
devoted to a consideration of the disputed items in the
package proposal, as well as their counterparts and other
provisions in the Union's proposed contract In essence,
these discussions amounted to nothing more than a
restatement by the parties of prior arguments, explana-
tions, and views and the Union's reiterated, but equally
controverted, claim that several of its proposals had
already been accepted by Rosenthal earlier in the negotia-
tions. For this reason, Duke at times voiced impatience
with the repetitive nature of the discussions. Although by
the close of this meeting, which lasted 2 to 3 hours, the
parties were finally able to come to agreement on three
disputed items29 and the Respondent was willing to give
the employees one additional holiday, Memorial Day,30
significant progress had really not been made because of
the parties' stubborn adherence to their respective posi-
tions.
6. December 3 meeting; the Respondent's final
offer and its rejection
Observing that the parties had already held quite a
number of bargaining sessions, Duke announced that he
was prepared to make a final proposal to the Union. The
proposal included a wage offer and all the items in the
Company's November 4 proposed contract, both agreed
upon and still in dispute, and several concessions involving
a 40-hour guaranteed workweek, an additional holiday and
a 3-cent night shift differential. As for the wage offer, this
consisted of an immediate increase of 5.5 percent across-
the-board and a 10-cent hourly increase every 6 months
during the term of the contract Duke commented that the
5.5 percent was the maximum allowable under phase II
wage guidelines, as, indeed, it appears to have been, and
that the Company preferred not allocating any part of this
figure to fringe benefits. It appears that Goffney, however,
indicated that fringe benefits could be increased if the
Company and the Union applied for an exception from the
Pay Board which Duke was evidently not inclined to do.
Goffney was then given the opportunity to review the final
proposal in caucus with his employee committee. After a
while, when Goffney turned down Duke's suggestion to
recess the meeting to the following day if he needed more
time to study the final proposal, the parties resumed
negotiations . Goffney raised questions about the Respon-
dent 's alleged withdrawal of agreement on several items in
agreement. and that the guaranteed workweek should be 43 hours the first
year . 42 hours the second year . and 41 hours the third year Although at one
point in his testimony Goffney indicated that Duke offered at the
November 8 bargaining session a 5 5-percent across-the-board wage
increase permissible under the then prevailing wage-price guidelines. the
record discloses that the offer was actually made at the December 3
meeting, as discussed infra
29 Sec 20 4 (paid rest periods ). sec 32 2 (work guarantees) and the
Union's proposed 40-hour guaranteed workweek
30 The Union sought two additional holidays and improvements in other
benefits , such as health and welfare insurance and vacations, which the
Respondent was not inclined to grant . although it was willing to continue
existing benefits prescribed in the parties ' last contract
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union's proposed contract, as he had done at other
sessions, and objected that the Respondent's final offer
excluded acceptance of other provisions proposed by the
Union However, Duke refused to engage in any further
exchange of views for the reason that those matters had
already been thoroughly considered and, in his opinion,
more discussions would serve no useful purpose. Although
Duke denied that he told Goffney that the Union could
take the Company's final offer or leave it, as Goffney and
Employee Committeeman Riley testified, I find that at
least that was the plain implication of his remarks. The
meeting ended on a strained note with Goffney undertak-
ing to submit the final proposal to the employees and to
notify the Respondent by December 10 of the Union's
decision. Duke made it clear that a rejection of the
proposal would remove it from the bargaining table.
The next day, December 4, Goffney met with the
employees to present the Company's final offer for their
consideration and to report the events of the day before
and the earlier negotiations. Among other things, he
described the contents of the Respondent's final offer;
reviewed the items which were still in dispute; outlined the
items in the Union's proposals which President Rosenthal
assertedly had accepted in earlier negotiations but which
Attorney Duke rejected; explained the import of the
Company's rejection of union proposals on their job
security and conditions of employment; and informed the
employees of the Company's wage offer and refusal to
accede to the Union's proposed improvements in fringe
benefits. Goffney also attributed the inability of the parties
to conclude a contract to Duke's conduct at the bargaining
table which Goffney stated was so different from the
harmonious and cooperative attitude displayed by Rosen-
thal before Duke's appearance in the negotiations. In much
the same vein, Employee Committeeman Riley also
addressed the employees. The net effect of the foregoing
reports was to arouse the employees' resentment of the
Company's treatment of the Union's demands and its
refusal to agree to them, voicing doubt that the Company
had any intention of concluding a contract with the Union.
By a vote of 23 to 1 taken after the foregoing discussions,
the employees rejected the Company's final proposal. A
second ballot was also taken in which the employees, by
the same margin, voted to strike. Although Goffney
reminded them that the Union did not have strike sanction
from the International, the employees, nevertheless, decid-
ed to go on strike the following Monday, December 6.
Immediately after the meeting, Goffney telephoned
Rosenthal and advised him that the employees had
rejected his final proposal and intended to go on strike
December 6. Rosenthal expressed his regrets and disap-
pointment at the employees' action and his appreciation
that Goffney did his best
31 Of the five employees who remained at work, two employees, Clarence
Williams and Leroy Zink, left their jobs 2 days later but returned after an
absence of a few days It is not claimed, nor was evidence produced, that
these employees everjoined the strike
32 The foregoing findings are based on Rosenthal's credible testimony
Goffney testified that he could not clearly remember the details of the
luncheon conversation except that Rosenthal mentioned the strikers'
misconduct and his unwillingness to take the guilty strikers back to work
7. The strike; the Union's alleged unconditional
application for reinstatement on December 29
On December 6, 35 of the 40 employees in the bargaining
unit went out on strike and began picketing the Respon-
dent's premises.31 In the ensuing period before December
29, Rosenthal complained to Goffney on several occasions
about the picket line misconduct and threats to nonstriking
office employees. Goffney stated that the Union did not
condone such conduct and that he had difficulty control-
ling the men. On one occasion, when Rosenthal and
Goffney had lunch together at a motel, Goffney asked
Rosenthal about the employment situation at the Respon-
dent's establishment. Rosenthal answered that several
strikers had already returned to work while others had
been replaced. However, he stated that he had some
openings and suggested that Goffney send the men to fill
them. Goffney declined the offer unless all the strikers
returned.32 Manifestly, Rosenthal was not inclined to
discharge replacements to make room for the strikers. On
another occasion, Rosenthal also spoke to the then recently
designated head of the Union, Arthur W. Parker, its
business manager, and its secretary-treasurer, concerning
the alleged stabbing of a new employee by an unidentified
striker. Parker, too, expressed his disapproval of such
conduct and assured Rosenthal that he would look into the
matter
At the request of Goffney, he and Parker conferred with
Rosenthal at his office on December 29. It is clear that the
purpose of this meeting was to canvass the possibility of
returning the strikers to their jobs and resuming negotia-
tions. However, there is a conflict in testimony as to what
actually occurred at this meeting. According to Parker, the
following took place: At the outset, Parker indicated that
he had recently assumed leadership of the Union and that
he was interested in securing all the strikers' return to work
and in reopening negotiations in an effort to come to some
kind of an agreement. Rosenthal replied that he could not
take the strikers back because he had replaced them. In
response, Parker commented that unless the strikers were
reinstated, it would be impossible to engage in negotiations
because the picketing would be continued. Rosenthal,
nevertheless, was not persuaded and adhered to his
decision not to discharge the replacements in favor of the
strikers. At about this point in the conversation, Rosenthal
also stated that he had been aware even before the strike
vote was taken that the employees contemplated striking;
that he was fed up with them; and that he would never sign
a contract. When Parker reminded him that the law
required him to meet with the Union, Rosenthal retorted
that he would meet with the Union but that he would never
sign a contract because he had replaced all the strikers and
would not hire them back.
Rosenthal then brought up the subject of picket line
However, he testified that Rosenthal did not ask him to send men to fill the
available vacancies, although he (Goffney) requested Rosenthal to take all
the employees back and consider resuming negotiations The complaint
does not allege that the Union made an unconditional application for
reinstatement of all employees on that date nor was this conversation
mentioned in the pretrial affidavit Goffney gave a Board agent on February
17, 1972 Insofar as Goffney's testimony conflicts with Rosenthal 's, I find
that the latter's account is more reliable
FOOD SERVICE COMPANY 797
misconduct, the stabbing of an employee, and threatening
telephone'calls to office employees and their relatives.
When Parker asked for the names of the strikers accused of
these offenses, Rosenthal refused to identify them without
first speaking to his lawyer. Parker thereupon suggested
that since all the strikers did not engage in improper
conduct Rosenthal should take the innocent ones back and
submit to an impartial party or the grievance procedure the
question of the alleged offenders' right to reinstatement.
Rosenthal, however, was not persuaded to do so. In the
course of the conversation, Rosenthal also alluded to a
conversation he had had with a person who identified
himself as Ray Shafer,33 an official of the Teamsters
organization but not the local union here involved.
Rosenthal quoted that individual as saying that all the
strikers were to be reinstated or none would return to work.
Parker disavowed any of the statements Shafer purportedly
made to Rosenthal and insisted that, in conformity with
the law, he (Parker) was making an unconditional offer to
return all the strikers to work, leaving the question of the
reinstatement rights of those guilty of misconduct to future
determination . Rosenthal again stated that the strikers
were replaced and that he would never take the strikers
back or sign a contract. The conversation ended with
Parker declaring that he would take appropriate legal
measures.
Goffney's account of this meeting was of the same
general tenor However, he testified in effect, that
Rosenthal indicated that he would not reinstate under any
circumstances the strikers guilty of misconduct whom he
declined to identify as Parker requested, that he had no
openings for the other strikers because they had been
replaced; and that he had no desire to terminate the
replacements in favor of the strikers. Goffney further
testified that Rosenthal stated that he had no intention of
signing a contract with the Union because of the strike
misconduct although he would meet with that organiza-
tion.
According to Rosenthal, Parker told him that he wanted
to get all the men back to work. Rosenthal further testified,
in substance , that he answered that he only had one or two
openings which were available to any striker who wanted
his job back. Apparently, this offer was not acceptable.
Rosenthal also denied that the term "unconditional" was
used in connection with Parker's offer to have the strikers
returned to work. Concerning the resumption of negotia-
tions, Rosenthal testified that Parker asked whether the
Union would be able to obtain a contract; that he
(Rosenthal) stated that he did not know; and that in reply
to Parker's further inquiry whether he would negotiate with
the Union, he gave an affirmative answer.
Although both Parker and Goffney testified that Parker
explicitly noted that his application for reinstatement on
behalf of all the strikers was unconditional, as the law
required, Goffney on January 6, 1972, filed an unfair labor
practice charge against the Respondent, alleging only an
unlawful refusal to bargain. It was not until an amended
charge was filed on February 24, 1972, that the Union
alleged that the Respondent on or about December 29
discriminated against the strikers by refusing to reinstate
them after unconditional application . Moreover , there is
nothing in Goffney 's pretrial affidavit given to a Board
agent on February 17, 1972, referring to Parker 's alleged
December 29 unconditional offer to return the strikers to
work or Rosenthal 's asserted declaration not to bargain in
good faith. Additionally, the events that followed Decem-
ber 29 indicate that the Union was not disposed to approve
the return of any striker to work unless all were given their
jobs back.
In view of the foregoing , I find Rosenthal 's testimony
more reliable than that given by Parker and Goffney and
credit it . I therefore find that Parker 's reinstatement
application on December 29 was not unconditional but
rather was contingent upon all strikers being reinstated. I
further find that Rosenthal did not inform Parker of his
intention not to engage in good -faith bargaining with the
Union . However, I have no reason to disbelieve the
testimony that Rosenthal refused to identify the striking
employees who were allegedly involved in strike miscon-
duct. It is noted that Duke also subsequently declined to
furnish such information , despite the Union 's repeated
requests , until his March 8, 1972 , letter to Parker, later
discussed.
8. Reopening of negotiations on February 2,
1972; the Union' s unconditional application for
reinstatement of strikers
Goffney arranged for this bargaining session with
Attorney Duke and Rosenthal . This was the first meeting
Parker attended as the Union 's chief spokesman. Also
present were Goffney and two employee committeemen.
The meeting started off with renewal of the longstanding
controversy between the parties whether the Company had
withdrawn agreement on previously accepted items in the
Union's proposed contract. Duke made the observation
that it appeared that the Union had scheduled the meeting
only to build up a record for the unfair labor practice
charge the Union had filed on January 6, 1972. This drew
Parker 's response that they were there to negotiate a
contract and that the charge would resolve itself . He then
suggested that the parties proceed with that business and
that Duke bring him up to date on the negotiations . At first
Duke declined Parker 's briefing request , asserting that it
would be a waste of time since Parker could very well
secure this- information from Goffney . However, after
Goffney pointed out to Duke that he had previously
extended this courtesy to him when he first entered the
negotiations , Duke yielded and reviewed the provisions in
the Company's proposed contract. Then followed discus-
sions between Parker and Duke with respect to various
items.
In the course of the meeting, Parker brought up the
subject of his offer to return the strikers to work which he
assertedly had made to Rosenthal on December 29. Duke
33 Ray Shafer is the president of both Teamsters Local Union 657, a
sister local of the Union herein , and the Joint Council of Teamsters 58,
which is comprised of four local unions in South Texas, including the
Union Since the Respondent has failed to establish that this individual was
an agent or otherwise authorized to act on behalf of the Union , I do not rely
on any testimony relating to conversations between the Respondent and
that person in making any of my findings
798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that he was unaware of such an offer and turned to
Rosenthal and questioned him about it. Rosenthal ac-
knowledged that he had had a meeting with Parker and
Goffney but denied that Parker had made such an
unconditional offer. Parker thereupon gave his version of
the December 29 meeting. He related that he told
Rosenthal that he wanted all the strikers returned to work;
that Rosenthal replied that he would never take them back
because they had already been replaced; and that
Rosenthal referred to the strikers' misconduct and declared
that he would never sign a contract with the Union.
Rosenthal disagreed with Parker's account, but it appears
that he did not furnish his own. Probably at this point,
Duke cautioned Rosenthal not to talk to the Union
representatives without his consent.
Apparently to avoid any further problems, Parker stated
that he was now making another unconditional offer for
the reinstatement of the strikers. However, he indicated,
though not in these words, that he was not waiving the
strikers' rights under the December 29 application. He also
proposed that the Respondent should recall those strikers
whose strike conduct was not being questioned, leaving the
reinstatement rights of those charged with misconduct to
be determined in an arbitration proceeding. Duke's
response was only that all the strikers had been replaced
and that no vacancies were available at that time.34
9. The Respondent's prescribed conditions for
strikers' reemployment; the Union's response and
request for information
The next day, February 3, Duke sent Parker a letter in
which he acknowledged acceptance of the, Union's uncon-
ditional offer of the strikers' return to work. Noting that
these strikers had been permanently replaced and that
there were no job openings for them to fill, Duke set forth
the conditions for keeping the Company informed of their
continued availability for employment. Thus, the letter
stated.
. . so that the striking employees may be notified of
vacancies which may occur in the future, all of the
striking employees should report to the office of the
Company no later than February 14, 1972, and either
accomplish a new application form or examine their
old application form to assure that the information
contained therein is accurate. Upon the completion of
this task, the application will remain current for a
period of thirty (30) calendar days during which period
if vacancies occur, those employees eligible to return to
work will be notified. If at the expiration of thirty (30)
calendar days the striker has not been notified to return
to work, he will have ten (10) calendar days thereafter
during which to either notify the Company in writing
or to personally come to the office of the Company and
indicate that he desires to maintain his application in a
current status If the striking employee does timely
notify the Company that he desires that his application
remain current, his current status will then be renewed
34 The foregoing findings concerning the February 2 meeting are based
on the combined testimony of Parker, Goffney, Duke, and Rosenthal which
appears to me to reflect what probably transpired at that meeting, although
for an additional thirty (30) day period and the
procedure discussed above will then be repeated.
If you have any questions concerning the matters
discussed herein, please advise. In addition, we will
appreciate that all communication regarding this
matter be directed to the writer and not to Food
Service Company, Inc.
In response, Parker sent Duke a letter dated February 7,
1972. Without commenting on the conditions for reem-
ployment prescribed in Duke's letter, Parker reaffirmed his
rejected reinstatement offer made to Rosenthal "the week
of December 29, 1971," which he renewed at the February
2, 1972, meeting. For this reason, Parker wrote, "[w]e feel
that all employees that were hired prior to this time should
be removed from the Company's payroll and replaced by
the striking employees." Concerning the question of the
reinstatement rights of strikers accused of misconduct, the
letter continued:
Also, your client stated that there were some employees
whom he would not name, that he would not return to
work because of certain activities that took place
during the first days of the strike. I stated to him and to
you, and will re-state again , that we can not and will
not arbitrarily accept statements from you and your
client as actual facts. We are willing to discuss this
matter further with you upon receiving the names of
the employees that you are not willing to take back
because of what you termed, "poor activities on the
picket line," and if it is necessary we are willing to
agree with you to call in a third party to help decide
whether or not you have just cause to refuse to allow
the said employees to return.
On February 10, 1972, Duke sent his reply in which he
reiterated the Company's position that at no time before
February 2 did any union representative make "an
unqualified offer on behalf of the striking employees to
return such employees to their jobs at the Company," and
called Parker's attention to the procedure set forth in
Duke's February 3 letter "whereby those employees still on
strike might be returned to their jobs." With respect to
Parker's request for the names of strikers the Company was
unwilling to reinstate because of strike misconduct, the
letter indicated that the request was premature as the
Company had no vacancies "and no real purpose would be
served at this date in discussing the status of one or more
strikers."
In his answering letter of February 23 to Duke, Parker
noted the continuing nature of the Union's unconditional
reinstatement offer since it was first made during the week
of December 29. In addition, Parker stated that the Union
was requesting the strikers to send in "their individual
unconditional continuing" reinstatement applications with
their addresses and phone numbers "for the express
purpose of furnishing you the exact information you will
need to recall them if a work opportunity arises in the
future." However, Parker protested the imposition of the
conditions on the employees' reinstatement rights con-
tained in Duke's February 3 letter, stating:
not necessarily in the order here presented I an not persuaded that Duke
indicated at this meeting that he would propose the terms under which the
strikers would be considered for reinstatement
FOOD SERVICE COMPANY
We see no legitimate and substantial business justifica-
tion for your attempt to toll their legal right to
reinstatement at stated 30-day periods or for needless
trips to Company office or needless correspondence on
their part.
On February 24, 1972, the Union filed an amended unfair
labor practice charge, alleging as unlawful the imposition
of those conditions. In this letter, Parker also requested
access to company records so as to secure specified
information needed "to carry out our function as an
informed collective-bargaining representative of these
employees." 35 Moreover, the Union renewed its prior
request for the names of the employees whom the
Company was not willing to reinstate because of strike
misconduct
.. . together with a statement of what the alleged
strike misconduct consists of and the date it occurred.
Stating an immaterial conclusion to the effect that
there are not job opportunities at this time will not
answer this request. We want to investigate and
evaluate the alleged misconduct and to bargain with
you on an informed basis concerning the return to
work of these particular individuals. The real purpose
that will be served in discussing their status is their
return to eligibility for reemployment in the future, to
say nothing of the fact that they may already be
eligible, depending upon the answers to the requests
above and the accuracy of your information concern-
ing their misconduct.
On February 28, 1972, Duke wrote to Parker, again
expressing his intention not to comply with the Union's
request for the names of the strikers guilty of strike
misconduct or for information concerning the nature of
their acts "until such time as it becomes an actual
grievance and/or dispute." As for the Union's requested
access to records, Duke offered to permit one representa-
tive "to view the relevant records at the location of the
Company with the agreed upon time and date of such a
meeting" to be cleared through him.
10. The February 9 meeting
During the foregoing exchange of correspondence
another bargaining meeting was held on February 9.
Willard Manuel, the Union's president, attended this
session with Goffney and the two employee committee-
men. Manuel informed Duke and Rosenthal that Parker
was unable to be there and that he was serving as the
Union's spokesman determined to resolve the matters in
dispute. Although items were then discussed with agree-
ment being reached on one, no significant progress was
35 Specifically, the Union requested
I Access to the payroll records which show the names , numbers
and classifications of employees on the payrolls of the Employer from
December 27, 1971 through December 31, 1971 and their dates of hire
for purposes of examining and/or copying such records
2 access to all payroll records since the period December 27
through December 31, 1971 to date which show the names, numbers
and classifications of employees on the payroll and their date of hire
for purposes of examining and/or copying them
3 Without waiving our request for the foregoing, we further
request in the event you decline to produce the actual records that you
furnish us with a tabulation showing the number of employees within
799
made to bring the parties closer to a contract. Indeed, the
contrary appears to be the case since Duke withdrew
previous agreement on three provisions in the Company's
proposed contract-sections 3.4 and 3.5, 36 which limited
the Union's liability for unauthorized acts of the steward,
and section 33.9, which made wage increases retroactive to
September 18, 1971 When asked by Manuel for the
reasons, Duke and Rosenthal explained that the Company
had received reports that the shop steward, Riley, who was
also an employee committeeman, had misconducted
himself on the picket line37 and that, for this reason they
did not think that the Union should have the benefit of
sections 3.4 and 3 5 to relieve it of liability. As for the
withdrawal of agreement on section 33.9, which was
section 33.11 in the Union's proposal, Duke stated that he
understood that pay increases retroactive to September 18,
1971, were not permissible under phase II of the prevailing
wage-price controls,38 and secondly, the Company had
incurred a great expense as a result of the strike and could
not afford it.
11. The February 16 meeting ; the Union's
nonacceptance of the Company 's job offer of four
vacancies
The day before this meeting, Duke telephoned Goffney
and informed him that the Company had openings for two
drivers and two warehousemen which it wanted to fill with
striking employees. Duke also stated that he had not yet
heard from the strikers with respect to maintaining their
reinstatement applications current as required in his
February 3 letter to Parker. Goffney's reply was that he
was unfamiliar with the contents of that letter; that he
would speak to Parker about the job offer; and that he
would call Duke back. Later in the day, Goffney called
Duke and advised him that he was unable to contact
Parker or`to see the February 3 letter and suggested that
they talk about the matter further at the bargaining session
scheduled for the next day.
On February 16, Duke and Rosenthal met with Goffney
and the employee committeemen. Parker was not present.
Duke repeated his request for four men to fill the
vacancies. Goffney replied that he still had not been able
to discuss the job offer or the February 3 letter with Parker.
However, Goffney asked Duke whether he could take back
more than four, adding that the Union wanted all the
strikers returned. Goffney also stated something to the
effect that the strikers would not come back unless they
could work under a contract.
the bargaining unit by classification on the Company's payroll from
December 27, 1971 to date with the dates of hire of each such
employee We request that if this type of a breakdown of the employees
that are hired is furnished that it contain an attestation that it is taken
from the actual payroll records of the Company
36 These are the same clauses in the Company's and Union's proposals
except that the former deals with one designated steward while the latter
speaks of that office in the plural
37 Riley was nevertheless reinstated by the Respondent on April 4, 1972
31 However , Duke testified that he believed that at that time the parties
could have applied at the Pay Board for an exception to allow retroactivity
to November 14, 1971
800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The parties then proceeded to discuss various contract
proposals and reached agreement on two items.39 Toward
the close of the meeting, Ted Garcia, the Union's vice
president, appeared. In his presence, Duke again asked
Goffney to send the men to fill the four vacancies. Goffney
gave the same negative reply he had previously given and
again made the observation that the men would not return
without a contract. Garcia also interjected that either all
the men return or none would and offered all the
employees back to work. Duke refused the offer for the
stated reason that the Company did not desire to terminate
the permanent replacements.40 On this note the meeting
ended. As Goffney did not accept the Company'sjob offer,
the Company proceeded to fill the vacancies with new
employees.
12 Individual applications to return to work; the
Union's further request for information;
termination of picketing
On March 1, Duke received a telegram from Parker in
which he assured the Company that the Union's applica-
tion for reinstatement of strikers was unconditional and
continuing and requested the Company to disregard any
contrary statements. The telegram also indicated that a
detailed letter would follow On March 2, Duke sent a
reply letter. In it he stated that he interpreted the telegram
as an unconditional offer to return to work made on behalf
of the striking employees "at least as of March 1, 1972." In
order that the striking employees may be notified of future
vacancies, the letter required them to report to the
Company no later than March 14 "and either accomplish a
new application form or examine their old application
form to assure that the information contained therein is
accurate." Then followed the same detailed conditions for
maintaining their application current as those set forth in
Duke's February 3 letter quoted above.
On March 3, Parker mailed directly to the Company 16
separate unconditional applications for reinstatement
signed by each employee, which furnished the employee's
address and telephone number. Each application was in
the form of a letter to the Company, dated February 11,
1972 and began with the statement "My Union, General
Drivers Local Union No 968, has made an unconditional
offer on behalf of all striking employees on or about
February 2, 1972."
In a letter dated March 6 sent to Duke, Parker reviewed
the events involving his claimed prior unconditional
applications for reinstatement and explicitly disavowed
any alleged statements by Goffney, Garcia, or Shafer
which might indicate that the Union's offer of reinstate-
ment was conditioned on all the strikers being recalled at
one time. In addition, Parker reaffirmed his prior request
for information contained in his February 23 letter
concerning the employees accused of misconduct. He
asserted that such information was "material not only for
the purpose of bargaining on a return to employment of
39 They were art 25 (Separability and Savings) with modifications, and
sec 32 1(b) in the Company's proposed contract (Guarantees, sec 32 l(c) in
the Union's proposed contract)
40 The foregoing findings are based on the combined testimony of Duke.
Rosenthal , and Goffney
strikers, but so that we can ascertain the actual number of
job offers available at any given time." Finally, Parker
commented that Duke's February 28 letter did not answer
his February 23 request for data in paragraphs 1, 2, and 3,
or indicate whether Duke would give him access to the
requested data in order to "both examine and/or copy
such information" as Parker deemed material. Parker also
pointed out that he wanted "access for two people with an
arrangement made whereby we can either photocopy the
material we deem relevant at the place of inspection or
have them reproduced at our office or at some commercial
shop."
In Duke's responding letter of March 8, he questioned
the accuracy of Parker's account of various events.
Concerning information regarding the strikers ineligible for
employment because of misconduct, Duke wrote that the
Company has concluded that only one employee, Fred
Simon, fell into this category due to his involvement in a
knifing incident of which Parker was aware. As for the
Union's access to Company records, the letter stated:
. . we have already indicated to you that you may
examine any relevant Company record that is necessary
to the fulfilling of your bargaining obligation on
behalf of the employees at Food Service Company, Inc.
who are in the appropriate bargaining unit. The
Company has available reproduction facilities which
may be utilized at your expense. However, you will be
allowed to examine and/or copy only such documents
which the Company, and not the Union, concludes are
relevant and/or necessary to your obligation. At such
time as you desire access to such documents, please
notify me and both a date and time will be established
which is convenient to the parties.
On March 14, Parker wrote to Duke, denying personal
knowledge of Fred Simon's involvement in a knifing
incident and repeated his request "for dates, place and
other salient details of the alleged knifing."41 He also
asked for clarification of the records which would be
available to the Union for examination.
The exchange of correspondence finally came to an end
in Duke's reply to Parker's March 14 letter in which he
wrote:
... once again and in response to your request we
are offering to you the opportunity to come out to the
Company and review any document which is relevant
and/or necessary to your negotiations on behalf of the
employees in the appropriate bargaining unit. If we
have any differences of opinion as to what is or is not
relevant and/or necessary, such matter will be raised at
that time and discussed. It would serve no useful
purpose at the present time to attempt to delineate any
and all matters which may or may not be relevant to
your obligation on behalf of the employees in the
appropriate bargaining unit.
The record does not indicate whether the Union availed
itself of the opportunity to examine company records. On
or about March 20, the Union removed the picket line and
4i Parker also reaffirmed the authority of any business agent of the
Union to conduct negotiations and enter into binding agreements
Apparently. Duke had previously raised this question in a conversation with
Parker
FOOD SERVICE COMPANY
the strike ended after the Company notified it that it
needed two employees who thereupon returned to work.
13. The March 7 meeting
This was a short meeting attended by Goffney and the
employee committeemen. Parker was not present. At the
beginning of the meeting, Duke announced that he had
received a letter from Parker to the effect that Parker was
the only spokesman for the Union. For this reason, Duke
continued, the Company was in the peculiar position of
now knowing with whom to deal and was obliged to
question Goffney's authority. Goffney disagreed with
Duke's interpretation of Parker's letter, insisting that he
(Goffney) had the authority to negotiate. Duke, neverthe-
less, stated that it would be a waste of time to negotiate
before this matter was cleared up. At one point, Goffney
informed Duke that Norman Goldstein, an organizer for
the Southern Conference of Teamsters, was going to
participate in the negotiations but that he was engaged in
another meeting in the building and would appear shortly.
After waiting a little while without Goldstein showing up,
Duke suggested that they adjourn since Goldstein's
presence would not solve the basic problem of bargaining
authority until Parker clanfied the situation The meeting
thereupon closed.
As indicated above, Parker in his March 14 letter to
Duke affirmed Goffney's authority. However, the March 7
meeting turned out to be the last one Goffney attended.
This was also the last one in which Rosenthal participated.
14. The March 14 meeting
Parker attended this meeting with Norman Goldstein, an
organizer for the Teamsters Southern Conference, to assist
in the negotiations as spokesman for the Union.42 Duke
explained that Rosenthal could not be present because of
another engagement and suggested that they proceed with
the negotiations without him. After advising that Goffney
was no longer involved in the negotiations, Goldstein
declared that his objective was to get the parties together
on a contract. Duke assured him that he was similarly
interested in concluding an agreement. Thereupon, the
parties reviewed the disputed items in the Company's
proposed contract, and succeeded in coming to agreement
on some 12 provisions.43 In addition, the Union withdrew
several of its own demands, including the successors and
subcontracting clauses. It appears that most of the
concessions were made by the Union. In the course of the
negotiations, Goldstein inquired about the existing insur-
ance program. Duke answered that he really did not know
anything about it but assumed that it was the same
program the Company had always had. Indicating that he
had information to the contrary, Goldstein asked Duke to
check into the matter and, if it was a different program, to
bring to the next meeting the insurance booklet and a
12 The employee committee was also present
as These were sees 2 5, 5 1, 10 1, 19, 21 1, 32 1(a), 33 2, 33 10, 34 2, 34 3,
and 40 Both parties agreed to withdraw 33 11
44 There is a conflict in testimony whether at this point Goldstein had
already accepted the Company's terms and Duke voluntarily left to
telephone his client, as Parker and Goldstein testified, or whether Duke, at
the insistence of Goldstein, left to call his client to confirm his authority to
801
statement of the rates paid under the policy. Goldstein also
requested Duke to secure for him information concerning
the number of employees in the Company's employ; those
still on stnke; those who were returning strikers; and the
number of replacements. Near the end of the meeting,
Goldstein reminded Duke that he was anxious for a
contract and urged him to discuss the disputed issues with
the Company in the hope that a contract could be
consummated.
15. The March 20 meeting ; the Respondent's
demand for proof of the Union's majonty status,
as a condition of agreement
This was the last bargaining session and was attended by
Duke, Goldstein, Parker, and the employee committee.
After explaining Rosenthal's inability to be present for
business reasons, Duke reported that the Company would
not change its position on the items on which the parties
were still apart. It appears that there were only four or five
items which were really important since , according to
Duke, the other open provisions would resolve themselves
if the critical ones were disposed of. At about this time,
Duke furnished the Union with the previously requested
insurance booklet which described the insurance program
the Company admittedly had unilaterally instituted about
the middle of December 1971, shortly after the stnke
began. He also supplied information concerning company
and employee contributions for such coverage. However,
Duke stated that he had forgotten to secure the employee
information which the Union had also requested.
The parties then engaged in further discussions of the
disputed items which proved to be unproductive. This lack
of progress evoked Goldstein's charge that the Company
was not bargaining in good faith and questioned whether
Duke even had the authority to sign a contract in the event
the Union accepted the Company's terms. Duke assured
Goldstein that he possessed the authonty to enter into and
sign a binding contract, and would do so, if the Union
agreed to the Company's proposals still in dispute.
Duke thereupon asked for a recess to call Rosenthal and
inform him about this development44 and at the same time
to secure the employee information for the Union. In this
telephone conversation, Rosenthal approved the deal with
an inconsequential modification of the Company's wage
proposal and supplied Duke with the requested employee
data. According to Duke, when he received the employee
figures and was advised by Rosenthal that at the time the
stnke began there were about 12 to 15 employees who had
not been on checkoff, he concluded, and so told Rosenthal,
that there was a serious question whether the Company
would be in violation of the Act if it executed an agreement
with the Union unless the Union demonstrated that it still
represented a majonty of the employees. It was therefore
sign a contract if the Union agreed to the Company' s terms , as Duke
testified This conflict need not be resolved as it is not significant in
determining the critical issue whether the Respondent had a valid basis for
questioning the Union's majority status and requiring such proof before
proceeding with the negotiations No contention is made that a final
agreement had actually been made
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decided to ask the Union for such proof as a condition of
consummating a contract.
Duke thereupon returned to the meeting and furnished
the Union representatives with the employee data he had
received from Rosenthal . He informed them that there
were 41 unit employees on the Company's payroll before
the strike began ; 39 went out on strike; 11 returned to
work within 2 weeks; and 26 replacements were hired
beginning 2 days after the inception of the strike . He also
apprised the Umon representatives of the wage modifica-
tion and the new condition that the Union prove its
majority status before the Company would sign an
agreement . The wage modification was acceptable to the
Union but, as expected, the condition of proof of majority
did not meet with a favorable response from the Union
particularly since the Union's representative status had
never before been challenged. To justify raising the
question of the Union's majority status, Duke alluded to
the employee figures mentioned above which he claimed
had just come to his attention and noted that it would be a
violation of the Act to conclude an agreement with a
minority union . Indicating that the Union was not certain
what action to take, Goldstein requested permission to post
a notice of an employee meeting should the Union decide
to submit the Company's proposition to the employees.
Duke granted permission and stated that the Union had
until March 27 to act on the Company's proposition and
that, if he did not hear from the Union by that time, he
would consider the offer rejected. On that note the meeting
ended
Thereafter, on March 24, complaint issued and the
Union neither submitted the Company's offer to the
employees nor notified the Company of its rejection.
16. The Respondent 's unilateral change of its
employees ' insurance program
In accordance with the terms of the parties' last contract,
the Respondent provided its employees and dependents
with group health insurance by contributing a fixed sum to
the Teamsters health and welfare fund It is undisputed
that about December 15, 1971, shortly after the strike
began, the Respondent discontinued this coverage and
extended to unit employees the insurance program under-
written by The Great West Life Assurance Company,
which was previously available only to nonunit employees.
This change was admittedly made without notifying or
discussing it with the Union. Unlike coverage under the
Teamsters health and welfare fund, which was without cost
to the employees, the Great West coverage entails a
contribution by the employees However, it is virtually
impossible to evaluate the relative benefits under each
plan, especially in view of the employee cost factor.
B Analysis-Concluding Findings
1. Refusal to bargain
The General Counsel contends that during the prestrike
period from October 28 to December 3, and thereafter with
the resumption of negotiations on February 2, 1972, the
Respondent , in violation of Section 8(a)(5) and ( 1) of the
Act, failed to bargain in good faith in a genuine effort to
reach agreement with the Union . The Respondent, of
course, denies that it breached its statutory obligation. For
the reasons set forth below , I find that , while the record
does not convincingly establish overall bad -faith bargain-
ing on the Respondent 's part , it does establish that the
Respondent violated its bargaining obligation on March
20, 1972, when it conditioned further negotiations on the
Union's proof of majority status. The prestrike and
subsequent periods will be separately considered below.
Section 8(a)(5) of the Act requires an employer to
recognize and bargain collectively with the statutory
representative of his employees with respect to their terms
and conditions of employment. Section 8 (d) defines the
bargaining obligation as requiring the parties , inter aha, "to
meet at reasonable times and confer in good faith
[regarding such matters ] . . . or the negotiation of an
agreement . . . and the execution of a written contract
incorporating any agreement reached if requested by either
party.. . ." Although this obligation does not "compel
either party to agree to a proposal or require the making of
a concession ," it does contemplate , as the Board and the
courts have uniformly held, a willingness to enter the
discussions "with an open mind and purpose to reach an
agreement consistent with the respective rights of the
parties."45 Simply entering "upon a sterile discussion of
union management differences,"46 is not sufficient . Essen-
tially then, the "ultimate issue whether the Company
conducted its bargaining negotiations in good faith
involves a finding of motive or state of mind which can
only be inferred from circumstantial evidence."47
Judged by these principles , I find insufficient evidence in
the record that the Respondent bargained in bad faith
during the prestrike October 28-December 3 period. As
discussed above , negotiations for a new contract to
supersede the one that was due to expire on September 18,
1971, were instituted on August 31 against a background of
a 15-year history of harmonious labor relations between
the Respondent and the Union . Indeed , there is no
question that the same cooperative spirit continued during
the first five bargaining sessions through September 28
when the Respondent's president , Rosenthal , served as its
spokesman. Although these negotiations were concededly
conducted in good faith by Rosenthal and some progress
was made in achieving agreement on a substantial number
of the Union 's proposals , there were serious differences
with respect to a larger number of the Union's proposals
which evidently prompted Rosenthal to seek legal assist-
ance. From an examination of the Union's proposed
contract, by far more comprehensive than the parties' last
45 Mature Transport Company v N L R B, 198 F 2d 735. 739 (C A 5), see 46 N L R B v American National Insurance Co, 343 U S 395, 402
also N L R B v Johnson Manufacturing Company of Lubbock, 458 F 2d 453. 47 N L R B v Reed & Prince Manufacturing Company, 205 F 2d 131,
decided April 6, 1972 (C A 5), N L R B v Darlington Veneer Company, 139-140 (C A I), cert denied 346 U S 887
Inc, 236 F 2d 85, 88-89 (C A 4)
FOOD SERVICE COMPANY 803
contract, and containing new and technical clauses dealing
with such subjects as union security, agency shop,
employee observance of picket lmes48 and struck goods,
successor-employer's responsibility, and subcontracting, it
is understandable why Rosenthal retained counsel to assist
the Respondent in the negotiations. Although the General
Counsel does not contend that Attorney Duke was brought
into the negotiations with the calculated purpose of
undermining them, he does contend that, when Duke
assumed Rosenthal's function as the Respondent's chief
spokesman, an entirely different approach to the bargain-
ing table appeared-one which had as its objective the
avoidance of agreement rather than achieving it. In
support of this contention, the General Counsel relies
principally upon Duke's alleged withdrawal of agreement
on several items previously accepted by Rosenthal.
Without repeating the details, the Respondent admits
that, on advice of counsel, it withdrew agreement on the
successors and subcontracting provisions. However, Duke
explained at the bargaining table that it was the Respon-
dent's belief that the successors clause could hinder the
Company's sale of its business should it decide to take that
action, and that the subcontracting provision (art. 26)
could restrict the Company's existing practice of utilizing
casual help in its operations. According to Duke, he would
have furnished this advice at the inception of negotiations
had he then been retained. It is well settled that the
"withdrawal by the employer of contract proposals,
tentatively agreed to by both the employer and the union
in earlier bargaining sessions, without good cause, is
evidence of a lack of good faith bargaining by the
employer in violation of Section 8(a)(5) of the Act.. .." 49
As the Respondent's explanation for retracting prior
consent to the two provisions in question appears to me to
be plausible, I find that sufficient good cause was shown
for the Respondent's action and that therefore an inference
of bad-faith bargaining is not warranted.
With respect to section 12.2 (reprimands) of the Union's
proposed contract, which the Respondent concedes was
also previously agreed to by Rosenthal, I have heretofore
credited the Respondent's testimony that it inadvertently
omitted that provision from its proposed contract without
any intention of withdrawing prior agreement. In these
circumstances, I am unable to find this omission as
evidence of bad-faith bargaining. Finally, there are other
provisions discussed above, upon which the General
Counsel also relies as agreed-upon items subsequently
rejected by Duke. However, I have found that the evidence
is not so clear to establish that Rosenthal had unequivocal-
ly committed himself to their acceptance or that the issues
created by these clauses were really resolved in the
discussions between Rosenthal and Union Business Repre-
sentative Goffney. Accordingly, the Respondent's refusal
to acknowledge agreement on those items cannot furnish a
reliable basis for a finding of bad-faith bargaining. In sum,
I find unsubstantiated the General Counsel's contention
that the Respondent, in disregard of its statutory duty,
frustrated bargaining by withdrawing prior agreements.50
The General, Counsel further urges that Duke's submis-
sion of the Respondent's final proposal at the December 3
meeting on a take-it-or-leave-it basis actually betrayed a
determination to avoid sincere bargaining to agreement.
This offer, which included, among other things, items in
the Company's proposed contract, both agreed upon and
still in dispute, a wage proposal and other economic
benefits, was presented after nine bargaining sessions in
which there was a thorough exchange of views with neither
party manifesting a discernible disposition to recede from
its position or to make meaningful concessions. From my
appraisal of the evidence pertaining to these negotiations, I
am not persuaded that the Respondent's conduct failed to
comport with the standards of good-faith bargaining or
that the Respondent utilized the final proposal as a tactic
to avoid agreement. Apart from the fact that the offer did
not preclude resumption of negotiations after its rejection
by the employees, as subsequent events demonstrated, the
Supreme Court has observed that "the Act does not
encourage a party to engage in fruitless marathon
discussions at the expense of frank statement and support
of his position."51 At most, I find that the Respondent's
conduct amounted to no more than hard bargaining which
the Act does not condemn. The fact that the parties were
unable to reach agreement before the Union called the
strike could no more be attributed to the Respondent's
inflexibility than to the Union's. Accordingly, I find that
the evidence does not establish that the Respondent
bargained in bad faith during the prestrike period of
October 28 to December 3.52
Turning to the negotiations which resumed on February
2, I find that the record, too, will not support a finding that
the Respondent failed to fulfill its bargaining obligation
before the March 20 meeting. As shown above, the
Respondent willingly agreed to a resumption of negotia-
tions on February 2, while the strike and picketing were
still in progress. It appears that in the ensuing discussions
before March 20 both parties made a genuine effort to
reach agreement and succeeded in disposing of all but four
or five disputed items regarded as important and a few
minor ones.which would fall if the others were settled. It is
true that at the February 9 session the Respondent
withdrew agreement on three provisions (secs. 3.4, 3.5, and
33.9) which Duke himself had approved before the strike.
However, as found above, the Respondent furnished a
reasonably justifiable explanation for this action. Thus,
Duke told the union representatives that the Company had
received reports that Shop Steward Riley had misconduct-
ed himself on the picket line 53 and that the Company did
not believe that the Union should have the benefit of
48 The expiring contract also had a picket line clause which , however,
was simply worded
49 American Seating Company of Mississippi v N L R B, 424 F 2d 106,
108 (C A 5), enfg 176 NLRB 850, N L R B v Thompson , Inc, 449 F 2d
1333, 1335 (C A 5), enfg 184 NLRB No 14
50 It is noted that the Union on November 4 withdrew step 4C in art X
(Disputes or Grievances ) from its proposed contract , which Rosenthal had
previously accepted , for the asserted reason that it was in conflict with
another provision in its contract
51 N L R B v American National Insurance Co, 343 US 395, 404
52 For this reason, as I later find, the strike which was called on
December 6, was an economic one and not in protest to the Respondent's
unfair labor practices, as the General Counsel argues
53 The fact that Riley was ultimately reinstated to his job on April 4,
1972, does not necessarily refute the Respondent's reliance on the report
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sections 3.4 and 3 5 which limited the Union's liability for
the unauthorized acts of the steward. As for section 33.9,
which provided for the payment of wage increases
retroactive to September 18, 1971, Duke explained that the
clause was in violation of phase II wage-price guidelines,
and secondly , that the strike had caused the Company to
incur a great expense. The plausible nature of the reasons
for the withdrawal of agreement on this item, in the
context of the negotiations that took place before March
20, I find militates against an inference of bad-faith
bargaining.
Notwithstanding the foregoing , I find that the Respon-
dent, nevertheless , unlawfully refused to proceed with the
negotiations at the March 20 session unless the Union
proved its majority status. As discussed above, this was the
first time during the entire course of negotiations that the
Respondent ever raised the question of representation and
it did so only after the Union had indicated its willingness
to accept all of the Respondent's terms and to consummate
a contract with Duke, if he possessed the authority, as he
claimed he did . To justify the imposition of proof of
majority as a condition of concluding a contract, Duke
testified that he first became aware that the Union might
no longer represent a majority of the employees when
during a recess in the negotiations he telephoned Rosen-
thal and secured the employee information requested by
the Union . However , I find on the basis of the evidence in
the record that the Respondent did not have a valid ground
for doubting the majority status of the Union , which for
some 15 years had represented the Respondent 's employ-
ees pursuant to successive contracts . The documentary and
oral evidence supplied by the Respondent discloses the
following pertinent information out of 40 employees in the
Respondent 's employ on December 3, 35 went out on
strike on December 6; as of March 20, 1972, there were 23
replacements54 and 9 strikers who had returned to work; 55
as of the same date , there were 15 unrecalled strikers who
had submitted written applications for reinstatement on
March 3, 1972; 56 and there was one former striker (George
Blackshear) who made an oral application and was
reinstated after March 20.
In determining majority status in an 8(a)(5) case, the
Board has held that permanently replaced economic
strikers were entitled to be included in the bargaining
unit .57 It is thus clear from the figures set forth above, that
on March 20, the Union enjoyed the presumptive support
of at least 25 former striking employees in a unit of about
48 employees . The fact that a number of the strikers had
returned to work before the strike ended does not
necessarily mean that they no longer desired representation
by the Union . It is not uncommon for strikers to abandon
a strike for economic and other reasons and yet still favor
union representation . Moreover, the record is devoid of
54 An exhibit furnished by the Respondent shows that 38 replacements
were hired between December 7 and February 21, 1972 , and none
thereafter Of this number , 15 were terminated before March 20, of the
remaining 23 replacements 3 were listed as disabled as of that date, and 2
other replacements were terminated on March 31
55 Five more former strikers returned to work by the week ending April
8, 1972
56 There was another former striker (James Jarmon), whose application
any evidence demonstrating that the Union had lost
support of the unrecalled strikers Nor, for that matter, was
any evidence adduced that even the permanent replace-
ments themselves were not interested in being represented
by the Union.
In sum, I find that the Respondent did not have a valid
basis for doubting the Union 's majority on March 20, 1972,
and that therefore , its refusal to continue with the
negotiations was in violation of Section 8(a)(5) and (1) of
the Act.58
2. Unilateral change in the employee
insurance program
It is undisputed that shortly after the strike began the
Respondent , without notifying or consulting the Union,
changed its employee insurance program by including unit
employees in a group insurance policy with a private
carrier, which previously only covered nonunit employees.
In so doing, the Respondent discontinued the employees'
existing coverage under the Teamsters health and welfare
fund program . Under well -established law, such unilateral
action, involving as it did a change in benefits and cost to
employees , violated Section 8(a)(5) and ( 1) of the Act.59
3. Unilateral imposition of notification and
registration conditions for reinstatement of strikers
Following the Union's unconditional application for the
return of the strikers to work , the Respondent informed the
Union by letter dated February 3, 1972, that, in view of the
absence of vacancies , the strikers would have to comply
with certain procedures in order to keep the Respondent
informed of their availability for recall as jobs opened up.
This involved maintaining the information on their
employment applications current and renewing their
applications for reinstatement every 30 days. I find,
contrary to the Respondent's contention , that these
conditions were not presented as a proposal to the Union
but were in fact unilaterally imposed as a condition of
reemployment , without affording the Union an opportuni-
ty to bargain over those requirements . There is nothing in
its letter to indicate that the requirements were bargaina-
ble. Indeed , although the Union protested the Respon-
dent's action and filed on February 24 an amended unfair
labor practice charge in the instant proceeding , alleging its
unlawfulness, the Respondent did not offer to discuss the
matter with the Union.
I find that the imposition of the notification and
registration requirements is of sufficient concern to the
former strikers as employees and their prospects of
reemployment as to constitute a mandatory subject for
collective bargaining with their representative , whether or
not the requirements were reasonable .60 I therefore find
was sent in by the Union along with these 15, who was recalled on March
14, 1972
57 C H Guenther & Son, Inc, d/b/a Pioneer Flour Mills, 174 NLRB 1202,
enfd 427 F 2d 983 (C A 5), cert denied 400 U S 942
58 Ibid
59 N L R B v Katz , 369 U S 736, 743-744
60 Cf N L R B v American Machinery Corporation, 424 F 2d 1321, 1328
(C A 5), enfg 174 NLRB 130 , where the employer raised the problem of
FOOD SERVICE COMPANY
that the Respondent's unilateral action also violated
Section 8(a)(5) and (1) of the Act.
4. Failure to furnish information and access to
company records
During the strike, the Respondent complained to the
Union about the misconduct of several strikers, indicating
that they might be disqualified for reinstatement. Although
the Union repeatedly requested the names of the culprits
and particulars concerning their acts, the Respondent
declined to comply with these requests for the reason that
the occasion for considering these individuals for reem-
ployment had not yet arrived. However, the Respondent
did notify the Union in its March 8 letter that only one
striker, Fred Simon, would be ineligible to return to work
when vacancies arose because of his involvement in a
knifing incident. It appears that in December Rosenthal
had complained to the Union's business manager, Parker,
concerning this incident, but did not identify the offending
striker.
It appears to me that the bargaining representative of
striking employees is entitled to information relating to the
names of those claimed to be guilty of strike misconduct
and the general nature of their acts. Obviously, such
information is needed by the bargaining agent to enable it
to make an appropriate investigation of the facts so that it
may be in a position to decide what measures should be
taken to protect the rights of these strikers to reemploy-
ment, if the facts so warranted. Moreover, such informa-
tion , to be really useful, should be furnished with
reasonable dispatch In the present case, I find that the
Respondent's delay in identifying the individual alleged to
be involved in the stabbing incident is inexcusable
However, inasmuch as the Respondent had informed the
Union of the incident shortly after it had occurred and the
Union had the opportunity to check into the matter, as
Parker stated he would do, it is my opinion that it would be
hypertechnical to base an 8(a)(5) finding upon the Union's
request for the misconduct information Accordingly,
dismissal of this allegation of the complaint is recommend-
ed.
The complaint also alleges that the Respondent default-
ed in its bargaining obligation when, in response to the
Union's request for access to payroll records, the Respon-
dent advised the Union that it would be permitted to
inspect only such payroll records the Respondent deemed
relevant In its letter dated March 15, the Respondent,
made company records available on the following terms:
.. we are offering to you the opportunity to come
out to the Company and review any document which is
relevant and/or necessary to your negotiations on
behalf of the employees in the appropriate bargaining
unit. If we have any differences of opinion as to what is
or is not relevant and/or necessary, such matter will be
seeking out strikers months or years after their application for reinstatement
and the court observed that "a concerned employer will find means to cope
with this burden" possibly by establishing a reasonable time during which
[the strikers'] applications will be considered current and at the
expiration of which they must take affirmative action to maintain that
current status "
61 In its brief, the Respondent, citing the principle of The American News
Company, Inc, 55 NLRB 1302, contends that the strike was unlawful
805
raised at that time and discussed. It would serve no
useful purpose at the present time to attempt to
delineate any and all matters which may or may not be
relevant to your obligation on behalf of the employees
in the appropriate bargaining unit.
I find that the Respondent's response was a reasonable
and adequate compliance with the Union's request. It
seems to be perfectly clear that where, as here, the request
for access to company records is made in general terms, the
company, of necessity, must make the initial selection of
the books and records to be produced for inspection. This
is precisely what the Respondent stated in its letter in
which it further provided for the parties' consideration of
the Union's right to examine other documents should the
question arise. Undeniably, the Union is not entitled to
rummage through the Company's records to determine for
itself which ones should be made available to it for
inspection. Moreover, it is significant that the Union never
appeared at the Respondent's facility to see what records
and documents the Respondent was prepared to permit the
Union to examine.
Under the circumstances, I find insufficient evidence
that the Respondent breached its statutory obligation.
Accordingly, I recommend dismissal of the applicable
allegations of the complaint.
5. Denial of reinstatement
Having found that the Respondent did not fail to
bargain in good faith prior to the December 6 strike, it
follows that the strike was an economic one intended to
force the Respondent to yield its bargaining stance and
make concessions to reach agreement.61 Moreover, I find
that the Respondent did not subsequently commit any
unfair labor practices which converted the strike into an
unfair labor practice strike. As participants in an economic
strike, therefore, the striking employees were entitled to
reinstatement to their former jobs if available. The
Respondent was not obligated to terminate the permanent
replacements to create vacancies for the strikers wishing to
return to work,62 as the Union repeatedly requested the
Respondent to do. Of course, the strikers remained
employees and, as such, were entitled to full reinstatement
upon the departure of replacements unless the strikers had
acquired regular and substantial equivalent employment
elsewhere.63
Rosenthal credibly testified, without contradiction, that
on February 2, 1972, when the Union made an uncondi-
tional application for the return of the strikers to work,
there were no vacancies available. The record also shows
that the Respondent on February 15 and 16 requested the
Union to send four strikers to fill vacancies that arose, but
the Union refused to honor the request unless all the
strikers were returned to work. It is also clear that no
striking employee who desired to return to work was
because it was called to compel the Respondent to agree to the Union's
proposed wage increase which exceeded the amount permissible under the
then prevailing wage-price guidelines However, not only was this defense
never raised before, but the record is absolutely devoid of any evidence that
such was an objective of the strike Accordingly, I reject this contention
62 N L R B v Mackay Radio & Telegraph Co, 304 U S 333, 345-346
63 The Laidlaw Corporation, 171 NLRB 1366, enfd 414 F 2d 99 (C A 7),
cert denied 397 U S 920
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denied reinstatement if a job were available. Indeed, 14
strikers had already been recalled as of the time of the
hearing and no contention is made that any returning
striker was not accorded full and complete reinstatement.
In view of the foregoing, I find that the General Counsel
has failed to establish that the Respondent discriminated
against any striking employee. Accordingly, it is recom-
mended that the pertinent allegations of the complaint be
dismissed.
THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease
and desist from engaging in the unfair labor practices
found and like and related conduct and take certain
affirmative action designed to effectuate the policies of the
Act.
To remedy the Respondent's unlawful refusal to fulfill its
statutory obligation, I recommend that it be directed to
recognize the Union as the exclusive representative of the
Company's employees in a unit found appropriate herein,
and, on request, to resume negotiations with that organiza-
tion concerning rates of pay, wages, hours of employment,
and other conditions of employees. An appropriate notice
for posting at the Respondent's facility is also recommend-
ed.
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 Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2 The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. All employees employed by the Respondent at its
Houston, Texas, facility, but excluding office clerical
employees, salesmen, guards, watchmen, and supervisors
as defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
above-described unit for the purposes of collective bar-
gaining within the meaning of Section 9(a) of the Act.
5. By refusing on March 20, 1972, to proceed with the
negotiations in an effort to consummate a contract unless
the Union proved its majority status, the Respondent
refused to recognize and bargain collectively with the
Union as the exclusive representative of the employees in
the above-described unit in violation of Section 8(a)(5) and
(1) of the Act.
6. By unilaterally changing the employees' insurance
program and imposing notification and registration re-
quirements for the reinstatement of striking employees who
64 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
unconditionally applied to return to work, without first
affording the Union an opportunity to bargain over these
matters, the Respondent violated Section 8(a)(5) and (1) of
the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
8. The Respondent did not discriminate against em-
ployees in violation of Section 8(a)(3) and (1) of the Act or
engage in acts violative of Section 8(a)(5) or (1) of the Act
except as found in this Decision.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommend-
ed: 64
ORDER
The Respondent, Food Service Company, Houston,
Texas, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively with
General Drivers, Warehousemen & Helpers Local Union
No. 968, affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen & Helpers of
America, as the exclusive representative of the employees
in the unit described below, concerning rates of pay, wages,
hours of employment, and other conditions of employ-
ment:
All employees employed by the Respondent at its
Houston, Texas, facility, but excluding office clerical
employees, salesmen, guards, watchmen, and supervi-
sors as defined in the Act.
(b) Unilaterally changing the employees' insurance
program or other terms and conditions of employment or
imposing notification and registration requirements for the
reinstatement of striking employees who unconditionally
apply to return to work, without first affording the above-
named Union an opportunity to bargain over these
matters.
(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
the above-named Union, as the exclusive representative of
all the employees in the unit described above concerning
rates of pay, wages, hours of employment, and other
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Post at its facility in Houston, Texas, the attached
noticed marked "Appendix."65 Copies of said notice, on
forms provided by the Regional Director for Region 23,
after being duly signed by the Respondent's authorized
representative, shall be posted by the Respondent immedi-
65 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National 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 "
FOOD SERVICE COMPANY
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter in conspicuous 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.
(c) Notify the Regional Director for Region 23, in
writing, within 20 days from the receipt of this Decision,
what steps the Respondent has taken to comply herewith.66
IT IS FURTHER ORDERED that the allegations of the
amended complaint that the Respondent discriminatorily
denied employees reinstatement in violation of Section
8(a)(3) and (1) of the Act and refused to bargain
collectively with the Union in other respects than those
found in this Decision in violation of Section 8(a)(5) and
(1) of the Act be, and they hereby are, dismissed.
66 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read
"Notify the Regional Director for Region 23, in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith "
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to recognize and bargain
collectively in good faith with General Drivers,
Warehousemen & Helpers Local Union No. 968,
affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, as
the exclusive representative of the employees in the unit
described below, concerning rates of pay, wages, hours
of employment, or other conditions of employment.
The bargaining unit is:
807
All employees employed at our Houston, Texas,
facility, but excluding office clerical employees, sales-
men, guards, watchmen and supervisors as defined in
the Act.
WE WILL NOT unilaterally change our employees'
insurance program or other terms and conditions of
employment or impose notification and registration
requirements for the reinstatement of striking employ-
ees who unconditionally apply to return to work,
.without first affording the above-named Union an
opportunity to bargain over these matters.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights guaranteed in Section 7 of the Act.
WE WILL bargain collectively, on request, with the
above-named Union, as the exclusive representative of
all the employees in the unit described above 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.
Dated By
FOOD SERVICE COMPANY
(Employer)
(Representative ) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concern-
ing this notice or compliance with its provisions may be
directed to the Board's Office, Dallas-Brazos Building,
1125 Brazos Street, Houston, Texas 77002, Telephone
713-226-4296.