Fruehauf Trailer Co.

National Labor Relations Board - Board Decisions

Dec 16, 1966

162 N.L.R.B. 195 (N.L.R.B. 1966)

FRUEHAUF TRAILER CO. 195
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.
If members have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 16 Court
Street, Fourth Floor, Brooklyn, New York 11201, Telephone 596-5386.
Fruehauf Trailer Company and Local 509, International Union of
United Automobile , Aerospace and Agricultural Implement
Workers of America , AFL-CIO, Charging Party 1 and Interna-
tional Union , Allied Industrial Workers of America , AFL-CIO;
and Local No. 976, affiliated with International Union, Allied
Industrial Workers of America, AFL-CIO, Parties in Interest.'
Case 21-CA-5571. December 16, 1966
DECISION AND ORDER
On February 9, 1966, Trial Examiner Louis S. Penfield issued his
Decision in this proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor practices, and recom-
mending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
He also found that Respondent had not engaged in certain other
unfair labor practices alleged in the complaint, as amended, and
recommended dismissal of those allegations. Thereafter, exceptions
and supporting briefs were filed by the Respondent, Charging Party,
Parties in Interest, and General Counsel, and answering briefs were
filed by the Respondent and Charging Party.
The National Labor Relations Board has reviewed the rulings of
the Trial Examiner made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board has
considered the Trial Examiner's Decision, the exceptions and briefs,
and the entire record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner with the
following modification.
We agree with the Trial Examiner that the Respondent (1) did
not unlawfully refuse to bargain with UAW; 3 (2) did not unlaw-
fully assist AIW in connection with its Bandini acquisition; and (3)
did not unlawfully discriminate against individual employees by
failing or refusing to employ them. The Trial Examiner found that
Respondent: (1) violated Section 8(a) (2) by extending AIW's
Slauson contract to cover Respondent's employees at Fullerton; (2)
violated Section 8 (a) (3) by applying the union-security clause of
' Herein UAW.
2 Herein AIW.
3 However, unlike the Trial Examiner ( see footnote 14 of his Decision ), we do not con-
sider the timing of the UAW's filing of its initial charge in this case significant.
162 NLRB No. 3.
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
AIW's contract to the employees at Fullerton ; and (3 ) violated
Section 8 (a) (1) by the foregoing conduct. We agree, not only for the
reasons stated by the Trial Examiner, but also for the following
reasons.
Preliminary work on the new Larc program at Fullerton began
no later than April 1964,4 and Lare production began in May. The
record shows that all of the 66 Slauson employees who ultimately
obtained work at Fullerton were in layoff status before being "hired
or recalled" at Fullerton , and that all had been laid off on or before
March 17.5 Although it appears that about five employees , presum-
ably from Slauson, were working at Fullerton in February in prepa-
ration for the opening of the plant, Respondent did not "assign"
anyone to its Fullerton payroll until March. By the end of March
there were only 10 employees at Fullerton , 4 of whom were "new
hires." By the end of April, Respondent 's Fullerton complement was
made up of 17 former employees and 32 new hires . At the end of
May, there were 34 former Slauson employees and 55 new hires
working at Fullerton.
On February 13, Respondent had extended AIW's Slauson con-
tract to the Fullerton operation . At that time, as shown above, there
were no more than 5 Slauson employees working at Fullerton;
Respondent expected the Larc program to require at least 100
employees.
We agree with the Trial Examiner that Respondent obtained its
Fullerton plant primarily for the production of the Lare contract,
and that Fullerton was a consolidation of all Respondent 's military
products work in Southern California, rather than solely a reloca-
tion of Respondent's Slauson plant. In the circumstances of this
case, as set forth by the Trial Examiner, and especially because
Respondent had continued to offer to negotiate with UAW with
regard to "any new operation in Southern California," we agree that
UAW retained a colorable claim to representation of Respondent's
employees at the new Fullerton operation. However, we would in any
event find that, on the basis of the additional facts set forth above,
it was unlawful for Respondent to have extended AIW's Slauson
contract to cover the Fullerton operation at a time when the work
force was not representative of the number of employees Respondent
expected to, and did employ at Fullerton shortly thereafter.6
4 All dates herein refer to 1964
s One employee was off 9 days , 10 were off 2-3 weeks, and the remainder were off for
periods ranging from 5 weeks to 7 months.
0 See, e g, A. 0. Smith Corporation, 122 NLRB 321.
In adopting the Trial Examiner ' s findings of violations of Section 8(a) (1), (2 ), and (3)
in the extension of the AIW Slauson collective -bargaining contract to the new operation at
Fullerton , Chairman McCulloch relies only on the alternative basis stated above, namely,
that a representative complement of employees was not employed at Fullerton when the
contract was made applicable to that facility.
FRUEHAUF TRAILER CO. 197
[The Board adopted the Trial Examiner's Recommended Order
and dismissed the complaint insofar as it alleged violations not
found herein.]
Member Brown took no part in the above Decision and Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with all parties represented, was heard before Trial Examiner
Louis S. Penfield in Downey, California, on August 10, 11, 17, and 18, 1965, upon
a complaint of the General Counsel and answer of Fruehauf Trailer Company,
herein called Respondent.' The issues litigated were whether Respondent violated
Section 8(a)(1), (2), (3), and (5) of the National Labor Relations Act, as
amended, herein called the Act.
Prior to the taking of testimony, Respondent lodged with me motions to dismiss
certain allegations of the complaint. Respondent was joined by the Parties in Inter-
est in some aspects of such motions. The motions were denied without prejudice
by me. Petitions to revoke subpenas served by General Counsel had also been
lodged with me by both Respondent and the Parties in Interest. Ruling on such
petitions to revoke became unnecessary when the General Counsel indicated that
documents furnished or stipulations made in lieu thereof provided the needed
information. Matters covered by the motions to dismiss are in most instances
reiterated in briefs filed by Respondent and the Parties in interest and will be con-
sidered below.
Upon the entire record including consideration of the briefs filed by all the
parties, and upon my observation of the witnesses, I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a corporation with its principal place of business in Detroit, Michi-
gan. It is engaged in the manufacture of truck trailers and a variety of related
vehicular and container equipment. It has plants located in various States of the
United States including the State of California. Respondent, in the course and
conduct of its business operations, annually manufactures products and performs
services for the Armed Forces of the United States valued in excess of $50,000.
I find that at all times material to this proceeding Respondent has been engaged in
a business which has a substantial impact on national defense, which affects com-
merce within the meaning of the Act, and that under current Board jurisdictional
standards assertion of jurisdiction is warranted.
11. THE LABOR ORGANIZATION INVOLVED
Local 509, International Union of United Automobile, Aerospace and Agricul-
tural Implement Workers of America, AFL-CIO, herein called UAW, is a labor
organization within the meaning of Section 2(5) of the Act. The Parties in Interest,
International Union, Allied Industrial Workers of America, AFL-CIO, and Local
No. 976, affiliated with International Union, Allied Industrial Workers of America,
AFL-CIO, herein collectively called AIW, are each labor organizations within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The unlawful conduct charged and the background of the controversy
The alleged unfair labor practices involve the conduct of Respondent toward
UAW and certain of its former employees concerning, and following, the sale of
1 The complaint issued on March 15, 1965, and is based on a charge filed with the Na-
tional Labor Relations Board, herein called the Board, on September 26, 1963, and an
amended charge filed on March 31, 1964 Copies of the complaint, the charge, and the
amended charge have been duly served upon Respondent and the Parties in Interest.
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one of Respondent's plants in Southern California. It is charged that Respondent
unlawfully refused to bargain with its statutory representative, UAW, that it unlaw-
fully assisted AIW by extending coverage of a lawful union security contract to
additional production operations at two locations at times when AIW did not
represent an uncoerced majority at either location, and that it discriminatorily
failed or refused to employ laid-off UAW members who had applied for employ-
ment. Respondent denies failure to fulfill its bargaining duty in connection with
the sale and insists that in extending coverage of the AIW contract it acted law-
fully, since the extensions involved first an accretion to an existing unit, and, sec-
ond, a relocation of the unit. Respondent further denies discriminatory motivation
in any failure to employ laid off UAW employees.
Respondent has plants in various locations throughout the United States. Initially,
its only California operation was in a plant located at 5137 Boyle Avenue, Vernon,
California, herein called Boyle. Until 1958 Respondent conducted all of its Cali-
fornia commercial and military production at Boyle plus two supplemental plants
located nearby. Up until this time UAW was the statutory representative for
employees at these locations in a single unit . In the fall of 1958 , Respondent leased
another plant on Slauson Avenue, approximately 7 miles from Boyle. This plant
is variously designated in the record as the Slauson Avenue plant or the GHE plant,
and will be referred to hereinafter as Slauson . Slauson was about a third the size
of Boyle, and was obtained for the purpose of carrying on production for the
Armed Services. Shortly after Slauson commenced operation AIW obtained bar-
gaining rights for its employees, and thereafter represented them under a collective-
bargaining agreement. In 1959, Respondent underwent a corporate reorganization
which resulted in the transfer of all of its California commercial work from Boyle
to a new plant in Southern California, known as Vina Vista,2 and the creation of
a newly designated corporate division to handle all production for the military,
known as the Military Products Division, herein called MPD. The two plants nearby
Boyle were closed in November 1959. Following the transfer of the commercial
work, MPD work in California was confined to Boyle and Slauson. Boyle served
as the administrative headquarters for Respondent's California MPD operations.
Clerical and engineering work for MPD were also done at Boyle. The UAW repre-
sented Vina Vista employees under a separate contract. MPD operations in Cali-
fornia functioned under two separate units, one at Boyle represented by UAW,
and the other at Slauson represented by AIW.
Employment at Boyle was sharply curtailed with the transfer of commercial
work to Vina Vista. Following the corporate reorganization, MPD work in Cali-
fornia fell below expectations, and employment at neither Boyle nor Slauson came
up to what had been anticipated. In 1960, Respondent leased about half of the
space at Boyle to Owens-Illinois Glass Company, herein called Owens-Illinois .3
As early as 1960, rumors arose to the effect that Respondent might sell or close
Boyle, or that it was considering and might possibly consolidate MPD operations
at a single location. This caused UAW to express increasing concern about pre-
serving as much employment as possible for employees at Boyle, and to take what
steps were possible to insure continued representation at new facilities that might
be obtained. In 1961, Respondent assigned the work on a newly acquired military
contract to Slauson. UAW charged that in so doing Respondent was violating pro-
visions of its 1960 agreement requiring that such new work be assigned to Boyle.
UAW took a contract grievance on this issue to arbitration. This resulted in a
decision by arbitrator Gaffey on October 16, 1961, known as the Gaffey award.
The arbitrator held that the UAW contract did not require assignment of new
military work to Boyle exclusively, but that it was the employer's prerogative to
assign such work where it chose. When the 1962 negotiations for a new contract
commenced, a central concern of UAW was the preservation of as much work as
possible for employees at Boyle. UAW pressed to have Respondent shut down
Slauson altogether. This proposal was rejected. Next UAW urged that Respondent
agree to assign all new work obtained to Boyle . This proposal was also rejected.
2 Throughout the record the commercial plant references consistently appear as Buena
Vista. Respondent never had a Buena Vista plant, and all such references properly refer
to the Vina Vista plant.
3 References appear in the transcript to "Owens of Illinois." This is an error of the re-
porter. At all times such references are to Owens-Illinois. I inadvertently confused Owens-
Illinois with another corporation known as Libby-Owens-Ford. This corporation does not
figure in this proceeding and references to Libby and Libby-Owens, which may appear in
the transcript, are also intended to refer to Owens-Illinois.
FRUEHAUF TRAILER CO. 199
These rejections became a strike issue. A strike was forestalled only when a com-
promise was reached. This took the form of incorporating by reference in the new
agreement, a memorandum of understanding which itself incorporated by reference
and extended the terms of a letter written several years earlier by an official of
Respondent. This letter became known as, and is hereinafter referred to as, the
Trauernicht letter. The memorandum of understanding provided that if Respondent
received "add ons to or renewals of, current existing contracts now performed at
the Boyle plant" any such work obtained would be done at Boyle. The Trauernicht
letter provided that should Respondent "lease or purchase additional facilities" it
would "give employees at its operations the right to transfer to such facilities . . "
and that "following the start of any such new operations" it would "meet with the
[UAW] to determine if the terms . . . [of the] agreement between the Company
and the [UAW] shall apply to such facility or whether the operations require the
negotiation of a new labor agreement." The letter concluded with the statement
that "the foregoing shall have application to Los Angeles County only, and shall
in no way be binding on other divisions or subsidiaries ..." Upon reaching accord
on the memorandum of understanding incorporating the Trauernicht letter, UAW
and Respondent executed a full collective-bargaining agreement covering Boyle
employees on March 1, 1963, to be effective until March 1, 1965. It is undisputed
that this agreement was in full force and effect at the time of the sale of Boyle
under circumstances to be described below, and that at all times thereafter pertinent
to issues in this proceeding it remained in effect.
In November 1960, Respondent executed a 3-year collective-bargaining agree-
ment with'AIW covering employees at Slauson. Among other things this agreement
contained lawful union shop provisions. This agreement was renewed for an addi-
tional 3-year period in November 1963. At all times pertinent to this proceeding
one or the other of these agreements between Respondent and AIW was in full
force and effect. No claim is made that either agreement on its face contains pro-
visions alleged to be unlawful.
B. The sale of the Boyle Avenue plant
MPD work at both Boyle and Slauson was set at a low ebb in the fall of 1962.
At Boyle persistent rumors were current that the plant was to be sold or closed.
At this time most of these rumors centered about the possibility of a sale to Owens-
Illinois. UAW representatives repeatedly brought up the subject of these rumors,
both at the regular weekly bargaining meetings and at other times when they
informally met with officials of Respondent. Donald A. Bronson, Respondent's
regional manager of Industrial Relations, and William F. Hodgson, Respondent's
manager of Manufacturing and Manufacturing Services, continually responded to
such inquiries by advising UAW representatives that they knew of no projected
sale to Owens-Illinois, or to anyone else, and that as far as they knew Respondent
was actively seeking new Government contracts which, if obtained, would in all
likelihood result in the continued operation of Boyle. Despite this, however, on
February 27, 1963, all Government contracts at Boyle having completely phased
out, and no new contracts having been obtained, all remaining UAW unit employ-
ees at Boyle were laid off.4
Although Bronson and Hodgson deny knowledge of negotiations relating to the
sale of Boyle, such negotiations actually had commenced between Owens-Illinois
and officials of Respondent in Detroit in December 1962. These took the form of
discussions and an exchange of correspondence. At the outset Respondent and
Owens-Illinois were far apart on price. By early March, however, Owens-Illinois
made an offer which Respondent's negotiators regarded as acceptable. On March 13,
1963, the negotiators presented the Owens-Illinois figure to Respondent's board of
directors recommending its approval as a basis for sale. The board of directors
approved the recommendation and directed that steps be taken to consummate the
sale upon this basis. On March 15, 1963, Alexander Black, vice president in charge
of MPD, advised Ray Lyons, Respondent's industrial relations manager, immedi-
ately to arrange a meeting with UAW to apprise it of the impending sale to Owens-
Illinois. Lyons, acting through Bronson, his California subordinate, arranged a
* No further production work was at any time thereafter undertaken at Boyle. How-
ever, throughout the balance of the year 1963, four unit employees worked sporadically at
Boyle on maintenance jobs and at dismantling and moving machinery This was possible
because one of the provisions of the contract of sale gave Respondent the right to retain
certain space at Boyle for administrative and engineering purposes for a period of 18
months.
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting on the earliest agreeable date. This meeting was held on April. 3, 1963, and
was attended by various UAW representatives and officials of Respondent. It stands
undisputed that on this occasion Respondent was for the first time definitely
apprised of the negotiations which had been under way between Respondent and
Owens-Illinois.
At the April 3 meeting with UAW, Lyons acted as principal spokesman for
Respondent. Lyons advised UAW that although rumors concerning the sale of
Boyle had been going on for almost 3 years, he had delayed a meeting on this sub-
ject until he could state a firm position. He told UAW that "we have sold the
plant" and that Owens-Illinois intended to use it for warehouse purposes. He
explained that Respondent could no longer justify maintaining a 300,000-square
foot manufacturing facility in view of the phasing out of its Government contracts.
He stated that MPD would continue to operate Slauson at least until its lease ran
out, and that Respondent was considering the possibility of building another MPD
plant elsewhere, possibly in Southern California. Lyons requested that UAW make
no announcement regarding the sale of Boyle "until it is finalized," stating that this
might not come about for another 2 or 3 weeks. Lyons then offered to answer any
questions which UAW might wish to raise about the disposal of Boyle. Many were
asked. In response to questions Lyons stated that Respondent had not as yet pur-
chased other property for possible MPD use. He advised that the machinery and
equipment now at Boyle would be sold or moved to Vina Vista or Slauson. He
stated that Boyle employees would be considered for employment at either location
upon the basis of their qualifications, but he reminded UAW that it was only at
Vina Vista that they would have preferential hiring rights under their collective-
bargaining contract. He informed UAW that Respondent would advise it if any
other property in Southern California should be obtained for a plant site. He
stated, however, that this did not mean that UAW would necessarily be accorded
preferential treatment in employment. Lyons agreed that notices would be sent to
Boyle employees relating to protection of their pension rights. He told UAW that
in some instances Respondent would use Boyle employees to move machinery from
Boyle to other plants, although some of this work would be contracted out. He
advised UAW that vacation checks would be paid to unit employees within a week.
He told UAW that as part of the sale agreement it was understood that Respondent
was to have continued occupancy of Boyle's office and engineering facilities for an
ensuing period of 18 months. UAW inquired concerning a new Government con-
tract which Respondent had obtained for the production of some carriers for Nike
missiles .5 Work on similar carriers had recently been completed at Boyle. Lyons
acknowledged that Respondent had just been given a contract for the production
of more vehicles of a similar nature but he stated that "since we no longer have a
plant at Boyle" that "we would have to do the work at the [Slauson] plant." The
meeting adjourned with no further questions being raised by UAW.
C. Operations of Respondent following the sale of the Boyle Avenue plant
In March and April of 1963, work at Slauson proceeded on a limited basis with
numerous employees in layoff status. Commencing in June and continuing in the
ensuing months, work at Slauson picked up and most of the laid-off employees on
recall came back to work together with many new hires. Layoffs commenced to
increase by September, however.6
As noted above, work on the new contract for the Nike carrier went to Slauson
after the Boyle shutdown. This assignment became the subject of a grievance by
UAW. UAW claimed the new contract to be a "renewal" of work previously done
at Boyle, and urged that under the 1962 memorandum of understanding Respond-
5 This contract for the Nike missile carrier is frequently referred to in the transcript as
the 8 8 and 8 contract
s Payrolls in the record are not set up to show clearly the exact level of employment at
any given time As nearly as I can determine, however, Respondent had approximately 58
employees at Slauson in early March In late March and early April approximately 22 of
these were laid off There was little new employment in May, but by June some 34 em-
ployees were hired, 32 having seniority recall rights In July, 19 more were hired, 8 having
recall rights. In August, 49 were hired, only one having recall rights. In September and
October there were 48 and 41 new hires, respectively, none of which had recall rights. In
October and November there were 41 and 16 new hires, respectively, none with recall rights.
By September layoffs began to increase ; 24 in September, 21 in October, 25 in November,
34 in December, and 25 in January of 1964.
FRUEHAUF TRAILER CO. 201
ent was obligated to perform a "renewal" of this nature at Boyle. A grievance on
the issue proceeded to arbitration , and Arbitrator Aaron , in a decision known as
the Aaron Award , ruled the contract to be a renewal within the meaning of the
memorandum and ruled that its assignment to Slauson rendered Respondent liable
in damages to UAW despite the fact that it was no longer possible to perform the
contract at Boyle because the premises had been turned over to Owens-Illinois.
In August 1963, Respondent found need for additional space to undertake the
performance of a contract for air cargo containers , a commercial rather than a mili-
tary item. It leased 25,000 feet of space in a building adjacent to Slauson facing
Bandini Boulevard . This adjacent facility will be hereinafter called Bandini Although
the contract was a commercial one, the containers were not dissimilar in nature
from other items Respondent was manufacturing at Slauson under military con-
tracts, and they required no different type of facility or different skills in their man-
ufacture . Bandini was reached by a gate from inside Slauson, staffing was principally
by transfer of Slauson workers, supervision was by Slauson supervisors , and work-
ing conditions were identical with those at Slauson. Workers at both Slauson and
Bandini entered and clocked in at the same gate. After the acquisition some other
Slauson work was transferred and performed at Bandini . Respondent , deeming Ban-
dini an accretion to the existing Slauson unit, made no attempt to consult with
UAW concerning its acquisition or staffing . Respondent forthwith extended and
applied the UAW contract to employees assigned to work at Bandini.
Respondent 's failure to consult with UAW concerning the Bandini acquisition
became the subject of another grievance by UAW . UAW claimed the Trauernicht
letter required Respondent to consult with UAW concerning establishment of the
new facility . This grievance also went to arbitration, and Arbitrator Kagel, in a
decision known as the Kagel Award , held Bandini to be a new facility , within the
meaning of the Trauernicht letter, and Respondent 's failure to consult with UAW
concerning its establishment to constitute a breach of contract . Kagel rejected
Respondent 's defense that the acquisition was an accretion to the Slauson unit under
Board doctrine . Kagel ruled that the acquisition was not so clearly an accretion
that , absent a Board decision to that effect, he deemed himself bound to find it such
in the face of clear contract language requiring consultation with UAW.
In June 1963 , Respondent successfully bid upon a military contract for the pro-
duction of an item known as the Larc XV? The Larc is an amphibious unit con-
structed of aluminum and powered by a diesel engine. The contract required pro-
duction of 125 units , with the first one to be delivered in approximately a year. It
was a substantial contract valued in excess of $10 million calling for the employ-
ment of nearly a hundred production workers when peak operations were attained.
On October 16, 1963, Respondent called a meeting of UAW representatives at
which it apprised UAW of the Larc contract. Respondent stated to UAW that the
meeting was called pursuant to its obligation under the Trauernicht letter to inform
UAW that it was considering the acquisition of a facility in Long Beach, a location
within Los Angeles County, to produce the Larc. UAW inquired if Respondent
would regard the current Boyle agreement as applicable to a Long Beach facility.
Respondent replied that many different classifications would require negotiation of
a new contract , but it signified its willingness to negotiate on the matter with UAW
in the future should plans for the Long Beach facility become definite. Respondent
also told UAW that , even if it appeared that agreement could not be reached, it
would consider. "transferring Boyle employees " to the new facility "if they were
qualified ." Respondent gave no indication , however, that Boyle employees would
be given any preferential treatment . The meeting adjourned with the understanding
that Respondent would schedule a negotiating session if and when the location
were decided upon . No meeting for such purpose was subsequently scheduled or
held.
Following the October 16 meeting Respondent concluded that the Long Beach
premises were not suitable for the Larc work . Previous to this Respondent had
decided that existing Slauson facilities, including Bandini, were inadequate to handle
the Larc construction . It also ascertained that no space at Vina Vista was available.
In late November, or early December, Vice President Black learned that certain facil-
ities located in Fullerton, California, partially occupied by Aerojet General Corpo-
ration, would soon become available. Investigation revealed that an anticipated
200,000 square feet was to become available, 100,000 square feet by February 1964
7In the transcript generally this is spelled "Lark ." Documentary evidence indicates the
correct spelling to be "Lare ." Regardless of how spelled references relate to only one
project.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the remainder 2 months or so later. Respondent concluded that this facility
would be suitable not only for carrying out the Larc project but also that it could
handle all MPD work then going on at Slauson-Bandini as well as the administra-
tive and engineering work still being done at Boyle. The plant at Fullerton is
located approximately 32 miles from Slauson and is in Orange County. In January
1964, Respondent completed lease arrangements for the entire 200,000 feet with
possession to be given for 100,000 feet in February and the remainder as soon there-
after as possible following removal of certain Government equipment then occupy-
ing the space. Respondent's overall plan was to transfer all the remaining MPD
production then being done at Slauson to Fullerton at the earliest possible date, to
move the MPD administrative and engineering work still being done at Boyle to
Fullerton, and to start the production work on the Larc XV contract shortly after
the plant was occupied.
Early in February, a representative of AIW advised Respondent that he under-
stood that the facilities were being moved from Slauson to Fullerton. The repre-
sentative told Bronson that "this involved [their] people, [their] work, [their]
plant" and that AIW wanted to negotiate a change in the AIW contract to cover
employment at Fullerton. AIW representatives met with Respondent on Febru-
ary 12. On February 13, 1964, AIW and Respondent executed a memorandum
agreement reciting that inasmuch as Respondent "has decided to transfer its exist-
ing operations" at Slauson "to another facility" located in Fullerton the existing
AIW agreement should continue in full force and effect until its expiration in
1966, that Respondent would continue to recognize AIW as the bargaining repre-
sentative "at its transferred operations," and that the existing agreement be
amended by deleting the reference therein to the Slauson facility and substituting
therefor the name of the Fullerton facility with the final deletion becoming effec-
tive when the transfer from Slauson to Fullerton was completed and Slauson was
entirely vacated. Prior to this UAW had not been notified regarding the proposed
transfer of the Slauson facility or of Respondent's intention to do the Larc work
at Fullerton. On February 17, 1964, in response to a telephonic inquiry from
UAW, Respondent wrote UAW that it had decided not to locate any of its opera-
tions in Long Beach, that it intended to transfer its existing operations from
Slauson to Fullerton, that the Slauson plant would be closed, that it expected that
most of the existing work would be effectively transferred by early March, and
that it anticipated that several months thereafter the production work on the Larc
contract would be performed at Fullerton.
The exact timing of the transfer from Slauson to Fullerton is not altogether
clear from the record. There is testimony that Respondent took possession of a
portion of the premises in February even before the execution of the memorandum
of understanding. It is stated that some maintenance employees from Slauson
went over to Fullerton in early February and that some production work com-
menced in February. If so these employees must still have been carried on a
Slauson payroll, for a Fullerton payroll received in evidence purporting to show
employment for the year 1964 shows no Fullerton employees until March of 1964.
Even for that month it shows a net employment of only 10 persons, 6 of whom
appeared to have transferred from Slauson and 4 of whom were new employees.
Fullerton employment increased somewhat in the month of April with a total of
32 employees being added, only 4 of whom had seniority recall rights from
Slauson and 28 of whom were new employees. A somewhat similar increase
occurred in May with a total of 38 employees being added, 17 of whom had
seniority status at Slauson and 21 of whom were new. More substantial increases,
however, commenced in June and continued in the ensuing months with a peak
level continuing until the end of the year.8
8 Monthly net employment figures with agreed upon levels were not supplied in the
record Figures concerning the employment level have been reached by an analysis of
the Fullerton payroll which is believed to be approximately correct This payroll purports
to show the dates of all hires at Fullerton during that year, whether or not these hires
came with seniority under the AIW contract, and the termination dates of all such hires.
The following tabulation is prepared from an examination of such payroll. The first three
columns show the number of employees hired on a monthly basis ; column one the number
who came with seniority status, column two the number of new hires, column three the
total of the two The next two columns show respectively the number of terminations on a
monthly basis and the net level of employment The latter figure was reached by adding
the total hires to the level of the preceding month less the number of terminations in the
current month.
FRUEHAUF TRAILER CO. 203
Employees Hired
Net level of
Terminated employment
1 Seniority 2 New 3 Total
status
March----------------- 6 4 10 0 10
April------------------ 4 28 32 2 40
May ------------------- 17 21 38 7 71
June------------------- 20 147 167 13 225
July------------------- 11 162 173 26 372
August---------------- 1 108 109 46 435
September ------------- 1 94 95 35 495
October--------------- 0 21 21 33 483
November------------- 0 15 18 18 480
December------------- 0 57 57 33 504
Preliminary machine shop work on the Larc commenced at Fullerton in April
-of 1964, with production starting in May of 1964. The whole contract was esti-
mated to take from 18 to 20 months to complete . In August of 1965, at the time
of the hearing , work was still being done on the Larc at Fullerton.
Vice President Black testified without contradiction that the decision to lease
the Fullerton facility, to transfer the Slauson work , and to perform the Larc con-
tract there was made at a time when Respondent had no knowledge of the prospec-
tive acquisition of any substantial new business . Black testified further, however,
that in February after the decision to move to Fullerton, he learned for the first
time that Hanson Bros ., Inc., herein called Hanson, a competitor of Respondent,
also engaged in military contract production of containers or vehicles , was experi-
encing difficulty in meeting its commitments and might be interested in the sale
of certain contracts and materials to Respondent . Black met with George Hanson,
one of the Hanson brothers , in early March and upon ascertaining that Hanson
was short of working capital, and had oversold the capacity of its facilities , explored
the possibility of a takeover of certain contracts and materials. Respondent there-
after undertook an investigation of the Hanson proposal which later resulted in
the drafting and signing of an agreement whereby Respondent purchased certain
assets and contracts from Hanson. This agreement was finally consummated in
May of 1964 . Pursuant thereto , in June of 1964, machinery and other equipment
was moved over from the Hanson plant to the Fullerton plant, and those employ-
ees of Hanson who had been working on these projects and who wished to transfer
also moved over to the Fullerton plant. For the most part the transferees continued
to work upon the projects which had been transferred , but in some instances
worked upon other of Respondent 's projects . Payroll records show that in June
alone 130 employees from Hanson came to Fullerton. This accounted in substan-
tial measure for the increase in employment at Fullerton during that month. Han-
son employees had not been represented by a labor organization before coming to
Fullerton.
D. Subsequent employment of laid-off Boyle employees and others at Slauson
and Fullerton, and Respondent 's alleged animus against UAW
As above set forth , work on military contracts had been gradually phasing out
at Boyle in late 1962 and early 1963. By February 28, 1963, all Boyle production
workers had been laid off.9 The UAW contract provided that employees who had
worked more than 30 days at Boyle had seniority status, and that when employees
with seniority status were laid off they retained such status for 2 years with recall
rights at Boyle during that period and preferential employment rights at Respond-
ent's UAW represented Vina Vista plant . The names of 178 persons were listed
as having seniority recall rights at Boyle as of March 26 , 1963. Substantially all of
these are included among the 175 individual discriminatees named in the complaint.
It is the General Counsel's theory that Respondent deliberately denied or refused
employment to employees with known UAW seniority for discriminatory reasons.
6 A total of 53 employees were laid off at Boyle in February 1963 There were still 20
remaining when the final layoff took place on February 28.
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The named discriminatees were not called as witnesses, and there is no evidence
in the record that following the Boyle layoff any one of them filed a separate
application for employment at either Slauson or Fullerton. It was stipulated that
some of them did apply for work at Slauson and Fullerton but were denied employ-
ment. The names of such individual applicants are not shown, nor are the reasons
given for denial or refusal of employment. Documentary evidence in the form of
payrolls and lists was received. Such evidence discloses that no more than 34
former Boyle employees actually obtained or were offered employment at either
Slauson or Fullerton following the Boyle shutdown. The General Counsel correctly
points out that not more than 14 of these were employees with seniority recall
rights at Boyle; thus their UAW connection was not necessarily known. Eighteen
laid-off employees were subsequently employed at the UAW-represented Vina Vista
plant where the Boyle contract gave them preferential rights. Payroll records also
show that at Slauson, between May and December 1963, there were approximately
214 new hires, 50 of which had seniority recall rights under the AIW contract. At
Fullerton, between March and December 1964, payroll records show approximately
730 new hires, of which 66 had seniority recall rights under the AIW contract."
The General Counsel contends that Respondent waived the need for individual
employment applications. To support his claim, he relies upon the stipulations and
documentary evidence set forth above, and upon the testimony of two former
Boyle employees. Abel Medina was the chairman of the UAW committee at Boyle,
and was one of the four maintenance employees who continued on at Boyle after
the February 1963 layoff. The maintenance work was not steady. Medina testified
that during a periodic layoff in March and again during another in June, he
approached Bronson regarding applying for work at Slauson. Medina states that
Bronson told him that applications were not necessary since "all Boyle employees'
applications were in." He was also told no work was then available. Bronson does
not recall "a serious conversation about [Medina] going to [Slauson]." Medina
testified that he relayed Bronson's statement about the applications to other UAW
members at regular union meetings. It is not shown what former Boyle employees
received this information, nor to what extent, if any, any one relied upon it. Former
Boyle employee Makshanoff testified that approximately 7 weeks after the February
layoff he asked Bronson if he could apply for work at Slauson, and Bronson replied
that he could not because "this is a different union." He states that Bronson then
went on to say that Respondent was not taking any applications then because "they
had a lot of men laid off." Makshanoff said he wished to put in his application so
that he would be in a preferred position when the laid-off men had returned, but
he states that Bronson told him that he need not do this since "if they do hire new
help after they have called back, they would call the ex-Boyle employees by senior-
ity." Bronson admits having had a conversation with Makshanoff and telling him
that there were people in layoff status and that Respondent was not taking applica-
tions, but he denies that he told Makshanoff that Respondent would recall Boyle
people at Slauson by seniority when the AIW recall was complete. There is no
other evidence of efforts by union officials or individuals to apply for employment
at either Slauson or Fullerton.
Testimony was adduced concerning three incidents occurring after the Boyle
layoff which the General Counsel contends show an element of anti-UAW animus
which tends to support the allegation that Respondent's failure to hire more of the
laid-off Boyle employees was discriminatory.
The first incident relates to Charles Boone, a laid-off Boyle employee. Boone
testified that on one occasion in early January of 1963 he had worked until the end
10 The foregoing figures and others relating to hires, layoffs, and seniority status were
compiled from documentary evidence submitted The payrolls and other lists were in a
form that made precision difficult, and the exact accuracy and correctness of all figures and
interpretations may be questioned in some instances. I do not believe, however, that
mathematical exactness is a determinative factor in any conclusion subsequently reached.
Overall analysis of the documentary evidence and the supplemental testimony generally
indicates the following (1) there were a substantial number of ex-Boyle employees known
to Respondent to have seniority recall rights under the UAW Boyle contract, (2) very few
of such ex-Boyle employees were offered or obtained employment at either Slauson or Ful-
lerton after the Boyle shutdown; (3) AIW seniority employees at Slauson were recalled
when business there began to pick up in mid-1963, and there were also many new hires ,
(4) Slauson employees, presumably with AIW seniority status, were transferred to Fuller-
ton and there were many new hires there before peak employment was reached in the
summer of 1964.
FRUEHAUF TRAILER CO. 205
of his shift and had thereupon been admonished for his diligence by a union repre-
sentative who had said to him "you are making it look bad for us." This remark
was overheard by Boone's foreman who shortly thereafter told Boone that he
would recommend him for a job at Slauson , saying "I don 't think you like the
union." Shortly after this, Boone states he had a conversation with Bronson who
told him that the plant was going to close in February but that Boone had nothing
"to worry about ." Boone states that Bronson also remarked that "the union fellows
weren 't putting out." Then he states Bronson then told him that his foreman had
recommended Boone for a job as foreman at Slauson . This was not immediately
forthcoming , but in September some 8 months later, Boone did go to work as a
foreman at Slauson . When Slauson shut down Boone was one of those transferred
to Fullerton.
The second incident concerns Nick Makshanoff and it is related above.
The third incident occurred at Fullerton in July 1964 , approximately a year and
a half after the Boyle layoff . Jess Fuentes, a Fullerton employee, testified that he
heard Joe Dunkerly, the Fullerton production superintendent , tell his foreman that
if the foreman observed anyone passing out UAW cards he should fire him forth-
with . Dunkerly testified that he had observed cards being passed out by both UAW
and AIW supporters at Fullerton , that he was concerned because it was interfering
with the work , and that he had issued instructions to his foremen that if the prac-
tice continued , they were to discharge the employees involved . He states that his
instructions were not limited to the passing out of UAW cards, but were applicable
to any person engaged in union activity of this nature during working time regard-
less of the union which he was supporting.
The foregoing incidents are not only isolated , but they are remote from periods
of extensive hiring. Whether they be viewed jointly or severally they provide but
scant support to the assertion that they indicate a degree of UAW animus which
warrants an inference of unlawful motivation in Respondent 's refusal or failure to
hire UAW members.
The Boone incident is equivocal . It contains a slight suggestion of animus against
UAW, but it is equally susceptible to an interpretation that Respondent was pleased
with Boone because he had worked diligently , while others had not, and was pre-
pared to reward him for his good conduct . It may be noted that even this so -called
reward did not take place until nearly 9 months after the incident occurred. The
Makshanoff incident establishes little. There were Slauson employees in layoff
status at the time with recall rights . A statement that "this is a different union"
may reasonably be interpreted as an expression to the effect that persons such as
Makshanoff without AIW recall rights were not in a position to be employed at that
time. I am convinced that Makshanoff was mistaken in saying that Bronson told
him that Boyle employees would be recalled in the order of seniority when the
AIW recall was complete. This is inconsistent with the position stated by Respond-
ent to UAW at the April 3 meeting, and I regard it as highly unlikely that a man
as experienced as Bronson in the field of labor relations would make a remark of
a nature directly contrary to Respondent 's already stated position . The Fuentes
incident would have significance only if coupled with a further showing of disparate
treatment by Respondent favoring AIW at Fullerton in its organizational efforts.
There is nothing in the record , however, to dispute Dunkerly's testimony that he
was simply directing discharge of any employee for soliciting for any union on
working time. The three incidents, even taken at face value, seem trivial, and I
find them insufficient evidence of UAW animus to support any asserted inference
of unlawful motivation.
E. Discussion of the issues and conclusions
1. The alleged refusal to bargain
The complaint as originally drafted alleged that Respondent had sold Boyle on
March 13 , 1963, that despite prior requests by UAW to bargain on the possible
sale of Boyle , Respondent had "deliberately and fraudulently concealed" from
UAW its intent to "sell and eliminate jobs within the UAW unit," and that by such
conduct Respondent had acted in derogation of its statutory bargaining duty. At
the hearing an amendment was permitted to allege in the alternative that on
April 3, 1963, Respondent for the first time informed UAW of the sale, that actu-
ally the sale was not consummated until on or about May 1 , 1963, and that by
such conduct Respondent unlawfully refused to bargain.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In his brief General Counsel appears to have abandoned the claim that the sale
was consummated on March 13, and instead is urging that the "deliberate and
fraudulent concealment" is of significance only as showing bad faith upon the part
of Respondent, and that when such prior concealment is coupled with Respond-
ent's announcement on April 3, that the plant had already been sold "it effectively
precluded any bargaining on the decision" by presenting UAW with what appeared
to be an irreversible decision made without consultation with it.
The record will not sustain an allegation of deliberate and fraudulent conceal-
ment. It is true that Bronson and Hodgson, the only officials of Respondent dealing
regularly with UAW, were questioned about a possible sale of Boyle and that they
repeatedly denied knowledge that negotiations were under way. However, there is
no evidence that either one of them had knowledge of the negotiations going on
with Owens-Illinois prior to March 15, when Bronson was instructed to arrange the
meeting with UAW. This may suggest that among company officials the right hand
did not know what the left was doing, but without more it does not indicate either
deliberate or fraudulent concealment. The duty of Respondent to disclose the
status of negotiations within its corporate knowledge is another question which will
be considered below, but the General Counsel has not established that Respondent
was necessarily motivated in failing to do so by bad faith, and I so find.
We must next consider whether Respondent has fulfilled any duty to bargain
which existed regardless of its good faith. It is now well established under the
Board's so-called Fibreboard doctrine that an employer has a duty to bargain about
a decision to sell an existing plant or to subcontract unit work." The Fibreboard
doctrine rests on the proposition that it is the duty of an employer to bargain
with its statutory representative about a decision to subcontract part of the unit
work, or a decision to sell an existing facility, either of which may affect the
employment status of unit employees. In Royal Plating and Polishing Co., Inc.,
148 NLRB 545, a case involving the sale of a facility, the Board stated:
It is not necessary that a satisfactory solution to the serious issues involved
in a closedown of operations be the probable result of bargaining negotiations
for the obligation to give notice and opportunity for discussion of such
matter to be a viable and intrinsic part of the statutory bargaining obligation.
The basic concepts of the Act called for utilization of joint efforts at the
bargaining table to solve difficult and seemingly insoluble problems as well
as those more amenable to a resolution satisfactory to both sides. The Act
does not, of course, compel agreement ; it does compel notice and opportunity
for discussion to the end that all possible bases for agreement are fully
explored.
In applying the doctrine , however, the Board has stated that the principle is not
a rigid or inflexible one. In Shell Oil Company, 149 NLRB 305, the Board stated:
The principles of these earlier cases, however, are not meant to be hard and
fast rules to be mechanically applied irrespective of the circumstances of the
case . In applying these principles , we are mindful that the permissibility of
unilateral subcontracting will be determined by a consideration of the setting
of each case. Thus, the amount of time and discussion required to satisfy the
statutory obligation "to meet at reasonable times and confer in good faith"
may vary with the character of the subcontracting , the impact on employees,
and the exigencies of the particular business situation involved. In short, the
principles in this area are not , nor are they intended to be, inflexibly rigid in
application.
The Board has also held that in applying the principle no per se doctrine based
on any one incident or situation is applicable but that an evaluation must be made
of the entire relationship between an employer and its bargaining representative.
Thus, in Hartmann Luggage Company, 145 NLRB 1572, the Board stated in dis-
missing a charge of refusal to bargain:
We do not, however, adopt the particularity of the Trial Examiner's some-
what narrow delineation of the Respondent 's bargaining obligation . as
one which necessarily required the Respondent to give the Union notice of
the specific proposed subcontract agreement just "at the time the Company
was prepared to make a firm offer to [the subcontractor] or to accept a
counteroffer from [it]," and to furnish the Union at that moment an oppor-
"Fibreboard Paper Products Corporation , 138 NLRB 550 , affd. 379 U.S. 203.
FRUEHAUF TRAILER CO. 207
tunity to bargain precisely with reference thereto before consummating that
subcontracting agreement.
The Trial Examiner found that the General Counsel, by establishing that the
Respondent signed the subcontracting agreement with North Bay before
advising the Union of the pendency of its negotiations with that Company,
made out "at least a prima facie case of refusal to bargain ." But he concluded
nonetheless that the violation was "cured" by reason of the Respondent's
subsequent conduct, as set out in the intermediate report . We agree with the
Trial Examiner's ultimate conclusion .that any prima facie showing of a viola-
tion in this case is overcome by other evidence , but unlike the Trial Examiner
we rest our decision upon our evaluation of the Respondent 's overall conduct,
both prior and subsequent to the execution of the subcontracting agreement.
In an evaluation of the circumstances in the instant case we must consider then
not just the fact that the April 3 announcement of the sale was the first notifica-
tion given UAW, but we must consider this in conjunction with the entire "set-
ting," the "exigencies of the particular business situation involved," and Respond-
ent's "overall conduct" both "prior and subsequent to" the consummation of the
sale. As the General Counsel now acknowledges , no sale actually had been con-
summated by April 3, when UAW received its first definitive information on the
matter. However, at this time negotiations for such sale had been under way fo'r
some time, and Respondent and the purchaser had reached an accord on the all
important issue of price without any specific consultation with UAW having taken
place . The issue thus becomes whether Respondent 's overall conduct considering
what transpired before, during, and after the April 3 meeting was such that
Respondent can be regarded as having fulfilled its statutory bargaining duty.
The announcement of the sale at the April 3 meeting was only one incident in
a long-established bargaining history between Respondent and UAW in which the
future of Boyle and the possibility of moving to new facilities had figured promi-
nently . As early as 1960, the assignment of new military contracts and the possi-
bility of consolidation of operations or other charges in MPD functioning had
been the subject of repeated discussions and negotiations . This became the central
issue in the 1962 contract negotiations , and as we have seen, a strike was only
forestalled at that time by the execution of the memorandum of understanding and
the Trauernicht letter which were addressed directly to questions of future work
assignments and to possible relocations of work then being done at Boyle. The
Aaron Award holding that Respondent could not remove work from Boyle without
being responsible in damages to UAW even in the face of the sale was one result
of the bargaining that had taken place on one aspect of this very question.
Against such a background UAW not unreasonably concluded that the rumors
of a possible sale to Owens-Illinois might have substance . Its inquiries , however,
were unfortunately directed at officials of Respondent who had not been apprised
of the pending sale negotiations . However, unless Respondent had some absolute
duty to disclose the status of negotiations at an earlier time, it does not necessarily
follow that its failure to do so was prejudicial to UAW 12 or that this fact alone
establishes the violation.
12 The Charging Party argues that a statutory duty to bargain arises as soon as an em-
ployer reaches a decision that it wants to sell. It is claimed that only by such a rule will
a union 's right to bargain effectively be preserved since only by knowing at this time will
it have a full opportunity to persuade the employer that there are alternative solutions.
I am not of the opinion that this would constitute a viable principle in the application of
the Fibreboard doctrine . It would tend to establish a per se doctrine which would unduly
curtail even the exploration of possibilities . Granted that an employer must not continue
its negotiations to a point where it presents a union with a fait accompli in the face of
which further bargaining is neither possible nor practical , it hardly follows that explora-
tory negotiations looking toward possible areas of agreement are matters in which the
union need necessarily participate . When an employer considers the possibility of selling a
facility or of subcontracting work, it is invariably economically motivated If the prelimi-
nary negotiations indicate no purchaser , or prospective subcontractor , in the offing who
is likely to come forward with a proposal that is economically attractive , the proposition
will almost certainly be dropped unilaterally by the employer and no occasion will arise
for discussion with the union The exact point at which notification must be given will
vary from case to case, but a rigid approach must be avoided, and accordingly I reject any
test which would make the duty arise simultaneously with an employer ' s decision that it
may want to sell.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Price is always a key issue in any negotiation for sale. Once the price is agreed
upon other things frequently fall in line, but until this has come about the likeli-
hood of any agreement is remote. Until early in March, Respondent and Owens-
Illinois were apart on price. It was only with the submission of an offer in early
March that the negotiators undertook to recommend the sale to the board of direc-
tors. With the approval of the price the negotiations for the sale left the realm of
discussion and ultimate consummation became a likelihood. This is not to say, how-
ever, that at this time the agreement was complete. The contract as finally exe-
cuted in May was an extensive one covering many matters of both substance and
procedure. It is conceivable that failure to reach accord on any number of points
could have caused the arrangement to fall through. Respondent acted promptly to
notify UAW when accord on price had been reached, and met with it thereafter at
the earliest possible date.
Respondent appears to have made full disclosure at the April 3 meeting of all
that had transpired. It attempted to answer all questions raised at the time, and it
appears to have been willing to bargain upon any issue suggested. It is true that at
the outset of this meeting Respondent told UAW that the plant had been sold, but
it immediately qualified this by the announcement that the sale had not been "final-
ized." Respondent bargained with UAW at this meeting on a wide variety of items
relating to the rights of the laid-off Boyle employees (e.g. pensions, vacations, etc.),
it apprised UAW of its plans for continuing operations at Boyle and for the use of
UAW employees for some work. UAW discussed at length these issues and others,
but at no time, either then or in ensuing months, did it suggest that Respondent
repudiate the sale or undertake some continued use of the premises for production
purposes for an additional period of time.13
The parties continued to recognize the validity of the 1962 contract and continued
to process grievances under it even going to arbitration on issues brought about by
the sale itself.14
From the foregoing I am convinced that contrary to the claim of the General
Counsel, Respondent did not act in derogation of its statutory duty to bargain. At
the most it delayed in announcing the sale longer than might seem reasonable in
view of the long-established bargaining relationship and UAW's expressed concern.
I see no direct prejudice resulting from the delay, however. Notification came imme-
diately when the negotiations had reached a point where the ultimate consummation
of the sale was a likelihood. The sale had not been "finalized" then and UAW was
so apprised. Respondent placed no obstacles or limitations on bargaining at this
point and it appears to have been UAW's own choice not to press for repudiation
or some compromise. As set forth above, the statutory duty under the Fibreboard
doctrine is not a rigid one. I am convinced, and find, that Respondent's overall con-
duct, as related above, does not show that it presented UAW with a fait accompli
at the April 3 meeting that prevented any effective bargaining on the issue of the
sale. Accordingly I find that Respondent under all the circumstances has met its
statutory duty to bargai-l concerning the sale of Boyle to Owens-Illinois. I find
therefore that the General Counsel has not established that Respondent violated
Section 8(a) (5) in this respect."
"In a letter to Owens-Illinois early in the negotiations, Respondent raised the question
of using a portion of the premises for production purposes during the period in which it
sought to retain use of plant premises for office and engineering work There is no indica-
tion in the later correspondence or otherwise in the record to show that this proposal was
rejected by Owens-Illinois, or to show that at the time of the April 3 meeting such arrange-
ment might not still have been pursued.
14 It is noteworthy that no UAW charge of refusal to bargain was immediately made,
but this charge was first filed on September 26, 1963, nearly 6 months after the April 3
meeting. While UAW had a right to wait until nearly the end of the statutory 6-month
period, its failure to act immediately suggests less outrage at Respondent's dereliction in
its bargaining duty than dissatisfaction with subsequent developments.
Ii Respondent argues that consideration of the refusal to bargain issue is foreclosed be-
cause the charge of refusal to bargain was filed more than 6 months after the alleged
duty to bargain arose This is premised on the assumption that the duty to bargain arose
before March 26, 1963, and that the 6-month 10(b) period commenced then. There is no
precise rule establishing when the duty to bargain in such a situation would arise, but I
hardly think it tenable to argue that for 10(b) purposes it would ever arise until a union
had been notified that negotiations for a sale are either pending or that the sale was
consummated. In view of my finding that Respondent fulfilled its statutory duty in the
instant case, the issue becomes moot, although it may be noted that the charge herein was
filed less than 6 months from the April 3 meeting when UAW was first notified of the sale.
FRUEHAUF TRAILER CO. 209
2. The alleged assistance to AIW
The General Counsel charges Respondent with giving unlawful assistance to AIW
by extending coverage of the AIW contract to Bandini , and then, later, to Fullerton,
with each extension occurring at a time when each new facility constituted a sepa-
rate appropriate unit, and when AIW did not represent an uncoerced majority at
either location . Respondent defends by asserting Bandini to have been a lawful
accretion to its Slauson unit, and by claiming Fullerton to involve a relocation of
the same unit.
The Board has frequently been concerned with problems arising from accretions
and relocations . In resolving issues resulting from changes in the scope or character
of units, the Board has generally been guided by an attempt to balance the need
for stability in collective -bargaining relationships against the right of employees
freely to change their bargaining representative . Employers not infrequently enlarge
or change the nature of their operations at an existing facility, or undertake to
move to an altogether new facility . Any such change will have some effect upon
the size or the character of the existing unit. If there is a collective -bargaining con-
tract in effect, a question may arise as to the propriety of extending it to encom-
pass the change in the unit . Such an issue may reach the Board in one of two ways:
It may be asked to decide if an existing collective -bargaining contract is an imme-
diate bar to another organization 's seeking to represent employees at the facility;
or it may be asked to resolve if an extension of contract coverage constitutes unlaw-
ful assistance to the incumbent union . In either situation , resolution of the issue
will turn on the same principle . Generally, if the change be regarded as a reason-
able expansion in magnitude , not accompanied by any drastic change in the basic
character of the operation , it will be considered a lawful accretion and the extended
contract will neither bar immediate resolution of a question concerning represen-
tation nor will its extension constitute unlawful assistance . 1e If, on the other hand,
circumstances indicate the expansion to be of great magnitude , or show that the
nature of the operation has undergone substantial change, the unit will be consid-
ered a new one. Then the contract will not be regarded as a bar to determining a
representation question, and its extension to employees in the new unit will be con-
sidered unlawful assistance to the incumbent union and interference with the rights
of employees to change their bargaining representative.17
Tests for establishing if a given unit change constitutes an accretion or the estab-
lishment of a separate unit embrace a variety of considerations . Geographic prox-
imity, centralization of management control, similarity of skills, functions and
working conditions , and interchangeability of employees are only some of the fac-
tors which , if present , point toward an accretion as opposed to a new and separate
unit.18
Tests for determining whether or not a relocation involves a mere change of situs,
or whether it constitutes a basic unit change are best described by the Board in the
following language from General Extrusion Company , Inc., et al., 121 NLRB 1165:
Thus we show it here to be the rule that a contract does not bar an election if
changes have occurred in the nature as distinguished from the size of the
operations between the execution of the contract and the filing of the petition,
involving ( 1) a merger of two or more operations resulting in creation of an
entirely new operation with major personnel changes ; or (2) resumption of
operations at either the same or a new location , after an indefinite period of
closing, with new employees . However a mere relocation of operations accom-
panied by a transfer of a considerable proportion of employees to another
plant, without an accompanying change in the character of the jobs and the
functions of the employees in the contract unit does not remove a contract as
a bar.
Applying the foregoing to Bandini , the circumstances strongly suggest an accre-
tion to the Slauson unit. The expansion was undertaken to build an air cargo con-
tainer differing only from other Slauson items in that it was produced under a com-
mercial rather than a military contract . The premises acquired were immediately
10 Bore-Warner Corporation , 113 NLRB 152 ; Radio Corporation of America , 127 NLRB
1563: Great Atlantic and Pacific Tea Company , 140 NLRB 1011.
17 General Extrusion Co., Inc ., 121 NLRB 1165 ; Schreiber Trucking Co., 148 NLRB 697 ;
International Paper Company, 143 NLRB 1192 ; Masters -Lake Success , Inc., 124 NLRB 580.
la See the cases cited in footnote 16 above.
264-047-67-vol. 162-15
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adjacent to Slauson and were reached by a gate from the Slauson premises used by
employees who had clocked in with other Slauson employees at a common entrance.
Management control was identical and the skills needed and the working conditions
were similar. Such undisputed evidence indicates a relatively moderate expansion
undertaken only to house a new department adjacent to Slauson and performing
the same kind of work. It has the appearance of a more or less classic type of accre-
tion to an existing unit, and Respondent should be permitted to extend the AIW
contract to it unless the presence of such additional factors as the Trauernicht letter
and the decision of arbitrator Kagel can be regarded as demanding a different result.
The terms of the Trauernicht letter required that Respondent consult with UAW
concerning the acquisition of a new facility. AIW was not a party to it, and in no
way can it be considered bound by it. As we have seen, arbitrator Kagel found
Respondent to have violated its contractual obligation by failing to consult with
UAW in regard to the Bandini acquisition, and held the accretion defense to be
insufficient absent a Board determination. In so deciding, Kagel placed particular
reliance on the fact that the work done at Bandini was on a "new product," and
was being performed under a commercial rather than a military contract. The accre-
tion issue comes to the Board for the first time in the instant case. The arbitrator's
decision is properly to be considered, but it clearly is not binding on the Board. I
do not agree that the work at Bandini involved a "new product" in the sense that it
represented a truly different type of product from those being manufactured at Slau-
son. The product was different only in the precise sense that almost any new con-
tract item will in some way be different from others. Clearly, however, it involved
the production of containers similar in character to those produced at Slauson. The
fact that the contract was for a commercial, rather than a military, item, I regard
as a distinction without a significant difference and not as something controlling,
where the general nature of the item shows no substantial variance. Moreover,
Kagel 's finding is less a flat holding that Bandini was not an accretion, than his
determination that as arbitrator his primary interest was in the contract, and that
absent a definitive Board decision in the case he would disregard the assertion of
accretion as a sufficient defense in the face of a clear contract provision. Finally,
AIW, not being a party to the memorandum of understanding or to the Trauernicht
letter, should not be prejudiced in its right to obtain the benefits of the extension
where all the other factors point toward a typical accretion. Accordingly, I find
Bandini to have been a lawful accretion to the existing Slauson unit. I reject the
claim that Bandini constituted a separate unit , and find the extension of the AIW
contract to cover Bandini employees to have been unlawful, and the allegations
of the General Counsel regarding unlawful assistance in the Bandini acquisition to
be without merit.
The relocation at Fullerton, however, presents different issues. As we have seen,
the controlling principle in regard to relocation centers on the existence of changes
"in the nature" of the operation as distinguished from a mere change in situs. To
determine if a change "in the nature" has occurred here , we must consider the man-
ner in which MPD functioned both before and after the sale of Boyle, and its con-
tinuing relationship with UAW at both times.19
UAW appears as a central part of the MPD picture for many years . UAW was
the sole bargaining representative of all California MPD employees at one time,
and at the outset of the Slauson operation it strongly protested the recognition of
AIW for a unit of MPD employees, claiming Slauson to be an accretion to
Boyle .20 The Gaffey award, the 1962 memorandum of understanding, together
with the Traunericht letter, and the persistent inquiries of UAW concerning the
possible sale of Boyle are all manifestations of UAW's long-standing and con-
tinuing interest, not only in the future of Boyle, but also in the ultimate future of
MPD and its relation to it, whatever changes might come into being . Respondent
10 I recognize that MPD as a corporate division did not come into existence until 1958.
For convenience I have used the term variously both in its technical corporate-division
sense, and generically to designate that part of Respondent's business devoted principally
to military as distinguished from commercial production.
2° It is recited in the Gaffey award that UAW filed an unfair labor practice charge in
1958 alleging Slauson to be an accretion to Boyle, and Respondent's recognition of AIW to
be unlawful. The General Counsel refused to issue a complaint on such charges, so the law-
ful character of the initial recognition is of course beyond challenge. The charges, how-
ever, are signficant to show an element in UAW's consistent and longstanding quest for
representation of all the 1IPD employees.
FRUEHAUF TRAILER CO. 211
makes no claim that the UAW contract did not continue in full force and effect
after the sale of Boyle. UAW made manifest its position after the sale by pressing
the grievances that resulted in the Aaron and Kagel awards. Respondent was
clearly recognizing this continuing interest, as well as its own obligation under
the contract, in calling the October 16 meeting for the specific purpose of bar-
gaining with UAW when it appeared that the Larc work might be undertaken at
the Long Beach facility. Prior to Larc there had been a general pickup in MPD
business at Slauson, but as Vice President Black explained it, the Larc contract
was "the biggest thing that hit us." The October 16 meeting thus stands as a
clear expression by Respondent that "the biggest thing" in its MPD future was
something in which UAW shared a clear and present interest.
In the face of all this, however, we find Respondent within the next 3 months
extending the AIW contract to Fullerton without further notice to UAW. This
occurred despite the fact that the precipitating factor in selecting Fullerton was that
it was a suitable location for the Larc work. That it could also accommodate other
MPD operations appears more as a happy coincidence than as a controlling moti-
vation. Respondent defends its conduct by claiming that it owed no responsibility
to UAW under the Trauernicht letter because Fullerton was in Orange and
not Los Angeles County, and that the move constituted a mere relocation of
Slauson and nothing more 21
Respondent's defense on contractual grounds may or may not have validity,
but it does not necessarily also serve as a statutory defense if the overall circum-
stances show sufficient change in the nature of the operation to constitute a new
unit . Both the relocation and the accretion doctrines rest on the absence of sub-
stantial change in the nature of the unit. Whether a real change in nature has
taken place turns on an evaluation of a variety of surrounding circumstances. For
many years Respondent had been considering various possibilities as to future
operation of MPD. Until the sale of Boyle it had conducted MPD operations with
two separate units at two separate locations represented by two separate unions.
No doubt when both units functioned, normal accretions of work at either location
would have accrued to the benefit of its respective bargaining representative. No
doubt too had Respondent at such time undertaken to merge or consolidate the two
units at a single location, the new location would have constituted a new operation
different from either one, and under the General Extrusion tests set forth above,
the move would have been regarded as such a change in the nature of the operation
that an attempt to extend the contract of either union to the combined operation
without a Board determination of the representation issue would have constituted
unlawful assistance . The Board has recently decided a case in which substantially
this occurred. Schreiber Trucking Company, Inc., 148 NLRB 1697. In Schrei-
ber, the employer had two facilities located some distance apart, each one of which
was represented by a different union . The employer built a new facility located
equidistant between the two, with the intention of closing down both of the old
operations and working exclusively from the new facility. Before the old operations
had been transferred, however, the employer amended its contract with one of the
unions to extend its coverage to the new facility. This was done in the face of
knowledge that the other union was also claiming an interest in representation of
employees there. The employer argued that, in effect , the new facility was an
accretion or a relocation of the old unit. The Board held that where the evidence
established the move to be for the purpose of consolidating two separate operations,
it amounted to the creation of an entirely new operation. Thus it held that where
the employer was aware of the interests of the other union in representing employ-
ees in the new unit, it was charged with knowledge of the existence of a substantial
question concerning representation, and, in the face of this, for it to extend its
contract to one union constituted unlawful assistance . The situation in the instant
case would be identical had the UAW unit work at Boyle still been going on at the
time of the move to Fullerton. Considering the entire background, however, can it
be said that by the time of the Fullerton move UAW's interest in the change was
substantially diminished, let alone nonexistent? With the sale of Boyle, UAW's
long-standing interest in future MPD production continued to be recognized both
21The Trauernicht letter does limit Respondent's obligation to Los Angeles County.
Presumably this provision was inserted for the purpose of assuring that the geographical
area of Respondent's obligation to bargain about new facilities would be limited to a
reasonable scope. The location in Fullerton, while across the county line, appears on the
map as little, if any, farther from either Boyle or Slauson than the Los Angeles County-
Long Beach situs which Respondent had been seriously considering for Larc.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a matter of contract and practice. It did not even undergo a period of dormancy,
but was kept alive by continued unit work at Boyle, and by the processing of griev-
ances under the contract. The Larc contract amounted to a new lease on life for
MPD, and Respondent was hardly unaware of UAW's interest in participating in
any benefit which might accrue to it as a result. Indeed, Respondent expressly
recognized such continuing interest when considering a Los Angeles County situs
for the Larc work. A decision made only a short time later to locate at a point
no farther away but across a county line scarcely seems an adequate explanation
for disregarding the UAW's interest, or for denying that in reality the move to
Fullerton constituted a consolidation or merger of all previous MPD operations.
All the surrounding circumstances characterize the move far more as the fulfillment
of a long-considered possibility of consolidating all MPD operations at one location
than as a mere relocation of Slauson. It came about because a suitable location
was needed for Larc and the one found would also encompass all other MPD
work. It is happenstance that the location was in Orange not Los Angeles County.
Though the UAW's MPD work had phased out at Boyle, UAW's continuing interest
in MPD work generally had not phased out anywhere and was still being recog-
nized by Respondent. Under the circumstances I regard the situation as substantially
parallel to that presented in Schreiber and find the fact that Boyle was not func-
tioning at the time of the move to be irrelevant. I find, therefore, that by the move
to Fullerton Respondent did change the nature of its operation, did merge what
had previously been two separate operations, and did create a new unit at Fuller-
ton to carry on the new consolidated operation. In such a situation, its contract with
neither AIW nor UAW could have constituted a bar had a representation petition
been filed. Where in the face of a rival claim, Respondent undertook to extend
contract coverage to AIW alone, it engaged in unlawful assistance to AIW, and
thereby violated Section 8(a) (2) of the Act, and I so find 22
The General Counsel adduced considerable testimony and introduced much
documentary evidence concerning the Hanson acquisition which took place after
the Fullerton operation was under way. Apparently, the purpose of this evidence
was to emphasize that the Fullerton unit had a substantially different character
from the Slauson unit. While the Hanson acquisition did result in a substantial
expansion at Fullerton, it came after the move had been made, and I fail to see it
as changing the nature of the already established Fullerton unit. In view of my
findings above with regard to the Fullerton unit, I see nothing in the later Hanson
acquisition which either adds or detracts from other aspects of the General Coun-
sel's allegation of unlawful assistance and I deem it unnecessary to make further
findings in regard to it. While on this record it is not established that Respondent
had knowledge of the prospective Hanson acquisition before making the decision
on the Fullerton move, I would not regard possession of such knowledge or even
evidence that it influenced the decision as affecting the conclusions I have reached.23
The vice of Respondent's conduct was extending the contract coverage to a new
unit in the face of conflicting claims. The later acquisition of Hanson, in spite of
its immediate effect on the size of the unit, in no way influences this, and I so find.
3. The alleged discriminatory refusals to hire
The charges of discrimination rest on the proposition: (a) that ex-Boyle employ-
ees either applied for or were not required to apply for employment at Slauson or
Boyle; and (b) that Respondent failed or refused to hire such employees at these
plants because of their membership in UAW, or because it sought to prevent UAW
from becoming the statutory representative of employees at either Slauson or Fuller-
ton. In addition, the General Counsel alleges discrimination against employees by
Respondent's action in extending the coverage of the AIW contract at Bandini and
Fullerton.
To sustain the charges of individual discrimination it must be shown that applica-
tions were either made, or that by its conduct Respondent either waived the need
22 3fidwest Piping and Supply Co., Inc., 63 NLRB 1060; Novak Logging Company, 119
NLRB 1573.
23 The Charging Party offered to prove that at least one of Respondent's local officials
knew of the possibility of the Hanson acquisition before the decision to acquire Fullerton
was made. The offer of proof was rejected on grounds that such evidence would be im-
material. I affirm this ruling, for at the most, if Respondent had such knowledge, it would
only serve to give some added emphasis to the fact that the move involved a change in the
nature of the unit rather than a mere relocation.
FRUEHAUF TRAILER CO. 213
for making them or was in some manner under some obligation to call back
ex-Boyle employees, and it failed or refused employment on unlawful grounds.
As recited above, there is no direct showing of individual employment appli-
cations by any of the ex-Boyle employees. A small number presumably did apply,
and either obtained or were offered employment. It was also stipulated that others
applied and were not given employment. Neither the number so applying nor the
reasons given for refusing to employ them appears in the record. Since no indi-
vidual applications are shown, it must be established that Respondent had some
duty to recall either by contract or because circumstances show it waived or other-
wise indicated applications to be unnecessary or futile. The UAW contract accords
recall rights only at Boyle should it be reactivated. At the April 3, 1963, meeting
UAW asked Respondent neither to take, nor to waive the taking of, applications
for employment at other plants. UAW was merely told that Boyle applications at
Slauson would be considered "upon the basis of their qualifications." This hardly
suggests a waiver. No further efforts by UAW relating to applications at Slauson
appear to have been subsequently made. Fullerton was not yet in the picture at
the time of the October 16 meeting between Respondent and UAW. At the time,
however, Respondent indicated that it would consider ex-Boyle people on the
basis of qualifications even if agreement relating to the new Larc work "could
not be reached." Nothing more was asked or stated about applications or waivers
thereof at this time.
The sole remaining basis for establishing the waiver rests on the testimony of
Medina supported in some measure by similar testimony of Makshanoff . On both
occasions , when Medina talked with Bronson about employment at Slauson, Medina
was speaking specifically about his own personal case since each time he was in
temporary layoff status from his maintenance, job at Boyle. The record shows
there to have been AIW employees at Slauson with recall rights on each occasion
and Medina to have been so advised. The'same was true with regard to Bronson's
conversation with Makshanoff. Medina, although chairman of the UAW com-
mittee, undertook no other efforts to explore ways and means for ex-Boyle employ-
ees to place themselves in a favored position should employment open up Medina
states that he reported Bronson's statement about the applications to the union
membership. Assuming that he did so, such report becomes meaningless unless it
be further shown that some employees acted in reliance upon it. When Medina
was questioned by Bronson at Fullerton in March 1964, he was specifically told
that ex-Boyle employees did not have applications in there, that no employment
was then available, and that Respondent was not taking applications at the time.
In view of the number of hires in March at Fullerton, it would appear that each
of these statements was true. Again there is no showing that either Medina or
anyone else in UAW pursued the subject further in connection with seeking employ-
ment at Fullerton, for ex-Boyle employees.
None of the foregoing suggests either a waiver of applications or conduct upon
the part of Respondent calculated to convince ex-Boyle employees generally that
applications for employment would be a futile gesture. On the contrary, it appears
that at all times when UAW directly brought up questions of employment of
ex-Boyle employees, Respondent expressly stated that they were entitled to no spe-
cial status, but made it clear that it would consider them for employment upon
the basis of their qualifications. This suggests the need for applications rather
than a waiver thereof. The remarks of Bronson to Medina and Makshanoff,
assuming they were made in the manner that each states, were made in a context
of the individual requests of each, and scarcely suffice to offset official union
requests or to show a general disposition upon the part of Respondent regarding
all ex-Boyle employees. Accordingly, I find that General Counsel has not estab-
lished that Respondent was obligated to accord ex-Boyle employees special con-
sideration for employment at Slauson or Fullerton, or that applications were
waived or otherwise made to appear unnecessary.
Absent evidence of individual application or waiver thereof, little basis exists for
establishing discrimination. The General Counsel urges, however, that the huge
discrepancy between the mere handful of Boyle employees who went to work at
Slauson or Fullerton, in contrast with the great number of new hires, warrants an
inference of discriminatory treatment. At least General Counsel would argue' to
this effect when this discrepancy is set against a pattern showing an unlawful refusal
to bargain over the sale of Boyle, unlawful assistance to AIW at both Bdndini and
Fullerton, and independent incidents showing union animus. The discrepancy in
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
numbers is great, it is true, but it alone does not suffice to establish unlawful moti-
vation . Countless lawful and reasonable explanations may exist for the failure of
ex-Boyle employees to have been employed, and the burden falls on the General
Counsel to establish that Respondent selected an unlawful one. Since I have found
the evidence of union animus to be trivial , the refusal to bargain to have no merit,
and the Bandini extension to be lawful , none of these are matters which lend any
support at all to the inference . This leaves only the unlawful assistance at Fuller-
ton which I have found to exist. I regard this , however, as adding little more.
While it may show that Respondent favored and supported AIW as the bargaining
representative at Fullerton , it does not necessarily follow that Respondent , having
engaged in one type of unlawful conduct, would necessarily go further and refuse
to employ ex-Boyle employees. On the contrary, having vested AIW with status
as bargaining representative, it might well have concluded that it had achieved all
needed unlawful objectives and been more than willing to bring in all ex-Boyle
employees and place them under the AIW contract umbrella. Thus, we return
again to the mere discrepancy in numbers as a basis for inferring unlawful motiva-
tion. Standing alone it does not show that a single ex-Boyle employee who applied
for a job at either Slauson or Fullerton was turned down for such job either
because he was a member of UAW or for any other reason. The showing that
some ex-Boyle employees sought jobs and were turned down for undisclosed rea-
sons, no more establishes discriminatory motivation , than would the fact that
some ex-Boyle employees were hired establish that Respondent was favoring UAW.
Without more , I am satisfied that the General Counsel, by showing only the mere
discrepancy in numbers of hires even when coupled with the unlawful assistance to
AIW, has not established that Respondent was discriminatorily motivated in fail-
ing or refusing to employ any of the individual ex-Boyle employees named in the
complaint . Accordingly , I find the 8 ( a)(3) allegations with respect to such employ-
ees to be without merit.
The allegation of discrimination against employees based on extension of the
AIW contract to Fullerton , however , rests on a different basis. At Fullerton, con-
trary to the situation at Bandini where I found the extension of the contract cov-
ered an accretion to an existing unit, I found the extension of the contract to con-
stitute unlawful assistance . Since the extended contract contained union security
provisions , it was lawful only where such provisions were lawfully imposed upon
the employees . Where a union security contract is imposed as the result of unlaw-
ful assistance, as at Fullerton, it has the effect of requiring all employees coming
to work to join the assisted union. It is well established that the imposition of such
a requirement by a contract with an assisted union will encourage membership in
such union and discourage membership in any other labor organization and thus
it constitutes discrimination within the meaning of the Act 24 Accordingly, I find
that by extending the AIW contract with its union security provisions to Fullerton
under the circumstances outlined above , Respondent has discriminated against
employees in violation of Section 8(a)(1) and (3) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent as set forth in section III, above, occurring in con-
nection with the operations of Respondent as described in section 1, above, have a
close, intimate , and substantial relation to trade, traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1), (2 ), and (3 ) of the Act , I shall recommend that it cease and
desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent violated the Act by extending coverage of the
AIW contract to Fullerton, thus recognizing AIW as the statutory representative
for employees at Fullerton , I will recommend that Respondent withdraw and with-
=4 Schreiber Trucking Company , Inc., supra; Barney 'Wilkerson Construction Company,
145 NLRB 704.
FRUEHAUF TRAILER CO. 215
hold recognition from AIW unless and until the Board shall certify it as such
representative , and that Respondent cease giving effect to the collective -bargaining
agreement executed with AIW in November 23, 1963, or to any modification , exten-
sion, renewal , or supplement thereto.
Having found no discrimination against any individual ex-Boyle or other
employee, and the only discriminatory conduct of Respondent to have resulted
from the unlawful imposition of the union security contract affecting employees
generally at Fullerton , I shall order no reinstatement or backpay since the discrim-
ination found will be remedied adequately by setting aside the agreement.25
I am convinced that Respondent's conduct resulted primarily from the unusual
facts presented in this case rather than from any general disregard of employee
statutory rights, and that the record does not disclose any danger of commission
of additional unfair labor practices . Accordingly, I do not deem it necessary to
recommend a broad cease and desist order in order to effectuate the policies of
the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case I make the following:
CONCLUSIONS OF LAW
1. By extending the AIW contract to cover employees at Fullerton, and by
recognizing AIW as the representative of such employees at a time when a real
question concerning representation existed with respect to such unit , Respondent
has rendered unlawful assistance and support to AIW, and thereby has engaged
in unfair labor practices within the meaning of Section 8(a)(2) of the Act.
2. By applying the AIW union security contract to the employees at Fullerton,
Respondent has discriminated with respect to their hire , tenure, and terms and
conditions of employment, thereby encouraging membership in AIW and discour-
aging membership in other labor organizations , and thus has engaged in unfair
labor practices within the meaning of Section 8(a)(3) of the Act.
3. By the foregoing conduct and by interfering with , restraining , and coercing
employees in the exercise of the rights guaranteed in Section 7 of the Act, as found
above, Respondent has engaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Respondent did not engage in an unlawful refusal to bargain with UAW
within the meaning of Section 8 (a)(5) of the Act.
6. Respondent did not engage in unlawful assistance to AIW in connection with
the Bandini acquisition within the meaning of Section 8 (a)(2) of the Act.
7. Respondent did not engage in unlawful discrimination against individual
employees by its failure or refusal to employ them within the meaning of Sec-
tion 8 (a)(3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in this proceeding , I recommend that Respondent , Fruehauf
Trailer Company , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Giving unlawful assistance or support to International Union, Allied Indus-
trial Workers of America, AFL-CIO , and Local No. 976 , affiliated with Interna-
tional Union Allied Industrial Workers of America, AFL-CIO , or to any other
labor organization.
(b) Recognizing AIW as the exclusive representative of any of its employees
in the bargaining unit at the Fullerton plant for collective -bargaining purposes
within the meaning of the Act.
25 The Charging Party urges a remedy of reinstatement and backpay based upon a finding
of 8(a )( 2) assistance alone. I see no basis for such a remedy absent corollary findings of
discrimination . The Charging Party also suggests a reimbursement of compulsory dues
remedy. The Board has held that absent a showing that employees were coerced into join-
ing or paying by some means other than the unlawful contract with the assisted union,
such remedy is not appropriate . No such showing is made here . Duralite Co., Inc., 132
NLIiB 425.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Giving any force or effect to the collective-bargaining agreement executed
with AIW on November 23, 1963, or to any modification, extension, renewal, or
supplement thereto, provided, however, that nothing herein shall require Respond-
ent to vary or abandon any wage, hour, seniority, or other substantive feature of
its relations with its employees which has been established in the performance of
this agreement, or to prejudice the assertion by employees of any rights they may
have thereunder.
(d) Encouraging membership in AIW or any other labor organization and dis-
couraging' membership in UAW by imposing the union security provisions of the
AIW contract at Fullerton, or otherwise discriminating in regard to their hire,
tenure, or terms or conditions of employment.
(e) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their right to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, to engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, or to refrain from any or all such activities
except to the extent that such right is affected by the provisions of Section 8(a)(3)
of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Withdraw and withhold all recognition from AIW as the collective-bargaining
representative of any of its employees in the Fullerton unit, setting aside any
currently effective collective-bargaining agreement with AIW, unless and until the
Board shall certify AIW as such representative.
(b) Post at its Fullerton premises copies of the attached notice marked "Ap-
pendix." 26 Copies of said notice to be furnished by the Regional Director
for Region 21, after being duly signed by an authorized representative of Respond-
ent, shall be posted by it immediately upon receipt thereof, and be maintained by
it for a period of 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director for Region 21, in writing, within 20 days
from the date of this Recommended Order, what steps Respondent has taken to
comply herewith.27
IT IS FURTHER RECOMMENDED that, unless on or before 20 days from the date
of its receipt of this Trial Examiner's Decision, Respondent notifies the Regional
Director, it will comply with the foregoing recommendations, the National Labor
Relations Board issue an order requiring Respondent to take the action aforesaid.
28 In the event that this Recommended Order is adopted by the Board the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order is enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision
and Order"
' In the event that this Recommended Order is adopted by the Board, paragraph 2 (c)
thereof shall be modified to read "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondent is taking to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL withdraw and withhold all recognition from International Union,
Allied Industrial Workers of America, AFL-CIO, and Local 976, affiliated with
International Union, Allied Industrial Workers of America, AFL-CIO, as the
collective-bargaining representative of any of our employees in the bargain-
ing unit at our Fullerton plant unless and until such organization is certified
by the National Labor Relations Board.
MILLWRIGHTS LOCAL 1102 217
We WILL NOT give any force or effect to the collective -bargaining agreement
executed by us on November 23, 1963, with the above -named labor organiza.
tion or to any modification , extension , renewal , or supplement thereto.
WE WILL NOT encourage membership in the above -named labor organization
or discourage membership in Local 509, International Union of United Auto-
mobile, Aerospace and Agricultural Implement Workers of America, AFL-
CIO, or any other labor organization , by discriminating with respect to the
hire, tenure, and terms and conditions of employment of any employees.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-organization , to form,
join, or assist any labor organization , to bargain collectively through repre-
sentatives of their own choosing , to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protection, or to
refrain from any or all such activities , except to the extent that such rights are
affected by an agreement requiring membership in a labor organization as
authorized in Section 8(a)(3) of the Act.
FRUEHAUF TRAILER COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
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.
If employees have any question concerning this notice or compliance with its pro -
visions, they may communicate directly with the Board 's Regional Office, 849 South
Broadway , Los Angeles , California , Telephone 688-5229.
Millwrights Local Union 1102 , United Brotherhood of Carpenters
and Joiners of America , AFL-CIO and Dobson Heavy Haul,
Inc. and Darin & Armstrong , Inc. Cases 7-CC-329 and 333.
December 16, 1966
DECISION AND ORDER
On June 17, 1966, Trial Examiner William W. Kapell issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Trial Examiner 's Decision and a supporting brief. The General
Counsel and Charging Party filed limited exceptions to the Trial
Examiner's Decision and briefs in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three -member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
162 NLRB No. 6.