Houston Chronicle Publishing Co.

National Labor Relations Board - Board Decisions

Nov 1, 1972

199 N.L.R.B. 1259 (N.L.R.B. 1972)

HOUSTON CHRONICLE PUBLISHING CO. 1259
Houston Chronicle Publishing Company and Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America, General Drivers,
Warehousemen & Helpers Local Union No. 968.
Case 23-CA-4122
November 1, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On February 28, 1972, Trial Examiner Max Ro-
senberg issued the attached Decision in this proceed-
ing. Thereafter, the Respondent filed exceptions and
a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the
Trial Examiner's Decision in light of the exceptions
and brief and has decided to affirm the Trial
Examiner's rulings, findings, and conclusions, to the
extent consistent herewith.
The Trial Examiner has found that by refusing to
allow the Union to execute the collective-bargaining
contract agreed upon on May 11, 1971, by its conduct
on August 30, 1971, and September 6, 1971, Respon-
dent has violated Section 8(a)(1) and (5) of the Act.
He further found that by refusing to recognize and
bargain with the Union on October 7, 1971, during the
certification year and in the absence of unusual cir-
cumstances, Respondent further violated Section
8(a)(1) and (5) of the Act.
We disagree with the Trial Examiner's findings
and conclusions regarding the 8(a)(5) violations
which the Trial Examiner found occurred on August
30 and September 6. There is no evidence in the rec-
ord that will support findings and conclusions that on
August 30 and again on September 6 the Respondent
failed and refused to permit the Union to sign the
agreed-upon contract. The only evidence pertaining
to the August 30 date is a statement in a letter written
on October 11, from James P. Wolf, attorney for the
Union, to Attorney Brown, Respondent's counsel,
which states, "on or about the week of August 30,
1971, the Union representative called Whitmire and
told him he was ready to, sign the contract. He told the
Union representative that he was busy and would call
and give him an appointment when he could come in
and sign the contract." This single statement in the
union attorney's letter to the Respondent's attorney is
not evidence establishing that such events did occur
or that Respondent refused to permit the Union to
sign the agreement, nor is it otherwise sufficient, in
our view, to ground an 8(a)(5) violation of the Act.
As to the September 6 date, the record shows that
the parties stipulated as follows:
The parties hereto stipulate that on or about
September 6 union representative Ted Garcia
presented himself to the offices of the Chronicle
without prior appointment. The parties further
stipulate that if Ted Garcia were called as a wit-
ness by counsel for the General Counsel he
would testify that he went to the Chronicle to see
Don E. Whitmire for the purpose of executing
the collective bargaining agreement. G.C. Exhib-
it 8, and to have a date affixed thereto.
The parties did not meet. And respondent
does not stipulate to the truth of Mr. Garcia's
testimony.
Mr. Garcia did not appear at the proceedings to
testify.
Mr. Whitmire testified as follows:
Q. All right, sir. Now, when Mr. Garcia
came in the office did he leave any message for
you?
A. Yes, the receptionist called me on the
phone and said Mr. Garcia was there, and at that
time I had several people in my office. I told her
to inform him that I was in conference and I
didn't know when I would get to see him. And
apparently she did inform him of this.
Whitmire further testified:
A. Anyway, when I got through with the
conference I came out and Mr. Garcia was not
there.
Q. All right, sir. Did you thereafter under-
take to get in touch with Mr. Garcia?
A. Yes, -Sir, I tried to call Mr. Garcia by
telephone on several occasions. I know at least
once after he was in the office and several times
prior to his coming to the office.
From the above record stipulation and testimony
of Mr. Whitmire we are unable to find that Garcia
requested an audience for the purpose of executing
the contract, and that such request was communicat-
ed to and refused by Whitmire. Therefore, we are
unable to find that, on September 6, Respondent did
unlawfully refuse to permit the Union to sign the
agreed-upon contract.
However, on October 7, Respondent, through
Attorney Brown, unequivocally announced that it
would not request the Union to execute the outstand-
ing labor agreement because it had learned that a
majority of its employees no longer desired represent-
ation by the Union. Inasmuch as this announcement,
combined with its questioning of the Union's majority
status, made patently clear that Respondent had no
intention of allowing the Union to execute the agreed-
199 NLRB No. 174
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon contract , we find that on October 7 Respondent
clearly violated Section 8 (a)(5) by refusing to permit
the Union to sign the agreement . Moreover , we also
agree , for the reasons set forth by the Trial Examiner,
that on October 7 Respondent further violated Sec-
tion 8(a)(5) of the Act by failing and refusing to bar-
gain with the Union during the certification year,
despite the fact that no unusual circumstances existed
to justify this action.
Contrary to our dissenting colleague , we do not
believe that the fact that the Union , the Charging
Party in this case , has been found to have failed to
fulfill its bargaining obligations in a previous case, by
refusing to execute a collective -bargaining agreement
negotiated by it and Respondent on or about May 11,
1971, constitutes such unusual circumstances as to
justify Respondent's refusal to recognize the Union as
the employees' exclusive representative . We note that
Respondent , as charging party in the earlier case, ob-
tained a successful prosecution of its claim that the
Union was required to execute that contract . An order
to that effect issued as a remedy not only to the injury
suffered by Respondent , but also as a remedy for the
infringement upon employee rights and furtherance
of the public interest in encouraging and fostering and
the practice and procedures of collective bargaining.
Upon the issuance of the Trial Examiner 's decision in
the prior case the Union , respondent therein, notified
the Board's Regional Office that it would comply with
the decision . The Regional Office in turn notified Re-
spondent that the Union was ready and willing to
execute the contract , but the Respondent then noti-
fied the Union that it would not request the Union to
sign the contract and simultaneously challenged the
Union's majority status . Such action not only makes
a mockery of the prior proceeding it frustrates the
remedial aspects of the order issued against the Union
as well as the policies underlying the Board 's certifica-
tion year rule. The fact that the Union may have lost
its majority as a result of its unfair labor practice
would not justify the Union 's refusal to execute the
agreement . It is difficult to see how the same assumed
loss of majority can be treated as justification for
Respondent to deny to its employees the fruits of the
collective-bargaining agreement negotiated on their
behalf . We therefore cannot agree with our
colleague 's proposal to remand this case for a hearing
on the issue of the Union 's majority status.
THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices , we shall order that it
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act. To remedy Respondent 's unlawful refusal to al-
low the Union to execute that contract agreed upon
on May 11, 1971, we shall order that Respondent,
within 5 days from the date of receipt of this Decision,
notify the Union that Respondent requests that the
Union execute said contract . To further remedy
Respondent's unfair labor practices , we shall order
that Respondent reimburse the employees , with 6-
percent interest per annum thereon , for the loss of any
benefits which would have accrued to them under the
contract from October 7, 1971, the date on which
Respondent illegally refused to allow the Union to
execute the agreement , to the date on which Respon-
dent notifies the Union that Respondent has no objec-
tion to the execution thereof.'
In order to insure that the employees in the ap-
propriate unit will be accorded the services of their
selected bargaining agent for the period provided by
law, we shall construe the extended period of certifi-
cation as beginning on the date Respondent complies
with the terms of our Order herein. See Mar Jac Poul-
try Company, Inc., 136 NLRB 785; Burnett Construc-
tion Company, 149 NLRB 1419 , 1421, enfd . 350 F.2d
57 (C.A. (C.A. 10).
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board hereby orders that the Respondent,
Houston Chronicle Publishing Company, Houston,
Texas , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain with Inter-
national Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America, General Driv-
ers, Warehousemen & Helpers Local Union No. 968,
as the exclusive representative of, all loading dock
workers employed by Respondent at its Houston,
Texas , plant, excluding all other employees , office
clerical employees , inside and outside salesmen,
guards , and all supervisors as defined in the Act, by
declining to allow said Union to execute a contractual
labor agreement already agreed upon, and by refusing
to recognize and bargain with the Union during its
certification year, absent unusual circumstances.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise
of their rights to self-organization, to form labor or-
ganizations , to join or assist the above-named Union
or any other labor organization , to'bargain collective-
ly through representatives of their own choosing, and
to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protec-
' See Shill Steel Products, Inc., 161 NLRB 939, 941.
HOUSTON CHRONICLE PUBLISHING CO.
tion, or to refrain from any or all such activities.
2. Take the following affirmative action which we
find is necessary to effectuate the policies of the Act.
(a) Recognize and bargain collectively with In-
ternational Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, General Driv-
ers, Warehousemen & Helpers Local Union No. 968,
by notifying said Union, within 5 days from the date
of receipt of this Decision, that Respondent requests
that the Union execute the collective-bargaining con-
tract agreed upon on May 11, 1971.
(b) Reimburse all employees covered by the
aforesaid contract, together with 6-percent interest
per annum thereon, for the loss of any benefits which
would have accrued to them under the contract from
October 7, 1971, to the date on which Respondent
notifies the Union that it has no objection to the exe-
cution of the agreement.
(c) Upon request, bargain with the above-named,
labor organization as the exclusive "representative of
all employees in the aforesaid appropriate unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment.
(d) Post at its plant in Houston, Texas, copies of
the attached notice marked "Appendix."2 Copies of
said notice, on forms provided by the Regional Direc-
tor for Region 23, after being duly signed by
Respondent's representative, shall be posted by it im-
mediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employ-
ees 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 23,
in writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
CHAIRMAN MILLER , dissenting in part:
I concur with- the factual analysis of my col-
leagues . However, I would remand for findings as to
whether, on and after October 7, the employees had
indicated a desire no longer to be represented by the
Union-or, as we usually phrase it, whether there
were objective considerations justifying Respondent's
refusal to bargain on and after October 7.
When a union , as here, has failed to fulfill its
bargaining obligations, it is my view that the resulting
situation presents "unusual circumstances" which re-
quire us to look behind our usual certification-year
rule. That rule of decision has its roots in our concern
for industrial relations stability, and proceeds on the
theory that a newly formed relationship should be
given an opportunity to work, even at the price of
depriving employees of their usual freedom to change
or reject their bargaining agent . Where the exclusive
1261
agent has failed to measure up to the normal stan-
dards for bargaining in good faith, I see little point in
our maintaining such an understandably unwanted
agent in power by our administrative fiat.
Z In the event that this Order is enforced by a Judgment of a United States
Court of Appeals , the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL recognize and bargain collectively
with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of Ameri-
ca, General Drivers, Warehousemen & Helpers
Local Union No. 968, by notifying said Union,
that we request the said Union execute the collec-
tive-bargaining contract agreed upon by us on
May 11, 1971.
WE WILL reimburse all our employees cov-
ered by the contract, together with 6-percent in-
terest per annum thereon, for the loss of any
benefits which would have accrued to them un-
der the contract from October 7, 1971, to the date
on which we request the Union to execute the
contract.
WE WILL, upon request, bargain with the
above-named Union, as exclusive representative
of all employees in the bargaining unit described
below, with respect to rates of pay, wages, hours,
and other terms and conditions of employment.
The bargaining unit is:
All loading dock workers employed by
Respondent at its Houston, Texas, plant, ex-
cluding all other employees, office clerical em-
ployees, inside and outside salesmen, guards,
and all supervisors as defined in the Act.
All our employees are free to become or refrain
from becoming members of the Union or any other
labor organization.
Dated By
HOUSTON CHRONICLE PUBLISHING
COMPANY
(Employer)
(Representative) (Title)
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, Fourth Floor, Dallas-Brazos Building,
1125 Brazos Street, Houston, Texas 77002, Telephone
713-226-4296.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAX ROSENBERG , Trial Examiner: With all parties rep-
resented, this case was tried before me in Houston, Texas,
on December 9, 1971, on complaint of the General Counsel
of the National Labor Relations Board and an answer filed
thereto by the Houston Chronicle Publishing Company,
herein called the Respondent.' The issue raised by the
pleadings is whether Respondent violated Section 8(a)(5) of
the National Labor Relations Act, as amended, by refusing
to allow International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, General Driv-
ers, Warehousemen & Helpers Local Union No. 968, herein
called the Union, to execute an agreed-upon collective-bar-
gaining agreement, thereby repudiating said agreement, and
by thereafter questioning the Union's majority status during
the certification year. Memoranda have been received from
the General Counsel, the Union, and Respondent, which
have been duly considered.
Upon the entire record made in this proceeding, in-
cluding my observation of the only witness who testified, I
hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
1. BUSINESS OF RESPONDENT
Respondent, a Texas corporation with its principal
office and place of business located in Houston, Texas, is
engaged in the publication of a daily newspaper. During the
annual period material to this proceeding, Respondent held
membership in, or subscribed to, various interstate news
services, including, but not limited to, the Associated Press,
the United Press, and published nationally syndicated fea-
tures. Gross revenues from said publishing operations ex-
ceeded $200,000. The complaint alleges, the answer admits,
and I find that Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
1 The complaint, which issued on October 14, 1971, is based on a charge
III THE ALLEGED UNFAIR LABOR PRACTICES
The General Counsel alleges that Respondent violated
Section 8(a)(5) of the Act by refusing to allow the Union to
execute an agreed-upon collective-bargaining agreement on
August 30, 1971,2 and again on September 6, and by ques-
tioning the Union's majority status on October 7, a date
which fell within the certification year. For its part, Respon-
dent denies the commission of any unfair labor practices.
The facts are not in dispute and I find them to be as
follows:
On November 20, 1970, man election conducted by the
Board among a unit of all loading dock workers employed
by Respondent, exclusive of all other employees, office cler-
ical employees, inside and outside salesman, guards, and
supervisors as defined in the Act, the Union was designated
by the employees as their representative for the purposes of
collective bargaining. On December 1, 1970, the Regional
Director for Region 23 afforded the Union a certificate of
representation. On the latter date, Respondent and the Un-
ion entered into contractual negotiations which culminated
in a collective-bargaining agreement on or abour May 11.
A copy of this agreement, which was received in evidence,
embodied a "SECTION 20" which recited that "This
Agreement shall be in full force and effect from
, 1971, to and including March 5, 1972,
unless extended by mutual agreement."
The contract was signed by D. E. Whitmire,
Respondent's employee relations director, and James G.
Culpepper, another company official. On May 14, the Un-
ion refused to sign the document. This refusal prompted
Respondent to file unfair labor practice charges against the
Union on May 25 alleging that the latter violated Section
8(b)(3) by failing to approve the contract, and a complaint
thereon issued on July 1. Following a hearing on the issue
presented, on September 22, Trial Examiner Eugene F. Frey
rendered a decision in which he found that the Union un-
lawfully refused to bargain collectively with Respondent.
He ordered the Union to execute the agreement reached by
the parties on May 11.
Meanwhile, on September 6, Ted Garcia, the Union's
vice president and business agent, made an unscheduled
visit to Respondent's offices in an attempt to contact Whit-
mire and sign the agreement. Garcia announced his pres-
ence to Whitmire's receptionist and requested an audience
with Whitmire for the purpose of executing the contract.
The receptionist telephoned her superior who informed her
that he was in conference with several individuals and that
he was unable to gauge when he would be finished. The
receptionist relayed this information to Garcia who then left
the premises. When the conference was concluded, Whit-
mire entered the outer office but Garcia had already depart-
ed. It is uncontradicted and I find that, on one occasion
after this date, Whitmire unsuccessfully attempted to con-
tact Garcia telephonically.
On September 23, Garcia dispatched a letter to Whit-
mire which stated:
I have contacted your office by telephone for the last
month or month and a half in an attempt to make an
filed and served on October 12, 1971. 2 Unless otherwise indicated , all dates herein fall in 1971.
HOUSTON CHRONICLE PUBLISHING CO. 1263
appointment with you for the purpose of dating the
contracts. I have also talked to Mr. Culpepper and he
assured me that he was going to set up an appointment.
The early part of the week of the 24th I came by your
office and your secretary said that she reached you by
telephone, and you informed her you could meet with
me then, but that you were going to call me back at my
office. It has been three days and I have not heard from
you. I have been willing to sign this contract since the
latter part of June, or the first of July, but I have never
been able to contact you for an appointment to execute
the dates of the confirmed contract.
Therefore, I am asking you to set up an appointment
at your convenience, so we can take care of this prob-
lem.
By letter dated September 28, Whitmire, referring to
Garcia's earlier communication, replied that "I have re-
turned each of your telephone calls and you were reported
unavailable. I left a message each time requesting you be
informed that I had called. Our attorney, Mr. Brown, just
recently received the NLRB Trial Examiner's decision and
has advised us to wait until he has had an opportunity to
study it and advise us of the appropriate action that should
be taken. I am hopeful this reply will answer any questions
you may have at this time."
On September 30, Van R. Jones, the Region's compli-
ance officer for the Board, wrote to Attorney Brown advis-
ing that the Union had agreed to comply with the terms of
Trial Examiner Frey's Decision and Order and was willing
to execute the previously agreed-upon contract upon re-
quest by Respondent. The letter concluded, "Therefore, as
legal counsel for Houston Chronicle, it is incumbent upon
you to see that this request is made and a meeting set up for
the execution of the contract."
By letter of October 7, Attorney Brown wrote to Jones
acknowledging the latter's communication. Brown went on
to state that:
Your letter suggests that I insure The Chronicle "re-
quest" Local No. 968 to execute the contract. Our
client respectfully declines to make such a "request"
for the reasons set out below.
I have been advised by The Chronicle that The Chron-
icle employees included within the bargaining unit de-
scribed in the certification have indicated that they no
longer wish to be represented by the Teamsters Union.
I have advised'the Chronicle that those employees who
wish to seek decertification should present themselves
to the National Labor Relations Board and ask for that
relief. I am advised by The Chronicle that a substantial
majority of the employees no longer wish to be repre-
sented by the Teamsters Union and there exists a good
faith doubt on the Chronicle's part concerning repre-
sentation of such employees by the Teamsters. Under
the circumstances I have advised the Chronicle that it
should not request execution of the contract until the
question of representation is resolved."
On October 11, James P. Wolf, attorney for the Union, sent
a letter to Attorney Brown which recited:
Please find enclosed with this letter a copy of an unfair
labor practice charge against the Houston Chronicle
Publishing Company filed with the National Labor Re-
lations Board this date?
I want you to understand that the Union has been
attempting to sign the contract for sometime. In fact,
the Union was trying to sign the contract prior to the
issuance of [Trial Examiner Frey's decision].
On or about the week of August 30, 1971, the Union
representative called Whitmire and told him he was
ready to sign the contract. He told the Union represent-
ative that he was busy and would call him and give him
an appointment when he could come in and sign the
contract. In the week of September 6, the Union repre-
sentative called again and spoke to Culpepper,
Whitmire's assistant, and reminded him that he was
ready to sign their contract any time. Culpepper prom-
ised he would set up a definite time when the Union
representative could come in. On or about September
17, the Union representative went to the Chronicle of-
fice. The secretary told him Whitmire was out but she
was able to contact him by phone. She then told the
Union representative that Whitmire would call him. He
had explained to her that he was there to sign the
contract.
In addition, the Board has been informed for sometime
that the Union was willing to execute the contract with
the Employer whenever given the opportunity.
We feel, under the circumstances, that we have a bmd-
ing contract that has been in effect between us for
sometime even though the contract lacks the formality
of a signature. Please understand that the Union in-
tends to hold the Employer to the terms and conditions
of the contract. The Union also intends to press the
unfair labor practice charges until the contract is prop-
erly executed.
Attorney Brown replied to Attorney Wolf's letter on
October 18. In pertinent part, Brown wrote:
At no time during the pendency of the unfair labor
practice complaint and up until [Trial Examiner Frey's
decision of September 22, 1971] was the Union, to my
knowledge, ever willing to execute the contract. If the
Union was willing, the willingness was never communi-
cated to me and since I am the attorney for The Chron-
icle responsible for the handling of this matter then I
would have to say that the Union never made any such
willingness known.
s s s s 0
If you will review Mr. Whitmire's letter of September
28th, a copy of which is attached, you will see that
inquiry from the Union met prompt response by the
Chronicle. The Union and your office have been kept
promptly advised of The Chronicle's attitude on the
contract as you will note from my letter of October 7,
1971, a copy of which is attached. The Chronicle's
position has been fully explained to the Compliance
Officer [of the Board] and all interested parties includ-
ing yourself.
Since the Union does not now represent the employees
and since the employees are entitled to petition the
3 The charge, which triggered this litigation, was actually filed with the
Board on October 12
1264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board for decertification, I have advised The Chronicle
that there should be no request for execution of the
contract until the matter of representation is resolved.
The Chronicle continues to be ready for negotiation if
your client so desires, however.
In closing I would like to point out that the question
of representation at this date, and the right of employ-
ees to decertification at this date, has arisen because the
Teamsters Union failed and refused to bargain in good
faith for the employees it represented. During the ten
months while the Teamsters Union failed and refused
to bargain in good faith, the employees have appar-
ently concluded that they do not wish to be represented
by the Teamsters Union.
These, then, are the facts upon which the litigation
turns.
Respondent defends this action on dual grounds. First,
it asserts that Respondent was under no obligation to re-
quest the Union to sign the agreed-upon contract because
it had learned that its employees no longer desired to be
collectively represented by that labor organization. Second,
Respondent maintains that it never precluded the Union
from executing the document.
I have heretofore found that the Union was certified by
the Board on December 1, 1970. It is now horn-book law
that, absent unusual circumstances, the majority status of a
certified union is conclusively presumed for 1 year.4 Ap-
plying this precept to the instant proceedings, the Union's
majority was therefore conclusively presumed until Novem-
ber 30. It is also well-established that an employer must
bargain in good faith with a labor organization for a year
following certification even though a majority of its employ-
ees have repudiated the union during that period.5 More-
over, as the United States Court of Appeals for the Fifth
Circuit observed in N.L.R.B. v. Keystone Valve Corp.,'
" ..the filing of the petition for decertification by the em-
ployees did not destroy the bargaining status of the certified
Union, nor amount to an unusual circumstance.' [cases
omitted] The question is not whether the employer in good
faith doubts the union's continued representative status; the
employer is not relieved of its duty to bargain during the
certification year even when it is shown that a majority of
the employees may have defected from the union."
I have found that, on October 7, Respondent, through
Attorney Brown, unequivocally announced that it would
not request the Union to execute the outstanding labor
agreement because it had learned that a majority of its
employees no longer desired representation by the Union.
Inasmuch as this manifestation occurred during the Union's
certification year, and did not constitute an "unusual cir-
cumstance," I find no merit in Respondent's initial defense.
Nor do I find merit in Respondent's alternate defense.
The record clearly establishes and I have found that, on
August 30, Union Representative Garcia telephoned Em-
ployee Relations Director Whitmire replied that he was too
busy to conduct this business and promised to schedule an
apointment at a later date for this purpose. Not hearing
from Whitmire, Garcia visited Whitmire's office on Septem-
ber 6 to conclude the ministerial task of formalizing the
agreement. Although Whitmire was apprised of the purpose
of the visit, Whitmire was again unavailable to Garcia. That
Respondent had no intention of allowing the Union to exe-
cute the document is patently manifested by Whitmire's
letter to Garcia on September 28, in which he stated that
Attorney Brown "had advised us to wait," and by Attorney
Brown's letter of October 7 to Attorney Wolf, in which the
former revealed that "our client respectfully declines to
make such a 'request."'
In sum, I find and conclude that, on August 30 and,
again, on September 6, Respondent failed and refused to
permit the Umon to sign the agreed-upon contract. I further
find and conclude that, on October 7, Respondent failed
and refused to bargain with the Union during the certifica-
tion year, despite the fact that no unusual circumstances
existed to justify this action. Accordingly, I conclude that,
by the foregoing conduct, Respondent violated Section
8(a)(5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above have a close, intimate, and sub-
stantial 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 thereof.
V THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. To remedy
Respondent's unlawful refusal to allow the Union to exe-
cute the contract agreed-upon on May 11, 1971, I shall
recommend that Respondent, within 5 days from the date
of receipt of this Decision, notify the Umon that Respon-
dent requests that the Union execute said contract. To fur-
ther remedy Respondent's unfair labor practices, I shall
recommend that Respondent reimburse the employees, with
6-percent interest per annum thereon, for the loss of any
benefits which would have accrued to them under the con-
tract from August 30, 1971, the initial date on which Re-
spondent illegally refused to allow the Union to execute the
agreement, to the date on which Respondent notifies the
Union that Respondent has no objection to the execution
thereof.? I shall further recommend that the expiration date
of the contract, namely, March 5, 1972, shall be extended
for a period equivalent to the period which shall have
elapsed from August 30, 1971, to the date on which Respon-
dent affords notification to the Union of its desire that the
Union consummate the collective-bargaining agreement.8
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
r See Shill Steel Products, Inc., 161 NLRB 939, 941
4 Ray Brooks v. N.L R B, 348 U.S. 96. s Ibid
3 Holly-General Co, 129 NLRB 1098, 1003, enfd. 305 F 2d 670 (C.A. 9). In light of this recommendation, I deem it unnecessary to pass upon the
6 449 F.2d 1253, 1258 (C.A. 5), enfg. 186 NLRB No. 9. General Counsel's prayer that I extend the period of the certification year.
HOUSTON CHRONICLE PUBLISHING CO. 1265
2. The Union is a labor organization within the
meaning of Section 2 (5) of the Act.
3. All loading dock workers employed by Respondent
at its Houston, Texas , plant, excluding all other employees,
office clerical employees , inside and outside salesmen;
guards, and all supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. By refusing to allow the Union to execute the collec-
tive-bargaining contract agreed-upon on May 11, 1971, by
its conduct on August 30, 1971 , and September 6, 1971,
Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) of the Act.
5. By refusing to recognize and bargain with the Union
on October 7, 1971, during the certification year and absent
unusual circumstances , Respondent has engaged in and is
engaging in unfair labor practices within the purview of
Section 8(a)(5) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2 (6) and (7) of the
Act.
[Recommended Order omitted from publication.]