Indiana Ready Mix Corp.

National Labor Relations Board - Board Decisions

Mar 20, 1963

141 N.L.R.B. 651 (N.L.R.B. 1963)

INDIANA READY MIX CORPORATION 651
whole for any loss of pay incurred as a result of their discharge with interest
thereon at 6 percent per annum.
All our employees are free to become or remain members of the above-named
Union or any other labor organization . We will not discriminate in regard to hire
or tenure of employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such labor
organization.
MID-STATE TRUCKING SERVICE,
Employer.
Dated------------------- By-------------------------------------------(Representative ) ( Title)
NOTE.-We will notify any of the above -named employees presently serving in
the Armed Forces of the United States of their right to full reinstatement upon
application in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948 , as amended , after discharge from the Armed
Forces.
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 provisions, they
may communicate directly with the Board 's Regional Office, Room 703, 830 Market
Street, San Francisco , California, Telephone No. Yukon 6-3500, Extension 3191.
Indiana Ready Mix Corporation and Coal , Ice, Building Mate-
rial, Supply Drivers, Heavy Haulers , Warehousemen and
Helpers, Local Union No. 716, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica. Case No. 25-CA-1535. March 20, 1963
DECISION AND ORDER
On September 6, 1962, Trial Examiner C. W. Whittemore issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief.
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 Intermedi-
ate Report and the entire record in this case, including the exceptions
and brief, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
Unlike our dissenting colleagues, we agree with the Trial Examiner's
conclusions that the Union did not make an unconditional applica-
tion for reinstatement on behalf of the strikers, and therefore that Re-
spondent was under no legal obligation to reinstate the strikers and
did not violate Section 8 (a) (1) and (3) by not accepting the Union's
application.
The essential facts on this issue are as follows : On August 10, 1961,
Respondent, a newly formed corporation, took over the business of
141 NLRB No. 54.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a predecessor company, and thereafter accorded continued recogni-
tion to the Union as the exclusive bargaining agent of the employees.
After initial unsuccessful contract negotiations with Respondent on
September 1, 7, and 25, the Union called a strike on September 26, and
all seven employees of Respondent walked out. On October 13, the
Union advised Respondent orally that the men were ready to go back
to work, without at that time attaching any stated condition thereto.
However, when Respondent in response took the position that it re-
quired a 60- or 90-day no-strike guarantee to restart its business, the
Union on October 14 counteroffered in writing a no-strike guarantee
for a "thirty day period of negotiations," with it being ". . . further
agreed and understood by the parties hereto, that at the end of the
said thirty (30) day period, either party shall have the right, in the
event they cannot reach an agreement, to use all legal and economic
action they deem necessary." Moreover, when the Union by letter on
October 17 made another application for reinstatement of the strikers,
it first made reference to its prior application and the refusal thereof
and in effect repeated the terms of that application.
The two applications for reinstatement to be considered, therefore,
are the Union's written application of October 14 and its written
renewal of that application on October 17.E The Union had already
struck once after au initial approximate 30 days of negotiations with
this new employer had failed to produce agreement on a contract.
Moreover, its October 14 application for reinstatement carried with
it not only a counteroffer of a. no-strike period which was specifically
geared and confined to a "thirty day period of negotiations," but
Which further gave the Union the "right" to strike again if no agree-
ment on a contract were reached in "said thirty (30) day period."
In these circumstances, we, like the Trial Examiner, construe the
Union's October 14 application for reinstatement as in essence only an
offer of a 30-day respite in the strike unless during such period the
Union could gain an acceptable contract from Respondent. Accord-
ingly, such application, and its renewal on October 17, being condi-
tioned on a return of the strikers for a limited period of 30 days, were
only conditional applications for reinstatement. We find, therefore,
in agreement with the Trial Examiner, that, as there was no uncondi-
tional application for reinstatement by the Union, Respondent was
under no legal obligation on October 14 or 17 to reinstate the strikers
and therefore did not violate Section 8(a) (1) and (3) by its refusals
to do so at those times 2 On the same basis, we find further, con-
i Whatever the nature of the Union's original oral application on October 13, and though
the Respondent ' s no-strike guarantee position may have prompted the Union's October 14
action , the fact remains that the Union did substitute therefor its October 14 application,
and the original application no longer remained in effect
2 Our dissenting colleagues , on the basis of their position that there had been an un-
conditional application for reinstatement , pose and answer in the negative the question
INDIANA READY MIX CORPORATION 653
trary to our dissenting colleagues, that there was no unlawful dis-
crimination in Respondent's reinstating during the' week of Novem-
ber 21 only those five employees who had repudiated' the Union and
filed unconditional individual applications for reinstatement, and in
effect refusing to consider the prior union applications on behalf of
the two remaining union adherents.
[The Board dismissed the complaint.]
MEMBERS LEEDOM and BROWN, concurring in part and dissenting in
part :
We agree that the Respondent did not unlawfully refuse to bargain
with the Union. However, unlike the majority We would find that
Respondent's refusal to reinstate its striking employees pursuant to
the Union's request for such reinstatement at a time when none of them
had been replaced violated Section 8(a) (1) and (3) of the Act.
In September ' 1961 negotiations, between the Union and the Re-
spondent ran into difficulties over the question of seniority. On the
26th of that month the Union called a strike and all seven employees
walked out. On October 13, the union representative, while on the
picket line, told Respondent's superintendent that the men were ready
to return to work. In response to the October 13 request for rein-
statement, however, the Respondent took the position that it would
not take the employees back unless the Union agreed to a 60- or
90-day strike moratorium, contending that it needed such a no-strike
guarantee in order to get and complete orders for concrete. The
Union on the next day counteroffered a 30-day, no-strike agreement
which the Respondent rejected as too short a period in which to obtain
and complete contracts with its customers. Four days later the
Union sent the Respondent a letter again stating it was "ready to
have the employees return to work and to negotiate a contract." This
October 17 reinstatement request was rejected on the ground that
Respondent had no work for the employees.
The Trial Examiner reasoned that the October 13 offer was not
unconditional because (1) the Union, after making the offer, continued
picketing, and (2) it was in essence only an offer of a 30-day respite
in the strike. He concluded therefrom that, as there was no uncon-
ditional application for reinstatement, the Respondent was under no
legal obligation to put the employees back to work and therefore did
not violate Section 8 (a) (1) and (3) of the Act.
Unlike the majority, we think the Trial Examiner's conclusions are
erroneous. In the first place, all that is necessary to satisfy the re-
following therefrom whether Respondent could in the circumstances lawfully lock out its
employees under the Betts Cadillac doctrine In view of our finding that there was no
such application , we, of course , do not reach that question
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quirement of an unconditional application for reinstatement is an
undertaking to abandon a strike and its concomitant picketing if the
request for reinstatement is granted. But the Board has held,
contrary to the Trial Examiner and our colleagues of the majority,
that employees do not forfeit the right to continue the strike as well
as the picketing if the offer is denied.' Secondly, in appraising the
character of the Union's offer not to strike for a 30-day period, it
should be remembered that it was the Respondent who interjected the
matter of a definite no-strike pledge into•the situation, and that the
dispute was not over whether the reinstatement application was uncon-
ditional, but over the duration of the no-strike period. Significantly,
there is no evidence in the record that bargaining had reached an
impasse or that the Union intended to renew the strike once the pledge
period ran out or at any other time. Indeed, it is evident to us that
the Union merely wished to remain free to strike after a. 30-day,
rather than 60- or 90-day period, if, in its view, circumstances then
warranted such action. We fail to see how the Union's desire to
preserve a statutory right can in the circumstances be ' construed as
a limitation on an otherwise unconditional request for reinstatement
of the strikers. Moreover, even assuming that there was some am-
biguity in the Union's application on October 13, the Union, in its
letter of October 17, made its position quite clear. It there spelled out
in writing that it was ready to stop the picketing, to have the employ-
ees return to work, and to continue negotiations on a contract. Re-
spondent rejected this offer not because it was conditional or because
it needed a no-strike pledge, but rather for the asserted reason that
work was not available. It follows from the above, and we would
find, that the request for reinstatement on October 13 and, in any
event, on October 17, was unconditional,4 that as unreplaced economic
strikers, these employees were entitled to reinstatement,5 and that the
Respondent's continued refusal to take them back constituted a lock-
out of the employees.
The question is, therefore, whether the Respondent could in the
circumstances lawfully lockout its employees, because of the Union's
refusal to surrender the employees' statutory right to strike for the
s Hawaii Heat Company, Limited, 139 NLRB 966.
* See Texas Gas Corporation, 136 NLRB 355.
See N L R B. v. MacKay Radio & Telegraph Co, 304 U.S. 333, 345 , 346; N.L R.B v
Remington Rand, Inc., 130 F. 2d 919, 927 (C.A. 2).
We would find no merit in the Respondent's argument that on the 17th it had no work
for the employees The record shows that during the period in question Respondent was
turning down local business orders for ready-mixed concrete on the grounds its employees
were on strike. Furthermore, when five employees abandoned the Union and made in-
dividual requests for reinstatement around November 21, the Respondent almost immedi-
ately took them back.
INDIANA READY MIX CORPORATION 655
period of time insisted upon by the Respondent. It cannot be denied
that a lockout for such reasons trenches upon the exercise by employees
of rights protected by the Act, and that it has the effect of discriminat-
ing against them with respect to terms and conditions of employment.
Consequently, the lockout must be held unlawful unless unusual eco-
nomic hardships or operational difficulties justified, as the Respond-
ent contends, its resorting to such a self-protective measure in the face
of a mere possibility of renewed union-strike action after a 30-day,
no-strike period expired.'
The Respondent argues in justification that it required at least an as-
surance of 60 to 90 days respite from a strike in order to obtain and
to complete contracts, and thereby avoid serious financial loss. The
Respondent's business is divided between small local orders and large
"bridge" orders for ready-mixed concrete. With respect to the former,
it is not even claimed that strike action posed any threat of substantial
economic loss. In fact, some such orders could apparently have been
accepted and completed within the 30-day no-strike period offered
by the Union. As for large "bridge" orders, none was available when
the Union requested reinstatement of the employees. However,
around mid-November the Respondent accepted two such orders which
did take some 6 months to complete. With respect to these, the Re-
spondent alleged that potentially serious economic loss could result
from a strike before completion. However, it failed to introduce any
evidence supporting this allegation? There is also no showing with
respect to either the large or small orders, that a strike before their
completion would create serious operational problems or substantial
inconvenience or involve hazards to the publics Consequently, the
Respondent has failed to support or substantiate in any way its posi-
tion that the lockout of its employees was resorted to as a defensive
self-help measure to avoid unusual economic loss or operational dif-
ficulties. Rather, it is evident to us from our findings above that the
lockout was an offensive retaliatory measure against the Union and em-
ployees for engaging in protected strike activity and for refusing to
surrender, as the Respondent wished, their statutory right to strike
in the futures Accordingly, we would find that the Respondent by
locking out its employees rather than reinstating them pursuant to
E See, e.g., Betts Cadillac Olds Inc ., et at.. 96 NLRB 268 ; Quaker State Oil Refining
Corporation v. N L R It., 270 F. 2d 40, 43-45 (C.A. 3), cert. denied 361 U.S. 917; Texas
Gas Corporation , supra.
I Further, we fall to see how Respondent 's proposed 60- to 90-day nn -strike pledge would
obviate the pos'dbility of serious economic loss from strikers interrupting a contract re-
quiring 6 months to complete.
8 Cf. Building Contractors Association of Rockford , Inc., 138 NLRB 1405.
9 Cf. Lion Oil Company v. N.L.R B., 245 F. 2d 376, 378-379 (C A 8) ; Texas Gas
Corporation , supra.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their unconditional requests for reinstatement -violated Section 8(a)
(1) and (3) of the Act.10
"We would also find unlawful discrimination in Respondent's reinstating during the
week of November 21, 1961, only those five employees who had repudiated the Union and
filed individual applications for reinstatement. To be sure, at that time the Union was
no longer the majority representative of the Respondent's employees However, it re-
mained the agent of the two employees who had not repudiated it, and, consequently, its
unconditional applications for reinstatement made on October 13 and 17 continued to be
effective during November and thereafter with respect to those two employees, one of
whom, at least, had seniority over employees reinstated. Thus, by refusing to consider
the union applications as they affected the two union adherents and by failing to reinstate
them, the Respondent clearly discriminated against them because they refused to abandon
the Union. Such conduct was, in our view, a plain violation of Section 8(a)(3) and (1)
of the Act.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed by the above-named labor organization on February 23, 1962,
the General Counsel of the National Labor Relations Board issued and served a com-
plaint and notice of hearing on May 18, 1962. A written answer by the above-named
Respondent Employer was received on May 28, 1962. The complaint alleges and
the answer denies that the Respondent has engaged in unfair labor practices in viola-
tion of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended Pursuant to notice, a hearing was held in Shelbyville, Indiana, on June 27,
28, and 29, 1962, before Trial Examiner C. W. Whittemore.
At the hearing all parties were represented and were afforded full opportunity to
present evidence pertinent to the issues, to argue orally, and to file briefs. A brief
has been received from General Counsel.
Disposition of the Respondent's motion to dismiss the complaint, upon which ruling
was reserved at the hearing, is made by the following findings, conclusions, and
recommendations.
Upon the record thus made, and from his observation of the witnesses, the Trial
Examiner makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Indiana Ready Mix Corporation is an Indiana corporation with principal office ana
place of business in Shelbyville, Indiana, where it is engaged in the business of sup-
plying concrete to contractors engaged in building roads and bridges on Federal
and State highways including Interstate Highway No. 1-74.
The Respondent, which began operations within the year preceding issuance of
the complaint, has reasonable expectation of furnishing during 1962, to the follow-
ing employers who are engaged in building roads and bridges on Federal Interstate
highways and who will, during 1962, each to in excess of $50,000 business on such
projects, the following amounts in value of concrete, to be delivered to them during
1962, such expectation being based upon letters of intent which the Respondent
has received from them:
Warrick & Warrick, Sellersburg, Indiana----------------------- $7,950.00
Kahl & Mahon, Liberty,Indiana ------------------------------ 15,000.00
Smith & Johnson, Inc., Indianapolis, Indiana-------------------- 50, 625. 00
Total -------------------------------------------------- 73,575.00
During the period between August 10, 1961, and June 18, 1962, Kahl & Mahon,
Smith & Johnson, Inc., and J S. Sweet Construction Company, of Cambridge, Indiana
(all contractors in the construction industry), and J. W. Evans Concrete Products.
Inc., of Shelbyville, Indiana, the last mentioned a manufacturer of pipe and related
products, each purchased materials and supplies valued at more than $50,000 from
suppliers outside the State of Indiana, such goods being shipped across State lines
directly to Indiana sites. And during the period from August 10, 1961, to August 10,
1962, the Respondent sold and shipped directly to the above-named concerns goods
and materials valued at more than $50,000.
The Respondent is engaged in commerce within the meaning of the Act.
INDIANA READY MIX CORPORATION 657
H. THE CHARGING UNION
Coal, Ice, Building Material, Supply Drivers, Heavy Haulers, Warehousemen and
Helpers, Local Union No. 716, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, is a labor organization admitting to mem-
bership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Setting and major issues
From August 1, 1959, to July 31, 1961, the Charging Union was a party to a
collective-bargaining agreement with E. T. Burnside, Inc., of Shelbyville, Indiana,
covering Burnside's employees. On August 10, 1961, the Respondent, a newly formed
corporation, took over the operation of the business previously conducted by Burn-
side, but "did not take over or assume any of the liabilities of Burnside including
any obligation under the National Labor Relations Act." 1
Also on August 10, Superintendent Melvin H. Horton, who for many years had
been Burnside's superintendent, hired five employees who had been on Burnside's
payroll, and a few days later two more. At the time of their hire by the Respondent
these seven employees were still represented by the Charging Union.
On the same date a vice president of the new corporation asked for and obtained
a copy of the expired Burnside-Local 716 contract. Thereafter negotiations for a
contract between the Respondent and the Union were begun. No agreement was
reached.
The chief issue in the unsuccessful negotiations was seniority. It was the Re-
spondent's firmly maintained position that the seniority of the seven employees should
be based upon the date of their hire by the Respondent, while the Union insisted
that such seniority should be carried over from their employment by Burnside.
As more fully described below, the Union called a strike on September 26, 1961.
On November 10, in the presence of Union Representative Poling, a majority
of the seven employees voted to accept terms offered by Horton and go back to
work. Poling referred the members' decision to Carlson, head of the local, who
declined to give his approval.
Dissatisfied with this action by their agent the employees sought some method
of dissociating themselves from the local. One of them approached a Board agent,
who advised them of the legal procedure set up by the Act. Thereafter five of the
seven individuals in the unit signed a letter disavowing the Union as their bargain-
ing agent , delivered it to the Regional Office of the Board, and a decertification peti-
tion was filed.
The employees advised Horton of their action, and asked for work. As soon
as orders could be obtained for delivery of cement (the plant had not operated during
the strike) Horton hired the five individuals who applied. No new employees were
thereafter hired until the spring of 1962, and then not until after the two employees of
the original seven who had not yet been reemployed, had been offered but refused
jobs.
This in quick summary is the setting in which General Counsel claims that viola-
tions of the Act occurred.
In brief, he contends that in October and November the Respondent refused to sign
an agreement with the Union, although its terms had been agreed upon, thereby
violating Section 8(a)(5) of the Act. He also urges that on October 13, all seven
employees unconditionally offered to return to work, but were refused in violation
of Section 8(a) (3) of the Act.2
B. The facts
Although its answer contains a denial, the Respondent offered no evidence to
refute the allegation in the complaint, as to appropriateness of the unit of the seven
employees here involved, and during the hearing conceded that the Union was their
lawful bargaining representative up to November 17, when five of the seven formally
revoked their designation. And there is no question but that the course of negotia•
tions from the beginning and at least up to November 17, demonstrates the fact
that during this period the Respondent recognized and dealt with the Union as the
exclusive bargaining agent of all employees in the unit.
Negotiating meetings were held on September 1, 7, and 25 before the strike was
called on the morning of September 26. At the first meeting Horton agreed to look
The quotation is from a stipulation entered Into by the parties at the hearing
2 The complaint also alleged, as a violation of Section 8(a) (5), that the Respondent
"initiated a movement to withdraw its employees' authorization of the Union as their
collective bargaining representative" Upon motion by the Respondent, this allegation
was stricken at the conclusion of General Counsel's case-in-chief.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over and consider the various proposals submitted by the local through Carlson. At
the second meeting two major points were in dispute: (1) the question of seniority
as previously described, and (2) the payment of vacation money accrued while the
same employees were working for Burnside.
As previously noted, the Respondent maintained that the five employees hired by
it on August 10, when operations began, should have equal seniority, and that the
other two employees should have seniority according to their later dates of hire.
The Union insisted that seniority under the Respondent should be as it had been
under Burnside.
As to the accumulated vacation pay under Burnside, Horton took the position
that this matter was not the Respondent's responsibility. Finally, at the end of this
second meeting, Carlson agreed that he would approach Burnside in an effort to
persuade him to make the payments due.
It is undisputed that on September 18, Carlson visited E. T. Burnside, who still
occupied office space at the Respondent's plant while winding up his business affairs.
Apparently dissatisfied with Burnside's response to his appeal Carlson told him, ac-
cording to Burnside's uncontradicted testimony, that he "thought he would have to
call a strike." It is also uncontradicted that as he left Burnside, Carlson was asked
by Horton what his success had been and that he replied: "There will probably
be a strike." 3
On September 25, according to his own testimony, Carlson "instructed Mr.
Poling to pull the men out on strike September 26." Picket signs thereafter carried
indicated that the strike was against both Burnside and the Respondent.
The Respondent made no effort to continue operations during the strike and no
replacements were hired.
On October 13, as Horton passed Union Representative Poling on the picket
line, the latter asked why they did not "get this thing settled." The superintendent
agreed that this should be done if possible. Poling then told him that the men were
"agreeable to drop the seniority demands and go back to work." Horton said that
would be "fine," but said he would have to have some assurance that the men would
not walk out the next day or the next week. He suggested that Poling provide him
with "some letter or something to assure him of no strike within the next 60 or 90
days, so he could let contractors know he could provide cement for some reasonable
period. Poling agreed to put the question up to Carlson .4
The next day Poling brought Horton an unsigned thermofax copy of a document
addressed to Horton proposing that the seven striking employees be returned to work
at once, that negotiations continue, and that for a period of 30 days the parties agree
that:
There shall be no strike or stoppage of work by the Union and there shall be
no lock-out by the Corporation during the said thirty day period of negotiations.
It is further agreed and understood by the parties hereto, that at the end of the
said thirty (30) day period, either party shall have the right, in the event they
cannot reach an agreement , to use all legal and economic action they deem
necessary.
When Poling presented this document to him Horton pointed out that the "letter
isn't even signed. How do I know Carlson even read it" and also that "thirty days was
too short a period in which to get and fill contracts." Although Horton, as a witness,
did not state specifically that he did not sign this thermofax, unsigned copy presented
to him, surrounding circumstances warrant the inference that he did not .5
Asked about making this statement to Burnside , Carlson replied: "Not to my recollec-
tion." As to making a similar statement to Horton he testified : "I don 't recall that con-
versation " The Trial Examiner cannot consider such equivocal responses as valid
contradictions of the testimony of Burnside and Horton.
4 The quotations are from the credible testimony of Horton . The Trial Examiner can-
not accept Poling's recollection as accurate where it varies from that of the superin-
tendent . As the record shows, Poling ' s memory failed him on important matters in cross-
examination . His claim that it was Horton who suggested a period of 30 days' respite
in the strike is unreasonable on its face As found above, Carlson did propose a 30-day
period in a letter Had this been the period Horton suggested, no good reason is advanced
as to why he would not have accepted Carlson's written nropos,il
3 Poling's credibility is further diminished by his insistence , on direct examination, that
he had given Horton the original proposal signed by Carlson Not until it developed that
General Counsel had placed in evidence the one original and signed document, which he
had obtained from the Union , and after further examination , did Poling finally admit
that he had given Horton an unsigned copy.
INDIANA READY MIX CORPORATION 659
Later on October 13, or the next day, Poling informed Horton that the men "had
agreed to go back to work and drop the seniority demands." Horton told him "that's
fine" and suggested that a negotiating meeting with Carlson be arranged as soon as
possible.
A meeting was held on October 17. Horton greeted Carlson by stating that
"because the boys have dropped the seniority demands" he thought they were "get-
ting somewhere." Carlson promptly declared "we haven't dropped any seniority
demands." Faced with opposing statements from the two union representatives, Hor-
ton insisted that Poling, then on the picket line, be called to the telephone. Poling
then claimed that "we meant they dropped them temporarily." 6
Confronted with these shifting and conflicting demands and statements by the
union officials, Horton nevertheless continued to negotiate with Carlson and the em-
ployee committee concerning subjects raised in the Union's demands, both on Octo-
ber 17 and 18. No final agreement was reached; the picketing continued.
After the meeting of October 17, apparently Carlson wrote and sent the following
letter to Horton:
On Friday, October 13, 1961, Mr. Harry Golding, Business Representative of
Teamsters Local Union No. 716, by authorization of your employees, uncondi-
tionally offered to remove the picket line and the employees return to work, that
offer was refused. On October 17, 1961, Mr. Edward T. Carlson, President of
Teamsters Local Union No. 716, in a meeting at the Union office attended
by Mr. Smith and Mr. Mitchell again requested and offered to remove the
picket line, and the employees return to work, you again refused, the Union is at
any time ready to have your employees return to work and negotiate the labor
contract.
On October 19, Horton replied as follows:
This will acknowledge receipt of your letter of October 17, 1961. It will
interest you to know that the pickets are still at the Ready Mix Plant and the strike
is evidently still in effect.
Because of this strike we have no business and so we cannot put any of the
men back to work at this time. We pointed out to you and the men that con-
tractors are afraid to buy ready mix from a plant that is having labor difficulty
because they cannot wait for their concrete in the middle of a job. On account of
this we do not anticipate much work in the near future but we will keep in mind
that the men are ready to go back to work without a contract when we have any
work to be done.
The parties met with a Federal mediator on October 31, while picketing continued.
It appears that both parties maintained their previous positions as to seniority, and
no agreement was reached.
On November 3, five of the seven employees and Poling met with Horton in the
plant office and discussed the various contract demands. This time, according to
Poling's own testimony, "negotiations fell through again" over the point of a termina-
tion date of any contract signed?
Five employees, Poling and Horton again met on November 10. This time the
employees agreed to accept the Company's proposal as to a 2-year contract, pro-
vided they were given a small raise. Horton agreed. Four of the seven striking
employees voted to accept, in the presence of Poling. Poling then called Carlson,
who refused to accept the agreement the majority had voted for.
Understandably disturbed by the fact that, as principals, their "agent" had vetoed
their own agreement, the striking employees began seeking some way out of the
dilemma. One of them, Braswell, went to the Regional Office in Indianapolis, where
he consulted a Board agent, pointing out that his fellow employees were dissatisfied
with the Union in their efforts to get back to work and earn wages. The Board
agent declined to write a letter to the Union for them, but pointed out provisions of
the Act which permitted decertification.
"Poling admitted that be was thus called to the telephone on October 17
7 The unreliability of Poling's testimony, where unsupported by more credible evidence,
is further demonstrated by the fact that shortly after testifying for General counsel that
negotiations "fell through" on the afternoon of November 3, he testified for counsel for
the Charging Union that an " offer for the men to return to work" was made at the same
time and that they did return "the following Monday." His latter testimony is contrary
to facts stipulated by all parties earlier in the hearing-no one returned until Novem.
ber 21, 1961.
708-006-64-vol. 141-43
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With the help of his wife, Braswell then prepared the following letter, addressed
to the local:
We no longer desire to have the Local No. 716 to represent us in our employ-
ment at the Indiana Ready Mix Corp., Shelbyville, Ind.
We desire to file a decertification petition with the N.L.R.B. and to do what-
ever is necessary to end our relations with Teamsters Local #716.
On November 17, five of the seven employees signed the above letter: Smith,
Eck, Buckler, Fuchs, and Braswell, and the document was delivered to the Board office,
at which time a decertification petition was filed.
On November 18, employees Braswell, Smith, and Eck informed Horton of
their action in disavowing the local and in filing a decertification petition, and asked
for their jobs. By November 27, upon their application for work, all five individuals
who are named in the paragraph next above were back on the job.
Because of the winter season-there is no real dispute that this type of business
is seasonal-no other employees were needed or hired until early April 1962. At
this time, it is undisputed, Horton went out to the picket line and asked the two
employees of the original seven-Mitchell and Spurlin-if they wanted work. They
refused the offer, whereupon Horton hired a driver who had previously worked for
Burnside.
C. Conclusions
As noted in subsection A above, the two chief issues raised by the complaint are:
(1) an alleged refusal by the Respondent on October 13 and November 3 to sign a
written agreement containing terms agreed upon, and (2) an alleged refusal to return
employees to work upon their unconditional offer to return.
The preponderance of credible evidence, in the opinion of the Trial Examiner, fails
to sustain either of these allegations. There is in the record no credible evidence
to indicate that at any time did the Respondent refuse to sign a contract submitted
to it containing terms it had agreed upon. On the contrary, it appears that both on
October 13 and November 3 Carlson, as head of the local, arbitrarily altered or
vetoed certain terms which the majority of the employees, in Poling's presence and
with his apparent approval, had come to an agreement upon with Horton. Indeed,
the very circumstance of the belated filing of a charge in February 1962 defies belief
that the situation could have been one of refusing to sign an agreed-upon contract
in the preceding October and November. Carlson is no novice in the field of collective-
bargaining negotiations and an actual refusal to sign an understanding reached
has been found since the early days of the Act to be an unlawful refusal to bargain.
General Counsel's own witness, Braswell, supported by the testimony of other
employees, establishes beyond reasonable question-so far as this record is con-
cerned-that the majority of the employees in the appropriate unit, with no induce-
ment or persuasion on the part of the Respondent, decided to revoke their delegation
of bargaining rights to the local. This right the law provides. A majority of the
employees in the unit on November 17 having disavowed the Union as their agent,
and since no contract or Board certification existed, after that date they were in effect
free "principals," and the Respondent was under no obligation to deal with the
Union as the majority representative.
As to the question of reemployment, the evidence does not support a finding that
at any time were any of the employees refused employment after an "unconditional"
offer to return. At all times the picketing continued. Because of the nature of the
business-supplying concrete to contractors upon order, and not for "stock"-it
would appear that Horton was fully justified in not considering a mere 30-day respite
in the strike as an unconditional offer to return to work. The testimony of Horton
and the employees is in agreement that upon their "unconditional" application for
jobs, after disclaiming the Union as their agent, they were hired as need and oppor-
tunity arose. It is also undisputed that the only two who have not been put back
to work refused to return when opportunity was offered by Horton in April 1962.
In short, the Trial Examiner does not believe that the evidence in this record is
sufficient to sustain General Counsel's allegations that the Respondent has violated
Section 8(a)(1), (3),and (5) of the Act.
It will therefore be recommended that the complaint be dismissed in its entirety.
RECOMMENDED ORDER
Having found that the Respondent has not violated Section 8(a)(l), (3), and
(5) of the National Labor Relations Act, as amended, the Trial Examiner recom-
mends that the complaint in this case be dismissed in its entirely.