Inter-Mountain Dairymen, Inc.

National Labor Relations Board - Board Decisions

Apr 11, 1966

157 N.L.R.B. 1590 (N.L.R.B. 1966)

1590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
connected with Case No. 25-RC-2639 be vacated, and that the Respondent ' bargain
upon request with the Union, embodying in a signed agreement any understanding
reached.
Upon the basis of the above findings of fact and upon the entire record in this case,
I make the following:
CONCLUSIONS OF LAW 43
1. Wholesalers Cooperative Trucking Association , Inc., is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 135, International Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America , is a labor organization within the meaning of Section
2(5) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Joseph
Campbell and Richard Snyder, thereby discouraging membership in, and activity on
behalf of, the above-named labor organization , the Respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the
Act.
4. By interfering with, restraining , and coercing its employees in the exercise of
the rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
5. All truckdrivers employed by the Respondent at its Indianapolis , Indiana,
garage , excluding all office clerical employees , professional employees , guards, and
supervisors as defined in the Act, constitute a unit appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of the Act.
6. At all times material since June 16 , 1964, the Union has been the exclusive
representative of all the employees in the aforesaid appropriate unit for the purpose
of collective bargaining with respect to rates of pay, wages, hours of employment,
or other terms and conditions of employment.
7. By refusing to bargain collectively in good faith with the Union , the Respond-
ent has engaged in and is engaging in unfair labor practices within the meaning of
Section 8(a) (5) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices within the mean-
ing of Section 2(6) and (7) of the Act.
'[Recommended Order omitted from publication.]
48 In view of my disposition of the entire matter, I hereby deny the Respondent's mo-
tion made subsequent to the close of the hearing to dismiss the complaint , to dismiss the
objections to election, to sustain the challenges to ballots and to adopt the contents of its
brief as my findings of fact and conclusions of law.
Inter-Mountain Dairymen, Inc. and International Brotherhood
of Teamsters, Chauffeurs , ' Warehousemen and Helpers of
America, Local No. 537. Case No. p27-CA-1694. April 11, 1966
DECISION AND ORDER
On December 22, 1965, Trial Examiner Maurice M. Miller issued his
Decision in the' above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the complaint
and recommended that the complaint be dismissed with respect to those
allegations. Thereafter, the General Counsel filed exceptions to the
Trial Examiner's Decision and a supporting brief.
157 NLRB No. 126.
INTER-MOUNTAIN DAIRYMEN, INC. 1591
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 this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
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 af£irIned. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
[The Board adopted the Trial Examiner's Recommended Order.]
DECISION OF THE TRIAL EXAMINER
STATEMENT OF THE CASE
Upon a charge filed October 20, 1964, and duly served thereafter, the General
Counsel of the National Labor Relations Board caused a complaint and notice of
hearing to be issued and served upon Inter-Mountain Dairymen, Inc., herein called
the Respondent. The complaint was issued December 23, 1964; therein, Respondent
was charged with unfair labor practices affecting commerce within the meaning of
Section 8(a)(1) and (5) of the National Labor Relations Act, as amended, 61 Stat.
136, 73 Stat. 519. With its subsequently filed answer, Respondent conceded certain
factual allegations set forth in the complaint, but denied the commission of any
unfair labor practices.
Pursuant to notice, a hearing with respect to the issues was held at Colorado
Springs, Colorado, on March 9, 10, and 11, 1965, before Trial Examiner Maurice
M. Miller. The General Counsel, complainant, and Respondent were represented
by counsel. Each party was afforded a full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence pertinent to the issues. Since the
hearing's close; briefs have been received from counsel for the General Counsel and
Respondent; these have been duly considered.
Upon the entire testimonial record, documentary evidence received, and my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Throughout the period with which this case is concerned, Inter-Mountain Dairy-
men, Inc., has been a Colorado corporation, with its principal office and place of
business in Colorado Springs, Colorado; there it has been engaged, at all times, perti-
nent herein, in the cooperative marketing and transportation of milk on behalf of
its producer members. During the 12-month period which preceded the complaint's
issuance, Respondent, in the course and conduct of its business operations, sold and
distributed for its producer members, products valued in excess of $100,000, of
which products valued in excess of $100,000 were sold and distributed to Fort
Carson, the U.S. Air Force Academy, and Ent Air Force Base, all located within the
State of Colorado. Further, during the same period, Respondent, in the course and
conduct of its business operations, transported milk products from its producer
members located in the State of Kansas, directly into the State of Colorado; these
products exceeded $50,000 in value.
Upon the complaint's jurisdictional allegations, which are conceded to be factually
correct, I find that Respondent is now, and at all times material has been, an employer
within the meaning of Section 2(2) of the Act, engaged in commerce and business
activities which affect commerce within the meaning of Section 2(6) and (7) of the
Act, as amended. With due regard for the jurisdictional standards which the Board
presently applies-see,Siemons Mailing Service, 122 NLRB 81; Ready Mixed Con-
crete & Material, Inc., 122 NLRB 318; Inter-Mountain Dairymen, Inc., 143 NLRB
782, and related cases-I find assertion of the Board's jurisdiction in this, case war-
ranted and necessary to effectuate statutory objectives.
1592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America, Local No. 537, herein called the complainant or Union, is a labor orga-
nization within the meaning of Section 2(5) of the Act, as amended, which admits
certain of Respondent's employees to membership.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary determinations
1. Respondent's management
Throughout the period with which this case is concerned, Dwight Hull functioned,
and continues to function, as Respondent 's general manager; though concededly
responsible to the cooperative's board of directors, he "carries out the policies" set
by the board, and supervises Respondent's business generally. Leman Bales, through-
out the same period, functioned, and continues to function, as Respondent's driver
supervisor, with his headquarters at Respondent's Colorado Springs supply plant;
concededly he supervises the work done by both the cooperative's hired and contract
drivers. Though Respondent, within its answer, has neither conceded nor denied the
complaint's specification in this respect, there can be no doubt that both Hull and
Bales merit characterization as supervisors within the meaning of Section 2(11) of
the statute; throughout the period with which this case is concerned, I find they did
function, and continue to function, as Respondent's representatives.
2. The Union's certification
On September 23, 1963, following a Board-directed election conducted pursuant
to Section 9(c) of the statute, Regional Director Waers for Region 27 certified the
Union to have been "designated and selected" by a majority of Respondent's employ-
ees, within a bargaining unit described as follows:
All salaried and owner or contract drivers employed by the Employer at its
Colorado Springs and Burlington, Colorado, offices, excluding field men, labo-
ratory testers, and all supervisors as defined in the Act.
Shortly thereafter, under circumstances which will be detailed further within this
Decision, negotiations between the Respondent's manager and union representatives,
looking toward a collective-bargaining contract, were begun.
B. The refusal to bargain
1. Issues
With respect to the negotiations in question , General Counsel has characterized
Respondent's course of conduct generally as so-called bad-faith bargaining, conducted
without an intention to reach any final contract. Within his brief, General Counsel
has thus summarized his broadside charge:
The General Counsel maintains that after the Union had been certified the
Respondent engaged in surface bargaining with no real intention of arriving at
an agreement with the Union, but with, in fact, the intention of stalling the
Union until the certification year had elapsed.
To support this concededly general contention, General Counsel has cited testimonial
and documentary material regarding: (1) Respondent's purported "disinterest" with
respect to pursuing negotiations, supposedly revealed, inter alia, through the con-
sistent failure of the cooperative's negotiators to take the initiative in arranging bar-
gaining conferences , the patent "infrequency" with which such conferences were
really held, the duration of the period within which negotiations were conducted,
and the claimed failures of Respondent to provide data, requested by the union
spokesmen, relevant to the negotiations; (2) the position which Respondent's nego-
tiators took regarding contractual provisions for so-called contract haulers; and (3)
the negotiators' failure to reach agreement with respect to any major contract ques-
tion . Further, General Counsel charges various refusals to bargain, per se, based
on certain segments of Respondent's course of conduct while negotiations were in
progress. Specifically, Respondent has been charged with: (1) Unilaterally changing
the wage rates of three drivers; (2) starting an insurance program for all its employ-
ees; (3 ) changing its vacation policy; and (4) undertaking to furnish free uniforms
INTER-MOUNTAIN DAIRYMEN, INC. 1593
and laundry service for its workers-all without prior notice or consultation with
union representatives . Finally, Respondent is charged with having confirmed its
refusal to bargain through participation in various movements to decertify the
Union , following the completion of its so -called certification year . With respect to
some of these complaint specifications , Respondent has traversed General Counsel's
contention ; with respect to further matters, Respondent claims that its challenged
course of conduct-set forth within General Counsel 's complaint-was reasonable,
normal , and proper , providing no basis for a conclusion that the cooperative 's nego-
tiators had either refused to bargain or bargained in bad faith.
2. History of negotiations
a. The first proposals and counterproposals
Within 1 day following the Union 's certification , Respondent Counsel Russell P.
Kramer voluntarily notified its representatives that he, together with General Mana-
ger Hull , would negotiate in the cooperative 's -behalf. Consensus was promptly
reached that their negotiations would begin October 9, 1963 ; Kramer's office was to
be considered the parties ' regular conference site. They met there on the date
specified . (Within his presentation , General Counsel has proffered certain testimony
by Charles Willcox , formerly in Respondent 's hire, presumably to provide relevant
background for his contention that Respondent 's negotiators , during the discussions
which followed , sought a stalemate rather than consensus . Willcox reported that,
some time in November 1963, General Manager Hull had met with Respondent's
drivers; that he (Hull ) had told them they could vote in the forthcoming election;
but that he had, further , declared "he" would never accept a union contract, and
that , should the Union win representation rights, "he" would get out of the milk-
hauling business quickly. When questioned in cross and redirect examination, Will-
cox revealed a patent failure of clear-cut , consistent recollection with respect to his
claimed November date when these comments were purportedly made; though first
persistent in his testimony that Hull 's comments were made I week before the Board-
directed election, he specifically dated them during a November 1963 meeting.
Finally, following a review of his sworn statement previously given a Board repre-
sentative, Willcox testified that there had been two meetings at which Hull spoke,
with the first 1 week before the September 1963 vote , and the second in November
thereafter . When queried by union counsel , then , with respect to Hull 's further
November remarks, Willcox had to have his memory refreshed ; presented with ques-
tions framed to prompt his recollection , he finally testified that Hull had then said
Respondent would make no wage changes pending the achievement of some con-
sensus, regarding wage rates , with the union negotiators . Taken by and large , there-
fore, Willcox's testimony reveals patent temporal confusion , coupled with some rec-
ollections , vague at best , with respect to the substance of comments by Respondent's
general manager . Such recollections , further, may well have been colored by after-
thought, with a bias derived from his subsequent January 1964 discharge . While a
witness, Hull denied making the purportedly prejudicial remarks charged . With due
regard for the record , conjoined with my observation of the witness' demeanor, Will-
cox's testimony cannot be considered probative.) For the Union, Secretary-Treasurer
Ashcraft and Business Representative Coffey first proffered their 1960 -64 master
contract with The Associated Milk Dealers of Denver and some 17 separate signa-
tory firms. Within the latter group, there were seven Colorado Springs dealers in
milk and milk products . So far as the record shows , however, this contract-which
contained 48 clauses , plus an appendix dealing with rates of pay, guarantees, and
commissions-was presented not for Respondent's total concurrence , but merely to
provide a basis for specific discussion . Most of the October 9 session, therefore, was
devoted to union presentation of the proffered contract 's clauses.
Between October 9 and January 31, 1964 , union representatives conferred with
Respondent 's spokesman eight times. Thereafter-because of circumstances which
I propose to discuss further within this Decision-negotiations were suspended with-
out date. On March 20 , Union Secretary-Treasurer Ashcraft and Kramer did con-
fer with Federal Commissioner of Conciliation Nichols, pursuant to the latter's
request, regarding the status of their negotiations ; nevertheless , despite their prom-
ises, given the conciliator , that they would "think over" their respective positions,
negotiations were not resumed promptly. Representatives of the Union and Respond-
ent did not meet until July 3 , 1964 , when they convened pursuant to Secretary-
Treasurer Ashcraft 's prior request . Thereafter, there were two further meetings.
Following the last of these , negotiations were terminated . (This capsule summary of
relevant bargaining developments rests upon a testimonal synthesis . All four nego-
1594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tiators-Secretary-Treasurer Ashcraft and Coffey for the Union , together with Gen-
eral Manager Hull and Kramer for Respondent herein-provided concurrent testi-
mony with respect to six conference dates. Coffey, whose testimony reveals no sign
that he kept a personal record, failed to recall two conferences which, I find, were
held, while Ashcraft suffered a memory failure regarding one meeting which the
other three negotiators confirmed. The record does warrant a determination that
one conference-scheduled for January 10, 1964 , specifically-did recess following
a brief, general , discussion because a last-minute siege of illness reported by Hull
had prevented his attendance . With respect to the July 3, 1964, conference-which
three negotiators recalled-Coffey, despite his failure to specify the date correctly,
did provide narrative details. Since the record, therefore , does reveal a substantial
consensus regarding 11 negotiating sessions , I find that such sessions were held Octo-
ber 9 and 30, November 15, and December 12, 1963; and January 3, 10, 16 , and 31,
1964. Negotiations were then suspended as previously noted . Following their
resumption , conferences were, I find , held on July 3 and August 11 and 24, 1964.
The testimony which Business Representative Coffey alone proffered-with respect
to supposed bargaining sessions on January 24 and July 9 and 24, 1964-must be
rejected. And General Manager Hull 's testimony regarding a December 24, 1963,
conference-which no one else corroborated-must likewise be rejected. ) Consist-
ently with General Counsel 's contention , the record will support a determination
that Union Secretary-Treasurer Ashcraft normally took the initiative with respect to
requesting bargaining session dates . I so find.
Several of these bargaining conferences or confrontations -previously noted-were
convened on dates fixed by consensus , following one or more postponements. So
far as the record shows, these postponements-with but a single exception-reflected
the concurrence of union negotiators with requests received from Respondent's coun-
sel. The latter could recall no more than one time when Secretary-Treasurer Ash-
craft had called to suggest a postponement of some scheduled session . Nothing in
the testimonial record, however , would warrant a conclusion that such postpone-
ments of scheduled bargaining sessions were ever requested for frivolous reasons.
Both Kramer and Ashcraft were, clearly, busy men. Whatever postponements they
may have requested were-so far as the record shows-dictated by considerations
which reasonably motivated businessmen would consider sufficient justification for
such conduct.
With this brief chronological review completed , we may consider, substantively,
whatever the record does, in fact , reveal regarding the general development of the
negotiations with which this case is concerned.
During their October 30 session , union spokesmen completed their proposal 's pres-
entation ; most of the discussion was concerned with particular clauses, within the
proffered Associated Milk Dealers contract , which could be considered germane to
Respondent 's business . The cooperative's negotiators however-following a lengthy
discussion-declared the Union's proposal "too steep" generally; they further con-
tended that most of it would not "fit" Respondent's business. Before the conference
was concluded, Kramer and Hull did promise to present a draft proposal in Respond-
ent's behalf, during the parties' next scheduled bargaining session. When the nego-
tiators met on November 15 next-so far as the record shows-their discussion was,
indeed, centered upon some rough draft or verbal proposals, with respect to so-called
"controversal" matters, presented in Respondent 's behalf. Following the session's
conclusion-but possibly within some "few days" thereafter-the cooperative's nego-
tiators did, finally, present a formal, written proposal.
The proposal contained 25 suggested contract provisions-plus an appendix, deal-
ing with job classifications and wages, within which monthly rates were specified for
Respondent's delivery drivers, country drivers, and interplant drivers, with an hourly
rate proposed for relief drivers. Space was provided for some subsequent specifica-
tions regarding sums payable to contract drivers "per 100 weight of milk" transported
by them to Colorado Springs, from milk producers within eight designated areas.
(Respondent 's proposal did not contain any provision dealing with holidays or the
question of holiday pay; the cooperative's submission in this respect had been inad-
vertently omitted. Further, the proposal did not contain a provision, which Respond-
ent desired , specifying these particular contract provisions considered applicable to
workmen classified as contract drivers. Supplementary proposals dealing with these
subjects were subsequently provided, under circumstances which I propose to discuss
further.) Comparisons drawn between Respondent's first proposal, and the Union's
previously submitted Associated Milk Dealers contract, reveal that the format of
Respondent's submission closely paralleled that found within the Union's proffer.
Though Respondent submitted no counterproposals with respect to some 24 clauses
within the Associated Milk Dealers contract-presumably because it considered them
INTER-MOUNTAIN DAIRYMEN, INC. 1595
lacking in relevance-those draft provisions which were calculated to counter union
proposals were set forth in parallel sequence. Respondent's proposal as first pre-
sented contained only two -provisions not found within the Union's so-called master
contract; these purported to deal with the classification of Respondent's drivers spe-
cifically, and with the subject of management rights. Ten provisions within Respond-
ent's proposal substantially paralleled comparable provisions within the Union's first
submission, with minor differences of phraseology. (Among other provisions, the
Associated Milk Dealers' union-shop clause was copied, substantially verbatim, from
Respondent's proposal; though the Union's proposed "checkoff" clause was rejected,
Respondent's negotiators raised no question with respect to union security.) Thirteen
proposed contractual clauses, however, reflected substantive differences. Some of
these-such as those found within Respondent's proposed recognition clause-were
purely technical. Most of them, however, reflected significant negotiable disagreements.
On November 21, the union representatives presented Respondent's draft proposal
for consideration by the cooperative's drivers, meeting at Limon, Colorado. The
proposal was rejected. Thereupon, a so-called secret ballot "strike vote" was
promptly taken, which passed. (So far as the record shows, however, Respondent's
drivers were merely requested to "strengthen" the bargaining power of the Union's
negotiators thereby; no strike was then contemplated.) Secretary-Treasurer Ashcraft
telephoned Respondent's counsel next day, I find, to report the proposal's rejection.
Several days later, pursuant to Ashcraft's request, Respondent's negotiators agreed
to meet on December 6. One day before this scheduled conference, however, some
union messenger presented Respondent's counsel with a copy of the Union's contract
with Colorado Milk Transport, Inc., currently in force; this document was, con-
cededly, proffered for Respondent's consideration as the Union's second contract pro-
posal . Thereafter, pursuant to Respondent counsel's request, the scheduled Decem-
ber 6 bargaining session was postponed.
When the parties did meet next, December 12, Respondent's first proposal was dis-
cussed. Taken as a whole, however, the record will merely warrant a determination
that both union spokesmen proffered various reasons for the proposal's rejection.
There was some discussion, then, regarding the Union's so-called "Colorado Milk"
contract. The record, however, provides no significant detail with respect to this por-
tion of the parties' December 12 talks.
On December 27 Kramer wrote Ashcraft; he noted that the union negotiators had
countered Respondent's first contract proposal, not with proposed changes or state-
ments of disagreement, but with their "Colorado Milk" contract, which represented a
completely "new" proposal. Respondent's counsel, then, commented that:
I am afraid that we are not making much progress merely by exchanging com-
plete sets of proposals ... I have gone over the Colorado Milk Transport contract
and find that there are numerous provisions in it which do not fit our present
situation. I have also compared this contract with our proposals and have dis-
cussed them with Mr. Hull. I am enclosing a summary of what appears to me to
be the points of disagreement between us. This summary might provide an
outline for our next discussion.
Kramer finally suggested January 3, 1964, for their next negotiating session , expressing
his belief that a mid-morning start on that date would give the negotiators time within
which "some real progress" might be made. -
When the parties met, however, most of their discussion seems to have recapitulated
previous disagreements. Union spokesmen, I find, voiced their dissatisfaction with
such purportedly protracted negotiations; they pressed Respondent to bargain "seri-
ously" with respect to various disputed matters. Inter alia, wages, were discussed.
According to Respondent's general manager-whose testimony in this respect was not
contradicted-the Union wanted drivers' compensation, whether computed hourly
or monthly, comparable with the rates provided within the Colorado Milk contract,
payable for 5-day workweeks. (Throughout these negotiations, Respondent's. desire
to maintain its then current work schedule seems to have been a prime source of
disagreement. The Union proposed specific hourly wage rates, payable for 5-day
workweeks with 2 days' rest. Respondent contended, however, that proper service
for the cooperative's producer members would require its maintenance of schedules
whereby drivers would work 3 days with 2 days rest, followed by 2 more workdays
and 1 day's rest. In short, Respondent wished-to maintain work schedules with 3
days of rest,out of 8, while the Union was proposing 2 days of rest out of 7.) The
negotiators scheduled their next conference for January, 10. When, however, Hull's
secretary reported that he was sick, Kramer merely met briefly with the union repre-
sentatives. Respondent's draft proposal and the Union's Colorado Milk contract were
1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
compared, generally, but no significant discussion developed. On January 16 the
negotiators met, likewise, briefly; General Manager Hull testified, credibly, that their
session was cut short because he had some conflicting commitment.
On January 22 Ashcraft telephoned Kramer; they arranged a bargaining session for
the following day. The scheduled conference, however, was subsequently postponed,
I find , at Kramer's request.
The parties did not meet, thereafter, until January 31. With respect to their dis-
cussion , then, Hull testified, inter alia, that Union Secretary-Treasurer Ashcraft
pressed strongly for Respondent's acceptance of his previously proffered Colorado
Milk contract, verbatim, supplemented with special provisions framed to cover the
cooperative's contract haulers. Ashcraft, however, declared-while a witness-that
the Union had taken no firm position, but had proffered the Colorado Mlik contract
merely to provide some "basis" for negotiations. (This conflict in testimony reap-
pears, throughout the record, with respect to most subsequent bargaining sessions.
Kramer, whose notes corroborate Hull's testimony regarding the Union's demand
for verbatim acceptance of the Colorado Milk contract, conceded that he thought this
was mere "negotiating talk" on Ashcraft's part. My resolution of the conflict-which
derives, substantially, from my review of the negotiations considered as a whole-
will be noted subsequently within this Decision.) When the conference was termi-
nated , Ashcraft requested Respondent's counsel to provide him with a complete pro-
posal, which he could present to a meeting of the cooperative's drivers, scheduled for
the following night. Such a document was promised.
The next day, Saturday, February 1, Secretary-Treasurer Ashcraft received a letter
from Kramer-which Respondent's counsel delivered personally-together with cer-
tain attached documents which purportedly constituted:
... a further proposal from the employer, Intermountain Dairymen, Inc., for a
contract between them and your Union, as bargaining agent for their employees.
The documents proffered, however, proved to be nothing more than: (1) Respond-
ent's proposed contract provision with respect to holidays and holiday pay, which had
been omitted from its November 21 proposal; (2) the draft of a contractual provision
within which particular contractual clauses mutually considered applicable to "employ-
ees classified as contract drivers" could subsequently be specified; and (3) Respond-
ent's revised job classification and salary proposals.
Ashcraft's testimony, which stands without contradiction in this respect, reveals
that he-when he discovered the limited scope of Respondent's submission-merely
reread the "unimportant" clauses from the cooperative's November 21 contract pro-
posal, conjoined with its newly proffered supplements and modified salary proffer, to
Respondent's drivers. (Respondent's February 1 submission with respect to holidays
and holiday pay was, I find, considerably less detailed than the comparable provision
within the Union's Associated Milk Dealers contract, but ,pore detailed than the
Colorado Milk contract's provisions. Regarding job classifications and wages: With
respect to salaried drivers, Respondent proffered monthly rates which reflected no
change from its previous proposal, so far as delivery drivers and interplant drivers
were concerned. The cooperative's salary proposal for country drivers was $10
per month higher. There was a new monthly salary rate suggested for "delivery
drivers' helpers" while Respondent's previously proposed hourly rate for "relief"
drivers was deleted. With respect to contract drivers, Respondent's February 1 sub-
mission provided merely that, following a collective-bargaining contract's execution,
such drivers should be paid "according to the terms of their individual contracts"
current at the time.) The record shows that, since Respondent's new proffer was
considered substantially a recapitulation of its November 21 proposal, without any
significant modification, no drivers' vote with respect thereto was requested by union
representatives.
Some time between February 2 and 6, I find, Secretary-Treasurer Ashcraft notified
Kramer that the cooperative's drivers had "rejected" Respondent's contract proposal.
The union representative further declared, I find, that "no purpose" would be served
by further discussions , and that he proposed to do what he "had" to do (Kramer
testified that he was given this news by telephone on Sunday morning, February 2;
Ashcraft, however, denied making a telephone call at that time, since no vote which
he considered necessary to report had been taken with respect to Respondent's pro-
posal With due regard for the record as a whole-particularly when it may be con-
sidered buttressed by various probability factors-I find that Ashcraft did really
communicate with Respondent's counsel sometime shortly after the February 1
drivers' meeting noted.) On February 6, thereafter-presumably prompted by this
news-General Manager Hull delivered a prepared talk, largely drafted by Respond-
INTER-MOUNTAIN DAIRYMEN, INC. 1597
ent's counsel , to Respondent's drivers. He reported, inter alia, that Respondent had
recently "presented to the union a new proposal" for submission to them on Saturday,
February 1, but had learned on the next day that "no contract" had resulted. Respond-
ent's general manager declared, further, that:
We were, however, advised that a strike vote had previously been taken and that
the union officers felt they had authority to call a strike. We were not advised
as to whether a strike would be called, but we were told that the union representa-
tives did not desire to further negotiate concerning a contract.... The Manage-
ment of Inter-Mountain sincerely hopes that this matter can be worked out
without serious difficulty. We have an obligation to bargain with the milk drivers
union as your representative, and we are ready to do so on any reasonable good
faith businesslike basis. We are not, however, going to be intimidated by
threats or pressure, and we refuse to be brow-beaten into accepting unreasonable
demands. There are legal standards established with respect to the character
and type of bargaining that must be done in arriving at labor contracts. We
have endeavored to bargain within these standards and intend to continue to do
so. [Emphasis supplied.]
Previously, according to Hull's testimony-which stands without contradiction-
spokesmen for three designated Denver milk processors and distributors had told him
that they had just "heard from" the Union's secretary-treasurer, and would therefore
be unable to receive Respondent's milk deliveries on February 7 and thereafter. The
cooperative's general manager, therefore, told his drivers that-should they find them-
selves confronted with a picket when making some milk delivery-they should try to
avoid trouble, get their trucks back on the street, get away from the plant, and seek
further direction by telephone.
Though nothing in the present record would justify a determination that Respond-
ent's delivery trucks or customers were, really, picketed thereafter, there can be no
doubt that union spokesmen-for the time being at least-made no further effort,
themselves, to communicate with Respondent's counsel or continue contract negotia-
tions. Respondent, likewise, took no action calculated to promote further bargaining.
However, on March 19, 1964, Commissioner Nichols of the Federal Mediation and
Conciliation Service, presumably functioning on his own initiative, did summon both
Ashcraft and Kramer to confer regarding the status of their negotiations. The next
day, during their conference, both men were requested to review and discuss their
contractual disagreements, with respect to Respondent's drivers. (Ashcraft, I find,
gave Nichols a copy of the Union's Associated Milk Dealers contract.) The union
representative and Kramer finally promised to give "further study" to their respective
positions.
While a witness, Ashcraft could not, however, recall communicating with Commis-
sioner Nichols thereafter. When the commissioner, himself, later telephoned Kramer
on April 13 with a request for his report, the latter declared that he, likewise, had
received no further communication whatever from the Union's secretary-treasurer.
b. Unilateral changes
With matters in this posture, Respondent's general manager-shortly thereafter-
concededly initiated certain salary changes, together with certain "modifications" of
specific terms and conditions of employment, for drivers. Though particular changes
were not made simultaneously, Hull's credible testimony warrants a determination
that Respondent's managerial decisions regarding them were reached during the
period with which we are now concerned, while collective-bargaining negotiations
were suspended.
Wage increases: During May and June 1964, Respondent's general manager
granted three drivers salary raises. In May 1964 Edward Williams' salary was raised
from $400 to $425 per month. Hull's testimony reveals, without contradiction, that
Williams had previously been transferred from work as a country pickup driver to
work as a so-called diesel truck driver: his salary change was calculated merely to
raise his pay to Respondent's previously fixed salary level for drivers doing "diesel
truck" work. Driver Alex Frazer, concurrently, received a comparable salary
increase. While a witness, Hull conceded that Frazer's change from country pickup
driver to transport diesel truck driver had occurred quite some time before. The
record does show that Frazer had been shifted to transport work on July 9, 1963; I so
find. Driver Byron Moffitt's salary was raised from $375 to $400 per month in June
1964. Hull's testimony-proffered without contradiction-warrants a determination
that this driver had been granted $375 monthly as his started salary, that he would
1598 DECISIONS OF • NATIONAL LABOR RELATIONS BOARD
normally have received the higher salary noted after 30 days, but that his routinely
scheduled raise had ben deferred because his date of hire had, roughly, coincided
,with the commencement of union contract negotiations. Thereafter, as Hull testified:
I went just as long as I thought I could and the particular period of time
that I granted the increase [was] when we were at strained relations with the
union people and were not negotiating so I just increased his wages from this
standpoint.
Moffitt's raise, according to Respondent's general manager, merely gave him a
monthly salary rate calculated to match that paid other drivers similarly situated.
Uniforms: Some time in June 1964, Respondent's comptroller completed arrange-
ments with two local laundry firms to provide uniforms and paid laundry service for
the cooperative's drivers. While a witness, Hull declared his belief that Respondent's
contracts in question required the laundry firms to provide "rented" uniforms,
together with cleaning and laundering service. The cooperative's check record shows
July 3, 1964, as the date of the first payment for this service; Respondent's general
manager, therefore, proffered his "guess" that uniform service for drivers had com-
menced on the first of the month. I so find. So far as the record shows, Respondent
has continued to provide these uniforms, together with laundry service, continuously
since that time.
Vacations: During the present hearing, Respondent proffered certain documentary
material which would warrant a determination that its vacation and sick leave policy
had been fixed since February 26, 1963, prior to the Union's certification. On the
date designated, so the record shows, the newly formed cooperative's board of directors
yoted to accept a recommendation proffered by its employee relations committee with
respect to these matters. The recommendation read as follows:
The Employee Relations Committee recommends that employees be given one
working day per month vacation and one-half day per month sick leave, the sick
leave not to be accumulated in more than two. years and that the vacation be
- taken or lost annually ....
According to Hull, Respondent's policy-throughout the period with which we are
'concerned-permitted employees to earn 12 days' vacation yearly. Vacation credits
earned within a worker's first year, however, could not be claimed until the worker
concerned had completed his year's employment;'thereafter, whatever vacation time
had been earned would have to be taken within the following year. Respondent's
general manager testified, further, that the vacation policy noted had been followed,
consistently, since March 1, 1963; his witness chair declarations, proffered and
received without contradiction, reveal that no policy changes with respect to vacation
credit have been made, particularly since the Union's certification. The record does
show that-some time during the summer months now under consideration-there
may have been a few employees who were permitted to take full vacations, though
they had not yet served full years in Respondent's hire. Hull testified credibly, how-
-ever, that any such deviations from Respondent's policy, previously fixed, which might
have occurred, would have derived from particular managerial decisions, calculated
to satisfy personal requests made by the workers concerned, which did not reflect any
vacation policy change.
, . _ c. Resumption of negotiations
The Union's secretary-treasurer, who had been previously preoccupied-so far
as his testimony shows-with several other contract negotiations, finally telephoned
Respondent 's counsel on June 12 with a request that bargaining sessions be resumed.
The negotiators met on July 3. With respect to their discussion, Union Represent-
ative Coffey testified that various provisions within the previously proffered Colo-
rado Milk contract were canvassed in detail , but that no consensus was reached;
further , Coffey testified that Respondent 's general manager rejected union proposals
regarding the compensation of so-called military milk delivery drivers and contract
haulers. ( The union spokesman testified regarding a purported July 9 session. My
review of the record, however, has convinced me that his testimony designating the
session's date was mistaken; substantively, I find, his recollection compassed nego-
tiations during the parties' July 3 conference .) Respondent 's general manager-
though he first repeated prior testimony that Ashcraft had demanded Respondent's
acceptance of the Union's previously proffered Colorado Milk contract verbatim-
finally testified that consensus had been reached regarding two disputed matters.
According to Hull , Respondent 's negotiators , inter alia, suggested their willingness
to meet the union demand that drivers be given "warning letters" before being dis-
charged for cause. Further, Respondent 's general manager testified that the coopera-
INTER-MOUNTAIN DAIRYMEN, INC. 1599
tive's then current vacation policy, which he described as calling for 2 weeks paid
vacation per year, was explained, and that it was accepted by the union representa-
tives. Regarding so-called workweek questions, Hull testified that both parties
declared their mutual belief that a settlement would be possible. Since Hull's testi-
mony, thus summarized , reveals that specific contractual differences were canvassed
during the session now under consideration-with some signs of progress toward
a consensus-his capsule comment regarding Ashcraft's purported demand for
Respondent's acceptance of the proffered Colorado Milk contract without change,
previously noted, must be rejected.
Following this July 3 session , I find, Ashcraft tried several times to arrange a fur-
ther conference. Within the month which followed, four successive dates for the
parties' next negotiating session were set; with respect to each of these, Respondent's
counsel-for various reasons-had to request a postponement.
The negotiators finally met on August 11; their discussion seems to have covered
most of the Union's previously proffered proposed contract. According to Union
Representative Coffey, views were exchanged with respect to five designated sub-
jects, regarding which the negotiators had previously disagreed. Respondent's
spokesmen reported, inter alia , that negotiations had been completed for a group
health insurance plan programed to cover all the cooperative's workers. When
Ashcraft, thereupon, requested a copy of Respondent's projected insurance plan,
I find Hull promised that one would be supplied. (The record warrants a determi-
nation that Respondent's newly designated board of directors-back on February 26,
1963, before the Union's representation campaign-had authorized management to
negotiate "the best policy of doctor and hospitalization insurance" procurable, with
a commitment that Inter-Mountain would pay one-half the premium cost. When
the cooperative board's employee relations committee met April 30, 1963, Respond-
ent's management was further directed-so the committee's minutes show-to nego-
tiate for a policy which would include major medical coverage plus a small amount
of life insurance. The minutes of the committee meeting, however, show that
Respondent's attorney promptly suggested such a plan should "perhaps not" be made
effective until some time after the representation election then pending. During the
February-June period following the Union's designation, previously noted, when
Respondent's contract negotiations with the Union were suspended, General Man-
ager Hull had pursued his negotiations with various insurance carriers, seeking the
most favorable terms he could get for the program of health and life insurance
coverage which Respondent's management had been directed to purchase. By
August 11, such a program had been proposed, finally, for Respondent's considera-
tion; the particular carrier's proposal, however, had not yet been reviewed by the
cooperative's board of directors.) Some time thereafter, Respondent's general
manager did request a representative of the cooperative's prospective insurance car-
rier-presumably a broker-to give a copy of the carrier's proposed program to
Respondent's counsel for transmittal to the Union's secretary-treasurer. So far as
the record shows, shortly after August 17, this was done.
Although the negotiators initially scheduled their next session for August 19, and
then rescheduled it for August 21, Respondent's counsel found himself constrained
to request postponements. The parties did not meet until August 24, 1964. For
reasons which will be discussed, further, this was their last negotiating session.
Regarding the session, divergent testimony was proffered. Union Representative
Coffey called it short, described the discussion as general, and declared that no con-
sensus with respect to any significant matter was reached. Respondent's general
manager, however, testified that his previous proposals were reviewed "step by step"
with the result that several longstanding differences were resolved. He particular-
ized these as follows:
1. Respondent withdrew its proposal that drivers who failed to give prior
notice with respect to their resignations would have to forfeit one week's pay;
substantially, this concession reflected concurrence with the Union's proposal
regarding a layoff notice clause.
2. Respondent agreed to provide drivers, charged with rule violations, with
"warning letters" before discharge.
3. With respect to work schedules , Ashcraft declared the Union's readiness
to concede Respondent's right to maintain work programs calling for three days
of rest out of eight, provided Respondent would agree to give drivers "overtime"
pay for the single working day which-on the average-they would miss each
month should this schedule be maintained rather than a standard five-day work
week; Respondent's negotiators conceded the point.
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Regarding uniforms , Respondent 's spokesmen signified their readiness to
accept the Union 's proposal , since uniforms and paid laundry service were
currently being provided.
5. Respondent agreed that it would "go along" with the Union 's proposed
holiday clause ; the precise nature of this concession , however, cannot be con-
sidered clear , since the record fails to reveal the substance of their prior dis-
agreement regarding the provision in question.
6. A tentative consensus was declared that Respondent's proposed "no strike"
clause-which was somewhat more specific and detailed than the comparable
Colorado Milk contract provision-would be accepted by the Union, should
a full agreement be, otherwise , reached.
7. Respondent 's general manager noted his concurrence "very, very reluc-
tantly" with union proposals regarding the Commissions which should be pay-
able for milk delivery to military installations ; this concession was given in
exchange for Secretary-Treasurer Ashcraft's commitment to provide the cooper-
ative with a letter specifically conceding that the Union would not consider such
commission rates payable with respect to military milk deliveries currently being
made, pursuant to Respondent's delivery contracts previously negotiated.
8. The union negotiators relinquished their request for a three-year contract
term , and accepted Respondent 's proposal for a one-year contract term.
Hull's testimony regarding the negotiators' August 24 discussion struck me as more
credible than Coffey's; certainly it must be considered more consistent with subse-
quent developments . I so find.
The record shows that Respondent's negotiators, finally, promised to submit a new
proposal , complete in form; regarding the Union 's position on the proposal's con-
tent, Hull testified that:
We discussed wages and Paul [Ashcraft] insisted that we get in a final proposal
with more wages , had to have more wages , and that we had horsed around as
long as he was going to horse around and that was that and we could get him
a proposal of more wages.
With matters in this posture , the conference terminated . Hull and Kramer con-
ferred for the purpose of preparing the cooperative 's "new" contract proposal. On
August 26, 1964 , Respondent's counsel submitted that proposal by mail, with a
covering letter which , in pertinent part, read as follows:
This proposal is being submitted after numerous negotiating sessions and is sub-
mitted at this time in view of your demand that specific action with respect to
a contract be taken immediately ... I am, of course , aware that the proposal
does not meet all of the demands which you have made for a contract , but, of
course, in any negotiated matter it should be expected that both parties concede
something to arrive at a result . On behalf of my client , it is requested that the
employer's proposal be presented to the employees whom you represent for
your approval or disapproval . If the proposal is not acceptable , we will be
agreeable to further discussions in an effort to work out something mutually
satisfactory.
The record is not completely clear as to whether Respondent's drivers met, there-
after, to consider the cooperative 's new proposal . They may not have been sum-
moned. If they did meet-I find-Ashcraft merely read them the proposal and
registered his disapproval . No formal, definitive , rejection of Respondent's pro-
posal by the drivers , however, seems to have been voted.
When comparisons are drawn between Respondent 's two counterproposals , deter-
mination will be found warranted that Kramer 's last submission differed from his
first in several significant respects . Though the 2 proposals maintained parallel
formats, the second contained 26 substantive provisions , plus an appendix devoted
to job classification and wage questions . Nine of Respondent 's proposed clauses
reflected its readiness to concur with union suggestions ; 18 counterproposals , however,
revealed their differences.
With respect to these matters of disagreement, certain capsule comments seem
to be warranted . Three clauses compassed within each union proposal had previ-
ously been omitted from Respondent 's first counterproposal ; they were still not to
be found within its second submission. (The particular clauses which Respondent,
thus, persistently rejected included proposals regarding the checkoff and pay for jury
duty, together with a provision permitting reduced pay for superannuated workers.)
There were seven substantive contract provisions-previously questioned by union
spokesmen-which Respondent 's second submission repeated without change. With
INTER-MOUNTAIN DAIRYMEN, INC. 1601
respect to eight matters, however, Respondent's second proposal reflected some sig-
nificant changes. Most of these, I find, were consistent with those mutual conces-
sions, previously noted, which had presumptively been reached during the parties'
last negotiation session. Some further changes within Respondent's submission-
not specified within General Manager Hull's testimony as matters of consensus dur-
ing the August 24 session-should, however, be noted:
1. Respondent's first counterproposal regarding `-`Non-Work Restrictions" was
modified to confirm the right of the cooperative's producer-owners to perform
drivers' work.
2. Respondent's prior proposal regarding the reimbursement of drivers for
lodging and meal expenses incurred on trips was modified; the stated conditions
precedent to payment were somewhat liberalized.
3. Respondent's previously proposed vacation clause was modified to elimi-
nate a provision that workers who resigned or suffered discharge for cause,
would forfeit their accrued vacation credit. Further, though Respondent pro-
posed to grant less vacation credit than its current policy provided following
one-years service, greater vacation credit was proposed for workers with three
and twelve years of service.
4. Respondent finally specified the contract provisions which it proposed to
consider applicable to contract drivers. These were to include the recognition
and union shop clauses, the provision which specified those circumstances under
which supervisors, exempt employees and producer-owners could perform work
within the bargaining unit, the guarantee that wages would not be reduced by
virtue of contractual provisions, the provision which specified the procedures
to be followed in presenting claims for underpayment, and various so-called
"housekeeping" provisions.
From the face of Respondent's proposal, determination seems warranted that no
special provisions were proffered regarding the compensation which drivers hauling
"military milk" would receive. Respondent's job classification and salary proposals
for delivery drivers, delivery drivers' helpers, country drivers, and interplant drivers
were restated without change, with respect to contract drivers, likewise, Respondent
renewed its February 1 proposal that compensation should be paid "according to the
terms of their individual contracts in existence at the time" when the contract was
signed.
When testifying with respect to several days which elapsed between the August 24
bargaining session and the Union's purported "rejection" of Respondent's second
proposal, Kramer and Ashcraft proffered distinctively divergent recollections.
The Union's secretary-treasurer, referring to his August 24 session notes, testified
that Kramer had declared, during the session, his desire to meet again, and had prom-
ised to submit Respondent's proposal by August 26. On August 25, according to
Ashcraft, they "spoke" with respect to another matter. The union representative's
August 26 notes-so he testified-show that he telephoned Kramer pursuant to the
latter's request, but was told that Respondent's counsel was then "meeting" with
someone. Finally, testifying further from his notes, Ashcraft declared that he had
telephoned Kramer on August 27, reporting to the latter's secretary that Respondent's
proposal had been rejected; he was told, so he reported, that Kramer was "not in"
then, but would get the message. (Generally, Coffey corroborated Ashcraft's
recital. He testified, basing his testimony upon recollection merely, that Ashcraft
had telephoned the office of Respondent's counsel two to four times following their
August 24 session, to arrange another bargaining meeting; Kramer, however, accord-
ing to Coffey's testimony, could not be reached. Coffey conceded that he, himself,
had not tried to communicate with Respondent's counsel. When questioned regard-
ing the Union's purported "rejection" of Respondent's second proposal, Coffey
declared that it was presented to the cooperative's drivers for approval; according
to his testimony no formal vote, with respect to the proposal, was ever taken.)
Proffering himself as a witness in Respondent's behalf, Kramer testified, contrariwise,
that he had telephoned Ashcraft on August 28 with a query regarding the Union's
relation to Respondent's last proposal. He was told, so he reported, that the proposal
had been rejected; no purpose would be served by further negotiations; and the
Union proposed to call a strike and take "other" economic action. This, Ashcraft
denied; he reported nothing in his notes-nor any personal recollection-suggesting
that Respondent's counsel had, consistently with his testimony, telephoned to ques-
tion him (Ashcraft) regarding the Union's position on the date designated.
1602 DECISIONS •0F NATIONAL LABOR RELATIONS BOARD
With respect to, these developments , however, no precise chronology really need
be.determined . For that reason , I have not rejected , completely , either version prof-
fered for my consideration . - On the record as a whole-with due regard for the
logic of probability-I consider it most likely that Ashcraft did try to telephone
Kramer on August 26 to discuss a prospective date for some further negotiation.
Since Kramer, however, had dispatched Respondent 's contract proposal by mail that
very day, I consider it highly unlikely that Ashcraft 's try to reach him was made
with the cooperative 's proposal in hand . The union representative 's reaction , when he
did receive it, was clearly negative ; whether he spoke to Kramer's secretary or
Kramer, personally , there can be no doubt that Respondent 's counsel was given
the clear-cut message that the cooperative 's last submission would not be considered
satisfactory . In view of subsequent developments-which I propose to discuss fur-
ther-determination likewise seems warranted that Secretary -Treasurer Ashcraft
did tell Kramer , either in words or substance , that he proposed to seek a contractual
consensus by some means other than further negotiations . I so find.
This news was communicated to Respondent 's general manager ; on August 28
Hull repeated , for the benefit of the Respondent 's drivers-during a meeting at their
Colorado Springs shop office-the prepared statement which he had delivered, pre-
viously, following the Union 's February 1 suspension of negotiations.
The next day one union picket appeared at Respondent 's Colorado Springs office.
So far as the record shows , he maintained his patrol there-about one -half block
from Respondent 's plant or depot , where the cooperative 's drivers began or termi-
nated their milk collection or delivery runs. Though the record does not reveal the
precise language of the picket 's sign , there is Ashcraft 's testimony-proffered without
contradiction-that his picketing was maintained to protest the claimed "inade-
quacy" which had purportedly marked prior contract negotiations.
d. Subsequent developments
Ashcraft , so far as the record shows , sought no further bargaining conferences.
Despite Coffey 's testimony that the Union 's secretary-treasurer did telephone
Respondent 's counsel several times, determination seems warranted , and I find, that
no real effort was being made to continue their contract talks ; assuming , arguendo,
that Ashcraft did try, without success, to reach Kramer personally, nothing in the
record would justify a finding that Respondent 's counsel was ever requested to return
such calls.
On September 14, 1964, Respondent's comptroller , pursuant to General Manager
Hull's direction , presented a local insurance broker-Justad Insurance Center-with
a deposit premium check to confirm Respondent 's prior decision to purchase two
Employee Group Policies, with retroactive August 22 effective dates. And 1 month
later, a check calculated to cover the balance of premiums due-for the period from
August 22 to November 1 inclusive-was dispatched directly to Zurich Insurance
Company, Respondent 's insurance carrier. Since the date last designated , quarterly
premium payments , so far as the record shows , have been made. The policies in ques-
tion cover all Respondent's employees , General Manager Hull included.
3. Review and conclusions
a. General principles
The duty to bargain collectively-detailed in Section 8(d) of the statute-requires
that parties privy to collective -bargaining negotiations "meet at reasonable times
and confer in good faith with respect to wages, hours , and other terms and condi-
tions of employment" with a view to the final negotiation of contracts . Though the
statute does not "compel either party to agree to a proposal or require the making
of a concession ," something more than mere "surface " negotiation must, clearly, be
undertaken . N.L.R.B. v. Whittier Mills Company , et al., 111 F. 2d 474, 478 (C.A.
5). To state the matter differently, firm adherence to some declared bargaining posi-
tion will not, necessarily , merit proscription as constituting a refusal to bargain in
good faith ; nevertheless , Section 8 ( a)(5), qualified by Section 8(d) pieviously
noted, will not sanction a company 's "giving the union a runaround" while its repre-
sentatives merely purport to meet with union spokesmen for the purpose of negotiat-
ing a collective -bargaining agreement . N.L.R.B . v. Athens Manufactwing Company,
161 F. 2d 8 (C.A. 5). Good-faith collective bargaining , in short, calls for more than
purely "formal " conferences between management and labor representatives , with each
set of negotiators maintaining previously formulated "take it or leave it " positions;
rather, such bargaining contemplates a willingness to conduct negotiations "with
an open mind and purpose to reach an agreement consistent with the respective rights
INTER-MOUNTAIN DAIRYMEN, INC. 1603
of the parties " which they can then formalize , within a collective -bargaining con-
tract. N.L.R .B. v. Insurance Agents' International Union , AFL-CIO (Prudential
Ins. Co.), 361 U.S. 477, 485; N.L.R.B. v. American National Insurance Co., 343 U.S.
395, 403-404; N .L.R.B. v . Herman Sausage Company, Inc., 275 F . 2d 229 , 231-232
(C.A. 5); N.L.R.B. v . Darlington Veneer Company , Inc., 236 F . 2d 85, 89 (C.A. 4);
L. L. Majure Transport Company v. N.L.R .B., 198 F. 2d 735 , 739 (C .A. 5). Mere
sterile discussion with respect to union and management differences will not satisfy
the statute.
When determining whether particular negotiations , which have ended in stalemate,
were really conducted with "good faith " therefore , consideration must be given vari-
ous "subtle and elusive factors" which-viewed within their context-could be said
to justify some conclusion whether or not the negotiators had conducted discussions
with a fair mind and sincere purpose to find some basis for agreement . Many fac-
tors deemed logically relevant ' with respect to such determinations will, necessarily,
derive from largely subjective considerations ; they may well be susceptible of proper
evaluation only when the facts of the particular case have been fully reviewed. The
line of demarcation between permissible "hard bargaining" and statutorily pro-
scribed "bad -faith bargaining" will, therefore , frequently be difficult to determine.
Basically, relevant questions regarding a negotiator 's "good faith" will require, for
their resolution , determinations with respect to his motive or state of mind; determi-
nations which must, normally , rest largely upon circumstancial evidence. See
N.L.R.B . v. Reed & Prince Manufacturing Company, 205 F . 2d 131 , 139-140 (C.A.
1), in this connection.
Whether statutory "good-faith" standards have been met will be particularly dif-
ficult to determine further whenever the record reveals no forthright refusal by com-
pany spokesmen to treat with union representatives . Thus, within the decision last
cited, the Court of Appeals for the First Circuit noted that:
... this is not a simple case where the employer has made a clear refusal to,
recognize or bargain with the certified representative of its employees . Rather,
it is one where the employer engaged in a lengthy series of bargaining confer-
ences, which got nowhere . In such a case the question is whether it is to be
inferred from the totality of the employer 's conduct that he went through the
motions of negotiation as an elaborate pretense with no sincere desire to reach
an agreement if possible , or that [he ] bargained in good faith but was unable
to arrive at an acceptable agreement with the union . [Emphasis supplied.]
When a negotiator 's "total course of conduct " must be reviewed for the purpose
noted, Section 8(d)'s caveat that the obligation to bargain "does not compel either
party to agree to a proposal or require the making of a concession " will not, alone,
provide a touchstone for decision whenever parties have failed to reach a consensus.
Particular circumstances , however-considered in context-may clearly show a nego-
tiator's honest desire to reach a contract ; then, certainly his mere failure to concur
with respect to a proposal , or to make a concession thereon , may not be construed
as revelatory of bad faith.
Whether or not some honest purpose to reach a consensus can be found , however,
may well depend upon the negotiator 's general or particularized response to proposals.
Lack of willingness to compromise may legitimately be, sometimes , considered revela-
tory of a purpose not to reach agreement ; stating the matter more strongly , a party's
predetermination not to yield , manifested without stated reasons or conjoined with
a refusal to listen to opposing reasons, may well be considered revelatory of a disposi-
tion not to bargain . See Roy E. Hanson, Jr., Mfg., 137 NLRB 251 , 265, and cases
therein cited. Concessions-when proffered-do not, however, necessarily show
good faith. N.L.R.B. v. Herman Sausage Company, Inc., supra . As the Court of
Appeals for the Fifth Circuit therein stated:
. while the employer is assured these valuable rights, he may not use them as
a cloak.... bad faith is prohibited though done with sophistication and finesse.
Consequently , to sit at a bargaining table, or to sit almost forever, or to make
concessions here and there , could be the very means by which to conceal a pur-
poseful strategy to make bargaining futile or fail . Hence, we have said in more
colorful language it makes more than mere "surface bargaining ," or "shadow
boxing to a draw," or "giving the union a runaround while purporting to be
meeting with the union for [the] purpose of collective bargaining ." [Emphasis
supplied.]
With due recognition, therefore, that no reliable shortcut can be found when a trier of
fact must determine whether an employer has bargained in good faith pursuant to the
statute's command, the negotiations with which this case is concerned have been
221-374-66-vol . 157-102
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reviewed closely . And, with the general course of those negotiations in mind , General
Counsel 's present contention that Respondent did, really, pursue a policy of surface
bargaining , with no real wish to reach a consensus , must now be considered.
b. The general course of negotiations
General Counsel contends that Respondent 's refusal to bargain in good faith began
April 20, 1964 . Contract negotiations , however, were then suspended . So far as I
can determine , General Counsel's designated date merely marks the commencement
of the 6-month period which preceded service of the Union's charge with respect to
this matter.
The specific negotiations which must necessarily concern us, therefore , date from
July 3, when the parties resumed contract talks, pursuant to the union secretary-
treasurer's prior request, following a 5-month hiatus. (Consistently with well-
established decisional doctrine , however , their previous negotiations between Octo-
ber 9, 1963, and February 1, 1964, need not be disregarded ; since Respondent's
posture during these negotiations , with respect to various union proposals , could con-
ceivably provide a relevant context-with relation to which the propriety of Respond-
ent's later challenged course of conduct might well be weighed-some reference to
such "background" considerations may, legitimately, be made.) With respect to
this final period of negotiation, I find myself constrained to conclude that General
Counsel has failed to produce sufficient "reliable, probative, and substantial" docu-
mentary evidence or testimony to sustain his contention that Respondent, basically,
negotiated in bad faith, hoping for contractual stalemate rather than consensus.
Within 2 months after Respondent and union representatives resumed contract
talks, there were three bargaining sessions. Following the last of these, Respondent's
counsel-pursuant to commitments made-submitted a complete counterproposal.
This submission clearly reflected a number of concessions, calculated to meet and
satisfy union protests previously presented. Nothing in the record, however, would
warrant any determination that union spokesmen-during these final negotiating con-
ferences-reciprocally conceded any readiness whatever to withdraw or modify
previously presented contract demands which Respondent's negotiators had declared
their reluctance to grant.
When their contract talks were terminated-hard on counsel's presentation of
Respondent 's second complete proposal-they were terminated pursuant to a decision
made by union representatives. (So far as the record shows, the contract proposal
which Respondent's counsel submitted was never really "rejected" knowingly by
Respondent's drivers; Union Secretary-Treasurer Ashcraft, solely, seems to have been
the responsible person who decided that the cooperative's submission merited discard.)
Though the record may well warrant a determination that Ashcraft did try to com-
municate with Kramer following their August 24 session , his first telephone call seems
to have been made before he received Respondent's contract proposal. Subsequent
telephone calls were made-so the record shows-merely to leave a message for
Respondent's counsel that his submission was considered less than satisfactory. Sub-
stantially, therefore, Secretary-Treasurer Ashcraft was the person responsible for
deciding that contract talks with Respondent's representatives had reached the point of
impasse, and that some "other" means, calculated to force a consensus, would have to
be tried.
True, most of Respondent 's concessions within its second contract proposal did deal
with matters of presumably peripheral union concern; with respect to most so-called
"bread and butter" questions-such as dues checkoff, health and welfare, and driver
compensation-Respondent 's submission conceded little or nothing . Considered
within their total context , however , these signs of firmness regarding significant con-
tractual matters cannot, legitimately , be found revelatory of a determination to reject
collective-bargaining principles.
Relative to Respondent's purported "lack of good faith" generally, General Coun-
sel has, within his brief, cited testimony and documentary material which-so he
claims-reveals the patent "disinterest" with which spokesmen for the cooperative
pursued negotiations. These record citations, however, frankly lack persuasive
power. Respondent's counsel may really have been the passive party with respect to
setting dates for bargaining conferences . Section 8 (d) of the statute , however, does
not require employers to seize or maintain the initiative with respect to negotiations;
that section merely declares the "mutual obligation" of employers and bargaining
representatives to meet at "reasonable times" and confer in good faith with respect
to various mandatory subjects of collective bargaining . ( Regardless of the statute,
however, fairness would seem to require a reference to the fact that it was Respond-
ent's counsel who voluntarily notified union representatives-within one day after
the Union 's certification-that he, together with General Manager Hull, was ready
INTER-MOUNTAIN DAIRYMEN, INC. 1605
to negotiate; Kramer, therefore, may properly be said to have made the first move.)
Reference has been made to the prolonged nature of the negotiations. However,
credible testimony-which I have previously summarized-reveals that there were
eight bargaining sessions within a 4-month period, following the commencement of
contract talks. Realistically, such a conference schedule cannot be considered pro-
tracted. When, thereafter, negotiations were suspended-following the February 1
meeting of Respondent's drivers-the union spokesmen were clearly responsible.
Kramer was told of their dissatisfaction with Respondent's first complete contract
proposal; they did not, however, suggest further conferences. General Manager Hull's
testimony-which, in this respect, stands without contradiction-will warrant a
determination that they led Respondent to believe, rather, that pressure tactics, calcu-
lated to force a consensus by some "other" means, would be their next resort. There-
after, when a Federal Commissioner of Conciliation provided the parties with a
chance to resume their suspended contract talks, Secretary-Treasurer Ashcraft let
the opportunity pass. Responsibility for the 5-month suspension of negotiations, then,
clearly must be laid at the Union's door.
True, when such negotiations did resume, there were only three conferences held
within a 2-month period. Several meetings tentatively scheduled were-so the rec-
ord shows-postponed at Kramer's request. General Counsel's presentation, how-
ever, provides no persuasive support whatever for a determination that counsel's
requests were captiously or frivolously made; nor would any conclusion be war-
ranted that they derived some sort of planned program to stall negotiations. (This
Board has certainly held that the duty to bargain in good faith includes "the duty
to be available" for negotiations at reasonable times as the statute requires. "M" Sys-
tem, Inc., Mobile Home Division Mid-States Corporation, 129 NLRB 527, 529.
Consistently with such a decisional doctrine, the Board has held respondent firms
guilty of refusal to bargain on records which reveal some failure on their part to
display the "degree of diligence" which a proper performance of the statutory bar-
gaining obligation would require, regardless of whether the resultant delays, with
respect to bargaining sessions, were or were not inspired by some deliberate scheme
to engage in dilatory tactics. Insulating Fabricators, Inc., Southern Division, 144
NLRB 1325, 1326-1329; "M" System, Inc., et al., supra. Such determinations have,
however, been bottomed upon records which reveal some relatively gross failure of
diligence, clearly calculated to prolong current negotiations and stall any prospects
for consensus. Factually, these decisions must be considered distinguishable. With
due regard for the whole record-but particularly that portion which reveals the
Union's responsibility for a 5-month suspension of negotiations-Respondent can-
not, legitimately, be faulted because the negotiations with which we are concerned
were finally limited to some 12 meetings within a total period of 11 months. (There
is a contention, proffered in General Counsel's brief, that Respondent revealed its
lack of concern regarding the negotiations by limiting the duration of the bargaining
sessions. The record, however, fails to substantiate counsel's position. First: There
is testimonial conflict, with the union spokesmen reporting bargaining sessions less
than 2 hours long, and Respondent's negotiators declaring that many sessions lasted
longer; since their presently variant recollections are, clearly, derived from purely
subjective reactions, not contemporaneously recorded, General Counsel cannot be
found to have sustained his contention by preponderant testimony. Secondly:
Though the record does reveal at least two sessions which were concededly short
and generally not productive, determination would seem to be warranted that their
brevity was fortuitous, rather than predetermined. Cf. Insulating Fabricators, Inc.,
etc., supra. Thirdly: The record reveals at least one occasion when Respondent's
counsel suggested that a session be convened early, so that a major portion of the
working day could be devoted to contract discussions. Fourthly: No protest on
this score was contemporaneously proffered by union representatives; so far as the
record shows, they considered the sessions sufficiently long to permit a fair exchange
of views and proposals.) General Counsel, I find, has failed to sustain his conten-
tion that Respondent's negotiators revealed "disinterest" regarding the general course
of their contract talks, sufficient to provide persuasive support for a determination
that they sought some nonproductive stalemate rather than contractual privity.
General Counsel contends that Respondent's bargaining posture with respect to
contract haulers, likewise, should be found persuasive of bad faith. In this connec-
tion, his brief refers to Coffey's testimony that:
. during the entire course of bargaining, the Company had taken the position
that it would not negotiate about the contract haulers ...
Coffey did so testify; his testimony, however, must be rejected as frivolous or mis-
taken. The Union's prior petition for Board certification had defined the bargaining
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unit which it sought to represent with "owner-drivers" excluded therefrom on the
ground that they were independent contractors; Respondent, however, had sought
their inclusion. Liter-Mountain Dairymen, Inc., 143 NLRB 782, 784-787. With
matters in this posture, the contention that Respondent took a position-when serious
negotiations began-that the Union had no right to represent or bargain for contract
haulers strains credulity. Positive proof, regarding the matter, may be found in the
record. Both of Respondent's draft proposals contained some provisions specifically
referring to contract haulers, their responsibilities, privileges, and compensation.
With respect to this driver group, Secretary-Treasurer Ashcraft, rather than Coffey,
defined Respondent's position correctly; substantially, he testified that Kramer and
Hull considered their wages, hours, and terms and conditions of work, currently
defined by contracts previously negotiated. Respondent's negotiators contended,
therefore, that such matters could not, and should not, be renegotiated while the
contracts then current, governing the compensation of such owner-drivers, were still
in force. This position, though certainly somewhat rigid, clearly seems to have
been bottomed on substantive business considerations; no warrant can be found for
a determination that it derived from some rejection of the collective-bargaining prin-
ciple so far as contract drivers were concerned.
Finally, General Counsel would find the parties' failure to reach a consensus on
major contract questions persuasive with respect to the question of Respondent's
good faith.
This contention, though simple to state, can rarely be disposed of shortly.
Substantially, its disposition requires some substantial record review to determine
whether the Respondent struck a so-called "take-it-or-leave-it" posture, thereby reveal-
ing its covert determination to forestall a contractual consensus. Previously, within
this Decision, reference has been made to Section 8(d); the yardstick laid down,
therein, for the measurement of "good faith" has, however, not been considered rigid.
Necessarily, such a concept has meaning "only in its application to the particular
facts of a particular case." N.L.R.B. v. American National Insurance Co., 343 U.S.
395, 410. As the Court of Appeals for the Second Circuit stated in N.L R.B. V.
National Shoes, Inc., and National Syracuse Corporation, 208 F. 2d 688, 691-692,
the problem is essentially "to determine from the record the intention or state of
mind of the [employer] in the matter of [his] negotiations with the Union In this
proceeding, as in many others, such a determination is a question of fact determined
from the whole record." Moreover, as the Supreme Court stated in American
National Insurance Co., supra, 404, it is "apparent from the statute itself that the
Board may not, either directly or indirectly, compel concessions or otherwise sit in
judgment upon the substantive terms of collective bargaining agreements." Neces-
sarily, this principle carries a corollary. Just as the statute "contains no authority
to force an agreement where the parties have reached an impasse" (N L.R.B v.
United Clay Mines Corporation, 219 F. 2d 120, 126 (C.A. 6) ), so also refusal to
bargain cannot be equated with "refusal to recede from an announced position"
advanced and maintained in good faith. Division 1142, Amalgamated Association
of Street, Electric Railway and Motor Coach Employees of America, AFL-CIO
(Continental Bus System, Inc.) v. N.L.R.B, 294 F. 2d 264, 266 (C.A.D.C.).
With these principles in mind, I fail to find persuasive General Counsel's contention
that Respondent provided proof with respect to its lack of good faith merely through
its failure to reach a contractual consensus on major contract questions with union
representatives.
Within his brief, General Counsel does not specify which contractual provisions
herein should presently be considered "major" matters. My review of the record,
however, does suggest that, throughout their talks, five subjects-checkoff, workweek
schedules, contractual coverage for owner-drivers, health and welfare, drivers' com-
pensation-largely preoccupied the negotiators. With respect to the first of these, I
note that-though Respondent firmly refused to concede the Union's checkoff
demand-Kramer and Hull did not refuse to discuss the subject; Respondent's gen-
eral manager testified, credibly, that his reasons for rejecting the Union's demand
were fully stated and discussed at length. Similar comment seems warranted regard-
ing the parties' discussion on contract hauler questions. Though Respondent did
refuse to modify their current, separately negotiated compensation arrangements,
Hull's reason for firmness, so far as the record shows, was fully explicated. My review
of the record does show Respondent's proposal to limit the benefits which contract
drivers would derive from collective-bargaining contract coverage; so far as the
record shows, however, neither Ashcraft nor Coffey challenged Respondent's pro-
posal in this respect. (Their bargaining demand for contract haulers seems to have
been confined to proposals for the revision of Respondent's current, contractuall}
specified, compensation schedules; with respect to such proposals, however, the record
warrants a finding of genuine impasse, previously noted.) With respect to Respond-
INTER-MOUNTAIN DAIRYMEN, INC. 1607
ent's work schedule proposals , General Manager Hull's testimony-which neither
union spokesman contradicted-warrants a determination that a tentative consensus
was reached August 24 ; I so find. Respondent 's proposal regarding health and life
insurance coverage for drivers-namely, their coverage as part of Respondent 's total
employee complement , within a separate cooperative-negotiated insurance contract-
though presumably less than satisfactory so far as the Union was concerned, does
not seem to have been comprehensively discussed . Considered as a whole, the
record warrants a determination that Secretary -Treasurer Ashcraft deferred health
and welfare questions pending his receipt of Respondent 's proposed program; when
that program was finally submitted for his consideration , however, he failed to note
any specific grounds for its rejection . Finally, with respect to drivers' compensation,
union dissatisfaction with the cooperative 's proposal was clearly manifested. So far
as the record shows, however, most facets of the problem had been fairly canvassed;
Respondent's position , though firmly held, had been rationally supported . With due
regard for the record as a whole, therefore , determination would not be warranted
that Respondent 's posture reflected a state of mind calculated to foreclose a con-
tractual consensus
Reference has previously been made to judicial pronouncements that the statute
"contains no authority to force an agreement where the parties have reached an
impasse" genuine in nature . Refusal-to -bargain charges , therefore , cannot be sus-
tained upon proof that a respondent firm has merely "refused to recede from an
announced position" pioffered and maintained in good faith . N.L.R.B. v. United
Clay Mines Corporation , supra; Division 1142, Railway and Motor Coach Employees
v. N.L.R.B., supra. General Counsel's presentation herein, considered as a whole,
reveals nothing more than such "hard bargaining " which the Union finally sought to
counter with picket line pressures . The decisional doctrines noted, clearly, would
preclude a determination that-on these facts-Respondent 's course of conduct merits
statutory proscription.
To conclude , with respect to this portion of General Counsel's case-determination
seems warranted that the parties, without fault chargeable to Respondent 's nego-
tiators, had reached a genuine bargaining impasse after 4 months of negotiation,
before the Section 10 ( b) cutoff date. Though Secretary -Treasurer Ashcraft may,
thereupon , have threatened to break the impasse through pressures divorced from the
conference room and bargaining table, the record suggests that-when confronted
with Respondent's first counterproposal which he considered less than satisfactory-
he finally let matters slide . Respondent was, thereby , permitted to deduce union
acquiescence with respect to the fact of impasse . When-following a 5-month hiatus
chargeable primarily to union laches-negotiations were resumed , some progress
was made; Respondent 's spokesmen did modify their previously declared positions
in certain respects . Secretary-Treasurer Ashcraft , however, still dissatisfied despite
these concessions , chose once more to declare further bargaining bootless. With
matters in this posture , I find, General Counsel has failed to sustain-through a pre-
ponderance of the evidence-his contention that the Union 's belief was well-founded,
and that Respondent 's state of mind precluded the possibility of consensus with
respect to major contract questions.
c. Unilateral changes
General Counsel would , however, have Respondent found guilty of refusal to bar-
gain , per se, because of certain salary changes and further modifications in terms and
conditions of work which its manager effectuated with union consultation or concur-
rence. Such a determination , in my opinion, would not be warranted.
Whatever changes Respondent made were effectuated at a time when its manage-
ment had reason to believe that a substantive impasse, with respect to union contract
negotiations , had been reached. Secretary -Treasurer Ashcraft had declared the
cooperative 's first complete counterproposal less than satisfactory ; he had further
threatened , though concededly in somewhat Aesopian language, that Respondent
would be subjected to economic pressures calculated to force a consensus closer to
union terms . Within such a context-currently well-established decisional doctrine
teaches-firms confronted with a breakdown in contractual negotiations may well be
privileged to make certain unilateral changes, limited in scope. N.L R.B. v. Cromp-
ton-Highland Mills, Inc., 337 U.S. 217. Certainly, whatever substantive impasse is
claimed must be genuine ; respondent firms cannot rely upon the mere fact of deadlock
to justify unilateral conduct, when a determination would be warranted that such a
deadlock had derived from their "bad-faith" negotiations. Safway Steel Scaffolds
Company of Georgia, 153 NLRB 417, footnote 3; Herman Sausage Co., Inc., 122
NLRB 168, 171-172, enfd. 275 F. 2d 229 (C.A. 5). With matters in their present
posture, however , no such determination, calculated to stigmatize Respondent's con-
duct retrospectively, would be warranted.
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regarding the specific "unilateral" changes which General Counsel presently chal-
lenges, little more need be said . Three drivers received salary increases ; such raises,
however, clearly fell within the limits of Respondent's previously determined com-
pensation policy. Further, no raise given boosted its recipient's salary beyond a
level previously proposed by Respondent 's negotiators , which the union spokesmen
had rejected . Finally, note should be taken that Respondent 's management merely
raised the salary level of three drivers within a bargaining unit which purportedly
included 21 workers similarly classified ; such a limited number of raises cannot,
really, be considered revelatory of some proscribed "refusal" to negotiate . Certainly,
no one could conclude, legitimately , that Respondent 's decision to take such action
would "directly obstruct or inhibit" further discussion with respect to compensation
matters. Cf. N.L.R.B. v. Benue Katz, etc., d/b/a Williamsburg Steel Products Co.,
369 U.S. 736, 747, in this connection.
General Counsel's contention with respect to Respondent 's decision to provide its
drivers with uniforms and laundry service merits similar disposition. To put the
matter bluntly : union spokesmen had proposed such a contractual provision; while
negotiations were in suspension , Respondent 's management , substantially , granted
the Union's demand. Though its decision, necessarily, removed the subject from the
bargaining table, such removal can hardly be considered reasonably calculated to
disparage the Union or to undermine its status as the drivers' bargaining representative.
Considered as a whole, the record will not support a conclusion that Respondent's
management-during the period with which we are concerned-modified the coop-
erative's vacation policy. That policy had been determined long before the com-
mencement of the Union 's representation campaign . True, while negotiations were
in suspension, several workers not yet fully qualified for vacation credit under
Respondent's then current vacation policy, were given paid vacations. Hull's testi-
mony, however , that such vacation grants reflected some ad hoc managerial decisions
bottomed on his desire to accommodate the workers concerned , stands without con-
tradiction. Within their context, therefore, these vacation allowances cannot legiti-
mately be considered calculated to preclude any negotiated modification of the
cooperative's vacation policy.
Regarding Respondent 's health and life insurance program, some further comment
would seem to be warranted. Throughout the negotiations, Respondent's spokesmen
had professed their principal 's desire to "institute and maintain " some kind of health
and welfare program which would provide the same benefits for drivers within the
Union's contract unit as for Respondent's other workers. (Coffey's testimony, which
I credit in this connection, reveals that Kramer and/or Hull referred to Respondent's
position , though in general terms, several times during their early contract talks;,
since, however , Respondent 's management was still "shopping" then , for the best
possible policy it could purchase, the union spokesmen could not be presented with a,
specific, detailed plan.) Such was, indeed, Respondent's draft contract proposal.
The Union's position with respect to the matter in question, however, was somewhat
unclear. Within its proffered Associated Milk Dealers contract, no provision regard-
ing "health and welfare" can be found beyond a reference to some previously nego-
tiated arrangement for benefit coverage purchased through a trust fund. Further, the
Union's contract with Colorado Milk Transport, which the union negotiators had
likewise presented for considei ation by Respondent 's representatives , merely reflected
that firm 's commitment to continue "its present health and welfare plan" with joint
employer-employee contributions . Upon the record presently before me , therefore,.
I am satisfied that-before the negotiations were first suspended-discussion between
the parties regarding "health and welfare" benefits was purely tentative.
With matters in this posture , certainly , Respondent 's management was privileged'
to pursue negotiations with various insurance carriers , calculated to produce a defini-
tive health and life insurance benefit program for union consideration . And such,
negotiations with respect to insurance coverage-so the record shows-were, indeed,
pursued during the period when union contract talks were suspended. Though the
record does not show, precisely, when Respondent's management received-from its
broker or prospective carrier-the latter's definitive proposal for health and life
insurance coverage , no determination seems warranted that General Manager Hull
unduly delayed or postponed its presentation for union consideration . During their
August 11 bargaining session, Ashcraft was told that a concrete insurance proposal
was ready for Respondent's consideration; when he requested a copy, one was pro-
vided with reasonable promptitude . True , Respondent subsequently purchased the
proposed coverage without having received any union reply commenting on its suffi-
ciency. Within this decision, however, reference has previously been made to Ash-
craft's late August rejection of Respondent's second counterproposal; when placed
on notice, for the second time , that the Union proposed to consider the negotiations
suspended, Respondent cannot properly be found precluded from a decision to pro-
INTER-MOUNTAIN DAIRYMEN, INC. 1609
ceed with its previously proposed purchase of insurance coverage . (In this connec-
tion, I find , no significance should be attached to the fact that such coverage was
purchased with a retroactive effective date. Such arrangements are common ; nothing
in the record would warrant a determination that Respondent sought or consented to
purchase retroactive insurance coverage for reasons which might be considered
relevant in collective -bargaming negotiations.)
By way of summary : Respondent's challenged "unilateral " decisions , I find, can-
not properly be proscribed as constituting per se refusals to bargain . Nor, I find,
should they be deemed persuasively relevant with respect to General Counsel's broad-
side contention that Respondent 's total course of conduct-both at and away from
the bargaining table-reflected bad faith sufficiently to merit statutory proscription.
C. The decertification petition
1. Issues
Following the Union 's second suspension of negotiations , previously noted, there
developed-within the cooperative 's driver corps-some sentiment for the Union's
decertification . When, thereafter , the certification year passed , several documents-
purportedly prepared to start requisite decertification proceedings-were submitted
for Regional Office consideration.
General Counsel contends-within his complaint-that Respondent , through Gen-
eral Manager Hull and Driver Supervisor Leman Bales, sponsored or initiated these
decertification petitions , provided assistance with respect to their circulation, and
supported the solicitation of petition signatures . Respondent , however, contends
that senior rank-and-file driver Leland Lee-not a supervisor-was the decertifica-
tion petition's principal proponent ; that he functioned as such for his fellow drivers;
and that neither General Manager Hull nor Driver Supervisor Bales can, on the
present record , be considered responsible , either for the petition 's initiation, or for
Lee's protracted attempt to procure signatures for it which would satisfy the Board's
formal requirements . Basing its position on General Counsel 's purported "failure of
proof" with respect to these matters , Respondent contends that no warrant may be
found in the record for a determination that management spokesmen , thereby, inter-
fered with , restrained , and coerced its drivers with respect to their exercise of rights
statutorily guaranteed.
2. General chronology
Sometime during late August or early September-shortly after General Manager
Hull's August 28 repetition of his previously delivered statement-several of Respond-
ent's drivers began to discuss a possible "new vote" with respect to union
representation.
During September 's first week, I find, several drivers-with one Leland Lee as
their principal spokesman-sought a conference with General Manager Hull; they
discussed, with him, the possibility of procuring such a "new" election . Taken as a
whole, the record with respect to their conversation persuades me that some reference
was then made to the need for a written "petition" form, signed by the drivers con-
cerned, before any request for such a vote could be directed to the Board 's Regional
Office; Hull advised the group that such a written communication would be better
than a telephone call. (The record, testimonial , and documentary-both with respect
to the discussion between General Manager Hull and Respondent 's drivers and with
respect to subsequent developments-certainly merits characterization as confused.
Lee, though summoned as General Counsel's witness , was patently "ill-at-ease" while
giving testimony ; considered as a whole, his recital basically reflects sustained eva-
sion, briefly punctuated with moments of candor. Clearly a reluctant witness, Lee's
testimony was liberally sprinkled with failures of recollection , purported temporal
confusion , retractions and recantations , and statements reasonably calculated to
muddy the record . Much of this may have been due to nervous tension ; for some
reason , never stated , Lee must have considered his situation precarious . Whatever
may have motivated his testimonial recitals, however , he certainly wove the proverbial
"tangled web " with his seemingly disorganized recollection. Other witnesses , whether
proffered in General Counsel's or Respondent 's behalf, likewise proffered vague and
confused testimony , frequently marred with failures of recollection ; with respect to
some, further , subconscious rationalization may well have colored memory. With
such a record , factual determinations must necessarily be based , not on specific testi-
mony, proffered by some particular witness deemed completely or largely credible,
but rather on some reasonable synthesis derived from the testimonial and documentary
record considered as a whole, with due regard for the natural logic of probability.
Cf. Southeastern Motor Truck Lines, 113 NLRB 1122 , 1124-1127, citing N.L.R.B.
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
v. Universal Camera Corporation, 179 F. 2d 749 (C.A. 2); Phaostron Instrument
and Electronic Company, 146 NLRB 996, 998, enfd. 344 F. 2d 855 (C.A. 9). My
findings with respect to this portion of General Counsel's case, therefore, rest upon
such a synthesis; whenever necessary, further reasons for particular determinations
bottomed upon considerations of probability, will be noted.) Lee's testimony with
regard to this conversation, though certainly less than clear, will support a determina-
tion that several "boys" within the driver group had previously suggested he represent
them in petitioning for a new representation election; that, during the conversation
now under consideration , he so advised Respondent 's general manager ; and that Hull
then asked him to represent the men. When queried by General Counsel in direct
examination, Lee testified as follows:
Q. (By Mr. PHILLIPS.) You recall knowing that Mr. Hull asked you to
represent the men in the second petition?
A. He could have.
Q. I am asking you ... if you recall this at all.
A. Yes .
Q. Would you describe the circumstances?
A. He just asked me if I wanted to be the representative and talk to them or
something like that.
Subsequently, he reaffirmed this testimony, declaring that a statement within a previ-
ously signed affidavit which he had given a Board representative, to the effect that
Hull had asked him "to represent the boys," was phrased in his language, and was
correct. Further, he confirmed the substantial correctness of his prior statement
that Hull had "asked" him to "circulate" the second petition, but that all he had
done was to "put it" on Bales' desk. Though he subsequently testified in cross-
examination-when confronted with leading questions-that Hull had merely given
him "permission" to represent the men, I am satisfied that this qualification of his
prior recital merely reflects his less-than-commendable readiness to trim and tailor
previously given testimony when given reason to believe that, taken at face value,
such testimony might conceivably prejudice Respondent's defense. With due regard
for the record as a whole, I am satisfied that, when Hull learned from Lee that some
drivers wanted a new election, he welcomed the news and requested Lee to take
necessary steps. I so find.
Shortly thereafter, Lee requested the secretary in Respondent's office, Marjory
Carmack, to prepare a document-designated within the present record as a petition-
for Respondent's drivers to sign. (Respondent's Exhibit 1.) This she did, pur-
portedly without consulting Respondent's general manager; Lee, I find, told her what
to write. (Though Carmack regularly used an office typewriter, which could have
been employed to satisfy Lee's request, she prepared a handwritten document. The
record provides no testimony regarding her reason for preparing the document in
handwritten form.) When completed, the so-called petition bore nothing more than a
brief legend; by their signatures, those drivers who did sign would merely declare that
they "would like to request a new union election" for Respondent's employees. The
petition form was not dated.
Following its preparation, I find Lee took the document to Respondent's Colorado
Springs depot or receiving plant. There, the record shows, he signed and placed it
on the desk of Driver Supervisor Leman Bales, one of two desks within a small,
so-called "shop office" which Respondent's drivers habitually used as their gathering
place between work assignments, or before and after work. (Bales, though he could
not identify the specific document in question, recalled seeing such a document on
his desk; he does not appear to have questioned its presence.) During the next sev-
eral days, the document-which now bore several signatures-was seen by many of
Respondent's drivers. Several, I find, queried Bales with respect to its purpose; they
were told that they could read and sign it if they wished. Further-possibly on more
than one occasion-Bales pointed out or proffered the document to various drivers,
who had not yet seen it, for their perusal. While a witness, he conceded that he
"could have" done so; I find, basing my finding upon testimony by Respondent's
drivers, that he did. Ultimately, 11 of the cooperative's employees signed the peti-
tion. (Bales conceded his knowledge that the petition was related to some matter
of employee concern; he testified that he "more or less passed the message" regarding
it to drivers who had not yet seen or signed the document.)
Some time after the middle of the month, Lee and several other drivers brought
the signed petition to Respondent's general manager. Hull suggested they mail the
document or have it mailed to Respondent's counsel, for transmittal to the Board's
Regional Office (Hull testified that he was "flabbergasted" and that the drivers were
told he could have nothing to do with the matter; with due regard for the record as a
whole, I find that Hull's testimony in this respect reflects memory colored by after-
INTER-MOUNTAIN DAIRYMEN, INC. 1611
thought.) Thereafter Lee, I find, requested Hull's secretary to forward the document;
the record will warrant a determination that-though she could not specifically recall
the occasion-she did so. On September 22 or 23, Hull telephoned Kramer to
report these developments; he advised Respondent's counsel that Lee's petition had
been forwarded. (While a witness, Hull conceded telling the driver group that
Kramer would "decide what to do" with their petition form. He further conceded
that he knew, when he suggested the document's transmittal, that whatever decision
Kramer made regarding its disposition would be made with Respondent's best inter-
est in mind.) When told that the petition had been forwarded, I find, Kramer
declared that he did not appreciate the position in which he was placed; he admon-
ished Respondent's general manager that he should not have accepted the document,
and should not have had anything to do with its disposition. Hull confessed his
realization that Kramer's advice was sound, but declared, substantially, that he had
not known how else to proceed, and that he wished Kramer to handle the matter.
On September 24-following an informal conversation with Board personnel-
Kramer forwarded the so-called "petition for decertification election" to the Board's
Regional Office with a covering letter (Respondent's Exhibit 13). He reported,
therein, that the petition had been handed to Respondent' s general manager by "one
or more of the employees" and declared that General Manager Hull had, in turn, for-
warded the document to him with the request that it be delivered. Kramer then
stated that:
In compliance with this request and to accommodate the employees in the com-
munication of their petition it is being enclosed for your attention. I have
advised the employer that in future cases he should inform the employees that
any petition or request which they wish to file should be forwarded directly to
you by them.
The Regional Office, within a letter dispatched to Lee in Respondent' s care (Respond-
ent's Exhibit 2) which likewise bore a September 24 date, reported that Respondent's
counsel had delivered the petition form. Further, Lee was advised that a requested
"election" could be obtained through a representative who filed a petition with evi-
dence of support from at ]cast 30 percent of the workers concerned. For his con-
venience the Regional Director's assistant partially prepared some regular Board
petition forms, based upon "information contained" within the Regional Office files;
Lee was told that if he or another worker's representative wished to file it, the balance
of the form should be completed, and the form signed. Further, he was advised that:
The petition must be accompanied by a "showing of interest," which may be a
form such as that which we have already received. The form must contain the
dated signatures of at least 30 percent of the employees involved. The signa-
tures on the form already received cannot be used because they are not dated.
Lee, I find, thereupon brought his new supply of partially completed Board petition
forms (General Counsel's Exhibits 9, 10, 12, 13) to Hull's secretary. Carmack,
pursuant to his request, provided certain information required to complete item No.
11 within the petition forms, which concerned the Union picket's presence at Respond-
ent's office; the information, I find, was written into the form by her. And Lee, then,
took one Board form (General Counsel's Exhibit 12) down the street to Respond-
ent's Colorado Springs plant; there, once more, the document was placed on Bales'
desk, for study and signature. -
On September 25, presumably the first day on which the form was thus made
available, 11 employees signed the petition's face, though within a space clearly not
provided for such signatures; Bales, when told by one driver that he had signed a
petition previously, declared that the petition previously signed had been rejected by
the Regional Office as defective. Thereafter, Lee, himself, signed the form as peti-
tioner, and forwarded it to the Regional Office. (Since the record suggests that Lee's
submission included both his original petition and several copies, there may be some
testimonial basis for an inference that Lee had the multiple-signature petition photo-
copied within Respondent's office, prior to its mail dispatch. The record in this
respect, however, merits characterization as vague; no definitive conclusion regarding
the source of the petition "copies" can be considered warranted.) Within a letter dated
September 28 (Charging Party's Exhibit 1), the Board's Regional Office acknowl-
edged receipt of these documents. Lee was, however, advised-following a recapit-
ulation of prior correspondence-that:
. on the petition which you submitted today there are signatures under Item 12,
which relates to labor organizations which have claimed recognition as repre-
sentatives, and other individual or organizations known to have a representative
interest. Signatures of employees in this space as evidence of showing of interest
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are not acceptable. Your petition should be accompanied by a statement or
statements properly signed and dated, indicating that the employees who have
affixed their signatures thereto no longer wish to be represented by International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
Local No. 452 [sic]. For that reason, the petition in its present form is
unacceptable.
The documents submitted were returned, with a new set of petition forms filled out
by Regional Office personnel "insofar as [they were] able to do so" from information
in their possession. Lee was requested to provide further missing information when
making any resubmission.
The following day, pursuant to Lee's request, Carmack again prepared a hand-
written document (General Counsel's Exhibit 3) for Respondent's drivers to sign.
This time, however, the declaration was dated; the language therein followed, pre-
cisely, that suggested within the Regional Office's last letter. Once more, I find, Lee
brought the document-possibly conjoined with a partially prepared Board petition
form-to Respondent's receiving plant, where, once more, he left it on Bales' desk;
there is testimony, which I credit, that Bales, once again, proffered the document to
some of Respondent's drivers, for perusal, telling them that it was a petition for
"another" vote. Six employees signed the declaration that day; five more, I find,
signed within the next 2 days. During this period, Lee-with Carmack's help-
completed and signed another Board petition form. (General Counsel's Exhibit 6.)
(This form-presumably a petition form prepared by Regional Office people and
forwarded with the September 28 letter-shows three handwritten responses, which
Carmack, I find, provided; these responses covered items 2 and 6a within the form,
which the Regional Office had left blank. Hull's secretary may also have written
Lee's address; he testified that it was not written in his hand.) Finally-shortly after
October 1 presumably-multiple copies of Lee's newly signed Board petition form,
together with the previously noted statement signed by 11 drivers, were forwarded to
the Board's Regional Office; considered as a whole, the record will sustain a deter-
mination that General Manager Hull's secretary, once more, handled the mailing.
On October 6, these documents were received and docketed (Case No. 27-RD-639)
within the Board's Regional Office. Presumably-though the record contains no
specific reference to the fact-Lee was so advised; his testimony shows that, at some
time, the Regional Office sent him a carbon copy of the last petition form he had
submitted, with its proper case number designation typewritten (General Counsel's
Exhibit 13), together with a letter which, however, was not produced for the record.
Some time thereafter, Regional Director Waers scheduled a hearing for October 22,
1964, regarding this pending RD petition. On October 20, however, the Union's
charge in the present case was filed. Consistently with routine Board practice,
Regional Director Waers promptly postponed the previously scheduled hearing,
with respect to Lee's RD petition, indefinitely. No further action regarding the
petition form appears to have been taken.
3. Review and conclusions
When reviewed within the total context which the testimonial and documentary
record provides, Lee's testimony-despite its discrepancies-will clearly sustain a
determination that General Manager Hull and Driver Supervisor Bales, through their
courses of conduct previously described, initiated, sponsored, and supported their
senior driver's undertaking to procure the Union's decertification. With that purpose
in view, I find, they provided assistance and support for Lee's successive attempts to
prepare a properly set up decertification petition and to circulate such a petition for
employees to sign.
Scattered throughout the present transcript, testimony will be found which might
suggest that Lee's role as protagonist, with respect to the Union's decertification, was
undertaken pursuant to requests from his fellow drivers. When the whole record is
considered, however, no "reliable, probative or substantial" testimony can be found
which preponderantly supports such a view. Should I presume-merely because no
evidence to the contrary was proffered-that Lee was lust a nominal participant in
some casual driver discussions, regarding the possibility of a representation "re-vote"
procedure, rather than a principal therein, determination would still be warranted
that those drivers who did consider the matter, when they first called upon Respond-
ent's general manager, had nothing more than vague notions with respect to the possi-
bility of a decertification vote or the procedure which they would have to follow
before Board process could be invoked. General Manager Hull clearly was knowl-
'edgeable with respect to these matters; the record shows that, following the Union's
INTER-MOUNTAIN DAIRYMEN, INC. 1613
placement of a picket before Respondent 's Colorado Springs office, he had con-
ferred with Respondent's counsel regarding decertification possibilities . With respect
to their conversation , Kramer testified as follows:
Mr. Hull inquired of me as to what was going on and what was going to
happen next and that sort of thing , and I think he also asked if he might as
an employer present a decertification petition ... I do not recall that he inquired
of me as to his rights to submit a decertification petition . I explained about
the year interval.
Thus, when questioned by Lee together with several other drivers, Hull was qualified
to make concrete suggestions . And, significantly , his comments were directed pri-
marily to Lee, the cooperative 's senior driver in point of service. Lee 's testimony-
found credible in this respect-warrants a determination that Respondent 's general
manager asked him to "represent the men" with respect to decertification proceedings.
By way of summary : When confronted with some rather vague , generalized state-
ments, which suggested that Respondent 's drivers might be dissatisfied with their
union representation , Hull could and did proffer comments reasonably calculated to
crystallize their presumptive disposition to seek a decertification election. And, having
provided this much impetus for the preparation of a decertification petition, Hull
suggested that Lee pursue the matter.
That Lee subsequently did so, primarily at Hull 's instance , clearly appears from
the record which reveals that none of his fellow drivers ever met with him, there-
after, to discuss decertification proceedings ; whatever petition forms and related docu-
ments were deemed requisite Lee prepared , with the cooperation of Respondent's
office secretary but without the knowledge or concurrence of fellow drivers, though
the latter were clearly directly concerned. (Though the record contains no direct
testimony that Respondent 's general manager knew about Carmack's role in helping
Lee complete the various documents which he handled, such knowledge on Hull's
part may certainly be deduced Carmack's place of work was closely proximate to
Hull's office; he was her immediate supervisor; she provided Lee with help on several
occasions . Common sense would certainly seem to dictate a determination , therefore,
that Respondent 's general manager-herein found to have requested Lee to carry
the decertification matter forward-must have been aware that his senior driver's
frequent presence within Respondent 's office was related to his petition campaign.
I so find ) Finally, Lee's testimony-with respect to several petition forms-that
he "didn't know" what ever happened to them , after they disappeared from Bales'
desk at Respondent 's receiving plant, persuasively suggests that a person or persons
other than Lee or Respondent 's rank-and -file drivers must be held responsible for
their transmittal to Respondent 's counsel, and , finally to the Board's Regional Office.
There is record testimony , not previously mentioned within this decision, that-
some time between Carmack's preparation of the first handwritten petition which
Lee proffered for driver signatures and "his" final transmittal of properly prepared
documents to appropriate Regional Office personnel-the cooperative 's Colorado
Springs driver supervisor took it upon himself to send a previously drafted petition
document to Respondent 's Burlington , Colorado, depot , so that drivers working there
could sign, should they so choose . No one could recall whether Bales sent Carmack's
first handwritten petition document drafted without date, Lee's partially prepared
Board petition form, or Carmack 's final , dated petition document . Nor could any-
one recall when the document was sent. Since Respondent 's drivers were confronted
with such a rapid-fire barrage of petitions , Government forms, and more petitions
to peruse , consider, and possibly sign , their lack of certainty with respect to dates-
concerning any document within the sequence-seems completely comprehensible.
Taken as a whole, however , the record will, in my opinion , warrant a determination
that Bales , some time during this period , directed one of Respondent 's fieldmen to
carry one of Lee's petition documents to Burlington , and that he verbally directed
Respondent's local supervisor, there, to make the document available for drivers
to sign. (No Burlington driver ever did sign the document The record does warrant
a determination , however, that Vernon Busby, Respondent 's Burlington overseer,
returned the document , several days later, within an envelope addressed to Respond-
ent at its Colorado Springs office .) This bit of byplay, with respect to a matter
which supposedly concerned Respondent 's drivers alone, provides further support for
my determination , herein, that Respondent 's management clearly manifested its
sponsorship and support for Lee's decertification maneuvers . Playing their respective
active roles in connection with the initiation , sponsorship , and circulation of Lee's
various documents , Hull and Bales-I find-interfered with, restrained , and coerced
Respondent 's drivers with respect to their exercise of rights statutorily guaranteed.
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The claimed refusal to bargain reconsidered
My determination that Respondent's management thus violated the statute , logically
raises some further questions . Does their general course of conduct with respect to
Lee's decertification try-following hard upon Ashcraft's late August suspension of
contract talks-cast any retrospective light on Respondent 's bona fides during their
prior negotiations? Should it be considered sufficient to warrant some reevaluation
of the cooperative 's true "state of mind" while bargaining was in progress , regarding
the desirability of contractual consensus ? With this possibility in mind , my previous
determination that General Counsel has failed to establish Respondent 's bad faith
has been reconsidered.
General Manager Hull's readiness to capitalize on his drivers ' dissatisfaction with
union representation does, indeed , suggest the possibility of a determination that
Respondent 's posture , during its negotiators' penultimate contract talks with the
union representatives , was really calculated to stall their negotiations until the Union's
certification year expired . When , however, Respondent's total course of conduct is
reviewed , no such determination could be considered justified. Respondent 's counsel,
throughout the negotiations , took a frank and straightforward position ; Ashcraft and
Coffey were told, substantially , that-though the cooperative 's spokesmen were pre-
pared to consider and discuss union proposals-consensus , bottomed upon conces-
sions proffered in Respondent 's behalf, could not be taken for granted . Neverthe-
less-the record shows-Kramer , several times , took action reasonably calculated
to promote a fruitful discussion of differences ; when he submitted Respondent's
second counterproposal , he proffered no "take-it-or-leave -it" directive . With less
than a month to go before the Union 's certification year would terminate , counsel for
Respondent suggested his client 's readiness to continue negotiations , should its pro-
posal be rejected . General Counsel 's presumptive contention that such a suggestion
was made "tongue- in-cheek" fails to persuade.
Previously , within this Decision , reference has been made to the fact that-despite
Kramer's suggestion-the negotiations were suspended at Secretary -Treasurer Ash-
craft's option . So far as the record shows , his dissatisfaction-then-with Respond-
ent's second counterproposal , could only have been bottomed upon the cooperative's
failure to make significant concessions ; Respondent could not, in my view, legitimately
be charged with having demonstrated a purpose to flout its statutory bargaining duty.
With matters in this posture , General Manager Hull's subsequently demonstrated
readiness to welcome and further the prospect of union decertification stands revealed
as nothing more than his reaction to previously noted postnegotiation developments.
Within its total context, I find, such a demonstration of sponsorship and support for
Lee's decertification effort-though properly subject to challenge in its own right-
fails to persuade me that Respondent 's "state of mind" throughout the prior course of
negotiations should be considered tainted.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations described in section I, above, have a close , intimate, and
substantial relation to trade, traffic , and commerce among the several States, and
would tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
V. THE REMEDY
Since it has been found that Respondent did engage in and continues to engage in
certain unfair labor practices , it will be recommended that it cease and desist there-
from, and take certain affirmative action, including the posting of appropriate notices,
designed to effectuate the policies of the Act, as amended.
In view of the foregoing findings of fact, and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. The Respondent herein, Inter-Mountain Dairymen , Inc., is an employer within
the meaning of Section 2(2) of the Act, engaged in commerce , and business activities
which affect commerce , within the meaning of Section 2(6) and (7) of the Act,
as amended.
2. International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Help-
ers of America, Local No. 537, is a labor organization within the meaning of Section
2(5) of the Act, as amended , which admits certain employees of Inter-Mountain
Dairymen, Inc., to membership.
INTER-MOUNTAIN DAIRYMEN, INC . 1615
3. By the conduct chargeable to certain of its management representatives, who
initiated, sponsored, and supported a movement to procure the Union's decertification,
and, in connection therewith, provided support or assistance for the circulation of a
decertification petition and the solicitation of employee signatures therefor, Respond-
ent interfered with, restrained, and coerced its employees with respect to their exercise
of rights statutorily guaranteed. Respondent did, thereby, engage, and continues to
engage, in unfair labor practices affecting commerce, within the meaning of Section
8(a) (1) and Section 2(6) and (7) of the Act, as amended.
4. General Counsel has failed to establish, by a fair preponderance of the evidence,
that Respondent has otherwise committed unfair labor practices, within the meaning
of Section 8 (a) (1) or (5) of the Act, as amended.
RECOMMENDED ORDER
Upon these findings of fact and conclusions of law and the entire record in the
case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended,
I recommend that the Respondent, Inter-Mountain Dairymen, Inc., its officers,
agents, successors, and assigns, shall:
1. Cease and desist from interference with and restraint or coercion of, employees-
by initiating, sponsoring, or supporting any proceedings undertaken by employees to
procure the Union's decertification as their exclusive collective-bargaining repre-
sentative, or by providing support or assistance in connection with the circulation of
a decertification petition and the solicitation of employee signatures for such a
petition, or by any like or related conduct-with respect to their exercise of statutory
rights to participate in self-organization, to form labor organizations, to join or
assist International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, Local No. 537, or any other labor organization, to bargain collectively
through representatives of their own free choice, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent that such rights may
be affected by some agreement, hereinafter reached, which may require membership
in a labor organization as a condition of employment, authorized in Section 8 (a) (3 )
of the Act, as amended.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Post at its place of business in Colorado Springs, Colorado, copies of the
attached notice marked "Appendix." 1 Copies of the notice, to be furnished by the
Regional Director for Region 27, shall, after being duly signed by Respondent's repre-
sentative, be posted by Respondent immediately upon receipt thereof, and be main-
tained for 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 ensure that these notices are not altered, defaced, or covered by
any other material.
(b) File with the Regional Director for Region 27, within 20 days of the receipt
of this Decision, what steps have been taken to comply herewith?
It is further recommended that the complaint be dismissed, insofar as it charges
Respondent with the commission of unfair labor practices not found within this
Decision.
i Should the Board adopt this Recommended Order , the words "a Decision and Order"
shall be substituted for the words "the Recommended Order of a Trial Examiner" in the
notice. Further, should the Board's Order be 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."
n Should the Board adopt this Recommended Order, this provision shall be modified to
read: "Notify said Regional Director, in writing, within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith." -
APPENDIX A, -
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 NOT interfere with, restrain, or coerce our employee`s=by initiating,
sponsoring, or supporting any proceedings undertaken by such employees to
procure the decertification of International Brotherhood of Teamsters, Chauf-
1.616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
feurs, Warehousemen and Helpers of America, Local No. 537, as their exclusive
collective-bargaining representative, or by supporting or assisting the circulation
of any decertification petition or the solicitation of employee signatures for such
a petition, or by any like or related conduct-with respect to their right to par-
ticipate in self-organization, to form labor organizations, to join or assist Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local No. 537, or any other labor organization, to bargain collectively
through representatives of their own free choice, and to engage in other con-
certed activities for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any or all such activities, except to the extent that
such right may be affected by some agreement, hereinafter negotiated, which may
require membership in a labor organization as a condition of employment, author-
ized in Section 8 (a) (3) of the Act, as amended.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of any labor organization, except to the extent that this right
may be affected by a lawful agreement which requires membership in a labor orga-
nization as a condition of employment.
INTER-MOUNTAIN DAIRYMEN, INC.,
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, 609 Rail-
way Exchange Building, Seventeenth and Champa Streets, Denver, Colorado, Tele-
phone No. 297-3551.
Macomb Pottery Company, a subsidiary of Haeger Potteries
Inc., and Ceramics Inc., a subsidiary of Macomb Pottery Com-
pany and International Brotherhood of Operative Potters,
AFL-CIO. Case No. 38-CA-132. April 11, 1966
DECISION AND ORDER
On January 5, 1966, Trial Examiner Charles W. Schneider issued
his Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion.' Thereafter, the Respondent filed exceptions to the Trial Exam-
iner's Decision and a brief in support thereof.
Pursuant to the provision of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members 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
'On January 10, 1966, the Trial Examiner issued an erratum correcting his Decision
in a minor respect.
157 NLRB No. 124.