J. D. Heiskell & Co., Inc.

National Labor Relations Board - Board Decisions

Apr 22, 1969

175 N.L.R.B. 485 (N.L.R.B. 1969)

J. D. HEISKELL & CO., INC.
J. D. Heiskell & Co., Inc . and General Teamsters,
Warehousemen and Cannery Workers, Local 94,
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America . Case 20-CA-4771
April 22, 1969
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On January 14, 1969, Trial Examiner Howard
Myers issued his Decision in the above-entitled
proceeding, finding that the Respondent had not
engaged in the unfair labor practices alleged in the
complaint, and recommending that the complaint be
dismissed in its entirety, as set forth in the attached
Trial Examiner's Decision. Thereafter, the General
Counsel filed exceptions to the Trial Examiner's
Decision, and a brief in support thereof, and the
Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a
three-member panel.
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
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts the recommendation of the
Trial Examiner, and hereby orders that the
complaint herein be, and it hereby is, dismissed in
its entirety.
TRIAL EXAMINER ' S DECISION
STATEMENT OF THE CASE
HOWARD MYERS, Trial Examiner: This proceeding,
with the General Counsel of the National Labor Relations
Board (herein respectively called the General Counsel' and
the Board) and General Teamsters, Warehousemen &
Cannery Workers, Local 94, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (herein called the Union), being represented by
counsel, came on to be heard before the undersigned,
Howard Myers, the duly designated Trial Examiner, at
Fresno, California, on September 10, 11, 12, 17, and 18,
1968, upon a complaint, dated February 18, 1968, issued
by the General Counsel, for and on behalf of the Board,
through the Director of Region 20 (San Francisco,
485
California), and Respondent's answer, duly filed with the
forementioned Regional Director on March 7, 1968
The complaint, based upon a charge duly filed by the
Union on December 1, 1967, alleged, in substance, that J
D. Heiskell & Co., Inc. (herein called Respondent),
violated Section 8(a)(5) and (1) of the National Labor
Relations Act, as amended from time to time, herein
called the Act 2
Upon the entire record in the case' and from his
observation of the witnesses, the undersigned makes the
following:
FINDINGS OF FACT
I RESPONDENT' S BUSINESS OPERATIONS
J. D. Heiskell & Co , Inc., a California corporation, is
engaged in, and at all times has engaged in, at Tulare,
California, in the milling and warehousing of feed, grain,
and related products.
During the 12-month period immediately preceding the
issuance of the complaint herein, Respondent, in the
course and conduct of its business, purchased and received
directly from points located outside the State of
California, goods valued in excess of $50,000 in value.
Upon the basis of the above admitted facts, the
undersigned finds, in line with established Board
authority, that Respondent is, and during all times
material was, engaged in commerce, or in a business
affecting commerce, within the meaning of Section 2(6)
and (7) of the Act and that its business operations meet
the standards fixed by the Board for the assertion of
jurisdiction.
II THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to
membership employees of Respondent.
III THE UNFAIR LABOR PRACTICES
The Refusal to Bargain
A. Prefatory Statement
Pursuant to a Stipulation for Certification Upon
Consent Election entered into by and between Respondent
and the Union, and approved by the director for Region
20 on July 28, 1966, an election was held on August 5,
'This term specifically includes counsel for the General Counsel
appearing at the hearing
'As to the unfair labor practices , the complaint alleged that since on or
about September 1, 1967, Respondent has refused to bargain collectively
with the Union although the Union, since on or about August 15, 1966,
had been the duly certified collective -bargaining representative of
Respondent 's employees in a certain appropriate unit, on or about
December 15, 1967, Respondent informed the Union that it no longer
recognized the Union as the collective-bargaining representative of the
employees here involved, and that on or about November 1, 1967,
Respondent 's employees ceased work because of the Respondent 's unfair
labor practices
'Including the briefs filed on November 18, 1968, by the General
Counsel and by Respondent ' s counsel which have been carefully
considered
At the conclusion of the General Counsel 's case-in-chief, and again at
the conclusion of the taking of the evidence , Respondent 's counsel moved
to dismiss the complaint for lack of proof In each instance decision
thereon was reserved The motions are hereby disposed of in accordance
with the findings, conclusions , and recommendations hereinafter set forth
175 NLRBNo 80
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1966, under the auspices of said director among all
Respondent's Tulare, California, production and
maintenance employees, including door salesmen and
drivers, but excluding office clerical employees, outside
salesmen, guards, and supervisors as defined in the Act.
The Union won said election' and on August 15, 1966, the
aforementioned director certified the Union as the
exclusive collective-bargaining representative for all the
employees in said appropriate unit.
On August 19, 1966, John H. McLaughlin, the Union's
secretary-treasurer and at all times material the Union's
chief negotiator and spokesman at all bargaining meetings
between the Union and Respondent, forwarded to
Respondent and to Edmund Tayler Jr.,' a then official of
the California Association of Employers (herein called
CAE), copies of the Union's proposed
collective-bargaining agreement'
The first bargaining meeting between the parties hereto
was held on September 1, 1966. In all, there were 15
negotiating meetings between September 1, 1966 and May
10, 1967. Most of said meetings lasted most of a day;
some were afternoon sessions, and some started at 9 a.m.
and concluded at about noontime.
In all, there were 23 negotiating meetings between the
parties, including an "off-the-record" or "off-the-cuff"
meeting held on March 1, 1968, between McLaughlin and
Arthur L. Arnold,' a CAE labor respresentative
All the negotiating meetings were held at Visalia,
California. Taylor was Respondent's chief negotiator and
spokesman at the negotiating meetings until he left the
employ of CAE in the latter part of December 1966.
During Taylor's tenure of employment with CAE he was
assisted in his negotiations with the Union at times by
Robert W. Norton, CAE's Monterey Bay area regional
manager from about 1943 until he retired from CAE on
May 1, 1968. From the time Arnold became associated
with CAE on February 1, 1967, as Taylor's replacement
at Visalia, Norton, until his retirement from CAE, at
times assisted Arnold in the Respondent-Union
negotiations here involved!
B. The Pertinent Facts
As noted above the initial negotiating meeting between
the parties was held on September I, 1966, which lasted
from about 10:20 a.m. until about 3:30 p.m. John
Berryhill, Esq., Respondent's counsel and a director
thereof, Dale Hillman, Respondent's vice-president, and
Taylor represented Respondent McLaughlin represented
the Union. Discussion, in detail, was had regarding each
section and sub-section of the Union's proposed
agreement forwarded by McLaughlin to Respondent and
Taylor on August 19, 1966.' Attached to said proposed
'Of the 18 eligible voters, 16 cast ballots in favor of the Union and one
against it One unit employee did not vote
'Also referred to in the records as Edwin M Taylor, Jr., and as Edward
Taylor, Jr
'McLaughlin forwarded a copy of the proposed agreement to Taylor
because CAE was representing Respondent in the election proceedings and
"at that particular time" Taylor was the area representative of CAE In
fact, the record herein disclosed that for almost 30 years Respondent has
been a CAE member and as part of its membership agreement in the
CAE, the CAE represented Respondent in all negotiations with labor
organizations representing Respondent 's employees in labor relations
matters.
'Also referred to in the record as "Sparky" Arnold
'Although Norton's territory extended from San Jose to Santa Barbara,
he would, at times, be called upon to help in matters pertaining to CAE
members in the Modesto and Visalia areas
agreement was a schedule which enumerated the job
classification and the wage scale the Union desired for the
employees of Respondent which it represented." No
agreement was reached by either party as to any of the
Union's proposals. In fact, this meeting was essentially
confined to a general discussion of the meaning of the
various items listed in the proposed agreement since the
Union was seeking its initial agreement with Respondent.
On September 8, the parties again met. This time
Respondent was represented by Taylor and Hillman only
The Union by McLaughlin Respondent submitted to the
Union a 3-page typewritten document consisting of a
proposed grievance procedure, a proposed seniority
provision, and a proposed "other agreements" provision.
Also at this meeting, Respondent submitted to the Union
a list containing the job classifications of its employees
and the wage scale for each classification. No discussion
was had at this meeting regarding the three above-named
Respondent proposals, but they were discussed at a
meeting held on October 5.
On September 21, the parties held their third meeting
at which Norton, Taylor and Hillman represented
Respondent and McLaughlin represented the Union." The
entire Union's August 19, 1966 proposed agreement was
again discussed at length. Taylor announced his objection
to the wording of the proposed union shop clause.
McLaughlin, on the other hand, insisted that any
agreement reached must contain some form of a union
shop provision.
On October 5, the parties met for the fourth time.
Norton, Taylor, Hillman, and a Mr. Young, another CAE
representative, represented Respondent. McLaughlin and
Keller represented the Union. During the course of this
meeting, which lasted from about 9:50 a.m. to about 5:30
p.m., the parties engaged in lengthy discussions about:
(1) The August 19, 1966 proposal of the Union called
for 11 paid holidays. Respondent offered eight, but
Respondent objected to the employees' birthday as being a
paid holiday. No agreement reached as to this item.
(2) The aforesaid proposed agreement called for time
and a half for overtime in addition to holiday pay for time
worked on a holiday. Respondent first offered time and a
half for work on a holiday and then increased its offer to
double time. The proposal called for double time for work
performed on Sunday; Respondent offered time and a
half.
(3) The proposed agreement called for a holiday falling
on a Sunday to be observed on the following Monday.
This proposal was rejected by Respondent.' 2
(4) The proposed agreement called for 3 weeks' paid
vacation after 7 years of employment with Respondent
and 4 weeks' paid vacation after 15 years of service with
'The verbage of this proposed contract was taken, almost entirely, from
the collective-bargaining agreements which sister locals of the Union then
had with other grain and feedmill companies in the Fresno-Visalia area
"Although there were but 18 employees in the unit at the time of the
August 5, 1966 election and the subsequent certification of the Union, the
said schedules lists 29 job classifications . McLaughlin testified, and the
undersigned finds, that when he prepared the proposed agreement and the
attached schedule he did not know just how many job classifications
Respondent had and it was his intention to eliminate those classifications
not used by Respondent
"Donna Keller , the Union 's office girl, was also present as a Union
representative.
"At the September I meeting Taylor stated that the provision for time
and a half pay for work performed on holidays and premium pay for work
performed on Sunday put a burden on Respondent due to the fact that
Respondent has customers solely engaged in the agricultural industry
which it serves every day of the week
J. D. HEISKELL & CO., INC.
Respondent. This proposal was rejected by Respondent.
(5) There was a disagreement between the parties
regarding the starting time for vacations as proposed in
the contract. The proposal called for a vacation period
between June 15 through August 15 Respondent proposed
a April 1-August 15 period. The Union then countered
with a May 1-August 31 period Taylor stated that
Respondent would take under consideration the May
1-August 31 period
The fifth meeting, which lasted from about I until
about 5:45 p.m., took place on October 19. Norton,
Taylor and Hillman represented Respondent and
McLaughlin represented the Union. Again a lengthy
discussion was had with respect to all the items of the
Union's proposed agreement
The sixth meeting, which lasted from 10 20 a.m. until
about 5 05 p.m.," was held on November 2. Taylor and
Hillman represented Respondent. McLaughlin represented
the Union.
The main discussions centered around the provisions of
the Union's proposed agreement with respect to "Hours,"
"Assignment of Runs," and "Subsistance," "employer's
obligation to pay the drivers' fines for excessive speed"
while on company business, and "payment of fines for
truck overloads."
Taylor refused to agree to a guaranteed 40-hour
workweek or to the payment of traffic tickets for driving
the company trucks at excessive speed. He did agree,
however, to pay the drivers' fines if the trucks were
overloaded No agreement was reached at this meeting
with respect to any other provision of the proposed
contract.
The seventh meeting was held on November 8, which
lasted from 10 a.m until 5.45 p.m. Taylor and Hillman
represented Respondent and McLaughlin the Union
The parties agreed to eight paid holidays Taylor,
however, refused to agree to a paid holiday for the
employees' birthday.
Taylor refused to agree to the Union's request that a
holiday falling on a Sunday should be observed on the
following Monday. Taylor based his objection to "a 2-day
off in a row" on the ground that Respondent was
obligated to furnish feed to the local dairies and hence it
could not close down its facilities more than I day.
Although the parties discussed at length the Union's
proposed contract provisions regarding " Business
Agents," "Shop Stewards," "Hours," "Assignment of
Runs and Subsistence", "Other Agreements,"
"Seniority," and certain other provisions, agreement was
tentatively reached only as to some In some instances,
McLaughlin agreed to rephrase the proposals so as to
meet Taylor's suggested phraseology.
The eighth meeting was held from 10 a.m. to 3.55 p.m.,
with a luncheon break, on November 23. Taylor and
Hillman represented Respondent and McLaughlin the
Union.
At this meeting, Taylor stated that Respondent "will
have to revise its operations to meet costs . to arrange
money for new machinery, [the Company] will not be able
to change [its operations] until [the] seasonal peak is over,
[the Company] would like to defer negotiations until
the peak is over, . . [and the Company is] willing to
extend the time of [Board] certification." When
McLaughlin replied, "I understand you will have to
revamp operations, but [I] cannot agree to defer
"The morning session was from 10 20 until 12 noon; the afternoon
session from 130 to 5 05
487
negotiations,"" ° the parties then commenced discussion of
all the provisions set forth in the Union's proposed
agreement.
Taylor suggested a "maintenance of membership"
clause, in lieu of the proposed union-shop clause in the
proposed agreement but 1NIcLaughlin rejected this
suggestion, insisting upon Respondent's acceptance of the
union-shop clause as it appeared in the Union's proposed
contract
From 9:30 a.m. until 11:40 a.m. the parties met on
December 28, for the ninth time. Norton, Hillman, and
Whitner Foster, a Modesto, California, CAE
representative, represented Respondent.1s McLaughlin
represented the Union.
It was at this meeting, or some previous meeting that
the following transpired, according to McLaughlin's
testimony on cross-examination by Respondent's counsel.
Q. Now, when Mr. Norton entered the picture, did
he tell you that any understandings were reached with
respect to particular subsections of the contract - or
sections of this contract would be subject to an
agreement on a contract as a whole?
A. I do not recall whether it was at this specific
meeting of December 28, 1966, sir But basically that
statement was made.
Q. Basically that statement was made; is that
correct?
A. That is true
Q And isn't it also the fact that you said, "Well,
that's all right, because any agreement that you make
had to be referred to and voted on by the employees"?
A. I made substantially that statement - that
whatever I negotiated had to be subject to ratification
by the members at the hall, yes.
The question of double time for work performed on
Sunday and a guaranteed 40-hour workweek were
discussed at great length. Although, no agreement was
reached as to any of the Union's proposals, Respondent's
representatives indicated that they would again carefully
consider the proposals and would give McLaughlin their
reactions to the proposals at the next negotiation meeting,
which the parties set for January 5, 1967
As planned, the parties held their 10th meeting on
January 5, 1967. This meeting lasted from 9:45 a.m. until
3:58 p.m Respondent was represented by Norton, Foster,
and Hillman. The Union was represented by McLaughlin
As in the December 28, 1966, meeting, the parties
again discussed all the Union's proposals. The meeting
ended with the following major items of the Union's
proposals still in dispute.
Section II - Union Membership
Section V - Hours
(B) Guaranteed forty (40) hour work week Double
time for Sunday.
Section VI - Wages
(C) Four and one half per cent (4-1/2%) bonus.
(D) Twenty-five dollar ($25.00) Christmas bonus.
Section XI - Holidays
(A) Employees' birthday
(E) Holiday on Sunday observed on Monday.
(I) Day of observance of holiday falling on Saturday
Section XII - Vacations
(C) Three weeks after seven years.
"Normally, Respondent 's peak season is over in March
"Just prior to this meeting , Taylor terminated his employment with
CAE
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(D) Four weeks after fifteen years Respondent
offered one week after one year, two weeks after two
years, and three weeks after fifteen years.
(F) Period of vacation.
(G) Pro-rata of vacation
Section XIII - Sick and/or Accident Leave - the
entire Section, and, in particular,
(D) Accumulation of two hundred forty (240) hours.
Section XV - Health and Welfare Plans
Amounted to $43 23 per unit person per month
Respondent already had its own health and welfare
insurance for its employees.
Section XV - Pension.
Amounted to $43 32 per unit person per month
Section XXIV - Term of Agreement
Union wanted retroactivity to date of certification
and to terminate on August 13, 1967, to conform to the
termination dates of other agreements the Union and
its sister locals had with grain and feedmill companies
in the area
Respondent proposed a 3-year agreement with the
effective date to be the date of the signing and approval
of an agreement
Section "A"
Union was asking for approximately $190.00 wage
increase per unit person per month in addition to an
increase of $86.55 per unit person per month for the
Teamster health and welfare plans and the Teamsters
pension plans
The l1th meeting was held on January 17. This was a
short meeting, lasting from 10 10 a in until 11:20 a in
because McLaughlin had forgotten to bring his files
Norton and Hillman represented Respondent Nothing
much was accomplished although the parties earnestly
sought agreement on some of the Union's proposals
On February 22, the 12th negotiating meeting was held
from 10 25 a m. and concluded at 1 40 p.m Norton and
Arnold represented Respondent The Union was
represented by McLaughlin Arnold, as Taylor's
replacement, became the CAE Visalia, California,
representative, on February 1, 1967 Between the time of
Taylor's separation from CAE employment, in the latter
part of December 1966, and Arnold's Vasalia assignment,
the Fresno-Visalia area was handled by Norton
The discussion at this February 22 meeting, as shown
immediately below, was confined mostly to the Union's
membership, hours, wages and classification provisions of
union proposed agreement. The results of these discussions
were
Section II - Union Membership - remained in
dispute Norton stated that the company must decide it
Section V - Hours
(D) The forty hour guarantee was declined by
Respondent.
Section VI - Wages and Classifications
(C) The 4-1/2 percent of Respondent's annual profits
as a bonus remained in dispute
(D) The Christmas bonus remained in dispute.
On March 9, the 13th meeting between the parties was
held. Norton, Arnold, and Hillman represented
Respondent. McLaughlin represented the Union The
meeting commenced at approximately 10 a m and
concluded at approximately 4 p.m.
The results of the lengthy discussion at this meeting
were.
"Meaning whether to grant the Union a union shop
Section XIII - Sick and/or Accident Leave -
remained in dispute. The Union was insisting on 240
hours accumulation which Respondent declined
Section XIV - Health and Welfare- remained in
dispute. The Union was insisting on the Teamsters
Health and Welfare Plans.
Section XV - Pensions - remained in dispute. The
Union was insisting upon the Teamsters Pension Plan.
Section XVIII - Seniority - The parties worked
out tentative language with respect to this provision
Section XIX - Leave of Absence - The parties
reached tentative agreement as to language for this
section.
Section XX - Protection of Rights - The parties
reached tentative agreement with respect to this section
Section XXI - Adjustment Board - The language of
the Union's proposal was generally acceptable to
Respondent with the exception of the reference to the
California Conciliation Service supplying the list of
arbitrators and wage disputes being submitted to
arbitration.
Section XXII - Transfer or Sale of Business -
Respondent tentatively agreed to the Union proposal.
Section XXIII - Severability of Provisions -
Respondent tentatively agreed to the Union proposal.
Norton made an oral counterproposal to the Union
subject to the acceptance of a contract as a whole
(1) He would recommend a Union shop to
Respondent.
(2) He would recommend a guaranteed eight-hour
day subject to the so-called "Acts of God".
(3) Respondent would reserve the right to decide
when, if, as well as the amount of any Christmas
bonus
(4) Respondent would comply with the Union's check
stub request within the capability of Respondent's office
equipment
(5) Holidays - Respondent offered time and a half
for work performed; straight time if not worked If the
holiday fell on a Sunday, it would be observed on a
Monday.
(6) Vacations - Respondent offered three weeks
after fifteen years, pro-rated vacations after one year
(7) Health and Welfare and Pensions - Respondent
wanted to keep its present insurance in effect it would
study pensions on the basis of making possible future
contributions.
Schedule "A" - Respondent would maintain its
present job classifications.
Wages - Respondent offered ten cents an hour wage
increase at the time the contract went into effect, fifteen
cents the second year of the contract, and fifteen cents
the third year of the contract
McLaughlin testified, and I find, that Norton's
proposals, referred to immediately above, were made by
Norton subject to a contract being finally consumated;
that as of March 9, 1967, the Union (a) had not retracted
in any way from its original wage demands, (b) that the
entire Teamsters' health and welfare plans had to be part
of any agreement reached, (c) that the Teamsters' pension
plan had to be part of any agreement reached, and (d) the
Union was still insisting on the employees' birthday being
a paid holiday
On March 14, the 14th meeting between the parties was
held. Norton, Arnold, and Hillman represented
Respondent. McLaughlin represented the Union. This
meeting lasted about thirty minutes.
J. D. HEISKELL & CO., INC.
McLaughlin informed Respondent that at a Union
membership meeting the proposals made by Norton had
been rejected by the employees by a vote of 12 to nothing
Norton stated that Respondent had gone as far as it
could go. McLaughlin remarked this constituted "a
problem" for Respondent.
McLaughlin said that he would like to have at least one
meeting with the Conciliation Service to comply with the
Teamsters constitution so that strike benefits could be
paid the employees, if they struck.
Norton said he did not know what could be gained by
having such a meeting but if the Union wanted
conciliation, Respondent was agreeable to the suggestion
A meeting was set for April 4.
On April 4, the 15th meeting between the parties was
held at Visalia with V Burtz, federal mediator, present
Norton and Arnold represented Respondent McLaughlin
represented the Union. The meeting commenced at 10:15
a.m. and continued until about 4:30 p m
Most of the discussion related to matters in dispute.
The parties discussed the Union's proposals but not the
counterproposals of Respondent. Discussions were had
about the following
Section II - Union Membership - This was to be
decided by Respondent
Section VIII - Meals and Rest Periods - Extra pay
for a machine operator when he was operating two
machines was refused by Respondent
Section VI - Wages and Classifications - The
4-1/2 percent bonus plus a $25 Christmas bonus were
still in dispute The Union insisted that said bonuses be
included in any agreement reached. Respondent stated
it reserved the right to pay or not to pay such bonuses
depending on profits, if any.
Section X - Holidays
The employees: birthday was rejected by Respondent
Holiday pay for a holiday falling on a Saturday was
rejected by Respondent
Section XI - Vacations - The Union insisted on
three weeks after seven years and four weeks after
fifteen years. This was rejected by Respondent.
Section XIII - Sick and/or Accident Leave - The
Union's insistence on accumulation to 240 hours was
rejected by Respondent
Section XIV and XV - Health and Welfare Plan
and Pensions. The Union insisted on the Teamsters
Health and Welfare Plans and the Teamsters Pension
Plan. This was rejected by Respondent
Section XX - Protection of Rights - Norton
stated that a management rights clause should be
included in any contract reached.
Section XXI - Adjustment Board - Norton stated
that wage matters should be referred to the Labor
Commissioner rather than to arbitration.
Schedule "A" - Remained in dispute
McLaughlin testified, and the undersigned finds, that at
this meeting he had made no counteroffer to Norton's
counterproposals of March 9; that he was still insisting on
the Teamsters Health and Welfare Plans and Pension
Plan, that Norton reread his counterproposals which he
had orally submitted on March 9; and that he stated the
Norton proposals had been rejected by the Union's
membership.
On April 27, Norton sent a letter to McLaughlin. The
letter stated in substance that there was no change in
Respondent's position with respect to the offers which it
had submitted to the Union on March 9. The letter
continued as follows.
489
Though the situation seems absolutely hopeless, I have
asked Mr Arnold to set up another meeting, preferable
(sic) sometime around the second week in May.
Should the meeting prove fruitless, the Company
would still be ready, willing, and able to meet at a time
mutually convenient to the parties if it is felt that any
meeting of the minds would seem to be possible
McLaughlin testified that to the best of his knowledge
he did not receive this letter. He did not, however, deny
receiving the letter However, Norton testified that the
original letter was inserted in an envelope addressed to
McLaughlin, that the required postage was placed
thereon, and that he personally deposited the letter in the
United States mail The original letter indicates that a
copy was also sent to Arnold. Arnold testified, and the
undersigned finds, that he received a copy of this letter.
The 16th meeting between the parties was held on May
10 Federal Mediator Nichols was present. Norton and
Arnold represented Respondent. McLaughlin represented
the Union. The meeting commenced at approximately
10 00 a m and concluded at 3 45 p m. Since the previous
federal mediator, Burtz, had passed away due to an auto
accident, Nichols asked for a review of the matter This
was done with the understanding that any commitments
made would be subject to approval by Respondent and to
a contract in "its entirety."
The Union did not discuss any of the counterproposals
made by Norton on March 9 Instead, McLaughlin
insisted on discussing only the Union's proposals.
McLaughlin at this meeting informed the mediator that
the parties were still in dispute with respect to wages; that
the Union wanted the area wage rate as provided for in
the contracts the various Teamsters locals had with
companies doing business similar to Respondent's; that
the Union was still demanding 4-1/2 percent of
Respondent's annual profits as a bonus plus a $25
Christmas bonus. Norton then stated, among other things,
that payment of any bonus materially depended upon
whether or not Respondent made a profit each year and,
if so, how much.
McLaughlin also stated at this meeting that he still
insisted on the Teamsters Health and Welfare Plans and
the Teamsters Pension Plan. Norton stated that
Respondent wanted to maintain its own health and
welfare plan and rejected the Teamsters Pension Plan
McLaughlin announced at this meeting that he still
insisted on the employees' birthday as a paid holiday; time
and a half plus holiday pay for work performed on a
holiday, and observance of a Sunday holiday on a
Monday.
The Union, according to McLaughlin, also insisted on a
guaranteed 40-hour workweek. Respondent would not
agree to this
The Union still insisted, according to McLaughlin's
statements at this meeting, on 3 weeks vacation and after
7 years of service and 4 weeks after 15 years of service
and that the vacation period coincide with the time the
public school in the area was in summer recess.
The Union, announced McLaughlin at this meeting,
still insisted on the accumulation of 240 hours sick leave
Norton said that probably something could be worked out
in this regard.
The Union, McLaughlin stated at this meeting, still
insisted that the effective date of the contract be
retroactive to the date of the certification Respondent
stated that the effective date should be the date the
contract was agreed upon.
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McLaughlin also said at this meeting that the areas of
dispute are generally referred! to as "cost items." In
connection with this regard, McLaughlin made the
following counterproposal with respect to wages,
conditioned, however, upon a guaranteed 40-hour
workweek.
All drivers $3.47-1/2
Maintenance
First Class 3.60
Second Class 3.40
Third Class 3.25
Helpers 3.10
Mill 3.10
Warehousemen 2.90
Jitney Drivers 3.15
Per Hour
" 11
McLaughlin at this meeting made the following oral
proposals with respect to Section XIV-Health and Welfare
Plans:
(A)-l To be paid first year of contract ($23.25 per
month per unit employee)
2-(a) To be paid this year. ($8.65 per month per unit
employee - dental care)
(b) To be paid the second year of the contract. ($5.30
per month per unit employee - prescription drugs)
(c) To be paid the third year of the contract. ($4.33
per month per unit employee - vision care)
(B) To be paid the third year of the contract. ($1.70
per month per unit employee - retirees)
Section XIV (C) "A must "
Section XIV (D) "A must."
Section XIV (E) "A must."
McLaughlin at this meeting also made the following
oral proposals with respect to section XV - Pensions-
(A) Ten cents per unit employee the first year of the
contract, 15 cents the second year of the contract, 20
cents the third year of the contract, and 25 cents in any
succeeding agreement.
(B) and (C) - "A must."
At the conclusion of the meeting the parties agreed to
meet again on May 24.
Immediately after the conclusion of the May 10
meeting Arnold and McLaughlin had a brief private talk
in the lobby of the hotel where said, and all previous
Vasalia, meetings had been held. Arnold's version of what
was said during this conversation is as he testified to on
direct examination by Respondent's counsel:
Q. Will you tell us, sir , to the best of your
recollection today, what was said and who said it.
A. I asked Mr. McLaughlin if,it wouldn't be good
business to propose a contract that was very little more
than the company was paying at the present time to get
it together - a contract started.
Q. What did Mr. McLaughlin say, if anything?
A. He said that it wasn't possible due to the other
contracts that were in existence , such as Balfour,
Purina, and others" - that this would be an
impossibility.
"These companies then had collective -bargaining agreements with the
Union and/or its sister locals.
McLaughlin testified, as a rebuttal witness, regarding this
private May 10 conversation as follows.
Q. (By Mr. Kintz)1e Now, to save time, Mr.
McLaughlin, were you here in the heanng room earlier
this afternoon when Mr. Arnold testified?
A. Yes.
Q. You heard him describe a conversation - alleged
conversation - taking place on the 10th of May, 1967
after a negotiating session?
A. Yes.
Q. Do you recall any conversation with Mr. Arnold
at that time?
A. That, and many others after sessions, yes.
Q. Calling your attention specifically to that
occasion, who was present?
A. The conversation that he was talking about was
just he and I.
Q. Tell us what was said.
A. Beg pardon?
Q. Tell us what was said during that conversation.
A. Well, generally speaking, he had made the
proposition that if we could get down somewhere near
the other offer as far as wages was concerned, that
there might be other areas that they could do
something about.
And I asked, "Well, on the basis of wages that you
have offered" - "increases that you have offered" -
primarily this was the same.
And I said , "Well, we are just too far apart from
what the standard agreements are in so-called organized
plants." Referring there to the one that 94 has with -
the one that the local in Fresno has and the one that
517 has.19
Q. Was anything further said?
A. Well, I don't recall making the statement as he
had testified that "I would be skinned", although I used
- the gist would be that I couldn't go that far apart,
or else I would be in trouble.
On or about May 10, McLaughlin prepared a
document which reflected, to quote from his testimony
"the agreements reached [by the parties with respect to
the Union's August 19 proposals] from [the] period of
September 1, 1966 to April 4, 1967, ... [and] the areas
that were still in dispute."
On May 24, the 17th meeting between the parties was
held at Visalia with Federal Mediator Nichols present
The meeting commenced at 10:00 a.m. and concluded at
approximately 3:00 p.m. Arnold represented Respondent.
Hillman was present at the afternoon session . McLaughlin
represented the Union. An employee, Meredith Sanders,
was present with McLaughlin at both sessions. Both
parties indicated that there was no change in their
respective positions.
Nichols suggested a plan for a short term agreement of
some 18 months duration with a substantial raise in pay
and a shorter workweek if Respondent revamped its plant.
No decision was made on this proposal.
In response to McLaughlin's inquiry as to whether
Arnold had authority to conclude an agreement in
Hillman's absence, Arnold replied in the negative adding
to quote McLaughlin, "if the Union came up with
anything closer to [Respondent's] position, then it would
be presented to Mr. Hillman in an endeavor to get
changes in his [Hillman 's] position."
"Counsel for the General Counsel
""517" is a sister local of the Union.
J. D. HEISKELL & CO., INC.
At or near the opening of the May 24 morning session,
McLaughlin handed Arnold a copy of the so-called May
10 document which purportedly set forth the areas of
disagreement and agreement of the parties regarding the
provisions of the Union's August 19 proposed contract
McLaughlin then requested that Arnold follow the
document as he read it aloud, adding that as he read he
would state the changes, if any, he would agree to make
in an effort to reach an agreement on all issues then
unsettled. During the course of McLaughlin's reading, he
commented regarding the various unsettled provisions as
follows
As to Section 1, II, III, IV, and V, McLaughlin
stated that these provisions must remain as they appear
in the aforementioned May 10 document.20
Section VI - Wages and Classification - (A) and
(B) McLaughlin insisted on their retention as they
appear in the May 10 document.
Section VI (C) - McLaughlin proposed the industry
wages at a specific termination date or the four and a
half percent annual profit bonus
Section VI (D) - McLaughlin insisted on the
continuation of the $25 Christmas bonus to seniority
employees.
Section VI (E), (F) and (G) - McLaughlin insisted
on the union proposals as written in the May 10
document.
Sections VIII, IX and X - McLaughlin insisted that
these proposals remain as written in the May 10
document.
Section XI - Holidays - (A) and (C), (D), (E), (F)
and (G) - McLaughlin insisted on the union proposals
as written in the May 10 document.
Section XI (B) - The employees' birthday, to be a
holiday commencing the second year of the agreement.
Section XII - Vacations - (A), (B), (E), (F), (G),
(H) and (I) - McLaughlin insisted on the union
proposals as they appear in the May 10 document.
Section XII (C) - Three weeks vacation after 7
years of service with Respondent McLaughlin proposed
that this be effective the first year of the contract.
Section XII (D) - Four weeks vacation after 15
years of service with Respondent McLaughlin proposed
that this be made effective the second year of the
contract.
Section XIII - Sick and/or Accident Leave -
McLaughlin insisted on the union proposal as contained
in the May 10 document
Section XIV - Health and Welfare Plans.
(A) 1. McLaughlin proposed that the Respondent
pay $23.25 into the Teamsters health and welfare plans
the first year of the contract.
2. (a) Dental care plant to be effective the second
year of the contract by the payment of $8.65 per month
for each unit employees.
(b) Prescription drug plan to be effective the first
year of the contract by the payment of $5.30 per month
for each unit employee.
(c) Vision care plan to be effective the third year of
the contract by the payment of $4.33 per month for
each unit employee.
(B) Retirees' health and welfare plan to be effective
the fourth year of the contract.
(C) To be effective the first year of the contract.
(D) and (E) - McLaughlin insisted on the union
proposals as contained in the May 10 document.
This document was received in evidence as G C Exh. 6
491
Section XV - Pensions - McLaughlin proposed that
they be effective the third year of the contract.
Section XVI, XVII, XVIII, XIX, XX, XXI, XXII,
and XXIII - McLaughlin insisted on the union
proposals or contained in the May 10 document.
Section XXIV - Term of Agreement -
McLaughlin proposed that the rates of pay would be
effective until January 1, 1968.
Schedule "A" - McLaughlin made substantially the
same wage proposals he did at the meeting of May 10
During the afternoon session Arnold said that
Respondent felt that the "non-cost" items could be
worked out, that it could make some concessions on
wages, but that Respondent was certainly not close to the
Union's proposals. Arnold stated that due to the economic
situation Respondent could not come up with anything
appreciable with regard to the so-called "cost items "
When McLaughlin asked Arnold whether he claimed
they were at an impasse, Arnold replied that he would not
so describe the situation, but that the parties seemed to be
far apart
Nichols, federal mediator, stated that since the parties
had approached a near impasse, he would like to set the
matter aside for a week or so so each party could take "a
hard look" at the situation. Nichols further remarked that
it had been his experience that when parties negotiating
for a collective-bargaining agreement were as far apart as
Respondent and the Union were, it was a very difficult
task for a mediator to get the parties together, but he,
nonetheless, would continue to help Respondent and the
Union to get the matter settled.
On June 7, the 18th meeting between the parties was
held with Federal Mediator Jack Ashe present. Norton,
Arnold, and Hillman represented Respondent.
McLaughlin represented the Union. Employees
McCormick and Sanders were with McLaughlin. The
meeting commenced at approximately 10 a.m and ended
at 11:55 a.m.
Norton again presented to the Union the
counterproposals he had submitted on March 9. Norton
stated that Hillman was present for Respondent to correct
any errors in his remarks. Norton said that he regretted
that Respondent had to take a tough stand, but that it
could only offer the wage proposals previously made. He
said he sympathized with the employees, that he would
like to give them $6 an hour, the health and welfare plans
and the remainder, but in his opinion it was not possible.
McLaughlin stated that he felt the Union's demands
were realistic. Norton replied that in his opinion the
Union's demands were absurd. Norton then stated that as
far as he could see the parties were at a "tight impasse",
that he had advised the mediator that they were "spinning
their wheels."
Discussion was also had regarding the fact that since
the Teamsters Joint Council No 18 "had set up a
negotiation committee to handle the feed producers and
the dairies and the jurisdiction of farm ranches and
production plants . . " and a collective -bargaining
agreement had been reached between the affiliates of the
Joint Council No. 18 and the feed producer and dairy
employers within the jurisdiction of said Council with an
expiration date of said agreement of August 13,
McLaughlin wanted any contract reached with
Respondent to expire on said date.
At the suggestion of Mediator Ashe the parties
caucused separately on two separate occasions. According
to McLaughlin's notes, taken by him at the meeting in
question, the following transpired at the conclusion of the
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
second caucus
Statement by Mr. Ashe "Have met with both
parties. Doesn't appear a settlement is here today At
this time the Employer wants to review and make a
counterproposal after the meeting with the board "
Mr. Norton commented, "Want to sit down with the
board of directors."
The meeting was adjourned at 11:55 a.m. to meet
again on June 26th at the Hotel Johnson.
McLaughlin's notes also reflect that before the June 7
meeting ended, Norton remarked, "Well, [I will] have
Sparky [Arnold] go through the document again to see if
any changes can possibly be made, and they will be
submitted to you [McLaughlin] in writing in the hopes
that then maybe some common meeting ground" can be
reached.
At about 11 55 a.m., a CAE representative stated that
he intended to confer with the officials of Respondent
regarding the matter in hand and then suggested a recess
until June 26. The suggestion was accepted by
McLaughlin and the mediator.
Under date of June 19, Arnold wrote McLaughlin as
follows:
After meeting with and discussing your proposed
contract with J. D Heiskell Co. it would seem that we
are so far apart on wage demands and other areas that
I don't see any area of settlement other than that which
Co. has proposed . . Unless the union is agreeable to
settle for these wages scales, it appears that we are at
an absolute impasse and any future meetings would be
unnecessary. This office has been authorized to so
inform you.
On June 26, the 19th meeting of the parties took place
with Mediator Norman Lee present. Arnold and Hillman
represented Respondent. The Union was represented by
McLaughlin and two Respondent employees, Floyd Reed
and Lonnie Werhan. Practically the entire meeting was
devoted to Lee meeting separately with Respondent's
representatives and separately with the Union
representatives. However, according to McLaughlin's
testimony, Respondent agreed to raise its wage offer by
"possibly five cents more"; that this "possible five cents
more" meant that Respondent was raising its March 9
offer of 10 cents per hour the first year of the contract to
15 cents per hour, the offer of 15 cents per hour the
second year of the contract to 20 cents and the 15 cents
per hour the third year of the contract to 20 cents per
hour.
Toward the end of the meeting, both Arnold and
McLaughlin stated that the parties were "deadlocked."
On July 23, Mediator Ashe presided at the 20th
meeting between the parties. Arnold and Hillman
represented Respondent McLaughlin represented the
Union
At this meeting, there was some discussion about
Respondent rebuilding the mill.
McLaughlin testified that at one stage of the meeting,
Arnold then asked him, to quote from McLaughlin's
testimony, "Would you consider allowing us to take an
agreement from [the Union] for an increased wage for a
year, at the end of which time an interim contract,
providing the company can get going with a new mill On
some areas of dispute . . . One of the things probably
would [for Respondent] to keep" its own health and
welfare plan, and that he replied, "Why don't you prepare
a proposal and set forth what kind of commitments you
can make on completion of [a] new mill "
Since Arnold did not have a secretary, Respondent's
written counterproposals were prepared by Norton.
Norton testified, and I find, that if any of the sections or
subsections the parties had tentatively agreed to were
omitted from Respondent's proposal it was inadvertent or
stupidity on his part; that it was not done unintentionally;
that at the time he was pressed with a very heavy schedule
and was deeply concerned about his wife's serious illness.
On September 1, McLaughlin went to Arnold's office
and received a copy of Respondent's counterporposals
On September 16, the Union held a meeting of
Respondent's employees. There were 19 employees in the
unit at the time Eleven employees attended the meeting
The employees rejected Respondent's September 1
counterproposals A secret vote was then taken to
authorize strike action The employees voted ten to one to
strike.
On September 17, McLaughlin went to the hospital for
surgery He was hospitalized for about 2 weeks He was
confined at home for an additional 2 or 3 weeks before he
was ambulatory
On September 26, the 21st meeting between the parties
was held with Federal Mediator Ashe present. Norton,
Arnold, and Hillman represented Respondent. Ralph
Cotner, a representative of Teamsters Local Union 865,
Santa Maria, California, represented the Union.
Cotner advised Respondent that the employees
unanimously rejected Respondent's September 1
proposals; that a strike vote had been taken, and that the
Union was authorized to take strike action against the
Respondent if it could not reach a satisfactory agreement.
Norton stated that the September 1 proposals
submitted by Respondent was something it could live
with, that it was possible that if Respondent was in a new
mill and all other items were agreed to, Respondent might
live with some of the other items contained in the Union's
proposal
Cotner informed Respondent that since the employees
had rejected Respondent's September 1 proposals it would
not be used during the course of discussion
Despite, Norton's statement that all possibilities had
been explored and he personally could see no hope at that
point to reach an agreement, the parties, nevertheless,
again discussed the items in dispute which were cost items.
such as wages, job classifications, health and welfare,
pension, guaranteed 40-hour week, sick leave, vacations,
holiday pay and term of agreement. On each of these
disputed items, Norton's position was "no" with respect
to the union proposals. Norton said that if everything else
were settled, Respondent might consider some change in
its position. Cotner said in view of Respondent's position,
the Union could see no reason for altering its position and
had no changes to make
Cotner testified, on cross-examination by Respondent's
counsel, that without exception the major issues in dispute
were "cost items"; that, he was aware that this was the
initial agreement the Union was attempting to negotiate
with Respondent; that he had no idea what the Union was
asking as a total wage increase, and that he had no
recollection that the Union was asking for as high as
$1.35 an hour increase
Cotner further testified under cross-examination, that
he made no concession on the Union's wage proposals at
this September 26 meeting; that the Union was still
insisting on the Teamsters Health and Welfare and
Pension Plans; that he made no concessions on these
proposals at said meeting, that it would have cost
Respondent 15 cents per unit employee per hour to pay
J. D. HEISKELL & CO., INC.
into the Teamsters Health and Welfare Plans; that it
would further have cost Respondent 20 cents per unit
employee per hour to pay into the Teamsters Pension
Plan; that the Union still insisted on the employees'
birthday as a holiday; and that sick leave was still in
dispute as were individual job classifications.
Cotner further testified under cross-examination that
Norton said at said meeting that Respondent was willing
to give the Union a letter signifying Respondent's
willingness to continue the Christmas bonus, that Norton
also said if the cost items were settled, Respondent could
live with the other proposals submitted by the Union, that
Norton further stated that it would take considerable
change in the Union's position for the parties to get
together
Cotner also testified under cross-examination that in
view of the Company's position, he stated that the Union
was unwilling to alter its position; that the Union was
attempting to bring Respondent up to the area standards
of collective-bargaining agreements which other Teamster
Locals had with other feed and grain mill companies in
the Fresno area.
On November 1, at 1:30 a.m , the Union held a
meeting with Respondent's employees at the Labor
Temple in Visalia. Seventeen employees attended
McLaughlin informed the employees that it was a good
time to start a strike since the ginning season was about
to start, Respondent would have a problem in securing
help to operate the mill
On November 1, at 5 30 a.m., the strike commenced.
Seventeen employees in a unit of 19 went on strike Z' The
picket signs read as follows
J. D. Heiskell Co Unfair to Teamster Local 94
On November 1, Respondent sent the following letter
to the striking employees:
The company regrets the fact that you are currently on
strike. Of course it is your legal and moral right for you
to be on strike.
However, the company feels it imperative for you to
return to work and request you do return to work
within the next three days. If you do not return within
this time, you will be subject to replacement.
Three employees who had been on strike, returned to
work 32
Respondent commenced hiring replacements the day of
the strike Within 10 or 12 days, Respondent had replaced
all striking employees. McLaughlin was aware that
Respondent hired replacements for the striking employees
and that such replacements were hired the day of the
strike.
The Union has engaged in sporadic picketing since the
first part of July 1968. At the time of the hearing,
however, the Union was not picketing Respondent's
premises
On November 7, the 22d meeting between the parties
was held with Mediator Ashe present Arnold represented
the Respondent McLaughlin and two Respondent
employees represented the Union. The meeting
commenced at 9:30 a.m. and ended at 12 30 p.m
McLaughlin stated that the dispute was over areas of
agreement that had been previously agreed to. Arnold
stated that any agreements made in the past were
"Ray Grissom and Edward Mello did not strike
"By the end of November, Elmer Cullum, Lester Dans, and Cecil
Eddings had returned to work
493
conditioned on reaching an agreement as a whole.
Arnold suggested that the parties negotiate on the
September 1 proposals submitted by Respondent to the
Union. He then stated that the proposals could be
modified to some extent, that the critical issues were
union security, seniority, and wages. However,
McLaughlin insisted that only the Union's May 10
proposals be discussed and McLaughlin's insistence
prevailed
During the course of the meeting, Jim Smith, an
official of the Teamsters Joint Council No. 18 entered the
meeting as a Union representative. The parties outlined in
quite detail the negotiations which had been going on
since September 1, 1966 for Smith's benefit. Arnold then
stated that the parties were at an impasse on the Union's
proposals contained in the May 10 document, and that the
Union was refusing to bargain concerning the September
I proposals of Respondent. Arnold added that he
therefore considered that the parties were at an impasse.
Smith asked Arnold if he was refusing to bargain any
further. Arnold replied, "Absolutely not," adding that if
the Union would give him something in writing and allow
him to study and discuss it with Respondent, he would sit
there and bargain with the Union
At the conclusion of the November 7 meeting the status
of the unresolved items of the Union's May 10 proposals
were as follows:
Section V - Hours (D) - The Union insisted on
the guaranteed forty hours.
Section VI - Wages and Classifications - (C) and
(D) - The Union insisted on the four and a half per
cent bonus and the $25 Christmas bonus. Arnold
replied that Respondent was willing to continue the $25
Christmas bonus by letter to the Union.
Section XI - Holidays - (B) - The Union insisted
on the employees' birthday as a holiday. Arnold replied
that Respondent's position was no for the time being.
(C) The Union insisted on time and a half plus
holiday pay. Arnold replied the Respondent was not
paying time and a half and was willing to go to time
plus time.
(E) The Union insisted that a holiday falling on
Sunday be observed on Monday
Section XII - Vacations - (C) - The Union
insisted on three weeks after seven years. Arnold
offered three weeks after fifteen years.
(D) The Union insisted on four weeks after fifteen
years
(F) The Union insisted on vacations from June 15 to
August 31. Arnold said Respondent wanted from April
to October.
Section XIII - Sick And/Or Accident Leave -
The Union insisted upon its proposal.
Section XIV - Health and Welfare Plans - The
Union insisted on the Teamsters Health and Welfare
Plans
Section XV - Pensions - The Union insisted on
the Teamsters Pension Plan
Section XXIV - Term of Agreement - Was still in
dispute pending the settlement of a contract
Arnold said that Respondent was not prepared to make
any wage offer other than what it had previously offered.
On November 21, CAE, on behalf of Respondent, filed
an "RM" petition with the Director of Region 20."
"Case 20-RM - 1030 This petition was dismissed by the aforesaid
director on March 12 , 1968, because of the pendency of the instant
proceeding
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 1, the Union filed with the
aforementioned Director the charge which is the basis of
the present proceeding
On December 9, McLaughlin sent a letter to Arnold
which stated, inter alia , the following.
. . the Union herewith makes demand that
negotiations continue with respect to negotiations for a
collective bargaining agreement on behalf of the
employees represented by this Union.
On December 15, L W Baxter, executive vice
president of CAE, replied to McLaughlin's letter, as
follows-
Numerous meetings have been held not only with your
representatives and yourself over the period since your
union was certified, proposals and counter-proposals by
us have been offered time and again until finally our
last offer and final offer was rejected and you chose to
strike the company as of November 1st
We see absolutely no useful purpose to be served by
continued meetings and have every reason not to believe
your union represents a majority of the employees
working [sic] the J. D. Heiskell & Co., Inc., plant as
evidenced by our RM Petition 20-RM-1030, filed with
the National Labor Relations Board in this situation.
We must, consequently, reject your request for further
meetings pending a new election to be held by the
National Labor Relations Board and the employees of
the company to determine whether representation is,
indeed, still wished by these employees
On February 12, 1968, the complaint of the General
Counsel issued in this matter.
On March 1, 1968, McLaughlin telephone Arnold and
said he though he had some proposals which might be of
interest to Arnold, and asked if he could come by and talk
to him. Arnold agreed to meet him that afternoon They
met at the offices of the CAE at Visalia
McLaughlin, after stating, "This is not intended to be a
negotiation meeting, as such," but merely an
"off-the-record" meeting, told Arnold that as far as he
was concerned they did not need to keep notes of the
meeting if they did not want to. Arnold replied that he
would be happy to listen to any proposals which
McLaughlin had to make and would discuss them with
Respondent.
Again McLaughlin insisted on discussing only the
Union's May 10 proposals. The only concessions made by
McLaughlin were as follows.
Section V - Hours - McLaughlin said he would
drop the forty hour guaranteed work week if
Respondent would come up with a reasonable pay scale
and endeavor to give at least forty hours a week
Section XI - Holidays
(B) McLaughlin proposed that the employees'
birthday be a holiday in 1969.
(E) McLaughlin proposed that instead of a holiday
falling on a Sunday being observed on a Monday, that
Respondent give an additional day off to employees
with pay during the week
Section XII - Vacations
(C) McLaughlin proposed three weeks after seven
years.
(D) McLaughlin proposed four weeks after twenty
years in 1969
Section XII - Sick and/or Accident Leave -
McLaughlin proposed Respondent continue the present
practice until 1970 and after that the Union proposal.
Section XIV - Health and Welfare Plans -
McLaughlin proposed that the Respondent continue its
present plan and pay the entire amount for dependent
coverage.
McLaughlin insisted on Respondent paying $8 65 per
employee per month on dental care.
Prescription drugs - McLaughlin proposed that
Respondent pay six dollars in 1969.
Retiree Health and Welfare - McLaughlin proposed
that Respondent pay this in 1970.
Section XV - Pensions - McLaughlin proposed as
follows-
Five cents per hour the first year of the contract,
1968
Ten cents per hour, 1969.
Fifteen cents per hour, 1970
Twenty cents per hour, 1971
Twenty-five cents per hour, 1972.
Section XXIV - McLaughlin proposed that the
contract be made retroactive to August 5, 1966.
Schedule "A" -
Four axle driver - 3.05 an hour
Machine Operator - 2.68 an hour
Warehousemen - 2.61 an hour
McLaughlin stated that this was 50 cents an hour less
than the Fresno Grain Company contract, that the above
items may be made part of a 1968 contract; that in 1969
Respondent's wage rates were to be 25 cents less than the
wage rates in the Fresno Grain Company contract; and
that in 1970, Respondent's wage rates were to be the same
as the wage rates in the Fresno Grain Company contract.
Arnold, at the conclusion of this conference, said he
was happy to see that McLaughlin was getting a little bit
more realistic and that he would discuss the matter with
Hillman
Arnold discussed McLaughlin's latest proposals with
Hillman Hillman informed Arnold that the Union and
Respondent were still 75 cents apart on the truckdrivers'
wage scale; that they were still far apart on pensions,
health, and welfare plans; that they were still far apart as
to other cost items; and that, under the circumstances, he
could not see how the Union and Respondent could get
together on a collective-bargaining agreement.
C. Concluding Findings
The record as a whole convinces me, and I find, that
Respondent honestly explored every possibility of reaching
agreement on all the proposals submitted by the Union
The bargaining negotiations covered an 18-month period
during which" conferences were held at which the parties
were afforded an opportunity for full and complete
discussion on all matters in issue . As a result substantial
agreement was tentatively reached on a good many issues.
It was evident shortly after negotiations were opened that
there was little chance of agreement on certain issues. For
as soon as the Union demanded that Respondent include
in any contract reached certain provisions, such as the
Teamsters Health and Welfare Plans and the Teamsters
Pension Plan, Respondent, after stating its reasons,
rejected the demand. The Union, likewise, took an equally
adamant position with respect to said demand While
neither party was willing during the ensuing negotiations
to alter substantially its original basic economics position,
it cannot be said that the negotiations as a whole were not
carried on by Respondent in the spirit of honesty and
"in its brief, Respondent renewed the motion, which it made during the
J. D. HEISKELL & CO., INC.
good faith as required by the Act It is significant that
while the economic and other issues raised by the Union
were considered repeatedly and each party unsuccessfully
sought to persuade the other, by sincere discussions, to
capitulate, neither party was successful in so doing.
The record leaves no doubt that Respondent was
definitely opposed to granting certain demands the Union
considered essential in an agreement and dust as definitely
the Union was determined to enforce these demands.
However, the record discloses that Respondent, as was its
duty, approached the bargaining table with a sincere
desire to arrive at a mutually acceptable contract and that
it did not, as the court said of the employer in N.L R.B.
v. Athens Mfg Co., 161 F.2d 8 (C.A 5), give the Union
"a run-around while purporting to be meeting with the
Union for the purpose of collective bargaining " On the
contrary, the record is manifestly clear that Respondent,
as the Board and the courts have uniformly held was
dutybound to do, entered into the bargaining conference
"with an open and fair mind, with a sincere purpose to
find a basis of agreement touching wages and hours and
conditions of employment.. ."Z5
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
course of the hearing , to strike from the record General Counsel 's Exhibit
No. 9 The motion is again denied
"Globe Cotton Mills v N L R B, 103 F 2d 91 (C A 5)
CONCLUSIONS OF LAW
495
1. J. D. Heiskell & Co., Inc., is engaged in, and during
all times material was engaged in, commerce within the
meaning of Section 2(6) and (7) of the Act.
2. General Teamsters, Warehousemen & Cannery
Workers, Local 94, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America is, and at all times material was, a labor
organization within the meaning of Section 2(5) of the
Act.
3. The allegations of the complaint that Respondent has
engaged in, and is engaging in, unfair labor practices,
within the meaning of Section 8(a)(5) and (1) of the Act
have not been sustained
RECOMMENDED ORDER
Upon the record as a whole, I find that the allegations
of the complaint that Respondent violated Section 8(a)(5)
and (1) of the Act are not sustained by credible evidence
Accordingly, I recommend that the complaint, in its
entirety, be dismissed.