Martin White, Jr., Inc.

National Labor Relations Board - Board Decisions

Jun 19, 1967

165 N.L.R.B. 520 (N.L.R.B. 1967)

520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Martin White , Jr., Inc. and Construction
Building Material Drivers, Warehousemen
and Helpers Union No. 311 , International
Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America.
Case 5-CA-3071.
June 19, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN
AND JENKINS
On January 17, 1967, Trial Examiner
Harry H. Kuskin 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 Decision.
Thereafter, the Respondent filed exceptions to the
Decision and a supporting 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 brief, 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 as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Martin White,
Jr., Inc., Baltimore , Maryland, its officers , agents,
successors, and assigns, shall take the action set
forth in the Trial Examiner's Recommended Order.2
' Respondent 's request for oral argument is hereby denied as
the record , exceptions , and brief adequately present the issues
and positions of the parties
S The address and telephone number for Region 5, appearing at
the bottom of the notice attached to the Trial Examiner's
Decision , is amended to read : Federal Building , Room 1019,
Charles Center, Baltimore , Maryland 21201, Telephone 962-2909.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
HARRY H. KUSKIN, Trial Examiner: This proceeding
was heard at Baltimore , Maryland, on July 8, 1965, and
April 27, 1966.1 It stemmed from the aborative efforts of
Construction Building Material Drivers, Warehousemen
and Helpers Union No. 311, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called the Union, the certified bargaining
agent ' of a plantwide unit of employees of
Martin White, Jr., Inc., herein called Respondent 3 to
negotiate with Respondent a collective-bargaining
agreement on behalf of the above employees. The
complaint, which was amended at the hearing, issued on
May 5, 1965. The question presented is whether
Respondent has violated Section 8(a)(5) of the Act by
refusing to bargain in good faith with the Union.
Respondent does not deny the status of the Union as a
labor organization ; in addition , it admits that a unit of all
its employees employed at its 4546 Annapolis Road
(Baltimore, Maryland) location, as alleged in the
complaint, is appropriate, that a majority of its employees
in such unit had, on December 28, 1964, designated and
selected the Union as their bargaining representative in a
secret-ballot election in Case 5-RC-4963 and, in
consequence , the Regional Director of Region 5, on
January 6, 1965, formally certified the Union as such
exclusive bargaining representative; and that it is engaged
in commerce within the Act's meaning. However,
Respondent denies that it engaged in any unfair labor
practices.
Upon the entire record, including my observation of the
witnesses and after due consideration of the briefs of the
General Counsel and Respondent, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint, as amended, alleges, and Respondent
admits, that Respondent is a Maryland corporation and
has its principal place of business at 4546 Annapolis Road,
Baltimore, Maryland, where it is engaged in the crushing,
screening, sale, and delivery of cinders; and further, that
during a representative 12-month period it sold and
delivered products valued in excess of $50,000 to, and/or
performed services valued in excess of $50,000 for,
enterprises located in Maryland and which annually ship
goods valued in excess of $50,000 directly outside
Maryland, and/or annually performed services valued in
excess of $50,000 outside Maryland, and/or received
goods, materials, and products valued in excess of $50,000
directly from points located outside Maryland.
I find, upon the foregoing, that Respondent is engaged
in commerce within the meaning of the Act.
During the hearing on July 8 , 1965, the parties agreed to an
informal settlement of the matters involved . Whereupon, I
adjourned the hearing sine die . However, the settlement
agreement , which was approved by the Regional Director on
July 9, 1965, was thereafter set aside by him on March 29, 1966,
on the grounds of noncompliance , and a motion was filed by
counsel for the General Counsel to reopen the record for further
proceedings . On April 8, 1966, 1 granted the aforesaid motion and
reopened the record for further hearing to be held on April 27,
1966
2 Although counsel for the Union indicated that since the
certification the name of the Union has been changed , that he
would take steps to have the Union's name amended on the
certification and that I would be advised thereof, I have not been
so advised and so far as appears the Union's name on the
certification has not been amended
3 The name appears as amended at the hearing.
165 NLRB No. 81
MARTIN WHITE, JR., INC. 521
II. THE LABOR ORGANIZATION INVOLVED
The complaint, as amended, also alleges, and
Respondent does not deny, and I find, that the Union is a
labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Background-Sequence of Events
Sometime before December 1, 1964, the Union hand
delivered to Martin J. White, Jr., the president and sole
stockholder of Respondent, a letter asserting that the
Union represented a majority of his employees and
requesting recognition. After some correspondence
between counsel for Respondent herein and counsel for
the Union herein, the Union, on December 1, 1964, struck
for recognition and picketed the plant of Respondent.
Thereafter, the Union filed a petition with the Regional
Director for Region 5 in Case 5-RC-4963. This was
followed by a stipulation for certification upon consent
election between the parties, approval thereof by the
Regional Director, and an election on December 28, 1964,
which the Union won. On December 29, 1964, the Union
sent a letter to Respondent enclosing its contract
proposals. On January 6, 1965, the Union was certified as
the exclusive bargaining representative of a plantwtde unit
of Respondent's employees. Over the ensuing period down
to and including April 19, 1965, the parties met five times
for purposes of negotiating a collective-bargaining
agreement but no agreement was consummated. There
has been further picketing since the Union's certification.`
So far as appears, the picketing lasted until January 5,
1966. The picket signs during the postelection period
changed the legend from that of refusal of recognition of
the Union by Respondent to that of refusal to bargain in
good faith.' Also, on March 3, 1965, the charge herein was
filed and on May 5, 1965, the complaint issued. The parties
had another negotiating session on May 6, 1965. This was
the last session before the hearing herein on July 8, 1965.
As already indicated, during the course of the hearing on
July 8, the parties agreed to an informal settlement of the
matters involved and, on July 9, the settlement agreement
was approved by the Regional Director. Subsequent
thereto, certain steps were taken by Respondent, with
respect to counterproposals and a financial statement, in
its efforts at compliance with the settlement agreement.
No meeting between the parties looking toward bargaining
occurred, however, until November 29, 1965. In the
interim, on September 25, Martin J. White, Jr.,
Respondent's president and sole stockholder, died,
leaving a will. In consequence of probate proceedings,
Spedden, counsel for Respondent, because of the refusal
to serve by the coexecutor named with him in the will,
became the sole executor of the decedent's estate on
November 9. The will provides, in substance, in
paragraph 3, that the testator authorizes and empowers
the executor, in order to expedite and facilitate the
administration and distribution of his estate, to liquidate
"within one year after [his] death," the capital stock, inter
alia, of Respondent, of which company he is "the sole
owner or stockholder," and expressly authorizes and
empowers the executor to sell all the assets of
Respondent, and especially the plant and property, in fee,
known as 4546 Annapolis Road with improvements
thereon, and including inventory and stock thereon, the
funds thereof to remain as part of the corpus of the estate.
The will further provides, in relevant part, in paragraph 4,
that pending the sale of the assets of Respondent and "for
a period not to exceed one year after [the testator's]
death," the testator expressly authorizes, directs and
empowers said executor "to continue the operations" of
Respondent and "to carry out, complete and fulfill any
contracts existing at the time of [the testator's] death" to
which contracts Respondent is a party.
As already noted, the first meeting after White's death,
occurred on November 29, 1965. At this meeting and at
subsequent meetings on December 17, 1965, and on
April 27, 1966, no progress was made in settling the terms
of a contract because Spedden kept raising the question of
(1) his authority under the will, in view of the above-recited
provisions, to enter into a contract, and (2) his potential
personal responsibility, if he entered into a contract and
had no such authority. While he vacillated at times,
indicating that he might attempt to negotiate, he never did
actually negotiate. As of the time of the reopened hearing
on April 27, 1966, Spedden had not changed his position.
B. The Bargaining Sessions and the Accompanying
Eventss
1. The bargaining sessions prior to the informal
settlement agreement
The first negotiating session occurred on January 6,
1965, in the office of President White of Respondent.
Present on behalf of the Union were Cremen and
Leo Da Lesio, business manager of the Union; and in
behalf of Respondent, White and Spedden, Respondent's
counsel herein. The Union went through its proposed
contract, Respondent agreeing as to some clauses but
leaving most of the contract for future negotiation. With
particular reference to a wage increase, Respondent
indicated that there would be no raise for employees and
gave no reason therefor, although asked to do so by the
Union. The date of the next meeting was, at Respondent's
insistence, left to Spedden.
Due to the hospitalization of White on or before
January 8, because of illness, Spedden delayed setting up
the next meeting. However, within about a week, White
left the hospital. When pressed by Abato to schedule a
meeting, Spedden advised that because White was very
sick,7 it was difficult to "pin White down." Abato insisted
that, if White would not meet, then White should appoint
I The extent of the hiatus in picketing , if any, is not apparent
from the record
5 Although the complaint alleges that the strike became an
unfair labor practice strike, the General Counsel adduced
insufficient evidence as to this allegation to warrant any finding
thereon.
9 The testimony as to the various bargaining sessions relied on
herein was given by witnesses for the General Counsel and was
uncontroverted. Robert Milton Cremen, vice president of the
Union, testified as to the first three sessions, while
Cosimo C. Abato, counsel for the Union herein, testified as to the
remaining sessions and as to developments during the periods
between each bargaining session At one point in the hearing,
'counsel for Respondent volunteered that the notes on his own
copy of the Union's proposed agreement are "almost precisely the
same as" testified to by Cremen Both Cremen and Abato
impressed me as reliable witnesses and I credit their testimony.
r White was suffering from terminal cancer
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
someone with authority to act for him. According to Abato,
Spedden replied that White would not appoint anyone with
authority to act for him. Thereafter, on January 28,
Spedden called Abato to advise that there would be a
meeting on January 29 at noon in White's office.
The same individuals were present at the second
negotiating session. The meeting lasted about 20 minutes.
A couple of clauses in the agreement were discussed; but
due to the fact that White and Da Lesio "had words"
between them, White ordered the Union's representatives
out of his office. Spedden indicated at that time that he
would get in touch with Abato and arrange for another
meeting. Such a meeting, after several telephone calls
between Spedden and Abato, which the latter initiated,
was set by Spedden for February 12 at White's office.
The third negotiating session was held, as indicated, on
February 12. Present on behalf of the Union were Albert
Evans, International representative, and Cremens; and,
on behalf of Respondent, Spedden and one Warren
Parker." Spedden explained that White was sick and
could not attend and that he was acting for White.
Thereupon, each clause of the contract was discussed,
with Spedden stating a position on many of the provisions,
agreeing as to some, disagreeing as to others, refusing to
put in writing certain provisions, although they reflected
Respondent's present practice, and leaving others for
future negotiation." During this discussion, Spedden
indicated that Respondent was opposed to having a union
shop steward in the plant as proposed by the Union.10
Spedden also opposed giving the employees a wage
increase, but when Evans proposed an increase of 15 cents
to be used as the Union saw fit, in wages or health and
welfare pension payments, Spedden agreed to take this up
with White. At the close of the meeting, Spedden agreed to
discuss all these matters with White and to prepare
counterproposals thereon over the next weekend and mail
same to Abato. He then stated that he was just acting for
White rather than on White's behalf.
No counterproposals were submitted as of the next
meeting, which occurred on February 22. During the
intervening period, Abato and Spedden were in telephonic
communication and Spedden reported, on February 16,
that White had just been operated on and that he had not
talked to White, as yet. Although Spedden promised to
talk to White and have written counterproposals in time
for a meeting on February 19, he appears to have had
further difficulty in contracting White and the meeting
was therefore reset by Spedden for February 22.
At this fourth negotiating session, White, Spedden, and
Parker represented Respondent, and Abato and Da Lesio
represented the Union. No counterproposals were
produced by Respondent, Spedden explaining that he had
not prepared them yet. The initial discussion related to the
Evans' proposal at the prior meeting of a 15-cent-an-hour
increase to employees to be paid as the employees
decided. White asserted that Respondent could not afford
15 cents or anything else in the way of money, as he could
not change his contracts with his customers or with his
suppliers which provided for certain sums, and they just
8 Parker is an independent contractor who does hauling for
Respondent
B In some instances , there were changes of position by
Respondent from that previously taken at the January 6 meeting
10 Spedden stated that Respondent would not have a shop
steward "in a small place like that "
11 According to Abato. the statement was not the one shown to
could not afford to pay more under those contracts which
he could not change. White refused the Union's request
for details of his business arrangements with his
customers. At this point, Abato demanded a financial
statement from White for the year 1964 and brought up to
date. Whereupon, White did produce a financial statement
which he claimed would support his position that
Respondent was not making any money and could not pay
any more in wages. Abato looked at the statement, but it
appeared to him that the statement did not support
White's claims. Abato then asked for the statement but
White refused, claiming it was the only copy he had. When
White also refused Abato's request for permission to make
a copy of the statement, Abato suggested that Respondent
could have a copy made and sent to him. There followed
an examination of the Union's proposed contract to see
where the parties stood. Respondent, in substance, again
agreed as to some clauses, disagreed as to others, deferred
on still others, and was firm in its rejection of those clauses
relating to economic matters and as to having a union shop
steward in the plant. At the close of the meeting, Spedden
promised again to provide the Union with written
counterproposals. As to the request by Abato for financial
statements, Spedden indicated that he would get a
financial statement from Respondent's accountant.
The parties met for their fifth negotiating session on
April 16. As of March 2, Abato learned from Spedden,
whom he called on the telephone, that White was in the
hospital and there could be no meeting until White was
available; that he, Spedden, was working on written
counterproposals and would send them and the financial
statements as soon as he received the latter from
Respondent's accountant. At that point, Abato said, "they
were sick of waiting around and stalling around" and that
he was going to file an unfair labor practice charge with
the Board. On March 3, the instant charge was filed.
Abato did not hear from Respondent for about a month
thereafter. However, on April 9, Spedden called Abato
about a meeting , and such a meeting was held at a
mutually agreeable time on April 16.
At the April 16 session , White, Spedden, and Parker
were again present for Respondent; Cremen and Abato
were present on behalf of the Union. Spedden furnished a
financial statement to the Union and said that Respondent
could not give any money when it is not making any, as
shown by the financial statement . White added that
Respondent was making a profit of only $1,500 a year and
had, since the strike, lost five contracts." As to the
counterproposals, they were not produced at that time,
and Abato pointed out that such counterproposals were
the basis for working out any clause. White volunteered
that Respondent had asked for the meeting in order to
produce the financial statement ; and Spedden added that
they also wanted to see if the Union had any questions
about the statement , and, if so, the Union should present
them by letter to him, and he, Spedden, would get answers
thereon from the accountant. No negotiations took place at
this meeting. With respect to meeting again , no date was
fixed because, as Spedden explained, White had hospital
him on February 22 That statement related only to Respondent
corporation, whereas this one was a "sort of combined statement"
of Respondent corporation and Martin White Company, a holding
company He also testified that he asked White to show him
where he, White, got the $1,500 profit, but White was unable to do
so
MARTIN WHITE, JR., INC. 523
appointments for the next two Mondays. Spedden agreed
to call Abato the following week in order to set up the next
meeting.
By letter dated April 19, 1965, Abato wrote to Spedden
asserting that the financial statement furnished at the last
meeting "was obviously made up for the purpose of
furnishing certain information to the Union" and "in no
way supports Mr. White's assertion that Martin White, Jr.,
Inc. made a profit of only $1500 last year." The letter said
further that, since this statement is not what the Union
requested at the meeting of February 22, he, Abato, was
reiterating the request of that date "that [Spedden]
furnish to [him] a copy of the financial statement which
Mr. White showed [him] on that date but would not let
[him] have, and about which he [White] now states that
he does not know the whereabouts." The letter concluded
by insisting that Respondent discontinue its practice of
meeting only twice a month and that, instead, negotiations
occur at "reasonable and realistic intervals so that an
agreement can be reached." By answering letter of
April 22 to Abato, Spedden stated that he resented "any
innuendo of falsification" in the letter and defended the
statement as one prepared by Respondent's certified
public accountant and as a copy of a regular statement
given to White by the accountant in the regular course of
business. Although this letter indicated that Spedden
would arrange for another meeting between the Union and
Respondent during the week of April 26, no such meeting
was held during that week; Spedden explaining that his
plans to hold such a meeting on April 30 were put off
because a representative of the Board had made an
appointment with him for that date. In accordance with a
suggestion in this letter, a meeting was thereafter held on
May 6.
The sixth negotiating session was attended by White,
Spedden, and Parker for Respondent and by Cremen,
Da Lesio, and Abato for the Union. Abato apprised
Respondent that the complaint herein had already
issued.'2 Spedden thereupon examined a copy of the
complaint, which copy Abato had in his possession.
Spedden then gave the Company's position with respect to
the complaint as (1) "no raise was possible, no money in
any way," (2) if the Union wanted information on finances
it should put its request in writing and he would have the
accountant furnish the answer," and (3) there could be no
shop steward. Spedden asserted further that since the
complaint had already issued and since the Union would
not agree to doing without a wage increase, nothing could
be gained by talking any further. He agreed to prepare and
submit to Abato in about 10 days a memo as to
Respondent's position on those articles in the Union's
proposed agreement to which Respondent did not agree,
and to prepare proposed language in such cases. Abato
renewed his request for the copy of the financial statement
shown to him by White at the February 22 meeting or, in
lieu thereof, Abato wanted to have the Union's accountant
audit Respondent's books for 1964 and to date. Spedden
responded that he would give Abato Respondent's
position thereon in the above-mentioned memo. The
meeting adjourned without any negotiations taking place.
As of the time of the hearing herein on July 8, 1965, no
written counterproposals and no further financial
statements had been forwarded to Abato, although Abato
had written Spedden on May 28 reminding Spedden of the
latter's agreement to do so in about 10 days.
2. The informal settlement agreement and the events
subsequent thereto
As already noted, although an informal settlement
agreement was entered into by the patties during the
course of the hearing on July 8, 1965, that settlement
agreement was thereafter, on March 29, 1966, set aside by
the Regional Director on the grounds of noncompliance.
The settlement agreement provided that Respondent
would bargain collectively in good faith with the Union in
the appropriate unit and would take the following
affirmative steps: (1) submit written counterproposals
within 21 days of the Regional Director's approval of the
informal settlement agreement; (2) meet with the Union at
neutral locations; (3) furnish the Union within the same 21
days a financial statement for the year 1964, and any
additional financial statements for the period from
January 1, 1965, to date; (4) meet with the Union at such
reasonable times as the circumstances may dictate; and
(5) in the absence of its president, Martin J. White, Jr.,
designate a representative with the full authority to
negotiate a final collective-bargaining agreement. The
agreement also included a nonadmission-of-liability clause
and provided for the posting of the customary 60-day
notices.
Although Respondent did thereafter post notices and
submit written counterproposals and a financial statement
on July 28, 1965, and a further financial statement on
September 25, 1965,'" no bargaining has ever taken place.
Indeed, so far as Respondent was concerned, its change of
position was due to changed circumstances. As appears
hereinafter, these consisted of the facts that
Martin J. White, Jr., the sole stockholder and owner of
Respondent, had died on September 25, 1965, and had
made provisions in his will for the executor of his estate
(Spedden) to liquidate within 1 year the capital stock of
Respondent and had empowered such executor to sell the
plant and property involved herein, in fee, with
improvements thereon, inventory and stock; and further,
pending the sale of Respondent's assets and "for a period
not to exceed 1 year after [the testator's] death," the
executor (Spedden) was to continue the operations of
Respondent and "to carry out, complete and fulfill any
contracts existing at the time of [the testator's] death" to
which contracts Respondent is a party.
The first meeting after White's death occurred on
November 29, 1965. This meeting was convened at the
Board's Regional office in Baltimore, Maryland. Present
were Abato, counsel for the Union; Cutman, counsel for
the General Counsel herein; and Spedden, counsel for
Respondent and also executor of the estate of
Martin J. White, Jr. At that meeting, Spedden expressed
doubt as to whether he had the authority to enter into a
contract which would burden the estate and indicated
that, after checking into his authority to do so, he would
advise whether or not he would continue bargaining.
On December 17, 1965, another meeting was held
between Spedden and Abato. Also present was Cremen,
" As heretofore found, the complaint issued on May 5, 1965. " The Union had complained upon receipt of the data on
's As already appears, Abato had already put such a request in July 28 about the inadequacy of the counterproposals in that they
writing, but no answer had as yet come forth Abato mentioned were not in the form of a contract and were unclear, and about the
this fact to Spedden at this time financial statement in that it was not complete enough.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vice president of the Union. Spedden stated at that time
that he did not think he had the authority to burden the
estate, that he was in a different position respecting
negotiating a contract from that of White during his
lifetime, because White had to answer to no one in such
matters whereas he had to answer to the beneficiaries of
the estate of White. The meeting adjourned without any
negotiations taking place, but with the understanding that,
if the Union would draft a form of agreement based on
Respondent's counterproposals of July 28, 1965, Spedden
would consider it.
The Union forwarded a new proposed agreement on
March 24, 1966. However, on March 25, Spedden met with
Gutman, counsel for the General Counsel, and advised
him that "he could not enter into a contract which would
burden the business or hold up dissolution [of Respondent
corporation]." Thereafter, on March 29, 1966, the
aforementioned settlement agreement was set aside by the
Regional Director on the grounds of noncompliance, and
on April 8, 1966, I granted the motion of counsel for the
General Counsel to reopen the record.
The parties held one further meeting on April 26, the
day before the reopened hearing on April 27, 1966. Present
were Abato, Spedden, and some union representatives. At
this meeting, Spedden, in effect, told those assembled of
his meeting with Gutman and of his remarks to Gutman,
set forth above. Spedden said further that, in less than 2
months the business would be closed down and "he just
didn't have the authority to enter into a a contract.... He
could not take it upon himself to sign a contract because
then he might be responsible because of this kind of a
negligent act and he just wasn't going to take that problem
upon himself." Spedden explained that he had not
contacted Abato after he received the Union's new
proposed contract which was sent him on March 24, 1966,
because on March 29, 1966, he received the
aforementioned motion to reopen the record herein. So far
as appears, there have been no further meetings or
communications between the parties.
3. The Regional Director's action of setting aside the
informal settlement agreement
In passing upon whether or not the Regional Director
acted properly in setting aside the settlement agreement, I
find it unnecessary to decide whether Respondent
adequately complied with that portion of the agreement
requiring it to submit written counterproposals and to
furnish a financial statement for the year 1964 and any
additional statements for the period thereafter. For, it is
apparent that the requirements that Respondent meet
with the Union at reasonable intervals and at neutral
locations and bargain collectively in good faith with the
Union were never fulfilled. In this connection, it is the
position of Respondent that, although White had
unwillingly designated Spedden with full authority to
negotiate a collective-bargaining agreement, the picture
changed with the death of White. As Spedden himself
testified, "the reason that there hasn't been any more done
as to specific items in the proposals of White or this
contract submitted on March 24th is because I felt that my
position as an Executor should be clarified." Indeed, as
15 Cf. Winn•Dtxte Stores, Inc , 147 NLRB 788, and cases cited
therein; see also N L R.B. v Royal Plating and Polishing Co , 350
F.2d 191 (C.A. 3), holding that where , under the circumstances,
there was no duty to bargain respecting the employer's decision to
already found, on March 25, Spedden met with Gutman,
counsel for the General Counsel herein, and advised that
"he could not enter into a contract which would burden
the business or hold up dissolution [of Respondent
corporation]." Obviously then, instead of manifesting an
intention to comply with the bargaining requirements of
the settlement agreement, Respondent has, since the
death of Martin J. White, Jr., and the probate of his will,
manifested the contract; i.e., an unwillingness to bargain
as therein required. Respondent seeks to justify this
unwillingness by relying on the alleged altered state of the
business operation since White's death. Thus,
Respondent's brief sees the issue to be the following: "In
view of the fact that the business operations of the
Employer have been altered since Mr. White's death and
has been conducted solely to fulfill existing contracts, as
provided in the will, and that the assets will be sold and the
corporation dissolved, and there is no possibility of the
business of the corporation continuing, does the executor
acting as such and as President of the Employer, have the
authority to enter into contracts of any kind or nature?" It
is, of course, clear that we are not dealing here with White,
qua employer, but with Respondent corporation in that
capacity. It follows, therefore, that, unless the corporation
was dissolved by operation of law upon the death of White,
its sole stockholder and owner, a proposition without legal
support and not argued here, the corporation and its
operating entity remained intact. Indeed, by his
appointment as White's executor under the latter's will,
Spedden had the power and duty "to continue the
operations" of Respondent, albeit, for a limited period not
to exceed 1 year. In this connection, nowhere does it
appear that Spedden was charged under the will solely to
fulfill existing contracts and not to enter into any new
contracts, be it with the Union or with someone else. The
very authorization in the will "to continue the operations,"
would seem to imply the contrary, i.e., the authority to do
whatever is required for the good of the business, as well
as what is required by law, including negotiating with a
union, which is, as here, the bargaining representative of
Respondent's employees. And, contrary to Respondent,
the plain meaning of the direction to the executor, under
White's will, "to carry out, complete and fulfill any
contracts existing at the time of [his] death," whether
read together with the stated power to continue
operations, or read separately, refers to contracts already
in existence at the time of his death and does not, in law or
in reason, preclude the entry into a labor agreement with a
collective-bargaining representative of Respondent's
employees. Nor can it be contended that the prospects of
the liquidation of the corporation assets, including the
plant herein and the dissolution of Respondent
corporation, serve to justify a refusal to bargain herein.
Assuming, arguendo, that sale of the corporate assets, as
well as the dissolution of Respondent corporation, was to
be the eventual resolution of the instant situation, the
Union had a right, in such premises, to bargain about steps
that might be taken to minimize the effect upon employees
of the sale of the assets and dissolution of Respondent
corporation.15 And the fact that the sole stockholder and
owner of Respondent was being represented by the
executor under his will does not require a different result.
shut down, the Union should have been given an opportunity to
bargain over the rights of employees whose employment status
will be altered by the managerial decision -
MARTIN WHITE, JR., INC. 525
Section 10(a) of the Act empowers the Board "to prevent
any person from engaging in any unfair labor practice
(listed in Section 8) affecting commerce," and Section 2(l)
defines a "person" as, including among others, " legal
representatives." 16 It follows therefrom that, as legal
representative of the estate of Martin J. White, Jr.,
Spedden could not legally refuse to meet and negotiate
with the Union while he was continuing to operate the
business, as he was charged to do under the above will.
In support of its refusal based on the claimed limited
authority of an executor under a will, Respondent cites
several cases decided by State courts and a Board case;
i.e., Eastern Iron & Metal Company, 106 NLRB 1261.
However, apart from other considerations, it is clear that
cases decided by the State courts are not controlling
herein, as it is the Federal law that must control. And, as to
the above-cited Board cases, that was a representation
proceeding in which the employer was an individual doing
business under the trade name of Eastern Iron & Metal
Company. The issue there was whether the executors of
the employer who were then operating the business under
his will were the employers of the employees involved. The
Board, relying on the fact that the operations and the
employees had remained the same during the transitional
period caused by the employer's death and on the further
fact that there did not appear to be any prospect of
imminent dissolution of the operation, found the executors
to be the employer of the employees and that there was no
obstacle to an election. Respondent reasons therefrom, in
effect, that since the Board arguably would have found an
obstacle to an election had dissolution been imminent, a
holding is warranted here, where assertedly dissolution is
imminent , that no bargaining obligation exists any longer.
There is clearly a vast difference between a situation
where the predicate for a bargaining relationship is sought
to be established and where, as here, a bargaining
obligation has already been established under Board
process and where the proceeding seeks to enforce that
obligation during the certification year and thereafter.
Thus, so long as Martin White, Jr., Respondent herein,
was maintaining its corporate existence and the business
enterprise, as was the case here, the Union continued to be
the representative of its employees, and the operator of the
enterprise had the obligation to recognize and bargain with
the Union as such representative. And, if dissolution were
to occur so that the employing entity would continue
substantially unchanged, the purchaser would also be
considered a successor and would have the same
bargaining obligation as its predecessor. For all these
reasons, I find the abovected Board case also fails to
support Respondent's position.
In all these circumstances, Respondent failed to comply
in material respects with the settlement agreement and
the Regional Director was justified in setting it aside."
C. Conclusion as to the Allegation of Refusal to Bargain
Having found that the settlement agreement was
properly set aside, there remains for consideration
whether , as alleged in the complaint , Respondent has
since January 6, 1965, satisfied its obligation to bargain
collectively with the Union herein.
1. The appropriate unit
The complaint alleges, Respondent admits, and I find
that the following unit in which the Union was certified in
Case 5-RC-4963 is appropriate:
All employees employed by Respondent at its 4546
Annapolis Road ( Baltimore , Maryland ) location, excluding
all office clerical employees , guards, and supervisors as
defined in the Act.
2. The majority status of the Union
The Respondent admits, and I also find, that, at all
material times, the Union has represented a majority of the
employees in the aforesaid appropriate unit.
3. The presettlement bargaining
The record establishes and I find that, in at least two
respects, Respondent did not fulfill its bargaining
obligation under the Act during this period. More
specifically; (1) although claiming inability to pay
increased wages which the Union was then demanding,
Respondent's attempt to substantiate its claim was less
than forthright; and (2) although promising to submit
counterproposals as to clauses in the Union's proposed
contract with which it had differences or disagreed, it
failed to do so. 18
As to Respondent's claimed inability to pay, although
Respondent produced a financial statement at the fourth
negotiating session in response to the Union's demand for
such a statement for the calendar year 1964 brought up to
date and allowed the union representative to look at it, it
refused the Union's request for a copy thereof, giving as its
reason that this was an only copy. And when the Union
requested permission to make a copy thereof, that was
also refused. The Union made the further request that
Respondent have a copy made and then forward it to the
Union. However, when Respondent did present a financial
statement to the Union at the next meeting of April 16,
1965, it submitted a different statement covering a 6-
month period to February 28, 1965, with the statement that
the Union could submit in writing whatever questions it
had concerning the statement and Respondent would get
answers for the Union from its accountant. Whereupon,
the Union, by letter dated April 19 to Respondent,
questioned the adequacy of the statement furnished,
'"See N.L R.B. v Kiddie Kover Mfg. Co , 105 F.2d 179, 183
(C.A 6); and Harbor Chevrolet Company, 93 NLRB 1326; cf.
N L.R.B. v. Bachelder, Receiver for Hoosier Veneer Co., 120 F.2d
574 (C.A. 7); cert. denied 314 U S. 647 , and Paul Stevens , Reciver
of Carolina Scenic Stages, a corporation , 109 NLRB 86.
" Spedden testified that part of his hesitancy in clarifying his
position as executor was due to the stoke tactics of the Union
while White was alive. Such tactics allegedly involved , inter alia,
destruction of company property, including its trucks ; threats to
picket at a construction project of one of its customers if Re-
spondent ' s employees made deliveries at the project; and
picketing at this customer 's premises . In this connection,
Spedden testified "how far can I go with knowledge of things
going on like that ." It is clear , however, that this added reason,
even assuming it to be factually so, which I do not and need not
decide here, would not detract from the propriety of the Regional
Director 's action of setting aside the settlement agreement or the
obligation to bargain, as found hereinafter.
is I find it unnecessary to decide whether, in the
circumstances , Respondent also violated the Act, as alleged, by
failing to meet and negotiate with the Union at reasonable times
and by failing to appoint a representative with full authority to
bargain and enter into a final and binding contract with the Union
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pointed out that it was not the statement shown to the
Union at the meeting on February 22, and reiterated the
request for that statement. Thereafter, at the meeting on
May 6, Respondent repeated its posiition that any
questions the Union had about the statement furnished
should be forwarded to Respondent and it would, in turn,
get the answers from its accountant. At this point, the
Union indicated that it had done just that by letter of
April 19 and that the requested statement shown to a
representative of the Union on February 22 had not come
forth. The Union asked for that statement again , or, in the
alternative, that the Union's accountant be allowed to
audit Respondent's books for 1964 and to date. The above
request of the Union was repeated in the Union's letter,
dated May 28, to Respondent, in evidence as General
Counsels's Exhibit 15. However, there were no further
developments prior to the settlement agreement herein. It
is noteworthy, too, that when Respondent did furnish
certain financial statements to the Union pursuant to a
provision of the settlement agreement, it did not produce
the statement shown to the Union on February 22. Under
all these facts and circumstances, I am persuaded that
Respondent did not make a forthright attempt to prove its
statement of inability to pay, nor did it permit independent
verification of such inability to pay and that it thereby
refused to bargain in good faith, since on or about
February 22.19
With respect to the failure to furnish counterproposals,
as promised, the record shows, and I find, that at the third
negotiating session on February 12, from which White was
absent, Spedden undertook to discuss with White what
had transpired at the meeting and then formulate written
counterproposals to the Union's demands and forward
such counterproposals to the Union by February 15 or 16.
Although prodded by telephone calls from the Union
thereafter and during the course of each subsequent
meeting, no such written counterproposals were proffered
by Respondent. While it is true that Respondent did
indicate its position with respect to many of the Union's
proposals at the various meetings held, this position was
never made concrete. Thus, the Union pointed out, at the
negotiating session on April 16, that it still had no
counterproposals as promised at the February 12 meeting
and that this prevented "the work[ing] out of any
clauses." And while Spedden promised at the sixth
negotiating session on May 6 that he would forward a
memo to the Union within about 10 days which "would be
on the articles in the contract, one by one, giving the
Company's position on each item where there was no
agreement, with proposed language on each item where
there was no agreement," Respondent had not, as of the
time of the settlement agreement herein, furnished such a
statement. Under all these circumstances, I am persuaded
that the failure to furnish written counterproposals as
promised on February 12, 1965, and thereafter, was
further proof that Respondent was not bargaining in good
faith.20
4. The period following the settlement agreement
As already found, no actual negotiations took place
during this period for reasons urged by Respondent which
I have found to be lacking in merit. It follows, therefore,
that Respondent's failure to enter into negotiations with
the Union after the death of White on September 25, 1965,
for the purpose of consummating a collective-bargaining
agreement, contravened its statutory obligations and
constituted a violation of Section 8(a)(5) of the Act.
In sum, I find that, by its conduct before and after the
time of the settlement agreement, whether viewed
separately or in combination, Respondent violated
Section 8(a)(5) of the Act.
Upon the basis of the entire record, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees of Respondent constitute a
unit appropriate for the purposes of collective bargaining
,within the meaning of Section 9(b) of the Act:
All employees employed by Respondent at its 4546
Annapolis Road (Baltimore, Maryland) location, excluding
all office clerical employees, guards, and supervisors as
defined in the Act.
4. By refusing on and since February 22, 1965, to
bargain collectively with the Union as the exclusive
bargaining representative of the employees in the
aforesaid bargaining unit, Respondent has engaged in and
is engaging in unfair labor practices within the meaning of
Section 8(a)(5) and (1) of the Act
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act, I shall recommend that Respondent cease
and desist therefrom and from interfering in any like or
related manner with the efforts of the Union to bargain
collectively with Respondent. However, with respect to
whether an affirmative order should issue, the following
appears: On July 6, 1966, counsel for Respondent filed a
motion of employer to dismiss proceedings. In it,
Respondent alleged (1) that Respondent "ceased to be an
employing unit , its last truckdriver having been
discharged, that on June 30, 1966, the Employer fulfilled
its last contract and ceased all operations and dealing in
matters of commerce of whatever nature ... and on said
date all business activities of Respondent were
terminated forever . . ."; and (2) as provided in the will of
Martin J. White, Jr., sole stockholder of Respondent, the
assets of Respondent corporation will be liquidated in the
manner prescribed and the corporation will be "dissolved
as soon as possible, therefore, the corporation will not be
sold as a unit, or a going concern, nor will its capital stock
be sold and it will never again become an employing unit."
Thereafter, on November 9, 1966, the General Counsel
filed herein a cross-motion of General Counsel for
issuance of the Trial Examiner' s Decision . In it, the
"See N.L.R B v Truitt MJg Co , 351 U.S. 149 inter alia, an employer 's failure to submit a counterproposal to a
20 Mitchell Concrete Products Co , Inc , 137 NLRB 504, see also union 's request for a dues checkoff, although the employer had
Texas Coca-Cola Bottling Company, 146 NLRB 420 ( involving , promised to do so)
MARTIN WHITE, JR., INC.
General Counsel asserts that it appears that Respondent
has, as stated in its aforesaid motion , "not had any
employees since June 30, 1966," but it has not, as stated,
been dissolved in the interim, and further that
"Respondent has not been dissolved in accordance with
the terms of the Will and its assets have not been
liquidated and distributed." The General Counsel,
therefore, requested that Respondent's motion to dismiss
be denied and that I issue a decision herein , without
further delay, finding the violations as alleged and
ordering Respondent to bargain with the Union, upon
request , if and when Respondent resumes its business.
In view of the fact that Respondent, for
nondiscriminatory reasons, has seemingly gone out of
business entirely with little likelihood that it will ever
resume operations, I agree with the apparent position of
the General Counsel that there is insufficient justification
for the issuance of an affirmative order to bargain now.
However, since Respondent, so far as the record shows,
still maintains its corporate existence and has not yet been
dissolved, and since one cannot say to a certainty that
Respondent will not resume operations in the vicinity of
Baltimore, the site of Respondent's plant herein, it would
seem appropriate to remedy the violation herein by
requiring Respondent to bargain with the Union if and
when it resumes operations in the vicinity of Baltimore,
Maryland,'' and I so recommend."
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record in this case, I
recommend that Respondent, its officers , agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with Construction
Building Material Drivers, Warehousemen and Helpers
Union No. 311, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, as
the exclusive representative of the employees in the
following appropriate unit: All employees at Respondent's
4546 Annapolis Road (Baltimore, Maryland) location,
excluding all office clerical employees, guards, and
supervisors as defined in the Act.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in their right to
bargain collectively through representatives of their own
choosing and to engage in other concerted activities for
mutual aid or protection.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) If Respondent resumes operations in the Baltimore,
Maryland, area, bargain collectively, upon request, with
the above-named Union as the exclusive representative of
all employees in the appropriate unit , and embody in a
signed agreement any understanding reached.
(b) Send to each of the employees a copy of the
attached notice marked "Appendix."'"' Copies of said
notice, to be furnished by the Regional Director for
Region 5, after being duly signed by Respondent, shall be
sent by mail to employees employed by Respondent prior
to its discontinuance of operations at their last known
address.
527
(c) Notify said Regional Director, in writing, within 20
days from the receipt of this Decision, what steps have
been taken to comply herewith. 24
"See Custom Quilting Corporation, 134 NLRB 51; cf. also
N L R B. v Weirton Steel Company, 135 F.2d 494, 498, 499
(C A 3).
r Respondent ' s motion to dismiss is accordingly denied
2' In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order" shall be substituted for
the words "the Recommended Order of a Trail Examiner" in the
notice In the further event that the Board 's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decesion and Order."
29 In the event that this Recommended Order is adopted by the
Board , 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
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
Relations Act, as amended, we hereby notify our
employees that:
WE WILL, in the event we resume operations in the
Baltimore, Maryland, area, bargain collectively, upon
request, with Construction Building Material Drivers,
Warehousemen and Helpers Union No. 311,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, as the
exclusive representative of all the employees in the
bargaining unit described below with respect to rates
of pay, wages, and hours of employment and, if an
understanding is reached, embody such an
understanding in a signed agreement.
The bargaining unit is:
All employees of our 4546 Annapolis Road
(Baltimore, Maryland) location, excluding all
office clerical employees, guards, and
supervisors as defined in the Act.
WE WILL NOT, in any like or related manner,
interfere with , restrain , or coerce our employees in
their right to bargain collectively through
representatives of their own choosing, and to engage
in other concerted activities for mutual aid or
protection.
MARTIN WHITE, JR., 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 provisions, they may communicate
directly with the Board's Regional Office, 707 North
Calvert Street, Baltimore , Maryland 21202, Telephone
752-8460, Extension 2100.