Memorial Consultants, Inc.

National Labor Relations Board - Board Decisions

Jun 17, 1965

153 N.L.R.B. 1 (N.L.R.B. 1965)

Memorial Consultants , Inc. and Teamsters, Chauffeurs and Help-
ers Local No. 627, affiliated with the International Brotherhood
of Teamsters , Chauffeurs , Warehousemen and Helpers of
America. Case No. 13-CA-6356. June 177 1965
DECISION AND ORDER
On February 12, 1965, Trial Examiner Morton D. Friedman issued
his Decision in the above-entitled proceeding, funding that the Re-
spondent had engaged in certain unfair labor practices within the
meaning of the National Labor Relations Act, as amended, and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
The Trial Examiner further found that the Respondent had not en-
gaged in certain other unfair labor practices alleged in the complaint,
and recommended that those allegations be dismissed. Thereafter, the
General Counsel and the Charging Party filed limited exceptions to
the Trial Examiner's Decision and supporting briefs. The Respond-
ent filed answering briefs.
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 [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recoin-
mendations of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Order recommended by the Trial Examiner and orders that
the Respondent, Memorial Consultants, Inc., Peoria, Illinois, its offi-
cers, agents, successors, and assigns, shall take the action set forth in
the Trial Examiner's Recommended Order.
153 NLRB No. 3. 1
796-027-66-vol 153-2
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on April 20, 1964, a first amended charge filed April 30, 1964,
and a second amended charge filed May 19, 1964, by Teamsters, Chauffeurs and
Helpers Local No. 627, affiliated with the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, herein referred to as the Union,
the Regional Director for Region 13 of the National Labor Relations Board, herein
called the Board, issued a complaint on June 24, 1964, on behalf of the General
Counsel of the Board against Memorial Consultants, Inc., herein referred to as the
Respondent or the Company, alleging violations of Section 8(a)(1), (3), and (5)
of the National Labor Relations Act, as amended (29 U S.C. Sec. 151, et seq.),
herein called the Act. In its duly filed answer to the aforesaid complaint, Respond-
ent, while admitting certain of the allegations, denied the commission of any unfair
labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Morton D. Fried-
man in Peoria, Illinois, on August 19, 20, and 21, 1964. All parties were represented
and afforded full opportunity to be heard, to introduce relevant evidence, to present
oral argument, and to file briefs. Oral argument was waived. Briefs were filed by
counsel for the General Counsel and by Respondent.
Upon consideration of the entire record in this case, including the briefs of the
parties, and upon my observation of the demeanor of each of the witnesses testify-
ing before me, I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
The Respondent, an Illinois corporation, maintains its principal office and place
of business in Peoria, Illinois. It is engaged in the sale, service, and maintenance
of cemetery plots, burial vaults and tombstones at various cemeteries within the
States of Illinois and Minnesota. During the calendar year 1963, a representative
period, the Respondent in the course and conduct of its business operations had a
gross volume of business in excess of $500,000 and rendered services directly outside
the State of Illinois in an amount in excess of $100,000.
It is admitted, and I find, that the Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act and that it will ef-
fectuate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find and conclude, that at all times material herein, the Union
has been and is a labor organization within the meaning of Section 2(5) of the Act
III. THE PLEADINGS AND ISSUES
The complaint alleges, in substance, that upon the Union's demand for recogni-
tion and bargaining, the Respondent, through its president, Leroy Demanes, un-
lawfully interrogated employees concerning their union membership, threatened
employees with loss of work through subcontracting, and threatened employees that
it would not bargain in good faith with the Union. The complaint further alleges
that the Respondent discharged employee Raymond Calvert and denied employ-
ment to applicant Lloyd H. Voges in order to discourage union membership. Addi-
tional allegations, all dealing with refusal to bargain in good faith, in substance,
allege that the Respondent negotiated with no intention of reaching an agreement;
failed to furnish necessary financial data, and made unilateral changes in working
conditions without consulting or bargaining with the Union.
The Respondent, in its answer, generally denies the commission of the alleged
unfair labor practices and affirmatively alleges that the sole purpose of the interroga-
tion of employees was to determine the Union's representative status; that its refusal
to furnish financial data was limited to data pertaining to the facilities other than
that for which representation by the Union is claimed; that it has met in good faith
and bargained to the full extent required by the Act, and that the alleged unilateral
action taken by it was for the purpose of meeting emergencies caused by the strike
of its employees which, Respondent contends, was economic in nature and not an
unfair labor practice strike as alleged in the complaint.
MEMORIAL CONSULTANTS, INC. 3
IV. THE UNFAIR LABOR PRACTICES
A. Interference, coercion, and restraint
1. The events
As alluded to above, the Respondent operates as owner or agent some 14 cemeteries
in the States of Illinois and Minnesota. Beside its initial responsibility for the sales
of cemetery plots, Respondent is responsible for the maintenance of the cemeteries
and servicing funerals. It also fabricates and sells burial vaults. For the work of
servicing funerals, maintaining cemeteries, and manufacturing vaults, the Respondent
employs regular crews at almost all of its facilities. At Swan Lake Memorial
Gardens, Peoria, Illinois, Respondent employed such a crew which comprises the
unit claimed appropriate by the Union and the General Counsel in the case at bar.
In March and April 1964, the Union conducted an organizing campaign among
the employees at Swan Lake. During this period, the Respondent employed three
nonsupervisory employees at Swan Lake. On Friday, April 3, 1964, the secretary-
treasurer of the Union, Arthur Gauwitz, who also acts as the Union's business agent,
telephoned Leroy Demanes, the Respondent's president, and informed the latter that
the Union had signed up the employees at Swan Lake. Demanes asked Gauwitz
how such matters were handled normally. Gauwitz answered that the determination
of the question of majority was usually made by a card check conducted by a dis-
interested person. Demanes agreed to such a check. Gauwitz, therefore, arranged
for a check to be made by a local judge on the following Monday, April 6. When
the arrangements were completed, Gauwitz sent to Demanes by certified mail a
letter informing the latter of the time and place of the card check. On April 6,
Gauwitz went to the judge's chambers at the appointed time but neither Demanes
nor any other representative of the Respondent appeared. The card check was
not made.
Immediately thereafter, on the same day, Gauwitz filed a representation petition
with the Board. While action on this petition was pending, Respondent's counsel
informed counsel for the Union, by letter, that the Respondent recognized the Union
as the bargaining agent of the Respondent's employees at Swan Lake and invited the
Union to present him with the copy of the Union's proposed contract and to have
a meeting thereon shortly after submission.' Thereafter, the parties' representatives
submitted proposal and counterproposal and four negotiating meetings were held over
a period of approximately 3 months, the details of which are hereinafter set forth and
discussed.
Demanes, after his telephone conversation with Gauwitz on April 3, was skeptical
about the identify of the caller and the bona fides of the claim and, as a result, did
what he considered a very normal thing. He called Theodore Neal, the super-
intendent at Swan Lake Cemetery, on the telephone and asked the latter whether the
men had joined the Union or signed union cards. Neal turned around to one of
the men who was eating his lunch and asked him if the men had signed with the
Union. When the man answered in the affirmative, Neal, in turn, gave this informa-
tion over the telephone to Demanes.2
The next morning, Saturday, April 4, Demanes again called Neal and instructed
the latter to bring the three employees of Swan Lake, Robert Couch, Thomas J.
Vaughn, and Clarence Beebout, to the Respondent's office in Peoria. In accord-
ance with instructions, Neal brought the employees down to the Respondent's office.
Present were Demanes, Neal, Roy Hull, general counsel for the Respondent, and the
three above-named employees.
After being introduced to Beebout whom he had not met, Demanes began the
discussion by asking if the men had joined the Union. Couch, who acted as spokes-
man, answered in the affirmative. Then Demanes asked why the men had joined the
Union and Couch told Demanes to talk to the Union. This is all the employees had
to say. After an interval of silence Demanes told them that he had lost $40,000 at
Swan Lake in the past year or two and was thinking about leasing Swan Lake out to
a contractor to dig the graves and take care of the cemetery. He then added that he
was not going to sign with the Teamsters or any other "damn" union and informed
the employees that if the latter decided to pull out of the Union to let him know.
'All of the foregoing from the uncontroverted testimony of Arthur Gauwitz.
2 From the credited testimony of Leroy Demanes and the admissions on cross-
examinations of Theodore Neal. There is no allegation in the complaint that this interroga-
tion was violative.
4 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The meeting lasted about 45 minutes, much of which time was spent in silence with
the individuals "just looking at each other." 3
2. Conclusions as to interference, coercion, and restraint
As noted above, I find that Demanes did ask the employees whether they had joined
the Union and why they had joined the Union. I further find that he told them that
the Respondent was losing money at Swan Lake and was considering contracting out
cemetery maintenance and servicing. I find, additionally, that he told the employees
present that he would not sign "with the Teamsters or any other damn union," and
that he asked the men to call him if they decided to leave the Union. I also find
that the meeting lasted long enough to contain rather lengthy periods of silence.
The Respondent contends that the meeting was called for the lawful purpose of
determining the Union's status and that, therefore, the interrogation of the employees
was protected under the Act. I cannot agree. The interrogation was not isolated
or free from coercive context. Demanes had been told by Neal on the previous
day that the "boys" at Swan Lake had joined the Union. Therefore, the necessity
for the Saturday morning meeting for the purpose stated by the Respondent is, at
best, questionable. In connection therewith was the pending card check to be made
on the following Monday which would have determined the Union's majority status.
Moreover, the interrogation was not limited as to whether the employees had joined
the Union but was extended to cover the reason for such affiliation. This extension
itself went beyond the bounds of what is normally considered lawful interrogation,
and was directed at union activities and sympathies.
Additionally, the meeting was not confined to mere informational interrogation but
was further extended to the introduction of the subject of contracting out, a subject
which in the context here presented could have no other object but that of presenting
to the employees a veiled threat of elimination of their jobs if they persisted in their
pursuit of union representation. This is especially true in the light of Demanes' fur-
ther flat statement that he would not deal with his employees' union, the Teamsters,
or any other "damn" union. Then followed the request to notify him if the men
decided to abandon their union membership.
In these circumstances, to separate the lawful from the unlawful aspects of the
meeting would be impossible. Each segment of the meeting was a part of the whole,
and each part contributed to the coercive force. and the unlawful purpose. In so
3 From the credited testimony of Couch, Vaughn, and Beebout. In contrast with the
almost uniform testimony of the employees, the testimony of the three Respondent repre-
sentatives at the meeting differed as to details not only with the testimony of the three
employees but with the testimony of each other. Thus, on direct examination, Neal testi-
fied that he remembered that Demanes asked the employees why they had joined the Union,
but did not pay much attention to what else occurred. He said the meeting could not
have lasted for more than 25 to 30 minutes. When pressed, Neal stated that he did not
hear Demanes make any statement to the effect that he would not deal with the Team-
sters or any other "damn" union . Nor did he hear Demanes say the men should let him
know if they decided to leave the Union. However, he remembered that Demanes said
that he was thinking for quite awhile about contracting the cemeteries out. He said they
cost him too much to run. Hull's testimony on this subject was not very comprehen-
sive. He denied that Demanes told the employees he was not going to recognize the
Teamsters or any other union. He testified that the meeting lasted only 5 minutes
or that any time was spent in silence with the participants merely looking at each
other. Demanes, who testified at length about the meeting, admitted that he asked the
employees if they had joined the Union and why they had joined the Union. He admitted
he told the employees the Company was thinking quite seriously of discontinuing the
cemetery-care portion of the operation because it was losing money. The meeting, ac-
cording to Demanes, could not have conceivably lasted more than 10 or probably closer
to 5 minutes. Demanes denied that he said he would not deal with the Teamsters or any
other "damn" union at Swan Lake, or that if the employees changed their minds about
the Union they should call him and let him know. Demanes further testified, on cross-
examination, that Neal was mistaken in saying that Demanes told Neal to ask the men
if they were members of the Union. He also testified that Neal was mistaken in saying
that the meeting at his office on Saturday morning took 25 to 30 minutes. Demanes
insisted it was nearer 5 minutes. Because of the variations in the testimony of the
Respondent' s witnesses and from my observation, I credit the versions of Couch, Vaughn,
and Beebout.
MEMORIAL CONSULTANTS, INC. 5
concluding I cannot ignore the long periods of silence during the meeting which in
and of themselves contributed to the rather uncomfortable and otherwise coercive
atmosphere.
Accordingly, I find and ;onclude that by interrogating its employees concerning
their union affiliation and sympathies, by informing them of a possibility of contract-
ing out cemetery-care work, by announcing that the Respondent would not bargain
with the Union, and by inviting the employees to abandon their union activities, the
Respondent engaged in unlawful interrogation, coercion, interference, and restraint in
violation of Section 8(a) (1) of the Act.
B. The alleged discrimination
1. The events
Raymond Calvert was first employed by the Respondent in early April 1962. At
first, he worked at Hillcrest Cemetery between Washington and Morton, Illinois. At
that time he was supervised by Theodore Neal, superintendent of Swan Lake.
Calvert worked alone at Hillcrest mowing grass, laying sod, trimming shrubbery,
digging graves, and putting on blankets, all of which work was very much the same
as work of the other employees here involved. When extra help was needed at Hill-
crest, as when a funeral took place, employees Couch and Vaughn were dispatched
from Swan Lake to work with Calvert. Calvert worked at Hillcrest and at Swan
Lake until the first part of November 1963 when he was laid off. It was his under-
standing that as soon as the Respondent needed someone he would be rehired.
On April 27, 1964, Calvert applied to Neal for work, was hired, and went to work
that day. Toward the end of the day, Neal told him that he would have to lay him
off until the trouble with the Union was settled. When he asked Neal after the latter
told Calvert he was a good worker, why he was then being laid off, Neal again re-
peated that it was because of the union trouble.4
With regard to Respondent's reason for the manner in which it handled the Calvert
matter, Neal testified that he rehired Calvert to enable the latter to pay back a note
for money borrowed from the Respondent the year before. According to Neal's
testimony, uncontroverted in this respect, he was instructed to do this by Bob Chase,
an assistant in the Respondent's office. However, later in the day, after he had put
Calvert back to work, Chase called Neal and told him to lay Calvert off, but gave
him no explanation. Additionally, at another earlier time, Chase told Neal that the
Union had signed up the employees at Swan Lake and told Neal not to hire anyone
until "they found out something from the home office."
Demane Respondent's president, testified, in substance, that in 1963, when Calvert
was working alone at Hillcrest, Demanes had occasion to visit that cemetery and it
had the appearance of having been abandoned. He gave orders immediately that
this condition be remedied. When he returned some time later for a reinspection
conditions had not improved and he gave orders to Cannon, the Respondent's gen-
eral manager, that he wanted Calvert removed to some other location or simply
removed. Thereafter, Calvert was transferred to Swan Lake but he proved to be
incompetent even under close supervision and the Respondent decided to let him go
at the end of the season and not rehire him. Therefore, when Demanes learned that
Calvert had been rehired in April 1964, he gave immediate orders to let Calvert go
at once. Calvert's membership or nonmembership in the Union had nothing to do
with the layoff. He had no way of knowing whether Calvert was a union member.
Demanes did admit, however, that after Gauwitz had telephoned him on April 3,
1964, to demand recognition and he had not been able to make the Monday card-
counting appointment because of a prior commitment, he received a letter from the
Union's attorneys stating that he had committed unfair labor practices and that
charges had been filed. He then realized that he was in the midst of something about
which he knew nothing so he contacted Neal and told the latter, "Look, just don't
hire anybody at this time, just sit tight until I let you know."
Employee Lloyd H. Voges worked for the Respondent at Swan Lake Cemetery
from about May to the latter part of August 1963. He had the same duties as other
employees ?:,,.einafter described. He was laid off in August for lack of work.
4 From the credited testimony of Raymond Calvert Cali ,rt testified in an unhesitating
and straightforward manner. I have heretofore discredited Neal as to other matters.
I find no reason, on my observation of him or from the record, to change my judgment
that Neal was not i, reliable witness. Accordingly, I do not credit Neal's version that he
merely told Calvert that the latter was laid off after a half day's work without giving
Calvert any explanation.
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Around the first part of May 1964, Voges applied, by telephone, to Neal for work
and Neal said the Respondent would not let him hire anybody because they were
having trouble with the Union. Some 4 or 5 weeks later he again called Neal and
Neal said, "Lloyd, I wish I could tell you `yes,' but we are still having union troubles
out here and I can't hire you, the Company won't let me." 5
Neal admitted that when Voges first called to ask for reemployment Neal knew
that Voges had signed a union card, that Couch and Vaughn had told him. Neal
further testified that although he told Voges he could not hire him because of
"trouble" he did not use the word "union," that actually he had no trouble in mind
but told Voges that in order not to embarrass the latter whose work had proved in-
ferior in the prior year. Neal admitted he never referred to "trouble" in turning any
other applicants down. Further, Neal testified that it was Assistant General Manager
Chase who had told him not to hire anyone. Neal did not mention Demanes in this
connection; although Demanes testified, as heretofore set forth, that he had instructed
Neal not to hire anyone.
With regard to the refusals to hire Voges and the layoff of Calvert, Respondent
offered employment to both Calvert and Voges on May 20, 1964, after the charges
herein were filed but over a month before the filing of the complaint herein. Re-
spondent was advised by union telegram on May 21 that the offer was accepted but
that Calvert and Voges had joined "other employees in striking for a contract . . .
that a self-respecting Union can accept."
2. Findings and conclusions with regard to the alleged discrimination
The General Counsel contends that the Respondent refused to hire Voges and dis-
charged Calvert shortly after hiring him for the reason exemplified in Neal's state-
ments to the effect that the refusal to hire Voges and the layoff of Calvert were due
to "union trouble" and that, therefore, this activity was taken to discourage member-
ship in the Union and was, consequently, discriminatory and in violation of Section
8(a)(3) of the Act.
The Respondent, on the other hand, contends that its offer to hire Calvert and
Voges before the complaint herein was issued establishes that there was no discrimina-
tion; that both Voges and Calvert accepted but immediately went on strike with the
other employees.
Consideration of the problem as presented by the record turns not so much on the
statements of Neal as contended by the General Counsel or the rehire of both as
contended by the Respondent, but rather on what occurred in the Respondent's
hierarchy before the alleged discriminatory acts. Consideration must certainly be
given not only to Neal's statements to both alleged discriminatees regarding "union
trouble," but also to the standing orders emanating from Demanes and passed on to
Neal by both Demanes, Respondent's president, and Chase, Respondent's assistant
general manager, not to hire anyone during this period. Also to be considered are
the explanations of Demanes in the case of Calvert and Neal in the case of Voges to
the effect that in earlier employment periods these employees had proved inadequate.
From the foregoing must be determined the Respondent's actual motivation for
its treatment of Calvert and Voges. Not to be overlooked, also, are Demanes' state-
ment that he would not deal with the Teamsters, his veiled threat that he would con-
tract out the work, and his unlawful interrogation of the employees.
The theory of the General Counsel would seem to be that the "no hire" directive
of the Respondent as issued by Demanes was adopted for an antiunion reason, to
prevent the hiring of union adherents or possible union adherents; that Calvert and
Voges were refused employment as part of this overall discriminatory plan and not
for the reasons assigned by Respondent's representative; that the refusal to hire was
therefore violative in that it was designed to discourage union membership.
Weighing in favor of the General Counsel's theory are the acts of interference
engaged in by Demanes but a few days before the adoption of the "no hire" direc-
tive and only a few weeks before the Calvert and Voges incidents. Also supporting
this theory are the apparent inconsistencies in Neal's testimony to the effect that he
refused to hire Voges because the latter had been inefficient in an earlier period of
employment, that he told Voges there was "trouble" in order to save Voges embar-
rassment and that, in any event, Chase, Respondent's assistant general manager, had
instructed him not to hire anyone. This is also inconsistent with Demanes' testimony
that it was Demanes who gave Neal the instruction not to hire any additional
employees.
5 From the credited testimony of Lloyd Voges. Again, as in the case of Calvert, I credit
Voges version of these conversations over Neal, whom I have found to be unreliable.
MEMORIAL CONSULTANTS, INC. 7
On the other hand, as testified by Demanes , he was in a quandary as to how to
proceed when the Union made its first overtures to him. As a result of the charges
filed by the Union but a few days following demand for recognition and by the
rather precipitous flow of events , Demanes could well have been innocently motivated
in issuing the "no hire " directive even though the directive was the result of the
advent of the Union . At least his order not to hire was equivocal and nowhere in
the record is there any direct evidence that it was adopted for the purpose advanced
by the General Counsel. It was at least as consistent with innocence as with guilt
on its face and to give it an interpretation of discrimination involves making infer-
ences from the other factors cited.
However, at least in the case of Calvert , there is not a scintilla of evidence that
Respondent knew whether Calvert was a union adherent . In fact the record does
not even show when Calvert did join the Union or ask for its assistance . The Re-
spondent took no discriminatory action against its employees whom it knew to be
union adherents , yet the General Counsel urges that the Respondent took steps to
discriminate against job applicants whose union sympathies , at least in the case of
one, were unknown to the Respondent . Moreover , the General Counsel's argument
becomes even less persuasive in light of the fact that the Voges and Calvert incidents
occurred after the Respondent had already agreed to recognize and bargain with the
Union thus acknowledging the Union 's majority status .° At that time, if the Re-
spondent desired to water down the Union 's majority , it would more logically have
sought to hire nonunion employees rather than refuse to hire any employees at all.
Thus, although the matter is not without suspicion and although certain aspects of
the testimony of the witnesses for the Respondent , especially the testimony of Neal,
may not ring true, I conclude that, in balance , the General Counsel has not presented
sufficient evidence to preponderate in favor of a finding of discrimination Accord-
ingly, I shall recommend dismissal of those allegations of the complaint which allege
violations of Section 8(a) (3) of the Act.
C. The alleged refusals to bargain
1. The appropriate unit
The General Counsel contends that a unit comprising all truckdrivers, backhoe
operators, gravediggers, mowers, sod layers, headstone and/or monument setters, and
common laborers employed at Swan Lake Memorial Garden, Peoria, Illinois, exclud-
ing all other employees, guards, and supervisors, as defined in the Act, constitute an
appropriate unit. The Respondent does not contest the specific inclusions and ex-
clusions in the aforesaid unit but contends that the unit is inappropriate inasmuch
as the Respondent's organization includes a number of cemeteries all of which operate
under the same conditions and labor relations policies which are set by the central
office, principally by Demanes as president of the Respondent. The Respondent
contends, therefore, that a unit including all of the Respondent's cemeteries and all of
the employees in the various categories working at those cemeteries constitutes the
only appropriate unit. I do not agree.
It should be noted at the outset that the Respondent voluntarily recognized the
Union as bargaining representative in the aforesaid described unit. Additionally, the
general overall supervision of the operations in connections with the cemeteries is
vested in Cannon, the general manager, who generally supervises operations at all
14 cemeteries, including Swan Lake in Peoria. Under Cannon is Chase the assistant
general manager, who generally administers all cemetery care, maintenance and pur-
chasing of materials and equipment used in connection with such care and mainte-
nance, and installing the burials and who generally either approves or, perhaps,
disapproves of any particular hiring or firing of cemetery employees. Under Chase
are the general superintendents of the cemeteries involved. Each cemetery has a
separate superintendent. Thus, Theodore Neal is the superintendent at Swan Lake.
The day-to-day operations of each cemetery generally would be in charge of the
general superintendent at each of the cemeteries who supervises the employees at
their work. As stated above, locations of 11 of the cemeteries are scattered over
the State of Illinois and 3 of them are located in the State of Minnesota. Thus, there
is extensive gees.aphical separation between the various cemeteries.
Moreover, although there is evidence in the record of some interchange of em-
ployees at various times between Swan Lake in Peoria, Glendale Cemetery in Pekin,
and Ilillcrest Cemetery between Washington and Morton, because of the relatively
6 Recognition was granted on April 21 , 1964 The Calvert incident occurred on April 27
and Voges called Neal the first time early in May.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
short distance between these cemeteries , such interchange is more sporadic than regu-
lar. Additionally , it is clear that with regard to the other 11 cemeteries in the group
controlled by the Respondent, the geographical separation is too great to allow
interchange of employees.
The Respondent further contends that to find a unit confined to the employees
Swan Lake appropriate would be tantamount to finding the unit appropriate on the
basis of extent of organization . Again I do not agree because of the factors afore-
cited all of which entered into the determination which I make.
Accordingly , I find , that by reasons of geographical separation of the cemeteries
and because each cemetery is immediately supervised by a separate superintendent
who answers only to the assistant general manager in Peoria I find that the unit as
contended by the General Counsel is appropriate for the purposes of collective
bargaining.
2. The Union's majority status
As noted above, the Respondent recognized the Union as a majority representative
of its employees at Swan Lake and does not seriously contest majority . However,
at the hearing, the General Counsel introduced , through personal identification, the
cards of Robert Couch , Thomas J. Vaughn , and Clarence Beebout. Since, at the
time of the organization of the Swan Lake cemeteries these were the only employees
involved in that cemetery and employed by the Respondent for that cemetery, I find
that at all times material herein, the Union is and has been the majority representative
of the employees of the Respondent at the Swan Lake Cemetery in the unit hereto-
fore found to be appropriate.?
3. The bargaining
As noted above , on April 21, 1964, the Respondent , by letter from the Respond-
ent's counsel to the Union 's counsel , recognized the Union as the bargaining repre-
sentative of its employees and offered to meet with the Union with regard to a
proposed contract . The letter suggested that the Union present its contract to Re-
spondent 's counsel so that the meeting could be arranged shortly thereafter. On
May 12, 1964 , the first meeting between the Respondent and the Union took place
in Peoria , Illinois. Before that meeting occurred , as requested by Respondent's
counsel , the Union had forwarded to the Respondent its proposal in the form of a
complete contract
Present at the meeting for the Union were Lawrence Murray, president of the
Local, Gauwitz , secretary-treasurer of a local. For the Respondent , were Respond-
ent's counsel for labor relations , Robert D. Morgan, Respondent 's General Counsel
Roy T. Hull, and Leroy S. Demanes , Respondent 's president. At the outset of the
meeting, Respondent's counsel informed the union representatives present that the
Respondent was still seeking to contract out the work of cemetery care and mainte-
nance. After Morgan's announcement that there was still a possibility that the Com-
pany might lease out the work of cemetery maintenance , the parties discussed the
Union's proposal item by item. This proposed contract contained an assignee clause
which would have made the contract binding upon anyone to whom the Company
contracted the cemetery care and maintenance work. There was considerable dis-
cussion on this and it was agreed that Morgan would reword the assignee clause and
that this clause would be presented to the Union in the Company 's counterproposal.
The Union 's proposed contract also contained a 30-day union -security clause. There
was discussion on this and other clauses which the Respondent thought it could accept
or not accept . At that meeting , also, the Respondent through Demanes, stated that
it would be impossible to grant any additional wages or any type of fringe benefits
where any additional cost to the Company might be involved . Demanes stated that
the Respondent had lost several thousand dollars at Swan Lake in the previous 5-year
period. Gauwitz, in this discussion , stated that he did not think that Swan Lake
was the only cemetery with which the Union was concerned with regard to cost
because there was evidence in the record that the Respondent 's employees did work
at other places and at other cemeteries.
Thus, the essence of that first meeting was to determine just how close the parties
might possibly come at the outset with the view to arriving at an agreement that
both parties could live with. At the end of that meeting it was understood that
the Company would draft a complete counterproposal based on the discussion and
decisions to be later made by the Respondent 's representatives privately.8
7I also note that all three regular emplo yees at Swan Lake supported the strike on be-
half of the Union.
8 The foregoing from credited portions of the testimony of Gauwitz and Demanes.
MEMORIAL CONSULTANTS, INC. 9
By May 15, the Respondent's counterproposal was completed and on that day
Gauwitz went to Respondent's counsel's office to pick it up. There was no dis-
cussion at that time. Thereafter, on Sunday, May 17, Gauwitz had a meeting with
the three employees in the unit, Beebout, Vaughn, and Couch. They studied and
discussed the counterproposal article by article. There were three principal features
of the counterproposal which differed from the Union's proposal. Instead of an
assignee clause as such, the counterproposal contained a clause stating that the Re-
spondent would not guarantee employment, that it was understood that the Respond-
ent was continuing its efforts to divest itself of the unprofitable cemetery-care and
maintenance department. A second feature of the counterproposal was the omission
of any union-security provision. Lastly, the article containing the provisions for
wages and hours of work was not completed with the insertion of wage rates.
The article that stated that the Company would continue to attempt to contract
out the work was received by the men with alarm because they felt that this con-
stituted possible elimination of their jobs. Moreover, there were no fringe benefits
of any type offered in the counterproposal in addition to those the Respondent had
previously been giving its employees. Accordingly, a secret ballot was held and the
employees voted unanimously to reject the counterproposal. By another secret ballot
they voted unanimously to strike.9 Pursuant to that vote, on the next day, May 18,
the employees did strike and at the time of the hearing herein they were still engaged
in that strike. Also, on May 18 Gauwitz sent to Demanes a telegram informing the
latter that the employees were going on strike. The telegram stated that the strike
was the result of the employees discontent with the counteroffer and to compel the
Respondent to negotiate in good faith for a contract covering the employees and to
cease from discriminating further against Calvert and Voges. The telegram further
stated that the Union was ready and willing to meet with company representatives
any time to attempt to resolve these issues.19
Demanes answered the telegram by letter dated May 20, 1964, in which he accused
the Union of an unnecessary strike but, nevertheless, indicated unequivocally that
the Respondent would be willing to take Calvert and Vaughn as employees. In fact,
Demanes simultaneously sent telegrams to each of these individuals informing them
that they were accepted as employees.
On May 21, 1964, Gauwitz wrote to the Company stating that in view of the Com-
pany's position that it could not afford wage increases, the Union demanded an
opportunity to examine the corporate books and records through the Union's ac-
countants. This demand was limited to the books and records of Swan Lake. On
the same day Gauwitz sent Demanes a telegram in which he requested a further bar-
gaining session to be held on May 22. This telegram also informed Respondent
that Voges and Calvert accepted the offered reinstatement but joined the other em-
ployees in striking for a contract. In answer to the telegram, Demanes informed
Gauwitz that he would be busy on the 22d. Therefore, the next meeting was held
in a Peoria hotel on May 23.
Present at the May 23 meeting were Murray and Gauwitz representing the Union,
and Hull, the Respondent's general counsel, Demanes and Cannon, general manager
of the Respondent, representing the Respondent. Nothing new was presented at that
meeting by way of counterproposals from either of the parties. The Respondent
remained adamant in its proposals and the Union remained adamant in its proposals.
Thus, Murray informed the Respondent's representatives that the counterproposal,
in the opinion of the Union's representatives, was nothing but a joke and there was
no sense in even looking at it or even discussing or talking about it. Murray stated
that so far as he was concerned, the Teamsters never considered going into any kind
of contract that did not contain a union-security clause and a wage increase. Murray
stated that these two items were mandatory as far as he was concerned and that if
if they wanted to discuss anything further at all about the contract, the Respondent
had to concede on union security and pay increases or forget the entire thing.
Gauwitz said nothing to the contrary.
Then Demanes chided Murray and told him that Demanes did not consider that
negotiating, he called it dictating, and as far as Demanes was concerned there was
not much sense in their talking because the Union had its mind up so that little could
be accomplished by merely sitting around the table.
Nevertheless, the discussion was quite lengthy and the items in dispute were tra-
versed at length including the assignee and union-security clauses. Demanes again
explained the hardship that the Respondent was having at Swan Lake. Gauwitz
a From the credited testimony of Gauwitz.
10A discussion and decision as to whether this strike was an economic or an unfair
labor practice strike is set forth hereafter in section C, 5
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reminded Demanes that in connection therewith it was necessary for the Union to see
the books not only of Swan Lake but also of Glendale and Hillcrest. Demanes
answered that he was not going to turn his books over to Gauwitz or to anyone else,
that if there was information the Union needed pertaining to Swan Lake, the Union
could request it and the Respondent's auditor could assemble it and then it would be
presented to the Union. Gauwitz took the position that the information had to be
with regard to all three cemeteries on which the men worked because vaults were
made at Swan Lake and used at other places and because the operations of the three
cemeteries were integrated. Demanes also stated whatever he did for the employees
the Union represented, he would have to do for all the other people employed by the
Respondent at all its other cemeteries. He explained that what he did for one, he
had to do for all. Gauwitz replied that the Union was not interested in the other
people; that the only people the Union was talking for were those whom they repre-
sented, namely the Swan Lake employees. He then told Demanes that the other
cemeteries would not be bothered because the Union had jurisdiction only over the
people at Swan Lake. Demanes answered that the Union did not have to inform the
other people at the other cemeteries of what was going on, that they would find out
and come looking to Demanes for equal treatment. Thus the meeting disbanded
with nothing accomplished."
In testifying with regard to the counterproposal, Demanes explained that the Re-
spondent purposely omitted wage rates because the Respondent desired to leave that
open pending the agreement upon other areas of disagreement. According to
Demanes, the Respondent did not "sweeten" its proposal because it expected some-
thing from the Union to counter the Respondent's counterproposal but the Union did
not do so. Quoting Demanes, "he asked me for a counterproposal which is exactly
what we submitted to him and we waited for an answer and never received it."
On May 25 Demanes wrote to Gauwitz and recapitulated, in part, the meeting of
May 23 stating that to set the record straight, on May 23, it was suggested that each
employee at Swan Lake receive $1.50 an hour. Demanes stated that this was not the
case, that Beebout, who was a new employee, was paid $1 50 an hour, but Vaughn,
an older employee, was receiving a $1 60 per hour and Couch was receiving a $1.70
per hour. The Respondent, in its letter, emphasized that these rates were being
paid in addition to substantial fringe benefits in the form of life and hospitalization
insurance. The letter also stated that the auditors for Swan Lake were making a
recapitulation of Swan Lake's operation for the 5 preceding years and that this would
be mailed to the Union as soon as it was prepared. The letter further informed the
Union that the Respondent's auditors would be most happy to meet with union
representatives to discuss any reasonable question which the Union's representatives
might have with regard to the recapitulation.
The Union replied to this letter with a telegram dated May 25 in which it was
stated that the Respondent had failed to respond to the earlier written and oral
demands to permit examination of the Swan Lake books by a certified public ac-
counting firm engaged by the Union. The telegram also voiced the Union's objec-
tion to the unnecessary delay which would result from the arrangement proposed by
the Respondent (that is having the Respondent's accountants prepare a summary)
and the Union insisted upon the right to check out the books through its own
accountants.
On May 26, Demanes wrote to Gauwitz, referring to a conversation which the two
had on the morning of that day, stating that Demanes again would like to reassure
Gauwitz that any records pertinent to reaching an amicable understanding in a
negotiation for employees of Swan Lake Memorial Gardens would be made available
to Gauwitz. However, Demanes reminded Gauwitz that the records which the latter
sought to examine were not readily available in the form which he believed that
Gauwitz would want. Demanes also stated that since negotiations pertained only
to the men employed at Swan Lake, it was his opinion and the opinion of his attor-
ney that it would be unreasonable for the Union to ask for the records of any other
cemetery. The letter then went on to indicate, as Demanes had indicated before,
that it would require some time for his auditor to isolate the information that the
Union desired. Demanes ended the letter by requesting that a meeting not be held
until June 6 because the Respondent was very busy over the Memorial Day period.
The proposed meeting of June 6 apparently did not take place, the explanation
for which is not in the record. The next meeting was held on July 27 at the execu-
tive board room of the Teamster's hall. Present only were Demanes for the Com-
pany and Gauwitz for the Union. According to Gauwitz, Demanes remained
"All of the discussion herein concerning the May 23 meeting is a summary
of credited
portions of the testimony of Demanes and Gauwitz.
MEMORIAL CONSULTANTS, INC. 11
adamant in maintaining the Company's position and said that he had nothing more to
offer. Gauwitz, on the other hand, informed Demanes, according to Gauwitz, that
the Union's position was fluid and that it would be willing to negotiate if Demanes
would only come through with some sort of offer. Then according to Gauwitz, the
meeting broke up with Demanes promising that he would see if he could have a new
counterproposal ready for Gauwitz within 10 days from that date. Gauwitz also
reminded Demanes once again at that meeting that the Union wanted to see the books
of Swan Lake, Glendale, and Hillcrest cemeteries. The meeting lasted only about
20 minutes.
Demanes, on the other hand, did not testify specifically as to what occurred at
the meeting of July 27 but stated generally again that he did not make any change
in his counteroffer because the Union did not meet his counteroffer with any sug-
gestion of its own. He further testified that from Murray's apparent adamancy with
regard to the union shop clause, he felt that the Union should be the next to make
some move toward arriving at an agreement. As set forth above, he also stated
that he had purposely omitted wage scales from the Company's counterproposal in
order to allow for some room to negotiate in that direction. However, the Union
did not move from its original demand.
The last meeting between the parties was held on August 11 at Demanes' office.
Present again were Demanes and Gauwitz only. According to Gauwitz, he brought
with him the Union's original proposal with the intentions of receiving from Demanes
a second counterproposal as promised by Demanes at the meeting of July 27.
Gauwitz started the conversation by asking Demanes if the latter had a counter-
proposal ready. Demanes stated that he did not and took the position that whatever
he did for the people whom the Union represented, he would have to do for all of
his employees at all of the cemeteries. Gauwitz then reminded Demanes that the
Union had to have a look at the books. Demanes stated, according to Gauwitz,
that the Company had the books and papers there but the Union would have to "pin-
point what you wanted concerning Swan Lake." Demanes said nothing about the
books of the other cemeteries. Finally Gauwitz asked Demanes once again if there
was anything that the Company had by way of a new proposal toward adjusting the
situation and according to Gauwitz, Demanes said, "We can sit here all afternoon
and talk if you want to, but I haven't anything to offer." To date the Union has not
received any financial information concerning any of the cemeteries that they
requested.
According to Demanes, on the other hand, at the August I1 meeting, Demanes
actually wanted to go through the contract item by item to see if they could not
straighten out the differences. He asked Gauwitz to do him a favor and to go back
down the contract with a pencil and show what he could specifically accept and what
the Union could not accept in the Respondent's counterproposal. Gauwitz said that
he would try to do so and get this information back to Demanes on the next day.
To date Demanes has not heard from Gauwitz.
Again, I credit both Demanes and Gauwitz in the sense that they each remembered
and told what each remembered about the meeting of August 11. Each of them, of
course, related what was favorable to his side of the case. Accordingly, I find that
each did attempt to have the other go over the contract once again to find out what
was acceptable in the proposal and the counterproposal. Again, I find that each
wanted the other to break the deadlock and to make the next step. They were each
playing a cat-and-mouse game. I find that Demanes, at one point in the discussion,
did state that they could sit there all day and discuss the matter and not get anywhere.
I also believe, and I find, that Gauwitz once again reminded Demanes of the books
and once again I find that Demanes was adamant in stating that he would only permit
the Union to check the Swan Lake books. However, even with regard to that, I do
not find that Demanes offered then and there to bring the books out and show them
to Gauwitz, nor did Gauwitz seek to have Demanes show him the books then
and there.
Pertinent to the issue of whether or not the Respondent made a proper attempt to
furnish the Union with financial information, are the facts with regard to the inter-
change of employees between the three cemeteries, Swan Lake, Glendale, and Hill-
crest. In this respect, Thomas J. Vaughn, an employee of Swan Lake, credibly
testified that he had worked at both Glendale and Hillcrest cemteries during the pe-
riod of time that he worked for the Respondent. He worked at Glendale only
about three times in the 21/2 years before the strike at which time he dug holes and
laid sod. However, he worked at Hillcrest nearer to 100 times than to 10 and at
Hillcrest his work consisted mostly of servicing funerals. Moreover, when he worked
at Hillcrest he was supervised by Neal just as he was at the Swan Lake Cemetery.
Beebout's testimony substantiated Vaughn's in this respect, and I credit both of them.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus it is clear that there was a certain amount of interchange between the three
cemeteries above named. However, the extent of this interchange was limited to
approximately once or twice a month to service funerals, according to Vaughn's
admission on cross-examination which I accept, and about two or three times over a
period of 21h years for the purpose of assisting with laying sod. It should also be
noted in connection therewith that vaults made at Swan Lake prior to the strike
were used at Swan Lake and also distributed to the other cemeteries.
In addition to all of the foregoing, Demanes testified without contradiction that
although there was a certain amount of interchange of the employees between the
cemeteries, there was no charge by any cemetery to any of the others for this service.
Services performed at cemeteries other than that to which the employees were nor-
mally assigned were paid for by the cemetery to which they were normally assigned
and not by the cemetery which was being assisted. Therefore, there could be no
reason why the Union would need the books of Hillcrest or Glendale in assessing
whether the Respondent was losing money at Swan Lake, the employees of which
comprised the unit herein found appropriate. I accept Demanes' testimony.
With regard to the remaining allegation of refusal to bargain contained in the
complaint, it was freely admitted by the Respondent and by Demanes on the witness
stand that during the strike the operation of vault manufacturing was moved from
Swan Lake to Glendale Cemetery. Demanes testified that this was necessary be-
cause by reason of the strike there was insufficient labor to perform the vault making
processes at Swan Lake.
This testimony was confirmed by the testimony of Eugene R. Mabee, an employee
of the Respondent and who before the strike worked at Glendale, but during the
strike was working at Swan Lake.12 Mabee testified there are still some vault manu-
facturing forms left at Swan Lake and stated, moreover, that the people at Swan
Lake were too busy to be working on the manufacture of vaults during the strike.
He also testified that another reason why the vaults were not being made at Swan
Lake and are now being put together at Glendale is because they have people at
Glendale who know how to make vaults while there is no one at Swan Lake who
knows how to do this work.
In addition to all of the foregoing, Demanes testified without contradiction, and
I credit him, to the effect that there is still ample room at Swan Lake to manufac-
ture vaults even though the machinery maintenance department had been moved
from Glendale into Swan Lake. He further testified that as soon as things are
normal and operations are continued as they were before the strike, vaultmaking will
be resumed at Swan Lake and no individual's job will be affected by the temporary
transfer due to the strike. Demanes further testified that it is more economical to
manufacture vaults at Swan Lake than at Glendale because of the cost of transport-
ing these heavy concrete vaults from a distant place to Swan Lake, the biggest and
busiest cemetery. Accordingly, he stated the move was only temporary and made
only for the purpose of enabling the Respondent to continue its operations while its
regular employees were on strike.
Also pertinent to the issue of bargaining is the subject of "contracting out" re-
ferred to above. In April 1964, some time after the Union's demand for recognition,
Nelson Miller, a real-estate broker, received a telephone call from Roy Hull, the
Respondent's general counsel. Hull wanted to know the name of a man who had
once taken care of a little cemetery in the area. Miller gave Hull that information
and asked the latter why he wanted the information. Hull stated that at Swan Lake
Cemetery the Respondent wanted to contract out the maintenance to private contrac-
tors in place of hiring their own men. When Miller asked Hull why they wanted
to do this, Hull said that they "did not like Hoffa's union." Then Miller asked Hull
whether Miller could do the work and Hull answered that he would have to speak
to Demanes.13
Both Hull and Demanes testified that contracting out was not a sudden decision
made by the Respondent after the demand of the Union, but, rather, had been a
subject of discussion among the Respondent's directors for sometime. Demanes
testified that contracting out the work of maintaining the cemeteries had been on his
13 Although Mabee is a machinery maintenance specialist and does not perform the same
work as the other employees in the unit , he is sufficiently acquainted with what occurred
at Swan Lake after the strike began to render his testimony credible Moreover, as I
observed Mabee, I was struck with his unusual sincerity.
13 From the credited testimony of Nelson Miller Miller testified in a direct and straight-
forward manner and his appearance on the stand was one of reliability . On the other
hand I have heretofore stated that Hull demonstrated unreliability in recall I therefore
credit Miller's version.
MEMORIAL CONSULTANTS, INC. 13
mind for a number of years for the reason that the Respondent was not physically
set up for cemetery maintenance and had only taken on that assignment in connec-
tion with the Company's main function of cemetery plot sales. There was no one,
according to Demanes, in the Respondent's organization who was capable of han-
dling this particular phase of cemetery work. Demanes stated that for a number of
years the Respondent had been seeking a group or an individual to take over this
work and had, in fact, advertised in trade journals for relief in this respect. Accord-
ing to Hull, the Respondent's board of directors had drawn up a resolution as early
as January 1964 in which the officers were instructed to actively seek a means of
ridding the Company of the maintenance end of the business.
This portion of the testimony of Demanes and Hull was uncontroverted and I
credit it.
4. Conclusions as to the alleged refusal to bargain
The question of whether the Respondent has denied the Union access to informa-
tion regarding the financial condition of the Swan Lake corporation has a direct
bearing upon the overall issue of whether the Respondent bargained in bad faith with
no intention of reaching agreement with the Union. Therefore it is necessary to
first dispose of the information issue.
The Board, in determining whether the obligation of good-faith bargaining with
a union has been met by an employer who claims he cannot afford to pay high wages,
has a right to consider the employer's refusal to give information about his financial
status.14 The Respondent does not take issue with this and does not contend that
it was not obligated to furnish financial data but contends, rather, that it has satis-
fied this obligation to the extent that the Union has permitted it to do so. I find merit
in the Respondent's contention.
On May 12, at the first negotiating meeting between the parties, Demanes stated
that the Respondent could not afford to raise wages or increase fringe benefits be-
cause Swan Lake was being operated at a deficit. By letter of May 21, Gauwitz
asked for proof of this by demanding the right to examine the books and records
of Swan Lake.
As noted above, at the meeting of May 23, Gauwitz, after Demanes again told of
the hardship he was having at Swan Lake, repeated his written request to examine
the Swan Lake books but also added that the Union wanted to inspect the books of
Glendale and Hillcrest. Demanes answered that he was not going to turn over his
books to Gauwitz or to anyone else; that any information the Union might need
would be prepared by Respondent's auditors.
Following the discussion at the meeting of May 23, on May 25 the Respondent
answered the Union's request in a letter to Gauwitz signed by Demanes, in which
Demanes informed the Union that he had spoken to Respondent's auditors and re-
quested the latter to prepare a recapitulation of the last 5 years of the operations of
Swan Lake, stating that it might be 10 days before this could be done. On the same
day, the Union, by telegram, rejected the proposed recapitulation and asserted once
again its demand that union appointed auditors examine the Swan Lake books.
Evidently, the following morning, Demanes and Gauwitz had a telephone conversa-
tion because, on the afternoon of May 21, Demanes wrote Gauwitz a letter in which
he assured the latter that in accordance with the telephone conversation of that morn-
ing he wanted to assure the Union that any records pertinent to reaching an amicable
understanding with regard to negotiations on a contract employees at Swan Lake
Memorial Gardens would be made available to the Union. He went on to remind
Gauwitz that the records he was asking for were not readily available in the form
that Demanes believed the Union wanted.
In the same letter Demanes stated, however, that it was the opinion of Demanes
and the opinion of Respondent's attorney that it would be unreasonable for the
Union to ask for any other records. Then he added that, as he indicated in his
letter the day before, it would require some time for the Respondent's auditors to
isolate the information the Union wanted.
At the meeting of July 27 Gauwitz reminded Demanes once again that the Union
wanted to see the books of the three cemeteries. However, the meeting lasted only
about 20 minutes and very little was actually said concerning the books. The next
meeting held on August 11 at Demanes' office brought about a further demand by
Gauwitz with regard to the books of the three cemeteries. Demanes stated that
the books and papers were there, that is at Demanes' office, but the Union would
have to "pinpoint what you want concerning Swan Lake."
Demanes said nothing about the books of the other cemeteries.
14 N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149.
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is clear from the foregoing that although Demanes at first refused to have the
Union look at the books and records of Swan Lake , that nevertheless , in Demanes'
letter to Gauwitz on May 26, Demanes did say that the books of Swan Lake
Memorial Gardens would be made available to the Union. It is also clear that at
no time did the Respondent offer to show to the Union the books of Hillcrest or
Glendale cemeteries. It is equally without doubt, and Gauwitz admitted, that he
never sent anybody down to the office of the Respondent to look at the books of
the Swan Lake Cemetery. He admitted that after he received the letter from the
Company assuring the Union about the availability of the books of Swan Lake
that he never made any attempt to make an appointment for himself or for any
specific auditor to look at the books. Gauwitz' only excuse for this was, "How
could I make any arrangements when the man wasn't even cooperative?"
I have carefully searched the record and conclude that there was no absolute
refusal on the part of the Respondent to permit inspection of the Swan Lake books
by the Union. As a matter of fact the Respondent was willing to go so far as to
have its auditors sit down with the Union and go over the books with them. The
Supreme Court held that the Act does not require in every case, under every cir-
cumstance, that the Union has an absolute right to examine the books of the Re-
spondent.15 However, even assuming that the Union in this case had the absolute
right to examine the books of the Respondent, I find that there was no refusal of
the Respondent to permit the Union to examine the books of Swan Lake or at least
make available to the Union records at Swan Lake which would answer whether
the Respondent was acting in good faith when it stated that it could not raise the
pay of the Swan Lake employees. Moreover, the failure to furnish the recapitula-
tion of the Swan Lake operations was due, I find, to the Union's rejection of the
Respondent's offer to furnish it. Therefore, I conclude that the Union's failure to
receive financial data pertaining to Swan Lake was due to the Union's actions and,
in part, to its inaction. The Respondent was not required to volunteer to deliver
its records to the union office. Lasko Metal Products, Inc., 148 NLRB 976.
There remains for disposition the issue of whether the Respondent was wrong
in refusing to permit the Union to examine the books of Glendale and Hillcrest
cemeteries under all of the circumstances in this case. As noted above, there was
some interexchange of employees between the three cemeteries. This interchange
was not on any regular basis but occurred sporadically when the pressure of funerals
made it necessary to exchange employees from one cemetery to another. However,
there was nothing in the record to refute the statement by Demanes, whom I credit
in this respect, to the effect that the work performed by the Swan Lake employees
at the other cemeteries was not charged to the borrowing cemeteries but was charged
to Swan Lake. Accordingly, I can find no compelling reason on the basis of the
record before me to conclude that observation and inspection of the books and
records of Glendale and Hillcrest cemeteries were necessary for the Union either to
prepare itself for negotiations with regard to reaching a collective -bargaining agree-
ment or to show to the Union whether the Respondent could or could not afford to
raise the wages of the employees at Swan Lake Cemetery.
Accordingly , therefore , I shall dismiss that portion of the complaint which alleges
that the Respondent refused to give information to the Union and thereby violated
Section 8 (a) (1) and (5) of the Act.
I come now to the complaint allegation that the Respondent failed to bargain in
good faith with the intention of entering into a collective -bargaining agreement with
the Union as alleged in the complaint . As noted above, before the first meeting,
but after recognition , the Union mailed to Respondent 's counsel a copy of its pro-
posal in the form of a collective -bargaining agreement . This contract was discussed
at length at the May 12 meeting and the parties went over it item by item. At the
end of the meeting, it was quite apparent that the parties differed with regard to three
items, namely, wages , union security , and the assignee clause. At the end of the
meeting the Respondent's representatives promised to submit to the Union a Re-
spondent's counterproposal . Within 3 days such counterproposal was furnished to
the Respondent , but the counterproposal substituted a clause permitting subcontract-
ing in place of the assignee clause, omitted union security , and left a blank where
the wage rates appeared in the Union's proposal. In all other respects, however,
the Respondent's counterproposal was a complete contract and was almost com-
pletely similar, except for the differences hereinbefore noted, to the Union's proposal.
As set forth heretofore, the Union regarded the counterproposal as inadequate. At
the meeting of May 23 attended by Murray and Gauwitz for the Union, Murray
15 See N.L.R.B. v. Truitt Mfg. Co., supra.
MEMORIAL CONSULTANTS, INC. 15
stated emphatically that the Union would never sign a contract without the union-
security clause and a wage-raise provision. For the remaining two bargaining ses-
sions and throughout the entire course of bargaining each party remained adamant.
Neither the Union nor the respondent came forth with any compromise suggestions
or any proposals to modify their stands. Both Demanes and Gauwitz, in testifying,
maintained that their positions remained fluid with regard to wages. Demanes
stated, and I accept his statement, that the reason that the Respondent's counter-
proposal was left blank insofar as wages were concerned was because he was willing
to work in some new direction provided the Union made some adjustments in its
original proposal. This the Union refused to do and the Respondent maintained
its position that it could not give an increase in wages or additional fringe benefits.
Thus, it would seem that from the course of bargaining alone that an impasse was
reached early in the game. Admittedly, the Respondent here engaged in a course
of "hard bargaining" and the Union was disappointed when the Respondent failed
to make concessions. However, the Union itself failed to make any concessions for
which it could reasonably expect to receive a quid pro quo from the Respondent.
The Supreme Court has held that the Board may not "either directly or indirectly,
compel concessions or otherwise sit in judgment upon the terms of collective-
bargaining agreements." 16 While the case at hand presents a somewhat unusual
situation in that an impasse was reached so early in the course of bargaining, never-
theless it cannot be said that so far as the course of bargaining alone is concerned
that the Respondent failed in its bargaining to meet the standards required by the
Act or by the Board and Court decisions. It should be noted that Respondent was
willing to meet with the Union at all times upon the Union's request. It should be
further noted that the Respondent was willing at all of the bargaining meetings to
discuss the matters concerning which the parties could not agree. Nor does the
bargaining history here constitute one in which the employer at the outset presented
its only offer on a take-it-or-leave-it basis which the Board has held to be indicative
of a closed mind and a refusal to sit down to bargain with the purpose of coming to
an agreement.17
Nor, after careful examination of the record and consideration of the other un-
fair labor practices which I have found heretofore to have been committed by the
Respondent, can I conclude that the Respondent violated the good-faith bargaining
principles established by the Act and the decisions. In evaluating the course of
negotiations I have considered the fact that the Respondent coerced its employees
prior to recognition of the Union and stated that it would not bargain with the
Union. I have also considered the statement of Hull to Miller to the effect that the
Respondent desired to contract out the cemetery care work because the Respond-
ent did not like "Hoffa's union." However, I have further considered that despite
the unlawful interrogation and the coercion and its threat not to deal with the Union
the Respondent, nevertheless, recognized the Union. Moreover, I have taken into
consideration the fact that the Respondent did not engage in further coercive activity
after it recognized and offered to bargain with the Union. Moreover, I do not con-
sider Hull's expression of dislike for the Union sufficient reason to find that the
Respondent did not intend to bargain in good faith with the Union.
Accordingly I find that the Respondent bargained in good faith with the Union
and shall recommend dismissal of the allegation of the coi.tplaint which alleges that
Respondent's course of conduct in bargaining with the Union was such as to indicate
an intention of not reaching an agreement.
The General Counsel contends, and the complaint alleges, that the transferring of
the vault manufacturing from Swan Lake to the other cemeteries, for the most part
to Glendale, constituted a unilateral change in working conditions for which the Re-
spondent should have bargained with the Union as the majority representative of
the Respondent's Swan Lake employees. I do not agree.
Mabee credibly testified and supported the testimony of Demanes to the effect
that after the strike began there were insufficient employees at Swan Lake to perform
the vault making operations. Moreover, Demanes testified, without contradiction,
again supported by Mabee, that only part of the vaultmaking machinery was re-
moved from Swan Lake. In addition, Demanes testified that the measure was merely
temporary and would not effect the work to be done at Swan Lake in the future
when an adequate supply of labor would be present to perform the vault-making
operations as was the case before the strike began. Accordingly, I find inapposite
the Lases cited by the General Counsel holding that even during a strike an employer
11 N L R.B. v American National Insurance Co., 343 U.S. 395, 404.
17 Cf General Electric Company, 150 NLRB 192.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is obligated to give notice and an opportunity to a bargaining representative to bar-
gain about changes in working conditions . In each of the cases cited by the Gen-
eral Counsel the changes were of a permanent nature.18
Accordingly, I find that in removing the vault-making operations from Swan Lake
and without notifying or bargaining with the Union, the Respondent did not violate
the Act, and I shall order dismissed the allegation of the complaint that alleges
such violation.
5. Conclusions as to the status of the strikers
As heretofore set forth at length, Gauwitz testified that on May 17, after the
submission of the Respondent's counterproposal, Gauwitz had a meeting with Beebout,
Vaughn, and Couch at which they studied the counterproposal article by article.
Gauwitz explained each paragraph to the men. The men felt that the elimination
of the assignee clause was an elimination of their jobs and, moreover, there was no
proposal for a wage increase of any kind . Nor did the counterproposal contain
any offer of fringe benefits beyond that which they had previously enjoyed. There-
after, according to Gauwitz, the men took a secret ballot and it was voted to reject
the counterproposal unanimously. They further unanimously voted to go on strike.
Couch testified that the reason the men went on strike was that demands were not
being met sufficiently in his mind and in the minds of the other men . He did not
mention either the interrogation or the coercion to which the men had been sub-
jected at the Saturday morning meeting in Demanes' office. Neither did he men-
tion in his testimony that the strike was caused by the refusal to hire Voges or
retain Calvert.
Beebout testified in almost the same vein . Furthermore , he stated that Gauwitz
did not show the men any written proposals but merely stated that he did not like
the way negotiations were going . Gauwitz asked the men if they wanted to go on
strike and three of them said that they wanted to. Beebout admitted that the em-
ployees struck not because of any threats or interrogation but because there was no
increase in wages and no job guarantee . Neither did he mention , in his testimony
the refusal to hire Voges or the layoff of Calvert On the other hand, Gauwitz was
the only one who made mention of these matters . Accordingly, I do not credit
Gauwitz' testimony as to what occurred, but, rather , accept the versions of Beebout
and Couch whom I have previously credited.
Moreover, I have already found that the refusal to hire Voges and the layoff
of Calvert were not discriminatory. Accordingly, I conclude and find that the strike
commenced on April 18 , 1964, was caused solely by the dissatisfaction of the em-
ployees with the terms of the Respondent 's counterproposal and was therefore eco-
nomic in nature . Additionally , inasmuch as I have found that the Respondent did
not violate Section 8 (a) (5) and did not refuse to bargain with the Union , the strike
was not prolonged by any unfair labor practices of the Respondent.
Accordingly , therefore , I find that the strikers were economic strikers and not un-
fair labor practice strikers as alleged in the complaint and contended by the Gen-
eral Counsel.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The operations of the Respondent , described in section I, above, occurring in con-
nection with the unfair labor practices described in section IV, above, have a close,
intimate and substantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices , it is rec-
ommended that it cease and desist therefrom and take certain affirmative action as pro-
vided in the Recommended Order set forth below which is found necessary to remedy
the unfair labor practices and to effectuate the policies of the Act.
Having found that Respondent violated Section 8 (a)( I) of the Act by coercively
interrogating its employees concerning their union activities , sympathies , and desires,
by threatening its employees with reprisals because of their union activities, and by
telling its employees that it would not bargain with the Union , it is recommended
that the Respondent shall cease and desist therefrom . It is further recommended
that the Respondent shall post a notice to its employees stating that it will cease and
desist therefrom.
19 See Hawaii Meat Company, Limited, 139 NLRB 996; Robert S. Abbott Publishing
Company, 139 NLRB 1328.
MEMORTAL CONSULTANTS, INC. 17
CONCLUSIONS OF LAW
1. Memorial Consultants, Inc., is an employer engaged in commerce within the
meaning of the Act.
2. Teamsters, Chauffeurs and Helpers Local No. 627, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, is a labor organization within the meaning of the Act.
3. By coercively interrogating its employees concerning the union activities, sym-
pathies, and desires, by threatening its employees with reprisals because of their union
activities, and by telling -,its employees that it would not bargain with the Union,
Respondent has engaged in unfair labor practices in violation of Section 8 (a) (1) of
the Act.
4. The Respondent did not discriminatorily lay off employee Raymond Calvert or
refuse to hire Lloyd H. Voges in violation of Section 8 (a) (3) of the Act.
5. The Respondent did not refuse unlawfully to furnish information regarding the
Respondent's financial status in violation of Section 8(a)(5) and (1) of the Act.
6. The Respondent did not fail and refuse to bargain in good faith with the Union
as the exclusive bargaining representative of its employees employed at Swan Lake
Memorial Gardens, Peoria, Illinois, within the meaning of Section 8 (a) (5) and (1)
of the Act.
7. By failing to notify and bargain with the Union with regard to the removal of
the vault-manufacturing operations from Swan Lake the Respondent did not violate
Section 8(a) (5) and (1) of the Act.
8. The employees who engaged in the strike commencing April 18, 1964, were
economic strikers.
9. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the entire findings and conclusions, and upon the entire record
in this case, it is recommended that Respondent, Memorial Consultants, Inc., its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning their union activities, sym-
pathies, and desires, threatening its employees with reprisals because of a union
activity, and telling its employees it will not bargain with the Union in violation of
Section 8(a)(1) of the Act.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of the rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action in order to effectuate the policies of
the Act:
(a) Post at its office in Peoria, Illinois, and at the Swan Lake Memorial Gardens
Cemetery in Peoria, Illinois, copies of the attached notice marked "Appendix." 19
Copies of said notice, to be furnished by the Regional Director for Region 13, shall,
after being signed by a managing representative of Respondent, be posted by the Re-
spondent and be maintained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are Customarily posted. Rea-
sonable steps shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 13, in writing, within 20 days from
the receipt of this Recommended Order, what steps the Respondent has taken to
comply herewith 20
IT IS FURTHER ORDERED that paragraphs VII, VIII, XII, XIII, XIV, XVI, and XVII
of the complaint herein be, and they hereby are, dismissed.
19 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeal , Enforcing an Order," shall be substituted for the words "a Decision
and Order"
"If this Recommended Order is adopted by the Board, this provision shall be modified
to read "Notify the Regional Director for Region 13, in writing, within 10 days from the
date of this Order, what steps Respondent has taken to comply herewith."
796-027-G6-vol 153-3
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Re.,ommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT coercively interrogate our employees concerning their union
activities, sympathies, and desires, or threaten our employees with reprisals be-
cause of their 'union activities, or threaten our employees with refusal to bar-
gain with their bargaining representative.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
any of our employees in the exercise of their rights to self-organization, to form,
join, or assist labor organizations, to bargain collectively through representatives
of their own choosing, and to engage in other concerted activities for the pur-
poses of collective bargaining or other mutual aid or protection as guaranteed by
Section 7 of the Act or refrain from any or all such activities
All of our employees are free to become or remain, or iefram from becoming or
remaining members of Teamsters, Chauffeurs and Helpers Local No. 627, affiliated
with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
MEMORIAL CONSULTANTS, 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.
Employees may communicate directly with the Board 's Regional Office, 881 U.S.
Courthouse and Federal Office Building , 219 South Dearborn Street, Chicago , Illinois,
Telephone No. 828-7572 , if they have any question concerning this notice or com-
pliance with its provisions.
Mayes Bros., Incorporated and International Chemical Workers
Union, AFL-CIO. Case No. 23-CA-19923. June 17, 1965
DECISION AND ORDER
On March 18, 1965, Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
cision. Thereafter, Respondent filed exceptions to the Decision and a
supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with this
case to a three-member panel [Chairman McCulloch and Members
Fanning and Brown].
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 Ex-
153 NLRB No. 1.