Milk, Ice Cream Drivers, Etc., Local No. 783

National Labor Relations Board - Board Decisions

Jun 4, 1964

147 N.L.R.B. 264 (N.L.R.B. 1964)

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a false reason to conceal the discriminatory motive, where there was disparity of
treatment between the discharged employee and other employees who had committed.
similar offenses,18 or where a rule, long dormant in practice, is suddenly invoked
against a union member. It is true that the flagrant abuses of the employees' rights
under the Act make the discharges strongly suspect and entitled to the closest scrutiny.
When, however, an employee engages in conduct for which any other employee
could and should have been discharged, his union membership provides no exemption.
It is recommended that the complaint insofar as it alleges Respondent violated
Section 8(a) (3) of the Act be dismissed.
IV. THE REMEDY
Having found that the Respondent has engaged in and is engaging in certain
unfair labor practices, I shall recommend that it be ordered to cease and desist
therefrom and take certain affirmative action in order to effectuate the policies of
the Act.
I shall also recommend that the election in Case No. 5-RC-4324 be set aside and
a new election directed.
Upon the basis of the foregoing findings and conclusions, and upon the entire
record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec
tion 2(6) and (7) of the Act.
2. Laundry & Dry Cleaning International Union, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. Respondent has interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed by Section 7 of the Act, thereby violating Section
8(a) (1) of the Act.
4. Respondent has not discriminated against its employees within the meaning
of. Section 8 (a) (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices within the meaning
,of Section 8 (a)( 1 ) of the Act.
[Recommended Order omitted from publication.]
1s The General Counsel attempted to show that other employees had been reinstated
-after unexcused absences. Wong's explanation, and a credible one, was that employees
often returned after an absence of weeks or months looking for employment and, if It was
available, they were given It.
Milk, Ice Cream Drivers and Dairy Employees , Local No. 783
,of International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America..and Cream Top Creamery,
Inc. Case No. 9-CB-1139. June 4, 1964
DECISION AND ORDER
On January 22, 1964, Trial Examiner James F. Foley issued his
Decision in the above-entitled case , 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 af-
firmative action, as set forth in his attached Decision. Thereafter,
the Respondent filed exceptions to the Decision together with a sup-
porting brief. The General Counsel and the Charging Party filed'
'exceptions and supporting briefs relating to the scope of the Trial
Examiner's Recommended Order.
147 NLRB No. 34.
MILK, ICE CREAM DRIVERS, ETC., LOCAL NO. 783 265::
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Members
Leedom 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 Decision
of the Trial Examiner and the entire record in this case, including the
exceptions and briefs, and hereby adopts the findings, conclusions,'
and recommendations of the Trial Examiner as modified and ampli-
fied below.
1. The Trial Examiner found, and we agree, that Respondent's
strike, which began on June 1, 1963, was unlawful because of Re-
spondent's failure to comply with the requirements of Section 8 (d)
of the Act in the respects detailed in his Decision. The record reflects,,
although the Trial Examiner made no specific finding to that effect,
that the strike was accompanied throughout its course by picketing.
The General Counsel and the Charging Party have excepted to the
Trial Examiner's failure to include in his Recommended Order a pro-
vision requiring the Respondent to cease and desist from picketing
until it has fully complied with the requirements of Section 8 (d).
We find merit in this exception and shall accordingly revise the Rec-
ommended Order to include therein a provision requiring the Re-
spondent to cease and desist from inducing to strike, by means of
picketing or otherwise, the employees of Cream Top Creamery, Inc.,
within the unit covered by Respondent's contract, for the purpose of
modifying or terminating such contract without first complying with
Section 8 (d) of the Act 2
2. The Trial Examined properly found that the notices which the
Respondent had filed with the Federal and State mediation agencies
on August 8, 1963, failed to satisfy the requirements of Section
8(d) (3) since they were filed more than 2 months after the inception
1 we agree with the Trial Examiner that the sections of chapter 336 of the Kentucky
Revised Statutes which he has summarized in his Decision establish that there is in-
existence a State mediation . and conciliation agency to which notices of termination or
modification of a contract must be given under Section 8(d) (3) of our Act. The proviso
to section 336.150 of the Kentucky statutes that the authority of the State agency shall
not be applied when the authority of a Federal agency has been invoked or when the
Federal agency has assumed jurisdiction does not nullify the requirement of Section
8(d) (3) that the State agency be notified of the existence of a potential labor dispute,
even though the only effect of such notification may be to have the State agency defer to
the Federal agency.
Q Broward County Carpenters ' District Council and Local Unions Nos. 1394, 1947, 3206,
and 1766, United Brotherhood of Carpenters and Joiners of America , AFL-CIO ( Broward'
Builders' Exchange , Inc.), 122 NLRB 1008. It is possible that the Union may have
picketed at certain locations for purposes other than inducing employees within its unit
to strike. However , as noted above , our Order is limited to such picketing as induces`
employees who are members of Respondent 's unit to strike for the purpose of modifying or
terminating Respondent 's contract with the Company.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the strike. The General Counsel has excepted to the Trial Exam-
iner's failure specifically to find that new notices pursuant to Section
8(d) (3) must be given to the State and Federal mediation agencies
by the Respondent before it may renew its strike. Although we be-
lieve that a finding to that effect is implicit from the Trial Examiner's
other findings, we shall, in any event, make it here.
3. * The Trial Examiner found that the only issue in the bargaining
negotiations between the Respondent and the Charging Party after
March 31, 1963, was over the Respondent's demand that the pension
plan be modified despite the provision that neither party could seek
such modification before April 1965. He also found that Respondent's
strike in support of that demand was violative of Section 8(d) (4).3
The Charging Party has excepted to the Trial Examiner's failure to
order the Respondent to comply specifically with Section 8(d) (4) by
refraining from striking for the purpose of modifying article 34, the
pension plan provision of the agreement, and to continue to honor
article 34 until March 31, 1965. However, as the Trial Examiner
found, and as we agree, the Respondent's strike over the refusal of
the Charging Party to modify the pension plan was also unlawful
under Section 8(d) (3), the specific section alleged in the complaint.
As the remedy would be the same whether Respondent was refusing
to bargain in violation of Section 8(d) (3) or (4), we find it unneces-
sary to order the Respondent to cease and desist from.striking in
violation of any particular subsection of Section 8 (d).
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the. Board hereby orders that the Respondent, Milk, Ice
Cream Drivers and Dairy Employees, Local No. 783 of International
Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers
of. America, its officers, agents, representatives, successors, and as-
signs, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Cream Top Creamery,
Inc., concerning the termination or modification of the Respondent's
agreement with. said Company by failing in compliance with Section
8(d) (3) of the Act to notify, before striking, the Kentucky Depart-
ment of Labor or any other appropriate State agency and the Federal
Mediation and Conciliation Service, of the existence of a dispute,
within 30 days after service of written notice upon Cream Top Cream-
ery, Inc., as required by, Section 8(d) (1), of proposed termination or
modification of any existing collective-bargaining contract; provided
'Although not specifically alleged in the complaint , the Section 8(d) (4)' issue was fully
litigated at the hearing.
MILK, ICE CREAM DRIVERS, ETC., LOCAL NO. 7 3 3 267
however, that no such notices under Section 8 (d) (3) shall be required
if an agreement is reached within 30 days following service of a notice
of proposed termination or modification.
(b) Engaging in, or inducing by means of instructions, picketing
or otherwise, the employees of Cream Top Creamery, Inc., in the unit
covered by Respondent's contract to engage in, a strike against said
Company for the purpose of modifying or terminating a collective-
bargaining contract, without first having complied with the require-
ments of Section 8 (d) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at the business offices of Milk, Ice Cream Drivers and
Dairy Employees, Local No. 783 of International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of America, copies
of the attached notice marked "Appendix." 4 Copies of said notice, to
be furnished by the Regional Director for the Ninth Region, shall,
after, being duly signed by official representatives of Respondent, be
posted by Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members of Respondent are cus-
tomarily posted. Reasonable steps shall be taken by Respondent to
insure that said notice is not altered, defaced, or covered by any-other
material.
(b) Furnish to the Regional Director duly signed copies of the at-
tached notice for posting by Cream Top Creamery, Inc., if willing, for
60 consecutive days, at places where notices to its employees are cus-
tomarily posted.
(c) Notify the- Regional Director for the Ninth Region, in writing,
within 10 days from the date of this Order, what steps the Respondent
has taken to comply herewith.
'In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO MEMBERS AND ALL EMPLOYEES OF
CREAM Top CREAMERY, INC.
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby give notice that :
WE WILL NOT refuse to bargain collectively with Cream Top
Creamery, Inc., by failing to notify, before striking, the Federal
Mediation and Conciliation Service and the appropriate State
agency of the existence of a dispute within the meaning of Section
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(d) (3) of the Act, within 30 days after service of written notice
upon Cream Top Creamery, Inc., pursuant to Section 8(d) (1)
of the Act, of proposed termination or modification of an existing
collective-bargaining contract; provided, however, that no such
notice under Section 8(d) (3) shall be required if an agreement is
reached within 30 days following service of a notice of proposed
termination or modification.
WE WILL NOT engage in, or induce by means of instructions,
picketing or otherwise, the employees of Cream Top Creamery,
Inc., in the unit described in our contract to engage in, a strike
against said Company for the purpose of modifying or terminat-
ing a collective-bargaining contract, without first having complied
with the requirements of Section 8 (d) of the Act.
MILK, ICE CREAM DRIVERS AND DAIRY EMPLOYEES,
LOCAL No. 783 of INTERNATIONAL BROTHERHOOD
OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND
HELPERS OF AMERICA,
Labor Organization.
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 and union members may communicate directly with the
Board's Regional Office, Room 2023, Federal Office Building, 550
Main Street, Cincinnati, Ohio, Telephone No. 381-2200, if they have.
any question concerning this notice or compliance with its provisions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case, Case No. 9-CB-1139, was brought under Section 10(b) of the National
Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519), herein called the Act,
on a charge filed July 17, 1963, and amendments filed July 31 and August 16, 1963,
against Milk, Ice Cream Drivers and Dairy Employees, Local No. 783 of Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, herein called Respondent, by Cream Top Creamery, Inc., herein called
Company. On August 23, 1963, General Counsel issued a complaint against Re-
spondent. Respondent is charged with violating Section 8(b)(3) of the Act for
failing to give until August 8, 1963, the notice Section 8 (d) (3) of the Act requires
be given to the Federal Mediation and Conciliation Service and the Department
of Labor, Commonwealth of Kentucky, or its commissioner, within the 30 days
following its 60-day notice of January 30, 1963, to the Company that it wished to
terminate or modify the collective-bargaining contract between them, and for en-
gaging in a strike beginning June 1, 1963. Respondent, by answer filed September 3,
1963, denied the violation. It alleged the affirmative defenses that (1) the Com-
pany waived the sending of the notice required by Section 8(d) (3) of the Act, and
was estopped from assenting Respondent's failure to give it; (2) a technical violation
for failure to give the statutory notice is without a remedy since Respondent and
Company bargained for a period of 2 months following March 31, 1963, before
Respondent engaged in the strike beginning June 1 , 1963; and ( 3), neither the Ken-
MILK, ICE CREAM DRIVERS, ETC., LOCAL NO. 783 269
tucky Department of Labor nor the Federal Mediation and Conciliation Service held
any meetings between the parties following the giving of the notice on August 8,
1963. By amendment to the answer at the hearing on September 30, 1963, Respond..
ent also alleged that it was the Company, and not it, which was required to give the
notice as the strike was caused by the Company's proposals and not those of Respond-
ent, and, in any event, notice to the Kentucky Department of Labor was not required
.as this agency was not an active and functioning mediation and conciliation service
within the meaning of Section 8(d) of the Act.
On September 30, 1963, a hearing was held before Trial Examiner James F. Foley
in Louisville, Kentucky,. on the complaint and amended answer. General Counsel,
Respondent and Company, as the Charging Party, were represented at the hearing.
The parties were afforded an opportunity to be heard, make oral argument, and file
briefs. Respondent and Company filed briefs after the close of the hearing.
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY
The Company, a Kentucky corporation with office and principal place of business
in Louisville, Kentucky, is engaged in the processing of milk products and related
products such as chocolate milk, orange drink, ice cream, etc., and their sale and
distribution at wholesale and retail levels. During the 11-month period ending
August 31, 1963, the Company purchased materials, supplies, and equipment di-
rectly from outside the State of Kentucky that had a value in excess of $43,000, and
indirectly from outside the State of Kentucky that had a value in excess of $76,000.
The Company's total sales at wholesale and retail for the year ending September 30,
1963, including an estimated figure for September, have a value of approximately
$900,000. The strike, starting June 1, 1963, and in effect at the time of the hearing,
,caused a reduction in the dollar value of sales of approximately $100,000. I find
that the Company is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act and that assertion of jurisdiction will effectuate the purposes of the
Act.
U. THE LABOR ORGANIZATION INVOLVED
Respondent is a labor organization within the meaning of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. The evidence 1
Respondent is the collective-bargaining representative of a unit of 23 to 24 em-
ployees employed by the Company consisting of retail and wholesale milk drivers,
ice cream drivers, and plant employees, excluding office clerical employees, guards,
and supervisors. On April 1, 1960, the Respondent entered into a collective-
bargaining contract with the Company herein called the contract.2 The last article,
article 36 of the contract, is as follows:
This contract shall be effective from and after the date hereof and shall con-
tinue through March 31, 1963, and shall continue from year to year thereafter,
ending on March 31, of each year thereafter, but subject to the right of any
party hereto to terminate same as of April 1, of any year following the year
1962, by giving not less than 60 days written notice of its intention to do so.
Article 34 of the contract provides for welfare and pension funds. Section 6 of
article 34 provides as follows:
Notwithstanding that this contract and the contracts which may follow it may
be terminated prior to April 1965, it is agreed that until April 1965, that
1 Findings of fact are premised on stipulations, documentary evidence, and the testi-
mony of Martin Willinger, secretary-treasurer of the Company. He testified for the Gen-
eral Counsel and the Respondent. Paul Schweitzer, a business representative of Respond-
ent, was the only other witness. The latter's testimony has to do only with the extent
to which he dealt with the Kentucky Department of Labor in negotiating collective-
bargaining contracts.
z Eight other dairy companies were joint negotiators with the Company. However,
each company signed a separate contract with Respondent . It is undisputed that the
Company had appropriately withdrawn from the joint negotiating group prior to any
conduct in issue in this proceeding.
270 DECISIONS ^ OF NATIONAL LABOR RELATIONS, BOARD
neither the Union nor any of its representatives nor any employee covered by
this agreement shall make any requests that the amount which each Employer
is required by Section 3 of this Article to pay to said Pension Fund be changed
and during said period the Employers shall not have any obligation to negotiate
or bargain with the Union with respect to such change .3
On or about January 30, 1963, the Respondent notified the Company of its desire
to terminate the contract. It did not notify the Federal mediation service or the
Kentucky Department of Labor of its desire to terminate the contract with the Com-
pany within 30 days after the notice to the Company. It gave this notice to both on
August 8, 1963. In the first week of April 1963, the Respondent and the Company
began negotiations for a new contract. Prior to meeting, the Respondent presented
proposals to the Company and the Company presented counterproposals to Re-
spondent. About April 20, the Company's counterproposals were rejected by Re-
spondent, and from then on the negotiations dealt with the Respondent's proposals.
Except for item 3 of the proposals, Respondent and the Company had reached agree-
ment before the latter engaged in a strike starting June 1, 1963.
The third item of Respondent's proposals provided for increasing the Company's
payments to the pension fund from $10, $11, and $12 monthly for 1963, 1964, and
1965, respectively, to $5 weekly for the first 2 years of a contract and $6 per week
thereafter. The Company did not include any changes in the pension fund pay-
ments in its counterproposals. Its position was that changes in the pension fund
payments were not a subject for negotiation until April 1965. However, in response
to many threats by Respondent prior to June 1, 1963, of a strike starting June 1,
if it did not agree to the proposal for the increase in pension fund payments, the
Company did offer to make some increase in the payments.4 Respondent turned
down such an offer. It indicated it had no objection to the Company calling a meet-
ing of its employees and apprising them of the increase it was willing to make.
Company representatives met with the employees, and informed them of the increase.
The employees informed the Company through Respondent's Senior Business Repre-
sentative Howard Hanes that they rejected the offer. Respondent struck on June 1,
1963, in support of its demands for the above-stated increases in the monthly pension
payments being made by the Company. The strike has been continued since June 1.
It was in effect on September 30, 1963, the date of the hearing.a
On August 8, 1963, Respondent, by telegram, notified the Federal Mediation and
Conciliation Service, and Department of Labor, Commonwealth of Kentucky, that
the collective-bargaining contract between it and the Company would expire "in
the near future." Willinger, the Company's secretary-treasurer, met with a repre-
sentative of the Federal Mediation and Conciliation Service on at least two occasions
following the notice given to it by Respondent. He also had several telephone
conversations with one of its representatives.6 On September 3, 1963, Commissioner
Carl Cabe of the Kentucky Department of Labor addressed a letter to the Company
in which he informed it of the notice the department had received from Respondent.
He also included in his letter the paragraph that "This is a routine notice as required
by law which' enables this Department to contact the Company and the Union,
advising them that this Department is at your disposal to assist you in any manner
possible." On receipt of the letter on September 5, by the Company, Willinger
telephoned Commissioner Cabe. They briefly discussed the dispute. Willinger
informed Cabe that a strike had been in progress since June 1, 1963, and stated to
him that nothing could be gained at that point by an attempt by him to mediate the
dispute. Commissioner Cabe agreed with Willinger. Cabe stated to Willinger that
the Company could file an unfair labor practice charge with the Board. There is
no evidence that either the Federal Mediation and Conciliation Service or the
Kentucky Department of Labor arranged to have representatives of Respondent
and the Company meet with its representatives to explore the possibilities of settling
the dispute.
3In section 3 of article 34 of the contract there is set out the payments to he made by
the Company to the pension fund for each employee for each month of a calendar year
beginning with April 1958. The monthly payment for 1958 was $5. Section 3 provides
an increase of $1 per month for' each calendar year beginning with 1959. The monthly
payment for 1903 is $10 and for 1904 and 1965, $11 and $12, respectively.
A The other eight dairy companies which previously had jointly negotiated with Re-
spondent had agreed to the changes in the pension fund payments demanded by Respondent.
5 Between March 31 and June 1, 1963, the day the strike was begun, the provisions of
the contract remained in effect.
U The record does not show what was discussed at the meetings or in the telephone
conversations.
MILK, ICE CREAM DRIVERS, ETC., LOCAL NO. 783 271'
Section 336.140 of chapter 336 of Kentucky Revised Statutes,' with the heading
"Commissioner to investigate and mediate labor disputes," empowers the commis-
sioner to inquire into the causes of strikes, lockouts, and other disputes between
employers and employees, to endeavor to effect an amicable settlement, and to
create within the department boards to which disputes between employers and
employees may be submitted on the request of the employer and employees for
mediation. Section 336.150 of chapter 336 provides that the commissioner may act
as conciliator and mediator and appoint conciliators. and mediators in labor disputes
whenever his intervention is requested by either party, and he may offer his services
as conciliator and mediator if any emergency by reason of a labor dispute is found
to exist at any time. Whenever his services as conciliator and mediator are accepted
by both parties to a labor dispute, he is required promptly to investigate and
undertake to conciliate and mediate the dispute without delay. There is a proviso
that the authority in section 336.150 shall not apply where the authority of a
Federal agency has been invoked or a Federal agency assumes jurisdiction. More-
over if the commissioner has assumed jurisdiction, and a Federal agency thereafter
assumes jurisdiction, the authority of the commissioner shall cease pending Federal
jurisdiction.
Paul Schweitzer, business representative of Respondent for 12 years and witness
for Respondent, testified that he negotiated contracts for Respondent, but at no
time during any of the negotiations did the Commonwealth of Kentucky furnish
a conciliator or mediator. He also testified that Respondent's Senior Business Repre-
sentative Hanes sent the telegram to the Kentucky Department of Labor. He said
he did not know whether there was a reply to the telegram. He admitted a reply
could have been made. He also admitted he had never requested the Kentucky
Department of Labor or its commissioner to conciliate or mediate a dispute. His
testimony is silent as to whether he had knowledge of a request being made by
Senior Business Representative Hanes, or any other representative of a labor or-
ganization, other than Hanes' belated notice to the commissioner on August 8, 1963.
I assume from his silence in this respect that he did not have such knowledge.
B. Analysis and conclusions
Section 8(d) of the Act, among other things, states the following:
That where there is in effect a collective-bargaining contract covering
employees in an industry affecting commerce, the duty to bargain collectively
shall also mean that no party to such contract shall terminate or modify such
contract, unless the party desiring such termination or modification-
(1) serves a written notice upon the other party to the contract of
the proposed termination or modification sixty days prior to the expiration
date thereof, or in the event such contract contains no expiration date,
sixty days prior to the time it is proposed to make such termination or
modification;
(2) offers to meet and confer with the other party for the purpose of
negotiating a new contract or a contract containing the proposed
modifications;
(3) notifies the Federal Mediation and Conciliation Service within
thirty days after such notice of the existence of a dispute, and simultane-
ously therewith notifies any State or Territorial agency established to
mediate and conciliate disputes within the State or Territory where the
dispute occurred, provided no agreement has been reached by that time;
and
(4) continues in full force and effect, without resorting to strike or
lockout, all the terms and conditions of the existing contract for a period
of sixty days after such notice is given or until the expiration date of such
contract, whichever occurs later:
The evidence discloses that Respondent has engaged in a strike against the
Company since June 1, 1963. to enforce its demand for specified increases in the
monthly pension fund payments made by the Company. Respondent has not struck
the Company to enforce any demands relating to the other matters covered by the
contract. The contract, which was effective on April 1, 1960, had the earliest
expiration date of March 31, 1963, in regard to these other matters. Respondent
and the Company had reached agreement on these matters prior to the strike. It
As also clear from the evidence that Respondent did not notify the Federal Media-
tion and Conciliation Service or the Kentucky Department of Labor until August 8,
1963, of its intention to terminate the contract although it so notified the Company
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on or about January 30, 1963, and 30 days from that. date no agreement had been
reached on a new contract, or a modification of the existing contract.
It is clear from the provisions of section 6 of article 34 of the contract that April
1965 is the earliest expiration date of the contract insofar as it provides in section 3
of article 34 for monthly pension fund payments to be made by the Company.
This is so notwithstanding that article 36 of the contract states March 31, 1963, to
be the earliest termination date of the contract. Section 6 of article 34 of the con-
tract expressly provides that notwithstanding that the contract and the contracts
which may follow it may be terminated prior to April 1965, neither Respondent,
not its representatives, nor Company's employees shall request any change in the
pension fund payments until April 1965, and that the Company has no obligation
during that period to negotiate or bargain with the Respondent with respect to such
a change. The pension fund payment provision, unlike the remainder of the con-
tract, has a special termination date of April 1965. The other provisions carried
the earliest termination date of March 31, 1963.
The evidence does not disclose any agreement by the Company to waive the April
1965 expiration date for the pension fund payment provision in favor of the March 31,
1963, expiration date for the remainder of the contract. A concession by the Com-
pany to increase the pension fund payments in the face of threats of a strike on
June 1, 1963, does not constitute a voluntary agreement to waive the April 1965
earliest expiration date. So, on June 1, 1963, when the strike began, the contract
insofar as it related to pension fund payments was in effect? Nothing has inter-
vened since June 1, 1963, that constitutes a waiver by the Company of the earliest
expiration date of April 1965. Respondent, therefore, has refused to bargain in vio-
lation of Section 8(b)(3) of the Act by striking, and threatening to strike, to force
the Company to change the contract regarding the pension fund payments prior to
the earliest expiration date of April 1965. Section 8(d)(4) of the Act mandates
Respondent to continue in full force and effect, without resorting to a strike, all the
-terms and conditions of the contract until its earliest expiration date .8
Respondent also violated Section 8(b)(3) of the Act by failing to comply with
Section 8(d)(3)'s requirement of notifying the Federal Mediation and Conciliation
Service and the Kentucky Department of Labor within 30 days of the notice it gave
to the Company' on January 30, 1963, of an intention to terminate the contract, in-
cluding the provisions of article 34 relating to pension fund payments by the Com-
pany.9 The August 8, 1963, notice did not meet the requirements of Section 8(d) (3)
since Respondent was engaged at the time in a strike illegal under both Section
8(d)(3) and Section 8(d)(4). Respondent's contention that the commissioner of
the Kentucky Department of Labor is not a functioning mediator and conciliator,
and that the department is not a functioning conciliation and mediation service, is
without merit. It is obvious from the evidence (supra) that the Kentucky Depart-
ment of Labor and its commissioner are authorized by statute to conciliate and
mediate disputes, and are functioning pursuant to this statutory authorization. 10 I
find no merit in Respondent's position that the strike was caused by a counter-
proposal of the Company, and therefore, the Section 8(d)(3) notice should have
been given by the Company. The evidence discloses that Respondent struck because
the Company refused to agree to its demand for specified increases in the monthly
pension fund payments made by the Company. In any event, the notice must be
given by the party initially desiring the change 11 This was the Respondent and not
the Company.
7 As found supra, p. 270, Respondent struck only to enforce its demand for Increased
monthly pension fund payments.
8 Lion Oil Company. 109 NLRB 680, 686: N.L.R.B. v. Lion Oil Company, 352 U.S. 282
reversing and remanding 221 F. 2d 231 ( C.A. 8) ; Local 3, United Packinghouse Workers of
America, CIO (Wilson & Co., Inc.) v. N.L.R.R., 210 F. 2d 325, 331-333 (C.A. 8).
D Retail Clerks International Association , Local No . 1179, AFL, and Esther Luther,
Agent (California Association of Employers for and in behalf of J. C. Penney company),
109 NLRB 754; Local No. 156. United Packinghouse Workers of America, AFL-CIO;
District #4 Council, United Packinghouse Workers of America, AFL-CIO: and United
Packinghouse Workers of America, AFL-CIO (Du Quoin Packing Company), 117 NLRB
670; United Mine Workers of America, District 50, and United Mine Workers of America,
Local Union No. 12915 (West Virginia Pulp & Paper Co.), 118' NLRB 220. The strike is
also unlawful by reason of Respondent's failure to give timely notices as required by Sec-
tion 8(d) (3) of the Act. Fort Smith Chair Company, 143 NLRB 514.
'°Am.algamated Meatcutters and Butcher Workmen of North America, Local #576
(Kansas City Ship Steak Co., Inc.), 140 NLRB 876.
"Fort Smith Chair Company, 143 NLRB 614.
HOOD CORPORATION AND CESCO 273
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with the operations of the Company, 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.
V. THE REMEDY
Having found that Respondent refused to bargain collectively in violation of Sec-
tion 8(b) (3) of the Act by engaging in the strike it began on June 1, 1963, and order-
ing or instructing the employees of the Company to strike, and by failing to notify
the Federal Mediation and Conciliation Service and the Kentucky Department of
Labor of the existence of a dispute within the meaning of Section 8(d)(3) of the
Act within 30 days after the service of the notice on the Company that it intended
to terminate the contract, I shall order Respondent to cease and desist from violating
Section 8(b)(3) by striking, or ordering the employees of the Company to strike,
without complying with the requirements of Section 8(d), and by failing to notify
the Federal Mediation and Conciliation Service and the Kentucky Department of
Labor as required by Section 8 (d) (3).
CONCLUSIONS OF LAW
1. Cream Top Creamery, Inc., is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. Respondent Milk, Ice Cream Drivers and Dairy Employees, Local No. 783 of
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America is a labor organization within the meaning of Section 2(5) of the Act.
3. The said Company's employees employed as drivers and plant employees, ex-
cluding office clerical employees, guards, and supervisors, constitute a unit appropri-
ate for the purposes of collective bargaining within the meaning of Section 9(b) of
the Act.
4. Respondent is the exclusive representative of all the employees in the aforesaid
appropriate unit for the purposes of collective bargaining, within the meaning of
Section 9(a) of the Act.
5. Respondent has refused to bargain collectively in violation of Section 8(b)(3)
of the Act by failing to comply with Section 8(d) of the Act as found in section III
above.
6. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
Hood Corporation and Contractors ' Equipment Supply Com-
pany d/b/a Cesco and International Union of Operating En -
gineers, Local 370, AFL-CIO. Cases Nos. 1.9-CA-0675 and
19-CA-2688. Jwne 4, 1964
DECISION AND ORDER
On October 23, 1963, Trial Examiner Wallace E. Royster issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. Thereafter, the Respondent filed exceptions to the Trial
Examiner's Decision with supporting argument.
147 NLRB No. 36.
756-236-65-vol. 147-19