Montgomery Ward & Co., Inc.

National Labor Relations Board - Board Decisions

May 29, 1962

137 N.L.R.B. 418 (N.L.R.B. 1962)

418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Montgomery Ward & Co., Incorporated and International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and
Helpers of America, Local No. 961 . Case No. d7-CA-1063.
May 29, 1962
DECISION AND ORDER
On November 16, 1961, Trial Examiner Wallace E. Royster issued
his Intermediate Report in the above-entitled proceeding finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner also found that
the Respondent had not engaged in certain other alleged unfair labor
practices and recommended that the complaint be dismissed as to such
allegations. Thereafter, the Respondent filed exceptions to the Inter-
mediate Report and a brief in support thereof.
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 entire
record in this case, including the Intermediate Report, the exceptions
and the brief, and for the reasons set forth below has decided to dis-
miss the complaint in its entirety.'
The record shows that on January 4, 1961, the Charging Party,
herein referred to as the Union, was certified as the collective-bargain-
ing representative for a unit of truckdrivers at the Respondent's Den-
ver mail-order house. Thereafter, the Union and the Respondent
commenced bargaining negotiations. The Union proposed that the
Respondent agree to the Union's standard Central States Area Over-
the-Road Motor Freight Agreement which the Union had negotiated
with other motor freight carriers in the area, and which was to expire
on January 31, 1964. (This agreement is herein referred to as the
Red Book agreement.) The Respondent refused to sign the Red Book
agreement. However, on April 4, 1961, the parties agreed to certain
contract provisions covering wages, union security, indemnification,
and adjustment of grievances.2 With respect to other matters dis-
1 Absent exceptions, we hereby adopt pro forma the Trial Examiner ' s recommended dis-
missal of allegations that the Respondent violated the Act by bargaining with truck-
drivers Gruhlke , Peterson , and Ferri, and by unilaterally changing their terms and condi-
tions of employment.
Step 4 of the grievance provision provides in pertinent part:
If the grievance is not satisfactorily adjusted within fifteen (15) days after
presentation under Step 3, above, and if the grievance involves the interpretation
or application of the provisions of the Agreement, the grievance then may be sub-
mitted by either the Company or the Union to an arbitiator for a final and binding
decision. . . . With respect to grievances involving the interpretation or application
of the provisions of this Agreement , the decision of the president of the Company,
137 NLRB No. 41.
MONTGOMERY WARD & CO., INCORPORATED 419
cussed, the parties agreed to be bound "for the present time" by the
applicable provisions of the earlier Central States Over-the-Road and
Local Cartage Agreements 9 which the Union had negotiated with
other motor freight carriers in the area, and which had expired on
January 31, 1961. (This earlier Central States Agreement is herein
referred to as the Blue Book agreement.) The parties' agreement to
be bound by the Blue Book was qualified by the understanding that
"the use of the expired Central States contract (Blue Book) is a guide
only and is to be used only until new provisions are bargained be-
tween us."
On April 3, the day before the parties arrived at their final contract
agreement, Respondent's representatives, contemplating the establish-
ment of two new terminals at Walsenburg and Sterling, Colorado,
queried the union representative generally as to what provisions of
their contract would be applicable if the Respondent wanted to re-
domicile or transfer certain truckdrivers out of the Denver unit.
Union President Bath thereupon advised the Respondent that there
was a bidding procedure in the Blue Book which should be followed.
Apparently Bath had reference to the following clause in the seniority
provision of the Blue Book:
SEC. 3. (a) All runs and new positions are subject to seniority
and shall be posted for bids. Posting shall be at a conspicuous
place so that all eligible employees will receive notice of the
vacancy, run or position open for bid, and such posting of bids
shall be made not more than once each calendar year, unless
mutually agreed upon. Peddle runs shall be subject to bidding
provided driver is qualified. [Emphasis supplied.]
In the middle of May 1961 Respondent's personnel manager, Per-
kins, notified Bath that the Respondent was contemplating the crea-
tion of two new terminals, one at Walsenburg and another at Sterling,
and asked him what procedure should be followed in redomiciling
drivers from the Denver unit. Bath replied that the Union had no
objection to the establishment of the new terminals, but that, in ac-
cordance with the Blue Book, the Union would require the establish-
ment of a bidding procedure, so that drivers with the most seniority
would have a choice. Bath also told Perkins to advise and discuss
with the Union any moves Respondent might desire to make.
Early in June 1961 Perkins again called Bath and asked what
could be done to resolve the problem of establishing new terminals at
or of his representative , shall be considered as final unless written notice is served
by either party on the other party within ten (10 ) days after the decision by the
president or his representative that the grievance will be presented for determination
under Step 4.
The provisions of the Local Cartage Agreement covered the local drivers in the Denver
area, and are not involved herein.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sterling and Walsenburg, and of redomiciling certain drivers out of
the Denver unit. No satisfactory solution was achieved. On June 20
Perkins once again called Bath to discuss the matter. This time,
according to Perkins, Bath stated, "Don, it is okay to go ahead with
this thing if you wish to do it, but you understand, that I retain these
drivers in the Union." 4 Perkins agreed that the redomiciled drivers
would remain members of the Local Union, and he thereafter told
Bath that the Respondent would go ahead with setting up the new
terminals. Perkins then called Charles Russ, Respondent's labor
relations counsel in Chicago, and informed him of the agreement be
had just arrived at with Bath. However, Russ told Perkins that as
the existing contract covered only the Denver unit, the Respondent
could not recognize the Union as the representative of the drivers
domiciled at the new terminals outside of Denver unless the Union
was selected in an election at either or both of the new terminals.
Russ also told Perkins that the Respondent would consent to an
election at either or both of the new terminals.
Thereafter, on June 22, Perkins notified Bath of what Russ had
told him concerning Respondent's recognition of the Union as
collective-bargaining representative of the drivers to be located at
the two new terminals. Bath protested Respondent's position as
expressed by Russ. Thereafter, on June 23, Bath, by letter to Russ,
protested "the redomicile of drivers outside of Denver, Colorado,
and using this as a subterfuge to defeat the contract. . . ." Bath
also demanded that the "redomicile be processed through the proper
grievance machinery and until such time, the runs shall be operated
as a Denver Domicile." Additionally, Bath stated that if the
Respondent did not abide by the Blue Book, the Union would "take
proper action as we deem necessary at the proper time." In reply to
Bath's letter, Russ, by letter of June 28, notified Bath that the
Respondent would recognize the Union as representative of single
drivers domiciled at places away from the Denver terminal, but that
if two or more drivers were located at the new terminals, the
Respondent would not recognize the Union unless its majority status
was established by an election. Russ also asserted that the Respond-
ent's establishment of terminals did not "have any bearing on the
collective-bargaining agreement we have with your union." (presum-
ably the Blue Book) and that the agreement covered only the "drivers
domiciled at the Denver terminal and no other location." In this
communication, Russ also took the position that "if you have a griev-
ance concerning the application of our agreement at Denver," the
Union should then proceed under the separate grievance procedure
provided for in the collective-bargaining agreement. The Union
never filed a grievance.
4 Although Bath denied that he agreed to the redomiciling of drivers outside the ^enver
unit , he did not deny that he told Perkins that the drivers must remain in the Local'Union.
MONTGOMERY WARD & CO., INCORPORATED 421
In the meantime, on June 26, Bath again wrote Russ. This time,
however, Bath requested the Respondent to execute the Red Book
agreement which, as set forth above, the Respondent had earlier re-
fused to agree to. In this letter, Bath took the position that the
Respondent was not following the pertinent Blue Book provisions,
but that if Respondent signed the Red Book agreement there would
be no question as to the procedure the parties were to follow in redom-
iciling the drivers.5 The Respondent never specifically replied to
this latter communication from the Union, but it is clear from the
record that the Respondent never agreed to the Red Book provisions.
Also on June 26, Perkins, by telephone, notified Bath that the
Respondent was going to establish the new terminals, move certain
drivers from the Denver terminal, and that it would not recognize
the Union as representing the drivers at the new locations unless the
Union were certified as the collective-bargaining representative fol-
lowing an election. Bath replied that the drivers located at Denver
were "his drivers" and that if Respondent moved them to the new
terminals "it would be violating his rights, and he would have a
picket around us."
On June 27 or 28, the Union learned from one of the drivers located
in the Denver terminal that Respondent had approached certain of
the drivers about their desires to staff the new terminals 6 Bath,
thereupon, called Perkins and stated, "Don . . . I can't understand
why you go to the drivers of the Union to redomicile these people."
Perkins then explained, "Harry, I can only do what I am instructed
to do out of the Chicago office."
The Respondent commenced operating at the new terminals on
July 5, 1961, with three drivers transferred from the Denver unit plus
one additional driver recruited elsewhere. It did not recognize the
Union as representative of these drivers, nor did it apply the provi-
sions of the Denver terminal contract at Sterling and Walsenburg.
The Trial Examiner found, in pertinent part, that the creation of
the new terminals at Sterling and Walsenburg caused the loss of two
truck runs originating in Denver. He also found that the truck runs
from the new terminals were manned, in part, by former Denver
drivers who, after redomicile to Sterling and Walsenburg, were
thereby removed from the Denver unit. He concluded, in effect, that
the establishment of the two new terminals had an impact on the work
and personnel in the Denver terminal unit represented by the Union,
and that the Union was entitled to an opportunity to bargain with
5 The Red Book agreement. unlike the Blue Book agreement, specifically provided for
the procedure to be followed in opening new branches, terminals, divisions, or operations
6It appears that the Respondent did follow, in mayor part, the bidding provision con-
tained in the Blue Book Thus, the drivers in the Denver unit, based on their seniority,
were given their choice as to whether they wished to transfer to the new terminals ; but
if they did not accept the transfer, they were subsequently assigned to the remaining truck
runs at the Denver terminal by seniority.
422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent in respect to these changes before they were made.
The Examiner found that the Respondent had not bargained with
respect to the establishment of the new driver locations or terminals,
and that it therefore violated Section 8(a) (1) and (5) of the Act.
The Respondent contends in principal part that the real dispute
between the parties was a question concerning the Union' s representa-
tion of drivers at the new terminals, and had nothing to do with any
failure to bargain over the establishment of new terminals or driver
locations; and that the instant dispute should have been processed
through the grievance procedure of the collective-bargaining agree-
ment, and not through the complaint machinery of the Act. We find
merit in these contentions.
The Board and the courts have long held that an employer has no
duty to bargain where the union has not signified its desire to nego-
tiate? Such are the facts in this case. Here, the Union never re-
quested the Respondent to bargain about the establishment of the new
terminals at Sterling and Walsenburg, Colorado, although notified of
Respondent's contemplated action. Indeed, it had no objection to the
establishment of these terminals. Thus, on April 3, 1961, the Union
advised the Respondent that there was a bidding procedure in the
Blue Book which should be followed if the Respondent decided to
redomicile or transfer certain truckdrivers out of the Denver unit.
Subsequently, in the middle of May 1961 Bath, when notified that the
Respondent was contemplating the creation of two new terminals,
stated he had no objection to establishing the terminals. Instead, he
merely took the position that the Union would have to have an oppor-
tunity to put up bids so the drivers with the most seniority would have
a choice. Finally, on June 20, when Perkins again called Bath to
discuss the matter, Bath's only concern was not over the establishment
of the new terminals but whether or not the transferred drivers would
remain in the Local Union. Moreover, it was not until Perkins sub-
sequently notified Bath that the Respondent would not recognize the
Union as the representative of the drivers domiciled at the new ter-
minals that Bath protested, for the first time, the redomiciling of the
drivers. Finally, neither the Union's June 23 nor its June 26 letter,
requested the Respondent to bargain concerning the establishment of
the new terminals; nor did the letters protest the establishment of the
terminals. Instead, it appears that in each letter the Union only
objected to the Respondent's refusal to apply the parties' agreement
to the redomiciled drivers.
Accordingly, in view of the foregoing, we conclude, contrary to the
Trial Examiner, that as the Respondent notified the Union well in
advance of its intention to establish the new terminals, and the Union
° See Union Screw Products , a Partnership , 78 NLRB 1107, at 1112 and 1129 -1131
N.L R.B. v. Columbian Enameling & Stamping Co, Inc, 306 U.S. 292
MONTGOMERY WARD & CO. , INCORPORATED 423
never requested the Respondent to bargain concerning their estab-
lishment, the Respondent did not violate Section 8(a) (5) of the Act
by their establishment.'
Moreover, as also contended by the Respondent, here the parties
had included in their collective-bargaining agreement a specific griev-
ance procedure providing for final arbitration of all "grievances in-
volving the interpretation or application of the (contract's) provi-
sion." 9 Furthermore, the Union kept insistingt hat the dispute should
be settled by the grievance procedure, and the Respondent agreed.
Yet, despite the collective-bargaining agreement devised by the parties
themselves for settling such a dispute, the Union chose instead to file
the instant charges-thus asking the Board, in effect, to intervene and
resolve the dispute. In these circumstances, the Board would be frus-
trating the Act's policy of promoting industrial stabilization through
collective bargaining if we were to intervene in this dispute, instead
of requiring the Union in this case to give "full play" to the established
grievance procedure.io
Accordingly, as we herein find for the foregoing reasons, that the
Respondent did not violate the Act as alleged in the complaint, we
shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
8 See Union Screw Products, supra; N L R.B v Columbian Enameling d Stamping Co,
Inc., supra See also John Wafford, d/b/a Wafford Cabinet Company, 95 NLRB 1407,
Joseph Solomon , d/b/a The Solomon Company, 84 NLRB 226; Mildred F Bellow, d/b/a
Bellow-Brown Printing Company, 105 NLRB 28 ; John H. McCann, et al., d/ b/a McCann
Steel Company, 106 NLRB 41.
e See supra, footnote 2 Moreover, contrary to the Trial Examiner 's findings , the record
appears to show that the parties actually understood that their collective-bargaining
agreement included the applicable provisions of the Blue Book Thus, the parties agreed
that the Blue Book was to be used for the time being, and by the application of the
seniority , and other provisions contained therein, they did, in fact , do more than merely
use the Blue Book as a "guide " Indeed , it is clear that the applicable provisions were
part of their overall collective-bargaining agreement
3e See Hercules Motor Corporation, 136 NLRB 1648.
As Member Panning, in the instant case, would dismiss this complaint for the reason
that the Union never requested the Respondent to bargain concerning the establishment
of the two new terminals , he does not here pass upon the Board's alternative ground for
dismissing the complaint, namely, that the Union failed to follow the established grievance
procedure On the other hand and apart from other considerations , Member Brown would
dismiss the complaint because the Union did have such grievance machinery available to
it for resolving this particular dispute
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This matter was tried before me, Wallace E . Royster, in Denver, Colorado, on
September 21, 1961. Upon a charge filed by International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Local No. 961, herein called the
Union, the General Counsel of the National Labor Relations Board issued his com-
plaint against Montgomery Ward & Co., Incorporated, herein called the Respondent,
alleging that the Respondent had engaged in and was engaging in unfair labor
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
practices affecting commerce within the meaning of Section 8 (a) (1) and (5) and
Section 2 ( 6) and ( 7) of the National Labor Relations Act, as amended , herein
called the Act.
In essence , the complaint alleges that the Respondent has refused unlawfully to
bargain with the Union and has, in derogation of the Union's status , bargained di-
rectly with employees . Respondent's answer denies any violation of the Act.
Upon the entire record I in the case, upon consideration of the briefs submitted by
counsel, and from my observation of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent , an Illinois corporation with its main office in Chicago , Illinois, is en-
gaged in the sale and distribution of merchandise through mail -order houses and
retail stores. The mail-order house in Denver, Colorado , alone, is involved in this
proceeding . In the year preceding the issuance of the complaint , the Respondent,
through its Denver mail -order house , sold merchandise valued in excess of $500,000
and purchased and caused to be shipped directly into the State of Colorado from
points outside that State merchandise valued at more than $50 ,000. I find that the
Respondent is engaged in commerce within the meaning of Section 2(6) and (7)
of the Act.
II. THE ORGANIZATION INVOLVED; THE APPROPRIATE UNIT
The Union is a labor organization within the meaning of Section 2(5) of the Act.
The parties agree, and I find, that the Union since at least January 4, 1961 , has been
the certified representative of Respondent 's truckdrivers in its private carrier opera-
tion operating from the terminal of the Respondent 's Denver, Colorado , mail-order
house, excluding all retail store drivers and helpers, and all other employees , guards,
and professional employees and supervisors . The parties aigree, and I find, that the
described unit is one appropriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
III. THE UNFAIR LABOR PRACTICES
After negotiations , the Respondent and the Union, effective April 1, 1961, came
to agreement on wages, union security , adjustment of grievances , and indemnification.
In all other respects the Union and the Respondent were without a firm contract.
They agreed , however, to look to a document known as the Central States Agree-
ment for guidance until new provisions were bargained between them The Central
States Agreement referred to was a form of contract which the Union had negotiated
with other employers in 1958 and which had expired in January 1961.
In bargaining the Union urged the Respondent to accept an agreement which it had
negotiated with other employers and which succeeded the expired Central States
Agreement . The Respondent refused. At one of the bargaining meetings on April 3,
the question of moving drivers from the Denver terminal to other points was men-
tioned. Harry Bath, the Union's president , said that the men in the Denver terminal
would have to be given opportunity to bid in respect to any such changes. No agree-
ment was reached in the matter . The expired Central States Agreement is silent on
this point . The agreement which succeeded it contains specific provisions covering
the matter.
In May and June, Donald Perkins, Respondent 's personnel manager at Denver,
spoke on several occasions to Bath, saying that he wanted to make some changes in
the truck routes which would involve redomiciling drivers outside Denver. Bath told
him to write to the Union , outlining his proposal , to give the drivers opportunity to
bid on any such revision of routes that would affect domicile . In May and June,
certain driver employees of the Respondent in Denver learned that they could have
opportunity to work at points outside Denver if they desired when final decision was
made to make route changes On June 23 Bath wrote to Charles F. Russ, Jr., the
Respondent 's labor relations counsel, in Chicago , protesting the apparent intention
of Respondent to move some of the drivers , then in the bargaining unit, to points
outside Denver. A few days later Bath again wrote to Russ asking that the Respond-
ent accept the new Central States Agreement as their contract and again protested
the Respondent 's plan to move drivers out of Denver. Russ answered Bath on
June 28, saying that the establishment and abolishment of terminals had no relation
1 The motion of Respondent 's counsel. in which the General Counsel concurs, to correct
the transcript in certain particulars Is granted
MONTGOMERY WARD & CO., INCORPORATED 425
to the collective-bargaining contract between the Respondent and the Union. Russ
went on to say that at any location where there was but a single driver, the Respond-
ent would recognize the Union as the bargaining representative for that driver.
Where two or more drivers were so located , the Respondent would require the Union
to establish its representative status through an election.
I find that at no time has there been a contract between the Respondent and the
Union covering the relocation of drivers from the Denver terminal. The new
Central States Agreement which the Union urged upon the Respondent does cover
such a development but has never been accepted by the Respondent . The Umon
has never abandoned its claim that it has a right to bargain with the Respondent in
this matter and it has never agreed that the Respondent could change trucking routes
involving change of domicile at will. Although it is true that the Respondent was
free from any contract obligation in respect to such moves, it is obvious enough that
by removing routes handled by Denver terminal drivers, the Respondent was diminish-
ing the amount of work available to Denver drivers and, in such a situation, the
Union as the bargaining representative of such drivers , had a right to be heard .2
Effective July 5 a run which theretofore had been handled by a Denver driver who
carried merchandise to Sterling , Colorado, and back, was changed so that the driver
thereafter was stationed at Sterling and drove from there to Denver and return.
Similarly, and at the same time, a run which had theretofore begun at Denver with
a routing to Walsenburg and return was changed so that thereafter the driver began
his run at Walsenburg , drove to Denver, and thence to his starting point. The result
of these changes was to cut by two the number of runs originating at the Denver
terminal and thus to deprive the employees in the bargaining unit at Denver of some
work opportunity . The runs from Walsenburg and from Sterling were manned by
drivers who before the change had been working from the Denver terminal. They
thus were removed from the bargaining unit. The Union was entitled to an oppor-
tunity to bargain with the Respondent in respect to these changes before they were
made and not to be confronted with a fait accompli. This is not to say that the
Respondent was required to come to agreement with the Union in the matter. It
was and is free to give effect to its judgment in respect to where its routes shall run
and where the drivers are to be stationed . But in matters affecting the drivers at
the Denver terminal, and the changes instituted on July 5 were of concern to those
drivers, it had an obligation to bargain with the Union A change in domicile, as to
some individuals surely, would be as much a matter of interest and solicitude as any
other change in working conditions . Those constituting the bargaining unit at
Denver had a right to have their bargaining representative guard their interests in
the matter.
On June 23 Bath wrote to the Respondent saying that the changes should be
settled as a matter of grievance. Counsel for the Respondent argues that the
Union should have invoked grievance procedures rather than have filed a charge.
Assuming that in some instances the policies of the Act may best be effectuated by
leaving contestants to a means of settling disputes to which they have agreed, the
considerations underlying such a disposition do not exist here. The Respondent
and the Union had no contract covering the relocation of drivers or the changing of
routes Even if the expired Central States Agreement covered the matter, as it did
not, there was no agreement that the document referred to constituted a contract
between the parties. It was carefully described as a "guide." Thus there was
no contractual provision under which such a grievance could arise.
I find that by failing and refusing to bargain with the Union in respect to the
change in driver locations from Denver to Walsenburg and to Sterling , the Respond-
ent has violated and is violating Section 8 ( a)(1) and ( 5) of the Act.
On June 29 , Personnel Manager Perkins interviewed Frank Ferri , Virgil Peter-
son, and Leo Gruhlke . He told each that drivers were to be stationed at Walsen-
burg and at Sterling; that drivers at those locations would not be covered by the
Union's contract ; and that anyone leaving the Denver terminal for either place
would lose his Denver seniority . Each was offered opportunity to transfer and each
accepted-Gruhlke to Sterling ; Peterson and Ferri to Walsenburg . Each testified
that he was not coerced in reaching a decision but I think it amply evident that
coercion was present . Gruhlke could accept the Sterling location or work locally
in Denver with a lessened opportunity for earnings . To Ferri it meant a steady
job as an over-the-road driver rather than one on a relief basis . To Peterson it
meant a long-sought opportunity to leave local trucking and to earn more. The
elements of the offers, i .e., steady work , greater earnings , a desirable change in
the type of work-all were beguiling to the individuals concerned. But the im-
portant question is not whether the employees were thus coerced or charmed by
2 See Shamrock Dairy, Inc, et al., 124 NLRB 494, 498
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent but rather whether the Respondent thereby violated rights secured
by Section 7 of the Act.
The complaint describes the job offers to Gruhlke, Peterson , and Ferri and the
denial to them at their new locations of certain benefits under the Union contract
as bargaining with individual employees in derogation of the Union 's status and
as unlawful restrain and coercion . I think that it was neither . The Union was not
the bargaining representative of drivers at locations other than Denver and had
no statutorily guaranteed right to bargain with the Respondent over working condi-
tions at locations other than Denver . In the absence of an agreement between the
Union and the Respondent in respect to seniority rights of Denver terminal drivers
in applying for jobs at other locations , I see no trespass upon the Union 's domain.
The Union 's right to bargain with the Respondent was limited to the Denver terminal
unit . The Respondent was free to fill the jobs at Walsenburg and Sterling from
any source it pleased . It was the establishment of these driver locations with the
consequent effect upon the Denver terminal unit which constitutes the violation of
the Act which I have found . I will recommend that the complaint be dismissed to
the extent that it alleges unlawful individual bargaining with the three drivers and
that they were unlawfully restrained and coerced in that connection.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with its operations described in section I, 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.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act. Having found that the
Respondent has unlawfully refused to bargain with the Union in respect to the
establishment of the driver locations affecting drivers in the Denver terminal unit,
it will be recommended that upon request of the Union the Respondent reinstate
the Denver-Sterling and Denver-Walsenburg runs as they existed immediately
before July 5, 1961. The Respondent shall not be required to make this change
unless the Union contemporaneously requests the Respondent to bargain with it
concerning the establishment of any driver locations directly affecting Denver
terminal unit drivers. If agreement is reached concerning the establishment of
driver locations affecting drivers in the Denver terminal unit, such agreement shall
be reduced to writing and be signed by the Respondent.
As I have found no violation of the Act in respect to Respondent's dealings with
Leo Gruhlke, Virgil Peterson, and Frank Ferri, it will be recommended that the
aspect of the complaint specifically concerning them be dismissed.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, Local No. 961, is a labor organization within the meaning of
Section 2(5) of the Act, and at all times material herein was and now is the
exclusive bargaining representative of the Denver terminal drivers in the unit set
forth below, within the meaning of Section 9(a) of the Act.
2. All truckdrivers in Respondent's private carrier corporation operating from
the Denver, Colorado, mail-order house terminal, excluding all retail store drivers
and helpers and all other employees, guards, professional employees, and super-
visors constitute a unit appropriate for collective bargaining within the meaning
of Section 9(b) of the Act.
3. By refusing to bargain with the Union in respect to the establishment of
driver locations affecting runs manned by drivers in the appropriate unit, the Re-
spondent has refused unlawfully to bargain with the Union and has thereby engaged
in unfair labor practices within the meaning of Section 8(a)(5) of the Act.
4. By such refusal to bargain the Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in Section 7 of the Act and
has thereby engaged in unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]