Nelson B. Allen

National Labor Relations Board - Board Decisions

Oct 29, 1964

149 N.L.R.B. 229 (N.L.R.B. 1964)

NELSON B. ALLEN 229
WE WILL notify The Colonial Painting Company , Inc, in writing , that we
have no objection to and will not interfere with its employment of John J.
Pike.
WE WILL make John J. Pike whole for any loss of earnings he may have
suffered because of the discrimination against him.
PAINTERS DISTRICT COUNCIL No. 4, BROTHERHOOD OF PAINTERS,
DECORATORS & PAPERHANGERS OF AMERICA , AFL-CIO,
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 may communicate directly with the Board 's Regional Office, Fourth
Floor, The 120 Building, 120 Delaware Avenue , Buffalo , New York, Telephone
No TL 6-1782, if they have any question concerning this notice or compliance
with its provisions.
Nelson B. Allen and Line Drivers Local 224, affiliated with Inter-
national Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America . Case No. 21-CA-5051. Octo-
ber 29, 1961
DECISION AND ORDER
On May 19, 1964, 'T'rial Examiner Louis S. Penfield issued his De-
cision 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 cer-
tain affirmative action, as set forth in the attached Trial Examiner's
Decision . Thereafter, the Respondent and the General Counsel filed
exceptions to the Trial Examiner 's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers herein to a three-
member panel [ Chairman McCulloch and Members Fanning 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 Respondent's and General Counsel's
'exceptions and briefs, and the entire record in this case , and hereby
adopts the findings, conclusions , and recommendations of the Trial
Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts, as its Order, the Order recom-
mended by the Trial Examiner and orders that the Respondent, his
officers, agents, successors, and assigns, shall take the action set forth
in the Trial E xaminer's Recommended Order.
149 NLRB No. 27.
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding with all parties represented was heard before Trial Examiner
Louis S. Penfield in Los Angeles , California , on October 7, 8, 9, 10 , 11, 29, and
30, 1963, upon a complaint of the General Counsel and an answer by Nelson B.
Allen, herein called Respondent . y The issues litigated were whether Respondent
violated Section 8(a)(1), (3 ), and (5 ) of the National Labor Relations Act, as
amended, herein called the Act.
Upon the entire record, including consideration of briefs filed by the parties, and
upon my observation of the witnesses , I hereby make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Nelson B. Allen is an individual proprietor engaged in the business of hauling
freight with trucks of the tractor-trailer combination type, and in the leasing of
such equipment. His principal place of business and his truck terminal are located
at Montebello, California. In the course and conduct of such business during the
calendar year 1962 Respondent received in excess of $80,000 for leasing truck
equipment to Waste King Corporation and Thrifty-Mart Inc. Waste King Corpo-
ration is engaged in the manufacture of disposal units, dishwashers, and stoves,
and during the calendar year 1962 shipped its manufactured products, valued in
excess of $50,000, to points located outside the State of California. Thrifti-Mart
Inc. operates a chain of retail markets in Los Angeles and vicinity as well as in
Las Vegas, Nevada. During the calendar year 1962 Thrifti-Mart Inc. did an
annual volume of business in excess of $1,000,000, and transported commodities
valued in excess of $50,000 from Los Angeles, California, to Las Vegas, Nevada.
I find that at all times material to this proceeding Respondent was engaged in a
business which affects commerce within the meaning of the Act and that the asser-
tion of jurisdiction is warranted.
It. THE LABOR ORGANIZATION INVOLVED
Line Drivers Local 224, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
The central issue in this proceeding relates to a series of unfair labor practices
alleged to have been engaged in by Respondent when confronted with demands
by the Union as the statutory representative of its employees. The General Coun-
sel asserts, in substance, that Respondent discriminatorily terminated the employ-
ment of certain of its employees because of their efforts to bargain through the
Union, thereby refusing to bargain, and thereafter refused to reinstate such em-
ployees, and continued in its failure to fulfill its statutory bargaining duty. Re-
spondent insists that at all times it bargained with the Union as required by law,
and that the terminations were a lawful response to an unreasonable demand by the
Union which, in any event, were remedied by subsequent offers of reinstatement.
Nelson B. Allen is engaged in a specialized branch of the over-the-road truck-
ing industry. In the fall of 1962, Allen owned 12 tractors and 10 trailers, and
conducted his business from a small terminal comprised of an old house, and a
lot upon which trucks could be parked. Most of the equipment was secondhand
and ranged in value from $6,000 up to $13,000 for each individual piece. Ap-
proximately 25 percent of Allen's business was in leasing equipment to other
haulers who operated it with their own drivers. The remainder of the business was
comprised of what is known as subhauling.
i The complaint issued on June 17 , 1963, and Is based upon charges and amended charges
filed with the National Labor Relations Board, herein called the Board, on November 8
and December 11 and 12, 1962, respectively. Copies of the complaint, the charges, and
amended charges have been duly served upon Respondent.
NELSON B. ALLEN 231
The major portion of over-the-road freight is hauled by so-called prime carriers
who deal directly with their own customers and haul their goods and products at
fixed rates. Prime carriers, however, due to cost problems or shortage of equip-
ment, often requite additional trucks to fulfill contracts with their customers. To
meet this need they may engage the services of subhaulers to furnish equipment
and drivers. The rates of this hue will be fixed by contract between the subhauler
and the prime carrier. This may be a flat fee per load, or be a percentage of
what the prime carrier receives from his customer. In any event, the subhauler
will receive less than the amount which the prime carrier gets, and from his fee the
subhauler must pay the drivers, pay his overhead costs, and make his profit. For
the most part, subhaulers are unable to get prime haul business which is more
profitable, because they cannot afford the equipment and the high overhead needed
to provide the regular service. There are numerous subhaulers in the Los Angeles
area. Many have less trucks than Respondent, others have considerably more.
The subhauling business is admittedly a highly competitive one.
In the western part of the United States most of the prime carriers are parties to
a collective-bargaining agreement with Western Conference of Teamsters. This
master agreement was negotiated between the Western Conference of Teamsters,
acting on behalf of various locals in the Western States, and various employer
trucking associations representing employers in the same area. The master
agreement, of course, binds the association members. In many cases the master
agreement is submitted to and signed by individual employers in the same area
who are not members of the employer associations but who thereby will also
become bound by it. Although some truckers, who are primarily subhaulers, are
also parties signatory to the master agreement, most of the subhaulers are not
organized. It is acknowledged that the master agreement was designed primar-
ily to apply to the businesses of prime carriers and not to those of the subhaulers.
In the conduct of his business Allen regularly employed from 10 to 12 driv-
ers. His practice was to assign men to loads as obtained, on a rotary basis
making use of a first-in first-out principle. They were paid hourly rates and
received fringe benefits less than those accorded by the master agreement. The
drivers regularly drove a single piece of equipment, and were usually notified of
assignments either by telephone or by checking at the terminal. Sometimes word
of an assignment would be relayed by fellow drivers. In the year 1962 Allen did
a gross business of $250,000. His net profit for the same period was $14,000,
which allowed no salary either for himself or his wife.
The events with which we are concerned in this proceeding fall into two broad
categories: (1) the organization, the bargaining attempts, and the events both
preceding and including November 6, 1962; and (2) the offers of reinstatement
and the bargaining occurring subsequent to November 6, 1962.
B. The organization, the bargaining efforts, and the events both preceding and
including November 6, 1962
1. The organization of the Union, the majority, and the appropriate unit
Union organization of Respondent's employees commenced in late October
1962. The instigator was driver John Frederitz who approached Union Business
Agent Sid Wasson on October 22, 1962, and obtained from him union authoriza-
tion cards.2 A day or two later Frederitz, met with drivers Gene Pennington,
Claude Beauchamp, and Ronald Rowley. At that time these drivers and Frederitz
signed authorization cards. Driver Melvin Graham signed an authorization card
"around the date of the 25th." Driver Richard Hinrichs signed a card on Octo-
ber 26. Driver Kenneth Lundy testified, without contradiction, that he signed a card
"somewhere between the 21st and 26th" but that he did not give it to Frederitz
until approximately November 2. Frederitz gave all of the signed cards, except
that of Lundy which he did not receive until later, to Business Agent Wasson on
October 26. All cards are dated October 20, 1962, which was a date agreed upon
among the employees to be used uniformly to avoid any possibility of discrimina-
2 These cards were in the form of an application blank which provided, among other
things, that the signer was applying for admission to membership "and [designating] said
above Union as [his] exclusive representative in collective bargaining in regards to wages,
hours, conditions and for a UNION SHOP working agreement." Respondent contends
that application cards should not be construed as "automatic representational authoriza-
tion." It would appear that the quoted language would negate such a contention, and
I so find.
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion against the first signers. The authorization cards for seven drivers, Frederitz,
Beauchamp, Rowley, Pennington, Graham, Hinrichs, and Lundy were received in
evidence after identification by the drivers themselves, or by someone who had
observed the drivers sign .3 I find that by October 26, 1962, the seven drivers of
Respondent above listed had designated the Union as their statutory representative.
Respondent and the General Counsel agree that a unit of Respondent's drivers
may be appropriate They also agree that drivers William Timmons, Robert
Brooks, Gene Pennington, Gene Creech, Ronald Rowley, John Frederitz, Claude
Beauchamp, Melvin Graham, Richard Hinrichs, and Kenneth Lundy should be
included in such a unit Respondent would also add drivers William Sharp and
Robert Adams to this group. The General Counsel, although at first disputing
the inclusion of Sharp, now acknowledges that Sharp was driving at the time of the
events in question, and that he is properly in the unit. Robert Adams was not
working for- Respondent in October, but formerly had driven for Allen • The
record shows, however, that Adams had left Allen's employ in July 1962. Respond-
ent claims that Adams was on leave of absence and that he should be accorded
employee status. It appears, however, that Adams left Respondent's employ to
take employment in another city, and that he was still employed there at the time
of the events with which we are concerned and did not return to Respondent's
employ until the spring of 1963. While no doubt Respondent regarded Adams as
a good driver that he would have reemployed, I am not convinced that Adams
enjoyed any special status which would qualify him as an employee in October
1962. He left Respondent's employ to suit his own convenience, and appears to
have returned for the same reason at a considerably later date It is not shown
that Respondent was holding a place for him or that he could have' returned at
any time regardless of existing vacancies. ' I find that at all-times pertinent to the
issues in this proceeding Robert Adams did not have employee status, and cannot
be considered as a part of the appropriate unit. I find further that a unit of all
Respondent's drivers constitutes a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9(b) of the Act.4 Since I found above
that by October 26, 1962, 7 of the 11 drivers in the unit had designated the Union
as their statutory representative, I find that at all times since October 26, 1962, the
Union has been the exclusive representative of Respondent's employees in an appro-
priate bargaining unit within the meaning of Section 9 of the Act 5
2. Interrogation and bargaining efforts prior to November 6, 1962 '
Allen first learned of the organizational efforts of the Union in a telephone call
from Wasson which he places as occurring on October 29, 1962.6 In this call
Wasson advised Allen that "he had a majority of the drivers signed up and that he
wanted to come out and discuss the signing of the contract with [Allen] " Noth-
ing more specific was discussed at this time. According to the credited testimony of
Allen, a meeting between him and Wasson was arranged for Wednesday, October 31.
Following this telephone conversation, Allen talked with several of the drivers
concerning the Union. Allen asked Frederitz if it were true that the men had
organized and "who was behind it." Frederitz told Allen that it was true, but
declined to tell him who was responsible. Allen went on to tell Frederitz that he
"would not do business with the Union," that he "could not afford,it," and finally
stated. "Well I will shut the doors before I do business with the Union." Accord-
ing to Hinrichs, Allen told him on one occasion that "somebody figures they are
going to fix me with this union deal and I am going to do a little fixing
myself." On another occasion Henrichs states that Allen told him, that he had
asked all the drivers if they had signed cards but that all had denied it. Follow-
ing this, according'to Hinrichs, Allen with a show-of anger, said, "I,got a bunch
of liars working for me" Allen also had a conversation with driver Graham in
In its brief Respondent erroneously asserts that only six cards were offered in evidence.
The record also establishes that,on November 4, driver Gene Creech-signed a card. Creech,
however, never turned in his card to the Union, and it is not urged by the General Counsel
that it be counted for the purpose of determining the majority.
4 This unit is comprised of the following 11 employees • Timmons, Brooks, Pennington,
Creech, Rowley, Frederitz, Beauchamp, Graham, Hinrichs, Lundy, and Sharp
5 Even if Adams be considered within the unit, it will be comprised of only 12 drivers.
The Union thus would still have a majority at all material times
0 Wasson would place the call a few days earlier, but I am convinced that Allen's
recollection in this regard is the more accurate.
NELSON B. ALLEN 233
which he asked Giaham if he had signed a union card, and told Graham that he
could not afford a union. The foregoing conversations are acknowledged by
Allen to have taken place, although he differs in details and emphasis. He denies
that he specifically threatened to go out of business, but he admits that he may
have said that if the contiacts were forced on him he might have to do so. He
does not recall telling Hinrichs that he was going to do some "fixing himself,"
and supports his recollection by stating that the Union would appear to be a
difficult organization to "fix." He admits asking Graham and others if they had
signed the union cards. I credit the testimony of the drivers , and find that the
statements attributed to Allen occurred in substantially the manner in which they
relate them
I find further that by the threats to go out of business and to fix the Union, and
by interrogation of his drivers concerning their union affiliation, Respondent has
violated Section 8(a)(1) of the Act.7
On October 31, 1962, Wasson and Allen met as scheduled at the terminal Was-
son advised Allen that at the time he represented seven drivers." Allen remarked
that then he "must have seven liars because nobody ever signed a card," but he
did not ask to see the cards or otherwise question that the Union, in fact, did
represent a majority of the drivers Wasson presented Allen with a copy of the
master contract. There followed an extended discussion of its provisions and of
their applicability to Allen's operation. The meeting lasted for several hours and
the cost items were discussed fully. Allen insisted that he could not conduct the
type of business in which he was engaged and meet the costs required by the
contract. Notes made by Allen at this meeting show that health and welfare costs
of the master agreement would add approximately $55 a month for each driver,
and that the relative cost of what Allen regarded as a typical trip would be
increased from approximately $92 to $129 a trip . On an annual basis Allen com-
puted that this would have the effect of raising his costs approximately
$36,000. He made clear to Wasson that since his net profit was less than half of
this amount, he could not live with the contract absent a change in the character of
his business . Wasson acknowledges the discussion , and although suggesting
that the trips may not have been in all respects typical , does not dispute the general
accuracy of Allen 's figures. Wasson concedes that at the time he was not author-
ized to offer Allen anything but the master agreement . He admits that he did
not specifically apprise Allen that by using the services of those in authority in
the Western Conference of Teamsters , it might be possible to negotiate a special
agreement designed to meet the specialized character of Allen's trucking busi-
ness. The meeting concluded with Wasson requesting that Allen give further
consideration to the matter.
There can be no doubt that Allen accorded the Union recognition at this first
meeting, and I so find. Aside fiom that, it appears to have been largely explora-
tory in nature, and reveals nothing that would suggest that Allen was not fulfill-
ing his statutory duty to bargain . On the other hand, while Wasson indicated that
he could only negotiate within the limits of the master agreement , he made no
suggestion that can be characterized as an ultimatum, or even as an indication that
unless Allen accepted the master agreement he would face immediate economic
action . On the contrary this first meeting ended on a conciliatory note with
Wasson suggesting that "maybe the boys wouldn't be too hard on [Allen]" and
that Wasson would get "in touch with [Allen ] later."
Wasson reported the results of his meeting with Allen to Frederitz , and suggested
to him that he get the drivers together to ascertain their wishes before he met
with Allen again . He reported Allen's economic position to Frederitz , and told
him that it was up to the men to decide upon the course of action that they wished
to undertake . As a result of Wasson 's suggestion, a meeting of the drivers was
scheduled and took place on Sunday , November 4, 1962 , at Hul 's Restaurant lo-
7 The questioning did not take place with the safeguards the Board requires As set
forth in a recent case , for interrogation to be privileged it must be not only for the pur-
pose of verification of a union's majority status , but also must be accompanied by a com-
munication to the employee of the purpose , an assurance that no reprisal will take place,
and must occur in it context free from employer hostility or other interference with em-
ployee rights. Jolirinic's Poultry Co., 146 NLRB 770. In the instant case the purpose
was not shown, in no case were assurances of no reprisal given, and in some instances the
questioning occurred accompanied by threats to go out of business.
8 While it is true that Lundy's card had not yet been given to Wasson, Frederitz had
advised Wasson that Lundy had signed a card.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cated near Respondent's terminal. Driver Beauchamp invited Allen to attend this
meeting but Allen told him that since the men now had a representative he did not
feel it was appropriate for him to come.9 -
This meeting was not attended by Wasson, but all the drivers who had signed
cards with the Union were present. It took several hours, and both the contract
and its implications with respect to Allen's operations were discussed at
length. There were differences of opinion among various individual drivers as to
Allen's ability to make concessions, but all the drivers who testified showed an
awareness of the economic problems facing a subhauler like Allen if required to
live up to all of the terms of the master agreement. All the drivers, however, felt
that it should be possible through the Union to obtain some benefits which they did
not then have It was the consensus of the group that although literal compliance
with all of the provisions of the master agreement might not be possible, some
way might be found to avoid strict compliance with its more onerous terms. It
was agreed that the issue should be pressed further through the Union, but there
was no suggestion that the master agreement was to . be forced on Allen by a
strike or picketing.
3. The bargaining meeting of November 6, 1962, and the terminations
After the November 4 meeting, Frederitz advised Wasson that it was the wish of
the drivers that he press further in attempting to get an acceptable agreement with
Allen. Wasson requested that Frederitz undertake, insofar as possible, to get all
the drivers who had signed union cards to join him on November 6, 1962, in
visiting Allen so that he might have the advantage of their "moral support" and
their views. All of the drivers were notified of this proposed meeting, but on the
morning of November 6, only Frederitz, Beauchamp, and Rowley appeared at the
terminal to meet Wasson. The four of them waited for the others for over an hour
but none of the drivers appeared. At approximately 11 a.m. Wasson and the three
drivers walked into Allen's yard. Wasson had no previous appointment with Al-
len. Allen met the group in the yard. When Wasson suggested that they all
go into the office to discuss the contract, Allen replied that it could be discussed in
the yard The testimony of Wasson and the drivers is in substantial accord as to
what transpired immediately thereafter. According to them, Wasson, who had an
envelope containing copies of the master agreement and the various trust agree-
ments that are normally signed simultaneously with it , suggested to Allen that he
might wish to sign them. Allen replied that, as he had explained to Wasson at
the earlier meeting, continued operation under the master agreement was an eco-
nomic impossibility. Allen then accused Frederitz of instigating the whole matter
and of attempting to undermine him. Frederitz denied the accusation, and he and
Allen got into a heated argument . Wasson finally succeeded in calming Frederitz
and Allen, and again brought the conversation around to the agreement. Allen
then announced that he would not sign it , and that he was out of business. He
said that he was firing Frederitz, Beauchamp, and Rowley. Wasson asked him
why, and Allen replied that he was firing Frederitz for having drilled holes in his
trucks some weeks before without authorization, Rowley for refusing to perform
work he had been directed to do, and Beauchamp for lack of work. Allen stated
further that he would take care of the other drivers when they arrived. The three
drivers thereupon cleaned out their trucks, turned in their keys to Allen, got their
paychecks and departed.
Allen's version of these events does not materially differ. He states that he had
observed Wasson and the drivers sitting in a car in front of the terminal. When
they approached him in the yard, he did not invite them into the office because he
was expecting some phone calls and wanted privacy. When Wasson asked him'
about signing a contract he repeated to Wasson that , as he had told him earlier, it
was economically impossible. He admits having a heated argument with Freder--
itz. He does not specifically deny accusing Frederitz of attempting to undermine
his operation , but he indicates that the substance of the argument turned on some
other matter . He acknowledges that when Wasson quieted Frederitz , he told Was-
son that "If he was going to force the contract on me I would be out of business;
that particular day there wasn ' t any business , so in the confusion I laid everybody
O When Allen and Wasson first met , Allen suggested the possibility of his meeting with
his drivers. Wasson told Allen that the Union was now the representative of the men. It
is thus understandable that Allen showed reluctance in response to Beauchamp 's invita-
tion. Wasson testified that he would have had no objection to Allen's attending the meet-
ing, but it does not appear that he ever apprised Allen of his view.
NELSON B. ALLEN 235
off " Responding to Wasson's questioning as to the reasons, Allen states that he
"Could add Frederitz for drilling holes in the cab, Rowley because he had refused
to work for this one customer up North, and Beauchamp because there wasn't any
work." He concedes that when they asked for their paychecks he told them that
they could have them if they turned in their keys. Allen specifically denies using
the word "fire" in connection with any of the drivers. He admits saying that he
would take care of the other drivers "as they came in and lay them off too."
I credit the mutually corroborative and consistent testimony of Wasson and the
drivers. The principal differences between their version and that of Allen is found
in Allen's insistence that he only said he "could have" fired them for alleged
infractions, rather than that he did so, and in his denial that he ever used the word
"fired." However, if we accept Allen's version at its face value we find him admit-
tedly terminating the employment, not only of the three drivers present, but also of
all drivers in the unit for no apparent reason but that they were seeking a contract
through their statutory bargaining representative. It is undoubtedly true that
Allen had no loads to haul on that particular day. It is undisputed, however, that
Allen never followed a practice of laying off drivers when work was slack. Work
frequently had its ups and downs and Allen regularly undertook to distribute work
among the drivers as it became available. In the intervals he did not lay off
drivers or asked for their keys. Even the term "layoff" does not accurately express
what happened. As Allen himself puts it, confronted with what he regarded as
a demand that he sign the master agreement, he determined to quit the subhaul-
ing business, at least for the time being, because "frankly at the time I didn't know
what else to do." Thus whether Allen's conduct be described as a layoff, a firing,
or a termination, by his own admission it was clearly action which he took in
response to the Union's demand, and I so find. He followed up his announced
plan by terminating the remaining drivers. As they came in from trips or other-
wise reported to the terminal at various times during the balance of the day and
on November 7 each was told, in substance, that Allen was no longer in business,
and that their services were no longer needed.
Immediately after the incidents in the yard, Wasson and the three drivers went to
Hul's Restaurant to discuss what should be done. There is no evidence to contra-
dict Wasson's testimony that he had not contemplated picketing at this time solely
for the purpose of pressing for a contract. Wasson states, however, that confronted
with terminations coming about in a manner which he regarded as discrimina-
tory and unlawful he felt he had no alternative but to take action in protest. After
consulting with the Union's attorneys, and discussing the matter with the drivers,
picketing was commenced. The picket signs were made up from material which
Wasson had in his car, and they were inscribed with the legend "Nelson B. Allen
Unfair. Employees discharged for union activities. Local 224." Beauchamp,
Rowley, and Frederitz commenced picketing about noon on November 6. They
were subsequently joined by drivers Graham, Lundy, and Hinrichs. The picketing
continued without interruption until about December 24, 1962, and was later
resumed under circumstances which will be set forth below.
4. Concluding findings as to the incidents occurring on November 6
Before we can correctly appraise and understand later developments, we must
first consider the significance of the events which happened on November 6, 1962,
and immediately thereafter.
The background for the dramatic events occurring in the yard on November 6
may be summarized as follows: (1) A majority of the drivers had by October 26
designated the Union to represent them; (2) Respondent had recognized the Un-
ion on October 31, and on the same date Allen had met with a union business
agent and participated in an exploratory bargaining session; (3) Allen had made
it clear from the outset that he believed the proposed master agreement to be an
economic impossibility for his operation; (4) Allen had unlawfully interrogated
and threatened drivers and made known to them his opposition to the Union and
his fears of the economic consequences of the master agreement; (5) Allen, al-
though apprised that Wasson lacked authority to deviate from the master agreement,
had not acquired, or been told, that adjustments designed to meet the exigencies of
his specialized type of business were impossible to negotiate; (6) Allen had not
been told by the business agent, or anyone else, that failure to sign the master
agreement would necessarily result in immediate economic action against him by
the Union; (7) the drivers had unsuccessfully sought to discuss recognitional
problems directly with Allen, but had made it clear to him that, although they were
seeking help from the Union, they understood his economic situation and desired
to negotiate a solution that would be economically suitable to it.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Against such a background, we come to the confrontation of November 6. Al-
len, who had been observing Wasson and three drivers sitting in a car in front of
his terminal, met them as they entered the yard about 11 a.m. Allen denied Was-
son's request that they go into his office to discuss a contract; he accused one of
the drivels of instigating the Union and of trying to undermine his business; he
refused to discuss further any aspect of the contract; he charged that Wasson was
trying to force him out of business; and finally he announced that he was going
out of business and terminated, not only the three drivers present, but all the drivers
in the unit . The General Counsel contends that this conduct constitutes both an
unlawful refusal to bargain and discrimination against the employees affected. I
agree.
The bargaining had barely commenced and it clearly had not reached a
point of impasse. The Union had proposed that Allen sign a master contract, but
there is no evidence at this point to establish that some adjustments designed to
meet his need might not have been made. Indeed, considering later develop-
ments, this no doubt might have occurred had not Allen taken action that effec-
tively forestalled further exploration of the matter. Whatever apprehensions Allen
may have had as to future developments, he was clearly not at this time confronted
with an "either or" proposition, or with "an arbitrary demand" which pointed to
the destruction of his business . Nevertheless , with the bargaining relationship still
in its infancy, we see Allen, instead of fulfilling his duty "to meet at reasonable
times and confer in good faith ...", putting the quietus on the whole bargaining
process with the most drastic action possible, the termination of everyone in the
unit.
Respondent defends its action by referring to the alleged willingness of
Allen to confer and discuss all aspects of the contract both before and after No-
vember 6. It is true that, prior to November 6, Allen had discussed the contract
and had explained his position in regard to it on the only occasion upon which he
had been confronted with the opportunity to do so. His action on November 6,
however, can hardly be characterized as evidencing any continuing willingness.
On the contrary , as we have seen , it was both devastating and terminal. If
bargaining were to continue thereafter , a destroyed relationship had to be rehabili-
tated. Efforts in this regard will be considered below, but the significance of what
happened on November 6, can neither be ignored nor underestimated.
Respondent further defends its conduct by claiming that it was a justifiable
bargaining tactic aimed at countering a demand of the Union which it regarded
as totally unreasonable , and, that as such , the conduct was neither discriminatory
nor in disregard of the statutory duty to bargain . Respondent , while acknowl-
edging that the Board has consistently maintained that lockouts may be used as a
bargaining weapon only in limited situations , urges that the Supreme Court and
various Courts of Appeals have made it clear that lockouts are not unlawful per se,
and that properly the lockout should be regarded as a corollary of the strike and
permitted to be used in a variety of circumstances. Whether or not the Board
might appropriately construe the statute to equate strikes and lockouts, it has not
as yet chosen to do so. The Board , with court approval, has recognized that the
right of employees to engage in concerted activities , including their right to
bargain through their duly designated representative , may be limited by permit-
ting an employer to take certain defensive action to protect its business against
certain losses or inconveniences . Thus it has been held that an employer may lock
out all of his employees when faced with a strike , or threatened strike where the
purpose is to preserve multiemployer bargaining , or to prevent serious loss or
inconvenience to the business or to the customers . 10 Economic hardship may also
justify temporary lockouts or refusals to reopen during a strike absent reasonable
assurances of a measure of continuous operation ." This privilege , however, does
not exist when the lockout is used not for defensive purposes, but as an offensive
weapon intended to force the abandonment of the Union's contract proposals In
this type of situation the Board has consistently held that the use of a lockout
weapon is coercion of employees in the exercise of their bargaining rights, is
discrimination against such employees , and also constitutes the antithesis of
10 N.I. R.B. v Truck Drtrets Local Union No. 449, International Brotherhood of Team-
sters, etc . (Buffalo Linen Supply Co ), 353 U S. 87; Betts Cadillac Olds, Inc., et at., 96
NLRB 268; Packard Bell Electronics Cot potation . 130 NLRB 1122; Building Contractors
Association of Rockford, Inc. 138 NLRB 1405.
"International Shoe Company, 93 NLRB 907; Duluth Bottling Association , et al., 48
NLRB 1335.
NELSON B. ALLEN 237
good-faith bargaining.12 It is neither claimed nor does the record show, that the
instant case falls within any of the so-called defensive exceptions. As we have
seen , the lockout response of Allen came not after an impasse , but in the early
stages of bargaining. He was not confronted with an immediate strike threat, or
even the likelihood that one was imminent, if he declined to sign the master
agreement. He was aware that his employees were seeking ways and means of
making adjustments that would suit his operation. Although the master agree-
ment was the only definite proposal that had yet been made, it was presented to
him in a context in which further discussions were openly solicited. His lockout
response was thus not dictated by any justifiable "defensive action ." but stands
simply as an "offensive" i esponse to the demands of a bargaining representative
which he regarded as unacceptable. Within the rationale of the authorities above
cited, such a response is unlawful and clearly violative of Section 8(a)(1), (3), and
(5), and I so find.
Respondent also argues that its conduct should not be found discriminatory
because it was directed against everyone in the unit, and not just against union
adherents. It urges that action encouraging or discouraging membership in a
union is only unlawful when it is discriminatory, and this cannot be said to be true
when the action is taken against everyone without regard to union affilia-
tion. This misconceives the nature of the offense. Where a lockout is found to
be a lawful defensive response, it would not be discriminatory unless it were applied
to union adherents alone. This comes about because, although the act is clearly a
coercive one directed against employees in the exercise of their bargaining rights,
the Board has found that in balancing this against conflicting legitimate interests
of the employer the interference is to be tolerated. However, in the case of an
offensive lockout, there is no justification for an act of coercion aimed at employees
for seeking to press their demands through their representative. A lockout under
such circumstances is clearly discriminatory within the express language of the Act.
I find that Respondent, on November 6, 1962, terminated the employment of
all the drivers in its employ because they sought to exercise their bargaining
rights through the Union, and that by such termination it coerced its employees in
the exercise of their bargaining rights in violation of Section 8(a)(1) of the Act,
it discriminated against such employees in violation of Section 8(a)(3) of the Act,
and it refused to bargain with the Union within the meaning of Section 8(a)(5)
of the Act.
C. The offers of reinstatement and the bargaining subsequent to
November 6, 1962
I have found Respondent's conduct on November 6, 1962, to be unlawful. Such
unlawful conduct neither terminated the employment relationship nor extinguished
the duty to bargain as a matter of law. On the contrary it created in Respondent
an obligation to remedy its unfair labor practices by reinstating and making
whole the drivers discriminated against, and by resuming its bargaining relation-
ship and bargaining collectively in good faith with the Union. At the outset the
picketing was to protest the terminations, and none of the drivers were strikers but
all were discriminatees.1 i We must next determine how Respondent met the obli-
gations imposed upon it as a result of its unfair labor practices, and ascertain what
effect its subsequent conduct had upon any remedy which may be called for.
1. The alleged offers of reinstatement and the bargaining prior to
December 24, 1962
Immediately after being infoi med of his termination because Allen was "out of
business," Robert Brooks, a driver who had not signed a union card, undertook to
19The American Ship Building Coinpany, 142 NLRB 1362; Quaker State Oil Refining
Corporation, 121 NLRB 384, enfd 270 F 2d 40 (CA. 3) , Utah Plumbing and Heating
Contractors Association and its .ifembeis, 126 NLRB 973, enfd 294 F 2d 165 (CA. 10).
18 lespondent urges ilwt the drivers had planned to strike if a contract were not ob-
tained, and that when the picketing commenced they were in reality economic strikers
using the strike as it weapon to obtain this object. It may be assumed that they had
organized with the hope of obtaining it contract. Expressions by certain of the witnesses
indicate that they recognized that striking and picketing might become necessary if they
were to achieve that objective However, as shown above, by November 6 they had not
yet decided to take economic action. Respondent, by its unlawful conduct in "going out
of business" and terminating the drivers on that date, made the drivers discriminatees,
and their reinstatement thereatter became the primary issue.
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find loads for Allen's trucks to haul. Brooks located three loads that Trucking
Unlimited, a prime carrier, would make available for Allen on a subhaul basis.
Brooks reported this to Allen who told Brooks that he would take this work if
Brooks could obtain drivers. Brooks promptly agreed to take one of the loads
himself and Pennington agreed to take another. There was discussion about the
third load during the course of which Allen offered it to Lundy. Lundy, however,
declined to take it, and thereupon joined the other drivers on the picket line.14 The
third load was eventually assigned to driver Gene Creech, and Brooks, Penning-
ton, and Creech took out the three Trucking Unlimited loads on November 7.
Records of Respondent show that one additional load was taken out on Novem-
ber 9 by a driver not previously in Respondent's employ. Records also show that
during the following week 12 loads were taken out. Brooks and Creech each
took loads, but the others were carried by newly hired drivers. Business in this
week resumed at a level comparable to that of the week just preceding the union
demand. There is nothing further in the record to show that Respondent's busi-
ness did not thereafter continue at substantially the same level.
After Brooks and Pennington had been assigned to two of the Trucking Un-
limited loads, they left the terminal and proceeded to Hul's Restaurant. According
to Brooks, Allen had told him that "he could go ahead and see if some of the
fellows wanted to go and take trips." At Hul's Restaurant they met Beauchamp
and Rowley, and engaged in a discussion with them which lasted for about 30
minutes. Brooks states that during the course of this conversation he told Beau-
champ and Rowley about the Trucking Unlimited loads, and stated that he was
acting for Allen in offering them an opportunity to take them. Beauchamp and
Rowley deny that Brooks made a definite offer, either of a specific load or of other
general employment. 1 am convinced that their recollection more accurately
reflects what happened at this time. Brooks, himself, testified that he represented
to Beauchamp and Rowley that none of the Trucking Unlimited loads had been
assigned. He is clearly confused in this, however, for Respondent's witness Penn-
ington is quite definite that Allen had assigned him and Brooks two of the three
loads before they left together for Hul's Restaurant. Pennington's testimony is
not disputed by Allen. Allen, himself, does not assert that he gave Brooks author-
ity to do more than notify drivers of the availability of the Trucking Unlimited
loads. No claim is made that he authorized Brooks to offer general reinstatement
to Beauchamp, Rowley, or anyone else. There can be no doubt that the four
drivers fully discussed questions concerning everyone's returning to work and
undoubtedly Brooks made Beauchamp and Rowley aware that one Trucking Un-
limited load was still available. It was Allen, however, who was making the as-
signment, and there is nothing to show that at this time he had not already
assigned this third load. Moreover, even if we construe the offer to be definite and
positive with regard to the Trucking Unlimited load, it can hardly be characterized
as an offer of reinstatement to Beauchamp and Rowley to their former jobs.
On or about November 8, Allen, acting through his son, Robert, asked driver
Graham, who was at the time on the picket line, if he wanted to take out a
load. Graham replied that he "would like to" but that he "couldn't go through
this picket line."
Several informal conversations occurred between Allen and various drivers on the
picket line. Respondent urges that during the course of these Allen made it clear
to the diivers that they might have been working all the time, and that they
consistently responded to him that they were unwilling to come back to work
without a contract.55 Allen's reference appears to have been to the so-called offers
14 Lundy admits to being present at the terminal when Brooks discussed the Trucking
Unlimited loads with Allen. Ile denies, however, that he was definitely offered one of
the loads Witnesses Allen, Brooks, Skeen, Pennington, and Robert Allen each testified,
consistently, that Lundy was offered a load and that he declined. This whole episode took
place in the course of a general discussion occurring among a number of people. Lundy
was at the time somewhat perplexed as to what course he had best pursue, and may not
have clearly understood all that was taking place. I am convinced, however, that be is
mistaken in his denial, and find that Allen made it known to Lundy that he might take
one of the loads.
10 Respondent would attach significance to these alleged statements as showing that at
all times the drivers were staying out for the purpose of getting a contract. There is
some question that the drivers actually made such assertions. Assuming, arguendo, that
they did, however, I attach no significance to them. At the time they were discriminatees
placed in that position by Allen, himself. Until Allen unconditionally offered them re-
instatement their willingness to return without a contract cannot be tested.
NELSON B. ALLEN 239
of reinstatement outlined above. I do not understand Respondent to be claiming
that in any of these subsequent informal conversations Allen was undertaking to
make independent unconditional offers of reinstatement without reference to the
former so -called offers.
On November 26, 1962, Allen posted a notice on a bulletin board in his office
and on the wall of the outside of the house in a location which was approximately
15 or 20 feet trom the place in the street where the drivers were picketing. This
notice listed the names of all of the drivers in the unit and reads as follows:
The picket line out front does not mean we are out of business. Each of you
are free to come back to work provided there is work available at the time you
decide to return . Many of you have refused work, so we are not going to
continue to ask individually . Anyone that would like to return , please advise
in person or by telephone.
The pickets did not normally come on the terminal property , and they testified
unanimously that no one of them had seen the posted notice. On December 4,
1962, Allen's son , Robert , delivered to Frederitz , Beauchamp , Rowley, and Hin-
richs, who were at the time on the picket line , copies of the above notice together
with a covering letter which read:
Attached hereto is a copy of a notice which was posted on the bulletin board
and on the front of the office building on November 26, 1962. Since we still
have not heard from you we assume you still do not wish to return to work.
No driver responded to this letter.
Between November 6, 1962 , and January 2, 1963, no formal bargaining meet-
ings between Respondent and the Union were either scheduled or held . Two infor-
mal encounters occurred in December . On one occasion Allen met with Wasson,
by chance , in front of the terminal. Wasson suggested that they should sit down
"and get an agreement signed and get the men back to work." According to
Wasson , Allen replied that "at the time he couldn 't see it ." No further discussion
ensued . On another occasion Allen met with "Salty" Dykes, president of the Un-
ion. The meeting took place in a cocktail lounge, and was arranged by a sup-
plier of Allen who had experienced difficulties in making a delivery behind the picket
line. In response to a statement by Allen that he could not afford the master
agreement , Dykes, according to Allen , indicated that then Allen should get a
better class of business , and that in the event he could not then the Union intended
to put him out of business . Allen inquired if a "variation in the contract, any
possible chance of a percentage arrangement or anything like that might be
worked out ." Dykes responded that it could not.
2. Conclusions as to the offers of reinstatement and the
bargaining prior to December 24, 1962
Respondent urges that by the oral offers of the Trucking Unlimited loads to
Lundy, Beauchamp , and Rowley , by the offer of a load to Graham , by the informal
discussions about work availability between Allen and Beauchamp , Rowley, and
Hinrichs , and finally by the notices of November 26, it had made valid offers of
reinstatement to the drivers . Thus it is urged that even if a discriminatory lockout
be found, Respondent effectively remedied its unlawful conduct , at least to the
extent of cutting off further backpay liability. The record will not support this
contention.
I have found that Allen did offer Lundy one of the Trucking Unlimited
loads on November 7. I do not, however , regard this as an unconditional offer to
his former job. Only the day before Lundy had been told by Allen that he was
"out of business ." Allen did not announce to Lundy, or anyone else , on November
7 that he was resuming business , but merely stated that if Brooks could get drivers
he was prepared to handle the three loads that Brooks had located . Allen made no
attempt to assure Lundy that hauling a Trucking Unlimited load was tantamount
to reinstatement to his former job. As a discriminatee , Lundy was entitled to such
assurance if the offer is to be considered a valid one . 16 The so-called offers of the
10 Although the record is not entirely clear on the question, there is some indication that
Respondent is claiming that Graham , who was also present at the terminal when the
Trucking Unlimited loads were under discussion , was also offered one of them Even
assuming this to be so there is nothing to indicate that he was given any more assurance
than Lundy , and thus for the same reason any offer made to Graham at this time could
not be considered a valid one
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trucking Unlimited loads to Beauchamp and Rowley were even more ten-
uous. As we have already seen , there is some doubt that any real offers were
actually made, but even assuming that they were, there is nothing which would
indicate a type of offer that could reasonably be construed as an unconditional offer
of full reinstatement. The offer of a load to Graham on November 8, while clearly
made, was similar to the offer to Lundy on November 7, in that it likewise carried
no assurance that Graham was being offered his former job, and thus for the same
reason it is also defective. The informal discussions between Allen and Beau-
champ, Rowley, and Hinrichs are not even urged as unconditional offers, but
appear to constitute merely affirmations of the earlier defective offers The same
may be said for the notices posted on November 26 and subsequently delivered to
four of the drivers. They do not speak in terms of an unconditional offer to return
to former jobs, but purport only to affirm that although the drivers had heretofore
turned down jobs, if any were still remaining the drivers would be permitted to
apply for them. I find that between November 6 and December 24, 1962, Allen
made no valid offers of reinstatement to any of his drivers.
With respect to the bargaining during this period Respondent contends that the
informal meetings between Wasson and Dykes, in which these representatives al-
legedly had insisted that Allen sign the master agreement no matter what the cost,
are further evidence of the Union's adamant position and of Allen's willingness to
discuss matters. This overlooks the fact that it was Allen, not the Union, who
broke off the negotiations on November 6. As a result of this conduct the issue of
the reinstatement of the drivers became a primary and an overriding considera-
tion. Even so we find Wasson framing his proposal in terms of a further discus-
sion , and Allen once again declining to put the matter to a test to ascertain how
far the Union was really prepared to go. The meeting with Dykes can hardly be
regarded as definitive considering the posture of the case at that time which
resulted from Allen's unfair labor practices. An informal encounter in a cocktail
lounge with a man who was not the union negotiator, and in which only a general
discussion ensued seems to add little to the bargaining picture one way or the
other. I find that between November 6 and December 24, 1962, Respondent took
no steps toward the fulfillment of his duty to bargain with the Union.
3. The offers of reinstatement and the bargaining subsequent to
December 24, 1962
As a result of the charges filed by the Union in this proceeding, a proposed
Board settlement was signed by Respondent on December 21, 1962. It provided,
in substance, that Allen would offer reinstatement to Frederitz, Beauchamp, Row-
ley, Graham, Hinrichs, and Lundy, and make each whole, and bargain collectively
with the Union. Although at the time this proposed settlement had not been
signed by the Union or approved by the Regional Director, Allen, on Decem-
ber 24, 1962, sent letters to each of the drivers named in the agreement reading as
follows: 17
Pursuant to Settlement Agreement executed at the National Labor Relations
Board office in Los Angeles, California, on December 21, 1962, I am offering
you complete reinstatement of your former employment as a driver.
If you desire to return to work, please advise me at the address below
indicating your wish to return to work, Said desire to return to work shall be
communicated to me on or before close of business day on December 31, 1962.
Upon receipt of your answer in the affirmative I shall place your name on
a hiring list in order of your seniority as of November 6, 1962 so as to employ
you under the same conditions and circumstances of said date and prior
thereto.
These letters were sent to, and received by, all six of the drivers. It is undisputed
that within the prescribed time limit Beauchamp, Rowley, Graham, and Hinrichs
each notified Respondent that he desired to be reinstated. On Saturday, December
29, Frederitz, accompanied by Beauchamp and Rowley, went to Respondent's ter-
minal because they thought "it was a good time to go down and let [Allen] know
[they] was willing to go back to work ..." and to "talk over even any differences
17 This settlement agreeniciit was never signed by the Union It was later approved by
the Regional Director on January 28, 1963, but subsequently was set aside by the General
Counsel prior to the issuance of the complaint in this proceeding
NELSON B. ALLEN 241
[they] might have ... ' Lundy was to join them , but he was late, and was not
with them when they arrived at the terminal . Nelson Allen was not present when
they arrived . They told his son , Robert Allen, the purpose of their visit and he
handed them ceitain employment application forms to be filled out. The drivers
questioned him about the need for such forms, but Robert Allen only replied that
he was acting at his father 's instructions . After some discussion they departed
with the applications. Before departing Frederitz stated to Robert Allen that he
wished to be reinstated and that in the event his father wished him to take a load
he should call him. is The drivers' concern about the applications stemmed from
the fact that most had filled out similar applications and they felt the requirement
might , in some way , reflect upon their seniority status as reinstated em-
ployees. They went directly to Hul's Restaurant where they met Lundy who had
been late in getting to the terminal . They told Lundy that Nelson Allen was not
at the terminal and showed him the applications . After some discussion they
decided that with the weekend and holiday intervening before the next workday,
and with the Union scheduled to meet with Allen on that day, it would be best to
report the matter of the applications to the Union , and to let the business agents
take up the reinstatement problem with Allen at the negotiation meeting. As a
result of this decision, Lundy did not go to the terminal or otherwise notify Allen
that he wished to return.
The scheduled negotiation meeting between Allen and the Union took place on
January 2 , 1962. At this meeting the Union was represented by Clyde Yandell
and Barney Bernard.") At the outset of the meeting Yandell asked Allen about
taking back the six drivers . Allen replied that he was ready "to take four of them
back, but not two." Allen asserted that Frederitz and Lundy had not asked for
their jobs back within the December 31 time limit required by his letter. Yandell
replied that Frederitz had come to the plant on December 29, and that Lundy had
failed to report on the same day only after learning of the confusion concerning
the application blanks. Allen explained to Yandell that he had sought the applica-
tion blanks only to complete his records , that he desired them only from those
drivers who did not have similar applications already on file, and that he had never
intended that they should condition or adversely affect reinstatement rights. Allen
and Yandell discussed the reinstatement of Frederitz and Lundy at some length,
and Allen said that another reason for refusing to take them back was "that Lundy
and Fredeiitz had made faces at him from the road and that they were trouble
makers." The statement is not denied by Allen. There was some discussion of
union contract , and Allen repeated to Yandell the assertion he had made earlier to
Wasson, that his business was not such that he could afford the master agreement.
Yandell proposed no other agreement at the time, but explained to Allen that it
might be possible that the Union could waive health, welfare, and pension benefits.
The meeting was adjourned with the understanding that Yandell would take
up the possibility of such concessions with higher union officials, that he would
report back to Allen what the men had decided to do as a result of his refusal
to take back Frederitz and Lundy , and that they would later schedule another
negotiation meeting.
"There is some conflict in the testimony on this point . Robert Allen testified that
Frederitz asked him if lie "was assuming that [Frederitz ] was coining back to work" and
that "[lie ] said no " Allen slated that it was in reliance upon Robert Allen's report to
this effect that lie later concluded that Frederitz had not signified his intent to return to
work within the time limit prescribed by the letter Robert Allen was less than 20 years
old at the time of these incidents The drivers displayed a vociferous concern about the
meaning of the applications and subjected Robert to a barrage of questions about them He
did not fully understand their purpose, and could only reply that his father had instructed
Jilin to give lheni to any driver reporting. All three drivers were emphatic that Frederitz
made it quite clear that he was responding to the letter and seeking reinstatement. Indeed,
this appears to have been the only purpose of it visit by any of the drivers to the terminal
on that day I ant satisfied that Frederitz did make known his athrntative response to the
job offer, that Robert Allen became contused, misinterpreted some of his expressions of
concein about the applications, and subsequently passed on his contusion and misinterpre-
tation to his father.
19 Business Agent Wasson had been replaced by Yandell as a result of a union election in
December 1962, and Yandell, now assisted by another business agent, Bernard , had taken
over Wasson's role in the negotiations with Allen
770-076-65-vol. 149-17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Yandell and Bernard went from the terminal to Hul's Restaurant where they met
with some of the drivers 20 Yandell told the drivers of Allen's position with
regard to bargaining, the applications, and the reinstatement of Frederitz and
Lundy. The drivers agreed that none of them would return to work unless Freder-
itz and Lundy were also taken back, and that if they had not been taken back by
the following Sunday picketing would be resumed. According to Yandell he
reported this decision of the drivers by telephone to Allen.'
When Allen failed to call Frederitz and Lundy by the next Sunday January 6,
the picketing was resumed. Melvin Graham did not join the others, but returned
to work on or about January 6. Apparently because of the intervention of the
Board, Allen reversed his position as to Frederitz and Lundy, and by January 23
sent to both renewed unconditional offers of reinstatement. Both declined to
return, advising Allen, in substance, that they would not then go back without a
union contract. Renewed unconditional offers were also made to Beauchamp,
Rowley, and Hinrichs, and they too declined to come back without a union
contract 22
The next bargaining meeting was held on January 24, 1963. William Fon-
taine, organizer for the Western Conference of Teamsters, appeared and acted as
spokesman for the Union. Fontaine had more authority than either Wasson or
Yandell and was empowered to negotiate a contract making concessions de-
signed to cover specialized types of business such as Allen's. In a meeting which
lasted over 5 hours all phases of Allen's operation were fully discussed. Fontaine
acknowledged that the master agreement was designed for common carriers and
was not suited to special subhaul carriers such as Allen. He agreed that it would
be necessary to draft a special agreement adapted to the character of Allen's
business. The Union appears to have accepted Allen's representation as to the
nature and volume of his business, for it made no request to inspect his books.
According to Allen, during the course of this meeting he asked "if there wasn't
any arrangement such as a percentage that would-in other words, allow us to
kind of share in the profit...." The record is not clear exactly what Allen meant
by a percentage arrangement, and Fontaine makes no reference to this proposal in
his testimony. In any event it appears never to have been discussed. The meeting
concluded with the understanding that Fontaine, now fully apprised of Allen's
problems, undertake to draw up a new agreement tailored to fit them, which would
thereafter be submitted to Allen and would serve as the basis for discussion at a
later meeting.
20 Frederitz, Beauchamp, and Lundy were at the restaurant when Yandell and Bernard
got there. Rowley was out on a trip and did not return until the next day. Hinrichs was
still In Oregon, but he had told the others that he would go along with whatever they
decided. Graham did not come to Hul's restaurant until the meeting was nearly com-
pleted, and he did not hear the report from Yandell and Bernard.
21 Allen and his son, Robert, who listened In on this telephone call, testified that Yandell
informed them that the men were refusing to return without a union contract. I credit
Yandell's version in this regard The drivers present at the meeting not only testified
consistently that they were conditioning their return upon Frederitz and Lundy also going
back, but this position is more consistent with other events occurring at the time. Bargain-
ing had only just resumed, and although the drivers had been told that Allen had not signed
an agreement, they were also told that further meetings were to be held On the other
hand, only a few days before, all the drivers had signified their intention to return They
were aware that Frederitz had actually reported to the terminal within the required time
period and signified that he wanted to go back. They knew that Lundy had withheld going
to the plant only because of the confusion brought about by the Respondent's apparent in-
sistence upon the applications It is thus understandable that upon learning that Allen
was refusing to take back either Frederitz or Lundy they should have some question as to
his good faith in taking any of them back. Under all the circumstances, I am convinced
and find that the drivers refused to return to work at this time because Allen declined to
reinstate Frederitz and Lundy, and not because they were refusing to go back without
a contract. I further find that Yandell reported this fact to Allen in the telephone
conversation
"The offers to Beauchamp and Bowley were oral, and they were made aware that
Frederitz and Lundy had received renewed offers and that filling out the application forms
was not a condition precedent to return. Hinrichs, who was still in Oregon, received an
offer by letter. Although he had replied in the affirmative to the earlier offer, he did not
reply to this one. He had previously taken the position that he was going along with any
action the men took. Since they all declined to return at this time unless a union contract
were signed, I assume that Hinrichs likewise joined with them in this position.
NELSON B. ALLEN 243
Fontaine subsequently prepared a special contract, submitted it to Allen, and later
met with him on February 19. This meeting lasted approximately 3ih hours.
Allen accepted, without argument, the noncost items in the proposal, but no
agreement was reached as to any cost item This new union proposal differed
from the master agreement ptincipally in that it eliminated the health and welfare
provisions, piovidcd for an hourly wage scale lower than that in the master agree-
ment, and eliminated a pay scale based on mileage. It did, however, provide for
an 8-hour minimum payment and for vacation and holiday pay while Allen was
then paying a 4-hour minimum and no vacation or holiday pay. The undisputed
evidence regarding the cost of a typical trip is that under Allen's then current
practice, it would cost approximately $92, while under the special agreement it
would have cost approximately $122. While acknowledging that this was sub-
stantially less than the full costs under the master agreement, Allen contended that
even with the ieduction the cost figures were still too high for the type of business
in which he was engaged.= S Fontaine although stating that Allen made no
written counterproposals at either meeting cannot recall if he made any oral pro-
posals. The February 19 meeting adjourned with the understanding that Allen was
to think the matter over for a period of from 30 to 60 days. Fontaine states that
he asked Allen to let him know if during this period any developments took place
which would make it possible for him to accept the contract, and that Allen agreed
to do so. Allen denied eithei such request or his agreement. In any event Allen
never called the Union, but approximately 2 weeks after this meeting Fontaine
called Allen on the telephone During the course of this conversation Allen in-
formed Fontaine that things had not changed and that he still did not regard it
as economically possible fot him to accept the proposed contract. There is no
showing, or claim made, that these was any understanding or agreement as to
furthet communications between Allen and the Union. There is nothing to show
that the character of Allen's business thereafter changed in a manner that might
make that pioposal acceptable Thereafter Allen made no further efforts to com-
municate with the Union, not did the Union undertake to communicate further with
hi n. The picketing ceased in early Fe"-.t nary and has never been resumed.
4. Concluding findings as to the offers of reinstatement and bargaining
subsequent to December 24, 1962
We must next examine the significance of the reinstatement offers made on
December 24, and consider whether or not Respondent fulfilled its statutory duty
to bargain in the meetings with the Union following January 2, 1963. The
General Counsel, appears to claim that no valid offers of reinstatement were made.
Respondent urges that the letters of December 24 clearly constitute valid
offers of reinstatement. The General Counsel also contends that Respondent in
addition to its conduct on November 6, 1964, heretofore found to have constituted
a refusal to bargain, at all times thereafter followed a continued pattern of bad-
faith bargaining which must be remedied by a bargaining order Respondent
claims that even if its November 6 conduct be found a refusal to bargain, it was
thereafter remedied by the bargaining subsequent to January 2, 1963, and that no
remedial bargaining oider is called for
The letters of December 24, by their terms, and resulting, as they did, from a
proposed Board settlement appear, on their face, to constitute valid offers of rein-
statement to the six drivers. 21 Respondent will be absolved of further backpay
23 The estima(es made of Allen's costs and profits stand unchallenged in the record.
Annual costs computed under the piaster agreement would have been raised by approxi-
mately $36,000. This figure would include approximately $7,000 per year allocated to
health, welfare, and pension costs. Additional reductions brought about by the special
agreement submitted by Fontaine would have reduced the annual increase to approximately
$23,000. As we has e seen above Allen's net profit in 1002 was approximately $14,000 with
no allowance being made for any salary for him
251 have found above that Respondent discriminated against all 11 drivers in the unit
by the lockout of November 0. Neither Timmons nor Sharp were named in any charges or
in the complaint. Pennington, Brooks, and Creech returned to work after the lockout, and
later left Respondent's employ of their own volition. Except for Pennington , no one of
them was named in any charge, and none were named in the complaint. The issue as to
the discrimination against all in the unit was fully litigated However, I well make no
remedial provision as to the five not named in the complaint since they have evidenced no
desire to vindicate their rights In a Board proceeding.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
liability as to all six of the drivers , unless it be found that by its own conduct it
has interfered with the subsequent return to work of any of them. If so, its
discriminatory conduct will continue unless further remedied . Graham subse-
quently did return to work following the offer. I have found above that Frederitz
signified his intent to return on December 29, 1962, within the time limit set forth
in the offer. His failure to return thereafter came about because of Allen's mis-
placed reliance upon the representations of his son concerning Frederitz' statements
when he came to the terminal. Lundy did not actually report to the terminal on
that day, but he intended to do so, and his failure came about solely because of
the confusion created by Allen in regard to the application blanks. The entire
situation was made clear to Allen by Yandell at the bargaining meeting taking
place on January 2 the next business day following the appearance of the drivers at
the terminal . Allen's continued refusal in the face of Yandell's urging that he
take the drivers back, as well as his undenied remark that he regarded them as
troublemakers , casts doubt on Allen 's good faith and makes it appear that he was
seeking for excuses not to reinstate them. Thus the failure of Frederitz and
Lundy to return at this time comes about from Allen's conduct rather than their
own. On January 23, however , Allen renewed his offers to Frederitz and Lundy.
There is nothing to show that at that time the offers were not unconditional or that
Allen placed obstacles in the way of their return. On the contrary, the record
stands undisputed that at that time they declined to go back solely because Allen had
not signed a union contract. I find, therefore that on or about January 23, 1963,
Allen made valid offers of reinstatement to Frederitz and Lundy, and that they de-
clined to return without a union contract and that from that time on their status
changed from that of discriminatees to that of strikers.
Insofar as the record shows, Allen was prepared to put Beauchamp , Rowley,
Hinrichs, and Graham to work following their response to his December 24 offer.
Graham, as we have seen actually did return. Beauchamp, Rowley, and Hinrichs,
however, remained out to protest Respondent 's continuing unfair labor practices as
to Frederitz and Lundy. I find that on December 24, 1962, Respondent made
valid offers of reinstatement to Beauchamp , Rowley, Hinrichs , and Graham, and
that thereafter the status of those declining to return changed from that of dis-
criminatees to that of strikers At this time they were striking to protest an unfair
labor practice. On January 23, however, Respondent remedied the unfair labor
practice as to Frederitz and Lundy by the renewed offers. Beauchamp, Rowley,
and Hinrichs , although also receiving renewed offers , refused to go back unless
Respondent signed a union contract , and continued to strike after that time for
that purpose.
The bargaining after January 2, 1963, takes on an entirely different character
from that which preceded it Allen continued to insist that he could not afford
even the scaled down costs of the special contract . However, I am of the opinion
that his conduct at these meetings sounds more in terms of an economic impasse
than in derogation of his statutory bargaining duty. We are not necessarily
required to carry over the element of bad faith which characterized Allen's original
explosive response to the Union's bargaining requests on November 6. A discrim-
inatory lockout has been described as the "antithesis of good faith bargaining,
and in a sense it is. But in the instant case it appears to have come about more
as an emotional reaction to demands regarded as devastating, than from a
planned and calculated effort to evade the bargaining duty altogether. While the
effect on the employees was disastrous and their rights must be vindicated, and
while the earlier efforts at rehabilitation of the bargaining relationship were both
casual and insufficient , it does not follow as a matter of course that rehabilitation
must remain forever an impossibility . By January 23, 1963, all of the reinstate-
ment problems had been resolved , and those who desired it had returned to the
Respondent 's employ. Those remaining out thereafter did so to press for a union
contract . The way had been cleared for the parties to come together at the
bargaining table. The ensuing meetings were comprehensive, and Allen's appre-
hensions had been quieted by the knowledge that he was then dealing with a
representative authorized to make concessions . Allen disclosed all the information
about his business which was requested , and his entire operations were discussed to
the fullest possible extent . The Union freely conceded that the master agreement
was not suited to Allen's business , and came forth at the next meeting with its
own special contract proposal . The reduced costs of even this agreement do not
appear to allow Allen a profit upon the basis of the only figures appearing in this
record. Thus his continued adherence to his economic position does not lack foun-
dation or necessarily manifest a fixed and determined effort not to reach an agree-
NELSON B. ALLEN 245
ment. Allen's so-called percentage proposal, while not discussed by the Union, is
in the nature of a counterproposal and conceivably might have served as the basis
for an acceptable agreement. It is not clear that Allen had bound himself to
communicate further with the Union following the February 19 meeting At the
most it appears that he was to call the Union if some changes in his business came
about that would make the union proposal more acceptable Moreover, although
he did not subsequently call the Union he did have occasion to speak with Fontaine
subsequent to this meeting and did inform him at the time that no such changes
had come about. The attitude of the Union, in abandoning the picketing and
making no further efforts to reach Allen, suggests that it too may have accepted
the fact that even the special contract could not be supported by Allen's busi-
ness. I am convinced , and find, that regardless of his past unfair labor practices,
Allen undertook in good faith to remedy them by the offers of reinstatement and
by the bargaining. Accordingly, I find that commencing on January 2, 1963,
Allen resumed a bargaining relationship with the Union, that by his conduct
thereafter he demonstrated a willingness to fulfill his statutory duty to bargain,
that the failure to reach an agreement with the Union resulted from an economic
impasse, and that under the circumstances a remedial bargaining order is not
presently required.
There remains the question of the status of the strikers. I have already found
that prior to the December 24 offer, all of the drivers were discriminatees, not
strikers, and picketing was to protest their discriminatory lockout. The refusal of
Beauchamp, Rowley, and Hinrichs to return after the offer was a protest against
the continued unfair, labor practices relating to Frederitz and Lundy. However,
since they had received valid offers of reinstatement they lost their status as discrim-
inatees and became unfair labor practice strikers After January 23 when valid
offers had been made to all, however , all remained on strike to seek a con-
tract. Their status thus would change from unfair labor practice strikers, to eco-
nomic strikers , unless it can be said that in pursuing such objective they were pro-
testing an unlawful refusal to bargain. Since I have found that Respondent was, by
this time, meeting its statutory bargaining obligation, I must conclude that the
continuing strike is for an economic object, and that the drivers who remained
away became economic strikers.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent as set forth in section III, above, occurring in
connection with the operations of Respondent 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative
of Section 8(a)(1), (3), and (5) of the Act, I shall recommend below that it cease
and desist therefrom and take certain affirmative action designed to effectuate the
policies of the Act.
Having found that Respondent discriminatorily locked out all drivers in the
bargaining unit who are named on the complaint on November 6, 1962, and
having further found that Respondent subsequently made valid offers of reinstate-
ment to each of them, I will recommend that Respondent make each whole for any
loss of earnings he may have suffered as a result of the discrimination against him
by payment to him of a sum of money equal to the amount of wages he would
have earned from the date of the discrimination to the date of the offer of reinstate-
ment, together with interest thereon at a rate of 6 percent per annum, and that the
loss of pay and interest be,-computed in accordance with the formula and method
prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing and Heating Co., 138 NLRB 716, to which the parties hereto are
expressly referred.
Although I have found that Respondent engaged in conduct violative of Section
8(a)(5) of the Act, I recommend no affirmative bargaining order, inasmuch
as I have also found that Respondent by its subsequent bargaining with the Union
has already met its statutory duty to bargain.
The unfair labor practices committed by Respondent strike at the heart of the
rights guaranteed employees by Section 7 of the Act.25 The inference is warrant-
25 N L.R B. v. Entwistle Mfg. Co., 120 F. 2d 532 (C.A. 4).
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ed that Respondent maintains an attitude of opposition to the purposes of the Act
with respect to the protection of employee rights in general. It will, accordingly,
be recommended that Respondent cease and desist from infringing, in any manner
upon the rights guaranteed in Section 7 of the Act.26
Upon the basis of the foregoing findings of fact, and upon the entire record in
this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Nelson B. Allen is, and has been at all material times, an employer within
the meaning of Section 2(2) of the Act.
2. Line Drivers Local 224, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, is, and has been at all
material times, a labor organization within the meaning of Section 2(5) of the Act.
3. All truckdrivers employed by Respondent, excluding all other employees,
office clerical employees, guards, professional employees, and supervisors as defined
by the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. Line Drivers Local 224, affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America, has been at all times
since October 26, 1962, the exclusive representative of employees in the unit
described in paragraph 3 within the meaning of Section 9(a) of the Act.
5. By the termination of all employees in the unit described in paragraph 3,
above, on November 6, 1962, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (3) of the Act.
6. By the termination of all the employees in the unit described in paragraph 3,
above, on November 6, 1962, because they undertook to bargain through the
Union, Respondent has refused to bargain collectively with the Union, and has
engaged in unfair labor practices within the meaning of Section 8(a)(5) of the
Act
7. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed them by Section 7 of the Act, as found above, Respondent
has engaged in unfair labor practices within the meaning of Section 8(a)(1) of
the Act.
8. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Sections 2(6) and 2(7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this proceeding, I recommend that the Respondent,
Nelson B. Allen, its agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership of any of its employees in Line Drivers Local
224, affiliated with International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, or any other labor organization, by discrimi-
natorily locking out, discharging, terminating, laying off, or in any other manner
discriminating against any individual in regard to his hire, tenure of employ-
tttent, or any term or condition of employment, except as authorized in Section
8(a) (3) of the Act.
(b) Refusing to bargain with Line Drivers Local 224, affiliated with Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer-
ica, by locking out, discharging, terminating, or laying off any of its employees
because they undertake to bargain through their duly designated bargaining
representative.
(c) In any other manner interfering with, restraining, or coercing employees
in the exercise of their rights to self-organization, to form labor organizations,
to join or assist the above-named or any other labor organization, to bargain col-
lectively through representatives of their own choosing, or to engage in concerted
activities for the purposes of collective bargaining or other mutual aid or protection,
or to refrain from any or all such activities, except to the extent that such rights
may be affected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8(a)(3) of the Act.
May Department Store d/b/a Famous-Barr Company v. N.L.R. B.,•326 U.S. 876;
Bethlehem Steel Company v. N.L R.B., 120 F. 2d 641 (C.A D.C.).
NELSON B. ALLEN 247
2. Take the following affirmative action which is deemed necessary to effectuate
the policies of the Act:
(a) Make whole Claude Beauchamp, John Frederitz, Melvin Graham, Richard
Hinrichs, Kenneth Lundy, and Roland Rowley for any loss of pay each may have
suffered by reason of the discrimination against him, in the manner provided in
the section entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records,
timecards, personnel records and reports, and all other records necessary to an
analysis of the amount of backpay due.
(c) Post at its usual place of business, copies of the attached notice marked
"Appendix A."' Copies of said notice, to be furnished by the Regional Director
for Region 21 of the National Labor Relations Board, shall, after being signed by
Respondent, be posted by it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including all the places
where notices to employees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for Region 21, in writing, within 20 days
from the receipt by Respondent of a copy of this Decision, what steps Respondent
has taken to comply therewith.'
It is further recommended that unless on or before 20 days from the date of
its receipt of this Trial Examiner's Decision Respondent notify the Regional Direc-
tor that he will comply with the foiegoing Recommended Order, the National
Labor Relations Board issue an order requiring Respondent to take the action
aforesaid.
27 In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be snhstituted for the words "the Recommended Order of a
Trial Examiner" in the notice In the additional event that the Board's Order is enforced
by a decree of a Untied States Conrt of Appeals, the words "a Decree of the United States
Court of Appeals, T:nforciu¢ an Order" shall be substituted for the words "a Dec sion
and Order "
28 In the event that Iluo Recmnniended Order is adopted by the Board, paragraph 2(d)
thereof shall be modified to read' "Notify said Regional Director, in writing, within 10 days
from the date of this Order, what steps Respondent has taken to comply therewith "
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membeiship in or activities on behalf of Line
Drivers Local 224, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ametica, or any other labor or-
ganization of our employees, by discriminatorily locking out, discharging,
terminating, laying off, or in any other manner discriminating against any
individual in regard to his hire or tenure of employment or any term or
condition of employment, except as authorized in Section 8(a)(3) of the Act.
WE HAVE already offered reinstatement to, and we will make whole, Claude
Beauchamp, John Frederitz, Melvin Graham, Richard Hinrichs, Kenneth
Lundy, and Ronald Rowley for any loss of earnings they may have suffered as
a result of the discrimination against them.
WE WILL NOT refuse to bargain with Line Drivers Local 224, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America, by locking out, discharging, terminating , or laying off
any of our employees because they undertake to bargain through this or any
other labor organization.
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor or-
ganizations, to join or assist the above-named Union, or any other labor or-
ganization , to bargain collectively through representatives of their own
choosing, or to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, or to refrain from any or
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all such activities , except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a condition of
employment , as authorized in Section 8 (a) (3) of the Act.
All our employees are free to become or remain, or refrain from becoming or
remaining , members of the above-named Union or any other labor organization.
NELSON B. ALLEN,
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.
Information regarding the provisions of this notice and compliance with its
terms may be secured from the Board's Regional Office , 849 South Broadway, Los
Angeles, California, Telephone No. 688-5204.
J. A. Terteling & Sons , Inc. d/b/a Western Equipment Company
and International Union of Operating Engineers , Local 370,
AFL-CIO. Cases Nos. 19-CA-2736-1 and 19-CA-2736-2. Octo-
ber 29, 1964
DECISION AND ORDER
On June 22, 1964, Trial Examiner Martin S. Bennett issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in his attached Decision.
Thereafter the Respondent filed exceptions and a supporting brief.
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 [Members Leedom, 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
Examiner's Decision, the exceptions and brief, and the entire record,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner with the following modifications.'
In adopting the Trial Examiner's finding that Respondent vio-
lated its obligation to bargain in good faith, we have not relied solely
upon the position taken by Respondent on substantive contract terms.
Rather we have considered the totality of circumstances in assessing
Respondent's attitude towards collective bargaining. And on the
basis of Respondent's overall course of conduct we are persuaded that
Respondent approached the bargaining table not with the sincere
' In the absence of exceptions thereto, we adopt pro forma the Trial Examiner 's conclu-
sion that the proof fails to establish that Respondent engaged in independent violations of
Section 8(a)(1).
149 NLRB No. 28.